Jurisdictional and non-jurisdictional appeal deadlines, modified injunctions, sentence reductions, mandamus, and more.
December 23, 2019
This is the last weekly roundup of 2019; they’ll return after the holidays. And we’re ending with an eventful week of several interesting—though often technical—appellate-jurisdiction decisions. The Second Circuit held that immigration’s appeal deadline is non-jurisdictional and subject to equitable tolling. The D.C. Circuit determined that an order requiring disclosure of executive-department emails sufficiently modified an earlier injunction and was thus appealable. The Sixth Circuit split on its jurisdiction to review sentence-reduction decisions. The Second Circuit used mandamus to prohibit a criminal defendant from arguing jury nullification. And did you know that PROMESA has its own unique dual-certification, discretionary-appeals provision? I didn’t. Plus CAFA appeals, the Second Circuit’s Fuller remand rule, and a new cert petition on the jurisdictionality of bankruptcy’s appeal-filing deadline.
- The Second Circuit held that immigration’s appeal-filing deadline is non-jurisdictional and subject to equitable tolling
- The D.C. Circuit determined that an order modified—not clarified—an injunction ordering disclosure of executive emails
- The Sixth Circuit split on jurisdiction to review sentence reductions
- The Second Circuit used mandamus to preclude a criminal defendant from arguing jury nullification
- The First Circuit heard a discretionary PROMESA appeal
- The Fifth Circuit denied a CAFA appeal that raised no CAFA-specific issues
- The Second Circuit on ineffective assistance, late-filed criminal appeals, and habeas
- New cert petition on the jurisdictionality of bankruptcy’s appeal-filing deadline
The Second Circuit held that immigration’s appeal-filing deadline is non-jurisdictional and subject to equitable tolling
In Attipoe v. Barr, the Second Circuit held the Board of Immigration Appeals must consider equitable tolling when determining whether to accept an untimely appeal.
The petitioner in Attipoe was ordered removed to Ghana. He tried appeal to the Board—he paid a lawyer to appeal who never did so, he tried to recruit new counsel, he sought to stay his removal, and he eventually filed his own appeal. He also asked the Board to toll the appeal-filing deadline. But the Board refused, holding that the appeal-filing deadline was jurisdictional and not subject to equitable tolling.
The Second Circuit reversed. The court first refused to defer to the agency’s interpretation of its authority; “filing deadlines are not a matter in which the agency exercises particular technical expertise.” The court then determined that the deadline was a claims-processing rule and not jurisdictional. A provision in the Immigration Act of 1990 requires that the Attorney General issue regulations on the time period for filing appeals. A regulation issued under that provision—8 C.F.R. § 1003.38(b)—requires that an appeal to the Board be filed within 30 days of the mailing of the immigration judge’s decision. The Second Circuit found nothing in the statute or its legislative history indicating that Congress intended for the appeal-filing deadline to be jurisdictional. So it remanded the case to the Board to determine if the deadline should be equitably tolled.
Attipoe v. Barr, 2019 WL 6903960 (2d Cir. Dec. 19, 2019), available at the Second Circuit and Westlaw.
The D.C. Circuit determined that an order modified—not clarified—an injunction ordering disclosure of executive emails
In Dunlap v. Presidential Advisory Commission on Election Integrity, the D.C. Circuit held that a district court order sufficiently changed the terms of a disclosure order to modify—not clarify—an injunction.
The appeal stemmed from a suit by Maine Secretary of State Matthew Dunlap against (among others) the Presidential Advisory Commission on Election Integrity. Dunlap was a member of the Commission. But he thought that other commissioners were working behind his back and sued for access to Commission documents. In late 2017, the district court issued a preliminary injunction that ordered the Commission to disclose certain information to Dunlap. The Commission released some documents but withheld others. Dunlap then sought some of the withheld documents, particularly emails between the Vice President’s staff and Commission members. In 2019, the district court ordered the government to release those emails, too. The government then appealed.
Jurisdiction turned on whether the district court’s 2019 decision modified or clarified its earlier preliminary injunction. (The same issue arose earlier this year in the government’s appeal on conditions for children at Border Patrol stations.) 28 U.S.C. § 1292(a)(1) permits appeals from (among other things) orders modifying injunctions. But an order that merely clarifies an earlier injunction is not appealable.
The D.C. Circuit concluded that the earlier order did not require disclosure of the emails covered by the later order. The district court’s 2017 order required disclosure of three examples of “substantive disclosures”—a draft voter-data request, a proposal for a meeting, and plans for another meeting—and “similar documents.” The emails covered by the 2019 order were sufficiently different from those three categories to be outside the scope of the 2017 injunction. The 2019 order accordingly changed the government’s obligations enough to be immediately appealable.
On the merits of the disclosure order, the D.C. Circuit reversed the order that the Commission supply Dunlap with the emails.
Dunlap v. Presidential Advisory Commission on Election Integrity, 2019 WL 6972861 (D.C. Cir. Dec. 20, 2019), available at the D.C. Circuit and Westlaw.
The Sixth Circuit split on jurisdiction to review sentence reductions
In United States v. Turner, a divided Sixth Circuit dismissed an appeal that challenged the reasonableness of an order denying a sentence reduction under 18 U.S.C. § 3582(c)(2).
The defendant in Turner had pleaded guilty to conspiracy to distribute cocaine. But after a retroactive amendment to the Sentencing Guidelines, he sought a reduction of his sentence. The district court denied that reduction, and the defendant appealed.
Under 18 U.S.C. § 3742, the courts of appeals have jurisdiction to review only certain kinds of errors in sentence-reduction decisions. And in United States v. Bowers, the Sixth Circuit further held that it lacks jurisdiction to review the procedural or substantive reasonableness of a sentence-reduction denial. The Sixth Circuit has not been entirely consistent in applying Bowers. But the majority in Turner determined that § 3742 and Bowers foreclosed review of every argument the defendant raised on appeal.
Dissenting in part, Judge Moore contended that the majority read Bowers too broadly; under the majority’s rationale, Bowers effectively bars review of all sentence-reduction decisions.
United States v. Turner, 2019 WL 6954338 (6th Cir. Dec. 19, 2019), available at the Sixth Circuit and Westlaw.
The Second Circuit used mandamus to preclude a criminal defendant from arguing jury nullification
In United States v. Manzano, a divided Second Circuit granted the government’s writ of mandamus to prevent a criminal defendant from arguing jury nullification.
In the course of doing so, the majority made two points about mandamus that are particularly interesting. First, as to mandamus’s requirement that the petitioner have no other adequate means of relief, the court noted that the government’s limited ability to appeal in criminal cases was relevant. Second, as to the clear-and-indisputable-right requirement, the court noted that on-point authority is not required and that issues of first impression were a “touchstone” of mandamus. The court equated the second requirement to the clear-error standard of review for factual issues: “The ultimate question is simply whether, bearing in mind the exceptional nature of mandamus, we are left with the ‘firm conviction’ that the district court’s view of the law was incorrect.”
Dissenting in part, Judge Parker disputed these characterizations of the mandamus requirements. He noted that the government’s inability to appeal after a final judgment should not affect the propriety of mandamus; limited government appeals are a feature of the criminal appeals regime. And the clear-and-indisputable-right requirement was not met merely because the panel majority was “firmly convinced” that the district court erred:
That I am “firmly convinced” an error has occurred simply means that I believe I am correct. Someone’s firm conviction, however strong or sincere, is not (and can never be) the same thing as a “clear and indisputable right.” After all, a great many evidentiary or procedural rulings made during the course of a trial can leave an impression with one or another appellate judge that the ruling was incorrect. If a “firm belief” that error has occurred were sufficient, no justiciable standard for mandamus would, or could ever, exist.
United States v. Manzano, 2019 WL 6884503 (2d Cir. Dec. 18, 2019), available at the Second Circuit and Westlaw.
The First Circuit heard a discretionary PROMESA appeal
In In re Financial Oversight and Management Board for Puerto Rico, the First Circuit heard an appeal under the certified-appeals provision in the Puerto Rico Oversight, Management, and Economic Security Act (an Act often called “PROMESA”).
The suit involved claims that the Governor of Puerto Rico (joined by the Puerto Rico Fiscal Agency and Financial Advisory Authority) had brought against the Financial Oversight and Management Board for Puerto Rico. The Governor challenged (among other things) the Board’s decision to prohibit “reprogramming”: “spending during the 2019–2020 fiscal year money that had been authorized but not actually spent in a prior fiscal year.” The district court dismissed the challenge to the reprogramming bar. But the Governor’s other claims remained pending.
To facilitate an immediate appeal on the reprogramming issues, the district court certified its dismissal for an immediate appeal under § 306(e)(3) of PROMESA. That provision (codified at 48 U.S.C. § 2166(e)(3)) is a variation on discretionary interlocutory appeals under 28 U.S.C. § 1292(b). It provides that a district court “shall” certify an order or decree for an immediate appeal if one of three conditions is true:
- The order or decree involves a question of law as to which there is no controlling decision of the court of appeals for the circuit or of the Supreme Court of the United States, or involves a matter of public importance;
- The order or decree involves a question of law requiring the resolution of conflicting decisions; or
- An immediate appeal from the order or decree may materially advance the progress of the case or proceeding in which the appeal is taken.
If the district court so certifies, the court of appeals can then authorize the appeal.
The First Circuit accepted the appeal—resolution of the reprogramming bar would “likely assist the district court in assessing other existing and future disputes regarding the relationship between the Board and the Governor.” On the merits, the First Circuit affirmed the dismissal of the challenges to the reprogramming bar.
In re Financial Oversight and Management Board for Puerto Rico, 2019 WL 6887258 (1st Cir. Dec. 18, 2019), available at the First Circuit and Westlaw.
The Fifth Circuit denied a CAFA appeal that raised no CAFA-specific issues
In Williams v. Homeland Insurance Co., the Fifth Circuit declined to hear a CAFA appeal because it raised no CAFA-specific issues.
Williams began as a class action in Louisiana court, which one defendant removed to federal court. The district court refused to remand the entirety of the suit, and the plaintiffs petitioned to appeal under 28 U.S.C. § 1453(c)(1). That statue—part of the Class Action Fairness Act (commonly referred to as CAFA)—gives the courts of appeals discretion to review certain remand decisions. Although the Fifth Circuit has held that § 1453(c)(1) appeals are not limited to those that raise CAFA-specific issues, the provision exists “to facilitate the development of interpretations of CAFA without unduly delaying the litigation of class actions.” So “issues raised by the party seeking permission to appeal must be sufficiently linked to CAFA.”
The plaintiffs in Williams did not seek review of any CAFA-specific issues; their arguments instead dealt “ordinary diversity jurisdiction.” The Fifth Circuit thus concluded that an interlocutory appeal would be inappropriate and accordingly denied the petition to appeal.
Williams v. Homeland Insurance Co., 2019 WL 6977640 (5th Cir. Dec. 19, 2019), available at the Fifth Circuit and Westlaw.
The Second Circuit on ineffective assistance, late-filed criminal appeals, and habeas
In United States v. Wright, the Second Circuit dismissed a criminal appeal filed three years after sentencing. But it wasn’t a simple dismissal; defense counsel had failed to file a timely notice of appeal, and the Second Circuit’s decision in United States v. Fuller offered the possibility that the court of appeals would direct the district court to restart the clock for filing an appeal. Rather than restart the clock, Wright offered the defendant the opportunity to return to the district court and convert his notice of appeal into a habeas petition.
Simplifying more than a bit, the Second Circuit’s Fuller rule applies when (1) defense counsel fails to file a timely appeal despite direction to do so, thereby providing ineffective assistance; (2) the defendant files an untimely notice of appeal; and (3) that notice is filed within the time for filing a habeas petition. When those conditions are met, the court can order a “Fuller remand”: it orders the district court to vacate the judgment and enter a new one from which the defendant could appeal. The twist in Wright was that his notice of appeal was potentially filed outside of the time for filing a habeas petition. And concern with circumventing the time limits on habeas petitions led the Second Circuit to conclude that a Fuller remand was inappropriate. The court instead dismissed the appeal and remanded for the district court (with the defendant’s permission) to convert the notice of appeal into a habeas petition and determine its timeliness.
The appellate-jurisdiction issues in Wright are a bit complicated, but the opinion is worth reading for anyone interested in this area.
United States v. Wright, 2019 WL 6903958 (2d Cir. Dec. 19, 2019), available at the Second Circuit and Westlaw.
New cert petition on the jurisdictionality of bankruptcy’s appeal-filing deadline
Last June, the Tenth Circuit held that bankruptcy’s hybrid appeal-filing deadline—which comes partially from a statute and partially from a procedural rule—is jurisdictional. The debtor in that case has now filed a cert petition asking the court to weigh in on the matter. The case is Robertson v. Banner Bank, and the response is due January 21, 2020.
You can read my post on the Tenth Circuit’s decision here: Is Bankruptcy’s Hybrid Appeal-Filing Deadline Jurisdictional? at Final Decisions..
Petition for Writ of Certiorari, Robertson v. Banner Bank, No. 19-787 (Dec. 17, 2019), available at the Supreme Court and Westlaw.