Monthly Roundup

The Month in Federal Appellate Jurisdiction: October 2023

Abandoning claims to create finality, appealing PREP Act-immunity denials, Rule 54(b) partial judgments for counts and claims, and more.

November 2, 2023

By Bryan Lammon

Last month produced a wide variety of appellate-jurisdiction decisions. The Eleventh Circuit issued more opinions on whether and when claimants can voluntarily dismiss (or, in one case, “abandon”) claims to create a final decision. The Ninth Circuit held that defendants can appeal from the denial of PREP Act immunity. And the Eleventh Circuit addressed the meaning of claims (versus counts) in the context of Rule 54(b). Plus reviewing the summary-judgment standard in qualified-immunity appeals, the jurisdictionality of Rule 4(a)(4)(B)(ii), and much more—including a new cert petition on whether federal defendants can take pure Bivens appeals.

Abandoning (Rather than Dismissing) Claims to Create Finality
Reviewing the Summary-Judgment Standard in Qualified-Immunity Appeals
Appeals from Denials of PREP Act Immunity
Counts & Claims for Rule 54(b) Appeals
Is Rule 4(a)(4)(B)(ii) Jurisdictional?
Appealing Stays of Execution
The Ninth Circuit Split on an Appeal by the Original-but-Replaced Lead Plaintiff in a Class Action
Allowing the Court-Ordered Voluntary Dismissal of Individual Defendants
The Third Circuit Held that Defend Trade Secrets Act Seizure Orders Are Not Appealable Injunctions
The Month’s Improper, Fact-Based Qualified-Immunity Appeals
New Cert Petition on Pure Bivens Appeals
Quick Notes

Abandoning (Rather than Dismissing) Claims to Create Finality

In Lowery v. Amguard Insurance Co., the Eleventh Circuit allowed an plaintiff to create a final, appealable decision by abandoning an unresolved claim. This should not be remarkable; courts have long allowed parties to abandon unresolved claims—even in the middle of oral argument—to cure defects in appellate jurisdiction. But the decision seems to conflict with the Eleventh Circuit’s rule that litigants cannot voluntarily dismiss discrete claims.

Lowery v. Amguard Insurance Co., 2023 WL 6531565 (11th Cir. Oct. 6, 2023), available at the the Eleventh Circuit and Westlaw

Reviewing the Summary-Judgment Standard in Qualified-Immunity Appeals

In Washington v. City of St. Louis, the Eighth Circuit vacated a denial of qualified immunity because the district court misstated and misapplied the summary-judgment standard. The Eighth Circuit thought this was a legal issue over which it had jurisdiction in a qualified-immunity appeal.

But I’m not sure. Most (if not all) reversible summary-judgment decisions can be characterized as misunderstandings or misapplications of the summary-judgment standard. And Johnson v. Jones said that some of these reversible summary-judgment decisions—those involving evidence sufficiency—are off limits in immediate appeals from the denial of qualified immunity. Washington might have just restated the evidence-sufficiency inquiry in a way that gets around Johnson.

Washington v. City of St. Louis, 2023 WL 6887729 (8th Cir. Oct. 19, 2023), available at the Eighth Circuit and Westlaw

Appeals from Denials of PREP Act Immunity

In Hampton v. California, the Ninth Circuit held that defendants can immediately appeal from the denial of PREP Act immunity via the collateral-order doctrine. I think this is the first time a court of appeals has done so. (The Second Circuit avoided deciding this issue last spring, and the D.C. Circuit addressed appealability only under a specific provision of the Act.) And I have some doubts about the conclusion. I’m not sure that defenses like this should be immediately appealable via the collateral-order doctrine. I recognize that the caselaw is completely against me on this point. But I don’t think immunities from litigation are actually separate from (“collateral to”) that litigation.

Hampton v. California, 2023 WL 6406760 (9th Cir. Oct. 3, 2023), available at the the Ninth Circuit and Westlaw

Counts & Claims for Rule 54(b) Appeals

In Scott v. Advanced Pharmaceutical Consultants, Inc., the Eleventh Circuit reversed the entry of a partial judgment under Federal Rule of Civil Procedure 54(b). The district court had resolved most (but not all) of the counts pleaded in the plaintiff’s complaint. But the district court’s rejection of those counts did not resolve a distinct “claim” for purposes of Rule 54(b). All of the counts stemmed from the same events and involved similar remedies for a single injury. So the counts were instead different causes of action—different theories of recovery—for the same claim. They were not severable for purposes of Rule 54(b).

Scott v. Advanced Pharmaceutical Consultants, Inc., 2023 WL 6817369 (11th Cir. Oct. 17, 2023), available at the Eleventh Circuit and Westlaw

Is Rule 4(a)(4)(B)(ii) Jurisdictional?

In Garnett v. Akron City School District Board of Education, the Sixth Circuit dismissed an appeal insofar the plaintiff challenged the denial of his post-judgment Rule 60(b) motion. The plaintiff had appealed from the original judgment. But he had not filed a new or amended notice of appeal designating the Rule 60(b) denial, as Federal Rule of Appellate Procedure 4(a)(4)(B)(ii) requires. The Sixth Circuit determined that the failure to do so meant no appellate jurisdiction over the Rule 60(b) decision.

A few years ago, I expressed some doubt about the conclusion that Rule 4(a)(4)(B)(ii) is jurisdictional. Now I’m really starting to think that it’s not. It doesn’t come from a statute. And the only statutory requirement—a timely notice of appeal—has been satisfied. To be sure, that notice designated only the original judgment. But no statute requires that notices of appeal designate an appealed decision, much less requires a second or amended notice after the resolution of a post-judgment motion.

If it’s not jurisdictional, Rule 4(a)(4)(B)(ii) a claims-processing rule. Courts still have to enforce it. But it can also be waived. And I imagine there are at least a few cases out there in which appellees have waived any objection to the failure to file a second or amended notice of appeal under Rule 4(a)(4)(B)(ii).

Garnett v. Akron City School District Board of Education, 2023 WL 6632836 (6th Cir. Oct. 12, 2023), available at the Sixth Circuit and Westlaw

Appealing Stays of Execution

In Murphy v. Nasser, the Fifth Circuit refused to vacate the stay of an execution. A case pending before the Fifth Circuit might affect the petitioner’s right to relief, so a stay was appropriate.

Before doing so, the court explained that it had appellate jurisdiction to immediately review “stays” of execution. A stay is not normally immediately appealable. But a stay also normally refers to “a court order that operates upon the judicial proceeding itself, either by halting or postponing some portion of it, or by temporarily divesting an order of enforceability.” (Quotation marks omitted.)

Stays of execution are more properly treated as injunctions. The stay bars conduct that is at issue in the litigation. And orders that have “the practical effect of granting or denying an injunction . . . should be treated as such for purposes of appellate jurisdiction.” (Quotation marks omitted.) That’s why orders both granting stays of execution and refusing them are immediately appealable via 28 U.S.C. § 1292(a)(1).

Murphy v. Nasser, 2023 WL 6550100 (5th Cir. Oct. 9, 2023), available at the Fifth Circuit and Westlaw

The Ninth Circuit Split on an Appeal by the Original-but-Replaced Lead Plaintiff in a Class Action

In Habelt v. iRhythm Technologies, Inc., a majority of the Ninth Circuit dismissed an appeal because the appellant was not a party.

The appellant was originally the named plaintiff in a class complaint. Although the district court never certified the class, it appointed another party as the lead plaintiff. When the district court later dismissed the complaint, that new lead plaintiff did not appeal. The original named plaintiff did.

A majority of the Ninth Circuit held that the original named plaintiff was not a party and thus could not appeal. Although still named in the case caption, the complaint had been twice amended and no longer included any allegations concerning the named plaintiff. Nor had the class been certified (which would have permitted the original plaintiff to appeal as a member of the class.) And because the original plaintiff no longer appeared in the complaint, he was not bound by the district court’s decision.

Judge Bennett dissented, presenting several reasons for why the original plaintiff remained a party:

(1) Habelt filed the initial complaint; (2) Habelt remained a named Plaintiff in the caption of later complaints, including the operative [amended complaint]; (3) the substantive allegations of the operative [complaint] cover Habelt’s claims; and (4) Habelt never evinced intent to withdraw as a Plaintiff nor received notice of termination of his party status.

Judge Bennett added that even if the original plaintiff was no longer a party, he still had standing to appeal as a non-party. The original plaintiff participated in the district court proceedings. And the equities—particularly the lack of notice to the original plaintiff that he was no longer a party, and the unclear prospects of the original plaintiff’s being able to refile his claims—weighed in favor of hearing the appeal.

Habelt v. iRhythm Technologies, Inc., 2023 WL 6614359 (9th Cir. Oct. 11, 2023), available at the Ninth Circuit and Westlaw

Allowing the Court-Ordered Voluntary Dismissal of Individual Defendants

In Sanchez v. Discount Rock & Sand, Inc., the Eleventh Circuit held that plaintiffs could voluntarily dismiss all claims against a single defendant via a court-ordered dismissal under Federal Rule of Civil Procedure 42(a)(2).

The Eleventh Circuit has recently emphasized its rule that Rule 41 permits the voluntary dismissal of only entire actions, not discrete claims. But the court has created an exception to that rule for dismissing all claims against a single defendant in a multi-defendant action. The Eleventh Circuit had previously recognized this exception in the context of noticed and stipulated voluntary dismissals. Sanchez explained that this exception also applied to court-ordered voluntary dismissals.

As I’ve mentioned before, the exception for all claims against one defendant doesn’t make a lot of textual sense given the text of Rule 41 and the textual emphasis of the rule limiting Rule 41 dismissals to entire actions. I’ll also note that the Eleventh Circuit’s recent decision allowing litigants to “abandon” claims (discussed above) creates a convenient end-run around the Eleventh Circuit’s actions-only interpretation of Rule 41.

Sanchez v. Discount Rock & Sand, Inc., 2023 WL 7007495 (11th Cir. Oct. 25, 2023), available at the Eleventh Circuit and Westlaw

The Third Circuit Held that Defend Trade Secrets Act Seizure Orders Are Not Appealable Injunctions

In Janssen Products, L.P. v. eVenus Pharmaceuticals Laboratories Inc., the Third Circuit held that orders regarding the seizure of property under the Defend Trade Secrets Act are not appealable injunctions under 28 U.S.C. § 1292(a)(1). Those orders do not explicitly injunctions. Nor are they effectively injunctions. That’s because seizure orders under the Act are directed to federal law enforcement officers So they’re not directed at parties—a prerequisite for an effective injunction. For that same reason, these orders are not enforceable via contempt of a party—another prerequisite for an effective injunction.

Janssen Products, L.P. v. eVenus Pharmaceuticals Laboratories Inc., 2023 WL 7036466 (3d Cir. Oct. 17, 2023), available at the Third Circuit and Westlaw

The Month’s Improper, Fact-Based Qualified-Immunity Appeals

The Supreme Court held in Johnson v. Jones that the scope of qualified-immunity appeals generally does not include the genuineness of any fact disputes. With narrow exceptions, courts of appeals must instead take as given the district court’s conclusion about what facts a reasonable jury could find. The court of appeals reviews only whether those facts amount to a violation of clearly established law.

Defendants nevertheless appeal from fact-based denials of qualified immunity—and appellate courts dismiss those appeals—with some frequency. I’ve recently started simply listing these appeals in monthly roundups rather than discuss them at any length. But last month included at least one decision worth a longer discussion.

When the defendant in Cooks v. City of Tampa sought qualified immunity in the district court, he conceded that “he violated clearly established law if a jury credited [the plaintiff]’s version of the facts.” The defendant “simply disagreed that any reasonable jury could side with [the plaintiff] on the facts.” The district court determined, however, that a reasonable jury could side with the plaintiff. So the district court denied qualified immunity.

The defendant nevertheless appealed from the denial of qualified immunity. And he persisted in arguing that a reasonable jury could not side with the plaintiff on any of the material factual issues. (He also asked the court of appeals to review an evidentiary issue.) This is a particularly brazen violation of Johnson. The Eleventh Circuit appropriately dismissed the appeal for a lack of jurisdiction. But as I’ve suggested before, simply dismissing these appeals might not be enough.

Cooks v. City of Tampa, 2023 WL 6619434 (11th Cir. Oct. 11, 2023), available at the Eleventh Circuit and Westlaw

Cooks wasn’t the only improper, fact-based qualified-immunity appeal from last month. See also:

Lobato v. Las Vegas Metropolitan Police Department, 2023 WL 6620306 (9th Cir. Oct. 11, 2023), available at the Ninth Circuit and Westlaw
Perez v. Simpson, 2023 WL 6619438 (6th Cir. Oct. 11, 2023), available at the Sixth Circuit and Westlaw
Washington v. Davis, 2023 WL 7014137 (2d Cir. Oct. 25, 2023), available at CourtListener and Westlaw

New Cert Petition on Pure Bivens Appeals

The Supreme Court has allowed federal defendants to appeal the Bivens question—whether an implied cause of action exists for unconstitutional conduct—as part of a qualified-immunity appeal. A new cert petition asks if the Bivens question is itself immediately appealable without a qualified-immunity appeal.

I’ve called these “pure Bivens appeals” in the past. And in two recent decisions—one from the Sixth Circuit, and one from the Third Circuit (from which the petition stems)—the courts of appeals have rejected them.

The petition claims that there’s a split, with the Ninth Circuit having allowed a pure Bivens appeal. But I don’t see it. The Ninth Circuit’s decision said only that the Bivens question was immediately appealable as part of a qualified-immunity appeal. It did not say that the question was itself immediately appealable.

The case is Boresky v. Graber, and the response is due November 13, 2023.

Petition for a Writ of Certiorari, Boresky v. Graber, No. 23-384, available at the Supreme Court of the United States and Westlaw

Quick Notes

In In re National Football League Players’ Concussion Injury Litigation, the Third Circuit split over its jurisdiction to review an order concerning the administration of a class-action settlement. Simplifying quite a bit, some class members had obtained loans secured by their eventual settlement awards. The district court had orderd that awards for these class members must be paid directly to them (and not to their lawyers). A non-party that had loaned money to some class members tried to appeal this order. A majority of the Third Circuit determined that it lacked jurisdiciton under the collateral-order doctrine. Judge Freeman dissented, arguing that the district court’s order satisfied all of the doctrine’s requirements.

In re National Football League Players’ Concussion Injury Litigation, 2023 WL 7099271 (3d Cir. Oct. 27, 2023), available at the Third Circuit and Westlaw

In Coates v. Reigenborn, the Tenth Circuit held that a government defendant could not take a state-sovereign-immunity appeal because he did not raise the defense in the district court. To be sure, the denial of state sovereign immunity “may be raised at any time, including for the first time on appeal.” And denials of state sovereign immunity are immediately appealable via the collateral-order doctrine. But to take that appeal, a defendant must raise the defense in the district court. The defendant in Coates raised the issue for the first time in an appeal from the refusal to dismiss an official-capacity claim. The Tenth Circuit thus lacked jurisdiction to address it.

Coates v. Reigenborn, 2023 WL 6810961 (10th Cir. Oct. 16, 2023), available at the Tenth Circuit and Westlaw

In Noble Prestige Limited v. Galle, the Eleventh Circuit reviewed what was nominally a temporary restraining order. Those orders normally aren’t appealable injunctions under 28 U.S.C. § 1292. But they can be when they have an indefinite duration, were entered after a hearing, and change (rather than preserve) the status quo. That was the case in Noble Prestige. The Eleventh Circuit added that it lacked pendent appellate jurisdiction to review subject-matter jurisdiction over some of the plaintiff’s claims. Those claims were against the defendant in his individual capacity, while the injunction concerned the defendant’s conduct as conservator of certain funds.

Noble Prestige Limited v. Galle, 2023 WL 6799095 (11th Cir. Oct. 16, 2023), available at the Eleventh Circuit and Westlaw

In Baines v. City of Atlanta, the Eleventh Circuit dismissed an appeal because the parties had tried to voluntarily dismiss one of multiple claims. The Eleventh Circuit has recently emphasized its interpretation of Federal Rule of Civil Procedure 41 that normally permits the voluntary dismissal of only entire actions, not discrete claims. (Last month also saw an exception to that rule, discussed above.) So the parties’ purported stipulated dismissal of one claim in Baines was ineffective. There was thus no final decision, and the parties needed to return to the district court to properly drop that claim via an amendment to the complaint.

Baines v. City of Atlanta, 2023 WL 7151188 (11th Cir. Oct. 31, 2023), available at the Eleventh Circuit and Westlaw

And in In re TikTok, Incorporated, the Fifth Circuit used mandamus to reverse a denial of a transfer motion. Like many mandamus decisions, the opinion focuses largely on the substantive issue (the propriety of the transfer decision). But it ends with an interesting discussion of when an appellate court should exercise its discretion to grant a mandamus petition:

Writs of mandamus are supervisory in nature and are particularly appropriate when the issues also have an importance beyond the immediate case. We have recognized that § 1404(a) decisions often have importance beyond the immediate case because venue transfer decisions are rarely reviewed, and district courts have applied our tests with too little regard for consistency of outcomes. In the fifteen years since [In re Volkswagen], we have issued fewer than ten precedential opinions applying its test. This is despite the fact that district courts within our circuit have been called on to apply Volkswagen in over 2,000 cases, and the Federal Circuit—which is bound by our law when certain procedural matters arise in patent cases—must review many of these decisions with little guidance from our court. Indeed, in the last few months the Federal Circuit has reached conflicting outcomes in reviewing mandamus petitions from the Western District of Texas. Therefore, granting mandamus in this case will improve consistency of outcomes by further instructing when transfer is—or, for that matter, is not—warranted in response to a § 1404(a) motion.

(Cleaned up.)

In re TikTok, Incorporated, 2023 WL 7147263 (5th Cir. Oct. 31, 2023), available at the Fifth Circuit and Westlaw