Posts in category “Appellate Decisions”
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.
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).
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.
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).
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.
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.
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 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.
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.
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.
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