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Jurisdiction in immigration appeals is often complicated. A new wrinkle has arisen in the past two weeks regarding appellate review of decisions denying sua sponte reopening. The Board of Immigration Appeals can reopen removal proceedings in response to a motion or sua sponte. The term sua sponte is somewhat misleading, however, as immigration petitioners often ask the Board to exercise this reopening power. The courts of appeals have held that they generally lack jurisdiction to review the Board’s denial of sua sponte reopening. But most courts of appeals have created an exception to this general rule when a legal or constitutional error underlies the Board’s decision.
In the past two weeks, two courts of appeals have added further nuance to the review of sua sponte reopening. In two cases, immigration petitioners argued that the Board abused its discretion in denying sua sponte reopening because the Board deviated from a settled course of adjudication. That is, the Board’s denial of sua sponte reopening was inconsistent with the Board’s decisions in prior, similar cases. In Lona v. Barr, the Ninth Circuit held that it lacked appellate jurisdiction and could not address this settled-course argument. Less than a week later, in Thompson v. Barr, the First Circuit held it could. At least one other circuit—the Third—has also held that it could review settled-course arguments. A split has accordingly solidified on this issue.
When a court orders discovery over a claim of privilege, privilege claimants traditionally had two semi-reliable avenues for immediate appellate review. If the order directed the privilege claimant to disclose something, the claimant could appeal via the contempt route. The claimant could disobey, be held in contempt, immediately appeal the contempt, and—in that appeal—obtain review of the underlying discovery order. And if the order was directed to someone else—for example, an order directing a client’s attorney to testify before a grand jury—the privilege claimant could take what’s called a Perlman appeal. Named after the Supreme Court’s 1918 decision in Perlman v. United States, the Perlman appeal allows privilege claimants to appeal discovery orders directed to third parties.
The Perlman route has become less reliable over the last ten years. Several courts of appeals have read the Supreme Court’s 2009 decision in Mohawk Industries, Inc. v. Carpenter to mean that only non-parties to the litigation can take Perlman appeals. Parties can’t. Two weeks ago, in Rosner v. United States, the Second Circuit joined this doctrinal trend.
I wrote an entire article on this issue several years ago, creatively titled Perlman Appeals After Mohawk. In it I argued that courts were mistaken in limiting the availability of Perlman appeals. These courts have overlooked the purpose of Perlman appeals—protecting against the disclosure of confidential information—and read too much into Mohawk. In doing so, they’ve deprived parties of their reliable chance to seek immediate appellate review of certain privilege issues.
I’ve been studying interlocutory class-certification appeals for a while now, and my draft article on the topic—Interlocutory Class-Certification Appeals Under Rule 23(f)—is now up on SSRN. I created a dataset of petitions to appeal class-certification decisions under Federal Rule of Civil Procedure 23(f) filed from 2013 through 2017. The draft presents my findings, such as the number of petitions filed, the rate at which they’re granted (nationally and by circuit), and—when courts grant petitions to appeal—decisions on the merits of class certification.
I also analyzed whether the data support (or supports, depending on how you feel about whether data is singular or plural) two common criticisms of Rule 23(f). Rule 23(f) has few fans. Some critics contend that the rule operates largely to defendants’ benefit. Others contend that the courts apply the rule inconsistently. I found little support for either criticism in the data. And what little support there is comes with some serious caveats and needs further research.
Last week saw the en banc Fourth Circuit’s decisions on immediate appellate review of various decisions in an emoluments action. Another party fell into the Fifth Circuit’s finality trap, making me wonder whether that court actually made things worse in its recent en banc decision. Another defendant flouted the limits on the scope of qualified-immunity appeals. And the Ninth Circuit held that it lacks jurisdiction to address whether the Board of Immigration Appeals deviated from its “settled course of adjudication” in denying sua sponte reopening. Plus decisions on appealing dismissals without prejudice, orders requiring the government to pay an opposing party’s litigation expenses, and mid-term modifications of supervised release.
Last week, in Williams v. Taylor Seidenbach, Inc., the Fifth Circuit failed to disarm its finality trap. This week, in CBX Resources, L.L.C. v. ACE American Insurance Co., a panel of the Fifth Circuit watched as another party fell into that trap. And unlike the plaintiffs in Williams, the plaintiff in CBX Resources had not obtained the post-proceedings Rule 54(b) certification that Williams held would cure any jurisdictional defects. Presumably the CBX Resources plaintiff will go through the rigmarole of doing so and eventually be back before the Fifth Circuit.
CBX Resources has me wondering if the Fifth Circuit’s Rule 54(b) approach is not only unnecessary, but also makes things worse. The approach seems to encourage the very thing that the court wanted to avoid: litigants’ manufacturing interlocutory appeals by voluntarily dismissing all remaining claims and then refiling them.
There were a few decisions of note last week. The en banc Fifth Circuit addressed the finality trap in a case that I’ve been following for quite some time. The Second Circuit joined other circuits in cutting back the availability of Perlman appeals. And the Sixth Circuit heard two more appeals involving temporary restraining orders. Also, a new cert petition asks the supreme Court to address the scope of § 1447(d) remand appeals in the context of Baltimore’s climate-change litigation against oil and gas companies.
When plaintiffs lose on some of their claims and then voluntarily dismiss the rest, they risk falling into the finality trap. If the remaining claims were voluntarily dismissed without prejudice, most courts of appeals will hold that the district court has not issued a final, appealable decision under 28 U.S.C. § 1291. This general rule becomes a trap when courts don’t let plaintiffs fix the finality problem. In Williams v. Taylor Seidenbach, Inc., the en banc Fifth Circuit found one way around the trap: a Rule 54(b) certification of the claims that the district court dismissed on the merits. But the court didn’t actually disarm the trap. And its use of Rule 54(b) is an odd, unintuitive one that has the potential for future mischief.
The en banc Williams decision is fascinating and has a lot going on. It comprises four opinions, including a separate concurrence from the author of the majority opinion. Those opinions debate statutory interpretation and the role of appellate courts in creating rules of appellate jurisdiction. In this post, I hit the highlights: the legal, factual, and procedural background of Williams; the main points of the four separate opinions; and my take on the court’s decision. I ultimately find the majority opinion to be both odd and unnecessary. It’s odd in its reading and use of Rule 54(b). And it’s unnecessary given the much better option offered by one of the concurring opinions: letting litigants disclaim any right to refile their voluntarily dismissed claims. This practice is common in the courts of appeals, obviates any finality concerns, and preserves Rule 54(b)’s role.
Last week was an eventful one. There was another COVID-19 related appeal from a temporary restraining order, with the Fifth Circuit suggesting that an adversary hearing alone converts a TRO to a preliminary injunction for appeal purposes. The Foreign Intelligence Surveillance Court of Review issued a decision on its jurisdiction to review FISC decisions. The Third Circuit held that it could address Due Process arguments when reviewing immigration decisions involving discretionary relief. Another court of appeals used a writ of mandamus to order an agency to act. Plus more improper qualified-immunity appeals, an immediate appeal in an ancillary discovery proceeding, some Seventh Circuit language on appealing bifurcation orders, and more.
Last week, the Supreme Court addressed the scope of review in appeals from inter partes review. Judge Hamilton of the Seventh Circuit gave an excellent explanation of abuse-of-discretion review. More defendants sought (with mixed success) immediate appellate review of temporary restraining orders. Plus a writ of mandamus to the EPA, an improper qualified-immunity appeal, appealing bankruptcy remands, pendent appellate jurisdiction, notices of appeal, and appeals in post-judgment enforcement proceedings.
The standard of review is an essential part of any appeal; you cannot know whether the district court erred without knowing how the court of appeals will look at the district court’s decision. This is particularly true of abuse-of-discretion review. Discretion necessarily means that there is more than one affirm-able answer. Abuse-of-discretion review asks only whether the district court picked from among the acceptable answers. So even if the judges on the court of appeals might have decided the matter differently, the district court did not err so long as it was within the realm of reasonable decisions.
Mayle v. State of Illinois—a recent Seventh Circuit decision authored by Judge Hamilton—offers an excellent explanation (and illustration) of abuse-of-discretion review.
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