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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).
Last week, the Ninth Circuit held that defendants cannot use the collateral-order doctrine to immediately appeal from the denial of derivative sovereign immunity. The Eleventh Circuit concluded that a duty-to-defend order was an appealable injunction. The Sixth Circuit rejected an argument that a Rule 59(e) motion was not good enough to delay the start of the appeal clock. The Tenth Circuit related forward a premature notice of appeal. The Second Circuit excused the late filing of a cross-appeal, though it noted that not everyone agrees that the filing deadline is non-jurisdictional. And the Fifth Circuit refused to review the availability of punitive damages while hearing a qualified-immunity appeal.
Last week produced several decisions of note. The most interesting to me was a divided motions panel decision from the Sixth Circuit. The majority refused to dismiss an appeal when the plaintiff asked the district court to grant summary judgment for the defendant. The case strikes me as odd, however, as the plaintiff apparently wants to appeal only an interlocutory class-certification decision—the plaintiff doesn’t seem to challenge its merits loss.
In other decisions, the Eleventh Circuit rejected several proffered grounds for appellate jurisdiction in a case that challenged an order involving the winding down of a trust. The Eighth Circuit split over whether a decision staying an action pending the resolution of related state court proceedings was a Colorado River stay that would warrant an immediate appeal. And several courts addressed their jurisdiction in appeals from the denial of qualified immunity. Plus effective notices of appeal, injunction appeals, and appeals from sealing orders.
I’m back from my annual holiday break with roundup covering the previous two weeks. There were a few decisions of note. The Third Circuit joined nearly every other circuit in holding that it cannot review a discretionary decision not to waive the Violence Against Women Act’s deadline for reopening immigration proceedings. The en banc Federal Circuit declined to reconsider whether a damages trial is an “accounting” for purposes of § 1292(c)(2). The Seventh Circuit held that Federal Rule of Civil Procedure 58’s provisions on deeming a judgment entered apply to the denial of a writ of coram nobis. That court also dismissed a qualified-immunity appeal insofar as the defendants challenged the factual basis for the immunity denial. Plus pendent appellate jurisdiction over a judicial-notice decision and the scope of remand appeals.
It’s the last roundup of the year. And it’s a short one. The Third Circuit dismissed an appeal from an order concluding that factual disputes precluded a decision on judicial-proceedings privilege. The defendant had framed the appeal as one from the denial of absolute immunity. But even if it was, unresolved fact issues prevented the order from being appealable. The Eleventh Circuit dismissed an appeal from a remand order, rejecting—and expressing some doubts about the existence of—the “matter of substantive law” exception to 28 U.S.C. § 1447(d). And the Second Circuit asked the Board of Immigration Appeals to specify the preclusive effect of an inadmissibility determination when a petitioner later withdraws an application for admission.
I’ll be back after the new year with the annual double-sized Winter Break edition to cover what happens over the break.
I’m a little late with this week’s roundup, but there were several cases worth discussing. The Seventh Circuit applied the two (separate but seemingly identical) restrictions on reviewing a bankruptcy court’s remand orders. The Sixth Circuit rejected a factual challenge to the denial of qualified immunity and dismissed an appeal from a prevailing defendant who was unhappy with some of the district court’s analysis. The Third Circuit explained that an order deeming a trust governed by ERISA was not an appealable injunction. The Eleventh Circuit held that when the district court does not set out its judgment in a separate document, the time for filing post-judgment motions begins to run once a party files a notice of appeal. That court also held that a notice of appeal designating forthcoming decisions on post-judgment motions was inadequate to appeal those subsequent decisions. Plus a new cert petition on appealing discovery orders in Chapter 15 bankruptcy proceedings, appealing orders refusing to dissolve an injunction, and the appealability of denied summary-judgment motions.
There’s lots to talk about from last week. The Fifth Circuit weighed in on the split over whether a struck post-judgment motion could reset the appeal clock. The Sixth Circuit again split on the extent to which it could separate “factual” and “legal” arguments in qualified-immunity appeals. Two other courts dealt with appeals that challenged the factual basis for immunity denials. The Fifth Circuit addressed its jurisdiction in post-judgment proceedings. And the Second Circuit explained how a partial summary-judgment decision could be a final decision. Plus decisions on reviewing § 1292(b) denials and unspecified costs.
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