The Week in Federal Appellate Jurisdiction: February 14–20, 2021

Last week saw another COVID-19 related appeal from a temporary restraining order. The Eleventh Circuit addressed the order-designation requirement for notices of appeal with mixed results. The Ninth Circuit held that it could not review a refusal to expedite criminal proceedings after a defendant allegedly violated the terms of his supervised release. The Fourth Circuit dismissed an appeal from a defendant’s children after the defendant used their bank accounts to post a supersedeas bond. And the Eighth Circuit held that a decision was not final due to unresolved claims—even though the district court thought it was done with the case.

Let’s start with a new cert petition on preserving legal issues via a denied summary-judgment motion.

• New Cert Petition on Preserving Legal Issues via Denied Summary-Judgment Motions
• The Ninth Circuit Reviewed a Temporary Restraining Order Entered in a COVID-19/Prison Conditions Case
• The Eleventh Circuit on Designating Decisions in a Notice of Appeal
• The Ninth Circuit Lacked Jurisdiction to Review the Refusal to Begin Proceedings for Violating a Supervised Release
• The Fourth Circuit Dismissed an Appeal Challenging the Inclusion of Certain Bank Accounts in a Supersedeas Bond
• The Eighth Circuit Dismissed an Appeal Due to Unresolved Claims, Despite the District Court’s Entry of a Judgment

New Cert Petition on Preserving Legal Issues via Denied Summary-Judgment Motions

The Supreme Court held in Ortiz v. Jordan that parties cannot appeal evidence-sufficiency issues raised in a denied summary-judgment motion after a trial on the merits. Parties must instead raise issues with the sufficiency of the trial evidence via a motion under Federal Rule of Civil Procedure 50. But Ortiz left open the possibility that a denied summary-judgment motion could preserve purely legal issues for appeal. And that’s an issue on which the courts have split.

A new cert petition asks the Supreme Court to resolve this split. The case is Ericsson Inc. v. TCL Communication Technology Holdings Ltd., and the response is due March 19, 2020.

For more on the petition and the underlying split, see New Cert Petition on “Appealing” Summary-Judgment Denials.

Petition for a Writ of Certiorari, Ericsson Inc. v. TCL Communication Technology Holdings Ltd., No. 20-1130 (Feb. 11, 2021), available at the Supreme Court and Westlaw.

The Ninth Circuit Reviewed a Temporary Restraining Order Entered in a COVID-19/Prison Conditions Case

In Zepeda Rivas v. Dennings, the Ninth Circuit held that it could review a temporary restraining order requiring the release of people held at overcrowded jails.

Dennings involved a class petition for a writ of habeas corpus, filed by plaintiffs detained in two jails. The plaintiffs argued that the combination of overcrowding and COVID-19 created unconstitutionally unsafe conditions. The district court agreed and entered a temporary restraining order establishing a system to consider bail applications. The district court eventually granted indefinite release to over 130 people. The government then appealed from the temporary restraining order (as well as a related preliminary injunction and the individual bail orders).

Appellate jurisdiction was uncertain when it came to the temporary restraining order and the bail decisions. 28 U.S.C. § 1291(a)(1) gives the court of appeals jurisdiction to review injunctions. Temporary restraining orders are generally not injunctions for appeal purposes. But exceptions to that general rule exist, and courts will treat temporary restraining orders as injunctions in certain conditions. Relevant considerations include whether the district court held a hearing, whether the parties contested the propriety of the order, and the duration of any ordered relief.

The Ninth Circuit held that both the bail decisions and the temporary restraining order were appealable. As for the bail orders, “[t]he district court issued each bail order following adversarial briefing by both parties and the government strenuously challenged the district court’s legal basis for issuing each bail order.” “Moreover, the district court’s bail orders were entered for an indefinite period, thus exceeding the presumptive 14-day duration of temporary restraining orders.”

With jurisdiction over the bail orders, the Ninth Circuit then extended pendent appellate jurisdiction over the temporary restraining order. The temporary restraining order provided the basis for the bail decisions—it “articulated the district court’s legal justification for the bail orders.” The two kinds of orders “worked in tandem.” Reviewing the temporary restraining order was thus necessary to effectively review the bail decisions.

Zepeda Rivas v. Dennings, 2021 WL 631805 (9th Cir. Feb. 18, 2021), available at the Ninth Circuit and Westlaw.

The Eleventh Circuit on Designating Decisions in a Notice of Appeal

Federal Rule of Appellate Procedure 3(c) requires that a notice of appeal designate the order or judgment that a party wants to appeal. Several courts of appeals have read this requirement to mean that appellate jurisdiction exists over only the specified judgment or order. That is, the designation of one decision implicitly waives all others. Proposed amendments to Rule 3(c) will abrogate this line of decisions. And those amendments can’t come soon enough.

In the meantime, courts continue to address alleged violations of the notice-designation requirement with mixed results. Two decisions from the Eleventh Circuit illustrate as much.

United States v. Zamor

In United States v. Zamor, the Eleventh Circuit held that a notice of appeal designating the denial of a new trial included a prior order denying access to alleged Brady/Giglio material.

Simplifying a bit, the defendant in Zamor was charged and convicted of several firearms offenses. He later moved for a new trial, claiming that he had new evidence. At the start of a hearing on that motion, the district court denied the defendant’s request to access “Brady/Giglio material”—material in the government’s hands that was favorable to the defendant or would show that the government submitted false evidence. The district court reviewed the material in camera and concluded that none of it needed to be disclosed. The district court then held a two-day hearing on the defendant’s claims of newly discovered evidence. At the close of that hearing, the district court denied the motion for a new trial. The defendant appealed.

Before the Eleventh Circuit, the government contended that the defendant had failed to properly appeal the district court’s ruling on the alleged Brady/Giglio material. The defendant’s notice of appeal designated only the denial of a new trial. It did not designate the decision on the alleged Brady/Giglio material. The government accordingly argued that the Eleventh Circuit lacked jurisdiction over that issue.

The court of appeals rejected that argument. The defendant’s notice of appeal designated the final, appealable order—the denial of a new trial. The defendant had not limited the scope of his appeal by designating specific parts of that order. And the Brady/Giglio issues were relevant to the district court’s ultimate denial of the new-trial motion. The Eleventh Circuit accordingly concluded that it had jurisdiction over all issues the defendant raised.

United States v. Zamor, 2021 WL 567515 (11th Cir. Feb. 16, 2021), available at the Eleventh Circuit and Westlaw.

Adams v. Pardise Cruise Line Operator Ltd.

Contrast Zamor with the Eleventh Circuit’s decision in Adams v. Pardise Cruise Line Operator Ltd., which held that a notice of appeal designating a summary-judgment grant did not include a related decision on the admissibility of expert testimony.

The plaintiff in Adams slipped and fell after using a shower aboard the defendant’s cruise ship. She sued, alleging that a corroded spot near the shower stall allowed water to pool on the bathroom floor, creating a dangerous condition. The district court granted summary judgment to the cruise line, concluding that there was no evidence of a dangerous condition. In reaching that conclusion, the district court relied on the cruise line’s expert witness, who reported that there was no corroded spot that would have caused water to pool. The pooling water, the expert concluded, could have been caused only by the plaintiff herself. The plaintiff then appealed. And in that appeal, she challenged the admissibility of the expert witness’s report.

The Eleventh Circuit held that it lacked jurisdiction over the expert-witness issue. The district court had denied the plaintiff’s motion to exclude the expert testimony about a week before the court granted summary judgment. And the plaintiff’s notice of appeal designated only the summary-judgment decision. By failing to designate the denial of her motion to exclude, the plaintiff failed to appeal that decision.

This is a harsh decision. The opinion does not say precisely what decision the plaintiff designated in her notice of appeal, only that it was not the evidentiary decision. But that evidentiary decision should have merged into whatever final decision the plaintiff designated. Deeming the issue outside of the court’s jurisdiction is especially unnecessary, given the Eleventh Circuit’s statement in a footnote that, “[i]n any event,” the district court correctly denied the motion to exclude.

Adams v. Pardise Cruise Line Operator Ltd., 2021 WL 567514 (11th Cir. Feb. 16, 2021), available at the Eleventh Circuit and Westlaw.

The Ninth Circuit Lacked Jurisdiction to Review the Refusal to Begin Proceedings for Violating a Supervised Release

In United States v. Repp, the Ninth Circuit dismissed an appeal from the denial of a request to expedite criminal proceedings.

Simplifying a bit, the petitioner in Repp was convicted of a federal crime in California and sentenced to supervised release. While on supervised release, he committed (and pleaded guilty to) another federal crime in Arkansas. The U.S. Probation Office accordingly obtained a warrant for the petitioner, alleging that he violated the conditions of supervised release for his California conviction. The petitioner then (via a petition for a writ of habeas corpus ad prosequendum) asked a California district court to order him brought to California to begin the proceedings on his alleged violation of supervised release. (Were he successful in doing so, the petitioner might be able to serve any additional sentence concurrently with the Arkansas sentence.) The district court denied that request. The petitioner then appealed.

The Ninth Circuit held that the district court’s decision was not final or appealable. The request to expedite commencement of the California proceedings was not “a full adjudication of the issues nor the [district] court’s final act in the matter.” Upon completion of the Arkansas sentence, those California proceedings would take place.

The court of appeals also determined that the decision was not an appealable collateral order. Under the collateral-order doctrine, a district court decision is deemed final if it (1) conclusively resolves an issue, (2) involves an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal from a final judgment. To be sufficiently important, the order must “involve an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.” (Quotation marks omitted.) The request to expedite the California proceedings did not involve that sort of right. Nor did the lack of immediate appellate irremediably review harm the petitioner; he could “raise his procedural delay arguments to the California federal court once his California supervised release proceedings have commenced.”

United States v. Repp, 2021 WL 613385 (9th Cir. Feb. 17, 2021), available at the Ninth Circuit and Westlaw.

The Fourth Circuit Dismissed an Appeal Challenging the Inclusion of Certain Bank Accounts in a Supersedeas Bond

In United States v. Dent, the Fourth Circuit dismissed an appeal from the defendant’s children after the defendant allegedly used their bank accounts to post a supersedeas bond.

Dent was a False Claims Act case. A jury found for the government, and the district court awarded about $115 million in damages. The district court stayed execution of the judgment pending an appeal so long as the defendant posted a $30 million supersedeas bond. To do so, the defendant used several bank accounts in which he held an interest. Among these bank accounts were three custodial accounts in the names of the defendant’s children. The children objected to the inclusion of those accounts in the bond. But the district court rejected their challenge. The children then appealed.

The Fourth Circuit held that it lacked jurisdiction over the children’s appeal. The district court’s order—requiring the bank accounts be deposited with the court—was not final. Granted, there was a final judgment against the defendant. But the children did not challenge that judgment. They instead challenged a decision made in the separate, post-judgment proceeding concerning execution of the judgment. And the district court’s decision regarding their bank accounts did not resolve that proceeding. The district court must conclusively resolve the ownership of those accounts. After it does so, the children can appeal if they are still aggrieved.

United States v. Dent, 2021 WL 613780 (4th Cir. Feb. 17, 2021), available at the Fourth Circuit and Westlaw.

The Eighth Circuit Dismissed an Appeal Due to Unresolved Claims, Despite the District Court’s Entry of a Judgment

In SD Voice v. Noem, the Eighth Circuit held that an unresolved claim precluded a decision from being final and appealable, even though the district court thought that it was done with the case.

South Dakota passed a law regulating ballot-petition circulators—people who solicit signatures in support of a ballot measure. A ballot-question committee sued, arguing that the regulation violated the First Amendment. The committee’s complaint also challenged another regulation of ballot measures—the filing deadline, which required ballot petitions be filed one year before an election—which predated the new regulation on petition circulators. The district court held that the new regulation of petition circulators was unconstitutional and permanently enjoined it. But the district court did not address the challenge to the filing deadline. South Dakota officials appealed from the permanent injunction. The ballot-question committee cross-appealed, arguing that the district court did not address all of the committee’s claims.

While the appeal was pending, the South Dakota officials’ appeal became moot. The legislature passed a new law that was substantially different from the one deemed unconstitutional. The Eighth Circuit accordingly dismissed that appeal as moot.

As for the cross-appeal, the committee’s argument—that the district court did not resolve all of the committee’s claims—revealed the lack of jurisdiction. Granted, the district court purported to enter a judgment and awarded attorneys’ fees to the committee. But the district court’s belief that it was done with a case did not render that court’s decision final:

The district court’s characterization notwithstanding, we see no indication that the district court decided—or even mentioned—the filing-deadline claim. Its summary denial of the committee’s request for a ruling on the filing-deadline claim is similarly unrevealing. And the district court’s ordered remedy, enjoining enforcement of the petition-circulator regulation, does not resolve the filing-deadline claim, which challenged a statutory provision predating the enjoined regulation.

(Cleaned up significantly.) The Eighth Circuit accordingly dismissed the cross-appeal and remanded for the district court to resolve the filing-deadline claim.

SD Voice v. Noem, 2021 WL 560962 (8th Cir. 2021), available at the Eighth Circuit and Westlaw.