Two Supreme Court decisions implicating appellate jurisdiction, another rejection of pure Bivens appeals, some rejected discretionary appeals, and much more.
June 5, 2024
Last month saw the Supreme Court wrap up its appellate-jurisdiction docket for the term. The Court held that district courts must stay actions after ordering arbitration so long as a party requests a stay. The Court also held that another deadline—the time to appeal MSPB decisions—is not jurisdictional.
The courts of appeals also issued several decisions of note. The Tenth Circuit rejected the government’s efforts to obtain pure Bivens appeals. The Federal Circuit held that a denial of PREP Act immunity was not appealable via the collateral-order doctrine. And the Third Circuit explained that Rule 23(f) appeals should involve novel and unresolved questions concerning class certification—not novel and unresolved questions on the merits. Plus much more, including multiple decisions on the meaning of claims, counts, theories, and orders when it comes to discretionary appeals.
- The End of Arbitration + Dismissal Appeals?
- The First Application of Smith?
- Harrow & the Non-Jurisdictionality of MSPB Appeal Deadline
- Another Rejection of Pure Bivens Appeals
- Discretionary Appeals Over Orders, Counts, Theories & Claims
- Another Decision on PREP Act-Immunity Appeals
- Rule 23(f) & Class-Certification Issues
- The Seventh Circuit on Rule 4(a)(6) & Multi-Purpose Notices of Appeal
- The Split on Appealing Receivership-Distribution Orders
- The Ninth Circuit on Brady-Sanction Appeals
- Appealing Lengthy Stay Orders
- The Month’s Fact-Based Qualified-Immunity Appeals
- Quick Notes
The End of Arbitration + Dismissal Appeals?
In Smith v. Spizzirri, the Supreme Court held that district courts must stay—not dismiss—an action if the district court orders arbitration and a party requests a stay. The decision resolves a long-standing split over the ability to dismiss actions after ordering arbitration.
The decision also has implications for appellate jurisdiction. As I’ve explained on this site before, parties can appeal from an order that directs arbitration and dismisses an action. But if the district court stays the action, there is normally no immediate appeal from the decision ordering arbitration. With stays now required at a party’s request, we will likely see fewer appeals from decisions ordering arbitration.
One thing Smith didn’t expressly address, however, is what to do if no one asks for a stay.
Read more: The End of Arbitration + Dismissal Appeals?
Smith v. Spizzirri, 2024 WL 2193872 (May 16, 2024), available at the Supreme Court and Westlaw
The First Application of Smith?
Smith might require panel reconsideration of the Ninth Circuit’s decision in Diaz v. Macys West Stores, Inc..
The Ninth Circuit concluded in Diaz that the district court had ordered arbitration and then dismissed the case, which permitted an appeal from the arbitration decision. There was some uncertainty as to whether the district court had stayed or dismissed the case—it was not explicit about what it was doing. But the district court had closed the case and said that there were no claims remaining before it. The district court also did not think the case was coming back to it, further showing that the court intended to dismiss the action.
There was, however, a request for a stay (though I’m not sure what exactly the stay targeted). Smith might require reconsideration of Diaz.
Diaz v. Macys West Stores, Inc., 2024 WL 2098206 (9th Cir. May 10, 2024), available at the Ninth Circuit and Westlaw
Harrow & the Non-Jurisdictionality of MSPB Appeal Deadline
In Harrow v. Department of Defense, the Supreme Court held that the 60-day deadline for appealing decisions from the Merit System Protection Board is not jurisdictional. It’s a solid decision. It also raises questions about how Federal Rule of Appellate Procedure 26(b) applies to the equitable tolling of administrative appeals.
Read more: Harrow & the Non-Jurisdictionality of the MSPB Appeal Deadline.
Harrow v. Department of Defense, 2024 WL 2193874 (May 16, 2024), available at the Supreme Court and Westlaw
Another Rejection of Pure Bivens Appeals
The federal government appears to be on a mission to get immediate appeals for orders recognizing a Bivens remedy. So far, those efforts have been unsuccessful. Two courts of appeals—the Third and the Sixth Circuits—have rejected these pure Bivens appeals.
In Mohamed v. Jones, the Tenth Circuit became the third. Like the Third and Sixth Circuits before it, the Tenth Circuit recognized that the Bivens question does not exist to shield federal officials from the burdens of litigation. That’s qualified immunity’s job. The separation-of-powers concerns that Bivens implicates also do not warrant an immediate appeal. And government defendants can easily secure review of the Bivens issue via an appeal from the denial of qualified immunity.
Mohamed is not the last we’ll see of this issue. There are at least two more pending cases in which the federal government is trying to appeal the Bivens question. And the Tenth Circuit’s decision came with a dissent. I will not be surprised when the government seeks rehearing en banc or, more likely, cert.
Read more: Another Rejection of Pure Bivens Appeals.
Mohamed v. Jones, 2024 WL 2003439 (10th Cir. May 7, 2024), available at the Tenth Circuit and Westlaw
Discretionary Appeals Over Orders, Counts, Theories & Claims
In two cases, the courts of appeals reversed district court orders that would have allowed for discretionary appeals.
Claims & Counts for Rule 54(b)
In Sherrod v. Wal-Mart Stores, Inc., the Sixth Circuit reversed the entry of a partial judgment under Federal Rule of Civil Procedure 54(b).
The district court had rejected the plaintiffs’ right to recover under a wrongful-death theory. That left several other theories (which the complaint denominated as separate counts), and the district court entered a partial judgment under Rule 54(b) to facilitate an immediate appeal on the wrongful-death issue.
But the remaining theories of recovery were not distinct claims for purposes of Rule 54(b). They all arose from the same transaction or occurrence. The factual overlap meant that these theories involved a single claim. That meant there was nothing for the district court to separate from any remaining claims under Rule 54(b).
Thanks to Michael Solimine for sending this case my way.
Sherrod v. Wal-Mart Stores, Inc., 2024 WL 2744558 (6th Cir. May 29, 2024), available at the Sixth Circuit and Westlaw
Theories & Orders for § 1292(b)
In In re Facebook Simulated Casino-Style Games Litigation, the Ninth Circuit dismissed a § 1292(b) certified appeal because the district court had not issued an “order” that could be appealed.
The plaintiffs’ complaint had alleged over 100 “causes of action.” When the defendants moved to dismiss, the district court determined that federal law preempted two of the plaintiffs’ theories of recovery. The district court then certified its decision for an immediate appeal under 28 U.S.C. § 1292(b).
The thing is, the district court did not apply its holding to any of the plaintiffs’ enumerated “causes of action.” There was no order saying which orders should be dismissed (and which shouldn’t). The district court had instead assessed these theories of recovery in the abstract. With no definitive action affecting the parties’ rights, there was no “order” from the district court that could be certified for a § 1292(b) appeal.
Thanks to Howard Bashman for sending this case my way.
In re Facebook Simulated Casino-Style Games Litigation, 2024 WL 2287200 (9th Cir. May 21, 2024), available at the Ninth Circuit and Westlaw
Another Decision on PREP Act-Immunity Appeals
In Copan Italia Spa v. Puritan Medical Products Co., the Federal Circuit held that a denial of PREP Act immunity was not immediately appealable via the collateral-order doctrine. The district court in Copan Italia Spa had denied immunity because the record was not sufficiently developed to determine whether immunity applied. The Federal Circuit determined that this was not a conclusive rejection of immunity under the PREP Act. With no conclusive decision, there was no collateral-order appeal.
A few courts have wrestled with appeals from denials of PREP Act immunity. The Second Circuit avoided the issue, while the Ninth Circuit has allowed these appeals. So Copan Italia Spa might be read to create a split.
But I’m not exactly sure—about the Federal Circuit’s reasoning or the existence of a split.
As for the Federal Circuit’s reasoning, many denials of immunities from litigation are conclusive. Requiring a defendant to proceed to discovery deprives the defendant of one of the immunity’s protections. So a denial at the pleading stage is probably conclusive.
This isn’t to say that denials of PREP Act immunity should be immediately appealable. I have doubts about immunity appeals generally. And an appeal probably wouldn’t have changed the outcome in Copan Italia Spa. The Federal Circuit seemed to agree with the district court that, based on the current state of the record, the defendant was not entitled to immunity. If that’s correct, then the case should proceed, and the defendant can re-raise immunity after further record development.
Copan Italia Spa v. Puritan Medical Products Co., 2024 WL 2139970 (Fed. Cir. May 14, 2024), available at the Federal Circuit and Westlaw
Rule 23(f) & Class-Certification Issues
In Forsythe v. Teva Pharmaceutical Industries Ltd, the Third Circuit gave a rare explanation for denying a petition to appeal under Federal Rule of Civil Procedure 23(f). Of particular interest was the court’s discussion of what sorts of issues warrant a Rule 23(f) appeal. One of the relevant considerations is whether the case presents novel or unsettled questions of law. But those novel or unsettled questions must concern class certification. Novel or unsettled questions of law concerning the underlying litigation rarely warrant an immediate appeal. And in Forsythe, the novel questions concerned securities litigation, not class certification.
Forsythe v. Teva Pharmaceutical Industries Ltd, 2024 WL 2197950 (3d Cir. May 16, 2024), available at the Third Circuit and Westlaw
The Seventh Circuit on Rule 4(a)(6) & Multi-Purpose Notices of Appeal
In Hammer v. Bortz, the Seventh Circuit reiterated that litigants do not need to file a new notice of appeal if their initial notice is treated as a motion to reopen the time to appeal under Federal Rule of Appellate Procedure 4(a)(6).
The courts have split on this issue. The Fourth Circuit recently held that a new notice is required if a notice is treated as a Rule 4(a)(6) motion and granted. Shortly thereafter, the Sixth Circuit disagreed.
The Seventh Circuit agrees with the Sixth. In Hammer, the Seventh Circuit pointed out that noting in the statutory or rule text requires a second notice. Indeed, “Rule 4(a)(2) provides that a notice of appeal that is filed prematurely—after the court’s decision or order but before entry of judgment—‘is treated as filed on the date of and after the entry’ of judgment.” And no harm comes from treating the initial notice as effective:
Like a premature notice of appeal under Rule 4(a)(2), the technical defect here did not prejudice the defendants: Hammer had already filed a notice of appeal with his declaration explaining that he had not received notice of the judge’s summary judgment decision, which we construed as a motion to reopen the time to appeal. Moreover, the purpose of a notice of appeal is to give notice of the filing party’s intent to appeal. Here, Hammer’s original notice did so; the problem was timeliness, and that defect vanished when the judge accepted Hammer’s explanation and granted the motion to reopen. At that point—and as our practice reflects—his notice of appeal became effective.
(Citation omitted.)
Hammer v. Bortz, 2024 WL 2559204 (7th Cir. May 24, 2024), available at the Seventh Circuit and Westlaw
The Split on Appealing Receivership-Distribution Orders
In SEC v. EquityBuild, Inc., the Seventh Circuit heard an appeal from order approving the distribution of some—but not all—of the assets in a receivership proceeding. The order was appealable under the Seventh Circuit’s caselaw, which deemed these orders appealable via the collateral-order doctrine. Judge Easterbrook concurred to express doubt in this caselaw and suggest that the issue—one on which the courts have split—should be resolved by the Supreme Court.
Read more: The Split on Appealing Receivership-Distribution Orders.
SEC v. EquityBuild, Inc., 2024 WL 1984874 (7th Cir. May 6, 2024), available at the Seventh Circuit and Westlaw
The Ninth Circuit on Brady-Sanction Appeals
In United States v. Cloud, the Ninth Circuit held that the collateral-order doctrine permitted an appeal from an order sanctioning the government for a Brady violation.
The Ninth Circuit noted the narrow approach to collateral-order appeals in criminal cases. But it was especially confident in its jurisdiction because the underlying action was resolved before the decision on appeal. With nothing left in the district court, there was no risk of delayed proceedings or piecemeal review.
The Ninth Circuit added in a footnote that the analysis “should not be read to give litigants carte blanche to lodge an interlocutory appeal from any district court Brady order.” Different circumstances, the court warned, might require a different analysis.
United States v. Cloud, 2024 WL 2281665 (9th Cir. May 21, 2024), available at the Ninth Circuit and Westlaw
Appealing Lengthy Stay Orders
In two decisions, the Ninth Circuit determined that litigants could appeal from lengthy stay orders. Stay orders are not normally be appealable. But under Moses H. Cone Memorial Hospital v. Mercury Construction Co., a stay can be appealable when it puts a party effectively out of court. And the Ninth Circuit has held that a lengthy or indefinite stay can fall within the Moses H. Cone doctrine.
So in In re PG&E Corp. Securities Litigation, the Ninth Circuit held that the litigants could appeal from a stay order that was both lengthy—over 18 months—and indefinite. The same was true in Doe v. Fitzgerald, which involved an indefinite stay that had been pending for 16 months. The court in Doe added that the analysis was the same whether the plaintiff or defendant challenged the stay.
In re PG&E Corp. Securities Litigation, 2024 WL 1947143 (9th Cir. May 3, 2024), available at the Ninth Circuit and Westlaw
Doe v. Fitzgerald, 2024 WL 2497970 (9th Cir. May 24, 2024), available at the Ninth Circuit and Westlaw
The Month’s Fact-Based Qualified-Immunity Appeals
Last month saw several decisions in which defendants challenged the factual basis for an qualified-immunity denial, which I’ve listed below:
- Patel v. Marino, 2024 WL 1904577 (2d Cir. May 1, 2024), available at CourtListener and Westlaw
- Kistner v. City of Buffalo, 2024 WL 2525332 (2d Cir. May 24, 2024), available at CourtListener and Westlaw
- Bevill v. Wheeler, 2024 WL 2762493 (5th Cir. May 30, 2024), available at the Fifth Circuit and Westlaw
There was also Flores v. Henderson, in which the Tenth Circuit relied on a video for the factual basis in a qualified-immunity appeal. According to the court, the video contradicted some of the facts that the district court took as true when denying qualified immunity. That contradiction permitted the Tenth Circuit to “assess the case based on [its] own de novo view of which facts a reasonable jury could accept as true.”
Flores v. Henderson, 2024 WL 2141769 (10th Cir. May 14, 2024), available at the Tenth Circuit and Westlaw
Quick Notes
In Kerchen v. University of Michigan, the Sixth Circuit refused to extend pendent appellate jurisdiction to statute-of-limitations issues in an appeal from the denial of sovereign and state law immunity. Those issues had “no conceivable overlap with the properly reviewable issues on appeal.” And the court would not extend pendent appellate jurisdiction merely as a matter of judicial economy. Notions of judicial economy can affect whether a court should extend pendent appellate jurisdiction. But those notions do not make certain issues eligible for pendent appellate jurisdiction.
Kerchen v. University of Michigan, 2024 WL 1985963 (6th Cir. May 6, 2024), available at the Sixth Circuit and Westlaw
In Koelzer v. Westrick, the Sixth Circuit considered an estoppel argument as part of a qualified-immunity appeal. The court thought that resolving the estoppel argument was necessary to effectively review the denial of immunity, as estoppel could affect immunity.
Koelzer v. Westrick, 2024 WL 2028497 (6th Cir. May 7, 2024), available at the Sixth Circuit and Westlaw
In Young v. SWN Productions Co., the Fourth Circuit reversed the entry of a partial judgment under Federal Rule of Civil Procedure 54(b). The plaintiff had presented only a single breach-of-contract claim. Granted, the plaintiff had pursued multiple theories of relief, and the district court had resolved one of those theories. But Rule 54(b) permits entry of a partial judgment on only the resolution of a discrete claim, not the resolution of one theory of recovery. The district also failed to explain why there was no just reason for delay.
Young v. SWN Productions Co., 2024 WL 1990936 (4th Cir. May 6, 2024), available at the Fourth Circuit and Westlaw
In El Puente v. United States Army Corps of Engineers, the Ninth Circuit held that the subsequent resolution of all outstanding claims saved a premature notice of appeal. The district court had resolved some of the claims at summary judgment. The parties then stipulated to voluntarily dismiss the remaining two claims without prejudice. But according to the D.C. Circuit, that voluntary, without-prejudice dismissal did not produce a final decision. When the D.C. Circuit raised this jurisdictional defect, the parties asked the district court to enter judgment on the last two claims. The district court did so, and the notice of appeal related forward to this point.
El Puente v. United States Army Corps of Engineers, 2024 WL 1945978 (D.C. Cir. May 3, 2024), available at the D.C. Circuit and Westlaw
And in Euroboor BV v. Grafova, the Eleventh Circuit dismissed an appeal because the parties had tried to voluntarily dismiss some of the claims, not the entire action. The Eleventh Circuit normally holds that litigants can voluntarily dismiss only entire actions under Federal Rule of Appellate Procedure 41(a)(1)(A)(ii). When litigants purport to dismiss something less than the entire action, the Eleventh Circuit deems those voluntary dismissals ineffective. That means not all claims are resolved, there is no final decision, and there is no appellate jurisdiction.
Euroboor BV v. Grafova, 2024 WL 2209651 (11th Cir. May 16, 2024), available at the Eleventh Circuit and Westlaw