When extensive post-judgment proceedings follow litigation, appeals can get tricky. A new Ninth Circuit decision explains the finality considerations in these cases.
July 1, 2021
Extensive post-judgment proceedings sometimes follow litigation. These proceedings might involve efforts to collect on a judgment. Or they might involve a district court’s supervision of a consent decree or remedial injunction. These post-judgment proceedings are considered a separate action for finality purposes. So litigants have a right to appeal from a final decision. That often means appeals come after the decision that marks the end of the post-judgment proceedings. But it’s not always apparent when those proceedings will end. That uncertainty has required a more nuanced approach to appellate jurisdiction.
In Flores v. Garland, the Ninth Circuit reviewed a district court decision enforcing a consent decree on the conditions of immigration detention for minors. Interestingly, the court had initially suggested that it lacked jurisdiction over the case. When denying the government’s request to stay the district court decision pending the appeal, the Ninth Circuit suggested that the decision was not an appealable injunction under 28 U.S.C. § 1292(a)(1). But when the panel reached the merits, it concluded that the district court’s decision was a final one under 28 U.S.C. § 1291. The decision had a significant impact in that it applied the consent decree to a particular group of immigrants. And an immediate appeal might be the government’s only opportunity for review of the district court’s decision.
The Flores Litigation
Simplifying a bit, Flores involved a 1997 consent decree governing the immigration detention of minors. The decree requires (among other things) that the government place detained minors in a “licensed program” (a “program, agency or organization that is licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children”) within three days of their apprehension.
In response to Covid-19, the Centers for Disease Control ordered that certain immigrants be removed “to the country from which they entered the United States, or their country of origin . . . as rapidly as possible, with as little time spent in congregate settings as practicable under the circumstances.” In enforcing this directive, the government used hotels to house apprehended minors, sometimes for more than three days. When an independent monitor informed the district court of this use of hotels, the district court determined that the Flores consent decree applied to those detained under the CDC order and generally ordered the government to stop placing minors in hotels.
The government then appealed. It also sought a stay of the district court’s decision pending the appeal. The Ninth Circuit denied that stay. The district court’s order, the court thought, required the government to take actions that the consent decree already required. The order merely interpreted—not modified—the existing injunction. And with no modification, there is no appellate jurisdiction under § 1292.
But when it came time for the Ninth Circuit to resolve the appeal’s merits, the court changed its jurisdictional tune.
Appeals in Post-Judgment Proceedings
Finality can be tricky in post-judgment proceedings. Most courts treat these proceedings as a separate action for purposes of finality. That means § 1291 generally governs appellate jurisdiction, and litigants can generally appeal at the end of the post-judgment proceedings. So, for example, in post-judgment proceedings to enforce a judgment, the litigants can appeal from a final order that enforces (or refuses to enforce) the judgment. Similarly, an order that deems a consent decree fulfilled marks the end of post-judgment proceedings and is appealable.
Not all cases are that simple. Consider, for example, a district court’s order denying discovery in a proceeding to collect on a judgment. Denials of discovery are normally not final. But the lack of discovery might completely frustrate efforts to collect on a judgment. Indeed, it’s sometimes impossible to see when post-judgment proceedings will end. Injunctions and consent decrees might have no expiration date, and their implementation—and the district court’s supervision—can take decades.
In these cases, courts of appeals note a shift in the normal costs and benefits of an immediate appeal. There’s less concern with the risk of piecemeal appeal or interrupted proceedings, as the main event of litigation is complete. And there’s a greater concern that denying an immediate appeal will leave a party with no real chance at appellate review. Because of the uncertainty regarding when post-judgment proceedings will end, courts are often concerned with providing some opportunity for appellate review.
The Finality Balance in Flores
In Flores, the Ninth Circuit spelled out its guidelines for determining appealability in the post-judgment context. An order in post-judgment proceedings will be final when (1) the order has “significant, lasting ramifications” and (2) “no further proceedings on the same issue are contemplated, making it unclear that there would be any future opportunity for a party to appeal if it complied with the order.” (Cleaned up.) So “[o]rders contemplating further proceedings on the same issue, such as case management orders and contempt orders that do not impose sanctions, are unlikely to be final.” That’s because “a final order should not anticipate any further proceedings on the same issue and should have some real-world significance.”
Applying these guidelines, the Ninth Circuit concluded that the district court’s order in Flores was final. The order had “a significant impact because it makes clear that the [consent decree] applies to minors expelled under the [CDC] Order and requires the government to comply with the [consent decree] as to those minors.” And absent an immediate appeal, the government was unlikely to have any opportunity to appeal. The district court’s decision was accordingly final under § 1291, and the Ninth Circuit had jurisdiction.
On the merits, the Ninth Circuit affirmed the district court’s order.
Flores v. Garland, 2021 WL 2673142 (9th Cir. June 30, 2021), available at the Ninth Circuit and Westlaw.