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As a general rule, temporary restraining orders (often initialized as TROs) are not immediately appealable. Granted, 28 U.S.C. § 1292(a)(1) permits appeals from orders concerning injunctions. But TROs are normally not considered injunctions for appellate-jurisdiction purposes. So litigants generally must wait until the district court rules on a preliminary injunction before taking an appeal.
Exceptions to this general rule can exist when a TRO has the trappings of a preliminary injunction, such as an adversarial hearing or an indefinite duration. Litigants have recently invoked these exceptions in cases with some connection to COVID-19. These attempted appeals have mostly involved states appealing temporary restraining orders that enjoined COVID-19 related abortion restrictions. To my knowledge, none of those attempts has been successful. (The Fifth Circuit has reviewed temporary restraining orders via mandamus, not an appeal under § 1292(a)(1).) But yesterday, in Hope v. Warden, York County Prison, the Third Circuit held that it had jurisdiction to review a temporary restraining order directing the release of detained immigrants due to the COVID-19 pandemic.
Last week, the D.C. Circuit untangled several appellate issues—including the necessity of a cross-appeal to argue personal jurisdiction—in the course of hearing an appeal. The Seventh Circuit held that an attempted class-action objector lacked appellate standing when she did not seek to intervene. Plus another attempted appeal from a temporary restraining order, some improper qualified-immunity appeals, the timeliness of intervention appeals, appealing dismissals without prejudice, and appellate jurisdiction in cases of unserved defendants.
Last week, the Sixth Circuit addressed the appealability of a district court order delaying a decision on a motion to compel arbitration. The Ninth Circuit required meaningful district court participation in dismissals without prejudice for those dismissals to be appealable. Two courts of appeals addressed their jurisdiction to review temporary restraining orders in the context of COVID-19 related abortion restrictions. Two courts of appeals rejected improper qualified-immunity appeals. And the Federal Circuit addressed whether a stipulated dismissal was a “judgment” for purposes of seeking attorney’s fees.
Last week, the Advisory Committee on Appellate Rules met and considered (among other things) the proposed amendments to Rule 3(c) and cumulative finality. A split Second Circuit held that immigration’s jurisdiction-stripping provisions applied only when a petitioner was deemed removable due to a covered criminal offense. The Fifth Circuit addressed when reconsideration decisions can restart the clock for taking an arbitration appeal. Plus improper qualified-immunity appeals (including one on the preclusive effect of a state conviction), notices of appeal, and patent-claim-construction appeals.
Programming Note: Weekly roundups will probably be short, and new posts will probably be rare, for the next few weeks.
The Supreme Court addressed the scope of review in immigration appeals. The Sixth Circuit reversed course on the jurisdictional basis for sentencing appeals. The Ninth Circuit joined everyone else in holding that Rule 23(f) appeals are available for reconsideration orders only when the orders change the status quo. And the Ninth Circuit decided another case on undoing pre-Baker voluntary dismissals. Plus a few cases on administrative appeals, cumulative finality, dismissals without prejudice, and the Eleventh Circuit’s “anomalous rule” for intervention appeals.
Last week saw two decisions of note. The Seventh Circuit dismissed a bankruptcy appeal because the district court had remanded the case to the bankruptcy court for a determination of sanctions. And the Tenth Circuit dismissed a qualified-immunity appeal because the defendant refused to accept the facts that the district court took as true in denying immunity.
A brief roundup this week, as there is much else to be done. The Seventh Circuit clarified that decisions striking class allegations can be appealed via Rule 23(f). The Fifth Circuit issued a questionable cumulative-finality decision. And courts continue to reject defendants’ improper qualified-immunity appeals (though no one seems to get sanctioned for taking these appeals).
Last week saw several developments and decisions of note. The Supreme Court heard argument in Nasrallah v. Barr, which involves the scope of review in appeals from the denial of relief under the Convention Against Torture. In Baltimore’s climate-change litigation, the Fourth Circuit deepened the split on the scope of remand appeals. The Eleventh Circuit untangled some issues with notices of appeal and clarified its caselaw on Federal Rule of Appellate Procedure 3(c)’s order-designation requirement. Plus appeals involving agency decisions, qualified immunity, post-judgment proceedings, dismissals without prejudice, and much more.
In Automotive Alignment & Body Service, Inc. v. State Farm Mutual Automobile Insurance Co., the Eleventh Circuit navigated several potential errors in the timing and contents of notices of appeal. For two groups of plaintiffs, the district court dismissed their complaints but then improperly accepted late-filed amended complaints. Those amended complaints were a nullity—the dismissals became final once the time for amending had passed—and the plaintiffs failed to timely appeal from the original dismissal. Another group’s notice of appeal did not specify the district court decision that dismissed their antitrust claims. That group of plaintiffs instead designated the district court’s denial of reconsideration and its final judgment. Fortunately for them, the Eleventh Circuit held that designating the final judgment was sufficient to appeal all decisions that merged into the final one.
In last week’s Mayor and City Council of Baltimore v. BP P.L.C., the Fourth Circuit held that Baltimore’s climate-change lawsuit against oil and gas companies must proceed in state (not federal) court. The court also deepened an existing split on the scope of remand appeals under 28 U.S.C. § 1447(d). That statute generally prohibits review of decisions remanding a case to state court. But the statute includes two exemptions to that prohibition—when removal was based on the federal-officer removal statute or the civil-rights removal statute.
The Fourth Circuit held that the scope of remand appeals is limited to the express exemptions to § 1447(d). That is, the court of appeals can address only whether removal was proper under the federal-officer or civil-rights removal statutes; the court lacks jurisdiction to review any other ground for removal. Other courts disagree. Focusing on § 1447(d)’s reference to appeals from a remand “order,” these courts have held that the scope of appeal includes every aspect of the district court’s order.
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