Pendent appellate jurisdiction in injunction appeals, the effect of an appellee voluntarily dismissing claims without prejudice, denials of state law immunities, and more.
August 2, 2022
Last week had several decisions of note. The Eleventh Circuit had me wondering if pendent appellate jurisdiction is ever necessary. The Eighth Circuit addressed its jurisdiction after an appellee had voluntarily dismissed some of its claims without prejudice, though that discussion was probably unnecessary. The Eleventh Circuit allowed an appeal from the denial of sovereign immunity under Florida law. The opinion suggests immunity appeals are all about whether a defense shields officials from litigation (and not the other requirements of the collateral-order doctrine). And a notice of appeal that was “at the edge of errors” the Seventh Circuit was willing to excuse. Plus appellate jurisdiction over post-judgment cost decisions and more.
- The Eleventh Circuit on Extending (and Not Extending) Pendent Appellate Jurisdiction
- The Eighth Circuit on an Appellee’s Dismissing Claims Without Prejudice
- The Eleventh Circuit on Appealing Denials of Sovereign Immunity Under Florida Law
- The Seventh Circuit Reviewed Attorney Sanctions Despite the Attorneys’ Not Being Named in the Notice of Appeal
- Quick Notes
The Eleventh Circuit on Extending (and Not Extending) Pendent Appellate Jurisdiction
Pendent appellate jurisdiction allows a court of appeals to extend jurisdiction over a decision that would not normally be immediately appealable when the court has jurisdiction over another, related decision. Used almost entirely in the context of interlocutory appeals, pendent appellate jurisdiction says that the normally non-appealable issue piggybacks on the appealable one. The standards for pendent appellate jurisdiction are unsettled. The Supreme Court has shown little enthusiasm for the practice. But it is common in the courts of appeals.
In last week’s Schultz v. Alabama, the Eleventh Circuit used pendent appellate jurisdiction to review a decision on both the plaintiff’s standing and the adequacy of the plaintiff’s complaint as part of an injunction appeal. I initially thought that this was a defensible use of pendent appellate jurisdiction. But the case got me thinking: did the court really need pendent appellate jurisdiction? The adequacy of the complaint and the plaintiff’s standing were already part of the preliminary-injunction appeal. All pendent appellate jurisdiction did was let the court opine on orders—not issues—that it otherwise could not have addressed.
Schultz has me wondering if pendent appellate jurisdiction is ever actually necessary. For more on the decision, see my post Is Pendent Appellate Jurisdiction Necessary?.
Schultz v. Alabama, 2022 WL 3009566 (11th Cir. July 29, 2022), available at the Eleventh Circuit and Westlaw
The Eighth Circuit on an Appellee’s Dismissing Claims Without Prejudice
In United States ex rel. Cairns v. D.S. Medical LLC , the Eighth Circuit held that it had jurisdiction despite the district court’s dismissing some of the plaintiff’s claims without prejudice.
The plaintiff prevailed at trial on some of its claims, after which it voluntarily dismissed its remaining claims without prejudice. The defendant then appealed its loss at trial.
The Eighth Circuit noted that the without-prejudice dismissal complicated appellate jurisdiction. The government intended to revive its voluntarily dismissed claims if the court of appeals reversed. And a without-prejudice dismissal coupled with an intent to refile normally does not produce a final decision.
But not in Cairns. By prevailing at trial, the plaintiff got everything it sought—recovery on the voluntarily dismissed claims would have been duplicative. So there was no reason for the district court to resolve the voluntarily dismissed claims. The district court was done with the case, and its decision was final.
This case presented a variation on the normal without-prejudice dismissal scenario. Normally it’s the appellant who voluntarily dismisses some claims without prejudice. Courts are concerned that an appellant might try to manufacture an interlocutory appeal from the resolution of some claims by voluntarily dismissing its remaining claims without prejudice. Most courts accordingly hold that an appellant’s voluntary, without-prejudice dismissal of some claims precludes appellate jurisdiction.
In Cairns, the appellee voluntarily dismissed some of its claims without prejudice. That difference should have made the voluntary dismissal a non-issue. That concern—and the rule regarding appeals after voluntary, without-prejudice dismissals—doesn’t apply when the prevailing party dismisses some of its claims. To hold otherwise would allow the prevailing party to insulate its victory from appellate review.
United States ex rel. Cairns v. D.S. Medical LLC, 2022 WL 2930946 (8th Cir. July 26, 2022), available at the Eighth Circuit and Westlaw
The Eleventh Circuit on Appealing Denials of Sovereign Immunity Under Florida Law
In Butler v. Gualtieri, the Eleventh Circuit held that denials of sovereign immunity under Florida law are immediately appealable via the collateral-order doctrine. The appealability of state law immunities normally depends on whether they provide a defense from suit, rather than a mere defense to liability. (Nevermind the other requirements of the collateral-order doctrine.) The Eleventh Circuit had previously concluded that Florida’s sovereign-immunity statute provided only a defense to liability and thus was not immediately appealable. But the Florida Supreme Court recently held that this immunity was a defense from suit, shielding defendants from the burdens and uncertainties of litigation. The Eleventh Circuit accordingly allowed a defendant to immediately appeal from the denial of sovereign immunity under Florida law.
Butler v. Gualtieri, 2022 WL 2916713 (11th Cir. July 25, 2022), available at the Eleventh Circuit and Westlaw
The Seventh Circuit Reviewed Attorney Sanctions Despite the Attorneys’ Not Being Named in the Notice of Appeal
In Cooper v. Retrieval-Masters Creditors Bureau, Inc., the Seventh Circuit reviewed an order sanctioning the plaintiff’s attorneys, even though those attorneys were not named in the caption or body of the notice of appeal. The sanctions order applied only to the plaintiff’s two attorneys. So an appeal from the sanctions order gave notice of the attorneys’ intent to appeal. Further, although one of the attorneys did not file or sign the notice of appeal, the court still reviewed the order as to both attorneys. The district court imposed joint and several liability. So any effective review of the sanction against one attorney required reviewing the sanction against the other attorney. The Seventh Circuit also noted that “the defects in this notice of appeal are at the edge of errors [it was] willing to treat as harmless.”
Cooper v. Retrieval-Masters Creditors Bureau, Inc., 2022 WL 3009807 (7th Cir. July 29, 2022), available at the Seventh Circuit and Westlaw
Quick Notes
In Garnier v. O’Connor-Ratcliff, the Ninth Circuit lacked jurisdiction to review the denial of a motion to retax costs. After a trial, the district court awarded costs to the plaintiffs. The defendants then moved to retax costs. But they had also filed a notice of appeal. The district court denied the motion without prejudice, noting that the appeal could affect the cost order. Given that the district court had denied the motion without prejudice and clearly intended to revisit the cost issue after the appeal, the Ninth Circuit determined that the denial of the motion to retax costs was not a final, appealable decision.
Garnier v. O’Connor-Ratcliff, 2022 WL 2963453 (9th Cir. July 27, 2022), available at the Ninth Circuit and Westlaw
In Woods v. Lockheed Martin Corporation, the Eleventh Circuit refused to address a district court decision on costs that came after the plaintiff filed her notice of appeal. The court would address only those decisions that came before the notice. If she wanted to the court to review any post-notice decisions, she needed to amend her notice of appeal or file a new one.
Woods v. Lockheed Martin Corporation, 2022 WL 2972852 (11th Cir. July 27, 2022), available at the Eleventh Circuit and Westlaw
In Couch v. Brooks, the Sixth Circuit dismissed a fact-based qualified immunity appeal. Couch involved an Eighth Amendment claim. And according to the district court, a reasonable jury could find that the defendant threw a hotpot of scalding water into a cell full of prison inmates, injuring the plaintiff. The district court accordingly denied qualified immunity. That defendant nevertheless appealed to argue that the plaintiff had not submitted enough evidence. That was improper. Because the defendant did not accept the facts that the district court took as true in denying immunity, the Sixth Circuit dismissed the appeal.
Couch v. Brooks, 2022 WL 2963208 (6th Cir. July 26, 2022), available at the Sixth Circuit and Westlaw
And in Webster v. Westlake, the Eighth Circuit refused to extend pendent appellate jurisdiction to false-arrest, abuse-of-process, and respondeat superior issues in an appeal from the denial of qualified immunity.
Webster v. Westlake, 2022 WL 2963479 (8th Cir. July 27, 2022), available at the Eighth Circuit and Westlaw