The weekly roundup of decisions and other developments in federal appellate jurisdiction.
July 15, 2019
The major appellate-jurisdiction event last week was the Fourth Circuit’s decision in one of the emoluments appeals, granting mandamus to reverse the denial of a § 1292(b) certification. Besides that it was a relatively quiet week. Still, there were decisions of note on administrative exhaustion, notices of appeal, default judgments, and immigration appeals. There was also a cert petition on the Federal Circuit’s exclusive appellate jurisdiction, which comes from a dispute that has ping-ponged between the Fifth and Federal Circuits for a few years.
The Fourth Circuit’s Emoluments Appeals
The Fourth Circuit decided a pair of appeals from Maryland and the District of Columbia’s emoluments suit against Donald Trump. One (PDF, 39 KB) involved a relatively straightforward appeal from the effective denial of sovereign immunity. But the other (PDF, 106 KB) was extraordinary—the court of appeals issued a writ of mandamus ordering the district court to certify a decision for immediate appeal under 28 U.S.C. § 1292(b). That use of mandamus is extremely rare, and I’m not sure it’s proper.
For my quick take on the decisions, see my post from earlier this week.
In re Trump, 2019 WL 2997909 (4th Cir. 2019), available at the Fourth Circuit (PDF, 106 KB) and Westlaw.
District of Columbia v. Trump, 2019 WL 2998602 (4th Cir. 2019), available at the Fourth Circuit (PDF, 39 KB) and Westlaw.
Second Cert Petition In Fifth And Federal Circuit’s Game Of Hot Potato Over Who Has Jurisdiction In Appeals Of Walker Process Claims
A second cert petition (PDF, 743 KB) has been filed in Xitronix and KLA-Tencor’s fight (and the Fifth and Federal Circuit’s fight) over the Federal Circuit’s exclusive jurisdiction in patent appeals. The petitions stem from what’s called a Walker Process claim: a claim that someone violated the Sherman Act by fraudulently obtaining a patent. The Federal Circuit has exclusive appellate jurisdiction in all actions arising under the patent laws. But when Xitronix appealed the dismissal of its Walker Process claim to the Federal Circuit, that court concluded that the appeal did not fall within its exclusive jurisdiction. The Federal Circuit accordingly transferred the case to the appropriate regional court of appeals, the Fifth Circuit. But the Fifth Circuit then concluded that it lacked jurisdiction; according to that court, the appeal belonged in the Federal Circuit.
The appeal thus ping-ponged between the two courts for a few years. One cert petition (PDF, 339 KB) was filed from the Fifth Circuit decision transferring the appeal back to the Federal Circuit, and that petition remains pending. Now, after the Federal Circuit accepted jurisdiction (even though it continued to think that it lacked jurisdiction) and affirmed the merits, a second cert petition has been filed. Both ask the Supreme Court to address where appeals in Walker Process actions belong. And they raise an interesting issue about what it means for an appeal to arise under the patent laws.
Cert docket from 5th Cir. decision: Xitronix Corp. v. KLA-Tencor Corp., No. 18-1770.
Cert docket from Fed. Cir. decision: Xitronix Corp. v. KLA-Tencor Corp., No. 19-58
Tenth Circuit Continues To Treat As Jurisdictional Exhaustion Under The Black Lung Benefits Act
In Energy West Mining Co. v. Lyle (PDF, 210 KB), the Tenth Circuit held—for the second time in as many months—that it lacked jurisdiction to review arguments not presented to the Benefits Review Board in a suit under the Black Lung Benefits Act. The Act requires that coal-mine operators pay medical and monetary benefits to employees who suffer from black lung. An administrative law judge awarded benefits to the employee in Energy West, and the Department of Labor’s Benefits Review Board affirmed the ALJ’s decision. On appeal to the Tenth Circuit, the mine operator argued that the ALJ lacked authority to award benefits; according to the operator, the ALJ was subject to the Constitution’s appointments clause and was not properly appointed under that clause. But the operator had not argued as much before the Benefits Review Board.
Twenty-five years ago the Tenth Circuit held that failure to exhaust an argument before the Board deprived the court of jurisdiction. And the Tenth Circuit holds that it is still bound by that decision, despite subsequent developments in Supreme Court caselaw on what constitutes a jurisdictional rule (as opposed to a claims-processing one). The Energy West court accordingly held that it lacked jurisdiction to review the appointments-clause argument. But the court also noted the doubts it had expressed last month as to whether Black Lung Benefits exhaustion is actually jurisdictional.
Again, this an issue that the Tenth Circuit might be willing to reexamine en banc.
Energy West Mining Co. v. Lyle, 2019 WL 2934065 (10th Cir. 2019), available at the Tenth Circuit (PDF, 210 KB) and Westlaw.
Notice Of Appeal Naming Decision On Reconsideration Motion Did Not Include Issues Over Which Reconsideration Was Not Sought
In PHL Variable Insurance Co. v. Town of Oyster Bay (PDF, 208 KB), the Second Circuit held that a notice of appeal naming only the district court’s decision on a motion for reconsideration precluded appealing claims that were not part of the reconsideration motion. The plaintiff in PHL Variable Insurance had brought 12 claims against the defendant, but the district court dismissed all of them and entered a final judgment against the plaintiff. The plaintiff then filed a timely motion for reconsideration directed to three of its claims—breach of contract, innocent misrepresentation, and fraud—but the district court adhered to its earlier judgment (though it changed some of its reasoning).
The plaintiff then filed a notice of appeal which said that the plaintiff was appealing the decision on the motion for reconsideration; the plaintiff did not specify that it was appealing the prior decision dismissing all 12 of its claims.
The Second Circuit held that failure to specify the earlier dismissal in the notice of appeal precluded the court from addressing anything but the three claims over which the plaintiff had sought reconsideration. Federal Rule of Appellate Procedure 3(c) requires that an appellant specify the judgment or order from which an appeal is sought. And although notices of appeal are construed liberally, the Second Circuit held that the complete failure to specify the earlier dismissal decision deprived the court of jurisdiction to address those claims not addressed in the reconsideration motion.
PHL Variable Insurance Co. v. Town of Oyster Bay, 2019 WL 2932442 (2d Cir. 2019), available at the Second Circuit (PDF, 208 KB) and Westlaw
Sixth Circuit Avoids Deciding Whether A Rule 60(b) Motion Is Required To Appeal A Default Judgment
In Prime Rate Premium Finance Corp. v. Larson (PDF, 201 KB), the Sixth Circuit avoided weighing in on the circuit split over whether a Rule 60(b) motion is required to appeal entry of a default judgment. The district court in Prime Rate Premium entered a default against the defendant after she failed to show up for trial, and the plaintiff later obtained a default judgment under Federal Rule of Civil Procedure 55(b)(2). The defendant then appealed the default. But she did not first seek to vacate the default via a Rule 60(b) motion, which is permitted under Rule 55(c).
The Sixth Circuit noted that a split exists as to whether a litigant can appeal a default judgment without first moving to vacate the judgment under Rule 60(b). The court also noted that it saw nothing in the rules that would require a Rule 60(b) motion to exhaust the issue for appeal. But it declined to take a side on the split. It could do so because even assuming that a Rule 60(b) motion must precede the appeal, that requirement would not be jurisdictional. It would be only a non-jurisdictional claims-processing rule. Those kinds of rules can be waived and forfeited. And since the plaintiff in Prime Rate Premium had not invoked any exhaustion requirement, the court deemed the objection forfeited.
Prime Rate Premium Finance Corp. v. Larson, 2019 WL 3024726 (6th Cir 2019), available at the Sixth Circuit (PDF, 201 KB) and Westlaw
First Circuit Holds It Lacks Jurisdiction To Review Eligibility For Battered-Spouse Cancellation Of Removal
In Twum v. Barr (PDF, 49 KB), the First Circuit held that lacked jurisdiction to review the Board of Immigration Appeals’ determination that an immigrant was ineligible for cancellation of removal under the special rule for battered spouses and children. 8 U.S.C. § 1229b(b)(2)(A) permits the Attorney General to cancel the removal (read: deportation) of an immigrant who has been “battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen” or a “lawful permanent resident.” The immigrant in Twum sought relief under this provision. But the Board of Immigration Appeals held that she had not shown that she was eligible for battered-spouse relief.
On appeal to the First Circuit, the immigrant sought review of the Board’s determination that she was not eligible for battered-spouse relief. But the court held that it lacked jurisdiction to review this determination.
The First Circuit recognized that this was a difficult decision and some tension existed in its caselaw. 8 U.S.C. § 1252(a)(2)(B) deprives the courts of appeals of jurisdiction to review decisions to grant or deny discretionary relief. But another subsection of that statute—§ 1252(a)(2)(D)—provides that the courts retain jurisdiction to decide questions of law. And some First Circuit decisions have distinguished between the ultimate decision to grant or deny discretionary relief—a discretionary decision over which the court lacked jurisdiction—and the underlying determination of whether the immigrant is eligible for the relief at all—a legal question over which the court had jurisdiction.
But one First Circuit decision had held the court lacked jurisdiction to review an eligibility determination made under another statute with language identical to that of § 1229(b)(2)(A). The court thought that identical language should be treated the same, and it accordingly held that it lacked also jurisdiction to review eligibility for battered-spouse relief.
The court ended, however, with a parenthetical quoting the rule that one panel cannot overrule another, even if they disagree:
Under the law of the circuit rule, however, mere disagreement by a coequal court with a panel decision will not divest that opinion of its customary stare decisis effect within the circuit.
Perhaps we have another decision that might be headed for reconsideration en banc?
Twum v. Barr, 2019 WL 2949309 (1st Cir. 2019), available at the First Circuit (PDF, 49 KB) and Westlaw