The Week in Federal Appellate Jurisdiction: May 16–22, 2021

The big news last week was the Supreme Court’s decision on the scope of remand appeals under 28 U.S.C. § 1447(d). There were also several decisions of note in the courts of appeals, all from the D.C. and Third Circuits. The D.C. Circuit held that it had jurisdiction to review denials of compassionate release under either 28 U.S.C. § 1291 or 18 U.S.C. § 3742. The D.C. Circuit also said that in a suit brought only to compel arbitration, the time to appeal runs from the district court’s ordering that arbitration proceed. The Third Circuit joined several other circuits in holding that litigants can immediately appeal denials of requests to proceed anonymously. That court also said that non-parties can appeal from orders of request under the Hague Convention.

• The Supreme Court Adopted the Broader Reading of § 1447(d)’s Exceptions
• The D.C. Circuit on Appellate Jurisdiction Over Compassionate-Release Denials
• The D.C. Circuit Dismissed as Untimely Appeals from Arbitration and Contempt Orders
• The Third Circuit Held That Plaintiffs Can Immediately Appeal From Orders Denying Motions to Proceed Anonymously
• The Third Circuit on Appealing Letters of Request for Non-Party Discovery

The Supreme Court Adopted the Broader Reading of § 1447(d)’s Exceptions

In BP P.L.C. v. Mayor & City Council of Baltimore, the Supreme Court adopted the broad reading of the exceptions to 28 U.S.C. § 1447(d): if a defendant invokes the federal-officer removal statute (28 U.S.C. § 1442) or the civil-rights removal statute (28 U.S.C. § 1443) in removing a case, the defendant can appeal a remand order and obtain review of all proffered grounds for removal. In doing so, the Court rejected the narrow position that most courts of appeals had adopted, which limited remand appeals to the two expressly excepted grounds. Dissenting, Justice Sotomayor would have gone with that narrow reading.

I think the Court got it wrong. The majority’s opinion relies almost entirely on its conclusion that § 1447(d)’s text is plain. I disagree. The text doesn’t clearly say what to do when a case is removed on multiple grounds. While the text doesn’t answer the question, § 1447(d)’s context and purpose do. The Court should have read the statute to further the dual purposes of generally prohibiting remand appeals while allowing for review of certain, special issues.

The majority’s opinion also invites mischief. Defendants now have every incentive to raise any weak (though non-frivolous) argument they have for federal-officer or civil-rights removal. That way if the district court court remands the suit, these defendants can appeal and argue all of their grounds for removal. Indeed, it appears that a defendant taking such an appeal can abandon any argument for federal-officer or civil-rights removal and still obtain plenary review on appeal.

To prevent this mischief—and to preserve the policy of generally barring remand appeals—Congress should amend § 1447(d) to abrogate BP and narrow the scope of any appeals under that provision’s exceptions.

For my take on BP, see my post from last week, BP & the Broad Scope of § 1447(d) Remand Appeals.

BP P.L.C. v. Mayor & City Council of Baltimore, 2021 WL 1951777 (May 17, 2021), available at the Supreme Court and Westlaw.

The D.C. Circuit on Appellate Jurisdiction Over Compassionate-Release Denials

In United States v. Long, the D.C. Circuit held that it has jurisdiction to review the denial of compassionate release.

About ten years ago, the defendant in Long pleaded guilty to a RICO conspiracy and was sentenced to 29 years in prison. Due to his underlying medical conditions and concerns over the COVID-19 pandemic, he recently sought compassionate release under 18 U.S.C.  3582(c)(1)(A). The district court assumed that the the defendant’s medical condition was a sufficiently extraordinary and compelling reason for reducing his sentence. But the court thought that it was bound by a Sentencing Commission policy statement that bars release of defendants who pose a danger to the community. The district court could not conclude that the defendant in Long no longer posed such a threat. So it denied compassionate release. The defendant then appealed.

The D.C. Circuit saw a potential jurisdictional hurdle: 18 U.S.C. § 3742. That provision allows defendants to seek review of an otherwise final sentence in only four circumstances, such as a sentence imposed in violation of the law or as a result of an incorrect Sentencing Guidelines application. And the D.C. Circuit thought that those circumstances limited its jurisdiction to grant relief. “So if the appeal of a denial of a sentence reduction under Section 3582(c)(1)(A)’s compassionate release provision constitutes a request for review of an ‘otherwise final sentence’ and does not fall within one of the enumerated circumstances, Section 3742 would prohibit appellate jurisdiction.” (Note, not everyone thinks that § 3742 is a jurisdictional statute.)

The D.C. Circuit ultimately concluded that it had jurisdiction on two alternative grounds. First was a standard final-judgment appeal under 28 U.S.C. § 1291. The district court’s decision denying compassionate release re-closed the underlying criminal case and thus looked like a final decision. And § 3742 did not get in the way. That provision, the court thought, applies only to appeals from the initial imposition of a sentence. And a sentence-reduction proceeding does not impose a new sentence. “All a decision on the application for compassionate release does is operate upon and modify—or leave unchanged—an already-existing and already-imposed sentence.”

Alternatively, if § 3742 did apply, the D.C. Circuit thought that the appeal fit within that provision. One of the circumstances that § 3742 provides for is a misapplication of the Sentencing Guidelines. And the defendant in Long argued that the district court misapplied the Guidelines—namely, that the Sentencing Commission’s policy statement on releasing defendants who pose a danger to society does not apply to compassionate release.

On the merits of the appeal, the D.C. Circuit held that the Sentencing Commission’s policy statement did not apply to compassionate-release motions.

United States v. Long, 2021 WL 1972245 (D.C. Cir. May 18, 2021), available at the D.C. Circuit and Westlaw.

The D.C. Circuit Dismissed as Untimely Appeals from Arbitration and Contempt Orders

In Service Employees International Union Local 32BJ v. Preeminent Protective Services Inc., the D.C. Circuit dismissed appeals from orders directing arbitration and holding a defendant in contempt, as the appellant waited until after all issues were decided to appeal.

Simplifying a bit, Preeminent Protective involved a dispute over whether an employer violated a collective-bargaining agreement in refusing to hire two union members for a particular job. The union filed a petition with a district court that asked the court to compel arbitration. That action produced three orders of note. First, the the district court ordered the parties to arbitrate (we’ll call this the “arbitration order”). But arbitration did not go smoothly:

Preeminent stalled the arbitration for over a year. Two arbitrators recused themselves—one after Preeminent refused to commit to paying its share of the arbitration fees and another after Preeminent accused him of bias for seeking assurance of payment. As delays mounted, the [union] moved for contempt.

The district court eventually held the employer in contempt and awarded the union an unspecified amount of costs and attorneys’ fees (we’ll call this the “contempt order”). Several months later, after the arbitration was finally completed, the district court entered another order setting the amount of costs and fees at roughly $50,000 (the “fee order”).

The employer then sought to appeal all three orders: the arbitration order, the contempt order, and the fee order. The D.C. Circuit concluded that the appeal was timely as to only the fee order.

The arbitration order, the court concluded, was final and appealable when entered. To be sure, 9 U.S.C. § 16 generally bars appellate review of orders directing arbitration to proceed. But the Supreme Court held in Green Tree Financial Corp. v. Randolph that an order directing arbitration is appealable if it resolves district court proceedings and leaves nothing left for that court to do. Green Tree Financial involved a district court decision that ordered arbitration and dismissed the underlying claims. The rule is the same, the D.C. Circuit said, when the litigation is brought solely to compel arbitration. Once the district court in Preeminent Protective ordered arbitration, the proceedings were over. The subsequent decisions were due only to the need to hold one party in contempt. The employer accordingly needed to appeal within 30 days of the arbitration order. It didn’t, so the D.C. Circuit lacked jurisdiction over that order.

The employer needed to appeal the contempt order within 30 days, too. The employer had been held in criminal contempt. And orders finding a party in criminal (as opposed to civil) contempt are final and appealable. It didn’t matter that the district court had not yet specified the amount of costs and fees. The D.C. Circuit has held that contempt orders with conditional sanctions are final and appealable. Further, outstanding issues of costs and attorneys’ fees generally do not preclude a decision on the merits from being final. The D.C. Circuit thought that the same reasoning applied to sanctions: “a post-judgment contempt sanction does not lose its status as a final judgment because related fee litigation remains pending.” The contempt order was accordingly final when entered, and the employer’s appeal several months later was untimely as to that order.

Service Employees International Union Local 32BJ v. Preeminent Protective Services Inc., 2021 WL 1972247 (D.C. Cir. May 18, 2021), available at the D.C. Circuit and Westlaw.

The Third Circuit Held That Plaintiffs Can Immediately Appeal From Orders Denying Motions to Proceed Anonymously

In Doe v. College of New Jersey, the Third Circuit said that plaintiffs can immediately appeal the denial of a motion to proceed anonymously via the collateral-order doctrine.

The plaintiff in Doe brought employment-discrimination claims against her employer. She also sought to proceed anonymously. The district court denied that request. The plaintiff then appealed.

The Third Circuit joined several other circuits in holding that plaintiffs may immediately appeal these denials. That doctrine deems certain kinds of district court orders final (and thus immediately appealable) when the order (1) conclusively resolves an issue, (2) presents an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal from a final judgment. Denials of requests for proceed anonymously, the Third Circuit concluded, satisfied all three requirements. First, these denials conclusively resolved whether the plaintiff can file an anonymous complaint. The order requires that a plaintiff disclose its identity to proceed, which once and for all determines anonymity. Second, the right to proceed anonymously is an important one that shields plaintiffs from potential harms of disclosing their identities. And the anonymity issue has no relation to the merits of a plaintiff’s claim. Finally, appellate review needed to be immediate for it to be effective. Once a plaintiff’s identity is erroneously disclosed, there is nothing a court of appeals can do to remedy that error.

Also of note, the Third Circuit emphasized the need to decide collateral-order issues categorically. That is, either a type of order is always appealable via the collateral-order doctrine, or it never is; appealability should not turn on the particular circumstances of a case. Courts don’t always follow this categorical mandate, though their tendency to do so might be understandable.

Doe v. College of New Jersey, 2021 WL 1973787 (3d Cir. May 18, 2021), available at the Third Circuit and Westlaw.

The Third Circuit on Appealing Letters of Request for Non-Party Discovery

In Arcelik A.S. v. E.I. Dupont de Nemours & Co., the Third Circuit heard an appeal from an order issuing letters of request (or “letters rogatory”) for discovery from a non-party.

Simplifying a bit, the plaintiff in Arcelik was an appliance manufacturer that made clothes dryers. Those dryers included electronic parts purchased from a German manufacturer, and the exterior of those electronic parts was made of a plastic produced by a chemical company. When the appliance manufacturer’s dryers began catching fire, it sued the chemical company, alleging that the plastic was defective. The chemical company wanted discovery from the electronics manufacturer. But the electronics manufacturer was not a party, and it apparently did not have any operations in the United States. So the chemical company asked for and was granted letters of request under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, which would allow it to obtain discovery in Germany and other countries where the electronics manufacturer had operations.

The electronics manufacturer then appealed the order granting the letters of request. In response, the chemical company objected to the court’s appellate jurisdiction.

The Third Circuit said that the district court’s order was final and appealable. The electronic manufacturer was not a party to the underlying case, so it could not appeal after a final judgment. And the contempt option for appealing a discovery order was also off of the table. No domestic court had ordered the manufacturer to produce anything, so there was no domestic order to disobey. Any order to comply with discovery would come from a foreign court, which would not lead to review (via contempt or otherwise) in a domestic court. The electronics manufacturer’s only chance for an appeal was thus an immediate one.

Arcelik A.S. v. E.I. Dupont de Nemours & Co., 2021 WL 2010816 (3d Cir. May 20, 2021), available at the Third Circuit and Westlaw.