The Month in Federal Appellate Jurisdiction: January 2023

I’ve put the weekly roundup on hiatus for a now. In its place, I’m going to try (emphasis on try) more individual posts and monthly roundups.

So here is the first monthly roundup, covering the appellate-jurisdiction highlights of January 2023. It features a cert grant on a long-simmering circuit split, a new circuit split on contempt appeals, some pendent appellate jurisdiction, and a new cert petition on another split.

• Cert Grant on Preserving Issues via Denied Summary-Judgment Motions
• Appellate Jurisdiction Over Sanction-Less Contempts
• A Pair of Decisions on Pendent Appellate Jurisdiction
• New Cert Petition on Reviewing Hardship Determinations in Immigration Appeals

Cert Grant on Preserving Issues via Denied Summary-Judgment Motions

The Supreme Court will resolve the long-standing split on whether a denied summary-judgment motion preserves a purely legal issue for appellate review. The case is Dupree v. Younger, and argument is scheduled for April 24, 2023.

You can read more about the underlying issue in my post Cert Grant on Preserving Issues via Denied Summary-Judgment Motions.

Dupree v. Younger, No. 22-210, docket at Supreme Court.

Appellate Jurisdiction Over Sanction-Less Contempts

In In re Grand Jury Subpoena, the Eleventh Circuit explained that it could not review a contempt decision without a sanction. The court rejected a reading of United States v. Ryan that would permit such an appeal. And in doing so, the Eleventh Circuit split with the Second.

You can read more in my post Eleventh Circuit: No Contempt Appeals Without a Sanction.

In re Grand Jury Subpoena, 2023 WL 1232830 (11th Cir. Jan. 31, 2023), available at the Eleventh Circuit and Westlaw

A Pair of Decisions on Pendent Appellate Jurisdiction

Two cases from January had interesting applications on pendent appellate jurisdiction. And both, oddly enough, had plaintiffs named “Williams.”

In Williams v. Davis, the Fifth Circuit reviewed standing as part of an Eleventh Amendment/state-sovereign-immunity appeal.

The court noted that extending pendent jurisdiction was not mandatory—it was within the appellate court’s discretion. And it acknowledged the risk that the liberal use of pendent appellate jurisdiction would encourage parties to bring weak interlocutory appeals with which justiciability issues could tag along. But the court concluded that the relationship between standing and sovereign-immunity issues warranted the exercise of pendent appellate jurisdiction.

Williams v. Davis, 2023 WL 119452 (5th Cir. Jan. 6, 2023), available at the Fifth Circuit and Westlaw

And in Williams v. Martorello, the Fourth Circuit reviewed a defendant’s litigation conduct as part of a class-certification appeal under Federal Rule of Civil Procedure 23(f).

The district court had determined that the defendant misrepresented facts in a declaration filed with the district court. The district court also said that this misrepresentation finding would be considered when deciding any other motions in the case. Finally, the district court certified the plaintiffs’ case as a class action.

The Fourth Circuit granted the defendant’s subsequent Rule 23(f) petition to appeal. As to pendent appellate jurisdiction over the misrepresentation decision, the Fourth Circuit said only that the decision was “so interconnected with the class-certification opinion that it warrants concurrent review.” (Cleaned up.) I’m guessing that this is due to the district court’s considering the misrepresentation decision when deciding other motions.

Williams v. Martorello, 2023 WL 364903 (4th Cir. Jan. 24, 2023), available at the Fourth Circuit and Westlaw

New Cert Petition on Reviewing Hardship Determinations in Immigration Appeals

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 (no PDF publicly available) 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.

Read more in my post New Cert Petition on Reviewing Hardship Determinations in Immigration Appeals.

Petition for a Writ of Certiorari, Wilkinson v. Garland, No. 22-666, available at Westlaw.