Appeals involving an abandoned claim/amended complaint, denials of qualified immunity, sealing orders, administrative remands, PREP Act immunity, and more.
February 11, 2024
An especially busy January means I didn’t have a lot of time to post about decisions from last month. But there were still several worth talking about. Below is a brief roundup of what I found interesting.
- Abandoning a Claim v. Amending a Complaint to Create Finality
- The Eleventh Circuit’s “Both-Questions” Path Around Johnson v. Jones
- A Collateral-Order Appeal from a Sealing Order
- The Second Circuit Avoided the Administrative-Remand Rule
- The Fourth Circuit on Reviewing Original Sentencing Errors in Appeals from a Modified Sentence
- Another Court Held that Denials of PREP Act Immunity Are Immediately Appealable via the Collateral-Order Doctrine
- The Second Circuit’s Seeming Application of New York’s Law of Appellate Jurisdiction in a Federal Proceeding
- Cert Grant on Staying v. Dismissing After Ordering Arbitration
- Other Supreme Court Developments
- Quick Notes
Abandoning a Claim v. Amending a Complaint to Create Finality
Last October, the Eleventh Circuit held in Lowery v. Amguard Insurance Co. that litigants can create a final decision by abandoning unresolved claims. As I noted at the time, this holding stood in some tension with the Eleventh Circuit’s rule that litigants cannot voluntarily dismiss discrete claims. And although I liked the outcome, I did not see a meaningful difference difference between abandoning an unresolved claim and voluntarily dismissing it.
Yesterday—and on its own initiative—the Eleventh Circuit issued a substitute opinion in Lowery. This time, the court held that the plaintiffs had effectively amended their complaint to remove the unresolved claim. And amending a complaint to remove unresolved claims is a perfectly acceptable way to achieve a final decision.
The new opinion says nothing about abandoning claims. I take this as an indication that future Eleventh Circuit panels might not welcome the abandoning tactic that Lowery initially approved. But the decision also suggests some valuable pragmatism in treating attempts to eliminate unresolved claims as attempts to amend a complaint.
Read more: Abandoning a Claim v. Amending a Complaint to Create Finality.
Lowery v. AmGuard Insurance Company, 2024 WL 108751 (11th Cir. Jan. 10, 2024), available at the Eleventh Circuit and Westlaw
The Eleventh Circuit’s “Both-Questions” Path Around Johnson v. Jones
As I’ve said many times on this site and in my scholarship, the genuineness of any factual disputes is normally not within the scope of interlocutory qualified-immunity appeals. There are some widely recognized exceptions to this rule. Two Eleventh Circuit cases from last month—Nelson v. Tompkins and Dempsey v. Sheriff—illustrated a less-well-recognized exception. The Eleventh Circuit said that it can review the genuineness of factual disputes so long as the defendant also challenges the existence of a clearly established constitutional violation. This seems to me to be a pretty mistaken end-run around the normal limits on qualified-immunity appeals.
Read more: The Eleventh Circuit’s “Both-Questions” Path Around Johnson v. Jones.
Nelson v. Tompkins, 2024 WL 57022 (11th Cir. Jan. 5, 2024), available at the Eleventh Circuit and Westlaw
Dempsey v. Sheriff, Bay County Florida, 2024 WL 95441 (11th Cir. Jan. 9, 2024), available at the Eleventh Circuit and Westlaw
A Collateral-Order Appeal from a Sealing Order
In Abdelhady v. George Washington University, the D.C. Circuit heard an immediate appeal from an order refusing to seal medical records.
Jurisdiction came from the collateral-order doctrine. The seal order was conclusive on the sealing issue and separate from the action’s merits. And individuals’ “strong interest in keeping their medical treatments and diagnoses private” warranted immediate review. After all, a lack of immediate review would result in the potentially erroneous dissemination of this information, something that could not later be remedied.
The court added that it was “not deciding whether the collateral order doctrine categorically applies to any order denying a motion to seal.” A circuit split exists on that issue.
Abdelhady v. George Washington University, 2024 WL 87641 (D.C. Cir. Jan. 9, 2024), available at the D.C. Circuit and Westlaw
The Second Circuit Avoided the Administrative-Remand Rule
In New York Legal Assistance Group v. Cardona, the Second Circuit avoided weighing in on whether and when litigants can appeal a district court’s order remanding an action to an administrative agency.
The case involved a challenge to certain Department of Education regulations. The district court vacated only some of those regulations and remanded the matter to the Department for further proceedings.
The party who challenged the regulations then appealed. The Department responded by arguing that there was no appellate jurisdiction under the administrative-remand rule.
The Second Circuit ultimately remanded the case for the district court to consider an alternative remedy. (Simplifying a fair bit, the district court might have severed some of the regulations while keeping the rest intact.)
The court of appeals thus did not need to address the Department’s argument that there was no appellate jurisdiction. A change in remedy could affect jurisdiction by producing an indisputably final decision.
New York Legal Assistance Group v. Cardona, 2024 WL 64220 (2d Cir. Jan. 5, 2024), available at CourtListener and Westlaw
The Fourth Circuit on Reviewing Original Sentencing Errors in Appeals from a Modified Sentence
In United States v. Newby, a divided Fourth Circuit held that it could review an error in a defendant’s original sentence in an appeal from an order that modified that sentence.
When the defendant in Newby was originally sentenced, the district court imposed discretionary conditions of supervised release that the court did not announce during the sentencing hearing. Over a decade later, the Fourth Circuit held in United States v. Rogers that these sorts of conditions violated a criminal defendant’s right to be present during sentencing. The defendant in Newby thereafter sought to modify unrelated aspects of his sentence under the First Step Act. The district court agreed to do so. But the amended judgment included the same discretionary conditions of supervised release that were not announced at the defendant’s original sentencing.
When the defendant then appealed, a split Fourth Circuit held that it could review the original imposition of discretionary supervised-release conditions. To be sure, the time to appeal the original sentence had long passed. But the amended sentence was appealable. And that sentence “remain[ed] infected by the initial Rogers error.” The Fourth Circuit could accordingly review—and vacate—the imposition of the release conditions.
Judge Quattlebaum dissented. He thought that under a variety of rules—the law of the case doctrine, the mandate rule, or waiver principles—“a party generally cannot use a second appeal to challenge issues that were available but not raised in an initial appeal.”
United States v. Newby, Error (4th Cir. Jan. 19, 2024), available at the Fourth Circuit and Westlaw
Another Court Held that Denials of PREP Act Immunity Are Immediately Appealable via the Collateral-Order Doctrine
In Goins v. Saint Elizabeth Medical Center, Inc., the Sixth Circuit held that denials of PREP Act immunity are immediately appealable via the collateral-order doctrine. The court said that, “[l]ike an order denying qualified immunity, an order denying statutory immunity conclusively resolves an issue separate from the merits of the action.” And PREP Act immunity’s origins in a statute “imbue[]” it “with a significant public interest that is not always present with regard to a defense against liability.”
Earlier this year, the Ninth Circuit similarly held that defendants can immediately appeal from denials of PREP Act immunity.
Goins v. Saint Elizabeth Medical Center, Inc., 2024 WL 229568 (6th Cir. Jan. 22, 2024), available at the Sixth Circuit and Westlaw
The Second Circuit’s Seeming Application of New York’s Law of Appellate Jurisdiction in a Federal Proceeding
The Second Circuit’s decision in Resource Group International Limited v. Chishti has confused me. The case involved an appeal from the refusal to enjoin an arbitration proceeding. The Second Circuit allowed the appeal. And in doing so, the court seems to have thought that its jurisdiction was governed by New York state law.
Again, the district court refused to enjoin an ongoing arbitration. When the aggrieved party appealed, the Second Circuit recognized that 9 U.S.C. § 16(b)(4) normally bars appeals from orders “refusing to enjoin an arbitration that is subject to [the Federal Arbitration Act].” But according to the Second Circuit, this constraint on appellate jurisdiction “is not absolute because the Supreme Court has held that parties may ’specify by contract the rules under which th[e] arbitration will be conducted,” including “state rules of arbitration.’” (Quoting Volt Information Sciences, Inc. v. Board of Trustees.) The parties in Resource Group International intended that New York law govern their arbitration.
This choice of New York law, the Second Circuit said, raised a choice-of-law/Erie question as to appellate jurisdiction. New York’s law of appellate jurisdiction would permit an immediate appeal. And that issue of appellate jurisdiction, the court thought, was substantive. Section 16(b)(4) “withholds jurisdiction where it would otherwise have existed” and thus “speaks to the substantive rights of the parties by denying them a right to appeal that they otherwise would have.” (Cleaned up.) Indeed, both “the relevant provision in the [Federal Arbitration Act] (withholding appellate jurisdiction) and Article 75 of New York’s Civil Practice and Rules (granting appellate jurisdiction)” were “substantive provisions.” Appellate jurisdiction was thus a “substantive question.”
The parties’ choice of New York law thus meant that New York’s law of appellate jurisdiction applied. And that law allowed an immediate appeal from an order granting or denying a stay of arbitration.
I don’t get it. Federal law, not state law, controls federal appellate jurisdiction. And the parties cannot agree to create jurisdiction where none exists.
Resource Group International Limited v. Chishti, Error (2d Cir. Jan. 22, 2024), available at CourtListener and Westlaw
Cert Grant on Staying v. Dismissing After Ordering Arbitration
The Supreme Court granted cert in Smith v. Spizziri, which asks if district courts must stay (and not dismiss) actions after ordering arbitration. This is an issue I’ve been following for a while, as the choice impacts the ability to appeal. For my thoughts, see my post Lamps Plus Never Should Have Gotten This Far.
Other Supreme Court Developments
The Supreme Court denied cert in Boresky v. Graber. The petition asked if the Bivens question was immediately appealable via the collateral-order doctrine even without a qualified-immunity appeal. I’ve written about this issue a few times on this site (see here, here, and here), and I’m glad to see the Court reject this petition. The courts of appeals have unanimously said no—the Bivens issue is immediately appealable only as part of a qualified-immunity appeal. (The petition claimed that a split exists on this matter, but I don’t see it.) But according to the petition, at least three pending cases in various courts of appeals present this same issue. So I’ll keep an eye on it.
There are also a few new cert petitions worth following.
The petition in Ahmed v. S.E.C. asks if the cross-appeal rule—the rule that a court of appeals cannot alter a judgment in an appellee’s favor without a cross-appeal—is jurisdictional. The response is due March 11, 2024.
Gonzalez v. Shahin concerns post-judgment motions filed after the district court extends the time to file those motions (which the district court can’t due under Federal Rule of Civil Procedure 6(b)(2)). The petition asks if these post-judgment motions reset the appeal clock so long as no one objects to the extension. The response is due March 25, 2024.
Petition for Writ of Certiorari, Ahmed v. S.E.C., No. 23-741 (U.S. Jan. 5, 2024), available at the Supreme Court and Westlaw
Petition for Writ of Certiorari, Gonzalez v. Shahin, No. 23-797 (U.S. Jan. 19, 2024), available at the Supreme Court and Westlaw
Quick Notes
In Consumers’ Research v. Consumer Product Safety Commission, the Fifth Circuit heard a Rule 54(b) appeal from an order rejecting a constitutional challenge to the structure of the Consumer Product Safety Commission. The plaintiffs had also challenged that structure with under the Administrative Procedure Act and the Freedom of Information Act—challenges that the district court had not yet resolved. The Fifth Circuit explained that the constitutional challenge was a separate “claim” for purposes of Federal Rule of Civil Procedure 54(b). “Even without an ‘articulable standard’ for discerning one claim from another in more complicated cases—for example, those involving multiple theories of damages—[the court had] no trouble concluding that the ‘claim’ at issue [was] distinct enough for Rule 54(b).”
Consumers’ Research v. Consumer Product Safety Commission, 2024 WL 177326 (5th Cir. Jan. 17, 2024), available at the Fifth Circuit and Westlaw
In Multimedia Technologies, Inc. v. City of Atlanta, the Eleventh Circuit rejected a partial judgment under Federal Rule of Civil Procedure 54(b). The court explained that Rule 54(b) appeals require “special circumstances beyond the delay inherent in ordinary appeals.” And there were no special circumstances—such as the appeal stemming from consolidated cases, the litigation’s being in its early (even pre-discovery) stages, or the litigation’s involving multiple defendants—in Multimedia Technologies. Delaying an appeal would involve nothing more than the normal inconvenience of delayed review.
Multimedia Technologies, Inc. v. City of Atlanta, 2024 WL 64212 (11th Cir. Jan. 5, 2024), available at the Eleventh Circuit and Westlaw
In JLM Couture, Inc. v. Gutman, the Second Circuit rejected a contempt appeal after concluding that the district court’s contempt order did not modify the injunction that the contemner had violated. An order holding a party in civil contempt is normally not immediately appealable. The contemner in JLM Couture tried to get around this rule by arguing that the contempt order modified an injunction, which would be appealable under 28 U.S.C. § 1292(a)(1). The Second Circuit disagreed, determining that the district court had merely interpreted the injunction.
JLM Couture, Inc. v. Gutman, 2024 WL 172609 (2d Cir. Jan. 17, 2024), available at CourtListener and Westlaw