Weekly Roundup

The Week in Federal Appellate Jurisdiction: October 2–8, 2022

Appeals from injunctions before the district court sets the terms and from stipulated dismissals of unresolved claims.

October 12, 2022

By Bryan Lammon

There were only two decisions of note from last week, both from the Eleventh Circuit. One involved a purported injunction appeal before the district court set the terms of the injunction. The other involved the purported stipulated dismissal of all unresolved claims.

An Injunction Without Terms Is Not an Appealable Injunction

In Curling v. Raffensperger, the Eleventh Circuit dismissed an injunction appeal because the district court had not yet set the terms of the injunction.

Simplifying a bit, the case involved a challenge to certain settings on Georgia’s ballot scanners. The plaintiffs sought an order requiring the the scanners to be programmed to recognize slight marks (such as Xs) in addition to fully filled-in bubbles. The district court sided with the plaintiffs. But it did not not specify the settings that Georgia had to use. The district court instead asked the plaintiffs to propose new settings, which the plaintiffs promptly did. The district court did not follow up on this, however. After some time, the state appealed.

The Eleventh Circuit dismissed the appeal insofar as it challenged the district court’s conclusion about ballot-scanner settings. Orders granting injunctive relief are appealable under 28 U.S.C. § 1292(a)(1). But for there to be an appealable injunction, the court must specify injunctive relief. The district court had not yet done so. So the state’s appeal was premature.

Curling v. Raffensperger, 2022 WL 5056335 (11th Cir. Oct. 5, 2022), available at the Eleventh Circuit and Westlaw

The Eleventh Circuit on Stipulated Dismissals of Unresolved Claims

In Ellison v. Postmaster General, the Eleventh Circuit held that a Rule 41(a)(2) dismissal of unresolved claims, combined with a Rule 54(b) partial judgment, permitted an appeal from resolved claims.

Simplifying a bit, the complaint in Ellison included three counts. The district court dismissed one of them at the pleading stage. The parties then filed a joint stipulation of dismissal under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). This stipulation purported to dismiss the unresolved counts with prejudice while preserving the right to appeal the dismissed one. The district court then dismissed the two unresolved counts with prejudice and entered a partial judgment on the dismissed count under Federal Rule of Civil Procedure 54(b).

The Eleventh Circuit said that the parties’ stipulated dismissal was improper. In Perry v. Schumacher Group of Louisiana, the Eleventh Circuit held that Rule 41(a)(1)(A)(ii) permits parties to stipulate to the dismissal of an entire action, not individual claims. But the court of appeals still had jurisdiction. The district court could—and did—order dismissal of the unresolved counts under Rule 41(a)(2). That court-ordered (rather than party-stipulated) dismissal, combined with the entry of a Rule 54(b) partial judgment, preserved the plaintiff’s right to appeal the district court’s resolution of one count.

Ellison v. Postmaster General, 2022 WL 4726121 (11th Cir. Oct. 3, 2022), available at the Eleventh Circuit and Westlaw

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