The Fourth Circuit split on whether it could review the denial of a motion to dismiss alongside a Rule 23(f) class-certification appeal.
March 18, 2024
In Elegant Massage, LLC v. State Farm Mutual Automobile Insurance Co., a divided Fourth Circuit reviewed—and reversed—the denial of a motion dismiss while hearing a class-certification appeal under Rule 23(f). The majority thought it could do so because the class-certification and motion-to-dismiss decisions were “so interconnected as to require concurrent review.” Judge Wynn dissented in part, contending that class certification could easily be reviewed without delving into the dismissal motion.
The Fifth Circuit held that litigants can use § 1291 (and not a discretionary appeal under § 1453(c)) to appeal remands under CAFA’s local-controversy exception.
March 18, 2024
In Cheapside Minerals, Ltd. v. Devon Energy Production Co., the Fifth Circuit held that a remand under the Class Action Fairness Act’s local-controversy rule was an appealable final decision under 28 U.S.C. § 1291. That meant the appellant did not need to resort to a discretionary appeal under 28 U.S.C. § 1453(c).
Some questions about the collateral-order doctrine. Plus hindsight regarding the appeal deadline, admiralty appeals, and much more.
March 9, 2024
Decisions from last month raised some interesting questions about the role of the collateral-order doctrine, particularly when it comes to immunities and criminal appeals. In other developments, the Eleventh Circuit deemed an appeal untimely after concluding that—in hindsight—a post-judgment motion was not really a Rule 59 motion. The Ninth Circuit split on what it means to determine “rights and liabilities” for purposes of admiralty appeals. And the Fifth Circuit heard another governmental-privilege appeal. Plus appeals from reinstated removal orders, improper qualified-immunity appeals, and more.
The Eleventh Circuit held that, in hindsight, a post-judgment motion was not really a Rule 59 motion and thus did not reset the appeal clock.
March 9, 2024
A motion to alter or amend a judgment under Federal Rule of Civil Procedure 59(e) normally resets the appeal deadline. But in SEC v. TCA Fund Management Group, the Eleventh Circuit held that a post-judgment motion was not really a Rule 59 motion. That means the motion did not reset the appeal deadline, and the notice of appeal was late.
This is a rough way to treat post-judgment motion. The appellants in TCA Fund Management likely relied on their motion—which was styled a Rule 59 motion—when determining the time to appeal. I don’t see a good reason for a court of appeals to say, in hindsight, that a motion was inadequate and thus did not reset the appeal deadline. The time to appeal should be—above all—clear. Appellate courts’ second guessing of post-judgment motions injects uncertainty into determining the appeal deadline. It also opens the door to appellees’ arguing that a post-judgment motion didn’t count for purposes of resetting the appeal deadline.
The Fourth Circuit suggested that a defense’s providing an immunity from litigation is enough for the collateral-order doctrine. But what about the doctrine’s other requirements, particularly separateness?
February 27, 2024
In Amisi v. Brooks, the Fourth Circuit held that defendants can immediately appeal from the refusal to dismiss a claim as barred by the Virginia Workers’ Compensation Act. The court thought that the Act provided an immunity from litigation. And that, apparently, was all that was necessary for an appeal via the collateral-order doctrine. But are immunities sufficiently separate from the merits, as the collateral-order doctrine also purports to require?
Two recent appellate decisions have me wondering about how we think about the collateral-order doctrine.
February 22, 2024
The collateral-order doctrine is one of the most frequently invoked exceptions to the final-judgment rule. The doctrine deems final a district court order that (1) conclusively resolves an issue, (2) involves an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal after a final judgment. The collateral-order doctrine is also the final-judgment rule’s most maligned exception. Its requirements have a variety of meanings, and courts have applied it in a variety of ways. The doctrine is accordingly rife with complexity and uncertainty.
Two recent decisions illustrate some of the issues with the collateral-order doctrine, particularly issues that arise in criminal cases. In United States v. Trump, the D.C. Circuit held that it could review a denial of presidential immunity in a criminal prosecution. In the course of doing so, the D.C. Circuit had to wrestle with whether appeals under the collateral-order doctrine require a statutory or constitutional immunity from litigation. And in United States v. Castellon, a concurring judge suggested that the normal strictness with which courts apply the collateral-order doctrine in criminal cases should not apply to sentencing appeals.
These decisions hint at something I’ve been thinking about for a while. I’m not sure there is a single collateral-order doctrine anymore. I suspect there are instead multiple versions of the doctrine, each applying in different contexts and having different requirements. And some clarity might come from acknowledging the variety of collateral-order doctrines.
Appeals involving an abandoned claim/amended complaint, denials of qualified immunity, sealing orders, administrative remands, PREP Act immunity, and more.
February 11, 2024
An especially busy January means I didn’t have a lot of time to post about decisions from last month. But there were still several worth talking about. Below is a brief roundup of what I found interesting.
The Eleventh Circuit says that it can review the genuineness of fact disputes in qualified-immunity appeals so long as the defendant also challenges the existence of a clearly established constitutional violation.
February 11, 2024
As I’ve said many times on this site and in my scholarship, the genuineness of any factual disputes is normally not within the scope of interlocutory qualified-immunity appeals. There are some widely recognized exceptions to this rule. Two Eleventh Circuit cases from last month—Nelson v. Tompkins and Dempsey v. Sheriff—illustrated a less-well-recognized exception. The Eleventh Circuit said that it can review the genuineness of factual disputes so long as the defendant also challenges the existence of a clearly established constitutional violation. This seems to me to be a pretty mistaken end-run around the normal limits on qualified-immunity appeals.
Ditching its initial holding that abandoning unresolved claims creates a final decision, the Eleventh Circuit treated a purported abandonment as a successful attempt to amend a complaint.
January 11, 2024
Last October, the Eleventh Circuit held in Lowery v. Amguard Insurance Co. that litigants can create a final decision by abandoning unresolved claims. As I noted at the time, this holding stood in some tension with the Eleventh Circuit’s rule that litigants cannot voluntarily dismiss discrete claims. And although I liked the outcome, I did not see a meaningful difference difference between abandoning an unresolved claim and voluntarily dismissing it.
Yesterday—and on its own initiative—the Eleventh Circuit issued a substitute opinion in Lowery. This time, the court held that the plaintiffs had effectively amended their complaint to remove the unresolved claim. And amending a complaint to remove unresolved claims is a perfectly acceptable way to achieve a final decision.
The new opinion says nothing about abandoning claims. I take this as an indication that future Eleventh Circuit panels might not welcome the abandoning tactic that Lowery initially approved. But the decision also suggests some valuable pragmatism in treating attempts to eliminate unresolved claims as attempts to amend a complaint.
A notice of appeal’s multiple functions, sanctions of unspecified attorney fees, and more.
January 5, 2024
The last month of 2023 produced several decisions of note. Two courts addressed whether a single filing could serve the dual functions of both a motion to reopen the appeal deadline and a notice of appeal. The courts of appeals have split on this issue, though both courts to address it last month held that a single notice of appeal could perform these multiple functions. Plus decisions on the finality of a sanction of unspecified attorney fees, a gag-order appeal in a criminal case, arbitration appeals involving substitute arbitrators, and more.