The Week in Federal Appellate Jurisdiction: September 25–October 1, 2022

There’s is a lot to talk about from last week, including two opinions that touch on ongoing circuit splits (one involving arbitration appeals, the other involving immigration appeals). We also saw another Federal Circuit mandamus decision involving the refusal to transfer a case out of the Western District of Texas. Plus a bunch of other decisions on a variety of topics.

• Judge Jacobs on Staying or Dismissing Actions After Ordering Arbitration
• The Ninth Circuit & the Split on Reviewing Hardship Determinations in Immigration Appeals
• More Mandamus at the Federal Circuit
• The Seventh Circuit on Third-Party Defendants’ Appellate Standing in a Rule 54(b) Appeal
• The Fifth Circuit & Reinstatement Orders in Immigration Appeals
• The Eleventh Circuit on Remand Appeals & Untimely Motions
• The D.C. Circuit on Reviewing SEC Whistleblower Awards
• The Ninth Circuit on the Deadline for CVRA Mandamus Petitions
• The Eleventh Circuit on Fleeting Finality

Judge Jacobs on Staying or Dismissing Actions After Ordering Arbitration

In Bissonnette v. LePage Bakeries Park St., LLC, Judge Dennis wrote a separate opinion to argue that district courts must stay actions—not dismiss them—after ordering arbitration. The stay-or-dismiss decision affects appellate jurisdiction. An order directing arbitration followed by a stay is generally not immediately appealable. An order followed by a dismissal is. Judge Jacobs contended that a stay is at the very least prudent. And it’s “arguably compelled.”

To read more about this stay-or-dismiss issue, see my post Lamps Plus Never Should Have Gotten This Far.

Bissonnette v. LePage Bakeries Park St., LLC, 2022 WL 4457998 (2d Cir. Sep. 26, 2022), available at CourtListener and Westlaw

The Ninth Circuit & the Split on Reviewing Hardship Determinations in Immigration Appeals

In De La Rosa-Rodriguez v. Garland, the Ninth Circuit avoided weighing in on the circuit split over jurisdiction to review of hardship determinations in immigration appeals. The opinion has a good discussion of the current state of the circuits. You can read more about this issue in my post Appealing Hardship Determinations in Immigration Cases

De La Rosa-Rodriguez v. Garland, 2022 WL 4477330 (9th Cir. Sep. 27, 2022), available at the Ninth Circuit and Westlaw

More Mandamus at the Federal Circuit

In In re Monolithic Power Systems, Inc., a divided Federal Circuit denied a mandamus petition that sought to transfer a case from the Western District of Texas. The Federal Circuit has recently received several mandamus petitions seeking transfers out of that court. For more on this issue, check out Dennis Crouch’s post on Monolithic Power Systems at Patently-O and onas Anderson, Paul Gugliuzza, and Jason Rantanen’s forthcoming paper on Federal Circuit mandamus.

In re Monolithic Power Systems, Inc., 2022 WL 4587861 (Fed. Cir. Sep. 30, 2022), available at the Federal Circuit and Westlaw

The Seventh Circuit on Third-Party Defendants’ Appellate Standing in a Rule 54(b) Appeal

In Accident Fund Insurance Co. of America v. Custom Mechanical Construction, Inc., the Seventh Circuit held that third-party defendants could appeal from a Rule 54(b) partial judgment to which the third-party defendants were not bound.

The case involved an insurance coverage dispute. The district court granted summary judgment to the insurance company, entering a declaratory judgment that the policy at issue did not cover the insured’s accident. But the district court did not resolve third-party claims that the insured had brought against its insurance agent. The district court then entered a partial judgment on the summary-judgment decision under Federal Rule of Civil Procedure 54(b). The insured and third-party defendants appealed.

The Seventh Circuit held that the third-party defendants had standing to appeal. Granted, they were not bound by the district court’s summary-judgment order; that order decided claims between only the insurance company and insured. But the order injured the third-party defendants, as their liability turned entirely on the insured’s liability. The third-party defendants thus had an interest in that judgment. Further, the parties to that judgment might not fully protect the third-parties’ interests. And allowing the third parties to participate in the appeal would not interfere with the court’s decisionmaking.

Accident Fund Insurance Co. of America v. Custom Mechanical Construction, Inc., 2022 WL 4481487 (7th Cir. Sep. 27, 2022), available at the Seventh Circuit and Westlaw

The Fifth Circuit & Reinstatement Orders in Immigration Appeals

In Ruiz-Perez v. Garland, the Fifth Circuit noted that its caselaw on appealing reinstated removal orders might require re-examination. The Fifth Circuit has held that it can review reinstatement orders. But the Ruiz-Perez panel thought that recent Supreme Court decisions on what constitutes a “final order of removal” might call that holding into question. The Ruiz-Perez court did not need to tackle this question; the petitioner did not challenge her reinstatement order. But the Fifth Circuit wanted to flag the issue for future litigants.

Ruiz-Perez v. Garland, 2022 WL 4590593 (5th Cir. Sep. 30, 2022), available at the Fifth Circuit and Westlaw

The Eleventh Circuit on Remand Appeals & Untimely Motions

In Championship Property LLC v. Coan, the Eleventh Circuit reviewed an order remanding an action to state court, as that order granted an untimely remand motion. Although 28 U.S.C. § 1447(d) appears to generally bar appellate review of remand orders, that bar applies only to remands authorized under § 1447(c): those for a lack of subject-matter jurisdiction or for any other defect raised within 30 days of removal. The remand in Championship Property was due to a defect in removal; the defendants who removed the case were not entitled to remove it. But the motion seeking the remand was untimely—filed almost two years after removal. So the Eleventh Circuit could review the remand.

Championship Property LLC v. Coan, 2022 WL 4455208 (11th Cir. Sep. 26, 2022), available at the Eleventh Circuit and Westlaw

The D.C. Circuit on Reviewing SEC Whistleblower Awards

In Johnston v. Securities and Exchange Commission, the D.C. Circuit explained its limited jurisdiction to review whistleblower awards from the Securities and Exchange Commission. The statute authorizing review (15 U.S.C. § 78u-6(f)) provides that “[a]ny [award] determination, except the determination of the amount of an award if the award was made in accordance with subsection (b), may be appealed to the appropriate court of appeals.” So any argument that might affect the amount of an award was beyond the court’s jurisdiction.

Johnston v. Securities and Exchange Commission, 2022 WL 4390865 (D.C. Cir. Sep. 23, 2022), available at the D.C. Circuit and Westlaw

The Ninth Circuit on the Deadline for CVRA Mandamus Petitions

In In re Doe, the Ninth Circuit held that the 72-hour deadline for courts to decide a mandamus petition under the Crime Victims’ Rights Act is not jurisdictional.

The Act gives crime victims a right to restitution. It also says that those who are denied restitution can obtain appellate review via a writ of mandamus. And it imposes a 72-hour deadline for the court of appeals to decide any petition. The parties in Doe agreed to waive the 72-hour deadline; they preferred that the appeal proceed at a normal pace.

The Ninth Circuit held that they could do so. The deadline is not jurisdictional. And with the parties’ consent, a court of appeals can extend that deadline.

In re Doe, 2022 WL 4459845 (9th Cir. Sep. 26, 2022), available at the Ninth Circuit and Westlaw

The Eleventh Circuit on Fleeting Finality

In IOU Central, Inc. v. Premier Metals Recovery LLC the Eleventh Circuit held that a district court order—though once final—was no longer final once the district reconsidered that order and reinstated the claims against two defendants.

IOU Central, Inc. v. Premier Metals Recovery LLC, 2022 WL 4484411 (11th Cir. Sep. 27, 2022), available at the Eleventh Circuit and Westlaw