Monthly Roundup

The Month in Federal Appellate Jurisdiction: July 2024

The scope and availability of arbitration appeals, remand appeals in naturalization proceedings, the Rule 3(c) amendments, and more.

August 5, 2024

By Bryan Lammon

July was a fairly quiet month. But there were still a few decisions worth discussing.

An Unnecessary Discourse on Reviewing Personal Jurisdiction in Arbitration Appeals

In Hines v. Stamos (no PDF currently available), the Fifth Circuit spoke at length about its jurisdiction to review a personal-jurisdiction defense as part of an arbitration appeal. But the discussion was entirely unnecessary. The district court had never ruled on the personal-jurisdiction defense, meaning that there was no order to review. And the panel ultimately remanded the case for the district court to address personal-jurisdiction (as well as subject-matter jurisdiction), which might render the arbitration issue moot.

All of this could have been done without mentioning appellate jurisdiction over the personal-jurisdiction defense. The Fifth Circuit could have simply remanded the case for the district court to address personal jurisdiction in the first instance. And I think doing so would have been the better move—whether personal- and subject-matter-jurisdiction issues are within the scope of interlocutory appeals is a difficult, unsettled issues.

Read more: An Unnecessary Discourse on Reviewing Personal Jurisdiction in Arbitration Appeals.

Hines v. Stamos, 2024 WL 3580618 (5th Cir. July 30, 2024), available at the Fifth Circuit and Westlaw

Appealing Waiver-Based Remands

In Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, the Fifth Circuit held that it lacked jurisdiction to review an order that remanded a removed action because the defendant had waived the right to remove. But the panel doubted that doing so was correct. Indeed, the panel seemed almost certain that its decision was wrong. But it was bound by the Fifth Circuit’s decision in In re Weaver, which held that 28 U.S.C. § 1447(d) barred review of such a remand.

Read more: Appealing Waiver-Based Remands.

Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, 2024 WL 3533052 (5th Cir. July 25, 2024), available at the Fifth Circuit and Westlaw

No Remand Appeals in Naturalization Proceedings

In Dubon v. Jaddou, the Fourth Circuit dismissed an appeal from an order remanding a naturalization action to the U.S. Citizenship and Immigration Services. The court acknowledged that this remand order would be unreviewable in any future proceedings. But it thought that this lack of review was harmless, as the applicant could eventually obtain judicial review of the underlying naturalization decision.

Read more: No Remand Appeals in Naturalization Proceedings.

Dubon v. Jaddou, 2024 WL 3558867 (4th Cir. July 29, 2024), available at the Fourth Circuit and Westlaw

Arbitration Appeals Under Sections 3 & 4 of the FAA

In Wallrich v. Samsung Electronics America, Inc., the Seventh Circuit explained that litigants can appeal after a district court orders arbitration when the action was brought solely to compel arbitration under 9 U.S.C. § 4.

The plaintiffs in Wallrich had filed a petition to compel arbitration under § 4. The district court granted the plaintiffs’ petition. But the district court also stayed the action. The defendant then appealed.

The Seventh Circuit noted that orders compelling arbitration often come in proceedings under 9 U.S.C. § 3. In those cases, a plaintiff files its substantive claims in federal court, and the defendant moves under § 3 to compel arbitration. If a district court compels arbitration in such an action, 9 U.S.C. § 16(b)(1) prohibits appellate review.

A § 4 proceeding, in contrast, is brought solely to compel arbitration. So an order compelling arbitration in a § 4 proceeding is not an interlocutory order. It’s instead “a final decision with respect to an arbitration,” appealable under § 16(a)(3).

The district court’s order staying the action didn’t change things. That’s because the order made no sense. Once the district court had ordered arbitration, the action was over—there was nothing left to stay.

Wallrich v. Samsung Electronics America, Inc., 2024 WL 3249646 (7th Cir. July 1, 2024), available at the Seventh Circuit and Westlaw

Another Case Overlooking the Rule 3(c) Amendments

Regular readers of this site are probably aware that several courts of appeals once held that designating one order in a notice of appeal limited the scope of appeal to that order; other orders were outside of the court’s jurisdiction. The Supreme Court amended Federal Rule of Appellate Procedure 3(c) a few years ago to abrogate this practice. So now (as the Fourth Circuit explained in last month’s Jenkins v. Woodard), “under the current version of the rule, a party need not designate all orders he seeks to appeal in his notice of appeal.” “Rather, a party’s notice of appeal of a final order encompasses all orders that merge into that order.”

But several courts of appeals have failed to apply (or even acknowledge) those amendments. A pair of unpublished Second Circuit decisions from last month illustrate the inconsistency with which courts have treated the Rule 3(c) amendments.

In United States v. Williams, the Second Circuit said that the failure to identify an order in a notice of appeal deprived the court of appellate jurisdiction to review that order. In support of this conclusion, the Second Circuit cited to a pre-amendments case that the Rule 3(c) amendments abrogated.

But just a few days later, in Brock v. City of New York, the Second Circuit held that an appeal was not limited to the orders designated in the notice of appeal. The court explained that “[u]nder the recently revised version of Federal Rule of Appellate Procedure 3(c), an appeal ‘must not be dismissed’ for ’failure to properly designate the judgment if the notice of appeal was filed after entry of the judgment and designates an order that merged into that judgment.”

I’m seeing fewer and fewer cases fail to apply the Rule 3(c) amendments. But it’s still happening.

Jenkins v. Woodard, 2024 WL 3490967 (4th Cir. July 22, 2024), available at the Fourth Circuit and Westlaw

United States v. Williams, 2024 WL 3450126 (2d Cir. July 18, 2024), available at CourtListener and Westlaw

Brock v. City of New York, 2024 WL 3493495 (2d Cir. July 22, 2024), available at CourtListener and Westlaw

The Month’s Improper Qualified-Immunity Appeals

There were quite a few qualified-immunity appeals last month in which defendants improperly challenged the factual basis for the immunity denial:

Quick Notes

In United States v. Boswell, the Fifth Circuit joined several other circuits in holding that district courts can impose restitution on a criminal defendant even after the defendant has filed a notice of appeal.

United States v. Boswell, 2024 WL 3506194 (5th Cir. July 23, 2024), available at the Fifth Circuit and Westlaw

In United States v. Weinlein, the Second Circuit explained that a party who obtained some of the relief it sought in the district court still has standing to appeal if that party did not obtain all the relief it sought. In Weinlein, the appellant succeeded in her challenge to quash certain subpoenas. But the district court denied the appellant’s motion to terminate her restitution obligation. The appellant could accordingly challenge that denial on appeal, even though there was uncertainty as to whether the appellant would be required to pay restitution in the future.

United States v. Weinlein, 2024 WL 3528764 (2d Cir. July 25, 2024), available at CourtListener and Westlaw

In Koss Corp. v. Bose Corp., the Federal Circuit (applying Ninth Circuit caselaw) explained “that claims in prior dismissed complaints need not be raised in amended complaints for them to be appealable.” Instead, the order dismissing those claims merges into the final judgment.

Koss Corp. v. Bose Corp., 2024 WL 3464024 (Fed. Cir. July 19, 2024), available at the Federal Circuit and Westlaw

In United States v. Rowland, the Third Circuit said that it had jurisdiction to review the without-prejudice denial of a motion to return property under Federal Rule of Criminal Procedure 41(g). The district court in Rowland had denied the motion because the defendant’s appeal from his conviction and sentence was still pending; the district court thought adjudication of the motion should wait until after that appeal. The Third Circuit determined that this without-prejudice dismissal was appealable. The court of appeals explained that the defendant could do nothing to correct the perceived defect in his motion. And the defendant had clearly and unequivocally forgone the district court’s invitation to refile the Rule 41(g) motion at some future time.

United States v. Rowland, 2024 WL 3250909 (3d Cir. July 1, 2024), available at the Third Circuit and Westlaw

And in Vega v. Chicago Board of Education, the Seventh Circuit held that attorneys who were not named in a notice of appeal could appeal a sanction order against them. The notice identified the district court’s sanction order, which was directed at “Plaintiffs’ counsel.” “Plaintiffs’ counsel” included all of the appealing attorneys, who had an obvious interest in challenging the sanction order. So while the notice of appeal specifically named only one of the attorneys (and their firm), the other attorneys’ intent to appeal was obvious.

Vega v. Chicago Board of Education, 2024 WL 3562965 (7th Cir. July 29, 2024), available at the Seventh Circuit and Westlaw

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The Month in Federal Appellate Jurisdiction: August 2024
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The Appeal Clock for Attorneys Fees
The Seventh Circuit offered a helpful reminder: the time to appeal an award of attorneys fees runs from the order on fees, not the entry any separate document.
Appealing to Invoke a Non-Party’s Immunity?
The Fourth Circuit dismissed an appeal in which defendants argued that a state agency—which could invoke sovereign immunity—should be joined under Rule 19.

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