Resetting the appeal clock for interlocutory appeals, manufacturing appeals in criminal cases, cross-appeals from administrative remands, and more.
January 4, 2025
Last month saw a pair of decisions on when post-judgment motions reset the appeal clock for interlocutory appeals. The Ninth Circuit addressed its jurisdiction over a government appeal when the government invites the district court to dismiss an indictment. The Ninth Circuit also addressed jurisdiction over cross-appeals under the administrative-remand rule. Plus an improper qualified-immunity appeal and more doubts about anti-SLAPP appeals.
- Post-Judgment Motions & the Appeal Clock for Interlocutory Orders
- Motions to Reconsider & Qualified-Immunity Appeals
- Jurisdiction, Waiver & Voluntarily Dismissing Indictments
- The Administrative-Remand Rule & Cross Appeals
- The Month’s Improper Qualified-Immunity Appeals
- More Doubts About Anti-SLAPP Appeals
Post-Judgment Motions & the Appeal Clock for Interlocutory Orders
In Gelin v. Baltimore County, the Fourth Circuit held that Federal Rule of Appellate Procedure 4(a)(4)(A) applies to appealable interlocutory orders. So a motion to reconsider such an order resets the time to appeal. The court added that a motion can effectively be one seeking reconsideration even though the motion does not cite to Federal Rule of Civil Procedure 59(e) and instead relies on a different rule.
This all meant that the appeal in Gelin was not late. In fact, it was too early. The district court had not resolved all issues raised in the reconsideration motion. The Fourth Circuit accordingly held the appeal in abeyance while the district court fully disposed of the reconsideration motion.
Read more: *Post-Judgment Motions & the Appeal Clock for Interlocutory Orders.
Gelin v. Baltimore County, 2024 WL 4971440 (4th Cir. Dec. 4, 2024), available at the Fourth Circuit and Westlaw
Motions to Reconsider & Qualified-Immunity Appeals
In Blackwell v. Nocerini, the Sixth Circuit held that a motion to reconsider reset the time to take a qualified-immunity appeal. The denial of immunity was immediately appealable and thus a “judgment” under the Federal Rules of Civil Procedure. So a motion to reconsider that denial was effectively a motion under Federal Rule of Civil Procedure 59(e), despite the motion’s relying on a local rule rather than Rule 59(e). And that Rule 59(e) motion reset the appeal clock. The defendants could thus appeal the denial of immunity months after that denial. This conclusion let the Sixth Circuit avoid addressing whether a refusal to reconsider the denial of immunity is itself immediately appealable.
Read more: Motions to Reconsider & Qualified-Immunity Appeals.
Blackwell v. Nocerini, 2024 WL 5114313 (6th Cir. Dec. 16, 2024), available at the Sixth Circuit and Westlaw
Jurisdiction, Waiver & Voluntarily Dismissing Indictments
In United States v. Wilson, the Ninth Circuit permitted the government to appeal a discovery order in a criminal case after the government asked the district court to dismiss the indictment to facilitate an appeal. Although the order was interlocutory, the Ninth Circuit could review it under 18 U.S.C. § 3731. That’s because § 3731 doesn’t require finality. And the district court’s involvement in the dismissal assuaged any concerns about manufacturing an appeal.
I think the court was right about appellate jurisdiction. After all, the district court had dismissed the indictment, which is an appealable decision under § 3731. Notably, this was fairly different from how courts treat similar efforts to manufacture an appeal in the civil context.
But I still think the appeal was improper. In my view, the government waived any challenge to the judgment by consenting to a dismissal before the case had been effectively resolved.
Read more: Jurisdiction, Waiver & Voluntarily Dismissing Indictments.
United States v. Wilson, 2024 WL 5163081 (9th Cir. Dec. 19, 2024), available at the Ninth Circuit and Westlaw
The Administrative-Remand Rule & Cross Appeals
In Kaweah Delta Health Care District v. Becerra, the Ninth Circuit held that a cross-appeal was proper when the government could appeal from an administrative remand. The court explained that when the administrative-remand rule makes a decision final, it is final for everyone.
Read more: The Administrative-Remand Rule & Cross Appeals.
Kaweah Delta Health Care District v. Becerra, 2024 WL 5063933 (9th Cir. Dec. 11, 2024), available at the Ninth Circuit and Westlaw
The Month’s Improper Qualified-Immunity Appeals
Last month saw only one improper, fact-based qualified-immunity appeals: Fried v. Garcia, 2024 WL 5040629 (6th Cir. Dec. 9, 2024), available at the Sixth Circuit and Westlaw
More Doubts About Anti-SLAPP Appeals
Finally, in Young v. NeoCortext, Inc., the Ninth Circuit heard an immediate appeal from the denial of a special motion to strike under California’s anti-SLAPP law. Judge Desai concurred to urge the Ninth Circuit to reconsider its caselaw allowing these appeals.
Young v. NeoCortext, Inc., 2024 WL 4987254 (9th Cir. Dec. 5, 2024), available at the Ninth Circuit and Westlaw