Manufactured finality, preservation via denied summary-judgment motions, the standards for (and scope of) class-certification appeals, appealing after dismissals with leave to refile, a slew of new cert petitions, and much more.
May 2, 2023
The two main events in April were probably the Sixth Circuit’s potential expansion of Microsoft Corp. v. Baker and oral argument in the Supreme Court case on preserving issues raised in denied summary-judgment motions.
But there were several other decisions of note. Two courts addressed class-certification appeals under Rule 23(f)—one explaining the standards for granting Rule 23(f) petitions and another holding that it can address standing in those appeals. There seems to be some new tension in the Third Circuit’s caselaw on how litigants can make a dismissal with leave to refile into a final decision. The Ninth Circuit treated the denial of arbitration as an appealable denial of an injunction. And the Eleventh Circuit addressed appellate standing and non-party appeals.
Plus several new cert petitions, the appealability of the Yearsley defense, and much more.
- An Unfortunate Extension of Microsoft
- Oral Argument on Preserving Purely Legal Issues via Denied Summary-Judgment Motions
- The D.C. Circuit on the Considerations for Granting Rule 23(f) Appeals
- The Sixth Circuit Reviewed Standing as Part of a Rule 23(f) Appeal
- Some New Tension in the Third Circuit Over Appealing Dismissals With Leave to Amend?
- The Ninth Circuit Used § 1292(a)(1) to Review the Denial of a Non-FAA Motion to Compel Arbitration
- The Eleventh Circuit on Appellate Standing & Non-Party Appeals
- The Fourth Circuit on Post-Appeal Motions to Intervene
- The First Circuit Avoided Deciding the Appealability of the Yearsley Defense
- No Finality for the Denial of a Proxy’s Rule 41(g) Motion
- Supreme Court Update
- Quick Notes
An Unfortunate Extension of Microsoft
In Ohio Public Employees Retirement System v. Federal Home Loan Mortgage Corporation, the Sixth Circuit held that an invited summary-judgment decision was not final because the plaintiff was trying to circumvent Rule 23(f). The district court had denied class certification. The plaintiff then tried to manufacture a final, appealable decision by asking the district court to enter judgment against it. As the Sixth Circuit saw things, the case was no different from Microsoft Corp. v. Baker.
But there appears to be an important distinction in the underlying order that the Sixth Circuit overlooked. In Microsoft, the district court had merely denied class certification, and the named plaintiffs were free to pursue their individual claims. But in Ohio Public Employees, it looks as though the district court’s class-certification decision effectively precluded the plaintiff from prevailing on even its individual claims. If that’s the case, Ohio Public Employees extends Microsoft to a different variety of manufactured finality. In doing so, it shuts down a valuable and long-recognized tool for accelerating the inevitable end of district court proceedings.
For more on Ohio Public Employees, see my post An Unfortunate Extension of Microsoft.
Ohio Public Employees Retirement System v. Federal Home Loan Mortgage Corporation, 2023 WL 2806242 (6th Cir. Apr. 6, 2023), available at the Sixth Circuit and Westlaw
Oral Argument on Preserving Purely Legal Issues via Denied Summary-Judgment Motions
The Supreme Court heard argument in Dupree v. Younger, which asks whether a denied summary-judgment motion preserves purely legal issues for appeal. You can read about the case in my post on the cert grant from earlier this year.
I hesitate to read much into the argument. There were some suggestions that that the Court was open to holding that purely legal issues are preserved. But there was also some doubt as to whether “purely legal” accurately described the issue in Dupree.
The D.C. Circuit on the Considerations for Granting Rule 23(f) Appeals
In In re White, the D.C. Circuit gave a lengthy explanation for its decision to grant permission to appeal a class-certification denial under Federal Rule of Civil Procedure 23(f). The court addressed how definitive a district court’s decision must be before Rule 23(f) applies and the need to address an unsettled, recurring question of class-action law. Courts of appeals rarely explain their reasons for granting Rule 23(f) appeals, so the decision provides some nice insight into one court’s thinking.
In re White, 2023 WL 2763812 (D.C. Cir. Apr. 4, 2023), available at the D.C. Circuit and Westlaw
The Sixth Circuit Reviewed Standing as Part of a Rule 23(f) Appeal
Speaking of Rule 23(f) appeals, in Fox v. Saginaw County, the Sixth Circuit reviewed a class plaintiff’s standing as part of one of those appeals.
The court gave two reasons for deeming standing within the scope of review. First, Rule 23(f) permits an appeal from an “order.” The rule thus permits appellate review of the entire appealed order, not just the parts of it that concern class-certification issues. (I’ve criticized this reliance on appealable “orders,” but the rule is pretty solidly established at this point.) And in Fox, the district court’s order certifying a class addressed standing.
Second, courts treat standing as part of the class-certification analysis. After all, a district court cannot certify a class if the plaintiff lacks standing. Standing thus affects the propriety of class certification.
Fox v. Saginaw County, 2023 WL 3143922 (6th Cir. Apr. 28, 2023), available at the Sixth Circuit and Westlaw
Some New Tension in the Third Circuit Over Appealing Dismissals With Leave to Amend?
There seems to be some new tension in the Third Circuit’s caselaw on when litigants can appeal after dismissals with leave to amend.
In Thorpe v. Township of Salisbury, the Third Circuit held that it had jurisdiction to review such a dismissal. The district court dismissed the plaintiff’s complaint with leave to amend. But rather than amend, the plaintiff appealed. The Third Circuit noted that such a dismissal is normally not a final, appealable decision. But these dismissals are final if the plaintiff intends to stand on the dismissed complaint. And under the Third Circuit’s decision in Batoff v. State Farm Insurance Co., failing to amend within the specific time amounts to standing on the complaint. The district court’s order was accordingly final.
In a footnote, the Thorpe court appeared to recognize some tension between its decision and the Third Circuit’s decision in Weber v. McGrogan:
Insofar as Weber v. McGrogan questions Batoff’s jurisdictional analysis, Batoff nevertheless remains good law. See 3d Cir. I.O.P. 9.1 (providing that en banc consideration is required to overrule a prior panel’s precedential opinion).
Weber said that litigants must have “a clear an unequivocal intent to decline amendment and immediately appeal that leaves no doubt or ambiguity.” And Weber suggested that the passage of time alone was not enough to create a final decision.
So there appears to be some tension in the Third Circuit’s caselaw on this point.
Thorpe v. Township of Salisbury, 2023 WL 2783255 (3d Cir. Apr. 5, 2023), available at the Third Circuit and Westlaw
The Ninth Circuit Used § 1292(a)(1) to Review the Denial of a Non-FAA Motion to Compel Arbitration
In Jackson v. Amazon.com, Inc., the Ninth Circuit held that it could review the denial of arbitration as a denial of an injunction under 28 U.S.C. § 1292(a)(1).
The Federal Arbitration Act permits immediate appeals from orders refusing to compel arbitration under the Act. But the motion in Jackson was not brought under the Act, as the contract in question was exempted from the Act’s coverage.
The Ninth Circuit nevertheless heard the appeal. Almost 40 years ago, the Ninth Circuit held in International Association of Machinists & Aerospace Workers v. Aloha Airlines, Inc. “that an order denying a motion to compel arbitration is immediately appealable as tantamount to a denial of injunctive relief under 28 U.S.C. § 1292(a)(1).” The Ninth Circuit acknowledged that many other circuits disagree with it on this point. But Aloha Airlines has not been expressly or implicitly overruled.
On the appeal’s merits, the Ninth Circuit affirmed the denial of arbitration.
Jackson v. Amazon.com, Inc., 2023 WL 2997031 (9th Cir. Apr. 19, 2023), available at the Ninth Circuit and Westlaw
The Eleventh Circuit on Appellate Standing & Non-Party Appeals
In Kimberly Regenesis, LLC v. Lee County, the Eleventh Circuit dismissed two appeals from an order rejecting absolute quasi-judicial immunity from a deposition.
The case involved a sober home’s litigation against the county in which it was situation. The home sought to depose a county commissioner, and the county objected on the grounds of absolute quasi-judicial immunity. The commissioner himself never objected. The district court denied the motion, and both the county and commissioner appealed.
The Eleventh Circuit held that it lacked jurisdiction over both appeals. As to to county, it lacked standing to appeal. The district court’s decision implicated only the commissioner’s potential immunity. So the rejection of that immunity did not injure the county. And as to the commissioner, he was not a party who could appeal. He never intervened to challenge the deposition, nor had he ever participated in the litigation before appealing. (For more on non-party discovery appeals, see my post Third Parties & “Party” Status for Discovery Appeals.)
Kimberly Regenesis, LLC v. Lee County, 2023 WL 2848318 (11th Cir. Apr. 10, 2023), available at the Eleventh Circuit and Westlaw
The Fourth Circuit on Post-Appeal Motions to Intervene
In FTC v. Lin, the Fourth Circuit held that the district court lacked jurisdiction to entertain a motion to intervene filed after a party had appealed. The notice of appeal deprived the district court of jurisdiction over the aspects of the case involved in the appeal. So the district court could not rule on the would-be intervenors’ motion, which sought to undo portions of the judgment that was on appeal.
FTC v. Lin, 2023 WL 2977746 (4th Cir. Apr. 18, 2023), available at the Fourth Circuit and Westlaw
The First Circuit Avoided Deciding the Appealability of the Yearsley Defense
In Posada v. Cultural Care, Inc., the First Circuit used “hypothetical jurisdiction” to avoid deciding whether denials of the Yearsley defense are immediately appealable via the collateral-order doctrine.
The Supreme Court held in Yearsley v. W.A. Ross Construction Co. that those acting as agents or officers of the government are not liable for actions that the government authorized and directed. The district court in Posada denied the defendant’s Yearsley defense, after which the defendant appealed.
The First Circuit spent some time considering whether Yearsley is an immunity from suit (and thus its denial probably immediately appealable) or a defense to liability (not appealable). But the court ultimately avoided answering that question. It could do so via “hypothetical jurisdiction,” as even if appellate jurisdiction existed, the court would affirm. The First Circuit also declined to extend pendent appellate jurisdiction to other defenses, as addressing the Yearsley issue did not require addressing the elements of those other defenses.
One note about Posada. When considering whether denials of the Yearsley defense were immediately appealable, the First Circuit suggested that one requirement for an appeal was that the defendant had “advanced a ‘substantial claim’ of immunity.” This sort of requirement gets things backwards. It makes appellate jurisdiction turn, at least partially, on the appeal’s merits. It thus requires a court of appeals to inquire into a case’s merits to determine if it has jurisdiction to address those merits. This requirement also demonstrates why appeals from denied defenses—even if those defenses can be characterized as an “immunity from suit”—don’t actually fall under the collateral-order doctrine.
Posada v. Cultural Care, Inc., 2023 WL 3088814 (1st Cir. Apr. 26, 2023), available at the First Circuit and Westlaw
No Finality for the Denial of a Proxy’s Rule 41(g) Motion
In United States v. Nocito, the Third Circuit held that the denial of a Rule 41(g) motion was not final because the movant was essentially the defendant’s proxy.
After the defendant unsuccessfully sought access to documents used in the investigation, companies the defendant owned and controlled intervened and sought return of the documents under Federal Rule of Criminal Procedure 41(g). The district court determined that the intervenors were trying to use Rule 41(g) to suppress evidence and denied their motion.
The Third Circuit dismissed the intervenors’ subsequent appeal. The denial of a Rule 41(g) motion can be final when it seeks only the return of property and is not intertwined with an ongoing criminal proceeding. And the intervenors motion sought more than just property. They instead sought to restrict the government’s access to evidence. Indeed, the Rule 41(g) motion was “plainly [the defendant]’s attempt to have his shell companies do what he could not”: undo the government’s reliance on the documents in question. Further, the motion was obviously tied to the ongoing criminal proceeding.
United States v. Nocito, 2023 WL 2751910 (3d Cir. Apr. 3, 2023), available at the Third Circuit and Westlaw
Supreme Court Update
There were several new cert petitions worth noting.
Amara & Post-Judgment Appeals
Disclosure: I consulted on the petition in Amara.
The petition in Amara v. Cigna Corp. asks if litigants can wait until the end of post-judgment proceedings to appeal, with the scope of review then including all post-judgment decisions. You can read about the Second Circuit’s decision in a prior roundup.
The respondent has waived a response, and the petition has been distributed for the May 11, 2023, conference.
Petition for a Writ of Certiorari, Amara v. Cigna Corp., No. 22-999 (Apr. 12, 2023), available at the Supreme Court and Westlaw
Carswell & Deferred Qualified-Immunity Decisions
The petition in Carswell v. Camp asks if defendants can immediately appeal from a district court’s deferring to rule on qualified immunity at the motion-to-dismiss stage. We’ve seen several of these deferral appeals in prior roundups (including Carswell itself), and I wrote about this issue in my recent article on reforming qualified-immunity appeals.
The respondent initially waived a response, and the petition was scheduled for the May 11, 2023, conference. But the Court has requested a response, which is due May 25, 2023.
Petition for a Writ of Certiorari, Carswell v. Camp, No. 22-959 (Mar. 30, 2023), available at the Supreme Court and Westlaw
Williams & Pendent Appellate Jurisdiction Over Standing
The petition in Williams v. Davis asks if courts can extend pendent appellate jurisdiction over standing issues in a sovereign-immunity appeal. This is another issue that we’ve seen repeatedly in prior roundups, and you can read about the split over pendent appellate jurisdiction and standing in my post Standing & the Scope of Arbitration Appeals. You can read about the Fifth Circuit’s decision in Williams in January’s roundup.
The respondent has waived a response, and the petition has been distributed for the May 11, 2023, conference.
Petition for a Writ of Certiorari, Williams v. Davis, No. 983 (Apr. 6, 2023), available at the Supreme Court and Westlaw
Gonzalez-Rivas v. Garland, No. 22-1038
The petition (no PDF publicly available) in Gonzalez-Rivas v. Garland asks if appellate courts can review extreme-and-unusual-hardship determinations in immigration appeals. You can read about the split on this issue in a post about another (still-pending) cert petition that raised the same issue and a post from a few years ago on the emerging split.
The response is due May 25, 2023.
Petition for a Writ of Certiorari, Gonzalez-Rivas v. Garland, No. 22-1038 (Apr. 21, 2023), available at Westlaw
Quick Notes
In Contant v. AMA Capital, LLC, the Second Circuit reviewed the rejection of a class member’s claims. The appellant was a claimant in an antitrust class-action settlement, and the claims administrator denied its claims due to insufficient documentary support. The Second Circuit said that this rejection was immediately appealable via the collateral-order doctrine.
Contant v. AMA Capital, LLC, 2023 WL 2939946 (2d Cir. Apr. 14, 2023), available at CourtListener and Westlaw
In Conway v. Smith Development, Inc., the Fourth Circuit held that it lacked jurisdiction to review a district court’s decision under 28 U.S.C. § 1334(c)(1) to abstain from hearing an adversarial suit related to a Chapter 11 proceeding. Section 1334(d) bars appellate review of any decision to abstain or not abstain. The Fourth Circuit also noted that some courts of appeals have recognized exceptions to § 1334(d)’s appeal bar. But the Fourth Circuit declined to address the existence of any exceptions, as none would apply in Conway.
Conway v. Smith Development, Inc., 2023 WL 2764662 (4th Cir. Apr. 4, 2023), available at the Fourth Circuit and Westlaw
In Northern Illinois Gas Company v. USIC, LLC, The Eleventh Circuit avoided deciding “whether an oral ruling coupled with a minute entry onto the civil docket counts as a judgment that triggers the 150-day clock for entry of a judgment and the 30-day appeal period.” The court could do so because, even if they did, the appellant filed a timely Rule 59(e) motion that reset the appeal clock.
Northern Illinois Gas Company v. USIC, LLC, 2023 WL 2977784 (11th Cir. Apr. 18, 2023), available at the Eleventh Circuit and Westlaw