The D.C. Circuit applied the administrative-remand rule when, despite the remand, the case was effectively over in both the district court and the agency.
June 18, 2020
In American Great Lakes Ports Association v. Schultz, the D.C. Circuit held that an order remanding a dispute to an agency was final and appealable. Administrative remands are normally not final. But sometimes they are. American Great Lakes illustrates one exception to the general rule that applies when when, despite the remand, the dispute is effectively over in the district court and the agency. The dispute in American Great Lakes was over, and no further proceedings before the agency were ordered or likely. The D.C. Circuit accordingly held that it had appellate jurisdiction.
Qualified-immunity appeals are a problem in and of themselves. But courts have steadily expanded these appeals in ways that make them even worse.
June 9, 2020
In 1985’s Mitchell v. Forsyth, the Supreme Court held that government officials can immediately appeal from the denial of qualified immunity. This right to appeal impedes the swift resolution of many civil-rights actions, and it has been rightly criticized. But the right to appeal isn’t the only problem. In the years since Mitchell, courts have steadily expanded the scope and availability of qualified-immunity appeals. And these special appellate-procedure rules for qualified immunity have added unnecessary and unjustified difficulty, expense, and delay to civil-rights litigation.
This post summarizes some of ways in which courts have expanded qualified-immunity appeals.
Three recent Sixth Circuit decisions address § 3742 and denials of First Step Act relief. Only the unpublished one held that § 3742 doesn’t apply.
June 1, 2020
The Sixth Circuit has recently spent some time addressing 18 U.S.C. § 3742. That statute specifies the situations in which appellate courts can grant relief in sentencing appeals, such as when a sentence is “imposed in violation of law.” In three decisions last week, the Sixth Circuit touched on whether § 3742 applies to the review of denials of sentence modifications under the First Step Act (and thus provides grounds for granting relief in those appeals). In United States v. Smithers, the court avoided answering the question because the government had forfeited any argument that the statute did not apply. In United States v. Richardson, the Sixth Circuit assumed that § 3742 applied to denials of First Step Act relief, which the court could do because it was affirming the district court’s decision on the merits. Concurring in Richardson, Judge Kethledge contended that the statute did not apply to denials of sentencing modifications at all; it applies only to new sentences. And in the unpublished (and thus non-precedential) United States v. Hunnicutt, the Sixth Circuit held that a defendant could not appeal the denial of First Step Act relief because § 3742 does not apply to those denials.
The Ninth Circuit expressed some openness to the other side of the split on the scope of remand appeals. But it stood by an earlier decision.
May 28, 2020
In County of San Mateo v. Chevron Corp., the Ninth Circuit held that energy companies could not remove several climate-change suits to federal court via 28 U.S.C. § 1442, the federal-officer removal statute. The court also reaffirmed the narrow scope of remand appeals under 28 U.S.C. § 1447(d). The Ninth Circuit held in 2006 that the scope of these appeals is limited to the express exceptions in § 1447(d); the court lacks jurisdiction to review any other proffered grounds for removal. San Mateo saw no reason to deviate from that holding.
The Fourth Circuit recently reached the same conclusion as San Mateo. But a circuit split exists on this issue. The San Mateo opinion acknowledged this split and expressed some receptiveness to the other side. And a recent cert petition from the Fourth Circuit’s decision asks the Supreme Court to resolve the matter.
The Fourth Circuit held that when the dismissal of some claims necessarily resolves all other claims, parties can appeal by voluntarily dismissing those remaining claims.
May 27, 2020
In Affinity Living Group, LLC v. StarStone Specialty Insurance Co., a divided Fourth Circuit held that it had appellate jurisdiction despite the parties’ stipulating to dismiss some claims without prejudice. The district court had issued a decision that necessarily—though not technically—resolved all of the claims, including the voluntarily dismissed ones. The decision dismissed two of the plaintiff’s claims. And its reasoning necessarily decided the two others. That is, the district court’s dismissal of the two claims “rendered legally deficient” the remaining claims. So even though the district court never formally dismissed the remaining claims, their dismissal was inevitable. The parties thus saved everyone some time by stipulating to their dismissal.
This is what Microsoft Corp. v. Baker should have said. Baker rightly held that plaintiffs in a class action cannot voluntarily dismiss their individual claims and then appeal the earlier denial of class certification. Although the denial of class certification might have made pursuing those individual claims economically irrational, it did not necessarily resolve them. The plaintiffs could have kept going. That’s why they shouldn’t have been able to manufacture an interlocutory appeal by voluntarily dismissing their claims. But when an interlocutory decision means that there’s nowhere else for plaintiffs to go—that their claims, though technically pending, are legally done—there’s no reason to not allow an appeal via voluntary dismissal.
The Fourth Circuit clarified its law on appealing dismissals without prejudice and rejected 2015’s Goode v. Central Virginia Legal Aid Society, Inc.
May 26, 2020
In Bing v. Brivo Systems, LLC, the Fourth Circuit clarified its law governing appeals from dismissals without prejudice due to insufficient pleadings. In a series of decisions, that court had laid out a framework for when those dismissals are final and appealable. Relevant considerations included whether the defects in a complaint could be cured, whether the district court dismissed the complaint or the entire action, and whether the plaintiff decided to stand on the dismissed complaint. But a more recent decision—Goode v. Central Virginia Legal Aid Society, Inc.—had applied a more restrictive approach to appeals involving pleading deficiencies.
Bing required the Fourth Circuit to clarify the law governing these appeals. The court ultimately held that Goode was inconsistent with earlier Fourth Circuit decisions and must be disregarded. In a footnote, the court also pointed to an easier path: deeming an appeal from these dismissals an implicit waiver of the right to amend. Doing so would avoid the finality problems that dismissals without prejudice can create, would protect plaintiffs’ right to appeal, and would create certainty over appellate jurisdiction.
Two circuits recently split on reviewing whether the Board of Immigration Appeals deviated from its settled course of adjudication in denying sua sponte reopening.
May 26, 2020
Jurisdiction in immigration appeals is often complicated. A new wrinkle has arisen in the past two weeks regarding appellate review of decisions denying sua sponte reopening. The Board of Immigration Appeals can reopen removal proceedings in response to a motion or sua sponte. The term sua sponte is somewhat misleading, however, as immigration petitioners often ask the Board to exercise this reopening power. The courts of appeals have held that they generally lack jurisdiction to review the Board’s denial of sua sponte reopening. But most courts of appeals have created an exception to this general rule when a legal or constitutional error underlies the Board’s decision.
In the past two weeks, two courts of appeals have added further nuance to the review of sua sponte reopening. In two cases, immigration petitioners argued that the Board abused its discretion in denying sua sponte reopening because the Board deviated from a settled course of adjudication. That is, the Board’s denial of sua sponte reopening was inconsistent with the Board’s decisions in prior, similar cases. In Lona v. Barr, the Ninth Circuit held that it lacked appellate jurisdiction and could not address this settled-course argument. Less than a week later, in Thompson v. Barr, the First Circuit held it could. At least one other circuit—the Third—has also held that it could review settled-course arguments. A split has accordingly solidified on this issue.
The Second Circuit recently joined other circuits in misreading Mohawk to cut back on parties’ ability to take Perlman appeals.
May 21, 2020
When a court orders discovery over a claim of privilege, privilege claimants traditionally had two semi-reliable avenues for immediate appellate review. If the order directed the privilege claimant to disclose something, the claimant could appeal via the contempt route. The claimant could disobey, be held in contempt, immediately appeal the contempt, and—in that appeal—obtain review of the underlying discovery order. And if the order was directed to someone else—for example, an order directing a client’s attorney to testify before a grand jury—the privilege claimant could take what’s called a Perlman appeal. Named after the Supreme Court’s 1918 decision in Perlman v. United States, the Perlman appeal allows privilege claimants to appeal discovery orders directed to third parties.
The Perlman route has become less reliable over the last ten years. Several courts of appeals have read the Supreme Court’s 2009 decision in Mohawk Industries, Inc. v. Carpenter to mean that only non-parties to the litigation can take Perlman appeals. Parties can’t. Two weeks ago, in Rosner v. United States, the Second Circuit joined this doctrinal trend.
I wrote an entire article on this issue several years ago, creatively titled Perlman Appeals After Mohawk. In it I argued that courts were mistaken in limiting the availability of Perlman appeals. These courts have overlooked the purpose of Perlman appeals—protecting against the disclosure of confidential information—and read too much into Mohawk. In doing so, they’ve deprived parties of their reliable chance to seek immediate appellate review of certain privilege issues.
Another plaintiff has fallen into the Fifth Circuit’s finality trap, and it makes me wonder whether the en banc court actually made things worse.
May 15, 2020
Last week, in Williams v. Taylor Seidenbach, Inc., the Fifth Circuit failed to disarm its finality trap. This week, in CBX Resources, L.L.C. v. ACE American Insurance Co., a panel of the Fifth Circuit watched as another party fell into that trap. And unlike the plaintiffs in Williams, the plaintiff in CBX Resources had not obtained the post-proceedings Rule 54(b) certification that Williams held would cure any jurisdictional defects. Presumably the CBX Resources plaintiff will go through the rigmarole of doing so and eventually be back before the Fifth Circuit.
CBX Resources has me wondering if the Fifth Circuit’s Rule 54(b) approach is not only unnecessary, but also makes things worse. The approach seems to encourage the very thing that the court wanted to avoid: litigants’ manufacturing interlocutory appeals by voluntarily dismissing all remaining claims and then refiling them.
Rather than disarm the finality trap, the Fifth Circuit found a way to avoid it: an odd, unintuitive, and unnecessary use of Rule 54(b).
May 9, 2020
When plaintiffs lose on some of their claims and then voluntarily dismiss the rest, they risk falling into the finality trap. If the remaining claims were voluntarily dismissed without prejudice, most courts of appeals will hold that the district court has not issued a final, appealable decision under 28 U.S.C. § 1291. This general rule becomes a trap when courts don’t let plaintiffs fix the finality problem. In Williams v. Taylor Seidenbach, Inc., the en banc Fifth Circuit found one way around the trap: a Rule 54(b) certification of the claims that the district court dismissed on the merits. But the court didn’t actually disarm the trap. And its use of Rule 54(b) is an odd, unintuitive one that has the potential for future mischief.
The en banc Williams decision is fascinating and has a lot going on. It comprises four opinions, including a separate concurrence from the author of the majority opinion. Those opinions debate statutory interpretation and the role of appellate courts in creating rules of appellate jurisdiction. In this post, I hit the highlights: the legal, factual, and procedural background of Williams; the main points of the four separate opinions; and my take on the court’s decision. I ultimately find the majority opinion to be both odd and unnecessary. It’s odd in its reading and use of Rule 54(b). And it’s unnecessary given the much better option offered by one of the concurring opinions: letting litigants disclaim any right to refile their voluntarily dismissed claims. This practice is common in the courts of appeals, obviates any finality concerns, and preserves Rule 54(b)’s role.