Posts in category “Appellate Decisions”
In Kaweah Delta Health Care District v. Becerra, the Ninth Circuit held that a cross-appeal was proper when the government could appeal from an administrative remand. The court explained that when the administrative-remand rule makes a decision final, it is final for everyone.
In Gelin v. Baltimore County, the Fourth Circuit held that Federal Rule of Appellate Procedure 4(a)(4)(A) applies to appealable interlocutory orders. So a motion to reconsider such an order resets the time to appeal. The court added that a motion can effectively be one seeking reconsideration even though the motion does not cite to Federal Rule of Civil Procedure 59(e) and instead relies on a different rule.
This all meant that the appeal in Gelin was not late. In fact, it was too early. The district court had not resolved all issues raised in the reconsideration motion. The Fourth Circuit accordingly held the appeal in abeyance while the district court fully disposed of the reconsideration motion.
In CPC Patent Technologies Pty Ltd. v. Apple Inc., the Ninth Circuit held that a 28 U.S.C. § 1782 discovery proceeding was not final because the district court had not definitively resolved the scope of discovery. Although the district court had authorized a subpoena, the court had not addressed the discovery target’s objections to the scope of discovery. Until those issues were resolved, the discovery target could not appeal.
In In Re Grand Jury Investigation, the Eleventh Circuit held that a privilege claimant could not appeal orders compelling it and third parties to produce documents.
The analysis of the order directed at the privilege claimant was straightforward. Privilege claimants normally must take contempt appeals to challenge a discovery order. The privilege claimant in Grand Jury Investigation had not been held in contempt. So it couldn’t appeal.
The order directed at third parties was more interesting. Under the Perlman doctrine, privilege claimants can normally immediately appeal discovery orders directed to a third party. But the Eleventh Circuit held that the claimant here could not take a Perlman appeal. That’s because the claimant could have raised all of its challenges to the third-party discovery order by taking its own appeal. Appellate review of those issues was therefore possible, meaning Perlman didn’t apply.
In Christmas v. Hooper, the Fifth Circuit held that the prison-mailbox rule applies to notices of appeal mistakenly sent to a court of appeals.
In doing so, the court had to resolve a tension between two portions of Federal Rule of Appellate Procedure 4. Rule 4(c)(1) says that an imprisoned appellant’s notice of appeal is deemed filed on the day it is deposited in the prison mail system. Rule 4(d) says that when litigants mistakenly send their notice to the court of appeals, the notice is deemed filed when the court of appeals receives it.
So what happens when an imprisoned appellant deposits a notice of appeal in the prison mail system but addresses that notice to a court of appeals? The Fifth Circuit held that Rule 4(c)(1)’s prison-mailbox rule applies, such that the notice is filed when deposited.
In Malek v. Feigenbaum, the Second Circuit reiterated its rule that a post-judgment motion must be timely filed—not merely served—to reset the time to appeal under Federal Rule of Appellate Procedure 4(a)(4). The court went on to hold that although Rule 4 is a claims-processing rule, it is a mandatory one that is not subject to equitable exceptions. The Second Circuit ended by concluding that a notice of appeal that designated the district court’s final judgment did not permit an appeal from a subsequent denial of reconsideration, even though that notice came after the denial.
Disclosure: I participated in a moot oral argument for the plaintiff-appellee in this case.
In Garraway v. Ciufo, a divided Ninth Circuit held that federal officials cannot immediately appeal the Bivens question without a qualified-immunity appeal.
So far the courts of appeals have unanimously rejected the federal government’s efforts to secure immediate Bivens appeals. But these decisions have produced dissents, with judges contending that immediate appeals are warranted due to the interests the Bivens question implicates. And at least one more pending appeal presents this issue. This is probably not the end of the government’s attempts to secure pure Bivens appeals.
In In re Lion Air Flight JT 610 Crash, the Seventh Circuit reviewed a preemption issue as part of a certified appeal that concerned the right to a jury trial. The district court had thought that only the jury-trial issue warranted an immediate appeal under 28 U.S.C. § 1292(b). But the Seventh Circuit concluded that the preemption decision was part of the same order and thus also within the scope of the certified appeal. After all, the right to a jury trial turned on the extent to which federal law preempted the plaintiffs’ state law claims.
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In Upchurch v. O’Brien, the Seventh Circuit dismissed as untimely an appeal from a sanction-based award of attorneys fees. The court explained that an award of attorneys fees need not be set out in a separate document to start the appeal clock. Instead, the clock starts when the fees are awarded.
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In McEvoy v. Diversified Energy Co., the Fourth Circuit dismissed a somewhat convoluted invocation of sovereign immunity. The defendants appealed to argue that a district court’s Rule 19 decision effectively denied a non-party’s sovereign immunity. But the defendant had never itself sought immunity. Nor had the actual immunity holder intervened to protect its interests. The motion was instead only a decision that a state agency was not a party that should be joined under Federal Rule of Civil Procedure 19.
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