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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.
In Ueckert v. Guerra, the Fifth Circuit held that an appeal from the denial of qualified immunity was untimely, as it came 412 days after the district court’s bench ruling. In the course of doing so, the court explained that the defendant had 180 days to appeal this denial. That’s because the district court never set out its denial of immunity in a separate document. That denial was appealable and thus a judgment under Federal Rule of Civil Procedure 54(a). And most judgments must be set out in a separate document before the appeal clock begins running. Otherwise, the appeal clock begins running 150 days after the judgment. That’s what happened in Ueckert—the appeal clock began running 150 days after the immunity denial, at which point the defendant had 30 days to appeal.
As Ueckert explains, many (if not most) appealable interlocutory orders are not set out in a separate document. So treating appealable interlocutory orders as judgments gives litigants an immense—and, in the Fifth Circuit’s view, unreasonable—time to appeal interlocutory orders. The Rules Committee is aware of this problem. Yet it apparently hopes that courts will overlook it. The Fifth Circuit refused to do so. That means district courts can prevent these extended appeal windows only via “time-wasting paper-pushing, entering separate ‘judgments’ containing their holdings on every interlocutory motion that might be susceptible to appeal.” The Fifth Circuit accordingly called for the Rules Committee to take a look at the time for appealing interlocutory orders.
There’s not a lot to talk about from last week. In a footnote, the Supreme Court added another type of order to the list of immediately appealable collateral orders. And the Tenth Circuit explained its caselaw on fact-based absolute-immunity appeals.
In Tuesday’s Shoop v. Twyford, the Supreme Court reversed an order that required the state to transport a habeas petitioner from his prison to a hospital for medical testing. Before doing so, the Court had to explain how the Sixth Circuit had jurisdiction to immediately review this order. In a footnote, the Supreme Court said that the order was immediately appealable via the collateral-order doctrine. Dissenting, Justice Breyer would have held to the contrary. Also dissenting, Justice Gorsuch would have dismissed the case as improvidently granted, as the appellate-jurisdiction issue complicated the Court’s consideration of the transportation order.
I think the dissents have the better of the argument. Transportation orders like the one in Shoop are essentially discovery orders. And discovery orders like these are neither completely separate from the merits nor sufficiently important to warrant immediate review. Perhaps more troubling is Shoop’s use of the “conceptually distinct” test for separation. The majority said only that the transportation order was “conceptually distinct” from the merits—not that it was completely separate. This variation on the separateness requirement fudges the collateral-order requirements and risks both delayed district court proceedings and duplicative appellate review. The Court’s use of the test in Shoop—along with the Court’s brief, surface-level analysis—invites future mischief as litigants rely on Shoop to appeal other kinds of orders.
The to-the-point roundups of summer 2022 continue with a double-sized edition. Highlights include using Scott v. Harris’s blatant-contradiction exception to disregard allegations in a complaint and the appealability of Title VII’s ministerial-exception defense.
Last week saw interesting decisions on the scope of class-certification appeals under Rule 23(f), the appealability of orders controlling communications with class members, manufactured finality, and more. Plus, Judge Bress questioned the Ninth Circuit’s caselaw allowing appeals from anti-SLAPP denials. But let’s start with a new cert petition that asks if appellate courts can always address the Bivens question in qualified-immunity appeals.
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