The Week in Federal Appellate Jurisdiction: September 8–14, 2019

Last week saw an interesting Third Circuit decision on appealing dismissals without prejudice. The Fifth Circuit gave a helpful explanation of when attorneys can appeal language in an opinion that criticizes them. The Second Circuit addressed its jurisdiction to review denials of Criminal Rule 35(b) sentence-reduction motions. And the government opposed cert in Nasrallah v. Barr, which addresses the scope of appellate review in Convention Against Torture cases.

The Third Circuit on appealing dismissals without prejudice

In Weber v. McGrogan, the Third Circuit held that it lacked jurisdiction to review a dismissal without prejudice, despite the plaintiff’s efforts to make that dismissal appealable. But unlike a recent Fifth Circuit decision on appealing dismissals without prejudice—which deprived the plaintiffs of any opportunity to appeal—the Third Circuit noted that the plaintiff’s case remained pending before the district court. She could accordingly still secure a final decision and then appeal.

I’m putting together a post on Weber. But briefly, the plaintiff in Weber sued a number of defendants, pleading claims that stemmed from her experience litigating a child custody matter in New Jersey state court. A magistrate judge recommended that her case be dismissed under both the Rooker–Feldman and Younger doctrines. The district court agreed and dismissed the plaintiff’s complaint without prejudice.

That spurred the plaintiff’s first attempted appeal. But the Third Circuit clerk informed her that her appeal was at risk of dismissal due to the lack of a final decision in the district court; her complaint, after all, had been dismissed without prejudice. The plaintiff then asked the district court to enter a final order. But the district court never responded. The plaintiff accordingly dismissed her appeal to avoid any jurisdictional issues.

After the voluntary dismissal of the first appeal, the defendants asked the district court to dismiss the action with prejudice. In response, the district court made an entry on the electronic docket stating that the case had been terminated. And that entry referred to the district court’s earlier decision dismissing the complaint without prejudice.

The plaintiff thereafter filed a second notice of appeal. But the Third Circuit concluded that there was still no final, appealable decision.

The Third Circuit first held that the district court’s docket entry was not a final decision. It was instead a “utility” event—a docket entry that “records an event or action in the life of a case.” And utility events are not final orders under the Third Circuit’s decision in Witasick v. Minnesota Mutual Life Insurance Co. The docket entry thus did not give the Third Circuit appellate jurisdiction.

The Third Circuit then rejected application of its “standing-on-the-complaint” doctrine, which allows a plaintiff to appeal an order dismissing a complaint without prejudice by electing to stand on the dismissed complaint. Wading through its caselaw on the issue, the court synthesized its prior decisions to provide two scenarios in which the standing-on-the-complaint doctrine applied:

• A “self-effectuating” order—one gives a party a defined period to amend its pleading and provides that the dismissal will be final absent an amendment within that time.
• A plaintiff’s “clear and unequivocal intent to decline amendment and immediately appeal that leaves no doubt or ambiguity.”

Weber fit neither scenario. The district court had not issued a “self-effectuating” decision because there was nothing in the dismissal to indicate that it would become a final order after some time. And the court saw no unequivocal declaration by the plaintiff that she intended to stand on her complaint.

Again, I’ll have more to say on Weber soon.

Weber v. McGrogan, 2019 WL 4315746 (3d Cir. 2019), available at the Third Circuit and Westlaw.

The Fifth Circuit on attorney appeals from judicial criticism

In Montalto v. Mississippi Department of Corrections, the Fifth Circuit remanded an appeal for the district court to clarify whether statements in the district court’s opinion amounted to findings of attorney misconduct.

The case involved a state prisoner’s suit seeking reinstatement of early-release and sentencing credits. The district court ordered Mississippi to produce transcripts or recordings of the prisoner’s revocation hearing, but the state’s attorneys never produced the material. They first claimed that the material did not exist. They later said that although the proceedings had been recorded, the recordings had been lost or destroyed.

The district court ultimately dismissed the suit due to the prisoner’s failure to exhaust his remedies. But in the course of doing so, the district court warned the state. As the court saw it, the state’s attorneys saw no need to comply with the discovery orders because they thought they had a winning defense on failure to exhaust. They failed to respond to a discovery order and didn’t acknowledge another. The attorneys had also “‘submitted patently false statements to the Court’ and ‘adopted false positions’ with ‘nonchalance.’” The district court ultimately concluded that “[t]he Attorney General’s Office is treating habeas petitions as if they are something to be beaten back, rather than taken seriously and investigated. . . . The attorneys for the State are well advised to revisit A Lawyer’s Creed.”

That all being said, the district court denied the prisoner’s request for sanctions. The attorneys then appealed the language in the district court’s decision (as well as the denial of post-judgment motions asking the district court to revise that language).

On appeal, the Fifth Circuit could not determine whether it had jurisdiction over the appeal. The court explained that attorneys can appeal judicial criticism when the criticism amounts to a finding of professional misconduct. The court then discussed its caselaw on this matter at some length, and the opinion is worth reading for that discussion. But the Fifth Circuit ultimately concluded that it could not determine whether the district court had found professional misconduct. The state had won, and the district court had denied the motion for sanctions. And some of the district court’s criticism was directed to the Mississippi Department of Corrections, not the state’s attorneys. But other parts of the opinion could be read as finding misconduct, at least by an unfamiliar reader.

The Fifth Circuit accordingly remanded the case for the district court to make any actual findings of professional misconduct.

Montalto v. Mississippi Department of Corrections, 2019 WL 4296699 (5th Cir. 2019), available at the Fifth Circuit and Westlaw.

The Second Circuit on appeals from Criminal Rule 35(b) motions

In United States v. Doe, the Second Circuit held that it had jurisdiction to review some issues raised in a criminal defendant’s appeal from a district court’s Rule 35(b) sentence-reduction decision.

The defendant in Doe had pleaded guilty to conspiracy to commit wire fraud, after which he assisted the government in other cases. After this assistance, the government moved to reduce the defendant’s sentence under Criminal Rule 35(b). But the district court, unimpressed with the defendant’s cooperation, denied that motion. The defendant then appealed.

The courts of appeals still seem split on which statute—28 U.S.C. § 1291 or 8 U.S.C. § 3742(a)—governs jurisdiction in an appeal from a Rule 35(b) decision. The Second Circuit holds that § 3742(a) applies. And under that provision, criminal defendants can appeal “an otherwise final sentence” when (among other things) that sentence “was imposed in violation of the law.” But the Second Circuit has also held that this provision does not allow defendants to appeal the extent of a Rule 35(b) sentence reduction.

The defendant in Doe raised two arguments that the court had jurisdiction to review.

First, the court could review whether the district court relied on erroneous facts in denying the Rule 35(b) motion. In the context of original sentences (as opposed to Rule 35(b) motions for reduced sentences), the Second Circuit has held that it has jurisdiction to address whether the district court relied on inaccurate information at sentencing. The court thought that this holding was just as applicable in the Rule 35(b) context; due process protections exist in this context, too, and the district court’s discretion in reducing a sentence does not include the discretion to rely on inaccurate facts.

Second, the court had jurisdiction to review whether the district court misapplied Rule 35(b)’s two-step inquiry. In deciding a Rule 35(b) motion, a district court must first determine whether the defendant provided substantial assistance and is thus eligible for a reduced sentence. If the defendant is eligible, the district court must then determine whether to reduce the sentence (and if so, by how much). The Second Circuit concluded that a misapplication of the Rule 35(b) inquiry would amount to a sentencing in violation of the law. And § 3742(a) permits review of sentences imposed in violation of the law.

In a separate sealed opinion, the Second Circuit affirmed the district court’s decision on the Rule 35(b) motion.

United States v. Doe, 2019 WL 4251878 (2d Cir. 2019), available at the Second Circuit and Westlaw.

Reply to cert filed in Convention Against Torture case

The government filed its opposition brief to the petition for certiorari in Nasrallah v. Barr. The case, which I’ve previously covered on this site, asks whether the Immigration and Nationality’s Act appellate-jurisdiction bar precludes review of immigration authorities’ conclusion that a petitioner is not likely to be tortured upon removal. In prior petitions, the government has conceded that the issue merits cert. But it has opposed prior petitions as inappropriate vehicles for addressing the issue.

In Nasrallah, the government once again argued that the case is an inappropriate one to address the jurisdictional issue; according to the government, resolution of the jurisdictional issue would not affect the outcome. But “the government continues to believe that review of the question presented may be warranted in an appropriate future case.”

Brief for the Respondent in Opposition, Nasrallah v. Barr, No. 18-1432, available at the Department of Justice and Westlaw.