Posts in category “Appellate Decisions”
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.
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.
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.
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.
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 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.
Last week, the en banc Fifth Circuit heard argument in Williams v. Taylor Seidenbach, Inc. The case gives that court the opportunity to clean up the “finality trap” it has created for litigants. The Fifth Circuit has held that parties may not appeal when they’ve voluntarily dismissed some of their claims without prejudice; the voluntary dismissal precludes the district court’s decision from being final. But those same parties also cannot return to the district court to change the dismissal to one with prejudice, as district court proceedings are finished. Cases that fall into this finality trap exist in a sort of litigation limbo. I’ve accordingly called them “zombie actions”: they are final and unalterable in the district court, but they are not final—and will never become final—for appeal.
The Fifth Circuit has several options for fixing its finality trap. In this post, I discuss those options, as well as the finality trap’s origins, its application in Williams, the en banc argument, and the larger problems in this area of appellate jurisdiction.
Update: For my full post on the argument in Williams, see The Fifth Circuit & the Finality Trap.
The en banc Fifth Circuit heard argument this morning in Williams v. Taylor Seidenbach, Inc. The case addresses the finality and appealability of an action when some claims have been decided on the merits but others have been voluntarily dismissed without prejudice.
The courts of appeals occasionally struggle with appellate jurisdiction when parties dismiss some of their claims without prejudice. The issue comes up when a district court has resolved some of the claims in a multi-claim suit and parties try to transform that non-final decision into a final one by dismissing their remaining claims without prejudice. Courts hold that parties cannot manufacture an appeal this way. Parties instead must obtain a Rule 54(b) certification, which allows district courts to certify for immediate appeal a decision resolving some (but not all) claims in a multi-claim suit.
The Sixth Circuit yesterday rejected one of these manufactured appeals. In Novia Communications, LLC v. Weatherby, the plaintiff had tried to take a belt-and-suspenders approach to appellate jurisdiction, voluntarily dismissing its unresolved claims and securing a Rule 54(b) certification. But the Sixth Circuit held that neither action gave the court jurisdiction. The voluntary dismissal of three unresolved claims did not make the resolution of other claims final and appealable. And the Rule 54(b) certification was improper because it did not explain why an immediate appeal was warranted. Also of interest, the court went on to suggest that a Rule 54(b) certification might not be proper in any event due to the relationship between the resolved and unresolved claims.
In 2017’s Microsoft Corp. v. Baker, the Supreme Court held that plaintiffs seeking to bring a class action could not voluntarily dismiss their individual claims and immediately appeal the denial of class certification. In doing so, the Supreme Court abrogated a line of Ninth Circuit decisions that allowed this voluntary-dismissal tactic.
The question then arose of what to do with plaintiffs who had voluntarily dismissed their claims before Baker and in reliance on the Ninth Circuit’s pre-Baker caselaw. In November, the Ninth Circuit held in Henson v. Fidelity National Financial, Inc. that these plaintiffs could obtain relief from their dismissals via Rule 60(b)(6). But in last week’s Strafford v. Eli Lilly & Co., the Ninth Circuit affirmed the denial of Rule 60(b)(6) relief for another group of plaintiffs who had relied on that same caselaw; those plaintiff’s circumstances, the court held, did not warrant relief.
So it appears that not all pre-Baker dismissals can be undone.
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