Posts in category “Appellate Decisions”
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.
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.
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).
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.
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.
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.
Many discussions of federal appellate jurisdiction focus on when litigants can appeal before the end of district court proceedings. But traditional end-of-proceedings appeals have their own issues, including uncertainty over when the time to file them begins to run. That uncertainty can lead to parties’ losing their right to appeal. So efforts to reform appellate jurisdiction cannot look only at interlocutory appeals. The traditional end-of-proceedings appeal needs work, too.
As much can be seen in the D.C. Circuit’s decision from earlier this week in Wilcox v. Georgetown University. The district court in Wilcox dismissed the plaintiffs’ complaint without prejudice and, several months later, denied leave to amend. The D.C. Circuit looked for signs that the district court intended for the initial dismissal to be final. Concluding that the district court intended to dismiss only the complaint—not the entire action—the majority held that the decision did not become final until the district court denied leave to amend. Dissenting, Judge Randolph contended that the case was over at the initial dismissal. And of particular interest, he rejected the longstanding distinction between dismissing a complaint and dismissing an entire action.
Immigration law generally strips the courts of appeals of jurisdiction to review a variety of decisions made in immigration proceedings. A savings clause adds that they retain jurisdiction to review legal and constitutional issues. Until recently, most (if not all) courts of appeals broadly read the jurisdiction-stripping provisions to bar appellate review in a variety of contexts. But in last year’s Guerrero-Lasprilla v. Barr, the Supreme Court held that the savings clause preserves jurisdiction to review mixed questions of law and fact.
Guerrero-Lasprilla has required many courts of appeals to reexamine their earlier caselaw. Last week, in Martinez-Baez v. Wilkinson, the Seventh Circuit discussed the matter at some length and seemed open to holding that Guerrero-Lasprilla applied in cancellation-of-removal context. Although the cancellation-of-removal decision is discretionary, mixed questions of law and fact can underly that decision. So a holding that Guerrero-Lasprilla applies just as much in the cancellation-of-removal context would allow more thorough review of cancellation denials.
The court ultimately did not have to address the question, as it could grant the petition for review on other grounds. But it’s an issue on which the circuits appear to have already split. We’ll have to wait and see what the Seventh Circuit ultimately holds when the issue is squarely presented.
Most appeals begin with the filing of a notice of appeal. Those notices have both content and timing requirements. Under Federal Rule of Appellate Procedure 3(c), a notice must specify three things: the appealing parties, the appealed order or judgment, and the court to which the party is appealing. As for timing, Rule 4(a)(1) requires that most civil appeals be filed within 30 days of the appealed order or judgment. Some of these requirements are quite strict. A late notice of appeal, for example, forfeits the right to appeal, though various means exist to extend or restart the appeal deadline. The failure to meet other requirements can be excused, and Rule 3(c)(4) says that “[a]n appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice.”
Last week, several courts of appeals addressed issues with a notice of appeal’s filing, timing, or content. As for filing, the Sixth Circuit held that a paper notice of appeal was sufficient, even though local rules required electronic filing. In contrast, the Seventh Circuit held that an emailed notice was not effectively filed. Timing issues arose in both the Eleventh and Third Circuits. The Eleventh Circuit held that a pro se, post-judgment motion from a represented party could delay the start of the appeal clock. And the Third Circuit held that a premature notices of appeal related forward to the district court’s final judgment. Finally, as for content, the Eleventh Circuit reminded litigants that designating the district court’s final judgment is sufficient to appeal all interlocutory decisions that merge into that judgment.
Let’s start with some alternative ways of filing a notice of appeal.
Jurisdiction over appeals from the denial of qualified immunity can be complex. In Mitchell v. Forsyth, the Supreme Court held that defendants can immediately appeal these denials via the collateral-order doctrine. Ten years later, in Johnson v. Jones, the Supreme Court limited that right to appeal when the district court denies immunity at the summary-judgment stage. The interplay of these two cases is not entirely intuitive. And some of the Supreme Court’s recent decisions—particularly Scott v. Harris—have raised questions about Johnson’s meaning and continued vitality. So confusion over Johnson occasionally crops up in the courts of appeals. And with confusion come efforts to make sense of the law in this area.
Judge William A. Fletcher of the Ninth Circuit has twice tried to reconcile the Supreme Court’s caselaw in this area: about a year ago, in a concurring opinion in Tuuamalemalo v. Greene; and again last week, in a dissenting opinion in Estate of Anderson v. Marsh. He reads Johnson to permit appeals only when the defendant does not dispute the the facts in the district court. And that rule, he explains, is an odd one—most denials of qualified immunity involve disputes over the facts, so Johnson would seem to bar most appeals from these denials. Judge Fletcher has accordingly called for the Supreme Court to revisit—and overrule—Johnson.
As I said last January when talking about Judge Fletcher’s opinion in Tuuamalemalo, I disagree with his reading of Johnson. He reads Johnson to make appellate jurisdiction turn on what the defendant argues in the district court. But Johnson makes appellate jurisdiction turn on what the defendant argues in the appeal. With rare exceptions, Johnson prohibits challenges to the factual basis of a district court’s immunity denial. So on appeal, the defendant cannot dispute the factual basis for the district court’s denial of qualified immunity. But defendants are free to do so in the district court without losing their opportunity to appeal.
Johnson’s prohibition on fact-based qualified-immunity appeals is a sound rule. It exists to streamline these appeals and focus appellate courts on the core qualified-immunity issues. So Johnson should not be overruled. If anything, its rule should should be reiterated and strengthened.
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