The Eleventh Circuit allows immediate appeals from the denial of state-action immunity. Judge Jordan wants to reexamine this rule. And he might not be alone.
August 14, 2020
Update, December 8, 2020: The Eleventh Circuit has ordered rehearing en banc in this case. See Rehearing En Banc Granted in State-Action Antitrust Appeal for more.
In SmileDirectClub, LLC v. Battle, the Eleventh Circuit heard an interlocutory appeal from the denial of state-action (or “Parker”) immunity. A circuit split exists on whether state-action appeals are available under the collateral-order doctrine. The Eleventh Circuit has held that they are.
The decision nevertheless produced three opinions with varying views on appealability. The majority opinion and Judge Tjoflat’s dissent debated the application of the rule for state-action appeals—specifically, whether the district court in SmileDirectClub had conclusively denied immunity. Concurring, Judge Jordan suggested that the Eleventh Circuit reexamine its law in this area. And he’s not the only one potentially interested in the issue. The Supreme Court was set to resolve this circuit split a few years ago in Salt River Project v. Tesla Energy Operations. But the case settled before argument. SmileDirectClub ultimately rejected the defendant’s request for state-action immunity, so the appellate-jurisdiction issue is not dispositive. Still, we might not have seen the last word on jurisdiction in this appeal.
The Bivens question can tag along with a qualified-immunity appeal. But what if there are no grounds for the qualified-immunity appeal?
August 9, 2020
The Bivens question asks whether an implied constitutional remedy exists for a federal official’s unconstitutional conduct. The Supreme Court has held that this question is within the scope of a qualified-immunity appeal. That is, in an interlocutory appeal from the denial of qualified immunity, the court of appeals can address whether a Bivens remedy exists. But the Bivens question standing alone has not been deemed immediately appealable. It must tag along with an appeal from the denial of qualified immunity.
What if there are no grounds for a qualified-immunity appeal? The Third Circuit seemed to overlook this issue in last week’s Mack v. Yost. In what looked like a qualified-immunity appeal, the Third Circuit held that no Bivens remedy existed for First Amendment retaliation that occurred in a federal prison. But a few years ago, in a prior appeal in the same case, the Third Circuit held that the plaintiff had pleaded a violation of clearly established law and rejected the defendants’ request for immunity. Nothing seems to have changed since that prior decision that would have affected immunity. So it looks like there were no new grounds for seeking immunity. The Third Circuit nevertheless treated the case as a normal qualified-immunity appeal, concluded that no Bivens remedy existed, and reversed. Mack thus looks like a pure interlocutory Bivens appeal.
The Ninth Circuit held that an order granting class-wide arbitration—and rejecting a request for individual arbitration—was not appealable.
July 27, 2020
In Hermosillo v. Davey Tree Surgery Co., a divided Ninth Circuit held that it lacked jurisdiction to review a decision ordering class-wide arbitration over a request for individual arbitration. Under the Federal Arbitration Act, district court decisions ordering arbitration generally are not appealable. Decisions denying requests for arbitration generally are. Hermosillo addressed appellate jurisdiction when a district court orders arbitration on terms other than those requested by the party seeking arbitration. Some courts have held that these sorts of orders are not appealable; arbitration is not effectively denied just because a party did not get exactly what it wanted. But the Supreme Court’s recent decision in Lamps Plus, Inc. v. Varela created new grounds to argue that arbitration is effectively denied when the district court orders class-wide (rather than individual) arbitration. Hermosillo rejected this argument, albeit in an unpublished opinion. We’ll likely see more cases raising this issue soon.
The Eleventh Circuit held that a decision was final and appealable despite the voluntary dismissal of all remaining claims without prejudice.
July 17, 2020
In Corley v. Long-Lewis, Inc., the Eleventh Circuit held that a district court’s resolution of all claims was final and appealable despite the plaintiffs’ voluntarily dismissing some of those claims without prejudice. In doing so, the court had to wade through its conflicting lines of authority in this area—one holding that the resolution of all claims is final despite the voluntary dismissal, the other holding that it’s not. The conflicting cases could not be reconciled. The court accordingly had to go with the older precedent. And that precedent held that “an order granting a motion to voluntarily dismiss the remainder of a complaint under Rule 41(a)(2) ‘qualifies as a final judgment for purposes of appeal.’” The court also addressed its territorial jurisdiction to review the decision of an MDL transferee court and appellate standing after some claims are voluntarily dismissed. And Chief Judge William Pryor—who authored the majority opinion—wrote a separate concurrence discussing the messy state of the law governing governing appeals after voluntary dismissals and offering alternatives to avoid that mess.
The Fourth Circuit held that failing to raise the existence of a Bivens action in the district court forfeits the issue for a qualified-immunity appeal.
July 15, 2020
In Hicks v. Ferreya, the Fourth Circuit refused to address the Bivens question in an interlocutory qualified-immunity appeal. The Bivens question—which asks whether an implied constitutional cause of action exists for a federal official’s alleged violation of the plaintiff’s rights—is normally appealable alongside the denial of qualified immunity. But the defendants in Hicks failed to raise the issue in the district court. So in their interlocutory qualified-immunity appeal, the Fourth Circuit concluded that the issue had been forfeited. In the course of doing so, the Fourth Circuit rejected the argument that the Bivens issue (like jurisdictional issues) could not be waived or forfeited. The court also dismissed the defendants’ fact-based challenges to the denial of qualified immunity.
The D.C. Circuit joined the Seventh Circuit in holding that “recertifying” an order for interlocutory appeal does not restart § 1292(b)’s ten-day deadline.
July 14, 2020
In Strange v. Islamic Republic of Iran, the D.C. Circuit held that district courts cannot “recertify” an order and thereby restart the ten-day window for seeking permission to appeal under 28 U.S.C. § 1292(b). The district court in Strange had rejected the plaintiffs’ efforts to serve process on former President of Afghanistan Hamid Karzai via Twitter. The district court also certified that decision for an immediate appeal. But the plaintiffs missed the deadline for filing their petition to appeal. So the district court recertified its decision and the plaintiffs filed a timely petition. The D.C. Circuit held that this practice of recertifying orders was nothing more than an improper attempt to extend the deadline for seeking permission to appeal under § 1292(b). That deadline is jurisdictional, and courts cannot extend it. So the recertification was ineffective, and the petition to appeal was late.
The D.C. Circuit thus joined the Seventh Circuit in rejecting the tactic of restarting the § 1292(b) clock by recertifying an order. Until recently, several other courts (and Federal Practice & Procedure) have sanctioned this tactic. But courts have had to reexamine the issue in light of the Supreme Court’s recent efforts to delineate which rules are (and aren’t) jurisdictional. For now, a circuit split exists. But other circuits will probably have to wrestle with this issue soon.
The Tenth Circuit held that when an exception to § 1447(d) applies, the court can review only the expressly excepted grounds for removal.
July 10, 2020
Another court of appeals has weighed in on the scope of remand appeals. 28 U.S.C. § 1447(d) generally prohibits appellate review of orders remanding an action to state court. But it includes two express exceptions: when an action is removed under the federal-officer or civil-rights removal statutes. Recent climate-change litigation has required the courts of appeals to address the scope of remand appeals when one of those exceptions applies. And they’ve held that the scope of appellate review includes only the exceptions; the court of appeals cannot address any other proffered ground for removal.
This week, the Tenth Circuit reached the same conclusion in its own climate-change appeal. In Board of County Commissioners v. Suncor Energy (U.S.A.) Inc., the court held that it could review only whether removal was proper under the federal-officer removal statute and not any other ground for removal. The opinion is probably the most thorough (and, in my opinion, convincing) recent analysis of the issue. The court walked through § 1447(d)’s text and context, similar statutes, cases interpreting those statutes, the presumption against jurisdiction, practical considerations, and § 1447(d)’s underlying purpose. But like the other recent decisions on the scope of remand appeals, we should expect a petition for rehearing en banc or cert (or both) in the near future.
The Fifth Circuit again demanded that parties obtain a Rule 54(b) certification when a claim has been dismissed without prejudice.
July 9, 2020
The Fifth Circuit’s finality trap has another victim. In Firefighters’ Retirement System v. Citco Group Ltd., the court held that the district court had not issued a final, appealable decision when claims against one defendant had been dismissed without prejudice. To appeal, the plaintiffs needed to obtain a certification under Federal Rule of Civil Procedure 54(b) (and will presumably be allowed to do so).
Firefighters’ Retirement is thus another illustration of the Fifth Circuit’s foolish finality trap. Unlike other recent finality trap cases, the dismissal without prejudice in Firefighters’ Retirement came between with-prejudice dismissals. But the plaintiffs were trying to appeal a district court decision that came before the dismissal without prejudice. And that was enough to preclude finality. The Fifth Circuit declined to address what would happen if claims were dismissed without prejudice before the decision that a party sought to appeal.
If qualified immunity sticks around in its present or an altered form, the rules governing qualified-immunity appeals rules will need to change.
July 2, 2020
Qualified immunity makes it especially—and unjustifiably—difficult for plaintiffs to prevail in civil-rights suits. And the special appellate procedures that accompany qualified immunity ensure that litigating those suits will be complicated, expensive, and time consuming. Defendants have a right to appeal from the denial of immunity. That right—standing alone—is an immense procedural hurdle for plaintiffs. It gets worse; courts have steadily expanded the scope and availability of these appeals in ways that can grind civil-rights litigation to a halt.
Efforts are afoot to reform or abolish qualified immunity. And for good reason. But the prospects for change are uncertain. So long as qualified immunity remains in its present or an altered form, there is another tactic worth considering: going after the appeals. In a series of recent posts, I have explored the doctrinal and practical problems of qualified-immunity appeals. Here, I bring those posts and other sources together to suggest that reforming qualified-immunity appeals should at least be considered alongside efforts at reforming or abolishing the substantive defense. I don’t know what the best strategy for attacking qualified immunity is. But if qualified immunity sticks around, we need to fix the appeals.
A split Seventh Circuit held that a motion to reconsider First Step Act relief extends the time for appealing.
June 25, 2020
In United States v. Rutherford, a divided Seventh Circuit held that a motion to reconsider the denial of First Step Act relief extended the time for filing a notice of appeal. The majority concluded that these motions were common law motions to reconsider. And common law motions to reconsider in criminal cases extend the time for appealing; the motion makes the judgment non-final, and the judgment becomes final only after the district court resolves the motion. Dissenting, Judge Barrett contended that the motion for reconsideration was one under Federal Rule of Criminal Procedure 35. And Rule 35 motions to not extend the time for appealing.
Judge Barrett ended her dissent by pointing out that the court’s decision was non-precedential. So the Seventh Circuit might have to reckon with this issue again.