The weekly roundup of decisions and other developments in federal appellate jurisdiction.
August 5, 2019
Last week saw interesting appellate-jurisdiction decisions involving the Foreign Sovereign Immunities Act, immigration appeals, qualified immunity, and administrative/judicial orders.
The Third Circuit on FSIA-immunity appeals and final decisions in Rule 69 collection proceedings
In Crystallex International Corp. v. Bolivarian Republic of Venezuela, the Third Circuit reviewed an interlocutory order denying FSIA immunity in a Rule 69 collection proceeding. The case made headlines for its ultimate holding that Crystallex International could enforce its $1.4 billion judgment by seizing shares in CITGO Petroleum Corp. But the case is also of jurisdictional interest—and some jurisdictional mystery.
Simplifying a bit (or perhaps more than a bit), Crystallex International obtained a $1.4 billion judgment against Venezuela after Venezuela seized a gold mine that Crystallex had contracted to develop and mine. Crystallex then brought a Rule 69 proceeding to collect on that judgment in the District of Delaware. In that proceeding, Crystallex sought to seize shares in a company called Petróleos de Venezuela Holding, Inc. (which, to avoid the confusing initialisms that appear in the Third Circuit’s opinion, I’ll call Petróleos Holding). Petróleos Holding is a wholly owned subsidiary of Venezuela’s state oil company, Petróleos de Venezuela, S.A. (which I’ll call Petróleos de Venezuela). And Petróleos Holding indirectly owns CITGO Petroleum Corp.—the well-known oil company headquartered in Texas.
In the Delaware proceeding, Crystallex asserted that Petróleos de Venezuela was so controlled by the state of Venezuela that it should be treated as Venezuela’s alter ego. Crystallex accordingly sought to seize Petróleos de Venezuela’s assets—specifically, the Delaware-based shares of Petróleos Holding—to satisfy its judgment against Venezuela. Petróleos de Venezuela intervened in the suit and moved to dismiss. It argued in the motion that it was not Venezuela’s alter ego and its shares were shielded from seizure by the Foreign Sovereign Immunities Act, or FSIA.
The district court disagreed. In one order, the court held that Petróleos de Venezuela was Venezuela’s alter ego, such that the court had jurisdiction to order attachment of Petróleos de Venezuela’s U.S.-based assets and Crystallex could attach those assets to satisfy its judgment against Venezuela. In a second order, the district court directed the clerk to issue a writ of attachment for the shares of Petróleos Holding, though it did not order the sale of those shares. Petróleos de Venezuela then appealed both of these orders and filed a petition for mandamus to prevent the sale until the appeals were decided.
The Third Circuit held that it had jurisdiction over both appeals. As to the denial of the motion to dismiss, the Third Circuit held that it had jurisdiction under the collateral-order doctrine. And as to the writ of attachment, the court held that the order was a “final decision” under 28 U.S.C. § 1291 because it left nothing for the district court to do but execute the judgment. On the merits, the Third Circuit affirmed the writ of attachment and remanded for further proceedings.
Appellate jurisdiction in this case is a little murky.
As to the appeal from the denial of FSIA immunity, to my knowledge courts have generally held that the denial of immunity from suit is an immediately appealable collateral order. And some courts have held that the denial of immunity from attachment is also immediately appealable. But there seem to be a few decisions out of the Second Circuit holding to the contrary—that the denial of FSIA immunity from attachment is not a collateral order. In support of its statement that it had jurisdiction over the denial of FSIA immunity, the Third Circuit cited a case that dealt with normal immunity from suit. Its jurisdictional statement might be seen as taking a side on this potential split.
As to the appeal from the order granting the writ of attachment, the issue might be more complex than the Third Circuit suggested. An order in a regular lawsuit that leaves nothing left to do but enforce the judgment is normally a final one, and the Third Circuit cited a case holding as much. But a Rule 69 proceeding is itself a proceeding to enforce a judgment. That is, the entire case is about enforcing a judgment. Normally the final decision in a Rule 69 proceeding is one that wraps up the collection proceeding. And here, more remained to be done in the district court; it had to set the terms and conditions of the stock sale. It’s entirely possible that another appeal will follow from any order on these matters.
Finally—and as a reader pointed out in an email last week—if the district court’s decision was final, there was no need to invoke the collateral-order doctrine to address FSIA immunity.
Jurisdiction over the denials of FSIA immunity might be a rich topic for future research.
Crystallex International Corp. v. Bolivarian Republic of Venezuela, 2019 WL 3403888 (3d Cir. 2019), available at the Third Circuit and Westlaw.
The Sixth Circuit on jurisdiction over removal orders and their reinstatement in immigration proceedings
In Moreno-Martinez v. Barr, the Sixth Circuit held that it had jurisdiction to review a due process challenge to an order reinstating an immigrant’s prior removal order. But it also held that it lacked jurisdiction to review the underlying removal order, as the collateral challenge to it was untimely.
The immigrant in Moreno-Martinez had been ordered deported several years ago and left the United States without petitioning for review of his removal order. He later returned to the United States and was detained by ICE. The Department of Homeland Security then reinstated its prior removal order. The immigrant then sought review of the reinstatement order. And in that petition for review, he contended that his reinstatement order violated due process—neither he nor his counsel received notice of the reinstatement, nor was he allowed to contest it.
The Sixth Circuit noted that it faced two layers of jurisdictional questions. The court first had to determine whether it had jurisdiction to review the reinstatement order. And it held that it did. Granted, 8 U.S.C. § 1231(a)(5) says that illegal entry after removal results in the reinstatement of the original removal order, and that removal order cannot be reopened or reviewed. But the Sixth Circuit had previously held that § 1252(a)(2)(D) gives that court jurisdiction to review constitutional claims raised in the context of reinstatement proceedings.
But even assuming the reinstatement violated due process, a second jurisdictional question existed—jurisdiction over the underlying removal order. According to the Sixth Circuit, to grant the immigrant the relief he sought—vacating both the reinstatement order and the underlying removal order—the court would need jurisdiction to reopen the removal order. And it didn’t have jurisdiction over that order. Challenges to a removal order must be brought within 30 days. And here the collateral challenge to the removal order was filed years later. The Sixth Circuit thus concluded that it lacked jurisdiction to grant the remedy that the immigrant sought—to reopen the underlying removal order.
Moreno-Martinez v. Barr, 2019 WL 3437669 (6th Cir. 2019), available at the Sixth Circuit and Westlaw.
The Sixth & Eighth Circuits apply the municipal-appeals rule in qualified-immunity appeals
Two decisions this week illustrated the common municipal-appeal rule for qualified-immunity appeals. I’ve written about this matter before. Briefly, the rule allows municipalities to appeal the denial of their motions to dismiss municipal-liability claims alongside individual defendants’ interlocutory qualified-immunity appeals. Although municipalities normally cannot appeal those orders, the courts of appeals hold that they have pendent jurisdiction over a municipality’s appeal upon finding that the individual defendants did not violate the plaintiff’s rights.
In K.W.P. v. Kansas City Public Schools, the Eighth Circuit held that it had jurisdiction to review the denial of a motion to dismiss municipal liability claims. The plaintiff in K.W.P. was a seven-year old elementary school student who was handcuffed by the school’s patrol officer and held in handcuffs in the school’s front office. The student sued the officer, the principal, and the school for unreasonable seizure and excessive force. The district court denied the defendants’ motions for summary judgment, and the defendants appealed.
On appeal, the Eighth Circuit held that the officer and principal did not violate the student’s right to be free from an unreasonable seizure or excessive force. And because no violation of the students rights occurred, there was nothing for the school to be liable for. The court accordingly reversed the denial of summary judgment as to the school. It did not mention why it had jurisdiction over the school’s appeal.
In Novak v. City of Parma, the Sixth Circuit held that it lacked jurisdiction over a municipality’s appeal. The plaintiff in Novak had created a Facebook page mocking the Parma Police Department. He was charged with unlawfully impeding the department’s functions, but he was acquitted at trial. He subsequently sued the city and its officers for violating a variety of his constitutional and statutory rights. The district court denied the defendants’ motions to dismiss, and they appealed.
The Sixth Circuit affirmed the denial of qualified immunity on some of claims against the individual defendants; it reversed on others. As to the city, the court held that it lacked jurisdiction over the appeal. It’s language was a bit different than we normally see in this context. The Novak court said that resolution of claims against the individual defendants would not necessarily determine the claims against the city. This sounds like the normal municipal-appeals rule. But the court went on to note how different the appealed issues were: the individual defendants’ liability depended on their own conduct, while Parma’s liability depended on a separate analysis of its policies, programs, and customs.
Novak seems to recognize how distinct the individual liability and municipal liability issues are. But I wouldn’t read too much into it; it was short statement and did not engage with earlier decisions endorsing and applying the more general rule that municipal appeals are allowed once the court holds that the individual defendants did not violate the plaintiff’s rights.
K.W.P. v. Kansas City Public Schools, 2019 WL 3489104 (8th Cir. 2019), available at the Eighth Circuit and Westlaw.
Novak v. City of Parma, 2019 WL 3403893 (6th Cir. 2019), available at the Sixth Circuit and Westlaw.
The Seventh Circuit on jurisdiction over administrative and judicial orders
Finally, in In re Phillips, the Seventh Circuit held that it lacked jurisdiction to review an order limiting the time a litigant could be in the courthouse and requiring that she be escorted by U.S. Marshals.
The litigant in Phillips had apparently engaged in some disruptive behavior in a courtroom of the Northern District of Illinois. In 2011, the Executive Committee for that District limited the time that she could be present in the courthouse (no more than 15 minutes before her cases begin, no more than 5 minutes after they end), required that she be escorted by a Marshal, and enjoined her from filing any new actions or documents without the Committee’s leave. The litigant unsuccessfully sought to rescind the restrictions in 2017. In 2019, she again moved to rescind the restrictions. That request was denied, and she appealed to the Seventh Circuit.
The Seventh Circuit noted that it had jurisdiction over only some of the restrictions. That court could hear appeals from “judicial” actions like the filing restrictions. But it lacked jurisdiction to review “administrative” actions like the limit on courthouse time and Marshal escort. On the merits of the filing restriction, the Seventh Circuit saw no reason why the restriction should not continue.
In re Phillips, 2019 WL 3431353 (7th Cir. 2019), available at the Seventh Circuit and Westlaw.