The Month in Federal Appellate Jurisdiction: November 2023

Last month’s major appellate-jurisdiction development involved another court narrowing the availability of Perlman appeals. In other decisions, the Fifth Circuit carved a new, video-evidence exception to the scope of qualified-immunity appeals. The Third Circuit addressed what to do with a partial objection to an untimely criminal appeal. The Ninth Circuit applied Dupree to part of a summary-judgment denial. And a Fourth Circuit panel stuck by the rule that the 30-day deadline for immigration appeals is jurisdictional, though a concurrence doubted that rule’s soundness. Plus an improper qualified-immunity appeal and two decisions on the scope of interlocutory appeals.

• The Fourth Circuit Cut Back on Perlman Appeals
• A Video-Evidence Exception for Qualified-Immunity Appeals
• Partially Objecting to an Untimely Criminal Appeal
• Applying Dupree to Part of a Summary-Judgment Denial
• The Jurisdictionality of the Immigration-Appeal Deadline
• The Month’s Improper Qualified-Immunity Appeals
• Quick Notes

The Fourth Circuit Cut Back on Perlman Appeals

In In re Grand Jury 2021 Subpoenas, the Fourth Circuit joined several other circuits in holding that only non-parties can take Perlman appeals. I wrote about this issue a few years ago when the Second Circuit did the same. This cutting back on Perlman appeals is as wrong now as it was then.

Read more: The Fourth Circuit Cut Back on Perlman Appeals.

In re Grand Jury 2021 Subpoenas, 2023 WL 8103935 (4th Cir. Nov. 22, 2023), available at the Fourth Circuit and Westlaw

A Video-Evidence Exception for Qualified-Immunity Appeals

In Argueta v. Jaradi, the Fifth Circuit created a new exception to the bar on reviewing the genuineness of fact disputes in qualified-immunity appeals. In most of those appeals, the court must take as given the district court’s determination of what facts a reasonable jury could find. But according to the Fifth Circuit, an appellate court doesn’t have to do that when video evidence exists.

Read more: A Video-Evidence Exception for Qualified-Immunity Appeals.

Argueta v. Jaradi, 2023 WL 7974744 (5th Cir. Nov. 17, 2023), available at the Fifth Circuit and Westlaw

Partially Objecting to an Untimely Criminal Appeal

In United States v. Crump, the Third Circuit permitted the government to partially object to the untimeliness of a criminal appeal. That meant the court of appeals had to dismiss the appeal insofar as it raised the objected-to issues. But the court could address the other issues that the defendant raised on appeal.

Read more: Partially Objecting to an Untimely Criminal Appeal

United States v. Crump, 2023 WL 7297334 (3d Cir. Nov. 6, 2023), available at the Third Circuit and Westlaw

Applying Dupree to Part of a Summary-Judgment Denial

In Cottonwood Environmental Law Center v. Edwards, the Ninth Circuit applied the Supreme Court’s decision in Dupree v. Younger to permit review of part of a summary-judgment denial. In the course of doing so, the court rejected the argument that the denied summary-judgment motion needed to have been potentially dispositive as to the need for a trial.

Read more: Applying Dupree to Part of a Summary-Judgment Denial.

Cottonwood Environmental Law Center v. Edwards, 2023 WL 8043823 (9th Cir. Nov. 21, 2023), available at the Ninth Circuit and Westlaw

The Jurisdictionality of the Immigration-Appeal Deadline

In Martinez v. Garland, the Fourth Circuit reiterated the rule that the 30-day deadline for immigration appeals is jurisdictional.

The Supreme Court held in Stone v. INS that this deadline is “mandatory and jurisdictional” and “not subject to equitable tolling.” But the Court’s decision earlier this year in Santos-Zacaria v. Garland has raised some questions about Stone. Santos-Zacaria held that immigration’s exhaustion requirement is not jurisdictional. As Judge Floyd pointed out in his concurrence in Martinez, the reasons for deeming exhaustion non-jurisdictional arguably apply to the appeal deadline, too.

Martinez v. Garland, 2023 WL 7800113 (4th Cir. Nov. 16, 2023), available at the Fourth Circuit and Westlaw

The Month’s Improper Qualified-Immunity Appeals

I saw only one improper, fact-based qualified-immunity appeal last month: Williams v. Olsen, 2023 WL 7497231 (2d Cir. Nov. 13, 2023), available at the CourtListener and Westlaw

Quick Notes

Finally, two quick notes involving the scope of appeals:

In James v. Hegar, the Fifth Circuit reviewed the plaintiffs’ standing as part of an Eleventh Amendment/sovereign-immunity appeal. Review was necessary because standing went to the court’s subject-matter jurisdiction. Further, the Eleventh Amendment/Ex parte Young and standing analyses significantly overlapped.

James v. Hegar, 2023 WL 7890069 (5th Cir. Nov. 16, 2023), available at the Fifth Circuit and Westlaw

And in In re E. I. du Pont de Nemours and Company C-8 Personal Injury Litigation, the Sixth Circuit reviewed the plaintiff’s standing as part of a class-certification appeal under Federal Rule of Civil Procedure 23(f).

In re E. I. du Pont de Nemours and Company C-8 Personal Injury Litigation, 2023 WL 8183812 (6th Cir. Nov. 27, 2023), available at the Sixth Circuit and Westlaw