The Week in Federal Appellate Jurisdiction: January 31–February 6, 2021

What a week. Another court weighed in on Guerrero-Lasprilla’s effect on appeals from the denial of cancellation-of-removal. Several courts had to deal with potentially deficient notices of appeal. The Eleventh Circuit applied its new (and improved) law on the finality trap. The Third Circuit held that it lacked jurisdiction when the district court had not resolved the defendants’ cross-claims, even though those cross-claims were effectively moot. And two courts rejected defendants’ attempts to challenge the facts in a qualified-immunity appeal.

• The Seventh Circuit Discussed Guerrero-Lasprilla’s Effect on Cancellation-of-Removal Cases
• Several Courts Addressed the Filing, Timing, and Content of Notices of Appeal
• The Eleventh Circuit Applied Its New Law on the Finality Trap
• The Third Circuit on Unresolved—but Practically Moot—Cross-Claims and Finality
• This Week’s Fact-Based Qualified-Immunity Appeals

The Seventh Circuit Discussed Guerrero-Lasprilla’s Effect on Cancellation-of-Removal Cases

Immigration law generally strips the courts of appeals of jurisdiction to review a variety of decisions made in immigration proceedings. A savings clause adds that they retain jurisdiction to review legal and constitutional issues. Until recently, most (if not all) courts of appeals broadly read the jurisdiction-stripping provisions to bar appellate review in a variety of contexts. But in last year’s Guerrero-Lasprilla v. Barr, the Supreme Court held that the savings clause preserves jurisdiction to review mixed questions of law and fact.

Guerrero-Lasprilla has required many courts of appeals to reexamine their earlier caselaw. Last week, in Martinez-Baez v. Wilkinson, the Seventh Circuit discussed the matter at some length and seemed open to holding that Guerrero-Lasprilla applied in cancellation-of-removal context. Although the cancellation-of-removal decision is discretionary, mixed questions of law and fact can underly that decision. So a holding that Guerrero-Lasprilla applies just as much in the cancellation-of-removal context would allow more thorough review of cancellation denials.

The court ultimately did not have to address the question, as it could grant the petition for review on other grounds. But it’s an issue on which the circuits appear to have already split. We’ll have to wait and see what the Seventh Circuit ultimately holds when the issue is squarely presented.

For more on the decision and the growing split, see my post The Seventh Circuit on Guerrero-Lasprilla & Cancellation of Removal.

Martinez-Baez v. Wilkinson, 2021 WL 321375 (7th Cir. Feb. 1, 2021), available at the Seventh Circuit and Westlaw.

Several Courts Addressed the Filing, Timing, and Content of Notices of Appeal

Most appeals begin with the filing of a notice of appeal. Those notices have both content and timing requirements. Under Federal Rule of Appellate Procedure 3(c), a notice must specify three things: the appealing parties, the appealed order or judgment, and the court to which the party is appealing. As for timing, Rule 4(a)(1) requires that most civil appeals be filed within 30 days of the appealed order or judgment. Some of these requirements are quite strict. A late notice of appeal, for example, forfeits the right to appeal, though various means exist to extend or restart the appeal deadline. The failure to meet other requirements can be excused, and Rule 3(c)(4) says that “[a]n appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice.”

Last week, several courts of appeals addressed issues with a notice of appeal’s filing, timing, or content. As for filing, the Sixth Circuit held that a paper notice of appeal was sufficient, even though local rules required electronic filing. In contrast, the Seventh Circuit held that an emailed notice was not effectively filed. Timing issues arose in both the Eleventh and Third Circuits. The Eleventh Circuit held that a pro se, post-judgment motion from a represented party could delay the start of the appeal clock. And the Third Circuit held that a premature notice of appeal related forward to the district court’s final judgment. Finally, as for content, the Eleventh Circuit reminded litigants that designating the district court’s final judgment is sufficient to appeal all interlocutory decisions that merge into that judgment.

For discussions of these cases, see my post Navigating Notices of Appeal.

The Eleventh Circuit Applied Its New Law on the Finality Trap

In Maier v. Green Eyes USA, Inc., the Eleventh Circuit held that it had appellate jurisdiction even though the plaintiff had dismissed some of her claims without prejudice.

Maier arose from a fatal highway accident. The decedent’s spouse sued a variety of defendants, including two insurance companies. After determining that the insurance companies could not be liable to the decedent’s estate, the district court dismissed all claims against them. Then things got complicated. The important point is that the plaintiff eventually moved to dismiss her claims against all of the other defendants without prejudice. The district court granted this request, and the plaintiff then tried to appeal the dismissal of her claims against the insurance companies.

In this first appeal, the Eleventh Circuit held that it lacked jurisdiction. This first panel thought that the voluntary dismissal of some claims without prejudice did not result in a final, appealable decision. The plaintiff then tried several times to secure an appeal:

• The plaintiff moved to amend the district court’s summary-judgment order under Federal Rule of Civil Procedure 54(b) or Rule 60(b). The district court denied that motion. The district court thought that it could not retroactively enter a partial judgment under Rule 54(b), and Rule 60(b) does not apply to a non-final order.
• The plaintiff then moved to reopen the case, reinstate the voluntarily dismissed claims, and then dismiss them with prejudice. The district court again refused, thinking that it needed more information about the voluntarily dismissed defendants (a few of which had filed for bankruptcy while the plaintiff’s case was pending).
• Finally, the plaintiff moved for a second time to reopen the case, reinstate the voluntarily dismissed claims, and dismiss them with prejudice. This time, she provided the requested information about the defendants who had entered bankruptcy. But the district court again denied the motion to reopen, concluding that there was no way to revive the voluntarily dismissed claims.

The plaintiff then appealed again to the Eleventh Circuit.

In the interim, the Eleventh Circuit decided Corley v. Long-Lewis, Corp., which held that the resolution of some claims is final and appealable despite a plaintiff’s voluntarily dismissing some of those claims without prejudice. So in the Maier plaintiff’s latest appeal, the Eleventh Circuit held that it had jurisdiction.

Maier illustrates the silliness of the finality trap. Just look at all the effort the plaintiff had to expend to try and secure a final, appealable judgment.

The Eleventh Circuit also rejected the insurance companies’ argument that the plaintiff’s notice of appeal was deficient. In that notice, she had specified only the district court’s rejection of the second motion to reopen as the appealed decision—not the earlier summary-judgment decision dismissing the insurance companies. And Federal Rule of Appellate Procedure 3(c) requires that a notice of appeal designate the order or judgment from which a party is appealing. The Eleventh Circuit nevertheless held that the notice was sufficient. The insurance companies had “been along for the whole ride,” and everyone knew that the plaintiff wanted to appeal the summary-judgment decision. So the plaintiff’s leaving that decision off of the notice of appeal did not mislead or prejudice anyone.

Maier v. Green Eyes USA, Inc., 2021 WL 406912 (11th Cir. Feb. 5, 2021), available at the Eleventh Circuit and Westlaw.

The Third Circuit on Unresolved—but Practically Moot—Cross-Claims and Finality

In Chavis v. State of New Jersey, the Third Circuit dismissed an appeal because the district court had not resolved the defendants’ cross-claims.

Chavis involved claims against a variety of defendants stemming from the plaintiff’s care at two hospitals. In their answers, the defendants pleaded several cross-claims for indemnification and contribution. The defendants also moved to dismiss the plaintiff’s complaint for failure to state a claim, which the district court granted. The district court did not, however, resolve the cross-claims or enter a partial judgment under Federal Rule of Civil Procedure 54(b). The plaintiff nevertheless appealed to the Third Circuit.

The Third Circuit held that it lacked jurisdiction. The district court had not resolved all claims, so there was no final decision. To be sure, the cross-claims were “practically” disposed of—they were based on indemnification and contribution and thus moot once the plaintiff’s claims were dismissed. But that did not change the finality calculus. When given the opportunity, the defendants refused to waive or abandon their cross-claims. A district court resolution of those claims was therefore necessary before anyone could appeal.

Chavis v. State of New Jersey, 2021 WL 376078 (3d Cir. Feb. 3, 2021), available at the Third Circuit and Westlaw.

This Week’s Fact-Based Qualified-Immunity Appeals

Defendants have a right to immediately appeal from the denial of qualified immunity. But the scope of those appeals is limited. With rare exceptions, defendants appealing from the denial of qualified immunity at summary judgment can dispute only the materiality of any fact disputes. They cannot argue that the district court erred in concluding that fact disputes were genuine. That is, they cannot dispute the district court’s determination of what a reasonable jury could find.

Defendants regularly flout this limit on the scope of interlocutory qualified-immunity appeals. They appeal from the denial of immunity to argue that the district court erred in determining what a reasonable jury could find. Appellate courts eventually dismiss these improper appeals. But at that point, the damage is done. District courts often stay proceedings pending the appeal, which can take months or years to resolve. These improper appeals thus add wholly unnecessary difficulty, expense, and delay to civil-rights litigation. These improper appeals are also one of the main reasons why, should qualified immunity stick around in its current or an altered form, the rules governing qualified-immunity appeals need to change.

Last week saw two of these appeals.

Estate of Davis v. Ortiz involved the fatal police shooting of a passenger in a fleeing car. The decedent’s estate sued the officer who fired the fatal shot. And the district court denied the officer’s request for qualified immunity. According to the district court, a reasonable jury could find find that the officer was firing generally at the vehicle—not at the driver or any other area that might stop it. And were a jury to so find, the officer would have violated clearly established law. The officer appealed. And in that appeal, he nearly asked the court to accept his version of events—that he focused on the driver and the vehicle when shooting. All of the officer’s arguments on appeal disputed the facts. The Seventh Circuit accordingly held that it lacked jurisdiction over the appeal.

Stella v. Anderson involved deliberate indifference claims against a jail nurse. The decedent in Stella had fallen from her bunk bed, rupturing her spleen and causing internal bleeding that soon led to her death. The decedent’s estate sued the nurse who treated the decedent. And according to the district court, a reasonable jury could find that the nurse was subjectively aware of the need for medical attention. The nurse nevertheless appealed and argued that the evidence did not show his subjective awareness of the need for medical attention. The Tenth Circuit held that it lacked jurisdiction to review that challenge to the facts. And although the nurse had referenced a few issues over which the court might have had interlocutory jurisdiction, he did not develop those issues in his brief and thereby forfeited them. That left nothing for the Tenth Circuit to address, so the court dismissed the appeal.

Estate of Davis v. Ortiz, 2021 WL 402487 (7th Cir. Feb. 5, 2021), available at the Seventh Circuit and Westlaw.

Stella v. Anderson, 2021 WL 377396 (10th Cir. Feb. 3, 2021), available at the Tenth Circuit and Westlaw.