Monthly Roundup

The Month in Federal Appellate Jurisdiction: August 2024

A new puppy! Plus the appeal clock for fee orders, the scope of § 1292(b) appeals, filter-protocol appeals, and more.

September 5, 2024

By Bryan Lammon

A new assistant paw-fessor/junior paw-ssociate joined Final Decisions.

Photo of a Shih Tzu puppy.

That didn’t leave a lot of time to write this month’s roundup. So this month is mostly quick notes. But that doesn’t mean there weren’t cases of interest.

The Appeal Clock for Attorneys Fee
Preemption Issues & the Scope of § 1292(b)
The Fourth Circuit on Filter-Protocol Appeals
Appealing to Invoke a Non-Party’s Immunity?
The Month’s Improper Qualified-Immunity Appeals
Quick Notes

The Appeal Clock for Attorneys Fee

In Upchurch v. O’Brien, the Seventh Circuit dismissed as untimely an appeal from a sanction-based award of attorneys fees. The court explained that an award of attorneys fees need not be set out in a separate document to start the appeal clock. Instead, the clock starts when the fees are awarded.

Upchurch v. O’Brien, 2024 WL 3659327 (7th Cir. Aug. 6, 2024), available at the Seventh Circuit and Westlaw

Preemption Issues & the Scope of § 1292(b)

In In re Lion Air Flight JT 610 Crash, the Seventh Circuit reviewed a preemption issue as part of a certified appeal that concerned the right to a jury trial. The district court had thought that only the jury-trial issue warranted an immediate appeal under 28 U.S.C. § 1292(b). But the Seventh Circuit concluded that the preemption decision was part of the same order and thus also within the scope of the certified appeal. After all, the right to a jury trial turned on the extent to which federal law preempted the plaintiffs’ state law claims.

In re Lion Air Flight JT 610 Crash, 2024 WL 3665332 (7th Cir. Aug. 6, 2024), available at the Seventh Circuit and Westlaw

The Fourth Circuit on Filter-Protocol Appeals

In In re Search Warrants Issued February 18, 2022, the Fourth Circuit dismissed an appeal that challenged the filter protocols for seized evidence. The district court had approved certain protocols to weed out potentially protected evidence. The district court later denied a privilege claimant’s motion seeking to alter those protocols. The Fourth Circuit held that under DiBella v. United States, the order was neither an appealable final decision nor an appealable denial of a preliminary injunction.

In re Search Warrants Issued February 18, 2022, 2024 WL 3627613 (4th Cir. Aug. 2, 2024), available at the Fourth Circuit and Westlaw

Appealing to Invoke a Non-Party’s Immunity?

In McEvoy v. Diversified Energy Co., the Fourth Circuit dismissed a somewhat convoluted invocation of sovereign immunity. The defendants appealed to argue that a district court’s Rule 19 decision effectively denied a non-party’s sovereign immunity. But the defendant had never itself sought immunity. Nor had the actual immunity holder intervened to protect its interests. The motion was instead only a decision that a state agency was not a party that should be joined under Federal Rule of Civil Procedure 19.

McEvoy v. Diversified Energy Co., 2024 WL 3642431 (4th Cir. Aug. 5, 2024), available at the Fourth Circuit and Westlaw

The Month’s Improper Qualified-Immunity Appeals

There were several qualified-immunity appeals last month in which defendants improperly challenged the factual basis for the immunity denial:

Ramsey v. Rivard, 2024 WL 3616826 (6th Cir. Aug. 1, 2024), available at the Sixth Circuit and Westlaw
Buress v. City of Miami, 2024 WL 3666076 (11th Cir. Aug. 6, 2024), available at the Eleventh Circuit and Westlaw
Davis v. Allen, 2024 WL 3803041 (7th Cir. Aug. 14, 2024), available at the Seventh Circuit and Westlaw
Melendez v. Secretary of State, 2024 WL 3880013 (11th Cir. Aug. 20, 2024), available at the Eleventh Circuit and Westlaw

A few decisions are worth slightly more discussion:

In Williams v. City of Sparks, the Ninth Circuit applied the blatant-contradiction exception to Johnson v. Jones. A video of events in question existed. The Ninth Circuit that that this video authorized the court of appeals to review the summary-judgment record “in the light depicted in the videotape.” (Quotation marks omitted.)

In Arnold v. McClinton, Judge Kelly dissented to argue that genuine fact disputes precluded reviewing a qualified-immunity appeal.

And in Terrell v. Allgrunn, the Fifth Circuit said a video was insufficiently clear to permit review of the genuineness of fact disputes in a qualified-immunity appeal.

Williams v. City of Sparks, 2024 WL 3734226 (9th Cir. Aug. 9, 2024), available at the Ninth Circuit and Westlaw

Arnold v. McClinton, 2024 WL 3808735 (8th Cir. Aug. 14, 2024), available at the Eighth Circuit and Westlaw

Terrell v. Allgrunn, 2024 WL 3948595 (5th Cir. Aug. 27, 2024), available at the Fifth Circuit and Westlaw

Thanks to Michael Solomine for sending Ramsey v. Rivard my way.

Quick Notes

In Lewis v. Becerra, the D.C. Circuit held that two plaintiffs who had prevailed on their individual claims could not appeal from an earlier denial of class certification due to a lack of appellate standing. According to the court, the plaintiffs’ “desire to serve as class representatives [did] not create a cognizable Article III interest.” And they did “not allege that the denial of class certification has caused them any other, concrete individual injury.”

Lewis v. Becerra, 2024 WL 3627936 (D.C. Cir. Aug. 2, 2024), available at the D.C. Circuit and Westlaw

In Morton v. Director, Virgin Islands Bureau of Corrections, the Third Circuit held that it had jurisdiction to review the without-prejudice dismissal of a habeas petition due to a failure to exhaust. The court quoted Judge Easterbrook’s concurrence in Carter v. Buesgen, which explained that “although a dismissal ‘without prejudice’ sometimes means ‘there’s more to do in this court,’ it more typically means ‘you should be in some other tribunal.’” And “[t]his latter statement is what a district court means when it dismisses a habeas petition for failure to exhaust state remedies.” “[T]hus, like a dismissal for lack of venue, personal jurisdiction, or subject matter jurisdiction, such a dismissal is final and appealable.”

Morton v. Director, Virgin Islands Bureau of Corrections, 2024 WL 3643583 (3d Cir. Aug. 5, 2024), available at the Third Circuit and Westlaw

In United States v. González-Rivera, the First Circuit applied the rule of Manrique v. United States to hold that it lacked jurisdiction to review a restitution order. Manrique held that a notice of appeal filed after an initial criminal judgment was insufficient to appeal a subsequent restitution order. “The Court instructed that ‘a defendant who wishes to appeal an order imposing restitution in a deferred restitution case must file a notice of appeal from that order.’” The defendant in González-Rivera filed his only notice of appeal before the district court had set restitution. Manrique thus made it “nose-on-the-face-plain” that the First Circuit lacked jurisdiction over the restitution order.

United States v. González-Rivera, 2024 WL 3648177 (1st Cir. Aug. 5, 2024), available at the First Circuit and Westlaw

In Agudas Chasidei Chabad of United States v. Russian Federation, the D.C. Circuit held that a prevailing defendant could appeal a without-prejudice dismissal of claims against it, as the defendant had wanted a with-prejudice dismissal. A without-prejudice dismissal risks further litigation. So a defendant has an interest in changing a judgment to be with prejudice.

Agudas Chasidei Chabad of United States v. Russian Federation, 2024 WL 3659318 (D.C. Cir. Aug. 6, 2024), available at the D.C. Circuit and Westlaw

In CCWB Asset Investments, LLC v. Milligan, the Fourth Circuit held that litigants can appeal from the approval of a receivership-distribution plan via the collateral-order doctrine. That order conclusively determines how assets will be distributed. It “resolves an important question for injured investors that is separate from the merits question of whether Defendants committed securities fraud.” And distribution of the assets before a final judgment would render the order effectively unreviewable.

CCWB Asset Investments, LLC v. Milligan, 2024 WL 3658780 (4th Cir. Aug. 6, 2024), available at the Fourth Circuit and Westlaw

In Perez v. Owl, Inc., the Eleventh Circuit held that the settlement of an unresolved claim created a final decision that permitted review of an earlier partial grant of summary judgment. The settlement was irrelevant to finality, as § 1291 does not distinguish “between ‘consent’ and ‘adversarial’ judgments.” And although the appellants had consented to the judgment, they had also expressly reserved their right to appeal the summary-judgment decision.

Perez v. Owl, Inc., 2024 WL 3665313 (11th Cir. Aug. 6, 2024), available at the Eleventh Circuit and Westlaw

In Cortes v. Garland, the Fourth Circuit split on its jurisdiction to review whether an immigration judge sufficiently considered the evidence in a cancellation-of-removal proceeding. The majority thought that this issue was a legal one over which it had jurisdiction, as the court would look only to whether the immigration judge’s “findings were legally sufficient to satisfy the procedural requirement that he consider all evidence placed before him.” Judge Rushing dissented to contend that the majority’s analysis amounted to an impermissible review of factual findings.

Cortes v. Garland, Error (4th Cir. Aug. 7, 2024), available at the Fourth Circuit and Westlaw

In Ain Jeem, Inc. v. Individuals , the Eleventh Circuit held that an ineffective voluntary dismissal under Federal Rule of Civil Procedure 41 resulted in a lack of appellate jurisdiction. The dismissal in Ain Jeem involved a purported Rule 41(a)(1)(A)(ii) stipulated dismissal of unresolved claims (after the district court had resolved other claims). But not all parties had signed onto the stipulation. And although a district court can treat a Rule 41(a)(1)(A)(ii) voluntary dismissals as motions for a court-ordered dismissal under Rule 41(a)(2), the district court did not do so in Ain Jeem.

Ain Jeem, Inc. v. Individuals , 2024 WL 3718184 (11th Cir. Aug. 8, 2024), available at the Eleventh Circuit and Westlaw

In Pinder v. WellPath, LLC, the Eighth Circuit applied the Rule 3(c) amendments to hold that a party need not designate in its notice of appeal every order it wants to appeal.

Pinder v. WellPath, LLC, 2024 WL 3734159 (8th Cir. Aug. 9, 2024), available at the Eighth Circuit and Westlaw

In George v. Rushmore Service Center, LLC, the Third Circuit held that an order declining to vacate an arbitration award was final. The district court had terminated the litigation (despite not formally confirming the award nor entering a judgment). Alternatively, even if the order were not a traditional final decision, it would still be an appealable as a “final decision respecting … arbitration” via 9 U.S.C. § 16(a)(3).

George v. Rushmore Service Center, LLC, 2024 WL 3765759 (3d Cir. Aug. 13, 2024), available at the Third Circuit and Westlaw

In Anderson v. Hutson, the Fifth Circuit split over whether it could review a motion that purportedly sought to terminate the implementation of a consent decree.

Anderson v. Hutson, 2024 WL 3934821 (5th Cir. Aug. 26, 2024), available at the Fifth Circuit and Westlaw

In Zia v. Garland, the Ninth Circuit held that it has jurisdiction to review a “good-faith marriage” determination in residency proceedings. That determination involved a mixed question of law and fact.

Zia v. Garland, 2023 WL 11910437 (9th Cir. Aug. 26, 2024), available at the Ninth Circuit and Westlaw

In MGMTL, L.L.C. v. Strategic Technology Institute, Inc., the Fifth Circuit said that it had jurisdiction over an appeal despite the district court’s final judgment not mentioning all of the claims. The court said that a decision can be final so long as the district court clearly intends to dispose of all claims. And that was the case in MGMTL—the jury had resolved all of the claims, the district court had entered a document titled “Final Judgment,” and the district court had said all that remained to do was address attorneys fees. Although it reached the right outcome, this decision seems to conflate final decisions and final judgments.

MGMTL, L.L.C. v. Strategic Technology Institute, Inc., 2024 WL 3949073 (5th Cir. Aug. 27, 2024), available at the Fifth Circuit and Westlaw

And in Coleman v. System One Holdings, LLC, the Third Circuit held that a party who sought arbitration could not appeal from an order requiring limited discovery concerning arbitrability. Although the discovery order required further district court litigation, it was not effectively a order refusing “a stay of any action” under § 3 of the Federal Arbitration Act. That’s because § 3 requires only a stay of “the trial of the action,” not all further litigation.

Coleman v. System One Holdings, LLC, 2024 WL 3998771 (3d Cir. Aug. 30, 2024), available at the Third Circuit and Westlaw