Posts in category “Appellate Decisions”
In In re Search Warrants Issued February 18, 2022, the Fourth Circuit dismissed an appeal that challenged the filter protocols for seized evidence. The district court had approved certain protocols to weed out potentially protected evidence. The district court later denied a privilege claimant’s motion seeking to alter those protocols. The Fourth Circuit held that under DiBella v. United States, the order was neither an appealable final decision nor an appealable denial of a preliminary injunction.
In Hines v. Stamos (no PDF currently available), the Fifth Circuit spoke at length about its jurisdiction to review a personal-jurisdiction defense as part of an arbitration appeal. But the discussion was entirely unnecessary. The district court had never ruled on the personal-jurisdiction defense, meaning that there was no order to review. And the panel ultimately remanded the case for the district court to address personal-jurisdiction (as well as subject-matter jurisdiction), which might render the arbitration issue moot.
All of this could have been done without mentioning appellate jurisdiction over the personal-jurisdiction defense. The Fifth Circuit could have simply remanded the case for the district court to address personal jurisdiction in the first instance. And I think doing so would have been the better move—whether personal- and subject-matter-jurisdiction issues are within the scope of interlocutory appeals is a difficult, unsettled issues.
In Dubon v. Jaddou, the Fourth Circuit dismissed an appeal from an order remanding a naturalization action to the U.S. Citizenship and Immigration Services. The court acknowledged that this remand order would be unreviewable in any future proceedings. But it thought that this lack of review was harmless, as the applicant could eventually obtain judicial review of the underlying naturalization decision.
In Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, the Fifth Circuit held that it lacked jurisdiction to review an order that remanded a removed action because the defendant had waived the right to remove. But the panel doubted that doing so was correct. Indeed, the panel seemed almost certain that its decision was wrong. But it was bound by the Fifth Circuit’s decision in In re Weaver, which held that 28 U.S.C. § 1447(d) barred review of such a remand.
In Jones v. U.S. Merit Systems Protection Board, the Fourth Circuit reviewed a decision of the Merit Systems Protection Board even though the petitioners voluntarily dismissed some of their theories of relief. That voluntary dismissal was with prejudice, which made it highly unlikely that the voluntarily dismissed theories would ever resurface. So the petitioners were not trying to improperly manufacture an interlocutory appeal.
The opinion nicely recognizes that not all varieties of manufactured finality should be treated the same.
In Asante-Chioke v. Dowdle, the Fifth Circuit reviewed an order refusing to limit the scope of discovery to qualified-immunity issues. The court said that it could immediately review this sort of order via the collateral-order doctrine. But I have my doubts. The Fifth Circuit relied on a line of cases holding that defendants can appeal decisions to defer ruling on qualified immunity until after discovery. But there was no deferral in Asante-Chioke. And the Fifth Circuit’s decision opens the door to future appeals challenging the scope of discovery in civil-rights actions.
In SEC v. EquityBuild, Inc., the Seventh Circuit heard an appeal from order approving the distribution of some—but not all—of the assets in a receivership proceeding. The order was appealable under the Seventh Circuit’s caselaw, which deemed these orders appealable via the collateral-order doctrine. Judge Easterbrook concurred to express doubt in this caselaw and suggest that the issue—one on which the courts have split—should be resolved by the Supreme Court.
The federal government appears to be on a mission to get immediate appeals for orders recognizing a Bivens remedy. So far, those efforts have been unsuccessful. Two courts of appeals—the Third and the Sixth Circuits—have rejected these pure Bivens appeals.
In Mohamed v. Jones, the Tenth Circuit became the third. Like the Third and Sixth Circuits before it, the Tenth Circuit recognized that the Bivens question does not exist to shield federal officials from the burdens of litigation. That’s qualified immunity’s job. The separation-of-powers concerns that Bivens implicates also do not warrant an immediate appeal. And government defendants can easily secure review of the Bivens issue via an appeal from the denial of qualified immunity.
Mohamed is not the last we’ll see of this issue. There are at least two more pending cases in which the federal government is trying to appeal the Bivens question. And the Tenth Circuit’s decision came with a dissent. I will not be surprised when the government seeks rehearing en banc or, more likely, cert.
The general, well-known, and riddled-with-exceptions rule is that a decision is not final until the district court has resolved all of the parties’ claims. So what should courts do when the district court overlooks a claim or theory of relief that one of the parties had pleaded? A handful of recent decisions have raised this question. And the answer is not always the same.
In New York State Telecommunications Association v. James, the Second Circuit split over an attempt at manufacturing finality. The district court had granted a preliminary injunction after concluding that federal law preempted a New York state law. The parties then stipulated to entry of a final judgment. A majority of the Second Circuit determined that this preemption decision effectively resolved the action, meaning the state could appeal. Judge Sullivan disagreed, emphasizing that the preemption decision was necessarily preliminary.
The decision nicely illustrates something I talk about in a forthcoming article: the different varieties of manufactured finality. The majority thought that the parties had tried to facilitate an appeal after a district court decision that—though technically interlocutory—effectively determined who won. (I call this manufactured finality after a “dispositive interlocutory decision.”) The dissent thought that the preliminary-injunction decision, though bad for the state, did not resolve the action. (I call this manufactured finality after an “adverse interlocutory decision.”) So in the dissent’s view, the parties tried to undermine the normal rules of appellate jurisdiction.
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