The Week in Federal Appellate Jurisdiction: October 27–November 2, 2019

Last week was pretty uneventful; I saw only a couple decisions of note. The Ninth Circuit applied the common law cumulative-finality doctrine to immigration appeals. And the Eighth Circuit used a limited remand to clarify the finality of an appeal.

The Ninth Circuit held that a premature appeal from an Immigration Judge becomes effective after the final decision by the Board of Immigration Appeals

In Martinez v. Barr, the Ninth Circuit held that it had jurisdiction to review an immigration appeal despite the premature filing of the petition for review.

The petitioner in Martinez had been ordered removed in absentia; the government had sent her notice to appear to the wrong address, so she did not attend her removal hearing. The petitioner later moved to reopen her removal proceedings. Then things got a little complicated. The immigration judge denied the motion to reopen but stayed removal so the petitioner could submit another motion to reopen that was supported by documentary evidence. Rather than submit a second motion, the petitioner appealed the immigration judge’s decision to the Board of Immigration Appeals. The immigration judge then vacated the stay of removal because the petitioner had not filed a second motion to reopen. And the petitioner then filed with the Ninth Circuit a petition for review of the immigration judge’s decision—before the Board had decided her appeal.

This petition to the Ninth Circuit was premature; the petitioner should have waited until the Board decided her appeal. But by the time the Ninth Circuit heard the petition, the Board of Immigration Appeals had decided all of the petitioner’s appeals from the immigration judge’s decisions (there were additional proceedings that I haven’t mentioned).

The Ninth Circuit held that this final ruling by the Board saved the petitioner’s premature petition.

In the context of appeals from district courts, the Ninth Circuit—and almost every other circuit—holds that many premature notices of appeal can be saved by the subsequent resolution of all outstanding issues. (I wrote an article about this cumulative finality doctrine last year.) So in the immigration context, the court thought it proper to allow final decisions by the Board to save premature petitions for review. This was consistent with the Ninth Circuit’s “prioritization of the substantive rights of parties over technical defects.”

One interesting note: Martinez did not mention that cumulative finality in appeals from district courts normally looks to Federal Rule of Appellate Procedure 4(a)(2). Before Rule 4(a)(2), the courts had developed a common law cumulative-finality doctrine that allowed subsequent events to save all sorts of premature notices of appeal. Rule 4(a)(2) meant to codify at least some of that common law doctrine; how much is not clear. And it’s also not clear whether Rule 4(a)(2) superseded the common law doctrine; some courts seem to think both still exist, while most see Rule 4(a)(2) as the sole source of cumulative finality in civil cases.

I’m not aware of any immigration analogue to Rule 4(a)(2). Martinez thus appears to invoke (even if unknowingly) the common law cumulative-finality doctrine.

The court also noted that the petitioner in Martinez had filed her petition for review pro se, but I don’t think that was necessary to the holding. Even courts that take the most restrictive approach to cumulative finality do not require that the premature notice of appeal be filed pro se.

Martinez v. Barr, 2019 WL 5582469 (9th Cir. Oct. 30, 2019), available at the Ninth Circuit and Westlaw.

The Eighth Circuit remands case of “ambiguous” finality for district court to clarify appellate jurisdiction

In Jones v. Custer County, a series of odd events in the district court left the Eighth Circuit unable to determine whether it had jurisdiction. The court of appeals accordingly remanded the case to get some clarity from the district court.

Jones was a § 1983 case against a variety of governmental defendants. The plaintiff pleaded claims for reckless investigation, manufacturing false evidence, and civil conspiracy. The district court eventually dismissed the reckless-investigation claim with prejudice. The district court dismissed the other claims without prejudice. But the court told the plaintiff that she had a week to amend those claims; if she didn’t, those claims would be dismissed with prejudice. The plaintiff did not file an amended complaint. She instead filed a notice of appeal, which she filed before the district court entered a Rule 58 judgment. But rather than enter judgment, the district court docketed the notice as an interlocutory appeal and, a year later, reassigned the case to another judge.

Apparently not bothered by these docket activities, the parties fully briefed the appeal. But the Eighth Circuit wasn’t certain about its jurisdiction.

A dismissal with leave to amend is normally not considered a final, appealable decision. But when a plaintiff doesn’t amend and instead appeals the dismissal, most courts treat the dismissal as final and appealable; the appeal indicates that the plaintiff intended to stand on the complaint. Where there is some lingering uncertainty, courts have allowed parties to clean up any jurisdictional issues by declaring their intention to stand on the complaint—in briefing, at oral argument, or even after oral argument.

The Eighth Circuit doesn’t appear to be so flexible:

Though we have not considered this precise issue, our decisions favor a bright-line approach [that] requires only a modicum of diligence by the parties and the district court, avoids uncertainty, and provides for a final look before the arduous appellate process commences.

That is, the plaintiff’s intention to stand on the complaint must be clear. And in Jones, that intent apparently wasn’t clear enough. There was no final judgment, and the case had been reassigned to another judge. The Eighth Circuit saw these circumstances as “strong indications that the case remains pending in the district court.” The court of appeals thus remanded the case for the district court to clarify what happened and potentially enter a final judgment.

I don’t understand why the plaintiff wasn’t given the opportunity to declare her intention not to amend but to instead stand on her complaint. There seems to be little harm (and at least some benefit) to doing so. Thankfully the damage wasn’t too bad—the remand was limited and will hopefully be resolved quickly so that the Eighth Circuit can get to the merits.

Jones v. Custer County, 2019 WL 5561393 (8th Cir. Oct. 29, 2019), available at the Eighth Circuit and Westlaw.

Reply to cert filed in case on appealability of Rhines stays

Utah has filed its reply brief in support of cert in Benzon v. Kell, which asks if Rhines stays are immediately appealable under the collateral-order doctrine. I covered the original petition (and what a Rhines stay is) in a previous weekly roundup.

The petition is scheduled to be considered at the Supreme Court’s conference on November 15, 2019.

Reply Brief for Petitioner, Benzon v. Kell, No. 19-239 (Oct. 30, 2019), available at the Supreme Court and Westlaw.