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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.
There’s is a lot to talk about from last week, including two opinions that touch on ongoing circuit splits (one involving arbitration appeals, the other involving immigration appeals). We also saw another Federal Circuit mandamus decision involving the refusal to transfer a case out of the Western District of Texas. Plus a bunch of other decisions on a variety of topics.
In what was probably last week’s most widely read order, the Eleventh Circuit referred to its pendent appellate jurisdiction. The Fifth Circuit dismissed an appeal from a party that could not get an immediate vacatur of an injunction. The Third Circuit addressed diversity jurisdiction, despite that issue not being part of the order certified for an immediate appeal via § 1292(b). Plus decisions on qualified-immunity appeals and bankruptcy remands.
Last week added to the tale of the Rule 3(c) amendments. Once again, a court overlooked those amendments in discussing whether the order designation in a notice of appeal limited the scope of appeal. And another court—when informed of those amendments—held that they did not apply to a pending case.
In other decisions, a Ninth Circuit concurrence argued that evidence-admissibility issues were within the scope of a qualified-immunity appeal. I disagree. And the Seventh Circuit approved of a Rule 54(b) partial judgment that allowed a plaintiff to cross-appeal alongside a qualified-immunity appeal. Plus an explained grant of a Rule 23(f) petition and a fact-based qualified-immunity appeal.
Last week, two courts discussed the circumstances in which it’s appropriate for district courts to enter partial judgments under Federal Rule of Civil Procedure 54(b). Both took a pretty narrow view of the rule. The Third Circuit addressed the application of 28 U.S.C. § 1292(a)(3) (which grants appellate jurisdiction over “decrees . . . determining the rights and liabilities of the parties to admiralty cases”) in the context of counterclaims that were dismissed after a choice-of-law decision. The Sixth Circuit refused to address a few issues in a qualified-immunity appeal. And the Eleventh Circuit read a notice of appeal to encompass the dismissal of a complaint and the denial of a second Rule 60 motion, but not the denial of a prior Rule 60 motion.
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