The Week in Federal Appellate Jurisdiction: June 26–July 2, 2022

Last week, the Fifth Circuit addressed non-party discovery appeals and the time for appealing interlocutory orders. The Sixth Circuit allowed the disclaim-on-appeal tactic to save an appeal after some claims were dismissed without prejudice. That court also refused to relate forward a notice of appeal filed after a magistrate judge’s report and recommendation. And the Eighth Circuit dismissed a qualified-immunity appeal insofar as it challenged the factual basis for the immunity denial.

• A Split Fifth Circuit Rejected a Non-Party Discovery Appeal
• The Fifth Circuit on Appeal Deadlines for Interlocutory Orders
• The Sixth Circuit on Disclaiming Refiling to Save an Appeal After a Voluntary, Without-Prejudice Dismissal
• No Cumulative Finality for an Appeal After a Report & Recommendation
• The Eighth Circuit Partially Dismissed a Qualified-Immunity Appeal for Fact-Based Challenges to the Immunity Denial

A Split Fifth Circuit Rejected a Non-Party Discovery Appeal

In Leonard v. Martin, a split Fifth Circuit held that non-parties cannot use the collateral-order doctrine to immediately appeal discovery orders that reject a claim of undue burden. Other avenues for immediate review—certified appeals under 28 U.S.C. § 1292(b), writs of mandamus, and contempt appeals—were available. The majority accordingly concluded that collateral-order appeals were unnecessary to ensure meaningful review of orders denying motions to quash on undue-burden grounds. Judge Haynes dissented, contending that the discovery order in question implicated important issues that could not be effectively reviewed via other means. And she suggested that non-party status alone might be enough to warrant an immediate appeal.

The Fifth Circuit has some questionable caselaw on appealing discovery orders via the collateral-order doctrine. I think the court allows too many of these appeals. I’m glad to see a case going the other way.

For more on Leonard, see my post Non-Party Discovery Appeals & the Collateral-Order Doctrine in the Fifth Circuit.

Leonard v. Martin, 2022 WL 2353372 (5th Cir. June 30, 2022), available at the Fifth Circuit and Westlaw.

The Fifth Circuit on Appeal Deadlines for Interlocutory Orders

In Ueckert v. Guerra, the Fifth Circuit held that an appeal from the denial of qualified immunity was untimely, as it came 412 days after the district court’s bench ruling. In the course of doing so, the court explained that the defendant had 180 days to appeal this denial. That’s because the district court never set out its denial of immunity in a separate document. That denial was appealable and thus a judgment under Federal Rule of Civil Procedure 54(a). And most judgments must be set out in a separate document before the appeal clock begins running. Otherwise, the appeal clock begins running 150 days after the judgment. That’s what happened in Ueckert—the appeal clock began running 150 days after the immunity denial, at which point the defendant had 30 days to appeal.

As Ueckert explains, many (if not most) appealable interlocutory orders are not set out in a separate document. So treating appealable interlocutory orders as judgments gives litigants an immense—and, in the Fifth Circuit’s view, unreasonable—time to appeal interlocutory orders. The Rules Committee is aware of this problem. Yet it apparently hopes that courts will overlook it. The Fifth Circuit refused to do so. That means district courts can prevent these extended appeal windows only via “time-wasting paper-pushing, entering separate ‘judgments’ containing their holdings on every interlocutory motion that might be susceptible to appeal.” The Fifth Circuit accordingly called for the Rules Committee to take a look at the time for appealing interlocutory orders.

For more on Ueckert, see my post When Is an Interlocutory Order a Judgment?

Ueckert v. Guerra, 2022 WL 2300431 (5th Cir. June 27, 2022), available at the Fifth Circuit and Westlaw.

The Sixth Circuit on Disclaiming Refiling to Save an Appeal After a Voluntary, Without-Prejudice Dismissal

In Wesco Insurance Co. v. Roderick Linton Belfance, LLP, the Sixth Circuit held that a case was final once a party disclaimed the right to refile claims voluntarily dismissed without prejudice.

Simplifying a fair bit, the district court granted summary judgment to an insurer in a coverage dispute and resolved most of the other cross- and counterclaims. But the district court did not resolve all of them. The parties who brought these unresolved claims later voluntarily dismissed them without prejudice.

The Sixth Circuit thought that this created a finality problem. The voluntary, without-prejudice dismissal of some claims meant that those claims might be revived. And most courts say that this possibility of refiling means that there’s no final decision. But the parties in Wesco Insurance had solved the finality problem at oral argument by disclaiming the right to refile any of the voluntarily dismissed claims.

Wesco Insurance Co. v. Roderick Linton Belfance, LLP, 2022 WL 2376804 (6th Cir. July 1, 2022), available at the Sixth Circuit and Westlaw.

No Cumulative Finality for an Appeal After a Report & Recommendation

In Hoeltzel v. Smith (no slip opinion available), the Sixth Circuit refused to hear an appeal that was filed after a magistrate judge’s report and recommendation but before the district court adopted that report and recommendation. The magistrate judge’s report and recommendation was not a final, appealable decision. The notice of appeal was thus premature and ineffective. And the subsequent adoption of the report and recommendation did not save the premature notice of appeal. To be sure, Federal Rule of Appellate Procedure 4(a)(2) relates forward “[a] notice of appeal filed after the court announces a decision or order[, ] but before the entry of the judgment or order.” But most courts, including the Sixth Circuit, hold that Rule 4(a)(2) applies only to notices filed after decisions that would have been appealable if immediately followed by the entry of judgment. A magistrate judge’s report and recommendation doesn’t count.

Hoeltzel v. Smith, 2022 WL 2352404 (6th Cir. June 28, 2022), available at Westlaw.

The Eighth Circuit Partially Dismissed a Qualified-Immunity Appeal for Fact-Based Challenges to the Immunity Denial

Finally, in Torres v. City of St. Louis, the Eighth Circuit dismissed a qualified-immunity appeal insofar as the defendants challenged the factual basis for the immunity denial.

Simplifying a bit, the case involved a fatal police shooting. According to the district court, a reasonable jury could find that the decedent was unarmed and thus did not fire at the officers. The district court accordingly denied the officers’ request for qualified immunity.

The officers nevertheless appealed. In that appeal, the officers argued their own set of events. They relied on their own testimony that the decedent was armed and fired at them. And they argued that evidence to the contrary was inadmissible. The Eighth Circuit recognized this argument as one that challenged only the sufficiency of the evidence and the genuineness of fact disputes. Those issues were outside of the Eighth Circuit’s appellate jurisdiction.

Torres v. City of St. Louis, 2022 WL 2374560 (8th Cir. July 1, 2022), available at the Eighth Circuit and Westlaw.