Monthly Roundup

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.

November 7, 2024

By Bryan Lammon

October was discovery-appeal month. The Ninth Circuit held that a § 1782 order was not final when the district court had not resolved post-order objections to the discovery. The Fifth Circuit permitted an immediate appeal from a discovery order that implicated First Amendment interests. The Eleventh Circuit held that a party could not take a Perlman appeal when the same objections to discovery could be addressed through the party’s own contempt appeal. And a new cert petition asks if discovery orders are immediately appealable when a defendant has raised the qualified-immunity defense.

There were some additional decisions of note, including an attempted collateral-order appeal on the Yearsley doctrine and the Fifth Circuit’s reconciliation of the prison-mailbox and the mistaken-filing rules. But let’s start with a nice reminder that appellate courts need to have their own jurisdiction before they can address the district court’s.

Appellate Jurisdiction as Antecedent
Finality in § 1782 Proceedings
First Amendment/Discovery Appeals in the Fifth Circuit
No Perlman Appeals When the Same Issues Could Be Raised via Contempt
New Cert Petition on Appealing Discovery Orders in Qualified-Immunity Cases
A Rule 4 Conflict: The Prison-Mailbox Rule v. the Mistaken-Filing Rule
No Immediate Appeals of the Yearsley Doctrine
The Month’s Improper Qualified-Immunity Appeals
Quick Notes

Appellate Jurisdiction as Antecedent

In Knowlton v. Amrijo, the Tenth Circuit reminded litigants that appellate jurisdiction is antecedent to a district court’s subject-matter jurisdiction. So an appellate court “cannot consider the district court’s subject matter jurisdiction if [it] lack[s] appellate jurisdiction.”

This reminder is particularly refreshing given the Second Circuit’s apparent holding to the contrary from a last year.

Knowlton v. Amrijo, 2024 WL 4615849 (10th Cir. Oct. 30, 2024), available at the Tenth Circuit and Westlaw

Finality in § 1782 Proceedings

In CPC Patent Technologies Pty Ltd. v. Apple Inc., the Ninth Circuit held that a 28 U.S.C. § 1782 discovery proceeding was not final because the district court had not definitively resolved the scope of discovery. Although the district court had authorized a subpoena, the court had not addressed the discovery target’s objections to the scope of discovery. Until those issues were resolved, the discovery target could not appeal.

CPC Patent Technologies Pty Ltd. v. Apple Inc., 2024 WL 4560164 (9th Cir. Oct. 24, 2024), available at the Ninth Circuit and Westlaw

First Amendment/Discovery Appeals in the Fifth Circuit

In X Corp. v. Media Matters for America, the Fifth Circuit held that a litigant could immediately appeal a discovery order via the collateral-order doctrine when that order implicated First Amendment rights.

The appeal stemmed from Twitter/X’s lawsuit against Media Matters for reporting on extremist content on Twitter/X. The district court ordered that Media Matters produce the identity of its donors. Media Matters then appealed to the Fifth Circuit and sought a stay of the district court’s decision.

The Fifth Circuit held that it had jurisdiction over Media Matters’ appeal via the collateral-order doctrine. Under that doctrine, district court orders and final and appealable if they (1) conclusively resolve an issue, (2) involve important issues that are separate from the merits, and (3) would be effectively unreviewable in an appeal after a final judgment. And according to the Fifth Circuit, every element was satisfied. The district court had conclusively determined the discovery issue, such that Media Matters’s failure to comply would likely result in sanctions. The appeal implicated an important issue—“Media Matters’s First Amendment privilege claim”—that was separate from the merits of the underlying claims. And an appeal after a final judgment would be ineffective, as the confidential information would have been disclosed.

As I’ve said before, the Fifth Circuit has some interesting caselaw when it comes to appealing discovery orders. The Supreme Court appeared to shut down these appeals in 2009’s Mohawk Industries, Inc. v. Carpenter. But the Fifth Circuit has held that discovery appeals are still permissible in a variety of contexts, including government privileges and (like X Corp.) First Amendment privileges.

X Corp. v. Media Matters for America, 2024 WL 4527047 (5th Cir. Oct. 20, 2024), available at the Fifth Circuit and Westlaw

No Perlman Appeals When the Same Issues Could Be Raised via Contempt

In In Re Grand Jury Investigation, the Eleventh Circuit held that a privilege claimant could not appeal orders compelling it and third parties to produce documents.

The analysis of the order directed at the privilege claimant was straightforward. Privilege claimants normally must take contempt appeals to challenge a discovery order. The privilege claimant in Grand Jury Investigation had not been held in contempt. So it couldn’t appeal.

The order directed at third parties was more interesting. Under the Perlman doctrine, privilege claimants can normally immediately appeal discovery orders directed to a third party. But the Eleventh Circuit held that the claimant here could not take a Perlman appeal. That’s because the claimant could have raised all of its challenges to the third-party discovery order by taking its own appeal. Appellate review of those issues was therefore possible, meaning Perlman didn’t apply

In Re Grand Jury Investigation, 2024 WL 4500966 (11th Cir. Oct. 16, 2024), available at the Eleventh Circuit and Westlaw

New Cert Petition on Appealing Discovery Orders in Qualified-Immunity Cases

Disclosure: I discussed this petition with the petitioner’s counsel.

A new cert petition asks if defendants can immediately appeal from discovery orders in cases involving a qualified-immunity defense.

Last summer, the Fifth Circuit held that defendants who assert a qualified-immunity defense can appeal to challenge the scope of discovery. As I said at the time, this decision has a number of problems. For one thing, it makes appellate jurisdiction turn on the merits—as the Fifth Circuit phrased its rule, appellate jurisdiction exists if the district court erred and permitted overbroad discovery (and doesn’t if the district court didn’t). For another thing, the rule needlessly expands qualified-immunity appeals, thereby adding to the complexity, delay, and expense of civil-rights litigation.

Here’s hoping the Supreme Court grants this petition and finally cuts back on the scope and availability of qualified-immunity appeals.

Petition for A Writ of Certiorari, Asante-Chioke v. Dowdle, No. 24-387 (Oct. 3, 2024), available at the Supreme Court and Westlaw

A Rule 4 Conflict: The Prison-Mailbox Rule v. the Mistaken-Filing Rule

In Christmas v. Hooper, the Fifth Circuit held that the prison-mailbox rule applies to notices of appeal mistakenly sent to a court of appeals.

In doing so, the court had to resolve a tension between two portions of Federal Rule of Appellate Procedure 4. Rule 4(c)(1) says that an imprisoned appellant’s notice of appeal is deemed filed on the day it is deposited in the prison mail system. Rule 4(d) says that when litigants mistakenly send their notice to the court of appeals, the notice is deemed filed when the court of appeals receives it.

So what happens when an imprisoned appellant deposits a notice of appeal in the prison mail system but addresses that notice to a court of appeals? The Fifth Circuit held that Rule 4(c)(1)’s prison-mailbox rule applies, such that the notice is filed when deposited.

Christmas v. Hooper, 2024 WL 4454929 (5th Cir. Oct. 10, 2024), available at the Fifth Circuit and Westlaw

No Immediate Appeals of the Yearsley Doctrine

In Menocal v. GEO Group, Inc., the Tenth Circuit held that an order applying the Yearsley doctrine is not immediately appealable via the collateral-order doctrine.

Simplifying (and perhaps oversimplifying) things, the Yearsley doctrine protects government contractors from from claims stemming from the work they did for the government. The district court in Menocal denied a government contractor’s summary-judgment motion invoking Yearsley.

The contractor then tried to appeal. But the Tenth Circuit held that it lacked jurisdiction.

The only proffered ground for appellate jurisdiction was the collateral-order doctrine. And one of that doctrine’s requirements is that the appealed order must involve an issue separate from the merits.

According to the Tenth Circuit, a denial of protection under Yearsley is not sufficiently separate from the merits to warrant an immediate appeal. Application of the Yearsley doctrine requires addressing (among other things) whether the government directed the complained-of conduct. And that question significantly overlapped with the merits of a plaintiff’s claims challenging those actions:

In other words, factual questions concerning what the government did and did not specifically direct would be at the heart of the Yearsley inquiry … and also at the heart of the merits inquiry into the lawfulness of a contractor’s challenged actions.

The court added that “[t]he significant role of the actual facts” in Yearsley cases distinguished the doctrine from other appealable defenses like qualified immunity.

Menocal v. GEO Group, Inc., 2024 WL 4544184 (10th Cir. Oct. 22, 2024), available at the Tenth Circuit and Westlaw

The Month’s Improper Qualified-Immunity Appeals

Here are last month’s improper, fact-based qualified-immunity appeals:

Hicks v. Scott, 2024 WL 4360652 (6th Cir. Oct. 1, 2024), available at the Sixth Circuit and Westlaw
Alfatlawy v. City of Detroit, 2024 WL 4635383 (6th Cir. Oct. 31, 2024), available at the Sixth Circuit and Westlaw
Murdock v. Montgomery County, 2024 WL 4637687 (11th Cir. Oct. 31, 2024), available at the Eleventh Circuit and Westlaw

There was also Hall v. Navarre, in which a concurring/dissenting Judge Griffin contended that the majority improperly reviewed the factual basis for a district court’s denial of qualified immunity.

Hall v. Navarre, 2024 WL 4380209 (6th Cir. Oct. 3, 2024), available at the Sixth Circuit and Westlaw

Quick Notes

In Rex Real Estate I, L.P. v. Rex Real Estate Exchange, Inc., the Fifth Circuit held that a would-be appellant forfeited any arguments in favor of appellate jurisdiction. The court reminded litigants that although courts must raise a potential lack of jurisdiction on their own initiative, parties are responsible for showing courts what jurisdiction exists.

Rex Real Estate I, L.P. v. Rex Real Estate Exchange, Inc., 2024 WL 4481850 (5th Cir. Oct. 14, 2024), available at the Fifth Circuit and Westlaw

And in McPherson v. Patton, the Fourth Circuit dismissed an appeal because the district court had not made the “express determination[s]” required for an appeal under Federal Rule of Civil Procedure 54(b).

McPherson v. Patton, 2024 WL 4490631 (4th Cir. Oct. 15, 2024), available at the Fourth Circuit and Westlaw