Monthly Roundup

The Month in Federal Appellate Jurisdiction: June 2024

Another expansion of qualified-immunity appeals, manufactured finality in the agency context, more non-party privilege appeals, and more.

July 8, 2024

By Bryan Lammon

Quick roundup this month, starting with another expansion of the scope of qualified-immunity appeals.

Expanding Qualified-Immunity Appeals to the Scope of Discovery

In Asante-Chioke v. Dowdle, the Fifth Circuit reviewed an order refusing to limit the scope of discovery to qualified-immunity issues. The court said that it could immediately review this sort of order via the collateral-order doctrine. But I have my doubts. The Fifth Circuit relied on a line of cases holding that defendants can appeal decisions to defer ruling on qualified immunity until after discovery. But there was no deferral in Asante-Chioke. And the Fifth Circuit’s decision opens the door to future appeals challenging the scope of discovery in civil-rights actions.

Read more: Expanding Qualified-Immunity Appeals to the Scope of Discovery.

Asante-Chioke v. Dowdle, 2024 WL 2842206 (5th Cir. June 5, 2024), available at the Fifth Circuit and Westlaw

Manufactured Finality Before the MSPB

In Jones v. U.S. Merit Systems Protection Board, the Fourth Circuit reviewed a decision of the Merit Systems Protection Board even though the petitioners voluntarily dismissed some of their theories of relief. That voluntary dismissal was with prejudice, which made it highly unlikely that the voluntarily dismissed theories would ever resurface. So the petitioners were not trying to improperly manufacture an interlocutory appeal.

The opinion nicely recognizes that not all varieties of manufactured finality should be treated the same.

Read more: Manufactured Finality Before the MSPB.

Jones v. U.S. Merit Systems Protection Board, 2024 WL 2855029 (4th Cir. June 6, 2024), available at the Fourth Circuit and Westlaw

The Second Circuit’s Solomon Rule

In In re PB Life & Annuity Co., Ltd., the Second Circuit dismissed an appeal from a district court order that had held that certain claims were within a bankruptcy court’s jurisdiction. The opinion is largely unremarkable except for its brief discussion of—and attempt to distinguish—Solomon v. St. Joseph Health.

In Solomon, the Second Circuit had skipped a question of appellate jurisdiction and instead held that the district court lacked subject-matter jurisdiction. As I explained at the time (see my post Skipping Appellate Jurisdiction to Address Subject-Matter Jurisdiction), this was wrong—courts of appeals cannot skip over their own jurisdiction even if they think a district court lacks jurisdiction.

The appellants in PB Life argued that under Solomon courts “always have appellate jurisdiction—no matter the order appealed from—to correct a district court’s erroneous exercise of subject-matter jurisdiction.” The Second Circuit responded that this argument was “simply wrong.” And it distinguished Solomon, noting that the appellants there were appealing from an order that denied an immunity from suit, which is permissible under the collateral-order doctrine.

But Solomon never said that the appellants there were properly appealing from an immunity from suit. The court noted that the appellants argued as much. But Solomon never held that appellate jurisdiction was proper. In fact, the court said that it “need not decide whether Defendants’ interlocutory appeal is proper under the collateral-order doctrine.”

PB Life’s distinguishing of Solomon is thus unconvincing. The Second Circuit will eventually have to reckon with—and overrule—Solomon.

In re PB Life & Annuity Co., Ltd., 2024 WL 2972718 (2d Cir. June 13, 2024), available at CourtListener and Westlaw

More Non-Party Privilege Appeals in the Fifth Circuit

In Lewis v. Crochet, the Fifth Circuit held that it had jurisdiction to immediately review a non-party’s appeal of a discovery order that rejected a claim of attorney-client privilege.

The Fifth Circuit has allowed these non-party appeals despite the Supreme Court’s decision in Mohawk Industries, Inc. v. Carpenter, reasoning that Mohawk does not address appeals by non-parties. And unlike parties, non-parties cannot normally appeal from a final judgment.

I have long criticized the Fifth Circuit’s approach to discovery appeals. This is just another example of that court’s erroneous caselaw on these matters.

Lewis v. Crochet, 2024 WL 3024635 (5th Cir. June 17, 2024), available at the Fifth Circuit and Westlaw

A Post-Settlement Class-Intervenor Appeal

In Allen v. AT&T Mobility Services, LLC, the Eleventh Circuit dismissed an intervening class member’s appeal from the denial of class certification because the district court had not resolved the intervenor’s claims.

Simplifying a little bit, Allen stemmed from a purported class action alleging pregnancy discrimination. The district court denied class certification, and the Eleventh Circuit declined to review that decision under Federal Rule of Civil Procedure 23(f). The plaintiffs then settled their claims, and the parties stipulated to dismiss the action.

The appellant in Allen—who would have been a class member, had a class been certified—then successfully moved to intervene. Immediately thereafter, the intervenor appealed. And in that appeal, she tried to challenge the denial of class certification.

The Eleventh Circuit explained that with no decision on any claim’s merits, there was no appealable decision. The intervenor was just like “any other putative class representative without an existing final judgment”: she “must litigate her claims on the merits before she can appeal the denial of class certification.” Until the district court resolved the intervenor’s claims, there was no final, appealable decision. The Eleventh Circuit added that with no appellate jurisdiction, it could not address the district court’s subject-matter jurisdiction.

Allen v. AT&T Mobility Services, LLC, 2024 WL 2812328 (11th Cir. June 3, 2024), available at the Eleventh Circuit and Westlaw

The Split on Hyde Amendment Appeals

In United States v. Onamuti, the Seventh Circuit held that the civil appeal deadline applies to Hyde Amendment orders.

The Hyde Amendment permits criminal defendants to recover fees paid defending against frivolous, vexatious, or bad-faith charges. Courts have split on whether the criminal or civil appeal deadline applies to appeals from these orders. The majority of courts have applied the civil deadline, while the Tenth Circuit has held to the contrary.

The Seventh Circuit joined the majority in applying the civil deadline. The court reasoned that although Hyde Amendment motions are filed in criminal cases, they do “not pertain to the adjudication of guilt or the defendant’s punishment.” The motion instead “invokes a statutory remedy for a private injury and does not implicate the defendant’s liberty.” (Citation omitted.) So “a Hyde Amendment proceeding is an ancillary civil matter within the underlying criminal case.”

United States v. Onamuti, 2024 WL 2890786 (7th Cir. June 10, 2024), available at the Seventh Circuit and Westlaw

The Month’s Improper Qualified-Immunity Appeals

Last month saw four cases in which defendants appealed from the denial of qualified immunity but did not take as given the district court’s assessment of the record evidence:

Quick Notes

In Sparks v. Russell, the Fourth Circuit applied its Parrish rule, which requires a new notice of appeal after the district court reopens the time to appeal under Federal Rule of Appellate Procedure 4(a)(6). The original notice of appeal—which was filed before the district court reopened the appeal time—was insufficient.

Sparks v. Russell, 2024 WL 2862119 (4th Cir. June 6, 2024), available at the Fourth Circuit and Westlaw

In Colon v. Smith, the Eleventh Circuit extended pendent appellate jurisdiction over state law theories of relief in an appeal from the denial of qualified immunity. The court explained that the facts and law that resolved the federal theories also resolved the state theories.

Colon v. Smith, 2024 WL 2928305 (11th Cir. June 11, 2024), available at the Eleventh Circuit and Westlaw

In Westenbroek v. Kappa Kappa Gamma Fraternity, the Tenth Circuit dismissed an appeal because the district court had dismissed the plaintiffs’ complaint with leave to amend. Dismissals with leave to amend are not final orders. And the Tenth Circuit has held that plaintiffs must expressly stand on the complaint—and the district court must enter an order of absolute dismissal—before the plaintiffs can appeal.

For more on the circuit split over what is required to make a dismissal with leave to reinstate final, see my recent article on the matter.

Westenbroek v. Kappa Kappa Gamma Fraternity, 2024 WL 2954705 (10th Cir. June 12, 2024), available at the Tenth Circuit and Westlaw

In Mi Familia Vota v. Ogg, the Fifth Circuit determined that it could hear an appeal from the denial of state sovereign immunity even though the defendant did not seek immunity for all of the plaintiff’s claims.

Mi Familia Vota v. Ogg, 2024 WL 3059049 (5th Cir. June 20, 2024), available at the Fifth Circuit and Westlaw

In United States v. D’Ambrosio, the Third Circuit held that it could review the denial of a motion to modify the conditions of supervised release that was brought under 18 U.S.C. § 3583(e)(2). The Third Circuit had previously held that it could review the imposition of additional conditions of supervised release under § 3583(e)(2). “Given that [the court] possess[ed] jurisdiction to review the imposition of additional conditions of supervised release, it would be prejudicial to defendants to decline jurisdiction when reviewing the removal of such conditions.”

United States v. D’Ambrosio, 2024 WL 3170063 (3d Cir. June 26, 2024), available at Westlaw

And in 68th Street Site Work Group v. Alban Tractor Co., the Fourth Circuit held that orders denying leave to amend and granting partial judgment on the pleadings merged into the final judgment and were thus within the scope of appeal.

68th Street Site Work Group v. Alban Tractor Co., 2024 WL 3152077 (4th Cir. June 25, 2024), available at the Fourth Circuit and Westlaw

recent posts

The Month in Federal Appellate Jurisdiction: October 2024
A wide variety of discovery appeals. Plus the prison-mailbox/mistaken-filing rule, appealing the Yearsley doctrine, and more.
Finality in § 1782 Proceedings
The Ninth Circuit held that a discovery order under 28 U.S.C. § 1782 was not appealable until the district court resolved any objections to the discovery request.
No Perlman Appeals When the Same Issues Could Be Raised via Contempt
The Eleventh Circuit held that a privilege claimant cannot take a Perlman appeal when the claimant could have raised the same issues via its own contempt appeal.
A Rule 4 Conflict: The Prison-Mailbox Rule v. the Mistaken-Filing Rule
The Fifth Circuit held that when an imprisoned appellant mistakenly mails a notice of appeal to the court of appeals, the notice is deemed filed when deposited in the prison mail system.
The Month in Federal Appellate Jurisdiction: September 2024
Another split on pure Bivens appeals, no equitable exceptions for Rule 4(a)(4), another failure to apply the Rule 3(c) amendments, and more.

related posts

The Month in Federal Appellate Jurisdiction: October 2024
A wide variety of discovery appeals. Plus the prison-mailbox/mistaken-filing rule, appealing the Yearsley doctrine, and more.
The Month in Federal Appellate Jurisdiction: September 2024
Another split on pure Bivens appeals, no equitable exceptions for Rule 4(a)(4), another failure to apply the Rule 3(c) amendments, and more.
The Month in Federal Appellate Jurisdiction: August 2024
A new puppy! Plus the appeal clock for fee orders, the scope of § 1292(b) appeals, filter-protocol appeals, and more.
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.
The Month in Federal Appellate Jurisdiction: May 2024
Two Supreme Court decisions implicating appellate jurisdiction, another rejection of pure Bivens appeals, some rejected discretionary appeals, and much more.