The Fourth Circuit explained why pendent appellate jurisdiction does not extend to standing issues in an appeal from the denial of sovereign immunity.
May 18, 2023
In Industrial Services Group, Inc. v. Dobson, the Fourth Circuit gave a convincing explanation for why pendent appellate jurisdiction does not extend to standing in a sovereign-immunity appeal. The courts of appeals have split on this specific issue, and the caselaw is mixed on whether standing is part of other interlocutory appeals. But the Fourth Circuit is on the better side of the issue. Although standing is a threshold issue to proceeding in federal court, it normally does not need to be addressed to resolve other, immediately appealable issues.
Pendent Appellate Jurisdiction Generally
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. I’ve also wondered whether pendent appellate jurisdiction is ever actually needed.
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.
Pendent Appellate Jurisdiction & Standing
Defendants taking an interlocutory appeal sometimes try to add standing issues to the scope of that appeal. After all, standing is a threshold issue in federal litigation. So there’s an intuitive argument that courts must address it before addressing other issues.
Doing so doesn’t always require pendent appellate jurisdiction. For example, a few courts have recently addressed standing as part of class-certification appeals under Federal Rule of Civil Procedure 23(f).
But courts often think that the ability to review standing turns on the existence of pendent appellate jurisdiction. And the outcomes have been mixed. One recent example is the Third Circuit’s refusal to address standing as part of an arbitration appeal. The Eleventh Circuit recently extended pendent appellate jurisdiction to standing in a preliminary-injunction appeal. But that same court has declined to address standing as part of a qualified-immunity appeal.
The issue also comes up with some frequency in sovereign-immunity appeals. The courts of appeals have split on this issue. In just the last few years, the First Circuit extended pendent appellate jurisdiction over standing while the Sixth Circuit refused to do so.
Industrial Services’ Rejection of Pendent Appellate Jurisdiction Over Standing
In Industrial Services, the Fourth Circuit refused to extend pendent appellate jurisdiction to standing, as standing did not satisfy either of the options for exercising that jurisdiction.
When it comes to “inextricably intertwined,” the Fourth Circuit has held that “two separate rulings are ‘inextricably intertwined’ if the same specific question will underlie both the appealable and the non-appealable order, such that resolution of the question will necessarily resolve the appeals from both orders at once.” (Cleaned up.) And addressing standing would require the court to conduct an analysis “entirely irrelevant” to sovereign immunity. So the analyses were not intertwined at all, much less intextricably.
As for the “necessary-to-resolve” option, “review of a pendent issue will be necessary to ensure meaningful review of an immediately appealable issue if resolution of the pendent issue is necessary, or essential in resolving the immediately appealable issue.” (Quotation marks omitted.) And standing is not a necessary prerequisite to addressing sovereign immunity. “While a standing analysis could foreclose the need to address the immunity defense if [the plaintiff] does indeed lack standing, that is not the pendent jurisdiction test.”
The Fourth Circuit recognized that standing is a threshold issue. But it’s “not an essential prerequisite to determining [ ] other jurisdictional, immediately appealable claim[s]” like “Eleventh Amendment immunity.”
For essentially the same reasons, the Fourth Circuit also held that pendent appellate jurisdiction did not extend to issues of Younger abstention. Abstention does not involve “the same specific question as the underlying, appealable immunity question.” “Nor [was] it necessary to review the doctrine of abstention to resolve the immunity defense properly before” the court of appeals.
A Convincing Explanation
I’m convinced by Industrial Services (though that didn’t take much given my general doubts about pendent appellate jurisdiction). Courts can often address immediately appealable issues without considering standing. And while standing is necessary to proceed in federal court, any standing issues can be adequately addressed in an appeal from a final judgment.
To be sure, addressing standing will sometimes be necessary. Preliminary-injunction appeals are probably one example, as they require an courts to assess the likelihood of success on the merits. In such a case, pendent appellate jurisdiction isn’t even needed—standing is part of the analysis.
But in other appeals, such as sovereign-immunity appeals, standing is not an inherent part of the analysis. And courts can adequately address the appealable issues without detours into standing.
Industrial Services Group, Inc. v. Dobson, 2023 WL 3470915 (4th Cir. May 16, 2023), available at the Fourth Circuit and Westlaw