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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.
I took a break from the roundup the last few weeks to work on some really interesting research. As I continue that work this summer, roundups might be a bit more to the point.
The last few weeks saw lots of interesting cases. Highlights include a Seventh Circuit decision on the finality of without-prejudice dismissals for failure to exhaust state habeas remedies and a Fifth Circuit decision on the scope of CAFA appeals. And the Ninth Circuit addressed the timeliness of intervention appeals in the context of post-judgment intervention. Plus qualified-immunity appeals, pendent appellate jurisdiction, and more.
Last week I learned that the Tenth Circuit doesn’t review pre-transfer orders in an appeal from the final judgment in a transferred action. That might create some issues for the appellants in a case that the Eleventh Circuit dismissed. Last week also saw interesting discussions of whether district courts must stay (rather than dismiss) cases after ordering arbitration, finality for post-judgment recusal orders, and whether denials of asylum in Visa Waiver Program cases are final orders of removal. Plus the en banc Fifth Circuit on the scope of a § 1292(b) appeal and more.
Last week saw interesting decisions on advisory mandamus, appealing reinstatement and withholding orders in immigration, appealing magistrate judge decisions, and hypothetical jurisdiction. Plus the timeliness of an appeal from a post-judgment contempt order and the blatant-contradiction exception to qualified-immunity appeals.
Last week, the Supreme Court held that the deadline for appeals to the Tax Court is not jurisdictional. The Fifth Circuit reconsidered a decision from last month and dismissed an appeal from an administrative remand. The Fourth Circuit reversed the entry of a Rule 54(b) partial judgment. The Sixth Circuit refused to hear a certified appeal under § 1292(b). The Fifth Circuit split on its jurisdiction over a qualified-immunity appeal in which the defendant disputed the factual basis for the immunity denial. And the First Circuit held that immigration petitioners do not need to seek rehearing before the Board of Immigration Appeals to argue that the Board misapplied a legal standard. Plus the collateral-order doctrine in appeals from the Patent Trial and Appeal Board, appealing without-prejudice dismissals of habeas petitions, and pendent appellate jurisdiction over the scope of the False Claims Act in state-sovereign-immunity appeals.
The only major appellate-jurisdiction decision from last week was the Ninth Circuit’s attempt to limit the impact of Microsoft Corp. v. Baker. Baker said that class-action plaintiffs cannot appeal an adverse class-certification decision by voluntarily dismissing their claims. The Ninth Circuit held that this bar on manufacturing an appeal via a voluntary dismissal applied only to contexts in which there are special appellate-jurisdiction rules, like class actions and arbitration.
In other decisions, the Federal Circuit held that the voluntary, without-prejudice dismissal of an unresolved counterclaim did not result in a final decision. The Second Circuit dismissed an arbitration appeal because the district court was not yet done with the dispute over arbitration. And the Fifth Circuit refused to extend pendent appellate jurisdiction over a transfer decision.
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