The Week in Federal Appellate Jurisdiction: May 29–June 4, 2022

Last week saw interesting decisions on the scope of class-certification appeals under Rule 23(f), the appealability of orders controlling communications with class members, manufactured finality, and more. Plus, Judge Bress questioned the Ninth Circuit’s caselaw allowing appeals from anti-SLAPP denials. But let’s start with a new cert petition that asks if appellate courts can always address the Bivens question in qualified-immunity appeals.

• New Cert Petition on Qualified-Immunity Appeals & the Bivens Question
• Judge Bress Questioned the Appealability of Anti-SLAPP Denials
• Standing & Rule 23(f) Appeals
• The Collateral-Order Doctrine & Controlling Communication With Class Members
• Manufactured Finality
• Qualified-Immunity Appeals & the Heck Defense
• An Implicit Extension of the Criminal-Appeal Deadline

New Cert Petition on Qualified-Immunity Appeals & the Bivens Question

I’ve written a lot over the past few years about the expansion of qualified-immunity appeals. Among those expansions has been the inclusion of the Bivens question—that is, whether a cause of action exists against a federal official—within the scope of the appeal. As I (and others) have explained, there is no need to address the Bivens question as part of a qualified-immunity appeal.

A new cert petition asks if the Bivens questions is always within the scope of a qualified-immunity appeal. The case is Elhady v. Bradley, and the response is due June 27, 2022.

Petition for a Writ of Certiorari, Elhady v. Bradley, No. 21-1492 (May 25, 2022), available at the Supreme Court and Westlaw.

Judge Bress Questioned the Appealability of Anti-SLAPP Denials

Concurring in Flo & Eddie, Inc. v. Pandora Media, LLC, Judge Bress of the Ninth Circuit questioned that court’s precedent on anti-SLAPP appeals. The Ninth Circuit has long held that denials of anti-SLAPP motions are immediately appealable via the collateral-order doctrine. But several judges of that court have questioned those holdings. Judge Bress concurred to share that doubt, noting that immediate review of anti-SLAPP denials requires an inquiry into the merits of the plaintiff’s claim, burdens the courts of appeals, and unduly delays district court proceedings.

Flo & Eddie, Inc. v. Pandora Media, LLC, 2022 WL 1800780 (9th Cir. June 2, 2022), available at the Ninth Circuit and Westlaw.

Standing & Rule 23(f) Appeals

In Boley v. Universal Health Services, Inc., the Third Circuit addressed the plaintiffs’ standing as part of a class-certification appeal under Federal Rule of Civil Procedure 23(f). The court relied on its “continuing obligation to assure that [it has] jurisdiction.” It thus didn’t matter that the appeal was technically from an order that addressed only class certification.

Boley v. Universal Health Services, Inc., 2022 WL 1768984 (3d Cir. June 1, 2022), available at the Third Circuit and Westlaw.

The Collateral-Order Doctrine & Controlling Communication With Class Members

In Fox v. Saginaw County, the Sixth Circuit used the collateral-order doctrine to review an order barring an asset-recovery firm from contacting members of a class action. The order was separate from the merits of the underlying action (which involved the recovery of foreclosure proceeds). It involved “important class-integrity and First Amendment issues.” And the loss of “claimed First Amendment freedom to communicate with class members” could not be remedied if review was delayed.

Thanks to Michael Solimine for sending this case my way.

Fox v. Saginaw County, 2022 WL 1771805 (6th Cir. June 1, 2022), available at the Sixth Circuit and Westlaw.

Manufactured Finality

A few courts dealt with litigants attempts to create a final decision by voluntarily dismissing some of their claims. In Parks v. Taylor, the Tenth Circuit rejected a plaintiff’s attempt to circumvent Federal Rule of Civil Procedure 54(b) by voluntarily dismissing his unresolved claims without prejudice. But in Gillespie v. Dring, the Third Circuit held that the voluntary, without-prejudice dismissal of an unresolved counterclaim did not preclude finality, as there was no attempt to manufacture appellate jurisdiction.

Parks v. Taylor, 2022 WL 1789119 (10th Cir. June 2, 2022), available at the Tenth Circuit and Westlaw.

Gillespie v. Dring, 2022 WL 1789119 (3d Cir. June 2, 2022), available at the Third Circuit and Westlaw.

Qualified-Immunity Appeals & the Heck Defense

In Montoya v. City & County of Denver, the Tenth Circuit refused to extend pendent appellate jurisdiction to a Heck v. Humphrey issue as part of a qualified-immunity appeal. The court explained that there was—at most—some overlap in the Heck and immunity issues. That wasn’t enough for pendent appellate jurisdiction.

As I noted in a forthcoming article, a few courts have reviewed in the Heck issue alongside qualified immunity. But few have explained their jurisdiction to do so, and (like Montoya) most cases hold to the contrary.

Montoya v. City & County of Denver, 2022 WL 1837828 (10th Cir. June 3, 2022), available at the Tenth Circuit and Westlaw.

An Implicit Extension of the Criminal-Appeal Deadline

In United States v. Palmer, the D.C. Circuit held that a district court implicitly extended an appeal deadline by accepting a late-filed notice of appeal. The court noted that it has “previously declined an appellant’s invitation to equate the ministerial act of docketing a tardy notice of appeal with an implicit grant of an extension of time by the district court.” (Cleaned up.) But in Palmer, the district court’s involvement (rather than the clerk’s) in docketing the late-filed notice amounted to an implicit finding of excusable neglect under Federal Rule of Appellate Procedure 4(b)(4).

United States v. Palmer, 2022 WL 1815204 (D.C. Cir. June 3, 2022), available at the D.C. Circuit and Westlaw.