The Weeks in Federal Appellate Jurisdiction: February 6–19, 2022

After taking last week off from the roundup, I’m back with a two-week edition. The Fourth Circuit split on whether it could extend pendent appellate jurisdiction over orders directing arbitration. The First Circuit determined that a district court’s criticism of attorneys was not sufficiently related to a formal sanction to be appealable. Plus pendent appellate jurisdiction over an amendment decision, the scope of review in Black Lung Benefits appeals, and whether a discovery order requiring the turning over of cell phones was an appealable injunction.

• Arbitration, Pendent Appellate Jurisdiction, and Appealable “Orders”
• The First Circuit Dismissing an Appeal Challenging Attorney Criticism
• Quick Notes

Arbitration, Pendent Appellate Jurisdiction, and Appealable “Orders”

The general rule for appealing interlocutory arbitration orders is pretty straightforward. Under 9 U.S.C. § 16, orders that refuse to direct arbitration under the Federal Arbitration Act are immediately appealable. Orders that direct arbitration aren’t. But what if an order directs arbitration on some claims but not on others?

In Lyons v. PNC Bank, the Fourth Circuit split on whether it could use use pendent appellate jurisdiction to review an order insofar as it directed arbitration. Without much explanation, the court held that § 16 does not limit the use of pendent appellate jurisdiction. And extending pendent appellate jurisdiction in Lyons was appropriate, as the court’s resolution of the appealable issue meant meant that none of the claims were subject to arbitration. Judge Quattlebaum dissented, contending that § 16’s bar on appeals from orders directing arbitration prohibited the use of pendent appellate jurisdiction.

One twist that Lyons did not mention is § 16’s use of the word “order.” The Supreme Court recently said in B.P. P.L.C. v. Mayor & City Council of Baltimore that an appeal from a remand order under 28 U.S.C § 1447(d) encompasses all issues addressed in that order. I was no fan of that decision. And now it makes me wonder what to do with § 16, which permits appeals from “order[s]” that reject arbitration while prohibiting appeals from “order[s]” favorable to arbitration. If an order does both, BP suggests the absurd conclusion that the entire order is both appealable and not appealable.

For more, see my post on Lyons: Arbitration, Pendent Appellate Jurisdiction, and Appealable “Orders”.

Lyons v. PNC Bank, 2022 WL 453060 (4th Cir. Feb. 15, 2022), available at the Fourth Circuit and Westlaw.

The First Circuit Dismissing an Appeal Challenging Attorney Criticism

In Arkansas Teacher Retirement System v. State Street Corp., the First Circuit dismissed an appeal insofar as it challenged the district court’s statements criticizing an attorney.

Arkansas Teacher Retirement stemmed from a dispute over attorney fees after a successful class action. In awarding fees to the class attorneys, the district court criticized the attorneys for—among other things—making misleading statements about the fees they normally charged paying clients. The district court also determined that those attorneys violated Federal Rule of Civil Procedure 11 by misrepresenting a study regarding fees in similar cases. The court accordingly sanctioned the attorneys. Those attorneys then appealed both the district court’s criticism of their conduct and the sanctions order.

Appellate jurisdiction over the sanctions order was straightforward—it was a final decision imposing Rule 11 sanctions. The criticisms were a different story. In the First Circuit, a district court’s criticism of an attorney is not normally appealable, as it’s not a decision, order, judgment, or decree. Criticism can be appealed if it relates to a formal censure, such as Rule 11 sanctions. But there was no connection between the criticism and sanctions in Arkansas Teacher Retirement. There was some indication that the criticism influenced the ultimate fee award. But the attorneys had not appealed the fee award. There was thus no appealed decision related to the criticisms, and the First Circuit lacked jurisdiction to review them.

Last I checked, there was a circuit split on when attorney criticisms can be appealed. For more on the issue, see Matthew Funk, Sticks and Stones: The Ability of Attorneys to Appeal from Judicial Criticism.

Arkansas Teacher Retirement System v. State Street Corp., 2022 WL 391450 (1st Cir. Feb. 9, 2022), available at the First Circuit and Westlaw.

Quick Notes

In B.A. Kelly Land Co. v. Aethon Energy Operating, L.L.C., the Fifth Circuit extended pendent appellate jurisdiction to an order denying leave to amend a complaint. The case was on appeal from a Federal Rule of Civil Procedure 54(b) partial judgment after the district court granted summary judgment to the defendant on some of the plaintiff’s claims. The Fifth Circuit concluded that it could also review the denial of the plaintiff’s motion to amend its complaint to add a defendant. The amended pleading sought to add a non-diverse party, which (if allowed) would have deprived the district court of subject-matter jurisdiction. Reviewing the amendment order, the Fifth Circuit concluded, was thus necessary “to ensure that the district court had subject-matter jurisdiction.”

B.A. Kelly Land Co. v. Aethon Energy Operating, L.L.C., 2022 WL 417410 (5th Cir. Feb. 11, 2022), available at the Fifth Circuit and Westlaw.

In Samons v. National Mines Corp., the Sixth Circuit noted that interlocutory decisions under the Black Lung Benefits Act merge into the Benefit Review Board’s final order. The Sixth Circuit’s 1990 decision in Bartley v. L & M Coal Co. could be read to suggest a contrary conclusion. But that reading of Bartley would have put the Sixth Circuit “at odds with the views of the other circuit courts—which have uniformly recognized that courts have jurisdiction to review rulings made in interlocutory orders once the Board issues a final order.” The Board’s interlocutory decisions can thus be reviewed in an appeal from the Board’s final order.

Samons v. National Mines Corp., 2022 WL 420539 (6th Cir. Feb. 11, 2022), available at the Sixth Circuit and Westlaw.

And in Jones v. Riot Hospitality Group LLC, the Ninth Circuit dismissed an appeal from an order requiring litigants to temporarily provide their cell phones so that the data on the phones could be preserved for discovery. The discovery order was not an appealable injunction, as it did not impose potentially irreparable harm or award any substantive relief, and the litigants could appeal the order via the contempt option. The discovery order was also not appealable via the collateral-order doctrine, as—again—it could be reviewed via a contempt appeal.

Jones v. Riot Hospitality Group LLC, 2022 WL 401329 (9th Cir. Feb. 9, 2022), available at the Ninth Circuit and Westlaw.