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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.
In Winters v. Taskila, the Sixth Circuit held that a notice of appeal was effectively a motion to reopen the appeal window. The court went on to hold that once the district court reopened that window, this notice was also a notice of appeal. The courts of appeals have split on whether a notice of appeal can serve these dual functions. According to the Sixth Circuit, resolution of this split is now a matter for the Rules Committee.
A ruling on liability is not final until the court specifies a remedy. But what if that remedy consists entirely of attorney fees? The Supreme Court has long held that a decision on the merits is final despite any unresolved issues regarding attorney fees. So is a ruling on liability final when the remedy is an unspecified award of attorney fees?
In In re Asset Enhancement, Inc., the Eleventh Circuit held that such an order is not final, at least in the context of contempt. A contempt order, the court explained, is not final until the court determines a sanction. That rule applies even when the sanction is a not-yet-specified amount of attorney fees.
Last month’s major appellate-jurisdiction development involved another court narrowing the availability of Perlman appeals. In other decisions, the Fifth Circuit carved a new, video-evidence exception to the scope of qualified-immunity appeals. The Third Circuit addressed what to do with a partial objection to an untimely criminal appeal. The Ninth Circuit applied Dupree to part of a summary-judgment denial. And a Fourth Circuit panel stuck by the rule that the 30-day deadline for immigration appeals is jurisdictional, though a concurrence doubted that rule’s soundness. Plus an improper qualified-immunity appeal and two decisions on the scope of interlocutory appeals.
In In re Grand Jury 2021 Subpoenas, the Fourth Circuit joined several other circuits in holding that only non-parties can take Perlman appeals. I wrote about this issue a few years ago when the Second Circuit did the same. This cutting back on Perlman appeals is as wrong now as it was then.
In Cottonwood Environmental Law Center v. Edwards, the Ninth Circuit applied the Supreme Court’s decision in Dupree v. Younger to permit review of part of a summary-judgment denial. In the course of doing so, the court rejected the argument that the denied summary-judgment motion needed to have been potentially dispositive as to the need for a trial.
In Argueta v. Jaradi, the Fifth Circuit created a new exception to the bar on reviewing the genuineness of fact disputes in qualified-immunity appeals. In most of those appeals, the court must take as given the district court’s determination of what facts a reasonable jury could find. But according to the Fifth Circuit, an appellate court doesn’t have to do that when video evidence exists.
In United States v. Crump, the Third Circuit permitted the government to partially object to the untimeliness of a criminal appeal. That meant the court of appeals had to dismiss the appeal insofar as it raised the objected-to issues. But the court could address the other issues that the defendant raised on appeal.
Last month produced a wide variety of appellate-jurisdiction decisions. The Eleventh Circuit issued more opinions on whether and when claimants can voluntarily dismiss (or, in one case, “abandon”) claims to create a final decision. The Ninth Circuit held that defendants can appeal from the denial of PREP Act immunity. And the Eleventh Circuit addressed the meaning of claims (versus counts) in the context of Rule 54(b). Plus reviewing the summary-judgment standard in qualified-immunity appeals, the jurisdictionality of Rule 4(a)(4)(B)(ii), and much more—including a new cert petition on whether federal defendants can take pure Bivens appeals.
In Washington v. City of St. Louis, the Eighth Circuit vacated a denial of qualified immunity because the district court misstated and misapplied the summary-judgment standard. The Eighth Circuit thought this was a legal issue over which it had jurisdiction in a qualified-immunity appeal.
But I’m not sure. Most (if not all) reversible summary-judgment decisions can be characterized as misunderstandings or misapplications of the summary-judgment standard. And Johnson v. Jones said that some of these reversible summary-judgment decisions—those involving evidence sufficiency—are off limits in immediate appeals from the denial of qualified immunity. Washington might have just restated the evidence-sufficiency inquiry in a way that gets around Johnson.
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