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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.
The Class Action Fairness Act (often referred to as “CAFA”) permits the removal of certain class actions brought in state court. CAFA includes a special appellate provision—28 U.S.C. § 1453(c)(1)—which gives the courts of appeals discretion to review a district court order “granting or denying a motion to remand a class action to the State court from which it was removed.” Normally these remand decisions come after one of the parties has asked the district court to remand the case. But sometimes district courts remand actions without anyone asking.
In 2013, the Ninth Circuit held that these sua sponte remands fall within § 1453(c)(1), despite them not coming after a party’s motion. But last week, in Ruhlen v. Holiday Haven Homeowners, Inc., a divided Eleventh Circuit held that § 1453(c)(1) does not cover sua sponte remands. As the majority saw things, § 1453(c)(1) applies only to orders that come after a motion. And a remand at the district court’s own initiative—though colloquially referred to as on the district court’s own motion—does not actually come in response to a motion. Section 1453(c)(1)’s plain text thus meant that appellate courts do not even have discretion to review a sua sponte CAFA remand. Dissenting, Judge Rosenbaum contended that the majority’s decision was inconsistent with § 1453(c)(1)’s text and context, and it produced absurd results.
28 U.S.C. § 1292(a)(1) gives the courts of appeals jurisdiction to immediately review many district court decisions involving injunctive relief. But § 1292(a)(1)’s text includes an important qualifier. It applies to “[i]nterlocutory orders of the district courts.” Normally this qualifier does little work. After all, most (if not nearly all) § 1292(a)(1) appeals involve injunctions issued by a district court.
In Schuler v. Adams, the Sixth Circuit had to address its jurisdiction to review a state court’s preliminary injunction. The case had been removed to federal court after the state court had issued the injunction. The Sixth Circuit held that it lacked appellate jurisdiction. The order—though granting injunctive relief—was not “of the district court[].” And removal did not transform the state court’s order into one of the district court.
One requirement for appeal via the collateral-order doctrine is that the district court’s order be effectively unreviewable in an appeal after a final judgment. A prime candidate for satisfying this unreviewability requirement are immunities from suit. If a defense protects a litigant from the burdens and uncertainties of trial, it must be vindicated immediately if it is to be vindicated at all. Courts have accordingly held that several kinds of immunities from suit are immediately appealable via the collateral-order doctrine.
Last month, this approach to immunity appeals ran into the collateral-order doctrine’s special strictures in the criminal context. In United States v. Joseph, the First Circuit said that in criminal cases the right to avoid trial must come from a statutory or constitutional right to avoid trial. The criminal context is thus more strict than the civil context, in which common law rights to avoid trial (such as qualified immunity) can warrant an appeal. The immunity at issue in Jospeh—judicial immunity—comes from the common law. The First Circuit accordingly held that the denial of judicial immunity is not immediately appealable in a criminal prosecution.
Last week saw a few cases of note. The Seventh Circuit held that an order requiring an insurance company to defend its insured was an appealable injunction. The Sixth Circuit limited a sovereign-immunity appeal to sovereign-immunity issues, refusing to address standing or municipal liability. The Sixth Circuit also split on the extent to which defendants raised arguments within the court’s jurisdiction in a qualified-immunity appeal.
After taking last week off from the roundup, I’m back with a two-week edition. The Fourth Circuit split on whether it could extend pendent appellate jurisdiction over orders directing arbitration. The First Circuit determined that a district court’s criticism of attorneys was not sufficiently related to a formal sanction to be appealable. Plus pendent appellate jurisdiction over an amendment decision, the scope of review in Black Lung Benefits appeals, and whether a discovery order requiring the turning over of cell phones was an appealable injunction.
The general rule for appealing interlocutory arbitration orders is pretty straightforward. Under 9 U.S.C. § 16, orders that refuse to direct arbitration under the Federal Arbitration Act are immediately appealable. Orders that direct arbitration aren’t. But what if an order directs arbitration on some claims but not on others?
In Lyons v. PNC Bank, the Fourth Circuit split on whether it could use use pendent appellate jurisdiction to review an order insofar as it directed arbitration. Without much explanation, the court held that § 16 does not limit the use of pendent appellate jurisdiction. And extending pendent appellate jurisdiction in Lyons was appropriate, as the court’s resolution of the appealable issue meant meant that none of the claims were subject to arbitration. Judge Quattlebaum dissented, contending that § 16’s bar on appeals from orders directing arbitration prohibited the use of pendent appellate jurisdiction.
One twist that Lyons did not mention is § 16’s use of the word “order.” The Supreme Court recently said in B.P. P.L.C. v. Mayor & City Council of Baltimore that an appeal from a remand order under 28 U.S.C § 1447(d) encompasses all issues addressed in that order. I was no fan of that decision. And now it makes me wonder what to do with § 16, which permits appeals from “order[s]” that reject arbitration while prohibiting appeals from “order[s]” favorable to arbitration. If an order does both, BP suggests the absurd conclusion that the entire order is both appealable and not appealable.
Last week, the Ninth Circuit addressed whether a letter from the Drug Enforcement Agency amounted to an appealable “final decision of the Attorney General.” The Federal Circuit held that it could review an order enforcing a settlement agreement. And several courts had to deal with improper fact-based qualified-immunity appeals. Plus appeals involving refusals to reconsider decisions ordering arbitration and the scope of state-law immunity appeals.
Short roundup this week. The First Circuit reviewed a refusal to enjoin a criminal prosecution. And the Fifth Circuit explained that administrative exhaustion was not required in extraordinary-ability visa cases. In the course of doing so, that court questioned its caselaw deeming administrative exhaustion jurisdictional in this context. Plus appeals involving an undetermined amount of liability, the denial of a Colorado River stay, and more.
Last week saw two rare opinions on the discretionary appeals. The Ninth Circuit refused to hear a certified appeal under 28 U.S.C. § 1292(b) because the certified order did not include a question of law. And the Third Circuit accepted a Federal Rule of Civil Procedure 23(f) petition to appeal a class-certification decision, partly due to a perception that the district court judge was pressuring the defendants to settle. In another case, the Third Circuit explained its jurisdiction over post-judgment attachment orders. In the course of doing so, the court explored the precedential effect of old cases involving writs of error. Plus an appeal after a voluntary dismissal without prejudice in the Second Circuit, and an Eleventh Circuit decision acknowledging the changes wrought by recent amendments to Federal Rule of Appellate Procedure 3(c).
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