Posts in category “Cert Petitions”
Disclosure: I filed an amicus brief in the Fourth Circuit in support of rehearing its decision in this case and discussed the cert petition with the petitioner’s counsel.
Last week, the Supreme Court granted certiorari in Parrish v. United States. The case asks if a would-be appellant must file a second notice of appeal after a court treats the first notice as a motion to reopen the time to appeal under Federal Rule of Appellate Procedure 4(a)(6).
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.
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.
The last year or so has seen some significant judicial activity when it comes to the finality trap. The trap can arise after a party voluntarily dismisses some of its claims without prejudice and then tries to appeal. This scenario makes some courts of appeals suspicious, as parties sometimes use these voluntary dismissals to manufacture an interlocutory appeal. The courts have developed a variety of ways to stop parties from doing so. And some of those methods create a trap. The court of appeals deems the dismissal non-final and thus non-appealable. But the court also leaves no avenue for the appealing party to make the underlying decision final. The party is then left in limbo. The case is over and unchangeable in the district court. But it’s not final for purposes of appeal.
A new cert petition challenges the Ninth Circuit’s variation on the finality trap. More generally, the petition gives the Supreme Court a chance to disarm the trap once and for all. The case is Starline Tours of Hollywood, Inc. v. EHM Productions, Inc. The response is due May 7, 2021.
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.
A new cert petition asks the Supreme Court to resolve this split. The case is Ericsson Inc. v. TCL Communication Technology Holdings Ltd., and the response is due March 19, 2020.
October Term 2017 could have been a big one for appellate jurisdiction at the Supreme Court. But it was not to be. Salt River Project Agricultural Improvement and Power District v. Tesla Energy Operations Inc. settled before the Court could decide whether denials of state-action immunity are immediately appealable collateral orders. United States v. Sanchez-Gomez—which gave the Court the chance to endorse the use of supervisory/advisory mandamus for one-off legal issues that will evade appellate review—was deemed moot. Only Hall v. Hall addressed appellate jurisdiction, holding that resolution of an action was final and appealable even though the action had been consolidated with others.
The Supreme Court’s new term has even more potential than 2017’s.
A second cert petition has been filed in Xitronix and KLA-Tencor’s fight—as well as the Fifth and Federal Circuit’s fight—over the Federal Circuit’s exclusive jurisdiction in patent appeals. (I mentioned this petition in a recent weekly roundup.) The appeal has ping-ponged from the Federal Circuit to the Fifth Circuit and then back to the Federal Circuit. And it presents an interesting issue about what it means for an appeal to arise under the patent laws.
The Supreme Court granted cert yesterday in Dex Media Inc. v. Click-To-Call Technologies, LP. The case concerns the appealability of the Patent Trial and Appeal Board’s decision to institute inter partes review. The statute in question—35 U.S.C. § 314(d)—says that “[t]he determination . . . whether to institute an inter partes review under this section shall be final and nonappealable.” But the Federal Circuit held that this provision does not deprive that court of jurisdiction to review the Board’s conclusion that a petition to institute inter partes review was timely. In Dex Media, the Supreme Court will review this interpretation of § 314(d).
Side note: This means that next term will see three cases on appellate jurisdiction and procedure: Dex Media, Holguin-Hernandez v. United States (which will address whether defendants must formally object to the length of their sentence to preserve the issue for appeal), and Ritzen Group Inc. v. Jackson Masonry, LLC (which will address whether a denial of bankruptcy-stay relief is final and appealable).
Below is a quick introduction to Dex Media and some useful links for reading up on the case.
The Supreme Court granted cert this week in Holguin-Hernandez v. United States, No. 18-7739, to decide whether criminal defendants must object after sentencing to preserve for appeal a challenge to the substantive reasonableness (read: length) of their sentence. The courts of appeals have split on this matter. And given the United States’s concession that a post-sentencing objection is not required, Holguin-Hernandez will likely mark the end of the rule requiring them.
The Convention Against Torture (along with its implementing statutes and regulations) prohibits deporting immigrants to countries where they are likely to face torture. Immigrants can accordingly seek to defer their removal when they face a likelihood of torture. If deferral is denied, the Immigration and Nationality Act gives the courts of appeals jurisdiction to review that denial.
But appellate jurisdiction might not extend to all aspects of a denial. The Immigration and Nationality Act contains several provisions specifying which issues are—and are not—within a court’s appellate jurisdiction. The courts of appeals have split on whether one of these provisions—the bar on reviewing many issues when a petitioner has been convicted of certain crimes—bars review of immigration authorities’ conclusion that a petitioner is not likely to be tortured upon removal. The Supreme Court has repeatedly declined to review this split, despite the United States conceding that the issue merits cert. But a recently filed cert petition—Nasrallah v. Barr, No. 18-1432—might finally be the right opportunity for the Court to resolve this split.
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