The jurisdictionality of appeal deadlines, appealing administrative remands, erroneous Rule 54(b) partial judgments, denied § 1292(b) appeals, factual disputes in qualified-immunity appeals, immigration exhaustion, and more.
April 27, 2022
Last week, the Supreme Court held that the deadline for appeals to the Tax Court is not jurisdictional. The Fifth Circuit reconsidered a decision from last month and dismissed an appeal from an administrative remand. The Fourth Circuit reversed the entry of a Rule 54(b) partial judgment. The Sixth Circuit refused to hear a certified appeal under § 1292(b). The Fifth Circuit split on its jurisdiction over a qualified-immunity appeal in which the defendant disputed the factual basis for the immunity denial. And the First Circuit held that immigration petitioners do not need to seek rehearing before the Board of Immigration Appeals to argue that the Board misapplied a legal standard. Plus the collateral-order doctrine in appeals from the Patent Trial and Appeal Board, appealing without-prejudice dismissals of habeas petitions, and pendent appellate jurisdiction over the scope of the False Claims Act in state-sovereign-immunity appeals.
- The Supreme Court Held that the Tax Code’s Appeal Deadline Is Not Jurisdictional
- The Fifth Circuit Changed Its Mind on an Administrative Appeal
- The Fourth Circuit Reversed the Entry of a Rule 54(b) Partial Judgment
- The Sixth Circuit Denied a § 1292(b) Certified Appeal
- The Fifth Circuit Split on Jurisdiction Over a Qualified-Immunity Appeal
- The First Circuit on Immigration Exhaustion
- Quick Notes
The Supreme Court Held that the Tax Code’s Appeal Deadline Is Not Jurisdictional
In Boechler, P.C. v. Commissioner of Internal Revenue, the Supreme Court held that the tax code’s 30-day appeal deadline is not jurisdictional, such that the deadline can be equitably tolled.
When the IRS assesses a tax levy, 26 U.S.C. § 6330(d)(1) gives the taxpayer 30 days to petition the Tax Court for review:
The person may, within 30 days of a determination under this section, petition the Tax Court for review of such determination (and the Tax Court shall have jurisdiction with respect to such matter).
The taxpayer in Boechler filed its petition one day late. The Tax Court treated the deadline as jurisdictional. That meant no possibility of equitable tolling. The Eighth Circuit affirmed, and the Supreme Court took the case to address the jurisdictionality of § 6330(d)(1).
The Supreme Court held that the deadline is not jurisdictional. “[A] procedural requirement as jurisdictional only if Congress ‘clearly states’ that it is.” And § 6330(d)(1) was not sufficiently clear. To be sure, some readings of the text suggested that the statute was jurisdictional. But other readings did not. And similar provisions in the Tax Code were much more clear about their jurisdictional import. The clear-statement rule was not satisfied.
Boechler, P.C. v. Commissioner of Internal Revenue, 2022 WL 1177496 (Apr. 21, 2022), available at the Supreme Court and Westlaw.
The Fifth Circuit Changed Its Mind on an Administrative Appeal
In Vista Health Plan, Inc. v. U.S. Department of Health & Human Services, the Fifth Circuit held that it lacked jurisdiction to review an order remanding a dispute to an administrative agency. In doing so, the court withdrew its earlier opinion holding that it had jurisdiction to review the remand.
Vista Health involved a challenge to regulations that redistribute actuarial risk among health-insurance plans. The plaintiff sued the Department for Health and Human Services, arguing that the regulations were invalid on a number of grounds. The district court eventually granted summary judgment for the Department on eight of the nine grounds. As for the ninth—a procedural due-process claim—the district court remanded the claim to the Department. The plaintiff then appealed.
The Fifth Circuit initially concluded that it had jurisdiction over the appeal. The administrative-remand rule generally holds that orders remanding a dispute to an administrative agency are not final. Exceptions to this general rule exist, primarily when the remand might leave a party (normally the government) with no future opportunity to appeal. In the original Vista Health opinion, the Fifth Circuit determined that the general rule did not apply. The district court had ended the litigation, closed the case, and had nothing left to do. And the plaintiff did not challenge the remand order on appeal.
On reconsideration, the Fifth Circuit went with the general rule. No exception applied in Vista Health. And “the inescapable bottom line is that the district court, in denying summary judgment on Vista’s procedural due process claim and then remanding it for further proceedings, did not yet fully dispose of the case.”
Vista Health Plan, Inc. v. U.S. Department of Health & Human Services, 2022 WL 1164031 (5th Cir. Apr. 20, 2022), available at the Fifth Circuit and Westlaw.
The Fourth Circuit Reversed the Entry of a Rule 54(b) Partial Judgment
In Kinsale Insurance Co. v. JDBC Holdings, Inc., the Fourth Circuit held that a district court could not enter a Rule 54(b) partial judgment on an insurance-coverage decision.
Kinsale Insurance involved a dispute over whether an insurance policy covered a fire at a cannabidiol oil-extraction factory. The insurance company sought a declaratory judgment that it was not bound to cover the loss. The insured counterclaimed for breach of contract and bad faith. The district court granted the insured’s motion for partial summary judgment and declared that the insurance company was responsible for coverage. The district court then entered a partial judgment on this coverage decision under Federal Rule of Civil Procedure 54(b).
The Fourth Circuit held that the partial judgment was improper. Rule 54(b) permits the district court to enter a final, appealable judgment for a decision that resolves some (but not all) of the claims in a multi-claim case. Although the district court in Kinsale Insurance had determined liability for coverage, it had not determined the amount of damages owed. And a decision on liability but not damages is not the resolution of a claim for purposes of Rule 54(b).
The Fourth Circuit added that even if the district court resolved an entire claim, the district court abused its discretion in entering the judgment. Rule 54(b) judgments should be separate from whatever remains in the district court. In Kinsale Insurance, the coverage claim overlapped too much with the unresolved breach-of-contract and bad-faith counterclaims.
Judge Heytens concurred in part and concurred in the judgment, noting that the district court had fully resolved the insurance company’s request for a declaratory judgment. So the district court fully resolved a discrete claim. Judge Heytens agreed, however, that the declaratory-judgment decision overlapped too much with the counterclaims for a Rule 54(b) partial judgment to be proper.
Kinsale Insurance Co. v. JDBC Holdings, Inc., 2022 WL 1160395 (4th Cir. Apr. 20, 2022), available at the Fourth Circuit and Westlaw.
The Sixth Circuit Denied a § 1292(b) Certified Appeal
In In re Somberg, the Sixth Circuit refused to hear a certified appeal under § 1292(b), concluding that an interlocutory appeal would not materially advance the litigation.
Somberg involved an attorney’s First Amendment challenge to a Michigan court rule prohibiting the recording of state court proceedings. The attorney sued the prosecutor who had sought contempt charges after the attorney took a screenshot of an online court proceedings. The district court denied the attorney’s summary-judgment motion, concluding that the attorney had no First Amendment right to record the proceedings. But the district court did not dismiss the case, as the prosecutor had not sought summary judgment. The district court then certified the denial of summary judgment for an immediate appeal via 28 U.S.C. § 1292(b), and the attorney petitioned the Sixth Circuit for permission to appeal.
The Sixth Circuit denied the petition. A § 1292(b) certification is proper when (among other things) an immediate appeal would “materially advance the ultimate resolution of the litigation.” That wasn’t the case in Somberg. “[T]here [was] plenty of reason to think that the case could proceed to final judgment quickly.” The district court’s decision effectively resolved the case. And if the case was over, it could proceed to a traditional judgment. If the case was not over—say, because the plaintiff wanted to add more claims—then an immediate appeal would not advance the resolution of those claims. And the eventual resolution of those claims might produce a second appeal.
In re Somberg, 2022 WL 1164852 (6th CIr. Apr. 20, 2022), available at the Sixth Circuit and Westlaw.
The Fifth Circuit Split on Jurisdiction Over a Qualified-Immunity Appeal
In Edwards v. Oliver, a majority of the Fifth Circuit dismissed a qualified-immunity appeal because the defendant challenged the factual basis for the immunity denial. Judge Ho dissented to contend that any factual disputes were not material.
Edwards involved the fatal police shooting of a passenger in a car. The parties disputed whether an officer was in the path of the car—the defendant argued that the car accelerated toward the officer, while the plaintiff contended that the car was not close to that officer and the officer was never in the car’s path. As the car accelerated past the officer, another officer (the defendant in Edwards) fired five shots into the car’s passenger side. One shot struck and killed one of the passengers.
The passenger’s survivors sued the officer for excessive force. The district court denied the officer’s request for qualified immunity. According to the district court, a reasonable jury could conclude that no one was in the path of the car when the defendant fired. A jury could accordingly find that the car did not pose a sufficient threat of harm to justify the shooting.
The officer nevertheless appealed. And in that appeal, he disputed the district court’s assessment of what a reasonable jury could find. That was improper. Although defendants have a right to appeal from the denial of qualified immunity, the scope of that appeal is limited when the district court denies immunity at summary judgment. With rare exceptions, defendants can challenge only the materiality of factual disputes. They cannot dispute the genuineness of those disputes. In other words, defendants must take as given the district court’s conclusions about what a reasonable jury could find.
Although the defendant contended that the car accelerated “towards/near/by” him, the plaintiff asserted that the officer was never in the path of the car. And a video of the shooting did not resolve the matter, as it showed that the car was moving away. A majority of the Fifth Circuit accordingly dismissed the appeal.
Judge Ho dissented. As he saw things, the video showed a shooting that was no different from a shooting on which the Fifth Circuit had recently granted qualified immunity. In that case, the Fifth Circuit had treated the same factual dispute—whether someone was in a car’s path—as immaterial. Judge Ho thought the outcome should be the same in Edwards.
Edwards v. Oliver, 2022 WL 1151885 (5th Cir. Apr. 19, 2022), available at the Fifth Circuit and Westlaw.
The First Circuit on Immigration Exhaustion
In Barros v. Garland, the First Circuit held that immigration petitioners are not required to seek rehearing before the Board of Immigration Appeals to argue that the Board misapplied a legal standard. Immigration law requires that petitioners exhaust all of their arguments before Board. And most courts hold that this exhaustion requirement is jurisdictional—failure to exhaust an issue deprives a court of appeals of jurisdiction to address that issue. But the petitioner in Barros argued that the Board did not apply the correct legal standard to his petition. The First Circuit concluded that there was no good reason to expand the exhaustion requirement to errors in the Board’s own decision.
Barros v. Garland, 2022 WL 1153851 (1st Cir. Apr. 19, 2022), available at the First Circuit and Westlaw.
Quick Notes
In Kaplan v. Cani, the Federal Circuit held that it could not immediately review the denial of a motion for judgment for inequitable conduct in a interference proceeding before the Patent Trial and Appeal Board. The Board deferred ruling on the request, concluding that “allegations of inequitable conduct would benefit from evidence presented during a priority phase of the interference.” The Federal Circuit determined that this order could not be appealed via the collateral-order doctrine. The order did not conclusively resolve the motion for a judgment but instead deferred ruling on it until later. And the Federal Circuit could review the the issue in an appeal from a final decision.
Kaplan v. Cani, 2022 WL 1133030 (Apr. 18, 2022), available at the Federal Circuit and Westlaw.
In St. George v. Roark, the Tenth Circuit dismissed an appeal from a without-prejudice dismissal of a habeas petition. The district court had dismissed the petition for failure to exhaust state remedies. The Tenth Circuit noted that a without-prejudice dismissal of a habeas petition might be final and appealable if the petitioner could not fix the defect. But the petitioner in St. George could finish his direct appeal and then return to the federal courts.
St. George v. Roark, 2022 WL 1132368 (10th Cir. Apr. 18, 2022), available at the Tenth Circuit and Westlaw.
And in United States v. Florida Birth-Related Neurological Injury Compensation Association, the Eleventh Circuit reviewed the denial of state sovereign immunity to a state compensation plan and the administrator of that plan. The court of appeals also extended pendent appellate jurisdiction to the issue of whether the plan or its administrator was a “person” under the False Claims Act. Without explanation, the Eleventh Circuit said that the two issues were “inextricably intertwined.”
United States v. Florida Birth-Related Neurological Injury Compensation Association, 2022 WL 1180142 (11th Cir. Apr. 21, 2022), available at the Eleventh Circuit and Westlaw.