noting that Rule 54(b) requires the district court to direct entry of judgment and to “expressly determine[ ] that there is no just reason for delay” (quoting Fed. R. Civ. P. 54(b))
How later courts described this case
- noting that Rule 54(b) requires the district court to direct entry of judgment and to “expressly determine[ ] that there is no just reason for delay” (quoting Fed. R. Civ. P. 54(b))
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 14, 2021 Decided July 9, 2021
No. 19-7058
IN RE: DOMESTIC AIRLINE TRAVEL ANTITRUST LITIGATION,
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-mc-01404)
Anna St. John argued the cause for appellants. With her
on the briefs was Theodore H. Frank.
Halle Edwards, Student Counsel, argued the cause as
amicus curiae in support of jurisdiction. With her on the briefs
were Erica Hashimoto, Director, appointed by the court, and
Alexander Bodaken, Student Counsel.
Jeannine M. Kenney argued the cause for appellees. With
her on the brief were Adam J. Zapala, Anton Metlitsky,
Benjamin Bradshaw, Katrina M. Robson, Michael D.
Hausfeld, Hilary K. Scherrer, Alden L. Atkins, Joshua S.
Johnson, and Roberta D. Liebenberg. Ashley Robertson,
Jonathan Hacker and Richard G. Parker entered appearances.
Before: TATEL, RAO and WALKER, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALKER.
2
WALKER, Circuit Judge: Frank Bednarz and Theodore
Frank are class action objectors in a multidistrict litigation
proceeding that involves four airlines and millions of
settlement class members. Bednarz and Frank have appealed
the district court’s order approving settlements between the
plaintiffs and two airlines.
We hold that the court’s order is not an appealable final
judgment or interlocutory order. We therefore dismiss for lack
of jurisdiction.
I
In 2015, plaintiffs in districts across the country filed class
action complaints against four airlines: Southwest, American,
Delta, and United. Each class action alleged the airlines
violated Sections 1 and 3 of the Sherman Act, 15 U.S.C. §§ 1,
3, by colluding to decrease capacity and raise prices.
These lawsuits were consolidated and transferred to the
District of Columbia for multidistrict litigation proceedings. In
re Domestic Airline Travel Antitrust Litigation, 140 F. Supp.
3d 1344 (J.P.M.L. 2015). By 2019, this litigation included 105
consolidated cases on behalf of more than 100 million
settlement class members.1
The plaintiffs reached settlement agreements with
Southwest and American. The district court preliminarily
approved both settlements. In re Domestic Airline Travel
Antitrust Litigation, MDL No. 2656, No. 15-1404 (CKK)
1
Settlement class members include anyone who purchased flights
from the defendant airlines for a period after July 2011. In re
Domestic Airline Travel Antitrust Litigation, MDL No. 2656, No.
15-1404 (CKK) (D.D.C. May 9, 2019) (order).
3
(D.D.C. Jan. 3, 2018) (order); In re Domestic Airline Travel
Antitrust Litigation, MDL No. 2656, No. 15-1404 (CKK)
(D.D.C. June 18, 2018) (order). Meanwhile, the litigation
against Delta and United continued.
Under the proposed settlements, Southwest agreed to pay
$15 million and American agreed to pay $45 million. The
amount ultimately received by each settlement class member
may increase at the close of litigation against Delta and United.
Because the settling parties wanted to avoid piecemeal
payments, the proposed settlements left open the question of
how the funds should be allocated and distributed until the
entire lawsuit concluded. See In re Domestic Airline Travel
Antitrust Litigation, 378 F. Supp. 3d 10, 21-22 (D.D.C. 2019).
Bednarz and Frank objected to the settlements. They
argued the settlement notice should have detailed how the
funds would be distributed. In particular, they objected to the
possibility of a cy pres distribution of funds to undisclosed
recipients.
After a fairness hearing, the district court approved the
settlements and rejected Bednarz and Frank’s objections. Id.
at 29-30. The court dismissed Southwest and American from
the consolidated action but declined to make the dismissal a
final judgment subject to appeal under Federal Rule of Civil
Procedure 54(b). In re Domestic Airline Travel Antitrust
Litigation, MDL No. 2656, 2019 WL 5727957, at *7 (D.D.C.
Nov. 5, 2019) (“this Court sees no reason to issue a Rule 54(b)
judgment”).
Nevertheless, Bednarz and Frank appeal.
4
II
Under 28 U.S.C. § 1291, federal circuit courts “have
jurisdiction of appeals from all final decisions of the district
courts of the United States.” A district court’s judgment is
“final” when it disposes of all the claims and all the parties.
See Fed. R. Civ. P. 54(b); Gelboim v. Bank of America Corp.,
574 U.S. 405, 409 (2015) (a final decision “ends the litigation
on the merits and leaves nothing for the court to do but execute
the judgment”) (quoting Catlin v. United States, 324 U.S. 229,
233 (1945)). So as a general matter, when orders don’t
terminate all the claims and all the parties, we have no
jurisdiction to review them.
Federal Rule of Civil Procedure 54(b) “relaxes” that
“general practice.” Gelboim, 574 U.S. at 409 (cleaned up).
Even if a decision is not final, a district court may still “direct
entry of a final judgment as to one or more, but fewer than all,
claims or parties.” Fed. R. Civ. P. 54(b). But Rule 54(b) has
limits: A district court “may direct entry of a final judgment”
for “fewer than all[] claims or parties only if the court expressly
determines that there is no just reason for delay.” Id.
Here, the district court’s settlement approval order wasn’t
final under § 1291 because it dismissed claims against only two
of the four defendants in the consolidated action. And the court
expressly declined to enter a Rule 54(b) final judgment because
it found “just reason for delay.” In re Domestic Airline Travel
Antitrust Litigation, MDL No. 2656, 2019 WL 5727957, at *7
(D.D.C. Nov. 5, 2019) (cleaned up). Specifically, the court
sought to “prevent[] a fragmented appeal with regard to issues
that have been determined by this Court to be obviously
premature.” Id.
5
Bednarz and Frank argue that Gelboim v. Bank of America
supports an additional appellate route unique to multidistrict
litigation. There, antitrust plaintiffs filed a class action against
banks. 574 U.S. at 408. Their antitrust class action was
consolidated in multidistrict litigation with other cases alleging
additional claims against those banks. Id. The district court
later dismissed the antitrust plaintiffs’ sole claim, which ended
the entire lawsuit filed by the antitrust plaintiffs. Id. Because
of the other parties’ cases, the multidistrict litigation continued.
Id.
The Supreme Court held that the dismissal order in
Gelboim was final and appealable under § 1291 because it
dismissed the plaintiffs’ individual case “in its entirety.” Id. at
413. Since “[c]ases consolidated for [multidistrict litigation]
pretrial proceedings ordinarily retain their separate identities,”
id., the order dismissing the plaintiffs’ only claim ended the
case “on the merits,” id. at 414. And because the antitrust
plaintiffs’ entire suit was dismissed, no other orders in the
proceedings would “qualify as the dispositive ruling [plaintiffs
sought] to overturn on appeal.” Id. at 415.
By clarifying that the ordinary requirements of finality
apply to appeals from multidistrict litigation, Gelboim provides
no support for Bednarz and Frank’s argument. In fact, Gelboim
undermines it. Here, unlike in Gelboim, later orders by the
multidistrict litigation court or originating courts will relate to
the plaintiffs’ claims. That’s because the order dismissed only
two of the four defendant airlines. Because that order did not
dispose of the consolidated action or any of the individual cases
in their entirety, Bednarz and Frank may not appeal the court’s
settlement approval at this time.2
2
Cf. Gelboim, 574 U.S. at 413 n.4 (“We express no opinion on
whether an order deciding one of multiple cases combined in an all-
6
The court-appointed amicus alternatively argues that the
settlement approval order is an appealable interlocutory order
under 28 U.S.C. § 1292(a)(1). That provision allows appellate
courts to review “injunctions.” 28 U.S.C. § 1292(a)(1). It also
narrowly applies to certain interlocutory orders that have the
“practical effect” of granting or refusing an injunction. Carson
v. American Brands, Inc., 450 U.S. 79, 83 (1981). An appellant
can appeal such an order “only if it affects predominately all of
the merits” or “might have a serious, perhaps irreparable,
consequence, and . . . can be effectually challenged only by
immediate appeal.” Salazar ex rel. Salazar v. District of
Columbia, 671 F.3d 1258, 1262 (D.C. Cir. 2012) (cleaned up);
cf. id. at 1261 (“we must take care not to turn the barrier against
piecemeal appeals into Swiss cheese”).
This case is unlike Carson. There, “prospective relief was
at the very core” of the interlocutory order. Carson, 450 U.S.
at 84; see also Salazar, 671 F.3d at 1260, 1262. Here, the gist
of the settlement agreements was the large amount of money
the defendants agreed to pay the plaintiffs. And although the
agreements require the settling defendants to cooperate with
the plaintiffs during the ongoing litigation, that requirement is
not at the agreements’ “very core.” Carson, 450 U.S. at 84.
Further, the court’s approval order didn’t anticipate enjoining
any party after distribution of the settlement funds. Cf. In re
Domestic Airline Travel Antitrust Litigation, 378 F. Supp. 3d
10, 26 (D.D.C. 2019) (approving the settlements “despite the
lack of injunctive relief”). We therefore do not have
jurisdiction under § 1292(a)(1).
purpose consolidation qualifies under § 1291 as a final decision
appealable of right.”).
7
* * *
The appealed order is not a final judgment. We therefore
dismiss for lack of jurisdiction.