Pragmatic Balancing & Appealing Administrative Remands

In Littlefield v. Mashpee Wampanoag Indian Tribe, the First Circuit held that it had jurisdiction to review a district court order reversing a decision of the the Bureau of Indian Affairs. The case presents an interesting variation on the administrative-remand rule. A Massachusetts district court reversed a Bureau decision and remanded for further proceedings. Normally that decision would not have been appealable until after those proceedings had ended. But the outcome of those proceedings on remand was subsequently challenged in a different district court. This set of circumstances gave the Massachusetts district court’s decision sufficient finality to be appealable.

The administrative-remand rule

The administrative-remand rule generally holds that orders remanding a dispute to an agency are not final. (I wrote about the rule in Dizzying Gillespie: The Exaggerated Death of the Balancing Approach and the Inescapable Allure of Flexibility in Appellate Jurisdiction; see pages 386–93.) More remains to be done in the agency. And in many cases, immediate review of the remand order could both disrupt administrative proceedings (they might be stayed during the appeal) and lead to piecemeal review (the court of appeals might hear a case twice: once after the administrative remand and again after any further administrative proceedings). Delaying review is often wiser. Delay consolidates all issues—from both the earlier agency action and the later agency action—into one appeal. Hence, the general rule that a district court order remanding a case to an agency for further proceedings is not a final, appealable order.

But that’s not always the case. Courts have made an exception to the general rule when the lack of an immediate appeal might leave a party without any chance for appellate review. This happens most frequently when the government tries to appeal. For example, a district court might hold that an agency applied the wrong legal standard and remand with instructions for that agency to apply a different legal standard. If, on remand, the agency applies that new legal standard and finds for the party who was challenging the agency’s actions, the government generally will not be able to appeal; agencies normally cannot appeal their own determinations. So the remand risks making the district court‘s holding on the proper legal standard unreviewable by a court of appeals.

Faced with this sort of situation, courts in most of the circuits have concluded that the government can immediately appeal the district court’s order, even though that order is not technically final. And some cases have held that private litigants can also occasionally appeal district court decisions that contemplate further administrative proceedings.

The administrative remand (and other proceedings) in Littlefield

In Littlefield, the Bureau of Indian Affairs took two pieces of land in Massachusetts into trust for the Mashpee Wampanoag Indian Tribe. In doing so, the Bureau exercised its authority under the Indian Reorganization Act of 1934, which “authorizes the Secretary of the Interior to acquire land and hold it in trust for the purpose of providing land for Indians.” The Act provides two relevant definitions of the term “Indian”: (1) “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction,” and (2) “all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation.” The Bureau determined that the Tribe fell under the second definition, took the land at question into trust, and proclaimed the land to be the Tribe’s reservation.

A group of local residents challenged the Bureau’s action. They filed suit in the District of Massachusetts and argued that the Tribe was not made up of “Indians” under the second definition. The district court agreed. The court concluded that the Bureau exceeded its authority, entered judgment for the residents, and remanded the dispute to the agency. In doing so, the district court noted that the Bureau could, on remand, “analyze the [Tribe’s] eligibility under the first definition of ‘Indian.’”

The Tribe then appealed the Massachusetts district court’s decision. While the appeal was pending, the Bureau issued a second decision, holding that the Tribe did not qualify under the Act’s first definition of “Indians.” This second Bureau decision expressly noted that it did not modify the Bureau’s first decision. The Tribe then challenged this second Bureau decision by filing suit against the Secretary of the Interior in the District of the District of Columbia. The D.C. case challenged only the Bureau’s second decision and did not implicate its first decision.

The First Circuit on appealing administrative remands

In the appeal from the District of Massachusetts decision, the local residents argued that the First Circuit lacked jurisdiction. The district court had remanded the matter to the agency, the residents argued, so the appeal was premature under the administrative-remand rule.

The First Circuit rejected this argument and held that it had jurisdiction. The court of appeals acknowledged the general administrative-remand rule. But it also noted that exceptions to the rule exist when delaying an appeal would be inefficient. The First Circuit gave three considerations for determining whether an exception to the administrative-remand rule applied:

A remand order is final where (1) the district court conclusively resolves a separable legal issue, (2) the remand order forces the agency to apply a potentially erroneous rule which may result in a wasted proceeding, and (3) review would, as a practical matter, be foreclosed if an immediate appeal were unavailable.

(Cleaned up.)

Applying those considerations, the First Circuit concluded that the case involved “both real and practical finality.” The district court conclusively addressed Bureau’s application of the second definition of “Indian.” And the court deemed the second and third considerations irrelevant because the Bureau had already completed the remanded proceedings. Those further proceedings in no way implicated the Bureau’s decision on the second definition of “Indian” or the Massachusetts district court’s rejection of that Bureau decision. The questions surrounding the Massachusetts district court’s decision were thus completely separate from the issues addressed on remand. Further, the case had been fully briefed. The court accordingly saw “no gain, and only potential loss, to judicial efficiency by dismissing this appeal.”

On the merits, the First Circuit affirmed the Massachusetts district court’s decision that the Bureau had exceeded its authority.

A unique administrative-remand decision

The First Circuit did not seem to recognize as much, but Littlefield is a unique administrative-remand decision. The administrative-remand rule generally delays appellate review so that all relevant issues can be reviewed in a single appeal. Exceptions to this rule apply primarily when the lack of an immediate appeal from an administrative remand might leave a party (most commonly the government) without any chance for appellate review.

Littlefield doesn’t fit this framework. The Massachusetts district court remanded the dispute for further proceedings. And those further proceedings might have precluded a later appeal. Had the Bureau determined that the Tribe qualified under the first definition of “Indian,” no appeal from the Massachusetts district court’s decision would have been necessary. Granted, the local residents might have then sought review of the Bureau’s decision in the district court. But after the district court decided the residents’ challenge, the parties could have taken a single appeal in which an appellate court would address the Tribe’s eligibility under both definitions. All issues could have been consolidated in a single appeal.

But Littlefield is still correct in finding appellate jurisdiction. The proceedings on remand produced a second district court suit—this time with the Tribe challenging the Bureau’s decision. And that suit was brought in a different district court. Any appeal from the D.C. district court’s decision would go to the D.C. Circuit, not the First Circuit. So the proceedings on remand made addressing all of the issues in a single appeal impossible. It thus made practical sense for the First Circuit to take the appeal.

The administrative-remand rule and its exceptions are good illustrations of the pragmatic balancing that appellate courts sometimes undertake when determining their jurisdiction. The general rule—delaying appeal until after the end of administrative proceedings—reduces appellate workloads and avoids piecemeal appeals. But courts analyze the specific circumstances of these cases to ensure that parties can appeal when the benefits of doing so are particularly high (such as when parties might lose any chance at an appeal absent an immediate one) or when the costs of doing so are particularly low (such as when the remand proceedings are effectively over by the time of the appeal).

The administrative-remand rule also illustrates how courts will inevitably engage in pragmatic balancing in the realm of appellate jurisdiction. It shows why we must provide courts with an outlet for exercising flexibility in this area. For more on appealing administrative remands and pragmatic balancing generally, see my article Dizzying Gillespie.

Littlefield v. Mashpee Wampanoag Indian Tribe, 2020 WL 948895 (10th Cir. Feb. 27, 2020), available at the First Circuit and Westlaw.