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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.
Sometimes litigants are unsatisfied with the existing avenues for interlocutory appeals. So they try to manufacture a final decision, often by voluntarily dismissing some or all of their claims. Manufactured finality comes in a variety of forms. In 2017’s Microsoft Corp. v. Baker, the Supreme Court shut down one of them. The Court held that plaintiffs hoping to bring a class action cannot appeal an adverse class-certification decision by voluntarily dismissing their individual claims with prejudice. That form of manufactured finality was an attempted end-run around the rules governing interlocutory appeals from class-certification decisions, particularly Federal Rule of Civil Procedure 23(f).
Baker suggests that litigants can no longer manufacture an interlocutory appeal by voluntarily dismissing their claims and then trying to appeal an interlocutory district court decision that harmed—but did not resolve—those claims But in last week’s Trendsettah USA, Inc. v. Swisher International, Inc., the Ninth Circuit said that litigants could still use this tactic in most contexts. The district court in Trendsettah vacated a jury verdict and ordered a new trial. Rather than face that new trial, the plaintiff voluntarily dismissed its claims with prejudice and tried to appeal the new-trial decision. The Ninth Circuit held that the voluntary dismissal produced a final, appealable decision. Baker, the court thought, applied only when this tactic imperiled specific rules on interlocutory appeals.
I don’t buy it. Just like the plaintiffs in Baker and similar decisions, the plaintiff in Trendsettah was trying to avoid the normal limits on interlocutory appeals. That those limits apply generally (rather than to a specific context) should make no difference. And the plaintiff in Trendsettah had not lost on it claims. It instead decided that litigating further was not worth it. So the plaintiff got exactly what it asked for: a with-prejudice dismissal of its claims.
Last week, the Seventh Circuit questioned whether any bright-line deadline existed for seeking a partial judgment under Federal Rule of Civil Procedure 54(b). A concurring opinion from the Sixth Circuit misread Johnson v. Jones to permit the review of evidentiary issues in qualified-immunity appeals. The Third and Seventh Circuits addressed the timeliness of sanctions appeals. And the Fifth Circuit joined the Second and Ninth Circuits in holding that the 30-day deadline for appealing to the Board of Immigration Appeals is not jurisdictional. Plus transfer orders from the Claims Court, the scope of a Double Jeopardy appeal, and a fact-based qualified-immunity appeal.
Although there is a concerted effort to reform or abolish qualified immunity, the prospects of doing so are uncertain. In a new article, I argue that if if qualified immunity remains in its current or a similar form, reformers should target qualified-immunity appeals. Although courts and commentators have occasionally criticized qualified-immunity appeals, they often fail to see how much damage these appeals have done. This article reveals the full costs of qualified-immunity appeals, which are an immense source of complexity, expense, and delay in civil-rights litigation.
I’ve written a lot about qualified-immunity appeals over the last few years. This article marks the culmination of that work. It provides new empirical data on the incidence, procedural posture, and outcome of qualified-immunity appeals. It exhaustively details the ways in which federal courts have expanded the scope and availability of these appeals. It explains that these expansions add complexity, expense, and delay to civil-rights litigation with little or no offsetting benefit. And it argues that the only way forward is to overrule the Supreme Court’s decision in Mitchell v. Forsyth, which created the right to immediately appeal from the denial of qualified immunity.
The article is forthcoming in the Missouri Law Review. A draft is available on SSRN, and the abstract is below.
When an action involves multiple claims, appeals normally must wait until the district court has resolved all of claims. Federal Rule of Civil Procedure 54(b) is one exception to this general rule. It permits a district court to enter a partial judgment on the resolution of some (but not all) claims in an action. That partial judgment is then a final, appealable decision.
What is the deadline for seeking a Rule 54(b) partial judgment? Two Seventh Circuit decisions (one from 1972, the other from 2017) held that the request must come within 30 days of the district court’s decision. Late-filed Rule 54(b) motions required reversing the partial judgment and dismissing the appeal.
But in Wednesday’s DaSilva v. Indiana, the Seventh Circuit determined that this 30-day deadline is not jurisdictional. It is instead a claims-processing rule. So a delayed request for a Rule 54(b) partial judgment does not affect appellate jurisdiction. And an appellee can forfeit any objection to a late-filed Rule 54(b) motion.
The Seventh Circuit also questioned the 30-day limit itself. Although the procedural rules are lousy with deadlines, Rule 54(b) does not contain one. DaSilva ultimately did not require the Seventh Circuit to determine whether the 30-day deadline should exist. It was enough to say that Indiana forfeited any objection. The court suggested, however, that any timeliness issues might best be addressed by asking whether the district court abused its discretion in entering the Rule 54(b) partial judgment.
Last week saw lots of interesting decisions. Two cases implicated the recent amendments to Federal Rule of Appellate Procedure 3(c)’s order-designation requirement, though only one court of appeals seemed to realize as much. The First Circuit held that stay-put orders in IDEA cases are immediately appealable via the collateral-order doctrine. Several courts dealt with the general bar on reviewing the factual basis for a qualified-immunity denial. Two of those decisions addressed improper attempts to challenge those facts, while another invoked the blatant-contradiction exception to the general rule. Another qualified-immunity appeal came from the refusal to amend a pretrial order that had included a particular claim among those to be tried. In other decisions, the Fifth Circuit reviewed evidentiary decisions in an interlocutory prosecution appeal. That court also used mandamus to order a district court to request that a case be re-transferred back to the district court. Plus appeals of remand orders under CAFA’s local-controversy exception, denials of immunity under the International Organizations Immunities Act, appealing a favorable judgment, duty-to-defend decisions as appealable injunctions, changing without-prejudice dismissals on appeal, and appeals by non-parties.
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