The Week in Federal Appellate Jurisdiction: July 12–18, 2020

Last week, the Eleventh Circuit addressed its appellate jurisdiction after some claims have been voluntarily dismissed without prejudice. The Fourth Circuit held that defendants can forfeit the Bivens question in an interlocutory qualified-immunity appeal. The Federal Circuit reviewed a non-final order from the Veterans Court. And the reply in support of cert was filed in a case that asks the Supreme Court to address the scope of remand appeals under 28 U.S.C. § 1447(d). Plus another appeal after a dismissal without prejudice, appealing post-judgment decisions, and the lack of finality despite a district court’s administratively closing a case.

• The Eleventh Circuit Cleaned Up Its Caselaw on Appealing After a Voluntary Dismissal Without Prejudice
• The Fourth Circuit Held That the Bivens Question Can Be Forfeited in an Interlocutory Qualified-Immunity Appeal
• The Federal Circuit Reviewed a Non-Final Decision by the Veterans Court
• Reply Brief Filed in Climate-Change/Remand-Appeal Suit
• Quick Notes

The Eleventh Circuit Cleaned Up Its Caselaw on Appealing After a Voluntary Dismissal Without Prejudice

In Corley v. Long-Lewis, Inc., the Eleventh Circuit held that a district court’s resolution of all claims was final and appealable despite the plaintiffs’ voluntarily dismissing some of those claims without prejudice. In doing so, the court had to wade through its conflicting lines of authority in this area—one holding that the resolution of all claims is final despite the voluntary dismissal, the other holding that it’s not. The conflicting cases could not be reconciled. The court accordingly had to go with the older precedent. And that precedent held that “an order granting a motion to voluntarily dismiss the remainder of a complaint under Rule 41(a)(2) ‘qualifies as a final judgment for purposes of appeal.’” The court also addressed its territorial jurisdiction to review the decision of an MDL transferee court and appellate standing after some claims are voluntarily dismissed. And Chief Judge William Pryor—who authored the majority opinion—wrote a separate concurrence discussing the messy state of the law governing governing appeals after voluntary dismissals and offering alternatives to avoid that mess.

For more on Corley, see my post from last week: The Eleventh Circuit on Appeals After Voluntary Dismissals.

Corley v. Long-Lewis, Inc., 2020 WL 4006602 (11th Cir. July 16, 2020), available at the Eleventh Circuit and Westlaw.

The Fourth Circuit Held That the Bivens Question Can Be Forfeited in an Interlocutory Qualified-Immunity Appeal

In Hicks v. Ferreya, the Fourth Circuit refused to address the Bivens question in an interlocutory qualified-immunity appeal. The Bivens question—which asks whether an implied constitutional cause of action exists for a federal official’s alleged violation of the plaintiff’s rights—is normally appealable alongside the denial of qualified immunity. But the defendants in Hicks failed to raise the issue in the district court. So in their interlocutory qualified-immunity appeal, the Fourth Circuit concluded that the issue had been forfeited. In the course of doing so, the Fourth Circuit rejected the argument that the Bivens issue (like jurisdictional issues) could not be waived or forfeited. The court also dismissed the defendants’ fact-based challenges to the denial of qualified immunity.

For more on Hicks, see my post from last week: The Fourth Circuit on Forfeiting the Bivens Question

Hicks v. Ferreya, 2020 WL 3969268 (4th Cir. July 14, 2020), available at the Fourth Circuit and Westlaw.

The Federal Circuit Reviewed a Non-Final Decision by the Veterans Court

In Sellers v. Wilkie, the Federal Circuit held that it could review a non-final Veterans Court decision.

The petitioner in Sellers had obtained compensation for a major depressive disorder. But he sought an earlier effective date than the one he was given. The petitioner argued that an earlier request for disability benefits established his effective date, even though that request did not mention his depressive disorder. The Veterans Court sided with the petitioner, announcing “a new legal test for [determining] whether a general statement of intent to seek benefits for unspecified disabilities will suffice as a sufficient formal claim.” The Veterans Court remanded the case to the Board of Veterans Affairs, but the Secretary of Veterans Affairs appealed to the Federal Circuit.

The Federal Circuit has interpreted 38 U.S.C. § 7292 to mean that it generally has jurisdiction over only final decisions by the Veterans Court. The decision in Sellers was non-final due to the remand. But under Williams v. Principi, the Federal Circuit will review non-final decisions when three conditions are met:

(1) [T]here is a clear and final decision of a legal issue, separate from the remand proceedings, that will directly govern the remand proceedings, or if reversed, would render the remand proceedings unnecessary; (2) the resolution of the legal issue adversely affects the party seeking judicial review; and (3) there is a substantial risk that the remand proceeding may moot the issue.

The Sellers court held that all three conditions were met:

The Veterans Court decision created a clear rule of law that will govern the remand proceeding, and remand proceedings would be unnecessary were we to reject that clear rule of law. The contested clear rule of law adversely affects the Secretary because it would change the law to require formal claims to proceed notwithstanding the absence of any identifiable sickness, disease, or injuries reasonably identified in the written claim. Finally, there is a substantial risk that the [Board] may on remand find a reasonably identifiable timely diagnosis of a psychiatric condition in [the petitioner]’s medical record. Such a finding would moot judicial review of the contested rule of law in this case, because the Secretary cannot appeal [Board] decisions favorable to the veteran to the Veterans Court.

On the merits, the Federal Circuit held that “a veteran’s formal claim is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality.” The court of appeals accordingly reversed the Veterans Court.

Sellers v. Wilkie, 2020 WL 3980701 (Fed. Cir. July 15, 2020), available at the Federal Circuit and Westlaw.

Reply Brief Filed in Climate-Change/Remand-Appeal Suit

The petitioners filed their reply in support of cert in BP P.L.C. v. Mayor and City Council of Baltimore. The cert petition asks the Supreme Court to address the scope of remand appeals when an exception to 28 U.S.C. § 1447(d)’s bar on appellate review applies. The issue has arisen in several appeals involving climate-change litigation. For background, see my post on the Fourth Circuit’s decision in the case, A Deepened Split on the Scope of Remand Appeals. You can also read about similar recent decisions from the Ninth and Tenth Circuits:

• The Ninth Circuit on the Scope of Remand Appeals.
• The Tenth Circuit on the Scope of § 1447(d) Remand Appeals.

The petition is scheduled for the Supreme Court’s September 29, 2020, conference.

Reply Brief for the Petitioners, BP P.L.C. v. Mayor and City Council of Baltimore, No. 19-1189 (July 15, 2020), available at the Supreme Court and Westlaw.

Quick Notes

In Norfleet v. Gaetz, the Seventh Circuit held that the running of a statute of limitations cured any defect caused by the plaintiff’s voluntarily dismissing claims without prejudice. The plaintiff in Norfleet, who was in prison and confined to a wheel chair, sued several defendants for failing to provide him with adequate exercise equipment. The district court dismissed some of the plaintiff’s claims but ordered that others should proceed to trial. The plaintiff then voluntarily dismissed his remaining claims without prejudice in order to appeal the district court’s dismissal decision. This created a jurisdictional problem; courts are wary of without-prejudice dismissals used to manufacture interlocutory appeals. But by the time the Seventh Circuit heard the appeal, the statute of limitations had run on the voluntarily dismissed claims. The voluntarily dismissed claims thus could not be revived, and that assuaged any concern about the plaintiff manufacturing an appeal.

Norfleet v. Gaetz, 2020 WL 3960322 (7th Cir. July 13, 2020), available at the Seventh Circuit and Westlaw.

In Caribbean Management Group, Inc. v. Erikon LLC, the First Circuit held that it had jurisdiction to review a decision denying leave to execute a judgment. Caribbean Management involved a judgment that the judgment debtor had not made any payments on for over six years. Any effort to execute the judgment was therefore untimely, and the district court denied the judgment creditor’s motion for leave to execute an untimely judgment. The creditor then appealed.

The First Circuit noted that it had appellate jurisdiction. Post-judgment collection efforts can sometimes result in finality problems. But an order entered in post-judgment proceedings that leaves the district court with nothing else to do is final and appealable. And that was the case in Caribbean Management. The order ended the creditor’s efforts at collecting on the judgment and left nothing for the district court to do.

The First Circuit also held that it could ignore any deficiencies in the judgment creditor’s notice of appeal. The creditor had designated only the district court’s order denying reconsideration, not the underlying denial of leave to execute the judgment. The court of appeals noted that the omission did not prejudice the judgment debtor. And although there was some uncertainty as to whether the creditor intended to challenge the decision underlying the denial of reconsideration, the court could avoid the jurisdictional question because it was affirming the district court.

Caribbean Management Group, Inc. v. Erikon LLC, 2020 WL 4034999 (1st Cir. July 17, 2020), available at the First Circuit and Westlaw.

And in I.K. v. Montclair Board of Education, the Third Circuit held that an attorneys’ fees award was not appealable when other claims remained pending in the district court. I.K. involved several claims stemming from a state agency’s rejection of a petition involving the education of a disabled child. The district court remanded the dispute to the agency for a hearing and retained jurisdiction over the remaining claims. The court also awarded attorneys’ fees to the child’s parent. Both sides then appealed the fee award. But the Third Circuit lacked jurisdiction. Other claims remained before the district court, despite that court’s staying the proceedings and administratively closing the case. The district court thus retained jurisdiction over the remaining claims despite the remand. T he dispute was not over in the district court, and there was no final decision for appeal.

I.K. ex rel. Z.S. v. Montclair Board of Education, 2020 WL 4013196 (3d Cir. July 16, 2020), available at the Third Circuit and Westlaw.