Posts in category “Appellate Decisions”
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.
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.
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.
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.
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.
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.
The standard of review is an essential part of any appeal; you cannot know whether the district court erred without knowing how the court of appeals will look at the district court’s decision. This is particularly true of abuse-of-discretion review. Discretion necessarily means that there is more than one affirm-able answer. Abuse-of-discretion review asks only whether the district court picked from among the acceptable answers. So even if the judges on the court of appeals might have decided the matter differently, the district court did not err so long as it was within the realm of reasonable decisions.
Mayle v. State of Illinois—a recent Seventh Circuit decision authored by Judge Hamilton—offers an excellent explanation (and illustration) of abuse-of-discretion review.
As a general rule, temporary restraining orders (often initialized as TROs) are not immediately appealable. Granted, 28 U.S.C. § 1292(a)(1) permits appeals from orders concerning injunctions. But TROs are normally not considered injunctions for appellate-jurisdiction purposes. So litigants generally must wait until the district court rules on a preliminary injunction before taking an appeal.
Exceptions to this general rule can exist when a TRO has the trappings of a preliminary injunction, such as an adversarial hearing or an indefinite duration. Litigants have recently invoked these exceptions in cases with some connection to COVID-19. These attempted appeals have mostly involved states appealing temporary restraining orders that enjoined COVID-19 related abortion restrictions. To my knowledge, none of those attempts has been successful. (The Fifth Circuit has reviewed temporary restraining orders via mandamus, not an appeal under § 1292(a)(1).) But yesterday, in Hope v. Warden, York County Prison, the Third Circuit held that it had jurisdiction to review a temporary restraining order directing the release of detained immigrants due to the COVID-19 pandemic.
In Automotive Alignment & Body Service, Inc. v. State Farm Mutual Automobile Insurance Co., the Eleventh Circuit navigated several potential errors in the timing and contents of notices of appeal. For two groups of plaintiffs, the district court dismissed their complaints but then improperly accepted late-filed amended complaints. Those amended complaints were a nullity—the dismissals became final once the time for amending had passed—and the plaintiffs failed to timely appeal from the original dismissal. Another group’s notice of appeal did not specify the district court decision that dismissed their antitrust claims. That group of plaintiffs instead designated the district court’s denial of reconsideration and its final judgment. Fortunately for them, the Eleventh Circuit held that designating the final judgment was sufficient to appeal all decisions that merged into the final one.
In last week’s Mayor and City Council of Baltimore v. BP P.L.C., the Fourth Circuit held that Baltimore’s climate-change lawsuit against oil and gas companies must proceed in state (not federal) court. The court also deepened an existing split on the scope of remand appeals under 28 U.S.C. § 1447(d). That statute generally prohibits review of decisions remanding a case to state court. But the statute includes two exemptions to that prohibition—when removal was based on the federal-officer removal statute or the civil-rights removal statute.
The Fourth Circuit held that the scope of remand appeals is limited to the express exemptions to § 1447(d). That is, the court of appeals can address only whether removal was proper under the federal-officer or civil-rights removal statutes; the court lacks jurisdiction to review any other ground for removal. Other courts disagree. Focusing on § 1447(d)’s reference to appeals from a remand “order,” these courts have held that the scope of appeal includes every aspect of the district court’s order.
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