The Week in Federal Appellate Jurisdiction: September 18–24, 2022

In what was probably last week’s most widely read order, the Eleventh Circuit referred to its pendent appellate jurisdiction. The Fifth Circuit dismissed an appeal from a party that could not get an immediate vacatur of an injunction. The Third Circuit addressed diversity jurisdiction, despite that issue not being part of the order certified for an immediate appeal via § 1292(b). Plus decisions on qualified-immunity appeals and bankruptcy remands.

• The Eleventh Circuit on Pendent Appellate Jurisdiction Over a Special Master’s Authority
• The Fifth Circuit Dismissed an Appeal From an Order Denying the Immediate Vacatur of an Injunction
• The Third Circuit on Subject-Matter Jurisdiction Issues in § 1292(b) Appeals
• The Eighth Circuit on Qualified-Immunity Appeals (& Other Appeals) After a Decision on Liability
• The Ninth Circuit on Bankruptcy Remands
• The Third Circuit on Qualified-Immunity Appeals & Amended Complaints

The Eleventh Circuit on Pendent Appellate Jurisdiction Over a Special Master’s Authority

In Trump v. United States (no slip opinion on the Eleventh Circuit’s site), the Eleventh Circuit stayed an injunction that (1) required submission of classified material to a special master and (2) prohibited the government from using certain documents in a criminal investigation. In the course of its decision, the Eleventh Circuit noted that it had jurisdiction to review the injunction under 28 U.S.C. § 1292(a)(1). And in response to the plaintiff’s argument that the Eleventh Circuit lacked jurisdiction to review the special master’s authority, the Eleventh Circuit said that its pendent appellate jurisdiction allowed it to “to address an otherwise nonappealable order when it is inextricably intertwined with an appealable decision, or when review of an otherwise-nonappealable order ‘is necessary to ensure meaningful review’ of an appealable decision.”

Trump v. United States, 2022 WL 4366684 (11th Cir. Sep. 21, 2022), available at Westlaw

The Fifth Circuit Dismissed an Appeal From an Order Denying the Immediate Vacatur of an Injunction

In June Medical Services, L.L.C. v. Phillips, the Fifth Circuit dismissed an appeal from a district court’s refusal to immediately vacate an injunction.

After the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, Louisiana asked the district court in June Medical Services to vacate an injunction against certain abortion restrictions. Louisiana requested that relief “forthwith,” and no later than two days after filing its motion. The district court denied that request. It intended to decide the motion under normal, non-accelerated procedures. In response, Louisiana “immediately filed an ‘emergency motion for reconsideration’ and requested a ruling by the next day.” The district court denied that, too. Louisiana appealed.

The Fifth Circuit held that it lacked jurisdiction over the appeal. Orders refusing to dissolve or modify an injunction are normally immediately appealable via 28 U.S.C. § 1292(a)(1). But the district court’s order did not fall into that category. The order was instead administrative—it determined how litigation was going to proceed. The district court thus did not deny the substance of Louisiana’s request. The court instead determined only the timeline for considering and deciding that request. That sort of administrative order—essentially a scheduling order—is not an appealable injunction.

June Medical Services, L.L.C. v. Phillips, 2022 WL 4360593 (5th Cir. Sep. 21, 2022), available at the Fifth Circuit and Westlaw

The Third Circuit on Subject-Matter Jurisdiction Issues in § 1292(b) Appeals

In Peace Church Risk Retention Group v. Johnson Controls Fire Protection LP, the Third Circuit reviewed the existence of diversity jurisdiction as part of a certified appeal under § 1292(b).

The case involved an insurance dispute. The district court denied the defendant’s motion to dismiss. But it thought that the plaintiffs’ theory of liability was sufficiently novel to warrant an immediate appeal under 28 U.S.C. § 1292(b). The district court accordingly certified its order denying the motion to dismiss, and the Third Circuit then the appeal.

But in the course of deciding the appeal, a question as to subject-matter jurisdiction arose: were the parties diverse? The Third Circuit explained that it could address this question. The court of appeals had a “continuing obligation to assess subject matter jurisdiction sua sponte at all stages of the proceeding, even when parties do not raise the issue.”

Peace Church Risk Retention Group v. Johnson Controls Fire Protection LP, 2022 WL 4352489 (3d Cir. Sep. 20, 2022), available at the Third Circuit and Westlaw

The Eighth Circuit on Qualified-Immunity Appeals (& Other Appeals) After a Decision on Liability

In Clinton v. Garrett, the Eighth Circuit reviewed a district court’s decision finding the defendants liable insofar as that decision denied qualified immunity.

Simplifying a little bit, the district court resolved all liability issues at summary judgment, concluding that the defendants were liable to the plaintiff on some of his claims. In the course of making its decision, the district court denied qualified immunity to those defendants on both federal and state claims. The district court planned to try the amount of damages to a jury. But before that trial could occur, the defendants appealed.

The Eighth Circuit held that it had jurisdiction over the denial of qualified immunity on the federal claims. A decision denying qualified immunity is immediately appealable via the collateral-order doctrine.

But the court of appeals lacked jurisdiction over the denial of immunity on the state law claims. The Eighth Circuit would exercise pendent appellate jurisdiction over denials of immunity on state law claims if those claims were “inextricably intertwined” with the federal qualified-immunity defense. But the relevant state immunity in Clinton required a different analysis. So pendent appellate jurisdiction was not available.

Clinton v. Garrett, 2022 WL 4362171 (8th Cir. Sep. 21, 2022), available at the Eighth Circuit and Westlaw

The Ninth Circuit on Bankruptcy Remands

In In re Gould, the Ninth Circuit reviewed a district court order that remanded a dispute to the bankruptcy court. Normally a remand order like this is not final under 28 U.S.C. § 158(d). But an exception exists when the task on remand would be “mechanical or computational” and thus “highly unlikely to generate a new appeal.” And in Gould, the district court had determined the percentage of value that unsecured creditors must be paid. All that remained on remand was to apply that value. So the Ninth Circuit had jurisdiction to review the remand order.

In re Gould, 2022 WL 4353593 (9th Cir. Sep. 20, 2022), available at the Ninth Circuit and Westlaw

The Third Circuit on Qualified-Immunity Appeals & Amended Complaints

In Saint-Jean v. Palisades Interstate Park Commission, the Third Circuit dismissed a qualified-immunity appeal when the plaintiff amended the complaint before the defendants filed their appeal. The court explained that the amended complaint superseded the original. So any appeal from a decision on the first complaint would not conclusively resolve a disputed issue. The court added that denials of qualified immunity under New Jersey’s Tort Claims Act are not immediately appealable, as the immunity is not an immunity from suit. That is, it does not shield defendants from the burdens of litigation.

Saint-Jean v. Palisades Interstate Park Commission, 2022 WL 4393592 (3d Cir. Sep. 23, 2022), available at the Third Circuit and Westlaw