The en banc Fourth Circuit declined to rehear a case asking whether a single notice of appeal could be treated as both a Rule 4(a)(6) motion and—once that motion was granted—a notice of appeal.
April 24, 2024
Disclosure: I filed an amicus brief in support of rehearing in this appeal.
In last summer’s Parrish v. United States, a divided Fourth Circuit panel held that when a notice of appeal is treated as a motion to reopen the appeal period under Federal Rule of Appellate Procedure 4(a)(6), the would-be appellant must file a second notice of appeal after that motion is granted. The majority thought that by using the term “reopen” in 28 U.S.C. § 2107(c)—the statute that Rule 4(a)(6) implements—Congress intended to create a second, separate appeal period, distinct from the original one. And a new notice must be filed within that new appeal period. The original notice, which had been treated as a Rule 4(a)(6) motion, was insufficient.
I was pretty critical of the decision—see my post The Fourth Circuit Requires a Second Notice of Appeal After the Appeal Window is Reopened. The issue is one on which the courts have split, and the Fourth Circuit’s side makes little sense to me.
I was accordingly happy to see the plaintiff seek rehearing en banc. I filed an amicus brief in support of rehearing, arguing that the panel’s decision—in addition to being wrong for all the reasons set out in the rehearing petition—conflicted with the cumulative-finality doctrine. The United States (the defendant in the action) agreed that the panel decision was wrong. But it thought that the issue was not important enough to warrant en banc rehearing.
A divided Fourth Circuit denied rehearing en banc, with nine judges voting against rehearing and six voting for it.
The Federal Circuit explained that it could review a Veterans Court remand order when the appellant challenged the Veterans Court’s power to order the remand.
April 23, 2024
In Chavez v. McDonough, the Federal Circuit reviewed an order of the Veterans Court that remanded an action for further proceedings. Veterans Court remand orders normally are not immediately appealable. But these orders can be final and thus appealable when they (among other things) involve an argument that the Veterans Court lacked authority to order the remand.
When a party raises an issue for the first time after filing its notice of appeal, does the notice limit jurisdiction over that issue? Or does the case instead implicate prudential limits on appellate courts’ addressing issues in the first instance?
April 20, 2024
In McGruder v. Metropolitan Government of Nashville & Davidson County, the Sixth Circuit said that it would address a judicial-estoppel defense raised for the first time after the defendant had filed its notice of appeal.
The Sixth Circuit framed this issue as one implicating the content and timing requirements for a notice of appeal. The defendant’s notice had not designated a decision on the judicial-estoppel defense. And the only decision relevant to that defense came after the notice of appeal. The Sixth Circuit nevertheless concluded that it could address judicial estoppel in the first instance. The matter had been fully briefed in the district court. And courts can address judicial-estoppel issues on their own initiative.
While I agree with the outcome in McGruder, I’m not sure that the case implicates the issues it addresses. I think the case instead implicates the prudential limits on appellate courts’ addressing issues in the first instance.
The Sixth Circuit joined the “no jurisdiction” side of the split on whether courts can review Heck issues as part of a qualified-immunity appeal. But it probably went too far in reviewing a judicial-estoppel argument.
April 17, 2024
In Chaney-Snell v. Young, the Sixth Circuit held that Heck v. Humphrey issues are outside the scope of qualified-immunity appeals. In doing so, the Sixth Circuit joined the majority of circuits in the (lopsided) split on this matter. The court went on, however, to extend pendent appellate jurisdiction to a judicial-estoppel argument. Extending jurisdiction was necessary, the court explained, to effectively review the denial of qualified immunity.
While I agree with the Heck holding, I don’t agree with the review of the judicial-estoppel issue. The court’s rationale on the latter point would seem to allow plenary review of the factual basis for a district court’s immunity denial. And Johnson v. Jones normally prohibits that sort of review.
(For more on the scope of qualified-immunity appeals, see my article, Reforming Qualified-Immunity Appeals.)
The Fourth Circuit concluded that courts lack jurisdiction to review the denial of an application for permanent residence.
April 15, 2024
In Shaiban v. Jaddou, the Fourth Circuit held that it lacked jurisdiction to review the denial of an immigrant’s application for permanent residence under 8 U.S.C. § 1159(b). Under 18 U.S.C. § 1252(a)(2)(B)(ii), courts lack jurisdiction to review certain discretionary decisions in the immigration context. And the government has discretion when it comes to adjusting an asylee’s status to that of permanent resident.
Perceived urgency for a ruling on a preliminary-injunction led the Fifth Circuit to conclude that the district court’s delay in deciding amounted to an appealable denial.
April 15, 2024
In In re Fort Worth Chamber of Commerce, a divided Fifth Circuit held that the delay in resolving a preliminary-injunction motion effectively denied that motion. The court thought that the context of the case—impending changes to regulations—required quick action. So when the district court did not decide the preliminary-injunction request by the plaintiffs’ desired date, the Fifth Circuit treated that delay as an appealable denial of a preliminary injunction under 28 U.S.C. § 1292(a)(1).
In a subsequent appeal from the same action, the Sixth Circuit vacated a prior panel decision after concluding that the panel lacked appellate jurisdiction.
April 12, 2024
In RJ Control Consultants, Inc. v. Multiject, LLC, the Sixth Circuit held that it lacked appellate jurisdiction over a prior appeal in an action. The court accordingly vacated the prior panel’s decision.
I don’t think I’ve ever seen this before. And while it might be an okay practice in appeals from the same action (though I have doubts), I don’t think appellate panels should—indeed, can—inquire into jurisdiction in prior decisions.
The Seventh Circuit suggested that an invocation of federal-officer removal—which permitted a plenary appeal from a remand order—was frivolous and thus sanctionable.
April 12, 2024
In Roberts v. Smith & Wesson Brands, Inc., the Seventh Circuit affirmed a district court order remanding an action to state court. Although remand orders are generally not reviewable on appeal, the defendants in Roberts had invoked federal-officer removal and thus could obtain plenary review. But the Seventh Circuit seemed to think that this invocation of federal-officer removal was frivolous. The court accordingly suggested that the district court consider ordering the defendants to pay the plaintiffs’ fees and costs.
The Eleventh Circuit held that a bankruptcy court order order recognizing a foreign proceeding is final.
April 11, 2024
In In re Al Zawawi, the Eleventh Circuit held that a bankruptcy court order recognizing a foreign proceeding is final and thus appealable.
The First Circuit applied the civil-appeal deadline to a criminal defense attorney's appeal from a disqualification order.
April 10, 2024
In Amador v. United States, the First Circuit held that the civil-appeal deadline applied to a criminal defense attorney’s appeal from a disqualification order. The court reasoned that the appeal did not involve the underlying conviction or sentence, nor was the appeal brought on behalf of the defendant. The appeal was thus collateral to the criminal prosecution, and the civil-appeal deadline applied.