Companion jurisdiction, consolidated immigration appeals, attorneys’ fees, and more.
February 3, 2020
Last week saw a few interesting appellate-jurisdiction decisions, all of which involved some uncertainty about when the time to appeal started running. The D.C. Circuit avoided deciding that issue by invoking the doctrine of “companion” jurisdiction. A concurring Ninth Circuit judge pointed out that no one seems to know when the time for appealing begins to run when two immigration cases are consolidated and only one of the cases is decided. And a creditor in bankruptcy lost its chance to appeal the judgment against it by waiting to appeal until after attorneys’ fees were decided. In cert-stage developments, the Supreme Court asked for the views of the governing in CACI Premier Technology, Inc. v. Al Shimari and for the record in Taffe v. Wengert.
- The D.C. Circuit on “companion” jurisdiction
- Confusion in consolidated immigration appeals
- Waiting for attorneys’ fees and losing your chance to appeal
- Cert-stage developments
The D.C. Circuit on “companion” jurisdiction
In Alliance of Artists and Recording Companies, Inc. v. DENSO International America, Inc., the D.C. Circuit avoided deciding whether an appeal was timely—and thus whether it had jurisdiction—because a companion case presented the same merits question.
Alliance of Artists involved appeals from two separate actions brought against auto companies and their suppliers. One group of defendants included General Motors and Ford, and the other included Chrysler. The Alliance of Artists and Recording Companies alleged that hardware in cars that allowed users to rip CDs and store them on a hard drive violated violated its the Alliance’s rights under the Audio Home Recording Act of 1992. In March 2018, the district court granted summary judgment for the defendants on all claims in the Chrysler action. At the same time, it granted summary judgment for the defendants in the GM/Ford action on most—but not all—of the Alliance’s claims. Six months later, the Alliance filed a notice of appeal in the Chrysler action. And a month after that, the district court certified its partial resolution of the GM/Ford action for an immediate appeal under Federal Rule of Civil Procedure 54(b). The Alliance then filed a notice of appeal in that action, too.
Before the D.C. Circuit, the Chrysler defendants sought to dismiss the appeal in their action as untimely. Under Federal Rule of Appellate Procedure 4(a), civil litigants generally have 30 days to file a notice of appeal. That deadline is jurisdictional; a late notice deprives the court of appellate jurisdiction. But under Federal Rule of Civil Procedure 58, those 30 days generally begin to run only when a judgment is entered on the docket and (1) the judgment is set out in a separate document or (2) 150 days pass.
The Alliance’s notice of appeal in the Chrysler action was filed 179 days after the district court entered its judgment. If the time for appealing began to run once that judgment was entered, the appeal was clearly late. But the Alliance argued that the district court had not satisfied the separate-document requirement. And if that was the case, then the time for appealing began to run 150 days after the judgment’s entry, the Alliance had 180 days from that judgment to appeal, and its notice was timely.
The D.C. Circuit concluded that it could avoid deciding whether the district court had satisfied the separate-document requirement. Granted, the court must normally assure itself of its jurisdiction. But an exception to that rule exists when the merits question in a jurisdictionally suspect appeal is decided in a companion case. In that scenario, “the jurisdictional question could have no effect on the outcome.” And appellate jurisdiction over the GM/Ford appeal was solid. So deciding the Chrysler appeal would not risk the court going “beyond the bounds of authorized judicial action,” as avoiding the jurisdictional issue would not allow the court to reach “a question of law that otherwise would have gone unaddressed.”
On the merits, the D.C. Circuit affirmed summary judgment for the defendants.
Alliance of Artists and Recording Companies, Inc. v. DENSO International America, Inc., 2020 WL 425058 (D.C. Cir. Jan. 28, 2020), available at the D.C. Circuit and Westlaw.
Confusion in consolidated immigration appeals
In Cabrera Avalos v. Barr, the Ninth Circuit held that an immigrant’s petition to review a Board of Immigration Appeals decision was untimely, even though no one—not the petitioner, the government, or the immigration authorities—was sure when he should have petitioned.
Simplifying a bit, an immigration judge granted the petitioner in Cabrera Avalos cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act of 1997. The judge also held that the petitioner’s wife was entitled to derivative benefits under the Act and canceled her removal. The government took a consolidated appeal—challenging relief for both the petitioner and his wife—to the Board of Immigration Appeals. And the Board reversed the immigration judge, holding that the petitioner was not entitled to cancellation of removal under the Act. This decision meant that the petitioner’s wife was not entitled to derivative benefits. But the Board remanded the wife’s case to the immigration judge to determine if she was entitled to any other relief. A year later, the immigration judge severed the two cases and granted the petitioner’s request for voluntary departure. Only then did the petitioner attempt to appeal the Board’s decision to the Ninth Circuit.
The Ninth Circuit held that the appeal was untimely. Petitioners have 30 days after the Board’s decision to petition the court of appeals for review. And the Ninth Circuit held that those 30 days began running once the Board decided the petitioner’s case. Granted, the Board had left open the possibility that the petitioner’s wife would obtain some relief back before the immigration judge. But the adjudication as to the petitioner was complete. And consolidation of the petitioner’s case with his wife’s did not change this. The petitioner in Cabrera Avalos had thus waited too long. The Ninth Circuit added that even if the time for appealing were calculated from the date the two cases were severed, the appeal was still untimely.
Judge Friedland concurred to note that the Ninth Circuit’s caselaw on consolidated immigration proceedings gives no guidance to those who want to appeal, or anyone else for that matter:
All indications from the record in this case are that it was not clear to Mr. Cabrera, the Government, and the Immigration Court when Mr. Cabrera could have petitioned for review of . . . a ruling in a consolidated appeal.
Indeed, when the Ninth Circuit asked for supplemental briefing on whether immigration petitioners can seek review from a consolidated Board decision that had not been severed, neither party could provide a clear answer. Judge Friedland suggested that in an appropriate case the Ninth Circuit should hold that the time for seeking review runs from severance or—if the consolidated cases are never severed—from the resolution of all cases.
Cabrera Avalos v. Barr, 2020 WL 415888 (9th Cir. Jan. 27, 2020), available at the Ninth Circuit and Westlaw.
Waiting for attorneys’ fees and losing your chance to appeal
In In re Empresas Martínez Valentín Corp., the First Circuit held that it lacked jurisdiction to address a merits appeal when the appellant waited to appeal until after attorneys’ fees were determined.
A bankruptcy court determined that a creditor had willfully violated bankruptcy’s automatic stay by seizing and disposing of a debtor’s property after the debtor had filed for bankruptcy protection. The court awarded the debtor over $400,000 and entered an order resolving all claims and issues except for the debtor’s request for attorneys’ fees. A subsequent motion for reconsideration was denied. And about seven months later, the bankruptcy court awarded the debtor over $100,000 in fees and costs. The creditor then appealed to the district court. Although the debtor argued that the appeal was untimely, the district court denied a motion to dismiss the appeal without explanation and affirmed the bankruptcy court in all respects.
On further appeal to the First Circuit, the court held that the appeal from the merits decision was untimely. Under Federal Rule of Bankruptcy 8002(a)(1), parties have 14 days to appeal from a final decision in bankruptcy. And under the Supreme Court’s decisions in Budinich v. Becton Dickinson & Co. and Ray Haluch Gravel Co. v. Central Pension Fund, a decision on the merits of a claim is final even though an outstanding issue of attorneys’ fees remains. So the time for appealing the bankruptcy court’s merits decision began running once it was decided, despite the outstanding issue of attorneys’ fees. And no matter how the court calculated the window for appealing, the creditor’s notice of appeal was late.
The First Circuit also rejected the argument that the fees in Empresas Martínez were “compensatory damages” and thus part of the merits. The Supreme Court adopted a bright-line approach to finality and attorneys’ fees in Budinich and Ray Haluch, holding that claims for fees incurred in the course of litigation are separate from the merits. Here, the bankruptcy court awarded fees and costs incurred in litigating the claim that the creditor had willfully violated the automatic stay. The fees and costs were accordingly separate from the merits and did not affect the finality of the merits decision.
Finally, the First Circuit held that the debtor had not waived the timeliness issue by failing to cross-appeal the district court’s decision. Recall that the district court had denied the debtor’s motion to dismiss the merits appeal and affirmed the bankruptcy court on the merits. The First Circuit held that a cross-appeal was not necessary. For one thing, the debtor did not seek to alter the bankruptcy court’s judgment, so it did not need to file a cross-appeal to argue an alternative reason for leaving that judgment in place. And the timeliness issue could be waived only if the deadline was a non-jurisdictional claims-processing rule. The First Circuit has held to the contrary, treating bankruptcy’s appeal-filing deadline as jurisdictional.
The court did note, however, that the Supreme Court’s recent decision in Hamer v. Neighborhood Housing Services of Chicago might warrant revisiting its these decisions on the jurisdictional nature of Rule 8002(a)(1). For more on this deadline’s jurisdictional nature, see my post from last summer: Is Bankruptcy’s Hybrid Appeal-Filing Deadline Jurisdictional?
In re Empresas Martínez Valentín Corp., 2020 WL 427821 (1st Cir. Jan. 28, 2020), available at the First Circuit and Westlaw.
Cert-stage developments
The Supreme Court asked for the views of the federal government in CACI Premier Technology, Inc. v. Al Shimari. The case involves claims by Iraqi citizens against a military contractor. The plaintiffs allege that the contractor’s employees—civilian interrogators at Abu Ghraib prison—abused the plaintiffs while they were detained at there. The cert petition asks if military contractors can immediately appeal denials of derivative sovereign immunity via the collateral-order doctrine.
The Court requested the record in Taffe v. Wengert. I’m watching this petition closely because it raises two issues regularly discussed on this site: (1) when (if ever) courts of appeals can reject the district court’s assumed facts in an interlocutory qualified-immunity appeal and (2) when (if ever) courts of appeals hearing a qualified-immunity appeal can exercise pendent appellate jurisdiction over municipal-liability claims.
The court is in its winter recess and is not scheduled to conference again until February 21, 2020.