The Week in Federal Appellate Jurisdiction: September 29–October 5, 2019

Last week saw decisions on (among other things) the consequences of missing appellate deadlines and appeals from the disclosure of classified information. There were also several cert-stage filings of note, including a new case on the appealability of immigration remands.

The Seventh Circuit on late notices, late objections, and jurisdiction

In Vergara v. City of Chicago, the Seventh Circuit untangled a procedural mess involving multiple missed deadlines. The notice of appeal was late (though understandably so), as was the objection to the late notice. But none of these missed deadlines went to the court’s jurisdiction. They were claims-processing rules—one mandatory but not properly invoked, the other not mandatory and forfeited.

All of this could have been avoided had the district court not waited almost two years after dismissing the action to issue its opinion. Vergara illustrates the potential for mistakes when district courts decide a case but don’t issue an opinion until after the time for appealing has run.

One particularly interesting point in Vergara is how the court dealt with the late notice of appeal. The 30-day time for filing a notice of appeal is jurisdictional, and so a late filing normally cannot be excused. But the rule governing when that 30-day period begins to run when no Rule 58 judgment has been entered—Rule 4(a)(7)(A)—is not jurisdictional. So the court had some leeway in starting the 30-day appeal clock.

You can read more in my post on Vergara, Everything Was Late, but Nothing Was Jurisdictional

Vergara v. City of Chicago, 2019 WL 4744701 (7th Cir. 2019), available at the Seventh Circuit and Westlaw.

The Sixth Circuit defined “disclosure” for purposes of appeals under the Classified Information Procedures Act

In United States v. Asgari, the Sixth Circuit held that the government could immediately appeal an order requiring the government to give defense counsel classified information.

Asgari involved the prosecution of a scientist who worked at Case Western Reserve University. He was charged with stealing trade secrets and fraud. The government refused to disclose certain classified information as part of discovery, but the district court eventually ordered that the information be provided to the defendant’s counsel (who had top-secret/sensitive-compartmented-information security clearance). The government then appealed.

Under § 7 of the the Classified Information Procedures Act, the government may immediately appeal an order “authorizing the disclosure of classified information.” At issue in Asgari was whether giving information to only defense counsel amounted to a “disclosure” under the Act.

The Sixth Circuit concluded that it did. Although the Act does not define the term, “[a]n order that makes classified information known to someone without access to it counts as a disclosure.” Providing this information to defense counsel was thus a disclosure:

Before the court issued its order, defense counsel for Asgari did not have access to this classified information. That indeed was the point of the order. After the order, defense counsel would have had access to these national security secrets. All in all, that counts as an order authorizing the disclosure of classified information.

The court went on to hold that the district court erred in ordering the disclosure; the district court was responsible for first determining whether the information was relevant, and it could not delegate that task to defense counsel.

United States v. Asgari, 2019 WL 4894345 (6th Cir. 2019), available at the Sixth Circuit and Westlaw.

The Eleventh Circuit on the timeliness and content of a notice of appeal

In Cunningham v. Fulton County, the Eleventh Circuit had to clear away some preliminary issues involving the notice of appeal before addressing the merits. All issues stemmed from the perfectly common occasion of the district court resolving different claims at different times. The district court first dismissed the plaintiffs’ Fair Labor Standards Act claims against Fulton County. Several months later, the district court granted summary judgment for the defendants on the remaining claims. The plaintiffs then appealed these and other orders.

The Eleventh Circuit quickly rejected the county’s argument that the appeal of the FLSA claim was untimely. Granted, the plaintiffs waited more than 30 days after the dismissal of that claim before filing their notice of appeal. But the dismissal of that claim did not resolve all claims against all parties. It was therefore not final or appealable. It was only after the district court granted summary judgment on the remaining claims that the time for appealing began to run. And the plaintiffs filed their notice of appeal within 30 days of that decision.

The Eleventh Circuit also saw an issue with the notice of appeal’s content. The plaintiffs had designated only the order granting summary judgment, and they did not mention the earlier dismissal of their FLSA claim. But “[r]ead charitably,” the notice revealed an intent to appeal both decisions. And that, the Eleventh Circuit held, was enough to satisfy Appellate Rule 3(c).

The Eleventh Circuit reached the right outcome on both of these issues. But the second one (involving the content of the notice of appeal) shouldn’t have even been an issue. As the recent proposed amendments to Rule 3(c) indicate, the requirement that the appellant designate the order appealed from is not supposed to affect the scope of the appeal. The plaintiffs rightly identified the decision that gave the court of appeals jurisdiction (and from which the time for filing their notice of appeal was calculated). Hopefully the proposed amendment will prevent this from being an issue in the future.

Cunningham v. Fulton County, 2019 WL 4795484 (11th Cir. 2019), available at the Eleventh Circuit and Westlaw.

The Fifth Circuit dismissed an appeal from an order striking a civil-forfeiture claim

In United States v. M/Y GALACTICA STAR, the Fifth Circuit held that it lacked jurisdiction to review an order striking a claim in a civil forfeiture action. The court also seemed displeased with the parties’ failure to see the lack of jurisdiction before the case reached oral argument.

The case was a civil forfeiture action, with the government seeking assets related to a conspiracy to obtain business opportunities from Nigeria’s Minister for Petroleum Resources. The district court had stricken a corporation’s claim to the assets subject to forfeiture and entered an order that it labeled “Final Judgment.” The corporation then appealed.

Throughout the appeal, the corporation asserted a slew of grounds for appellate jurisdiction: a “final decision” under 28 U.S.C. § 1291, a certified appeal under Rule 54(b), an interlocutory decree in an admiralty case under 28 U.S.C. § 1292(a)(3), and the collateral-order doctrine. The government did not contest appellate jurisdiction in the briefing. It did, however, acknowledge the problem at oral argument, though the court appears to have not been thrilled with the government:

At oral argument, after we questioned the finality of the district court’s judgment . . . , the Government, for the first time, admitted it “had not noticed the potential jurisdictional defect”, stated “[the court] makes a good point with regard to Rule 54(b) that there actually may not be jurisdiction here”, and that “[it] takes that point seriously”. When questioned further about jurisdiction, the only points made by the Government were those prefaced by the phrases “as you pointed out” and “as you also point out”.

The Fifth Circuit held that it lacked jurisdiction. The decision was not a traditional final judgment because it did not resolve the forfeiture proceedings. There was no Rule 54(b) certification, as nothing the district court did came close to stating that an appeal was proper under that rule. (The appealing corporation nevertheless said that there was such a certification, which the Fifth Circuit characterized as “grossly misleading.”) The case was never treated as one arising under the admiralty jurisdiction, so § 1292(a)(3) was off of the table. Nor was the decision appealable under the collateral-order doctrine; the appealing corporation had never developed the argument that it was, and (even if the corporation had) the decision was reviewable on appeal from the final judgment.

United States v. M/Y GALACTICA STAR, 2019 WL 4855468 (5th Cir. 2019), available at the Fifth Circuit and Westlaw.

The Eleventh Circuit rejected pendent jurisdiction over a wrongful-death claim

In Brown v. Nocco, the Eleventh Circuit declined to exercise pendent appellate jurisdiction in a qualified-immunity appeal over a state wrongful-death claim. Resolution of the state law claim was neither inextricably intertwined with the qualified-immunity issues, nor was review of the claim necessary to decide qualified immunity.

Brown v. Nocco, 2019 WL 4858254 (11th Cir. 2019), available at the Eleventh Circuit and Westlaw.

New cert petition on the appealability of remand orders in removal proceedings

A new cert petition asks the Supreme Court to decide if a Board of Immigration Appeals order denying some relief but also remanding a case to an Immigration Judge is a final order that must be immediately appealed. The courts appear to have split on the circumstances in which a remand order is final.

The case is Perez Castillo v. Barr, No. 19-442. The response is due November 4, 2019.

Petition for a Writ of Certiorari, Perez Castillo v. Barr, No. 19-442 (September 30, 2019), available at Westlaw.

Response brief filed in Princeton Digital

The brief in opposition to cert was filed in Princeton Digital Image Corp. v. Adobe Inc., No. 18-1343. The case involves an odd Federal Circuit decision on the effect of a claimant’s voluntarily dismissing its claims with prejudice. The Federal Circuit held that the dismissal was not “final” and thus not appealable. But it went on to hold that because the order was not “final” there was more to do in the district court—even though the only remaining claims had been voluntarily dismissed with prejudice.

The petition isn’t yet scheduled for conference.

You can read up on the Federal Circuit’s decision and the cert petition here: Cert Petition Gives the Supreme Court the Chance to Re-Explain Microsoft Corp. v. Baker.

Brief in Opposition, Princeton Digital Image Corp. v. Adobe Inc., No. 18-1343 (Sep. 30, 2019), available at the Supreme Court and Westlaw.

Reply brief filed in Katz v. Cellco Partnership

The reply in support of cert was filed in Katz v. Cellco Partnership, No. 18-1543. The case asks if district courts must stay an action—not dismiss it—after ordering arbitration. The courts of appeals have split on this issue, and the Supreme Court has been ducking it for years.

The petition has been distributed for the Court’s conference on October 18, 2019.

You can read more about the issue here: Lamps Plus Never Should Have Gotten This Far

Reply Brief for Petitioner, Katz v. Cellco Partnership, No. 18-1543 (Sep. 27, 2019), available at the Supreme Court and Westlaw.