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Under the merger doctrine, all of a district court’s interlocutory decisions merge into the final judgment. That means all of those decisions can be reviewed in an appeal from a final judgment. But there are exceptions to the merger rule, such as when a party invites a dismissal by ceasing its prosecution of a case. And as the First Circuit explained in this week’s Commonwealth School, Inc. v. Commonwealth Academy Holdings LLC, there are exceptions to those exceptions, too.
The district court in Commonwealth School dismissed the plaintiff’s action for failure to prosecute. The defendant then wanted to appeal one of the district court’s interlocutory rulings. The just-mentioned exception to the merger doctrine—for failure-to-prosecute dismissals—would normally bar that appeal. But the First Circuit concluded that the situation warranted an exception to that exception. There was nothing the defendant could have done to otherwise secure an appeal. Nor was there any risk of manufactured or piecemeal appeals. So the interlocutory decision merged into the final judgment, and the court of appeals had jurisdiction to review it.
Last week produced a few decisions of note. The Sixth Circuit said that you don’t need a certificate of appealability to appeal a decision on habeas bail. The Eleventh Circuit refused to consider a district court’s post-appeal statements on the sentence it would have imposed had there been no error. Two courts addressed the order-designation requirement for notices of appeal. And there were a few cert-stage developments in cases I’ve been following.
Let’s start, however, with a new cert petition that gives the Supreme Court a chance to disarm the finality trap.
The last year or so has seen some significant judicial activity when it comes to the finality trap. The trap can arise after a party voluntarily dismisses some of its claims without prejudice and then tries to appeal. This scenario makes some courts of appeals suspicious, as parties sometimes use these voluntary dismissals to manufacture an interlocutory appeal. The courts have developed a variety of ways to stop parties from doing so. And some of those methods create a trap. The court of appeals deems the dismissal non-final and thus non-appealable. But the court also leaves no avenue for the appealing party to make the underlying decision final. The party is then left in limbo. The case is over and unchangeable in the district court. But it’s not final for purposes of appeal.
A new cert petition challenges the Ninth Circuit’s variation on the finality trap. More generally, the petition gives the Supreme Court a chance to disarm the trap once and for all. The case is Starline Tours of Hollywood, Inc. v. EHM Productions, Inc. The response is due May 7, 2021.
Courts of appeals sometimes review jury verdicts de novo by characterizing an issue as a “legal” one (as opposed to a “factual” one). As much can be seen in this week’s Supreme Court decision in Google LLC v. Oracle America, Inc., in which the Court said that “the ultimate question of whether [the facts found by the jury] showed a ‘fair use’ is a legal question for judges to decide de novo.”
In a new article—Appellate Courts and Civil Juries—Adam Steinman argues that Federal Rule of Civil Procedure 50’s reasonable-jury standard governs appellate review of civil-jury verdicts, regardless of whether a particular issue would be treated as “legal” in other contexts. The distinction between factual and legal issues can be relevant elsewhere, such as when determining whether the Seventh Amendment’s jury-trial guarantee applies or when reviewing a district court judge’s decision on a particular issue. But that characterization, Steinman contends, should not affect the standard of review for civil-jury verdicts. When it comes to reviewing those verdicts, “Rule 50 requires deference to the jury’s conclusion on a particular issue unless that conclusion is unreasonable.” So an appellate court can refine the substantive law or police the burden of production, which preserves the court’s law-development function. But that court must “earn its ability to second-guess the jury by providing the sort of legal clarification that would benefit courts and litigants going forward.”
The article came out a few weeks ago in the Wisconsin Law Review. The abstract is below, and the article is available on SSRN. It’s well worth a read.
Last week, the Tenth Circuit tackled a bunch of appellate-jurisdiction issues before reversing the refiling restrictions that a district court had imposed on a plaintiff’s attorney. The Fifth Circuit rejected a defendant’s attempt to challenge the factual basis for a qualified-immunity denial. The Seventh Circuit once again explained district courts’ discretion to extend appeal deadlines due to excusable neglect or good cause. The Eleventh Circuit held that it could not review a decision from the Board of Immigration Appeals that remanded a case to an immigration judge for further proceedings. And the Third Circuit said that attaching an order to a notice of appeal counts as designating that order for appeal.
In Frank v. Crawley Petroleum Corp., the Tenth Circuit addressed just about every appellate-jurisdiction issue that could arise when an attorney appeals to challenge conditions on refiling. The district court in Frank had granted the plaintiff’s voluntary dismissal of a purported class action. But in doing so, the court restricted the plaintiff’s attorney’s ability to refile a similar class action. In the attorney’s appeal, the Tenth Circuit addressed the adequacy of the notice of appeal, the proper party for the appeal, appellate standing, and finality. The court ultimately concluded that none of these issues stood in the way of the court’s addressing the merits. So the attorney could appeal to challenge the restrictions on refiling.
Last week saw a rare pushback against fact-based qualified-immunity appeals. Those appeals are both frivolous and common. Sanctions are rare. But the Sixth Circuit ordered some defendants to show cause as to why they should not be sanctioned for challenging the factual basis for an immunity denial. In other decisions, the Fifth Circuit applied Federal Rule of Appellate Procedure 4(a)(4) to appeals under the collateral-order doctrine. The Ninth Circuit reversed a remand order because the district court never allowed the defendant to establish the amount in controversy. And the Ninth Circuit noted that it will now hear immediate appeals from denials of Nevada’s anti-SLAPP motions. There are also several recent cert-stage developments of note involving preserving issues through denied summary-judgment motions, appealing denials of the state-action-antitrust defense, and the application of Hall v. Hall to pre-Hall judgments. Plus administrative remands, FOIA appeals, and the finality of dismissals without prejudice.
28 U.S.C. § 1447(d) generally bars review of district court orders remanding a case to state court. But only certain kinds of remands fall under § 1447(d)’s bar. Last week, in Academy of Country Music v. Continental Casualty Co., the Ninth Circuit held that § 1447(d) did not apply when the district court had not given the defendant a chance to establish the amount in controversy for purposes of diversity jurisdiction. The notice of removal itself did not need to prove that amount. And the district court needed to give the defendant an opportunity to show it. So the remand—though ostensibly for a lack of subject-matter jurisdiction—was not a “colorable” jurisdictional remand. The Ninth Circuit could review it despite § 1447(d).
Civil litigants normally have 30 days after the district court’s final judgment to file their notice of appeal. But several kinds of motions—like those for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), to alter or amend the judgment under Rule 59, or for relief under Rule 60—can reset that 30-day deadline. Federal Rule of Appellate Procedure 4(a)(4) says that these motions stop the appeal clock, which restarts once the district court disposes of the last motion. To reset that clock, however, most of these motions must be filed within 28 days of the judgment.
The motions listed in Rule 4(a)(4) are largely, if not entirely, post-judgment motions. But in Frew v. Young, the Fifth Circuit applied Rule 4(a)(4) to an appeal under the collateral-order doctrine. The district court denied an award of attorneys’ fees in its supervision of a consent decree. The plaintiffs then moved for reconsideration 30 days later—within the time to file a notice of appeal, but 2 days later than allowed for any of the motions listed in Rule 4(a)(4). The Fifth Circuit said that this was too late to reset the appeal deadline. Whether regarded as a motion under Rule 54(d), 59(e), or 60, the plaintiffs had at most 28 days to file their motion. With no timely motion, the notice of appeal—filed shortly after the district court denied reconsideration—was untimely as to the initial fee decision.
I’m not too sure about Frew. Again, the motions in Rule 4(a)(4) are post-judgment motions. So the rules for those motions—including the time limits on their filing—would not seem to apply to motions for reconsideration filed after an interlocutory decision, even one deemed “final” under the collateral-order doctrine. That means no rule expressly governs how these other motions for reconsideration affect the interlocutory-appeal deadline. What’s left is the longstanding practice of saying that a motion for reconsideration that is filed within the time to appeal resets the deadline for an appeal, interlocutory or otherwise. Granted, that means you get two extra days to seek reconsideration of interlocutory decisions. But the lack of any rules expressly governing these sorts of motions and appeals should weigh in favor of some leniency.
Fact-based qualified-immunity appeals—that is, appeals from the denial of immunity in which a defendant challenges the factual basis for the immunity denial—are a problem in the courts of appeals. With rare and narrow exceptions, the courts of appeals lack jurisdiction over these appeals. Defendants nevertheless take these appeals with some frequency, adding wholly unnecessary complexity, expense, and delay to civil-rights litigation. The courts of appeals have not done enough to deter these appeals. And I argued in a recent essay that courts should start sanctioning defendants who take them. (You can read a draft of the essay at SSRN; comments are welcome.) Perhaps that would finally deter this abuse of qualified-immunity appeals.
Sanctions have been rare. But in last week’s Howlett v. City of Warren, the Sixth Circuit indicated that they might be appropriate. When the defendants in Howlett appealed from an order that (among other things) denied qualified immunity, a question arose as to the Sixth Circuit’s jurisdiction. In postponing a decision on a motion to dismiss the appeal, the court warned the defendants of the limits on its interlocutory jurisdiction. The defendants nevertheless appealed to challenge the factual basis for district court’s immunity denial. The Sixth Circuit accordingly dismissed the appeal. The court also ordered the defendants to show cause as to why the court should not sanction them.
Defendants shouldn’t need a reminder of this limit on the scope of qualified-immunity appeals. After all, the Supreme Court case establishing this limit is over 25 years old. Hopefully Howlett will dispel any lingering uncertainty and deter some future abuses of qualified-immunity appeals.
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