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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.
In Hampton v. California, the Ninth Circuit held that defendants can immediately appeal from the denial of PREP Act immunity via the collateral-order doctrine. I think this is the first time a court of appeals has done so. (The Second Circuit avoided deciding this issue last spring, and the D.C. Circuit addressed appealability only under a specific provision of the Act.) And I have some doubts about the conclusion. I’m not sure that defenses like this should be immediately appealable via the collateral-order doctrine. I recognize that the caselaw is completely against me on this point. But I don’t think immunities from litigation are actually separate from (“collateral to”) that litigation.
September saw more drama over Federal Rule of Appellate Procedure 3(c), as the Eleventh Circuit appeared to use Rule 3(c)(6) to revive the old practice of limiting the scope of an appeal to the designated order. The courts of appeals also addressed manufactured finality in the bankruptcy context, a discovery appeal implicating the Speech or Debate Clause, and the appealability of decisions on substituting counsel. Plus more judges questioning the appealability of anti-SLAPP motions, addressing preclusion as part of a qualified-immunity appeal, and a new cert petition on manufactured finality.
In Kiviti v. Bhatt, the Fourth Circuit dismissed an appeal from an order deeming a debt dischargeable in bankruptcy. That discharge order meant the creditors would have to pursue that debt through bankruptcy. But it also left unresolved the creditors’ request to declare the existence of that debt. The Fourth Circuit held that the parties could not secure an appeal from the discharge decision by voluntarily dismissing this remaining request without prejudice. Granted, the discharge order made pursuing that request unattractive; the creditors were not likely to recover much (if anything) on that debt through the bankruptcy proceedings. But the discharge decision did not effectively resolve the creditors’ claim. It was merely an adverse interlocutory decision. And litigants cannot manufacture appeals from these sorts of decisions by voluntarily dismissing their claims.
Until recently, several courts of appeals limited the scope of appeals to the orders designated in the notice of appeal. Recent amendments to Federal Rule of Appellate Procedure 3(c) were supposed to end that practice. But those amendments also provided a way for litigants to limit the scope of an appeal. The new Rule 3(c)(6) lets appellants “designate only part of a judgment or appealable order by expressly stating that the notice of appeal is so limited.”
In United States v. Sylvain, the Eleventh Circuit became the first court that I’m aware of to limit the scope of an appeal via Rule 3(c)(6). The court concluded that designating one order in a notice of appeal limited the appeal to that order. That is, specifying one order—and not any others—was an express statement limiting the scope of appeal under Rule 3(C)(6).
That can’t be right. Designating one order while not mentioning others is hardly an express statement limiting the scope of appeal. Indeed, the Rule 3(c) amendments were supposed to prevent courts from limiting the scope of appeal in this situation. The Eleventh Circuit’s application of Rule 3(c)(6) thus risks undoing the Rule 3(c) amendments.
I have a new article on the distinct roles that final decisions and final judgments play in the law of federal appellate jurisdiction.
I have a new article on appeals from voluntary dismissals after an adverse interlocutory decision.
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