The Week in Federal Appellate Jurisdiction: January 23–29, 2022

Short roundup this week. The First Circuit reviewed a refusal to enjoin a criminal prosecution. And the Fifth Circuit explained that administrative exhaustion was not required in extraordinary-ability visa cases. In the course of doing so, that court questioned its caselaw deeming administrative exhaustion jurisdictional in this context. Plus appeals involving an undetermined amount of liability, the denial of a Colorado River stay, and more.

• The First Circuit on Appealing the Refusal to Enjoin a Criminal Prosecution
• The Fifth Circuit on Administrative Exhaustion in Extraordinary-Ability Visa Cases
• Quick Notes

The First Circuit on Appealing the Refusal to Enjoin a Criminal Prosecution

In United States v. Bilodeau, the First Circuit reviewed the denial of a motion to enjoin a criminal prosecution.

The defendants in Bilodeau were indicted for several drug crimes. They moved to enjoin their prosecutions under an appropriations rider that prohibited the Department of Justice from using appropriated funds to prevent certain states from implementing their marijuana laws. The district court denied that motion, and the defendants appealed.

And the First Circuit held that it had jurisdiction. Although appeals in criminal cases normally must wait until after conviction and sentencing, the issue in Bilodeau was “not the prosecution per se, but rather the use of federal funds in a manner that prevents the implementation of Maine’s medical marijuana laws.”

Absent an injunction, the funds will be spent and cannot be unspent. In such circumstances, the defendants stand not so much as criminal defendants seeking to vindicate a personal right but as parties with a particularly concrete interest in seeing a congressional spending ban vindicated. We can therefore safely treat the denial of their motion as outside the ordinary rule, or as a collateral order . . . .

The court also declined to exercise pendent appellate jurisdiction over the denial of a request for a Franks haring and a motion to suppress. Neither of those orders could affect the resolution of the appropriations issue.

United States v. Bilodeau, 2022 WL 225333 (1st Cir. Jan. 26, 2022), available at the First Circuit and Westlaw.

The Fifth Circuit on Administrative Exhaustion in Extraordinary-Ability Visa Cases

In Amin v. Mayorkas, the Fifth Circuit held that it could review the denial of an extraordinary-ability visa despite a petitioner’s failure to exhaust administrative appeals. The relevant regulations did not require an administrative appeal—they only allowed for one. So failure to administratively appeal did not preclude the Fifth Circuit from exercising jurisdiction. In a footnote, the Fifth Circuit questioned the continuing validity of its caselaw deeming administrative exhaustion jurisdictional in this context.

Amin v. Mayorkas, 2022 WL 203395 (5th Cir. Jan. 24, 2022), available at the Fifth Circuit and Westlaw.

Quick Notes

In Kasiotis v. New York Black Car Operators’ Injury Compensation Fund, the Second Circuit dismissed an appeal because the district court had not yet determined the amount of damages. Liability had been decided, and the parties argued that only the ministerial task of assigning damages remained. But the Second Circuit concluded that determining damages would be no small task. Indeed, it would likely produce its own disputes, the resolution of which might be the subject of an appeal.

Kasiotis v. New York Black Car Operators’ Injury Compensation Fund, 2022 WL 258570 (2d Cir. Jan. 28, 2022), available at CourtListener and Westlaw.

In Trial Lawyers College v. Gerry Spence Trial Lawyers College, the Tenth Circuit lacked jurisdiction to review the denial of a Colorado River stay in favor of state court proceedings. Although grants of Colorado River stays can be appealed, their denial cannot. The court also refused to extend pendent appellate jurisdiction over the stay denial, as the stay denial was not “inextricably intertwined” with the appealable grant of a preliminary injunction.

Trial Lawyers College v. Gerry Spence Trial Lawyers College, 2022 WL 244079 (10th Cir. Jan. 27, 2022), available at the Tenth Circuit and Westlaw.

And in Williamson v. City of National City, the Ninth Circuit heard a qualified-immunity appeal and extended pendent appellate jurisdiction to a claim under California’s Tom Bane Civil Rights Act. The court of appeals concluded that the denial of immunity and the denial of summary-judgment on the Bane Act claim were “inextricably intertwined.”

Williamson v. City of National City, 2022 WL 201071 (9th Cir. Jan. 24, 2022), available at the Ninth Circuit and Westlaw.