The Supreme Court’s Large (and Potentially Growing) Appellate-Jurisdiction Docket

October Term 2017 could have been a big one for appellate jurisdiction at the Supreme Court. But it was not to be. Salt River Project Agricultural Improvement and Power District v. Tesla Energy Operations Inc. settled before the Court could decide whether denials of state-action immunity are immediately appealable collateral orders. United States v. Sanchez-Gomez—which gave the Court the chance to endorse the use of supervisory/advisory mandamus for one-off legal issues that will evade appellate review—was deemed moot. Only Hall v. Hall addressed appellate jurisdiction, holding that resolution of an action was final and appealable even though the action had been consolidated with others.

The Supreme Court’s new term has even more potential than 2017’s.

The current docket

The new term is already rife with interesting appellate jurisdiction issues.

In Ritzen Group, Inc. v. Jackson Masonry, LLC, the Court will decide if an order denying relief from a bankruptcy stay is final and appealable. Argument is set for November 13, 2019. Prior coverage here.

In Guerrero-Lasprilla v. Barr (consolidated with Ovalles v. Barr), the Court will decide if the immigration laws’ jurisdiction-stripping provisions prevent a court of appeals from reviewing the refusal to equitably toll the deadline for reopening removal orders. Argument is set for December 9, 2019.

In Thryv, Inc. v. Click-To-Call Technologies, LP (formerly called Dex Media, Inc. v. Click-To-Call Technologies, LP), the Court will decide if parties can immediately appeal the Patent Trial and Appeal Board’s decision to institute inter partes review. Argument is set for December 9, 2019 (the same day as Guerrero-Lasprilla). Prior coverage here.

And in Holguin-Hernandez v. United States, the Court will decide if defendants must formally object to the length of their sentence to preserve the issue for appeal. Argument is set for December 10, 2019. Prior coverage here.

The potential docket

But that might not be all. The Supreme Court has several pending cert petitions on appellate jurisdiction. Two of them were up for consideration at Tuesday’s “long conference,” though neither were mentioned in this morning’s orders from that conference.

Andreoli v. Youngevity International Corp

First is Andreoli v. Youngevity International Corp, which I’ve mentioned in several weekly roundups. The petition asks whether a denial of an anti-SLAPP motion is immediately appealable under the collateral-order doctrine.

I’m certainly no expert on the Supreme Court and have no insight on what cases the Court will want to hear. But this one seems worth granting. A well-developed split exists on this issue. The Fifth and Ninth Circuits have held that these denials are appealable, while the Second Circuit has held that they’re not. And the Court has not had a major case on the collateral-order doctrine in some time. It was set to tackle the doctrine in the context of state-action immunity a few years ago, but the case (Salt River Project Agricultural Improvement and Power District v. Tesla Energy Operations Inc.) case was dismissed after the parties settled.

Further, the reply brief in support of cert added to the mix the long-simmering Erie issue with anti-SLAPP laws: do they apply to diversity cases in federal court? This is another issue on which the circuits have split, with the Fifth Circuit weighing in most recently to hold that Texas’s anti-SLAPP law does not apply in federal court.

Xitronix Corp. v. KLA-Tencor Corp.

Second is Xitronix Corp. v. KLA-Tencor Corp., which I’ve previously addressed in some depth. The petition asks who has jurisdiction in appeals of Walker Process antitrust claims—the regional court of appeals or the Federal Circuit.

The case involves the Federal Circuit’s exclusive appellate jurisdiction over patent cases. And two courts of appeals squarely disagree over where appeals of Walker Process claims belong. The Federal Circuit thought that these claims did not arise under the patent laws and sent an appeal involving such a claim to the regional circuit, the Fifth Circuit. The Fifth Circuit disagreed. It thought that Walker Process claims did arise under the patent laws and sent the case back to the Federal Circuit. The Federal Circuit continued to disagree with the Fifth Circuit, but it thought that the Fifth Circuit’s transfer decision was “not implausible.” The Federal Circuit accordingly decided the case, though it continued to express doubts about the propriety of doing so.

This also seems like a good candidate for the Court’s attention. These decisions leave appellants in a tough spot: where should they appeal? It’s a question that only the Court can answer.

But wait, there’s more

Several other pending petitions are worth following.

Nasrallah v. Barr asks if the immigration laws bar review of the conclusion that a Convention Against Torture petitioner is not likely to be tortured upon removal. The Court is scheduled to consider the petition at its October 11, 2019, conference. Prior coverage here.

Princeton Digital Image Corp. v. Adobe Inc. gives the Court the opportunity to re-explain its rationale in Microsoft Corp. v. Baker and address appeal consequences of a party voluntarily dismissing its own claim. The opposition brief was filed this past week, and the case is not yet scheduled for a conference. Prior coverage here.

Benzon v. Kell asks if an order staying a habeas action under Rhines v. Weber is immediately appealable under the collateral-order doctrine. The petition and a supporting amicus from 11 states have been filed. The response is due October 23, 2019.

And Salinas v. U.S. Railroad Retirement Board asks if the Railroad Retirement Board’s denial of a motion to reopen a prior benefits determination is a “final decision” that the courts of appeals can review. Only the petition has been filed so far, and the response is due November 15, 2019.

It’s shaping up to be an exciting term.