Lots to talk about from last week, including the scope of remand appeals, restarting the § 1292(b) clock, appealing after dismissals without prejudice, and more.
July 14, 2020
Last week was eventful. The Tenth Circuit joined the Fourth and Ninth Circuits in holding that an exception to § 1447(d)’s bar on reviewing remand orders allowed review of only the expressly excepted grounds for removal. All three of those decisions could be on their way to the Supreme Court. In a case involving service of process via Twitter on a former head of state, the D.C. Circuit joined the Seventh Circuit (and disagreed with the long-standing caselaw of several other circuits) in holding that district courts cannot restart the time for seeking a § 1292(b) appeal by recertifying an order. The Fifth and Ninth Circuits each applied their peculiar rules for appealing when some claims have been dismissed without prejudice. The Fifth Circuit addressed a district court’s jurisdiction to accept an amended pleading when a notice of appeal has been filed. The Ninth Circuit tackled a remand appeal involving the required joinder of a non-diverse party. And the First Circuit reaffirmed its rule that defendants can appeal restitution orders before the district court specifies the amount of restitution. Plus an improper qualified-immunity appeal, the administrative-remand rule, appealing the denial of a motion to seal, and finality in bankruptcy.
- The Tenth Circuit Thoroughly Rejected a Broad Scope for Remand Appeals
- The D.C. Circuit Held That District Courts Cannot Restart § 1292(b)’s Window for Petitioning to Appeal by Recertifying Their Orders
- The Fifth Circuit Applied Its Odd Rule for Appealing After a Dismissal Without Prejudice
- The Ninth Circuit Applied Its Own Peculiar Rule for Appealing After a Dismissal Without Prejudice
- The Fifth Circuit on Amending Pleadings After a Notice of Appeal and Appealing Interlocutory Non-Decisions
- The Ninth Circuit on Appealing Rule 19-Based Remands
- The First Circuit Reaffirmed That Defendants Can Appeal Restitution Orders of an Unspecified Amount
- Last Week’s Improper Qualified-Immunity Appeal
- Quick Notes
The Tenth Circuit Thoroughly Rejected a Broad Scope for Remand Appeals
In Board of County Commissioners v. Suncor Energy (U.S.A.) Inc., the Tenth Circuit held that it when an exception to the general bar on remand appeals applies, the court can review only the expressly excepted grounds for removal. 28 U.S.C. § 1447(d) generally prohibits appellate review of orders remanding an action to state court. But it includes two express exceptions: when an action is removed under the federal-officer or civil-rights removal statutes. Recent climate-change litigation has required the courts of appeals to address the scope of remand appeals when one of those exceptions applies. In two recent decisions, the Fourth and Ninth Circuits held that the scope of appellate review encompasses only the exceptions; the court of appeals cannot address any other proffered ground for removal. In Suncor Energy, the Tenth Circuit agreed in what is probably the most thorough recent analysis of the issue. But a circuit split exists on the scope of remand appeals. Given the split and the high-profile nature of these recent cases, the issue might be on its way to the Supreme Court.
For more, see my post from last week: The Tenth Circuit on the Scope of § 1447(d) Remand Appeals.
Board of County Commissioners v. Suncor Energy (U.S.A.) Inc., 2020 WL 3777996 (10th Cir. July 7, 2020), available at the Tenth Circuit and Westlaw.
The D.C. Circuit Held That District Courts Cannot Restart § 1292(b)’s Window for Petitioning to Appeal by Recertifying Their Orders
In Strange v. Islamic Republic of Iran, the D.C. Circuit held that district courts cannot “recertify” an order and thereby restart the ten-day window for seeking permission to appeal under 28 U.S.C. § 1292(b). The district court in Strange had rejected the plaintiffs’ efforts to serve process on former President of Afghanistan Hamid Karzai via Twitter. The district court also certified that decision for an immediate appeal. But the plaintiffs missed the deadline for filing their petition to appeal. So the district court recertified its decision and the plaintiffs filed a timely petition. The D.C. Circuit held that this practice of recertifying orders was nothing more than an improper attempt to extend the deadline for seeking permission to appeal under § 1292(b). That deadline is jurisdictional, and courts cannot extend it. So the recertification was ineffective, and the petition to appeal was late.
The D.C. Circuit thus joined the Seventh Circuit in rejecting the tactic of restarting the § 1292(b) clock by recertifying an order. Until recently, several other courts (and Federal Practice & Procedure) have sanctioned this tactic. But courts have had to reexamine the issue in light of the Supreme Court’s recent efforts to delineate which rules are (and aren’t) jurisdictional. For now, a circuit split exists. But other circuits will probably have to wrestle with this issue soon.
For more, see my post from this morning: Another Court Says No Restarting the § 1292(b) Clock.
Strange v. Islamic Republic of Iran, 2020 WL 3886202 (D.C. Cir. July 10, 2020), available at the D.C. Circuit and Westlaw.
The Fifth Circuit Applied Its Odd Rule for Appealing After a Dismissal Without Prejudice
In Firefighters’ Retirement System v. Citco Group Ltd., the Fifth held that the district court had not issued a final, appealable decision when claims against one defendant had been dismissed without prejudice. To appeal, the plaintiffs needed to obtain a certification under Federal Rule of Civil Procedure 54(b) (and will presumably be allowed to do so). Firefighters’ Retirement is thus another illustration of the Fifth Circuit’s foolish finality trap. Unlike other recent finality-trap cases, the dismissal without prejudice in Firefighters’ Retirement came between with-prejudice dismissals. But the plaintiffs were trying to appeal a district court decision that came before the dismissal without prejudice. And that was enough to preclude finality. The Fifth Circuit declined to address what would happen if claims were dismissed without prejudice before the decision that a party sought to appeal.
For more, see my post from last week: Further Finality Follies From the Fifth Circuit.
Firefighters’ Retirement System v. Citco Group Ltd., 2020 WL 3729322 (5th Cir. July 7, 2020), available at the Fifth Circuit and Westlaw.
The Ninth Circuit Applied Its Own Peculiar Rule for Appealing After a Dismissal Without Prejudice
In E.R.E. Ventures, LLC v. David Evans & Associates, the Ninth Circuit applied its rule that a district court must be meaningfully involved in the without-prejudice dismissal of outstanding claims for the decision to be final and appealable.
The plaintiffs in E.R.E. Ventures sued several defendants seeking contribution towards environmental cleanup. The district court granted summary judgment for two of the defendants, dismissing the claims against them. We’ll call them the “involuntarily dismissed defendants.” Shortly thereafter, the plaintiffs and remaining defendants stipulated to voluntarily dismiss the remaining claims without prejudice. The plaintiffs then tried to appeal the grant of summary judgment to the involuntarily dismissed defendants.
A few months ago, in Galaza v. Wolf, the Ninth Circuit held voluntary dismissals without prejudice are not appealable if the district court has no meaningful involvement in the dismissal. That is, the district court must approve of the voluntary dismissal. Galaza concluded that district court involvement was necessary to “offer a clear indication of finality, which would avoid confusing the parties and the public.” (Cleaned up.)
In E.R.E. Ventures, “[t]he district court did not approve the stipulation or otherwise participate in the voluntary dismissal.” It instead “simply entered a minute order noting that the case ‘should have been closed on entry date 10/31/2018.’” The district court’s participation was thus insufficient to create appellate jurisdiction. And unlike Galaza, there was some evidence that the plaintiffs in E.R.E. Ventures intended to manipulate appellate jurisdiction: “Correspondence between the parties reflected that [the plaintiff] was adamant about conditioning its stipulation to dismiss on retaining the ability to revive its claims depending on the outcome of the appeal.”
E.R.E. Ventures, LLC v. David Evans & Associates, 2020 WL 3832173 (9th Cir. July 8, 2020), available at the Ninth Circuit and Westlaw.
The Fifth Circuit on Amending Pleadings After a Notice of Appeal and Appealing Interlocutory Non-Decisions
In Wooten v. Roach, the Fifth Circuit had to untangle a few jurisdictional issues on its way to reviewing prosecutorial immunity in a Texas judge’s suit against other Texas government officials.
After being elected to a state judgeship, the plaintiff in Wooten was investigated, prosecuted, and eventually convicted for several crimes. But her conviction was vacated via a state habeas petition. The plaintiff then sued several attorneys from the local district attorney’s office and the state Attorney General’s office. She alleged that her prosecution was politically motivated and corrupt; it was instigated by the incumbent judge she had defeated and motivated by disagreement with some of her rulings in criminal cases.
The defendants moved to dismiss the complaint, asserting absolute prosecutorial immunity, qualified immunity, and state-law official immunity. The district court largely denied the request for prosecutorial immunity. As for qualified immunity, the district court declined to rule; the plaintiff intended to amend her complaint, and the court wanted to address qualified immunity after seeing the new complaint. For the same reasons, the district court did not rule on the request for official immunity under state law. The defendants then filed a notice of appeal. The plaintiff filed an amended complaint the next day. And that amended complaint added allegations relevant to both absolute and qualified immunity.
The Fifth Circuit had to address three jurisdictional issues before it could reach the defendants’ appeal.
The court first held that the amended complaint was invalid and thus did not moot the appeal. Once a notice of appeal has been filed, a district court lacks jurisdiction to accept an amended complaint that would affect the appeal. And the plaintiff’s amended complaint would significantly alter the appeal; the defendants’ prosecutorial and official immunities turned on the facts that the plaintiff alleged. The district court thus lacked jurisdiction to accept the amended complaint. So the amended complaint did not supersede the complaint on which the defendants sought immunity, and the appeal was not moot.
Second, the Fifth Circuit held that it lacked jurisdiction to review the defendants’ entitlement to qualified immunity. The defendants argued that the district court’s declining to rule on qualified immunity effectively denied immunity, and denials of qualified immunity are immediately appealable. Courts have held that a district court decision declining to address immunity can be immediately appealed. But, the Fifth Circuit noted, district courts can decline to rule on qualified immunity in different ways. If a district court refuses the address the issue at all, that’s an effective denial of immunity and therefore appealable. The district court in Wooten only delayed ruling on qualified immunity until after the plaintiff amended her complaint. That was not an effective denial and thus not appealable.
Finally, the Fifth Circuit held that it lacked jurisdiction to address two defendants’ entitlement to official immunity under state law for the same reasons the court lacked jurisdiction to address qualified immunity.
On the merits, the Fifth Circuit reversed the denial of prosecutorial immunity for some defendants.
Wooten v. Roach, 2020 WL 3638385 (5th Cir. July 6, 2020), available at the Fifth Circuit and Westlaw.
The Ninth Circuit on Appealing Rule 19-Based Remands
In DeMartini v. DeMartini, the Ninth Circuit held that it lacked jurisdiction to review a decision severing and remanding a claim to state court due to the need to join a non-diverse party.
DeMartini involved a suit between brothers and their spouses over the payment of a mortgage. Although originally filed in state court, the defendants removed the case to federal court on diversity grounds. The district court later allowed the plaintiffs to amend their complaint to add a new defendant for their partnership-dissolution claim. Oddly enough, this new defendant was one of the plaintiffs but in his capacity as a trustee. This was a problem:
Adding [the trustee] as a defendant not only causes a curious scenario in which [the plaintiff] in his individual capacity is potentially adverse to himself in his capacity as trustee; it also destroys the previously complete diversity of the parties.
The district court determined that (under Federal Rule of Civil Procedure 19) the plaintiff-as-trustee needed to be a defendant for the dissolution claim to proceed. But rather than dismiss that claim, the district court severed it and remanded it to state court. After the remaining claims were resolved via summary judgment or at trial, the defendants sought to appeal the order amending, severing, and remanding the dissolution claim.
The Ninth Circuit held that it lacked jurisdiction to review the remand. The district court had exercised authority granted to it in 28 U.S.C. § 1447(e), which allows district courts to remand a removed action if a non-diverse party is added after removal. As the Ninth Circuit explained, § 1447(e) “addresses a lacuna in Federal Rule of Civil Procedure 19”:
When the joinder of a required party is not feasible because it would deprive the district court of subject-matter jurisdiction, Rule 19 directs the court to “determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.” Section 1447(e) allows a third option: remand back to state court.
Another part of § 1447—subsection (d)—generally bars appellate review of remand orders. And the Ninth Circuit has held that § 1447(d) applies to remands under § 1447(e). Although § 1447(e) gives the district court discretion to permit or deny the joinder of the non-diverse party, remand is mandatory once joinder is allowed. So like other mandatory remands, remands under § 1447(e) are unreviewable on appeal.
DeMartini v. DeMartini, 2020 WL 3636345 (9th Cir. July 6, 2020), available at the Ninth Circuit and Westlaw.
The First Circuit Reaffirmed That Defendants Can Appeal Restitution Orders of an Unspecified Amount
In United States v. Chin, the First Circuit held that it could review a restitution order even though the district court had not determined the amount of restitution.
Chin stemmed from the production of defective medicine at the New England Compounding Center. The defendant was the supervising pharmacist at the Center and was convicted on numerous counts of racketeering, fraud, and violating the Food, Drug, and Cosmetic Act. As relevant to the present discussion, the district court determined at sentencing that restitution was mandatory for the hospitals and clinics that purchased defective drugs. But it held that patients and insurers were not victims of the fraud and thus not entitled to restitution. The district court also declined to set the amount of restitution. It preferred to wait until after the trial of other defendants so that restitution could be apportioned among those found guilty. The United States then appealed the restitution decision.
The First Circuit held that it had jurisdiction to review the restitution decision even though the amount of restitution was not yet set. In United States v. Cheal, the First Circuit held that an order imposing restitution was final and appealable, even if the order was “preliminary”—i.e., only generally imposed restitution and did not set the amount or recipients. The court in Chin saw no reason to deviate from that decision. The two recent Supreme Court cases on restitution appeals—Manrique v. United States and Dolan v. United States—did not address jurisdiction over preliminary restitution orders. And neither party argued that Manrique or Dolan required a different approach. The First Circuit accordingly adhered to Cheal and reviewed the preliminary restitution order.
United States v. Chin, 2020 WL 3868255 (1st Cir. July 9, 2020), available at the First Circuit and Westlaw.
Last Week’s Improper Qualified-Immunity Appeal
In Shannon v. Jones, the Ninth Circuit dismissed a fact-based qualified-immunity appeal.
Shannon arose from a police shooting, and the district court denied the defendants’ request for qualified immunity on an excessive-force claim. The defendants then appealed. But in that appeal, “the [defendants] challenge the district court’s determination that there were genuine disputes of material fact and argue that, under their version of the facts, the [defendants] did not unreasonably use force in violation of ‘clearly established’ law.”
That’s improper. In an appeal from the denial of qualified immunity at summary judgment, the court of appeals cannot review the genuineness of any fact disputes—i.e., whether the district court properly concluded that there was enough evidence for a reasonable jury to find certain facts. The court of appeals can address only whether those facts, which the district court assumed to be true for purposes of denying summary judgment, make out a clearly established violation of federal law. The defendants in Shannon did not argue that they were entitled to immunity under the district court’s version of the facts. So there was nothing for the Ninth Circuit to address.
Shannon v. Jones, 2020 WL 3889598 (9th Cir. July 10, 2020), available at the Ninth Circuit and Westlaw.
Quick Notes
In Crow Indian Tribe v. United States, the Ninth Circuit applied the administrative-remand rule to hear an appeal from an order remanding a dispute to the Fish and Wildlife Service. The litigation sprang from the Service’s rule that removed the grizzly bear from protection under the Endangered Species Act. In a challenge to that rule, the district court found three deficiencies in the Service’s analysis and remanded for further proceedings. Both the Service and intervenors who supported the rule appealed.
Although remands for further agency proceedings are normally not final, the Ninth Circuit held that it had jurisdiction. The Service could not appeal its own rulemaking. So if it followed the district court’s guidance on remand, it would not be able to then appeal its own decision to and obtain appellate review of whether that the guidance was improper. For there to be any appellate review of the district court’s decision, it had to be immediate.
In Uniloc 2017 LLC v. Apple, Inc., the Federal Circuit held that it could review via the collateral-order doctrine an order denying a motion to seal.
The district court in Uniloc denied the plaintiffs’ motion to seal, concluding that the plaintiffs had filed an overbroad request to seal and then had used a reconsideration motion to make a narrower request. The plaintiffs then tried to appeal those decisions.
The collateral-order doctrine permits appeals from orders that (1) conclusively resolve an issue, (2) present an important issue that is completely separate from the merits, and (3) would be effectively unreviewable in an appeal from a final judgment. The Federal Circuit held that denials of motions to seal satisfy all of these requirements:
There is no question that the district court’s orders conclusively determined that [the plaintiff]’s purportedly confidential filings should be made public; there is likewise no dispute that they present an important issue—separate from the merits of the underlying action—because they address the scope of a court’s discretion to deny, in full, a litigant’s sealing motion based upon its failure to comply with procedural rules. Finally, the orders are “effectively unreviewable on appeal from a final judgment because once the parties’ confidential information is made publicly available, it cannot be made secret again.”
And in In re Nicolaus, the Eighth Circuit held that a bankruptcy court’s vacating a prior order disallowing a claim was final and appealable.
Nicolaus involved a claim in bankruptcy by the IRS against a debtor, and the debtor succeeded in having the IRS’s claim disallowed. Nearly a year later, the IRS moved to vacate the order disallowing its claim, arguing that the bankruptcy court lacked personal jurisdiction over the IRS because the IRS had not been properly served with notice of the objection to its claim. The bankruptcy court granted that motion, and the debtor appealed.
The Eighth Circuit noted that a final decision in bankruptcy requires the definitive disposal of a discrete dispute. Here, the objection to the IRS’s proof of claim was a discrete matter. And the order rejecting the objection definitively resolved that dispute. So the decision was final, and the court had jurisdiction over the appeal.
Crow Indian Tribe v. United States, 2020 WL 3831636 (9th Cir. July 8, 2020), available at the Ninth Circuit and Westlaw.
Uniloc 2017 LLC v. Apple, Inc., 2020 WL 3865275 (July 9, 2020), available at the Federal Circuit and Westlaw.
In re Nicolaus, 2020 WL 3634744 (8th Cir. July 6, 2020), available at the Eighth Circuit and Westlaw.