The Week in Federal Appellate Jurisdiction: March 29–April 4, 2020

Last week, the Advisory Committee on Appellate Rules met and considered (among other things) the proposed amendments to Rule 3(c) and cumulative finality. A split Second Circuit held that immigration’s jurisdiction-stripping provisions applied only when a petitioner was deemed removable due to a covered criminal offense. The Fifth Circuit addressed when reconsideration decisions can restart the clock for taking an arbitration appeal. Plus improper qualified-immunity appeals (including one on the preclusive effect of a state conviction), notices of appeal, and patent-claim-construction appeals.

• The Advisory Committee on Appellate Rules met
• A split Second Circuit held that immigration’s jurisdiction-stripping provisions apply only to petitioners deemed removable for certain criminal convictions
• The Fifth Circuit on restarting the time to take an arbitration appeal
• The Second Circuit dismissed a qualified-immunity appeal concerning the preclusive effect of a state criminal conviction
• The week’s improper qualified-immunity appeals
• Quick notes

The Advisory Committee on Appellate Rules met

The Advisory Committee on Appellate Rules met last Friday (via teleconference). I called in to listen to the proceedings, and there were a couple appellate-jurisdiction matters worth noting.

First, the Committee is going forward with its proposed amendments to Federal Rule of Appellate Procedure 3(c) regarding the order-designation requirement for notices of appeal. The Committee discussed the comments on the proposed rule (including mine, which were rejected), and it sounded as though the Committee made a few minor changes to the amended rule’s language and Committee Note. I didn’t catch what exactly they were. But the core of the proposed amendment—doing away with the practice of limiting the scope of an appeal due to the order designated in the notice—is unchanged.

Second, a subcommittee was formed to examine my proposal on cumulative finality.

The Committee’s agenda book is here. The meeting’s minutes will probably not be available for some time. And the Committee’s next meeting is scheduled for October.

A split Second Circuit held that immigration’s jurisdiction-stripping provisions apply only to petitioners deemed removable for certain criminal convictions

In Manning v. Barr, the Second Circuit held that 8 U.S.C. § 1252(a)(2)(C)’s jurisdiction-stripping provisions do not apply when an immigration petitioner is deemed removable due only to unlawful presence. This was true even if the petitioner could have been ordered removed due to a covered criminal conviction.

The petitioner in Manning had pleaded guilty to second-degree murder. He spent 28 years in prison. All of that time was spent in protective custody, as the petitioner had cooperated in the prosecution of a gang leader who was eventually convicted of 42 counts of murder, assault, kidnapping, and drug offenses. After the petitioner was paroled, the Department of Homeland Security sought to deport him for being “present in the United States without being admitted or paroled.” An immigration judge determined that the petitioner was removable. And the immigration judge denied the petitioner’s request for deferral of removal under the Convention Against Torture. The judge determined that the petitioner was not likely to be tortured upon being deported. The petitioner then appealed to the Second Circuit.

The Second Circuit split on whether it had jurisdiction to review the immigration judge’s conclusion that the petitioner would not be tortured. The courts of appeals have jurisdiction to review “final order[s] of removal” (read: deportation). But 8 U.S.C. § 1252(a)(2)(C) strips those courts of some of that jurisdiction when a petitioner “is removable by reason of having committed a criminal offense” covered by several enumerated statutes. (Another provision, § 1252(a)(2)(D), preserves judicial review of constitutional claims and questions of law, even when petitioners have been convicted of those criminal offenses.) The petitioner in Manning had been convicted of second-degree murder—a covered offense. But he was deemed removable due to being “present in the United States without being admitted or paroled,” not his murder conviction.

The majority in Manning held that the jurisdiction-stripping provision did not apply. It reasoned that § 1252(a)(2)(C)’s text requires that a petitioner be deemed removable due to one of the covered offenses:

A fair reading of “is removable,” when juxtaposed with the first part of the provision, makes clear that it refers back to the “final order or removal” mentioned earlier. The two phrases are not, as the government suggests, separate and unrelated requirements. Put another way, if an order is “final” then the person must have been ordered removed for some reason. And if that person is removable “by reason of having committed a criminal offense” then the order must have been predicated on the person having committed one of the covered criminal offenses.

The majority found support for this reading in the statutory structure. The court noted that only an immigration judge can determine why a petitioner is removable. So only an immigration judge could say that a petitioner was removable due to a covered criminal offense. If the immigration judge had not made that finding, the court of appeals couldn’t do so itself and then apply the jurisdiction-stripping provision. The majority also found support in other circuits’ decisions, its own precedent, notions of due process, the presumption of judicial review in administrative actions, and the “longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.”

Judge Sullivan dissented. He contended that neither the text nor structure of the statute supported the majority’s conclusion. “Reduced to its plain meaning,” Judge Sullivan said, § 1252(a)(2)(C) “states that courts may not review the removal order of any [petitioner] who has been convicted of certain crimes.” The statute requires only that the petitioner be “removable by reason of having committed a [covered] criminal offense . . . , not merely when the order of removal is issued on that basis.” Judge Sullivan also argued that this reading was consistent with § 1252’s overall purpose, which was to expedite deportation proceedings for those who have been convicted of certain offenses. And the statutory structure, Judge Sullivan suggested, also supported his reading of the provision. The immigration laws give the terms “removable” and “removed” distinct meanings; anyone who is removed must be removable, but not everyone who is removable is removed. The majority, Judge Sullivan thought, conflated these terms.

On the merits, the majority concluded that the immigration judge erred in concluding that the petitioner was not likely to be tortured upon being deported.

Manning v. Barr, 2020 WL 1522821 (2d Cir. Mar. 31, 2020), available at the Second Circuit and Westlaw.

The Fifth Circuit on restarting the time to take an arbitration appeal

In Vine v. PLS Financial Services, the Fifth Circuit held that a motion to reconsider a decision refusing to compel arbitration restarted the time to take an arbitration appeal.

Parties normally have 30 days to appeal from the denial of a motion to compel arbitration. The appellant in Vine tried to appeal years after the district court refused to compel arbitration. But its notice to appeal was filed within 30 days of the district court’s decision denying reconsideration of that earlier refusal.

The Fifth Circuit noted that parties generally cannot evade the deadlines for taking interlocutory appeals by seeking reconsideration of earlier decisions. But an exception to that general rule exists when the successive motion involves “changed circumstances, new evidence, or a change in the law.” “The purpose of this rule is to separate ‘manipulative’ litigation tactics that are ‘nothing more than an attempt to circumvent the . . . time restriction applicable to the appeal’ from ‘good faith’ arguments—even if they are ultimately unsuccessful—that changed circumstances should alter the outcome of the motion.” And the appellant in Vine had a good-faith argument that an intervening Texas Supreme Court decision sufficiently changed the law to warrant a renewed motion to compel arbitration. The district court’s order denying reconsideration was thus appealable.

Vine v. PLS Financial Services, 2020 WL 1522438 (5th Cir. Mar. 30, 2020), available at the Fifth Circuit and Westlaw.

The Second Circuit dismissed a qualified-immunity appeal concerning the preclusive effect of a state criminal conviction

In Szabo v. Cascone, the Second Circuit held that it lacked jurisdiction, in a qualified-immunity appeal, to determine the preclusive effect of a state criminal conviction in an excessive force case.

The officer contended that the plaintiff’s guilty plea for assault established that she was resisting arrest, which justified the officer’s use of force. The court noted that denials of qualified immunity are immediately appealable to the extent they turn on a pure question of law. And according to the court, the preclusive effect of the conviction could make the question on appeal a pure question of law:

If the preclusive effect of [the plaintiff]’s plea made it indisputable that [the plaintiff] was resisting when she was pushed into her cell (regardless of [the plaintiff]’s contrary testimony), this appeal would present a pure legal question, and we would have jurisdiction. If the record reveals unresolved factual issues concerning to what charges [the plaintiff] pleaded guilty and what arguments are now foreclosed to her, however, then we would not have jurisdiction.

The parties disputed what issues were before the state court and necessarily decided by the guilty plea. The summary-judgment record did not establish what precise conduct the plaintiff had pleaded guilty to—indeed, the only record of the judgment appeared to contradict both sides’ version of the events. The Second Circuit accordingly held that disputed fact questions precluded jurisdiction over the qualified-immunity appeal.

I’m not sure that courts should be reviewing issue-preclusion issues in qualified-immunity appeals. Jurisdiction in qualified-immunity appeals does not exist over all issues of law. It instead exists primarily (if not solely) to address whether the defendant’s conduct—as alleged or as the district court found supported by the summary-judgment record—amounts to a clearly established violation of federal law. The preclusive effect of state court proceedings has little, if anything, to do with that question.

Szabo v. Cascone, 2020 WL 1528089 (2d Cir. Mar. 31, 2020), available at the Second Circuit and Westlaw.

The week’s improper qualified-immunity appeals

Szabo wasn’t the only improper qualified-immunity appeal last week. Several other defendants tried to appeal from the denial of qualified immunity but, on appeal, disputed only the facts that the district court took as true in denying immunity. That is improper.

In Banas v. Hagbom, the Sixth Circuit dismissed a qualified-immunity appeal involving an excessive-force claim because the officer argued only factual questions on appeal. The plaintiff claimed—and the district court took as true in denying immunity—that he was not resisting when an officer kneed and Tased him and argued that the officer’s sitting on the plaintiff prevented the plaintiff from complying with the officer’s orders. On appeal, the officer ignored the plaintiff’s version of the facts and tried “to convince [the court of appeals] of [the officer’s] set of facts. He ha[d]n’t conceded [the plaintiff]’s allegations at all.”

In Nelson v. Thurston County, the Ninth Circuit rejected one defendant’s attempted qualified-immunity appeal because that defendant disputed the events of a shooting. The district court had denied qualified immunity after weighing inconsistent testimony about the shooting “as well as reports that cast doubt on [the defendant]’s version of events.” Because the defendant “most forcefully contest[ed] whether his alternative account of the shooting should be accepted as true,” his appeal was improper. But the court appeared to affirm the denial of qualified immunity rather than dismiss the appeal as improper.

And in Ellington v. Whiting, the Second Circuit held that disputed fact issues about whether a plaintiff complained to officers or consented to foregoing medical treatment precluded appellate jurisdiction over the denial of qualified immunity.

Banas v. Hagbom, 2020 WL 1550923 (6th Cir. Apr. 1, 2020), available at the Sixth Circuit and Westlaw.

Nelson v. Thurston County, 2020 WL 1656445 (9th Cir. Apr. 3, 2020), available at the Ninth Circuit and Westlaw.

Ellington v. Whiting, 2020 WL 1528091 (2d Cir. Mar. 31, 2020), available at the Second Circuit and Westlaw.

Quick notes

In Outward v. Eaton Corp. Disability Plan, the Sixth Circuit held that a notice of appeal designating a “final judgment” was sufficient to appeal an interlocutory discovery ruling. The “final judgment” that the appellant designated decided only cross-motions for judgment on an administrative record. But no one was surprised or prejudiced by including an interlocutory discovery ruling within the scope of the appeal.

Similarly, in Pierre v. Padgett, the Eleventh Circuit held that a notice of appeal designating the district court’s final judgment gave the court jurisdiction to review all prior, interlocutory rulings.

And in Enerpol, LLC v. Schlumberger Technology Corp., the Federal Circuit held that a district court sufficiently explained its claim-construction decision, thereby precluding a finding of patent infringement and giving the Federal Circuit jurisdiction to review the decision.

Outward v. Eaton Corp. Disability Plan, 2020 WL 1514852 (6th Cir. Mar. 30, 2020), available at the Sixth Circuit and Westlaw.

Pierre v. Padgett, 2020 WL 1650656 (11th Cir. Apr. 3, 2020), available at the Eleventh Circuit and Westlaw.

Enerpol, LLC v. Schlumberger Technology Corp., 2020 WL 1527778 (Fed. Cir. Mar. 31, 2020), available at the Federal Circuit and Westlaw.