Appeals involving Rule 45(f) transfer orders, immigration exhaustion, interim fee awards, receiverships, hypothetical jurisdiction, preliminary forfeiture orders, and more.
July 12, 2022
Last week had a bunch of decisions of note. Let’s jump right in with orders transferring a motion to quash a subpoena.
- The Second Circuit on Appealing Rule 45(f) Transfer Orders
- The Third Circuit on Exhausting Legal Arguments in Expedited-Removal Proceedings
- The Ninth Circuit on Pendent Appellate Jurisdiction Over Interim Fee Awards
- The Second Circuit on Standing for Cross-Appeals
- The Third Circuit on Receivership Appeals & the Appointment of a “Custodian”
- The Second Circuit Extended Hypothetical Appellate Jurisdiction Rather than Decide Finality
- The Seventh Circuit on Appealing Third-Party Challenges to Preliminary Forfeiture Orders
- Quick Notes
The Second Circuit on Appealing Rule 45(f) Transfer Orders
In American Plan Administrators v. South Broward Hospital District, the Second Circuit held that it could not review a transfer order under Rule 45(f).
Federal Rule of Civil Procedure 45(f) governs the enforcement of subpoenas, including those that require compliance in a district other than that from which the subpoena issued. Subsection (f) permits the district court in which compliance is required to transfer a motion to quash a subpoena to the court that issued the subpoena. That’s what happened in American Plan Administrators—the Southern District of Florida issued the subpoena, but it required compliance in the Eastern District of New York. When the subpoena target moved to quash the subpoena in the New York district court, that court transferred the motion to the Florida district court. The subpoena target then appealed this decision to the Second Circuit.
The Second Circuit dismissed the appeal. The only proffered ground for appellate jurisdiction was the collateral-order doctrine, which requires (among other things) that the order in question be effectively unreviewable in an appeal from a final judgment. The Second Circuit explained that any decision in the Florida district court would be reviewable in an appeal to the Eleventh Circuit. So like other transfer orders, the Rule 45(f) order was not immediately appealable. The Second Circuit added that, like 28 U.S.C. § 1291, Rule 45(f) exist largely to avoid piecemeal appeals.
American Plan Administrators v. South Broward Hospital District, 2022 WL 2443377 (2d Cir. July 6, 2022), available at CourtListener and Westlaw.
The Third Circuit on Exhausting Legal Arguments in Expedited-Removal Proceedings
In Barradas Jacome v. Attorney General (a leftover from last week), the Third Circuit held that immigration petitioners need not exhaust legal arguments in expedited-removal proceedings. The court read the Immigration and Nationality Act and its regulations to permit only factual challenges to removability in expedited proceedings. In so holding, the Third Circuit joined the Fourth and Fifth Circuits and split with the Eleventh Circuit.
Barradas Jacome v. Attorney General, 2022 WL 2350276 (3d Cir. June 30, 2022), available at the Third Circuit and Westlaw.
The Ninth Circuit on Pendent Appellate Jurisdiction Over Interim Fee Awards
In Bowerman v. Field Asset Services, Inc., the Ninth Circuit extended pendent appellate jurisdiction over an interim fees award while hearing a Rule 54(b) appeal.
The district court in Bowerman certified a class action and granted the class summary judgment on liability. The court then held a bellweather trial on damages and, after the jury returned its verdict, entered a partial judgment under Federal Rule of Civil Procedure 54(b). The district court also awarded class counsel an interim fee award of over $5 million. The defendants then appealed, challenging the class-certification, summary-judgment, and interim-fee decisions.
The Ninth Circuit reversed both class certification and the grant of summary judgment. It then extended pendent appellate jurisdiction over the interim fee award. The fee award was based on the plaintiffs’ success in the district court. The court of appeals had reversed those successes, meaning that there was no longer any basis for the fee award. That, the Ninth Circuit said, made the appealable and non-appealable issues not merely “inextricably intertwined” but identical. The court thus concluded that it can—and in Bowerman, would—“exercise pendent appellate jurisdiction over interim fee orders that are inextricably intertwined with or necessary to ensure meaningful review of final orders on appeal.”
Bowerman v. Field Asset Services, Inc., 2022 WL 2433971 (9th Cir. July 5, 2022), available at the Ninth Circuit and Westlaw.
The Second Circuit on Standing for Cross-Appeals
In Esso Exploration & Production Nigeria Limited v. Nigerian National Petroleum Corp., the Second Circuit held that a party who won on the merits could file a cross-appeal to argue that the district court should have dismissed the case on personal-jurisdiction or forum-non-conveniens grounds.
The defendant in Esso Exploration moved to dismiss on personal-jurisdiction and forum-non-conveniens grounds as well as on the merits. The district court rejected the personal-jurisdiction and forum-non-conveniens arguments. But it granted the motion to dismiss for failure to state a claim. The plaintiff appealed. The defendant then filed a cross-appeal arguing that the case should have been dismissed on personal-jurisdiction or forum-non-conveniens grounds.
The Second Circuit held that the defendant had standing to appeal. The court of appeals was partially vacating the district court’s award, which put the defendant at risk of an adverse ruling on remand. So if the district court erred in its personal-jurisdiction or forum-non-conveniens rulings, a favorable ruling on appeal would eliminate that risk.
I’m a little surprised that this was an issue. The defendant wanted to change the judgment from one on the merits to one on jurisdictional grounds. That should have been enough for an appeal.
Esso Exploration & Production Nigeria Limited v. Nigerian National Petroleum Corp., 2022 WL 2542031 (2d Cir. July 8, 2022), available at CourtListener and Westlaw.
The Third Circuit on Receivership Appeals & the Appointment of a “Custodian”
In Hill ex rel. Republic First Bancorp Inc. v. Cohen, the Third Circuit held that an order appointing a “custodian” was an appealable order appointing a receiver under 28 U.S.C. § 1292(a)(2). Though nominally a custodian, the individual in question had the duties of a receiver.
Hill ex rel. Republic First Bancorp Inc. v. Cohen, 2022 WL 2452144 (3d Cir. July 6, 2022), available at the Third Circuit and Westlaw.
The Second Circuit Extended Hypothetical Appellate Jurisdiction Rather than Decide Finality
In In re Fogarty, the Second Circuit exercised hypothetical appellate jurisdiction over a bankruptcy court’s order denying a motion for sanctions.
The district court had reversed that sanctions decision and remanded for the bankruptcy court to determine the amount of sanctions. The remand raised a finality issue. And the Second Circuit “has not addressed in a precedential opinion whether a district court’s order awarding sanctions and remanding for a determination of damages pursuant to 11 U.S.C. § 362(k) requires ‘significant further proceedings’ in the bankruptcy court” that would preclude finality.
Rather than decide that finality issue, the Second Circuit “exercise[d] [its] discretion to assume hypothetical jurisdiction and proceed to resolve the appeal on the merits.” It could do so because Article III jurisdiction was secure, the appellate-jurisdiction issue was novel and not briefed, and the merits were straightforward.
In re Fogarty, 2022 WL 2443388 (2d Cir. July 6, 2022), available at CourtListener and Westlaw.
The Seventh Circuit on Appealing Third-Party Challenges to Preliminary Forfeiture Orders
In United States v. Furando, the Seventh Circuit heard third-party claimants’ appeals from a preliminary forfeiture order.
The district court entered a preliminary forfeiture, and third parties challenged that order under 21 U.S.C. § 853(n). Three years later, the district court denied the third parties’ challenge.
The civil-forfeiture proceedings were not yet finished. The Seventh Circuit nevertheless held that the third-party claimants could immediately appeal. “An appeal after a district court’s decision regarding ancillary proceedings under 21 U.S.C. § 853(n), is sound as a final judgment under 28 U.S.C. § 1291.” And since “third parties may not challenge the preliminary or final order of forfeiture and are limited to § 853(n) as their sole path to protecting their interest, a denial of such a petition meets the standard definition of ‘final’ under § 1291—nothing is left but for the court to turn the preliminary order into a final one.”
United States v. Furando, 2022 WL 2563986 (7th Cir. July 8, 2022), available at the Seventh Circuit and Westlaw.
Quick Notes
In Brooks v. Butler County, the Sixth Circuit reviewed the plaintiffs’ standing as part of a 28 U.S.C. § 1292(a)(1) injunction appeal.
And in In re Shalaby, the Seventh Circuit explained that it could not review an order requiring that an attorney be accompanied by U.S. Marshals while in the courthouse. The order was administrative, not judicial, and it did not limit the attorney’s access to the courts.
Brooks v. Butler County, 2022 WL 2526601 (6th Cir. July 7, 2022), available at the Sixth Circuit and Westlaw.
In re Shalaby, 2022 WL 2438825 (7th Cir. July 5, 2022), available at the Seventh Circuit and Westlaw.