The Week in Federal Appellate Jurisdiction: December 12–18, 2021

It’s the last roundup of the year. And it’s a short one. The Third Circuit dismissed an appeal from an order concluding that factual disputes precluded a decision on judicial-proceedings privilege. The defendant had framed the appeal as one from the denial of absolute immunity. But even if it was, unresolved fact issues prevented the order from being appealable. The Eleventh Circuit dismissed an appeal from a remand order, rejecting—and expressing some doubts about the existence of—the “matter of substantive law” exception to 28 U.S.C. § 1447(d). And the Second Circuit asked the Board of Immigration Appeals to specify the preclusive effect of an inadmissibility determination when a petitioner later withdraws an application for admission.

I’ll be back after the new year with the annual double-sized Winter Break edition to cover what happens over the break.

• The Third Circuit on Appealing the Denial of the Judicial-Proceedings Privilege
• The Eleventh Circuit on the “Matter of Substantive Law” Exception for § 1447(d)
• The Second Circuit on the Preclusive Effect of Determinations in Withdrawn Immigration Applications

The Third Circuit on Appealing the Denial of the Judicial-Proceedings Privilege

In Weinik v. Temple University, the Third Circuit dismissed an absolute-immunity appeal because immunity turned on unresolved factual questions.

Weinik involved a former professor’s defamation suit against (among others) a student who had reported the professor’s sexual misconduct. The student sought absolute immunity under Pennsylvania’s judicial-proceeding privilege. But the district court denied that request, concluding that factual issues—specifically, whether the student intended to initiate a quasi-judicial proceeding—precluded a decision on immunity. The student then appealed.

The Third Circuit concluded that the denial of immunity was not immediately appealable via the collateral-order doctrine. That doctrine deems certain kinds of district court decisions final and appealable when they (1) conclusively resolve an issue, (2) present an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal from a final judgment. The order in Weinik failed all three requirements. The student’s entitlement to immunity did not turn on legal issues, over which the Third Circuit would normally have appellate jurisdiction. It instead turned on fact issues that the district court had not yet resolved. The district court thus could not conclusively resolve an issue that was separate from the merits. And Pennsylvania’s judicial-proceedings privilege is not an immunity from the normal burdens of litigation. So its denial could be effectively reviewed after a final judgment.

Weinik v. Temple Univ. of Commonwealth Sys. of Higher Educ., 2021 WL 5882039 (3d Cir. Dec. 13, 2021), available at the Third Circuit and Westlaw.

The Eleventh Circuit on the “Matter of Substantive Law” Exception for § 1447(d)

In Vachon v. Travelers Home & Marine Insurance Co., the Eleventh Circuit dismissed an appeal from an order remanding a case to state court. After the defendant removed the action from Florida court, the district court remanded because the removal was untimely. 28 U.S.C. § 1447(d) barred appellate review of that decision. The Eleventh Circuit also determined that the “matter of substantive law” exception to § 1447(d) did not apply. That exception apparently allows review of a remand order “that determines the substantive issues of the case in a way that is conclusive because it is unreviewable by the state court.” While expressing some doubt about the existence of that exception, the court determined that it did not apply in Vachon.

Vachon v. Travelers Home & Marine Ins. Co., 2021 WL 5895747 (11th Cir. Dec. 14, 2021), available at the Eleventh Circuit and Westlaw.

The Second Circuit on the Preclusive Effect of Determinations in Withdrawn Immigration Applications

Finally, in Juras v. Garland, the Second Circuit asked the Board of Immigration Appeals to explain the preclusive effect of an inadmissibility finding when an immigration petitioner subsequently withdraws an application for admission.

Simplifying quite a bit, Juras involved a former lawful permanent resident’s attempts to reenter the United States. When an immigration judge deemed the petitioner inadmissible due to staying overseas too long, the petitioner withdrew his application. (This withdrawal generally benefits a petitioner, who can thereby avoid being deported and thus avoid certain difficulties in seeking immigration benefits in the future.) When the Board of Immigration Appeals affirmed, the petitioner sought review in the Second Circuit.

But the Second Circuit was unsure of its jurisdiction. That court could review only a “final order of removal”—which includes orders deeming petitioners deportable. It was thus unclear whether the inadmissibility decision and subsequent withdrawal of the application amounted to a final order of removal. The Second Circuit accordingly asked the Board to explain the nature of the Immigration Judge’s inadmissibility finding—“whether the agency would be obliged to give it binding effect in future administrative immigration proceedings or whether that finding is nothing more than dicta for future agency officials to follow (or not) only as they might deem it persuasive.” That determination would then inform whether the court of appeals has jurisdiction to review the inadmissibility finding.

Juras v. Garland, 2021 WL 5980734 (2d Cir. Dec. 17, 2021), available at CourtListener and Westlaw.