The Month in Federal Appellate Jurisdiction: September 2023

September saw more drama over Federal Rule of Appellate Procedure 3(c), as the Eleventh Circuit appeared to use Rule 3(c)(6) to revive the old practice of limiting the scope of an appeal to the designated order. The courts of appeals also addressed manufactured finality in the bankruptcy context, a discovery appeal implicating the Speech or Debate Clause, and the appealability of decisions on substituting counsel. Plus more judges questioning the appealability of anti-SLAPP motions, addressing preclusion as part of a qualified-immunity appeal, and a new cert petition on manufactured finality.

• Limiting the Scope of Appeal via Rule 3(c)(6)
• Manufactured Finality in Bankruptcy Proceedings
• A Speech or Debate Clause/Discovery Appeal
• No Collateral-Order Appeal from a Motion to Substitute Counsel
• More Doubts About Anti-SLAPP Appeals
• Preclusion & Qualified-Immunity Appeals
• New Cert Petition on the Manufactured Finality

Limiting the Scope of Appeal via Rule 3(c)(6)

Until recently, several courts of appeals limited the scope of appeals to the orders designated in the notice of appeal. Recent amendments to Federal Rule of Appellate Procedure 3(c) were supposed to end that practice. But those amendments also provided a way for litigants to limit the scope of an appeal. The new Rule 3(c)(6) lets appellants “designate only part of a judgment or appealable order by expressly stating that the notice of appeal is so limited.”

In United States v. Sylvain, the Eleventh Circuit became the first court that I’m aware of to limit the scope of an appeal via Rule 3(c)(6). The court concluded that designating one order in a notice of appeal limited the appeal to that order. That is, specifying one order—and not any others—was an express statement limiting the scope of appeal under Rule 3(C)(6).

That can’t be right. Designating one order while not mentioning others is hardly an express statement limiting the scope of appeal. Indeed, the Rule 3(c) amendments were supposed to prevent courts from limiting the scope of appeal in this situation. The Eleventh Circuit’s application of Rule 3(c)(6) thus risks undoing the Rule 3(c) amendments.

Read more: Limiting the Scope of Appeal via Rule 3(c)(6)

United States v. Sylvain, 2023 WL 5842006 (11th Cir. Sep. 11, 2023), available at the Eleventh Circuit and Westlaw

Manufactured Finality in Bankruptcy Proceedings

In Kiviti v. Bhatt, the Fourth Circuit dismissed an appeal from an order deeming a debt dischargeable in bankruptcy. That discharge order meant the creditors would have to pursue that debt through bankruptcy. But it also left unresolved the creditors’ request to declare the existence of that debt. The Fourth Circuit held that the parties could not secure an appeal from the discharge decision by voluntarily dismissing this remaining request without prejudice. Granted, the discharge order made pursuing that request unattractive; the creditors were not likely to recover much (if anything) on that debt through the bankruptcy proceedings. But the discharge decision did not effectively resolve the creditors’ claim. It was merely an adverse interlocutory decision. And litigants cannot manufacture appeals from these sorts of decisions by voluntarily dismissing their claims.

Read more: Manufactured Finality in Bankruptcy Proceedings.

Kiviti v. Bhatt, 2023 WL 5963612 (4th Cir. Sep. 14, 2023), available at the Fourth Circuit and Westlaw

A Speech or Debate Clause/Discovery Appeal

In In re Sealed Case, the D.C. Circuit heard a Congressman’s appeal from an order requiring the disclosure of communications on the Congressman’s phone. The court recognized that disclosure orders are normally not appealable absent a finding of contempt. But the Congressman argued that disclosure was barred by the Constitution’s Speech or Debate Clause. And denials of that clause’s protection are immediately appealable via the collateral-order doctrine. The court added that the Supreme Court’s decision in Mohawk Industries, Inc. v. Carpenter did not bar the appeal, as the Supreme Court had “express[ed] no view” on the appealability of disclosure orders implicating government privileges.

In re Sealed Case, 2023 WL 5947825 (D.C. Cir. Sep. 5, 2023), available at the District of Columbia Circuit and Westlaw

No Collateral-Order Appeal from a Motion to Substitute Counsel

In In re ALBA Petróleos de El Salvador S.E.M. de C.V., the Second Circuit held that a law firm could not appeal from the denial of an order seeking to substitute the firm as counsel.

Simplifying a bit, the case stemmed from an effort to collect on a default judgment. The judgment creditor sued a corporation that distributes Venezuelan oil in El Salvador. And two law firms tried to appear on behalf of the corporation. (The dispute over who had the right to represent the corporation apparently stemmed from the 2019 Venezuelan presidential crisis.) The district court held that one firm was the defendant’s rightful counsel. The other firm then tried to appeal. In the alternative, the firm petitioned for mandamus.

The Second Circuit held that it lacked jurisdiction over the appeal. The only proffered ground for appellate jurisdiction was the collateral-order doctrine. The court first explained that the relevant category of order for analysis was the denial of a third-party motion to substitute counsel. In doing so, the court rejected the appealing law firm’s attempt to characterize the relevant category of orders as (1) involving the particular details of the case and (2) turning on the merits.

The Second Circuit then explained that these denials are effectively reviewable after a final judgment. The Supreme Court has repeatedly held that orders involving the disqualification of counsel are not appealable collateral orders. The same rationale applied to two lawyers’ dispute over who has the right to represent a client. The court of appeals added that the question was not sufficiently important to warrant an immediate appeal.

Finally, the Second Circuit held that the appealing law firm had failed to satisfy the strict requirements for mandamus.

In re ALBA Petróleos de El Salvador S.E.M. de C.V., 2023 WL 6052518 (2d Cir. Sep. 18, 2023), available at the Second Circuit and Westlaw

More Doubts About Anti-SLAPP Appeals

In Martinez v. ZoomInfo Technologies, Inc., the Ninth Circuit reviewed both the denial of an anti-SLAPP motion under California law and the plaintiff’s standing. In a footnote, the court acknowledged that courts have split on whether subject-matter jurisdiction is within the scope of interlocutory appeals.

Two members of the panel concurred to question the Ninth Circuit’s rule that allows appeals from anti-SLAPP motions. They explained that anti-SLAPP motions require considering a plaintiff’s likelihood of success and thus are not completely separate from the merits (as the collateral-order doctrine purports to require). Nor do anti-SLAPP statutes confer an immunity that can be vindicated only via immediate appeal.

Martinez v. ZoomInfo Technologies, Inc., 2023 WL 6153577 (9th Cir. Sep. 21, 2023), available at the Ninth Circuit and Westlaw

Preclusion & Qualified-Immunity Appeals

In Siggers v. Alex, the Sixth Circuit refused to review a claim-preclusion defense as part of a qualified-immunity appeal. The court explained that claim-preclusion was effectively reviewable after a final judgment. And claim-preclusion is not “inextricably intertwined” with immunity (which might permit the use of pendent appellate jurisdiction). To be sure, preclusion (like many defenses) might seem related to qualified immunity because preclusion can prevent a plaintiff from showing a violation of constitutional law. But this “circular analysis” would allow parties to set the scope of appellate jurisdiction through creative characterization of the issues. And preclusion ultimately did not affect the core qualified-immunity issue: the clarity of the constitutional law at the time of the alleged violation.

Siggers v. Alex, 2023 WL 5986603 (6th Cir. Sep. 12, 2023), available at the Sixth Circuit and Westlaw

New Cert Petition on the Manufactured Finality

A new cert petition asks the Supreme Court to address the appealability of voluntarily dismissed claims. The case is Williams v. Boehringer Ingelheim Pharmaceuticals, Inc., and the response is due October 20, 2023.

Petition for Writ of Certiorari, Williams v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 23-267 (Sep. 15, 2023), available at the Supreme Court of the United States and Westlaw