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The appellate-jurisdiction provisions of immigration law can get complicated. The law generally strips the courts of appeals of jurisdiction to review a variety of issues. But a savings clause adds that they retain jurisdiction to review legal and constitutional issues. And in last year’s Guerrero-Lasprilla v. Barr, the Supreme Court held that appellate jurisdiction exists to review mixed questions—i.e., application of the law to the facts.
Before Guerrero-Lasprilla, most (if not all) courts of appeals held that they lacked jurisdiction to review whether an immigration petitioner had shown the “exceptional and extremely unusual hardship” necessary for cancellation of removal. Since Guerrero-Lasprilla, the courts have split on this issue. Last week, the Sixth Circuit became the second court to hold that it has jurisdiction to review hardship determinations. In doing so, the Sixth Circuit joined the Eleventh Circuit but split with the Third and Tenth.
As a general rule, parties cannot appeal an order denying summary judgment after a case proceeds to a full trial. In such a case, the trial record supersedes the summary-judgment record. So any questions about the sufficiency of the evidence at summary judgment become more or less moot; what matters is the sufficiency of the trial evidence. And litigants must raise challenges to the sufficiency of the trial evidence via motions under Federal Rule of Civil Procedure 50. The issue might be better characterized as whether summary-judgment denials preserve issues for appeal; the appellant is challenging the judgment for reasons specified in the summary-judgment motion. The point is that a denied summary-judgment motion does not preserve challenges to the sufficiency of the evidence at trial.
A potential exception to this rule might exist when a summary-judgment motion raises a purely legal issue. That is, the denied summary-judgment motion might be enough to preserve that purely legal issue. In last week’s Omega SA v. 375 Canal, LLC, a panel of the Second Circuit split on this matter. The majority held that a denied motion for summary judgment was not sufficient to preserve a challenge to the applicable legal standard. A partial dissent from Judge Lohier argued to the contrary.
The issue was ultimately irrelevant; the appellant had preserved the same issue by objecting to the jury instructions. But the holding could be important for future litigants who don’t otherwise preserve for appeal issues that they raised in a denied summary-judgment motion.
I took a little break from Final Decisions over the holidays. And that means an extra-large roundup to start the new year—the last two weeks of 2020 produced a plethora of interesting appellate-jurisdiction decisions.
The First Circuit addressed another attempted appeal from the denial of a temporary restraining order in a COVID-related case. In a challenge to regulations implementing the Paycheck Protection Program, the Eleventh Circuit tackled certified appeals and core/non-core proceedings in bankruptcy. Two courts of appeals addressed attempted appeals involving arbitration; the Ninth Circuit held that Microsoft Corp. v. Baker prohibited manufactured finality in the arbitration context, and the Sixth Circuit said that defendants must actually ask for arbitration before they can invoke the special appeal rules in the Federal Arbitration Act. Two courts of appeals held that they lacked jurisdiction to review magistrate judge decisions that were never reviewed by the district court. The D.C. Circuit held that the expiration of the time to amend a complaint did not render a dismissal final. The Eighth Circuit said plaintiffs couldn’t appeal prior district court decisions after a dismissal for failure to prosecute. And the Tenth Circuit extended pendent appellate jurisdiction over part of a municipal appeal.
In 2017’s Microsoft Corp. v. Baker, the Supreme Court held that plaintiffs wanting to bring a class action cannot voluntarily dismiss their individual claims with prejudice and then appeal the denial of class certification. In doing so, the Supreme Court abrogated a line of Ninth Circuit decisions that allowed this voluntary-dismissal tactic. But class actions were not the only context in which the Ninth Circuit had sanctioned these appeals after voluntary dismissals. In 2010’s Omstead v. Dell, Inc., the Ninth Circuit held that plaintiffs could appeal decisions ordering arbitration by voluntarily dismissing their claims with prejudice.
In last week’s Langere v. Verizon Wireless Services, LLC, the Ninth Circuit held that Baker abrogated Omstead. Just like in the class-action context, the the voluntary-dismissal tactic in the arbitration context allowed plaintiffs to circumvent the rules governing appellate jurisdiction, invited protracted litigation and piecemeal appeals, and benefited only plaintiffs. So plaintiffs in the Ninth Circuit can no longer manufacture an appeal from an arbitration order by voluntarily dismissing their claims with prejudice.
Appellate jurisdiction in bankruptcy cases can be tricky. The rules governing finality are different. And there’s an an extra tier of intermediate appellate review, with cases first going to a district court or Bankruptcy Appellate Panel before they can reach the courts of appeals. Litigants can skip this extra tier of review and proceed straight to the courts of appeals if the bankruptcy court certifies a decision for a direct appeal. But only certain kinds of decisions—those entered in “core” bankruptcy proceedings—can be certified.
The Eleventh Circuit recently had to tackle these matters in In re Gateway Radiology Consultants, P.A. The case involved a debtor’s attempts to secure a loan under the Paycheck Protection Program. In a non-core proceeding, the bankruptcy court enjoined the enforcement of regulations that prohibited debtors from obtaining loans under the Program. And in a core proceeding, the court authorized the debtor to incur the additional debt of a loan under the Program. The bankruptcy court then certified both of these decisions for a direct appeal under 28 U.S.C. § 158(d)(2).
The Eleventh Circuit held that certification of both orders was appropriate. Granted, only one—the order authorizing additional debt—was entered in a core proceeding and thus normally eligible for certification under § 158(d)(2). But that decision depended entirely on the injunction entered in the non-core proceeding. And that made the resolution of the non-core proceeding sufficiently final for a certified appeal.
This is the last weekly roundup of 2020. (I’ll be back after the new year with a post covering the two holiday weeks.) And it involves some pretty technical cases.
Two decisions—one from the Fourth Circuit and another from the Sixth—dealt with the jurisdictional impact of procedural rules. The Fourth Circuit held that Federal Rule of Appellate Procedure 4(a)(4)(B)(ii) is jurisdictional. So the court could not excuse the failure to file a second or amended notice of appeal challenging the district court’s decision on a post-judgment motion. The Sixth Circuit said that the filing deadlines for post-judgment motions are not jurisdictional. So the time to appeal can run from the resolution of a late-filed post-judgment motion. And the Fifth Circuit held that a habeas petitioner could not immediately appeal the refusal to lift a protective order. The decision displayed some case-specific reasoning that you occasionally see in collateral-order doctrine cases.
Federal Rule of Appellate Procedure 4(a)(4) governs the effect of certain post-judgment motions on notices of appeal. Rule 4(a)(4)(A) provides that a variety of those motions can delay the start of the normal appeal clock. Rule 4(a)(4)(B)(i) says that a notice of appeal filed before the district court resolves any of those motions relates forward to the district court’s subsequent decision. And Rule 4(a)(4)(B)(ii) adds that when parties file a notice of appeal before the district court resolves a post-judgment motion, they must file a second or amended notice to challenge a the subsequent decision on that motion.
In Bracey v. Lancaster Foods LLC, the Fourth Circuit held that this last requirement—of a second or amended notice after the resolution of a post-judgment motion—is jurisdictional. The plaintiff in that case initially made only one argument in opposition to the defendant’s motion to compel arbitration. When the district court rejected that argument, the plaintiff sought reconsideration and added two new arguments. But he filed only one notice of appeal, and he filed it before the district court denied his motion for reconsideration. The Fourth Circuit deemed the failure to file a second or amended notice a jurisdictional one. It accordingly lacked jurisdiction to address the plaintiff’s second and third arguments against arbitration.
Last week, the Seventh Circuit addressed finality and consolidated complaints in the shaky-cheese multidistrict litigation. The en banc Eleventh Circuit elected to re-examine its law on appealing the state-action antitrust defense. In cert-stage developments, the Supreme Court received a second petition on the scope of § 1447(d) remand appeals and a new petition on the use of mandamus in criminal cases. And the Ninth Circuit issued two opinions of note. One involved jurisdiction in immigration appeals. The other rejected an attempt to challenge the factual basis of a qualified-immunity denial.
Actions consolidated in multidistrict litigation (or MDL) normally retain their individual character for finality purposes. So the resolution of a single action in an MDL is final and appealable regardless of whether other actions remain pending.
Things can get complicated, however, if the parties file consolidated pleadings after the actions are joined in the MDL. Those consolidated pleadings can divide up single actions into separate ones. What does that do to MDL appeals? Are the individual actions still individual for finality purposes, such that the resolution of all claims in an original complaint is appealable even if those claims are now spread out across multiple consolidated complaints? Or are actions now measured by the consolidated complaints, such that resolution of all claims in a consolidated complaint is final?
In Bell v. Publix Super Markets, Inc., the Seventh Circuit held that the time to appeal runs from the resolution of all claims in a consolidated complaint so long as that complaint superseded the individual ones. The case involved five consolidated complaints against sellers and manufacturers of powdered Parmesan cheese. The district court dismissed all of the claims in two of the consolidated complaints. The plaintiffs then waited nearly a year—when the district court entered a Rule 54(b) partial judgment on similar claims in the other complaints—to appeal. That was too late, the Seventh Circuit concluded. Those consolidated complaints superseded the original collection of complaints. So the resolution of all claims in a consolidated complaint marked the end of an action. The Seventh Circuit also urged district courts and plaintiffs to be as clear as possible on whether consolidated complaints supersede the originals; confusion over this issue can lead to parties forfeiting their right to appeal.
Last summer, in SmileDirectClub, LLC v. Battle, the Eleventh Circuit affirmed an interlocutory denial of a state-action antitrust/Parker defense. The decision produced three different opinions on appellate jurisdiction. The majority applied long-standing Eleventh Circuit law holding that these denials are immediately appealable via the collateral-order doctrine. Dissenting, Judge Tjoflat argued that the order in SmileDirectClub did not conclusively decide the Parker issue, such that the collateral-order doctrine did not apply.…
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