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Last week, the D.C. Circuit split over when a dismissal without prejudice became final. That court also addressed its jurisdiction to immediately review the denial of a Glomar response in a Freedom of Information Act case. The Tenth Circuit split on the finality of an exemption order in bankruptcy when the amount of the exemption had yet to be determined. The Eleventh Circuit dismissed a premature appeal from a without-prejudice denial of intervention. The Federal Circuit applied its new cumulative-finality rule. And two courts addressed their jurisdiction to review transfer orders.
Many discussions of federal appellate jurisdiction focus on when litigants can appeal before the end of district court proceedings. But traditional end-of-proceedings appeals have their own issues, including uncertainty over when the time to file them begins to run. That uncertainty can lead to parties’ losing their right to appeal. So efforts to reform appellate jurisdiction cannot look only at interlocutory appeals. The traditional end-of-proceedings appeal needs work, too.
As much can be seen in the D.C. Circuit’s decision from earlier this week in Wilcox v. Georgetown University. The district court in Wilcox dismissed the plaintiffs’ complaint without prejudice and, several months later, denied leave to amend. The D.C. Circuit looked for signs that the district court intended for the initial dismissal to be final. Concluding that the district court intended to dismiss only the complaint—not the entire action—the majority held that the decision did not become final until the district court denied leave to amend. Dissenting, Judge Randolph contended that the case was over at the initial dismissal. And of particular interest, he rejected the longstanding distinction between dismissing a complaint and dismissing an entire action.
What a week. Another court weighed in on Guerrero-Lasprilla’s effect on appeals from the denial of cancellation-of-removal. Several courts had to deal with potentially deficient notices of appeal. The Eleventh Circuit applied its new (and improved) law on the finality trap. The Third Circuit held that it lacked jurisdiction when the district court had not resolved the defendants’ cross-claims, even though those cross-claims were effectively moot. And two courts rejected defendants’ attempts to challenge the facts in a qualified-immunity appeal.
Immigration law generally strips the courts of appeals of jurisdiction to review a variety of decisions made in immigration proceedings. A savings clause adds that they retain jurisdiction to review legal and constitutional issues. Until recently, most (if not all) courts of appeals broadly read the jurisdiction-stripping provisions to bar appellate review in a variety of contexts. But in last year’s Guerrero-Lasprilla v. Barr, the Supreme Court held that the savings clause preserves jurisdiction to review mixed questions of law and fact.
Guerrero-Lasprilla has required many courts of appeals to reexamine their earlier caselaw. Last week, in Martinez-Baez v. Wilkinson, the Seventh Circuit discussed the matter at some length and seemed open to holding that Guerrero-Lasprilla applied in cancellation-of-removal context. Although the cancellation-of-removal decision is discretionary, mixed questions of law and fact can underly that decision. So a holding that Guerrero-Lasprilla applies just as much in the cancellation-of-removal context would allow more thorough review of cancellation denials.
The court ultimately did not have to address the question, as it could grant the petition for review on other grounds. But it’s an issue on which the circuits appear to have already split. We’ll have to wait and see what the Seventh Circuit ultimately holds when the issue is squarely presented.
Most appeals begin with the filing of a notice of appeal. Those notices have both content and timing requirements. Under Federal Rule of Appellate Procedure 3(c), a notice must specify three things: the appealing parties, the appealed order or judgment, and the court to which the party is appealing. As for timing, Rule 4(a)(1) requires that most civil appeals be filed within 30 days of the appealed order or judgment. Some of these requirements are quite strict. A late notice of appeal, for example, forfeits the right to appeal, though various means exist to extend or restart the appeal deadline. The failure to meet other requirements can be excused, and Rule 3(c)(4) says that “[a]n appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice.”
Last week, several courts of appeals addressed issues with a notice of appeal’s filing, timing, or content. As for filing, the Sixth Circuit held that a paper notice of appeal was sufficient, even though local rules required electronic filing. In contrast, the Seventh Circuit held that an emailed notice was not effectively filed. Timing issues arose in both the Eleventh and Third Circuits. The Eleventh Circuit held that a pro se, post-judgment motion from a represented party could delay the start of the appeal clock. And the Third Circuit held that a premature notices of appeal related forward to the district court’s final judgment. Finally, as for content, the Eleventh Circuit reminded litigants that designating the district court’s final judgment is sufficient to appeal all interlocutory decisions that merge into that judgment.
Let’s start with some alternative ways of filing a notice of appeal.
Last week, the D.C. Circuit addressed finality and appealability in the military-commission context. The Fourth Circuit reminded everyone that Rule 54(b) partial judgments need to include that rule’s magic words (and an explanation). Plus appeals involving anti-SLAPP denials and challenges to the factual basis of qualified-immunity denials. Let’s start with a new cert petition on state-action antitrust immunity.
Last week saw oral argument in the Supreme Court’s big appellate-jurisdiction case for this term. In other Supreme Court news, the parties finished cert-stage briefing in a case that could get rid of the Fifth Circuit’s finality trap. In the courts of appeals, the Fifth Circuit split on the permissible scope of a certified appeal under § 1292(b). The Sixth Circuit entertained the possibility of appealing sealing orders in criminal cases via the collateral-order doctrine. And the Tenth Circuit addressed its interlocutory jurisdiction over writs of attachment and other orders restricting the use of property.
Last week saw two decisions of note. The Ninth Circuit dismissed a fact-based qualified-immunity appeal, with Judge Fletcher dissenting to argue for the overruling of Johnson v. Jones. And the Third Circuit dismissed an appeal from the denial of a motion to dismiss the original and superseding indictments, even though a victim of the crime served on the grand jury that returned the original indictment.
Jurisdiction over appeals from the denial of qualified immunity can be complex. In Mitchell v. Forsyth, the Supreme Court held that defendants can immediately appeal these denials via the collateral-order doctrine. Ten years later, in Johnson v. Jones, the Supreme Court limited that right to appeal when the district court denies immunity at the summary-judgment stage. The interplay of these two cases is not entirely intuitive. And some of the Supreme Court’s recent decisions—particularly Scott v. Harris—have raised questions about Johnson’s meaning and continued vitality. So confusion over Johnson occasionally crops up in the courts of appeals. And with confusion come efforts to make sense of the law in this area.
Judge William A. Fletcher of the Ninth Circuit has twice tried to reconcile the Supreme Court’s caselaw in this area: about a year ago, in a concurring opinion in Tuuamalemalo v. Greene; and again last week, in a dissenting opinion in Estate of Anderson v. Marsh. He reads Johnson to permit appeals only when the defendant does not dispute the the facts in the district court. And that rule, he explains, is an odd one—most denials of qualified immunity involve disputes over the facts, so Johnson would seem to bar most appeals from these denials. Judge Fletcher has accordingly called for the Supreme Court to revisit—and overrule—Johnson.
As I said last January when talking about Judge Fletcher’s opinion in Tuuamalemalo, I disagree with his reading of Johnson. He reads Johnson to make appellate jurisdiction turn on what the defendant argues in the district court. But Johnson makes appellate jurisdiction turn on what the defendant argues in the appeal. With rare exceptions, Johnson prohibits challenges to the factual basis of a district court’s immunity denial. So on appeal, the defendant cannot dispute the factual basis for the district court’s denial of qualified immunity. But defendants are free to do so in the district court without losing their opportunity to appeal.
Johnson’s prohibition on fact-based qualified-immunity appeals is a sound rule. It exists to streamline these appeals and focus appellate courts on the core qualified-immunity issues. So Johnson should not be overruled. If anything, its rule should should be reiterated and strengthened.
Last week saw a variety of appellate-jurisdiction decisions. The Second Circuit effectively held that a denied summary-judgment motion does not preserve a purely legal issue for appeal. The Sixth Circuit weighed in on the split over jurisdiction to review hardship determinations in immigration cases. The Tenth Circuit held that a defendant could not appeal a without-prejudice denial of an anti-SLAPP motion. In another case, the Tenth Circuit explained finality in foreclosure actions. The Eleventh Circuit held that an attorney could appeal a sanction order even though the attorney was not named in the notice of appeal. The Sixth Circuit explained that the non-jurisdictional nature of the criminal appeal deadline meant the government can withdraw its objection to a late appeal. And the Seventh Circuit had to determine the finality of an ambiguous judgment.
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