The Ninth Circuit held that denials of PREP Act immunity are immediately appealable under the collateral-order doctrine. But are immunities from litigation actually separate from that litigation?
October 7, 2023
In Hampton v. California, the Ninth Circuit held that defendants can immediately appeal from the denial of PREP Act immunity via the collateral-order doctrine. I think this is the first time a court of appeals has done so. (The Second Circuit avoided deciding this issue last spring, and the D.C. Circuit addressed appealability only under a specific provision of the Act.) And I have some doubts about the conclusion. I’m not sure that defenses like this should be immediately appealable via the collateral-order doctrine. I recognize that the caselaw is completely against me on this point. But I don’t think immunities from litigation are actually separate from (“collateral to”) that litigation.
The Fourth Circuit rejected an attempt to manufacture a final, appealable decision from an order deeming a debt dischargeable in bankruptcy.
September 19, 2023
In Kiviti v. Bhatt, the Fourth Circuit dismissed an appeal from an order deeming a debt dischargeable in bankruptcy. That discharge order meant the creditors would have to pursue that debt through bankruptcy. But it also left unresolved the creditors’ request to declare the existence of that debt. The Fourth Circuit held that the parties could not secure an appeal from the discharge decision by voluntarily dismissing this remaining request without prejudice. Granted, the discharge order made pursuing that request unattractive; the creditors were not likely to recover much (if anything) on that debt through the bankruptcy proceedings. But the discharge decision did not effectively resolve the creditors’ claim. It was merely an adverse interlocutory decision. And litigants cannot manufacture appeals from these sorts of decisions by voluntarily dismissing their claims.
The Eleventh Circuit became the first court to limit a scope of appeal under the amended Rule 3(c)(6). But the rationale risks undoing the Rule 3(c) amendments.
September 13, 2023
Until recently, several courts of appeals limited the scope of appeals to the orders designated in the notice of appeal. Recent amendments to Federal Rule of Appellate Procedure 3(c) were supposed to end that practice. But those amendments also provided a way for litigants to limit the scope of an appeal. The new Rule 3(c)(6) lets appellants “designate only part of a judgment or appealable order by expressly stating that the notice of appeal is so limited.”
In United States v. Sylvain, the Eleventh Circuit became the first court that I’m aware of to limit the scope of an appeal via Rule 3(c)(6). The court concluded that designating one order in a notice of appeal limited the appeal to that order. That is, specifying one order—and not any others—was an express statement limiting the scope of appeal under Rule 3(C)(6).
That can’t be right. Designating one order while not mentioning others is hardly an express statement limiting the scope of appeal. Indeed, the Rule 3(c) amendments were supposed to prevent courts from limiting the scope of appeal in this situation. The Eleventh Circuit’s application of Rule 3(c)(6) thus risks undoing the Rule 3(c) amendments.
The Third Circuit joined the Eleventh Circuit (and split from the Fourth and Sixth Circuits) in holding that a certificate of appealability is necessary to challenge the choice of remedy in a § 2255 proceeding.
August 6, 2023
When a district court grants relief under 28 U.S.C. § 2255, it can choose from among several different remedies. Among those remedies are (1) correcting the petitioner’s sentence and (2) conducting a full resentencing. Successful § 2255 petitioners who want to challenge their new sentence can appeal under 28 U.S.C. § 1291 without first obtaining a certificate of appealability. But what if a § 2255 petitioner wants to challenge only the choice of remedy—correcting the sentence rather than resentencing—without challenging the sentence itself?
In Clark v. United States, the Third Circuit held that a § 2255 petitioner challenging the choice of remedy must obtain a certificate of appealability. In so holding, the Third Circuit joined with the Eleventh Circuit and split from the Fourth and Sixth Circuits. The court of appeals went on to hold that the petitioner in Clark had not made the requisite showing for a certificate of appealability.
Just because the entirety of an “order” is appealable does not mean that other orders in the same document are appealable, too.
August 5, 2023
Courts have held that when an “order” is appealable—say, via a certified appeal under 28 U.S.C. § 1292(b) or an exception to 28 U.S.C. § 1447(d)’s bar on remand appeals—the entirety of the district court’s order is within the scope of appeal. So when a district court certifies an order for an immediate appeal under § 1292(b), the entire order is within the scope of appeal, not just the issue that the district court thought warranted review. And when a case is removed on one of the grounds that § 1447(d) excepts from the general bar on remand appeals, the entire remand order is appealable, not just the excepted ground.
In Boshears v. PeopleConnect, Inc., the Ninth Circuit noted that there are limits on what it means for an “order” to be appealable. There’s a difference between orders and the documents that contain them. So even if an order is appealable, other orders contained in the same document are not.
The D.C. Circuit allowed a Rule 23(f) class-certification appeal largely because the district court’s explanation for certifying a class was inadequate.
July 27, 2023
In National ATM Council, Inc. v. Visa, Inc., the D.C. Circuit offered a rare explanation for granting a petition to appeal a class-certification grant under Federal Rule of Civil Procedure 23(f). The reasons given were particularly interesting.
In what appears to be the first decision to squarely tackle the issue, the First Circuit held that § 1291 authorizes government appeals from grants of compassionate release.
July 22, 2023
In United States v. Rivera-Rodríguez, the First Circuit held that the government can appeal from orders granting a criminal defendant’s request for compassionate release. Although several courts of appeals have reviewed these appeals, few have addressed their jurisdiction to do so in any depth. But the issue requires some thought—as the Rivera-Rodríguez panel noted, “[t]he government has no right of appeal in criminal cases except where a statute expressly grants such a right.”
In an interlocutory appeal from the grant of class certification, the D.C. Circuit refused to extend pendent appellate jurisdiction over the certification of a FLSA collective action.
July 21, 2023
In Harris v. Medical Transportation Management, Inc., the D.C. Circuit reviewed (and reversed) a grant of class certification. But it refused to use pendent appellate jurisdiction to review certification of a collective action under the Fair Labor Standards Act. The court explained that class actions and collective actions “are fundamentally different creatures.” The court of appeals did not need to review the propriety of the collective action to address class certification. And the resolution of the class-certification appeal did not necessarily resolve the propriety of the collective action. The court added that even if it could exercise pendent appellate jurisdiction, it would decline to do so given the complexity of the collective-action issues.
The Eighth Circuit rejected an attempt to manufacture a final decision by conditionally dismissing unresolved claims.
July 21, 2023
In In re Municipal Stormwater Pond Coordinated Litigation, a split Eighth Circuit held that it lacked jurisdiction to review the resolution of some claims when the parties conditionally dismissed other claims.
The parties agreed that, should the Eighth Circuit reverse, the voluntarily dismissed claims could be reinstated. But if the Eighth Circuit affirmed, the voluntarily dismissed claims were forever lost.
A majority of the Eighth Circuit held that this conditional dismissal did not result in a final, appealable decision. Judge Kelly dissented, contending that the dismissal was not actually conditional because the district court did not approve of the dismissal’s terms.
The Fourth Circuit held that once the appeal window is reopened under Rule 4(a)(6), would-be appellants must file a new notice of appeal. A prior one—which the court construed as a Rule 4(a)(6) motion—was insufficient.
July 19, 2023
In Parrish v. United States, a divided Fourth Circuit dismissed an appeal because the would-be appellant did not file a second notice of appeal after the district court reopened the appeal time under Federal Rule of Appellate Procedure 4(a)(6). An earlier notice of appeal—which the Fourth Circuit had construed as a motion to reopen the appeal time—was insufficient. The would-be appellant instead needed to file a new one. Judge Gregory dissented to point out that this second notice of appeal is a needless, formalistic requirement.
Parrish sets up a trap for unwary litigants. And some litigants might fall into that trap; it’s not uncommon for courts of appeals to treat late notices of appeal—often from incarcerated, pro se litigants—as motions to reopen the appeal time under Rule 4(a)(6).
A procedural trap should serve some purpose. I see none in Parrish. I also agree with Judge Gregory that nothing in 28 U.S.C. § 2107(c) nor Rule 4(a)(6) requires a second notice. Hopefully the Fourth Circuit will rethink this matter.