The Week in Federal Appellate Jurisdiction: Winter Break 2020

I took a little break from Final Decisions over the holidays. And that means an extra-large roundup to start the new year—the last two weeks of 2020 produced a plethora of interesting appellate-jurisdiction decisions.

The First Circuit addressed another attempted appeal from the denial of a temporary restraining order in a COVID-related case. In a challenge to regulations implementing the Paycheck Protection Program, the Eleventh Circuit tackled certified appeals and core/non-core proceedings in bankruptcy. Two courts of appeals addressed attempted appeals involving arbitration; the Ninth Circuit held that Microsoft Corp. v. Baker prohibited manufactured finality in the arbitration context, and the Sixth Circuit said that defendants must actually ask for arbitration before they can invoke the special appeal rules in the Federal Arbitration Act. Two courts of appeals held that they lacked jurisdiction to review magistrate judge decisions that were never reviewed by the district court. The D.C. Circuit held that the expiration of the time to amend a complaint did not render a dismissal final. The Eighth Circuit said plaintiffs couldn’t appeal prior district court decisions after a dismissal for failure to prosecute. And the Tenth Circuit extended pendent appellate jurisdiction over part of a municipal appeal.

• The First Circuit Rejected a TRO Appeal Regarding Maine’s COVID-19 Restrictions
• The Eleventh Circuit on Finality, Non-Core Proceedings, and Certified Bankruptcy Appeals
• The Ninth Circuit on Manufactured Appeals Involving Arbitration
• The Sixth Circuit Said No Arbitration Appeals When No One Sought Arbitration
• Two Courts Rejected Appeals from Magistrate Judge Decisions
• More Springing Finality in the D.C. Circuit
• The Eighth Circuit on the Appeal Consequences of Failures to Prosecute
• The Tenth Circuit Extended Pendent Appellate Jurisdiction Over Part of a Municipal Appeal

The First Circuit Rejected a TRO Appeal Regarding Maine’s COVID-19 Restrictions

In Calvary Chapel of Bangor v. Mills, the First Circuit held that the denial of a TRO against Maine’s COVID-19 prohibitions on social gatherings did not effectively deny injunctive relief.

The case involved a church’s challenge to these prohibitions, which limited social gatherings to 10 people. Shortly after filing its complaint, the church sought a TRO. Two days later, the parties and the district court judge conferred via telephone. The state filed a response to the TRO request the next day. And two days after that, the district court denied the TRO. The church then appealed.

The First Circuit concluded that it lacked jurisdiction over the appeal. Although denials of preliminary injunctions are appealable under 28 U.S.C. § 1292(a)(1), denials of TROs generally aren’t. An exception to this general rule exists when the denial of a TRO effectively denies an injunction. But that exception didn’t apply in Calvary Chapel.

For one thing, there had been no adversarial hearing (only a phone conference) or practical denial of injunctive relief. The parties needed to marshal evidence on several important fact issues, which the district court could resolve as part of a subsequent request for a preliminary injunction.

For another, the First Circuit saw little likelihood of serious, irreparable harm. To be sure, “even a temporary restriction of traditional in-person worship opportunities may represent a tangible hardship for religious organizations and their members.” But assessing harm required accounting for context. And “[h]ere, the need for context require[d] that a significant countervailing factor must be included in the mix: the harm of which the Chapel complains has its origins in the extraordinary epidemiological crisis that has engulfed Maine and every other part of the United States.” The church also had alternatives, such as online or drive-in services. “Given the gravity of the situation and the fact that events remained in flux,” the First Circuit could not find a serious harm.

And the church would not be denied effective appellate review absent an immediate appeal. It could still seek a preliminary injunction. And if it is unsatisfied with the district court’s decision on that request, it could then appeal via § 1292(a)(1).

Judge Barron concurred in part and in the judgment to say that the court needed only to say that the district court had not effectively denied a preliminary injunction. He saw no need to address the conditions under which the denial of a TRO would be appealable.

Calvary Chapel of Bangor v. Mills, 2020 WL 7585178 (1st Cir. Dec. 22, 2020), available at the First Circuit and Westlaw.

The Eleventh Circuit on Finality, Non-Core Proceedings, and Certified Bankruptcy Appeals

Appellate jurisdiction in bankruptcy cases can be tricky. The rules governing finality are different. And there’s an an extra tier of intermediate appellate review, with cases first going to a district court or Bankruptcy Appellate Panel before they can reach the courts of appeals. Litigants can skip this extra tier of review and proceed straight to the courts of appeals if the bankruptcy court certifies a decision for a direct appeal. But only certain kinds of decisions—those entered in “core” bankruptcy proceedings—can be so certified.

The Eleventh Circuit recently had to tackle these matters in In re Gateway Radiology Consultants, P.A. The case involved a debtor’s attempts to secure a loan under the Paycheck Protection Program. In a non-core proceeding, the bankruptcy court enjoined the enforcement of regulations that prohibited debtors from obtaining loans under the Program. And in a core proceeding, the court authorized the debtor to incur the additional debt of a loan under the Program. The bankruptcy court then certified both of these decisions for a direct appeal under 28 U.S.C. § 158(d)(2).

The Eleventh Circuit held that certification of both orders was appropriate. Granted, only one—the order authorizing additional debt—was entered in a core proceeding and thus normally eligible for certification under § 158(d)(2). But that decision depended entirely on the injunction entered in the non-core proceeding. And that made the resolution of the non-core proceeding sufficiently final for a certified appeal.

For more, see my post Non-Core Proceedings and Certified Bankruptcy Appeals.

In re Gateway Radiology Consultants, P.A., 2020 WL 7579338 (11th Cir. Dec. 22, 2020), available at the Eleventh Circuit and Westlaw.

The Ninth Circuit on Manufactured Appeals Involving Arbitration

In 2017’s Microsoft Corp. v. Baker, the Supreme Court held that plaintiffs wanting to bring a class action cannot voluntarily dismiss their individual claims with prejudice and then appeal the denial of class certification. In doing so, the Supreme Court abrogated a line of Ninth Circuit decisions that allowed this voluntary-dismissal tactic. But class actions were not the only context in which the Ninth Circuit had sanctioned these appeals after voluntary dismissals. In 2010’s Omstead v. Dell, Inc., the Ninth Circuit held that plaintiffs could appeal decisions ordering arbitration by voluntarily dismissing their claims with prejudice.

In last week’s Langere v. Verizon Wireless Services, LLC, the Ninth Circuit held that Baker abrogated Omstead. Just like in the class-action context, the the voluntary-dismissal tactic in the arbitration context allowed plaintiffs to circumvent the rules governing appellate jurisdiction, invited protracted litigation and piecemeal appeals, and benefited only plaintiffs. So plaintiffs in the Ninth Circuit can no longer manufacture an appeal from an arbitration order by voluntarily dismissing their claims with prejudice.

For more on the decision, see my post Manufactured Finality in Arbitration Appeals.

Langere v. Verizon Wireless Services, LLC, 2020 WL 7705568 (9th Cir. Dec. 29, 2020), available at the Ninth Circuit and Westlaw.

The Sixth Circuit Said No Arbitration Appeals When No One Sought Arbitration

In United States ex rel. Dorsa v. Miraca Life Sciences, a divided Sixth Circuit held that it lacked appellate jurisdiction under 9 U.S.C. § 16 when no one asked for—and the district court did not refuse to order—arbitration.

The plaintiff in Dorsa brought qui tam claims against his employer under the False Claims Act. When the employer later fired him, he added a retaliation claim. After the qui tam claims were resolved, the employer moved to dismiss the retaliation claim. The employer argued that the plaintiff had failed to state a claim because he had agreed to resolve all disputes via arbitration. The employer alternatively argued that, “because of the arbitration agreement, the district court did not have subject matter jurisdiction over the claim, and the suit had been brought in an improper venue.” The district court denied the motion to dismiss, holding that the arbitration agreement did not cover a retaliation claim under the False Claims Act. The employer then appealed.

A majority of the Sixth Circuit held that it lacked jurisdiction. Under § 16, parties may immediately appeal from a decision refusing to order arbitration or refusing to stay an action in favor of arbitration. But to invoke § 16, a party must actually ask the district court to order arbitration. Even if the district court’s decision has the practical effect of denying arbitration, that’s not enough. “When the essence of a party’s motion was not for relief under the Federal Arbitration Act, no § 16(a) appellate jurisdiction exists over the denial of that motion.” (Cleaned up.)

The employer in Dorsa never actually asked the district court to compel arbitration or stay proceedings. It sought only to dismiss the plaintiff’s claims for failure to state a claim, lack of jurisdiction, and improper venue. The court accordingly distinguished Dorsa from prior cases (such as Turi v. Main St. Adoption Services, LLP) in which appellants sought at least some relief under the Federal Arbitration Act. The “essence” of the employer’s motion in Dorsa sought dismissal, not arbitration. So the Sixth Circuit lacked appellate jurisdiction.

Judge Batchelder dissented. She contended that the employer’s motion should have been construed as one seeking arbitration. And she thought that doing so was compelled by Turi, which the majority had deemed distinguishable.

United States ex rel. Dorsa v. Miraca Life Sciences, 2020 WL 7759475 (6th Cir. Dec. 30, 2020), available at the Sixth Circuit and Westlaw.

Two Courts Rejected Appeals from Magistrate Judge Decisions

Two circuits dismissed appeals from magistrate judge decisions, holding that those decisions were not decisions of a district court.

In Devine v. Walker, a magistrate judge stayed all proceedings due to the difficulty in scheduling the plaintiff’s deposition. The plaintiff objected to the magistrate judge’s decision. But the district court never acted on the objection. It instead referred it back to the magistrate judge, who denied any relief. The plaintiff then appealed.

The Eighth Circuit held that it lacked jurisdiction. 28 U.S.C. § 1291 permits appeals from the final decisions of district courts. And, as the court explained, a magistrate judge’s decision is generally not considered a decision of a district court. With no decision from the district court, there was nothing to appeal. The Eighth Circuit noted that the district court should have addressed the plaintiff’s objections to the stay order. But the Eighth Circuit still had no jurisdiction over the appeal.

Similarly, in United States v. Al-Nouri, a magistrate judge denied bail in an extradition proceeding. Rather than object to that decision in the district court, the defendant appealed.

The Ninth Circuit dismissed the appeal for a lack of jurisdiction. Like Devine, there was no final decision of a district court. The Ninth Circuit added that the Magistrate Judges Act—which authorizes magistrate judges to enter final decisions in certain matters on consent of the parties—also did not authorize the appeal; the bail determination was “not a judgment ‘in a jury or nonjury civil matter’ upon ‘consent of the parties.’” The proper avenue for appeal, the Ninth Circuit explained, would be to seek review of the magistrate judge’s bail decision in the district court. If the district court denied bail, that decision would then be appealable.

Devine v. Walker, 2020 WL 7775519 (8th Cir. Dec. 31, 2020), available at the Eighth Circuit and Westlaw.

United States v. Al-Nouri, 2020 WL 7485218 (9th Cir. Dec. 21, 2020), available at the Ninth Circuit and Westlaw.

More Springing Finality in the D.C. Circuit

In De la Fuente v. DNC Services Corp., the D.C. Circuit held that a dismissal with leave to amend did not become final once the time for amending expired.

The plaintiff in De la Fuente brought civil-rights claims against the Democratic National Committee, alleging that the Committee’s failure to support the plaintiff’s candidacy for president in 2016 was discriminatory. The district court dismissed the plaintiff’s complaint for failure to state a claim. But it also gave the plaintiff permission to file an amended complaint. The plaintiff later filed a motion to alter or amend the judgment, which the district court denied as unnecessary. There was no judgment, the district court explained, as only the complaint—not the entire action—had been dismissed. The district court gave the plaintiff another 30 days to file an amended complaint. But rather than file an amended complaint, the plaintiff appealed.

The D.C. Circuit determined that the district court had not entered a final, appealable decision. A dismissal of a complaint—not an entire action—is normally not final or appealable. And the district court had dismissed only the complaint.

The expiration of the time to file an amended complaint did not change this. To be sure, the expiration of time to amend can render a dismissal final; this is sometimes called “springing finality.” But according to the D.C. Circuit, the district court must have indicated that the action would be over without an amended complaint. The district court in De la Fuente had not done so. So the “[e]xpiration of the thirty-day amendment period alone, without any prior or contemporaneous entry of judgment or statement of the district court’s intent that final judgment be entered, does not suffice to end that court’s involvement with the case.”

The D.C. Circuit also distinguished De la Fuente from its recent decision in North American Butterfly Association v. Wolf. (You can read about that decision here.) The district court in North American Butterfly had dismissed the entire case but then issued a minute order giving the plaintiff 14 days to file an amended complaint.

The court did not discuss whether the plaintiff’s appeal indicated an intent to stand on the complaint.

De la Fuente v. DNC Services Corp., 2020 WL 7864343 (D.C. Cir. Dec. 29, 2020), available at Westlaw.

The Eighth Circuit on the Appeal Consequences of Failures to Prosecute

In Beadle v. City of Omaha, the Eighth Circuit held that dismissal for a failure to prosecute deprived the court of jurisdiction to review prior district court decisions.

Beadle involved a fatal police shooting, with the decedent’s estate suing both the shooting officer and others. The district court dismissed all claims against the officer. The estate then more or less abandoned the case, failing to respond to motions or the court’s order to show cause as to why the case shouldn’t be dismissed for failure to prosecute. So the district court dismissed the case for failure to prosecute. The estate then appealed. And in that appeal, the estate challenged only the order dismissing all claims against the officer.

The Eighth Circuit held that it lacked jurisdiction to review anything but the dismissal for failure to prosecute (which the estate did not challenge). As a general rule, all interlocutory orders merge into a final judgment. So long as subsequent events have not rendered those orders moot, appellants can challenge them in an appeal from a final judgment.

But the Eighth Circuit has recognized an exception to this general rule when a district court dismisses a case for failure to prosecute. Courts are concerned that plaintiffs might use these dismissals to manufacture an appeal. Facing an interlocutory order (like the dismissal of all claims against the officer in Beadle), a plaintiff might invite a dismissal for failure to prosecute to secure an appealable final decision. Like most manufactured appeals, this tactic is an end-run around the normal rules governing appellate jurisdiction. It’s actually worse than attempts to manufacture finality via a voluntary dismissal; the tactic requires inaction by the plaintiff and delayed district court proceedings to secure appellate review.

The Eighth Circuit accordingly held that it lacked jurisdiction to review the interlocutory order dismissing the claims against the officer. And because the estate did not challenge the dismissal for failure to prosecute, there was nothing left for the court of appeals to do.

Beadle v. City of Omaha, 2020 WL 7775523 (8th Cir. Dec. 31, 2020), available at the Eighth Circuit and Westlaw.

The Tenth Circuit Extended Pendent Appellate Jurisdiction Over Part of a Municipal Appeal

Finally, in Crowson v. Washington County, the Tenth Circuit extended pendent appellate jurisdiction to part of a municipality’s appeal alongside individual defendants’ qualified-immunity appeals.

The case involved constitutional claims against the medical staff at a jail and the county that ran the jail. The district court denied the individual defendants’ request for qualified immunity and the county’s motion for summary judgment. All defendants then appealed.

The medical staff could immediately appeal the denial of qualified immunity. But jurisdiction over the municipality’s appeal was less clear. As a general rule, municipalities cannot immediate appeal the denial of a motion for summary judgment on a municipal-liability claim. But most courts will allow municipalities to tag along with individual defendants’ qualified-immunity appeals so long as those immunity appeals necessarily resolve the claims against the municipality. When resolution of the appealable issue necessarily resolves a non-appealable issue, the court deems the two issues “inextricably intertwined” and exercises pendent appellate jurisdiction over the normally non-appealable one.

That was partially the case in Crowson. In one individual defendant’s appeal, the Tenth Circuit held that no constitutional violation occurred. And that conclusion resolved one of the claims—a failure-to-train claim—against the county. The Tenth Circuit accordingly extended pendent appellate jurisdiction over that claim and reversed the denial of summary judgment.

But another one of the plaintiff’s claims, the Tenth Circuit concluded, did not require a constitutional violation by any individual county employee. The plaintiff had also alleged that “a systemic failure of medical policies and procedures” caused his injuries. Even if the individual defendants did not themselves violate the constitution, their combined acts could be sufficient for municipal liability. The individual defendants’ appeals accordingly did not necessarily resolve this systemic-failure claim. So the Tenth Circuit lacked jurisdiction over it.

Crowson v. Washington County, 2020 WL 7706471 (10th Cir. Dec. 29, 2020), available at the Tenth Circuit and Westlaw.