A divided Eleventh Circuit created a circuit split on whether appellate courts can review sua sponte remands in cases removed under CAFA.
March 15, 2022
The Class Action Fairness Act (often referred to as “CAFA”) permits the removal of certain class actions brought in state court. CAFA includes a special appellate provision—28 U.S.C. § 1453(c)(1)—which gives the courts of appeals discretion to review a district court order “granting or denying a motion to remand a class action to the State court from which it was removed.” Normally these remand decisions come after one of the parties has asked the district court to remand the case. But sometimes district courts remand actions without anyone asking.
In 2013, the Ninth Circuit held that these sua sponte remands fall within § 1453(c)(1), despite them not coming after a party’s motion. But last week, in Ruhlen v. Holiday Haven Homeowners, Inc., a divided Eleventh Circuit held that § 1453(c)(1) does not cover sua sponte remands. As the majority saw things, § 1453(c)(1) applies only to orders that come after a motion. And a remand at the district court’s own initiative—though colloquially referred to as on the district court’s own motion—does not actually come in response to a motion. Section 1453(c)(1)’s plain text thus meant that appellate courts do not even have discretion to review a sua sponte CAFA remand. Dissenting, Judge Rosenbaum contended that the majority’s decision was inconsistent with § 1453(c)(1)’s text and context, and it produced absurd results.
The Sixth Circuit held that it lacked jurisdiction to review a state court preliminary injunction in an action removed to federal court, as § 1292(a)(1) applies only to orders of district courts.
March 15, 2022
28 U.S.C. § 1292(a)(1) gives the courts of appeals jurisdiction to immediately review many district court decisions involving injunctive relief. But § 1292(a)(1)’s text includes an important qualifier. It applies to “[i]nterlocutory orders of the district courts.” Normally this qualifier does little work. After all, most (if not nearly all) § 1292(a)(1) appeals involve injunctions issued by a district court.
In Schuler v. Adams, the Sixth Circuit had to address its jurisdiction to review a state court’s preliminary injunction. The case had been removed to federal court after the state court had issued the injunction. The Sixth Circuit held that it lacked appellate jurisdiction. The order—though granting injunctive relief—was not “of the district court[].” And removal did not transform the state court’s order into one of the district court.
Emphasizing the need for a statutory or constitutional right to avoid trial, the First Circuit held that criminal defendants cannot appeal from the denial of judicial immunity via the collateral-order doctrine.
March 15, 2022
One requirement for appeal via the collateral-order doctrine is that the district court’s order be effectively unreviewable in an appeal after a final judgment. A prime candidate for satisfying this unreviewability requirement are immunities from suit. If a defense protects a litigant from the burdens and uncertainties of trial, it must be vindicated immediately if it is to be vindicated at all. Courts have accordingly held that several kinds of immunities from suit are immediately appealable via the collateral-order doctrine.
Last month, this approach to immunity appeals ran into the collateral-order doctrine’s special strictures in the criminal context. In United States v. Joseph, the First Circuit said that in criminal cases the right to avoid trial must come from a statutory or constitutional right to avoid trial. The criminal context is thus more strict than the civil context, in which common law rights to avoid trial (such as qualified immunity) can warrant an appeal. The immunity at issue in Jospeh—judicial immunity—comes from the common law. The First Circuit accordingly held that the denial of judicial immunity is not immediately appealable in a criminal prosecution.
In an appeal from an order refusing to compel arbitration on all claims, the Fourth Circuit split on whether it could use pendent appellate jurisdiction to review the order insofar as it directed arbitration on some of the claims.
February 23, 2022
The general rule for appealing interlocutory arbitration orders is pretty straightforward. Under 9 U.S.C. § 16, orders that refuse to direct arbitration under the Federal Arbitration Act are immediately appealable. Orders that direct arbitration aren’t. But what if an order directs arbitration on some claims but not on others?
In Lyons v. PNC Bank, the Fourth Circuit split on whether it could use use pendent appellate jurisdiction to review an order insofar as it directed arbitration. Without much explanation, the court held that § 16 does not limit the use of pendent appellate jurisdiction. And extending pendent appellate jurisdiction in Lyons was appropriate, as the court’s resolution of the appealable issue meant meant that none of the claims were subject to arbitration. Judge Quattlebaum dissented, contending that § 16’s bar on appeals from orders directing arbitration prohibited the use of pendent appellate jurisdiction.
One twist that Lyons did not mention is § 16’s use of the word “order.” The Supreme Court recently said in B.P. P.L.C. v. Mayor & City Council of Baltimore that an appeal from a remand order under 28 U.S.C § 1447(d) encompasses all issues addressed in that order. I was no fan of that decision. And now it makes me wonder what to do with § 16, which permits appeals from “order[s]” that reject arbitration while prohibiting appeals from “order[s]” favorable to arbitration. If an order does both, BP suggests the absurd conclusion that the entire order is both appealable and not appealable.
Can the courts of appeals separate the “factual” and “legal” arguments in a qualified immunity appeal, ignoring the former and addressing the latter? Should they?
December 7, 2021
When a district court denies qualified immunity at summary judgment, defendants have a right to appeal. But the scope of that appeal is limited. With rare and narrow exceptions, the court of appeals lacks jurisdiction to review the genuineness of any fact disputes—i.e., the facts that (according to the district court) a reasonable jury could find. The court of appeals must instead take the factual basis for the immunity denial as given and address only whether those facts amount to a violation of clearly established law. So courts of appeals must dismiss appeals that challenge the factual basis of an immunity denial and review only those that raise more abstract questions about the existence and clarity of a constitutional violation.
But what should an appellate court do if a defendant both challenges the factual basis for an immunity denial and raises those more abstract questions? The Sixth Circuit recently wrestled with this question in Gillespie v. Miami Township. The defendant in Gillespie repeatedly challenged the factual basis for an immunity denial. The Sixth Circuit dismissed the appeal in its entirety, concluding that these factual challenges were crucial to all of the defendant’s arguments. Judge Bush dissented in part to argue that the court should have separated the defendant’s impermissible factual challenges from his other arguments and addressed the latter.
The disagreement in Gillespie—the extent to which a court of appeals should dismiss factual challenges but then address any residual legal issues—seems to be one about how much leeway to give defendants in qualified-immunity appeals. If a defendant challenges the factual basis for an immunity denial, should the court of appeals pick through the defendant’s brief in search of arguments over which the court might have jurisdiction? Given the frequency of defendants’ challenging the factual basis for immunity denials—and the clarity of the law holding that those challenges are improper—I lean towards dismissing appeals when defendants never accept (for the purposes of appeal) the district court’s version of events. As Gillespie pointed out (and as I have, too), the limits on the scope of qualified-immunity appeals have been the law for over 25 years. Defendants who flout those limits add wholly unnecessary complexity, expense, and delay to civil-rights litigation. If these defendants cannot be bothered to keep their appeals within clear jurisdictional bounds, they should not get the benefit of immediate appellate review.
The Fifth Circuit used Rule 83 to hold that a struck post-judgment motion reset the start of the appeal clock. But it would have been easier to say that striking a post-judgment motion is still “disposing of” that motion under Rule 4(a)(4).
December 6, 2021
After a district court enters its final judgment, civil litigants normally have 30 days to file their notice of appeal. But certain events—including the timely filing of certain post-judgment motions—can reset the appeal clock. When a litigant timely files one of these motions, the time to appeal runs from the district court’s decision disposing of that motion. Normally that means an order granting or (more commonly) denying the motion. But what if the district court strikes the motion due to a procedural defect?
In Al-Qarqani v. Saudi Arabian Oil Co., the Fifth Circuit held that an order striking a timely post-judgment motion resets the appeal clock just as much as an order granting or denying that motion. To hold otherwise—as the Tenth Circuit and some unpublished Fifth Circuit decisions have held—would violate Federal Rule of Civil Procedure 83(a)(2)’s prohibition on parties’ losing rights due to violations of rules of form.
But things could have been simpler. Under Federal Rule of Appellate Procedure 4(a)(4), the time to appeal runs from the district court’s decision “disposing of” the last post-judgment motion. An order striking a motion disposes of that motion and thus should be enough to reset the appeal clock. A contrary rule would require litigants to file protective notices of appeal alongside their post-judgment motions, just in case the district court ends up striking those motions.
The Second Circuit split with the Sixth and Eleventh Circuits in holding that fugitive-disentitlement orders are immediately appealable via the collateral-order doctrine.
August 9, 2021
Sometimes a fugitive defendant’s lawyer will appear in court to challenge the charges against the defendant. The defendant—who has failed to appear, evaded capture, or fled the jurisdiction—is absent. Yet the defendant hopes that the district court will dismiss some or all of the charges before the defendant submits to the court’s jurisdiction. The defendant thereby avoids the risk of confinement and conviction while hoping to obtain a favorable outcome.
District courts can refuse to consider these challenges under what’s called the fugitive-disentitlement doctrine. The doctrine allows a district court to demand the defendant’s presence before ruling on any challenges to an indictment.
In United States v. Bescond, a split Second Circuit held that defendants can immediately appeal from a fugitive-disentitlement order. A majority of the court determined that these orders are appealable via the collateral-order doctrine. Disentitlement orders, the majority said, impose severe harms on defendants and must be reviewed immediately if they are to be reviewed at all. In so holding, the Second Circuit split with the Sixth and Eleventh Circuits, which have dismissed appeals from fugitive-disentitlement orders. Dissenting, Chief Judge Livingston contended that fugitive-disentitlement orders do not involve sufficiently important interests to warrant an immediate appeal.
The Sixth Circuit dismissed an appeal that raised only the Bivens question, as the defendant had not sought qualified immunity.
July 24, 2021
The Bivens question asks whether a damages action exists for a federal official’s unconstitutional conduct. In Wilkie v. Robbins, the Supreme Court held that courts of appeals can address the Bivens question as part of an appeal from the denial of qualified immunity. But the Bivens question standing alone has not been deemed immediately appealable. It must tag along with a qualified-immunity appeal.
In Himmelreich v. Federal Bureau of Prisons, the Sixth Circuit accordingly dismissed a pure Bivens appeal. The defendant in Himmelreich had not sought qualified immunity in the district court. She argued only that no Bivens remedy existed for her alleged conduct and appealed only the district court’s rejection of that argument. With no denial of qualified immunity, the Sixth Circuit lacked jurisdiction over the appeal.
The Sixth Circuit dismissed an appeal when the plaintiff voluntarily dismissed her unresolved claims without prejudice. But the court avoided a finality trap.
July 22, 2021
The past several years have seen the courts of appeals struggling with their jurisdiction when plaintiffs voluntarily dismiss some of their claims without prejudice. Concerned that these plaintiffs are trying to manufacture an interlocutory appeal, the courts have developed a variety of rules on appealability. The Fifth Circuit, for example, requires that the would-be appellant obtain a partial judgment under Federal Rule of Civil Procedure 54(b). The Ninth Circuit requires meaningful district court involvement in the voluntary dismissal. And the Eleventh Circuit simply holds that the without-prejudice voluntary dismissal creates a final, appealable decision.
The Sixth Circuit has now weighed in. In Rowland v. Southern Health Partners, Inc., a divided panel held that the without-prejudice voluntary dismissal of all outstanding claims did not create a final decision. The case involved a fairly blatant attempt at manufacturing an interlocutory appeal, with the plaintiff hoping to reinstate her voluntarily dismissed claims should she succeed on appeal. A majority of the court rejected this effort. Dissenting, Judge Moore would have held that the plaintiff had sufficiently imperiled her voluntarily dismissed claims to create a final decision.
The en banc Eleventh Circuit overruled its precedent allowing appeals from rejections of antitrust’s state-action defense, which is often called Parker immunity.
July 22, 2021
Last summer, the Eleventh Circuit heard an immediate appeal from a district court’s denial of what’s often called “Parker immunity.” This so-called immunity provides that the Sherman Act generally does not cover a state’s anticompetitive conduct. The case—SmileDirectClub, LLC v. Battle—produced three separate opinions on appealability. The majority and dissent argued over the application of the the rule allowing these appeals via the collateral-order doctrine. Judge Jordan concurred to question whether denials of Parker immunity should be immediately appealable at all.
The Eleventh Circuit decided to rehear the case en banc. On Tuesday, the court unanimously overruled its cases permitting these appeals. As the Eleventh Circuit explained, Parker immunity is not a true immunity from suit. It’s instead a defense from liability. So Parker immunity might better be called the Parker defense, or simply antitrust’s state-action defense. And a district court’s rejection of this defense is effectively reviewable in an appeal from a final judgment.
The courts of appeals remain split on this issue, thought I think SmileDirectClub leaves only the Fifth Circuit holding that rejections of the Parker defense are immediately appealable collateral orders. And while the Supreme Court almost resolved this split a few years ago, the Court might not be interested in SmileDirectClub.