The Fourth Circuit took the extraordinary (and possibly improper) step of directing a district court—via a writ of mandamus—to certify a § 1292(b) appeal in an emoluments case.
July 10, 2019
The Fourth Circuit took the extraordinary (and possibly improper) step today of directing a district court—via a writ of mandamus—to certify an issue for immediate appeal under 28 U.S.C. § 1292(b). It did so in one of two interlocutory appeals in Maryland and the District of Columbia’s emoluments-clause suit against Donald Trump. In both, the Fourth Circuit held that Maryland and D.C. lacked standing to bring their claims. And in both, the court had to address its jurisdiction over the appeals.
One appeal (PDF, 39 KB) involved a relatively straightforward collateral-order appeal from the effective denial of absolute immunity. But to hear the other appeal (PDF, 106 KB), the Fourth Circuit had to use mandamus to direct the district court to certify an immediate appeal. This use of mandamus is extremely rare, and it’s not clear that it’s is a proper use of the writ.
The Fourth Circuit followed other circuits’ standards for petitions to appeal under § 1453(c)(1) from orders remanding a class action to state court under CAFA.
July 5, 2019
In Dominion Energy, Inc. v. City of Warren Police and Fire Retirement System (PDF, 147KB), the Fourth Circuit announced a non-exhaustive list of things it would consider in deciding whether to allow an appeal from an order remanding a class action to state court. These criteria are the same as those that several other courts of appeals use. The Fourth Circuit went on to accept an appeal to address whether claims for aiding or abetting the breach of a fiduciary duty fall within CAFA’s removal exceptions. It ultimately held that they didn’t.
Two recent decisions have addressed the jurisdictional nature of appellate rules, and one (on administrative exhaustion) is probably wrong.
June 14, 2019
The federal courts’ ongoing project of delineating which procedural rules are jurisdictional and which aren’t (and are instead claim-processing rules) continues.
The Seventh Circuit held this week that 28 U.S.C. § 2107(c)’s excusable neglect/good cause requirement for an extension of the appeal-filing deadline is jurisdictional. And the Tenth Circuit applied an earlier decision holding that administrative exhaustion of arguments under the Black Lung Benefits Act is jurisdictional, though the panel appeared to doubt that earlier decision.
The Tenth Circuit became the first court of appeals to hold post-Hamer that bankruptcy's part-statute, part-rule appeal-filing deadline is jurisdictional
June 7, 2019
In Hamer v. Neighborhood Housing Services of Chicago, the Supreme Court offered a convenient shorthand for determining whether an appeal-filing time limit is jurisdictional: those prescribed by statutes are, but those found only in court-made rules are not. Bankruptcy’s appeal-filing deadline is a bit of both. 28 U.S.C. § 158(c)(2) says a notice of appeal must be filed within an amount of time set by Bankruptcy Rule 8002, which in turn specifies a 14-day filing deadline. After the Supreme Court’s decision in Bowles v. Russell, several courts of appeals held that Rule 8002’s filing deadline was jurisdictional. But after Hamer, litigants are again challenging the rule’s jurisdictional nature. So far they’ve been unsuccessful.
The Tenth Circuit just held in In re Robertson that this appeal-filing deadline is jurisdictional. And it was the first court of appeals to do so since Hamer.
Underwood v. Barrett illustrates how Scott v. Harris affected procedure for both summary judgment and appellate jurisdiction.
May 31, 2019
I recently wrote about the Seventh Circuit’s decision in Gant v. Hartman, which illustrated Scott v. Harris’s effect on interlocutory appeals. But that wasn’t Scott’s only impact on civil procedure. It has also affected summary-judgment practice. A recent decision from the First Circuit—Underwood v. Barrett—illustrates both of the procedural changes that Scott wrought. And while the changes to summary judgment are hard to avoid (despite a district court’s odd efforts to do so), I think Underwood spoke a bit too broadly about appellate jurisdiction.
The Seventh Circuit recently declined to apply Scott’s blatant-contradiction exception to Johnson v. Jones. But it never should have been asked to do so; this exception is neither practically sound nor needed.
May 19, 2019
Update: My article on this issue—Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals—is now available to read on SSRN.
Last week, in Gant v. Hartman, the Seventh Circuit held that it lacked jurisdiction under Johnson v. Jones to review an interlocutory qualified-immunity appeal when the defendant failed to accept the facts assumed by the district court. In the course of doing so, the court held that Scott v. Harris’s blatant-contradiction exception to Johnson did not apply, as nothing in the summary-judgment record blatantly contradicted the district court’s assumed facts. Most courts have read Scott to create this blatant-contradiction exception. And I’m currently working on an article arguing that this is the best way to reconcile Johnson and Scott. But I also argue that the blatant-contradiction exception is an unpragmatic and unnecessary rule that should be rejected.
This post covers the decision in Gant, including background on Johnson and Scott. It then briefly addresses why Scott’s blatant-contradiction exception is an impractical rule of appellate jurisdiction.
The Third Circuit held that a post-judgment decision to void contracts between class members and third-party litigation funders was an immediately appealable collateral order. The case illustrates the difficulties courts face in deciding when litigants can appeal decisions made as part of a district court’s ongoing, post-judgment supervision of a settlement.
May 4, 2019
The Third Circuit tackled a slew of appellate-jurisdiction issues in the latest appeal arising out of the NFL concussion litigation. In In re National Football League Players’ Concussion Injury Litigation, the court partially reversed a district court order that voided all agreements between players and third-party litigation funders. But to get there, the court had to untangle something of a jurisdictional mess. Of particular note is the Third Circuit’s decision about appeals in ongoing, post-judgment proceedings: the court held that the district court’s order voiding the contracts—which was made as part of the district court’s ongoing supervision of a settlement—was final and appealable under the collateral-order doctrine. But another, more administrative order by the district court was not appealable. Other courts have allowed appeals in post-judgment proceedings under a more general and pragmatic approach to appellate jurisdiction. The takeaway is that this area is one that is ripe for future research.
The Tenth Circuit rightly rejected pendent appellate jurisdiction over a Monell claim as part of a qualified-immunity appeal. But the courts of appeals’ willingness to entertain attempts at interlocutory appeals of Monell claims remains troubling.
May 3, 2019
A recent decision out of the Tenth Circuit—Estate of Ceballos v. Husk—illustrates the one of the several persistent problems with interlocutory qualified-immunity appeals. In Ceballos, the Tenth Circuit rightly refused to extend pendent appellate jurisdiction over a city’s appeal from the denial of its motion to dismiss a civil right claims for municipal liability (more commonly known as a “Monell claim). But the court did not disclaim the practice of extending pendent jurisdiction over these appeals; it simply held that doing so was inappropriate in that case. Ceballos (like many other cases in which this issue arises) was a missed opportunity to squarely refuse to entertain these attempts at using pendent appellate jurisdiction. These attempts not only are doctrinally unsound, but they also impose costs on courts and litigants (in the form of wasted time and effort) with no offsetting benefits.