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For years, several courts of appeals limited the scope of an appeal to the orders designated in a notice of appeal. Recent amendments to Federal Rule of Appellate Procedure 3(c) were supposed to end that practice. These amendments took effect in December 2021. Yet some courts have overlooked these changes, continuing to apply caselaw that the amendments abrogated.
Yesterday’s Eleventh Circuit decision in Vera v. Market Wood LLC is yet another example. The court relied on a pre-amendments case to hold that the failure to designate a particular order meant the court lacked jurisdiction to review that order.
Orders on the disqualification of counsel are not normally appealable. In most cases, an appeal from a final judgment suffices to protect the relevant interests. But what about when a district court disqualifies an entire U.S. Attorney’s Office from participating in a prosecution? Several courts have held that such a disqualification is immediately appealable via the collateral-order doctrine. Last week, in United States v. Williams, the Ninth Circuit agreed.
A few years ago, I wrote about the Fifth Circuit’s caselaw that allows government officials to immediately appeal discovery orders via the collateral-order doctrine. The case that sparked that discussion did not address appellate jurisdiction at all—I had to go to the briefs to figure out why the court was hearing a discovery appeal. But two recent Fifth Circuit cases addressed the issue squarely, one in some depth. And the cases reinforce my view that the Fifth Circuit needs to go en banc to change this rule.
In Industrial Services Group, Inc. v. Dobson, the Fourth Circuit gave a convincing explanation for why pendent appellate jurisdiction does not extend to standing in a sovereign-immunity appeal. The courts of appeals have split on this specific issue, and the caselaw is mixed on whether standing is part of other interlocutory appeals. But the Fourth Circuit is on the better side of the issue. Although standing is a threshold issue to proceeding in federal court, it normally does not need to be addressed to resolve other, immediately appealable issues.
In Makozy, v. Westcor Land Title, the Eleventh Circuit tackled a particularly complicated issue of appellate timing that involved the interaction between Federal Rule of Appellate Procedure 4(a)(4) and Rule 4(a)(7). Simplifying as much as possible (which isn’t much), the case asked if a post-judgment motion could shorten the 150 day period for entry of a judgment when the district court doesn’t set out the judgment in a separate document. The court answered “no,” joining the Ninth and Tenth Circuits.
It’s a solid decision. My only gripe is that it’s unpublished and thus not precedential.
Earlier this year, the Eleventh Circuit reiterated its rule that litigants cannot voluntarily dismiss individual claims under Federal Rule of Civil Procedure 41(a)(1). That portion of the rule permits plaintiffs to voluntarily dismiss “an action without a court order.” So plaintiffs can dismiss only entire actions under Rule 41(a)(1), and attempts to dismiss individual claims are ineffective.
Last week, in Rosell v. VMSB, LLC, the Eleventh Circuit added that litigants cannot voluntarily dismiss individual claims Rule 41(a)(2). That part of Rule 41 permits voluntary dismissals via court order. But, according to the Eleventh Circuit, it also permits the dismissal only of entire actions. So when the litigants in Rosell settled the only unresolved claim, they needed to either obtain a partial judgment under Federal Rule of Civil Procedure 54(b) or amend the complaint to remove the settled claim. Otherwise, there would be no final decision and no opportunity to appeal.
As I said earlier this year, I have my doubts about the “actions-only” interpretation of Rule 41. Rosell only reinforces those doubts.
The two main events in April were probably the Sixth Circuit’s potential expansion of Microsoft Corp. v. Baker and oral argument in the Supreme Court case on preserving issues raised in denied summary-judgment motions.
But there were several other decisions of note. Two courts addressed class-certification appeals under Rule 23(f)—one explaining the standards for granting Rule 23(f) petitions and another holding that it can address standing in those appeals. There seems to be some new tension in the Third Circuit’s caselaw on how litigants can make a dismissal with leave to refile into a final decision. The Ninth Circuit treated the denial of arbitration as an appealable denial of an injunction. And the Eleventh Circuit addressed appellate standing and non-party appeals.
Plus several new cert petitions, the appealability of the Yearsley defense, and much more.
In Ohio Public Employees Retirement System v. Federal Home Loan Mortgage Corp., the Sixth Circuit held that an invited summary-judgment decision was not final because the plaintiff was trying to circumvent Rule 23(f). The district court had denied class certification. The plaintiff then tried to manufacture a final, appealable decision by asking the district court to enter judgment against it. As the Sixth Circuit saw things, the case was no different from Microsoft Corp. v. Baker.
But there appears to be an important distinction in the underlying order that the Sixth Circuit overlooked. In Microsoft, the district court had merely denied class certification, and the named plaintiffs were free to pursue their individual claims. But in Ohio Public Employees, it looks as though the district court’s class-certification decision effectively precluded the plaintiff from prevailing on even its individual claims. If that’s the case, Ohio Public Employees extends Microsoft to a different variety of manufactured finality. In doing so, it shuts down a valuable and long-recognized tool for accelerating the inevitable end of district court proceedings.
The highlight from last month is probably the Second Circuit’s conclusion that it did not need to address its own jurisdiction when the district court lacked subject-matter jurisdiction. The decision was an immense, erroneous, and very likely unintentional expansion of federal appellate jurisdiction.
There was also a fascinating D.C. Circuit decision on what it means to be a “party” when appealing discovery orders directed at others. And the Second Circuit addressed both the appealability of § 1447(e) remands and whether appellate courts could look behind the purported reasons for a remand to the actual reasons.
Plus appeals from motions to dismiss that sought only arbitration, another cert petition on appealing church-autonomy defenses, anti-SLAPP appeals, the jurisdictionality of § 3742, the scope of Rule 23(f) appeals, and much more.
In LeChase Construction Services, LLC v. Argonaut Insurance Co., the Second Circuit held that 28 U.S.C. § 1447(d)’s bar on remand appeals applied to remands under § 1447(e). But the court also held that it could review a remand that, while purportedly under § 1447(e), was actually based on “a patently nonjurisdictional ground, such as prudential considerations.” (Cleaned up.) So the Second Circuit reviewed a remand that—though nominally done under § 1447(e)—was really an exercise of Colorado River abstention.
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