Weekly Roundup

The Week in Federal Appellate Jurisdiction: October 4–10, 2020

A decision on whether a district court modified an injunction, and a denial of cert on the scope of qualified-immunity appeals.

October 13, 2020

By Bryan Lammon

There’s little to report from last week.

The Ninth Circuit on Modified Injunctions

The only decision of note was Flores v. Barr, in which the Ninth Circuit discussed its jurisdiction to hear an appeal from a district court’s ongoing supervision of a consent decree.

Simplifying a bit, Flores involved an immigration-related consent decree that requires (among other things) that the government transfer apprehended minors to licensed programs within three days. After an independent monitor reported that the government was using hotels to house apprehended minors, the district court ordered the government to stop.

The government then appealed. It also asked the Ninth Circuit to stay the district court’s order. And in seeking the stay, the government argued that appellate jurisdiction was proper under 28 U.S.C. § 1292(a)(1) because the district court had effectively modified an injunction.

The Ninth Circuit disagreed. It determined that the district court’s order required the government to take actions that were already required of it under the consent decree. With no modification of an injunction, there was no jurisdiction for the government’s appeal. So a stay was not warranted; the government was unlikely to succeed in its appeal.

Flores v. Barr, 2020 WL 5951115 (9th Cir. Oct. 4, 2020), available at the Ninth Circuit and Westlaw.

Cert Denied in Hinson v. Bias

Also of note, the Supreme Court denied cert in Hinson v. Bias. The petition contended that the Eleventh Circuit exceeded its limited jurisdiction in a qualified-immunity appeal and made its own assessment of the summary-judgment record. Given the frequency with which defendants flout those jurisdictional limits, I was hoping the Court would reiterate them.

recent posts

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The Ninth Circuit held that a discovery order under 28 U.S.C. § 1782 was not appealable until the district court resolved any objections to the discovery request.
No Perlman Appeals When the Same Issues Could Be Raised via Contempt
The Eleventh Circuit held that a privilege claimant cannot take a Perlman appeal when the claimant could have raised the same issues via its own contempt appeal.
A Rule 4 Conflict: The Prison-Mailbox Rule v. the Mistaken-Filing Rule
The Fifth Circuit held that when an imprisoned appellant mistakenly mails a notice of appeal to the court of appeals, the notice is deemed filed when deposited in the prison mail system.
The Month in Federal Appellate Jurisdiction: September 2024
Another split on pure Bivens appeals, no equitable exceptions for Rule 4(a)(4), another failure to apply the Rule 3(c) amendments, and more.

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Notices of appeal and post-notice decisions, addressing a facial challenge in an injunction appeal involving an as-applied challenge, and TROs that effectively deny injunctive relief.
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