Fifth Circuit Panel Splits Over Application of the Party Presentation Principle in § 1292(b) Interlocutory Appeal

In Gonzalez v. CoreCivic, Inc., No. 19-50691 (5th Cir. Jan. 20, 2021), the panel—reviewing an interlocutory denial of a motion to dismiss—divides over whether to reach an issue not briefed by the parties to resolve the appeal.

The district court certified the order denying a Fed. R. Civ. P 12(b)(6) dismissal, specifying the following issue: “Whether the TVPA [the federal Trafficking Victims Protection Act of 2000] applies to work programs in federal immigration detention facilities.” The Fifth Circuit accepted the appeal under 28 U.S.C. § 1292(b).

On a 2-1 vote, the panel affirms the order below, siding with the Eleventh Circuit (Barrientos v. CoreCivic, Inc., 951 F.3d 1269, 1276–78 (11th Cir. 2020)) in holding that the literal terms of the act applied to federal incarcerees.

The panel divides, though, on whether to proceed to other issues presented below but not raised on appeal—specifically, assuming the applicability of TVPA, whether the detention facility’s work program was rescued by a different statute, 8 U.S.C. § 1555, and an agency work program governed by that law (Immigration and Customs Enforcement’s “Performance-Based National Detention Standards” policy, or PBNDS).

Judge Ho, who signed the majority opinion, also writes a separate concurrence for refusing to stray beyond the certified issue. “[J]ust last year,” the concurrence notes, “the Supreme Court rebuked the Ninth Circuit for doing just that—deciding an issue not presented by the parties, either on appeal or before the district court, without any compelling justification for doing so. See United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020).” The concurrence notes that default in federal courts is the party presentation principle, under which judges decide only the issues raised by the litigants.

The concurrence observes that a panel has equal discretion to on a § 1292(b) certified appeal to limit itself to the specific question or to range beyond it. “An appellate court is not required to go beyond the questions certified in an interlocutory appeal—and the dissent does not cite a single authority that says otherwise . . . .  What’s more, the dissent is unable to cite a single case where our court did what it urges us to do here—that is, exercise our discretionary interlocutory jurisdiction to reach an issue not presented by the parties either before the district court or on appeal. None of the cases cited by the dissent support this kind of judicial adventurism—and certainly not in the face of the Supreme Court’s unanimous admonition in Sineneng-Smith.”

In the district court, the concurrence observes, the defendant conceded the critical allegation in the complaint, i.e., that she “allege[d] she was threatened with ‘punishment, including but not limited to lockdown and/or solitary confinement,’” which was “conceivably enough at this stage to allege a ‘threat of serious harm’ under [the TVPA].” Thus, “[i]f anything … this is an especially weak case for disregarding the party presentation principle.” Even assuming (as the dissent does) that there is a pleading defect, the district court also had before it a motion for leave to amend the complaint. “I see no reason why we would deprive Gonzalez of the opportunity to amend her complaint, and the dissent offers none.”

In dissent, Judge Oldham would hold that certification of the dismissal order brought up the entire order for review, not just the certified question. “In the certified-and-accepted order, the district court identified what it thought was a controlling legal question—namely, whether CoreCivic is exempted from the Trafficking Victims Protection Act. But under § 1292(b), “we are not limited to the question identified by the district court. Again, our jurisdiction extends to ‘the order’—that is, the order denying CoreCivic’s motion to dismiss.” The dissent also rejects the suggestion that the panel had discretion to limit itself to the question presented. To avoid issuing advisory opinions (anathema under Article III), federal courts decide cases “not by answering abstract legal questions but by rendering judgments . . . . And when it comes to rendering judgments, we do not have discretion. We have to get the judgment right. Every time.”

Moreover, as a practical matter of judicial administration, “it does nothing to advance the litigation—in fact, it does the opposite—when we send a case to discovery in the face of a deficient complaint . . . . In the interest of advancing the litigation as required by § 1292(b), our court has even extended review to questions that were neither briefed by the parties nor certified by the district court.”

Thus concluding that the panel has jurisdiction over the issue, the dissent would reverse on the basis that the complaint stated either conclusory allegations of violations (which are not credited on a Rule 12(b)(6) motion) or allegations that were consistent with a “voluntary” work program authorized by PBNDS.

Leave a Reply

Please log in using one of these methods to post your comment: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: