Appeals involving denials of requests to litigate anonymously, denials of derivative sovereign immunity, pendent appellate jurisdiction over summary-judgment decisions, the amendments to Rule 3(c), the scope of Rule 23(f) appeals, and more.
August 30, 2022
Last week, the First Circuit held that litigants can immediately appeal denials of motions to litigate anonymously. The Sixth Circuit reviewed a denial of derivative state sovereign immunity. It also extended pendent appellate jurisdiction over a summary-judgment decision, as doing so was necessary to review a preliminary injunction. Another court of appeals overlooked the recent amendments to Federal Rule of Appellate Procedure 3(c). The Third Circuit said that standing issues were within the scope of an appeal under Federal Rule of Civil Procedure 23(f), but personal-jurisdiction issues were not. Plus an appeal from an order that (might have) decided liability but not damages, the blatant-contradiction exception to the normal scope of qualified-immunity appeals, and more.
- The First Circuit Joined Nine Others in Holding That Denials of Requests to Proceed Anonymously Are Immediately Appealable
- The Sixth Circuit on Derivative Sovereign Immunity and Pendent Appellate Jurisdiction Over Summary-Judgment Decisions in Injunction Appeals
- Another Court Overlooked the Amendments to Rule 3(c)
- The Third Circuit Reviewed Standing in a Rule 23(f) Appeal
- The Fifth Circuit Dismissed an Appeal From an Order That Might Have Resolved Liability, but Didn’t Determine Any Remedies
- The Blatant-Contradiction Exception for Qualified-Immunity Appeals
- Quick Notes
The First Circuit Joined Nine Others in Holding That Denials of Requests to Proceed Anonymously Are Immediately Appealable
In Doe v. Massachusetts Institute of Technology, the First Circuit held that a plaintiff could immediately appeal from a district court’s denial of a motion to proceed anonymously.
The order fell within the collateral-order doctrine, which permits appeals from orders that (1) conclusively resolve an issue, (2) involve an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal from a final judgment. First, the rejection of anonymity was conclusive, as the plaintiff was ordered to use its real name. Second, the anonymity issue had nothing to do with the merits. And it was an important issue, as “litigants wishing to file under fictitious names often allege that disclosure of their identities would inflict grievous harm upon them.” This private interest also implicated the public interest: “the public has a substantial interest in ensuring that those who would seek justice in its courts are not scared off by the specter of destructive exposure.” Finally, the plaintiff’s identity could never be re-hidden once revealed. So review must be immediate for it to be effective.
Doe v. Massachusetts Institute of Technology, 2022 WL 3646028 (1st Cir. Aug. 24, 2022), available at the First Circuit and Westlaw
The Sixth Circuit on Derivative Sovereign Immunity and Pendent Appellate Jurisdiction Over Summary-Judgment Decisions in Injunction Appeals
In ACT, Inc. v. Worldwide Interactive Network, Inc., the Sixth Circuit extended pendent appellate jurisdiction over a summary-judgment decision as part of an injunction appeal. It also reviewed the denial of derivative sovereign immunity.
ACT involved copyright and other claims concerning descriptions of workplace skills that the parties the parties used in their products. The district court awarded the plaintiff partial summary judgment on the copyright claims, with the other claims remaining for trial. Some time later, the defendant tried to amend its answer to assert the defense of derivative sovereign immunity. The district court struck that new defense as untimely and frivolous. Shortly after that, the plaintiff sought to enjoin the defendant from publishing revised descriptions of workplace skills. The district court granted the request and entered the injunction. The defendant appealed.
The Sixth Circuit held that it could review the denial of derivative sovereign immunity, the injunction, and the summary-judgment order.
As for derivative sovereign immunity, the Sixth Circuit had jurisdiction under the collateral-order doctrine. The analysis focused on whether derivative sovereign immunity was an immunity from litigation, not just a defense on liability. And the Sixth Circuit concluded that the immunity at issue in ACT was one from suit. Any immunity derived from that of the state for which the defendant worked. And were the state the defendant in a copyright suit, it would have a right to immediately appeal from the denial of immunity in a copyright suit. The state’s contractor could accordingly appeal from the denial of that immunity.
Jurisdiction over the injunction was straightforward: 28 U.S.C. § 1292(a)(1) gives the courts of appeals jurisdiction to immediately review orders granting injunctions. As for the summary-judgment order, the Sixth Circuit extended pendent appellate jurisdiction. When granting the preliminary injunction, the district court relied on its reasoning in the summary-judgment order. “Indeed, if the copyright analysis [was] wrong in the summary-judgment order, it [was] necessarily wrong in the preliminary-injunction order.” The two orders were thus “inextricably intertwined, and review of the summary-judgment order [was] necessary to ensure meaningful review of the preliminary-injunction order.”
There are two things worth noting about ACT.
First, it’s an example of courts’ ignoring the rest of the collateral-order-doctrine requirements when dealing with defenses that might be called immunities. The court asked only whether the defense at issue was an immunity from suit. There was no discussion of whether it was separate from the merits (or, for that matter, conclusive). And there’s a good argument that immunities are not sufficiently separate from the merits to satisfy the doctrine’s requirements. It might be a lot more candid for courts to simply discuss the collateral-order doctrine and immunity appeals as two different concepts. That way the generosity with which courts approach immunity issues might not influence other applications of the collateral-order doctrine.
Second, ACT is another decision that suggests pendent appellate jurisdiction is never necessary. The court thought that reviewing the summary-judgment decision was necessary to effectively review the preliminary-injunction decision. After all, the reasoning was the same. But the court needed only to review that reasoning. And that reasoning was already part of the preliminary-injunction order. So there was no need to review the summary-judgment order itself. If the appellate court’s analysis undermined that summary-judgment order, the district court could say so on remand.
ACT, Inc. v. Worldwide Interactive Network, Inc., 2022 WL 3590211 (6th Cir. Aug. 23, 2022), available at the Sixth Circuit and Westlaw
Another Court Overlooked the Amendments to Rule 3(c)
In Dawson v. Archambeau, the Tenth Circuit used Rule 3(c)’s notice-designation requirement to limit the scope of appeal, despite recent amendments to Rule 3(c) that abrogate this practice.
The plaintiff in Dawson sued several defendants. The district court initially granted summary judgment for all but one of those defendants. It later granted summary judgment for the last defendant. The plaintiff then appealed. And in his notice of appeal, he designated the last summary-judgment decision as the order under appeal.
The Tenth Circuit said that only the last summary-judgment decision was within the scope of review. Federal Rule of Appellate Procedure 3(c)(2) requires that appellants designate the order being appealed in their notice of appeal. And according to the Tenth Circuit, that “designation limits [its] jurisdiction.” Because the notice of appeal designated only the last summary-judgment decision, the Tenth Circuit had jurisdiction over only that decision.
This is all wrong. Last December, Rule 3(c) was amended to end courts’ practice of using the order-designation requirement to limit the scope of an appeal. The authority that Dawson relied on has been abrogated. Granted, no one appears to have brought these amendments to the Tenth Circuit’s attention, so the court probably just overlooked them. And the notice in Dawson was filed before those amendments took effect. But the Supreme Court’s order adopting the amendments said that the new rule would “govern in all proceedings in appellate cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.” As I said when the Eighth Circuit similarly overlooked the Rule 3(c) amendments a few months ago, these amendments should be retroactive. At least one court—the First Circuit—agrees with me.
Dawson v. Archambeau, 2022 WL 3692844 (10th Cir. Aug. 26, 2022), available at the Tenth Circuit and Westlaw
The Third Circuit Reviewed Standing in a Rule 23(f) Appeal
In Kelly v. RealPage Inc., the Third Circuit reviewed whether a plaintiff had standing as part of a class-certification appeal under Federal Rule of Civil Procedure 23(f). The court explained that standing was “a necessary threshold issue to [its] review of an order denying class certification.” (Quotation marks omitted.) The court declined, however, to also review the district court’s decisions on personal jurisdiction and partial summary judgment. Those issues were “beyond the scope of Rule 23(f) inquiries.” (Quotation marks omitted.)
Kelly v. RealPage Inc., 2022 WL 3642113 (3d Cir. Aug. 24, 2022), available at the Third Circuit and Westlaw
The Fifth Circuit Dismissed an Appeal From an Order That Might Have Resolved Liability, but Didn’t Determine Any Remedies
In Hignell-Stark v. City of New Orleans, the Fifth Circuit dismissed a cross-appeal from an order deeming a claim “viable.”
Hignell-Start involved challenges to New Orleans’ regulations on short-term rentals of residential property. The district court granted the city summary judgment on two of the plaintiffs’ claims. But it deemed the third claim—a First Amendment challenge to regulations on advertising—“viable.” The district court then entered a judgment under Federal Rule of Civil Procedure 54(b). (An issue of fees under 42 U.S.C. § 1988 remained pending in the district court.) The plaintiffs appealed their summary-judgment loss. The city cross-appealed, challenging the district court’s decision insofar as it deemed the First Amendment claim “viable.”
The Fifth Circuit dismissed the city’s cross-appeal. The district court had only said that the First Amendment claim was viable. It had not awarded any relief, such as a declaration or injunction. The district court had thus not fully resolved the First Amendment claim. The district court’s purported Rule 54(b) judgment was thus improper. The parties needed to litigate the First Amendment claim to a final resolution.
Hignell-Stark v. City of New Orleans, 2022 WL 3584037 (5th Cir. Aug. 22, 2022), available at the Fifth Circuit and Westlaw
The Blatant-Contradiction Exception for Qualified-Immunity Appeals
In Garcia v. Orta, the Fifth Circuit used a video to reject a factual dispute over whether a car moved.
The plaintiff in Garcia was arrested and charged for driving while intoxicated. Police had approached the plaintiff’s car while he was napping in it. When they ordered him out of the vehicle, it moved a very short distance and came to an abrupt stop. This small movement was the basis for arguing that the plaintiff had operated a motor vehicle while intoxicated.
The plaintiff later sued the arresting officers, alleging that they had lied when they said that the plaintiff had caused the car to move. According to the plaintiff, some unknown force caused the movement, not the plaintiff’s stepping on the accelerator. The district court denied qualified immunity, concluding that there were genuine fact disputes as to whether and how the vehicle had moved. The officers then appealed.
On appeal, the Fifth Circuit consulted a video of the events. And that video blatantly contradicted the district court’s conclusion regarding the vehicle’s movement. The video showed the vehicle moving forward at least six inches. There was accordingly no dispute that the vehicle moved.
As to whether the plaintiff caused the car to move, the main dispute was whether the car was on. The Fifth Circuit refused to credit the officer’s statements ordering the plaintiff to turn off the car, which were also recorded on the video. But it did consider those statements “in deciding whether other evidence sufficiently contradict[ed]” the factual basis for the immunity denial. And in rejecting the plaintiff’s argument that some other force might have moved the car, the Fifth Circuit noted that the officer’s commands would compel a reasonable jury to conclude that the motor was on.
Garcia v. Orta, 2022 WL 3652971 (5th Cir. Aug. 25, 2022), available at the Fifth Circuit and Westlaw
Quick Notes
In Stansell v. Revolutionary Armed Forces of Colombia, the Eleventh Circuit applied its “anomalous rule” for intervention appeals. Under that rule, the court reviews the merits of an intervention denial. And if it deems that denial correct, it dismisses the appeal for a lack of jurisdiction.
The rule is an example of conflating jurisdiction and the merits. And it’s silly. As much can be seen from the last two sentences on this issue, in which the court simultaneously affirms a district court order and dismisses the appeal from that order:
Because the district court did not abuse its discretion in denying her motion as untimely under these circumstances, we affirm its order. Our jurisdiction therefore evaporates, and we dismiss Ms. Leiva’s appeal.
(Citation omitted). That’s not how things work—you can’t affirm an order that you lack jurisdiction to review.
Stansell v. Revolutionary Armed Forces of Colombia, 2022 WL 3593139 (11th Cir. Aug. 23, 2022), available at the Eleventh Circuit and Westlaw
In Castro v. PPG Industries, Inc., the Ninth Circuit heard an appeal from a partial summary judgment order after the plaintiff voluntarily dismissed his remaining claims without prejudice. The district court found for the defendant on several of the plaintiff’s claims. The plaintiff then voluntarily dismissed his remaining claims and appealed the district court’s decision. Some courts would require that the plaintiff voluntarily dismiss those remaining claims with prejudice to take an appeal. But the Ninth Circuit permits appeals after without-prejudice dismissals when (1) the district court is meaningfully involved in the dismissal and (2) there is no evidence of an intent to manipulate appellate jurisdiction. In Castro, the district court approved of the dismissal. And there was no evidence of an intent to manipulate appellate jurisdiction.
Castro v. PPG Industries, Inc., 2022 WL 3681305 (9th Cir. Aug. 25, 2022), available at the Ninth Circuit and Westlaw