The en banc Eleventh Circuit will address whether defendants can immediately appeal denials of the state-action antitrust defense.
December 8, 2020
Last summer, in SmileDirectClub, LLC v. Battle, the Eleventh Circuit affirmed an interlocutory denial of a state-action antitrust/Parker defense. The decision produced three different opinions on appellate jurisdiction. The majority applied long-standing Eleventh Circuit law holding that these denials are immediately appealable via the collateral-order doctrine. Dissenting, Judge Tjoflat argued that the order in SmileDirectClub did not conclusively decide the Parker issue, such that the collateral-order doctrine did not apply. And in a concurrence, Judge Jordan suggested that the Eleventh Circuit reexamine its law in this area. For more on the panel decision and the underlying issue of appealing the Parker defense, see my post The Eleventh Circuit Divided Over State-Action Appeals.
Today, the Eleventh Circuit ordered that the case be reheard en banc. As best I can tell from the docket, rehearing is entirely at the court’s behest. The Eleventh Circuit has not (yet?) directed the parties to brief any particular issues. But I have to imagine that the court wants to address the appealability issue (and not anything to do with the substance of the Parker defense). The only question, I think, is the scope of the en banc court’s decision. It could address whether denials of the Parker defense are appealable at all. Or it might address the narrower issue of whether private parties (like the defendants in SmileDirectClub) should be able to appeal.
I’ll be watching this closely. And thanks to Howard Bashman for letting me know about the rehearing grant.
Order Granting Rehearing En Banc, SmileDirectClub, LLC v. Battle, 2020 WL 7214148 (11th Cir. Dec. 8, 2020), available at the Eleventh Circuit and Westlaw.
A Sixth Circuit concurrence would not require finality at the first level of bankruptcy review for the court of appeals to have jurisdiction.
November 24, 2020
Appellate jurisdiction in bankruptcy cases can get complicated. The rules of finality are different in bankruptcy. And bankruptcy involves an extra tier of intermediate appellate review: litigants initially appeal bankruptcy court decisions to either a district court or a Bankruptcy Appellate Panel. Litigants can then seek further review in the courts of appeals.
As a general rule, the decision of the first intermediate appellate court (district court or Bankruptcy Appellate Panel) must itself be final for the court of appeals to have jurisdiction. In In re Wohleber, the Sixth Circuit applied this general rule to hold that a Bankruptcy Appellate Panel decision remanding an action for further proceedings was not final or appealable. Review in the court of appeals would come only after those further proceedings were completed.
Judge Batchelder concurred to offer a different rule for bankruptcy appeals. As Judge Batchelder saw things, only one level of decision—the bankruptcy court’s judgment or the intermediate appellate judgment—needed to be final for the court of appeals to review it.
The Sixth Circuit became the first court of appeals to hold that bankruptcy’s part-statute, part-rule appeal deadline is not jurisdictional.
October 29, 2020
In In re Tennial, the Sixth Circuit held that bankruptcy’s 14-day deadline for filing an appeal is not jurisdictional. In doing so, the court split with every other court of appeals to address this issue. The Supreme Court has drawn a fairly clear line between deadlines found in statutes—which are jurisdictional—and those found only in rules of procedure—which aren’t. Bankruptcy’s appeal deadline is a bit of a hybrid. It comes partially from a statute—28 U.S.C. § 158(c)(2)—and partially from a rule—Federal Rule of Bankruptcy Procedure 8002. The statutory part has led other courts to conclude that the 14-day deadline is jurisdictional. But the Sixth Circuit explained that the statute merely says that appeals must be filed within a time specified by the Bankruptcy Rules. The actual 14-day deadline comes only from those rules. The court accordingly concluded that the bankruptcy appeal deadline is a non-jurisdictional claim-processing rule.
If a district court dismisses a case with leave to refile within a certain amount of time, when—if ever—does that decision become final?
October 20, 2020
District courts sometimes dismiss a case with leave to refile within a certain amount of time. The courts of appeals have split on when—if ever—these dismissals become final and appealable. Last week, in North American Butterfly Association v. Wolf, the D.C. Circuit weighed in on the issue. In a split decision, the court held that a plaintiff can appeal after the time to amend expires. At that time, the dismissal is sufficiently final for appeal purposes, and no further district court action is required. Dissenting, Judge Millett contended that a dismissal with a set time to amend is not final or appealable until the district court enters a subsequent order dismissing the claims with prejudice. So an appeal before that with-prejudice dismissal is premature.
Sometimes a “judgment” is not really a judgment, like when the district court has not yet issued a declaration of the parties’ rights.
September 27, 2020
The Federal Rules of Civil Procedure define a “judgment” as any decree or order from which an appeal lies. But just because a district court calls something a “judgment” does not mean that the court has entered a final, appealable decision. (And the rule that anything appealable is a “judgment” is not really followed.) The First Circuit explained as much this week in WM Capital Partners 53, LLC v. Barreras. In a declaratory-judgment action, the district court granted summary judgment for the plaintiff and asked the plaintiff to propose language for a declaration. But before the plaintiff could do so, the district court entered a judgment in favor of the plaintiff. The defendant then appealed. But, the First Circuit explained, there was no appealable judgment—despite a document purporting to be a judgment—because the district court had not declared the parties’ rights.
This sort of thing has to be maddening for litigants. Few lawyers could resist filing a notice of appeal once the district court enters something called a judgment. Failure to do so risks losing your right to appeal. But if the judgment is not actually a judgment, this attempt at appealing can needlessly delay resolution of the action. We need to be thinking of how to better define and identify the point at which the time to appeal begins running.
The Fifth Circuit had to “eat a bit of jurisdictional crow” and replace its opinion on the jurisdictionality of the civil-appeal deadline.
September 23, 2020
A few weeks ago, in Edwards v. 4JLJ, L.L.C., the Fifth Circuit held that an appellee could forfeit an objection to the timeliness of a civil appeal. That struck me as odd. Appeal deadlines that come from statutes are jurisdictional. The 30-day deadline for civil appeals comes from a statute: 28 U.S.C. § 2107(a). (Federal Rule of Appellate Procedure 4(a)(1)(A) repeats that deadline.) And parties cannot waive or forfeit jurisdictional deadlines.
So how did the Fifth Circuit hold that the appellee in Edwards forfeited any objection to a late notice? I asked this question a few weeks ago, and I’ve kept coming back to it since.
Now we have an answer. On Monday, the Fifth Circuit withdrew its earlier opinion and replaced it with one dismissing the appeal for lack of jurisdiction. It appears that everyone had overlooked § 2107(a). So although the appellee in Edwards had not adequately raised the timeliness issue, the deadline was jurisdictional, and the court still had to enforce it. Indeed, the court had an independent duty to assure itself of its jurisdiction and thus had to—in its own words—“eat a bit of jurisdictional crow” for overlooking § 2107(a).
Defendants far too frequently take improper, fact-based qualified-immunity appeals. If immunity sticks around, these appeals should become discretionary.
September 22, 2020
With rare exceptions, defendants appealing from the denial of qualified immunity at summary judgment can dispute only the materiality of any fact disputes. These defendants cannot argue that the district court erred in concluding that fact disputes were genuine—that is, they cannot dispute the district court’s determination of what a reasonable jury could find. But defendants regularly flout this limit on the scope of interlocutory qualified-immunity appeals. They appeal from the denial of immunity to argue only that the district court erred in determining what a reasonable jury could find. The appellate courts eventually dismiss these improper appeals. But at that point, the damage is done. District court often stay proceedings pending the appeal, which can take months or years. These improper appeals thus add wholly unnecessary difficulty, expense, and delay to civil-rights litigation.
I regularly mention these improper appeals as part of my weekly roundup. But last week saw enough examples to warrant its own post. These examples illustrate one of the ways in which the special appellate procedures that accompany qualified immunity make civil-rights litigation so difficult. It’s already hard to win a civil-rights suit due to the substantive defense of qualified immunity. The special appellate rules that come with qualified immunity add unnecessary procedural hurdles to that suit. Should qualified immunity stick around in its current or an altered form, the appeals should become discretionary.
The Sixth Circuit held that failure to file a Rule 50(a) motion for judgment as a matter of law forfeits the right to renew that motion via Rule 50(b).
September 15, 2020
In Hanover American Insurance Co. v. Tattooed Millionaire Entertainment, LLC, the Sixth Circuit held that failure to file a pre-verdict Rule 50(a) motion for judgment as a matter of law forfeits the right to renew that motion via Rule 50(b). At the close of evidence, the plaintiff in Hanover Insurance moved for judgment as a matter of law on claims involving only two of the three defendants. The third defendant prevailed at trial. The plaintiff then sought—and obtained—judgment as a matter of law on the claims involving that third defendant.
The Sixth Circuit reversed. It initially held that the district court’s decision was final and appealable despite an outstanding issue of costs. The court went on to hold that there could be no Rule 50(b) motion without a Rule 50(a) motion. So failure to file a Rule 50(a) motion on the claims involving the prevailing defendant forfeited any right to file a Rule 50(b) motion. Further, the district court’s ambiguous statements on the need to file a Rule 50(a) motion did not excuse the plaintiff’s failure to file. Nor did those statements permit treating the plaintiff as if it had actually moved under Rule 50(a).
Four years ago, the Second Circuit deemed two appeals from consolidated proceedings premature. After Hall, last week’s appeals in those same cases were too late.
September 14, 2020
In 2018’s Hall v. Hall, the Supreme Court held that actions consolidated with other actions retain their independent character. So the resolution of one action is final and appealable, regardless of whether the other actions remain pending. Hall left some unanswered questions. Among them was what would become of pre-Hall judgments that were not immediately appealable under then-applicable circuit law. Before Hall, several circuits held that a judgment in a single action was not final until all consolidated actions were resolved. Hall seemed to make those judgments final and appealable on the day they were entered. And that sudden finality could make any post-Hall attempts to appeal untimely.
Last week saw the first appeal (to my knowledge) to involve this question. In Haynes v. World Wrestling Entertainment, Inc., the Second Circuit dismissed as untimely most of the appeals from five actions that had been consolidated in the district court. Before Hall—and relying on circuit law that Hall later abrogated—the Second Circuit had dismissed as premature appeals from two of those actions. The plaintiffs then waited until all five actions were resolved before again trying to appeal. The intervening decision in Hall meant that the appeals in four of those five actions were too late.
Notably, the Second Circuit did not definitively resolve how to deal with appeals from pre-Hall judgments. The decision is unpublished and thus non-precedential. And the plaintiffs appear to have forfeited any argument that Hall didn’t require the dismissal of the appeals. So we’ll have to wait for a definitive answer on how parties can appeal pre-Hall judgments, if they can at all.
A recent First Circuit decision adds to the list of circuits with inconsistent law on when subsequent events save a premature notice of appeal.
August 15, 2020
In Donahue v. Federal National Mortgage Association, the First Circuit held that the subsequent dismissal of a remaining defendant did not save a premature notice of appeal. The plaintiff in Donahue filed her notice after the district court had dismissed her claims against one of two defendants. So the notice of appeal was premature and technically ineffective. The plaintiff then voluntarily dismissed her claims against the other defendant. But she did not file a new notice of appeal. With no proper notice of appeal, the First Circuit concluded that it lacked jurisdiction.
The outcome would have been different in most courts. Indeed, until yesterday’s decision, I would have thought that the outcome would have been different in Donahue. The courts of appeals have split on when exactly subsequent events save a premature notices of appeal. And several circuits have internally inconsistent decisions. We can now add the First Circuit to that list. In at least two prior decisions, the First Circuit has held that the resolution of all outstanding claims saved a notice of appeal filed after some (but not all) of the claims had been resolved. I don’t see how Donahue can be reconciled with those decisions.
The cumulative-finality mess thus continues to build. Rehearing in Donahue might clean things up in the First Circuit. But the state of affairs across the circuits has gotten pretty bad. And the way most courts approach cumulative finality can deprive litigants of any chance at appellate review due to a relatively minor procedural mistake. It’s time for the Supreme Court or Rules Committee to fix things.