The Week in Federal Appellate Jurisdiction: November 3–9, 2019

Decision-wise, it was another quiet week in federal appellate jurisdiction. Three courts correctly rejected efforts to limit the scope of an appeal to the orders designated in the notices of appeal. The only other action of note was in the Supreme Court, which denied cert in two petitions I’ve been following.

Several Circuits refused to limit their review only to the orders mentioned in the notices of appeal

In three decisions this week, circuit courts rejected attempts to limit the scope of appeal because a notice of appeal designated only a specific district court decision.

Federal Rule of Appellate Procedure 3(c)(1)(B) requires that a notice of appeal “designate the judgment, order, or part thereof being appealed.” This designation requirement can help the court of appeals to both identify the basis for its jurisdiction and calculate the timeliness of an appeal. But litigants sometimes argue that an appeal should be limited to the orders designated in an appeal. And courts have occasionally bought into this argument.

Not this week.

In McMillian v. Wetzel, the Third Circuit held that it could review a summary-judgment decision even though the notice of appeal designated only the denial of a Rule 54(b) motion. The case involved several claims brought by a prisoner against prison employees and a fellow inmate. Relevant to the jurisdictional issues, the plaintiff alleged (1) § 1983 claims against two guards that allegedly retaliated against him and failed to protect him from a fellow inmate and (2) state law claims against the inmate who attacked him. The district court dismissed the claims against the guards, after which the plaintiff tried to appeal. But the claims against the inmate were still pending, so that appeal was dismissed. To facilitate an immediate appeal of the summary-judgment decision, the prisoner asked the district court to certify the decision for an immediate appeal under Rule 54(b). The district court declined, however, and also declined to exercise supplemental jurisdiction over the state law claims, dismissing them without prejudice. The prisoner then filed his notice of appeal, designating only the order denying his Rule 54(b) motion.

The guards argued on appeal that this designation of the Rule 54(b) decision limited the Third Circuit’s review to that decision. But the Third Circuit disagreed. The summary-judgment and Rule 54(b) decisions were connected—“the very purpose of [the prisoner’s] Rule 54(b) motion was to authorize his appeal of the summary-judgment order.” There was no question that the prisoner wanted to appeal the summary-judgment decision; he had already tried to do so. And the defendants addressed the summary-judgment decision in their brief. There was neither surprise nor prejudice. So the Third Circuit had jurisdiction to review the summary-judgment decision. On the merits, the court reversed in part and remanded the retaliation and failure-to-protect claims for further proceedings.

Similarly, in United States v. Oaks, the Tenth Circuit held that it could review the merits of a motion to revoke pretrial detention even though the defendant had designated only the denial of his motion for reconsideration. The defendant in Oaks had originally pleaded not guilty to several drug crimes. Because he evaded arrest and tried to flee, a magistrate judge ordered him detained pending trial. The defendant later sought to change his plea to guilty. And due to that change in plea, he sought to revoke the magistrate judge’s detention order. The district court denied the revocation motion and a subsequent motion for reconsideration. The defendant then appealed. But his notice of appeal designated only the decision denying reconsideration.

The government argued that the court lacked jurisdiction to address the original denial of revocation; it could only address the denial of reconsideration. But the Tenth Circuit disagreed. The government had relied on the Tenth Circuit’s decision in Powell v. Miller, which held that the court lacked jurisdiction to review the denial of a motion for reconsideration that was filed three years after the initial decision. Powell, the court explained, “does not stand for the proposition that a notice of appeal that only designates an order denying reconsideration prevents this court from considering a challenge to the underlying substantive order.” The Tenth Circuit went on to affirm the denial of revocation.

And in Sherrod v. Harkleroad, the Fourth Circuit held that a notice designating only one district court decision did not bar review of other decisions. Simplifying a bit, Sherrod was prisoner suit for deliberate indifference brought against several prison employees. The district court dismissed the plaintiff’s claims in a series of orders made over several years. The first two each dismissed claims against only one employee. The third and final order dismissed the remaining claims against the remaining employees. The plaintiff then appealed, designating only that third order in his notice of appeal. But he sought review of the first two orders.

The employees who were dismissed in the first two orders argued that the court lacked jurisdiction to review those dismissals. But the Fourth Circuit disagreed. It noted that the plaintiff could not have appealed those earlier decisions until the third and final one. And once that final decision was made, all prior decisions merged into it. The Fourth Circuit thus had jurisdiction. It went on affirm the dismissals.

These were all good jurisdictional decisions. Rule 3(c)’s designation requirement should not be used to limit the scope of appellate review. And pending amendments to that rule should remove any doubt on that point.

McMillian v. Wetzel, 2019 WL 5691814 (3d Cir. Nov. 4, 2019), available at the Third Circuit and Westlaw.

United States v. Oaks, 2019 WL 5692529 (10th Cir. Nov. 4, 2019), available at the Tenth Circuit and Westlaw.

Sherrod v. Harkleroad, 2019 WL 5704790 (4th Cir. Nov. 5, 2019), available at the Fourth Circuit and Westlaw.

Cert denials

The Supreme Court denied cert in two appellate-jurisdiction cases that I’ve been following. First was Princeton Digital Image Corp. v. Adobe Inc., which gave the Court the chance to re-explain its decision in Microsoft Corp. v. Baker. Second was Brigham and Women’s Hospital, Inc. v. Perrigo Co., which asked if an award of compensatory damages in a patent-infringement action is final and appealable despite an unresolved issue as to the damages enhancement.