Blog
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.
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?
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.
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.
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.
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.
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.
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More Contact