The weekly roundup of decisions and other developments in federal appellate jurisdiction.
July 22, 2019
This week saw more emoluments/mandamus/§ 1292(b) action, this time in the D.C. Circuit. The Third Circuit took sides in the circuit split on whether indigent prisoners can proceed in forma pauperis in the appeal from their third strike. The Eighth Circuit addressed the appealability of a remand order based on § 1446(c)’s one-year limit on removal. And more!
Jurisdictional Chicken In The D.C. Circuit
In another emoluments suit, the D.C. Circuit said it was denying—but was essentially granting—mandamus to reverse a district court’s refusal to certify an order for immediate appeal under 28 U.S.C. § 1292(b). This emoluments suit was brought by members of Congress. The district court denied Trump’s motions to dismiss and then denied Trump’s request to certify those decisions for an immediate appeal under § 1292(b). Trump then sought a writ of mandamus from the D.C. Circuit, asking the court to either reverse the denial of the motions to dismiss or direct the district court to certify the decisions for an immediate appeal.
The D.C. Circuit denied mandamus on the merits of the motions to dismiss. It also denied—or at least said it was denying—mandamus on the § 1292(b) certification. But it also said that he district court was wrong and remanded the matter for immediate reconsideration. So it effectively granted the mandamus petition, so long as the district court takes the hint.
I’ll have a post on this decision up shortly. (Update: The post is up—Jurisdictional Chicken In The D.C. Circuit’s Emoluments Appeal.) And I couldn’t find the D.C. Circuit’s order on its website, but it’s available here (PDF, 157 KB). Thanks to @ZoeTillman for the link.
Divided Fourth Circuit Holds That Indigent Prisoner May Proceed In Forma Pauperis On Appeal From Order Assigning Third Strike
In Taylor v. Grubbs, a divided Fourth Circuit held that an indigent prisoners could proceed in forma pauperis to appeal their third strike. The prisoner in Taylor had filed three suits, all of which were dismissed on the same day and deemed frivolous by the district court. The prisoner then sought to appeal those decisions without paying the filing fee. The defendants opposed the prisoner’s in forma pauperis status, arguing that he had accumulated three strikes and was thus barred from proceeding without paying the appellate-filing fee under the Prisoner Litigation Reform Act.
The Fourth Circuit held that an indigent prisoner can still appeal in forma pauperis from the district court decision assigning the prisoner’s third strike. The appealed decisions were not dismissals on a “prior occasion,” as the Act required. They were instead decisions in the underlying cases on appeal. In so holding, the Fourth Circuit decided an issue the Supreme Court had left open in Coleman v. Tollefson. It’s also an issue on which the courts of appeals have split.
Judge Richardson dissented, contending that each district court action counted as a prior occasion.
Taylor v. Grubbs, 2019 WL 3229126 (4th Cir. 2019), available at the Fourth Circuit and Westlaw.
Eighth Circuit On Appealing Remand Orders & Whether § 1446(c)’s One-Year Limitation On Removal Is Jurisdictional
In Vasseur v. Sowell, the Eighth Circuit held that it lacked jurisdiction to review an order remanding an action to state court when the district court had based the remand on 28 U.S.C. § 1446(c)’s one-year limitation on removal. The case began in Missouri state court, and the plaintiff amended its pleadings three years into the litigation to add the only diverse defendant. That defendant sought to remove the case to federal court, but the district court eventually remanded the action back to state court. The district court held that § 1446(c)—which prohibits removal of an action more than one year after it is commenced unless the plaintiff acted in bad faith—barred the removal. And the district court characterized § 1446(c)’s limitation as a jurisdictional one, thus making the remand one that was due to a lack of subject-matter jurisdiction.
The diverse defendant appealed the remand order. But 28 U.S.C. § 1447(d) prohibits appellate review of remand orders that are based on a lack of subject-matter jurisdiction. The court of appeals’ only task in this situation is to determine whether the district court’s characterization of the remand as one for a lack of subject-matter jurisdiction is “colorable.” And here, the Eighth Circuit thought a reasonable argument could be made that § 1446(c)’s one-year limitation was a jurisdictional one: Congress had amended § 1446(c) to add a bad-faith exception, and that exception would be necessary only if the original act was a jurisdictional bar (otherwise the time limit would be presumptively subject to equitable tolling).
The Eighth Circuit acknowledged that some courts have held otherwise—that § 1446(c)’s limit is not jurisdictional. But the district court’s treatment of § 1446(c) did not need to be correct to bar appellate review; it needed only to be debatable. And it was. The court accordingly dismissed the appeal for lack of jurisdiction.
Vasseur v. Sowell, 2019 WL 3243409 (8th Cir. 2019), available at the Eighth Circuit and Westlaw.
The Seventh Circuit Unravels An Improper Judgment Before Addressing An Appeal
In Philadelphia Indemnity Insurance Co. v. Chicago Trust Co., the Seventh Circuit remanded an inadequate judgment for fixing before it was secure in exercising jurisdiction over the appeal. Simplifying a bit, the case was an action by an insurance company against its insured and its insured’s judgment creditor seeking a declaration of coverage limits. The insurance company contended that an excess-liability policy was limited to $250,000, while the insured and judgment creditor argued—and filed counterclaims alleging—that the limit was $5 million. On the insurance company’s motion to dismiss, the district court said that the limit was $250,000. It then entered a judgment that read “Case is dismissed.” The insured and the judgment creditor appealed.
As the court explained, there were several things wrong with this judgment.
First, by simply saying “Case is dismissed,” the judgment indicated that the insurance company had lost (contrary to the judge’s opinion on the motion to dismiss) and the wrong parties had appealed. That the insurance company was deemed the winner in the opinion didn’t help; a judgment generally must set out the relief to which the prevailing party is entitled in a separate document—that is, a document separate from the opinion explaining the court’s reasoning.
Second, if the judgment was meant to be a take-nothing order on the insured and judgment creditor’s counterclaims, then the insurance company’s claims remained unresolved and the district court’s decision was not final.
Both of these problems created issues with the court’s appellate jurisdiction. But there were other problems. One party (the insured) was not named in the judgment. The judgment did not address the counterclaims. And it was entered by a clerk—not the judge—which Rule 58(b) allows only in limited circumstances.
The Seventh Circuit thus remanded the appeal to the district court with instructions to enter a new judgment. Once the district court did so, the court of appeals addressed the merits.
Philadelphia Indemnity Insurance Co. v. Chicago Trust Co., 2019 WL 3244504 (7th Cir. 2019), available at the Seventh Circuit and Westlaw.
Ninth Circuit Holds That It Has Jurisdiction Over The BIA’s Denial Of A Motion To Reopen Despite Immigrant’s Aggravated Felony
In Flores v. Barr, the Ninth Circuit had to wade into the jurisdiction-stripping provisions of our immigration laws. Flores had been ordered deported due to his conviction of an aggravated felony. Several years later, Flores moved to reopen his deportation proceedings, arguing that counsel in his prior proceedings had provided ineffective assistance. Because he had filed the motion to reopen well outside the normal 90-day limit for doing so, Flores also asked the Board of Immigration Appeals to equitably toll the deadline. But the Board held that Flores was not prejudiced by his prior counsel’s efforts and, on that ground alone, rejected his request for equitable tolling and denied his motion to reopen as untimely. Flores then sought review in the Ninth Circuit.
On appeal, the government argued that the court lacked jurisdiction to review the denial of reopening. The courts of appeals generally have jurisdiction to review the Board’s denial of a motion to reopen. But 8 U.S.C. § 1252(a)(2)(C) says that “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed” certain criminal offenses. And the Board had found that Flores had been convicted of a one of those criminal offenses.
But the Ninth Circuit has recognized exceptions to this bar, two of which applied in Flores’s case. First, § 1252(a)(2)(D) preserves the court’s jurisdiction over questions of law, which include whether a particular conviction is an aggravated felony under the immigration laws. To the extent Flores argued that his conviction did not qualify as an aggravated felony, the court had jurisdiction.
And second, the Ninth Circuit has held that § 1252(a)(2)(C)’s applies only when—and only to the extent that—the Board has found that the petitioner is removable based on one of the enumerated criminal grounds. If the agency does not rely on the immigrant’s conviction in denying the motion to reopen, then the conviction does not bar appellate review. Here, the Board had denied Flores’s motion to reopen solely on the grounds that he was not prejudiced by his prior counsel’s efforts. The Ninth Circuit accordingly held that it had jurisdiction to review denial of reopening to the extent that denial was not based on Flores’s conviction. The court noted, however, that this latter rule has been criticized both within and outside the Ninth Circuit.
Flores v. Barr, 2019 WL 3227979 (9th Cir. 2019), available at the Ninth Circuit and Westlaw.
Third Circuit Holds That Bankruptcy Court Decision On Liability But Not Damages Is Not Final
In In re Annunziata, the Third Circuit held that it lacked jurisdiction to review a bankruptcy court decision that determined liability but left open the calculation of damages. The appeal stemmed from an adversary proceeding between a creditor and debtor in a Chapter 11 bankruptcy. At summary judgment, the bankruptcy court entered judgment as to liability in the creditor’s favor. But the court did not determine the amount of damages; those were to be determined at a later hearing. The debtor appealed the bankruptcy court’s decision to the district court, which affirmed. The debtor then appealed to the Tenth Circuit.
The Tenth Circuit, however, held that it—and the district court—lacked jurisdiction. Under 28 U.S.C. § 158(a)(1), district courts have jurisdiction to review “final judgments, orders, and decrees” in bankruptcy proceedings. And under § 158(d)(1), the courts of appeals have jurisdiction to review the district court’s “final decisions, judgments, orders, and decrees” in bankruptcy. But the bankruptcy court’s decision on summary judgment was not a final one. In normal civil litigation, a determination of liability that leaves open the amount of damages is not a final decision. (There’s an exception for when calculating damages is a technical or ministerial matter, which I’ve written about here and here.) And although bankruptcy often has a more flexible concept of finality, summary judgment on only liability does not resolve a discreet bankruptcy proceeding.
The bankruptcy court’s order was thus not a final one, depriving both the district court and the court of appeals of jurisdiction.
In re Annunziata, 2019 WL 3229716 (3d Cir. 2019), available at the Third Circuit and Westlaw.
Ninth Circuit Divides Over Application Of Scott v. Harris’s Blatant-Contradiction Exception In A Qualified-Immunity Appeal.
In Ortiz v. Vizcarra, the Ninth Circuit split over the application of Scott v. Harris’s blatant-contradiction exception in an interlocutory qualified-immunity appeal. The opinion is short on details. But it does say that the district court denied the defendants’ motion for summary judgment on qualified-immunity grounds in a suit alleging excessive-force and unlawful-seizure. The defendants then filed an immediate appeal from the denial qualified immunity, which they can generally do under Mitchell v. Forsyth. But on appeal, the defendants relied on their own version of the facts, not the version of the facts the district court had assumed in denying summary judgment. And that’s generally prohibited by Johnson v. Jones.
The majority noted Johnson’s limits on its jurisdiction in an interlocutory qualified-immunity appeal. It also said that Scott’s exception to that limit did not apply. Although a video of the incident existed, that video did not “blatantly contradict” or “utterly discredit” the plaintiff’s version of the facts. The majority accordingly dismissed the appeal for lack of jurisdiction.
Dissenting, Judge Fernandez contended that the video showed “beyond peradventure” a scenario that entitled the defendants to qualified immunity.
Ortiz v. Vizcarra, 2019 WL 3216781 (9th Cir. 2019), available at the Ninth Circuit and Westlaw.