The Week in Federal Appellate Jurisdiction: May 1–7, 2022

Last week I learned that the Tenth Circuit doesn’t review pre-transfer orders in an appeal from the final judgment in a transferred action. That might create some issues for the appellants in a case that the Eleventh Circuit dismissed. Last week also saw interesting discussions of whether district courts must stay (rather than dismiss) cases after ordering arbitration, finality for post-judgment recusal orders, and whether denials of asylum in Visa Waiver Program cases are final orders of removal. Plus the en banc Fifth Circuit on the scope of a § 1292(b) appeal and more.

• The Eleventh Circuit on Appeals After Partial Dismissals, Partial Transfers
• Judge Jacobs Supports the Must-Stay Rule for Arbitration
• The Eighth Circuit on Post-Judgment Appeals From Recusal Orders
• The Fourth Circuit Reviewed a Denial of Asylum in a Visa Waiver Program Case
• The En Banc Fifth Circuit Split on the Scope of a § 1292(b) Certified Appeal
• Quick Notes

The Eleventh Circuit on Appeals After Partial Dismissals, Partial Transfers

In Jenkins v. Prime Insurance Co., the Eleventh Circuit dismissed an appeal from a decision dismissing some of the claims in an action and transferring the rest to another district court.

The case started in the Northern District of Georgia against four defendants. The district court dismissed the plaintiffs’ claims against two defendants. It then transferred the remaining claims to the District of Utah. The plaintiffs then tried to appeal the dismissal of their claims against the first two defendants to the Eleventh Circuit.

The Eleventh Circuit held that it lacked appellate jurisdiction. Because the claims against two defendants were not yet resolved, there was no final, appealable decision.

The court recognized that the Tenth Circuit’s caselaw might create some difficulty for the plaintiffs. Most courts of appeals will review pre-transfer orders in an appeal from the final judgment in a transferred action. But the Tenth Circuit doesn’t. So the plaintiffs in Jenkins are now at risk of losing appellate review of the dismissal order.

The Eleventh Circuit suggested some possible solutions: seeking reconsideration or a partial judgment under Federal Rule of Civil Procedure 54(b) in the Utah district court. The court also noted that the defendants had expressly waived any argument challenging the Utah district court’s or the Tenth Circuit’s authority to review the dismissal. But given the jurisdictional nature of the Tenth Circuit’s rule, it’s not clear that this waiver will do any good.

Thanks to Howard Bashman for sending me this case.

Jenkins v. Prime Insurance Co., 2022 WL 1397416 (10th Cir. May 4, 2022), available at the Eleventh Circuit and Westlaw.

Judge Jacobs Supports the Must-Stay Rule for Arbitration

In Bissonnette v. LePage Bakeries Park St., LLC, Judge Jacobs concurred to contend that a district court must stay—not dismiss—an action after ordering arbitration. A stay is not immediately appealable, while a dismissal is. The Federal Arbitration Act’s text and purpose thus require stays. For more on this issue, see my post Lamps Plus Never Should Have Gotten This Far.

Bissonnette v. LePage Bakeries Park St., LLC, 2022 WL 1416703 (2d Cir. May 5, 2022), available at CourtListener and Westlaw.

The Eighth Circuit on Post-Judgment Appeals From Recusal Orders

In Skender v. Eden Isle Corp., the Eighth Circuit held that the time to appeal the denial of a post-judgment recusal decision ran from the post-judgment fees decision for which recusal was sought.

The plaintiff in Skender simultaneously filed motions to recuse the district court judge and for attorney fees and costs. The district court initially denied only the recusal motion. A little more than 30 days later, the district court awarded one dollar in fees. The plaintiff filed a notice of appeal that same day.

The Eighth Circuit determined that the appeal was timely as to both the recusal and fees decisions. The court noted that it must take an especially practical approach to finality when it comes to post-judgment decisions. Applying that approach, the court concluded that the recusal decision was not final until the district court’s fee decision. The plaintiff sought to recuse the district court from making the fees decision. The two decisions were thus “tethered” together. And an immediate appeal from the recusal decision might have delayed resolution of the fee issue.

The court also noted that the same won’t be true for all post-judgment recusal decisions; when a recusal motion does not “not identify some other motion or proceedings for which recusal is sought and that would soon be resolved,” “there may be no other court order that would provide a worthwhile or sensible opportunity to review the court’s recusal decision.”

Skender v. Eden Isle Corp., 2022 WL 1395442 (8th Cir. May 4, 2022), available at the Eighth Circuit and Westlaw.

The Fourth Circuit Reviewed a Denial of Asylum in a Visa Waiver Program Case

In Salomao v. Garland, the Fourth Circuit joined several other circuits in holding that the denial of a asylum in a Visa Waiver Program case is a final order of removal, such that the courts of appeals have jurisdiction to review the denial. 28 U.S.C. § 1252(a)(1) gives the courts of appeals jurisdiction to review a “final order of removal.” But the denial of asylum in Visa Waiver Program cases does not occur in the context of deportation proceedings. Several circuits have nevertheless held that they have jurisdiction to review those orders. The Fourth Circuit agreed, noting that these orders are the “functional equivalent” of a removal order.

Salomao v. Garland, 2022 WL 1301773 (4th Cir. May. 2, 2022), available at the Fourth Circuit and Westlaw.

The En Banc Fifth Circuit Split on the Scope of a § 1292(b) Certified Appeal

In Consumer Financial Protection Bureau v. All American Check Cashing, Inc., the en banc Fifth Circuit discussed the scope of a 28 U.S.C. § 1292(b) certified appeal.

The case concerned the constitutionality of the Consumer Financial Protection Bureau. The district court rejected the constitutional challenge and then certified its decision under § 1292(b). Sometime thereafter, the Supreme Court held that the Bureau’s single-director structure violated the constitution. A majority of the Fifth Circuit accordingly vacated the district court’s decision and remanded for further proceedings.

Concurring, several members of the Fifth Circuit wanted to address another constitutional challenge to the Bureau’s funding. And they argued that this issue was within the scope of appeal, as § 1292(b) permits appeals from the entire order, not just the issue that the district court thought warranted an appeal.

Consumer Financial Protection Bureau v. All American Check Cashing, Inc., 2022 WL 1302488 (5th Cir. May 2, 2022) (en banc), available at the Fifth Circuit and Westlaw.

Quick Notes

Jurisdiction over immigration appeals is complicated. The Fifth Circuit’s decision in Carranza-Albayero v. Garland provides a nice explanation of the jurisdiction to review in-absentia deportation orders.

Carranza-Albayero v. Garland, 2022 WL 1402051 (5th Cir. May 4, 2022), available at the Fifth Circuit and Westlaw.

And in Halo Electronics, Inc. v. Bel Fuse, Inc., the Federal Circuit dismissed an appeal due to an unresolved issue of prejudgment interest. This was the second time that the Federal Circuit had dismissed an appeal in this case because the district court had not addressed prejudgment interest. The first came in 2017, after which the district court entered another judgment that did not not address the issue. The plaintiff then waited three years to file a motion seeking prejudgment interest. The district court denied that motion, holding that judgment had been entered in 2017 and the motion was untimely. The plaintiff then appealed again. And, again, the Federal Circuit dismissed the appeal due to the lack of a final decision.

Halo Electronics, Inc. v. Bel Fuse, Inc., 2022 WL 1435382 (Fed. Cir. May 6, 2022), available at the Federal Circuit and Westlaw.