The finality of without-prejudice dismissals of habeas petitions, the scope of CAFA appeals, post-judgment intervenor appeals, and more.
June 1, 2022
I took a break from the roundup the last few weeks to work on some really interesting research. As I continue that work this summer, roundups might be a bit more to the point.
The last few weeks saw lots of interesting cases. Highlights include a Seventh Circuit decision on the finality of without-prejudice dismissals for failure to exhaust state habeas remedies and a Fifth Circuit decision on the scope of CAFA appeals. And the Ninth Circuit addressed the timeliness of intervention appeals in the context of post-judgment intervention. Plus qualified-immunity appeals, pendent appellate jurisdiction, and more.
- The Seventh Circuit on the Finality of Dismissals for Failure to Exhaust State Habeas Remedies
- The Fifth Circuit Held That B.P. Did Not Require an Expansive Scope of Review for CAFA Appeals
- The Time to Appeal a Judgment for Post-Judgment Intervenors
- Improper Fact-Based Qualified-Immunity Appeals
- Pendent Appellate Jurisdiction
- Immigration Appeals
- Patent Appeals
The Seventh Circuit on the Finality of Dismissals for Failure to Exhaust State Habeas Remedies
In Lauderdale-El v. Indiana Parole Board, the Seventh Circuit held that the without-prejudice dismissal of a habeas petition for failure to exhaust state remedies was a final, appealable decision. In doing so, the panel took up Judge Easterbrook’s suggestion from his concurrence in last year’s Carter v. Buesgen
The petitioner in Lauderdale-El had lost good-time credits while incarcerated and sought a writ of habeas corpus in federal court. The district court dismissed the suit without prejudice because the petitioner had failed to exhaust state remedies. The petitioner then appealed.
The Seventh Circuit affirmed the dismissal. But before doing so, it had to address appellate jurisdiction. In two cases—Gacho v. Butler and Moore v. Mote—the Seventh Circuit had held that without-prejudice dismissals of habeas petitioners for failure to exhaust were not final. Hearing the appeal in Lauderdale-El required first overruling those cases.
The court began by noting that the district court’s decision “certainly seem[ed] final as a practical matter: the district court [was] done with the case.” But the “without-prejudice” designation created an issue (or, in the court’s words, made “jurisdictional antennae twitch for appellate judges and other mavens of appellate jurisdiction”). A without-prejudice dismissal might mean that a case is not actually over, such as a dismissal of a complaint with leave to amend. Another example is the attempt to manufacture an interlocutory appeal by voluntarily dismissing some claims without prejudice.
But other without-prejudice dismissals mark the end of a case. They “signal clearly that the district court has finished with the case but is leaving open the possibility that the parties may pursue the dispute in another forum.” One examples is a dismissal for a lack of jurisdiction.
Returning to habeas cases, the Seventh Circuit overruled its jurisdictional holdings in Gacho and Moore. As Judge Easterbrook had said in his Carter concurrence, the dismissal without prejudice ended the federal litigation. Granted, the district court had not resolved the case’s merits. But the district court is finished with the case. And a a practical matter, exhaustion dismissals must be final if any error in the dismissal is to be corrected. (The majority opinion in Carter distinguished Gacho and Moore by holding that jurisdiction existed if the exhaustion decision was wrong; Lauderdale-El pointed out that this made jurisdiction turn on the merits, which adds unnecessary and confusing extra work.) The court also noted that it and several other circuits routinely treat dismissals for failure to exhaust habeas remedies as final.
Lauderdale-El v. Indiana Parole Board, 2022 WL 1613282 (7th Cir. May 23, 2022), available at the Seventh Circuit and Westlaw.
The Fifth Circuit Held That B.P. Did Not Require an Expansive Scope of Review for CAFA Appeals
In Stewart v. Entergy Corp, the Fifth Circuit exercised its discretion to review the the refusal to remand a case under the Class Action Fairness Act. The court also adhered to its precedents limiting the scope of CAFA appeals to CAFA issues.
The petitioner in Stewart argued for an expanded scope of appeal, relying on the Supreme Court’s decision in B.P. v. Mayor & City of Baltimore. (You can read about the decision in B.P. here.) But the Fifth Circuit explained that B.P. did not overrule prior cases limiting the scope of CAFA appeals. For one thing, 28 U.S.C. § 1453(c)(1) is textually distinct from 28 U.S.C. § 1447(d)—its short time limits direct the courts of appeals to swiftly and efficiently resolve CAFA appeals. “Taking additional time to review non-CAFA-related claims under § 1453(c) would undoubtedly undermine that directive.” Along those same lines, § 1453(c)(1)’s purpose of efficiently generating appellate law on CAFA augured against an expansive scope of appeal. B.P. thus did not wholly undercut the Fifth Circuit’s precedent on this point.
Stewart v. Entergy Corp, 2022 WL 1711659 (5th Cir. May 27, 2022), available at the Fifth Circuit and Westlaw.
The Time to Appeal a Judgment for Post-Judgment Intervenors
In Evans v. Synopsys, Inc., the Ninth Circuit addressed the timeliness of a prospective intervenor’s appeal.
A non-party moved to intervene as a defendant in Evans after the district court had entered judgment for the plaintiff. Several months later—well after the normal appeal time had expired—the district court granted intervention for the limited purposes of appealing the judgment. The Ninth Circuit held that the subsequent notice of appeal was untimely to appeal the judgment. The time to appeal for everyone ran from the judgment, not from the grant of intervention. And the district court had not extended the time to appeal.
Evans v. Synopsys, Inc., 2022 WL 1494724 (9th Cir. May 12, 2022), available at the Ninth Circuit and Westlaw.
Improper Fact-Based Qualified-Immunity Appeals
Several courts had to reject factual challenges to the denial of qualified immunity. Although defendants have a right to appeal from the denial of immunity at summary judgment, the scope of those appeals is supposed to be limited. The courts of appeals cannot review the district court’s assessment of what facts a reasonable jury could find. The appellate court must instead address only whether those facts amount to a violation of clearly established law. In other words, courts of appeals can review only the materiality of any fact disputes, not their genuineness. Defendants nevertheless regularly appeal from the denial of qualified immunity and flout this jurisdictional limit.
The last three weeks saw a few examples.
In Garza v. Molina, the Fifth Circuit noted that much of the defendants’ briefing concerned the factual basis for an immunity denial. Indeed, the defendants argued that the plaintiff’s allegations were factually wrong.
In Grinnell v. City of Taylor, the Sixth Circuit explained that the defendants’ arguments “misconstrue[d] the evidence and ignore[d] [the plaintiff]’s testimony.” The Sixth Circuit added that an audio recording of the events did not blatantly contradict the plaintiff’s version of events.
And in Callwood v. Meyer, most of the defendants explicitly challenged the factual basis for the immunity denial or based their arguments on their own version of events. The Second Circuit catalogued the numerous fact issues and dismissed those defendants’ appeals.
Garza v. Molina, 2022 WL 1613186 (5th Cir. May 20, 2022), available at the Fifth Circuit and Westlaw.
Grinnell v. City of Taylor, 2022 WL 1562291 (6th Cir. May 18, 2022), available at the Sixth Circuit and Westlaw.
Callwood v. Meyer, 2022 WL 1642558 (2d Cir. May 24, 2022), available at CourtListener and Westlaw.
Pendent Appellate Jurisdiction
A few courts addressed pendent appellate jurisdiction in various contexts. Pendent appellate jurisdiction allows a normally non-immediately appealable issue to tag along with an interlocutory appeal. Most courts use pendent appellate jurisdiction in only two situations: when the appealable issue necessarily resolves the non-appealable issue, or immediate review of the non-appealable issue is necessary to effectively resolve the appealable one.
In Universal Life Church Monastery Storehouse v. Nabors, the Sixth Circuit reviewed the plaintiffs’ standing as part of a state-sovereign-immunity appeal. The court explained that reviewing standing was necessary to ensure meaningful review of the immunity denial.
In Hinkle v. Phillips 66 Co., the Fifth Circuit declined to extend pendent appellate jurisdiction over a transfer order while hearing an arbitration appeal. The court could review the denial of arbitration without addressing the transfer. And there was no judicial economy from reviewing the two together.
In Centro de Periodismo Investigativo, Inc. v. Financial Oversight & Management Board for Puerto Rico, the First Circuit refused to extend pendent appellate jurisdiction over statutory-immunity and preemption issues in a sovereign-immunity appeal. The sovereign-immunity issues could be resolved without touching on those other issues.
In Davis v. Dawson, the Eighth Circuit extended pendent appellate jurisdiction over false-arrest and false-imprisonment issues in a qualified-immunity appeal. The court affirmed the denial of immunity to the defendants on federal claims. And that decision necessarily resolved the false-arrest and false-imprisonment claims against those defendants.
And in Andrews v. City of Henderson, the Ninth Circuit refused to extend pendent appellate jurisdiction over a municipal-liability issue in a qualified-immunity appeal. The court noted that it did not need to decide municipal liability to resolve the immunity appeal. And the immunity appeal did not resolve municipal liability.
Universal Life Church Monastery Storehouse v. Nabors, 2022 WL 1699304 (6th Cir. May 27, 2022), available at the Sixth Circuit and Westlaw.
Hinkle v. Phillips 66 Co., 2022 WL 1711660 (5th Cir. May 27, 2022), available at the Fifth Circuit and Westlaw.
Centro de Periodismo Investigativo, Inc. v. Financial Oversight & Management Board for Puerto Rico, 2022 WL 1553454 (1st Cir. May 17, 2022), available at the First Circuit and Westlaw.
Davis v. Dawson, 2022 WL 1463364 (8th Cir. May 10, 2022), available at the Eighth Circuit and Westlaw.
Andrews v. City of Henderson, 2022 WL 1613618 (9th Cir. May 23, 2022), available at the Ninth Circuit and Westlaw.
Immigration Appeals
In Pena-Lopez v. Garland, the Fifth Circuit held that it could review eligibility for a deadline waiver under 9 U.S.C. § 1229a(c)(7)(C)(iv)(III). That provision imposes a one-year deadline for certain immigration petitioners (victims of spousal or other familial abuse) to file motions to reopen. It then says that the Attorney General can waive that deadline for a petitioner “who demonstrates extreme circumstances or extreme hardship” to the petitioner’s child. The Fifth Circuit noted that it lacked jurisdiction to review the Attorney General’s ultimate discretionary decision of whether to waive the deadline. But under under Guerrero-Lasprilla v. Barr, the court of appeals had jurisdiction to review eligibility for a waiver.
Pena-Lopez v. Garland, 2022 WL 1498879 (5th Cir. May 12, 2022), available at the Fifth Circuit and Westlaw.
Patent Appeals
In Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc., the Federal Circuit determined that it could not review a U.S. Patent and Trial Board decision not to institute inter partes review because that decision depended on an unreviewable time-bar determination. Atlanta Gas Light’s procedural history is long. But what matters is that the Board ultimately decided against instituting inter partes review due—at least in part—to the time bar in 35 U.S.C. § 315. And the Federal Circuit lacks jurisdiction to review the timeliness of petitions to institute inter partes review. Judge Newman dissented, contending that the Board’s decision against instituting review was a sanctions order over which the Federal Circuit had jurisdiction.
Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc., 2022 WL 1510322 (Fed. Cir. May 13, 2022), available at the Federal Circuit and Westlaw.