The scope of immigration appeals, finality after voluntary dismissals, the appealability of administrative remands, appealing the church-autonomy defense, and more.
March 2, 2023
February produced a variety of decisions and developments of note. I discussed many of these in posts throughout the month, which are summarized and linked below. There were also some developments on the issue of whether denials of church-autonomy defenses are immediately appealable via the collateral-order doctrine—a divided Second Circuit denied rehearing en banc on the issue, and a new cert petition asks the Supreme Court to address these appeals. Plus decisions on appealing foreclosure orders, reviewing factual determinations in immigration appeals, pendent appellate jurisdiction over a fees award, and more.
- Reviewing “Good Moral Character” Determinations in Immigration Appeals
- Finality After Rule 41 Dismissals of Claims & Actions
- Concessions and Waiver on Appeal
- The Administrative-Remand Rule & Non-Merits Decisions
- Some Decisions in Bivens Appeals
- No Rehearing En Banc on Immediate Appeals from Denials of the Church-Autonomy Defense
- New Cert Petition on the Appealing the Ministerial-Exception Defense
- The Finality of Foreclosure Orders
- The Fourth Circuit Split on Immigration Appeals & Reviewing the Facts Underlying Reconsideration Decisions
- Pendent Appellate Jurisdiction Over a Fees Award
- Failing to Achieve Finality Via an Amended Complaint
- Quick Notes
Reviewing “Good Moral Character” Determinations in Immigration Appeals
Since the Supreme Court’s 2020 decision in Guerrero-Lasprilla v. Barr, several courts of appeals have reexamined the scope of their jurisdiction in immigration appeals. Last month produced another example. In Hernandez v. Garland, the Sixth Circuit held that it could review “good moral character” determinations in immigration appeals, as those determinations involve a mixed question of law and fact.
For more on Hernandez, see my post Reviewing “Good Moral Character” Determinations in Immigration Appeals.
Hernandez v. Garland, 2023 WL 1776586 (6th Cir. Feb. 6, 2023), available at the Sixth Circuit and Westlaw
Finality After Rule 41 Dismissals of Claims & Actions
In In re Esteva, the Eleventh Circuit dismissed an appeal after concluding that a Rule 41(a)(1)(A) voluntary dismissal was ineffective. The stipulated dismissal purported to dismiss all unresolved claims. But according to the Eleventh Circuit, that’s not allowed—Rule 41(a)(1)(A) permits the voluntary dismissal of only entire actions, not individual claims. With the voluntary dismissal ineffective, the unresolved claims were still pending in the district court.
Most (if not all) courts of appeals hold that litigants cannot dismiss individual claims via Rule 41(a)(1)(A) dismissals. But I’m not so sure about that reading of the rule.
For more on Esteva, see my post Finality After Rule 41 Dismissals of Claims & Actions.
In re Esteva, 2023 WL 2033361 (11th Cir. Feb. 16, 2023), available at the Eleventh Circuit and Westlaw
Concessions and Waiver on Appeal
In Bradley v. Village of University Park, the Seventh Circuit determined that defendants had waived an issue by conceding it in a prior appeal. In doing so, the court explained the difference between conceding an issue for purposes of an appeal and waiving the issue such that it could not be disputed on remand.
For more, see my post Conceding Issues for Purposes of Appeal v. Waiving Issues on Appeal.
Bradley v. Village of University Park, 2023 WL 1488351 (7th Cir. Feb. 3, 2023), available at the Seventh Circuit and Westlaw
The Administrative-Remand Rule & Non-Merits Decisions
In In re Clean Water Act Rulemaking, the Ninth Circuit held that it had jurisdiction to review an order vacating a regulation and remanding the dispute to an agency, as the district court had never deemed the regulation unlawful. This is an interesting twist on the administrative-remand rule. That rule normally bars appeals from orders remanding a dispute to an administrative agency. The Ninth Circuit said that this general rule applied only to remands after the district court resolved a dispute on the merits.
For more on In re Clean Water Act Rulemaking, see my post The Administrative-Remand Rule & Non-Merits Decisions.
In re Clean Water Act Rulemaking, 2023 WL 2129631 (9th Cir. Feb. 21, 2023), available at the Ninth Circuit and Westlaw
Some Decisions in Bivens Appeals
Two courts addressed interlocutory appeals involving the Bivens question.
In Pettibone v. Russell, the Ninth Circuit categorically held that it could address the Bivens question as part of a qualified-immunity appeal. In the course of doing so, the court rejected its older cases holding to the contrary. The court also added that reviewing the Bivens question did not require pendent appellate jurisdiction—the question was part of the qualified-immunity inquiry.
For more on Pettibone, see my post The Ninth Circuit on Qualified-Immunity Appeals, the Bivens Question, and Pendent Appellate Jurisdiction.
And in Graber v. Doe II, a panel of the Third Circuit split on whether federal officials could immediately appeal the Bivens question without a qualified-immunity appeal. It’s the second decision in recent memory to reject a pure Bivens appeal. And this time, at least one judge was willing to hold that the Bivens issue was immediately appealable via the collateral-order doctrine.
For more on Graber, see my post The Third Circuit Split on Pure Bivens Appeals.
Pettibone v. Russell, 2023 WL 1458886 (9th Cir. Feb. 2, 2023), available at the Ninth Circuit and Westlaw
Graber v. Doe II, 2023 WL 1876741 (3d Cir. Feb. 10, 2023), available at the Third Circuit and Westlaw
No Rehearing En Banc on Immediate Appeals from Denials of the Church-Autonomy Defense
The en banc Second Circuit voted to not rehear Belya v. Kapral, which asked if denials of the church-autonomy defense were immediately appealable via the collateral-order doctrine. Four judges authored opinions supporting or opposing rehearing. You can read my summary of the panel decision here.
Belya v. Kapral, 2023 WL 1807013 (2d Cir. Feb. 8, 2023), available at CourtListener and Westlaw
New Cert Petition on the Appealing the Ministerial-Exception Defense
Speaking of appealing church-autonomy defenses, a new cert petition asks if denial of those defenses are immediately appealable. The petition comes out of the Tenth Circuit, which held that the denial of the ministerial-exception defense is not immediately appealable. That court also declined to rehear the case en banc.
The case is Faith Bible Chapel International v. Tucker. The response is due April 10, 2023.
Petition for a Writ of Certiorari, Faith Bible Chapel International v. Tucker, No. 22-741 (Feb. 3, 2023), available at the Supreme Court and Westlaw.
The Finality of Foreclosure Orders
In RSS WFCM2018-C44-NY LOD, LLC v. 1442 Lexington Operating DE LLC, the Second Circuit dismissed an appeal from a foreclosure order because the district court had not yet determined the amount due on the underlying debt. The court noted that foreclosure orders can be final when all that remains is enforcing the judgment. But foreclosure orders aren’t final when unresolved issues—such as the amount of the foreclosure—are unresolved.
RSS WFCM2018-C44 – NY LOD, LLC v. 1442 Lexington Operating DE LLC, 2023 WL 1934042 (2d Cir. Feb. 13, 2023), available at CourtListener and Westlaw
The Fourth Circuit Split on Immigration Appeals & Reviewing the Facts Underlying Reconsideration Decisions
In Williams v. Garland, a divided Fourth Circuit held that it could review a factual finding that led to the immigration authorities’ rejection of a reconsideration motion.
The Board of Immigration Appeals had denied reconsideration after refusing to toll the deadline for a reconsideration motion. On appeal, the Fourth Circuit reviewed the Board’s determination that the petitioner did not act with sufficient diligence. The majority explained that it could do so because the facts underlying that decision were unrelated to a final order of removal. The majority also held that it could review the equitable-tolling decision de novo.
Judge Rushing dissented. She contended that Fourth Circuit precedent foreclosed review of the reconsideration decision and required review for only abuse of discretion.
Williams v. Garland, 2023 WL 1999525 (4th Cir. Feb. 9, 2023), available at the Fourth Circuit and Westlaw
Pendent Appellate Jurisdiction Over a Fees Award
In Bowerman v. Field Asset Services, Inc., the Ninth Circuit extended pendent appellate jurisdiction over an interim attorneys fees award. The main appeal concerned class-certification and summary-judgment decisions. And the defendant’s main argument against the fee award was that the district court erred in certifying the class and awarding summary judgment to the plaintiffs. The underlying arguments were thus identical. The Ninth Circuit thus concluded that the fees award was “inextricably intertwined” with the appeal’s merits.
Bowerman v. Field Asset Services, Inc., 2023 WL 2001967 (9th Cir. Feb. 14, 2023), available at the Ninth Circuit and Westlaw
Failing to Achieve Finality Via an Amended Complaint
In Government Employees Insurance Company v. Glassco, Inc., the Eleventh Circuit determined that a plaintiff had failed to remove unresolved claims from an amended complaint. The district court resolved some of the plaintiff’s claims at summary judgment. Wanting to appeal this decision, the plaintiff then tried to amend its complaint to remove the unresolved claims, after which the plaintiff appealed. But the Eleventh Circuit determined that the plaintiff had not actually dropped the claims that the district court had not resolved. With those claims still pending, there was no final decision and thus no appellate jurisdiction.
Government Employees Insurance Company v. Glassco, Inc., 2023 WL 1775724 (11th Cir. Feb. 6, 2023), available at the Eleventh Circuit and Westlaw
Quick Notes
In Fraunhofer-Gesellschaft zur Förderung der angewandten Forschung E.V. v. Sirius XM Radio Inc., the D.C. Circuit dismissed an appeal from the refusal to quash a subpoena and an unspecified sanctions award. The refusal to quash the subpoena was moot because the witness had sat for her deposition by the time she appealed. And there were two problems with the sanctions appeal. First, it belonged in the Federal Circuit, as the underlying dispute involved patents. And second, the order was not final due to the lack of a specific sanction. The D.C. Circuit also refused to transfer the appeal to the Federal Circuit due to the lack of finality.
Fraunhofer-Gesellschaft zur Förderung der angewandten Forschung E.V. v. Sirius XM Radio Inc., 2023 WL 2053176 (D.C. Cir. Feb. 17, 2023), available at the D.C. Circuit and Westlaw
In Stanton v. Cash Advance Centers, Inc., the Eighth Circuit dismissed a non-party’s appeal. The district court in Stanton refused to substitute a non-party for the named defendant. Someone then filed a notice of appeal on behalf of both the party defendant and the proffered substitute. But at oral argument before the Eighth Circuit, the attorney who filed the notice revealed that she represented only the substitute. With no party to the action having appealed—and with no exception to the bar on non-party appeals—the Eighth Circuit dismissed the appeal.
Stanton v. Cash Advance Centers, Inc., 2023 WL 1790686 (8th Cir. Feb. 7, 2023), available at the Eighth Circuit and Westlaw