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Last week saw several courts hold that they lacked jurisdiction over a variety of appeals. Indeed, I found only one case of note in which the court actually had appellate jurisdiction. Still, there are some interesting decisions, including an illustration of the odd “colorable” requirement for double jeopardy appeals. Let’s start with an appeal from two post-judgment orders, one timely and one not.
The holiday week produced two decisions of note. In one, the Eleventh Circuit held that a judgment on the merits of a Fair Labor Standards Act claim is final despite any outstanding issues of attorneys’ fees. And the Third Circuit applied its rule that litigants can immediately appeal Rhines stays in habeas cases.
Last week, a Sixth Circuit concurrence offered a new approach to finality for bankruptcy appeals. The First Circuit added denials of special motions under Maine’s anti-SLAPP law to the list of appealable collateral orders. The Eleventh Circuit told litigants that they have to accept the consequences of waiving the right to amend so that they could appeal. Several courts rejected fact-based qualified-immunity appeals, with the Fifth Circuit supplying an especially helpful primer on the scope of those appeals. And the Fourth Circuit refused to address other defenses alongside a sovereign-immunity appeal.
Appellate jurisdiction in bankruptcy cases can get complicated. The rules of finality are different in bankruptcy. And bankruptcy involves an extra tier of intermediate appellate review: litigants initially appeal bankruptcy court decisions to either a district court or a Bankruptcy Appellate Panel. Litigants can then seek further review in the courts of appeals.
As a general rule, the decision of the first intermediate appellate court (district court or Bankruptcy Appellate Panel) must itself be final for the court of appeals to have jurisdiction. In In re Wohleber, the Sixth Circuit applied this general rule to hold that a Bankruptcy Appellate Panel decision remanding an action for further proceedings was not final or appealable. Review in the court of appeals would come only after those further proceedings were completed.
Judge Batchelder concurred to offer a different rule for bankruptcy appeals. As Judge Batchelder saw things, only one level of decision—the bankruptcy court’s judgment or the intermediate appellate judgment—needed to be final for the court of appeals to review it.
There’s little to report from last week. The First Circuit granted rehearing in a decision that cut back on the relation forward of notices of appeal. But the new decision avoided the jurisdictional issue because the merits were straightforward. And a divided Sixth Circuit affirmed the denial of qualified immunity, with the majority and dissent disagreeing over what facts must be taken as true for purposes of the appeal.
Last week, the Supreme Court heard oral argument on the finality of denied requests to reopen benefits decisions for railroad workers. The Tenth Circuit joined every other circuit in holding that it could not review a remand order when post-removal joinder destroyed diversity jurisdiction. The Eighth Circuit allowed an appellant to cure a finality problem—during oral argument—by converting a voluntary dismissal to one with prejudice. Two courts dismissed qualified-immunity appeals in which the defendants challenged the factual basis for the immunity denial. The Seventh Circuit treated a petition for permission to appeal as a notice of appeal. And the Supreme Court denied cert in a case that raised some interesting questions about mandamus.
After several quiet weeks in the world of federal appellate jurisdiction, things picked up. The First Circuit became the fourth court to recently endorse a limited scope of remand appeals under § 1447(d), although the Supreme Court might have more to say on this issue soon. The Sixth Circuit created a split on the jurisdictionality of bankruptcy’s appeal deadline, holding that the part-statute, part-rule deadline is a non-jurisdictional claim-processing rule. The Fifth Circuit will rehear en banc its decision from this summer on the courts of appeals’ exclusive jurisdiction to review SEC proceedings. The Fifth Circuit also applied its unique approach to appeals in § 1782 proceedings, though it used some seemingly non-categorical collateral-order reasoning. And the Sixth Circuit said that a late notice of appeal should be treated as a motion to extend the appeal deadline. Plus two decisions on cumulative finality and another on pendent appellate jurisdiction in a qualified-immunity appeal.
In In re Tennial, the Sixth Circuit held that bankruptcy’s 14-day deadline for filing an appeal is not jurisdictional. In doing so, the court split with every other court of appeals to address this issue. The Supreme Court has drawn a fairly clear line between deadlines found in statutes—which are jurisdictional—and those found only in rules of procedure—which aren’t. Bankruptcy’s appeal deadline is a bit of a hybrid. It comes partially from a statute—28 U.S.C. § 158(c)(2)—and partially from a rule—Federal Rule of Bankruptcy Procedure 8002. The statutory part has led other courts to conclude that the 14-day deadline is jurisdictional. But the Sixth Circuit explained that the statute merely says that appeals must be filed within a time specified by the Bankruptcy Rules. The actual 14-day deadline comes only from those rules. The court accordingly concluded that the bankruptcy appeal deadline is a non-jurisdictional claim-processing rule.
Last week saw two decisions of note. The Ninth Circuit suggested that plaintiffs can reinstate claims that they had voluntarily dismissed in a failed attempt to manufacture an appeal. And the Tenth Circuit held that criminal defendants cannot immediately appeal from orders deeming them competent to stand trial.
After a couple slow weeks in the world of federal appellate jurisdiction, things have picked up. A new cert petition asks the Supreme Court to address appeals after appellants voluntarily dismiss some of their claims with prejudice. The D.C. Circuit divided over when—if ever—a conditional dismissal becomes final and appealable without a subsequent district court order. Another D.C. Circuit decision rejected both parties’ arguments that the partial dismissal of a habeas petition was final and appealable. Plus decisions on injunction appeals and contempt appeals.
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