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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.
It was another packed week of appellate-jurisdiction decisions, particularly in the Sixth Circuit. Let’s start with one of my favorite topics, cumulative finality.
Lots of decisions this week. Let’s start with a pair of cases that rejected municipalities’ attempts to tag along with their employees’ qualified-immunity appeals.
Last week had a bunch of decisions of note. Let’s jump right in with orders transferring a motion to quash a subpoena.
Last week, the Fifth Circuit addressed non-party discovery appeals and the time for appealing interlocutory orders. The Sixth Circuit allowed the disclaim-on-appeal tactic to save an appeal after some claims were dismissed without prejudice. That court also refused to relate forward a notice of appeal filed after a magistrate judge’s report and recommendation. And the Eighth Circuit dismissed a qualified-immunity appeal insofar as it challenged the factual basis for the immunity denial.
In Leonard v. Martin, a split Fifth Circuit held that non-parties cannot use the collateral-order doctrine to immediately appeal discovery orders that reject a claim of undue burden. Other avenues for immediate review—certified appeals under 28 U.S.C. § 1292(b), writs of mandamus, and contempt appeals—were available. The majority accordingly concluded that collateral-order appeals were unnecessary to ensure meaningful review of orders denying motions to quash on undue-burden grounds. Judge Haynes dissented, contending that the discovery order in question implicated important issues that could not be effectively reviewed via other means. And she suggested that non-party status alone might be enough to warrant an immediate appeal.
The Fifth Circuit has some questionable caselaw on appealing discovery orders via the collateral-order doctrine. I think the court allows too many of these appeals. I’m glad to see a case going the other way.
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