Courts have split on whether a single filing can serve as both a motion to reopen the appeal window and a notice of appeal.
January 2, 2024
In Winters v. Taskila, the Sixth Circuit held that a notice of appeal was effectively a motion to reopen the appeal window. The court went on to hold that once the district court reopened that window, this notice was also a notice of appeal. The courts of appeals have split on whether a notice of appeal can serve these dual functions. According to the Sixth Circuit, resolution of this split is now a matter for the Rules Committee.
Contempt citations are not final until the sanction—including its amount—is determined, even when the sanction is paying attorney fees.
December 7, 2023
A ruling on liability is not final until the court specifies a remedy. But what if that remedy consists entirely of attorney fees? The Supreme Court has long held that a decision on the merits is final despite any unresolved issues regarding attorney fees. So is a ruling on liability final when the remedy is an unspecified award of attorney fees?
In In re Asset Enhancement, Inc., the Eleventh Circuit held that such an order is not final, at least in the context of contempt. A contempt order, the court explained, is not final until the court determines a sanction. That rule applies even when the sanction is a not-yet-specified amount of attorney fees.
Another court of appeals read too much into Mohawk Industries and held that parties can no longer take Perlman appeals.
November 28, 2023
In In re Grand Jury 2021 Subpoenas, the Fourth Circuit joined several other circuits in holding that only non-parties can take Perlman appeals. I wrote about this issue a few years ago when the Second Circuit did the same. This cutting back on Perlman appeals is as wrong now as it was then.
The Ninth Circuit held that it could review a purely legal issue raised in a denied summary-judgment motion even though a grant of summary-judgment on that issue would not have prevented a trial.
November 22, 2023
In Cottonwood Environmental Law Center v. Edwards, the Ninth Circuit applied the Supreme Court’s decision in Dupree v. Younger to permit review of part of a summary-judgment denial. In the course of doing so, the court rejected the argument that the denied summary-judgment motion needed to have been potentially dispositive as to the need for a trial.
The Fifth Circuit said that it could review the genuineness of fact disputes in qualified-immunity appeals when there’s a video of the events.
November 21, 2023
In Argueta v. Jaradi, the Fifth Circuit created a new exception to the bar on reviewing the genuineness of fact disputes in qualified-immunity appeals. In most of those appeals, the court must take as given the district court’s determination of what facts a reasonable jury could find. But according to the Fifth Circuit, an appellate court doesn’t have to do that when video evidence exists.
When the government objected to only some of the issues raised in an untimely criminal appeal, the Third Circuit reviewed the remaining issues.
November 7, 2023
In United States v. Crump, the Third Circuit permitted the government to partially object to the untimeliness of a criminal appeal. That meant the court of appeals had to dismiss the appeal insofar as it raised the objected-to issues. But the court could address the other issues that the defendant raised on appeal.
The Eighth Circuit said it could review the misstatement and misapplication of the summary-judgment standard in a qualified-immunity appeal. But that might circumvent Johnson v. Jones.
October 21, 2023
In Washington v. City of St. Louis, the Eighth Circuit vacated a denial of qualified immunity because the district court misstated and misapplied the summary-judgment standard. The Eighth Circuit thought this was a legal issue over which it had jurisdiction in a qualified-immunity appeal.
But I’m not sure. Most (if not all) reversible summary-judgment decisions can be characterized as misunderstandings or misapplications of the summary-judgment standard. And Johnson v. Jones said that some of these reversible summary-judgment decisions—those involving evidence sufficiency—are off limits in immediate appeals from the denial of qualified immunity. Washington might have just restated the evidence-sufficiency inquiry in a way that gets around Johnson.
The Eleventh Circuit explained that different counts are not distinct claims for purposes of Rule 54(b) when they stem from the same events and seek a remedy for the same injury.
October 18, 2023
In Scott v. Advanced Pharmaceutical Consultants, Inc., the Eleventh Circuit reversed the entry of a partial judgment under Federal Rule of Civil Procedure 54(b). The district court had resolved most (but not all) of the counts pleaded in the plaintiff’s complaint. But the district court’s rejection of those counts did not resolve a distinct “claim” for purposes of Rule 54(b). All of the counts stemmed from the same events and involved similar remedies for a single injury. So the counts were instead different causes of action—different theories of recovery—for the same claim. They were not severable for purposes of Rule 54(b).
I’m starting to think that a failure to file a second or amended notice of appeal does not affect appellate jurisdiction to review certain post-judgment decisions.
October 14, 2023
In Garnett v. Akron City School District Board of Education, the Sixth Circuit dismissed an appeal insofar the plaintiff challenged the denial of his post-judgment Rule 60(b) motion. The plaintiff had appealed from the original judgment. But he had not filed a new or amended notice of appeal designating the Rule 60(b) denial, as Federal Rule of Appellate Procedure 4(a)(4)(B)(ii) requires. The Sixth Circuit determined that the failure to do so meant no appellate jurisdiction over the Rule 60(b) decision.
A few years ago, I expressed some doubt about the conclusion that Rule 4(a)(4)(B)(ii) is jurisdictional. Now I’m really starting to think that it’s not. It doesn’t come from a statute. And the only statutory requirement—a timely notice of appeal—has been satisfied. To be sure, that notice designated only the original judgment. But no statute requires that notices of appeal designate an appealed decision, much less requires a second or amended notice after the resolution of a post-judgment motion.
If it’s not jurisdictional, Rule 4(a)(4)(B)(ii) a claims-processing rule. Courts still have to enforce it. But it can also be waived. And I imagine there are at least a few cases out there in which appellees have waived any objection to the failure to file a second or amended notice of appeal under Rule 4(a)(4)(B)(ii).
The Eleventh Circuit held that claimants can create a final decision by “abandoning” unresolved claims, which stands in some tension with that court’s rule that litigants cannot voluntarily dismiss discrete claims.
October 8, 2023
In Lowery v. Amguard Insurance Co., the Eleventh Circuit allowed an plaintiff to create a final, appealable decision by abandoning an unresolved claim. This should not be remarkable; courts have long allowed parties to abandon unresolved claims—even in the middle of oral argument—to cure defects in appellate jurisdiction. But the decision seems to conflict with the Eleventh Circuit’s rule that litigants cannot voluntarily dismiss discrete claims.