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There were three cases of note from last week. The Third Circuit held that notices of appeal do not encompass post-notice decisions. Litigants must file a second notice, or amend the first, to appeal those decisions. The D.C. Circuit held that it could not review a facial challenge to a statute in an injunction appeal stemming from an as-applied challenge. And the Ninth Circuit determined that a temporary restraining order was effectively an appealable injunction.
There were a bunch of interesting decisions last week. In the continuing saga of the Rule 3(c) amendments, the Second Circuit acknowledged them and applied them retroactively. In other decisions, the Sixth Circuit explained that it could review class certification in an appeal from a class-wide injunction. The Fourth Circuit clarified the basis for its jurisdiction to review compassionate-release denials. And the Eleventh Circuit explained that FLSA collective actions are not final until the district court addresses the claims of every opt-in plaintiff. Plus finality in § 2255 resentencing orders and a rejected attempt at municipal piggybacking.
I took a break from the roundup last week, but I’m back with a double-sized edition. In the last two weeks, another circuit didn’t recognize that the recent Rule 3(c) amendments abrogated its caselaw. The Eleventh Circuit determined that a stay put an action in “suspended animation,” thereby allowing an appeal from the stay. The Fifth Circuit used mandamus to quash a subpoena. And the en banc Fourth Circuit declined to reconsider its decision that defendants cannot immediately appeal denials of the ministerial-exception. Plus immigration appeals, qualified-immunity appeals, and more.
I’ve written a lot on this site about the finality trap in the last few years. Now I’ve published an essay on the trap in the New York University Law Review Online. I argue that the trap is asinine. And there’s an easy fix to it: let litigants disclaim the right to refile voluntarily dismissed claims. But the trap also makes me wonder if we should rethink finality. Current finality doctrine largely looks to what the district court has done—has the district court actually resolved all of the claims? It might be better to instead ask whether the district court is done. That is, once the district court has finished with an action, it has issued a final decision and the court of appeals has jurisdiction.
The essay is Disarming the Finality Trap, 97 New York University Law Review Online 173 (2022). You can download a copy at SSRN. The abstract is below.
Last week, the Tenth Circuit once again used a pro se plaintiff’s notice of appeal to limit the scope of its review despite recent amendments to Federal Rule of Appellate Procedure 3(c). The Second Circuit gave a thorough explanation of its jurisdiction over decisions made in post-judgment proceedings. The Fifth Circuit heard an appeal from a Brillhart stay. And two courts reversed orders that would have permitted an interlocutory appeal.
Several courts of appeals have 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 became effective last December. Yet some courts have overlooked these changes, continuing to apply caselaw that the amendments abrogated.
When the Tenth Circuit did so in Dawson v. Archambeau, Sean Marotta and I decided to try and do something about it. We filed an amicus brief pointing out that the court had neglected to apply the new rule. The Tenth Circuit responded with a second opinion saying that the amended Rule 3(c) did not apply to notices filed before the amendments’ effective date. Sean and I disagreed with that conclusion. So we filed a second amicus brief, this time asking the court to sit en banc to address the retroactivity of the Rule 3(c) amendments.
Last week, the Tenth Circuit adhered to its conclusion that the notice of appeal limited the scope of the appeal to the designated order. The court said that even if the amended Rule 3(c) applied, the appealed order did not merge into a subsequent judgment to which Rule 3(c) would apply. This conclusion can’t possibly be correct. But it looks like the end of the road for this effort.
Last week, the Second Circuit explained its discretion to hear a cross-appeal in an appeal under 28 U.S.C. § 1292(b). The Ninth Circuit dismissed as non-final an appeal regarding money an MDL defendant must set aside for a common-benefit fund. The Fifth Circuit dismissed a qualified-immunity appeal that challenged the factual basis for the immunity denial, as a video did not blatantly contradict the plaintiff’s version of events. And the Fifth Circuit said that the administrative closure of a case was not final.
Quick roundup this week, featuring covert mandamus, the scope of immigration appeals, relating forward premature notices of appeal, an amicus appeal, and more.
There was no roundup last week—for the first time since since I started the weekly roundup in July 2019, I didn’t see any decisions to talk about. But I’m back this week with an appeal from an OSHA warrant, formal defects in a Rule 54(b) partial judgment, post-judgment appeals involving the procedures for selling assets, and more.
There were only two decisions of note from last week, both from the Eleventh Circuit. One involved a purported injunction appeal before the district court set the terms of the injunction. The other involved the purported stipulated dismissal of all unresolved claims.
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