Monthly Roundup

The Month in Federal Appellate Jurisdiction: February 2024

Some questions about the collateral-order doctrine. Plus hindsight regarding the appeal deadline, admiralty appeals, and much more.

March 9, 2024

By Bryan Lammon

Decisions from last month raised some interesting questions about the role of the collateral-order doctrine, particularly when it comes to immunities and criminal appeals. In other developments, the Eleventh Circuit deemed an appeal untimely after concluding that—in hindsight—a post-judgment motion was not really a Rule 59 motion. The Ninth Circuit split on what it means to determine “rights and liabilities” for purposes of admiralty appeals. And the Fifth Circuit heard another governmental-privilege appeal. Plus appeals from reinstated removal orders, improper qualified-immunity appeals, and more.

Criminal Appeals & Some Thoughts on the Collateral-Order Doctrine

The collateral-order doctrine is one of the most frequently invoked exceptions to the final-judgment rule. The doctrine deems final a district court order that (1) conclusively resolves an issue, (2) involves an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal after a final judgment. The collateral-order doctrine is also the final-judgment rule’s most maligned exception. Its requirements have a variety of meanings, and courts have applied it in a variety of ways. The doctrine is accordingly rife with complexity and uncertainty.

Two recent decisions illustrate some of the issues with the collateral-order doctrine, particularly issues that arise in criminal cases. In United States v. Trump, the D.C. Circuit held that it could review a denial of presidential immunity in a criminal prosecution. In the course of doing so, the D.C. Circuit had to wrestle with whether appeals under the collateral-order doctrine require a statutory or constitutional immunity from litigation. And in United States v. Castellon, a concurring judge suggested that the normal strictness with which courts apply the collateral-order doctrine in criminal cases should not apply to sentencing appeals.

These decisions hint at something I’ve been thinking about for a while. I’m not sure there is a single collateral-order doctrine anymore. I suspect there are instead multiple versions of the doctrine, each applying in different contexts and having different requirements. And some clarity might come from acknowledging the variety of collateral-order doctrines.

Read more: Criminal Appeals & Some Thoughts on the Collateral-Order Doctrine.

United States v. Trump, 2024 WL 436971 (D.C. Cir. Feb. 6, 2024), available at the D.C. Circuit and Westlaw

United States v. Castellon, 2024 WL 591893 (4th Cir. Feb. 14, 2024), available at the Fourth Circuit and Westlaw

Immunities & the Rest of the Collateral-Order Doctrine

In Amisi v. Brooks, the Fourth Circuit held that defendants can immediately appeal from the refusal to dismiss a claim as barred by the Virginia Workers’ Compensation Act. The court thought that the Act provided an immunity from litigation. And that, apparently, was all that was necessary for an appeal via the collateral-order doctrine. But are immunities sufficiently separate from the merits, as the collateral-order doctrine also purports to require?

Read more: Immunities & the Rest of the Collateral-Order Doctrine.

Amisi v. Brooks, 2024 WL 718699 (4th Cir. Feb. 22, 2024), available at the Fourth Circuit and Westlaw

The Appeal Deadline, Hindsight & Ineffective Rule 59 Motions

A motion to alter or amend a judgment under Federal Rule of Civil Procedure 59(e) normally resets the appeal deadline. But in SEC v. TCA Fund Management Group, the Eleventh Circuit held that a post-judgment motion was not really a Rule 59 motion. That means the motion did not reset the appeal deadline, and the notice of appeal was late.

This is a rough way to treat post-judgment motion. The appellants in TCA Fund Management likely relied on their motion—which was styled a Rule 59 motion—when determining the time to appeal. I don’t see a good reason for a court of appeals to say, in hindsight, that a motion was inadequate and thus did not reset the appeal deadline. The time to appeal should be—above all—clear. Appellate courts’ second guessing of post-judgment motions injects uncertainty into determining the appeal deadline. It also opens the door to appellees’ arguing that a post-judgment motion didn’t count for purposes of resetting the appeal deadline.

Read more: The Appeal Deadline, Hindsight & Ineffective Rule 59 Motions.

SEC v. TCA Fund Management Group, 2024 WL 448385 (11th Cir. Feb. 6, 2024), available at the Eleventh Circuit and Westlaw

The Ninth Circuit Split on Admiralty Jurisdiction

In Ehart v. Lahaina Divers, Inc., a divided Ninth Circuit used 28 U.S.C. § 1292(a)(3)—the provision on admiralty appeals—to review an order striking an affirmative defense.

Simplifying a bit, the defendants in Ehart pleaded waiver and release as an affirmative defense. The district court later struck this defense, holding that the liability waivers at issue were void. The defendant appealed from that order.

The majority held that it had jurisdiction under § 1292(a)(3). That provision allows for interlocutory appeals from orders “determining the rights and liabilities of the parties to admiralty cases.” The Ninth Circuit has held that this jurisdiction extends to decisions on “the enforceability of an affirmative defense based on the existence of a maritime contract limiting liability.” Judge Collins dissented, arguing that an order striking a defense does not determine the rights or liabilities of the parties.

Ehart v. Lahaina Divers, Inc., 2024 WL 485697 (9th Cir. Feb. 8, 2024), available at the Ninth Circuit and Westlaw

Another Governmental-Privilege Appeal in the Fifth Circuit

In La Union del Pueblo Entero v. Abbott, the Fifth Circuit again heard an appeal involving a government official’s claim of privilege.

I’ve written a few times on this site about the Fifth Circuit’s rule for governmental-privilege appeals—and why I think that rule is wrong. La Union did not break any new ground in this area, largely relying on a 2023 decision in another appeal from the same district court proceedings.

I’m also not certain about this, but it looks like the case might have alternatively been appealable under the Perlman doctrine. The discovery order was directed to the Harris County Republican Party, and the privilege claimants were legislators. So this looks like a privilege claimant appealing from a discovery order directed to a third party.

La Union del Pueblo Entero v. Abbott, 2024 WL 655988 (5th Cir. Feb. 16, 2024), available at the Fifth Circuit and Westlaw

The Seventh Circuit on the Reinstated-Removal-Orders Split

In F.J.A.P. v. Garland, the Seventh Circuit weighed in on the split over when immigration petitioners who seek withholding of removal must appeal from reinstated removal orders.

Under 8 U.S.C. § 1252(b)(1), immigration petitioners must appeal within 30 days of their final order of removal. The split addressed in F.J.A.P. asks how this deadline applies to immigration petitioners that (1) have a prior removal order reinstated but also (2) are in withholding-only proceedings. Does the time to appeal begin running with the reinstatement, regardless of the pendency of any withholding proceedings? Or does it not start until those withholding proceedings are concluded?

The courts of appeals have split on this question. Two courts—the Second and Fourth Circuits—have held that the time to appeal begins running on the reinstatement. But most courts of appeals hold that the time to appeal begins running at the conclusion of withholding proceedings.

The Seventh Circuit joined the majority. None of the Supreme Court’s recent immigration decisions required deeming reinstated removal orders final at the time of reinstatement. And looking to the statutory text, structure, and context, the court concluded that “that a reinstated order of removal is not final for purposes of judicial review until the agency has completed withholding proceedings.”

F.J.A.P. v. Garland, 2024 WL 804140 (7th Cir. Feb. 27, 2024), available at the Seventh Circuit and Westlaw

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

Here are last month’s improper, fact-based qualified-immunity appeals:

Quick Notes

In Consol Pennsylvania Coal Co. v. Maxalaxmi Continental Ltd., the Third Circuit held that a temporary-restraining order was effectively a preliminary injunction and thus appealable under 28 U.S.C. § 1292(a)(1). The TRO did not include an expiration date. The Third Circuit added that it could review personal jurisdiction over the defendant, as personal jurisdiction was “essential to the validity of the injunction.”

Consol Pennsylvania Coal Co. v. Maxalaxmi Continental Ltd., 2024 WL 510518 (3d Cir. Feb. 9, 2024), available at the Third Circuit and Westlaw

And in Doe v. Sidar, the Fourth Circuit heard an appeal from an order requiring a plaintiff to cease proceeding anonymously. But the court dismissed the plaintiff’s appeal insofar as it challenged the refusal to order a physical exam of the defendant under Federal Rule of Civil Procedure 35. That discovery order was not appealable via the collateral-order doctrine. And the court could not extend pendent appellate jurisdiction over the discovery order; the orders were not at all intertwined, and the anonymity order could be reviewed without mentioning Rule 35.

Doe v. Sidar, 2024 WL 696535 (4th Cir. Feb. 21, 2024), available at the Fourth Circuit and Westlaw

recent posts

The Split on Appealing Receivership-Distribution Orders
A Seventh Circuit concurrence explained why litigants should not be able to take collateral-order appeals from orders orders distributing some of the assets in a receivership.
Another Rejection of Pure Bivens Appeals
A divided Tenth Circuit held that the Bivens question is not independently appealable via the collateral-order doctrine; it must be part of a qualified-immunity appeal.
The Month in Federal Appellate Jurisdiction: April 2024
Notices of appeal, manufactured finality, unresolved claims, qualified-immunity appeals, and much, much more.
Appeals After Unresolved Claims & Theories
Has a district court issued a final decision if it overlooked one of the parties’ claims? Courts seem to disagree. But the best answer might be that these oversights implicate the adequacy of the judgment, not finality.
Manufactured Finality & Dispositive Interlocutory Orders
The Second Circuit split over whether it had jurisdiction after a stipulated judgment, particularly whether a preliminary-injunction decision effectively resolved an action.

related posts

The Month in Federal Appellate Jurisdiction: April 2024
Notices of appeal, manufactured finality, unresolved claims, qualified-immunity appeals, and much, much more.
The Month in Federal Appellate Jurisdiction: March 2024
Reviewing hardship determinations in immigration appeals, reconsidering motions-panel decisions, church-autonomy appeals, CAFA remands, pendent appellate jurisdiction in Rule 23(f) appeals, and much more.
The Month in Federal Appellate Jurisdiction: January 2024
Appeals involving an abandoned claim/amended complaint, denials of qualified immunity, sealing orders, administrative remands, PREP Act immunity, and more.
The Month in Federal Appellate Jurisdiction: December 2023
A notice of appeal’s multiple functions, sanctions of unspecified attorney fees, and more.
The Month in Federal Appellate Jurisdiction: November 2023
November saw further cut backs on Perlman appeals, a purported video-evidence exception for qualified-immunity appeals, a partial objection to an untimely criminal appeal, and more.