The merger doctrine, appeals from the appointment of a special master, and a skeptical view of pendent appellate jurisdiction.
April 20, 2021
Last week saw a few decisions of note. The First Circuit addressed both the exception to the merger doctrine for failure-to-prosecute dismissals and an exception to that exception. The Seventh Circuit said that the appointment of a special master was not an appealable injunction, though it left open the possibility that different circumstances could render an appointment appealable. And the Fifth Circuit declined to exercise pendent appellate jurisdiction over various issues and parties in a qualified-immunity appeal, noting that pendent party jurisdiction was never proper.
- The First Circuit on Exceptions to the Merger Doctrine (and Exceptions to Those Exceptions)
- The Seventh Circuit Held That the Appointment of a Special Master Was Not an Appealable Injunction
- The Fifth Circuit Expressed Some Skepticism About Pendant Appellate Jurisdiction
The First Circuit on Exceptions to the Merger Doctrine (and Exceptions to Those Exceptions)
Under the merger doctrine, all of a district court’s interlocutory decisions merge into the final judgment. That means all of those decisions can be reviewed in an appeal from a final judgment. But there are exceptions to the merger rule, such as when a party invites a dismissal by ceasing its prosecution of a case. And as the First Circuit explained in this week’s Commonwealth School, Inc. v. Commonwealth Academy Holdings LLC, there are exceptions to those exceptions, too.
The district court in Commonwealth School dismissed the plaintiff’s action for failure to prosecute. The defendant then wanted to appeal one of the district court’s interlocutory rulings. The just-mentioned exception to the merger doctrine—for failure-to-prosecute dismissals—would normally bar that appeal. But the First Circuit concluded that the situation warranted an exception to that exception. There was nothing the defendant could have done to otherwise secure an appeal, nor was there any risk of manufactured or piecemeal appeals. So the interlocutory decision merged into the final judgment, and the court of appeals had jurisdiction to review it.
For more on Commonwealth School, see my post Exceptions to Exceptions to the Merger Doctrine
Commonwealth School, Inc. v. Commonwealth Academy Holdings LLC, 2021 WL 1398268 (1st Cir. Apr. 14, 2021), available at the First Circuit and Westlaw.
The Seventh Circuit Held That the Appointment of a Special Master Was Not an Appealable Injunction
In Shakman v. Clerk of Cook County, the Seventh Circuit concluded that—on the facts before it—a defendant could not appeal the appointment of a special master to assist in implementing a consent decree.
Simplifying a bit, the appeal in Shakman arose from the long-running supervision of consent decrees concerning political-patronage practices in Chicago. The Clerk of Cook County is still subject to two of those decrees. Those decrees prohibit the Clerk from considering political affiliation (or any other political factor) in many employment decisions. After several decades with no involvement from the district court, the Shakman plaintiffs asked that court to appoint a special master to monitor the Clerk’s compliance with the decrees. In response, the Clerk asked the district court to vacate the decrees.
After a hearing, the district court determined that the Clerk had violated one of the decrees (and had probably violated the other). The district court accordingly appointed a special master to oversee the Clerk’s future compliance. The district court also refused to vacate the consent decrees. The Clerk appealed.
The Seventh Circuit saw two threshold questions of appellate jurisdiction.
First was whether the order appointing the special master was appealable. It was not a final decision under 28 U.S.C. § 1291. The only possibility was treating the appointment as an appealable injunction under 28 U.S.C. § 1292(a)(1). The Seventh Circuit ultimately concluded that the appointment was not an injunction. It was a procedural order. “[A]nd procedural orders, though they often have the form of an injunction, are not classified as injunctions for purposes of section 1292(a)(1).” (Cleaned up.)
The appointment of the special master also did not change the terms of the consent decrees. The appointment merely helped the district court ensure compliance with those decrees. The Seventh Circuit noted, however, that the appointment of a special master could amount to the modification of a consent decree and thus an appealable injunction. But the appointment in Shakman fell short.
The second issue was whether the Seventh Circuit could review the district court’s refusal to vacate the consent decrees. Normally that question would be straightforward—§ 1292(a)(1) gives the courts of appeals jurisdiction to review orders “refusing to dissolve or modify injunctions.” But the Clerk had never actually moved to vacate the decrees under Federal Rule of Civil Procedure 60(b)(5). The Clerk instead asked the district court to vacate the decrees only in response to the plaintiffs’ request for a special master. This failure “created an entirely avoidable issue on appeal”:
The rules of appellate jurisdiction are meant to apply mechanically—not loosely or casually—as formal applications make the exercise of jurisdiction more efficient and predictable. Proper motions are preferred eight days a week over the kind of functional, close-enough request the Clerk saw as adequate here.
The Seventh Circuit nevertheless concluded that it had jurisdiction. Everyone—including the plaintiffs and the district court—understood the Clerk to be seeking Rule 60(b)(5) relief. The court of appeals accordingly had jurisdiction to review the denial of that relief.
On the merits, the Seventh Circuit affirmed the refusal to vacate the consent decrees.
Shakman v. Clerk of Cook County, 2021 WL 1437195 (7th Cir. Apr. 16, 2021), available at the Seventh Circuit and Westlaw.
The Fifth Circuit Expressed Some Skepticism About Pendant Appellate Jurisdiction
In Johnson v. Bowe, the Fifth Circuit declined to extent pendent appellate jurisdiction to several issues and parties that sought to tag along with a qualified-immunity appeal.
The plaintiff in Johnson was prohibited from speaking on certain matters at a city-council meeting. She then brought First Amendment-retaliation claims against a variety of defendants, including individual government officials and the city that employed them. The district court refused to dismiss any of the claims, including claims for which the defendants sought qualified immunity. The defendants then appealed.
Jurisdiction over part of the appeal was straightforward. The denial of qualified immunity is a final, appealable decision. So the Fifth Circuit had jurisdiction over any claims on which the district court had denied qualified immunity. The remaining issues that the defendants raised on appeal were normally not appealable. The defendants asked the Fifth Circuit to exercise pendent appellate jurisdiction over those issues.
Without much explanation of why, the Fifth Circuit refused to do so. But the court offered some interesting general propositions on pendent appellate jurisdiction. The Fifth Circuit noted that the exercise of pendent appellate jurisdiction “when permitted, is discretionary.” The exercise of that jurisdiction “is looked on with disfavor.” And to the extent the court could exercise pendent appellate jurisdiction, it could do so only as to pendent issues; it could not exercise “pendent party interlocutory appellate jurisdiction over parties that the collateral order doctrine does not already bring into the appeal.”
That last point—concerning pendent party jurisdiction—is an interesting one. As I explained in a recent article, most courts of appeals will allow a municipal defendant to appeal alongside its employees if the court of appeals determines that the plaintiff failed to show a violation of federal law. The Fifth Circuit is the one circuit that appears to have rejected this practice.
Johnson v. Bowe, 2021 WL 1373959 (5th Cir. Apr. 12, 2021), available at the Fifth Circuit and Westlaw.