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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.
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.
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.
April was a very busy month, with dozens of decisions and developments worth mentioning. Let’s get started.
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.
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.
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.
Disclosure: I filed an amicus brief in support of rehearing in this appeal.
In last summer’s Parrish v. United States, a divided Fourth Circuit panel held that when a notice of appeal is treated as a motion to reopen the appeal period under Federal Rule of Appellate Procedure 4(a)(6), the would-be appellant must file a second notice of appeal after that motion is granted. The majority thought that by using the term “reopen” in 28 U.S.C. § 2107(c)—the statute that Rule 4(a)(6) implements—Congress intended to create a second, separate appeal period, distinct from the original one. And a new notice must be filed within that new appeal period. The original notice, which had been treated as a Rule 4(a)(6) motion, was insufficient.
I was pretty critical of the decision—see my post The Fourth Circuit Requires a Second Notice of Appeal After the Appeal Window is Reopened. The issue is one on which the courts have split, and the Fourth Circuit’s side makes little sense to me.
I was accordingly happy to see the plaintiff seek rehearing en banc. I filed an amicus brief in support of rehearing, arguing that the panel’s decision—in addition to being wrong for all the reasons set out in the rehearing petition—conflicted with the cumulative-finality doctrine. The United States (the defendant in the action) agreed that the panel decision was wrong. But it thought that the issue was not important enough to warrant en banc rehearing.
A divided Fourth Circuit denied rehearing en banc, with nine judges voting against rehearing and six voting for it.
In Chavez v. McDonough, the Federal Circuit reviewed an order of the Veterans Court that remanded an action for further proceedings. Veterans Court remand orders normally are not immediately appealable. But these orders can be final and thus appealable when they (among other things) involve an argument that the Veterans Court lacked authority to order the remand.
In McGruder v. Metropolitan Government of Nashville & Davidson County, the Sixth Circuit said that it would address a judicial-estoppel defense raised for the first time after the defendant had filed its notice of appeal.
The Sixth Circuit framed this issue as one implicating the content and timing requirements for a notice of appeal. The defendant’s notice had not designated a decision on the judicial-estoppel defense. And the only decision relevant to that defense came after the notice of appeal. The Sixth Circuit nevertheless concluded that it could address judicial estoppel in the first instance. The matter had been fully briefed in the district court. And courts can address judicial-estoppel issues on their own initiative.
While I agree with the outcome in McGruder, I’m not sure that the case implicates the issues it addresses. I think the case instead implicates the prudential limits on appellate courts’ addressing issues in the first instance.
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