Monthly Roundup

The Month in Federal Appellate Jurisdiction: May 2023

Two Supreme Court decisions, Rule 41 dismissals of claims and actions, governmental-privilege appeals, and more.

June 6, 2023

By Bryan Lammon

May was quite a month for appellate jurisdiction.

We saw two Supreme Court decisions—one on preserving legal issues via denied summary-judgment motions, and one on the non-jurisdictionality of immigration exhaustion. And the government has agreed that cert is appropriate to address the reviewability of exceptional-hardship determinations in immigration appeals.

In the courts of appeals, there were significant decisions on the scope of Rule 41—does it apply only to entire actions or also to discrete claims?—and governmental-privilege appeals. But my favorite decision from last month was probably the Eleventh Circuit’s opinion on the interaction of two appeal-timing provisions: one for when the district court doesn’t set out the judgment in a separate document, and another for the resolution of post-judgment motions.

There were also decisions on pendent appellate jurisdiction over standing, appealing attorney-disqualification orders, Rule 3(c)’s order-designation requirement, the wisdom of the administrative-remand rule, and much more.

Preserving Legal Issues via Denied Summary-Judgment Motions
The Supreme Court Held That Immigration Exhaustion Is Not Jurisdictional
Potential Cert Grant on Reviewing Exceptional-Hardship Determinations in Immigration Appeals
More on Rule 41 Dismissals of Actions and Claims
More Governmental-Privilege Appeals from the Fifth Circuit
Rule 59 Motions & the Time to Appeal When There’s No Separate Judgment
Pendent Appellate Jurisdiction & Standing
Appealing the Disqualification of a U.S. Attorney’s Office
Another Failure to Apply the Amended Rule 3(c)
A Ninth Circuit Concurrence Questioned the Administrative-Remand Rule
Is the Failure-to-Prosecute Exception to the Merger Rule is Jurisdictional?
The Third Circuit Dismissed a State Law “Immunity” Appeal
A Ninth Circuit Split on the Grounds for Removal
A Split Eleventh Circuit Held That an Order Compelling an Appraisal Is Not an Appealable Injunction
The Fourth Circuit Split on Whether to Review Compliance with Rule 65(d)
Improper, Fact-Based Qualified-Immunity Appeals
Cert Update

Preserving Legal Issues via Denied Summary-Judgment Motions

The Supreme Court held that a denied summary-judgment motion is sufficient to preserve a purely legal issue, even if the case proceeds to trial.

I’ve been following the circuit split over preserving purely legal issues via denied summary-judgment motions for some time. Now, the Supreme Court has finally resolved it. In Dupree v. Younger, the Court held that a denied summary-judgment motion preserves a purely legal issue. Litigants thus do not need to re-raise those issues in post-trial motions under Federal Rule of Civil Procedure 50.

It’s a solid resolution of the issue and removes a trap for the unwary. But going forward, counsel should be careful about whether a particular issue is purely legal. When in doubt, Rule 50 motions are probably the safest route.

Dupree v. Younger, 2023 WL 3632755 (May 25, 2023), available at the Supreme Court of the United States and Westlaw

The Supreme Court Held That Immigration Exhaustion Is Not Jurisdictional

In Santos-Zacaria v. Garland, the Supreme Court held that failure to satisfy immigration’s exhaustion requirement is not a jurisdictional bar to appellate review.

8 U.S.C. § 1252(d)(1) says that the courts of appeals may review a final order of removal (read: deportation) only if the petitioner “has exhausted all administrative remedies” available as of right. The courts of appeals have long split on whether this requirement is jurisdictional or instead only a claims-processing rule.

Santos-Zacaria held it was the latter. The Court gave two main reasons. First, exhaustion requirements are not normally jurisdictional. Second, § 1252(d)(1) did not speak in jurisdictional terms.

Santos-Zacaria v. Garland, 2023 WL 3356525 (May 11, 2023), available at the Supreme Court of the United States and Westlaw

Potential Cert Grant on Reviewing Exceptional-Hardship Determinations in Immigration Appeals

Several recent cert petitions have asked the Supreme Court to address whether courts of appeals can review determinations of “exceptional and extremely unusual hardship” determinations in immigration appeals. I wrote about one of those petitions—Wilkinson v. Garland—back in February. It appears that the government has agreed that cert is appropriate in Wilkinson in light of the circuit split in that case. (I haven’t seen the government’s response brief in Wilkinson, but other recent filings from the Solicitor General note the government’s position in the case.)

The petition is scheduled for the Court’s conference on June 15, 2023. Hopefully we’ll see a cert grant.

For more on the Wilkinson petition, see my post New Cert Petition on Reviewing Hardship Determinations in Immigration Appeals.

More on Rule 41 Dismissals of Actions and Claims

Earlier this year, the Eleventh Circuit reiterated its rule that litigants cannot voluntarily dismiss individual claims under Federal Rule of Civil Procedure 41(a)(1). That portion of the rule permits plaintiffs to voluntarily dismiss “an action without a court order.” So plaintiffs can dismiss only entire actions under Rule 41(a)(1), and attempts to dismiss individual claims are ineffective.

In Rosell v. VMSB, LLC, the Eleventh Circuit added that litigants cannot voluntarily dismiss individual claims Rule 41(a)(2). That part of Rule 41 permits voluntary dismissals via court order. But, according to the Eleventh Circuit, it also permits the dismissal only of entire actions. So when the litigants in Rosell settled the only unresolved claim, they needed to either obtain a partial judgment under Federal Rule of Civil Procedure 54(b) or amend the complaint to remove the settled claim. Otherwise, there would be no final decision and no opportunity to appeal.

As I said earlier this year, I have my doubts about the “actions-only” interpretation of Rule 41. Rosell only reinforces those doubts.

Rosell v. VMSB, LLC, 2023 WL 3398509 (11th Cir. May 12, 2023), available at the Eleventh Circuit and Westlaw

More Governmental-Privilege Appeals from the Fifth Circuit

A few years ago, I wrote about the Fifth Circuit’s caselaw that allows government officials to immediately appeal discovery orders via the collateral-order doctrine. The case that sparked that discussion did not address appellate jurisdiction at all—I had to go to the briefs to figure out why the court was hearing a discovery appeal. But two recent Fifth Circuit cases addressed the issue squarely, one in some depth. And the cases reinforce my view that the Fifth Circuit needs to go en banc to change this rule.

Jackson Municipal Airport Authority v. Harkins, 2023 WL 3333607 (5th Cir. May 10, 2023), available at the Fifth Circuit and Westlaw

La Union Del Pueblo Entero v. Abbott, 2023 WL 3494770 (5th Cir. May 17, 2023), available at the Fifth Circuit and Westlaw

Rule 59 Motions & the Time to Appeal When There’s No Separate Judgment

In Makozy, v. Westcor Land Title, the Eleventh Circuit tackled a particularly complicated issue of appellate timing that involved the interaction between Federal Rule of Appellate Procedure 4(a)(4) and Rule 4(a)(7). Simplifying as much as possible (which isn’t much), the case asked if a post-judgment motion could shorten the 150 day period for entry of a judgment when the district court doesn’t set out the judgment in a separate document. The court answered “no,” joining the Ninth and Tenth Circuits.

It’s a solid decision. My only gripe is that it’s unpublished and thus not precedential.

Makozy, v. Westcor Land Title, 2023 WL 3409619 (11th Cir. May 12, 2023), available at the Eleventh Circuit and Westlaw

Pendent Appellate Jurisdiction & Standing

In Industrial Services Group, Inc. v. Dobson, the Fourth Circuit gave a convincing explanation for why pendent appellate jurisdiction does not extend to standing in a sovereign-immunity appeal. The courts of appeals have split on this specific issue, and the caselaw is mixed on whether standing is part of other interlocutory appeals. But the Fourth Circuit is on the better side of the issue. Although standing is a threshold issue to proceeding in federal court, it normally does not need to be addressed to resolve other, immediately appealable issues.

Industrial Services Group, Inc. v. Dobson, 2023 WL 3470915 (4th Cir. May 16, 2023), available at the Fourth Circuit and Westlaw

Appealing the Disqualification of a U.S. Attorney’s Office

Orders on the disqualification of counsel are not normally appealable. In most cases, an appeal from a final judgment suffices to protect the relevant interests. But what about when a district court disqualifies an entire U.S. Attorney’s Office from participating in a prosecution? Several courts have held that such a disqualification is immediately appealable via the collateral-order doctrine. In United States v. Williams, the Ninth Circuit agreed.

United States v. Williams, 2023 WL 3516095 (9th Cir. May 18, 2023), available at the Ninth Circuit and Westlaw

Another Failure to Apply the Amended Rule 3(c)

For years, several courts of appeals limited the scope of an appeal to the orders designated in a notice of appeal. Recent amendments to Federal Rule of Appellate Procedure 3(c) were supposed to end that practice. These amendments took effect in December 2021. Yet some courts have overlooked these changes, continuing to apply caselaw that the amendments abrogated.

Yesterday’s Eleventh Circuit decision in Vera v. Market Wood LLC is yet another example. The court relied on a pre-amendments case to hold that the failure to designate a particular order meant the court lacked jurisdiction to review that order.

Vera v. Market Wood LLC, 2023 WL 3596431 (11th Cir. May 23, 2023), available at the Eleventh Circuit and Westlaw

A Ninth Circuit Concurrence Questioned the Administrative-Remand Rule

In Center for Biological Diversity v. Bureau of Land Management, the Ninth Circuit dismissed an appeal from the denial of intervention as moot. Simplifying a fair bit, the rationale had to do with the non-appealability of many decisions to remand an action to an administrative agency.

Judge Friedland (who authored the majority opinion) wrote separately to urge to the Ninth Circuit to reconsider its rule on the finality of administrative remands when the district court vacates a regulation. She contended that an order vacating an agency rule “is fundamentally a final judgment.” She also suggested that an order vacating a regulation is “the functional equivalent of an injunction that could be appealed under 28 U.S.C. § 1292.”

I’m no fan of the general administrative-remand rule. I’m accordingly happy to see a judge urging a court to reconsider it. Judge Friedland noted, however, that Center for Biological Diversity was not an appropriate case for the Ninth Circuit to reconsider the issue.

Center for Biological Diversity v. Bureau of Land Management, 2023 WL 3669571 (9th Cir. May 26, 2023), available at the Ninth Circuit and Westlaw

Is the Failure-to-Prosecute Exception to the Merger Rule is Jurisdictional?

In Edge v. TLW Energy Services, L.L.C., the Fifth Circuit spent some time contemplating whether the failure-to-prosecute exception to the merger rule is jurisdictional. The court ultimately punted on the issue, as it was vacating the dismissal for failure to prosecute and remanding the case for further proceedings.

Simplifying a fair bit, the district court in Edge denied summary judgment on the plaintiff’s wage-and-hour claims. The district court later dismissed the action for failure to prosecute. The Fifth Circuit reversed that dismissal—it was a pretty clear abuse of discretion. But the plaintiff wanted the Fifth Circuit to also review the summary-judgment denial.

That raised an issue. The summary-judgment denial normally would have merged into the district court’s final judgment, which would have permitted appellate review. But courts recognize an exception to the merger rule when cases are dismissed for a failure to prosecute. Under this exception, courts will review the dismissal itself, but they will not review any interlocutory orders that normally would have merged into the final judgment. To do otherwise would reward a plaintiff’s dilatory behavior and essentially condone the manufacturing of an interlocutory appeal.

The question for the Edge court was whether this exception to the merger rule was jurisdictional or discretionary. Courts, including the Fifth Circuit, have treated the exception both ways. Some decisions see the exception as a limit on appellate jurisdiction that prohibits review of interlocutory orders. Other decisions see the exception as a discretionary tool to discourage the manufacturing of interlocutory appeals via dismissals for failure to prosecute.

The Edge panel ultimately avoided answering the question. It could do so because it was vacating and directing the district court to proceed in a certain way. Review of the summary-judgment denial was thus unnecessary. So resolution of the question will have to wait for a future case.

Edge v. TLW Energy Services, L.L.C., 2023 WL 3267847 (5th Cir. May 5, 2023), available at the Fifth Circuit and Westlaw

The Third Circuit Dismissed a State Law “Immunity” Appeal

In Kevin C. v. Foundations Behavioral Health, the Third Circuit dismissed an appeal from the rejection of a claim to immunity under Pennsylvania’s Mental Health Procedures Act.

Simplifying a bit, Kevin C. arose from claims of abuse against a psychiatric hospital and one of its employees. The defendants moved to dismiss some of the state law claims, arguing that the Pennsylvania’s Mental Health Procedures Act granted them immunity. The district court denied this motion, and the defendants appealed. They argued that denials of immunity under the act were immediately appealable via the collateral-order doctrine.

The Third Circuit dismissed the appeal. A seemingly interlocutory order is final and appealable under the collateral-order doctrine when it (1) conclusively resolves an issue, (2) resolves an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal after a final judgment. When it comes to state law defenses, the Third Circuit said, appealability “turns on whether, under applicable state law, the immunity in question is immunity from liability or immunity from suit.” And Pennsylvania’s Mental Health Procedures Act provided an immunity only from liability.

Kevin C. v. Foundations Behavioral Health, 2023 WL 3244575 (3d Cir. May 4, 2023), available at the Third Circuit and Westlaw

A Ninth Circuit Split on the Grounds for Removal

In Friedenberg v. Lane County, the Ninth Circuit split over whether a notice of removal invoked 28 U.S.C. § 1442 (the federal-officer-removal statute).

Whether or not the notice did so was key to the court’s appellate jurisdiction. Although remand orders are generally not appealable, an exception applies when removal was sought under § 1442. And the Supreme Court recently held in BP P.L.C. v. Mayor of Baltimore that when an action is removed under § 1442, remanded, and appealed, the scope of appeal includes all proffered grounds for removal.

A majority of the court thought that the notice of removal sufficiently invoked § 1442. The majority said that “a defendant’s citation to § 1442 as one of its grounds for removal is sufficient.” (Quotation marks omitted.) Judge Nguyen dissented, contending that the defendants “never asserted their intention to remove this case under § 1442.”

Friedenberg v. Lane County, 2023 WL 3558224 (9th Cir. May 19, 2023), available at the Ninth Circuit and Westlaw

A Split Eleventh Circuit Held That an Order Compelling an Appraisal Is Not an Appealable Injunction

In Positano Place v. Empire Indemnity Insurance Company, the Eleventh Circuit held that an order requiring an appraisal of damaged property was not an appealable injunction under 28 U.S.C. § 1292(a)(1). The court added that the order was not appealable via 9 U.S.C. § 16. Judge Tjoflat dissented, contending that the order was an appealable injunction.

Positano Place v. Empire Indemnity Insurance Company, 2023 WL 3730876 (11th Cir. May 31, 2023), available at the Eleventh Circuit and Westlaw

The Fourth Circuit Split on Whether to Review Compliance with Rule 65(d)

In Su v. Medical Staffing of America, LLC, a divided Fourth Circuit reviewed compliance with Federal Rule of Civil Procedure 65(d) despite neither party raising the issue.

Rule 65(d) sets out the content and scope requirements for orders granting an injunction. And the majority in Su determined that the district court had failed to adequately explain an injunction. The majority noted that compliance with Rule 65(d) is not jurisdictional. But the district court’s failure to sufficiently set out the injunction’s terms required vacating it. The majority also said that it had to address the Rule 65(d) issue despite the parties’ not raising it:

[I]f a district court has the duty independent of the desires of the parties to ensure that an injunction complies with the mandatory requirements of Rule 65(d), we are satisfied that an appellate court possesses the same obligation, despite a party’s lack of attention to that issue.

(Quotation marks omitted.)

Judge Richardson dissented, contending that the majority violated the party-presentation rule by addressing an issue the parties had not raised. He also thought the injunction was sufficiently explained.

Su v. Medical Staffing of America, LLC, 2023 WL 3735221 (4th Cir. May 31, 2023), available at the Fourth Circuit and Westlaw

Improper, Fact-Based Qualified-Immunity Appeals

A few courts rejected attempts to challenge the factual basis for qualified-immunity denials.

In Thompson v. Small, the district court determined that a reasonable jury could find that the plaintiff was fired for protected speech. The defendants nevertheless appealed to argue that the plaintiff was fired for other reasons. The Ninth Circuit dismissed the appeal.

And in Davis v. Walleman, the district court determined that a reasonable jury could find facts that would not give a police officer reasonable suspicion to stop the plaintiff. The defendant nevertheless appealed, seeking qualified immunity on his own version of events. The Sixth Circuit dismissed the appeal.

Thompson v. Small, 2023 WL 3580744 (9th Cir. May 22, 2023), available at the Ninth Circuit and Westlaw

Davis v. Walleman, 2023 WL 3625671 (6th Cir. May 24, 2023), available at the Sixth Circuit and Westlaw

Cert Update

Disclosure: I consulted on the petition in Amara, discussed below.

The Supreme Court continues to get cert petitions asking if the courts of appeals can review hardship determinations in immigration appeals. Hopefully the Court grants cert in Wilkinson (discussed above) to resolve this issue.

Finally, the Supreme Court denied cert in three cases that I’ve been following. Amara v. Cigna Corp. asked if litigants can wait until the end of post-judgment proceedings to appeal, with the scope of review then including all post-judgment decisions. Lopez v. Garland asked if the courts of appeals can review agency determinations underlying a removal order, including determinations made in earlier removal proceedings. And Williams v. Davis asked if courts can extend pendent appellate jurisdiction over standing issues in a sovereign-immunity appeal.