May 23, 2019

Tenth Circuit: 28 U.S.C. § 1447(d) Prohibits Review of Remand Order Based on Lack of Subject Matter Jurisdiction

The Tenth Circuit published its opinion in Hill v. Vanderbilt Capital Advisors, LLC on Thursday, December 27, 2012.

Plaintiffs filed an action against Vanderbilt Capital Advisors, LLC and others in New Mexico state court. The suit was removed to federal court. The district court remanded the entire case back to state court, concluding that it lacked subject matter jurisdiction because Plaintiffs did not have standing to sue. 28 U.S.C. § 1447 governs cases removed from state court and § 1447(d) prohibits appellate review of remand orders where the remand was based on lack of subject matter jurisdiction. Because a dismissal for lack of standing “can be at least colorably characterized as a dismissal for lack of subject matter jurisdiction,” the Tenth Circuit held that under 28 U.S.C. § 1447(d), it had no jurisdiction to hear an appeal of the remand order.

Tenth Circuit: Board of Immigration Appeals Interpretation of Continuous-Physical-Presence Statute Entitled to Deference

The Tenth Circuit issued its opinion in Barrera-Quintero v. Holder on Thursday, November 15, 2012.

Hector Barrera-Quintero, a native and citizen of Mexico, entered the United States illegally the first time in 1990. In 2004, he was convicted in Utah for falsifying a government document, a fake Social Security card. He signed a Form I-826, and chose option 3, acknowledging he was in the United States illegally, waiving his right to a hearing, and requested return to Mexico. After leaving the U.S., he returned illegally a couple of months later.

In 2007, he was again arrested in Utah for using fraudulent documents. He applied for cancellation of removal under 8 U.S.C. § 1229b. The immigration judge found Barrera-Quintero ineligible for cancellation of removal because he did not have 10 continuous years of physical presence in the U.S. and his convictions in California for spousal abuse and in Utah involved crimes of moral turpitude. He sought review of a Board of Immigration Appeals (BIA) decision finding him ineligible for cancellation of removal.

The continuous physical presence statute, § 1229b(d)(2), sets forth a failure to maintain a continuous physical presence as a period exceeding 90 days. The BIA, however, has held that this is not the exclusive means of a break in continuous presence. It considers a “departure that is compelled under threat of the institution of deportation or removal proceedings is a break in physical presence for purposes of section [1229b(b)(1)(A)].” The Tenth Circuit joined six other circuits in holding that interpretation reasonable and entitled to Chevron deference.

Barrera-Quintero argued that immigration officials did not adequately inform him of his rights in 2004 so he could not have voluntarily broken his continuous presence. The Tenth Circuit found it lacked jurisdiction to consider this argument as it concerned a discretionary agency decision.

The petition for review was dismissed in part for lack of jurisdiction and denied in part.

Tenth Circuit: Time Limit On HUD Funds Investments and Return of Interest to HUD Affirmed

The Tenth Circuit issued its opinion in Muscogee (Creek) Nation Division of Housing v. U.S. Dep’t of Housing and Urban Development on Tuesday, October 30, 2012.

The Muscogee (Creek) Nation (the Nation) received block grant funds for affordable housing under the Native American Housing Assistance and Self-Determination Act of 1996, 25 U.S.C. §§ 4101-4243. Under regulation 24 C.F.R. § 1000.58, funds invested by the Nation could not be invested for longer than two years. In 2007 and 2009, HUD issued notices regarding requirements for investing the funds and stating that for funds invested longer than two years, any interest accrued after two years must be returned to HUD. Additionally, any invested funds that were not expended on affordable housing activities by the two-year period would have to be returned to the tribe’s Line of Credit Control System account.

After a HUD review of the Nation’s use of program funds, HUD required the Nation to return $1.3 million in interest on funds invested longer than two years. The Nation returned the interest under protest, then filed suit seeking return of the funds and injunctive and declaratory relief regarding the validity of 24 C.F.R. § 1000.58(g) and the interest repayment requirement of the 2007 and 2009 notices. The district court dismissed the case based on HUD’s sovereign immunity and, in the alternative, for failure to state a claim.

The Tenth Circuit found that the Administrative Procedures Act did not waive HUD’s sovereign immunity regarding the two-year time limit on investments because “HUD’s authority to approve investment activities is committed to agency discretion as a matter of law.” Thus, the APA’s waiver of sovereign immunity did not apply and dismissal was proper for lack of jurisdiction.

In analyzing the Nation’s claims regarding the 2007 and 2009 notices requiring the return of interest, the court found a 1992 Comptroller General’s decision persuasive. The court held that the notices were interpretive, not substantive, and were consistent with federal law. It affirmed the district court’s dismissal of those claims on failure to state a claim grounds.

Tenth Circuit: Settlement Agreement Is a Defense, Not a Bar to Federal Subject Matter Jurisdiction

The Tenth Circuit issued its opinion in Rural Water District No. 2 v. City of Glenpool on Tuesday, October 30, 2012.

The plaintiff, Rural Water District No. 2 (the district), is a rural water provider covered by 7 U.S.C. § 1926(b), which prohibits other water utilities from encroaching upon services provided by federally indebted water associations. After the defendant City of Glenpool annexed land covered by the district and constructed water lines to the area, lawsuits ensued and the parties entered into a settlement agreement. As part of the settlement agreement, the defendant agreed to make payments to the district and the district “agreed it would not claim any § 1926(b) exclusive right to provide water service in the ‘area of agreement’ during the period of the Settlement Agreement except in the case of Defendants’ default.”

After an audit, the district sent a notice of default to the defendants and filed suit asserting its § 1926(b) right to be the exclusive provider of water in the contested area and alleging defendants were selling water within the area. Defendants filed a motion to dismiss based on lack of subject matter jurisdiction, citing two alternate grounds. The district court dismissed without opinion.

In the Tenth Circuit, defendants argued that even thought the plaintiff had alleged a federal statutory cause of action under § 1926(b), the court had no subject matter jurisdiction until a state court ruled on the breach of the settlement agreement. The court held that the settlement agreement could be raised as affirmative defense; it was not a bar to federal subject matter jurisdiction.

The defendants also argued that the district’s claim was not ripe because a state court had not decided the breach of settlement agreement claim. The Tenth Circuit found the claims were ripe because the alleged acts were not speculative or uncertain; they had already occurred. The court reversed the district court’s dismissal.