Monthly Roundup

The Month in Federal Appellate Jurisdiction: July 2023

Lots of class-certification appeals, pendent appellate jurisdiction, and duty-to-defend appeals. Plus appeals from compassionate-release grants, conditional dismissals, and qualified-immunity denials; the requirements of Rule 4(a)(6); immigration exhaustion, and more.

August 1, 2023

By Bryan Lammon

July produced two opinions in Rule 23(f) appeals from class-certification decisions. One addressed whether a FLSA collective-action decision could tag along via pendent appellate jurisdiction, and the other thought that an appeal was proper due to the district court’s inadequate explanation. There were also some pendent appellate jurisdiction decisions involving sovereign immunity. And two courts held that duty-to-defend decisions were not appealable injunctions. Plus decisions on government appeals from compassionate-release grants, appeals from conditional dismissals, jurisdiction after an agreement to appeal, several improper qualified-immunity appeals, and much more.

Rule 23(f) Appeals & Pendent Appellate Jurisdiction Over a FLSA Collective Action
Government Appeals From Compassionate-Release Grants
Manufacturing Finality via a Conditional Dismissal
A Rule 23(f) Appeal Due to an Inadequate Explanation
The Fourth Circuit Requires a Second Notice of Appeal After the Appeal Window is Reopened
Appealing Duty-to-Defend Decisions
Another Duty-to-Defend Appeal
The Eleventh Circuit on Agreements to Appeal
The Fourth Circuit on What’s Necessary for Immigration Exhaustion
No Pendent Appellate Jurisdiction Over Attachment in a Sovereign-Immunity Appeal
The Fifth Circuit Exercised Pendent Appellate Jurisdiction Over Standing & Ripeness in a Sovereign-Immunity Appeal
What Is the Surviving Scope of the Eleventh Circuit’s Voluntary-Dismissal-Finality Rule?
A Plethora of Improper Qualified-Immunity Appeals
New Cert Petition on the Deadline for MSPB Petitions
Quick Notes

Rule 23(f) Appeals & Pendent Appellate Jurisdiction Over a FLSA Collective Action

In Harris v. Medical Transportation Management, Inc., the D.C. Circuit reviewed (and reversed) a grant of class certification. But it refused to use pendent appellate jurisdiction to review certification of a collective action under the Fair Labor Standards Act. The court explained that class actions and collective actions “are fundamentally different creatures.” The court of appeals did not need to review the propriety of the collective action to address class certification. And the resolution of the class-certification appeal did not necessarily resolve the propriety of the collective action. The court added that even if it could exercise pendent appellate jurisdiction, it would decline to do so given the complexity of the collective-action issues.

Harris v. Medical Transportation Management, Inc., 2023 WL 4567258 (D.C. Cir. July 18, 2023), available at the D.C. Circuit and Westlaw

Government Appeals From Compassionate-Release Grants

In United States v. Rivera-Rodríguez, the First Circuit held that the government can appeal from orders granting a criminal defendant’s request for compassionate release. Although several courts of appeals have reviewed these appeals, few have addressed their jurisdiction to do so in any depth. But the issue requires some thought—as the Rivera-Rodríguez panel noted, “[t]he government has no right of appeal in criminal cases except where a statute expressly grants such a right.”

United States v. Rivera-Rodríguez, 2023 WL 4633508 (1st Cir. July 20, 2023), available at the First Circuit and Westlaw

Manufacturing Finality via a Conditional Dismissal

In In re Municipal Stormwater Pond Coordinated Litigation, a split Eighth Circuit held that it lacked jurisdiction to review the resolution of some claims when the parties conditionally dismissed other claims.

The parties agreed that, should the Eighth Circuit reverse, the voluntarily dismissed claims could be reinstated. But if the Eighth Circuit affirmed, the voluntarily dismissed claims were forever lost.

A majority of the Eighth Circuit held that this conditional dismissal did not result in a final, appealable decision. Judge Kelly dissented, contending that the dismissal was not actually conditional because the district court did not approve of the dismissal’s terms.

In re Municipal Stormwater Pond Coordinated Litigation, 2023 WL 4612995 (8th Cir. July 19, 2023), available at the Eighth Circuit and Westlaw

A Rule 23(f) Appeal Due to an Inadequate Explanation

In National ATM Council, Inc. v. Visa, Inc., the D.C. Circuit offered a rare explanation for granting a petition to appeal a class-certification grant under Federal Rule of Civil Procedure 23(f). The reasons given—particularly the inadequacy of the district court’s explanation—were particularly interesting.

National ATM Council, Inc. v. Visa, Inc., 2023 WL 4743013 (D.C. Cir. July 25, 2023), available at the D.C. Circuit and Westlaw

The Fourth Circuit Requires a Second Notice of Appeal After the Appeal Window is Reopened

In Parrish v. United States, a divided Fourth Circuit dismissed an appeal because the would-be appellant did not file a second notice of appeal after the district court reopened the appeal time under Federal Rule of Appellate Procedure 4(a)(6). An earlier notice of appeal—which the Fourth Circuit had construed as a motion to reopen the appeal time—was insufficient. The would-be appellant instead needed to file a new one. Judge Gregory dissented to point out that this second notice of appeal is a needless, formalistic requirement.

Parrish sets up a trap for unwary litigants. And some litigants might fall into that trap; it’s not uncommon for courts of appeals to treat late notices of appeal—often from incarcerated, pro se litigants—as motions to reopen the appeal time under Rule 4(a)(6). A procedural trap should serve some purpose. I see none in Parrish. I also agree with Judge Gregory that nothing in 28 U.S.C. § 2107(c) nor Rule 4(a)(6) requires a second notice. Hopefully the Fourth Circuit will rethink this matter.

Parrish v. United States, 2023 WL 4552590 (4th Cir. July 17, 2023), available at the Fourth Circuit and Westlaw

Appealing Duty-to-Defend Decisions

In Selective Insurance Company of America v. Westfield Insurance Company, the Fourth Circuit dismissed an interlocutory appeal from a duty-to-defend decision. The court assumed—as other courts have held—that duty-to-defend orders can be appealable injunctions under 28 U.S.C. § 1292(a)(1). But the underlying litigation in Selective Insurance (that is, the litigation in which the insured was seeking a defense) was resolved while the duty-to-defend appeal was pending. Because that underlying litigation was over, the duty-to-defend order no longer imposed any prospective obligations on the insurance company. The Fourth Circuit thus concluded that the duty-to-defend order “lack[ed] the character of an injunction” and thus could not be immediately appealed via § 1292(a)(1).

Selective Insurance Company of America v. Westfield Insurance Company, 2023 WL 4479322 (4th Cir. July 12, 2023), available at the Fourth Circuit and Westlaw

Another Duty-to-Defend Appeal

Two weeks after Selective Insurance, the Third Circuit dismissed another duty-to-defend appeal in Zurn Industries, LLC v. Allstate Insurance Co. The opinion includes a nice explanation of when duty-to-defend decisions are appealable injunctions. To be appealable, the “District Court must have directed [the insurer] to do something.” So orders that effectively define the parties’ duties or clarify the scope of potential future duties are not enough. Without a directive, there is no appeal.

Zurn Industries, LLC v. Allstate Insurance Co., 2023 WL 4835137 (3d Cir. July 28, 2023), available at the Third Circuit and Westlaw

The Eleventh Circuit on Agreements to Appeal

In Carson v. Monsanto Company, a majority of the en banc Eleventh Circuit held that a live Article III controversy existed despite the parties’ agreement that the plaintiff would appeal.

The case is one of many against Monsanto for failing to warn of Roundup’s cancer risks. The district court dismissed some of the plaintiff’s claims as preempted by federal law. The parties then settled the remaining claims. The settlement required the plaintiff to appeal the preemption ruling—failure to do so meant the plaintiff had to pay back nearly all of the settlement amount. And if the plaintiff prevailed on appeal, Monsanto would pay him an additional $100,000.

The Eleventh Circuit’s opinion largely addressed the preemption issue. But before doing so, the court had to assure itself of Article III jurisdiction. The concern was that Monsanto now controlled the litigation via the contingent settlement agreement. After all, Monsanto had prevailed in the district court and was essentially paying the plaintiff to appeal. (Apparently Monsanto wanted to create a circuit split on the preemption issue that would facilitate Supreme Court review.)

A majority of the en banc court held that a live case or controversy still existed. The parties had adverse legal positions and a financial stake in winning. The plaintiff would receive a larger settlement if he won. And Monsanto would pay less if it prevailed. The only collusion by the parties was to ensure an appellate decision.

Judge Jordan concurred to point out that the settlement was similar (though not identical) to the typical “high-low” agreement in civil cases. In these agreements, the parties agree that the monetary outcome of a case will turn on a particular decision, such as a jury’s decision on liability. The agreement in Carson simply turned on the outcome of the appeal. And although Monsanto was the driving force behind the appeal, the plaintiff retained a sufficient interest for there to be a live case or controversy.

Judge Wilson dissented. He contended that Monsanto had taken full control over the litigation, depriving the action of its adversarial nature. The key distinction between Carson and other cases was that the prevailing party ginned up the appeal. It was not attempted to liquidate its damages and thus avoid litigation—it instead wanted to ensure further litigation. And when a prevailing party pays the losing party to appeal, “the manufactured controversy that results tarnishes the integrity of the judicial process.” (Quotation marks omitted.)

Carson v. Monsanto Company, 2023 WL 4418639 (11th Cir. July 10, 2023), available at the Eleventh Circuit and Westlaw

The Fourth Circuit on What’s Necessary for Immigration Exhaustion

In Tepas v. Garland, the Fourth Circuit held an immigration petitioner had failed to exhaust an issue by including the issue in a notice of appeal but failing to brief it.

Under 8 U.S.C. § 1252(d)(1), immigration petitioners generally must exhaust an issue in the immigration courts before presenting that issue to a court of appeals. When he appealed to the Board of Immigration Appeals, the petitioner in Tepas stated that he intended to challenge the immigration judge’s jurisdiction to adjudicate his asylum application. He also checked a box in his notice of appeal indicating that he intended to file a brief. But in that later-filed brief, the petitioner did not raise the jurisdictional argument.

The Fourth Circuit held that this failure to brief the jurisdictional issue meant the petitioner did not exhaust it.

Tepas v. Garland, 2023 WL 4410685 (4th Cir. July 10, 2023), available at the Fourth Circuit and Westlaw

No Pendent Appellate Jurisdiction Over Attachment in a Sovereign-Immunity Appeal

In OI European Group B.V. v. Bolivarian Republic of Venezuela, the Third Circuit dismissed a sovereign-immunity appeal insofar as it sought review of an attachment order.

The appeal stemmed from efforts to enforce arbitration awards against the government of Venezuela. The Third Circuit reviewed—and affirmed—a district court order rejecting sovereign immunity. The Third Circuit then explained that an additional issue—whether certain shares could be attached to enforce the arbitration award—was outside the scope of appeal. The court could review and resolve the appealable issue (immunity) without wading into the other issue (attachment). And resolving immunity did not necessarily resolve attachment. Pendent appellate jurisdiction was thus improper.

OI European Group B.V. v. Bolivarian Republic of Venezuela, 2023 WL 4385930 (3d Cir. July 7, 2023), available at the Third Circuit and Westlaw

The Fifth Circuit Exercised Pendent Appellate Jurisdiction Over Standing & Ripeness in a Sovereign-Immunity Appeal

In Consumer Data Industry Association v. Texas, the Fifth Circuit exercised pendent appellate jurisdiction over standing and ripeness issues in an appeal from the denial of sovereign immunity. The only explanation given was “the significant overlap in the issues presented.”

Note, the Fourth Circuit recently explained why pendent appellate jurisdiction should not extend to standing issues in these appeals.

Consumer Data Industry Association v. Texas, 2023 WL 4744918 (5th Cir. July 25, 2023), available at the Fifth Circuit and Westlaw

What Is the Surviving Scope of the Eleventh Circuit’s Voluntary-Dismissal-Finality Rule?

In Hardwick v. CorrectHealth Bibb LLC, the Eleventh Circuit dismissed an appeal after the parties purported to voluntarily dismiss all unresolved claims. The Eleventh Circuit has held that Federal Rule of Civil Procedure 41 allows parties to voluntarily dismiss only entire actions—not just some of the claims. So attempts to voluntarily dismiss only some of the claims are ineffective.

The court also noted that its decision in Corley v. Long-Lewis, Inc.—which held that a voluntary dismissal of part of an action results in a final decision—did not apply. Corley dealt with a court-ordered voluntary dismissal under Rule 41(a)(2).

Hardwick made me wonder about the continuing usefulness of Corley. Again, Corley held that the voluntary dismissal of all unresolved claims in an action, even without prejudice, results in a final, appealable decision. But the Eleventh Circuit has limited the situations in which litigants or courts can use Rule 41 to voluntarily dismiss the remainder of an action. Hardwick noted that Corley dealt with a court-ordered voluntary dismissal under Rule 41(a)(2). But left unmentioned in Hardwick was the Eleventh Circuit’s recent decision in Rosell v. VMSB, LLC, which held that Rule 41(a)(2) also permits the dismissal only of entire actions.

Only one scenario remains in which litigants can voluntarily dismiss some—but not all—of an action under Rule 41: dismissing all of the claims against a defendant in a multi-defendant action. It would seem that Corley’s finality holding is still relevant to only in those cases.

Hardwick v. CorrectHealth Bibb LLC, 2023 WL 4350574 (11th Cir. July 5, 2023), available at the Eleventh Circuit and Westlaw

A Plethora of Improper Qualified-Immunity Appeals

Defendants have a right to immediately appeal from the denial of qualified immunity. But the scope of those appeals is limited when the district court denies immunity at summary judgment. With rare exceptions, defendants appealing from the denial of qualified immunity at summary judgment can dispute only the materiality of any fact disputes. They cannot argue that the district court erred in concluding that fact disputes were genuine. That is, they cannot dispute the district court’s determination of what a reasonable jury could find.

Defendants regularly flout this limit on the scope of interlocutory qualified-immunity appeals. They appeal from the denial of immunity to argue that the district court erred in determining what a reasonable jury could find. Appellate courts normally dismiss these improper appeals. But at that point, the damage is done. District courts often stay proceedings pending the appeal, which can take months or years to resolve. These improper appeals thus add wholly unnecessary difficulty, expense, and delay to civil-rights litigation. These improper appeals are also one of the main reasons why, should qualified immunity stick around in its current or an altered form, the rules governing qualified-immunity appeals need to change.

July saw an inordinate number of these improper, fact-based qualified-immunity appeals. There are too many to detail:

Scroggins v. Richardson, 2023 WL 4624480 (11th Cir. July 19, 2023), available at the Eleventh Circuit and Westlaw
Chilcutt v. Santiago, 2023 WL 4678583 (7th Cir. July 21, 2023), available at the Seventh Circuit and Westlaw
Washington v. Thomas, 2023 WL 4704142 (5th Cir. July 24, 2023), available at the Fifth Circuit and Westlaw
Harper v. McAndrews, 2023 WL 4763346 (5th Cir. July 26, 2023), available at the Fifth Circuit and Westlaw
English v. City of Gainesville, 2023 WL 4782733 (11th Cir. July 27, 2023), available at the Eleventh Circuit and Westlaw
Brandy v. City of St. Louis, Missouri, 2023 WL 4835028 (8th Cir. July 28, 2023), available at the Eighth Circuit and Westlaw
Brown v. Knapp, 2023 WL 4839012 (6th Cir. July 28, 2023), available at the Sixth Circuit and Westlaw

New Cert Petition on the Deadline for MSPB Petitions

A new cert petition questions the jurisdictionality of the deadline for petitions for review from Merit Systems Protection Board decisions. The case is Harrow v. Department of Defense. The response is due September 6, 2023.

Petition for a Writ of Certiorari, Harrow v. Department of Defense, No. 23-21 (July 3, 2023), available at the Supreme Court of the United States and Westlaw

Quick Notes

In Hymas v. U.S. Department of the Interior, the Ninth Circuit held that a plaintiff could appeal from the partial grant and partial denial of proceeding in forma pauperis. Just like a case in which in forma pauperis is denied in its entirety, the plaintiff could not proceed until the partial fee was paid. And if the plaintiff cannot pay the fee, the action is essentially over.

Hymas v. U.S. Department of the Interior, 2023 WL 4483692 (9th Cir. July 12, 2023), available at the Ninth Circuit and Westlaw

Two courts used hypothetical appellate jurisdiction to bypass appellate-jurisdiction issues and reach the merits. In Brown v. Building Engines, Inc., the Second Circuit avoided determining whether a dismissal with leave to amend was final. And in Doe v. Holly, the First Circuit avoided addressing when a judgment was entered and thus whether an appeal was timely.

Brown v. Building Engines, Inc., 2023 WL 4540565 (2d Cir. July 14, 2023), available at CourtListener and Westlaw

Doe v. Holly, 2023 WL 4542949 (1st Cir. July 14, 2023), available at the First Circuit and Westlaw

In Deffenbaugh Industries, Inc. v. Unified Government of Wyandotte County, the Tenth Circuit addressed at length the propriety of a partial judgment under Federal Rule of Civil Procedure 54(b). The opinion focused on what it called the “finality” of the resolved claims, addressing the overlap between those claims and those that remained pending in the district court.

Deffenbaugh Industries, Inc. v. Unified Government of Wyandotte County, 2023 WL 4363439 (10th Cir. July 6, 2023), available at the Tenth Circuit and Westlaw

In National Union Fire Insurance Co. of Pittsburgh v. UPS Supply Chain Solutions, Inc., the Second Circuit held that the subsequent dismissal of all unresolved claims saved a notice of appeal filed nine months prior.

National Union Fire Insurance Co. of Pittsburgh v. UPS Supply Chain Solutions, Inc., 2023 WL 4610772 (2d Cir. July 19, 2023), available at CourtListener and Westlaw

And in Enoch v. Perry, the Third Circuit dismissed an appeal because the district court had mistakenly thought it had resolved all of the parties’ claims.

Enoch v. Perry, 2023 WL 4700652 (3d Cir. July 24, 2023), available at the Third Circuit and Westlaw