The Week in Federal Appellate Jurisdiction: October 3–9, 2021

Once again, there are only a few decisions of note from the last week. The Fifth Circuit explained that litigants can wait until the entry of a final judgment before moving to reconsider an interlocutory decision. And the Third Circuit refused to use pendent appellate jurisdiction to review the denial of a motion to amend alongside an injunction appeal.

In Supreme Court developments, the Court denied cert in In re Grand Jury Investigation, which asked whether a claim of privilege was necessary to take a Perlman appeal. And the government filed its response to the cert petition in Omwega v. Garland, which asks if immigration’s exhaustion requirement is jurisdictional.

• The Fifth Circuit on “Judgments” and the Time for Filing Rule 59(e) Motions
• The Tenth Circuit Rejected Pendent Appellate Jurisdiction in an Injunction Appeal
• Cert Denied on Perlman Appeals & Claims of Privilege
• Response Filed on Immigration Exhaustion

The Fifth Circuit on “Judgments” and the Time for Filing Rule 59(e) Motions

In Van Tiem v. First American Title Co., the Fifth Circuit explained that an interlocutory order dismissing some of a plaintiffs’ claims is not a “judgment” for purposes of Federal Rule of Civil Procedure 54(a). So a party could wait until the district court resolved all claims before seeking reconsideration.

Simplifying a bit, Van Tiem involved a variety of claims against the plaintiff’s former employer and related parties. The district court dismissed most of those claims on the defendants’ motion to dismiss. Over a year later, the district court granted summary judgment in favor of the defendants on the one remaining claim.

The plaintiff then moved to reconsider under Federal Rule of Civil Procedure 59(e). Insofar as the plaintiff sought reconsideration of the summary-judgment decision, the district court denied the request. But as to the earlier motion-to-dismiss decision, the district court deemed the Rule 59(e) motion untimely. Those motions must come within 28 days of a judgment, and more than a year had passed since the motion-to-dismiss decision. The plaintiff then appealed. The defendants responded that the appeal was untimely insofar as the plaintiff challenged the motion-to-dismiss decision.

The Fifth Circuit rejected the defendants’ jurisdictional argument. The district court had treated the motion-to-dismiss decision as if it was a “judgment,” such that any Rule 59(e) motion would need to be filed within 28 days. But under Rule 54(a), a “judgment” is “any order from which an appeal lies.” And the grant of the motion to dismiss was an interlocutory, non-appealable decision. There was no appealable decision—and thus no judgment—until the district court had resolved all of the claims. The plaintiff’s Rule 59(e) motion was filed within 28 days of that decision. And that motion delayed the start of the appeal clock until the district court resolved it.

Van Tiem v. First American Title Co., 2021 WL 4537689 (5th Cir. Oct. 4, 2021), available at the Fifth Circuit and Westlaw.

The Tenth Circuit Rejected Pendent Appellate Jurisdiction in an Injunction Appeal

In Vreeland v. Huss, the Thenth Circuit refused to extend pendent appellate jurisdiction to review the denial of a motion to amend. The plaintiff in Vreeland had appealed from the denial of a preliminary injunction, which the Tenth Circuit had jurisdiction to review under 28 U.S.C. § 1292(a)(1). The court could address the propriety of the injunction denial without considering whether the plaintiff should have been able to amend his complaint. Pendent appellate jurisdiction was thus improper.

Vreeland v. Huss, 2021 WL 4544077 (10th Cir. Oct. 5, 2021), available at the Tenth Circuit and Westlaw.

Cert Denied on Perlman Appeals & Claims of Privilege

The Supreme Court denied cert in In re Grand Jury Investigation. The case asked if Perlman appeals require a claim of privilege or instead required only a substantial interest in the material subject to discovery.

Response Filed on Immigration Exhaustion

The government filed its response to the cert petition in Omwega v. Garland. The case asks if immigration’s exhaustion requirement is jurisdictional. Most courts have held that it is—a court of appeals lacks jurisdiction to review any issue not exhausted before the immigration courts. But not everyone agrees. And a few judges have recently raised doubts about the cases deeming exhaustion jurisdictional. You can read more about the cert petition and the split over jurisdictionality here.

Brief for the Respondent in Opposition, Omwega v. Garland, No. 20-1395 (Sep. 29, 2021), available at Westlaw.