The Week in Federal Appellate Jurisdiction: October 11–17, 2020

After a couple slow weeks in the world of federal appellate jurisdiction, things have picked up. A new cert petition asks the Supreme Court to address appeals after appellants voluntarily dismiss some of their claims with prejudice. The D.C. Circuit divided over when—if ever—a conditional dismissal becomes final and appealable without a subsequent district court order. Another D.C. Circuit decision rejected both parties’ arguments that the partial dismissal of a habeas petition was final and appealable. Plus decisions on injunction appeals and contempt appeals.

• New Cert Petition on the Finality Trap
• The D.C. Circuit Split on Springing Finality
• The D.C. Circuit on Partially Resolved Habeas Petitions
• Quick Notes

New Cert Petition on the Finality Trap

Disclosure: For whatever it’s worth, I’m considering writing an amicus brief in support of cert in this case.

A new cert petition asks the Supreme Court to settle the law governing appeals after some claims have been voluntarily dismissed without prejudice.

The underlying problem here is pretty straightforward. When a party brings multiple claims in a single action, appeals normally must wait until the district court has resolved all of the claims. But plaintiffs don’t always want to wait. So they occasionally try to manufacture an appeal by voluntarily dismissing their remaining claims, appealing, and—regardless of the appeal’s outcome—later reinstating the voluntarily dismissed claims. This tactic skirts the normal limits on interlocutory appeals and the established avenues for taking them.

The courts of appeals have developed various rules for these appeals. Some courts allow them outright. Other courts look for evidence of an attempt to manipulate appellate jurisdiction. Several courts allow parties to solve any finality problems by disclaiming the right to refile the voluntarily dismissed claims. And one court—the Fifth Circuit, from which the petition originates—requires that parties obtain a partial judgment under Federal Rule of Civil Procedure 54(b). (As I’ve said several times on this site, this last rule is an odd one.) These rules can become a trap when the courts don’t allow parties to fix any finality problems, which can forever deprive parties of their right to appeal.

The case is CBX Resources, L.L.C. v. ACE American Insurance Co.. I wrote about the Fifth Circuit’s decision in CBX Resources last May—see Another Victim of the Finality Trap—and hoped that the plaintiff would be able to return to the district court and fix the finality problem. But it appears that the district court refused to change the dismissal to one with prejudice. So perhaps the Supreme Court will clean up the law in this area.

For more on the underlying legal issue, see my post The Fifth Circuit & the Finality Trap.

Petition for a Writ of Certiorari, CBX Resources, L.L.C. v. ACE American Insurance Co., No. 20-478 (Oct. 7, 2020), available at the Supreme Court and Westlaw.

The D.C. Circuit Split on Springing Finality

In North American Butterfly Association v. Wolf, the D.C. Circuit split on when a district court decision is final when the decision dismisses a case with leave to amend within a certain amount of time. The majority held that a plaintiff can appeal after the time to amend expires. At that time, the dismissal is sufficiently final for appeal purposes, and no further district court action is required. Dissenting, Judge Millett contended that a dismissal with a set time to amend is not final or appealable until the district court enters a subsequent order dismissing the claims with prejudice. So an appeal before that with-prejudice dismissal is premature and should be dismissed.

For more, see my post Springing Finality in the D.C. Circuit.

North American Butterfly Association v. Wolf, 2020 WL 6038920 (D.C. Cir. Oct. 13, 2020), available at the D.C. Circuit and Westlaw.

The D.C. Circuit on Partially Resolved Habeas Petitions

In United States v. Clark, the D.C. Circuit held that it lacked jurisdiction to review a decision that resolved only some of the claims in a habeas petition.

The petitioner in Clark had been convicted of a variety of crimes, including kidnapping, armed carjacking, and brandishing a firearm in a crime of violence. The prosecutor’s primary witness later recanted his testimony. The petitioner then sought habeas relief. His pro se petition raised three grounds based on the witness’s recanting. After the district court assigned counsel, the petitioner amended his petition to argue that the statute underlying his firearm conviction was unconstitutionally vague. The district court denied the three claims based on the witness’s recanting. But it put off a decision on the vagueness argument pending the Supreme Court’s decision in United States v. Davis. The petitioner then obtained a certificate of appealability on one of the dismissed claims and appealed.

On appeal, both parties argued that the district court’s decision was appealable, though they gave different reasons for why. The petitioner contended that appellate jurisdiction existed because the district court’s decision was “practically” final. The government argued that the petitioner’s had actually moved for a new trial under Federal Rule of Criminal Procedure 33, and the denial of the Rule 33 motion was final regardless of the vagueness issue.

The D.C. Circuit disagreed with both parties. As for practical finality, the D.C. Circuit noted that the doctrine of practical finality—which comes from the Supreme Court’s decision in Gillespie v. U.S. Steel Corp.—is limited to the facts of Gillespie. (Side note: Gillespie is not as dead as some might think.) And allowing an immediate appeal of only some of the petitioner’s claims while one remains pending in the district court would invite piecemeal appeals. As for Rule 33, the government’s argument was “extraordinary”—there was no question that the petitioner’s motion was one for habeas relief, not a motion for a new trial under Rule 33.

United States v. Clark, 2020 WL 6106286 (D.C. Cir. Oct. 16, 2020), available at the D.C. Circuit and Westlaw.

Quick Notes

In Roman v. Wolf, the Ninth Circuit dismissed the government’s appeal from an order establishing procedures for bail applications. The underlying case is a class-action seeking habeas relief for the class members, and the district court issued orders on how class members’ bail applications would be processed. In the government’s appeal from those orders, the Ninth Circuit held that it lacked appellate jurisdiction. The orders were not appealable injunctions because they neither affected anyone’s rights nor altered an earlier preliminary injunction. The orders instead concerned case management and set out “a streamlined yet individualized review of bail application.”

Roman v. Wolf, 2020 WL 6043833 (9th Cir. Oct. 13, 2020), available at the Ninth Circuit and Westlaw.

And in Ravago Americas L.L.C. v. Vinmar International Ltd., the Fifth Circuit held that it had jurisdiction to review an interlocutory appeal from a contempt order. Appellate jurisdiction turned on the character of the contempt. Although non-parties can immediately appeal from both civil and criminal contempt, parties can immediately appeal only from criminal contempt. And the contemnor in Ravago Americas was a party. The Fifth Circuit ultimately concluded that the contempt was criminal, so the appeal was proper.

Ravago Americas L.L.C. v. Vinmar International Ltd., 2020 WL 6053350 (5th Cir. Oct. 13, 2020), available at the Fifth Circuit and Westlaw.