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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.
Mandamus is supposedly an extraordinary remedy. But a new paper from Jonas Anderson, Paul Gugliuzza, and Jason Rantanen shows that grants of the writ have become somewhat ordinary in Federal Circuit. And those grants have largely addressed venue issues in patent cases filed in the Eastern and Western Districts of Texas. (I discussed a trio of those grants in a weekly roundup last November, but those three only scratched the surface.)
The paper—titled Extraordinary Writ or Ordinary Remedy? Mandamus at the Federal Circuit—is forthcoming in the Washington University Law Review. It presents an excellent study of these developments in Federal Circuit mandamus, and it includes novel and fascinating empirical insights. It’s well worth your time. The abstract is below. And you can download the draft at SSRN.
The Supreme Court recently amended Federal Rule of Appellate Procedure 3(c). Before these amendments, several courts of appeals had used Rule 3(c)’s order-designation requirement to limit the scope of an appeal. The amendments—which were a necessary fix to a bad misreading of Rule 3(c)—became effective December 1, 2021. The Supreme Court’s order adopting the amendments said that the new rule would “govern in all proceedings in appellate cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.”
The Eighth Circuit was one of the courts that had used Rule 3(c) to limit the scope of appeals. Indeed, in Neal Katyal and Sean Marotta’s letter asking the Advisory Committee on Appellate Rules to look into the issue, they focused on the Eight Circuit’s caselaw. But in Monday’s Gustafson v. Bi-State Development Agency, the Eighth Circuit again said that designating one interlocutory order in a notice of appeal bars review of other interlocutory orders. The decision never mentioned the revisions to Rule 3(c). To be fair, the case was appealed before the new Rule 3(c) became effective. Perhaps the Eighth Circuit did not think it was “just and practicable” to apply the amended rule to a pending case.
As I’ve said many times, these amendments to Rule 3(c) couldn’t have come soon enough. I hope the Eighth Circuit will soon acknowledge the abrogation of its cases that misread Rule 3(c) and needlessly limited the scope of appeal.
Last week, the Ninth Circuit heard an immediate appeal from an unsuccessful challenge to an indictment. The defendant contended that the Juvenile Delinquency Act barred his prosecution as an adult. The Ninth Circuit held that the defendant could immediately appeal this decision via the collateral-order doctrine.
In another decision, the Ninth Circuit addressed the relation forward of a notice of appeal. The district court had dismissed a complaint with leave to amend, and the plaintiffs appealed rather than amend. The Ninth Circuit said that at the time of this appeal, it lacked jurisdiction and the notice was premature. But the district court’s subsequent entry of a final order of dismissal saved the premature notice.
In other decisions, the Second Circuit dismissed an appeal from a district court decision partially affirming and partially vacating a bankruptcy court’s contempt order. Two courts of appeals addressed improper factual challenges in qualified-immunity appeals. The D.C. Circuit dismissed an appeal from an order referring an attorney for potential discipline. And the Tenth Circuit dismissed an appeal because the plaintiff had voluntarily dismissed its claims against a defendant without prejudice.
There are only two decisions to discuss from last week. The Fifth Circuit held that it could review an order that (among other things) remanded a claim to an administrative agency. Because the district court was done with the case, the decision was a final one. And the D.C. Circuit granted a petition to appeal under Federal Rule of Civil Procedure 23(f). In its order doing so, the court directed the parties to address whether the court of appeals had pendent appellate jurisdiction to also review an order concerning a collective action under the Fair Labor Standards Act.
I was on spring break last week and took a break from the weekly roundup. But I’m back with decisions and developments from the past two weeks (February 27–March 12). And there were several decisions of note.
Two courts dismissed appeals based on close textual readings of jurisdictional statutes. A divided Eleventh Circuit held that it lacked jurisdiction to review sua sponte CAFA remands. The majority reasoned that 28 U.S.C. § 1453(c)(1) gives the courts of appeals discretion to review remand decisions that come after a motion to remand. Because sua sponte remands don’t come after a motion, they don’t fall within § 1453(c)(1). In reaching this conclusion, the Eleventh Circuit split with the Ninth. And the Sixth Circuit joined the First Circuit in holding that it could not review a state court’s preliminary-injunction order after a case was removed to federal court. Although 28 U.S.C. § 1292(a)(1) gives the courts of appeals jurisdiction to immediately review many orders involving injunctive relief, those orders must come from a district court. A state court’s preliminary injunction does not become the district court’s after removal.
In other decisions, the First Circuit held that the denial of judicial immunity in a criminal case is not immediately appealable via the collateral-order doctrine, as judicial immunity is not a statutory or constitutional right to avoid trial. The Tenth Circuit held that a contempt order was not final until the district court imposed a sanction. The Ninth Circuit held that a nominally without-prejudice denial of relief from a bankruptcy stay was final. And two courts of appeals dismissed fact-based qualified-immunity appeals. Finally, a new cert petition asks whether a party must serve an effective notice of appeal on the other parties.
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