The Month in Federal Appellate Jurisdiction: December 2023

The last month of 2023 produced several decisions of note. Two courts addressed whether a single filing could serve the dual functions of both a motion to reopen the appeal deadline and a notice of appeal. The courts of appeals have split on this issue, though both courts to address it last month held that a single notice of appeal could perform these multiple functions. Plus decisions on the finality of a sanction of unspecified attorney fees, a gag-order appeal in a criminal case, arbitration appeals involving substitute arbitrators, and more.

• A Multi-Purpose Notice of Appeal
• Contempt, Finality & Unspecified Attorney Fees
• An Immediate Appeal from a Gag Order in a Criminal Case
• No Arbitration Appeals Regarding Substitute Arbitrators
• No Jurisdiction to Review the Timeliness of Immunity Assertions
• Quick Notes

A Multi-Purpose Notice of Appeal

In Winters v. Taskila, the Sixth Circuit held that a notice of appeal was effectively a motion to reopen the appeal window. The court went on to hold that once the district court reopened that window, this notice was also a notice of appeal. The courts of appeals have split on whether a notice of appeal can serve these dual functions. According to the Sixth Circuit, resolution of this split is now a matter for the Rules Committee.

Read more: A Multi-Purpose Notice of Appeal.

Winters v. Taskila, 2023 WL 8663885 (6th Cir. Dec. 15, 2023), available at the Sixth Circuit and Westlaw

Contempt, Finality & Unspecified Attorney Fees

A ruling on liability is not final until the court specifies a remedy. But what if that remedy consists entirely of attorney fees? The Supreme Court has long held that a decision on the merits is final despite any unresolved issues regarding attorney fees. So is a ruling on liability final when the remedy is an unspecified award of attorney fees?

In In re Asset Enhancement, Inc., the Eleventh Circuit held that such an order is not final, at least in the context of contempt. A contempt order, the court explained, is not final until the court determines a sanction. That rule applies even when the sanction is a not-yet-specified amount of attorney fees.

Read more: Contempt, Finality & Unspecified Attorney Fees.

In re Asset Enhancement, Inc., 2023 WL 8385087 (11th Cir. Dec. 5, 2023), available at the Eleventh Circuit and Westlaw

An Immediate Appeal from a Gag Order in a Criminal Case

In United States v. Trump, the D.C. Circuit reviewed a gag order entered in Donald Trump’s prosecution for for conspiracy to corruptly obstruct and impede the January 6 congressional proceeding. The court explained that “[o]rders restraining parties’ speech during the pendency of a criminal case” satisfy the collateral-order doctrine. These orders “conclusively determine whether parties may speak on specified matters pertaining to the criminal trial.” They involve important First Amendment issues that are entirely separate from the merits. And any review needed to be immediate, as “[t]he damage to First Amendment interests would be done”—and the gag order itself would likely be moot—after a final judgment.

United States v. Trump, 2023 WL 8517991 (D.C. Cir. Dec. 8, 2023), available at the D.C. Circuit and Westlaw

No Arbitration Appeals Regarding Substitute Arbitrators

In Bedgood v. Wyndham Vacation Resorts, Inc., the Eleventh Circuit held that a party could not immediately appeal an order refusing to appoint an alternative arbitrator under Section 5 of the Federal Arbitration Act. The Act permits immediate appeals from (among other things) orders refusing to order arbitration under Sections 3 and 4 of the Act. But it “says nothing one way or the other about whether a party may immediately appeal an order refusing to appoint a substitute arbitrator under Section 5.” That silence can be read only to mean that Section 5 orders are not immediately appealable.

The Eleventh Circuit added that it would not extend pendent appellate jurisdiction over the Section 5 issue; the court of appeals “needn’t resolve the Section 5 issue to reject [the defendant’s] contentions with respect to Sections 3 and 4.”

Bedgood v. Wyndham Vacation Resorts, Inc., 2023 WL 8722023 (11th Cir. Dec. 19, 2023), available at the Eleventh Circuit and Westlaw

No Jurisdiction to Review the Timeliness of Immunity Assertions

In Maye v. City of New Haven, the Second Circuit held that it lacked jurisdiction to review a district court’s denial of qualified immunity because the request was untimely.

Simplifying only a bit, the defendants in Maye sought summary judgment after the district court’s deadline for dispositive motions. The district court denied the motion as untimely. The defendants then appealed.

The Second Circuit dismissed that appeal. The district court’s decision did not turn on an issue of law that would be appealable under Mitchell v. Forsyth. And the defendants had only themselves “to blame for [their] predicament.”

The Second Circuit noted that other courts have allowed immediate appeals from similar orders. But the court explained that such a rule “would essentially grant defendants the right to assert a qualified immunity defense at any time, regardless of the district court’s prior scheduling orders, as though the affirmative defense were the equivalent of a challenge to subject matter jurisdiction.”

Maye v. City of New Haven, 2023 WL 8883088 (2d Cir. Dec. 26, 2023), available at CourtListener and Westlaw

Quick Notes

In Scottsdale Insurance Co. v. McGrath, the Second Circuit held that a “Stipulated Conditional Final Judgment Subject to Reservation of Rights to Appeal” did not result in a final, appealable decision. The stipulation did not resolve all claims or all parties. And the claims that were resolved were not finally resolved, as any decision on appeal permitted the parties to continue disputing the purportedly resolved issues.

Scottsdale Insurance Co. v. McGrath, 2023 WL 8533429 (2d Cir. Dec. 11, 2023), available at CourtListener and Westlaw

In Allen v. Grist Mill Capital LLC, the Second Circuit heard an appeal from the partial grant of a Federal Rule of Criminal Procedure 41(g) motion to return property, even though that grant was made in an unresolved Bivens action. The court explained that the Rule 41(g) proceeding sought relief from the United States, not the individual defendants in the Bivens action. And courts often treat Rule 41(g) motions after criminal proceedings as stand-alone civil actions. Taking a pragmatic approach to finality, the Second Circuit concluded that the partial grant was final.

Allen v. Grist Mill Capital LLC, 2023 WL 8533463 (2d Cir. Dec. 11, 2023), available at CourtListener and Westlaw

In McWhorter v. Federal Aviation Administration, the Tenth Circuit held that 49 U.S.C. § 1153(b)’s deadline to appeal from orders of the National Transportation Safety Board is not jurisdictional. It’s instead a claims-processing rule, and failure to comply with it can be excused. The Sixth Circuit had previously said the opposite—that the deadline is jurisdictional—in unpublished opinions.

McWhorter v. Federal Aviation Administration, 2023 WL 8797632 (10th Cir. Dec. 20, 2023), available at the Tenth Circuit and Westlaw

In Carroll v. Trump, the Second Circuit heard an appeal from a district court decision that the defendant had waived presidential immunity But the court of appeals did not have appellate jurisdiction to review the denial of the defendant’s motion for summary judgment. The issue raised in that motion—whether the defendant’s statements were defamatory per se—was neither “inextricably intertwined” with immunity nor “necessary to ensure meaningful review” of immunity.

Carroll v. Trump, 2023 WL 8608724 (2d Cir. Dec. 13, 2023), available at the CourtListener and Westlaw

And in another case implicating a multi-purpose notice of appeal, the Third Circuit said in Holden v. Attorney General that a letter to the district court concerning a late appeal functioned both as a motion to reopen the appeal window and a notice of appeal.

Holden v. Attorney General, 2023 WL 8798084 (3d Cir. Dec. 20, 2023), available at the Third Circuit and Westlaw