The Week in Federal Appellate Jurisdiction: September 26–October 2, 2021

Last week saw two appellate-jurisdiction decisions of note. The First Circuit reviewed an abstention-based remand. In the course of doing so, the court addressed its power to order a district court to retrieve a remanded case from state court. And the Ninth Circuit dismissed a qualified-immunity appeal insofar as the defendant challenged causation—a factual issue over which the court of appeals lacked jurisdiction.

In Supreme Court developments, the Court granted cert in a case that asks if the time for filing a petition for review in the Tax Court is jurisdictional. And a new cert petition asks if the courts of appeals can review remand orders when the plaintiff moved to remand within 30 days of the notice of removal but raised a procedural defect after those 30 days had passed.

• The First Circuit on Reviewing—and Reversing—Abstention-Based Remands
• The Ninth Circuit Dismissed an Interlocutory Challenge to Causation in a Qualified-Immunity Appeal
• Cert Granted on the Jurisdictionality of the Time for Filing Tax Court Petitions for Review
• New Cert Petition on Appellate Jurisdiction & the Timeliness of Remand Motions

The First Circuit on Reviewing—and Reversing—Abstention-Based Remands

In Forty Six Hundred LLC v. Cadence Education, LLC, the First Circuit reviewed an abstention-based remand order, even though the district court had executed the remand.

The case involved eviction proceedings that the defendant had removed from Massachusetts state court on diversity grounds. At the plaintiff’s request, the district court abstained under Burford. The defendant appealed to the First Circuit. But before that appeal could be heard, the district court executed the remand order and returned the case to state court.

The First Circuit concluded that abstention was improper. The court of appeals also determined that the executed remand did not affect its appellate jurisdiction. Defendants have a right to appeal from abstention-based remands. District courts cannot nullify that right by returning actions to state court before appellate review has run its course. So the First Circuit could order the district court to retrieve the case from state court.

Forty Six Hundred LLC v. Cadence Education, LLC, 2021 WL 4472684 (1st Cir. Sep. 30, 2021), available at the First Circuit and Westlaw.

The Ninth Circuit Dismissed an Interlocutory Challenge to Causation in a Qualified-Immunity Appeal

In Ballou v. McElvain, the Ninth Circuit said that it lacked jurisdiction to address causation in a qualified-immunity appeal.

Ballou involved (among other claims) a police officer’s First Amendment-retaliation claim against her police chief. When the chief sought qualified immunity, the district court determined that a reasonable jury could find that the plaintiff’s First Amendment-protected activity—her opposition to sex discrimination in the police department—caused the police chief to not promote the plaintiff. The district court accordingly denied immunity on this claim. The chief then appealed. And in that appeal, he argued that the plaintiff had not shown causation.

The Ninth Circuit determined that it lacked appellate jurisdiction over this argument. Causation is a factual issue. And with rare and narrow exceptions, the courts of appeals lack jurisdiction to review the genuineness of fact issues in an appeal from the denial of qualified immunity at summary judgment.

Ballou v. McElvain, 2021 WL 4436213 (9th Cir. Sep. 28, 2021), available at the Ninth Circuit and Westlaw.

Cert Granted on the Jurisdictionality of the Time for Filing Tax Court Petitions for Review

The Supreme Court granted cert in Bochler, P.C. v. Commissioner of Internal Revenue. The case asks if 26 U.S.C. § 6330(d)(1)—which imposes a 30-day deadline for filing petitions for review in the Tax Court from collection proceedings—is jurisdictional. The case is shaping up to be the next entry in the Supreme Court’s efforts to separate jurisdictional rules from claims-processing ones.

For more on the jurisdictionality of § 6330(d)(1) (and other deadlines in the tax code), see Bryan Camp’s article New Thinking About Jurisdictional Time Periods in the Tax Code.

Bochler, P.C. v. Commissioner of Internal Revenue, No. 20-1472, docket available at the Supreme Court.

New Cert Petition on Appellate Jurisdiction & the Timeliness of Remand Motions

A new cert petition asks if a court of appeals can review a remand order when the plaintiff sought remand within 30 days of a notice of removal but raised a procedural defect only after those 30 days had passed.

28 U.S.C. § 1447(d) says that the courts of appeals lack jurisdiction—“by appeal or otherwise”—to review remand orders. The Supreme Court has held, however, that this bar applies only to remands authorized by § 1447(c): remands (1) due to a lack of federal jurisdiction or (2) on a timely motion pointing out a defect other than a lack of subject-matter jurisdiction, such as a procedural defect in removal.

Occasionally parties will move to remand within 30 days of a notice of removal, arguing one ground for remand (such as a lack of subject-matter jurisdiction), and only later raise a procedural defect in a reply brief in support of the remand motion. The courts of appeals have split on whether this counts as a timely motion pointing out a procedural defect. In the case from which the cert petition arises—Shipley v. Helping Hands Therapy—the Eleventh Circuit held that it doesn’t. According to the Eleventh Circuit, a movant must raise the procedural defect within 30 days of removal. The Ninth Circuit agrees: “the critical date is not when a motion to remand is filed, but when the moving party asserts a procedural defect as a basis for remand.” The Fifth Circuit, on the other hand, looks only to whether the remand motion was timely: “Section 1447(c)’s 30-day requirement governs the timeliness of the filing of a motion to remand, not the time limit for raising removal defects.”

The case is Shipley v. Helping Hands Therapy, No. 21-481. The response is due November 1, 2021. You can read more about the Shipley decision in a previous weekly roundup.

Petition for a Writ of Certiorari, Shipley v. Helping Hands Therapy, No. 21-481 (Sep. 28, 2021), available at the Supreme Court and Westlaw.