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.
When extensive post-judgment proceedings follow litigation, appeals can get tricky. A new Ninth Circuit decision explains the finality considerations in these cases.
July 1, 2021
Extensive post-judgment proceedings sometimes follow litigation. These proceedings might involve efforts to collect on a judgment. Or they might involve a district court’s supervision of a consent decree or remedial injunction. These post-judgment proceedings are considered a separate action for finality purposes. So litigants have a right to appeal from a final decision. That often means appeals come after the decision that marks the end of the post-judgment proceedings. But it’s not always apparent when those proceedings will end. That uncertainty has required a more nuanced approach to appellate jurisdiction.
In Flores v. Garland, the Ninth Circuit reviewed a district court decision enforcing a consent decree on the conditions of immigration detention for minors. Interestingly, the court had initially suggested that it lacked jurisdiction over the case. When denying the government’s request to stay the district court decision pending the appeal, the Ninth Circuit suggested that the decision was not an appealable injunction under 28 U.S.C. § 1292(a)(1). But when the panel reached the merits, it concluded that the district court’s decision was a final one under 28 U.S.C. § 1291. The decision had a significant impact in that it applied the consent decree to a particular group of immigrants. And an immediate appeal might be the government’s only opportunity for review of the district court’s decision.
The Seventh Circuit recognized its caselaw on reviewing Rule 4(a)(5)(A) excusable-neglect determinations is “messy,” and future cases might present some hard questions.
June 29, 2021
Federal Rule of Appellate Procedure 4(a)(5) permits district courts to extend the appeal deadline upon a showing of good cause or excusable neglect. The Seventh Circuit has held that this good-cause/excusable-neglect requirement is jurisdictional. That means the court of appeals must police the good-cause/excusable-neglect requirement on its own initiative, even if the parties do not dispute it. But the Seventh Circuit has also said that review of the district court’s good-cause/excusable-neglect requirement is deferential. So the court of appeals would not closely scrutinize the district court’s decision. Instead, the Seventh Circuit would ask only whether that decision was reasonable.
The combination of a jurisdictional rule and deferential review can be awkward. As much can be seen in yesterday’s decision in Nartley v. Franciscan Health Hospital. There, the Seventh Circuit avoided deciding whether an appellant had shown excusable neglect to warrant an extension of the appeal deadline. The court could do so because the appellant had made clear her intention to appeal before the original deadline expired. But the Seventh Circuit acknowledged that its caselaw in this area was “messy.” And it would eventually have to tackle “hard questions at the outer bounds of what constitutes good cause or excusable neglect.”
The Federal Circuit might have started another game of jurisdictional hot potato over appeals involving Walker Process claims.
June 15, 2021
A few years ago, in Xitronix v. KLA-Tencor, the Fifth and Federal Circuits could not agree on which of them should hear an appeal. The issue was whether a Walker Process claim arose under patent law. If it did, the Federal Circuit would have exclusive jurisdiction; if not, the appeal would go to the appropriate regional circuit. Xitronix ping-ponged between the two courts for years before the Federal Circuit (reluctantly) agreed to hear it. The plaintiff twice sought cert on where the appeal belonged. But the Supreme Court refused to resolve the issue. That left litigants in a bind. Going forward, where should they appeal Walker Process cases?
We might be on the cusp of another Federal Circuit-Fifth Circuit back-and-forth. Last week, in Chandler v. Phoenix Services LLC, the Federal Circuit transferred another Walker Process appeal to the Fifth Circuit. The court thought that it was bound by its first decision in the Xitronix litigation. The Federal Circuit also reiterated that it disagreed with the Fifth Circuit’s refusal to accept the transfer in Xitronix. And the court thought that Chandler was an even stronger case for transferring an appeal to the regional circuit.
Should the Fifth Circuit transfer the case back to the Federal Circuit, we will again see a case of jurisdictional hot potato. As I said when the petitions for cert in Xitronix were pending, we could use a clear rule on where these appeals go.
Dismissals for a plaintiff’s failure to prosecute often preclude application of the merger doctrine. But not when the defendant wants to appeal.
April 16, 2021
Under the merger doctrine, all of a district court’s interlocutory decisions merge into the final judgment. That means all of those decisions can be reviewed in an appeal from a final judgment. But there are exceptions to the merger rule, such as when a party invites a dismissal by ceasing its prosecution of a case. And as the First Circuit explained in this week’s Commonwealth School, Inc. v. Commonwealth Academy Holdings LLC, there are exceptions to those exceptions, too.
The district court in Commonwealth School dismissed the plaintiff’s action for failure to prosecute. The defendant then wanted to appeal one of the district court’s interlocutory rulings. The just-mentioned exception to the merger doctrine—for failure-to-prosecute dismissals—would normally bar that appeal. But the First Circuit concluded that the situation warranted an exception to that exception. There was nothing the defendant could have done to otherwise secure an appeal. Nor was there any risk of manufactured or piecemeal appeals. So the interlocutory decision merged into the final judgment, and the court of appeals had jurisdiction to review it.
The Tenth Circuit tackled a slew of appellate-jurisdiction issues before addressing an attorney’s appeal from conditions on refiling.
April 5, 2021
In Frank v. Crawley Petroleum Corp., the Tenth Circuit addressed just about every appellate-jurisdiction issue that could arise when an attorney appeals to challenge conditions on refiling. The district court in Frank had granted the plaintiff’s voluntary dismissal of a purported class action. But in doing so, the court restricted the plaintiff’s attorney’s ability to refile a similar class action. In the attorney’s appeal, the Tenth Circuit addressed the adequacy of the notice of appeal, the proper party for the appeal, appellate standing, and finality. The court ultimately concluded that none of these issues stood in the way of the court’s addressing the merits. So the attorney could appeal to challenge the restrictions on refiling.
The Ninth Circuit reviewed and reversed an order remanding a case to state court for lack of diversity jurisdiction, as the defendant didn’t have a chance to show the amount in controversy.
April 1, 2021
28 U.S.C. § 1447(d) generally bars review of district court orders remanding a case to state court. But only certain kinds of remands fall under § 1447(d)’s bar. Last week, in Academy of Country Music v. Continental Casualty Co., the Ninth Circuit held that § 1447(d) did not apply when the district court had not given the defendant a chance to establish the amount in controversy for purposes of diversity jurisdiction. The notice of removal itself did not need to prove that amount. And the district court needed to give the defendant an opportunity to show it. So the remand—though ostensibly for a lack of subject-matter jurisdiction—was not a “colorable” jurisdictional remand. The Ninth Circuit could review it despite § 1447(d).
The Fifth Circuit applied Rule 4(a)(4) to hold that a motion for reconsideration was too late to reset the deadline for an appeal under the collateral-order doctrine.
March 31, 2021
Civil litigants normally have 30 days after the district court’s final judgment to file their notice of appeal. But several kinds of motions—like those for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), to alter or amend the judgment under Rule 59, or for relief under Rule 60—can reset that 30-day deadline. Federal Rule of Appellate Procedure 4(a)(4) says that these motions stop the appeal clock, which restarts once the district court disposes of the last motion. To reset that clock, however, most of these motions must be filed within 28 days of the judgment.
The motions listed in Rule 4(a)(4) are largely, if not entirely, post-judgment motions. But in Frew v. Young, the Fifth Circuit applied Rule 4(a)(4) to an appeal under the collateral-order doctrine. The district court denied an award of attorneys’ fees in its supervision of a consent decree. The plaintiffs then moved for reconsideration 30 days later—within the time to file a notice of appeal, but 2 days later than allowed for any of the motions listed in Rule 4(a)(4). The Fifth Circuit said that this was too late to reset the appeal deadline. Whether regarded as a motion under Rule 54(d), 59(e), or 60, the plaintiffs had at most 28 days to file their motion. With no timely motion, the notice of appeal—filed shortly after the district court denied reconsideration—was untimely as to the initial fee decision.
I’m not too sure about Frew. Again, the motions in Rule 4(a)(4) are post-judgment motions. So the rules for those motions—including the time limits on their filing—would not seem to apply to motions for reconsideration filed after an interlocutory decision, even one deemed “final” under the collateral-order doctrine. That means no rule expressly governs how these other motions for reconsideration affect the interlocutory-appeal deadline. What’s left is the longstanding practice of saying that a motion for reconsideration that is filed within the time to appeal resets the deadline for an appeal, interlocutory or otherwise. Granted, that means you get two extra days to seek reconsideration of interlocutory decisions. But the lack of any rules expressly governing these sorts of motions and appeals should weigh in favor of some leniency.
The Sixth Circuit said that a challenge to the factual basis for a qualified-immunity denial was frivolous. Here’s hoping other courts do the same.
March 30, 2021
Fact-based qualified-immunity appeals—that is, appeals from the denial of immunity in which a defendant challenges the factual basis for the immunity denial—are a problem in the courts of appeals. With rare and narrow exceptions, the courts of appeals lack jurisdiction over these appeals. Defendants nevertheless take these appeals with some frequency, adding wholly unnecessary complexity, expense, and delay to civil-rights litigation. The courts of appeals have not done enough to deter these appeals. And I argued in a recent essay that courts should start sanctioning defendants who take them. (You can read a draft of the essay at SSRN; comments are welcome.) Perhaps that would finally deter this abuse of qualified-immunity appeals.
Sanctions have been rare. But in last week’s Howlett v. City of Warren, the Sixth Circuit indicated that they might be appropriate. When the defendants in Howlett appealed from an order that (among other things) denied qualified immunity, a question arose as to the Sixth Circuit’s jurisdiction. In postponing a decision on a motion to dismiss the appeal, the court warned the defendants of the limits on its interlocutory jurisdiction. The defendants nevertheless appealed to challenge the factual basis for district court’s immunity denial. The Sixth Circuit accordingly dismissed the appeal. The court also ordered the defendants to show cause as to why the court should not sanction them.
Defendants shouldn’t need a reminder of this limit on the scope of qualified-immunity appeals. After all, the Supreme Court case establishing this limit is over 25 years old. Hopefully Howlett will dispel any lingering uncertainty and deter some future abuses of qualified-immunity appeals.
The Third Circuit refused to address standing in an arbitration appeal. But other courts say that they must address subject-matter jurisdiction in interlocutory appeals.
March 19, 2021
When a court of appeals hears an interlocutory appeal, must the court ensure that the district court had subject-matter jurisdiction? A Third Circuit decision from earlier this week—O’Hanlon v. Uber Technologies, Inc.—says no. In the course of deciding an appeal from the denial of arbitration, the Third Circuit refused to address whether the plaintiffs had standing. The court could resolve arbitrability without considering standing, so standing was outside of the scope of interlocutory review.
I’m not aware of any decisions to the contrary in the context of arbitration appeals. But some courts of appeals have said that they must address the district court’s subject-matter jurisdiction in the course of deciding other kinds of interlocutory appeals. So it seems that a split exists on this general issue.