Though appellate courts ordinarily decide only the issues presented by the parties, see, e.g., Newman and Ahmuty, “The Principle of Party Presentation,” NYLJ, June 30, 2020, the issue of appellate jurisdiction is always open for consideration by a reviewing court, even if no party has raised it. See Steel v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998).

This was the case in Attias v. CareFirst, ___ F.3d ___, 2020 U.S. App. Lexis 25392 (Aug. 11, 2020), in which the U.S. Court of Appeals for the D.C. Circuit, on its own motion, ordered supplemental briefing on the issue of appellate jurisdiction. The seven plaintiff-policyholders in Attias filed a putative class action against a health insurer, CareFirst, after hackers penetrated its servers and stole sensitive policyholder data. The plaintiffs alleged that CareFirst failed to protect their personal information and exposed them to identity theft. The district court dismissed every claim of five plaintiffs and all but two claims of the remaining two plaintiffs. The district court directed entry of a final judgment as to all of the dismissed claims of all seven plaintiffs under Rule 54(b) of the Federal Rules of Civil Procedure, which made the dismissal order immediately appealable. All seven plaintiffs appealed but the D.C. Circuit dismissed their appeal for lack of jurisdiction, holding the dismissed claims and the still-pending claims were too closely intertwined to justify a Rule 54(b) certification.

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