The scope of § 1292(b) appeals, manufactured finality from a summary-judgment denial, another duty-to-defend appeal, and more.
September 5, 2023
I spent most of August busy or sick or both. So there weren’t many posts about decisions. But the month was still full of interesting developments.
- Appealable Orders, Not Appealable Documents
- The Sixth Circuit on the Scope of § 1292(b) Appeals
- Manufactured Finality From a Summary-Judgment Denial
- Another Decision on Appealing Duty-to-Defend Orders
- Appealing the Choice of § 2255 Remedy
- The Tenth Circuit on the Timeliness of Immigration Petitions
- Supreme Court Update
- The Third Circuit on Resetting the Rule 23(f) Appeal Clock
- The Tenth Circuit Again Rejected an Appeal From a Class-Action Loss
- The D.C. Circuit Reviewed an Order Refusing to Vacate a Nondisclosure Order Concerning a Subpoena
- The Month’s Improper, Fact-Based Qualified-Immunity Appeals
- Hypothetical Appellate Jurisdiction Over Orders on Proceeding Anonymously
- Quick Notes
Appealable Orders, Not Appealable Documents
Courts have held that when an “order” is appealable—say, via a certified appeal under 28 U.S.C. § 1292(b) or an exception to 28 U.S.C. § 1447(d)’s bar on remand appeals—the entirety of the district court’s order is within the scope of appeal. So when a district court certifies an order for an immediate appeal under § 1292(b), the entire order is within the scope of appeal, not just the issue that the district court thought warranted review. And when a case is removed on one of the grounds that § 1447(d) excepts from the general bar on remand appeals, the entire remand order is appealable, not just the excepted ground.
In Boshears v. PeopleConnect, Inc., the Ninth Circuit noted that there are limits on what it means for an “order” to be appealable. There’s a difference between orders and the documents that contain them. So even if an order is appealable, other orders contained in the same document are not.
Read more: Appealable Orders, Not Appealable Documents.
Boshears v. PeopleConnect, Inc., 2023 WL 4940430 (9th Cir. Aug. 3, 2023), available at the Ninth Circuit and Westlaw
The Sixth Circuit on the Scope of § 1292(b) Appeals
In Ingram v. Wayne County, the Sixth Circuit addressed the scope of § 1292(b) appeals, too. Like Boshears, the court noted that although § 1292(b) allows for appeals from orders, that does not mean jurisdiction extends to every order addressed in the same document. Further, even if an order addresses multiple grounds (say, multiple grounds for dismissing a complaint), the court of appeals still has discretion to address grounds other than those that the district court thought warranted an immediate appeal. In Ingram, the Sixth Circuit declined to exercise its discretion to review other grounds for dismissal, addressing only the issue that the district court mentioned in its certification order.
Ingram v. Wayne County, 2023 WL 5622914 (6th Cir. Aug. 31, 2023), available at the Sixth Circuit and Westlaw
Manufactured Finality From a Summary-Judgment Denial
In In re York, the Ninth Circuit tackled a variety of jurisdictional issues on its way to reviewing a summary-judgment denial.
Simplifying a bit, York stemmed from an adversary proceeding in bankruptcy. The bankruptcy court denied a debtor’s motion for summary judgment, after which the parties stipulated to an entry of judgment in favor of the creditor. The debtor then appealed.
The Ninth Circuit first held that the stipulated judgment did not prevent review of the summary-judgment denial. Because there was no trial on the merits, Ortiz v. Jordan’s rule on preserving issues via denied summary-judgment motions did not apply.
The Ninth Circuit then held that the stipulated judgment did not preclude finality. Unlike Microsoft Corp. v. Baker, the stipulated judgment did not try to evade any established avenues for interlocutory review. And regardless of the appeal’s outcome, litigation would be over.
Finally, the Ninth Circuit held that the stipulated judgment did not extinguish Article III jurisdiction. The debtor acquiesced in the judgment to facilitate an appeal from the summary-judgment denial. The parties were thus still sufficiently adverse for Article III purposes.
Judge Berzon dissented to contend both that Ortiz barred review of the summary-judgment denial and that the stipulated judgment abandoned any challenge to that denial.
In re York, 2023 WL 5159467 (9th Cir. Aug. 11, 2023), available at the Ninth Circuit and Westlaw
Another Decision on Appealing Duty-to-Defend Orders
The past few months have seen a spate of attempted appeals from duty-to-defend decisions. August saw another.
In Zenith Insurance Co. v. Newell, the Third Circuit dismissed an appeal from an order declaring that an insurance company had a duty to defend its insured. The court determined that the order was not effectively an injunction because it did not direct the insurance company to do anything. The district court merely declared the company’s duty. That is, the district court merely declared the meaning of the contract. With no order directing the insurance company to act, there was nothing to treat as an appealable injunction.
Zenith Insurance Co. v. Newell, 2023 WL 5440526 (3d Cir. Aug. 24, 2023), available at the Third Circuit and Westlaw
Appealing the Choice of § 2255 Remedy
When a district court grants relief under 28 U.S.C. § 2255, it can choose from among several different remedies. Among those remedies are (1) correcting the petitioner’s sentence and (2) conducting a full resentencing. Successful § 2255 petitioners who want to challenge their new sentence can appeal under 28 U.S.C. § 1291 without first obtaining a certificate of appealability. But what if a § 2255 petitioner wants to challenge only the choice of remedy—correcting the sentence rather than resentencing—without challenging the sentence itself?
In Clark v. United States, the Third Circuit held that a § 2255 petitioner challenging the choice of remedy must obtain a certificate of appealability. In so holding, the Third Circuit joined with the Eleventh Circuit and split from the Fourth and Sixth Circuits. The court of appeals went on to hold that the petitioner in Clark had not made the requisite showing for a certificate of appealability.
Read more: Appealing the Choice of § 2255 Remedy.
Clark v. United States, 2023 WL 4986498 (3d Cir. Aug. 4, 2023), available at the Third Circuit and Westlaw
The Tenth Circuit on the Timeliness of Immigration Petitions
In Arostegui-Maldonado v. Garland, the Tenth Circuit reiterated its rule that “a reinstated order of removal is final for purposes of judicial review only after withholding-only proceedings conclude.”
The Tenth Circuit had held as much in Luna-Garcia v. Holder. In Arostegui-Maldonado, the Tenth Circuit explained that neither Nasrallah v. Barr nor Johnson v. Guzman Chavez abrogated Luna-Garcia.
Judge Tymkovich, joined by Judge Eid, concurred to argue that although Nasrallah and Johnson did not abrogate Luna-Garcia, their reasoning warranted the a reconsideration of Luna-Garcia by the en banc court.
Arostegui-Maldonado v. Garland, 2023 WL 4880441 (10th Cir. Aug. 1, 2023), available at the Tenth Circuit and Westlaw
Supreme Court Update
A new cert petition asks if a second, timely Rule 59(e) motion resets the appeal clock. The case is United States ex rel. Beck v. St. Joseph Health System. The response is due September 5, 2023.
Another new petition asks when (if ever) subsequent rulings on class certification can reset the time to petition to appeal under Federal Rule of Civil Procedure 23(f). The case is Hilton Hotels Retirement Plan v. White. The respondent has waived the right to respond, and the petition is scheduled for the conference on September 26, 2023.
Petition for a Writ of Certiorari, United States ex rel. Beck v. St. Joseph Health System, No. 23-111 (Aug. 2, 2023), available at the Supreme Court of the United States and Westlaw
Petition for Writ of Certiorari, Hilton Hotels Retirement Plan v. White, No. 23-166, available at the Supreme Court of the United States and Westlaw
The Third Circuit on Resetting the Rule 23(f) Appeal Clock
Speaking of the Rule 23(f) clock, in Wolff v. Aetna Life Insurance Co., the Third Circuit held that a modified class-certification order resets the Rule 23(f) petition period only when the order materially alters the original order.
Federal Rule of Civil Procedure 23(f) gives litigants 14 days to petition the court of appeals for permission to appeal a class-certification decision. Wolff held that a revised class-certification order starts a new 14-day period only when that order materially alters the original order, such that the district court has effectively entered a new order granting or denying class certification.
The order in Wolff did not satisfy this material-change requirement. The Third Circuit accordingly held that the Rule 23(f) petition was untimely.
Wolff v. Aetna Life Insurance Co., 2023 WL 5082238 (3d Cir. Aug. 9, 2023), available at the Third Circuit and Westlaw
The Tenth Circuit Again Rejected an Appeal From a Class-Action Loss
In Cline v. Sunoco, Inc. (R&M), the Tenth Circuit again rejected an appeal from a class action that resulted in a $150+ million damages award.
Simplifying a bit, the defendant’s first appeal was premature, as the district court had neither allocated the damages among class members nor determined what would be done with unclaimed funds. A second appeal was also premature for essentially the same reasons.
Back before the district court, the defendant asked the district court to fix these defects via a motion under Federal Rule of Civil Procedure 60(b). But the district court refused, thinking its judgment already satisfied the requirements for finality.
The Tenth Circuit reversed. This time the court had jurisdiction—rightly or wrongly, the district court denied Rule 60(b) relief, which is a final decision. But the district court was wrong in thinking that it had entered a final decision. The Tenth Circuit accordingly remanded the suit for the district court to do so.
Cline v. Sunoco, Inc. (R&M), 2023 WL 4946312 (10th Cir. Aug. 3, 2023), available at the Tenth Circuit and Westlaw
The D.C. Circuit Reviewed an Order Refusing to Vacate a Nondisclosure Order Concerning a Subpoena
In In re Sealed Case, the D.C. Circuit reviewed a nondisclosure order alongside a contempt appeal.
The case involved a warrant issued to Twitter. Alongside the warrant, the government obtained an order that Twitter not disclose the warrant’s existence or content. Twitter later refused to comply and was sanctioned.
In an appeal from that sanction, Twitter challenged the nondisclosure order. And the D.C. Circuit held that it could review that order via the collateral-order doctrine:
[The nondisclosure order] resolved important questions unrelated to the underlying investigation, including whether the nondisclosure order survived strict scrutiny. If we declined to exercise jurisdiction over the instant appeal, the district court’s order would be effectively unreviewable because it concerns Twitter’s rights, not the rights of any individual targeted by the grand jury: The issues raised by Twitter cannot be reviewed in an appeal of the final judgment in the underlying criminal case.
In re Sealed Case, 2023 WL 5076091 (D.C. Cir. July 18, 2023), available at the D.C. Circuit and Westlaw
The Month’s Improper, Fact-Based Qualified-Immunity Appeals
Once again, I’m going to merely list the cases in which government defendants in civil-rights actions improperly challenged the factual basis for a qualified-immunity denial:
- Estate of Singletary v. City of Philadelphia, 2023 WL 5127126 (3d Cir. Aug. 10, 2023), available at the Third Circuit and Westlaw
- Raimey v. City of Niles, Ohio, 2023 WL 5124827 (6th Cir. Aug. 10, 2023), available at the Sixth Circuit and Westlaw
- Gray v. Shelby County, Tennessee, 2023 WL 5237373 (6th Cir. Aug. 15, 2023), available at the Sixth Circuit and Westlaw
- Rush v. City of Philadelphia, 2023 WL 5600970 (3d Cir. Aug. 30, 2023), available at the Third Circuit and Westlaw
Hypothetical Appellate Jurisdiction Over Orders on Proceeding Anonymously
In Doe v. Town of Lisbon, the First Circuit used hypothetical appellate jurisdiction to review an order allowing a party to proceed anonymously. The First Circuit has not addressed whether those orders are immediately appealable (although it has held that orders denying proceeding under a pseudonym are immediately appealable). Because the court was affirming the district court’s decision, it could assume that it had appellate jurisdiction and proceed to the merits.
Doe v. Town of Lisbon, 2023 WL 5266283 (1st Cir. Aug. 16, 2023), available at the First Circuit and Westlaw
Quick Notes
In Emergency Recovery, Inc. v. Hufnagle, the Eleventh Circuit held that a Federal Rule of Civil Procedure 59(e) motion reset the appeal clock when it was filed after a voluntary dismissal under Federal Rule of Civil Procedure 41(a)(2). The Rule 41(a)(2) dismissal was a final, appealable judgment. So the motion to alter or amend that dismissal was necessarily a motion under Rule 59(e).
Emergency Recovery, Inc. v. Hufnagle, 2023 WL 5191149 (11th Cir. Aug. 14, 2023), available at the Eleventh Circuit and Westlaw
In R. W. v. Columbia Basin College, the Ninth Circuit refused to review the merits of a First Amendment claim or a district court’s decision on party substitution as part of a sovereign-immunity appeal.
R. W. v. Columbia Basin College, 2023 WL 5192565 (9th Cir. Aug. 14, 2023), available at the Ninth Circuit and Westlaw
In Vazquez-Klecha v. Bickerstaff, the Eleventh Circuit reversed the entry of a partial judgment under Federal Rule of Civil Procedure 54(b). The district court thought that an immediate appeal was warranted to avoid the possibility of two trials—one on the unresolved claims, and one if the resolved claims were reversed on appeal. The Eleventh Circuit determined that this was, standing alone, an insufficient reason, and no special circumstances warranted treating the case differently.
Vazquez-Klecha v. Bickerstaff, 2023 WL 5321308 (11th Cir. Aug. 18, 2023), available at the Eleventh Circuit and Westlaw
In United States v. Mejia, the Ninth Circuit held that a resentencing order was not final due to an ongoing Brady issue.
United States v. Mejia, 2023 WL 5549021 (9th Cir. Aug. 29, 2023), available at the Ninth Circuit and Westlaw
And in Tarpon Bay Partners LLC v. Zerez Holdings Corp., the Second Circuit treated a denial of summary judgment as a grant of summary judgment, thereby securing appellate jurisdiction. The district court’s order technically only denied summary judgment on certain claims. But the decision effectively ruled on those claims.
Tarpon Bay Partners LLC v. Zerez Holdings Corp., 2023 WL 5156690 (2d Cir. Aug. 11, 2023), available at CourtListener and Westlaw