Posts in category “Weekly Roundup”
I saw only three decisions of note last week. The Fifth Circuit used pendent appellate jurisdiction to review an interlocutory discovery order. And the Sixth Circuit addressed its appellate jurisdiction in two habeas cases. One concerned an order requiring a petitioner’s transport to a university hospital for medical examination. The other concerned expanding the scope of an initial appeal to excuse the failure to timely file a subsequent appeal.
Last week, the Seventh Circuit reviewed a dismissal without prejudice, as the plaintiff could not do anything to correct the defects that led to the without-prejudice dismissal. Judge Easterbrook concurred to explain that once a district court is finished with a case, that court has issued a final decision.
In three decisions, courts of appeals addressed various aspects of qualified immunity. The Third Circuit held that defendants can immediately appeal from denials of qualified immunity under New Jersey’s Civil Rights Act. Immunity under the Act is an immunity from litigation, making an immediate appeal necessary. The Sixth Circuit dismissed a qualified-immunity appeal when the district court granted summary judgment for the plaintiff on the claim in question. That grant of summary judgment ended litigation on that particular claim, so there was no need for immediate appellate review. After all, a reversal would subject the defendants to additional litigation, not protect them from it. And the Seventh Circuit split on the interpretation of a video in a qualified-immunity appeal. The majority thought that the video was subject to interpretation, meaning that genuine factual issues precluded granting qualified immunity. Chief Judge Sykes dissented to contend that the video unambiguously depicted the events in question, so the court of appeals could reverse the denial of immunity.
Finally, the Eleventh Circuit immediately reviewed a determination of who controlled a party to litigation via the collateral-order doctrine. In doing so, the court distinguished the case from the normal interlocutory appeal involving disqualification of counsel.
Quick roundup this week. A split Ninth Circuit divided over the scope of a Rule 23(f) appeal. The majority held that it could review whether a defendant waived a personal-jurisdiction objection to class certification. The dissent thought that personal jurisdiction was outside the scope of review.
In other decisions, the Ninth Circuit said that “heirs” is not specific enough to satisfy Federal Rule of Appellate Procedure 3(c)(1)’s party-designation requirement. The Tenth Circuit said that a notice of appeal from a “clearly interlocutory” order did not relate forward to the district court’s final decision. The Fifth Circuit explained the appellate-jurisdiction consequences of electing to bring maritime claims in the district court’s civil jurisdiction. And the Tenth Circuit said that a post-judgment motion did not delay the start of the appeal clock when the motion did not seek any substantive changes to the judgment.
In Supreme Court developments, a new cert petition asks if the Federal Circuit can review a refusal to institute inter partes review under the NHK–Fintiv rule.
There is lots to talk about from last week, including decisions involving three circuit splits. A divided Second Circuit created a split over the appealability of fugitive-disentitlement orders. The Eighth Circuit held that bankruptcy’s appeal deadline is non-jurisdictional, joining the Sixth Circuit in the split on that issue. And the Fifth Circuit noted that it now stands alone as the only court to allow appeals from denials of antitrust’s state-action defense.
In other decisions, the Second Circuit said that the scope of review in a certified bankruptcy appeal included only those issues presented in the certified order—not the specific questions that the bankruptcy court thought merited an immediate appeal. The Federal Circuit said that the time for filing a § 1292(c)(2) appeal ran from the denial of a new trial on liability, even though the district court had not yet resolved a motion for a new trial on the amount of damages. And the Eighth Circuit deemed a notice of appeal sufficient, despite the notice saying it was from, and to, courts that don’t exist. Plus an improper Rule 54(b) partial judgment, pendent appellate jurisdiction in a Rule 23(f) appeal, and a form notice of appeal in a criminal case.
Last week, the Fourth Circuit held that it could review hardship determinations in immigration appeals. In doing so, the court added to one side of the circuit split on this issue.
In other decisions, the Eleventh Circuit heard an appeal from the denial of immunity under the Foreign Sovereign Immunities Act in a criminal case. The Ninth Circuit dismissed an appeal that challenged a “common-fund” attorneys’ fees award in an ongoing class action. The Second Circuit held that a motion to reconsider a First Step Act denial delayed the start of the appeal clock. In another case, the Second Circuit said that a district court could not correct clerical errors in a judgment once the defendant had appealed the refusal to correct those errors.
Plus decisions on factual challenges in qualified-immunity appeals, an informal notice of appeal, and pendent appellate jurisdiction over the political-question defense.
All of the appellate-jurisdiction action last week was in the Sixth and Eleventh Circuits.
The en banc Eleventh Circuit unanimously overruled its caselaw that allowed defendants to immediately appeal the denial of antitrust’s state-action defense, which is often called “Parker immunity.” The court explained that the defense is not an immunity from suit. So appeals after a final judgment suffice.
The Sixth Circuit split over its jurisdiction after a plaintiff voluntarily dismissed some of its claims without prejudice. This is an issue that several courts of appeals have had to wrestle with in the last few years. The Sixth Circuit also dismissed an interlocutory appeal that asked only whether a Bivens remedy existed for the defendant’s alleged conduct. Although this Bivens question can normally tag along with an appeal from the denial of qualified immunity, the defendant did not ask the district court for immunity. With no qualified-immunity appeal, there was no jurisdictional basis for the Sixth Circuit to review the Bivens issue.
The Eleventh Circuit had two additional decisions of note. That court reviewed the denial of a Rule 35(b) sentence-reduction motion, as the defendant argued that the district court had committed a legal error in refusing to reduce his sentence. The Eleventh Circuit also dismissed an appeal form a discovery order entered in Chapter 15 bankruptcy proceedings. The discovery order was part of an effort to enforce a foreign bankruptcy court’s order freezing assets. So the discovery order did not mark the end of the relevant bankruptcy proceeding.
In a case from a few weeks ago that I just saw, the Fifth Circuit weighed in on the split over reviewing hardship determinations in immigration appeals. The court sided with the Sixth and Eleventh in treating hardship determinations as mixed questions of law and fact that the court had jurisdiction to review.
In other decisions, the Federal Circuit held that it could review a harmless-error determination by the Veterans Court. The Fifth and Eleventh Circuits addressed pendent appellate jurisdiction in immunity appeals. The Fifth Circuit also reviewed the denial of a Criminal Rule 41(g) motion for the return of seized property, as there was not yet a (confirmed) criminal prosecution in existence. Plus a decision on finality with unserved defendants and a decision in which the failure to set out a judgment in a separate document saved a seemingly tardy motion for reconsideration.
Last week saw a possible variation on the Fifth Circuit’s finality trap: the plaintiff voluntarily dismissed some of its claims before the district court dismissed the remainder. Thankfully the Fifth Circuit saw no effort to manufacture an appeal and concluded that the district court’s dismissal was appealable.
In other decisions, the Eighth Circuit reviewed a remand under CAFA’s local-controversy exception. The Federal Circuit said that the government’s notice of appeal was timely even if the Solicitor General had not yet authorized the appeal. And the D.C. Circuit dismissed an appeal from the settlement of only some class-action claims in multidistrict litigation.
Last week saw several decisions tackling difficult appellate-jurisdiction issues. Primary among them was the Seventh Circuit’s decision recognizing the messiness in its decisions reviewing extensions of the appeal deadline for excusable neglect. That court treats the excusable-neglect requirement as jurisdictional, but it reviews these excusable-neglect determinations only for an abuse of discretion.
In other decisions, the Ninth Circuit had to address its jurisdiction in post-judgment proceedings overseeing a consent decree. The First Circuit deemed a stay indefinite and thus appealable. Several courts rejected attempts to challenge the factual basis for qualified-immunity denials. In another qualified-immunity appeal, the Eighth Circuit rejected a city’s attempt to appeal a Monell issue via pendent appellate jurisdiction. And the en banc Fourth Circuit missed an opportunity to address the jurisdictionality of immigration exhaustion.
Finally, the Supreme Court denied cert in two cases of note.
Last week, the Seventh Circuit explained the circumstances under which litigants can appeal from Colorado River stays: issues need not be identical, nor must the state court proceedings resolve all of the federal action. The Eleventh Circuit held that it could review a denial of asylum even though an immigration petitioner had been granted withholding of removal. In another case, that court refused to extend pendent appellate jurisdiction over the refusal to compel arbitration under state law. Finally, cert-stage briefing is complete in a case that asks if Perlman appeals require a claim of privilege. But the petition is not scheduled for conference until next fall.
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