The Week in Federal Appellate Jurisdiction: Winter Break 2021

I’m back from my annual holiday break with roundup covering the previous two weeks. There were a few decisions of note. The Third Circuit joined nearly every other circuit in holding that it cannot review a discretionary decision not to waive the Violence Against Women Act’s deadline for reopening immigration proceedings. The en banc Federal Circuit declined to reconsider whether a damages trial is an “accounting” for purposes of § 1292(c)(2). The Seventh Circuit held that Federal Rule of Civil Procedure 58’s provisions on deeming a judgment entered apply to the denial of a writ of coram nobis. That court also dismissed a qualified-immunity appeal insofar as the defendants challenged the factual basis for the immunity denial. Plus pendent appellate jurisdiction over a judicial-notice decision and the scope of remand appeals.

• The Third Circuit on Reviewing Deadline-Waiver Decisions in Immigration Proceedings
• The En Banc Federal Circuit Declined to Review Whether a Damages Trial Is an “Accounting” Under § 1292(c)(2)
• The Seventh Circuit on the Appeal Clock for Denials of Coram Nobis
• The Seventh Circuit Dismissed a Fact-Based Qualified-Immunity Appeal in Which the Defendants Did Not Assert Immunity
• Quick Notes

The Third Circuit on Reviewing Deadline-Waiver Decisions in Immigration Proceedings

In Yasin v. Attorney General, the Third Circuit held that it could not review a decision refusing to waive the statute of limitations for motions to reopen deportation proceedings under the Violence Against Women Act.

The petitioner in Yasin was ordered deported in 2002. But he did not leave the United States. Seventeen years later, immigration authorities approved the petitioners request to be classified “as the abused spouse of a United States citizen” under the Violence Against Women Act. But when the petitioner asked the Board of Immigration Appeals to reopen his deportation proceedings, the Board refused. The petitioner had one year after his final order of removal to seek reopening under the Act. His request was thus 16 years too late. And the Board refused to waive the one-year statute of limitations, concluding that the petitioner had not shown the extraordinary circumstances or undue hardship that would warrant waiver.

The petitioner appealed, but the Third Circuit determined that it lacked jurisdiction over the Board’s waiver decision. Under 8 U.S.C. § 1252(a)(2)(B)(ii), the courts of appeals lack jurisdiction to review the Board’s discretionary decisions. The Supreme Court held in Kucana v. Holder that this jurisdiction-stripping provision applies to statutory grants of discretionary authority. And the Violence Against Women Act gives the attorney general (acting through the Board of Immigration Appeals) discretion to waive the one-year statute of limitations on reopening petitions. The Third Circuit thus lacked jurisdiction to review it, agreeing with nearly every other circuit to address the issue. Only the Ninth Circuit has held to the contrary, albeit in an unpublished decision that relied on pre-Kucana precedent.

Yasin v. Attorney General, 2021 WL 5996269 (3d Cir. Dec. 20, 2021), available at the Third Circuit and Westlaw.

The En Banc Federal Circuit Declined to Review Whether a Damages Trial Is an “Accounting” Under § 1292(c)(2)

The Federal Circuit denied rehearing en banc in Mondis Technology Ltd v. LG Electronics Inc.

The case gave the Federal Circuit an opportunity to revisit whether a damages trial counts as an “accounting” under 28 U.S.C. § 1292(c)(2). (Mondis Technology also involved a question about the timeliness of an appeal from an order denying retrial on all issues except damages, which I wrote about here.) Section 1292(c)(2) gives the Federal Circuit jurisdiction to review “a judgment in a civil action for patent infringement” that “is final except for an accounting.” And the en banc Federal Circuit held in Robert Bosch, LLC v. Pylon Manufacturing Corp. that a damages trial was an accounting.

Judge O’Malley dissented from the denial of rehearing en banc, arguing that a damages trial is not an “accounting” as that term is used in § 1292(c)(2).

Mondis Technology Ltd v. LG Electronics Inc., 2021 WL 6068831 (Fed. Cir. Dec. 23, 2021), available at the Federal Circuit and Westlaw.

The Seventh Circuit on the Appeal Clock for Denials of Coram Nobis

In United States v. Hassebrock, the Seventh Circuit held that the civil rules requiring that judgments be set out in a separate document—and the accompanying appeal-timing rules—apply to petitions for a writ of coram nobis.

The petitioner in Hassebrock was convicted of tax evasion and unsuccessfully sought relief under 28 U.S.C. § 2255. He later filed a petition for a writ of coram nobis (which provides relief similar to that available under § 2255, but is used by those who are no longer in custody). The district court construed the writ as an unauthorized successive § 2255 petition and dismissed it. Four months later, the petitioner moved for relief from the judgment. The district court denied that request, and the petitioner appealed.

The Seventh Circuit ultimately affirmed. Before doing so, it had to determine whether the appeal was timely. Coram nobis petitioners normally have 60 days to appeal from the denial of the writ. The petitioner in Hassebrock’s notice came well outside that window. But the district court had not set out its denial of the writ in a separate document. And under Federal Rule of Civil Procedure 58 and Federal Rule of Appellate Procedure 4, the failure to set out a judgment in a separate document delays the start of the appeal clock for 150 days.

The Seventh Circuit concluded that Rule 58’s separate-document requirement applied to coram nobis proceedings. The appeal in Hassebrock was therefore timely.

United States v. Hassebrock, 2021 WL 6069620 (7th Cir. Dec. 23, 2021), available at the Seventh Circuit and Westlaw.

The Seventh Circuit Dismissed a Fact-Based Qualified-Immunity Appeal in Which the Defendants Did Not Assert Immunity

In Lovelace v. Gibson, the Seventh Circuit dismissed a qualified-immunity appeal insofar as it challenged the denial of summary judgment on a Fourth Amendment malicious-prosecution claim. The defendants had not actually sought qualified immunity on that claim (though they had on another claim). With no order denying immunity, there was no basis for an appeal. And even if the defendants had raised the defense, their arguments on appeal were outside of the Seventh Circuit’s jurisdiction. The defendants challenged the factual basis for the district court’s denial of qualified immunity. For example, according to the district court, a reasonable jury could conclude that the forensic opinion relied on by the defendants were produced through manipulation. The defendants nevertheless argued on appeal that the opinion supported probable cause for the plaintiff’s prosecution.

Lovelace v. Gibson, 2021 WL 6062381 (7th Cir. Dec. 22, 2021), available at the Seventh Circuit and Westlaw.

Quick Notes

In Hill v. True, the Tenth Circuit heard an injunction appeal and extended pendent appellate jurisdiction to a judicial-notice decision. The plaintiff in Hill was detained in federal prison and sued several prison officials for deliberate indifference to serious medical needs. The district court refused to enter a preliminary injunction and also refused to take judicial notice of a medical record that a nurse practitioner had prepared while treating the plaintiff. On appeal, the Tenth Circuit vacated the order denying the preliminary injunction. It also affirmed the refusal to take judicial notice. And the Tenth Circuit said it had jurisdiction to do so because “there is an adequate record for review, the issue is closely related to the denial of the preliminary injunction, and addressing the issue promotes judicial economy.”

Hill v. True, 2021 WL 6112973 (10th Cir. Dec. 27, 2021), available at the Tenth Circuit and Westlaw.

And in Buljic v. Tyson Foods, Inc., the Eighth Circuit affirmed an order remanding an action to state court. Although 28 U.S.C. § 1447(d) normally bars review of remand orders, the defendants in Buljic invoked an exception to that rule—they asserted federal-officer removal as one ground for removal. The Eighth Circuit agreed with the district court that the defendants were not performing a basic governmental task, making federal-officer removal unavailable. Under the Supreme Court’s decision in BP P.L.C. v. Mayor and City Council of Baltimore, the Eighth Circuit could also review whether federal-question removal was proper. But the defendants had abandoned any argument for federal-question removal:

In a footnote in its opening brief, Tyson simply stated that “Appellants reserve the right to raise those arguments [about federal question jurisdiction] should the Supreme Court abrogate” [Eighth Circuit precedent limited remand appeals to § 1447(d)’s expressly excepted grounds for removal]. Tyson then made no argument in its opening brief or reply brief about federal question jurisdiction, despite the fact that Plaintiffs suggested in their response that the court should deem the argument waived. Nor did Tyson file any notice of supplemental authority or raise the issue at oral argument. We thus deem this argument abandoned and do not address it.

Buljic v. Tyson Foods, Inc., 2021 WL 6143549 (Dec. 30, 2021), available at the Eighth Circuit and Westlaw.