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In National ATM Council, Inc. v. Visa, Inc., the D.C. Circuit offered a rare explanation for granting a petition to appeal a class-certification grant under Federal Rule of Civil Procedure 23(f). The reasons given were particularly interesting.
In United States v. Rivera-Rodríguez, the First Circuit held that the government can appeal from orders granting a criminal defendant’s request for compassionate release. Although several courts of appeals have reviewed these appeals, few have addressed their jurisdiction to do so in any depth. But the issue requires some thought—as the Rivera-Rodríguez panel noted, “[t]he government has no right of appeal in criminal cases except where a statute expressly grants such a right.”
In Harris v. Medical Transportation Management, Inc., the D.C. Circuit reviewed (and reversed) a grant of class certification. But it refused to use pendent appellate jurisdiction to review certification of a collective action under the Fair Labor Standards Act. The court explained that class actions and collective actions “are fundamentally different creatures.” The court of appeals did not need to review the propriety of the collective action to address class certification. And the resolution of the class-certification appeal did not necessarily resolve the propriety of the collective action. The court added that even if it could exercise pendent appellate jurisdiction, it would decline to do so given the complexity of the collective-action issues.
In In re Municipal Stormwater Pond Coordinated Litigation, a split Eighth Circuit held that it lacked jurisdiction to review the resolution of some claims when the parties conditionally dismissed other claims.
The parties agreed that, should the Eighth Circuit reverse, the voluntarily dismissed claims could be reinstated. But if the Eighth Circuit affirmed, the voluntarily dismissed claims were forever lost.
A majority of the Eighth Circuit held that this conditional dismissal did not result in a final, appealable decision. Judge Kelly dissented, contending that the dismissal was not actually conditional because the district court did not approve of the dismissal’s terms.
In Parrish v. United States, a divided Fourth Circuit dismissed an appeal because the would-be appellant did not file a second notice of appeal after the district court reopened the appeal time under Federal Rule of Appellate Procedure 4(a)(6). An earlier notice of appeal—which the Fourth Circuit had construed as a motion to reopen the appeal time—was insufficient. The would-be appellant instead needed to file a new one. Judge Gregory dissented to point out that this second notice of appeal is a needless, formalistic requirement.
Parrish sets up a trap for unwary litigants. And some litigants might fall into that trap; it’s not uncommon for courts of appeals to treat late notices of appeal—often from incarcerated, pro se litigants—as motions to reopen the appeal time under Rule 4(a)(6).
A procedural trap should serve some purpose. I see none in Parrish. I also agree with Judge Gregory that nothing in 28 U.S.C. § 2107(c) nor Rule 4(a)(6) requires a second notice. Hopefully the Fourth Circuit will rethink this matter.
In Selective Insurance Company of America v. Westfield Insurance Company, the Fourth Circuit dismissed an interlocutory appeal from a duty-to-defend decision. The court assumed—as other courts have held—that duty-to-defend orders can be appealable injunctions under 28 U.S.C. § 1292(a)(1). But the underlying litigation in Selective Insurance (that is, the litigation in which the insured was seeking a defense) was resolved while the duty-to-defend appeal was pending. Because that underlying litigation was over, the duty-to-defend order no longer imposed any prospective obligations on the insurance company. The Fourth Circuit thus concluded that the duty-to-defend order “lack[ed] the character of an injunction” and thus could not be immediately appealed via § 1292(a)(1).
June was arbitration-appeals month. In its third and last decision of the term relating to appellate jurisdiction, the Supreme Court held that district courts must stay proceedings on the merits pending an interlocutory arbitration appeal. In the courts of appeals, the Third Circuit reviewed the denial of a motion to dismiss that effectively sought arbitration. And the First Circuit dismissed an appeal from an order denying reconsideration of an arbitration denial.
In other decisions, two courts of appeals addressed some nuances of the Federal Rules of Appellate Procedure. The Fourth Circuit explained what notice is required under Rule 4(a)(6). And the Fifth Circuit recognized the amendments to Rule 3(c). There were also decisions on a bankruptcy stay’s effect on the appeal deadline, fact-based qualified-immunity appeals, and the reasonableness of mistakes for Rule 4(a)(2). Plus a new cert grant, denials of cert on appealing church-autonomy defenses, and more.
In Coinbase, Inc., v. Bielski, the Supreme Court held that district courts must stay proceedings on the merits once a party appeals from the denial of arbitration. The Court determined that 9 U.S.C. § 16—which authorizes these appeals—was enacted against Griggs v. Provident Consumer Discount Co.’s background principal that a district court loses control over all aspects of a case that are on appeal. And because the issue in an arbitration appeal is whether the case should proceed at all, the entirety of the case is effectively “on appeal.” So district courts must stay proceedings on the merits pending the appeal. The implication (though not expressly stayed by the Court) is that district courts lose jurisdiction over the merits and have no choice but to stay proceedings once an appeal is taken.
Justice Jackson dissented. She contended that the background principal against which Congress added § 16 was the opposite: no automatic stays due to interlocutory appeals. And Griggs means that the district court loses control over only the issue on appeal: arbitrability. She would have left the stay decision to the discretion of the district court.
I think I side with the dissent on this one. The majority gives several good reasons why district courts might stay proceedings in many cases. But I’m not convinced that courts must grant a stay in all cases.
One other note: Coinbase did not touch on whether district courts may dismiss a case, rather than stay it, after ordering arbitration. That’s an issue that the Court has yet to resolve.
May was quite a month for appellate jurisdiction.
We saw two Supreme Court decisions—one on preserving legal issues via denied summary-judgment motions, and one on the non-jurisdictionality of immigration exhaustion. And the government has agreed that cert is appropriate to address the reviewability of exceptional-hardship determinations in immigration appeals.
In the courts of appeals, there were significant decisions on the scope of Rule 41—does it apply only to entire actions or also to discrete claims?—and governmental-privilege appeals. But my favorite decision from last month was probably the Eleventh Circuit’s opinion on the interaction of two appeal-timing provisions: one for when the district court doesn’t set out the judgment in a separate document, and another for the resolution of post-judgment motions.
There were also decisions on pendent appellate jurisdiction over standing, appealing attorney-disqualification orders, Rule 3(c)’s order-designation requirement, the wisdom of the administrative-remand rule, and much more.
I’ve been following the circuit split over preserving purely legal issues via denied summary-judgment motions for some time. Now, the Supreme Court has finally resolved it. In Dupree v. Younger, the Court held that a denied summary-judgment motion preserves a purely legal issue. Litigants thus do not need to re-raise those issues in post-trial motions under Federal Rule of Civil Procedure 50.
It’s a solid resolution of the issue and removes a trap for the unwary. But going forward, counsel should be careful about whether a particular issue is purely legal. When in doubt, Rule 50 motions are probably the safest route.
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