The Week in Federal Appellate Jurisdiction: March 28–April 3, 2021

Last week, the Tenth Circuit tackled a bunch of appellate-jurisdiction issues before reversing the refiling restrictions that a district court had imposed on a plaintiff’s attorney. The Fifth Circuit rejected a defendant’s attempt to challenge the factual basis for a qualified-immunity denial. The Seventh Circuit once again explained district courts’ discretion to extend appeal deadlines due to excusable neglect or good cause. The Eleventh Circuit held that it could not review a decision from the Board of Immigration Appeals that remanded a case to an immigration judge for further proceedings. And the Third Circuit said that attaching an order to a notice of appeal counts as designating that order for appeal.

• Conditions on Refiling & Attorney Appeals
• The Fifth Circuit Rejected Factual Challenges to a Qualified-Immunity Denial
• The Seventh Circuit Reiterated the Deference Owed to Extensions of the Appeal Deadline
• The Eleventh Circuit Dismissed an Appeal From an Immigration Remand
• The Third Circuit on Designating an Appealed Order by Attaching It to a Notice of Appeal

Conditions on Refiling & Attorney Appeals

In Frank v. Crawley Petroleum Corp., the Tenth Circuit addressed just about every appellate-jurisdiction issue that could arise when an attorney appeals to challenge conditions on refiling. The district court in Frank had granted the plaintiff’s voluntary dismissal of a purported class action. But in doing so, the court restricted the plaintiff’s attorney’s ability to refile a similar class action. In the attorney’s appeal, the Tenth Circuit addressed the adequacy of the notice of appeal, the proper party for the appeal, appellate standing, and finality. The court ultimately concluded that none of these issues stood in the way of the court’s addressing the merits. So the attorney could appeal to challenge the restrictions on refiling.

For more on Frank, see my post Conditions on Refiling & Attorney Appeals.

Frank v. Crawley Petroleum Corp., 2021 WL 1166396 (10th Cir. Mar. 29, 2021), available at the Tenth Circuit and Westlaw.

The Fifth Circuit Rejected Factual Challenges to a Qualified-Immunity Denial

In Roque v. Harvel, the Fifth Circuit rejected several attempts to challenge the factual basis for the denial of qualified immunity.

Simplifying a bit, Roque involved the fatal police shooting of a man who was threatening to kill himself. Several officers approached the man, who was holding what later turned out to be a BB gun. An officer ordered the man to drop the gun. The man then turned towards the officers. One of the officers shot the man, who then doubled over, dropped the gun, and stumbled away from the officers. A few seconds later, the officer fired a second third shot, the last of which was fatal.

The man’s parents sued of the officer for excessive force. When the officer sought qualified immunity, the district court granted it as to the first shot. But the district court denied immunity as to the second and third shots. According to the district court, a reasonable jury could conclude that the decedent was no longer a threat after the first shot, and the officer should have realized as much. With no threat to the officer or anyone else, the second and third shots would be constitutionally excessive.

The officer appealed the denial of immunity. But in that appeal, the officer largely challenged the factual basis for the immunity denial. The officer argued, for example, that the evidence was insufficient to disprove his claim that he thought the decedent had not dropped his gun and was still a threat. The plaintiffs, however, had offered video and expert evidence “that a reasonable officer should have seen Jason drop his black gun on the white sidewalk in broad daylight.” The officer also argued that the decedent was still ambulatory after the first shot. But the plaintiffs argued that the video showed “a wounded man moving away from everyone at the scene.”

These factual challenges were a problem. 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. And that is precisely what happened in Roque. The district court determined that the above-mentioned fact disputes were genuine. The defendant nevertheless challenged that determination in his appeal.

The Fifth Circuit rejected these efforts. It lacked jurisdiction to second guess whether the fact disputes were genuine. And those fact disputes were material:

If [the decedent] was incapacitated, he no longer posed a threat. And if he no longer posed a threat, [the officer]‘s second and third shots were excessive and unreasonable. Whether [the decedent] was incapacitated is therefore not only disputed but material to Plaintiffs’ Fourth Amendment claim.

So on the facts that the district court thought a reasonable jury could find, the officer violated clearly established law. The court accordingly affirmed the denial of qualified immunity.

Roque v. Harvel, 2021 WL 1220156 (5th Cir. Apr. 1, 2021), available at the Fifth Circuit and Westlaw.

The Seventh Circuit Reiterated the Deference Owed to Extensions of the Appeal Deadline

In Perry v. Brown, the Seventh Circuit rejected a challenge to two extensions of the appeal deadline.

The petitioner in Perry was incarcerated in an Indiana prison. He sought habeas after being disciplined for battering an officer (the details of which are irrelevant to the present discussion). The district court denied habeas. The petitioner then had 30 days to file a notice of appeal.

Those 30 days came and went without a notice of appeal. But shortly thereafter, the petitioner asked the district court to extend the appeal deadline under Federal Rule of Appellate Procedure 4(a)(5)(A). That rule allows the district court to extend the civil appeal deadline due to excusable neglect or good cause. The request must be filed within 30 days of the normal appeal deadline. And the extension must be no more than “30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.” The petitioner in Perry explained that he was busy with several cases and had been denied access to the prison library. The district court granted the request and gave the petitioner an additional two weeks to appeal.

Again, the deadline came and went without a notice of appeal. But shortly after the extended deadline, the petitioner filed a notice of appeal and sought leave to file it late. This time the petitioner explained that he had not received notice of the extended deadline until after it had passed. The district court granted a second extension of time and accepted the notice of appeal.

On appeal, the warden argued that the district court erred in granting these extensions. The Seventh Circuit soundly rejected this contention. As it explained in last year’s Mayle v. Illinois, “the district court is the gatekeeper of the excusable-neglect standard” for extending the appeal deadline. And the district “court does not always need to make an explicit finding of excusable neglect; a summary order suffices if the motion provides ‘an evident path from the record to the district court’s discretionary decision.’”

Judged by those standards, the district court’s decisions in Perry were perfectly acceptable. True, the petitioner had initially neglected to appeal on time. But an extension of the appeal deadline assumes some neglect, which the district court can excuse. And the petitioner gave acceptable reasons for his late filing: lack of access to the prison library and a delay in receiving notice of the first extension. The petitioner’s unintended delays were proper reasons for extending the appeal deadline. So there was no abuse of discretion in the district court’s doing so.

Perry v. Brown, 2021 WL 1220575 (7th Cir. Mar. 31, 2021), available at the Seventh Circuit and Westlaw.

The Eleventh Circuit Dismissed an Appeal From an Immigration Remand

In Campos Ruiz v. U.S. Attorney General, the Eleventh Circuit held that it lacked jurisdiction to review an order from the Board of Immigration Appeals that remanded a case to an immigration judge.

The petitioner in Campos Ruiz had been deemed removable (read: deportable). But an exercise of prosecutorial discretion resulted in the closing of his case. The petitioner then sought a Form I-601A provisional waiver—which, if granted, waives “the unlawful presence grounds of inadmissibility”—which the government approved. But when the petitioner sought to terminate his removal proceedings, the Department of Homeland Security opposed termination. The immigration judge denied the motion to terminate.

The petitioner then appealed that decision to the Board of Immigration Appeals. But the Board explained that once a petitioner has been deemed removable, an immigration judge cannot terminate removal proceedings without the Department’s consent. The Board accordingly remanded the case to the immigration judge.

The petitioner then sought review of the Board’s decision in the Eleventh Circuit. But that court has jurisdiction to review final orders of removal. And a remand for further proceedings before an immigration judge is generally not a final order of removal. Some exceptions to this general rule exist. But none applied in Campos Ruiz. The petitioner could still apply for relief, such as cancellation of removal, before the immigration judge. So there was no final order of removal, and the Eleventh Circuit lacked jurisdiction. The court accordingly dismissed the appeal.

Campos Ruiz v. U.S. Attorney General, 2021 WL 1184396 (11th Cir. Mar. 30, 2021), available at the Eleventh Circuit and Westlaw.

The Third Circuit on Designating an Appealed Order by Attaching It to a Notice of Appeal

In Davis v. Commissioner of Social Security, the Third Circuit said that attaching orders to a notice of appeal was sufficient to designate those orders for the appeal.

Simplifying a bit, the plaintiff in Davis filed a suit challenging the denial of social-security benefits. After the district court affirmed the denial of benefits, the plaintiff tried to raise an Appointments Clause challenge to the staffing of the Social Security Administration. The district court rejected this challenge as untimely because the plaintiff had waited until the district court ruled against her to raise the issue. The plaintiff then appealed to the Third Circuit.

The plaintiff’s notice of appeal designated only the decision affirming the denial of benefits. It did not mention the district court’s subsequent decision on the Appointments Clause challenge. That, the Commissioner of Social Security argued, was a problem. Federal Rule of Appellate Procedure 3(c) requires that a notice of appeal designate the appealed order or judgment. And failure to adequately designate an order can deprive the court of appeals of jurisdiction.

Although she did not mention the Appointments Clause decision in her notice of appeal, the plaintiff had attached a copy of that decision to her notice. This, the Third Circuit concluded, was sufficient to designate that decision. It showed the plaintiff’s intent to appeal the Appointments Clause decision. So, taken together, the notice of appeal and attached decision amounted to the “functional equivalent” of a proper notice. The Third Circuit accordingly had jurisdiction to review the Appointments Clause decision.

Davis v. Commissioner of Social Security, 2021 WL 1169541 (3d Cir. Mar. 29, 2021), available at the Third Circuit and Westlaw.