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In 2018’s Hall v. Hall, the Supreme Court held that actions consolidated with other actions retain their independent character. So the resolution of one action is final and appealable, regardless of whether the other actions remain pending. Hall left some unanswered questions. Among them was what would become of pre-Hall judgments that were not immediately appealable under then-applicable circuit law. Before Hall, several circuits held that a judgment in a single action was not final until all consolidated actions were resolved. Hall seemed to make those judgments final and appealable on the day they were entered. And that sudden finality could make any post-Hall attempts to appeal untimely.
Last week saw the first appeal (to my knowledge) to involve this question. In Haynes v. World Wrestling Entertainment, Inc., the Second Circuit dismissed as untimely most of the appeals from five actions that had been consolidated in the district court. Before Hall—and relying on circuit law that Hall later abrogated—the Second Circuit had dismissed as premature appeals from two of those actions. The plaintiffs then waited until all five actions were resolved before again trying to appeal. The intervening decision in Hall meant that the appeals in four of those five actions were too late.
Notably, the Second Circuit did not definitively resolve how to deal with appeals from pre-Hall judgments. The decision is unpublished and thus non-precedential. And the plaintiffs appear to have forfeited any argument that Hall didn’t require the dismissal of the appeals. So we’ll have to wait for a definitive answer on how parties can appeal pre-Hall judgments, if they can at all.
Last week saw a trio of decisions on appeal deadlines. The Fifth Circuit appears to have held that the 30-day window for filing a notice of appeal in a civil case is not jurisdictional, which means that courts can excuse late notices. The Sixth Circuit addressed the effect of stricken post-judgment motions on the appeal deadline. And the Seventh Circuit held that a single filing could be both a motion to reopen the appeal window and a notice of appeal filed within that reopened window. In cert-stage developments, the United States supported a petition for cert on the appealability of government-contractor defenses. Plus decisions on appealing refusals to enforce consent decrees, dismissals due to Heck v. Humphrey, and municipal liability.
Last week saw a divided Third Circuit address when a district court decision is, practically speaking, an appealable injunction. The Third Circuit also issued two decisions holding that the scope of a qualified-immunity appeal includes prior denials of immunity. The Ninth Circuit explained why a request for attorneys’ fees does not stop the appeal clock (and cannot be re-characterized as a Rule 59 motion). And the Eleventh Circuit dismissed a remand appeal involving an erroneous certification of federal employment. Plus appeals from dismissals without prejudice, appealing a TRO, disputed facts in a qualified-immunity appeal, pendent appellate jurisdiction over a Monell claim, and direct appeals from a magistrate judge’s decision.
Last week saw a new split on whether the government can appeal the denial of its motion to dismiss a qui tam suit. The Eleventh Circuit held that a defendant could not appeal the denial of a renewed challenge to the plaintiff’s proceeding anonymously. Sitting en banc, that court also addressed its caselaw on the scope of certain immigration appeals. The Sixth Circuit held that an unspecified award of punitive damages precludes finality. The Ninth Circuit heard an appeal from a garnishment order entered in ongoing post-judgment proceedings. Plus another decision on the scope of immigration appeals, Rule 3(c)’s order-designation requirement for notices of appeal, appealing dismissals without prejudice, appealing administrative remands, an improper qualified-immunity appeal, and the effect on the appeal clock of non-substantive amendments to a judgment.
Last week saw the First Circuit join the list of courts with internally inconsistent law on when subsequent events save a premature notice of appeal. An Eleventh Circuit decision produced three separate opinions on the collateral-order doctrine’s application to appeals from the denial of state-action immunity. The D.C. Circuit held that overlap between resolved and unresolved claims made a Rule 54(b) appeal improper. Two courts addressed appeals from without-prejudice denials of intervention. And the Ninth Circuit heard an appeal from an order requiring a criminal defendant to repatriate millions of dollars for potential forfeiture, treating the order as an injunction. Plus a split decision from the Fifth Circuit on its exclusive jurisdiction to review SEC proceedings, which includes really interesting discussions about the adequacy of final-judgment appeals.
In Donahue v. Federal National Mortgage Association, the First Circuit held that the subsequent dismissal of a remaining defendant did not save a premature notice of appeal. The plaintiff in Donahue filed her notice after the district court had dismissed her claims against one of two defendants. So the notice of appeal was premature and technically ineffective. The plaintiff then voluntarily dismissed her claims against the other defendant. But she did not file a new notice of appeal. With no proper notice of appeal, the First Circuit concluded that it lacked jurisdiction.
The outcome would have been different in most courts. Indeed, until yesterday’s decision, I would have thought that the outcome would have been different in Donahue. The courts of appeals have split on when exactly subsequent events save a premature notices of appeal. And several circuits have internally inconsistent decisions. We can now add the First Circuit to that list. In at least two prior decisions, the First Circuit has held that the resolution of all outstanding claims saved a notice of appeal filed after some (but not all) of the claims had been resolved. I don’t see how Donahue can be reconciled with those decisions.
The cumulative-finality mess thus continues to build. Rehearing in Donahue might clean things up in the First Circuit. But the state of affairs across the circuits has gotten pretty bad. And the way most courts approach cumulative finality can deprive litigants of any chance at appellate review due to a relatively minor procedural mistake. It’s time for the Supreme Court or Rules Committee to fix things.
Update, December 8, 2020: The Eleventh Circuit has ordered rehearing en banc in this case. See Rehearing En Banc Granted in State-Action Antitrust Appeal for more.
In SmileDirectClub, LLC v. Battle, the Eleventh Circuit heard an interlocutory appeal from the denial of state-action (or “Parker”) immunity. A circuit split exists on whether state-action appeals are available under the collateral-order doctrine. The Eleventh Circuit has held that they are.
The decision nevertheless produced three opinions with varying views on appealability. The majority opinion and Judge Tjoflat’s dissent debated the application of the rule for state-action appeals—specifically, whether the district court in SmileDirectClub had conclusively denied immunity. Concurring, Judge Jordan suggested that the Eleventh Circuit reexamine its law in this area. And he’s not the only one potentially interested in the issue. The Supreme Court was set to resolve this circuit split a few years ago in Salt River Project v. Tesla Energy Operations. But the case settled before argument. SmileDirectClub ultimately rejected the defendant’s request for state-action immunity, so the appellate-jurisdiction issue is not dispositive. Still, we might not have seen the last word on jurisdiction in this appeal.
Lots of interesting appellate-jurisdiction decisions last week. The Third Circuit allowed what looked to be a pure interlocutory appeal of the Bivens question. The Ninth Circuit held that the government could not immediately appeal the denial of its motion to dismiss a qui tam suit, at least when the government had not intervened. The Tenth Circuit addressed its jurisdiction—normal and pendent—in an appeal from an administrative remand. Three other courts addressed pendent appellate jurisdiction—two in the context of municipal appeals alongside qualified-immunity appeals and a third in the context of unspecified attorneys’ fees. And the Sixth Circuit held that it could review whether a district court should have assumed more plaintiff-favorable facts in denying qualified immunity. Plus mandamus for a transfer decision and jurisdiction to review magistrate judge decisions.
The Bivens question asks whether an implied constitutional remedy exists for a federal official’s unconstitutional conduct. The Supreme Court has held that this question is within the scope of a qualified-immunity appeal. That is, in an interlocutory appeal from the denial of qualified immunity, the court of appeals can address whether a Bivens remedy exists. But the Bivens question standing alone has not been deemed immediately appealable. It must tag along with an appeal from the denial of qualified immunity.
What if there are no grounds for a qualified-immunity appeal? The Third Circuit seemed to overlook this issue in last week’s Mack v. Yost. In what looked like a qualified-immunity appeal, the Third Circuit held that no Bivens remedy existed for First Amendment retaliation that occurred in a federal prison. But a few years ago, in a prior appeal in the same case, the Third Circuit held that the plaintiff had pleaded a violation of clearly established law and rejected the defendants’ request for immunity. Nothing seems to have changed since that prior decision that would have affected immunity. So it looks like there were no new grounds for seeking immunity. The Third Circuit nevertheless treated the case as a normal qualified-immunity appeal, concluded that no Bivens remedy existed, and reversed. Mack thus looks like a pure interlocutory Bivens appeal.
Last week saw a slew of Ninth Circuit decisions of note. The court addressed appeals after some claims have been dismissed without prejudice, Perlman appeals, and cumulative finality. The Seventh Circuit also had its own cumulative-finality decision when a plaintiff appealed rather than amend its complaint. Several courts addressed the facts they should take as true for purposes of a qualified-immunity appeal. And the Eleventh Circuit declined to extend pendent appellate jurisdiction over a venue issue in an arbitration appeal.
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