The Week in Federal Appellate Jurisdiction: March 7–13, 2021

There’s a lot to talk about from last week. The Federal Circuit said that it could use mandamus to review the decision to institute inter partes review in patent cases. Several decisions addressed the content requirements for a notice of appeal, including a Second Circuit decision on the failure of named class members to appeal alongside the class representatives. Other decisions addressed appeals under the collateral-order doctrine, including a Federal Circuit decision on orders unsealing a complaint containing allegedly confidential information. The Fifth Circuit addressed its jurisdiction to review orders requiring an in-person guilty plea as well as decisions ordering a criminal defendant released from ICE custody due to her release on bail. That court also split over the existence of a Rule 58 judgment in a case. Plus the effect of pro se, post-judgment motions by represented parties on the appeal timeline, and a Bivens appeal.

But first some hypothetical jurisdiction, which the First Circuit used to avoid deciding whether a criminal defendant can appeal an order refusing to strike a “Death Notice” in a death-penalty case.

• The First Circuit Used Hypothetical Jurisdiction to Avoid Determining the Appealability of a Refusal to Strike an Untimely Death Notice
• The Federal Circuit Dismissed an Appeal from the Denial of Inter Partes Review but Said Mandamus Could Be Available
• The Second Circuit Required Naming Individual, Participating Members of a Class Action in a Notice of Appeal
• The Fifth Circuit Lacked Jurisdiction to Review an Order Requiring an In-Person Guilty Plea
• The Fifth Circuit on Orders Directing Defendants on Bail Released from ICE Custody
• The Federal Circuit on Appealing an Order Unsealing a Complaint
• The Fifth Circuit Split on the Existence of a Separate Rule 58 Judgment
• The Ninth Circuit Held that a Notice of Appeal Designating a Final Judgment Included a Prior Partial Grant of Summary Judgment
• Quick Notes

The First Circuit Used Hypothetical Jurisdiction to Avoid Determining the Appealability of a Refusal to Strike an Untimely Death Notice

In United States v. Pedró-Vidal, the First Circuit heard an appeal from an order refusing to strike an untimely Death Notice, though it refused to weigh in on whether those orders are immediately appealable.

The defendant in Pedró-Vidal was charged with a triple homicide. Those offenses were punishable by death, but the U.S. Attorney General had to authorize the prosecution to seek the death penalty. At the district court’s direction, the defendant obtained counsel qualified to handle a death-penalty case. And the parties appeared before the Attorney General’s Capital Review Committee. But a local rule “require[d] the federal government to file a notice of intent to seek the death penalty”—what the case calls a “Death Notice”—“within 180 days of an indictment containing a death-eligible offense if the government seeks that penalty.” By the time the Attorney General authorized use of the death penalty and the government filed its notice, more than 180 days had passed. The defendant accordingly moved to bar the government from seeking the death penalty. The district court denied that request, and the defendant appealed.

The First Circuit avoided answering whether it had jurisdiction to review the refusal to strike an untimely Death Notice via the collateral-order doctrine. Under that doctrine, a district court decision is deemed final and appealable if it (1) conclusively resolves an issue, (2) involves an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal after a final judgment. The courts have split on this issue. Two circuits—the Fourth and Eleventh—have held that defendants can “vindicate their purported right to not face a capital trial absent adequate notice” via an immediate appeal. The Second Circuit has disagreed, deeming the notice requirement akin to “other pre-trial rights which are not subject to interlocutory review under the collateral order doctrine.”

The First Circuit ducked the issue via its hypothetical-jurisdiction doctrine, which the court uses to avoid statutory-jurisdiction questions when it can resolve the case against the party invoking federal jurisdiction:

The long-standing rule in this circuit is that “bypassing jurisdictional questions to consider the merits is appropriate where, as here, the jurisdictional question is statutory” and does not arise under Article III of the federal constitution.

The First Circuit rejected the defendant’s challenge on the merits—much of the delay was attributable to the defendant, and he could not show prejudice from the delayed notice. So there was no need to resolve whether the decision was immediately appealable.

United States v. Pedró-Vidal, 2021 WL 912302 (1st Cir. Mar. 10, 2021), available at the First Circuit and Westlaw.

The Federal Circuit Dismissed an Appeal from the Denial of Inter Partes Review but Said Mandamus Could Be Available

In Mylan Laboratories Ltd. v. Janssen Pharmaceutica, N.V., the Federal Circuit held that parties cannot appeal a Patent Trial and Appeal Board decision refusing to institute inter partes review, though they might obtain review via mandamus.

Mylan Laboratories was a patent-infringement suit. Shortly after the suit began, the defendant petitioned the Patent Trial and Appeal Board for inter partes review. Simplifying (quite) a bit, inter partes review is a proceeding before the Board to adjudicate the validity of a patent. Anyone besides the patent owner can petition the Board to institute the review process. And certain requirements must be met for inter parties review to be proper. The Board declined to institute review in Mylan Laboratories. The defendant then tried to appeal.

The Federal Circuit held that it lacked jurisdiction. To be sure, 28 U.S.C. § 1295(a)(4) gives the Federal Circuit jurisdiction to review Board decisions “with respect to . . . inter partes review.” But the statute governing inter partes review places limits on those appeals: 35 U.S.C. § 314(d) says that “[t]he determination . . . whether to institute an inter partes review under this section shall be final and nonappealable.” So there could be no appeal from the Board’s decision.

The Federal Circuit also denied mandamus, though it first had to address its jurisdiction to do so. The court concluded that it could entertain a mandamus petition concerning the denial of inter partes review, despite § 314(d). Courts of appeals can use mandamus to protect their “prospective jurisdiction.” That jurisdiction cannot be read too broadly; if every event that might lead to an appeal before the Federal Circuit brought a case within the court’s prospective jurisdiction, that jurisdiction “would be boundless.” “But when a party has at least taken the first preliminary step that might lead to appellate jurisdiction in [that] court in the future, prospective jurisdiction has been triggered.” And the Federal Circuit has “exclusive jurisdiction over any permissible appeal from a final decision of the Board in an” inter partes review.

The court added that § 314(d) says nothing about mandamus. The Federal Circuit thus saw no reason to think that § 314(d) deprived the court of mandamus jurisdiction:

In fact, when the Board denies institution, our mandamus jurisdiction is especially important. Like unreasonable delay of agency action, a decision denying institution defeats our prospective jurisdiction. A decision denying institution prevents the Board from issuing any final decision that falls within our direct appellate jurisdiction. We must, therefore, be able to protect our prospective jurisdiction through mandamus.

(Cleaned up.)

Mylan Laboratories Ltd. v. Janssen Pharmaceutica, N.V., 2021 WL 936345 (Fed. Cir. Mar. 12, 2021), available at the Federal Circuit and Westlaw.

The Second Circuit Required Naming Individual, Participating Members of a Class Action in a Notice of Appeal

In Cho v. BlackBerry Ltd., the Second Circuit held that named class members must be specified in a notice of appeal to perfect an appeal; they cannot rely on appeals by the class representatives or other named class members.

Simplifying a bit, Cho began as one of several purported class actions against BlackBerry, alleging that corporate leadership made misstatements about the Z10 smartphone that artificially inflated BlackBerry’s stock price. The suits were consolidated, the district court appointed lead plaintiffs, and those lead plaintiffs filed an amended complaint. The plaintiffs in Cho—who unsuccessfully sought to be appointed as lead plaintiffs—joined that subsequent complaint as “individual additional plaintiffs.” The district court eventually dismissed the amended complaint.

The lead plaintiffs appealed on behalf of the class. But the notice of appeal named only the lead plaintiffs and designated them as representatives of the class; it did not name the individual Cho plaintiffs. The Second Circuit reversed, holding that the district court should have granted leave to amend. On remand, the lead plaintiffs filed another amended complaint. And the Cho plaintiffs tried to participate in the suit. But the district court held that the Cho plaintiffs’ claims were now barred by res judicata: “unlike the rest of the class, they failed to appeal the district court’s earlier dismissal of their complaint, and . . . as a result the earlier judgment was now final as to them.” The Cho plaintiffs appealed.

The Second Circuit affirmed, holding that the Cho plaintiffs did not successfully appeal the dismissal of the complaint. Federal Rule of Appellate Procedure 3(c) requires that a notice of appeal specify the appealing parties. The requirement isn’t absolute; “an attorney representing more than one party may describe those parties with such terms as ‘all plaintiffs,’ ‘the defendants,’ ‘the plaintiffs A, B, et al.,’ or ‘all defendants except X’.” But the Cho plaintiffs were not named in the notice. Counsel for the lead plaintiffs did not represent the Cho plaintiffs. And although the Cho plaintiffs’ counsel signed the notice, it did so as “Additional Counsel for Lead Plaintiffs and the Class,” not as counsel for the Cho plaintiffs.

Nor did Rule 3(c)(3) save the Cho plaintiffs. That subsection provides that “[i]n a class action, whether or not the class has been certified, the notice of appeal is sufficient if it names one person qualified to bring the appeal as representative of the class.” But that section covers only unnamed class members that the appealing parties purport to represent. “[I]t does not include individual named plaintiffs, who have appeared in the case as distinct parties separate from the class members represented by lead plaintiffs, and who, as in any other case, must appeal individually.” The Cho plaintiffs, though members of the putative class, chose to proceed as individuals.

The Cho plaintiffs thus did not appeal from the earlier dismissal of the complaint. Failure to do so rendered that decision final as to them. So res judicata barred them from further pursuing their claims.

Cho v. BlackBerry Ltd., 2021 WL 922756 (2d Cir. Mar. 11, 2021), available at CourtListener and Westlaw.

The Fifth Circuit Lacked Jurisdiction to Review an Order Requiring an In-Person Guilty Plea

In United States v. Emakoji, the Fifth Circuit held that a district court order requiring an in-person guilty plea was not immediately appealable via the collateral-order doctrine.

Simplifying a bit, the defendant in Emakoji was charged with participating in a “romance scheme”—using “bogus social media profiles to lure lonely women and men into romantic relationships and request money from the victims under materially false pretenses.” The fraud was committed in the Northern District of Texas. But the defendant was arrested in Alabama, where he was then released on bail. The defendant eventually agreed to plead guilty. But due to the risks of COVID-19, the defendant did not want to travel to Texas for his plea, wanting instead to enter his plea via a video conference. The Texas district court refused and ordered an in-person plea. The district court also required that the defendant obtain housing within the Northern District of Texas. The defendant then appealed.

The Fifth Circuit held that it lacked jurisdiction to review the order denying a remote guilty plea. The only potential ground for jurisdiction was the collateral-order doctrine. Under that doctrine, a district court decision is deemed final and appealable if it (1) conclusively resolves an issue, (2) involves an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal after a final judgment. The Fifth Circuit noted that it rarely applies the collateral-order doctrine in the criminal context. And it saw no reason to do so in Emakoji. The order denying a remote guilty plea did not fall into any of the categories of decisions to which the Fifth Circuit had previously applied the collateral-order doctrine. And the court refused to create an additional category, particularly since the decision at issue did not involve the potential deprivation of a constitutional or statutory right.

The Fifth Circuit did, however, have jurisdiction over the order requiring the defendant to obtain housing within the Northern District of Texas. Detention orders are immediately appealable via 18 U.S.C. § 3145(c). And as to that housing order, the Fifth Circuit affirmed. Also of note, Judge Elrod dissented in part, contending that the housing order was not yet ripe for review.

United States v. Emakoji, 2021 WL 871201 (5th Cir. Mar. 9, 2021), available at the Fifth Circuit and Westlaw.

The Fifth Circuit on Orders Directing Defendants on Bail Released from ICE Custody

In United States v. Baltazar-Sebastian, the Fifth Circuit held that it had jurisdiction to review an order directing a defendant released from immigration custody pending criminal proceedings.

Simplifying a little, the defendant in Baltazar-Sebastian was charged with misusing a social security number. The district court ordered the defendant released on bond. But Immigrations and Customs Enforcement then seized the defendant, as the agency had charged her with being inadmissible. So the defendant sought clarification from the district court: did its order releasing her on bail preclude ICE detention? The district court ruled that it did and ordered the defendant released from ICE custody. The government then appealed.

On appeal, an amicus raised a potential jurisdictional defect. The government normally has 30 days to appeal in criminal case. But the government did not appeal within 30 days of the initial release order. It instead waited until the subsequent enforcement of that order, which came a few months later.

The Fifth Circuit held that it had jurisdiction over the appeal. Under the Bail Reform Act, the government may appeal from “a release or detention order” in accordance with 18 U.S.C. § 3731. And under § 3731, the government may appeal from an order “granting the release of a person charged with or convicted of an offense.” Section 3731 further says that its provisions “shall be liberally construed to effectuate its purposes.”

The Fifth Circuit concluded that the initial release order was not appealable; it was issued by a magistrate judge, not the district court. The later enforcement order “was the district court’s affirmation of the [initial] release order in response to defendant’s motion to clarify her release status.” The release order thus did not become appealable until the subsequent enforcement order. That meant the government’s appeal was timely, and the court had appellate jurisdiction.

On the merits, the Fifth Circuit held that the bail order did not preclude ICE detention.

United States v. Baltazar-Sebastian, 2021 WL 912733 (5th Cir. Mar. 10, 2021), available at the Fifth Circuit and Westlaw.

The Federal Circuit on Appealing an Order Unsealing a Complaint

In DePuy Synthes Products Inc. v. Veterinary Orthopedic Implants, Inc., the Federal Circuit held that an order unsealing a complaint is immediately appealable via the collateral-order doctrine.

Simplifying a bit, DePuy Synthes involved a patent dispute over veterinary orthopedic implants. When the plaintiff sought to file an amended complaint, an issue arose as to whether the new complaint contained confidential information. The district court ultimately held that it didn’t. The court accordingly ordered that the complaint be filed, un-redacted, on the public record. The defendant—who wanted parts of the complaint redacted—appealed.

The Federal Circuit held that the decision was appealable via the collateral-order doctrine. That doctrine deems otherwise interlocutory orders final so long as (1) the order conclusively resolves an issue, (2) the order involves an important issue that is separate from the merits, and (3) the order would be effectively unreviewable in an appeal after a final judgment. The Federal Circuit determined that the complaint-unsealing order satisfied all three requirements. First, the order conclusively determined that the information in the complaint should be public. Second, the sealing issue was separate from the patent-infringement claim and implicated the “important balance between the public’s interest in understanding judicial proceedings and the parties’ right to access the courts without being unduly required to disclose confidential information.” (Quotation marks omitted.) And third, the order could not be reviewed later, as the allegedly confidential information would have been disclosed and forever lost its secrecy.

The Federal Circuit also distinguished this scenario from the run-of-the-mill discovery dispute over the release of allegedly confidential material. Those discovery orders generally affect only the parties to the discovery dispute. “Here, by contrast, the district court’s order implicates the public’s right to access judicial filings on the public docket.” The Federal Circuit found “this right sufficiently important to distinguish this case from cases involving routine discovery orders governing disclosures between parties to a case.”

DePuy Synthes Products Inc. v. Veterinary Orthopedic Implants, Inc., 2021 WL 936348 (Fed. Cir. Mar. 12, 2021), available at the Federal Circuit and Westlaw.

The Fifth Circuit Split on the Existence of a Separate Rule 58 Judgment

In United States v. Mtaza, a split panel of the Fifth Circuit held that a district court’s summary-judgment decision did not constitute a Rule 58 judgment.

After the defendant in Mtaza was convicted of fraud and identity theft, he sought return of his property under Federal Rule of Criminal Procedure 41(g). The district court granted summary judgment to the government. (The Fifth Circuit treats Rule 41(g) proceedings as “a new civil proceeding in equity,” so civil procedures like summary judgment applied.) About five months later, the defendant sought reconsideration. The district court eventually denied that motion. And about a week after that, the defendant filed his notice of appeal.

On appeal, the government argued that the appeal was untimely. When the United States is party to a civil proceeding, Federal Rule of Appellate Procedure 4(a)(1)(B) gives litigants 60 days to file their notice of appeal. The appeal clock normally begins to run with the district court’s filing a separate document setting out the judgment, as required by Federal Rule of Civil Procedure 58. But if the district court fails to set out its judgment in a separate document, the time to appeal begins running 150 days after the district court decides the case. And a timely motion for reconsideration resets the time for filing a notice of appeal; the time begins fresh once the district court resolves the reconsideration motion.

Putting these rules together, a majority of the Fifth Circuit held that the defendant’s appeal was timely. The district court never set out its judgment in a separate document. So the appeal clock began running 150 days after the summary-judgment decision. The defendant’s motion for consideration was timely filed 14 days after the appeal clock began running. And the defendant’s notice of appeal came well within 60 days of the district court’s decision denying reconsideration.

Judge Haynes dissented. As she saw things, the order entered when the district court granted summary judgment was itself a separate document under Rule 58. To be sure, the document that Rule 58 requires must be separate from an opinion—it must be self contained; state the granted relief; and not contain any facts, law, or analysis. But as Judge Haynes saw things, the district court’s summary-judgment grant did exactly that. There was no opinion explaining the district court’s decision. The summary-judgment decision thus stood alone, stated the relief, and did not include any facts, law, or analysis.

The majority, Judge Haynes thought, appeared to require entry of a decision on summary judgment and a separate document. But if the summary-judgment decision itself satisfies Rule 58’s requirements, there’s no need for a separate document. “It would make little sense to require a court to enter two identical orders (which is what would have been done here if that is how Rule 58 is construed, since the order did not give reasoning) just so one is ‘separate’ from the other. Where, as here, the summary judgment order did not include any facts, law, or analysis, the order functions as a judgment that satisfies Rule 58.”

The majority saw a few problems in Judge Haynes’s analysis. First, Judge Haynes appeared to overlook Rule 58’s text. The rule excludes decisions on certain kinds of motions from the separate-document requirement. But that list of exclusions does not include summary-judgment decisions. So “[b]y implication, a separate document setting forth the judgment is required for every other kind of ‘order.’” Second, although the summary-judgment decision was short, the separate-document requirement does not turn on the length of an order. Further, the summary-judgment decision did include facts and law, including a determination that the government did not possess some of the property that the defendant sought. Finally, were there any ambiguity over whether the district court satisfied Rule 58, that ambiguity should be resolved in favor of appealability. The majority and dissent also sparred over whether Fifth Circuit precedent required a particular outcome.

United States v. Mtaza, 2021 WL 911959 (5th Cir. Mar. 9, 2021), available at the Fifth Circuit and Westlaw.

The Ninth Circuit Held that a Notice of Appeal Designating a Final Judgment Included a Prior Partial Grant of Summary Judgment

In Rice v. Morehouse, the Ninth Circuit held that it had jurisdiction to review a partial grant of summary judgment in an appeal from a final judgment.

Simplifying a bit, Rice involved excessive-force claims against several police officers. The district court granted qualified immunity to some of the officers, and the claims against the other officers proceeded to trial. At trial, the judge entered judgment as a matter of law for some of the defendants, and a jury found for the last. The plaintiff then appealed from the final judgment. In his notice of appeal, the plaintiff designated only the final judgment.

On appeal, the officers argued that the notice of appeal was insufficient to appeal the earlier summary-judgment decision. Federal Rule of Appellate Procedure 3(c) requires that a notice of appeal (among other things) designate the appealed order or judgment. Since the plaintiff designated only the final judgment, the officers argued that he had failed to appeal from any interlocutory decisions.

The Ninth Circuit rejected this argument. It noted that the officers had notice of the plaintiff’s intent to appeal the summary-judgment denial. The plaintiff’s opening brief focused on events relevant to that summary-judgment decision. And the officers could not show any prejudice from the allegedly defective notice, as they fully briefed the summary-judgment issues. The appeal from the final judgment was thus sufficient to appeal the earlier summary-judgment denial.

This never should have been an issue. For one thing, a notice of appeal designating a final judgment should encompass all interlocutory decisions that merge into the final judgment. For another, there’s no good reason to use the order-designation requirement to limit the scope of an appeal. Courts nevertheless occasionally do so. Pending amendments to Rule 3(c) should abrogate this practice.

Rice v. Morehouse, 2021 WL 853301 (9th Cir. Mar. 8, 2021), available at the Ninth Circuit and Westlaw.

Quick Notes

The Eleventh Circuit issued a revised opinion in Ruiz v. Wing. The panel stuck with its earlier holding that a pro se motion for a new trial delays the start of the appeal clock, even if the party was represented by counsel and the motion was accordingly struck. As best I can tell, the revised opinion made no material changes to the decision on that issue. It’s also worth noting (as Howard Bashman pointed out the other day) that a circuit split exists on this issue.

For my coverage of the prior Ruiz opinion, see my post Navigating Notices of Appeal.

Ruiz v. Wing, 2021 WL 936028 (11th Cir. Mar. 12, 2021), available at the Eleventh Circuit and Westlaw.

And in Byrd v. Lamb, the Fifth Circuit addressed only the availability of a Bivens remedy in a qualified-immunity appeal. The Supreme Court has held that courts can address the “Bivens question”—i.e., whether a damages remedy exists for a federal official’s unconstitutional conduct—in an appeal from the denial of qualified immunity. As I’ve said before, there’s no reason for addressing this issue in an immediate appeal. The practice is just another unnecessary hurdle for civil-rights plaintiffs. Even worse, Byrd was a case in which the availability of a Bivens remedy was never raised in the district court. The Fifth Circuit effectively excused this forfeiture, repeating the common (and erroneous) observation that the Bivens question is antecedent to any issue of qualified immunity.

The Fifth Circuit held that there was no Bivens remedy. To determine whether the case arose in a new context (and thus required addressing the Bivens question), the Fifth Circuit relied on the slightest factual difference from the three Supreme Court decisions recognizing a Bivens remedy:

Here, although Byrd alleges violations of the Fourth Amendment, as did the plaintiff in Bivens, Byrd’s lawsuit differs from Bivens in several meaningful ways. This case arose in a parking lot, not a private home as was the case in Bivens. Agent Lamb prevented Byrd from leaving the parking lot; he was not making a warrantless search for narcotics in Byrd’s home, as was the case in Bivens. The incident between the two parties involved Agent Lamb’s suspicion of Byrd harassing and stalking his son, not a narcotics investigation as was the case in Bivens. Agent Lamb did not manacle Byrd in front of his family, nor strip-search him, as was the case in Bivens. Nor did Lamb discriminate based on sex like in Davis. Nor did he fail to provide medical attention like in Carlson.

Judge Willett concurred to lament the sorry state of the law in this area, which often leaves victims of federal officials’ misconduct with no remedy.

Byrd v. Lamb, 2021 WL 871199 (5th Cir. Mar. 9, 2021), available at the Fifth Circuit and Westlaw.