The Ninth Circuit held that the government could appeal a discovery order by inviting the district court to dismiss the indictment. But why didn’t that invitation waive appellate review?
December 23, 2024
In United States v. Wilson, the Ninth Circuit permitted the government to appeal from a discovery order in a criminal case after the government asked the district court to dismiss the indictment to facilitate an appeal. Although the order was interlocutory, the Ninth Circuit could review it under 18 U.S.C. § 3731. That’s because § 3731 doesn’t require finality. And the district court’s involvement in the dismissal assuaged any concerns about manufacturing an appeal.
I think the court was right about appellate jurisdiction. After all, the district court had dismissed the indictment, which is an appealable decision under § 3731. Notably, this was fairly different from how courts treat similar efforts to manufacture an appeal in the civil context.
But I still think the appeal was improper. In my view, the government waived any challenge to the judgment by consenting to a dismissal before the case had been effectively resolved.
A motion to reconsider the denial of qualified immunity created issues of appealability, the time to appeal, and the effect of a local rule on reconsideration motions.
December 23, 2024
In Blackwell v. Nocerini, the Sixth Circuit held that a motion to reconsider reset the time to take a qualified-immunity appeal. The denial of immunity was immediately appealable and thus a “judgment” under the Federal Rules of Civil Procedure. So a motion to reconsider that denial was effectively a motion under Federal Rule of Civil Procedure 59(e), despite the motion’s relying on a local rule rather than Rule 59(e). And that Rule 59(e) motion reset the appeal clock. The defendants could thus appeal the denial of immunity months after that denial. This conclusion let the Sixth Circuit avoid addressing whether a refusal to reconsider the denial of immunity is itself immediately appealable.
The Ninth Circuit pointed out that if the administrative-remand rule makes an order final, everyone—not just the government—can appeal.
December 12, 2024
In Kaweah Delta Health Care District v. Becerra, the Ninth Circuit held that a cross-appeal was proper when the government could appeal from an administrative remand. The court explained that when the administrative-remand rule makes a decision final, it is final for everyone.
The Appeal & Cross Appeal in Kaweah Delta
Kaweah Delta Health Care involved a challenge to a Department of Health and Human Services policy concerning medicare reimbursement. The district court held that the policy exceeded the Department’s authority. But the court did not vacate the policy. The district court was concerned that doing so would be too disruptive. The court instead remanded the matter to the agency for further proceedings.
The Department appealed to the Ninth Circuit. The challengers to the policy then filed a cross appeal, challenging the district court’s refusal to vacate the policy.
An Administrative Remand that Was Final for Everyone
The Administrative-Remand Rule
Under the administrative-remand rule, orders remanding a matter to an administrative agency for further proceedings are normally not final. The remand leaves more to be done. And in many cases, immediate review of the remand would both disrupt those proceedings and result in piecemeal review. Delaying review has the benefit of consolidating all issues into a single appeal.
But the administrative-remand rule doesn’t always deem remands non-final. A remand can be final when it might deprive a party (often the government) from any chance at appellate review. This happens primarily when a district court holds that an agency applied the wrong legal standard and remands with instructions for that agency to apply a different legal standard. If, on remand, the agency applies that new legal standard and finds for the party who was challenging the agency’s actions, the government generally will not be able to appeal; agencies normally cannot appeal their own decisions. So the remand risks making the district court’s holding on the proper legal standard unreviewable by a court of appeals. Faced with this sort of situation, the courts of appeals have concluded that the government can immediately appeal the district court’s order.
The Administrative-Remand Rule & Cross Appeals
Under this rationale, the remand in Kaweah Delta was final, and the Department could appeal.
The Ninth Circuit also rejected the Department’s argument that the challengers could not file a cross appeal. The Department argued that there was no final, appealable decision when it came to the cross appeal. But under the administrative-remand rule, the remand in Kaweah Delta was final. And a decision that is final is final for everyone.
Given the pragmatic balancing involved in the administrative-remand rule, I can see the argument for there being no final decision when it comes to cross appeals. But Kaweah Delta seems correct to me on this point. And that’s not just because I’m not a fan of the administrative-remand rule. (So long as a remand marks the end of district court proceedings, it should be a final decision under 28 U.S.C. § 1291.) If a decision is final, it should probably be final for everyone, thereby giving appellate courts jurisdiction over appeals from any aggrieved party.
Kaweah Delta Health Care District v. Becerra, 2024 WL 5063933 (9th Cir. Dec. 11, 2024), available at the Ninth Circuit and Westlaw
The Fourth Circuit held that a motion to reconsider an order reset the time to appeal, even though the order was interlocutory and the motion didn’t cite Rule 59(e).
December 10, 2024
In Gelin v. Baltimore County, the Fourth Circuit held that Federal Rule of Appellate Procedure 4(a)(4)(A) applies to appealable interlocutory orders. So a motion to reconsider such an order resets the time to appeal. The court added that a motion can effectively be one seeking reconsideration even though the motion does not cite to Federal Rule of Civil Procedure 59(e) and instead relies on a different rule Rule.
This all meant that the appeal in Gelin was not late. In fact, it was too early. The district court had not resolved all issues raised in the reconsideration motion. The Fourth Circuit accordingly held the appeal in abeyance while the district court fully disposed of the reconsideration motion.
The Ninth Circuit held that a discovery order under 28 U.S.C. § 1782 was not appealable until the district court resolved any objections to the discovery request.
November 7, 2024
In CPC Patent Technologies Pty Ltd. v. Apple Inc., the Ninth Circuit held that a 28 U.S.C. § 1782 discovery proceeding was not final because the district court had not definitively resolved the scope of discovery. Although the district court had authorized a subpoena, the court had not addressed the discovery target’s objections to the scope of discovery. Until those issues were resolved, the discovery target could not appeal.
The Eleventh Circuit held that a privilege claimant cannot take a Perlman appeal when the claimant could have raised the same issues via its own contempt appeal.
October 22, 2024
In In Re Grand Jury Investigation, the Eleventh Circuit held that a privilege claimant could not appeal orders compelling it and third parties to produce documents.
The analysis of the order directed at the privilege claimant was straightforward. Privilege claimants normally must take contempt appeals to challenge a discovery order. The privilege claimant in Grand Jury Investigation had not been held in contempt. So it couldn’t appeal.
The order directed at third parties was more interesting. Under the Perlman doctrine, privilege claimants can normally immediately appeal discovery orders directed to a third party. But the Eleventh Circuit held that the claimant here could not take a Perlman appeal. That’s because the claimant could have raised all of its challenges to the third-party discovery order by taking its own appeal. Appellate review of those issues was therefore possible, meaning Perlman didn’t apply.
The Fifth Circuit held that when an imprisoned appellant mistakenly mails a notice of appeal to the court of appeals, the notice is deemed filed when deposited in the prison mail system.
October 22, 2024
In Christmas v. Hooper, the Fifth Circuit held that the prison-mailbox rule applies to notices of appeal mistakenly sent to a court of appeals.
In doing so, the court had to resolve a tension between two portions of Federal Rule of Appellate Procedure 4. Rule 4(c)(1) says that an imprisoned appellant’s notice of appeal is deemed filed on the day it is deposited in the prison mail system. Rule 4(d) says that when litigants mistakenly send their notice to the court of appeals, the notice is deemed filed when the court of appeals receives it.
So what happens when an imprisoned appellant deposits a notice of appeal in the prison mail system but addresses that notice to a court of appeals? The Fifth Circuit held that Rule 4(c)(1)’s prison-mailbox rule applies, such that the notice is filed when deposited.
The Second Circuit reiterated its rule that a post-judgment motion must be timely filed—not merely served—to reset the appeal clock. The court added that Rule 4(a)(4) does not allow for equitable exceptions and addressed an order-designation issue, too.
September 13, 2024
In Malek v. Feigenbaum, the Second Circuit reiterated its rule that a post-judgment motion must be timely filed—not merely served—to reset the time to appeal under Federal Rule of Appellate Procedure 4(a)(4). The court went on to hold that although Rule 4 is a claims-processing rule, it is a mandatory one that is not subject to equitable exceptions. The Second Circuit ended by concluding that a notice of appeal that designated the district court’s final judgment did not permit an appeal from a subsequent denial of reconsideration, even though that notice came after the denial.
The Ninth Circuit joined the Third and Tenth Circuits in rejecting pure Bivens appeals. But like those courts, the Ninth’s decision was split.
September 10, 2024
Disclosure: I participated in a moot oral argument for the plaintiff-appellee in this case.
In Garraway v. Ciufo, a divided Ninth Circuit held that federal officials cannot immediately appeal the Bivens question without a qualified-immunity appeal.
So far the courts of appeals have unanimously rejected the federal government’s efforts to secure immediate Bivens appeals. But these decisions have produced dissents, with judges contending that immediate appeals are warranted due to the interests the Bivens question implicates. And at least one more pending appeal presents this issue. This is probably not the end of the government’s attempts to secure pure Bivens appeals.
The Seventh Circuit concluded that a preemption defense was within the scope of a § 1292(b) appeal over the right to a jury trial.
August 10, 2024
In In re Lion Air Flight JT 610 Crash, the Seventh Circuit reviewed a preemption issue as part of a certified appeal that concerned the right to a jury trial. The district court had thought that only the jury-trial issue warranted an immediate appeal under 28 U.S.C. § 1292(b). But the Seventh Circuit concluded that the preemption decision was part of the same order and thus also within the scope of the certified appeal. After all, the right to a jury trial turned on the extent to which federal law preempted the plaintiffs’ state law claims.
Continue Reading