The Week in Federal Appellate Jurisdiction: December 5–11, 2021

I’m a little late with this week’s roundup, but there were several cases worth discussing. The Seventh Circuit applied the two (separate but seemingly identical) restrictions on reviewing a bankruptcy court’s remand orders. The Sixth Circuit rejected a factual challenge to the denial of qualified immunity and dismissed an appeal from a prevailing defendant who was unhappy with some of the district court’s analysis. The Third Circuit explained that an order deeming a trust governed by ERISA was not an appealable injunction. The Eleventh Circuit held that when the district court does not set out its judgment in a separate document, the time for filing post-judgment motions begins to run once a party files a notice of appeal. That court also held that a notice of appeal designating forthcoming decisions on post-judgment motions was inadequate to appeal those subsequent decisions. Plus a new cert petition on appealing discovery orders in Chapter 15 bankruptcy proceedings, appealing orders refusing to dissolve an injunction, and the appealability of denied summary-judgment motions.

• The Seventh Circuit on Appealing Remand Orders in Bankruptcy
• Factual Challenges to a Qualified-Immunity Denial and a Prevailing-Party Appeal
• An Order Deeming a Trust to Be Covered by ERISA Was Not an Appealable Injunction
• Starting the Post-Judgment-Motion Clock by Taking an Appeal
• The Eleventh Circuit on Designating Post-Judgment Decisions in Notices of Appeal
• New Cert Petition on Discovery Orders in Chapter 15 Bankruptcy Cases
• Quick Notes

The Seventh Circuit on Appealing Remand Orders in Bankruptcy

In CitiMortgage, Inc. v. Davis, the Seventh Circuit held that it lacked jurisdiction to review a bankruptcy court’s decision to remand a case to state court.

Simplifying a fair bit, CitiMortgage involved an effort to remove a state court foreclosure action to a bankruptcy court. After the debtor defaulted on his mortgage for a second time, the creditor filed a foreclosure action. The debtor then attempted to remove that action to the bankruptcy court, arguing that the mortgage had been discharged in prior bankruptcy proceedings. But the bankruptcy court had previously made clear that the mortgage was not discharged. Finding no basis for federal jurisdiction, the bankruptcy court remanded the action to state court. On the debtor’s appeal, the district court affirmed that decision.

On further appeal to the Seventh Circuit, the court of appeals dismissed the appeal from the remand order. Under 28 U.S.C. § 1447(d), the courts of appeals lack jurisdiction to review orders remanding actions to state court due to a lack of subject-matter jurisdiction. Further, 28 U.S.C. § 1452(b) prohibits appellate review of removed claims “related to bankruptcy cases” when the remand is “on any equitable ground.” The Seventh Circuit has interpreted this language to create an identical bar to that of § 1447(d). So both § 1447(d) and § 1452(b) barred review of the remand order in CitiMortgage.

CitiMortgage, Inc. v. Davis, 2021 WL 5856795 (7th Cir. Dec. 10, 2021), available at the Seventh Circuit and Westlaw.

Factual Challenges to a Qualified-Immunity Denial and a Prevailing-Party Appeal

In Yatsko v. Graziolli, the Sixth Circuit refused to consider a challenge to the factual basis for a qualified-immunity denial. The court also dismissed the appeal insofar as one defendant sought to appeal a judgment favorable to it.

Yatsko involved a fatal shooting by an off-duty police officer, who was working as a security guard and got into a fight with the decedent. The fight ended with the officer’s shooting the decedent. The decedent’s parents brought civil-rights claims against the officer and the city that employed him. When the defendants sought summary judgment, the district court dismissed the claims against the city. But it denied the officer’s request for qualified immunity. According to the district court, a reasonable jury could find that (1) the officer was acting under color of law and (2) the decedent did not pose a threat to the officer at the time of the shooting.

Both defendants appealed. The Sixth Circuit affirmed the denial of immunity for the officer. In the course of doing so, the court rejected the officer’s attempt to challenge the factual basis for the immunity denial. The officer argued on appeal that he was being “viciously attacked.” But the Sixth Circuit lacked jurisdiction to entertain this argument. The district court had determined that a jury could find to the contrary—that the officer picked a fight with the decedent and was never at risk of serious harm. The court of appeals was bound by that version of events for purposes of the qualified-immunity appeal, even if it might view the evidence differently on de novo review.

The Sixth Circuit also rejected the officer’s attempt to invoke the blatant-contradiction exception, which would have permitted the Sixth Circuit to review the factual basis for the immunity denial. The court’s “careful and repeated review [of] the video footage [did] not establish either version of the facts . . . or otherwise resolve material factual disputes over whether [the decedent] posed a sufficiently serious threat to justify the use of deadly force.” Finally, the court noted that the officer had not raised any arguments that the court would have jurisdiction over—i.e., that, under the version of events that the district court assumed to be true, he was entitled to qualified immunity:

Instead, Graziolli relies on his version of the facts, in which he was aggressively attacked in such a way that he was forced to take defensive action by using his firearm to keep from being grievously injured. Graziolli’s brief, generously read, argues in effect that it is not clearly established that an officer is precluded from using deadly force in that situation. We need not address that argument, however, because it is sufficient for us to conclude that such are not the facts as we must accept them on this appeal.

As for the city’s appeal, the Sixth Circuit dismissed it. The city was apparently unhappy with some of the the district court’s analysis. But the city was not an aggrieved litigant—it received all that it sought from the district court. The city won. So the court didn’t have jurisdiction over the appeal.

Judge Thapar concurred in part and dissented in party, contending that the officer was entitled to qualified immunity. To defeat the qualified-immunity defense, Judge Thapar thought, a “plaintiff must point to a case with near-identical facts that puts the official on notice of the violation.” The plaintiffs in Yatsko, he argued, had failed to do so.

Yatsko v. Graziolli, 2021 WL 5772527 (6th Cir. Dec. 6, 2021), available at the Sixth Circuit and Westlaw.

An Order Deeming a Trust to Be Covered by ERISA Was Not an Appealable Injunction

In Wright v. Elton Corp., the Third Circuit held that an order deeming a trust covered by ERISA was not an appealable injunction.

The district court bifurcated the issues in Wright, wanting to first address whether ERISA governed a trust; if it did, the court would then address whether any ERISA violations occurred. On cross-motions for summary judgment, the district court determined that ERISA governed the trust. The trustee then moved for clarification, asking the district court if the trustee was now required to operate the trust in accordance with ERISA. The district court denied that motion. The trustee then appealed.

The Third Circuit dismissed the appeal. The trustee argued that the district court’s decision compelled compliance with ERISA and was thus appealable under 28 U.S.C. § 1292(a)(1), which gives the courts of appeals jurisdiction to immediately review many orders involving injunctions. But the district court’s order did not direct the trustee to do anything. It couldn’t be enforced by contempt. And it did not award any substantive relief that the plaintiffs sought. So the order was not an injunction. With no injunction, there was no basis for appellate jurisdiction.

Wright v. Elton Corp., 2021 WL 5822306 (3d Cir. Dec. 7, 2021), available at the Third Circuit and Westlaw.

Starting the Post-Judgment-Motion Clock by Taking an Appeal

In Llauro v. Linville, the Eleventh Circuit determined that a district court’s order had become final—and the time to file post-judgment motions began running—once the plaintiffs had filed their notice of appeal.

The district court in Llauro dismissed the plaintiffs’ complaint but did not enter a separate judgment under Federal Rule of Civil Procedure 58. The plaintiffs filed their notice of appeal about 30 days later. But after another 100-or-so days, the plaintiffs asked the district court to reconsider the dismissal under Federal Rule of Civil Procedure 59(e) The district court rejected that request, concluding that the motion was untimely.

The Eleventh Circuit agreed. To be sure, when a district court neglects to set out a judgment in a separate document, the judgment is not deemed entered—and the time to seek reconsideration does not begin running—until 150 days after the judgment. But parties can waive the separate-document requirement. And by filing their notice of appeal, the plaintiffs in Llauro waived any delay in deeming the judgment entered. The time for seeking reconsideration thus began to run once the plaintiffs filed their notice of appeal. By the time the plaintiffs filed their reconsideration motion, that time had long passed.

Llauro v. Linville, 2021 WL 5767935 (11th Cir. Dec. 6, 2021), available at the Eleventh Circuit and Westlaw.

The Eleventh Circuit on Designating Post-Judgment Decisions in Notices of Appeal

In Harris v. Warden, the Eleventh Circuit said that a notice of appeal filed before the district court resolved a post-judgment motion was not effective to appeal the resolution of that motion, even though the notice designated the forthcoming decision.

After the district court granted summary judgment to the defendants, the plaintiff in Harris moved for reconsideration. About a week later—before the district court had ruled on the reconsideration motion—he filed a notice of appeal. And in that notice, the plaintiff said that he intended to appeal “any or all rulings on post-judgment motions.” Some time after that, the district court denied reconsideration. The plaintiff then argued on appeal that the district court had erred in doing so.

The Eleventh Circuit held that it lacked jurisdiction to review the reconsideration decision. Federal Rule of Appellate Procedure 3(c)(1)(B) requires that a notice of appeal “designate the judgment—or appealable order—from which the appeal is taken.” And according to the Eleventh Circuit, the designated judgment or order “must be one in existence at the time that the notice of appeal is filed, not one that is expected or contemplated at the time.” A second or amended notice is normally required if an appellant wishes to appeal an decision that came after a notice of appeal. When the plaintiff in Harris appealed, the district court had not yet decided his reconsideration motion. So despite mentioning that forthcoming decision in his notice of appeal, the Eleventh Circuit lacked jurisdiction to review it.

Harris v. Warden, 2021 WL 5865327 (11th Cir. Dec. 10, 2021), available at the Eleventh Circuit and Westlaw.

New Cert Petition on Discovery Orders in Chapter 15 Bankruptcy Cases

A new cert petition asks if a standalone discovery order entered in a Chapter 15 case is final and appealable. I talked about the underlying case—In re Transbrasil S.A. Linghas Aéreas—in a previous weekly roundup. The case is Estate of Fontana v. ACFB Administração Judicial LTDA-ME. The response is due January 3, 2022.

Petition for a Writ of Certiorari, Estate of Fontana v. ACFB Administração Judicial LTDA-ME, No. 21-828 (Dec. 1, 2021), available at the Supreme Court and Westlaw.

Quick Notes

In Hope Medical Enterprises, Inc. v. Fagron Compounding Services, the Ninth Circuit dismissed an appeal from an order refusing to dissolve an injunction. Those orders are appealable via 28 U.S.C. § 1292(a)(1) only if the motion seeking dissolution is “based on new circumstances that have arisen after the district court granted the injunction.” And there were no “new circumstances” in Hope Medical that would warrant an appeal.

Hope Medical Enterprises, Inc. v. Fagron Compounding Services, 2021 WL 5860886 (9th Cir. Dec. 10, 2021), available at the Ninth Circuit and Westlaw.

And in Kurin, Inc. v. Magnolia Medical Technologies, Inc., the Ninth Circuit lacked jurisdiction to review the denial of summary judgment after a final judgment. The denied motion did not raise purely legal issues. And the decision did not merge into the final judgment, as the claims at issue were voluntarily dismissed before the district court resolved all of the other claims.

Kurin, Inc. v. Magnolia Medical Technologies, Inc., 2021 WL 5823707 (9th Cir. Dec. 8, 2021), available at the Ninth Circuit and Westlaw.