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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.
Last week, the First Circuit held that litigants can immediately appeal denials of motions to litigate anonymously. The Sixth Circuit reviewed a denial of derivative state sovereign immunity. It also extended pendent appellate jurisdiction over a summary-judgment decision, as doing so was necessary to review a preliminary injunction. Another court of appeals overlooked the recent amendments to Federal Rule of Appellate Procedure 3(c). The Third Circuit said that standing issues were within the scope of an appeal under Federal Rule of Civil Procedure 23(f), but personal-jurisdiction issues were not. Plus an appeal from an order that (might have) decided liability but not damages, the blatant-contradiction exception to the normal scope of qualified-immunity appeals, and more.
The courts of appeals continue to wrestle with their jurisdiction after dismissals without prejudice. The most recent example is Britt v. DeJoy, in which the Fourth Circuit sat en banc to address finality when a district court dismisses a complaint or action without prejudice but also does not grant or deny leave to amend. The en banc court held that these dismissals are “final” under 28 U.S.C. § 1291 and thus appealable.
It’s a good decision. And the motivation behind it—reducing the uncertainty that comes from case-by-case determinations of finality—is commendable. The Fourth Circuit also gave some guidance on the related issues of (1) what plaintiffs must do to stand on a complaint dismissed with leave to amend and (2) finality when the time to amend has passed or was never set.
I just hope that counsel in the Fourth Circuit keep this new rule in mind. Litigants unaware of this new rule might inadvertently lose their right to appeal.
Dismissals for failure to prosecute are appealable, and the court of appeals will review the propriety of the dismissal. The more interesting issue is what else the court of appeals will review. The merger rule normally means that all interlocutory decisions merge into the final judgment. But allowing litigants to appeal interlocutory decisions by inviting a failure-to-prosecute dismissal rewards dilatory tactics and risks piecemeal review.
The courts of appeals are nearly unanimous in refusing to review interlocutory orders that came before a dismissal for failure to prosecute. The Third Circuit did so in this week’s R & C Oilfield Services LLC v. American Wind Transport Group LLC. The district court ordered that the plaintiffs’ claims be arbitrated. Rather than arbitrate, the plaintiff did nothing, resulting in an eventual dismissal for failure to prosecute. On appeal, the Third Circuit refused to review the arbitration decision. The court of appeals determined that the failure-to-prosecute dismissal prevented the the arbitration decision from merging into the final judgment.
This is a good rule, though I might think about it as a rule of waiver rather than merger: the failure to prosecute waives any challenges to interlocutory orders. I’ll also note that I’ve run across two Second Circuit cases that reviewed interlocutory rulings after a failure-to-prosecute dismissal. And there might be some support for that approach in an old, cryptic Supreme Court decision.
The Fifth and Federal Circuits cannot agree on where appeals of Walker Process claims belong. These claims allege that someone violated the Sherman Act by fraudulently obtaining a patent. The Federal Circuit—which has exclusive jurisdiction over claims arising under the patent laws—thinks that these cases do not arise under the patent laws. So it transfers these appeals to the appropriate regional circuit. The Fifth Circuit—to which the Federal Circuit has sent these cases—disagrees. It thinks that these cases do arise under the patent laws and thus belong in the Federal Circuit. A case recently ping-ponged between these two courts for years before settling in the Federal Circuit. And last summer, in Chandler v. Phoenix Services, LLC, the Federal Circuit transferred another Walker Process appeal to the Fifth Circuit, risking another game of jurisdictional hot potato.
Thankfully the Fifth Circuit ended this round of transfers, concluding that the Federal Circuit’s transfer order in Chandler was “not implausible.” But the Fifth Circuit continued to disagree with the Federal Circuit on where Walker Process appeals belong.
This leaves litigants pursuing Walker Process appeals in a bind: to which circuit should they appeal? There’s now a good chance that wherever they appeal—the Fifth or Federal Circuits—the court of appeals will transfer the case. These circuits have essentially told litigants that if they want the Fifth Circuit to review a Walker Process issue, they should probably appeal to the Federal Circuit. And if they want the Federal Circuit to review the issue, they should probably appeal to the Fifth Circuit.
This is untenable. No good comes from the confusion over where to bring these appeals. And these transfers delay appellate resolution of these cases for no good reason.
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