Arguments on immigration, patent, and criminal appeals; mandamus/§ 1292(b) argued en banc; concurrences on immigration and arbitration appeals; and more.
December 19, 2019
Last week was quite eventful. The Supreme Court heard argument in three cases that raise interesting appellate issues. The Fourth Circuit sat en banc to consider the use of mandamus to direct a § 1292(b) certification. Two Sixth Circuit judges wrote concurrences calling for that court to re-examine some of its appellate-jurisdiction rules (one on immigration exhaustion, another on arbitration remands). Plus ERISA remands, the ministerial/technical exception, reviewing subject-matter jurisdiction in an interlocutory appeal, and pendent appellate jurisdiction in qualified-immunity appeals.
- The Supreme Court heard argument in three cases on appellate procedure
- The en banc Fourth Circuit heard arguments in its emoluments appeals
- What happens when a district court fails to advise criminal defendants of their right to appeal and the appeal is accordingly late?
- Judge Murphy questioned the jurisdictional nature of immigration’s exhaustion requirement
- Judge Thapar questioned the appealability of arbitration remands
- The Sixth Circuit dismissed an ERISA-remand appeal
- The Third Circuit applied the ministerial/technical rule to an appeal from a bankruptcy court
- The Fifth Circuit used a pre-filing injunction appeal to review a remand denial
- The First Circuit seemingly (though maybe not really) rejected pendent appellate jurisdiction in a qualified-immunity appeal
The Supreme Court heard argument in three cases on appellate procedure
It was appellate-procedure week at the Supreme Court, with the Court hearing argument in three cases I’ve been following.
On Monday, the Court first heard argument in Guerrero-Lasprilla v. Barr (which was consolidated with Ovalles v. Barr). The case asks if federal courts have jurisdiction to review the a Board of Immigration Appeals decision refusing to equitably toll the deadline for reopening removal orders. Kit Johnson’s argument analysis for SCOTUSBlog is available here
The second argument on Monday was Thryv, Inc. v. Click-To-Call Technologies, LP (formerly known as Dex Media, Inc. v. Click-To-Call Technologies, LP). The case asks if parties can immediately appeal the Patent Trial and Review Board’s decision to institute inter partes review. I wrote a little about the case back when cert was granted. John Duffy provided SCOTUSBlog’s argument analysis, available here.
Then on Tuesday came argument in Holguin-Hernandez v. United States. The case asks if defendants must formally object to the length of their sentence in order to preserve the issue for appeal. (Not technically a jurisdictional issue, but whatever.) My prior coverage is here. And Rory Little wrote SCOTUSBlog’s argument analysis, available here.
Argument in Guerrero-Lasprilla v. Barr, No. 18-776, available at Oyez.
Argument in Thryv, Inc. v. Click-To-Call Technologies, LP, No. 18-916, available at Oyez.
Argument in Holguin-Hernandez v. United States, No. 18-7739, available at Oyez.
The en banc Fourth Circuit heard arguments in its emoluments appeals
The en banc Fourth Circuit heard arguments in the two interlocutory appeals from Maryland and the District of Columbia’s emoluments-clause suit against Donald Trump. The panel decision in one of those appeals—In re Trump—used mandamus to direct a district court to certify a decision for an immediate appeal under 28 U.S.C. § 1292(b). I criticized that decision at the time, as did Alan Morrison in a guest post. And the Fourth Circuit eventually agreed to rehear the case en banc.
Argument in In re Trump, No. 18-2486, available at the Fourth Circuit.
What happens when a district court fails to advise criminal defendants of their right to appeal and the appeal is accordingly late?
In United States v. Marsh, a divided Fourth Circuit held that a district court’s failure to advise a criminal defendant of his right to appeal did not excuse the defendant’s late-filed notice of appeal.
The defendant in Marsh pleaded guilty to identity theft and fraud. His plea agreement waived almost any right to appeal (he could still appeal an above-statutory-maximum sentence or to claim ineffective assistance). At sentencing, the district court did not advise the defendant of his right to appeal. This violated Criminal Rule 32(j)(1)(B), which requires that district courts advise defendants of their right to appeal the sentence “regardless of the defendant[s’] plea.” The defendant eventually did appeal, though he did so 283 days after judgment. That was well beyond the 14 days for filing a criminal appeal under Appellate Rule 4(b).
The Fourth Circuit ultimately dismissed the appeal as untimely. It decided a number of interesting issues in doing so. First, the court held that appellate waivers do not excuse a district court’s duty under Criminal Rule 32(j) to advise defendants of their right to appeal. Second, Rule 4(b)’s 14-day deadline for criminal appeals, though not jurisdictional, is mandatory and not subject to equitable tolling. Third, failure to advise defendants of their right to appeal does not warrant applying the “unique circumstances” exception for filing deadlines; that doctrine applied only when district courts gave incorrect information on appealing, and the court here gave no information at all (incorrect or otherwise). And fourth, criminal defendants who fail to timely appeal can nevertheless collaterally challenge Rule 32(j) violations via habeas.
Chief Judge Gregory dissented in part. As he saw it, there were two mistakes here—one by the district court judge in failing to advise the defendant of his right to appeal, and one by the defendant in filing a late appeal. Chief Judge Gregory doubted that the rules were meant to be more forgiving of a judge’s mistake than of a criminal defendant’s. But that’s exactly how the majority read them. Chief Judge Gregory went on to disagree with much of the majority’s rationale. He contended that the 14-day deadline could be equitably tolled, despite its mandatory nature. He distinguished Appellate Rule 4(b) from Rule 23(f), which the Supreme Court had analyzed in Nutraceutical Corp. v. Lambert. And he saw a potentially compelling case for application of the “unique circumstances” doctrine.
United States v. Marsh, 2019 WL 6693742 (4th Cir. Dec. 9, 2014), available at the Fourth Circuit and Westlaw.
Judge Murphy questioned the jurisdictional nature of immigration’s exhaustion requirement
In Saleh v. Barr, the Sixth Circuit held that an immigration petitioner had not exhausted the argument that her crime was not an aggravated felony. Under Sixth Circuit precedent, that failure was a jurisdictional defect that left the court powerless to address the matter.
Concurring, Judge Murphy questioned the Sixth Circuit’s caselaw on this point. As he explained, jurisdictional rules generally specify the cases and parties over which a court can exercise its power. And jurisdictional rules cannot be waived or forfeited; courts must enforce them, even on their own initiative. The Supreme Court has endeavored in recent years to clean up the law on which rules are truly jurisdictional and which are instead claims-processing rules (which can be waived or forfeited). Judge Murphy saw no indication in the text of the relevant statute (8 U.S.C. § 1252(d)(1)) that Congress wanted immigration’s exhaustion requirement to be jurisdictional. And as he noted, a circuit split exists on this issue: most courts treat exhaustion as jurisdictional, but the Seventh Circuit disagrees.
Judge Murphy suggested that in an appropriate case the Sixth Circuit could re-examine this issue. Saleh, however, was not an appropriate case; the government had raised the failure to exhaust, so the court had to apply it regardless of its jurisdictional nature.
Saleh v. Barr, 2019 WL 6770008 (6th Cir. Dec. 12, 2019), available at the Sixth Circuit and Westlaw.
Judge Thapar questioned the appealability of arbitration remands
In Local 1982 v. Midwest Terminals of Toledo, the Sixth Circuit affirmed a district court decision that sent an arbitral dispute back to an arbitrator. It was the second time the Sixth Circuit had affirmed a decision sending this dispute back to arbitration. And no one questioned the Sixth Circuit’s jurisdiction to review the remand; that court has held that decisions remanding disputes to arbitrators for clarification are final and appealable.
Concurring, Judge Thapar questioned that rule. A final decision is normally one that marks the end of district court proceedings. That same general definition applies in post-judgment proceedings, wherein parties seek to enforce a prior judgment—the district court’s decisions are not final or appealable until the end of the post-judgment proceedings. And as Judge Thapar saw things, remands to arbitrators do not end post-judgment proceedings. The dispute will continue before the arbitrator and possibly return to the district court.
Courts have often held that similar remand orders are not final or appealable. Most common are administrative remands, when parties challenge an administrative adjudication in a district court and the district court remands the dispute to the agency for further proceedings. The standard rule in this context is that the remands are not final, though courts have approached the issue flexibly to allow appeals when the remand might leave the parties without a chance to seek appellate review. Courts have applied similar rules in the context of remands to ERISA administrators and bankruptcy courts.
Judge Thapar suggested that the Sixth Circuit should re-examine its rule in an appropriate case. But like Saleh, this was not an appropriate case—the matter was heading back to the arbitrator regardless of the court’s appellate jurisdiction.
(FYI, you can read more about post-judgment appeals (pages 393–400) and the appealability of remands (pages 386–93) in my article Dizzying Gillespie: The Exaggerated Death of the Balancing Approach and the Inescapable Allure of Flexibility in Appellate Jurisdiction.)
Local 1982 v. Midwest Terminals of Toledo, 2019 WL 6709410 (6th Cir. Dec. 10, 2019), available at the Sixth Circuit and Westlaw.
The Sixth Circuit dismissed an ERISA-remand appeal
Speaking of appeals from orders remanding cases to an ERISA administrator, the Sixth Circuit dismissed one such appeal in Laake v. Benefits Committee.
The plaintiff in Laake sued her benefits plan for wrongful denial of benefits, and the district court held that the plan administrator acted arbitrarily and capriciously. To determine the extent of benefits to which the plaintiff was entitled, the district court remanded the matter to the ERISA administrator. The administrator then appealed.
The Sixth Circuit held that it lacked jurisdiction. As just mentioned, the general rule is that remands to ERISA administrators are not final; more remains to be done before the administrator before the dispute is resolved. The Sixth Circuit noted, though, that the district court should retain jurisdiction over the dispute to ensure that the parties can later appeal.
Laake v. Benefits Committee, 2019 WL 6726206 (6th Cir. Dec. 11, 2019), available at the Sixth Circuit and Westlaw.
The Third Circuit applied the ministerial/technical rule to an appeal from a bankruptcy court
In In re Odyssey Contracting Corp., the Third Circuit held that a bankruptcy court’s order—which ordered the parties to resolve their dispute in accordance with a stipulation—was sufficiently final for appeal purposes.
Simplifying a fair bit, Odyssey Contracting involved a breach-of-contract dispute between two contractors, one of which had filed for bankruptcy. Each accused the other of breaching their contract. And they eventually stipulated that they would each dismiss their claims, with prejudice, if the bankruptcy court determined that the debtor was the breaching party. The bankruptcy court then held that the debtor had breached. But instead of entering a judgment resolving the dispute, the bankruptcy court ordered the parties “to resolve the adversary proceeding in compliance with the stipulation.” Before they could do so, however, the debtor sought review in the district court. And that court more or less directed entry of a dismissal in accordance with the stipulation. The debtor then sought further review in the Third Circuit.
The Third Circuit first had to assure itself of the district court’s jurisdiction—on which its own jurisdiction depended. Under 28 U.S.C. § 158(a)(1), district courts have jurisdiction over bankruptcy court’s final orders. “With some hesitation,” the Third Circuit concluded that the bankruptcy court’s order here was final. Granted, the order did not finally resolve the dispute between the parties; it ordered the parties to do so. But all that remained to be done was the simple matter of entering a judgment consistent with the stipulation. And under the ministerial/technical exception to the final-judgment rule, courts have skirted the finality requirement when all that remains to be done are ministerial or technical matters. So long as these lingering issues are uncontroversial and straightforward, the parties are unlikely to dispute them. So the appeal is the only one that will occur; there is no risk of piecemeal review.
Remand for entry of a proper judgment—followed by the parties again appealing the same issues—would thus be a waste of time. So the district court “took that small, ministerial step itself” and modified the bankruptcy court’s dismissal to be with prejudice. Upon doing so, the district court had jurisdiction. So the Third Circuit did, too.
(FYI, you can also read about the ministerial technical exception on pages 400–402 of Dizzying Gillespie.)
In re Odyssey Contracting Corp., 2019 WL 6766985 (3d Cir. Dec. 12, 2019), available at [the Third Circuit] and Westlaw.
The Fifth Circuit used a pre-filing injunction appeal to review a remand denial
In IntegraNet Physician Resource, Inc. v. Texas Independent Providers, L.L.C., the Fifth Circuit held that an order barring a party from filing another case against the defendants was an appealable injunction. And that appeal allowed the court to review a remand denial.
Simplifying a bit, IntegraNet involved two lawsuits. The plaintiff first sued a competitor and its owners in Texas court, after which the defendants removed the case. The plaintiff then sued one of those same owners, again in Texas court, after which the owner again removed the case. The district court consolidated the two removed cases, forbade the plaintiff from filing additional suits against the defendants that arose from the same facts without first obtaining the court’s permission, and refused to remand them. The plaintiff then appealed the consolidation order.
The Fifth Circuit held that it had jurisdiction under § 1292(a)(1). The district court’s order prevented the plaintiff from filing future lawsuits without the court’s permission—a pre-filing injunction. And the appeal from that injunction gave the court jurisdiction to also review the district court’s remand decisions. Granted, remand denials are normally not immediately appealable. But the remand motions here challenged the district court’s subject-matter jurisdiction. And “where there’s an independent basis for jurisdiction, [the court] must review the district court’s subject-matter jurisdiction over the lawsuits.” So appellate jurisdiction over the injunction allowed the Fifth Circuit to review the remand orders, too.
IntegraNet Physician Resource, Inc. v. Texas Independent Providers, L.L.C., 2019 WL 6721121 (5th Cir. Dec. 11, 2019), available at the Fifth Circuit and Westlaw.
The First Circuit seemingly (though maybe not really) rejected pendent appellate jurisdiction in a qualified-immunity appeal
Finally, in Penate v. Hanchett, the First Circuit reversed the denial of qualified immunity for the supervisor of a drug lab. In doing so, the court rejected pendent appellate jurisdiction over the denial of a motion to dismiss on an intentional infliction of emotional distress claim; qualified immunity was not inextricably intertwined with that claim. But the First Circuit also noted its expectation that the district court would reconsider its exercise of supplemental jurisdiction over the state-law claim. And the First Circuit ultimately vacated the district court’s decision on the emotional-distress claim—despite not having jurisdiction—for further consideration. So maybe the court did, in fact, exercise pendent jurisdiction.
Penate v. Hanchett, 2019 WL 6798883 (1st Cir. Dec. 13, 2019), available at the First Circuit and Westlaw.