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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.
The most interesting decision from last week (to me, at least) addressed whether a voluntary dismissal after an adverse interlocutory order affected jurisdiction. There was also a Second Circuit decision on the appealability of interlocutory writs of execution (though the court determined that the order was “final,” so “interlocutory” might not be an accurate description). And the Eighth Circuit dismissed an appeal from a liability decision that did not set the amount of nominal damages.
Litigants sometimes try to create a final, appealable decision by voluntarily dismissing some or all of their claims. These dismissals fall under the banner of manufactured finality, and they come in several forms. A litigant who loses on some claims might voluntarily dismiss its remaining claims and then appeal the loss. A litigant who faces an adverse interlocutory decision—one that makes a claim less attractive but does not actually decide it—might voluntarily dismiss its claims and try to appeal the interlocutory order. Or a litigant who faces a dispositive interlocutory order—one that effectively, though not technically, resolves all of the claims—might do the same.
When litigants try to manufacture a final decision, most courts of appeals see potential appellate-jurisdiction issues. But in Wednesday’s Levy v. West Coast Life Insurance Co., the Seventh Circuit said that voluntary dismissals do not implicate statutory appellate jurisdiction. They instead implicate Article III. The court ultimately held that it could review the dismissal of the plaintiffs’ claim, despite the plaintiffs’ having voluntarily dismissed that claim after the district court rejected their theories of liability. But in the course of doing so, the Seventh Circuit said that an appellant who consents to a judgment against it might not suffer the injury in fact that Article III requires.
The outcome in Levy was right—the plaintiffs had suffered a dispositive interlocutory order, and their voluntary dismissal merely accelerated the inevitable end of district court proceedings. And the Seventh Circuit was correct that voluntary dismissals should not raise appellate-jurisdiction issues. But most courts—including perhaps the Supreme Court—disagree on that point. And I don’t see how voluntary dismissals implicate Article III. The issue is instead one of waiver: a litigant who voluntarily dismisses its claims might waive any right to appellate review.
I’m writing a paper on this topic right now. So in this post, in addition to discussing Levy, I give an overview of my thoughts. Comments are very much welcome.
There is too much to talk about from last week. Let’s start with the D.C. Circuit’s decision on the appealability of PREP Act immunity.
Last week had several decisions of note. The Eleventh Circuit had me wondering if pendent appellate jurisdiction is ever necessary. The Eighth Circuit addressed its jurisdiction after an appellee had voluntarily dismissed some of its claims without prejudice, though that discussion was probably unnecessary. The Eleventh Circuit allowed an appeal from the denial of sovereign immunity under Florida law. The opinion suggests immunity appeals are all about whether a defense shields officials from litigation (and not the other requirements of the collateral-order doctrine). And a notice of appeal that was “at the edge of errors” the Seventh Circuit was willing to excuse. Plus appellate jurisdiction over post-judgment cost decisions and more.
Pendent appellate jurisdiction allows a court of appeals to extend jurisdiction over a decision that would not normally be immediately appealable when the court has jurisdiction over another, related decision. Used almost entirely in the context of interlocutory appeals, pendent appellate jurisdiction says that the normally non-appealable issue piggybacks on the appealable one. The standards for pendent appellate jurisdiction are unsettled. The Supreme Court has shown little enthusiasm for the practice. But it is common in the courts of appeals.
In last week’s Schultz v. Alabama, the Eleventh Circuit used pendent appellate jurisdiction to review a decision on both the plaintiff’s standing and the adequacy of the plaintiff’s complaint as part of an injunction appeal. I initially thought that this was a defensible use of pendent appellate jurisdiction. But the case got me thinking: did the court really need pendent appellate jurisdiction? The adequacy of the complaint and the plaintiff’s standing were already part of the preliminary-injunction appeal. All pendent appellate jurisdiction did was let the court opine on orders—not issues—that it otherwise could not have addressed.
I’m starting to wonder if pendent appellate jurisdiction is ever actually necessary.
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