Under FRAP 12.1(b), a Court of Appeals may, while retaining jurisdiction of an appeal, remand the matter to the district court for the limited purpose of making a final ruling on a matter based on an earlier indicative ruling. This decision holds that to obtain such a remand, the moving party need not first have moved for an indicative ruling in the district court under FRCivP 62.1 so long as the district court has entered an indicative ruling in response to some other proceeding. Here, the government appealed from denial of its motion to dismiss Bivens claims on qualified immunity grounds. While the appeal was pending, the district court dismissed all the rest of plaintiff’s claims as a discovery sanction. This decision holds that it is apparent from that ruling that the district court likely also dismiss the Bivens claims on the same grounds if given the chance.
Ninth Circuit Court of Appeal (Tallman, J.); November 3, 2017; 2017 WL 5013668.