Another decision on reviewing hardship determinations in immigration appeals, plus harmless error in veterans’ appeals, pendent appellate jurisdiction, Rule 41(g) appeals, and more.
July 21, 2021
In a case from a few weeks ago that I just saw, the Fifth Circuit weighed in on the split over reviewing hardship determinations in immigration appeals. The court sided with the Sixth and Eleventh in treating hardship determinations as mixed questions of law and fact that the court had jurisdiction to review.
In other decisions, the Federal Circuit held that it could review a harmless-error determination by the Veterans Court. The Fifth and Eleventh Circuits addressed pendent appellate jurisdiction in immunity appeals. The Fifth Circuit also reviewed the denial of a Criminal Rule 41(g) motion for the return of seized property, as there was not yet a (confirmed) criminal prosecution in existence. Plus a decision on finality with unserved defendants and a decision in which the failure to set out a judgment in a separate document saved a seemingly tardy motion for reconsideration.
- The Fifth Circuit Held that It Could Review Hardship Determinations in Immigration Appeals
- The Federal Circuit on Reviewing the Veterans Court’s Harmless-Error Determinations
- The Fifth Circuit on Sovereign-Immunity Appeals & Pendent Appellation Jurisdiction
- The Eleventh Circuit on Qualified-Immunity Appeals & Pendent Appellate Jurisdiction
- The Fifth Circuit Heard an Appeal From the Denial of a Criminal Rule 41(g) Motion
- The Third Circuit on Unresolved Claims & Unserved Defendants
- The Lack of a Separate Document Saved a Seemingly Untimely Appeal
The Fifth Circuit Held that It Could Review Hardship Determinations in Immigration Appeals
In Guerrero Trejo v. Garland, the Fifth Circuit held that it could review whether an immigration petitioner showed sufficient hardship for cancellation of removal. In so holding, the Fifth Circuit weighed in on the circuit split over this issue, joining the Sixth and Eleventh Circuits. (Note, the Fifth Circuit decided this case a few weeks ago, but I missed it at the time.)
Guerrero Trejo involved an immigrant’s petition for cancellation of removal. Under 8 U.S.C. § 1229b(b)(1), the attorney general has discretion to cancel the removal of a removable (read: deportable) immigrant. To be eligible for cancellation, a petitioner must show (among other things) “that removal would result in exceptional and extremely unusual hardship” to members of the petitioner’s family. In Guerreo Trejo, the immigration courts determined that the petitioner had not shown sufficient hardship and was thus ineligible for cancellation of removal. The petitioner sought review in the Fifth Circuit.
Until recently, courts of appeals held that they lacked jurisdiction to review whether an immigration petitioner had show sufficient hardship to be eligible for cancellation. Immigration’s jurisdiction-stripping provisions say that the courts of appeals lack jurisdiction to review (among other things) the denial of relief under § 1229b (the cancellation-of-removal statute) as well as almost every other discretionary decision. Most courts thought that an immigration court’s hardship determination was discretionary. So they would not review challenges to an immigration court’s decision that a petitioner was ineligible for cancellation due to insufficient hardship.
Things have changed somewhat after the Supreme Court’s decision in Guerrero-Lasprilla v. Barr. Guerrero-Lasprilla held that another of immigration’s jurisdictional provisions—8 U.S.C. § 1252(a)(2)(D)—empowered the courts of appeals to review an immigration court’s application of law to facts. That provision preserves appellate jurisdiction over legal and constitutional issues. And the application of law to fact, Guerreo-Lasprilla held, fell within this preservation of appellate jurisdiction. After Guerrero-Lasprilla, two courts—the Sixth and Eleventh Circuits—have said hardship determinations are not discretionary but are instead applications of law to fact. (The Eleventh Circuit went on to hold that it lacked jurisdiction for a different reason, and that decision is now before the Supreme Court.) The Seventh Circuit has suggested that it agrees. But the Third and Tenth Circuits have stood by their pre-Guerrero-Lasprilla rule that they lack jurisdiction to review hardship determinations.
The Fifth Circuit joined the Sixth and Eleventh Circuits in treating hardship determinations as mixed questions of law and fact. The court set out the various decisions that an immigration court might make: legal decisions about what the law means, factual decisions about what happened, applications of the law to those facts, and discretionary decisions. Immigration’s jurisdiction-stripping provisions applied only to the last kind of decision—discretionary decisions. And a decision as to whether an immigration petitioner is eligible for cancellation for removal—i.e., that a petitioner satisfies the statutory eligibility requirements—is not a discretionary decision. The discretionary decision comes only after determination that a petitioner is eligible.
For more on jurisdiction to review hardship determinations, see my posts Appealing Hardship Determinations in Immigration Cases and The Seventh Circuit on Guerrero-Lasprilla & Cancellation of Removal.
Guerrero Trejo v. Garland, 2021 WL 2767440 (July 2, 2021), available at the Fifth Circuit and Westlaw.
The Federal Circuit on Reviewing the Veterans Court’s Harmless-Error Determinations
In Tadlock v. McDonough, the Federal Circuit held that it had jurisdiction to review a Veterans Court decision that deemed an error harmless.
Simplifying a fair bit, the veteran in Tadlock sought medical coverage from the Department of Veterans Affairs for a service-related medical condition. The Department, through the Board of Veterans Appeals, concluded that thev veteran’s condition did not meet the required criteria. The Department accordingly denied coverage. The veteran then sought review in the U.S. Court of Appeals for Veterans Claims (often called the “Veterans Court”). The Veterans Court concluded that the Board had clearly erred in the reasons it gave for denying the veteran’s claim. But the Veterans Court went on to make its own factual findings that rendered the veteran ineligible for coverage. The Veterans Court accordingly deemed the Board’s error harmless and affirmed the denial of coverage. The veteran then appealed to the Federal Circuit.
Before addressing the merits, the Federal Circuit had to contend with the government’s argument that the court lacked jurisdiction. The Federal Circuit’s jurisdiction to review Veterans Court decisions is limited. It can review legal questions, but it cannot review factual determinations or the application of law to fact. The government contended that harmless error review involves a factual determination—whether or not an error was prejudicial—outside of the Federal Circuit’s jurisdiction. According to the government, “when the Veterans Court has undertaken a review for prejudicial error and determined that an error is harmless, [the Federal Circuit] lacks jurisdiction to disturb that determination.”
The Federal Circuit rejected this argument. The veteran did not challenge the Veterans Court’s factual determination. He instead challenged “the Veterans Court’s authority to make that fact-determination in the first instance in its consideration of prejudicial error.” So while the Federal Circuit couldn’t review whether the Veterans Court’s eligibility determination itself, it could review whether that court exceeded its jurisdiction in making independent factual findings that rendered the Board’s error harmless.
Tadlock v. McDonough, 2021 WL 2964328 (Fed. Cir. July 15, 2021), available at the Federal Circuit and Westlaw.
The Fifth Circuit on Sovereign-Immunity Appeals & Pendent Appellation Jurisdiction
In Planned Parenthood Gulf Coast Inc. v. Phillips, the Fifth Circuit heard an appeal from the denial of state sovereign immunity but declined to address any other issues.
Simplifying a bit, the plaintiffs in Planned Parenthood Gulf Coast alleged that the Louisiana Department of Health was unlawfully refusing to act on the plaintiffs’ application for a license to provide abortion services in Louisiana. The plaintiffs brought two kinds of claims: claims alleging that the Department had unlawfully denied the plaintiffs a license (which I’ll call “licensing claims”), and claims that challenged a Louisiana law prohibiting giving taxpayer funds to abortion providers (which I’ll call “funding claims”). The Department moved to dismiss the licensing claims on sovereign-immunity grounds. And it moved to dismiss the funding claims on other jurisdictional grounds. The district court denied the motion to dismiss. The Department then appealed.
The Fifth Circuit first noted that it had jurisdiction to review the district court’s decision. Under Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., state defendants can immediately appeal from the denial of sovereign immunity. Granted, the Department had invoked sovereign immunity only in relation to the licensing claims. But the Department “argued that a proper application of sovereign immunity would remove it from this litigation and require dismissal of all claims.” The Fifth Circuit accordingly had jurisdiction to review the denial of sovereign immunity.
The court declined, however, to extend pendent appellate jurisdiction over any other issues, such as ripeness or standing. The district court could address those issues on remand.
On the merits, the Fifth Circuit held that sovereign immunity barred some—but not all—of the plaintiffs’ requested relief on the licensing claims.
Planned Parenthood Gulf Coast Inc. v. Phillips, 2021 WL 2980702 (5th Cir. July 15, 2021), available at the Fifth Circuit and Westlaw.
The Eleventh Circuit on Qualified-Immunity Appeals & Pendent Appellate Jurisdiction
Speaking of pendent appellate jurisdiction, in Spencer v. Benison, the Eleventh Circuit extended pendent jurisdiction over official-capacity claims alongside a qualified-immunity appeal.
The plaintiff in Spencer brought civil rights claims against a sheriff in both his individual and official capacity. The sheriff eventually sought summary judgment on all claims, which included a request for qualified immunity on the individual claims. The district court denied summary judgment. The sheriff then appealed.
Appellate jurisdiction over the individual-capacity claims was straightforward: defendants have a right to appeal from the denial of qualified immunity.
The official-capacity claims were more complicated. Qualified immunity does not apply to official-capacity claims, and defendants have no right to immediately appeal from a district court’s refusal to dismiss those claims.
The Eleventh Circuit nevertheless extended pendent appellate jurisdiction over the official-capacity claims, concluding that those claims were inextricably intertwined with the individual-capacity claims. In reviewing the denial of qualified immunity, the Eleventh Circuit held that the plaintiff had failed to show a constitutional violation. With no constitutional violation, the plaintiff’s official-capacity claims necessarily failed. The two kinds of claims thus involved the same facts and law, and resolution of the qualified-immunity appeal necessarily resolved the official-capacity claims, too.
Note, this is a relatively common extension of pendent appellate jurisdiction in the courts of appeals.
Spencer v. Benison, 2021 WL 3009182 (11th Cir. July 16, 2021), available at the Eleventh Circuit and Westlaw.
The Fifth Circuit Heard an Appeal From the Denial of a Criminal Rule 41(g) Motion
In Harbor Healthcare System, L.P. v. United States, the Fifth Circuit reviewed the pre-indictment denial of a Rule 41(g) motion for the return of seized property.
After being the subject of False Claims Act suits, the government began investigating the plaintiff in Harbor Healthcare. That investigation included the seizure of several phones, tablets, computers, and stored email exchanges. The plaintiff thought that some of the seized information was protected by attorney-client privilege and sought its return under Federal Rule of Criminal Procedure 41(g). Because there was no active criminal proceeding against the plaintiff, the plaintiff filed the Rule 41(g) motion as its own civil case. The district court eventually dismissed the suit for a lack of equitable jurisdiction. According to the district court, the government was taking adequate steps to protect potentially privileged information. The plaintiff then appealed.
On appeal, the Fifth Circuit rejected the government’s argument that it lacked jurisdiction. The denial of a motion to suppress or return evidence is normally not immediately appealable when made as part of an existing criminal prosecution. But in Di Bella v. United States, the Supreme Court suggested that a denied request for the return of property can be independent and appealable when “the motion is solely for return of property and is in no way tied to a criminal prosecution in esse against the movant.” And that was the case in Harbor Healthcare. The plaintiff sought only the return of its property. And the government could not say whether a grad jury proceeding existed. (Although the government asserted throughout its brief that the plaintiff was a subject of a grand jury proceeding, the Fifth Circuit noted that the government lawyers could not disclose that fact.)
The district court’s dismissal accordingly marked the final resolution of an independent civil proceeding and was final.
Harbor Healthcare System, L.P. v. United States, 2021 WL 3009732 (5th Cir. July 15, 2021), available at the Fifth Circuit and Westlaw.
The Third Circuit on Unresolved Claims & Unserved Defendants
In Brown v. Upper Darby Police Department, the Third Circuit noted that unresolved claims against an unserved defendant did not preclude a district court’s decision from being final.
The plaintiff in Brown brought civil-rights claims against several defendants. But he failed to serve the complaint on one of them. The district court eventually dismissed all of the claims except those against the unserved defendant. The plaintiff then appealed.
The Third Circuit noted that it had jurisdiction over the appeal. Unresolved claims normally preclude an appeal absent a partial judgment under Federal Rule of Civil Procedure 54(b). But that rule doesn’t apply when the only claims remaining involve unserved defendants, who are not parties to the case within the meaning of Rule 54(b).
Brown v. Upper Darby Police Department, 2021 WL 2948833 (3d Cir. July 14, 2021), available at the Third Circuit and Westlaw.
The Lack of a Separate Document Saved a Seemingly Untimely Appeal
In Pena v. TD Auto Finance LLC, the Third Circuit determined that a motion for reconsideration was timely—and thus delayed the start of the appeal time—when the district court failed to set out the judgment in a separate document.
The district court in Pena initially denied a petition to confirm an arbitration award. 30 days later, the petitioner sought reconsideration. About six months after that, the district court denied reconsideration. Shortly thereafter, the petitioner filed his notice of appeal.
This timeline presented a problem. Civil litigants normally have 30 days after a judgment to file their notice of appeal. A timely motion for reconsideration can delay the start of that 30-day clock. But a reconsideration motion is timely only if filed within 28 days of the judgment. The respondent in Pena accordingly argued that the notice of appeal was late. The motion for reconsideration was untimely and thus did not delay the appeal clock, which ran for 30 days from the district court’s denial of the petition to confirm. The petitioner’s notice of appeal came well after that 30-day window.
But the respondent had overlooked another procedural point. In most cases, a judgment is entered—and the time to to appeal begins to run—once the the district court sets out the judgment in a separate document. If a district court fails to do so, the judgment is deemed entered 150 days after the district court’s decision is entered on the docket.
In Pena, there was no separate document. The judgment was thus not entered until 150 days after the district court’s decision. The motion for reconsideration was therefore timely. Indeed, it was early—the judgment was not yet entered, so the 28-day period for filing the motion had not even started. The time for appealing thus ran from the district court’s decision denying the motion for reconsideration. And the petitioner filed his notice of appeal within 30 days of that decision.
Pena v. TD Auto Finance LLC, 2021 WL 2975557 (3d Cir. July 15, 2021), available at the Third Circuit and Westlaw.