Immigration, sentencing, class actions, and more.
April 1, 2020
Programming Note: Weekly roundups will probably be short, and new posts will probably be rare, for the next few weeks.
The Supreme Court addressed the scope of review in immigration appeals. The Sixth Circuit reversed course on the jurisdictional basis for sentencing appeals. The Ninth Circuit joined everyone else in holding that Rule 23(f) appeals are available for reconsideration orders only when the orders change the status quo. And the Ninth Circuit decided another case on undoing pre-Baker voluntary dismissals. Plus a few cases on administrative appeals, cumulative finality, dismissals without prejudice, and the Eleventh Circuit’s “anomalous rule” for intervention appeals.
- The Supreme Court held that courts of appeals could address the application of law to undisputed facts in immigration appeals
- The Sixth Circuit reversed its decision on jurisdiction to review the denial of a request to terminate supervised release
- The Ninth Circuit on Rule 23(f) and reconsideration decisions
- Another Ninth Circuit decision on undoing pre-Baker dismissals
- The D.C. Circuit on petitions for review of agency decisions
- Quick notes
The Supreme Court held that courts of appeals could address the application of law to undisputed facts in immigration appeals
In Guerrero-Lasprilla v. Barr, the Supreme Court held that courts of appeals can review the application of law to undisputed facts when hearing immigration appeals. This rule holds true even when an immigration petitioner has been convicted of certain criminal convictions, which strips the courts of appeals of jurisdiction to address certain issues in these appeals. The specific issue in Guerrero-Lasprilla concerned whether the petitioners exercised the due diligence necessary to equitably toll a deadline to reopen. The Supreme Court held that the courts of appeals had jurisdiction to address whether the petitioners’ conduct amounted to sufficient diligence.
For more, see Kit Johnson’s opinion analysis on SCOTUSBlog.
Guerrero-Lasprilla v. Barr, 2020 WL 1325822 (Mar. 23, 2020), available at the Supreme Court and Westlaw.
The Sixth Circuit reversed its decision on jurisdiction to review the denial of a request to terminate supervised release
Last month, in United States v. Marshall, the Sixth Circuit held that it lacked jurisdiction to review a district court decision that refused to terminate the defendant’s supervised release ahead of schedule. Last week, the panel reversed itself and held that it could review a denial to terminate supervised release.
The defendant in Marshall had been sentenced to about 10 years’ imprisonment followed by six years of supervised release. Supervised release started off rough, with the defendant moving to another state without permission and thereby violating the terms of his release. A district court briefly revoked the defendant’s release as punishment and then imposed another five years of supervised release to run concurrent with the existing six years. But about a year later, the probation office recommended an early termination of supervised release. The defendant then asked the district court—without opposition from the government—to end the supervised release. But the district court denied that request, noting that the defendant had served only a fraction of his supervised-release term and had once violated the terms of that release. The defendant then appealed.
The Sixth Circuit initially held that neither 18 U.S.C. § 3742 nor 28 U.S.C. § 1291 gave it jurisdiction to review the district court’s decision. Section 3742, the court reasoned, was the exclusive source of appellate jurisdiction in the sentencing context. And that section limits appeals of criminal sentences to four errors: (1) the sentence violated the law, (2) the sentence was due to a guidelines error, (3) the sentence exceeded the guidelines-recommended range, and (4) there was no guideline for the offense and the sentence is “plainly unreasonable.” The Marshall defendant’s appeal fit none of these categories.
On reconsideration, the court concluded that its earlier decisions on § 3742 had wrongly labeled that statute as a “jurisdictional” one. The statute is instead best read as a claims-processing rule that limits the relief an appellate court can grant but does not affect its subject-matter jurisdiction. So § 1291—the general grant of federal appellate jurisdiction—governs subject-matter jurisdiction over sentencing appeals. Section 3742 confines the court’s power to grant certain kinds of relief in those appeals.
On the merits, the Sixth Circuit affirmed the decision to not end the defendant’s supervised release ahead of schedule.
United States v. Marshall, 2020 WL 1467210 (6th Cir. Mar. 26, 2020), available at the Sixth Circuit and Westlaw.
The Ninth Circuit on Rule 23(f) and reconsideration decisions
In Walker v. Life Insurance Co. of the Southwest, the Ninth Circuit held that (1) only an initial, timely motion for reconsideration can extend the 14-day window for filing a Rule 23(f) petition to appeal, and (2) courts of appeals can review the district court’s reconsideration decision via Rule 23(f) only if that decision changed the status quo.
The district court in Walker partially granted the plaintiffs’ motion for class certification. The district court certified a class, but it defined the class to exclude about one-quarter of the individuals that the plaintiff wanted to include. The plaintiffs then moved for reconsideration in the district court. But the district court denied that motion without prejudice because the plaintiffs had not satisfied a local meet-and-confer requirement. A few days later, the plaintiffs re-noticed their motion for reconsideration (presumably after satisfying the meet-and-confer requirement), and the district court denied it about a month later. Shortly thereafter the plaintiffs petitioned the Ninth Circuit for permission to appeal under Rule 23(f).
Insofar as the plaintiffs attempted to appeal the district court’s initial class-certification decision, the Ninth Circuit held that the Rule 23(f) petition was untimely. Under Rule 23(f), parties have 14 days to file a petition to appeal a class-certification decision. That time can be extended by filing a timely motion for reconsideration. But the district court’s class-certification decision in Walker became final once the district court denied the reconsideration motion without prejudice. At that point, the plaintiffs had 14 days to seek permission to appeal. They did not do so.
The plaintiffs instead re-noticed their motion for reconsideration. But that did not further extend the deadline. Only a timely motion for reconsideration—one filed within fourteen days of a class-certification decision—will extend the time for filing a Rule 23(f) petition. “And a motion for reconsideration filed within fourteen days of a prior reconsideration order, as distinct from a certification order, is not ‘timely’ and therefore cannot restart the clock.” (Emphasis added.) To hold otherwise would allow plaintiffs to repeatedly extend the 14-day time for seeking permission to appeal by re-noticing motions for reconsideration.
The Ninth Circuit also held that it could not review the district court’s denial of reconsideration. That’s because Rule 23(f) allows for appeals from orders granting or denying class certification. “Every circuit to consider the question has interpreted the rule to allow appeals of reconsideration orders—but only those that materially change the original certification order and thereby affect the status quo.” So “[o]nly where the district court certifies a class it previously declined to certify, decertifies an existing class, or changes the composition of an existing class—usually by increasing or decreasing its size—will a reconsideration order become appealable.” The reconsideration decision in Walker did not alter the status quo—the same class was certified before and after the reconsideration decision. So the court could not review the reconsideration decision.
Walker v. Life Insurance Co. of the Southwest, 2020 WL 1329665 (9th Cir. Mar. 23, 2020), available at the Ninth Circuit and Westlaw.
Another Ninth Circuit decision on undoing pre-Baker dismissals
In Bobbitt v. Milberg LLP, the Ninth Circuit issued its third decision on undoing pre-Baker dismissals.
In 2017’s Microsoft Corp. v. Baker, the Supreme Court held that plaintiffs seeking to bring a class action could not voluntarily dismiss their individual claims and immediately appeal the denial of class certification. In doing so, the Supreme Court abrogated a line of Ninth Circuit decisions that allowed this voluntary-dismissal tactic.
Last November, in Henson v. Fidelity National Financial, Inc., the Ninth Circuit held that plaintiffs could use Rule 60(b) to undo voluntary dismissals they had entered to facilitate appellate review. In January, the Ninth Circuit held in Strafford v. Eli Lilly & Co. that Rule 60(b) relief was not warranted for a different group of plaintiffs. And last week, in Bobbitt v. Milberg LLP, the Ninth Circuit held that another plaintiff could use Rule 60(b) to undo a voluntary dismissal that relied on pre-Baker caselaw.
So plaintiffs are now 2-1 on undoing pre-Baker dismissals.
For more on this issue, see the posts Undoing Voluntary Dismissals of Class Actions After Baker and Ninth Circuit: Not All Pre-Baker Dismissals Can Be Undone.
Bobbitt v. Milberg LLP, 2020 WL 1482159 (9th Cir. Mar. 23, 2020), available at the Ninth Circuit and Westlaw.
The D.C. Circuit on petitions for review of agency decisions
In Snohomish County v. Surface Transportation Board, the D.C. Circuit had to untangle a few jurisdictional issues with an appeal from a Surface Transportation Board decision.
The Board denied petitions to revoke a railroad’s exemptions from some regulations. The petitioner moved for reconsideration before the Board and, three days later, petitioned the D.C. Circuit for review of the Board’s decision. The Board later denied reconsideration, and the petitioner again petitioned the D.C. Circuit for review.
The D.C. Circuit held that the first petition for review was “incurably premature.” In the administrative-appeals context, parties cannot simultaneously seek reconsideration before an agency and review before the D.C. Circuit. They must wait until after the reconsideration decision to seek appellate review. And a premature petition for review cannot be saved by a subsequent final decision in the agency. Petitioners must instead file a new petition for appeal.
As for the second petition for review, it was ineffective insofar as it sought review of the Board’s reconsideration decision. Under the Supreme Court’s decision in I.C.C. v. Brotherhood of Locomotive Engineers, “where a party petitions an agency for reconsideration on the ground of ‘material error,’ i.e., on the same record that was before the agency when it rendered its original decision, an order which merely denies rehearing of the prior order is not itself reviewable.” The petitioner in Snohomish County had argued only material error in its reconsideration motion and thus could not obtain review of the reconsideration decision.
But the second petition for review was enough to obtain review of the Board’s initial order. Although the petition to appeal specified only the reconsideration decision, the petitioner’s intent to seek review of the initial order could be “fairly inferred from the petition for review” and the Board was not prejudiced by the oversight.
Snohomish County v. Surface Transportation Board, 2020 WL 1482397 (D.C. Cir. Mar. 27, 2020), available at the D.C. Circuit and Westlaw.
Quick notes
Last week saw a pair of Fourth Circuit decisions on cumulative-finality. In Gilbert v. ATF, the Fourth Circuit held that a belated Rule 54(b) certification saved a notice of appeal filed after some (but not all) of the plaintiffs’ claims had been resolved. In ALPS Property & Casualty Insurance Co. v. Higgerson, the Fourth Circuit held that the entry of a final judgment saved a notice of appeal filed after an order granting summary judgment.
There were also two decisions involving appeals from dismissals without prejudice. In Quigley v. Sporting Kansas City Soccer Club, the Tenth Circuit heard an appeal from a dismissal without prejudice because the dismissal “expressly and unambiguously dismisse[d]” the entire action. In Elansari v. Altria, the Third Circuit held that a dismissal without prejudice due to a failure to prosecute was final and appealable because it did not give leave to amend and closed the case.
And in Gandy v. Bryson, the Eleventh Circuit applied its “anomalous rule” for intervention appeals to hold that it lacked jurisdiction to review a denial of intervention because the district court correctly denied intervention.
Gilbert v. ATF, 2020 WL 1490726 (4th Cir. Mar. 27, 2020), available at the Fourth Circuit and Westlaw.
ALPS Property & Casualty Insurance Co. v. Higgerson, 2020 WL 1487836 (4th Cir. Mar. 24, 2020), available at the Fourth Circuit and Westlaw.
Quigley v. Sporting Kansas City Soccer Club, 2020 WL 1487658 (10th Cir. Mar. 25, 2020), available at the Tenth Circuit and Westlaw.
Elansari v. Altria, 2020 WL 1487691 (3d Cir. Mar. 25, 2020), available at the Third Circuit and Westlaw.
Gandy v. Bryson, 2020 WL 1487663 (11th Cir. Mar. 25, 2020), available at the Eleventh Circuit and Westlaw.