Arbitration appeals, appealing dismissals without prejudice and temporary restraining orders, improper qualified-immunity appeals, and more.
April 15, 2020
Last week, the Sixth Circuit addressed the appealability of a district court order delaying a decision on a motion to compel arbitration. The Ninth Circuit required meaningful district court participation in dismissals without prejudice for those dismissals to be appealable. Two courts of appeals addressed their jurisdiction to review temporary restraining orders in the context of COVID-19 related abortion restrictions. Two courts of appeals rejected improper qualified-immunity appeals. And the Federal Circuit addressed whether a stipulated dismissal was a “judgment” for purposes of seeking attorney’s fees.
- The Sixth Circuit on arbitration appeals
- The Ninth Circuit on appealing dismissals without prejudice
- Two decisions on reviewing temporary restraining orders
- The week’s improper qualified immunity appeals
- The Federal Circuit held that a stipulated dismissal is a “judgment” for attorney’s fees purposes
The Sixth Circuit on arbitration appeals
In Taylor v. Pilot Corp., the Sixth Circuit held that a district court order “incidentally” delaying a decision on a motion to compel arbitration is not appealable as a denial of arbitration.
The district court in Taylor ordered limited discovery that it deemed necessary to determine whether arbitration was required. Analogizing to a district court order delaying a decision on an injunction, the Sixth Circuit held that this sort of delay is appealable only if it imposes irreparable harm. There was no risk of that sort of harm in Taylor. So the court dismissed the appeal.
Taylor also involved a second district court decision. After the defendant appealed, the district court denied all pending motions—including the motion to compel arbitration—without prejudice. Writing only for himself, Judge Clay added that this subsequent decision was also not an appealable denial of arbitration. It was instead a ministerial or housekeeping order, intended to keep the case organized after a notice of appeal had been filed. Concurring, Judge Thapar (joined by Judge Nalbandian) expressed no opinion on the appealability of the second district court decision. The defendant had waived any argument that the second decision gave the Sixth Circuit jurisdiction, and parties are free to waive arguments in support of jurisdiction.
Taylor v. Pilot Corp., 2020 WL 1804796 (6th Cir. Apr. 9, 2020), available at the Sixth Circuit and Westlaw.
The Ninth Circuit on appealing dismissals without prejudice
In Galaza v. Wolf, the Ninth Circuit held that a voluntary dismissal without prejudice was not appealable when the district court had no meaningful role in the dismissal.
The plaintiff in Galaza had voluntarily dismissed two of her claims (for race and sex discrimination) without prejudice and sought to appeal the dismissal of the third (for retaliation). But the Ninth Circuit saw a few jurisdictional defects. For one thing, there was no district court order dismissing the retaliation claim. The plaintiff had consented to its dismissal in response to the defendant’s motion to dismiss. But the district court never entered an order dismissing the claim. The district court had instead denied the motion to dismiss in whole.
For another, the voluntary dismissal precluded an appeal. The court saw no efforts to manipulate appellate jurisdiction by voluntarily dismissing claims to manufacture an interlocutory appeal. But the district court played no role in the voluntary dismissal. And a majority of the panel concluded that district court involvement—approval and meaningful participation—was necessary. Doing so allows the district court to “offer a clear indication of finality, which would avoid confusing the parties and the public.” (Alterations and quotation marks omitted.)
Judge Paez concurred in the judgment. As he saw things, the voluntary dismissal could be construed as one with prejudice, thereby removing that hurdle. There was no need for the district court to be involved. But the lack of a district court decision on the retaliation claim precluded the appeal.
Judge Collins concurred to respond to Judge Paez. He saw insufficient evidence in the record that the plaintiff intended her dismissal to be with prejudice. He further argued that a party cannot, on appeal, retroactively change its dismissal to one with prejudice:
[W]e have never allowed a party, who objectively kept his or her options open while pursuing an unauthorized appeal, to later invoke a change of heart as a basis for subsequently validating such an appeal.
Galaza v. Wolf, 2020 WL 1698434 (9th Cir. Apr. 8, 2020), available at the Ninth Circuit and Westlaw.
Two decisions on reviewing temporary restraining orders
Two courts of appeals addressed their jurisdiction to address challenges to temporary restraining orders, both of which involved COVID-19 related abortion restrictions.
In Pre-Term Cleveland v. Attorney General of Ohio, the Sixth Circuit held that it lacked jurisdiction to review a temporary restraining order that prohibited Ohio from enforcing certain COVID-19 related abortion restrictions. Although injunctions are normally appealable under 28 U.S.C. § 1292(a)(1), temporary restraining orders generally aren’t. “The rationale for this rule is that TROs are of short duration and usually terminate with a prompt ruling on a preliminary injunction, from which the losing party has an immediate right of appeal.” But courts of appeals will review a temporary restraining order when that rationale does not apply, such as when a temporary restraining order risks irreparable harm or requires action on the part of a party (rather than preserving the status quo).
The Sixth Circuit held that the temporary restraining order in Pre-Term Cleveland was not appealable. A majority of the panel concluded that this order did not threaten irreparable harm or require any action by the state. The Sixth Circuit thus lacked jurisdiction and dismissed the appeal. Judge Bush concurred in part. He thought that the temporary restraining order did not preserve the status quo, and he credited Ohio’s assertion that the order would impair Ohio’s response to the COVID-19 pandemic. He thus concluded that Ohio had made a sufficient showing of irreparable harm and disruption to the status quo to warrant appellate jurisdiction. But Judge Bush also thought that the district court was correct in granting the temporary restraining order.
In In re Abbott, the Fifth Circuit used mandamus to vacate a temporary restraining order regarding Texas’s COVID-19 related abortion restrictions. According to the panel majority, mandamus was appropriate because “the district court ignored the framework governing emergency public health measures,” “the district court’s result was patently wrong,” and “the district court usurped the state’s authority to craft emergency health measures.” Judge Dennis dissented. He did not see a clear abuse of discretion or a patently erroneous result in the district court’s decision. And he suggested that the majority’s use of mandamus illustrated “a recurring phenomenon in [the Fifth] Circuit in which a result follows not because of the law or facts, but because of the subject matter of this case.”
Pre-Term Cleveland v. Attorney General of Ohio, 2020 WL 1673310 (6th Cir. Apr. 6, 2020), available at Westlaw.
In re Abbott, 2020 WL 1685929 (5th Cir. Apr. 7, 2020), available at the Fifth Circuit and Westlaw.
The week’s improper qualified immunity appeals
Once again, multiple defendants failed to accept the facts that a district court had taken as true in denying qualified immunity. This made these defendants’ appeals from those denials of immunity improper.
In Norton v. Rodrigues, the First Circuit held that it lacked jurisdiction to review a qualified-immunity appeal. Norton involved a prisoner’s Eighth Amendment failure-to-protect claim. The district court denied immunity after concluding that a genuine fact issue existed as to whether the defendant knew of and disregarded a substantial risk of harm to the prisoner when the defendant transferred the prisoner to particular prison unit. On appeal, the defendant asserted that he was unaware of any information that would have made him question the transfer decision. But, the First Circuit noted, the defendant’s version of the facts directly conflicted with the prisoner’s and the district court’s:
But here’s the rub: Rodrigues’ characterization of the facts regarding what he did and didn’t know about Norton’s safety concerns as to [the prison unit] directly conflicts with Norton’s take. . . . Rodrigues’ account also collides head-on with the district court’s account of the facts, which led the district court to conclude that there are genuine disputes as to what Rodrigues did or did not know about the risk of harm to Norton in the form of gang retaliation.
The First Circuit accordingly concluded that it lacked jurisdiction over the appeal.
The Ninth Circuit also dismissed an improper qualified-immunity appeal in a brief memorandum order. In K.J.P. v. County of San Diego, the district court had determined that genuine fact issues existed as to whether an arrestee was a threat to the officers and whether the officers monitored his breathing. (The opinion is short on any other facts.) On appeal, the defendants failed to take as true the plaintiff-favorable facts that the district court had assumed in denying immunity. The Ninth Circuit accordingly dismissed the appeal for a lack of jurisdiction.
Norton v. Rodrigues, 2020 WL 1684061 (1st Cir. Apr. 7, 2020), available at the First Circuit and Westlaw.
K.J.P. v. County of San Diego, 2020 WL 1686137 (9th Cir. Apr. 7, 2020), available at the Ninth Circuit and Westlaw.
The Federal Circuit held that a stipulated dismissal is a “judgment” for attorney’s fees purposes
Finally, in Keith Manufacturing Co. v. Butterfield, the Federal Circuit held that a voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1)(A)(ii) is a “judgment” for purposes of seeking attorneys fees under Rule 54(d). The case isn’t about appellate jurisdiction, but its discussion of the difference between a “final decision” and a “final judgment” is interesting.
The parties in Keith Manufacturing stipulated to a dismissal without prejudice. About two weeks later, the defendant sought attorney’s fees under Rule 54(d). But the district court denied the request. A request for fees must be filed within 14 days of a judgment. And under Microsoft Corp. v. Baker, the district court reasoned, a stipulated dismissal is not a judgment.
The Federal Circuit reversed. It noted that Baker was concerned with appeals from a voluntary dismissal, and the case held that a voluntary dismissal that tried to circumvent Rule 23(f) was not a “final decision” under 28 U.S.C. § 1291. But a “judgment” under Rule 54 and a “final decision” under § 1291 are now always the same. And the concerns underlying Baker did not apply in the context of seeking attorney’s fees:
First, treating a voluntary stipulation with prejudice as a judgment for purposes of attorney’s fees under Rule 54 will not invite parties to engage in piecemeal appellate litigation. The joint stipulation means that, except under rare circumstances, there will not be an appeal on the merits; only the attorney’s fees issue remains. Second, because this case is not a class action, it will not undermine class action procedure. And because both parties can move for attorney’s fees, permitting a Rule 54(d) motion for attorney’s fees after a stipulated dismissal will not affect the overall balance of litigation.
The court accordingly held that the stipulated dismissal was a “judgment” for purposes of seeking attorney’s fees, and the district court accordingly erred in rejecting the request for fees.
Keith Manufacturing Co. v. Butterfield, 2020 WL 1684042 (Fed. Cir. Apr. 7, 2020), available at the Federal Circuit and Westlaw.