Another decision on remand appeals, a split on bankruptcy’s appeal deadline, en banc granted on reviewing SEC proceedings, § 1782 appeals, and more.
November 3, 2020
After several quiet weeks in the world of federal appellate jurisdiction, things picked up. The First Circuit became the fourth court to recently endorse a limited scope of remand appeals under § 1447(d), although the Supreme Court might have more to say on this issue soon. The Sixth Circuit created a split on the jurisdictionality of bankruptcy’s appeal deadline, holding that the part-statute, part-rule deadline is a non-jurisdictional claim-processing rule. The Fifth Circuit will rehear en banc its decision from this summer on the courts of appeals’ exclusive jurisdiction to review SEC proceedings. The Fifth Circuit also applied its unique approach to appeals in § 1782 proceedings, though it used some seemingly non-categorical collateral-order reasoning. And the Sixth Circuit said that a late notice of appeal should be treated as a motion to extend the appeal deadline. Plus two decisions on cumulative finality and another on pendent appellate jurisdiction in a qualified-immunity appeal.
- Another Circuit Weighs in on the Scope of § 1447(d) Remand Appeals
- A New Circuit Split on the Jurisdictionality of Bankruptcy’s Appeal Deadline
- The Fifth Circuit Granted Rehearing En Banc on Its Exclusive Jurisdiction to Review SEC Proceedings
- The Fifth Circuit on § 1782 Appeals
- The Sixth Circuit Treated a Notice of Appeal as a Request to Extend the Appeal Deadline
- Two Courts Held that Notices of Appeal Were Irredeemably Premature
- No Pendent Appellate Jurisdiction Over Exhaustion Defense in a Qualified-Immunity Appeal
Another Circuit Weighs in on the Scope of § 1447(d) Remand Appeals
In Rhode Island v. Shell Oil Products Co., L.L.C., the First Circuit held that appeals from remand orders are limited to the specific issues excepted from 28 U.S.C. § 1447(d)’s general bar on reviewing remands.
Shell Oil is another state-law climate-change suit against oil and gas companies that the defendants tried to remove to federal court. The defendants asserted numerous grounds for removal, including federal-officer removal under 28 U.S.C. § 1442. The district court rejected all proffered grounds for removal and remanded the case to state court. The defendants then tried to appeal.
I’ve recently covered the split on the scope of remand appeals in posts about similar climate-change suits (linked below). Briefly, § 1447(d) generally prohibits appellate review when a district court remands a suit for lack of subject-matter jurisdiction. But it includes two exceptions:
An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.
Remands accordingly can be reviewed when cases were removed based on § 1442—the federal-officer removal statute—or on 28 U.S.C. § 1443—the civil-rights removal statute. So parties that remove a case under either of those statutes can immediately appeal to argue that removal was proper under those statutes.
The question in Shell Oil was what else—if anything—the defendants can appeal. Is the entire order remanding the action appealable, or just the grounds for removal that § 1447(d) excepts from the bar on appellate review? Most courts limit the scope of review to the express exceptions. But the Seventh Circuit holds otherwise, and two (or maybe three) other courts of appeals have inconsistent caselaw on the issue.
The First Circuit sided with the majority of courts to address this issue. The statute, the court explained, is ambiguous as to the scope of appeals. It “does not expressly contemplate the situation in which removal is done pursuant to [federal officer removal] and other grounds.” Plain-text interpretation of the statute—such as that used by the Seventh Circuit—is accordingly “premised on a clarity that § 1447(d) lacks.” So the First Circuit looked to the provision’s structure and purpose, both of which pointed towards a limited scope of review. The court also noted that Congress has declined to correct courts’ narrow reading of § 1447(d), despite amending that provision at a time when courts unanimously read it narrowly.
Shell Oil is the fourth recent opinion to endorse a narrow scope of review in § 1447(d) appeals, following decisions from the Fourth, Ninth, and Tenth Circuits. I’m a little surprised at the decision, as the Supreme Court granted cert on this issue last month. I suspected that the First Circuit might wait to issue a decision. But it’s another good (and brief) explanation of the narrow reading of § 1447(d).
Rhode Island v. Shell Oil Products Co., L.L.C., 2020 WL 6336000 (1st Cir. Oct. 29, 2020), available at the First Circuit and Westlaw.
A New Circuit Split on the Jurisdictionality of Bankruptcy’s Appeal Deadline
In In re Tennial, the Sixth Circuit held that bankruptcy’s 14-day deadline for filing an appeal is not jurisdictional. In doing so, the court split with every other court of appeals to address this issue. The Supreme Court has drawn a fairly clear line between deadlines found in statutes—which are jurisdictional—and those found only in rules of procedure—which aren’t. Bankruptcy’s appeal deadline is a bit of a hybrid. It comes partially from a statute—28 U.S.C. § 158(c)(2)—and partially from a rule—Federal Rule of Bankruptcy Procedure 8002. The statutory part has led other courts to conclude that the 14-day deadline is jurisdictional. But the Sixth Circuit explained that the statute merely says that appeals must be filed within a time specified by the Bankruptcy Rules. The actual 14-day deadline comes only from those rules. The court accordingly concluded that the bankruptcy appeal deadline is a non-jurisdictional claim-processing rule.
For more, see last week’s post on Tenniel: New Split on Bankruptcy’s Appeal Deadline.
In re Tenniel, 2020 WL 6304352 (6th Cir. Oct. 28, 2020), available at the Sixth Circuit and Westlaw.
The Fifth Circuit Granted Rehearing En Banc on Its Exclusive Jurisdiction to Review SEC Proceedings
The Fifth Circuit voted to rehear Cochran v. SEC en banc. In August, a divided panel held that the courts of appeals’ exclusive jurisdiction to review Securities and Exchange Commission proceedings deprived district courts of jurisdiction to hear a mid-proceedings challenge to an enforcement proceeding. The target of the enforcement proceeding filed suit in a federal district court, challenging the appointment of SEC administrative law judges. The Fifth Circuit held that the district court lacked jurisdiction to hear the action, as the courts of appeals have exclusive jurisdiction to review SEC proceedings. Judge Haynes dissented, arguing (among other things) that post-proceedings review in the courts of appeals was not effective review.
You can read more about the panel decision in my August 9–15, 2020, roundup: The Week in Federal Appellate Jurisdiction: August 9–15, 2020
Order Granting rehearing en banc, Cochran v. SEC, available at the Fifth Circuit.
The Fifth Circuit on § 1782 Appeals
In Banca Pueyo SA v. Lone Star Fund IX (US), L.P., the Fifth Circuit held that it lacked jurisdiction to review an order refusing to quash a subpoena issued under 28 U.S.C. § 1782 because the district court had not yet fully resolved the challenge to the subpoena.
Simplifying a bit, § 1782 allows district courts to issue subpoenas for use in foreign proceedings. The § 1782 request in Banca Pueyo involved litigation over the European financial crisis, and a district court issued a subpoena against three Texas-based entities. Those entities then moved to quash the subpoena. The district court denied the motion, but it “invited [the entities] to file a second motion to quash with any objections that remained after the parties conferred.” The entities then appealed. And while the appeal was pending, the district court granted in part a second motion to quash. The parties who sought the subpoena then sought rehearing on this second district court decision, and that request remains pending.
Although most discovery orders are not immediately appealable, § 1782 proceedings are independent proceedings—the whole point of the suit is to obtain discovery. Most courts accordingly allow appeals in § 1782 proceedings once the district court has finally resolved the request.
The Fifth Circuit, however, addresses the appealability of § 1782 decisions via the collateral-order doctrine. Under that doctrine, district court decisions are final and appealable when they (1) conclusively resolve an issue, (2) involve an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal after a final judgment. The initial refusal to quash the subpoena in Banca Pueyo failed the first and third requirements. The district court had not conclusively resolved the discovery dispute—it had instead ruled on a second motion to quash, and even that second decision was not yet settled given the motion for reconsideration. And the district court’s decision could be effectively reviewed once that court fully resolved the discovery request. The Fifth Circuit accordingly held that it lacked jurisdiction over the appeal.
One thing to note about Banca Pueyo. The collateral-order doctrine is supposed to apply categorically: either a type of order is always appealable under the doctrine, or it never is. Courts are not supposed to look at case-specific considerations. But Banca Pueyo looks like case-specific reasoning. The court did not say that § 1782 decisions are always or never appealable. It instead said that this specific § 1782 decision was not appealable because, under the facts of this case, it failed to satisfy all of the collateral-order requirements.
Banca Pueyo SA v. Lone Star Fund IX (US), L.P., 2020 WL 6281722 (5th Cir. Oct. 27, 2020), available at the Fifth Circuit and Westlaw.
The Sixth Circuit Treated a Notice of Appeal as a Request to Extend the Appeal Deadline
In United States v. Payton, the Sixth Circuit held that a district court should have treated a criminal defendant’s late notice of appeal as a motion to extend the appeal deadline.
The defendant in Payton sought a compassionate release or reduction of his sentence. The district court denied that request. The defendant then filed a notice of appeal 16 or 17 days later. Because defendants in criminal cases normally have only 14 days to file their notice of appeal, the government moved to dismiss the appeal as untimely. In response, the defendant argued that a prison-wide lockdown prevented a timely filing.
The Sixth Circuit held that the district court should treat the late notice as a motion to extend the appeal deadline. Federal Rule of Appellate Procedure 4(b)(4) allows the district court, upon a showing of good cause or excusable neglect, to “extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by” Rule 4. And other courts have held that “if a criminal defendant files a notice of appeal after the expiration of the appeal period. . . but before the end of the additional thirty-day period, the district court should treat the notice as a request for an extension of time to file”:
Rule 4(b)(4) does not require formal motion practice, and . . . the belatedly-filed notice of appeal, while not explicitly requesting an extension, indicates to the district court the defendant’s intention and desire to appeal. In this context the only practical difference between a formal motion and a notice of appeal is that the latter normally will not contain a proffer of excusable neglect. Allowing the district court to receive that proffer at a later point does no violence to either the letter or spirit of Rule 4(b).
(Cleaned up.) The Sixth Circuit thought that this reasoning was persuasive and adopted it. Given that the defendant filed his appeal after the normal 14-day deadline but within the next 30 days, the court of appeals remanded the case for the district court to consider whether the extend the appeal period.
United States v. Payton, 2020 WL 6304450 (6th Cir. Oct. 28, 2020), available at the Sixth Circuit and Westlaw.
Two Courts Held that Notices of Appeal Were Irredeemably Premature
The cumulative-finality doctrine provides that certain subsequent events can save a premature notice of appeal filed after certain district court decisions. The courts of appeals have split, however, on when exactly cumulative finality applies. Two decisions from last week rejected the broadest use of cumulative finality—one which I’ve endorsed—to hold that notices of appeal filed after purely interlocutory decisions could not be saved.
In Wedington v. United States, the Fourth Circuit held that a notice of appeal filed after a magistrate judge issued a report and recommendation was not saved by the subsequent adoption of that report. The Fourth Circuit holds that cumulative finality can save premature notices of appeal filed after district court decisions that could have been certified for an immediate appeal via Federal Rule of Civil Procedure 54(b). Reports and recommendations are purely interlocutory and cannot be immediately appealed via Rule 54(b). So the premature appeal could not relate forward to the final judgment.
And in Transcontinental Gas Pipe Line Co. v. Permanent Easement, the Third Circuit held that a subsequent final judgment could not save a premature notice of appeal filed from a sanctions order. The Third Circuit is normally pretty generous with cumulative finality. But it does not allow a subsequent judgment to save a notice filed after a sanction order. Like the report and recommendation in Wedington, the sanction order was purely interlocutory. And the Supreme Court has suggested that cumulative finality cannot save notices of appeal filed after sanction orders.
Wedington v. United States, 2020 WL 6268134 (4th Cir. Oct. 26, 2020), available at the Fourth Circuit and Westlaw.
Transcontinental Gas Pipe Line Co. v. Permanent Easement, 2020 WL 6306019 (3d Cir. Oct. 28, 2020), available at the Third Circuit and Westlaw.
No Pendent Appellate Jurisdiction Over Exhaustion Defense in a Qualified-Immunity Appeal
Finally, in Taylor v. Davidson County Sheriff’s Department, the Sixth Circuit held that it could not review an exhaustion defense as part of a qualified-immunity appeal.
The plaintiff in Taylor sued several jail employees who allegedly used excessive force in removing the plaintiff from his cell. The defendants sought summary judgment, arguing both that the plaintiff failed to exhaust administrative remedies (as required by the Prison Litigation Reform Act) and that they were entitled to qualified immunity. The district court denied summary judgment, and the defendants appealed.
Under Mitchell v. Forsyth, the Sixth Circuit had jurisdiction to review the denial of qualified immunity. The defendants also asked the court of appeals to review their exhaustion defense. But the Sixth Circuit declined to do so. Exhaustion was not sufficiently linked to immunity for the court to exercise pendent appellate jurisdiction. The qualified-immunity appeal did not necessarily resolve the exhaustion issue, nor was review of exhaustion necessary to meaningfully review immunity.
Taylor v. Davidson County Sheriff’s Department, 2020 WL 6268638 (6th Cir. Oct. 26, 2020), available at the Sixth Circuit and Westlaw.