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In Silverthorne Seismic, L.L.C. v. Sterling Seismic Services, Ltd., a majority of the Fifth Circuit held that a motions panel had erred in permitting a certified appeal under 28 U.S.C. § 1292(b). The district court had certified for an immediate appeal a decision on how the plaintiffs could prove reasonable-royalty damages in a trade-secret case. The majority thought that no immediate guidance was necessary on this damages issue, which—if the defendants prevailed at the pending trial—would never arise. And an immediate appeal would delay—not accelerate—the resolution of the action. Judge Higginson dissented, contending that the majority had read § 1292(b) too strictly and immediate appellate review of this damages issue was warranted.
Like many courts, the Fifth Circuit treated § 1292(b)’s criteria—a substantial ground for difference of opinion, a controlling question of law, and material advancement of the litigation—as prerequisites to an appeal. The order in Silverthorne Seismic failed two of those requirements and was thus ineligible for certification.
But I doubt that courts should treat § 1292(b) as imposing eligibility requirements that must be satisfied in every case. The criteria should instead serve as guidelines for the exercise of discretion. That is, § 1292(b)’s criteria should not determine whether a court can hear an interlocutory appeal. They should instead guide the decision of whether that court should hear the appeal.
Last month saw a pair of decisions on when post-judgment motions reset the appeal clock for interlocutory appeals. The Ninth Circuit addressed its jurisdiction over a government appeal when the government invites the district court to dismiss an indictment. The Ninth Circuit also addressed jurisdiction over cross-appeals under the administrative-remand rule. Plus an improper qualified-immunity appeal and more doubts about anti-SLAPP appeals.
In United States v. Wilson, the Ninth Circuit permitted the government to appeal a discovery order in a criminal case after the government asked the district court to dismiss the indictment to facilitate an appeal. Although the order was interlocutory, the Ninth Circuit could review it under 18 U.S.C. § 3731. That’s because § 3731 doesn’t require finality. And the district court’s involvement in the dismissal assuaged any concerns about manufacturing an appeal.
I think the court was right about appellate jurisdiction. After all, the district court had dismissed the indictment, which is an appealable decision under § 3731. Notably, this was fairly different from how courts treat similar efforts to manufacture an appeal in the civil context.
But I still think the appeal was improper. In my view, the government waived any challenge to the judgment by consenting to a dismissal before the case had been effectively resolved.
In Blackwell v. Nocerini, the Sixth Circuit held that a motion to reconsider reset the time to take a qualified-immunity appeal. The denial of immunity was immediately appealable and thus a “judgment” under the Federal Rules of Civil Procedure. So a motion to reconsider that denial was effectively a motion under Federal Rule of Civil Procedure 59(e), despite the motion’s relying on a local rule rather than Rule 59(e). And that Rule 59(e) motion reset the appeal clock. The defendants could thus appeal the denial of immunity months after that denial. This conclusion let the Sixth Circuit avoid addressing whether a refusal to reconsider the denial of immunity is itself immediately appealable.
In Kaweah Delta Health Care District v. Becerra, the Ninth Circuit held that a cross-appeal was proper when the government could appeal from an administrative remand. The court explained that when the administrative-remand rule makes a decision final, it is final for everyone.
In Gelin v. Baltimore County, the Fourth Circuit held that Federal Rule of Appellate Procedure 4(a)(4)(A) applies to appealable interlocutory orders. So a motion to reconsider such an order resets the time to appeal. The court added that a motion can effectively be one seeking reconsideration even though the motion does not cite to Federal Rule of Civil Procedure 59(e) and instead relies on a different rule.
This all meant that the appeal in Gelin was not late. In fact, it was too early. The district court had not resolved all issues raised in the reconsideration motion. The Fourth Circuit accordingly held the appeal in abeyance while the district court fully disposed of the reconsideration motion.
November saw a pair of interesting decisions on the application of Smith v. Spizzirri as well as a formal standard for successive injunction appeals in the Tenth Circuit. But let’s start with a decision on whether a post-judgment motion to reconsider reset the appeal clock.
October was discovery-appeal month. The Ninth Circuit held that a § 1782 order was not final when the district court had not resolved post-order objections to the discovery. The Fifth Circuit permitted an immediate appeal from a discovery order that implicated First Amendment interests. The Eleventh Circuit held that a party could not take a Perlman appeal when the same objections to discovery could be addressed through the party’s own contempt appeal. And a new cert petition asks if discovery orders are immediately appealable when a defendant has raised the qualified-immunity defense.
There were some additional decisions of note, including an attempted collateral-order appeal on the Yearsley doctrine and the Fifth Circuit’s reconciliation of the prison-mailbox and the mistaken-filing rules. But let’s start with a nice reminder that appellate courts need to have their own jurisdiction before they can address the district court’s.
In CPC Patent Technologies Pty Ltd. v. Apple Inc., the Ninth Circuit held that a 28 U.S.C. § 1782 discovery proceeding was not final because the district court had not definitively resolved the scope of discovery. Although the district court had authorized a subpoena, the court had not addressed the discovery target’s objections to the scope of discovery. Until those issues were resolved, the discovery target could not appeal.
In In Re Grand Jury Investigation, the Eleventh Circuit held that a privilege claimant could not appeal orders compelling it and third parties to produce documents.
The analysis of the order directed at the privilege claimant was straightforward. Privilege claimants normally must take contempt appeals to challenge a discovery order. The privilege claimant in Grand Jury Investigation had not been held in contempt. So it couldn’t appeal.
The order directed at third parties was more interesting. Under the Perlman doctrine, privilege claimants can normally immediately appeal discovery orders directed to a third party. But the Eleventh Circuit held that the claimant here could not take a Perlman appeal. That’s because the claimant could have raised all of its challenges to the third-party discovery order by taking its own appeal. Appellate review of those issues was therefore possible, meaning Perlman didn’t apply.
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