The Week in Federal Appellate Jurisdiction: July 18–24, 2021

All of the appellate-jurisdiction action last week was in the Sixth and Eleventh Circuits.

The en banc Eleventh Circuit unanimously overruled its caselaw that allowed defendants to immediately appeal the denial of antitrust’s state-action defense, which is often called “Parker immunity.” The court explained that the defense is not an immunity from suit. So appeals after a final judgment suffice.

The Sixth Circuit split over its jurisdiction after a plaintiff voluntarily dismissed some of its claims without prejudice. This is an issue that several courts of appeals have had to wrestle with in the last few years. The Sixth Circuit also dismissed an interlocutory appeal that asked only whether a Bivens remedy existed for the defendant’s alleged conduct. Although this Bivens question can normally tag along with an appeal from the denial of qualified immunity, the defendant did not ask the district court for immunity. With no qualified-immunity appeal, there was no jurisdictional basis for the Sixth Circuit to review the Bivens issue.

The Eleventh Circuit had two additional decisions of note. That court reviewed the denial of a Rule 35(b) sentence-reduction motion, as the defendant argued that the district court had committed a legal error in refusing to reduce his sentence. The Eleventh Circuit also dismissed an appeal form a discovery order entered in Chapter 15 bankruptcy proceedings. The discovery order was part of an effort to enforce a foreign bankruptcy court’s order freezing assets. So the discovery order did not mark the end of the relevant bankruptcy proceeding.

• The En Banc Eleventh Circuit Overruled Its Precedent Permitting Appeals from Denials of Antitrust’s State-Action Defense
• The Sixth Circuit on Appeals After Without-Prejudice Dismissals
• The Sixth Circuit Dismissed a Pure Bivens Appeal
• The Eleventh Circuit Reviewed the Denial of a Rule 35(b) Sentence-Reduction Motion
• The Eleventh Circuit Dismissed a Discovery Appeal From Chapter 15 Bankruptcy Proceedings

The En Banc Eleventh Circuit Overruled Its Precedent Permitting Appeals from Denials of Antitrust’s State-Action Defense

Last summer, the Eleventh Circuit heard an immediate appeal from a district court’s denial of what’s often called “Parker immunity.” This so-called immunity provides that the Sherman Act generally does not cover a state’s anticompetitive conduct. The case—SmileDirectClub, LLC v. Battle—produced three separate opinions on appealability. The majority and dissent argued over the application of the the rule allowing these appeals via the collateral-order doctrine. Judge Jordan concurred to question whether denials of Parker immunity should be immediately appealable at all.

The Eleventh Circuit decided to rehear the case en banc. On Tuesday, the court unanimously overruled its cases permitting these appeals. As the Eleventh Circuit explained, Parker immunity is not a true immunity from suit. It’s instead a defense from liability. So Parker immunity might better be called the Parker defense, or simply antitrust’s state-action defense. And a district court’s rejection of this defense is effectively reviewable in an appeal from a final judgment.

The courts of appeals remain split on this issue, thought I think SmileDirectClub leaves only the Fifth Circuit holding that rejections of the Parker defense are immediately appealable collateral orders. And while the Supreme Court almost resolved this split a few years ago, the Court might not be interested in SmileDirectClub.

For more on SmileDirectClub, see my post No More “Parker Immunity” Appeals in the Eleventh Circuit.

SmileDirectClub, LLC v. Battle, 2021 WL 3045358 (11th Cir. July 20, 2021), available at the Eleventh Circuit and Westlaw.

The Sixth Circuit on Appeals After Without-Prejudice Dismissals

The past several years have seen the courts of appeals struggling with their jurisdiction when plaintiffs voluntarily dismiss some of their claims without prejudice. Concerned that these plaintiffs are trying to manufacture an interlocutory appeal, the courts have developed a variety of rules on appealability. The Fifth Circuit, for example, requires that the would-be appellant obtain a partial judgment under Federal Rule of Civil Procedure 54(b). The Ninth Circuit requires meaningful district court involvement in the voluntary dismissal. And the Eleventh Circuit simply holds that the without-prejudice voluntary dismissal creates a final, appealable decision.

The Sixth Circuit has now weighed in. In Rowland v. Southern Health Partners, Inc., a divided panel held that the without-prejudice voluntary dismissal of all outstanding claims did not create a final decision. The case involved a fairly blatant attempt at manufacturing an interlocutory appeal, with the plaintiff hoping to reinstate her voluntarily dismissed claims should she succeed on appeal. A majority of the court rejected this effort. Dissenting, Judge Moore would have held that the plaintiff had sufficiently imperiled her voluntarily dismissed claims to create a final decision.

For more on Rowland, see my post A Sixth Circuit Split on Appeals After Voluntary Dismissals.

Rowland v. Southern Health Partners, Inc., 2021 WL 3076744 (6th Cir. July 21, 2021), available at the Sixth Circuit and Westlaw.

The Sixth Circuit Dismissed a Pure Bivens Appeal

The Bivens question asks whether an implied constitutional remedy exists for a federal official’s unconstitutional conduct. In Wilkie v. Robbins, the Supreme Court held that courts of appeals can address the Bivens question as part of an appeal from the denial of qualified immunity. But the Bivens question standing alone has not been deemed immediately appealable. It must tag along with a qualified-immunity appeal.

In Himmelreich v. Federal Bureau of Prisons, the Sixth Circuit accordingly dismissed a pure Bivens appeal. The defendant in Himmelreich had not sought qualified immunity in the district court. She argued only that no Bivens remedy existed for her alleged conduct and appealed only the district court’s rejection of that argument. With no denial of qualified immunity, the Sixth Circuit lacked jurisdiction over the appeal.

For more on Himmelreich, see my post No Bivens Appeals Without Qualified Immunity.

Himmelreich v. Federal Bureau of Prisons, 2021 WL 3088264 (6th Cir. July 22, 2021), available at the Sixth Circuit and Westlaw.

The Eleventh Circuit Reviewed the Denial of a Rule 35(b) Sentence-Reduction Motion

In United States v. Williams, the Eleventh Circuit said that it had jurisdiction to review the denial of a sentence-reduction motion because the defendant argued that the unchanged sentence violated the law.

The defendant in Williams had assisted the government in prosecuting one of his co-conspirators. The government then sought a sentence reduction under Federal Rule of Criminal Procedure 35(b). The district court denied that motion. The defendant then appealed, arguing that the district court had committed a legal error “by categorically refusing to consider the government’s Rule 35(b) motion based on an impermissible factor: that he is a retired U.S. Army Colonel.”

The Eleventh Circuit said that it had jurisdiction to review the Rule 35(b) denial. According to the Eleventh Circuit, it normally lacks jurisdiction to review these decisions. Appeals from Rule 35(b) decisions are appeals from “an otherwise final sentence” and thus governed by 18 U.S.C. § 3742. Section 3742 limits what appellate courts can do when reviewing a sentence:

The district court’s decision to deny or grant a Rule 35(b) motion is discretionary, and generally such a decision will not be appealable under § 3742 because a defendant may not challenge the merits of the determination or the extent of the reduction.

(Cleaned up.) (Note, the courts of appeals disagree on whether § 3742 limits their appellate jurisdiction, with some saying that § 3742 addresses only the relief courts can grant in an appeal.)

The defendant in Williams did not challenge the determination or extent of a sentence reduction. He instead argued that the district court committed a legal error in applying Rule 35(b). That’s an argument that the sentence “was imposed in violation of law,” which appellate courts can review under § 3742(a)(1).

United States v. Williams, 2021 WL 3028772 (11th Cir. July 19, 2021), available at the Eleventh Circuit and Westlaw.

The Eleventh Circuit Dismissed a Discovery Appeal From Chapter 15 Bankruptcy Proceedings

In In re Transbrasil S.A. Linhas Aéreas, the Eleventh Circuit held that the targets of a discovery order in a Chapter 15 bankruptcy case could not immediately appeal.

Simplifying quite a bit, Transbrasil stemmed from bankruptcy proceedings in Brazil. The bankruptcy trustee thought that it might find information about the debtor’s assets in the United States. The trustee accordingly petitioned the Bankruptcy Court for the Southern District of Florida to recognize the foreign bankruptcy proceeding under Chapter 15 of the Bankruptcy Code. The Florida bankruptcy court granted the petition. Several years later, the Brazilian bankruptcy court froze the assets of several entities related to the debtor. The trustee then sought discovery regarding those related entities from several U.S-based financial institutions. The Florida bankruptcy court refused to quash those subpoenas. The related entities then appealed to the district court, which held that the refusal to quash was not a final, appealable decision. The related entities then sought further review in the Eleventh Circuit.

The Eleventh Circuit rejected both of the related entities’ proffered grounds for jurisdiction.

First, the refusal to quash the subpoenas was not final. The appropriate procedural unit for determining finality in Transbrasil was the trustee’s effort to implement the Brazilian court’s freeze order. Discovery was in aid of that proceeding. The case was not, as the related entities argued, a stand-alone proceeding to obtain discovery. The Florida bankruptcy court had more to do than just approve of the discovery. Indeed, had the Florida bankruptcy court quashed the subpoenas, that would not have marked the end of proceedings in that court.

Second, the Eleventh Circuit refused to apply the pragmatic-balancing approach of Gillespie v. U.S. Steel Corp. In Gillespie, the Supreme Court essentially engaged in ad-hoc balancing of the costs and benefits of an immediate appeal, concluding that the particular circumstances of a case warranted an exception to the final-judgment rule. But the Supreme Court subsequently limited this aspect of Gillespie to its facts. To allow such ad-hoc balancing, the Court thought, would completely undermine the final-judgment rule. And to the extent that Gillespie still allowed for immediate appeals of orders that are fundamental to the further conduct of a case—a questionable proposition—the discovery order in Transbrasil did not satisfy that requirement.

In re Transbrasil S.A. Linhas Aéreas, 2021 WL 3028768 (11th Cir. July 19, 2021), available at the Eleventh Circuit and Westlaw.