The Week in Federal Appellate Jurisdiction: December 13–19, 2020

This is the last weekly roundup of 2020. (I’ll be back after the new year with a post covering the two holiday weeks.) And it involves some pretty technical cases.

Two decisions—one from the Fourth Circuit and another from the Sixth—dealt with the jurisdictional impact of procedural rules. The Fourth Circuit held that Federal Rule of Appellate Procedure 4(a)(4)(B)(ii) is jurisdictional. So the court could not excuse the failure to file a second or amended notice of appeal challenging the district court’s decision on a post-judgment motion. The Sixth Circuit said that the filing deadlines for post-judgment motions are not jurisdictional. So the time to appeal can run from the resolution of a late-filed post-judgment motion. And the Fifth Circuit held that a habeas petitioner could not immediately appeal the refusal to lift a protective order. The decision displayed some case-specific reasoning that you occasionally see in collateral-order doctrine cases.

• The Fourth Circuit Held that Rule 4(a)(4)(B)(ii) Is Jurisdictional
• The Fifth Circuit Said No Appealing Protective Orders via the Collateral-Order Doctrine
• The Sixth Circuit Held that the Time to Appeal Ran From an Untimely Motion for Reconsideration

The Fourth Circuit Held that Rule 4(a)(4)(B)(ii) Is Jurisdictional

Federal Rule of Appellate Procedure 4(a)(4) governs the effect of post-judgment motions on notices of appeal. Rule 4(a)(4)(A) provides that a variety of these motions can delay the start of the normal appeal clock. Rule 4(a)(4)(B)(i) says that a notice of appeal filed before the district court resolves any of these motions relates forward to the district court’s subsequent decision. And Rule 4(a)(4)(B)(ii) adds that when parties file a notice of appeal before the district court resolves a post-judgment motion, they must file a second or amended notice to challenge a the subsequent decision on that motion.

In Bracey v. Lancaster Foods LLC, the Fourth Circuit held that this last requirement—of a second or amended notice to challenge the resolution of a post-judgment motion—is jurisdictional. The plaintiff in that case initially made only one argument in opposition to the defendant’s motion to compel arbitration. When the district court rejected that argument, the plaintiff sought reconsideration and added two new arguments. But he filed only one notice of appeal, and he filed it before the district court denied his motion for reconsideration. The Fourth Circuit deemed the failure to file a second or renewed notice a jurisdictional one. It accordingly lacked jurisdiction to address the plaintiff’s second and third arguments against arbitration.

For more on Bracey and my reasons for questioning the jurisdictional holding, see my post Fourth Circuit Says Rule 4(a)(4)(B)(ii) Is Jurisdictional.

Bracey v. Lancaster Foods LLC, 2020 WL 7385192 (4th Cir. Dec. 16, 2020), available at the Fourth Circuit and Westlaw.

The Fifth Circuit Said No Appealing Protective Orders via the Collateral-Order Doctrine

In United States v. Martin, the Fifth Circuit held that it lacked jurisdiction to review the refusal to lift a protective order.

Martin was a federal habeas case. In the underlying drug prosecution, the district court issued a protective order covering materials the government had produced in discovery. Those materials contained sensitive information, like statements from informants and cooperation agreements. After the defendant was convicted, he sought federal habeas relief. And in that habeas proceeding, he asked the district court to lift the protective order. The district court refused, and the defendant appealed.

The Fifth Circuit determined that it lacked jurisdiction. The order was not final, as the habeas proceedings were still ongoing. Nor could the defendant appeal via the collateral-order doctrine. That doctrine allows for immediate appeals of orders that (1) conclusively resolve an issue, (2) involve an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal from a final judgment. And the defendant’s appeal appeared to fail the second and third requirements. The defendant did not identify any “critical interests” that warranted immediate review. And if the defendant lost in the habeas proceedings, he could then appeal and challenge the refusal to lift the protective order.

One point worth noting: Martin is another example of a collateral-order doctrine case using case-specific reasoning. Decisions under the doctrine are supposed to be categorical—either a type of order is always appealable, or it never is. The Fifth Circuit mentioned this point in the opinion’s legal background. But the court’s reasoning focused on the specifics of this particular case: whether the defendant had shown a “critical interest” in these discovery materials, and whether the court would be able to effectively review this refusal to lift a protective order.

You see this occasionally in collateral-order cases; see here and here for examples. I once speculated that this was because the collateral-order doctrine asks courts to make a generally pragmatic assessment of the costs and benefits of immediate appeal based on limited data—the particular case before the court. Given the difficulty of crafting an across-the-board appeal rule based on a single case’s information, it’s not surprising that courts occasionally revert to case-specific reasoning.

United States v. Martin, 2020 WL 7379910 (5th Cir. Dec. 15, 2020), available at the Fifth Circuit and Westlaw.

The Sixth Circuit Held that the Time to Appeal Ran From an Untimely Motion for Reconsideration

In United States v. $68,812.00 in U.S. Currency, the Sixth Circuit held that the time to appeal ran from the district court’s denial of a post-judgment motion, even though that post-judgment motion was not timely filed.

A lot of the case’s details are irrelevant to the jurisdictional point. The case was a civil forfeiture action, and the district court rejected a claimant’s contention that she owned the seized money. She then filed an untimely motion for reconsideration. The government did not object to the late filing, and the district court eventually denied reconsideration. The claimant then appealed.

On appeal, the Sixth Circuit concluded that the appeal was timely. Because the United States was a party to the case, the claimant had 60 days after the denial of her reconsideration motion to file a notice of appeal. The claimant met that deadline. And the untimeliness of the motion for reconsideration did not change matters. The court noted that the filing deadlines for reconsideration motions come from the rules of procedure. Those deadlines are accordingly not jurisdictional; they can be waived or forfeited. So the “untimely motion did not deprive the district court of jurisdiction to rule on the motion; the United States forfeited any argument that the motion was late; and [the claimaint]’s subsequent appeal of the district court’s denial [was] timely.”

United States v. $68,812.00 in U.S. Currency, 2020 WL 7382056 (6th Cir. Dec. 16, 2020), available at the Sixth Circuit and Westlaw.