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Last week, the Eighth Circuit tackled the administrative remand rule and—finding it didn’t apply—inferred a § 1292(b) certification by the district court. The Eleventh Circuit reviewed a motion that challenged the filtering procedures for reviewing seized evidence. A handful of courts refused to review additional issues and defenses as part of qualified-immunity appeals. The D.C. Circuit reviewed the denial of common law foreign-sovereign immunity. The Second Circuit passed on deciding whether a represented party could invoke the prison-mailbox rule for filing a notice of appeal. And the Seventh Circuit concluded that two motions seeking transcripts were the functional equivalent of a timely notice of appeal.
I saw only three decisions of note last week. The Fifth Circuit used pendent appellate jurisdiction to review an interlocutory discovery order. And the Sixth Circuit addressed its appellate jurisdiction in two habeas cases. One concerned an order requiring a petitioner’s transport to a university hospital for medical examination. The other concerned expanding the scope of an initial appeal to excuse the failure to timely file a subsequent appeal.
Last week, the Seventh Circuit reviewed a dismissal without prejudice, as the plaintiff could not do anything to correct the defects that led to the without-prejudice dismissal. Judge Easterbrook concurred to explain that once a district court is finished with a case, that court has issued a final decision.
In three decisions, courts of appeals addressed various aspects of qualified immunity. The Third Circuit held that defendants can immediately appeal from denials of qualified immunity under New Jersey’s Civil Rights Act. Immunity under the Act is an immunity from litigation, making an immediate appeal necessary. The Sixth Circuit dismissed a qualified-immunity appeal when the district court granted summary judgment for the plaintiff on the claim in question. That grant of summary judgment ended litigation on that particular claim, so there was no need for immediate appellate review. After all, a reversal would subject the defendants to additional litigation, not protect them from it. And the Seventh Circuit split on the interpretation of a video in a qualified-immunity appeal. The majority thought that the video was subject to interpretation, meaning that genuine factual issues precluded granting qualified immunity. Chief Judge Sykes dissented to contend that the video unambiguously depicted the events in question, so the court of appeals could reverse the denial of immunity.
Finally, the Eleventh Circuit immediately reviewed a determination of who controlled a party to litigation via the collateral-order doctrine. In doing so, the court distinguished the case from the normal interlocutory appeal involving disqualification of counsel.
When I think of class actions, I think of their use in district courts. But a new paper from Adam Zimmerman (forthcoming in the University of Chicago Law Review) shows that class actions can also have a place in appellate courts, where class appeals can remedy failures in administrative adjudication.
The problem is that hundreds of so-called “channeling statutes” send administrative decisions past district courts and straight to the courts of appeals for review. The courts of appeals then review these administrative decisions individually. But this case-by-case adjudication can leave claimants without an effective remedy. As Zimmerman explains, “government agencies avoid judicial review by selectively mooting claims, forcing unrepresented parties to surmount overwhelming administrative backlogs, and denying courts critical information needed to craft meaningful relief.” Zimmerman shows that a class action—certified in the courts of appeals—can remedy the failures of individual adjudication. And the courts of appeals have the means for implementing class procedures: the All Writs Act. In fact, this procedural innovation is already occurring—the Court of Appeals for Veterans Claims has certified three classes in suits against the Department of Veterans Affairs.
I just finished a draft of the article, and it’s really good. It details an important and understudied phenomenon that has the potential for wider use. It’s well worth a read.
A draft is available on SSRN. The abstract is below.
Quick roundup this week. A split Ninth Circuit divided over the scope of a Rule 23(f) appeal. The majority held that it could review whether a defendant waived a personal-jurisdiction objection to class certification. The dissent thought that personal jurisdiction was outside the scope of review.
In other decisions, the Ninth Circuit said that “heirs” is not specific enough to satisfy Federal Rule of Appellate Procedure 3(c)(1)’s party-designation requirement. The Tenth Circuit said that a notice of appeal from a “clearly interlocutory” order did not relate forward to the district court’s final decision. The Fifth Circuit explained the appellate-jurisdiction consequences of electing to bring maritime claims in the district court’s civil jurisdiction. And the Tenth Circuit said that a post-judgment motion did not delay the start of the appeal clock when the motion did not seek any substantive changes to the judgment.
In Supreme Court developments, a new cert petition asks if the Federal Circuit can review a refusal to institute inter partes review under the NHK–Fintiv rule.
There is lots to talk about from last week, including decisions involving three circuit splits. A divided Second Circuit created a split over the appealability of fugitive-disentitlement orders. The Eighth Circuit held that bankruptcy’s appeal deadline is non-jurisdictional, joining the Sixth Circuit in the split on that issue. And the Fifth Circuit noted that it now stands alone as the only court to allow appeals from denials of antitrust’s state-action defense.
In other decisions, the Second Circuit said that the scope of review in a certified bankruptcy appeal included only those issues presented in the certified order—not the specific questions that the bankruptcy court thought merited an immediate appeal. The Federal Circuit said that the time for filing a § 1292(c)(2) appeal ran from the denial of a new trial on liability, even though the district court had not yet resolved a motion for a new trial on the amount of damages. And the Eighth Circuit deemed a notice of appeal sufficient, despite the notice saying it was from, and to, courts that don’t exist. Plus an improper Rule 54(b) partial judgment, pendent appellate jurisdiction in a Rule 23(f) appeal, and a form notice of appeal in a criminal case.
Sometimes a fugitive defendant’s lawyer will appear in court to challenge the charges against the defendant. The defendant—who has failed to appear, evaded capture, or fled the jurisdiction—is absent. Yet the defendant hopes that the district court will dismiss some or all of the charges before the defendant submits to the court’s jurisdiction. The defendant thereby avoids the risk of confinement and conviction while hoping to obtain a favorable outcome.
District courts can refuse to consider these challenges under what’s called the fugitive-disentitlement doctrine. The doctrine allows a district court to demand the defendant’s presence before ruling on any challenges to an indictment.
In United States v. Bescond, a split Second Circuit held that defendants can immediately appeal from a fugitive-disentitlement order. A majority of the court determined that these orders are appealable via the collateral-order doctrine. Disentitlement orders, the majority said, impose severe harms on defendants and must be reviewed immediately if they are to be reviewed at all. In so holding, the Second Circuit split with the Sixth and Eleventh Circuits, which have dismissed appeals from fugitive-disentitlement orders. Dissenting, Chief Judge Livingston contended that fugitive-disentitlement orders do not involve sufficiently important interests to warrant an immediate appeal.
Last week, the Fourth Circuit held that it could review hardship determinations in immigration appeals. In doing so, the court added to one side of the circuit split on this issue.
In other decisions, the Eleventh Circuit heard an appeal from the denial of immunity under the Foreign Sovereign Immunities Act in a criminal case. The Ninth Circuit dismissed an appeal that challenged a “common-fund” attorneys’ fees award in an ongoing class action. The Second Circuit held that a motion to reconsider a First Step Act denial delayed the start of the appeal clock. In another case, the Second Circuit said that a district court could not correct clerical errors in a judgment once the defendant had appealed the refusal to correct those errors.
Plus decisions on factual challenges in qualified-immunity appeals, an informal notice of appeal, and pendent appellate jurisdiction over the political-question defense.
All of the appellate-jurisdiction action last week was in the Sixth and Eleventh Circuits.
The en banc Eleventh Circuit unanimously overruled its caselaw that allowed defendants to immediately appeal the denial of antitrust’s state-action defense, which is often called “Parker immunity.” The court explained that the defense is not an immunity from suit. So appeals after a final judgment suffice.
The Sixth Circuit split over its jurisdiction after a plaintiff voluntarily dismissed some of its claims without prejudice. This is an issue that several courts of appeals have had to wrestle with in the last few years. The Sixth Circuit also dismissed an interlocutory appeal that asked only whether a Bivens remedy existed for the defendant’s alleged conduct. Although this Bivens question can normally tag along with an appeal from the denial of qualified immunity, the defendant did not ask the district court for immunity. With no qualified-immunity appeal, there was no jurisdictional basis for the Sixth Circuit to review the Bivens issue.
The Eleventh Circuit had two additional decisions of note. That court reviewed the denial of a Rule 35(b) sentence-reduction motion, as the defendant argued that the district court had committed a legal error in refusing to reduce his sentence. The Eleventh Circuit also dismissed an appeal form a discovery order entered in Chapter 15 bankruptcy proceedings. The discovery order was part of an effort to enforce a foreign bankruptcy court’s order freezing assets. So the discovery order did not mark the end of the relevant bankruptcy proceeding.
The Bivens question asks whether a damages action exists for a federal official’s unconstitutional conduct. In Wilkie v. Robbins, the Supreme Court held that courts of appeals can address the Bivens question as part of an appeal from the denial of qualified immunity. But the Bivens question standing alone has not been deemed immediately appealable. It must tag along with a qualified-immunity appeal.
In Himmelreich v. Federal Bureau of Prisons, the Sixth Circuit accordingly dismissed a pure Bivens appeal. The defendant in Himmelreich had not sought qualified immunity in the district court. She argued only that no Bivens remedy existed for her alleged conduct and appealed only the district court’s rejection of that argument. With no denial of qualified immunity, the Sixth Circuit lacked jurisdiction over the appeal.
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