Judge David Hamilton of the Seventh Circuit gave an excellent explanation of what deferential abuse-of-discretion review entails.
April 27, 2020
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.
Temporary restraining orders are normally not appealable. But parties are testing this general rule in cases involving COVID-19.
April 22, 2020
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.
Two notices of appeal were late because the district court improperly let the case proceed, and a third designated the wrong decision.
March 9, 2020
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 Baltimore’s climate-change litigation, the Fourth Circuit deepened the split on the scope of appeals from remand orders.
March 9, 2020
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.
The First Circuit faced a unique administrative-remand appeal that involved two different district courts reviewing administrative proceedings.
March 2, 2020
In Littlefield v. Mashpee Wampanoag Indian Tribe, the First Circuit held that it had jurisdiction to review a district court order reversing a decision of the the Bureau of Indian Affairs. The case presents an interesting variation on the administrative-remand rule. A Massachusetts district court reversed a Bureau decision and remanded for further proceedings. Normally that decision would not have been appealable until after those proceedings had ended. But the outcome of those proceedings on remand was subsequently challenged in a different district court. This set of circumstances gave the Massachusetts district court’s decision sufficient finality to be appealable.
Narrow approaches to cumulative finality can result in the inadvertent and needless loss of appellate rights.
February 19, 2020
In Norton v. High, the Fourth Circuit dismissed a pro se plaintiff’s appeal from a sanction order. The plaintiff had filed his notice of appeal after the district court ordered him sanctioned but before the court determined the amount of sanctions. The notice was thus premature. And under the Fourth Circuit’s approach to cumulative finality and Federal Rule of Appellate Procedure 4(a)(2), the district court’s subsequent decision setting that amount did not save the premature notice.
Left unsaid in Norton is that the decision deprived the plaintiff of any chance to appeal the sanction. By the time the Fourth Circuit told him that his notice of appeal was ineffective, the window for filing a timely notice had long since closed. Norton thus illustrates the unfortunate consequences of courts’ limiting the circumstances in which subsequent events can save a premature notice. And the punishment far outweighs the crime. The error—an early notice—is a technical one that rarely (if ever) causes anyone any harm. I recently proposed an amendment to Rule 4(a)(2) that would avoid these consequences. Norton illustrates why the Rules Committee’s action is needed.
The Federal Circuit used advisory mandamus to hold that servers alone were not enough to establish venue in a patent-infringement suit.
February 15, 2020
In In re Google LLC, the Federal Circuit used mandamus to order that a case be dismissed or transferred due to improper venue. The district court had concluded that Google’s having cache servers (but no employees) within the Eastern District of Texas was enough for venue to be proper in a patent-infringement suit. The Federal Circuit disagreed. And it did so via mandamus. Mandamus is normally reserved for occasions when district courts clearly and obviously err or go well beyond their jurisdiction. Google was not such a case. It was instead an example of what’s often called “advisory” mandamus, where a court of appeals uses the writ to address an unresolved and important issue that could evade appellate review.
The Ninth Circuit explained that a bankruptcy remand is not appealable when the proceedings on remand could produce their own appeal.
February 11, 2020
In In re Marino, the Ninth Circuit held that it lacked jurisdiction to review a Bankruptcy Appellate Panel decision that remanded the dispute back to the bankruptcy court. The opinion provides a nice summary of the Ninth Circuit’s law on appealing bankruptcy remands. These remands mean further proceedings in the bankruptcy court. And the parties might want to appeal the outcome of those proceedings. So it’s normally better to delay any appeals until after the bankruptcy court resolves the dispute. The court of appeals can then decide all issues that the action presents in a single appeal. Only when the proceedings on remand will be ministerial or technical—and thus highly unlikely to produce another appeal—is the remand order deemed final and appealable.
When defendants flout the jurisdictional limits on the scope of interlocutory qualified-immunity appeals, everyone loses.
February 5, 2020
In Monday’s Orn v. City of Tacoma, the Ninth Circuit repeatedly rejected a defendant’s attempt to argue the facts in an interlocutory qualified-immunity appeal. Although defendants have a right to immediately appeal the denial of qualified immunity, that right is limited when immunity is denied at summary judgment. The court of appeals can review whether the defendant violated clearly established federal law. But in doing so, the court of appeals must take as true the same facts that the district court determined a reasonable jury could find. The appellate court lacks jurisdiction to look behind the facts that the district court assumed were true to see if the summary-judgment record supported them. Granted, a few exceptions to these general jurisdictional limits exist. But these general rules were laid down 25 years ago in Johnson v. Jones and have remained the law ever since.
Defendants nevertheless flout these jurisdictional rules with some regularity. When they do, they needlessly delay district court proceedings, create unnecessary work for the courts and parties, and waste everyone’s time. Orn is another unfortunate example. The practice needs to stop. In this post, I use Orn to illustrate this problematic practice. And (if you’ll excuse the self promotion) for a more in-depth discussion of this issue—including how courts or rulemakers can clarify and improve this area of the law—you can read the new draft of my article Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals, which I recently posted to SSRN.
The Federal Circuit might have switched camps in the cumulative-finality split. But its lack of explanation leaves any change uncertain.
January 31, 2020
The cumulative-finality doctrine provides that certain subsequent events can save a premature notice of appeal filed after certain district court decisions. As I detailed in a 2018 article, the doctrine cannot be stated with any greater precision because the courts of appeals are all over the map on when exactly notices can be saved. Three general approaches to cumulative finality have emerged. And until recently, the Federal Circuit appeared to be in the most restrictive camp, holding that only decisions resolving all outstanding issues can be saved by the entry of a final judgment.
But the Federal Circuit’s recent decision in Amgen Inc. v. Amneal Pharmaceuticals LLC appears to break with that court’s precedent. The court held that a premature notice of appeal was cured when counsel abandoned the unresolved claims at oral argument. (I covered the decision in a previous weekly roundup, and Dennis Crouch wrote about it on Patently-O.) This outcome required a different approach to cumulative finality than the Federal Circuit has previously endorsed. But the court said little about why the disclaimer was sufficient, nor did it acknowledge its earlier decisions on cumulative finality. Still, the Federal Circuit might have switched camps in the cumulative-finality split.