The Week in Federal Appellate Jurisdiction: February 7–13, 2021

Last week, the D.C. Circuit split over when a dismissal without prejudice became final. That court also addressed its jurisdiction to immediately review the denial of a Glomar response in a Freedom of Information Act case. The Tenth Circuit split on the finality of an exemption order in bankruptcy when the amount of the exemption had yet to be determined. The Eleventh Circuit dismissed a premature appeal from a without-prejudice denial of intervention. The Federal Circuit applied its new cumulative-finality rule. And two courts addressed their jurisdiction to review transfer orders.

• The D.C. Circuit on Finality After Dismissals Without Prejudice
• The D.C. Circuit on Appealing the Denial of a Glomar Response
• The Tenth Circuit on the Finality of an Order Granting an Exemption from Bankruptcy
• The Eleventh Circuit on Premature Intervention Appeals
• The Federal Circuit Applied Its New Cumulative Finality Doctrine
• Two Decisions on Appealing Transfer Orders

The D.C. Circuit on Finality After Dismissals Without Prejudice

Many discussions of federal appellate jurisdiction focus on when litigants can appeal before the end of district court proceedings. But traditional end-of-proceedings appeals have their own issues, including uncertainty over when the time to file them begins to run. That uncertainty can lead to parties’ needlessly losing their right to appeal. So efforts to reform appellate jurisdiction cannot look only at interlocutory appeals. The traditional end-of-proceedings appeal needs work, too.

As much can be seen in the D.C. Circuit’s recent decision from earlier this week in Wilcox v. Georgetown University. The district court in Wilcox dismissed the plaintiffs’ complaint without prejudice and, several months later, denied leave to amend. A majority of the D.C. Circuit looked for signs that the district court intended for the initial dismissal to be final. Concluding that the district court intended to dismiss only the complaint—not the entire action—the majority held that the decision did not become final until the district court denied leave to amend. Dissenting, Judge Randolph contended that the case was over at the initial dismissal. And of particular interest, he rejected the longstanding distinction between dismissing a complaint and dismissing an entire action.

For more on Wilcox, see my post, Complaints, Actions & Finality After Dismissals Without Prejudice.

Wilcox v. Georgetown University, 2021 WL 446126 (D.C. Cir. Feb. 9, 2021), available at the D.C. Circuit and Westlaw.

The D.C. Circuit on Appealing the Denial of a Glomar Response

In Leopold v. CIA, the D.C. Circuit held that an order requiring the Central Intelligence Agency to say whether it possessed certain records was an appealable injunction.

Leopold was a Freedom of Information Act case. Simplifying a bit, the plaintiffs sought records from the CIA regarding payments to Syrian rebels. The CIA responded with a “Glomar response,” by which an agency refuses to confirm or deny the existence of a record because any other response could reveal classified information. On cross motions for summary judgment, the district court rejected the Glomar response and ordered the CIA to say whether or not it had the records in question. The CIA then appealed.

The D.C. Circuit held that the district court’s order was an appealable injunction. An order requiring the disclosure of documents in a Freedom of Information Act case is considered an appealable injunction. The only twist in Leopold was that the district court didn’t order the disclosure of any documents, only that the CIA say whether they exist. But that’s still an injunction, the court of appeals held. And the whole point of a Glomar response is to avoid any statement that might reveal classified information. An appeal after the fact would be useless.

Leopold v. CIA, 2021 WL 446152 (D.C. Cir. Feb. 9, 2021), available at the D.C. Circuit and Westlaw.

The Tenth Circuit on the Finality of an Order Granting an Exemption from Bankruptcy

In In re Crow, the Tenth Circuit held that a bankruptcy court’s order deeming an account exempt from bankruptcy was final and appealable. Concurring, Judge Briscoe contended that the order was initially interlocutory but had become final by the time the Tenth Circuit decided the appeal.

Simplifying a bit, the debtor in Crow filed for bankruptcy after a judgment creditor tried to garnish the debtor’s investment account. The debtor contended that the account was held as a tenancy by the entirety with his wife, which would exempt the account from the bankruptcy estate and thus shield it from any collection efforts. The bankruptcy court agreed that the account was generally exempt. The court left for later determination the exact amount that would be exempt. The creditor appealed this decision to the Bankruptcy Appellate Panel, which affirmed. The creditor then sought further review in the Tenth Circuit.

All members of the Tenth Circuit panel agreed that the court had appellate jurisdiction. But they disagreed over why.

The majority thought that the order granted an exemption and was thus final. Under 28 U.S.C. § 158(d)(1), the courts of appeals have jurisdiction to review “all final decisions” entered by a Bankruptcy Appellate Panel. And the Tenth Circuit has held that the “[g]rant or denial of a claimed exemption is a final appealable order from a bankruptcy proceeding.” Here, the bankruptcy court had granted the tenancy-by-the-entirety exemption, and the Bankruptcy Appellate Panel had affirmed. “This legal determination constituted a grant of a claimed exemption and therefore may be immediately appealed.” (Cleaned up.)

Concurring, Judge Briscoe contended that neither the bankruptcy court nor the Bankruptcy Appellate Panel had granted an exemption. They instead held that an account was generally exempt, but they had yet to determine the extent of that exemption. The exemption was thus “contingent on the outcome of an adversary proceeding.” But by the time the Tenth Circuit decided the appeal, the bankruptcy court had resolved those further proceedings. That made the bankruptcy court’s (and the Bankruptcy Appellate Panel’s) decision final. And the initially premature notice of appeal could relate forward to that final decision.

In re Crow, 2021 WL 522992 (10th Cir. Feb. 12, 20201), available at the Tenth Circuit and Westlaw.

The Eleventh Circuit on Premature Intervention Appeals

In United States v. US Stem Cell Clinic, LLC, the Eleventh Circuit held that it lacked jurisdiction to review the without-prejudice denial of a motion to intervene.

The underlying case involved the Food and Drug Administration’s suit against a company that provided stem-cell therapy. The government prevailed at summary judgment, and the district court ordered (among other things) that the company destroy all stem cells within its possession. Patients of the clinic—who had deposited stem cells at the clinic—sought to intervene to prevent the destruction of their stem cells. But the district court denied that motion without prejudice. As the district court saw things, the motion was premature—the court had stayed the destruction order pending the company’s decision on whether to appeal, and the court would presumably continue that stay if the company did appeal. The would-be intervenors then appealed to the Eleventh Circuit.

The Eleventh Circuit has a self-described “anomalous rule” for intervention appeals. Under this rule, appellate courts have “provisional jurisdiction” to hear immediate appeals from the denial of intervention. Appellate jurisdiction exists to review denials of intervention as of right so long as the district court erred in denying intervention. And appellate jurisdiction exists to review denials of permissive intervention if the district court clearly abused its discretion. But if the district court was correct in denying intervention, the court of appeals lacks jurisdiction and must dismiss the appeal.

But this anomalous rule, the Eleventh Circuit held, did not reach the would-be intervenors’ appeal. That’s because there was no decision on the motion to intervene. The district court did not actually decide whether intervention was proper. It instead decided only that it could not rule on the motion until after the company decided to appeal (or not appeal). After that happened, the would-be intervenors could renew their motion to intervene, as the district court seemed to expect them to do.

United States v. US Stem Cell Clinic, LLC, 2021 WL 508977 (11th Cir. Feb. 11, 2021), available at the Eleventh Circuit and Westlaw.

The Federal Circuit Applied Its New Cumulative Finality Doctrine

In Synchronoss Technologies, Inc. v. Dropbox, Inc., the Federal Circuit held that a premature notice of appeal was cured when counsel abandoned a patent-invalidity claim at oral argument.

Simplifying a fair bit, Synchronoss Technologies involved a variety of patent-infringement claims concerning Dropbox’s syncing software. In response, Dropbox argued that its software did not violate the plaintiff’s patent and, alternatively, pleaded a counterclaim contending that the plaintiff’s patent was invalid. At summary judgment, the district court sided with Dropbox on the first point, holding that there was no patent infringement. And that decision, the district court thought, mooted any issues as to the validity of the plaintiff’s patent. The district court thus did not resolve Dropbox’s invalidity counterclaim.

The plaintiff appealed to the Federal Circuit. But there was a problem: the district court had not resolved Dropbox’s counterclaim, which remained pending in the district court. There was accordingly no final decision. And until recently, that would have been fatal in the Federal Circuit. It was one of the few courts who did not allow parties to cure this sort of jurisdictional defect by abandoning outstanding claims in the course of an appeal.

But last year, the Federal Circuit joined nearly every other circuit in holding “that a party can ‘cure’ a jurisdictional defect stemming from its unresolved invalidity counterclaim if it agrees to ‘give up’ the claim regardless of the outcome of the appeal.” And at oral argument, counsel for Dropbox agreed to abandon the invalidity counterclaim. That rendered the district court’s decision final and secured the Federal Circuit’s jurisdiction.

Synchronoss Technologies, Inc. v. Dropbox, Inc., 2021 WL 520047 (Fed. Cir. Feb. 12, 2021), available at the Federal Circuit and Westlaw.

Two Decisions on Appealing Transfer Orders

In Gilmore-Webster v. Bayou City Homebuyers, Inc., the Fifth Circuit held that it lacked jurisdiction to review a transfer order because the plaintiff never challenged the transfer into the transferred-to court. The case began in a California district court. But that court transferred the case to the Southern District of Texas. Although the plaintiff apparently opposed the transfer when the defendants sought it, he never asked the Texas district court to retransfer the case back to California. And the Fifth Circuit could not review the California district court’s decisions:

Here, however, [the plaintiff] never challenged the transfer in Texas. Instead, he asks us to review the California district court’s decision—and that we cannot do. We lack jurisdiction to hear appeals challenging venue transfer orders issued by district courts in other circuits.

(Quotation marks omitted.)

And in In re Hall, the Seventh Circuit reversed a transfer order via a writ of mandamus. Hall involved a habeas petition originally filed in the Southern District of Indiana. At the time of filing, the petitioner was held in an Indiana prison. But he was later transferred to one in Florida, and the Indiana district court transferred the case to the Middle District of Florida. The petitioner then filed a petition for a writ of habeas in the Seventh Circuit, arguing that the district court was wrong to transfer the case. The Seventh Circuit agreed with that argument—“a prisoner’s transfer from one federal facility to another during the pendency of a habeas corpus proceeding does not affect the original district court’s jurisdiction”—and issued a writ of mandamus requiring the Indiana district court to rescind the transfer order.

Gilmore-Webster v. Bayou City Homebuyers, Inc., 2021 WL 519702 (5th Cir. Feb. 11, 2021), available at the Fifth Circuit and Westlaw.

In re Hall, 2021 WL 524499 (7th Cir. Feb. 12, 2021), available at the Seventh Circuit and Westlaw.