The Week in Federal Appellate Jurisdiction: July 25–31, 2021

Last week, the Fourth Circuit held that it could review hardship determinations in immigration appeals. In doing so, the court added to one side of the circuit split on this issue.

In other decisions, the Eleventh Circuit heard an appeal from the denial of immunity under the Foreign Sovereign Immunities Act in a criminal case. The Ninth Circuit dismissed an appeal that challenged a “common-fund” attorneys’ fees award in an ongoing class action. The Second Circuit held that a motion to reconsider a First Step Act denial delayed the start of the appeal clock. In another case, the Second Circuit said that a district court could not correct clerical errors in a judgment once the defendant had appealed the refusal to correct those errors.

Plus decisions on factual challenges in qualified-immunity appeals, an informal notice of appeal, and pendent appellate jurisdiction over the political-question defense.

• The Fourth Circuit Weighed in on the Developing Circuit Split Over Jurisdiction to Review Hardship Determinations in Immigration Appeals
• The Eleventh Circuit on FSIA Appeals in Criminal Prosecutions
• The Ninth Circuit on “Common-Fund” Attorneys’ Fees and the Collateral-Order Doctrine
• The Second Circuit on Appeals After Motions to Reconsider First Step Act Denials
• The Second Circuit on Correcting Clerical Errors in a Judgment After the Defendant Appealed
• Quick Notes

The Fourth Circuit Weighed in on the Developing Circuit Split Over Jurisdiction to Review Hardship Determinations in Immigration Appeals

In Gonzalez Galvan v. Garland, the Fourth Circuit held that it could review whether an immigration petitioner had shown the “exceptional and extremely unusual hardship” necessary for cancellation of removal under 8 U.S.C. § 1229b. Although the ultimate decision on whether to grant cancellation is discretionary, a petitioner must show sufficient hardship to be eligible for cancellation. The hardship determination is thus a mixed question of law and fact that appellate courts can review under 8 U.S.C. § 1252(a)(2)(D).

In so holding, the Fourth Circuit sided with the Fifth and Sixth Circuits (and against the Third and Tenth Circuits) in the split over reviewing hardship determinations. Note, the Eleventh Circuit has said in dicta that hardship is a mixed question of law, and the Seventh Circuit has suggested that it would so hold in an appropriate case.

For more on this issue and the developing circuit split, see Appealing Hardship Determinations in Immigration Cases and The Seventh Circuit on Guerrero-Lasprilla & Cancellation of Removal.

Gonzalez Galvan v. Garland, 2021 WL 3160092 (4th Cir. July 27, 2021), available at the Third Circuit and Westlaw.

The Eleventh Circuit on FSIA Appeals in Criminal Prosecutions

In United States v. Pangang Group Co., the Eleventh Circuit heard an interlocutory Foreign Sovereign Immunity Act appeal in a criminal prosecution.

Pangang Group involved a prosecution against several Chinese companies for violations of the Economic Espionage Act. The defendants moved to dismiss the indictment under the Foreign Sovereign Immunities Act (often called “FSIA”), arguing that they were instrumentalities of the People’s Republic of China. The district court assumed that FSIA immunity applied in criminal cases. It went on to deny the motion to dismiss, concluding that the companies were not immune under FSIA’s exceptions.

The companies then appealed to the Ninth Circuit. The government moved to dismiss the appeal for a lack of jurisdiction, arguing that immediate appeals from denials of FSIA immunity are not available in the criminal context.

The Ninth Circuit rejected the government’s jurisdictional challenge. That court, like most (if not all) of the courts of appeals, allows defendants to immediately appeal from the denial of FSIA immunity via the collateral-order doctrine. FSIA provides foreign sovereigns with an immunity from suit. And a foreign sovereign’s right to avoid a criminal prosecution in the United States is sufficiently important to warrant an immediate appeal.

The Ninth Circuit went on to reject the government’s arguments that prosecutions under the Economic Espionage Act require different treatment. The government contended that the availability of FSIA immunity and the merits of the Economic Espionage Act counts overlapped—both asked whether the defendants were instrumentalities of a foreign state. With this overlap, immunity and the merits did not appear to be sufficiently separate for collateral-order purposes.

The Ninth Circuit noted, however, that appeals under the collateral-order doctrine are categorical: either a type of order is always appealable via the doctrine, or it never is. Appealability does not turn on case-specific circumstances. And the law was settled that defendants can immediately appeal from the denial of FSIA immunity.

The Ninth Circuit went on to hold that the defendants were not instrumentalities of China, such that FSIA immunity was not available. The court thereby avoided deciding whether the FSIA applies in criminal prosecutions.

United States v. Pangang Group Co., 2021 WL 3137951 (9th Cir. July 26, 2021), available at the Ninth Circuit and Westlaw.

The Ninth Circuit on “Common-Fund” Attorneys’ Fees and the Collateral-Order Doctrine

In AdTrader, Inc. v. Google LLC, the Ninth Circuit dismissed an appeal from an interim award of “common-fund” attorneys’ fees in a class action.

Simplifying quite a bit, AdTrader involved a class action regarding Google’s advertising services. Google connects advertisers and website producers. The producers then receive part of what the advertisers pay Google, with a producer’s receipts depending on its site’s traffic. But Google does not pay for “invalid traffic”—traffic that appears to not represent genuine human activity. Website producers brought a purported class action against Google over the refusal to pay for invalid traffic.

Shortly after the litigation began, Google announced that it would pay users of one of its advertising platforms for previously denied traffic. But Google has three separate advertising platforms, and it intended to litigate the claims regarding the other two. Google also stipulated that it would pay any attorneys’ fees to the plaintiffs on its own, rather than have those fees deducted from any payments to class members. The district court awarded the AdTrader plaintiffs attorneys’ fees for the benefit that they had provided to the users that Google had decided to pay. Unsatisfied with the amount of fees, the plaintiffs appealed. Meanwhile, the parties continued litigating the plaintiffs’ claims.

The Ninth Circuit held that it lacked jurisdiction over the fee decision. The plaintiffs’ class action was not yet complete, so there was no final decision in the litigation. And the fee decision was not appealable via the collateral-order doctrine.

To be sure, courts occasionally allow immediate appeals from fee awards when there is some prospect that the attorneys might not be able to recover the funds that they think they’re entitled to. So, for example, attorneys who claim a share of money awarded to a financially unstable party might be able to immediately appeal. But there was no risk of inability to pay in AdTrader. Google had agreed to pay all fees on its own, not out of any common fund. So there was no risk that distribution of funds would prevent the attorneys from being paid. Indeed, the case wasn’t really a common-fund case, as attorneys’ fees were not being paid out of a common fund.

AdTrader, Inc. v. Google LLC, 2021 WL 3235765 (9th Cir. July 30, 2021), available at the Ninth Circuit and Westlaw.

The Second Circuit on Appeals After Motions to Reconsider First Step Act Denials

In United States v. Gist, the Second Circuit held that a notice of appeal filed before a district court reconsidered a sentencing decision was sufficient to appeal the reconsideration decision.

The defendant in Gist sought a sentence reduction under the First Step Act, which allows courts to reduce certain drug sentences in accordance with the Fair Sentencing Act. The district court initially thought that the defendant’s offense was not covered by the First Step Act and accordingly denied the motion. The defendant then filed a notice of appeal. Shortly thereafter, he sought reconsideration of this initial denial. In its response to the reconsideration motion, the government conceded that the district court’s initial decision was erroneous—the defendant’s offense was covered by the Act. The government nevertheless urged the district court to again deny a sentence reduction, changing the rationale to deny a sentence reduction in the district court’s discretion. The district court agreed with the government and denied the sentence reduction. The defendant did not file a second or amended notice of appeal.

This left the Second Circuit with a few jurisdictional knots to untie. The court first said that the district court had jurisdiction to alter the rationale for its decision, despite the defendants’ filing a notice of appeal. A notice of appeal normally transfers jurisdiction from the district court to the court of appeals, and the district court lacks authority to alter any decision involved in the appeal. Motions for reconsideration provide an exception to this rule. They can delay the effectiveness of a notice of appeal and thus delay the transfer of jurisdiction.

Granted, neither the Federal Rules of Criminal Procedure nor the Federal Rules of Appellate Procedure provide that motions for reconsideration in criminal cases delay the effectiveness of a notice of appeal. But the Second Circuit thought that these motions were governed by Federal Rule of Appellate Procedure 4(b)(3), which delays the running of the appeal clock for certain post-judgment motions in criminal cases. (Note, the Seventh Circuit said last summer that these were common law motions for reconsideration governed by the general common law rule: a motion for reconsideration filed before the time to appeal has run delays the start of the appeal clock.)

The Second Circuit also said that no new or amended notice of appeal was required. The notice of appeal became effective once the district court denied the motion for reconsideration. And although the district court changed its rationale for denying the sentence reduction, the district court did not alter its judgment. The defendant’s request was still denied. With no change to the judgment, no new notice was necessary.

United States v. Gist, 2021 WL 3197183 (2d Cir. July 29, 2021), available at CourtListener and Westlaw.

The Second Circuit on Correcting Clerical Errors in a Judgment After the Defendant Appealed

In United States v. Jacques, the Second Circuit determined that a district court lacked jurisdiction to correct clerical errors in a criminal judgment after the defendant appealed the refusal to correct those errors.

A jury convicted the defendant in Jacques of several drug offenses. The defendant was sentenced in accordance with the offenses that the jury actually found him guilty of. But the district court’s subsequent judgment did not accurately list those offenses. The defendant moved to correct the judgment under Federal Rule of Criminal Procedure 36, which permits a district court to correct clerical errors in a judgment. The district court denied that motion, and the defendant appealed.

While that appeal was pending, the defendant filed additional motions in the district court. In response to one of those motions, the government acknowledged the clerical errors in the defendant’s judgment. The district court accordingly entered a Rule 36 order correcting the listed offenses. The government then moved to dismiss the appeal from the initial Rule 36 denial as moot, as the defendant had obtained all of the relief he sought in that appeal.

The Second Circuit denied the motion to dismiss the appeal. Once a notice of appeal is filed, jurisdiction transfers from the district court to the court of appeals over all aspects of the case relevant to the appeal. So once the defendant appealed the denial of his Rule 36 motion, the district court lost jurisdiction to correct clerical errors in the judgment. That was so even though Rule 36 provides that a district court can correct clerical errors “at any time.” This temporal statement refers to the time after a judgment is entered. It does not change the normal rules governing the transfer of jurisdiction after a notice of appeal.

United States v. Jacques, 2021 WL 3135985 (2d Cir. July 26, 2021), available at CourtListener and Westlaw.

Quick Notes

In Duda v. Elder, the Tenth Circuit rejected a defendant’s attempt to challenge the factual basis for an qualified-immunity denial. Duda involved a former police officer’s First Amendment-retaliation claim against the elected county sheriff. According to the district court, a reasonable jury could find that the sheriff did not uniformly apply a policy against on-duty political activity and fired the plaintiff because of the plaintiff’s protected, political speech. The defendant nevertheless appealed from the denial of qualified immunity and argued (among other things) that he fired the plaintiff for policy violations. Because the sheriff failed to accept (for purposes of the interlocutory appeal) the plaintiff-favorable facts as the district court saw the m, the Tenth Circuit lacked jurisdiction to review whether the law was clearly established. The sheriff’s arguments on this point were “an intertwining of disputed issues of fact and cherry-picked inferences, on the one hand, with principles of law, on the other hand.”

Duda v. Elder, 2021 WL 3164037 (10th Cir. July 27, 2021), available at the Tenth Circuit and Westlaw.

In Quintana v. Woodward, the Seventh Circuit determined that a request for an extension of the appeal deadline, coupled with a request for appellate counsel, served as a substitute for a formal notice of appeal. As the plaintiff in Quintana’s time to appeal was ending, he asked the district court for a second extension of the appeal deadline and for assistance in securing appellate counsel. He did not file a formal notice of appeal until after the close of the appeal window. The Seventh Circuit deemed these requests sufficient to give notice of the intent to appeal. It was clear both that the plaintiff wanted to appeal and what he wanted to appeal (as there was only a single judgment).

Quintana v. Woodward, 2021 WL 3160873 (7th Cir. July 27, 2021), available at the Seventh Circuit and Westlaw.

And in Usoyan v. Republic of Turkey, the D.C. Circuit said that it had pendent appellate jurisdiction to review the rejection of a political-question defense alongside a foreign-sovereign-immunity appeal. In support of this point, the court cited to cases in which it had extended pendent appellate jurisdiction to forum-non-conveniens and personal-jurisdiction defenses alongside foreign-sovereign-immunity appeals. Note, the D.C. Circuit is probably the most generous circuit when it comes to pendent appellate jurisdiction.

Usoyan v. Republic of Turkey, 2021 WL 3160500 (D.C. Cir. July 27, 2021), available at the D.C. Circuit and Westlaw.