The Week in Federal Appellate Jurisdiction: March 13–19, 2022

There are only two decisions to discuss from last week. The Fifth Circuit held that it could review an order that (among other things) remanded a claim to an administrative agency. Because the district court was done with the case, the decision was a final one. And the D.C. Circuit granted a petition to appeal under Federal Rule of Civil Procedure 23(f). In its order doing so, the court directed the parties to address whether the court of appeals had pendent appellate jurisdiction to also review an order concerning a collective action under the Fair Labor Standards Act.

• An Odd (but Intriguing) Administrative-Remand Decision in the Fifth Circuit
• Pendent Appellate Jurisdiction & Rule 23(f) Class-Certification Appeals

An Odd (but Intriguing) Administrative-Remand Decision in the Fifth Circuit

In Vista Health Plan, Inc. v. U.S. Department of Health & Human Services, the Fifth Circuit reviewed a challenge to federal regulations even though one of the plaintiff’s claims had been remanded to the agency.

Vista Health involved a challenge to regulations that redistribute actuarial risk among health-insurance plans. The plaintiff sued the Department for Health and Human Services, arguing that the regulations were invalid on a number of grounds. The district court eventually granted summary judgment for the Department on eight of the nine grounds. As for the ninth—a procedural due-process claim—the district court remanded the claim to the Department. The plaintiff then appealed.

The Fifth Circuit concluded that it had jurisdiction over the appeal. A district court order remanding a dispute to an agency for further adjudication is normally not final. But the Fifth Circuit thought that the general rule did not apply. The district court had ended the litigation, closed the case, and had nothing left to do. And the plaintiff did not challenge the remand order on appeal. The court of appeals thought that this amounted to a final, appealable decision.

Vista Health is an odd case. The administrative-remand rule generally holds that orders remanding a dispute to an agency are not final. The main exception to this general rule applies when the lack of an immediate appeal might leave a party (normally the government) without any chance for appellate review. Vista Health doesn’t fit that exception.

Still, the Fifth Circuit might be on to something. I’ve long had my doubts about the administrative-remand rule, as the district court proceedings are done. Granted, there might be further proceedings in the agency and then again in the district court, and those proceedings might produce an appeal, too. But when it comes to appeals at or near the end of district court proceedings, it might be better—simpler, clearer, and more straightforward—to ask only whether the district court is done.

Vista Health Plan, Inc. v. U.S. Department of Health & Human Services, 2022 WL 807554 (5th Cir. Mar. 17, 2022), available at the Fifth Circuit and Westlaw.

Pendent Appellate Jurisdiction & Rule 23(f) Class-Certification Appeals

In In re Medical Transportation Management, Inc. (no PDF available), the D.C. Circuit granted a Federal Rule of Civil Procedure 23(f) petition to appeal a class-certification decision. The court also asked the parties to address whether it should extent pendent appellate jurisdiction over the district court’s decision concerning a collective action under the Fair Labor Standards Act.

This will be interesting to watch. I imagine few courts of appeals would deem the propriety of a FLSA collective action a proper subject for pendent appellate jurisdiction. But the D.C. Circuit has what is probably the most liberal standard for extending pendent appellate jurisdiction.

In re Medical Transportation Management, Inc., 2022 WL 829169 (D.C. Cir. Mar. 17, 2022), available at Westlaw.