Appeals involving denials of PREP Act immunity, undoing voluntary dismissals, denials of substitute counsel, IDEA remands, the merger rule, extending the appeal deadline, and more. Plus a decision on the deadline for appealing interlocutory orders and a cert petition on district court jurisdiction during an arbitration appeal.
August 10, 2022
There is too much to talk about from last week. Let’s start with the D.C. Circuit’s decision on the appealability of PREP Act immunity.
- The D.C. Circuit Held That Most Denials of PREP Act Immunity Are Not Immediately Appealable via 42 U.S.C. § 247d-6d(e)(10)
- The Ninth Circuit Affirmed the Refusal to Undo a Voluntary Dismissal
- The Fifth Circuit Held That Denials of Substitute Habeas Counsel Are Not Immediately Appealable
- The Eleventh Circuit on Appeals From IDEA Remands
- The Tenth Circuit on the Deadline for Appealing Interlocutory Orders
- The Sixth Circuit on Government Appeals in Criminal Cases
- The Eleventh Circuit on Merger & Denials of Compassionate Release
- The D.C. Circuit Held That a Response to a Show-Cause Order Could Not Be Treated as a Motion to Extend the Appeal Deadline
- New Cert Petition on District Court Jurisdiction During an Arbitration Appeal
- Quick Notes
The D.C. Circuit Held That Most Denials of PREP Act Immunity Are Not Immediately Appealable via 42 U.S.C. § 247d-6d(e)(10)
In Cannon v. Watermark Retirement Communities, Inc. , the D.C. Circuit held that nursing homes facing suits over the death of residents due to COVID-19 could not immediately appeal form the denial of PREP Act immunity.
The Public Readiness and Emergency Preparedness (or “PREP”) Act “provides immunity from federal and state law claims relating to the administration of certain medical countermeasures during a declared public health emergency.” Two Pennsylvania nursing homes invoked this immunity in suits concerning their care of residents who died from COVID-19. The district court denied immunity. The nursing homes then tried to appeal to the D.C. Circuit, invoking 42 U.S.C. § 247d-6d(e)(10). But the court of appeals concluded that § 247d-6d(e)(10) permitted immediate appeals only in a small class of cases: willful-misconduct suits brought in the District Court for the District of Columbia. The D.C. Circuit accordingly dismissed the appeals.
Cannon v. Watermark Retirement Communities, Inc., 2022 WL 3130653 (D.C. Cir. Aug. 5, 2022), available at the D.C. Circuit and Westlaw
The Ninth Circuit Affirmed the Refusal to Undo a Voluntary Dismissal
In Sperring v. LLR, Inc., the Ninth Circuit affirmed a district court’s denial of a Rule 60(b) motion that sought to undo a voluntary dismissal.
When the district court ordered that the plaintiffs’ claims must be arbitrated, the plaintiffs voluntarily dismissed those claims with prejudice and tried to appeal the arbitration order. The Ninth Circuit dismissed that appeal for a lack of jurisdiction. Although that court had once allowed this voluntary-dismissal tactic, the Ninth Circuit later determined that Microsoft Corp. v. Baker had abrogated those cases. The Sperring plaintiffs then returned to the district court and sought to undo their voluntary dismissal via Federal Rule of Civil Procedure 60(b). The district court denied that motion, and the plaintiffs appealed.
The Ninth Circuit affirmed the denial. The main issue was whether the change in the law warranted Rule 60(b) relief. The court of appeals held that it didn’t because the plaintiffs should have known that the law might change in an unfavorable way. The court gave three reasons. First, although Microsoft concerned the use of voluntary dismissals to appeal class-certification denials, much of its reasoning applied equally to the arbitration context. Second, the Supreme Court’s opinion in Lamps Plus, Inc. v. Varela suggested that Microsoft applied to the arbitration context. And when the plaintiffs voluntarily dismissed their claims, at least two other courts of appeals had held that Microsoft applied outside of the class-action context.
The Ninth Circuit recognized that some of its post-Microsoft cases had held that plaintiffs could still appeal adverse interlocutory decisions by voluntarily dismissing their claims. But those cases did not involve special rules regarding discretionary appeals like those found in the class-certification and arbitration context.
Sperring v. LLR, Inc., 2022 WL 3136947 (9th Cir. Aug. 5, 2022), available at the Ninth Circuit and Westlaw
The Fifth Circuit Held That Denials of Substitute Habeas Counsel Are Not Immediately Appealable
In Tracy v. Lumpkin, the Fifth Circuit held that it lacked jurisdiction via the collateral-order doctrine to review the denial of a pro se motion to substitute habeas counsel. Courts have held that a variety of orders concerning the appointment or disqualification of counsel are not immediately appealable. Along those lines, the Fifth Circuit concluded that it could review the denial of substitute counsel in an appeal from a final judgment. The order accordingly failed the collateral-order doctrine’s third requirement: that the order be effectively unreviewable in an appeal from a final judgment.
Tracy v. Lumpkin, 2022 WL 3135311 (5th Cir. Aug. 5, 2022), available at the Fifth Circuit and Westlaw
The Eleventh Circuit on Appeals From IDEA Remands
In S.S. ex rel. A.S. v. Cobb County School District, the Eleventh Circuit held that it lacked jurisdiction to review an order remanding an IDEA case to a state administrative agency.
A student filed an administrative complaint in a state agency, arguing that her school district had failed to provide her with a free and appropriate public education under the Individuals with Disabilities Education Act. The administrative law judge determined that the student was not entitled to a due-process hearing and granted summary judgment for the school district. The student then sought review in a federal district court. That court remanded the suit to the agency for a due-process hearing. The school district then appealed.
The Eleventh Circuit dismissed the appeal for a lack of jurisdiction. The administrative-remand rule provides that most district court orders remanding a dispute to an agency are not final, appealable decisions under 28 U.S.C. § 1291. More remains to be done in these cases—the administrative proceedings on remand—which then might end up back in the district court. And none of the exceptions to the administrative-remand rule applied—both parties would be able to seek review of any administrative decision in the district court, and the case did not present any important, unsettled issue.
S.S. by and Through A.S. v. Cobb County School District, 2022 WL 3132122 (11th Cir. Aug. 5, 2022), available at the Eleventh Circuit and Westlaw
The Tenth Circuit on the Deadline for Appealing Interlocutory Orders
In Jenkins v. Reyes, the Tenth Circuit limited an injunction appeal to the district court’s order denying reconsideration.
After the district court denied a temporary restraining order and preliminary injunction, the plaintiffs sought reconsideration. They did not file a notice of appeal until after the district court denied their reconsideration motion, which was more than 60 days after the initial denial. (60 days was the relevant appeal window, as a United States official was among the defendants.)
The Tenth Circuit held that it could review only the denial of reconsideration. For one thing, the plaintiffs designated only the denial of reconsideration in their notice of appeal. That limited the scope of appeal to that denial. For another thing, the appeal was untimely as to the initial denial of the injunction. The time to appeal began running at that denial. And the motion for reconsideration did not reset the appeal clock. Although Federal Rules of Civil Procedure 59(e) and 60(b) can reset an appeal window, they apply only to post-judgment motions. The Tenth Circuit thought there was no judgment in Jenkins. The motion was thus one under Federal Rule of Civil Procedure 54(b), which says that a district court can revise any interlocutory decision. Such a motion does not reset the appeal clock.
I see a few potential problems with Jenkins. First, designating only the denial of reconsideration shouldn’t matter, especially after the latest amendments to Federal Rule of Appellate Procedure 3(c). So the notice of appeal should not have limited the scope of appeal.
Second, I wonder if the appeal clock began running with the initial denial of a preliminary injunction. As the Fifth Circuit recently explained, appealable interlocutory orders are “judgments” under the federal rules. In most cases, the time to appeal does not begin running until that judgment is set out in a separate document and entered on the docket. I doubt the denial of a preliminary injunction was set out in a separate document. The time to appeal accordingly should have started 150 days after the denial.
Finally, the motion for reconsideration should have reset the appeal clock. Even if Rules 59(e) and 60(b) don’t apply, there is a long-standing rule that a motion for reconsideration filed within the time to appeal resets the appeal clock. Granted, not every court accepts this rule when it comes to interlocutory appeals. But they should. The rule gives district courts the opportunity to correct mistakes and thus avoid unnecessary appeals.
Jenkins v. Reyes, 2022 WL 3041103 (10th Cir. Aug. 2, 2022), available at the Tenth Circuit and Westlaw
The Sixth Circuit on Government Appeals in Criminal Cases
In United States v. Musaibli, the Sixth Circuit reviewed a decision excluding hearsay evidence from a criminal trial.
The court gave a nice explanation of 18 U.S.C. § 3731, which allows the government to appeal certain interlocutory orders excluding or suppressing evidence in criminal cases. It ultimately rejected the defendant’s argument that there was a meaningful difference (for purposes of appellate jurisdiction) between a district court order granting a defendant’s motion to exclude evidence and one denying the government’s motion to admit it.
The court also noted that the possibility of reconsideration did not preclude an appeal. All evidentiary orders are subject to reconsideration up to and through trial. So “if the mere possibility of reconsideration foreclosed . . . review, then no evidentiary ruling would ever be the basis for appellate jurisdiction.”
United States v. Musaibli, 2022 WL 3040618 (6th Cir. Aug. 2, 2022), available at the Sixth Circuit and Westlaw
The Eleventh Circuit on Merger & Denials of Compassionate Release
In United States v. Rogers, the Eleventh Circuit held that prior denials of compassionate release did not merge into a later denial of reconsideration.
The district court denied the defendant’s original and amended motions for compassionate release. The court later denied a motion for reconsideration, after which the defendant filed a notice of appeal and designated only the reconsideration denial.
The Eleventh Circuit said that the first two denials did not merge into the reconsideration denial, as neither were interlocutory—the defendant could have appealed from them. The designation of the reconsideration denial thus limited the scope of the appeal to that order.
United States v. Rogers, 2022 WL 3099423 (11th Cir. Aug. 4, 2022), available at the Eleventh Circuit and Westlaw
The D.C. Circuit Held That a Response to a Show-Cause Order Could Not Be Treated as a Motion to Extend the Appeal Deadline
In Ladeairous v. Garland, the D.C. Circuit held that a response to a show-cause order could not be treated as a motion to extend the appeal deadline.
The plaintiff filed his notice of appeal 15 days late. So the D.C. Circuit ordered the plaintiff to show why his appeal was timely. The plaintiff then explained that he was incarcerated and did not receive notice of the district court’s decision until after the appeal clock had run.
The D.C. Circuit concluded that this response, combined with the notice of appeal, was not effectively a motion to extend the appeal deadline under Federal Rule of Appellate Procedure 4(a)(5) or (6). The response did not indicate that the plaintiff wanted to extend the appeal deadline. And the response was filed in the D.C. Circuit, while only the district court has the power to extend the appeal deadline. The court of appeals also refused to forward the response to the district court, noting that “courts are not post offices.”
Ladeairous v. Garland, 2022 WL 3131173 (D.C. Cir. Aug. 5, 2022), available at the D.C. Circuit and Westlaw
New Cert Petition on District Court Jurisdiction During an Arbitration Appeal
A new cert petition asks if a district court retains jurisdiction to proceed when a defendant appeals from the denial of arbitration. The case is Coinbase, Inc. v. Bielski. The response is due September 2, 2022. In the meantime, the petitioners appear to have asked the Supreme Court to expedite consideration of the petition and possibly stay further proceedings in the district court and court of appeals to prevent the issue from becoming moot.
Joint Petition for a Writ of Certiorari, Coinbase, Inc. v. Bielski, No. 22-105 (July 29, 2022), available at the Supreme Court and Westlaw
Quick Notes
In Stewardson v. Biggs, the Seventh Circuit dismissed a fact-based qualified-immunity appeal. The case involved a failure-to-intervene claim, and the district court determined that a genuine factual issue existed as to whether the defendant had a realistic opportunity to prevent a use of force against the plaintiff. The district court accordingly denied qualified immunity. The defendant nevertheless appealed and argued that he did not have a sufficient opportunity. The Seventh Circuit recognized this argument as an improper attempt to dispute the factual basis for the immunity denial. The court of appeals accordingly dismissed the appeal for a lack of jurisdiction.
Stewardson v. Biggs, 2022 WL 3131817 (7th Cir. Aug. 5, 2022), available at the Seventh Circuit and Westlaw
In Mitchell v. Village Capital and Investment, LLC, the Eleventh Circuit determined that the district court erred in entering a partial judgment under Federal Rule of Civil Procedure 54(b). The district court did not explain its reasons for entering the partial judgment, saying only that there was “no just reason for delay.” Assessing for itself whether an immediate appeal was proper, the Eleventh Circuit concluded that it wasn’t. The district court had dismissed the claims against all but one of the defendants (and then entered a partial judgment on that dismissal). All that remained was a request for a default judgment against one remaining defendant. There was accordingly no pressing need or exceptional circumstance that warranted an immediate appeal.
Mitchell v. Village Capital and Investment, LLC, 2022 WL 3099263 (11th Cir. Aug. 4, 2022), available at the Eleventh Circuit and Westlaw
In United States v. Bernard, the Eighth Circuit heard an immediate appeal from a district court order denying the government’s request to dismiss several counts of an indictment. The Eighth Circuit had previously held that such a decision was appealable via the collateral-order doctrine.
United States v. Bernard, 2022 WL 3038356 (8th Cir. Aug. 2, 2022), available at the Eighth Circuit and Westlaw
And in Alchem USA Inc. v. Cage, the Third Circuit reviewed a decision on sealing records even though the underlying case was dismissed while the appeal was pending. So long as the documents at issue remained under the district court’s control, jurisdiction existed over them.
Alchem USA Inc. v. Cage, 2022 WL 3043153 (3d Cir. Aug. 2, 2022), available at the Third Circuit and Westlaw