The Week in Federal Appellate Jurisdiction: October 31–November 6, 2021

Last week saw two cert denials in cases I’ve been following, one on the jurisdictionality of immigration exhaustion and another on jurisdiction to review FISA Court orders. In the courts of appeals, the Sixth Circuit explained that it can review jurisdictional dismissals—despite those dismissals’ being without prejudice—because the district court is finished with the case. The Fifth Circuit heard an appeal from a decision that ordered discovery despite an unresolved claim of FSIA immunity, as the discovery order effectively denied immunity. And the Second Circuit explained that parties cannot voluntarily dismiss claims and then appeal interlocutory decisions related to those claims.

• Cert Denied on Jurisdictionality of Immigration Exhaustion
• Cert Denied on Jurisdiction to Review FISA Access Orders
• The Sixth Circuit on Jurisdictional Dismissals and ERISA “Remands”
• The Fifth Circuit on Effective Denials of Immunity
• The Second Circuit on Manufactured Finality

Cert Denied on Jurisdictionality of Immigration Exhaustion

The Supreme Court denied cert in Omwega v. Garland. The case asked if immigration’s exhaustion requirement was jurisdictional.

An immigration petitioner normally must exhaust all arguments before the Board of Immigration Appeals before making those arguments in the courts of appeals. Most appellate courts deem this exhaustion requirement jurisdictional. That means the courts of appeals cannot excuse or create equitable exceptions to the exhaustion requirement. The government cannot forfeit or waive the failure-to-exhaust defense. And the court of appeals must raise the exhaustion issue on its own initiative.

But not everyone agrees about the jurisdictionality of exhaustion. The Seventh Circuit has held that exhaustion as non-jurisdictional. The Second Circuit agrees. In a recent concurring opinion, Judge Murphy of the Sixth Circuit questioned the jurisdictional conclusion, as he saw no indication in the text of the relevant statute (8 U.S.C. § 1252(d)(1)) that Congress wanted immigration’s exhaustion requirement to be jurisdictional. And a recent Tenth Circuit decision enforced that circuit’s law on the matter “with some reluctance,” doubting its caselaw holding that exhaustion is jurisdictional.

Cert Denied on Jurisdiction to Review FISA Access Orders

The Supreme Court also denied cert in American Civil Liberties Union v. United States. The case asked (among other questions) if the Foreign Intelligence Surveillance Court of Review has jurisdiction to review the Foreign Intelligence Surveillance Court’s denial of access to its unredacted opinions.

The underlying dispute concerned the petitioner’s claim of a qualified First Amendment right to access the Surveillance Court’s significant opinions. In addition to asking whether such a right exists, the petition raised jurisdictional issues concerning both the Surveillance Court and the Court of Review. The Court of Review held that it lacked jurisdiction to review the Surveillance Court’s denial of access to its opinions. I wrote about that decision in a previous weekly roundup; see that post for a detailed discussion of the appellate-jurisdiction issues.

The Sixth Circuit on Jurisdictional Dismissals and ERISA “Remands”

In Card v. Principal Life Insurance Co., the Sixth Circuit addressed the procedures for “remands” to ERISA-plan administrators (and Judge Murphy concurred to question the authority for “remanding” a dispute to one of the parties). Before doing so, the court rejected the plan administrator’s argument that the district court’s dismissal for lack of jurisdiction was not a final, appealable order.

Simplifying a bit, Card involved a dispute over disability benefits. In a prior appeal, the Sixth Circuit had determined “that the administrator of [the plaintiff’s] disability plan arbitrarily denied her benefits” and remanded the dispute to the administrator for further proceedings. After the administrator had taken too long to reconsider its benefits decision, the plaintiff again sought relief in the district court. But the district court said that it lacked jurisdiction. As the district court saw things, the Sixth Circuit had remanded the dispute to the disability-benefits plan, which meant that the dispute was no longer in the district court. The plaintiff appealed. The plan administrator responded that the Sixth Circuit lacked jurisdiction.

The Sixth Circuit rejected the plan administrator’s jurisdictional argument. A without-prejudice dismissal, the court explained, is final and appealable so long as it “leave[s] nothing for the district court to do in the specific case.” Granted, a plaintiff might be able to refile its suit in a different court—one with jurisdiction. But if the without-prejudice dismissal marks the district court’s being done with a case, that dismissal is final.

In Card, the district court was finished with the case. The district court thought that the Sixth Circuit’s decision in the first appeal had deprived the district court of any further jurisdiction over the dispute. So the district court’s decision was final and appealable.

Card v. Principal Life Insurance Co., 2021 WL 5074692 (6th Cir. Nov. 2, 2021), available at the Sixth Circuit and Westlaw.

The Fifth Circuit on Effective Denials of Immunity

In Haiti v. BB Energy USA, the Fifth Circuit determined that it had jurisdiction to review a discovery order that effectively denied a request for immunity under the Foreign Sovereign Immunities Act.

Denials of immunity defenses (like that provided by the Act) are often immediately appealable because these defenses shield defendants from the normal burdens and inconveniences of litigation, including discovery. So when a district court refuses to decide an immunity request and orders that discovery take place, the Fifth Circuit treats that refusal as an effective denial of immunity. That might be what happened in Haiti, though it was not clear whether the ordered discovery was general or in aid of ruling on the immunity defense. Although general discovery should not proceed without first deciding immunity, discovery targeted towards resolving an immunity defense is allowed. The Fifth Circuit ultimately assumed that the district court meant to allow only limited, targeted discovery and ordered the district court to proceed accordingly.

Haiti v. BB Energy USA, 2021 WL 5143757 (5th Cir. Nov. 4, 2021), available at the Fifth Circuit and Westlaw.

The Second Circuit on Manufactured Finality

In Busher v. Barry, the Second Circuit explained that plaintiffs cannot appeal claims that they voluntarily dismissed.

Busher was a shareholder derivative suit in which the district court initially dismissed most of the plaintiffs’ claims. The district court denied the plaintiffs’ request for summary judgment on their remaining claims. Rather than litigate those claims to a final judgment, the plaintiffs voluntarily dismissed them and then sought to appeal (among other things) the denial of summary judgment.

But the plaintiffs could not appeal an interlocutory decision on claims they voluntarily dismissed. Granted, litigants who lose on some claims can voluntarily dismiss the rest and then try to obtain review of the claims on which they lost. But that tactic normally allows review of only the claims on which the litigants lost. It cannot be used to obtain review of interlocutory orders bearing on the voluntarily dismissed claims. (There is an exception to this rule when the interlocutory order necessarily resolves the claim, such that the voluntary dismissal is pro forma.)

Busher v. Barry, 2021 WL 5071871 (2d Cir. Nov. 2, 2021), available at CourtListener and Westlaw.