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I’ve put the weekly roundup on hiatus for a now. In its place, I’m going to try (emphasis on try) more individual posts and monthly roundups.
So here is the first monthly roundup, covering the appellate-jurisdiction highlights of January 2023. It features a cert grant on a long-simmering circuit split, a new circuit split on contempt appeals, some pendent appellate jurisdiction, and a new cert petition on another split.
Immigration law generally strips the courts of appeals of jurisdiction to review a variety of factual and discretionary issues. But a savings clause preserves jurisdiction to review legal and constitutional issues. And in 2020’s Guerrero-Lasprilla v. Barr, the Supreme Court held that appellate jurisdiction exists to review mixed questions of law and fact—i.e., the application of the law to the facts.
Before Guerrero-Lasprilla, most (if not all) courts of appeals held that they lacked jurisdiction to review whether an immigration petitioner had shown the “exceptional and extremely unusual hardship” necessary for cancellation of removal. Guerrero-Lasprilla sparked some re-examination of the issue, and a circuit split quickly developed.
A new cert petition gives the Supreme Court the chance to resolve this split. The case is Wilkinson v. Garland, and the government’s response is due February 21, 2023.
In In re Grand Jury Subpoena, the Eleventh Circuit explained that it could not review a contempt decision without a sanction.
The Supreme Court held in Ortiz v. Jordan that parties cannot appeal evidence-sufficiency issues raised in a denied summary-judgment motion after a trial on the merits. Parties must instead raise issues with the sufficiency of the trial evidence via a motion under Federal Rule of Civil Procedure 50. But Ortiz left open the possibility that a denied summary-judgment motion could preserve purely legal issues for appeal. And that’s an issue on which the courts have split.
Last month, the Supreme Court finally decided to address the issue. The case is Dupree v. Younger, and it’s scheduled for argument on April 24, 2023.
It’s the fourth annual winter-break edition of the weekly roundup. As I have in previous years, I took a few weeks off from Final Decisions. But I’m back with a roundup covering the last three weeks of 2022. Those weeks saw a pair of collateral-order decisions, the effect of Nasrallah v. Barr on other kinds of immigration appeals, an en-banc decision on the timeliness of government appeals, and an appeal from the refusal to quash a grand-jury subpoena. Plus two qualified-immunity appeals in which the defendants challenged the factual basis for the immunity denial.
There were three cases of note from last week. The Third Circuit held that notices of appeal do not encompass post-notice decisions. Litigants must file a second notice, or amend the first, to appeal those decisions. The D.C. Circuit held that it could not review a facial challenge to a statute in an injunction appeal stemming from an as-applied challenge. And the Ninth Circuit determined that a temporary restraining order was effectively an appealable injunction.
There were a bunch of interesting decisions last week. In the continuing saga of the Rule 3(c) amendments, the Second Circuit acknowledged them and applied them retroactively. In other decisions, the Sixth Circuit explained that it could review class certification in an appeal from a class-wide injunction. The Fourth Circuit clarified the basis for its jurisdiction to review compassionate-release denials. And the Eleventh Circuit explained that FLSA collective actions are not final until the district court addresses the claims of every opt-in plaintiff. Plus finality in § 2255 resentencing orders and a rejected attempt at municipal piggybacking.
I took a break from the roundup last week, but I’m back with a double-sized edition. In the last two weeks, another circuit didn’t recognize that the recent Rule 3(c) amendments abrogated its caselaw. The Eleventh Circuit determined that a stay put an action in “suspended animation,” thereby allowing an appeal from the stay. The Fifth Circuit used mandamus to quash a subpoena. And the en banc Fourth Circuit declined to reconsider its decision that defendants cannot immediately appeal denials of the ministerial-exception. Plus immigration appeals, qualified-immunity appeals, and more.
I’ve written a lot on this site about the finality trap in the last few years. Now I’ve published an essay on the trap in the New York University Law Review Online. I argue that the trap is asinine. And there’s an easy fix to it: let litigants disclaim the right to refile voluntarily dismissed claims. But the trap also makes me wonder if we should rethink finality. Current finality doctrine largely looks to what the district court has done—has the district court actually resolved all of the claims? It might be better to instead ask whether the district court is done. That is, once the district court has finished with an action, it has issued a final decision and the court of appeals has jurisdiction.
The essay is Disarming the Finality Trap, 97 New York University Law Review Online 173 (2022). You can download a copy at SSRN. The abstract is below.
Last week, the Tenth Circuit once again used a pro se plaintiff’s notice of appeal to limit the scope of its review despite recent amendments to Federal Rule of Appellate Procedure 3(c). The Second Circuit gave a thorough explanation of its jurisdiction over decisions made in post-judgment proceedings. The Fifth Circuit heard an appeal from a Brillhart stay. And two courts reversed orders that would have permitted an interlocutory appeal.
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