Pendent appellate jurisdiction over discovery orders in preliminary-injunction appeals and two decisions on appellate jurisdiction in habeas cases.
August 31, 2021
I saw only three decisions of note last week. The Fifth Circuit used pendent appellate jurisdiction to review an interlocutory discovery order. And the Sixth Circuit addressed its appellate jurisdiction in two habeas cases. One concerned an order requiring a petitioner’s transport to a university hospital for medical examination. The other concerned expanding the scope of an initial appeal to excuse the failure to timely file a subsequent appeal.
- The Fifth Circuit on Discovery Orders, Pendent Appellate Jurisdiction, and the Collateral-Order Doctrine
- The Sixth Circuit Reviewed a Habeas Transport Order via the Collateral-Order Doctrine
- The Sixth Circuit Split on Expanding a Certificate of Appealability to Include an Untimely Appealed Claim
The Fifth Circuit on Discovery Orders, Pendent Appellate Jurisdiction, and the Collateral-Order Doctrine
In Document Operations, L.L.C. v. AOS Legal Technologies, Inc., the Fifth Circuit used pendent appellate jurisdiction to review an interlocutory discovery order.
Simplifying a bit, Document Operations involved a dispute between former partners to a licensing agreement. The defendant was a Japanese corporation that marketed the plaintiff’s software in Japan and Korea. The defendant eventually developed its own competing software. Believing that the defendant had used its trade secrets and otherwise breached the contract, the plaintiff sued. The district court scheduled a hearing on the plaintiff’s request for a temporary restraining order and expedited discovery. Although the plaintiff repeatedly informed the defendant of this hearing date, the defendant refused to appear until service was made in accordance with the Hague Convention. At the hearing, the district court granted the temporary restraining order and expedited discovery. The district court also granted a preliminary injunction. The defendant then appealed.
The Fifth Circuit had jurisdiction to immediately review the preliminary injunction under 28 U.S.C. § 1292(a)(1). The defendant also sought review of the expedited-discovery order. Discovery orders are not normally immediately appealable. But the Fifth Circuit held that it had jurisdiction via either pendent appellate jurisdiction or the collateral-order doctrine.
As for pendent appellate jurisdiction, the Fifth Circuit said that the discovery order’s “ties to the preliminary injunction” were sufficient to extend pendent jurisdiction. The plaintiff had sought expedited discovery to aid in seeking a preliminary injunction, and the court had addressed the two issues in the same order.
Alternatively, the collateral-order doctrine applied, as the defendant’s objection to discovery invoked rights under the United States-Japan Consular Convention of 1964. This assertion of treaty rights, the court said, “transform[ed] the dispute from that over a standard pre-trial discovery order to one involving the rights of foreign defendants in American courts.” And the order would be effectively unreviewable after a final judgment, as the defendant would irrevocably lose its treaty rights to avoid discovery.
I don’t buy either proffered ground for appellate jurisdiction over the discovery order. The discovery order was not at all intertwined with the preliminary injunction—the court of appeals could have reviewed the injunction without touching on the discovery issues. That there was some connection between them is not enough to exercise pendent appellate jurisdiction. And the collateral-order reasoning is a stretch. The Supreme Court was been pretty clear in holding that discovery orders don’t fall under the collateral-order doctrine (though the Fifth Circuit doesn’t always think that it has to follow that holding). The assertion of treaty rights doesn’t really change any of the collateral-order considerations. And the alternative avenues for reviewing discovery orders—§ 1292(b), mandamus, and the contempt option—are still available.
Document Operations, L.L.C. v. AOS Legal Technologies, Inc., 2021 WL 3729333 (5th Cir. Aug. 23, 2021), available at the Fifth Circuit and Westlaw.
The Sixth Circuit Reviewed a Habeas Transport Order via the Collateral-Order Doctrine
In Twyford v. Shoop, the Sixth Circuit held that it could immediately review an order directing a warden to transport a habeas petitioner for medical testing.
The petitioner in Twyford sought neurological imaging in aid of his habeas petition. Because the facility in which he was held could not perform this imaging, the petitioner sought an order requiring the warden to transport him to a local university medical center. The district court granted this request. The warden then appealed.
A divided Sixth Circuit ultimately affirmed the transport order. Before doing so, the court determined that it had jurisdiction under the collateral-order doctrine. That doctrine deems final and appealable a district court order that (1) conclusively resolves an issue, (2) involves an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal after a final judgment. The transport order conclusively resolved the transport issue. The order involved issues unrelated to the merits of the habeas petition and “implicate[d] important issues of state sovereignty and federalism.” And the order would be effectively unreviewable absent an immediate appeal, as the state would “have already undertaken the burden, risk, and expense of transporting [the petitioner] for neurological imaging.” Further, the federalism concerns underlying the order distinguished it from normal discovery orders.
Twyford v. Shoop, 2021 WL 3782658 (6th Cir. Aug. 26, 2021), available at the Sixth Circuit and Westlaw.
The Sixth Circuit Split on Expanding a Certificate of Appealability to Include an Untimely Appealed Claim
In Jones v. Bradshaw, the Sixth Circuit expanded a certificate of appealability to include a claim of ineffective assistance at sentencing. Judge Griffin dissented, contending that the petitioner had not timely appealed that argument.
The procedural history in Jones is long and a little complicated. Simplifying quite a bit, the petitioner sought habeas relief from a state conviction and death sentence in 2003. The district court denied any relief but granted a certificate of appealability on several issues. That certificate did not include any argument that the petitioner’s counsel provided ineffective assistance at sentencing. The petitioner timely appealed to the Sixth Circuit. The case then bounced back and forth between the district court and court of appeals for several years.
In 2018, the petitioner sought relief from the district court’s judgment under Federal Rule of Civil Procedure 60(b), arguing that his counsel provided ineffective assistance at sentencing. The district court denied that motion. The petitioner then waited about 45 days to file his notice of appeal. That notice of appeal was accordingly late under Federal Rule of Appellate Procedure 4.
The question for the Sixth Circuit, then, was whether it could address the ineffective-assistance claim. The majority bypassed any timeliness issue and, on its own authority, expanded the previously granted certificate of appealability of include the ineffective-assistance claim. In other words, the Sixth Circuit relied on the petitioner’s previous, timely appeal as the basis for its jurisdiction and expanded the scope of that appeal to include the ineffectiveness issue.
Judge Griffin dissented. The deadline for an appeal in civil cases (including habeas cases) is jurisdictional, and courts cannot create equitable exceptions. And the petitioner had not sought to appeal his ineffective-assistance claim until the time for appealing any of the district court’s orders had passed. Judge Griffin accordingly thought that expanding the scope of a prior, timely appeal effectively—and impermissibly—excused the petitioner’s untimely notice of appeal.
Jones v. Bradshaw, 2021 WL 3754238 (6th Cir. Aug. 25, 2021), available at the Sixth Circuit and Westlaw.