Monthly Roundup

The Month in Federal Appellate Jurisdiction: April 2024

Notices of appeal, manufactured finality, unresolved claims, qualified-immunity appeals, and much, much more.

May 3, 2024

By Bryan Lammon

April was a very busy month, with dozens of decisions and developments worth mentioning. Let’s get started.

No Rehearing on Rule 4(a)(6) & Multi-Purpose Notices of Appeal
Tenth Circuit Rejects Anti-SLAPP Appeals
Frivolous Federal-Officer Removal
Manufactured Finality & Dispositive Interlocutory Orders
Appeals After Unresolved Claims & Theories
Heck & Judicial Estoppel in Qualified-Immunity Appeals
Delay & Denials of Preliminary Injunctions
New Arguments After a Notice of Appeal
Appellate Jurisdiction of Denials of Permanent Residence
The Finality of Bankruptcy Court Orders Recognizing Foreign Proceedings
Reconsidering a Prior Panel’s Jurisdiction
The Civil-Appeal Deadline & the Disqualification of Criminal Defense Counsel
Remand Appeals from the Veterans Court
No Cumulative Finality for an Unfinished Decree of Sale
A Pair of Rejected Rule 54(b) Judgments
The Fourth Circuit Split on Contempt Appeals in Bankruptcy
Appealing Deferred Rulings on Qualified Immunity
A Pair of Decisions on Qualified Immunity & Video
The Month’s Improper, Fact-Based Qualified-Immunity Appeals
Quick Notes

No Rehearing on Rule 4(a)(6) & Multi-Purpose Notices of Appeal

Disclosure: I filed an amicus brief in support of rehearing in this appeal.

In last summer’s Parrish v. United States, a divided Fourth Circuit panel held that when a notice of appeal is treated as a motion to reopen the appeal period under Federal Rule of Appellate Procedure 4(a)(6), the would-be appellant must file a second notice of appeal after that motion is granted. The majority thought that by using the term “reopen” in 28 U.S.C. § 2107(c)—the statute that Rule 4(a)(6) implements—Congress intended to create a second, separate appeal period, distinct from the original one. And a new notice must be filed within that new appeal period. The original notice, which had been treated as a Rule 4(a)(6) motion, was insufficient.

I was pretty critical of the decision—see my post The Fourth Circuit Requires a Second Notice of Appeal After the Appeal Window is Reopened. The issue is one on which the courts have split, and the Fourth Circuit’s side makes little sense to me.

I was accordingly happy to see the plaintiff seek rehearing en banc. I filed an amicus brief in support of rehearing, arguing that the panel’s decision—in addition to being wrong for all the reasons set out in the rehearing petition—conflicted with the cumulative-finality doctrine. The United States (the defendant in the action) agreed that the panel decision was wrong. But it thought that the issue was not important enough to warrant en banc rehearing.

A divided Fourth Circuit denied rehearing en banc, with nine judges voting against rehearing and six voting for it.

Parrish v. United States, 2024 WL 1736340 (4th Cir. Apr. 23, 2024), available at the Fourth Circuit and Westlaw

Tenth Circuit Rejects Anti-SLAPP Appeals

In Coomer v. Make Your Life Epic LLC, the Tenth Circuit held that denials of anti-SLAPP motions under Colorado law are not immediately appealable via the collateral-order doctrine.

The court drew an interesting line between appeals involving primarily legal issues—which can warrant immediate appeal—and those involving primarily factual issues—which don’t. The court explained that fact-heavy appeals are difficult to separate from an action’s underlying merits. Those appeals also come with a risk of duplicative, piecemeal appellate review.

Anti-SLAPP appeals fell on the fact side of the line, as they require appellate courts to assess the potential merits of a plaintiff’s claim.

Coomer v. Make Your Life Epic LLC, 2024 WL 1726411 (10th Cir. Apr. 23, 2024), available at the Tenth Circuit and Westlaw

Frivolous Federal-Officer Removal

In Roberts v. Smith & Wesson Brands, Inc., the Seventh Circuit affirmed a district court order remanding an action to state court. Although remand orders are generally not reviewable on appeal, the defendants in Roberts had invoked federal-officer removal and thus could obtain plenary review. But the Seventh Circuit seemed to think that this invocation of federal-officer removal was frivolous. The court accordingly suggested that the district court consider ordering the defendants to pay the plaintiffs’ fees and costs.

Roberts v. Smith & Wesson Brands, Inc., 2024 WL 1506835 (7th Cir. Apr. 8, 2024), available at the Seventh Circuit and Westlaw

Manufactured Finality & Dispositive Interlocutory Orders

In New York State Telecommunications Association v. James, the Second Circuit split over an attempt at manufacturing finality. The district court had granted a preliminary injunction after concluding that federal law preempted a New York state law. The parties then stipulated to entry of a final judgment. A majority of the Second Circuit determined that this preemption decision effectively resolved the action, meaning the state could appeal. Judge Sullivan disagreed, emphasizing that the preemption decision was necessarily preliminary.

The decision nicely illustrates something I talk about in a forthcoming article: the different varieties of manufactured finality. The majority thought that the parties had tried to facilitate an appeal after a district court decision that—though technically interlocutory—effectively determined who won. (I call this manufactured finality after a “dispositive interlocutory decision.”) The dissent thought that the preliminary-injunction decision, though bad for the state, did not resolve the action. (I call this manufactured finality after an “adverse interlocutory decision.”) So in the dissent’s view, the parties tried to undermine the normal rules of appellate jurisdiction.

New York State Telecommunications Association v. James, 2024 WL 1814541 (2d Cir. Apr. 26, 2024), available at CourtListener and Westlaw

Appeals After Unresolved Claims & Theories

The general, well-known, and riddled-with-exceptions rule is that a decision is not final until the district court has resolved all of the parties’ claims. So what should courts do when the district court overlooks a claim or theory of relief that one of the parties had pleaded? A handful of recent decisions have raised this question. And the answer is not always the same.

Dimas v. Pecos Independent School District Board of Education, 2024 WL 1881076 (10th Cir. Apr. 30, 2024), available at the Tenth Circuit and Westlaw

International Transport Management Corp. v. Brooks Fitch Apparel Group LLC, 2024 WL 1672254 (3d Cir. Apr. 18, 2024), available at the Third Circuit and Westlaw

B.P.J. ex rel. Jackson v. West Virginia State Board of Education, 2024 WL 1627008 (4th Cir. Apr. 16, 2024), available at the Fourth Circuit and Westlaw

Klein v. Caterpillar, 2024 WL 1574672 (6th Cir. Apr. 11, 2024), available at the Sixth Circuit and Westlaw

Migdon v. 171 Holdings, L.L.C., 2024 WL 1531446 (5th Cir. Apr. 9, 2024), available at the Fifth Circuit and Westlaw

New York State Telecommunications Association v. James, 2024 WL 1814541 (2d Cir. Apr. 26, 2024), available at CourtListener and Westlaw

Heck & Judicial Estoppel in Qualified-Immunity Appeals

In Chaney-Snell v. Young, the Sixth Circuit held that Heck v. Humphrey issues are outside the scope of qualified-immunity appeals. In doing so, the Sixth Circuit joined the majority of circuits in the (lopsided) split on this matter. The court went on, however, to extend pendent appellate jurisdiction to a judicial-estoppel argument. Extending jurisdiction was necessary, the court explained, to effectively review the denial of qualified immunity.

While I agree with the Heck holding, I don’t agree with the review of the judicial-estoppel issue. The court’s rationale on the latter point would seem to allow plenary review of the factual basis for a district court’s immunity denial. And Johnson v. Jones normally prohibits that sort of review.

(For more on the scope of qualified-immunity appeals, see my article, Reforming Qualified-Immunity Appeals.)

Chaney-Snell v. Young, 2024 WL 1616406 (6th Cir. Apr. 15, 2024), available at the Sixth Circuit and Westlaw

Delay & Denials of Preliminary Injunctions

In In re Fort Worth Chamber of Commerce, a divided Fifth Circuit held that the delay in resolving a preliminary-injunction motion effectively denied that motion. The court thought that the context of the case—impending changes to regulations—required quick action. So when the district court did not decide the preliminary-injunction request by the plaintiffs’ desired date, the Fifth Circuit treated that delay as an appealable denial of a preliminary injunction under 28 U.S.C. § 1292(a)(1).

In re Fort Worth Chamber of Commerce, 2024 WL 1483817 (5th Cir. Apr. 5, 2024), available at the Fifth Circuit and Westlaw

New Arguments After a Notice of Appeal

In McGruder v. Metropolitan Government of Nashville & Davidson County, the Sixth Circuit said that it would address a judicial-estoppel defense raised for the first time after the defendant had filed its notice of appeal.

The Sixth Circuit framed this issue as one implicating the content and timing requirements for a notice of appeal. The defendant’s notice had not designated a decision on the judicial-estoppel defense. And the only decision relevant to that defense came after the notice of appeal. The Sixth Circuit nevertheless concluded that it could address judicial estoppel in the first instance. The matter had been fully briefed in the district court. And courts can address judicial-estoppel issues on their own initiative.

While I agree with the outcome in McGruder, I’m not sure that the case implicates the issues it addresses. I think the case instead implicates the prudential limits on appellate courts’ addressing issues in the first instance.

McGruder v. Metropolitan Government of Nashville & Davidson County, 2024 WL 1653480 (6th Cir. Apr. 17, 2024), available at the Sixth Circuit and Westlaw

Appellate Jurisdiction of Denials of Permanent Residence

In Shaiban v. Jaddou, the Fourth Circuit held that it lacked jurisdiction to review the denial of an immigrant’s application for permanent residence under 8 U.S.C. § 1159(b). Under 18 U.S.C. § 1252(a)(2)(B)(ii), courts lack jurisdiction to review certain discretionary decisions in the immigration context. And the government has discretion when it comes to adjusting an asylee’s status to that of permanent resident.

Shaiban v. Jaddou, 2024 WL 1422735 (4th Cir. Apr. 3, 2024), available at the Fourth Circuit and Westlaw

The Finality of Bankruptcy Court Orders Recognizing Foreign Proceedings

In In re Al Zawawi, the Eleventh Circuit held that a bankruptcy court order recognizing a foreign proceeding is final and thus appealable.

In re Al Zawawi, 2024 WL 1423871 (11th Cir. Apr. 3, 2024), available at the Eleventh Circuit and Westlaw

Reconsidering a Prior Panel’s Jurisdiction

In RJ Control Consultants, Inc. v. Multiject, LLC, the Sixth Circuit held that it lacked appellate jurisdiction over a prior appeal in an action. The court accordingly vacated the prior panel’s decision.

I don’t think I’ve ever seen this before. And while it might be an okay practice in appeals from the same action (though I have doubts), I don’t think appellate panels should—indeed, can—inquire into jurisdiction in prior decisions.

RJ Control Consultants, Inc. v. Multiject, LLC, 2024 WL 1432723 (6th Cir. Apr. 3, 2024), available at the Sixth Circuit and Westlaw

The Civil-Appeal Deadline & the Disqualification of Criminal Defense Counsel

In Amador v. United States, the First Circuit held that the civil-appeal deadline applied to a criminal defense attorney’s appeal from a disqualification order. The court reasoned that the appeal did not involve the underlying conviction or sentence, nor was the appeal brought on behalf of the defendant. The appeal was thus collateral to the criminal prosecution, and the civil-appeal deadline applied.

Amador v. United States, 2024 WL 1403188 (1st Cir. Apr. 2, 2024), available at the First Circuit and Westlaw

Remand Appeals from the Veterans Court

In Chavez v. McDonough, the Federal Circuit reviewed an order of the Veterans Court that remanded an action for further proceedings. Veterans Court remand orders normally are not immediately appealable. But these orders can be final and thus appealable when they (among other things) involve an argument that the Veterans Court lacked authority to order the remand.

Chavez v. McDonough, 2024 WL 1685140 (Fed. Cir. Apr. 19, 2024), available at the Federal Circuit and Westlaw

No Cumulative Finality for an Unfinished Decree of Sale

In United States v. Allahyari, the Ninth Circuit dismissed a premature appeal from a decision deeming property subject to foreclosure.

Although the district court had determined that foreclosure was appropriate, it had not determined the value of the foreclosed property or determined the rights of all parties to the foreclosed property. Further,the subsequent valuation of the property did not save the premature notice. Under the Ninth Circuit’s law of cumulative finality, Federal Rule of Appellate Procedure 4(a)(2) cannot “be stretched to cover a premature notice of appeal directed at an order that explicitly deferred resolution of the quantification of a monetary award and that called for briefing from the parties on that issue.”

Fortunately for the appellant, the district court had never entered a final decision. So the appellant still had an opportunity to appeal once the district court “settled all the rights of the parties and left nothing to be done but to make the sale and pay out the proceeds in accordance with the decree’s terms.” (Cleaned up.) The appellant was thus saved by the unfortunate fate that sometimes befalls litigants in the context of cumulative finality: missing the appeal window.

United States v. Allahyari, 2024 WL 1647220 (9th Cir. Apr. 17, 2024), available at the Ninth Circuit and Westlaw

A Pair of Rejected Rule 54(b) Judgments

Two courts of appeals addressed the propriety of partial judgments under Federal Rule of Civil Procedure 54(b).

In two decisions—In re Takata Airbag Products Liability Litigation and Li v. Walsh—the Eleventh Circuit dismissed the appeals. In each case, the resolved claims were not sufficiently distinct from those that remained pending. In Takata, for example, there was a significant risk of multiple appellate panels duplicating each other’s work—particularly in familiarizing themselves with the “immense district court docket,” as the underlying action was involved multidistrict litigation.

And neither case presented unique, compelling reasons for an immediate appeal. The appellants proffered reasons were instead common to litigation. In Li, for example, the Eleventh Circuit explained that “lengthy litigation, although perhaps inconvenient, is not enough—there must be some indication that this [delay] would diminish a party’s ability to recover, or that there is some other pressing need for an early and separate judgment.” (Quotation marks omitted.)

Contrast these cases with WEC 98C-3 LLC v. SFA Holdings Inc., in which the Seventh Circuit held that a district court properly entered a partial judgment. Under Illinois landlord-tenant law, the resolved claims for unpaid rent were sufficiently separate from any other claims for unpaid rent. The plaintiff had properly waived an unresolved, overlapping claim at oral argument. And the district court’s decision to enter a parial judgment was not “clearly unreasonable.”

In re Takata Airbag Products Liability Litigation, 2024 WL 1716491 (11th Cir. Apr. 22, 2024), available at the Eleventh Circuit and Westlaw

Li v. Walsh, 2024 WL 1716489 (11th Cir. Apr. 22, 2024), available at the Eleventh Circuit and Westlaw

WEC 98C-3 LLC v. SFA Holdings Inc., 2024 WL 1749940 (7th Cir. Apr. 24, 2024), available at the Seventh Circuit and Westlaw

The Fourth Circuit Split on Contempt Appeals in Bankruptcy

In In re Bestwall, LLC, a divided Fourth Circuit held that a bankruptcy court’s contempt and sanctions orders were not final, appealable orders.

The majority determined that the contempt and sanctions orders did not resolve a distinct procedural unit separate from the pending bankruptcy action. They instead stemmed from a discovery dispute. And discovery orders are rarely final orders in bankruptcy.

Judge King dissented. He invoked the long-standing rule for contempt appeals: “a nonparty is generally entitled to appeal a final contempt order, before the conclusion of related litigation.” The lawyers and parties held in contempt in Bestwall were not parties to the bankruptcy. So they should have been able to appeal.

In re Bestwall, LLC, 2024 WL 1841960 (4th Cir. Apr. 29, 2024), available at the Fourth Circuit and Westlaw

Appealing Deferred Rulings on Qualified Immunity

In Arroyo v. Myers, the Tenth Circuit explained that a decision to defer ruling on qualified immunity is not immediately appealable when the underlying action is stayed.

Sometimes, a district court’s decision to defer ruling on qualified immunity is immediately appealable. The deferral must amount to an effective denial—that is, the deferral must deprive the defendant of qualified immunity’s protections.

But not all deferrals are effective denials. And the one in Arroyo was not.

The district court had deferred ruling on the defendant’s immunity pending an interlocutory appeal on an unrelated issue. While that appeal was pending, all claims against the appealing defendant were stayed. The deferral was thus a proper exercise in judicial administration. And the district court would entertain a renewed motion to dismiss on immunity grounds after the unrelated appeal was complete.

The Tenth Circuit added that the remaining minimal litigation burdens (if they can even be called that) did not warrant an immediate appeal. The defendant claimed burdens from having to pay his attorney to check the district court’s docket and answer calls from the defendant. But “these expenses cannot be characterized as the sort of ‘meaningful’ burden implicating the purpose of the qualified immunity doctrine.” Indeed, “the only actual litigation burden currently imposed on [the defendant] [was] of his own making—litigating this appeal.”

Arroyo v. Myers, 2024 WL 1714490 (10th Cir. Apr. 22, 2024), available at the Tenth Circuit and Westlaw

A Pair of Decisions on Qualified Immunity & Video

In two decisions—Lewis v. Caraballo and Jackson v. City of Atlanta—courts addressed the relevance of video evidence in qualified-immunity appeals.

Video Evidence in Qualified-Immunity Appeals

Video evidence is sometimes an issue in these appeals due to the Supreme Court’s decision in Scott v. Harris. The normal rule in qualified-immunity appeals is that defendants cannot challenge the factual basis for an immunity denial. They must instead take the district court’s assessment of the evidence as given and argue that the facts that the district court took as true do not amount to a violation of clearly established law.

But in Scott, the Supreme Court appeared to reject a district court’s assessment of the evidence because that assessment was blatantly contradicted by a video of the events. The Court did not explain its jurisdiction to do so. The courts of appeals have subsequently made sense of Scott by holding that they can review video evidence in a qualified-immunity appeal when that evidence “blatantly contradicts” the facts that the district court assumed to be true when denying immunity.

Lewis & the Blatant-Contradiction Exception

In Lewis, the Fourth Circuit held that a video of an arrest did not blatantly contradict the the plaintiff’s version of events. The court emphasized that Scott’s blatant-contradiction exception “is a very difficulty one to satisfy.” And the video in Lewis was inadequate. The “intermittent obstructions and interruptions” in the video made in inconclusive as to the events in question. (Cleaned up.) So the court of appeals limited itself to the facts that the district court thought a reasonable jury could find.

Jackson & the Refusal to Consider Video

In Jackson, the Eleventh Circuit held that it lacked jurisdiction to review a district court decision not to consider video evidence when deciding a motion to dismiss on qualified-immunity grounds. The defendant in Jackson argued that when clear video evidence of events exists, “that video should provide the factual predicates for a court’s determination of dispositive motions”—even motions to dismiss. But the district court’s decision not to consider a video was essentially a discretionary evidentiary ruling. The court likened it to a decision on evidence sufficiency at the summary-judgment stage. And just like those evidence-sufficiency decisions, the district court’s refusal to consider a video was beyond the scope of a qualified-immunity appeal.

Jackson v. City of Atlanta, 2024 WL 1472526 (11th Cir. Apr. 5, 2024), available at the Eleventh Circuit and Westlaw

The Month’s Improper, Fact-Based Qualified-Immunity Appeals

Related to the just-discussed decisions, several courts of appeals dealt with fact-based qualified-immunity appeals, in which defendants at least partially challenged the factual basis for an immunity denial. Given their frequency, I’ve taken to simply listing these appeals each month.

Little v. City of Morristown, 2024 WL 1530468 (6th Cir. Apr. 9, 2024), available at the Sixth Circuit and Westlaw
Moran v. Greco, 2024 WL 1597624 (2d Cir. Apr. 12, 2024), available at CourtListener and Westlaw
Chisesi v. Hunady, 2024 WL 1638587 (11th Cir. Apr. 16, 2024), available at the Eleventh Circuit and Westlaw
Bustillos v. City of Artesia, 2024 WL 1652247 (10th Cir. Apr. 17, 2024), available at the Tenth Circuit and Westlaw
Cockrun v. Berrien County, 2024 WL 1828305 (6th Cir. Apr. 26, 2024), available at the Sixth Circuit and Westlaw
Cronick v. Pryor, 2024 WL 1868597 (10th Cir. Apr. 30, 2024), available at the Tenth Circuit and Westlaw

In addition to these is Heeter v. Bowers, in which the Sixth Circuit split over whether factual disputes deprived the court of jurisdiction over a qualified-immunity appeal. The majority thought that the combination of a video and a concession from the defendant removed all factual disputes, leaving only the question of whether the defendant’s conduct violated clearly established law. Judge Clay dissented, contending that the defendant had not sufficiently conceded the plaintiff’s version of events.

Thanks to Michael Solimine for sending this case my way.

Heeter v. Bowers, 2024 WL 1854729 (6th Cir. Apr. 29, 2024), available at the Sixth Circuit and Westlaw

Quick Notes

In Varela v. State Farm Mutual Automobile Insurance Company, the Eighth Circuit held that it lacked jurisdiction over a motion to compel arbitration under state law. To be sure, the Federal Arbitration Act permits immediate appeals from refusals to order arbitration under the Act. But the defendant in Varela did not argue that a provision of the parties’ contract required arbitration under the Federal Arbitration Act. The defendant instead argued that a state law—Minnesota’s No-Fault Act—required arbitration. And reliance on that state law did not permit an appeal under the Federal Arbitration Act’s appeal provisions.

Varela v. State Farm Mutual Automobile Insurance Company, 2024 WL 1546985 (8th Cir. Apr. 10, 2024), available at the Eighth Circuit and Westlaw

In Rocky Mountain Wild v. Dallas, the Tenth Circuit applied the practical-finality exception to the administrative-remand rule. The case involved important issues of environmental law that might forever evade appellate review if the agency could not immediately appeal.

Rocky Mountain Wild v. Dallas, 2024 WL 1689253 (10th Cir. Apr. 19, 2024), available at the Tenth Circuit and Westlaw

And in Taylor v. County of Pima, the Ninth Circuit dismissed an appeal from an order refusing to unseal a declaration. The only proffered ground for appellate jurisdiction was the collateral-order doctrine. But the district court had not conclusively refused to unseal the declaration—it would entertain further motions to unseal. And unlike an order unsealing a document, an order refusing to unseal a document can be effectively reviewed in an appeal from a final judgment.

Taylor v. County of Pima, 2024 WL 1461360 (9th Cir. Apr. 4, 2024), available at the Ninth Circuit and Westlaw