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On the Question of Finality                              By Joseph P. Whalen (August 16, 2012)It sometimes amazes me just ...
_______________________________________________       FN2           Although Federal Rule of Appellate Procedure 4(a)(4)(B...
This claim was based on negligence under the Jones Act and on unseaworthiness under       the general maritime law coupled...
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On the question of finality

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On the question of finality

  1. 1. On the Question of Finality By Joseph P. Whalen (August 16, 2012)It sometimes amazes me just how long some immigration cases get stretched outand how many times they get resurrected. Some cases seem to have the longevityand staying power of Dracula. Just when you think it’s the end, there is a sequel, aprequel, or “re-imagining” from another angle! Some situations make me want tocry out: “Enough Already!” The following two recent Circuit Court cases mightbe at an end (it is still uncertain as there is still time to file more motions or forcert.). After these two excerpts, I will take a quick look at one pertinent cited case.Following from: Mohammed Khan v. Atty Gen USA (3rd Cir. August 14, 2012),found at: http://www.ca3.uscourts.gov/opinarch/111789p.pdf “.....In holding that the notice of appeal ripened upon entry of the final judgment, we relied on the United States Supreme Court’s pronouncement that “‘practical, not technical considerations are to govern the application of principles of finality.’” Id. at 185 (quoting Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152 (1949)) [sic] (1964)1. [Emphasis added.] Similarly, in Lazy Oil Co. v. Witco Corp., 166 F.3d at585, the objectors to a class action settlement filed a notice of appeal over two months before the district court gave its final approval on all elements of the settlement and entered a final judgment. In choosing to apply the Cape May Greene doctrine, we explained that, “[f]or us to decline jurisdiction in this appeal would elevate a mere technicality above the important substantive issues here involved, as well as the right of the parties in this case to have their dispute resolved on its merits.”Id. at 587. Motivated by such concerns, we have continued to allow a premature notice of appeal to ripen in cases where the adverse party was not prejudiced by the premature filing and where we have yet to adjudicate the appeal. E.g., DL Res., Inc., 506 F.3d at 215. But see ADAPT of Phila. v. Phila. Hous.Auth., 433 F.3d 353, 361–65 (3d Cir.2006) (holding that the Cape May Greene doctrine is inapplicable to appeals from interlocutory orders, such as discovery orders, and that appeals 2 from interlocutory orders may not ripen upon entry of final judgment). FN1 Gillespie v. United States Steel Corp., 379 U.S. 148 (1964) Page 1 of 3
  2. 2. _______________________________________________ FN2 Although Federal Rule of Appellate Procedure 4(a)(4)(B)(ii) allows for the ripening of a notice of appeal that is filed while certain motions are pending once those motions are adjudicated, we have opined that “Rule 4 does not 8 exclusively govern every ‘situation in which a premature notice of appeal will ripen at a later date.’” DL Res., Inc., 506 F.3d at 215 (quoting Lazy Oil Co., 166 F.3d at 587). We recognize that some of our sister Courts of Appeals have declined to join us in this regard. See Brown v. Columbia Sussex Corp., 664 F.3d 182, 188 (7th Cir. 2011) (holding that “premature notices of appeal in civil cases can only ripen when under the auspices of [Federal Rule of Appellate Procedure] 4(a)(2), as defined by the Supreme Court in [FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S. 269 (1991)]”); Outlaw v. Airtech Air Conditioning & Heating, Inc., 412 F.3d 156, 160 n.2 (D.C. Cir. 2005) (same); United States v. Cooper, 135 F.3d 960, 963 (5th Cir. 1998) (applying analogous reasoning in a criminal appeal); Serine v. Peterson, 989 F.2d 371, 372–73 (9th Cir. 1993) (same). We will apply that same rule to the circumstances presented in this case. So long as the Attorney General has not shown that he will suffer prejudice resulting from the premature filing of a petition for review, and we have yet to take action on the merits of the appeal, a premature petition for review can ripen once the BIA issues a final order on a motion to reopen. We see no reason to treat premature petitions for review from final orders of removal differently than we have treated premature notices of appeal in other types of cases.”El-Gazawy v. Holder, No. 11-3582 (6th Cir. 8-16-12) is another prime example of acase that was dragged out far too long. Judge Rovner, for himself and JudgesFlaum and Williams, began this seventeen page Opinion as follows: “.................................. Husni Moh’d Ali El-Gazawy petitions for review of a decision of the Board of Immi- gration Appeals (“BIA” or “Board”). As is often the case in immigration matters, El-Gazawy’s path to this court is a long and winding road. After straightening out the twists and turns, we conclude that the petition must be denied.”Both of these cases involve individuals who entered the U.S. as a tourist in 1990,and it has taken 22 years to reach the end of each one’s “long and winding road”.The saddest part is that these are NOT the oldest and longest cases still pluggingtheir way through the system.Gillespie v. United States Steel Corp., 379 U.S. 148 (1964) Syllabus Petitioner, administratrix, whose son died while working on respondents ship docked in Ohio, sued in a federal district court, claiming for the estate a right to recover damages for the benefit of herself and decedents dependent brother and sisters for wrongful death. Page 2 of 3
  3. 3. This claim was based on negligence under the Jones Act and on unseaworthiness under the general maritime law coupled with the Ohio wrongful death statute. Petitioner also claimed damages for the estate for decedents pain and suffering before death based on the Jones Act and the general maritime law, causes of action which she claimed survived under the Jones Act and the Ohio survival statute, respectively. The District Court, upholding respondents motion to strike, confined the complaint to the Jones Act and eliminated reference to recovery for the benefit of the brother and sisters. Petitioner filed an appeal from the ruling in the Court of Appeals, which respondent sought to dismiss as not being from a "final" decision under 28 U.S.C. § 1291. Petitioner and decedents dependents then sought mandamus in that court to compel the District Court either to deny the motion to strike or to certify its order granting the motion as appealable under 28 U.S.C. § 1292(b). The Court of Appeals denied mandamus and affirmed the District Courts order. Held: 1. The District Courts order was "final" and appealable under 28 U.S.C. § 1291. Pp. 379 U. S. 152-154. (a) The requirement of finality is to be given a practical, rather than a technical, construction, and does not necessarily mean that an order, to be appealable, must be the last possible one to be made in a case. Cohen v. Beneficial Industrial Loan Corp.,337 U. S. 541, followed. P. 379 U. S. 152. (b) The inconvenience and costs of piecemeal review must be weighed against the danger of denying justice by delay in deciding the question of finality. Pp. 379 U. S. 152-153. (c) Delay in adjudication of the dependents rights might work an injustice upon them. P. 379 U. S. 153. Page 379 U. S. 149 (d) This Court will review a trial courts ruling in a case not fully tried where the questions presented are "fundamental to the further conduct of the case." Pp. 379 U. S. 153-154. (e) Though the District Court did not certify its order to strike under § 1292(b), the Court of Appeals treatment of the order as final and appealable furthered the congressional policy behind that provision. P. 379 U. S. 154. Points 2. through 5. are very specific to the case regarding liability in a “wrongful death suit” and not of particular interest to this article.MR. JUSTICE BLACK delivered the opinion of the Court.While these few points are by no means even approach the final word on finality they do markthe end of this brief discussion. Perhaps someone else will weigh in on this topic? Page 3 of 3

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