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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.
In Scott v. Advanced Pharmaceutical Consultants, Inc., the Eleventh Circuit reversed the entry of a partial judgment under Federal Rule of Civil Procedure 54(b). The district court had resolved most (but not all) of the counts pleaded in the plaintiff’s complaint. But the district court’s rejection of those counts did not resolve a distinct “claim” for purposes of Rule 54(b). All of the counts stemmed from the same events and involved similar remedies for a single injury. So the counts were instead different causes of action—different theories of recovery—for the same claim. They were not severable for purposes of Rule 54(b).
In Garnett v. Akron City School District Board of Education, the Sixth Circuit dismissed an appeal insofar the plaintiff challenged the denial of his post-judgment Rule 60(b) motion. The plaintiff had appealed from the original judgment. But he had not filed a new or amended notice of appeal designating the Rule 60(b) denial, as Federal Rule of Appellate Procedure 4(a)(4)(B)(ii) requires. The Sixth Circuit determined that the failure to do so meant no appellate jurisdiction over the Rule 60(b) decision.
A few years ago, I expressed some doubt about the conclusion that Rule 4(a)(4)(B)(ii) is jurisdictional. Now I’m really starting to think that it’s not. It doesn’t come from a statute. And the only statutory requirement—a timely notice of appeal—has been satisfied. To be sure, that notice designated only the original judgment. But no statute requires that notices of appeal designate an appealed decision, much less requires a second or amended notice after the resolution of a post-judgment motion.
If it’s not jurisdictional, Rule 4(a)(4)(B)(ii) a claims-processing rule. Courts still have to enforce it. But it can also be waived. And I imagine there are at least a few cases out there in which appellees have waived any objection to the failure to file a second or amended notice of appeal under Rule 4(a)(4)(B)(ii).
Manufactured finality refers to litigants’ efforts to create a final, appealable decision through something other than a judicial resolution of all claims. The last few years have seen a spate of decisions on manufactured finality. But there is more to the topic than most think.
I’ve posted an article explaining as much. In it, I discuss the variables that go into manufactured finality, the variety of forms it takes, and the future of those various forms after the Supreme Court’s decision in Microsoft Corp. v. Baker.
I end the article with two thoughts for the future. First, I ask whether we might better define a final decision (at least for the purposes of traditional, end-of-proceedings appeals) as existing once the district court has finished with an action. Second, I ask what role litigants (as opposed to Congress, rulemakers, and courts) should play in determining when appeals should come before the end of district court proceedings.
The article is titled Manufactured Finality, and it’s forthcoming in the Villanova Law Review. You can read the draft at SSRN, and the abstract is below.
In Lowery v. Amguard Insurance Co., the Eleventh Circuit allowed an plaintiff to create a final, appealable decision by abandoning an unresolved claim. This should not be remarkable; courts have long allowed parties to abandon unresolved claims—even in the middle of oral argument—to cure defects in appellate jurisdiction. But the decision seems to conflict with the Eleventh Circuit’s rule that litigants cannot voluntarily dismiss discrete claims.
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