Blog
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.
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.
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More Contact