The Fourth Circuit dismissed an appeal in which defendants argued that a state agency—which could invoke sovereign immunity—should be joined under Rule 19.
August 10, 2024
In McEvoy v. Diversified Energy Co., the Fourth Circuit dismissed a somewhat convoluted invocation of sovereign immunity. The defendants appealed to argue that a district court’s Rule 19 decision effectively denied a non-party’s sovereign immunity. But the defendant had never itself sought immunity. Nor had the actual immunity holder intervened to protect its interests. The motion was instead only a decision that a state agency was not a party that should be joined under Federal Rule of Civil Procedure 19.
The Fourth Circuit held that a privilege claimant could not appeal to challenge filter protocols for potentially protected evidence.
August 8, 2024
In In re Search Warrants Issued February 18, 2022, the Fourth Circuit dismissed an appeal that challenged the filter protocols for seized evidence. The district court had approved certain protocols to weed out potentially protected evidence. The district court later denied a privilege claimant’s motion seeking to alter those protocols. The Fourth Circuit held that under DiBella v. United States, the order was neither an appealable final decision nor an appealable denial of a preliminary injunction.
The scope and availability of arbitration appeals, remand appeals in naturalization proceedings, the Rule 3(c) amendments, and more.
August 5, 2024
July was a fairly quiet month. But there were still a few decisions worth discussing.
The Fifth Circuits said that it could review a personal-jurisdiction defense as part of an arbitration appeal. But it didn't need to.
August 3, 2024
In Hines v. Stamos (no PDF currently available), the Fifth Circuit spoke at length about its jurisdiction to review a personal-jurisdiction defense as part of an arbitration appeal. But the discussion was entirely unnecessary. The district court had never ruled on the personal-jurisdiction defense, meaning that there was no order to review. And the panel ultimately remanded the case for the district court to address personal-jurisdiction (as well as subject-matter jurisdiction), which might render the arbitration issue moot.
All of this could have been done without mentioning appellate jurisdiction over the personal-jurisdiction defense. The Fifth Circuit could have simply remanded the case for the district court to address personal jurisdiction in the first instance. And I think doing so would have been the better move—whether personal- and subject-matter-jurisdiction issues are within the scope of interlocutory appeals is a difficult, unsettled issues.
Robert H. Klonoff has a new empirical study of class-certification appeals under Federal Rule of Civil Procedure 23(f) that also dives into the substance and consequences of Rule 23(f) decisions.
August 3, 2024
Robert H. Klonoff has posted a draft of his new article Federal Rule of Civil Procedure 23(f): Reflections After a Quarter Century. The article includes new empirical data on appeals (and attempts to appeal) under Federal Rule of Civil Procedure 23(f) and updates my study from a few years ago. It also includes an analysis of Sixth Circuit opinions on Rule 23(f) motions (the Sixth Circuit is one of the few courts that regularly explains Rule 23(f) decisions) and a discussion of how cases that reached appellate courts through Rule 23(f) provided guidance on class-action procedure.
I read an earlier draft of this article and can highly recommend it. The draft is available on SSRN, and the abstract is below.
The Fourth Circuit applied the administrative-remand rule to a district court order that remanded a long-pending naturalization application to the Citizenship and Immigration Services.
August 1, 2024
In Dubon v. Jaddou, the Fourth Circuit dismissed an appeal from an order remanding a naturalization action to the U.S. Citizenship and Immigration Services. The court acknowledged that this remand order would be unreviewable in any future proceedings. But it thought that this lack of review was harmless, as the applicant could eventually obtain judicial review of the underlying naturalization decision.
The courts of appeals have split on whether they can review a remand order based on waiver, and the Fifth Circuit doubts that it’s on the correct side.
July 30, 2024
In Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, the Fifth Circuit held that it lacked jurisdiction to review an order that remanded a removed action because the defendant had waived the right to remove. But the panel doubted that doing so was correct. Indeed, the panel seemed almost certain that its decision was wrong. But it was bound by the Fifth Circuit’s decision in In re Weaver, which held that 28 U.S.C. § 1447(d) barred review of such a remand.
Another expansion of qualified-immunity appeals, manufactured finality in the agency context, more non-party privilege appeals, and more.
July 8, 2024
Quick roundup this month, starting with another expansion of the scope of qualified-immunity appeals.
In a new essay, I argue that there is no helpful general rule about the appealability of dismissals without prejudice. Courts would do well to ignore the without-prejudice designation when determining appellate jurisdiction.
June 20, 2024
Federal courts of appeals have spent a lot of energy determining whether litigants can appeal after a dismissal without prejudice. Some courts have declared that these dismissals are final decisions and thus generally appealable. And some courts—sometimes the same courts, albeit in different opinions—announce the opposite rule: that dismissals without prejudice are not generally appealable. Atop these contradictory general rules, courts have added a number of qualifications and exceptions.
In a new essay forthcoming in the Michigan Law Review Online, I argue that there is no helpful general rule about appealing dismissals without prejudice. That’s because the without-prejudice nature of a dismissal has little to do with appealability. Far more relevant is the nature of the underlying order. So appellate courts should focus on what the district court actually did, and not whether what it did was without prejudice. In fact, nothing would be lost—and much could be gained—if courts of appeals stopped looking to whether a dismissal was without prejudice when determining appealability.
The draft is available on SSRN. The abstract is below. Comments, as always, are welcome.
The Fourth Circuit nicely explained that manufactured finality comes in a variety of forms, some of which are acceptable and some of which aren’t.
June 19, 2024
In Jones v. U.S. Merit Systems Protection Board, the Fourth Circuit reviewed a decision of the Merit Systems Protection Board even though the petitioners voluntarily dismissed some of their theories of relief. That voluntary dismissal was with prejudice, which made it highly unlikely that the voluntarily dismissed theories would ever resurface. So the petitioners were not trying to improperly manufacture an interlocutory appeal.
The opinion nicely recognizes that not all varieties of manufactured finality should be treated the same.