The Week in Federal Appellate Jurisdiction: April 4–10, 2021

Last week produced a few decisions of note. The Sixth Circuit said that you don’t need a certificate of appealability to appeal a decision on habeas bail. The Eleventh Circuit refused to consider a district court’s post-appeal statements on the sentence it would have imposed had there been no error. Two courts addressed the order-designation requirement for notices of appeal. And there were a few cert-stage developments in cases I’ve been following.

Let’s start, however, with a new cert petition that gives the Supreme Court a chance to disarm the finality trap.

• A New Cert Petition Challenges the Ninth Circuit’s Finality Trap
• The Sixth Circuit on Habeas Bail and Certificates of Appealability
• The Eleventh Circuit on Considering a District Court’s Post-Appeal Statements Regarding Sentencing
• Cert-Stage Notes
• Quick Notes

A New Cert Petition Challenges the Ninth Circuit’s Finality Trap

The last year or so has seen some significant judicial activity when it comes to the finality trap. The trap can arise after a party voluntarily dismisses some of its claims without prejudice and then tries to appeal. This scenario makes some courts of appeals suspicious, as parties sometimes use these voluntary dismissals to manufacture an interlocutory appeal. The courts have developed a variety of ways to stop parties from doing so. And some of those methods create a trap. The court of appeals deems the dismissal non-final and thus non-appealable. But the court also leaves no avenue for the appealing party to make the underlying decision final. The party is then left in limbo. The case is over and unchangeable in the district court. But it’s not final for purposes of appeal.

A new cert petition challenges the Ninth Circuit’s variation on the finality trap. More generally, the petition gives the Supreme Court a chance to disarm the trap once and for all. The case is Starline Tours of Hollywood, Inc. v. EHM Productions, Inc. The response is due May 7, 2021.

For more on the petition in Starline Tours, see my post Another Cert Petition on the Finality Trap

Petition for Writ of Certiorari, Starline Tours of Hollywood, Inc. v. EHM Productions, Inc., No. 20-1411 (Apr. 2, 2021), available at the Supreme Court and Westlaw.

The Sixth Circuit on Habeas Bail and Certificates of Appealability

In Pouncy v. Palmer, the Sixth Circuit held that habeas petitioners do not need a certificate of appealability to challenge a denial of bail.

The petitioner in Pouncy, who had been convicted of several carjacking offenses, asked the district court to release him pending the resolution of his habeas petition. The district court refused to do so, and the petitioner appealed. The Sixth Circuit has held that habeas bail decisions are immediately appealable via the collateral-order doctrine. Exercising jurisdiction via that doctrine, the court affirmed the denial of bail.

At the end of the opinion, the court noted that it was affirming the district court’s decision—not dismissing the appeal. The government argued that the appeal should be dismissed, as the petitioner had not obtained a certificate of appealability. But certificates of appealability are necessary only when a petitioner appeals “the final order in a habeas proceeding.” Those final orders “dispose of the merits of a habeas corpus proceeding.” And a bail determination does not resolve the merits. So no certificate of appealability was necessary.

Pouncy v. Palmer, 2021 WL 1257454 (6th Cir. Apr. 6, 2021), available at the Sixth Circuit and Westlaw.

The Eleventh Circuit on Considering a District Court’s Post-Appeal Statements Regarding Sentencing

In United States v. Bolden, the Eleventh Circuit refused to consider a district court’s statement—made after the defendant had appealed—that it would have imposed the same sentence absent a sentencing error.

The district court in Bolden reduced the defendant’s sentence in accordance with the First Step Act. But the district court thought it could not reduce that sentence below the Sentencing Guidelines minimum. Wanting a below-Guidelines sentence, the defendant appealed.

On appeal, the government conceded that the district court had erred—it could go below the Guidelines minimum. The government nevertheless asked the Eleventh Circuit to affirm. While that appeal was pending, the district court had indicated that it would have imposed the same sentence even if it could go below the Guidelines recommended sentence. So any error, the government argued, was harmless.

The Eleventh Circuit determined that it could not consider the district court’s post-appeal statements. The notice of appeal deprived the district court of jurisdiction over the defendant’s sentence. So the district court had no power to alter the reasons for the sentence. And the district court’s statement was not a proper indicative ruling under Federal Rule of Appellate Procedure 12.1. The Eleventh Circuit’s local rules require that an indicative ruling award “substantive relief from the order or judgment on appeal” were the court of appeals to remand the case. The district court did not indicate that it would award any substantive relief. Instead, it would have reached the same result. So there was no proper indicative ruling for the Eleventh Circuit to consider.

United States v. Bolden, 2021 WL 1291132 (11th Cir. Apr. 7, 2021), available at the Eleventh Circuit and Westlaw.

Cert-Stage Notes

The Supreme Court denied cert in Louisiana Real Estate Appraisers Board v. FTC. The case asked if litigants can immediately appeal from the denial of antitrust’s state-action defense, which is sometimes called Parker immunity. The Supreme Court was set to resolve this issue a few years ago in Salt River Project v. Tesla Energy Operations. But that case settled before argument.

Anyone interested in this issue can look to the Eleventh Circuit, which recently sat en banc to hear argument in SmileDirectClub, LLC v. Battle. A concurrence to the panel decision in SmileDirectClub suggested that the Eleventh Circuit reconsider its cases allowing for immediate appeals from the denial of the state-action defense, at least when the appellant is a private party. The en banc court took that invitation and, on its own initiative, decided to rehear the case. The court heard argument in late February. For more on SmileDirectClub, see my post The Eleventh Circuit Divided Over State-Action Appeals

Also, the petitioners in Ericsson Inc. v. TCL Communication Technology Holdings Ltd. filed their reply brief in support of cert. The case asks if a denied summary-judgment motion preserves a purely legal issue for appeal after a trial on the merits. You can read more about the petition at my post New Cert Petition on “Appealing” Summary-Judgment Denials. The petition is scheduled for the Supreme Court’s conference on April 23, 2021.

Reply for Petitioners, Ericsson Inc. v. TCL Communication Technology Holdings Ltd., No. 20-1130 (Apr. 6, 2021), available at the Supreme Court and Westlaw.

Quick Notes

Two quick notes on decisions involving notices of appeal.

In Lewis v. City of Littleton, the Tenth Circuit held that a notice of appeal designating only the denial of a new trial was effective to appeal only that denial. Federal Rule of Appellate Procedure 3(c) requires that a notice of appeal designate the appealed order or judgment. And some courts hold that designating specific decisions implicitly excludes all other decisions. The plaintiff in Lewis designated only the denial of her new-trial motion; she did not designate other decisions that had dismissed most of her claims before trial.

The Tenth Circuit added that the plaintiff’s docketing statement was not the functional equivalent of a notice. Although the docketing statement designated all of the district court’s decisions, the plaintiff filed it after the 30-day deadline for filing a notice of appeal.

Lewis v. City of Littleton, 2021 WL 1327126 (10th Cir. Apr. 9, 2021), available at the Tenth Circuit and Westlaw.

And in Ostergren v. Frick, the Sixth Circuit held that it could not review the denial of a Rule 59(e) motion because the plaintiff never amended his notice of appeal to designate that denial. Federal Rule of Appellate Procedure 4(a)(4)(B)(ii) says that an appellant challenging the resolution of certain post-judgment motions—including Rule 59 motions—must file a new or amended notice of appeal from that decision. The plaintiff in Ostergren filed a notice of appeal before the district court decided his Rule 59(e) motion. But he did not file a new notice (or amend the one he filed) after the district court denied that motion.

The Sixth Circuit noted that it could have reviewed the issues raised in the Rule 59(e) motion had the plaintiff raised them before the district court entered a final judgment. The plaintiff had appealed from the final judgment, and all issues raised before that judgment merged into it. But the issues raised in the Rule 59(e) motion were unique to that motion.

Ostergren v. Frick, 2021 WL 1307433 (6th Cir. Apr. 8, 2021), available at the Sixth Circuit and Westlaw.