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In In re Marino, the Ninth Circuit held that it lacked jurisdiction to review a Bankruptcy Appellate Panel decision that remanded the dispute back to the bankruptcy court. The opinion provides a nice summary of the Ninth Circuit’s law on appealing bankruptcy remands. These remands mean further proceedings in the bankruptcy court. And the parties might want to appeal the outcome of those proceedings. So it’s normally better to delay any appeals until after the bankruptcy court resolves the dispute. The court of appeals can then decide all issues that the action presents in a single appeal. Only when the proceedings on remand will be ministerial or technical—and thus highly unlikely to produce another appeal—is the remand order deemed final and appealable.
Last week saw several appellate-jurisdiction decisions of note. Defendants in two civil rights suits took wholly improper appeals, which have become a staple of qualified immunity. Two circuits addressed the scope of their jurisdiction to review sentencing appeals. The Ninth Circuit avoided wading into questions about the Federal Circuit’s exclusive jurisdiction over patent appeals. Plus motions to proceed anonymously, untimely notices of appeal, and reconsideration of remands.
In Monday’s Orn v. City of Tacoma, the Ninth Circuit repeatedly rejected a defendant’s attempt to argue the facts in an interlocutory qualified-immunity appeal. Although defendants have a right to immediately appeal the denial of qualified immunity, that right is limited when immunity is denied at summary judgment. The court of appeals can review whether the defendant violated clearly established federal law. But in doing so, the court of appeals must take as true the same facts that the district court determined a reasonable jury could find. The appellate court lacks jurisdiction to look behind the facts that the district court assumed were true to see if the summary-judgment record supported them. Granted, a few exceptions to these general jurisdictional limits exist. But these general rules were laid down 25 years ago in Johnson v. Jones and have remained the law ever since.
Defendants nevertheless flout these jurisdictional rules with some regularity. When they do, they needlessly delay district court proceedings, create unnecessary work for the courts and parties, and waste everyone’s time. Orn is another unfortunate example. The practice needs to stop. In this post, I use Orn to illustrate this problematic practice. And (if you’ll excuse the self promotion) for a more in-depth discussion of this issue—including how courts or rulemakers can clarify and improve this area of the law—you can read the new draft of my article Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals, which I recently posted to SSRN.
Last week saw a few interesting appellate-jurisdiction decisions, all of which involved some uncertainty about when the time to appeal started running. The D.C. Circuit avoided deciding that issue by invoking the doctrine of “companion” jurisdiction. A concurring Ninth Circuit judge pointed out that no one seems to know when the time for appealing begins to run when two immigration cases are consolidated and only one of the cases is decided. And a creditor in bankruptcy lost its chance to appeal the judgment against it by waiting to appeal until after attorneys’ fees were decided. In cert-stage developments, the Supreme Court asked for the views of the governing in CACI Premier Technology, Inc. v. Al Shimari and for the record in Taffe v. Wengert.
The cumulative-finality doctrine provides that certain subsequent events can save a premature notice of appeal filed after certain district court decisions. As I detailed in a 2018 article, the doctrine cannot be stated with any greater precision because the courts of appeals are all over the map on when exactly notices can be saved. Three general approaches to cumulative finality have emerged. And until recently, the Federal Circuit appeared to be in the most restrictive camp, holding that only decisions resolving all outstanding issues can be saved by the entry of a final judgment.
But the Federal Circuit’s recent decision in Amgen Inc. v. Amneal Pharmaceuticals LLC appears to break with that court’s precedent. The court held that a premature notice of appeal was cured when counsel abandoned the unresolved claims at oral argument. (I covered the decision in a previous weekly roundup, and Dennis Crouch wrote about it on Patently-O.) This outcome required a different approach to cumulative finality than the Federal Circuit has previously endorsed. But the court said little about why the disclaimer was sufficient, nor did it acknowledge its earlier decisions on cumulative finality. Still, the Federal Circuit might have switched camps in the cumulative-finality split.
Updated July 2021: The article has been published in the Georgia Law Review (55 Ga. L. Rev. 959 (2021)), and the final version is available on SSRN.
Last year year I wrote that Scott v. Harris’s blatant-contradiction rule for qualified-immunity appeals is an unpragmatic and unnecessary rule that should be rejected. I also noted that I was working on an article that argued as much and used an original dataset of every blatant-contradiction decision in the 12 years since Scott to show why. The article—called Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals—is now up on SSRN.
Last week, the en banc Fifth Circuit heard argument in Williams v. Taylor Seidenbach, Inc. The case gives that court the opportunity to clean up the “finality trap” it has created for litigants. The Fifth Circuit has held that parties may not appeal when they’ve voluntarily dismissed some of their claims without prejudice; the voluntary dismissal precludes the district court’s decision from being final. But those same parties also cannot return to the district court to change the dismissal to one with prejudice, as district court proceedings are finished. Cases that fall into this finality trap exist in a sort of litigation limbo. I’ve accordingly called them “zombie actions”: they are final and unalterable in the district court, but they are not final—and will never become final—for appeal.
The Fifth Circuit has several options for fixing its finality trap. In this post, I discuss those options, as well as the finality trap’s origins, its application in Williams, the en banc argument, and the larger problems in this area of appellate jurisdiction.
Last week was mostly about appeals and dismissals without prejudice. There were also a handful of cases limiting the scope of review due to the contents of a notice of appeal. Plus an appeal from a not-yet-determined attorneys’ fees award and a cert denial on the scope of qualified-immunity appeals.
Update: For my full post on the argument in Williams, see The Fifth Circuit & the Finality Trap.
The en banc Fifth Circuit heard argument this morning in Williams v. Taylor Seidenbach, Inc. The case addresses the finality and appealability of an action when some claims have been decided on the merits but others have been voluntarily dismissed without prejudice.
The courts of appeals occasionally struggle with appellate jurisdiction when parties dismiss some of their claims without prejudice. The issue comes up when a district court has resolved some of the claims in a multi-claim suit and parties try to transform that non-final decision into a final one by dismissing their remaining claims without prejudice. Courts hold that parties cannot manufacture an appeal this way. Parties instead must obtain a Rule 54(b) certification, which allows district courts to certify for immediate appeal a decision resolving some (but not all) claims in a multi-claim suit.
The Sixth Circuit yesterday rejected one of these manufactured appeals. In Novia Communications, LLC v. Weatherby, the plaintiff had tried to take a belt-and-suspenders approach to appellate jurisdiction, voluntarily dismissing its unresolved claims and securing a Rule 54(b) certification. But the Sixth Circuit held that neither action gave the court jurisdiction. The voluntary dismissal of three unresolved claims did not make the resolution of other claims final and appealable. And the Rule 54(b) certification was improper because it did not explain why an immediate appeal was warranted. Also of interest, the court went on to suggest that a Rule 54(b) certification might not be proper in any event due to the relationship between the resolved and unresolved claims.
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