The Rule 3(c) amendments, stay appeals, immigration appeals, mandamus for a subpoena, appealing the ministerial-exception defense, and more.
November 30, 2022
I took a break from the roundup last week, but I’m back with a double-sized edition. In the last two weeks, another circuit didn’t recognize that the recent Rule 3(c) amendments abrogated its caselaw. The Eleventh Circuit determined that a stay put an action in “suspended animation,” thereby allowing an appeal from the stay. The Fifth Circuit used mandamus to quash a subpoena. And the en banc Fourth Circuit declined to reconsider its decision that defendants cannot immediately appeal denials of the ministerial-exception. Plus immigration appeals, qualified-immunity appeals, and more.
- Another Failure to Acknowledge the Effect of the Rule 3(c) Amendments
- The Eleventh Circuit on “Suspended Animation” Stay Appeals
- The Fifth Circuit on Mandamus & Quashing a Subpoena
- No En Banc Rehearing on Immediate Appeals Involving the Ministerial-Exception Defense
- The Fourth Circuit on Immigration Appeals and Appellate Rule 26(c)
- The Fourth Circuit on Factual Review of Reconsideration Decisions in the Immigration Context
- The Weeks’ Qualified-Immunity Appeals
- Quick Notes
Another Failure to Acknowledge the Effect of the Rule 3(c) Amendments
Recent amendments to Federal Rule of Appellate Procedure 3(c) abrogated the practice of using the order designated in a notice of appeal to limit the scope of appeal. But the courts of appeals have had some trouble in acknowledging these amendments. The Sixth Circuit’s decision in Cretacci v. Hare is the most recent example.
The notice of appeal in Cretacci designated the district court’s final judgment. The appellee nevertheless argued that the failure to designate an earlier summary-judgment decision deprived the Sixth Circuit of jurisdiction over that decision. The Sixth Circuit rejected this argument, stating that “an appeal from a final judgment encompasses all prior rulings and orders where the appellant does not designate specific determinations in its notice of appeal.” (Quotation marks omitted.) Since the appellant “did not designate specific determinations in his notice,” he did not limit the scope of appeal.
That’s the right outcome; designating a final judgment should bring up all orders that merge into that judgment. But the court’s qualification of this rule—that designating specific orders can limit the scope of appeal—is no longer good law. The amendments to Rule 3(c) (which Cretacci cited) abrogated that practice. Rule 3(c)(4) provides that “[t]he notice of appeal encompasses all orders that, for purposes of appeal, merge into the designated judgment or appealable order.” So “[i]t is not necessary to designate those orders in the notice of appeal.” And Rule 3(c)(6) adds that designating a specific order limits the scope of appeal only when the notice “expressly stat[es] that the notice of appeal is so limited.” “Without such an express statement, specific designations do not limit the scope of the notice of appeal.”
Cretacci was correct in its treatment of the notice of appeal. But more courts need to acknowledge that the recent Rule 3(c) amendments abrogated the pre-amendments caselaw.
Cretacci v. Hare, 2022 WL 17176781 (6th Cir. Nov. 23, 2022), available at the Sixth Circuit and Westlaw
The Eleventh Circuit on “Suspended Animation” Stay Appeals
In Marti v. Iberostar Hoteles y Apartamentos S.L., the Eleventh Circuit heard an appeal from an order staying district court proceedings pending resolution of administrative proceedings before the European Commission.
Simplifying a fair bit, the district court stayed proceedings in Marti pending the resolution of related proceedings before the European Commission. When the Commission proceedings failed to make any progress, the plaintiff appealed the stay order.
The Eleventh Circuit held that it had jurisdiction. Stay decisions are normally not appealable. But they can be when the stay puts a litigant effectively out of federal court. And the Eleventh Circuit holds that litigants are effectively out of court when their cases are placed in a state of “suspended animation.” This occurs when the “stay results in indefinite delays in favor of a proceeding that [is] unlikely to substantially affect the merits of the stayed case.”
The Eleventh Circuit determined that Marti was in a state of suspended animation. The European Commission had complete discretion over its proceedings, giving those proceedings “no exact or even reasonably foreseeable limits.” And the Eleventh Circuit didn’t see much progress in those proceedings. The court of appeals also noted that the Commission proceedings were unlikely to affect the merits of Marti. Indeed, those proceedings were entirely unrelated to the merits.
Marti v. Iberostar Hoteles y Apartamentos S.L., 2022 WL 17090059 (11th Cir. Nov. 21, 2022), available at the Eleventh Circuit and Westlaw
The Fifth Circuit on Mandamus & Quashing a Subpoena
In In re Paxton, the Fifth Circuit used mandamus to reverse a district court order refusing to quash a subpoena that required testimony from Texas’s attorney general. Like many mandamus decisions, the discussion focused on the merits of the district court’s decision. But there was one thing I found interesting.
The Fifth Circuit suggested that parties opposing mandamus cannot argue both that (1) there is no right to appeal and (2) there are adequate means of obtaining relief besides mandamus. Texas’s attorney general both appealed and sought a writ of mandamus. The Fifth Circuit almost certainly lacked jurisdiction to entertain that appeal (I say “almost” because the Fifth Circuit occasionally likes to pretend that Mohawk Industries, Inc. v. Carpenter was never decided), and the plaintiffs moved to dismiss it. But according to the Fifth Circuit, the plaintiffs also argued that the appeal was an adequate alternative means of obtaining review. This, the Fifth Circuit said, the plaintiffs could not do. “[A]n interlocutory appeal does not constitute adequate relief where the party opposing the writ also challenges the jurisdictional basis for the appeal.”
In re Paxton, 2022 WL 16921697 (5th Cir. Nov. 14, 2022), available at the Fifth Circuit and Westlaw
No En Banc Rehearing on Immediate Appeals Involving the Ministerial-Exception Defense
The Tenth Circuit declined to rehear Tucker v. Faith Bible Chapel International en banc. The case asked if denials of the ministerial-exception defense were immediately appealable. As discussed in a prior weekly roundup, a majority of the panel held that they weren’t. Judge Ebel, who wrote the panel opinion, wrote in support of the rehearing denial. Judge Bacharach, who dissented from the panel opinion, dissented from the denial.
Tucker v. Faith Bible Chapel International, 2022 WL 16948226 (10th Cir. Nov. 15, 2022), available at the Tenth Circuit and Westlaw
The Fourth Circuit on Immigration Appeals and Appellate Rule 26(c)
In Santos-de Jimenez v. Garland, the Fourth Circuit held that Federal Rule of Appellate Procedure 26(c)’s extension of the appeal deadline does not apply to immigration appeals.
“When a party may or must act within a specified time after being served,” Rule 26(c) gives that party 3 extra days when “the paper is not served electronically on the party or delivered to the party on the date stated in the proof of service.” But 8 U.S.C. § 1252(b)(1)’s deadline for immigration petitioners to file a petition for review runs from “the date of the final order of removal”—not the date that order is served. So the late service of a final order of removal does not extend the petition deadline.
Santos-de Jimenez v. Garland, 2022 WL 16936268 (4th Cir. Nov. 15, 2022), available at the Fourth Circuit and Westlaw
The Fourth Circuit on Factual Review of Reconsideration Decisions in the Immigration Context
In Williams v. Garland, a split Fourth Circuit held that it could review whether an immigration petitioner acted with sufficient diligence in seeking rehearing from the Board of Immigration Appeals.
Williams v. Garland, 2022 WL 16954424 (4th Cir. Nov. 16, 2022), available at the Fourth Circuit and Westlaw
The Weeks’ Qualified-Immunity Appeals
Two cases involved the scope of qualified-immunity appeals.
In Mejia v. Miller, the Ninth Circuit addressed the availability of a Bivens remedy in an appeal from the denial of qualified immunity. The court concluded that no Bivens cause of action was available, so the court did not need to address qualified immunity.
Mejia v. Miller, 2022 WL 16911857 (9th Cir. Nov. 14, 2022), available at the Ninth Circuit and Westlaw
And in Caskey v. Fenton, the Sixth Circuit determined that the record did not blatantly contradict the plaintiff’s version of events. The court of appeals thus deferred to the district court’s assessment of the evidence for purposes of the appeal.
Caskey v. Fenton, 2022 WL 16964963 (6th Cir. Nov. 16, 2022), available at the Sixth Circuit and Westlaw
Quick Notes
In Sherrod v. Wal-Mart Stores, Inc., the Sixth Circuit determined that a district court properly entered a partial judgment under Rule 54(b). The case involved both negligence and wrongful-death claims. The district court granted the defendant summary judgment on the wrongful-death claims and then entered a partial judgment on that claim under Federal Rule of Civil Procedure 54(b). The Sixth Circuit said that the partial judgment was properly entered. The negligence and wrongful-death claims were distinct claims with some different elements. And there was no just reason for delay. The merits of the wrongful-death claim were “a major stumbling block to settling the case.” Immediate review of whether the plaintiff could bring the wrongful-death claim would thus facilitate settlement.
Sherrod v. Wal-Mart Stores, Inc., 2022 WL 17176780 (6th Cir. Nov. 23, 2022), available at the Sixth Circuit and Westlaw
And in National Horsemen’s Benevolent and Protective Association v. Black, the Fifth Circuit held that the subsequent entry of a partial judgment under Rule 54(b) saved a potentially premature notice of appeal. The district court purported to enter a final judgment, after which the plaintiff filed its notice of appeal. But that final judgment was invalid—it did not actually resolve a claim brought by an intervenor. The notice of appeal was thus premature. The district court subsequently entered a partial judgment on the claims it actually resolved under Federal Rule of Civil Procedure 54(b). The premature notice related forward to the entry of that appealable partial judgment.
National Horsemen’s Benevolent and Protective Association v. Black, 2022 WL 17075011 (5th Cir. Nov. 18, 2022), available at the Fifth Circuit and Westlaw