Blog

The Sixth Circuit has recently spent some time addressing 18 U.S.C. § 3742. That statute specifies the situations in which appellate courts can grant relief in sentencing appeals, such as when a sentence is “imposed in violation of law.” In three decisions last week, the Sixth Circuit touched on whether § 3742 applies to the review of denials of sentence modifications under the First Step Act (and thus provides grounds for granting relief in those appeals).…

In County of San Mateo v. Chevron Corp., the Ninth Circuit held that energy companies could not remove several climate-change suits to federal court via 28 U.S.C. § 1442, the federal-officer removal statute. The court also reaffirmed the narrow scope of remand appeals under 28 U.S.C. § 1447(d).…

In Affinity Living Group, LLC v. StarStone Specialty Insurance Co., a divided Fourth Circuit held that it had appellate jurisdiction despite the parties’ stipulating to dismiss some claims without prejudice. The district court had issued a decision that necessarily—though not technically—resolved all of the claims, including the voluntarily dismissed ones.…

Last week saw a few decisions of note. The Fourth Circuit cleaned up its law on appealing dismissals without prejudice, deeming its 2015 decision in Goode v. Central Virginia Legal Aid Society, Inc. to be bad law. The First Circuit held that it could address whether the Board of Immigration Appeals deviated from its settled course of adjudication in reviewing the denial of sua sponte reopening.…

In Bing v. Brivo Systems, LLC, the Fourth Circuit clarified its law governing appeals from dismissals without prejudice due to insufficient pleadings. In a series of decisions, that court had laid out a framework for when those dismissals are final and appealable. Relevant considerations included whether the defects in a complaint could be cured, whether the district court dismissed the complaint or the entire action, and whether the plaintiff decided to stand on the dismissed complaint.…

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.…

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.…

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.…

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.…

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.…