Is Pendent Appellate Jurisdiction Necessary?

Pendent appellate jurisdiction allows a court of appeals to extend jurisdiction over a decision that would not normally be immediately appealable when the court has jurisdiction over another, related decision. Used almost entirely in the context of interlocutory appeals, pendent appellate jurisdiction says that the normally non-appealable issue piggybacks on the appealable one. The standards for pendent appellate jurisdiction are unsettled. The Supreme Court has shown little enthusiasm for the practice. But it is common in the courts of appeals.

In last week’s Schultz v. Alabama, the Eleventh Circuit used pendent appellate jurisdiction to review a decision on both the plaintiff’s standing and the adequacy of the plaintiff’s complaint as part of an injunction appeal. I initially thought that this was a defensible use of pendent appellate jurisdiction. But the case got me thinking: did the court really need pendent appellate jurisdiction? The adequacy of the complaint and the plaintiff’s standing were already part of the preliminary-injunction appeal. All pendent appellate jurisdiction did was let the court opine on orders—not issues—that it otherwise could not have addressed.

I’m starting to wonder if pendent appellate jurisdiction is ever actually necessary.

The Schultz Litigation

Schultz involved constitutional challenges to the bail policies of a county in Alabama. The plaintiff sued several defendants, including the local sheriff that enforced the policy. The plaintiff also sought a preliminary injunction against the county’s bail practices. The sheriff moved to dismiss the complaint, arguing that (1) it failed to state a claim, (2) the plaintiff lacked standing, and (3) he was entitled to sovereign immunity.

The district court granted the preliminary injunction and specified new bail policies for the county. That court also denied the sheriff’s motion to dismiss. The sheriff then appealed. And in that appeal, he sought review of both the preliminary-injunction grant and the denial of his motion to dismiss.

Appellate Jurisdiction, Pendent & Otherwise

Two of the sheriff’s issues were easily inside the Eleventh Circuit’s jurisdiction. The court could review the preliminary-injunction grant under 28 U.S.C. § 1292(a)(1). It could also review the district court’s refusal to dismiss the case on sovereign-immunity grounds, as the denial of sovereign immunity is immediately appealable via the collateral-order doctrine.

Jurisdiction over the sheriff’s other grounds for dismissal—standing and failure to state a claim—were more complicated. A denial of a motion to dismiss on either ground would normally not be appealable. But the court determined that it could review the entirety of the motion-to-dismiss denial via pendent appellate jurisdiction.

Pendent appellate jurisdiction allows courts of appeals to review a decision that would not normally be appealable when that court has jurisdiction over another, related decision. The non-appealable decision tags along with the appealable one, giving the court jurisdiction over issues or parties (or both) that it would not normally have. The standards for extending pendent appellate jurisdiction are unsettled. The Supreme Court has squarely addressed the issue only once, in Swint v. Chambers County Commission, which was not a ringing endorsement of the practice. But the courts of appeals have embraced pendent appellate jurisdiction. And relying on Swint, most of them hold that pendent appellate jurisdiction is proper when either (1) the appealable and non-appealable issues are inextricably intertwined or (2) review of the non-appealable issue is necessary to effectively review the appealable one.

In Schutlz, the Eleventh Circuit held that it could extend pendent appellate jurisdiction over the entirety of the district court’s motion-to-dismiss denial. The court explained that to obtain a preliminary injunction, a plaintiff must have standing and state a claim. The court of appeals thus needed to address the other grounds for dismissal to effectively review the preliminary-injunction grant:

[B]ecause a litigant requires both [standing and a claim] in order to obtain a preliminary injunction, we are permitted to exercise our pendent appellate jurisdiction to review the entirety of the district court’s order denying Sheriff Gentry’s motion to dismiss. Indeed, without standing or a viable legal claim, a litigant is not entitled to a preliminary injunction. Thus, exercising our pendent appellate jurisdiction to review the standing and pleading issues, over which we do not have automatic appellate jurisdiction, is “necessary to ensure meaningful review” of the preliminary injunction.

A majority of the court went on to affirm the denial of the motion to dismiss but reverse the preliminary injunction.

Was Pendent Appellate Jurisdiction Necessary?

At first glance, Schultz seemed like a reasonable exercise of pendent appellate jurisdiction to me. I’m normally critical of the practice. But reviewing the preliminary-injunction grant required assessing the plaintiff’s standing and claim.

On further review, I have some doubts. To be sure, the court of appeals needed to address issues discussed in the district court’s motion-to-dismiss decision. But it didn’t need to review the decision itself.

One of the considerations in granting a preliminary injunction is the likelihood of success on the merits. Reviewing the grant or denial of a preliminary injunction thus requires addressing merits issues like a plaintiff’s standing and the adequacy of the plaintiff’s complaint. So when reviewing a preliminary-injunction order on an interlocutory appeal, an appellate court might have to address issues that were addressed in a decision denying a motion to dismiss.

But that doesn’t mean it has to review the motion to dismiss itself or the decision denying that motion. The issues raised in the motion to dismiss are already part of the preliminary-injunction analysis. Extending review to the actual decision adds nothing to the preliminary-injunction analysis. All pendent appellate jurisdiction does in this scenario is permit the court of appeals to opine on the district court’s decision on the motion to dismiss. That is, rather than affirm or reverse only the preliminary-injunction decision, a court of appeals can also affirm or reverse the motion-to-dismiss decision.

The court of appeals could just have easily addressed on the plaintiff’s standing and the adequacy of the plaintiff’s complaint in the course of reviewing the injunction decision. And when remanding the case, the court of appeals could have simply told the district court to proceed in accordance with the appellate court’s decision. If the appellate court’s analysis undermined the district court’s decision denying the motion to dismiss, the defendant could have sought reconsideration. Or the district court could have reconsidered the decision on its own initiative.

A Note on Pendent Party Appellate Jurisdiction

Also worth noting, the Eleventh Circuit refused to extend pendant party jurisdiction to an appeal from some other defendants, saying that the Eleventh Circuit “does not exercise pendent party appellate jurisdiction.” That’s a good rule. But there’s some conflict in the Eleventh Circuit’s caselaw on this point. To be sure, that court often says that it will not extend pendent party appellate jurisdiction after Swint. But it has done so a few times. The Eleventh Circuit might eventually need to resolve this conflict in its caselaw.

Schultz v. Alabama, 2022 WL 3009566 (11th Cir. July 29, 2022), available at the Eleventh Circuit and Westlaw