The Fifth Circuit now appears to permit defendants invoking qualified immunity to immediately appeal orders regarding the scope of discovery.
June 7, 2024
In Asante-Chioke v. Dowdle, the Fifth Circuit reviewed an order refusing to limit the scope of discovery to qualified-immunity issues. The court said that it could immediately review this sort of order via the collateral-order doctrine. But I have my doubts. The Fifth Circuit relied on a line of cases holding that defendants can appeal decisions to defer ruling on qualified immunity until after discovery. But there was no deferral in Asante-Chioke. And the Fifth Circuit’s decision opens the door to future appeals challenging the scope of discovery in civil-rights actions.
Two Supreme Court decisions implicating appellate jurisdiction, another rejection of pure Bivens appeals, some rejected discretionary appeals, and much more.
June 5, 2024
Last month saw the Supreme Court wrap up its appellate-jurisdiction docket for the term. The Court held that district courts must stay actions after ordering arbitration so long as a party requests a stay. The Court also held that another deadline—the time to appeal MSPB decisions—is not jurisdictional.
The courts of appeals also issued several decisions of note. The Tenth Circuit rejected the government’s efforts to obtain pure Bivens appeals. The Federal Circuit held that a denial of PREP Act immunity was not appealable via the collateral-order doctrine. And the Third Circuit explained that Rule 23(f) appeals should involve novel and unresolved questions concerning class certification—not novel and unresolved questions on the merits. Plus much more, including multiple decisions on the meaning of claims, counts, theories, and orders when it comes to discretionary appeals.
The Supreme Court held that another deadline was not jurisdictional—this time, the 60-day deadline for appealing from MSPB decisions.
May 22, 2024
In Harrow v. Department of Defense, the Supreme Court held that the 60-day deadline for appealing decisions from the Merit System Protection Board is not jurisdictional. It’s a solid decision. It also raises questions about how Federal Rule of Appellate Procedure 26(b) applies to the equitable tolling of administrative appeals.
The Supreme Court held that a district court cannot dismiss an action instead of issuing a stay when the district court orders arbitration a party requests a stay.
May 21, 2024
In Smith v. Spizzirri, the Supreme Court held that district courts must stay—not dismiss—an action if the district court orders arbitration and a party requests a stay. The decision resolves a long-standing split over the ability to dismiss actions after ordering arbitration.
The decision also has implications for appellate jurisdiction. As I’ve explained on this site before, parties can appeal from an order that directs arbitration and dismisses an action. But if the district court stays the action, there is normally no immediate appeal from the decision ordering arbitration. With stays now required at a party’s request, we will likely see fewer appeals from decisions ordering arbitration.
One thing Smith didn’t expressly address, however, is what to do if no one asks for a stay.
A Seventh Circuit concurrence explained why litigants should not be able to take collateral-order appeals from orders orders distributing some of the assets in a receivership.
May 11, 2024
In SEC v. EquityBuild, Inc., the Seventh Circuit heard an appeal from order approving the distribution of some—but not all—of the assets in a receivership proceeding. The order was appealable under the Seventh Circuit’s caselaw, which deemed these orders appealable via the collateral-order doctrine. Judge Easterbrook concurred to express doubt in this caselaw and suggest that the issue—one on which the courts have split—should be resolved by the Supreme Court.
A divided Tenth Circuit held that the Bivens question is not independently appealable via the collateral-order doctrine; it must be part of a qualified-immunity appeal.
May 9, 2024
The federal government appears to be on a mission to get immediate appeals for orders recognizing a Bivens remedy. So far, those efforts have been unsuccessful. Two courts of appeals—the Third and the Sixth Circuits—have rejected these pure Bivens appeals.
In Mohamed v. Jones, the Tenth Circuit became the third. Like the Third and Sixth Circuits before it, the Tenth Circuit recognized that the Bivens question does not exist to shield federal officials from the burdens of litigation. That’s qualified immunity’s job. The separation-of-powers concerns that Bivens implicates also do not warrant an immediate appeal. And government defendants can easily secure review of the Bivens issue via an appeal from the denial of qualified immunity.
Mohamed is not the last we’ll see of this issue. There are at least two more pending cases in which the federal government is trying to appeal the Bivens question. And the Tenth Circuit’s decision came with a dissent. I will not be surprised when the government seeks rehearing en banc or, more likely, cert.
Notices of appeal, manufactured finality, unresolved claims, qualified-immunity appeals, and much, much more.
May 3, 2024
April was a very busy month, with dozens of decisions and developments worth mentioning. Let’s get started.
Has a district court issued a final decision if it overlooked one of the parties’ claims? Courts seem to disagree. But the best answer might be that these oversights implicate the adequacy of the judgment, not finality.
May 2, 2024
The general, well-known, and riddled-with-exceptions rule is that a decision is not final until the district court has resolved all of the parties’ claims. So what should courts do when the district court overlooks a claim or theory of relief that one of the parties had pleaded? A handful of recent decisions have raised this question. And the answer is not always the same.
The Second Circuit split over whether it had jurisdiction after a stipulated judgment, particularly whether a preliminary-injunction decision effectively resolved an action.
May 1, 2024
In New York State Telecommunications Association v. James, the Second Circuit split over an attempt at manufacturing finality. The district court had granted a preliminary injunction after concluding that federal law preempted a New York state law. The parties then stipulated to entry of a final judgment. A majority of the Second Circuit determined that this preemption decision effectively resolved the action, meaning the state could appeal. Judge Sullivan disagreed, emphasizing that the preemption decision was necessarily preliminary.
The decision nicely illustrates something I talk about in a forthcoming article: the different varieties of manufactured finality. The majority thought that the parties had tried to facilitate an appeal after a district court decision that—though technically interlocutory—effectively determined who won. (I call this manufactured finality after a “dispositive interlocutory decision.”) The dissent thought that the preliminary-injunction decision, though bad for the state, did not resolve the action. (I call this manufactured finality after an “adverse interlocutory decision.”) So in the dissent’s view, the parties tried to undermine the normal rules of appellate jurisdiction.
The Tenth Circuit held that anti-SLAPP appeals are too factual in nature to be immediately appealable via the collateral-order doctrine.
April 26, 2024
In Coomer v. Make Your Life Epic LLC, the Tenth Circuit held that denials of anti-SLAPP motions under Colorado law are not immediately appealable via the collateral-order doctrine.
The court drew an interesting line between appeals involving primarily legal issues—which can warrant immediate appeal—and those involving primarily factual issues—which don’t. The court explained that fact-heavy appeals are difficult to separate from an action’s underlying merits. Those appeals also come with a risk of duplicative, piecemeal appellate review.
Anti-SLAPP appeals fell on the fact side of the line, as they require appellate courts to assess the potential merits of a plaintiff’s claim.