The D.C. Circuit split on finality after a dismissal without prejudice, with one judge questioning the distinction between dismissals of complaints and dismissals of actions.
February 11, 2021
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.
The Seventh Circuit suggested (but didn’t hold) that Guerrero-Lasprilla applies in the cancellation-of-removal context.
February 9, 2021
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.
Last week saw a variety of issues with the filing, timing, and content of notices of appeal.
February 9, 2021
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.
Judge Fletcher again offered his unique take on Johnson v. Jones and asked the Supreme Court to overrule it. But I don’t read the case like he does.
January 19, 2021
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.
The courts of appeals have recently split on whether they have jurisdiction to review hardship determinations in cancellation-of-removal cases.
January 12, 2021
The appellate-jurisdiction provisions of immigration law can get complicated. The law generally strips the courts of appeals of jurisdiction to review a variety of issues. But a savings clause adds that they retain jurisdiction to review legal and constitutional issues. And in last year’s Guerrero-Lasprilla v. Barr, the Supreme Court held that appellate jurisdiction exists to review mixed questions—i.e., application of the law to the facts.
Before Guerrero-Lasprilla, most (if not all) courts of appeals held that they lacked jurisdiction to review whether an immigration petitioner had shown the “exceptional and extremely unusual hardship” necessary for cancellation of removal. Since Guerrero-Lasprilla, the courts have split on this issue. Last week, the Sixth Circuit became the second court to hold that it has jurisdiction to review hardship determinations. In doing so, the Sixth Circuit joined the Eleventh Circuit but split with the Third and Tenth.
The Second Circuit effectively held that denied summary-judgment motions are insufficient to preserve issues—even purely legal issues—for appeal.
January 12, 2021
As a general rule, parties cannot appeal an order denying summary judgment after a case proceeds to a full trial. In such a case, the trial record supersedes the summary-judgment record. So any questions about the sufficiency of the evidence at summary judgment become more or less moot; what matters is the sufficiency of the trial evidence. And litigants must raise challenges to the sufficiency of the trial evidence via motions under Federal Rule of Civil Procedure 50. The issue might be better characterized as whether summary-judgment denials preserve issues for appeal; the appellant is challenging the judgment for reasons specified in the summary-judgment motion. The point is that a denied summary-judgment motion does not preserve challenges to the sufficiency of the evidence at trial.
A potential exception to this rule might exist when a summary-judgment motion raises a purely legal issue. That is, the denied summary-judgment motion might be enough to preserve that purely legal issue. In last week’s Omega SA v. 375 Canal, LLC, a panel of the Second Circuit split on this matter. The majority held that a denied motion for summary judgment was not sufficient to preserve a challenge to the applicable legal standard. A partial dissent from Judge Lohier argued to the contrary.
The issue was ultimately irrelevant; the appellant had preserved the same issue by objecting to the jury instructions. But the holding could be important for future litigants who don’t otherwise preserve for appeal issues that they raised in a denied summary-judgment motion.
The Ninth Circuit held that plaintiffs can no longer voluntarily dismiss their claims and manufacture finality after a district court orders arbitration.
January 5, 2021
In 2017’s Microsoft Corp. v. Baker, the Supreme Court held that plaintiffs wanting to bring a class action cannot voluntarily dismiss their individual claims with prejudice and then appeal the denial of class certification. In doing so, the Supreme Court abrogated a line of Ninth Circuit decisions that allowed this voluntary-dismissal tactic. But class actions were not the only context in which the Ninth Circuit had sanctioned these appeals after voluntary dismissals. In 2010’s Omstead v. Dell, Inc., the Ninth Circuit held that plaintiffs could appeal decisions ordering arbitration by voluntarily dismissing their claims with prejudice.
In last week’s Langere v. Verizon Wireless Services, LLC, the Ninth Circuit held that Baker abrogated Omstead. Just like in the class-action context, the the voluntary-dismissal tactic in the arbitration context allowed plaintiffs to circumvent the rules governing appellate jurisdiction, invited protracted litigation and piecemeal appeals, and benefited only plaintiffs. So plaintiffs in the Ninth Circuit can no longer manufacture an appeal from an arbitration order by voluntarily dismissing their claims with prejudice.
When the resolution of a core proceeding in bankruptcy depends on the resolution of a non-core proceeding, the latter can be certified for a direct appeal.
January 5, 2021
Appellate jurisdiction in bankruptcy cases can be tricky. The rules governing finality are different. And there’s an an extra tier of intermediate appellate review, with cases first going to a district court or Bankruptcy Appellate Panel before they can reach the courts of appeals. Litigants can skip this extra tier of review and proceed straight to the courts of appeals if the bankruptcy court certifies a decision for a direct appeal. But only certain kinds of decisions—those entered in “core” bankruptcy proceedings—can be certified.
The Eleventh Circuit recently had to tackle these matters in In re Gateway Radiology Consultants, P.A. The case involved a debtor’s attempts to secure a loan under the Paycheck Protection Program. In a non-core proceeding, the bankruptcy court enjoined the enforcement of regulations that prohibited debtors from obtaining loans under the Program. And in a core proceeding, the court authorized the debtor to incur the additional debt of a loan under the Program. The bankruptcy court then certified both of these decisions for a direct appeal under 28 U.S.C. § 158(d)(2).
The Eleventh Circuit held that certification of both orders was appropriate. Granted, only one—the order authorizing additional debt—was entered in a core proceeding and thus normally eligible for certification under § 158(d)(2). But that decision depended entirely on the injunction entered in the non-core proceeding. And that made the resolution of the non-core proceeding sufficiently final for a certified appeal.
Rule 4(a)(4)(B)(ii) requires a second or amended notice of appeal to challenge the resolution of a post-judgment motion. So no notice meant no jurisdiction.
December 21, 2020
Federal Rule of Appellate Procedure 4(a)(4) governs the effect of certain post-judgment motions on notices of appeal. Rule 4(a)(4)(A) provides that a variety of those motions can delay the start of the normal appeal clock. Rule 4(a)(4)(B)(i) says that a notice of appeal filed before the district court resolves any of those motions relates forward to the district court’s subsequent decision. And Rule 4(a)(4)(B)(ii) adds that when parties file a notice of appeal before the district court resolves a post-judgment motion, they must file a second or amended notice to challenge a the subsequent decision on that motion.
In Bracey v. Lancaster Foods LLC, the Fourth Circuit held that this last requirement—of a second or amended notice after the resolution of a post-judgment motion—is jurisdictional. The plaintiff in that case initially made only one argument in opposition to the defendant’s motion to compel arbitration. When the district court rejected that argument, the plaintiff sought reconsideration and added two new arguments. But he filed only one notice of appeal, and he filed it before the district court denied his motion for reconsideration. The Fourth Circuit deemed the failure to file a second or amended notice a jurisdictional one. It accordingly lacked jurisdiction to address the plaintiff’s second and third arguments against arbitration.
When parties submit consolidated complaints, MDL appeals can get complicated.
December 9, 2020
Actions consolidated in multidistrict litigation (or MDL) normally retain their individual character for finality purposes. So the resolution of a single action in an MDL is final and appealable regardless of whether other actions remain pending.
Things can get complicated, however, if the parties file consolidated pleadings after the actions are joined in the MDL. Those consolidated pleadings can divide up single actions into separate ones. What does that do to MDL appeals? Are the individual actions still individual for finality purposes, such that the resolution of all claims in an original complaint is appealable even if those claims are now spread out across multiple consolidated complaints? Or are actions now measured by the consolidated complaints, such that resolution of all claims in a consolidated complaint is final?
In Bell v. Publix Super Markets, Inc., the Seventh Circuit held that the time to appeal runs from the resolution of all claims in a consolidated complaint so long as that complaint superseded the individual ones. The case involved five consolidated complaints against sellers and manufacturers of powdered Parmesan cheese. The district court dismissed all of the claims in two of the consolidated complaints. The plaintiffs then waited nearly a year—when the district court entered a Rule 54(b) partial judgment on similar claims in the other complaints—to appeal. That was too late, the Seventh Circuit concluded. Those consolidated complaints superseded the original collection of complaints. So the resolution of all claims in a consolidated complaint marked the end of an action. The Seventh Circuit also urged district courts and plaintiffs to be as clear as possible on whether consolidated complaints supersede the originals; confusion over this issue can lead to parties forfeiting their right to appeal.