The Week in Federal Appellate Jurisdiction: January 17–23, 2021

Last week saw oral argument in the Supreme Court’s big appellate-jurisdiction case for this term. In other Supreme Court news, the parties finished cert-stage briefing in a case that could get rid of the Fifth Circuit’s finality trap. In the courts of appeals, the Fifth Circuit split on the permissible scope of a certified appeal under § 1292(b). The Sixth Circuit entertained the possibility of appealing sealing orders in criminal cases via the collateral-order doctrine. And the Tenth Circuit addressed its interlocutory jurisdiction over writs of attachment and other orders restricting the use of property.

• Cert-Stage Briefing Complete on the Fifth Circuit’s Finality Trap
• Supreme Court Argument on the Scope of § 1447(d) Remand Appeals
• The Fifth Circuit Split on the Proper Scope of a § 1292(b) Appeal
• The Sixth Circuit on Appealing Sealing Orders in Criminal Cases
• The Tenth Circuit Dismissed an Appeal from an Order Forbidding the Transfer of Property or Money

Cert-Stage Briefing Complete on the Fifth Circuit’s Finality Trap

The parties have finished cert-stage briefing in CBX Resources, L.L.C. v. ACE American Insurance Co. The petition asks the Supreme Court to address the Fifth Circuit’s finality trap, which can deprive parties of their right to appeal when they voluntarily dismiss some of their claims without prejudice. I’ve written extensively about the finality trap on this site. I covered the Fifth Circuit’s decision in CBX Resources here. And I covered the initial petition for certiorari in a prior weekly roundup.

The petition is not yet scheduled for conference. I hope the Supreme Court will take up the case and put an end to this silly rule of appellate jurisdiction.

Brief in Opposition, CBX Resources, L.L.C. v. ACE American Insurance Co., No. 20-478 (Jan. 11, 2021), available at the Supreme Court and Westlaw.

Petitioners Reply, CBX Resources, L.L.C. v. ACE American Insurance Co., No. 20-478 (Jan. 22, 2021), available at the Supreme Court.

Supreme Court Argument on the Scope of § 1447(d) Remand Appeals

The Supreme Court heard oral argument in BP P.L.C. v. Mayor & City Council of Baltimore.

The case concerns the scope of remand appeals under 28 U.S.C. § 1447(d). That statute generally prohibits appellate review of orders remanding an action to state court. But it includes two exceptions: when an action is removed under the federal-officer removal statute, or when an action is removed under the civil-rights removal statute. Recent climate-change litigation has required the courts of appeals to address the scope of remand appeals when one of those exceptions applies. And they’ve all held that the scope of appellate review includes only the exceptions; the court of appeals cannot address any other proffered ground for removal.

Amy Howe wrote the argument analysis for SCOTUSBlog: Justices divided in procedural battle between Baltimore, oil companies in climate fight. For more on the underlying issue and the four recent court of appeals decisions endorsing the narrow reading of § 1447(d), see these posts:

• A Deepened Split on the Scope of Remand Appeals.
• The Ninth Circuit on the Scope of Remand Appeals.
• The Tenth Circuit on the Scope of § 1447(d) Remand Appeals.
• The Week in Federal Appellate Jurisdiction: October 25–31, 2020 (discussing the First Circuit’s decision).

Oral Argument in BP P.L.C. v. Mayor & City Council of Baltimore, No. 19-1189, available at the Supreme Court and Oyez.

The Fifth Circuit Split on the Proper Scope of a § 1292(b) Appeal

In Gonzalez v. CoreCivic, Inc., a split Fifth Circuit addressed the scope of the Trafficking Victims Protection Act in a § 1292(b) appeal. The court split over the extent to which it could—and was required to—address all aspects of the district court’s certified order.

The plaintiff in Gonzalez was held in immigration detention at a facility run by a private company. She sued the company, alleging that forced labor at the detention center violated the Trafficking Victims Protection Act. The district court refused to dismiss the claim, holding that the Act covered labor performed by those held in a private immigration-detention facility. But the district court also certified that issue for an immediate appeal via 28 U.S.C. § 1292(b). The Fifth Circuit accepted the appeal. A majority of the court affirmed the district court’s reading of the Act and accordingly affirmed.

Judge Oldham dissented. He thought that the plaintiff’s complaint was too conclusory to state a claim. And he thought that the court was compelled to address that point. Granted, the statutory-interpretation issue was the reason for the § 1292(b) certification. But appellate jurisdiction over a § 1292(b) appeal extends to the entire order, not just a particular issue. Judge Oldham accordingly saw no discretion to address only one issue when a second issue would require reversal.

Judge Ho (who authored the majority opinion) authored a separate concurrence to argue that the court could not reach the pleading question. Reading the concurrence, it seems that the real disagreement concerned whether the defendant had raised the adequacy of the pleadings in its motion to dismiss. Judge Oldham thought that the defendant had done so; Judge Ho disagreed. And, invoking the Supreme Court’s recent decision in United States v. Sineneng-Smith, Judge Ho thought that the court should not reach out to decide issues that he parties did not raise.

Gonzalez v. CoreCivic, Inc., 2021 WL 192717 (Jan. 20, 2021), available at the Fifth Circuit and Westlaw.

The Sixth Circuit on Appealing Sealing Orders in Criminal Cases

In In re Owens, the Sixth Circuit denied a petition for mandamus that sought to seal a proffer letter.

The opinion is light on details about the underlying criminal prosecution. But it appears that the defendant in Owens intended to plead guilty and had provided the government with a proffer letter. The defendant eventually moved to file the proffer letter under seal, but the district court denied that request. The defendant then petitioned the Sixth Circuit for a writ of mandamus that would direct the district court to allow the filing under seal.

The Sixth Circuit ultimately denied the petition for mandamus. In the course of doing so, the court questioned whether the collateral-order doctrine would be an alternative avenue for appellate relief. In civil cases, the Sixth Circuit has allowed appeals from unsealing orders via that doctrine. But it has not addressed whether the same rule applies in criminal cases, where courts are more stingy with collateral-order appeals. The court noted that the Fourth Circuit had recently held in United States v. Doe that denials of motions to seal in criminal cases are appealable via the collateral-order doctrine. (Though I’m not quite sure that Doe held as much.) And the court said that Doe’s reasoning was persuasive.

The Sixth Circuit nevertheless avoided resolving the issue. It could do so because the petitioner in Owens could not show sufficient potential for harm to warrant mandamus. Much of the information he sought to have sealed was already public, so the harm had largely already occurred.

Thanks to Michael Solimine for sending this case my way.

In re Owens, 2021 WL 225873 (6th Cir. Jan. 22, 2021), available at the Sixth Circuit and Westlaw.

The Tenth Circuit Dismissed an Appeal from an Order Forbidding the Transfer of Property or Money

In DiTucci v. Bowser, the Tenth Circuit held that it lacked jurisdiction to review an order requiring the defendant to deposit money with the court and barring the defendant from transferring his home.

DiTucci involved a variety of business torts. Shortly after the suit was filed, one defendant tried to sell his $2.4 million home. Fearing for their ability to enforce a judgment against that defendant, the plaintiffs asked the district court to intervene. The district court ultimately allowed the sale, and it permitted the defendant to use the proceeds to purchase a new home and pay some debts. But the district court also prohibited the defendant from transferring or otherwise encumbering the new home. And it required the defendant to deposit about $350,000 with the court. The defendant then tried to appeal these decisions.

The Tenth Circuit ultimately held that it lacked jurisdiction under 28 U.S.C. § 1292(a)(1). To the extent the district court had entered a writ of attachment—and there was some uncertainty about whether the order qualified as a writ—the decision was not an appealable injunction. For historical reasons, “writs of attachment (or denials of requests for writs of attachment) are not appealable as injunctions.” They’re considered legal, not equitable, in nature and thus don’t qualify as injunctions under § 1292(a)(1).

And even if the decision was not a writ of attachment, the Tenth Circuit still wouldn’t treat it as an injunction. The district court didn’t characterize it as such. And the order did not satisfy the requirements for treating it as effectively an injunction. The defendant’s “inability to use the cash or raise money from his present home may have financial consequences, but he has not shown that those consequences are irreparable—that is, that he cannot be adequately compensated if he ultimately prevails.”

DiTucci v. Bowser, 2021 WL 209066 (10th Cir. Jan. 21, 2021), available at the Tenth Circuit and Westlaw.