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Last week was eventful. The Supreme Court held that defendants who ask for a particular sentence do not need to object after sentencing to preserve sentence-length issues for appeal. The Court also denied cert in a case involving the scope of interlocutory qualified-immunity appeals. Speaking of qualified-immunity appeals, two courts rejected defendants’ improper attempts to challenge the facts the district court took as true for the purposes of denying qualified immunity. Another court remanded a qualified-immunity appeal for the district court to explain its denial of immunity. Plus administrative remands, arbitration, and declining to vacate interlocutory orders when a case becomes moot.
In Littlefield v. Mashpee Wampanoag Indian Tribe, the First Circuit held that it had jurisdiction to review a district court order reversing a decision of the the Bureau of Indian Affairs. The case presents an interesting variation on the administrative-remand rule. A Massachusetts district court reversed a Bureau decision and remanded for further proceedings. Normally that decision would not have been appealable until after those proceedings had ended. But the outcome of those proceedings on remand was subsequently challenged in a different district court. This set of circumstances gave the Massachusetts district court’s decision sufficient finality to be appealable.
In Holguin-Hernandez v. United States, the Supreme Court held that asking for a particular sentence before sentencing is enough to preserve a sentence-length error for appeal. Proposing the shorter sentence puts the parties and district court on notice of the defendant’s argument. Defendants thus do not need to object to that later-imposed, longer sentence to avoid plain error review. Requiring a subsequent objection serves no purpose and results in an unnecessarily high bar for appellate review of sentencing.
Last week saw a new decisions on finality in bankruptcy under Ritzen Group, the consequences of an interlocutory appeal becoming moot, the content and timing of notices of appeal, and cumulative finality. Plus a new report on discretionary appeals under § 1292(b) and a new cert petition on appealing non-party sovereign immunity.
The Federal Judicial Center released a new report on petitions to appeal under 28 U.S.C. § 1292(b). The report—Emery G. Lee III, Jason A. Cantone & Kristin A. Garri, Permissive Interlocutory Appeals, 2013–2019—presents data on the incidence and resolution of § 1292(b) petitions terminated between October 1, 2013, and June 30, 2019. Parties filed 636 petitions to appeal in that period, and the courts of appeals granted or denied 535 (the rest were terminated procedurally). Of those 535, the courts of appeals granted 280 (52%). And when courts granted a § 1292(b) petition to appeal, the petitioning party obtained some relief (reversal in whole or in part or a vacatur) about half of the time.
The report’s executive summary is below. Thanks to Michael Solimine for sending this my way.
In Norton v. High, the Fourth Circuit dismissed a pro se plaintiff’s appeal from a sanction order. The plaintiff had filed his notice of appeal after the district court ordered him sanctioned but before the court determined the amount of sanctions. The notice was thus premature. And under the Fourth Circuit’s approach to cumulative finality and Federal Rule of Appellate Procedure 4(a)(2), the district court’s subsequent decision setting that amount did not save the premature notice.
Left unsaid in Norton is that the decision deprived the plaintiff of any chance to appeal the sanction. By the time the Fourth Circuit told him that his notice of appeal was ineffective, the window for filing a timely notice had long since closed. Norton thus illustrates the unfortunate consequences of courts’ limiting the circumstances in which subsequent events can save a premature notice. And the punishment far outweighs the crime. The error—an early notice—is a technical one that rarely (if ever) causes anyone any harm. I recently proposed an amendment to Rule 4(a)(2) that would avoid these consequences. Norton illustrates why the Rules Committee’s action is needed.
Last week saw decisions on appealing bankruptcy remands and orders distributing receivership assets. The Federal Circuit used mandamus to address an unresolved and important venue issue in patent-infringement suits. And the Third Circuit dismissed an attorney’s appeal because the attorney was not named in the notice of appeal. Plus an appeal from an unexplained denial of qualified immunity and a new cert petition that suggests overruling Mitchell v. Forsyth.
In In re Google LLC, the Federal Circuit used mandamus to order that a case be dismissed or transferred due to improper venue. The district court had concluded that Google’s having cache servers (but no employees) within the Eastern District of Texas was enough for venue to be proper in a patent-infringement suit. The Federal Circuit disagreed. And it did so via mandamus. Mandamus is normally reserved for occasions when district courts clearly and obviously err or go well beyond their jurisdiction. Google was not such a case. It was instead an example of what’s often called “advisory” mandamus, where a court of appeals uses the writ to address an unresolved and important issue that could evade appellate review.
Updated with thoughts on some comments I’ve received.
In 2018, I published an article about cumulative finality. The cumulative-finality doctrine allows certain events to save certain premature notices of appeal. The rule can’t be stated much more specifically, however, because the law in this area is all over the map. My study of this area revealed three general approaches to cumulative finality and identified a number of inter- and intra-circuit splits. I also found confusion in the courts of appeals over how the general cumulative-finality doctrine interacts with Federal Rule of Appellate Procedure 4(a)(2), which was supposed to codify at least some of the doctrine.
I ended the article with a proposal to amend Rule 4(a)(2) to adopt the broadest approach to matters of cumulative finality. I have now put together a formal rule proposal based on my research. The suggested language is a bit different from that in my article, but the analysis is largely the same. For anyone curious, I’ve reproduced my proposal below.
Last summer, the Rules Committee proposed amending Federal Rule of Appellate Procedure 3(c). The rule requires that appellants designate the judgment or order they are appealing in their notice of appeal. Several courts of appeals have read this requirement to mean that appellate jurisdiction exists over only the specified judgment or order. This order-designation rule deprives litigants of a full appeal. And courts apply it with some frequency.
The proposed amendments abrogate the order-designation rule. As I wrote when the amendments were proposed and several times since, these amendments cannot come soon enough; they’re a necessary fix for a bad misreading of Rule 3(c). The inadvertent loss of appellate rights is rarely a good thing, and the doctrines that courts had made out of Rule 3(c) make little practical sense. But the new language might be a bit more complicated than necessary. The proposed amendments also raise the question of whether Rule 4(a)(4)(B)(ii) should also be amended.
I recently raised these points in comments submitted to the Advisory Committee on Appellate Rules. I’ve reproduced them below. The comment period closes on February 19, 2020, and instructions for submitting comments are available on the Rules Committee’s website.
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