The Week in Federal Appellate Jurisdiction: April 24–30, 2022

Last week saw interesting decisions on advisory mandamus, appealing reinstatement and withholding orders in immigration, appealing magistrate judge decisions, and hypothetical jurisdiction. Plus the timeliness of an appeal from a post-judgment contempt order and the blatant-contradiction exception to qualified-immunity appeals.

• The Sixth Circuit Granted Mandamus to Reverse the Rejection of a Plea Agreement
• The Second Circuit on Appealing Reinstatement & Withholding-Only Orders in Immigration
• The Eleventh Circuit on Appeals from Magistrate Judge Decisions
• The Second Circuit on Rule 11 Sanctions & Hypothetical Jurisdiction
• Quick Notes

The Sixth Circuit Granted Mandamus to Reverse the Rejection of a Plea Agreement

In In re United States, the Sixth Circuit granted a petition for mandamus that sought review of a district court order rejecting a plea agreement. The case involved both an issue of first impression and a concern over a recurring issue.

The case stemmed from a criminal prosecution for various gun and drug crimes. At a pretrial hearing, the district court told the parties that it was unlikely to accept a plea agreement that included sentencing-appeal and collateral-review waivers. But the parties eventually presented a plea agreement to the district court that included those waivers. True to its word, the district court rejected the plea. The government then sought appellate review via a writ of mandamus.

The Sixth Circuit granted the writ. A court of appeals can grant a mandamus petition when (1) the party has no other adequate means of obtaining relief, (2) the party has a clear and indisputable right to relief, and (3) the circumstances make mandamus appropriate. All three requirements were met in United States. First, given the government’s limited right to appeal in criminal cases, there was no other adequate means for relief. Second, the right to relief was clear—the district court had violated Federal Rule of Criminal Procedure 11 by participating in the plea negotiation, and the rejection of the plea was not based on the circumstances of the case. And third, mandamus was appropriate. The issues—the propriety of commenting on the circumstances in which the court would accept the plea and then rejecting a plea without any case-specific reasons—were important ones. Absent mandamus, those issues might evade any appellate review. And the issue was likely to reoccur, given the district court’s stated policy of rejecting pleas containing appeal waivers and the government’s policy of always including them.

One thing worth noting: this seems to be an exercise of advisory mandamus. Mandamus is normally reserved for egregious errors. But the issues in United States were of first impression. The Sixth Circuit had not previously addressed “whether a judge may comment on hypothetical plea agreements that it would or would not accept under Rule 11.” And the case was the first time the Sixth Circuit has “found it to be an abuse of discretion for a district court to reject a plea agreement without citing case-specific reasons.” The use of mandamus might accordingly be considered of the advisory variety, whereby a court uses mandamus to (among other things) address an unsettled issue of substantial public importance.

In re United States, 2022 WL 1222955 (6th Cir. Apr. 26, 2022), available at the Sixth Circuit and Westlaw.

The Second Circuit on Appealing Reinstatement & Withholding-Only Orders in Immigration

In Bhaktibhai-Patel v. Garland, the Second Circuit held that the time to appeal a deportation-reinstatement decision runs from the final reinstatement decision, despite any unresolved request for withholding of removal. The court also expressed some doubt about whether reinstatement decisions are appealable at all. And the court held that the denial of withholding was not a “final order of removal” that the court could review.

The petitioner in Bhaktibhai-Patel was ordered deported in 2016 and deported the next year. In 2019, he reentered the United States and was apprehended. The Department of Homeland Security then reinstated his 2016 removal order, after which the petitioner sought withholding of removal due to a fear of torture. About five months later, the immigration authorities denied withholding of removal. The petitioner then sought review of both the reinstatement and the withholding decisions in the Second Circuit.

The Second Circuit dismissed the petition for a lack of jurisdiction. The discussion is long and—as is often the case with jurisdiction in immigration appeals—complicated. But the bottom line was that the petitioner had not filed a timely appeal from a “final order of removal.” 8 U.S.C. § 1252(b)(9) gives the courts of appeals jurisdiction to review those orders, and § 1252(b)(1) gives petitioners 30 days to seek review.

The appeal from the reinstatement decision was thus untimely. The Second Circuit has held that a reinstatement decision is a final order of removal. (The Bhaktibhai-Patel court questioned that holding but was bound by it.) But the petitioner waited more than 30 days after the reinstatement decision to seek review. And the unresolved withholding issue did not extend that time to seek review. Any withholding decision would not affect the validity of the underlying reinstatement decision because a grant of withholding would mean only that the petitioner could not be deported to a particular country. For that same reason, the denial of withholding was not itself a “final order of removal.” So the Second Circuit lacked jurisdiction to review that decision, too.

Bhaktibhai-Patel v. Garland, 2022 WL 1230819 (2d Cir. Apr. 27, 2022), available at CourtListener and Westlaw.

The Eleventh Circuit on Appeals from Magistrate Judge Decisions

In Hruska v. On the Edge Dockside LLC, the Eleventh Circuit said that it lacked jurisdiction to review a magistrate judge’s pretrial order because the plaintiff did not first appeal to the district court.

In a footnote, the court discussed whether the bar on directly reviewing magistrate judge decisions is jurisdictional. Some Eleventh Circuit decisions have said that failure to appeal to the district court waives any challenge to the magistrate judge’s decision. Waiver isn’t jurisdictional. But the court’s earliest-decided case on the issue held that the magistrate judge’s decision is not a “final” one under 28 U.S.C. § 1291. The Eleventh Circuit accordingly concluded that a failure to first appeal a magistrate judge’s decision to the district court is a jurisdictional bar on appellate review.

Hruska v. On the Edge Dockside LLC, 2022 WL 1284253 (11th Cir. Apr. 29, 2022), available at the Eleventh Circuit and Westlaw.

The Second Circuit on Rule 11 Sanctions & Hypothetical Jurisdiction

In LCS Group, LLC v. Shire Development LLC, the Second Circuit held that the time for appealing a merits decision began running despite an unresolved sanctions issue. The court also exercised hypothetical jurisdiction—rather than resolve an issue about the power of magistrate judges to issue Rule 11 sanctions—to affirm the sanctions award.

Details in LCS Group are sparse. The district court dismissed the plaintiffs’ claims. In the same order, the district court sanctioned the plaintiffs under Federal Rule of Civil Procedure 11 and ordered them to pay the defendants’ attorney fees. But the district court did not set an amount. A few months later, a magistrate judge determined that the plaintiff owed about $130,000 in fees. And about a year after that, the district court treated that determination as a report and recommendation, which the district court adopted. Only then did the plaintiffs appeal.

The Second Circuit held that the appeal was untimely as to the dismissal of the plaintiffs’ claims. The Second Circuit generally holds that a decision on the merits is final and appealable despite an unresolved Rule 11 sanctions issue. An exception exists when the merits and sanctions decisions are “inextricably intertwined.” But the two decisions were not intertwined in LCS Group. So the time for appealing the merits decision began running at the dismissal. The plaintiffs’ appeal—which came more than a year after the merits decision—was thus untimely.

The sanctions issue raised its own timeliness problem. If the magistrate judge had the authority to issue Rule 11 sanctions, then the plaintiffs’ appeal was untimely as to that decision, too. But if the magistrate judge did not have that authority, the sanctions decision did not become final until the district court adopted the report and recommendation.

The Second Circuit has avoided addressing whether magistrate judges have the authority to impose Rule 11 sanctions. The court thought it could do so again via an exercise of hypothetical jurisdiction. When jurisdiction is a statutory issue (rather than an Article III one), courts will sometimes assume hypothetical jurisdiction if “the jurisdictional issues are complex and the substance of the claim is plainly without merit.” In LCS Group, the Second Circuit “would need to resolve a complex question of statutory interpretation—that is, whether or not magistrate judges are authorized to issue final orders on Rule 11 sanctions—to determine whether LCS’s notice of appeal was timely under Federal Rule of Appellate Procedure 4(a).” The propriety of the sanctions was clear. The court accordingly exercised hypothetical jurisdiction and affirmed the sanctions award.

LCS Group, LLC v. Shire Development LLC, 2022 WL 1217961 (2d Cir. Apr. 26, 2022), available at CourtListener and Westlaw.

Quick Notes

In Blanchard v. City of Memphis, the Sixth Circuit dismissed as untimely an appeal from an order holding a defendant in contempt for violating a consent decree. The original Blanchard plaintiffs sued to enforce a 1978 consent decree regarding Memphis’s policing practices. The district court dismissed those plaintiffs for a lack of standing. But the ACLU of Tennessee timely intervened and saw the action through to an order holding the city in contempt. The original plaintiffs then waited about two years—while the ACLU and Memphis negotiated changes to the consent decree—before filing their appeal. The Sixth Circuit concluded that this was too late. A civil contempt order is final and appealable once the district court determines the sanction. So once the district court held the city in contempt, the appeal clock began running. The Sixth Circuit also rejected the original plaintiffs’ proposed rule that a contempt order is not final so long as the district court might also modify the consent decree.

Blanchard v. City of Memphis, 2022 WL 1224556 (6th Cir. Apr. 26, 2022), available at the Sixth Circuit and Westlaw.

Finally, two courts addressed the blatant-contradiction exception to the jurisdictional limits on qualified-immunity appeals. Appellate courts normally lack jurisdiction to review the genuineness of fact disputes in these appeals. But most courts of appeals have read the Supreme Court’s decision in Scott v. Harris to create an exception to that rule when something in the summary-judgment record blatantly contradicts the plaintiff’s version of the facts.

In Estate of Smith v. Holslag, the Ninth Circuit determined that the video of a fatal police shooting did not blatantly contradict the plaintiffs’ version of events. So in the defendant’s appeal from the denial of qualified immunity, the court of appeals had to accept the district court’s determination of what facts a reasonable jury could find. But in Davis v. Dahlkamp, the Eleventh Circuit applied the blatant-contradiction exception to conclude that a video and a state court’s findings concerning a confession blatantly contradicted the plaintiff’s version of events.

Estate of Smith v. Holslag, 2022 WL 1224001 (9th Cir. Apr. 26, 2022), available at the Ninth Circuit and Westlaw.

Davis v. Dahlkamp, 2022 WL 1262132 (7th Cir. Apr. 28, 2022), available at the Seventh Circuit and Westlaw.