Posts in category “Weekly Roundup”
Last week saw two cert denials in cases I’ve been following, one on the jurisdictionality of immigration exhaustion and another on jurisdiction to review FISA Court orders. In the courts of appeals, the Sixth Circuit explained that it can review jurisdictional dismissals—despite those dismissals’ being without prejudice—because the district court is finished with the case. The Fifth Circuit heard an appeal from a decision that ordered discovery despite an unresolved claim of FSIA immunity, as the discovery order effectively denied immunity. And the Second Circuit explained that parties cannot voluntarily dismiss claims and then appeal interlocutory decisions related to those claims.
After several relatively uneventful weeks, last week saw a variety of interesting appellate-jurisdiction decisions.
Two courts addressed pendent appellate jurisdiction issues. In an injunction appeal, the Ninth Circuit refused to extend pendent appellate jurisdiction to an order dismissing some claims. And in a state-sovereign-immunity appeal, the First Circuit addressed the plaintiffs’ standing. Several courts addressed the timing and adequacy of notices of appeal. All of these decisions thankfully deemed the notices effective. And the Fifth Circuit dismissed an appeal from an arbitration order; the district court’s closing the case did not amount to an appealable dismissal.
Let’s start, however, with the Tenth Circuit’s response to a fact-based qualified-immunity appeal.
Last week saw another court hold that defendants can immediately appeal the denial of FSIA immunity in a criminal case. In other decisions, the Eleventh Circuit extended pendent appellate jurisdiction to review a summary-judgment decision as part of an injunction appeal. And the Ninth Circuit held that the expiration of the time to amend a dismissed complaint resulted in a final, appealable decision.
Last week saw three decisions of note. The Sixth Circuit held that discovery orders under 28 U.S.C. § 1782 are “final decisions” for purposes of appeal. Proceedings under § 1782 exist entirely to obtain discovery. So the discovery order marks the end of litigation and is a final, appealable decision. In so holding, the Sixth Circuit joined several other circuits that have addressed the issue.
The Eleventh Circuit issued two decisions of note. In one, the court dismissed an appeal because the notice of appeal designated a nullified judgment. The plaintiff appealed after the district court had withdrawn its order dismissing a case, which rendered the initial judgment ineffective. The notice of appeal also was not effective to appeal the subsequent judgment, which was entered hours after the plaintiff appealed. In another case, the Eleventh Circuit reiterated its rule that it would not address a plaintiff’s standing as part of a qualified-immunity appeal. The court could resolve any immunity issues without considering standing.
Once again, there are only a few decisions of note from the last week. The Fifth Circuit explained that litigants can wait until the entry of a final judgment before moving to reconsider an interlocutory decision. And the Third Circuit refused to use pendent appellate jurisdiction to review the denial of a motion to amend alongside an injunction appeal.
In Supreme Court developments, the Court denied cert in In re Grand Jury Investigation, which asked whether a claim of privilege was necessary to take a Perlman appeal. And the government filed its response to the cert petition in Omwega v. Garland, which asks if immigration’s exhaustion requirement is jurisdictional.
Last week saw two appellate-jurisdiction decisions of note. The First Circuit reviewed an abstention-based remand. In the course of doing so, the court addressed its power to order a district court to retrieve a remanded case from state court. And the Ninth Circuit dismissed a qualified-immunity appeal insofar as the defendant challenged causation—a factual issue over which the court of appeals lacked jurisdiction.
In Supreme Court developments, the Court granted cert in a case that asks if the time for filing a petition for review in the Tax Court is jurisdictional. And a new cert petition asks if the courts of appeals can review remand orders when the plaintiff moved to remand within 30 days of the notice of removal but raised a procedural defect after those 30 days had passed.
It was another slow week, with only two decisions of note. The First Circuit used mandamus to review a discovery order that implicated legislative privilege. And Judge Willett dissented from an opinion reversing the denial of qualified immunity. According to Judge Willett, the majority had evaded the normal jurisdictional limits on reviewing the factual basis for an immunity denial.
Last week saw only two decisions of note. The Sixth Circuit discussed whether an appellant can amend its notice of appeal (rather than file a second notice) to include a post-judgment decision on expert-witness fees. And Judge Tjoflat of the Eleventh Circuit wrote a concurrence on jurisdiction to review denials of qualified immunity at summary judgment. In cert-stage developments, briefing wrapped on a case involving (among other things) the appellate jurisdiction of the Foreign Intelligence Surveillance Court of Review.
Last week, the Fifth Circuit refused to dismiss a private defendant’s appeal in a challenge to Texas’s new abortion restrictions. But the court’s explanation is inscrutable, and the grounds for appellate jurisdiction don’t make sense.
There were also two decisions involving the exercise of pendent appellate jurisdiction. The Eleventh Circuit’s embraced municipal piggybacking in qualified-immunity appeals. And the Third Circuit said that it could review state-law arbitration issues as part of an appeal under the Federal Arbitration Act.
Finally, three decisions rejected fact-based challenges to the denial of qualified immunity. One of those decisions also touched on the split over whether courts can review Heck v. Humphrey issues as part of a qualified-immunity appeal.
Last week, the Eighth Circuit tackled the administrative remand rule and—finding it didn’t apply—inferred a § 1292(b) certification by the district court. The Eleventh Circuit reviewed a motion that challenged the filtering procedures for reviewing seized evidence. A handful of courts refused to review additional issues and defenses as part of qualified-immunity appeals. The D.C. Circuit reviewed the denial of common law foreign-sovereign immunity. The Second Circuit passed on deciding whether a represented party could invoke the prison-mailbox rule for filing a notice of appeal. And the Seventh Circuit concluded that two motions seeking transcripts were the functional equivalent of a timely notice of appeal.
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