Last week saw opinions on what makes a Rule 54(b) motion timely, the review of evidence issues in qualified-immunity appeals, the timelienss of sanction appeals, the jurisdictionality of immigration's appeal deadline, and more.
April 14, 2022
Last week, the Seventh Circuit questioned whether any bright-line deadline existed for seeking a partial judgment under Federal Rule of Civil Procedure 54(b). A concurring opinion from the Sixth Circuit misread Johnson v. Jones to permit the review of evidentiary issues in qualified-immunity appeals. The Third and Seventh Circuits addressed the timeliness of sanctions appeals. And the Fifth Circuit joined the Second and Ninth Circuits in holding that the 30-day deadline for appealing to the Board of Immigration Appeals is not jurisdictional. Plus transfer orders from the Claims Court, the scope of a Double Jeopardy appeal, and a fact-based qualified-immunity appeal.
- The Seventh Circuit on the Timeliness of Rule 54(b) Partial Judgments
- A Sixth Circuit Concurrence Misread Johnson v. Jones
- The Third Circuit Dismissed a Premature Sanctions Appeal
- The Seventh Circuit on Reconsideration Motions and the Time to Appeal a Post-Judgment Sanctions Order
- The Fifth Circuit Held That Immigration’s Appeal Deadline Is Not Jurisdictional
- Quick Notes
The Seventh Circuit on the Timeliness of Rule 54(b) Partial Judgments
When an action involves multiple claims, appeals normally must wait until the district court has resolved all of claims. Federal Rule of Civil Procedure 54(b) is one exception to this general rule. It permits a district court to enter a partial judgment on the resolution of some (but not all) claims in an action. That partial judgment is then a final, appealable decision.
What is the deadline for seeking a Rule 54(b) partial judgment? Two Seventh Circuit decisions (one from 1972, the other from 2017) held that the request must come within 30 days of the district court’s decision. Late-filed Rule 54(b) motions required reversing partial judgment and dismissing the appeal.
But in Wednesday’s DaSilva v. Indiana, the Seventh Circuit determined that this 30-day deadline is not jurisdictional. It is instead a claims-processing rule. So a delayed request for a Rule 54(b) partial judgment does not affect appellate jurisdiction. And an appellee can forfeit any objection to a late-filed Rule 54(b) motion.
The Seventh Circuit also questioned the 30-day limit itself. Although the procedural rules are lousy with deadlines, Rule 54(b) does not contain one. DaSilva ultimately did not require the Seventh Circuit to determine whether the 30-day deadline should exist. It was enough to say that Indiana forfeited any objection. The court suggested, however, that any timeliness issues might best be addressed by asking whether the district court abused its discretion in entering the Rule 54(b) partial judgment.
For more, see my post The Timeliness of a Rule 54(b) Partial Judgment.
DaSilva v. Indiana, 2022 WL 1024210 (7th Cir. Apr. 6, 2022), available at the Seventh Circuit and Westlaw.
A Sixth Circuit Concurrence Misread Johnson v. Jones
In Slayton v. City of River Rouge, the Sixth Circuit dismissed a fact-based qualified-immunity appeal in which the defendant challenged only the genuineness of the fact disputes. Judge Readler wrote separately to contend that the appeal raised one issue over which the court had jurisdiction: the admissibility of some of the plaintiff’s evidence. But that separate opinion reflected a misreading of the Supreme Court’s decision in Johnson v. Jones.
As frequently talked about on this site, Johnson limited the scope of qualified-immunity appeals when the district court denies immunity at summary judgment. 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 facts a reasonable jury could find.
In Slayton, the defendant’s appeal raised only issues of evidence sufficiency. The Sixth Circuit accordingly lacked jurisdiction.
Judge Readler wrote separately. He noted that most of the officer’s arguments were fact-based and thus beyond the court’s appellate jurisdiction. But he also thought that the defendant raised one legal argument: that the district court relied on inadmissible evidence.
Judge Readler contended that the majority—as well as other Sixth Circuit decisions—read Johnson too broadly. As he read the case (and subsequent Supreme Court decisions), Johnson barred review of only “purely factual issues.” All other issues were on the table:
Fairly read, then, Johnson stands for an important, but limited, principle: “[a]n officer may not appeal the denial of a qualified immunity ruling solely on the ground that the plaintiff’s record-supported facts are wrong.” In other words, so long as some aspect of an officer’s appeal goes beyond the limited argument at issue in Johnson (i.e., whether and how certain events occurred) and addresses the district court’s legal error in assessing the plaintiff’s evidence at summary judgment, that part of the appeal is fair game for us to resolve.
(Quoting Barry v. O’Grady (Sutton, J., dissenting).) So the courts of appeals still have jurisdiction to review legal questions. And admissibility, he noted, is a legal question.
Judge Readler’s opinion reflects two misreadings of Johnson that occasionally crop up in the courts of appeals.
First is the focus on legal questions. To be sure, Johnson emphasized that the issue over which courts normally have jurisdiction in a qualified-immunity appeal—whether the facts make out a violation of clearly established law—is a legal issue well suited for interlocutory review. But this emphasis on legal issues was sloppy. The question that Johnson said courts generally cannot address—the genuineness of a fact dispute—is also a legal question. The Supreme Court later acknowledged as much. So simply saying that the courts of appeals have jurisdiction over all legal issues is wrong.
The second misreading is the suggestion that Johnson bars review of only “purely factual issues.” That’s a specious reading of Johnson. Quite simply, there are no pure fact issues in a qualified-immunity appeal. Summary-judgment decisions do not resolve factual issues. They instead determine whether meaningful factual questions exist. This reading of Johnson thus deprives courts of appellate jurisdiction over issues that aren’t actually part of an appeal from summary judgment. In other words, this reading of Johnson renders the case meaningless.
Further, Johnson’s prohibition on reviewing evidence-sufficiency issues would seem to extend to these antecedent determinations about admissible evidence. These determinations are part of the district court’s determination that a genuine fact dispute exists—i.e., that the plaintiff has produced enough evidence for a reasonable jury to find particular facts. Several courts (including the Sixth Circuit) have accordingly held that they cannot review evidence admissibility in qualified-immunity appeals.
For anyone interested, I wrote about this “legal issues” misreading of Johnson in my article Assumed Facts and Blatant Contradictions in Qualified-Immunity Appeals. I also wrote about the expansion of qualified-immunity appeals—including courts’ occasional inclusion of evidence admissibility issues within the scope of appeal—in my forthcoming article Reforming Qualified-Immunity Appeals.
Slayton v. City of River Rouge, 2022 WL 1044040 (6th Cir. Apr. 7, 2022), available at the Sixth Circuit and Westlaw.
The Third Circuit Dismissed a Premature Sanctions Appeal
In IMEG Corp. v. Patel, the Third Circuit dismissed a sanctions appeal that was filed before the amount of sanctions was set.
The district court in Patel sanctioned the defendant and his counsel. But its orders doing so did not set the amount of sanctions. The defendant and his counsel then filed their notice of appeal. The district court later set the amount of sanctions at roughly $90,000. But the defendant in his counsel did not amend their notice of appeal or file another one.
The Third Circuit dismissed the appeal. Even after a final judgment, sanctions orders are not final under 28 U.S.C. § 1291 until the district court sets the sanction. The notice of appeal in Patel was thus premature. And the subsequent order that set the sanctions amount did not save the notice. Although Federal Rule of Appellate Procedure 4(a)(2) allows some premature notices to relate forward to a subsequent final decision, the Patel court said that this rule does not apply to a “clearly interlocutory decision—such as a sanction order under Rule 11.”
Note, the Third Circuit has some complicated law on cumulative finality and relating forward notices of appeal.
The court normally takes a broad approach, allowing all sorts of events to save premature notices of appeal. It does so under both Rule 4(a)(2) and a broader concept of cumulative finality that the court adopted in Cape May Greene, Inc. v. Warren. And the rule from a few Third Circuit decisions would have probably deemed the notice in IMEG Corp. saved by the subsequent order setting the amount of sanctions. The Third Circuit held in Ragan v. Tri-County Excavating, Inc. that a subsequent calculation of attorney fees saved a premature notice of appeal filed after the district court entered judgment. (The Supreme Court’s decision in Ray Haluch Gravel v. Central Pension Fund abrogated Ragan insofar as it held that a contractual entitlement to attorney fees prevents finality until the amount of fees is determined.) And in both DL Resources, Inc. v. FirstEnergy Solutions Corp. and General Motors Corp. v. New A.C. Chevrolet, Inc., the Third Circuit held that notices filed after a determination of liability were saved by a subsequent calculation of damages.
Granted, the Third Circuit also held in Lazorko v. Pennsylvania Hospital that Rule 4(a)(2) did not save a notice of appeal filed after the district court had awarded Rule 11 sanctions but before the court determined the amount of sanctions. But Lazorko did not mention the Third Circuit’s broader approach to cumulative finality. The Third Circuit’s law in this area is one example of the current cumulative-finality mess in the courts of appeals.
IMEG Corp. v. Patel, 2022 WL 1055575 (3d Cir. Apr. 8, 2022), available at the Third Circuit and Westlaw.
The Seventh Circuit on Reconsideration Motions and the Time to Appeal a Post-Judgment Sanctions Order
In Bovinett v. Homeadvisor, Inc., the Seventh Circuit held that a motion to reconsider a post-judgment sanctions order did not delay the time to appeal.
After the parties had settled and voluntarily dismissed the action, the district court in Bovinett sanctioned the plaintiff’s former attorney under Federal Rule of Civil Procedure 11. The district court then extended the time to appeal. On the day that extended deadline expired, the attorney moved for reconsideration. The judge denied that motion. Shortly thereafter, the attorney filed a notice of appeal.
The Seventh Circuit held that it had jurisdiction to review only the denial of reconsideration. The post-judgment sanctions order was immediately appealable. But the attorney did not file a timely appeal from that order. He appealed only after the district court denied his reconsideration motion. By that point, the time to appeal the sanctions order had passed.
Further, the motion to reconsider did not delay the start of the appeal clock. To be sure, a timely motion to reconsider under Federal Rule of Civil Procedure 59(e) does so. But those motions must come within 28 days of the judgment. And Federal Rule of Civil Procedure 6(b)(2) bars any extension of that time. The motion to reconsider in Bovinett came right when the extended appeal deadline expired—more than 28 days after the sanctions order. So it did not delay the start of the appeal clock.
One last note. The Seventh Circuit also thought that Rule 59(e) did not apply at all. The court said that the rule “governs challenges to a judgment, not to orders like a ruling on sanctions.” I’m not so sure. The court is correct insofar as it means that Rule 59(e) does not apply to non-appealable interlocutory orders. But Rule 59(e) says that “[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” And Federal Rule of Civil Procedure 54(a) defines a “judgment” to include “a decree and any order from which an appeal lies.” As the Seventh Circuit noted, the sanctions order was appealable once the amount of sanctions was set. So it was a “judgment” insofar as the rules were concerned. Granted, it might not have been a “final judgment.” But it was still a judgment. It would seem, then, that Rule 59(e) would apply.
Bovinett v. Homeadvisor, Inc., 2022 WL 1056086 (7th Cir. Apr. 8, 2022), available at the Seventh Circuit and Westlaw.
The Fifth Circuit Held That Immigration’s Appeal Deadline Is Not Jurisdictional
In Boch-Saban v. Garland, the Fifth Circuit held that the deadline for appealing to the Board of Immigration Appeals is not jurisdictional.
At issue in Boch-Saban was whether the Board could equitably toll the deadline for appealing. 8 C.F.R. § 1003.38(b) requires that immigration petitioners file their notice of appeal within 30 days of an immigration judge’s decision. In In re Liadov, the Board held that this deadline is jurisdictional. And courts cannot apply equitable exceptions—like equitable tolling—to jurisdictional deadlines.
But subsequent Supreme Court decisions have drawn a relatively clear line between statutory and non-statutory appeal deadlines. “[O]nly statutes that are set forth to be construed as jurisdictional are, in fact, jurisdictional.” The 30-day deadline for appeals to the Board of Immigration Appeals comes from a regulation. The Fifth Circuit accordingly joined the Second and Ninth Circuits in holding that immigration’s appeal deadline is not jurisdictional. The court of appeals remanded the case for the Board to consider equitable tolling.
Boch-Saban v. Garland, 2022 WL 1055716 (5th Cir. Apr. 8, 2022), available at the Fifth Circuit and Westlaw.
Quick Notes
In Embibata v. United States, the Federal Circuit held that it could not review a Claims Court order transferring a claim to a district court. Transfer orders are generally not appealable. Granted, under 28 U.S.C. § 1292(d)(4)(A), the Federal Circuit has jurisdiction over some interlocutory transfer orders involving the Claims Court. But that provision applies to orders granting or denying “a motion to transfer an action to” the Claims Court. In Embiata, the Claims Court had transferred part of the case to a district court. Section 1292(d)(4)(A) accordingly did not apply. And the transfer order was not appealable via the collateral-order doctrine, as the issue could be reviewed in an appeal from the district court’s final judgment.
Embibata v. United States, 2022 WL 1055435 (Fed. Cir. Apr. 8, 2022), available at the Federal Circuit and Westlaw.
In United States v. Auzenne, the Fifth Circuit split on the scope of its jurisdiction in a Double Jeopardy appeal. The count in question contained three alternative theories for why the defendant made false statements. The Fifth Circuit concluded that the defendant’s acquittal on other counts did not preclude retrial on that count, as the acquittal did not necessarily resolve one of the three theories. A majority of the court then declined to address whether the government could pursue the other two theories in count eight. As the majority saw things, its jurisdiction extended only to the question of whether Double Jeopardy barred the entire count—not any argument or piece of evidence.
Judge Barksdakle dissented in part. He agreed that Double Jeopardy did not bar prosecution on one of the three theories in count eight. But he wanted the court to also say that the partial acquittal barred the government from pursuing the other two theories in that count. Indeed, the government had conceded as much. Judge Barksdale thought the Fifth Circuit accordingly had jurisdiction to hold the government to that concession.
United States v. Auzenne, 2022 WL 1000556 (5th Cir. Apr. 4, 2022), available at the Fifth Circuit and Westlaw.
In Warden v. Cowan, the Ninth Circuit rejected the defendants’ attempt to challenge the factual basis for a qualified-immunity denial. Details are few. The defendants apparently “argue[d] that the district court made several reversible errors in denying summary judgment by failing to consider the correct facts.” That argument “effectively ask[ed] [the] court to evaluate on this interlocutory appeal whether the district court properly determined that there was a genuine issue of material fact.” That issue was beyond the Ninth Circuit’s jurisdiction in a qualified-immunity appeal.
Warden v. Cowan, 2022 WL 999940 (9th Cir. Apr. 4, 2022), available at the Ninth Circuit and Westlaw.