Post-Hall appeals in consolidated proceedings, designations in notices of appeal, derivative sovereign immunity, and more.
November 26, 2019
Last week saw a variety of interesting decisions and developments in federal appellate jurisdiction. Two courts addressed their post-Hall v. Hall jurisdiction over appeals in consolidated actions. Three courts had to address the sufficiency of notices of appeal, with two of them using the order-designation requirement to narrow the scope of appeals. A government contractor is asking the Supreme Court to address appeals from the denial of derivative sovereign immunity. And much more.
- Appeals in consolidated actions after Hall v. Hall
- The Second Circuit barely accepted a notice of appeal that listed parties via their attorneys
- Two courts applied the order-designation requirement to limit the scope of an appeal
- The Seventh Circuit reviewed a grant of summary judgment in an injunction appeal
- The Ninth Circuit held that immigration petitioners have 30 days to seek review of reinstatement orders
- The Federal Circuit held that cross-appeals are not jurisdictionally required
- New cert petition on appealability of derivative sovereign immunity
- Opposition to cert filed in Apache Corp. v. Rhea
- Cert denied in Benzon v. Kell
Appeals in consolidated actions after Hall v. Hall
In 2018’s Hall v. Hall, the Supreme Court held that consolidated actions retained their individual character for purposes of appeals. So the resolution of one action that was consolidated with others is final and appealable, regardless of whether other consolidated actions are unresolved.
I’ve criticized the Hall rule as pragmatically troubling—it seems to encourage multiple, overlapping, and duplicative appeals in consolidated proceedings. But it was the best decision the Court could have made. There just weren’t any great options. The jurisdictional issues that consolidated actions present are more appropriate for rulemaking, and a joint subcommittee of the Civil and Appellate Rules Committees is considering whether to amend the rules to address Hall.
Two decisions from last week illustrate some additional jurisdictional issues that have arisen in Hall’s wake. The Fifth Circuit tackled appeals from overlapping orders—orders entered in consolidated proceedings that potentially affect both resolved and unresolved actions. And the Third Circuit rejected pendent appellate jurisdiction over a decision entered in an unresolved action that was consolidated with a resolved one.
The Fifth Circuit addressed overlapping orders entered in consolidated cases
In Diece-Lisa Industries v. Disney Enterprises, the Fifth Circuit held that an order entered in consolidated proceedings affected only the resolved action and was thus immediately appealable.
The case involved a trademark dispute over Lots-O’-Huggin’ Bear, the villain in Toy Story 3. The plaintiff claimed that Lots-O’-Huggin’ Bear infringed its trademark in “Lots of Hugs,” which the plaintiff used on stuffed toy bears. The plaintiff filed two separate suits—one against Disney’s retail entities and another against its intellectual-property entities—that were eventually consolidated. While the cases were consolidated, the district court struck one amended complaint and vacated its order allowing another one. The district court then dismissed the suit against the Disney’s IP entities, and the plaintiff appealed that dismissal.
Under Hall, the dismissal of the suit against the IP entities was final and appealable. But the scope of that appeal was uncertain; the two interlocutory orders—striking one complaint and vacating the order allowing another—were entered in both actions while they were consolidated. It was thus not clear if these interlocutory orders merged into the final judgment in the suit against the IP entities.
The Fifth Circuit ultimately concluded that they did. The court dug into the allegations in the complaints at issue, and it concluded that these complaints added claims and theories that were relevant only to the IP entities. The claims against the retail entities remained unchanged. The court acknowledged that an interlocutory decision that affected both resolved and unresolved actions might warrant a different result. But that was not the situation in Diece-Lisa. Further, immediate review did not create any risk of piecemeal review.
Diece-Lisa Industries v. Disney Enterprises, 2019 WL 6124889 (5th Cir. Nov. 19, 2019), available at the Fifth Circuit and Westlaw.
The Third Circuit rejected pendent appellate jurisdiction in consolidated proceedings
In Columbia Gas Transmission LLC v. An Easement to Construct, the Third Circuit declined to extend pendent appellate jurisdiction to review an order entered in an unresolved consolidated action.
Columbia Gas involved two actions concerning two natural-gas pipelines—one existing and one planned—that extended or would extend across the appellant’s land:
- The pipeline operator brought a condemnation action against the landowner, seeking to acquire an easement necessary to construct a new pipeline.
- The landowner brought a declaratory judgment action against the operator, seeking a declaration that the operator had to (1) remove—not abandon—the old pipeline and (2) install a tap on the new pipeline from which the landowner could get natural-gas service.
The district court granted partial summary judgment for the pipeline in the condemnation action. And it dismissed the landowner’s claims in the declaratory judgment action. The landowner then appealed and, in that appeal, sought review of both district court decisions.
The appeal from the dismissal of the declaratory judgment action was proper; the action had been fully resolved and was thus final and appealable under Hall. But the condemnation action was not—the district court had not yet determined the amount of compensation. The landowner thus sought pendent appellate jurisdiction over the partial summary-judgment decision.
The Third Circuit declined the invitation. There was no entanglement between the two actions. So the court of appeals could fully review the dismissal of the declaratory judgment action without addressing any issues decided in the condemnation action.
Columbia Gas Transmission LLC v. An Easement to Construct, 2019 WL 6245410 (3d Cir. Nov. 22, 2019), available at the Third Circuit and Westlaw.
The Second Circuit barely accepted a notice of appeal that listed parties via their attorneys
In In re Motors Liquidation Co., the Second Circuit held that a notice of appeal was sufficient—though just barely—when it designated the appealing parties by their law firms.
The appeal arose out of General Motors Co.’s 2009 bankruptcy. It asked if new GM (the new entity that emerged from those bankruptcy proceedings) assumed certain liabilities of the old GM. The bankruptcy court had held that new GM was not liable for certain punitive damages claims, and the district court affirmed. The plaintiffs then sought review of that decision in the Second Circuit. But the notice of appeal did not specifically name the parties who were taking the appeal. It said only that the appellants were the plaintiffs represented by four specified law firms.
Appellate Rule 3(c)(1)(A) requires that a notice of appeal “specify the party or parties taking the appeal by naming each one in the caption or body of the notice.” And according to the Second Circuit, this specification requirement is jurisdictional. The court accordingly questioned whether the notice was adequate to create appellate jurisdiction.
The Second Circuit ultimately concluded that the notice was sufficient. Although the court thought the plaintiffs’ attorneys had been “careless” in not designating the plaintiffs by name, both the parties and the court had notice of who was appealing. Figuring that out, however, required some effort. The court warned that counsel should not expect the court to exert the same effort in the future.
In re Motors Liquidation Co., 2019 WL 6121345 (2d Cir. Nov. 19, 2019), available at the Second Circuit and Westlaw.
Two courts applied the order-designation requirement to limit the scope of an appeal
In what’s probably an illustration of availability bias, I’ve noticed more decisions misapplying Appellate Rule 3(c)’s order-designation requirement to limit the scope of appeal ever since the proposed amendments to that rule were published.
Rule 3(c)(1) currently requires that an appellant designate the judgment or order being appealed. Several courts of appeals have read this designation requirement to affect the scope of an appeal. The Rules Committee has proposed amendments to Rule 3(c) that would abrogate these decisions. And as I seem to say a lot recently, those amendments can’t come soon enough. The order-designation requirement exists to help identify the decision that creates appellate jurisdiction and from which the time for appealing is calculated. It’s not supposed to set the scope of an appeal. And I doubt appellees are often surprised (much less harmed) when the appellants’ brief challenges an order that was not mentioned in the notice of appeal.
The present use of the order-designation requirement thus seems to deprive litigants of their chance to appeal for no good reason. Still, courts keep applying it.
In O’Brien v. Town of Bellingham, the First Circuit held that a notice that specified two particular orders—“as well as any and all rulings by the Court”—deprived it of jurisdiction to review another order. The plaintiff in O’Brien had sought to vacate the voluntary dismissal of two defendants. But the district court denied that motion and, in a series of two subsequent orders, granted summary judgment for the defendants. The notice of appeal named those two orders that led to summary judgment “as well as any and all rulings by the Court.”
The First Circuit held that this notice was insufficient to appeal the district court’s refusal to vacate the voluntary dismissal. As the First Circuit saw things, designating these two orders but not the vacatur order “loudly proclaim[ed]” the plaintiff’s intention not to appeal the vacatur order. And the plaintiff’s catchall (“any and all rulings by the Court”) was also not sufficient, as it did not give notice to the defendants or the court that the plaintiff intended to appeal the vacatur decision.
Similarly, in Henry v. Spectrum, L.L.C., the Fifth Circuit held that a notice specifying only an order granting summary judgment deprived the court of jurisdiction to address two earlier decisions. Before the district court in Henry granted summary judgment for the defendants, it had denied the plaintiff’s motion to compel and granted the defendants’ motion for partial judgment on the pleadings. On appeal, the Fifth Circuit noted that the designated summary-judgment decision was not dependent on or related to the two previous orders. The plaintiff’s failure to specify these two orders thus precluded appellate review of them.
O’Brien v. Town of Bellingham, 2019 WL 6243373 (1st Cir. Nov. 22, 2019), available at the First Circuit and Westlaw.
Henry v. Spectrum, L.L.C., 2019 WL 6248197 (5th Cir. Nov. 21, 2019), available at the Fifth Circuit and Westlaw.
The Seventh Circuit reviewed a grant of summary judgment in an injunction appeal
In Stone v. Signode Industrial Group, the Seventh Circuit held that it could review a grant of summary judgment in an appeal from a permanent injunction because the injunction was based on the summary-judgment decision.
Stone concerned the interpretation of a contract concerning health-care benefits. The district court granted the beneficiaries’ motion for summary judgment—holding that the defendant had to provide them with benefits to which they were entitled—and entered a permanent injunction that ordered the defendants to pay the benefits. But district court proceedings were not yet over; there were outstanding issues regarding class treatment, and the district court had not entered a final judgment.
Still, the defendant could appeal the permanent injunction under 28 U.S.C. § 1292(a). And jurisdiction over that appeal included jurisdiction to review the summary-judgment decision. The permanent injunction was based on the conclusions the district court had reached in granting summary judgment. So effective review of the injunction required reviewing the relevant reasoning in the summary judgment decision, even though the court lacked jurisdiction over the summary judgment order itself.
Stone v. Signode Industrial Group, 2019 WL 6139680 (7th Cir. Nov. 20, 2019), available at the Seventh Circuit and Westlaw.
The Ninth Circuit held that immigration petitioners have 30 days to seek review of reinstatement orders
In Vega-Anguiano v. Barr, the Ninth Circuit held that the 30-day limit for challenging an order of removal also applies when a petitioner challenges a reinstatement order.
The petitioner in Vega-Anguiano had been ordered removed in 1998. When he was arrested again in 2014, immigration authorities reinstated his 1998 removal. The petitioner then sought review of the reinstatement order in the Ninth Circuit, collaterally attacking the original removal order.
The Ninth Circuit held that the petition for review was timely. Under 8 U.S.C. § 1252(b)(1), immigration petitioners have 30 days to challenge a “final order of removal.” Other circuits—including the Third and Fifth—have held that petitioners must challenge the original final removal order within 30 days for the court to have jurisdiction over a collateral attack on a reinstated order. But the Ninth Circuit has interpreted the term “final order of removal” in a related jurisdictional provision—§ 1252(a)(1)—to mean both removal and reinstatement orders. The court saw no reason to read the same term any differently in a subsequent subsection. So § 1252(b)(1) required “only that the reinstatement order be challenged within thirty days of becoming final.” The petitioner in Vega-Anguiano had filed his petition within 30 days of the reinstatement order, so his petition was timely.
Vega-Anguiano v. Barr, 2019 WL 6121825 (9th Cir. Nov. 19, 2019), available at [the Ninth Circuit] and Westlaw.
The Federal Circuit held that cross-appeals are not jurisdictionally required
In In re IPR Licensing, Inc., the Federal Circuit held that the timely filing of a cross appeal was not a jurisdictional requirement. The court could accordingly address an appellee’s challenge to a judgment despite the appellee’s failing to file a cross appeal.
Simplifying a fair bit, IPR Licensing involved a dispute over the validity of a wireless-network patent. The patent holder sued another company (who I’ll just call the “patent challenger”) for infringement. The patent challenger then sought inter partes review before the Patent Trial and Appeal Board. The patent challenger asked the Board to address several of the claims in the patent, and the challenger asserted three grounds for deeming the claims invalid. But the Board agreed to address only one of those three grounds; it denied review on the other two. The Board eventually sided with the patent challenger, deeming all of the challenged claims invalid in light of prior art.
The patent holder appealed, and the Federal Circuit reversed as to one of the claims. The court held that the Board had erred in deeming this one claim invalid. But in that appeal, the patent challenger asked the Federal Circuit to remand the case to the Board to address the two grounds for challenging the patent that the Board had declined to address. The patent holder responded that the Federal Circuit lacked jurisdiction to address this matter, as the patent challenger had not filed a cross appeal.
The Federal Circuit concluded that the lack of a timely cross appeal did not deprive it of jurisdiction. The 14-day deadline for filing a cross appeal comes only from a rule—Appellate Rule 4(a)(3). There is no statutory basis for it. And under the Supreme Court’s decisions in Bowles v. Russell and Hamer v. Neighborhood Housing Servsices of Chicago, appellate deadlines found only in rules are not jurisdictional. They’re instead claims-processing rules. So the 14-day deadline for filing a cross appeal was not jurisdictional. In so holding, the Federal Circuit agreed with the Third and Sixth Circuits, though other circuits treat filing a cross-appeal as a jurisdictional requirement.
So even if a cross appeal was required for the patent challenger to make the arguments it did, its failure to file a cross appeal did not deprive the Federal Circuit of jurisdiction.
In re IPR Licensing, Inc., 2019 WL 6222850 (Fed. Cir. Nov. 22, 2019), available at the Federal Circuit and Westlaw.
New cert petition on appealability of derivative sovereign immunity
A new cert petition asks the Supreme Court if denials of derivative sovereign immunity are immediately appealable under the collateral-order doctrine.
The case is CACI Premier Technology, Inc. v. Al Shimari, a suit brought by Iraqi citizens against military contractors for torture the plaintiffs suffered at Abu Ghraib. The contractors in this suit have sought derivative sovereign immunity—an immunity sought by government contractors who were working for the United States. This case first made it to the Fourth Circuit in 2012, when that court, sitting en banc, held that it lacked jurisdiction to review the denial of derivative sovereign immunity when the record had not been sufficiently developed. A Fourth Circuit panel recently rejected another attempted appeal, again holding that disputes of material fact existed as to the contractor’s immunity.
The response due December 19, 2019.
Petition for a Writ of Certiorari, CACI Premier Technology, Inc. v. Al Shimari, No. 19-648 (Nov. 15, 2019), available at the Supreme Court and Westlaw.
Opposition to cert filed in Apache Corp. v. Rhea
The brief opposing cert was filed in Apache Corp. v. Rhea. The case ostensibly asks if class certification requires a showing of ascertainability. But the petition comes from the Tenth Circuit’s denial of Rule 23(f) discretionary appeal.
The opposition brief accordingly argues that the real issue presented is whether the Tenth Circuit abused its discretion in denying the discretionary appeal. And the courts of appeals have—in the words of the Advisory Committee—“unfettered discretion whether to permit [a Rule 23(f)] appeal, akin to the discretion exercised by the Supreme Court in acting on a petition for certiorari.”
According to the Supreme Court docket, the petition is not yet scheduled for conference. This is another case to keep an eye on.
Brief in Opposition, Apache Corp. v. Rhea, No. 19-503 (Nov. 18, 2019), available at the Supreme Court and Westlaw.
Cert denied in Benzon v. Kell
Finally, the Supreme Court denied cert in Benzon v. Kell, which asked if the entry of a Rhines stay in federal habeas proceedings was immediately appealable under the collateral-order doctrine.