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The past several years have seen the courts of appeals struggling with their jurisdiction when plaintiffs voluntarily dismiss some of their claims without prejudice. Concerned that these plaintiffs are trying to manufacture an interlocutory appeal, the courts have developed a variety of rules on appealability. The Fifth Circuit, for example, requires that the would-be appellant obtain a partial judgment under Federal Rule of Civil Procedure 54(b). The Ninth Circuit requires meaningful district court involvement in the voluntary dismissal. And the Eleventh Circuit simply holds that the without-prejudice voluntary dismissal creates a final, appealable decision.
The Sixth Circuit has now weighed in. In Rowland v. Southern Health Partners, Inc., a divided panel held that the without-prejudice voluntary dismissal of all outstanding claims did not create a final decision. The case involved a fairly blatant attempt at manufacturing an interlocutory appeal, with the plaintiff hoping to reinstate her voluntarily dismissed claims should she succeed on appeal. A majority of the court rejected this effort. Dissenting, Judge Moore would have held that the plaintiff had sufficiently imperiled her voluntarily dismissed claims to create a final decision.
Last summer, the Eleventh Circuit heard an immediate appeal from a district court’s denial of what’s often called “Parker immunity.” This so-called immunity provides that the Sherman Act generally does not cover a state’s anticompetitive conduct. The case—SmileDirectClub, LLC v. Battle—produced three separate opinions on appealability. The majority and dissent argued over the application of the the rule allowing these appeals via the collateral-order doctrine. Judge Jordan concurred to question whether denials of Parker immunity should be immediately appealable at all.
The Eleventh Circuit decided to rehear the case en banc. On Tuesday, the court unanimously overruled its cases permitting these appeals. As the Eleventh Circuit explained, Parker immunity is not a true immunity from suit. It’s instead a defense from liability. So Parker immunity might better be called the Parker defense, or simply antitrust’s state-action defense. And a district court’s rejection of this defense is effectively reviewable in an appeal from a final judgment.
The courts of appeals remain split on this issue, thought I think SmileDirectClub leaves only the Fifth Circuit holding that rejections of the Parker defense are immediately appealable collateral orders. And while the Supreme Court almost resolved this split a few years ago, the Court might not be interested in SmileDirectClub.
In a case from a few weeks ago that I just saw, the Fifth Circuit weighed in on the split over reviewing hardship determinations in immigration appeals. The court sided with the Sixth and Eleventh in treating hardship determinations as mixed questions of law and fact that the court had jurisdiction to review.
In other decisions, the Federal Circuit held that it could review a harmless-error determination by the Veterans Court. The Fifth and Eleventh Circuits addressed pendent appellate jurisdiction in immunity appeals. The Fifth Circuit also reviewed the denial of a Criminal Rule 41(g) motion for the return of seized property, as there was not yet a (confirmed) criminal prosecution in existence. Plus a decision on finality with unserved defendants and a decision in which the failure to set out a judgment in a separate document saved a seemingly tardy motion for reconsideration.
Last week saw a possible variation on the Fifth Circuit’s finality trap: the plaintiff voluntarily dismissed some of its claims before the district court dismissed the remainder. Thankfully the Fifth Circuit saw no effort to manufacture an appeal and concluded that the district court’s dismissal was appealable.
In other decisions, the Eighth Circuit reviewed a remand under CAFA’s local-controversy exception. The Federal Circuit said that the government’s notice of appeal was timely even if the Solicitor General had not yet authorized the appeal. And the D.C. Circuit dismissed an appeal from the settlement of only some class-action claims in multidistrict litigation.
Last week saw several decisions tackling difficult appellate-jurisdiction issues. Primary among them was the Seventh Circuit’s decision recognizing the messiness in its decisions reviewing extensions of the appeal deadline for excusable neglect. That court treats the excusable-neglect requirement as jurisdictional, but it reviews these excusable-neglect determinations only for an abuse of discretion.
In other decisions, the Ninth Circuit had to address its jurisdiction in post-judgment proceedings overseeing a consent decree. The First Circuit deemed a stay indefinite and thus appealable. Several courts rejected attempts to challenge the factual basis for qualified-immunity denials. In another qualified-immunity appeal, the Eighth Circuit rejected a city’s attempt to appeal a Monell issue via pendent appellate jurisdiction. And the en banc Fourth Circuit missed an opportunity to address the jurisdictionality of immigration exhaustion.
Finally, the Supreme Court denied cert in two cases of note.
Extensive post-judgment proceedings sometimes follow litigation. These proceedings might involve efforts to collect on a judgment. Or they might involve a district court’s supervision of a consent decree or remedial injunction. These post-judgment proceedings are considered a separate action for finality purposes. So litigants have a right to appeal from a final decision. That often means appeals come after the decision that marks the end of the post-judgment proceedings. But it’s not always apparent when those proceedings will end. That uncertainty has required a more nuanced approach to appellate jurisdiction.
In Flores v. Garland, the Ninth Circuit reviewed a district court decision enforcing a consent decree on the conditions of immigration detention for minors. Interestingly, the court had initially suggested that it lacked jurisdiction over the case. When denying the government’s request to stay the district court decision pending the appeal, the Ninth Circuit suggested that the decision was not an appealable injunction under 28 U.S.C. § 1292(a)(1). But when the panel reached the merits, it concluded that the district court’s decision was a final one under 28 U.S.C. § 1291. The decision had a significant impact in that it applied the consent decree to a particular group of immigrants. And an immediate appeal might be the government’s only opportunity for review of the district court’s decision.
Federal Rule of Appellate Procedure 4(a)(5) permits district courts to extend the appeal deadline upon a showing of good cause or excusable neglect. The Seventh Circuit has held that this good-cause/excusable-neglect requirement is jurisdictional. That means the court of appeals must police the good-cause/excusable-neglect requirement on its own initiative, even if the parties do not dispute it. But the Seventh Circuit has also said that review of the district court’s good-cause/excusable-neglect requirement is deferential. So the court of appeals would not closely scrutinize the district court’s decision. Instead, the Seventh Circuit would ask only whether that decision was reasonable.
The combination of a jurisdictional rule and deferential review can be awkward. As much can be seen in yesterday’s decision in Nartley v. Franciscan Health Hospital. There, the Seventh Circuit avoided deciding whether an appellant had shown excusable neglect to warrant an extension of the appeal deadline. The court could do so because the appellant had made clear her intention to appeal before the original deadline expired. But the Seventh Circuit acknowledged that its caselaw in this area was “messy.” And it would eventually have to tackle “hard questions at the outer bounds of what constitutes good cause or excusable neglect.”
Last week, the Seventh Circuit explained the circumstances under which litigants can appeal from Colorado River stays: issues need not be identical, nor must the state court proceedings resolve all of the federal action. The Eleventh Circuit held that it could review a denial of asylum even though an immigration petitioner had been granted withholding of removal. In another case, that court refused to extend pendent appellate jurisdiction over the refusal to compel arbitration under state law. Finally, cert-stage briefing is complete in a case that asks if Perlman appeals require a claim of privilege. But the petition is not scheduled for conference until next fall.
Last week, the Federal Circuit might have kicked off another game of jurisdictional hot potato with the Fifth Circuit. Those courts can’t agree on where Walker Process appeals belong, and the Federal Circuit just sent another to the Fifth. The Sixth Circuit declined to weigh in on whether district courts must stay (and not dismiss) actions after ordering arbitration. Resolution of this stay-versus-dismissal issue affects whether the litigants can appeal, and its one that the Supreme Court has repeatedly avoided deciding. The en banc Fourth Circuit limited an intervention appeal to the second denial of intervention, as the would-be intervenors did not appeal from their first denial. And the Ninth Circuit held that it could review a decision delaying the resolution of a motion to compel arbitration. Plus finality after an implicit rejection of damages, an “entirely deficient” notice of appeal, pendent appellate jurisdiction in an injunction appeal, and attorneys’ fee appeals via the collateral-order doctrine.
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