The Week in Federal Appellate Jurisdiction: October 23–29, 2022

Quick roundup this week, featuring covert mandamus, the scope of immigration appeals, relating forward premature notices of appeal, an amicus appeal, and more.

• The Fifth Circuit Denied Mandamus While Telling the District Court What to Do
• The Ninth Circuit on the Scope of Review for Expedited Orders of Removal
• The First Circuit on Relating Forward Premature Notices of Appeal
• The Tenth Circuit Said that an Amicus Could Not Appeal a Judgment
• The Sixth Circuit Dismissed a Fact-Based Qualified-Immunity Appeal
• The First Circuit on Incorporation & Merger in Bankruptcy Appeals

The Fifth Circuit Denied Mandamus While Telling the District Court What to Do

In In re Levy, the Fifth Circuit denied a mandamus petition while telling the district court what to do.

The case involved the propriety of the removal of an action from state court. When the district court refused to remand the case, the plaintiff petitioned for mandamus. The Fifth Circuit explained that the district court did not have diversity jurisdiction and should have remanded the action. But the Fifth Circuit ultimately denied the mandamus petition while telling the district court what to do:

Because the only basis for removal in this case was diversity jurisdiction, and complete diversity is lacking, the district court must dismiss for want of jurisdiction. Confident that the court will carry out this directive, we DENY the petition for writ of mandamus without prejudice.

In a footnote, the court explained that it denied the mandamus petition because it was “confident that the district court will reconsider its ruling in light of th[e] opinion.”

In re Levy, 2022 WL 14732482 (5th Cir. Oct. 26, 2022), available at the Fifth Circuit and Westlaw

The Ninth Circuit on the Scope of Review for Expedited Orders of Removal

In Mendoza-Linares v. Garland, a split Ninth Circuit held that it could not review constitutional challenges to expedited removal orders. The majority opinion focused largely on the text of 28 U.S.C. § 1252(a)(2). Judge Graber’s dissent emphasized the requirement of providing a forum for an immigration petitioner’s constitutional claims. There’s a lot to both opinions—more than I have time to talk about today—and they’re worth reading for anyone interested in this area.

Mendoza-Linares v. Garland, 2022 WL 13743529 (9th Cir. Oct. 24, 2022), available at the Ninth Circuit and Westlaw

The First Circuit on Relating Forward Premature Notices of Appeal

In Triangle Cayman Asset Company v. LG and AC, Corp., the First Circuit held that a premature notice of appeal related forward to the subsequent final judgment.

The would-be appellants filed their notice of appeal after the district court resolved all but one of the parties’ claims. The district court later resolved the one outstanding claim. But the appellants did not file a new notice of appeal or amend their old one.

The First Circuit nevertheless held that the premature notice was effective. The explanation was interesting. Most courts say that a premature notice relates forward to an eventual judgment if the appealed order would have been final if it could have been the subject of a partial judgment under Federal Rule of Civil Procedure 54(b). But the First Circuit said only that the appealed order “must be encapsulated by the final judgment, such that an appellant’s blunder in prematurely filing the notice of appeal is understandable for little would be accomplished by prohibiting the court of appeals from reaching the merits of such an appeal.” (Cleaned up.)

Triangle Cayman Asset Company v. LG and AC, Corp., 2022 WL 13785944 (1st Cir. Oct. 24, 2022), available at the First Circuit and Westlaw

The Tenth Circuit Said that an Amicus Could Not Appeal a Judgment

In Dabbs v. Shelter Mutual Insurance Co., the Tenth Circuit dismissed an appeal filed by a party that served as an amicus in the district court. Non-parties can sometimes appeal when they have a unique interest at stake and actively participate in an action. But the non-party in Dabbs was a normal amicus—he was simply a creditor of the one of the parties and had no unique interest.

Dabbs v. Shelter Mutual Insurance Co., 2022 WL 15044594 (10th Cir. Oct. 27, 2022), available at the Tenth Circuit and Westlaw

The Sixth Circuit Dismissed a Fact-Based Qualified-Immunity Appeal

In Pheap v. City of Knoxville, the Sixth Circuit dismissed an appeal from the denial of qualified immunity because the defendant challenged the factual basis for the immunity denial.

The case involved a fatal police shooting, and the district court determined that genuine fact issues existed as to the nature of the struggle between the decedent and police officer and whether the decedent was fleeing when shot. When the district court denied qualified immunity, the officer appealed. And in that appeal, he argued that the a video of the shooting blatantly contradicted the plaintiff’s version of events. The Sixth Circuit rejected this argument—the video did “not paint a clear picture of what happened during or immediately preceding the shooting.” Because the blatant-contradiction exception didn’t apply, and because the officer did not otherwise base any arguments on the plaintiff’s version of events, the Sixth Circuit lacked jurisdiction over the appeal.

Thanks to Michael Solimine for sending this case my way.

Pheap v. City of Knoxville, 2022 WL 15041989 (6th Cir. Oct. 27, 2022), available at the Sixth Circuit and Westlaw

The First Circuit on Incorporation & Merger in Bankruptcy Appeals

In In re Financial Oversight and Management Board for Puerto Rico, the First Circuit dismissed as untimely an appeal from an order in the proceedings stemming from the Puerto Rico Oversight, Management, and Economic Stability Act.

Simplifying a fair bit, the court overseeing those proceedings had entered an order deeming certain provisions of Puerto Rico law invalid. Later, the court entered a final confirmation order. Only then did the appellants challenge the order invalidating parts of Puerto Rico law. The First Circuit explained that this was too late—the time to appeal that invalidation order began running at its entry. Waiting until after the final confirmation order rendered the appeal untimely. Further, the final confirmation order did not incorporate the prior order. And given that the invalidation order was entered in a separate proceeding for bankruptcy purposes, that order did not merge into the final confirmation order.

In re Financial Oversight and Management Board for Puerto Rico, 2022 WL 15254099 (1st Cir. Oct. 27, 2022), available at the First Circuit and Westlaw