Undoing voluntary dismissals designed to manufacture an appeal and appeals from order deeming a defendant competent to stand trial.
October 27, 2020
Last week saw two decisions of note. The Ninth Circuit suggested that plaintiffs can reinstate claims that they had voluntarily dismissed in a failed attempt to manufacture an appeal. And the Tenth Circuit held that criminal defendants cannot immediately appeal from orders deeming them competent to stand trial.
- The Ninth Circuit on Do Overs & Voluntary Dismissals
- The Tenth Circuit Says No Appeals from Orders Deeming Defendants Competent
The Ninth Circuit on Do Overs & Voluntary Dismissals
In Gonzalez v. Coverall North America, Inc., a split Ninth Circuit seemed open to parties’ undoing voluntary dismissals that were done to manufacture an appeal. Although the opinion is short and unpublished, there’s a lot of interesting stuff going on.
The Two Appeals in Gonzalez
Gonzalez involved two trips to the Ninth Circuit, and the procedural history is especially important. The plaintiff ran a franchise of Coverall North America, Inc., a commercial cleaning business. He sued Coverall, alleging that he was misclassified as an independent contractor rather than an employee. At Coverall’s request, the district court sent the dispute to arbitration and stayed further proceedings.
The First Appeal
Shortly thereafter, and at the plaintiff’s request, the district court dismissed the plaintiff’s claims without prejudice. The plaintiff then appealed the district court’s decision to compel arbitration.
In this first appeal, the Ninth Circuit held that it lacked jurisdiction. An order compelling arbitration and staying further proceedings is not appealable. “Under the [Federal Arbitration Act], a party seeking to appeal an order staying the action and compelling arbitration must first secure permission from both the district court and the court of appeals under 28 U.S.C. § 1292(b).” The plaintiff in Gonzalez did not obtain a § 1292(b) certification, so he could not appeal the arbitration order.
The subsequent dismissal of the plaintiff’s claims did not change things. Granted, some courts have held that parties can appeal from an order dismissing—rather than staying—all claims in favor of arbitration. But the plaintiff in Gonzalez had voluntarily dismissed his claims without prejudice, with the express intention to manufacture an interlocutory appeal. That voluntary dismissal was not appealable. The Ninth Circuit accordingly dismissed the appeal for a lack of jurisdiction.
The Second Appeal
Back in the district court, the plaintiff sought to undo his voluntary dismissal via Federal Rule of Civil Procedure 60(b)(6). The plaintiff said he had voluntarily dismissed his claims in reliance on circuit precedent allowing appeals after a district court had ordered arbitration and dismissed all claims. The plaintiff asserted that “he could not have anticipated [the Ninth Circuit’s] dismissal of his [first] appeal for lack of jurisdiction.” The district court denied this motion, prompting a second appeal.
The Ninth Circuit on Undoing Voluntary Dismissals
In this second appeal, a majority of the Ninth Circuit sent the case back to the district court for reconsideration in light of Henson v. Fidelity National Financial, Inc.
Baker, Henson, and Failed Attempts to Manufacture a Class-Certification Appeal
Henson dealt with the aftermath of the Supreme Court’s decision in Microsoft Corp. v. Baker. Before Baker, the Ninth Circuit held that plaintiffs seeking to bring a class action could voluntarily dismiss their individual claims and immediately appeal the denial of class certification. Baker abrogated that line of authority, holding that these appeals were improper attempts to circumvent Rule 23(f).
The Ninth Circuit then had to determine what to do with plaintiffs who had voluntarily dismissed their claims before Baker in reliance on the Ninth Circuit’s pre-Baker caselaw. Henson held that Baker was an intervening change in law that could warrant Rule 60(b)(6) relief from the voluntary dismissal. That is, plaintiffs who relied on pre-Baker caselaw might be able to undo their voluntary dismissals.
For more on the voluntary-dismissal tactic, Henson, and attempts to undo pre-Baker voluntary dismissals, see these posts:
- Undoing Voluntary Dismissals of Class Actions After Baker.
- Ninth Circuit: Not All Pre-Baker Dismissals Can Be Undone
- March 28, 2020, Roundup: Another Ninth Circuit decision on undoing pre-Baker dismissals
Undoing a Different Kind of Manufactured Appeal
A majority of the panel in Gonzalez thought that the case was somewhat similar to Henson. Henson, the court noted, addressed the considerations relevant to “a Rule 60(b)(6) motion that seeks relief from the dismissal of a [lawsuit] on the ground of an intervening change in the law.” And Henson came after the Gonzalez district court’s denial of Rule 60(b)(6) relief. The district court thus did not have the benefit of Henson when it decided the plaintiff’s motion. The Ninth Circuit accordingly remanded the case for reconsideration of the Rule 60(b)(6) motion.
Judge Collins Dissents
Judge Collins dissented. Henson, Judge Collins explained, involved an intervening decision from the Supreme Court. There was no intervening Supreme Court decision—or even intervening Ninth Circuit decision—in Gonzalez. The court had merely dismissed a prior appeal in the case for a lack of jurisdiction. Perhaps the plaintiff did not anticipate the dismissal of his first appeal. But an unanticipated decision on appeal, Judge Collins contended, does not warrant Rule 60(b)(6) relief. That’s especially true when that decision was consistent with the existing law governing attempts to manufacture appeals.
Gonzalez v. Coverall North America, Inc., 2020 WL 6158094 (9th Cir. Oct. 21, 2020), available at the Ninth Circuit and Westlaw.
The Tenth Circuit Says No Appeals from Orders Deeming Defendants Competent
In United States v. Perea, the Tenth Circuit held that a criminal defendant cannot immediately appeal an order deeming the defendant competent to stand trial.
The district court had deemed the defendant in Perea competent to stand trial. He then sought to appeal that decision via the collateral-order doctrine. That doctrine allows immediate appeals from orders that (1) conclusively resolve an issue, (2) present an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal from a final judgment. The Tenth Circuit said that the competency order easily satisfied the second requirement—the defendant’s competency was important and separate from the merits.
But the order failed the first and third requirements. The order did not conclusively resolve competency because either party could move for a competency hearing at any time before sentencing. So even if a district court deems the defendant competent, the court might revisit that determination as the litigation proceeds.
The competency order also could be effectively reviewed after a final judgment. The court said that the case was one in which it could retrospectively determine the defendant’s competency:
The record here is replete with psychiatric evaluations and hundreds of pages of testimony from two separate doctors. On appeal from a final judgment, this court will be able to review the record and adequately determine whether Defendant was tried and convicted while incompetent.
Further, incompetency is not an immunity from suit. Although the Supreme Court has occasionally described incompetency as such, it is not an absolute protection like double jeopardy or speech-and-debate rights. So an erroneous competency decision can be effectively reviewed after a final judgment. Emphasizing the collateral-order doctrine’s narrow application in the criminal context, the Tenth Circuit concluded that any appeal of the competency order must wait until after a final judgment.
United States v. Perea, 2020 WL 6140996 (10th Cir. Oct. 20, 2020), available at the Tenth Circuit and Westlaw.