A trio of decisions on appeal deadlines (original, extended, and reopened), government-contractor appeals, refusals to enforce consent decrees, and more.
September 8, 2020
Last week saw a trio of decisions on appeal deadlines. The Fifth Circuit appears to have held that the 30-day window for filing a notice of appeal in a civil case is not jurisdictional, which means that courts can excuse late notices. The Sixth Circuit addressed the effect of stricken post-judgment motions on the appeal deadline. And the Seventh Circuit held that a single filing could be both a motion to reopen the appeal window and a notice of appeal filed within that reopened window. In cert-stage developments, the United States supported a petition for cert on the appealability of government-contractor defenses. Plus decisions on appealing refusals to enforce consent decrees, dismissals due to Heck v. Humphrey, and municipal liability.
- The Fifth Circuit Appeared to Hold That the Appeal Deadline Is Not Jurisdictional
- The Sixth Circuit on Stricken Post-Judgment Motions and the Appeal Deadline
- The Seventh Circuit Treated a Motion to Reopen the Appeal Window as a Notice of Appeal
- The United States Supports Cert—but Not Appealability—in CACI Premier
- The Sixth Circuit Heard an Immediate Appeal From the Refusal to Enforce a Consent Decree
- The Fifth Circuit on Appealing Dismissals Pending the Heck Conditions
- The Sixth Circuit Rejected a Municipality’s Attempt to Piggyback on a Qualified-Immunity Appeal
The Fifth Circuit Appeared to Hold That the Appeal Deadline Is Not Jurisdictional
In Edwards v. 4JLJ, L.L.C., the Fifth Circuit held that a party had forfeited any objection to a late-filed notice of appeal. In doing so, the court appears to have treated Rule 4(a)(1)(A)’s 30-day appeal deadline as a non-jurisdictional claims-processing rule.
Edwards involved claims for unpaid overtime under the Fair Labor Standards Act. After a jury returned a verdict for the employer, the employees moved for judgment as a matter of law and, alternatively, a new trial. A few weeks later, the district court entered a final judgment for the defendant. In doing so the district court did not mention the employees’ post-trial motion. About two weeks after that, the employees filed a second, substantively identical motion for judgment as a matter of law/a new trial. The district court denied this second motion about 40 days after it was filed Three weeks later, the employees filed their notice of appeal. All told, over 75 days passed between the final judgment and the employees’ notice of appeal.
That was a problem. Appellants in civil cases normally must file their notice of appeal within 30 days of the judgment. Under Federal Rule of Appellate Procedure 4(a)(4)(A), motions for judgment as a matter of law/a new trial can extend the time for appealing. But neither motion in Edwards did so. The first came before the district court entered its final judgment. Entry of the final judgment implicitly denied that motion, so it could not extend the time for filing the notice of appeal. As for the second motion, it was substantively identical to the first. So it, too, could not extend the time for appealing; the motion needed to present “at least one completely different ground for relief from the judgment” to do so.
So the notice of appeal was late. But the employer in Edwards did not challenge the timeliness of the appeal. Its failure to do so, the Fifth Circuit concluded, forfeited the issue. In so holding, the Fifth Circuit appears to have treated the the 30-day window for filing a notice of appeal as non-jurisdictional. Quoting Hamer v. Neighborhood Housing Services of Chicago, the court noted that “a provision governing the time to appeal in a civil action qualifies as jurisdictional only if Congress sets the time.” Other time limits are merely claims-processing rules that can be waived or forfeited. The 30-day appeal deadline was thus a claims-processing rule:
The Federal Rules of Appellate Procedure were promulgated by the Supreme Court, not by Congress. So the Employees’ failure to file a timely notice of appeal does not affect our appellate jurisdiction. And because [the employer] did not properly raise the timeliness argument in its opening brief, the argument is forfeited.
The Fifth Circuit accordingly held that it had jurisdiction over the appeal.
I’m confused. To be sure, appeal deadlines found in statutes are jurisdictional while those found only in the Federal Rules of Appellate Procedure are not. So, for example, the 14-day limit on reopening the time to file a notice of appeal is jurisdictional; although implemented via Rule 4(a)(6), the 14-day limit comes from 28 U.S.C. § 2107(c). In contrast, Rule 4(a)(5)(C)’s 30-day limit for extending the time to file a notice of appeal comes solely from the rules and is therefore not jurisdictional.
Edwards appears to hold that Rule 4(a)(1)(A)’s 30-day window for filing a notice of appeal comes only from the Federal Rules of Appellate Procedure and is therefore not jurisdictional. But that 30-day limit comes from 28 U.S.C § 2107(a):
Except as otherwise provided in this section, no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree.
I accordingly thought that Rule 4(a)(1)(A)’s time for filing a notice of appeal was jurisdictional. If it is, I don’t understand the holding in Edwards. The employees did not file a valid post-judgment motion that would extend the time for filing their notice of appeal. So, as the court says, “their notice was late. Very late.”
Someone please let me know what I’m missing.
Edwards v. 4JLJ, L.L.C., 2020 WL 5229686 (5th Cir. Sep. 2, 2020), available at the Fifth Circuit and Westlaw.
The Sixth Circuit on Stricken Post-Judgment Motions and the Appeal Deadline
In Lipman v. Budish, the Sixth Circuit held that a stricken post-judgment motion still extends the time to file a notice of appeal.
After the district court dismissed their complaint for failure to state a claim, the plaintiffs in Lipman moved to amend the judgment under Rule 59(e) and sought leave to file an amended complaint. But the district court struck this motion for failure to comply with a protective order (the details of which are irrelevant to the present discussion). The plaintiffs then appealed.
The defendants challenged the timeliness of the appeal. If the time for appealing ran from the district court’s striking the Rule 59 motion, the appeal was timely. But if the time ran from the original judgment, it was untimely. The defendants argued that because the Rule 59 motion was stricken, it did not extend the time to file a notice of appeal.
The Sixth Circuit disagreed. Under Rule 4(a)(4)(A), certain post-judgment motions (including Rule 59 motions) extend the time for filing a notice of appeal. The Sixth Circuit explained that, by its plain terms, Rule 4(a)(4)(A) does not require that a post-judgment motion be decided on its merits. When an appellant timely files one of these post-judgment motions, the time to appeal runs “from the entry of the order disposing of the last such remaining motion.” So the motion need not be granted or denied—just disposed of. The district court disposes of a post-judgment motion when it “takes final action” on it. Striking the plaintiffs’ Rule 59 motion accordingly disposed of it, and the time for appealing ran from that decision.
The Sixth Circuit pointed out that a contrary rule would be absurd. If a stricken post-judgment motion did not extend the time to appeal, risk averse litigants would file a notice of appeal alongside their post-judgment motion. That way, if the district court strikes the motion, these litigants have still filed a timely notice of appeal. If the district court instead decide the motion on the merits, these litigants would likely file a second notice of appeal (to ensure that the decision on the post-judgment motion was within the scope of the appeal). Rule 4(a)(4)(A) exists to make multiple notices of appeal unnecessary; a would-be appellant can wait until the district court has resolved all post-judgment motions before filing a single notice of appeal. It shouldn’t be interpreted to do the opposite.
Lipman v. Budish, 2020 WL 5269826 (6th Cir. Sep. 4, 2020), available at the Sixth Circuit and Westlaw.
The Seventh Circuit Treated a Motion to Reopen the Appeal Window as a Notice of Appeal
In Norwood v. East Allen County Schools, the Seventh Circuit treated a filing as both a motion to reopen the time to appeal and a timely notice of appeal.
The district court in Norwood granted summary judgment for the defendant on all of the plaintiff’s claims. About four months later, the plaintiff filed “his self-styled ‘Belated Appeal’” in the district court, “stating that he had not received notice of the court’s decision.” The district court treated this motion as one to reopen the time to appeal under Rule 4(a)(6) and granted it. The plaintiff then had 14 days to file a notice of appeal. But he didn’t do so, instead waiting about two months.
The Seventh Circuit nevertheless held that it had jurisdiction over the appeal. The court “construed [the plaintiff]’s motion to reopen (‘Belated Appeal’) as a timely notice of appeal because he filed it before the expiration of the reestablished deadline.” The “Belated Appeal” included all of Federal Rule of Appellate Procedure 3’s requirements for a notice of appeal, such as the parties and the appealed decision. Granted, the plaintiff filed this document before the district court reopened the time to file a notice of appeal. But under Rule 4(a)(2), “[a] prematurely filed notice of appeal becomes effective after the district court enters the order that opens the time to appeal.” So the “Belated Appeal” became effective upon the district court’s reopening the period to file a notice of appeal.
In other words, the filing that led the district court to reopen the time for filing a notice of appeal was also itself an effective notice of appeal.
Norwood v. East Allen County Schools, 2020 WL 5230354 (Sep. 2, 2020), available at the Seventh Circuit and Westlaw.
The United States Supports Cert—but Not Appealability—in CACI Premier
The United States filed a brief in support of the petition for cert in CACI Premier Technology, Inc. v. al Shimari. The case asks whether denials of so-called “derivative sovereign immunity”—immunity invoked by a government contractor—are immediately appealable under the collateral-order doctrine. The United States argued that the Fourth Circuit was correct in holding that denials of derivative sovereign immunity are not immediately appealable. But it also thought that the courts of appeals’ decisions on this issue were in sufficient tension to warrant cert.
The United States also urged the Supreme Court to delay any decision on the petition. Two pending cases—Nestle USA, Inc. v. Doe and Cargill, Inc. v. Doe—ask if domestic corporations can be sued under the Alien Tort Statute. Resolution of those cases could resolve the underlying claims in CACI Premier, allowing the Supreme Court to avoid deciding appealability.
Brief for the United States as Amicus Curiae, CACI Premier Technology, Inc. v. al Shimari, No. 19-648 (Aug. 26, 2020), available at the Supreme Court and Westlaw.
The Sixth Circuit Heard an Immediate Appeal From the Refusal to Enforce a Consent Decree
In Pedreira v. Sunrise Children’s Services, Inc., the Sixth Circuit held that a district court’s refusal to enforce a consent decree was immediately appealable.
The plaintiffs in Pedreira had reached an agreement with the state of Kentucky concerning the state’s foster-care system. But, after a change in the governor’s office, the state withdrew its consent to the agreement. The district court then concluded that the decree violated Kentucky law and denied the plaintiffs’ motion to enforce it. The plaintiffs appealed.
The Sixth Circuit held that it had jurisdiction. The district court had, practically speaking, denied an injunction. And that denial threatened serious harms to the plaintiffs that could not be effectively reviewed after a final judgment. The court noted that the plaintiffs had obtained more in the consent decree than they sought in their complaint, so delaying appellate review would make them “lose the ‘bargain’ they obtained through negotiation.”
Pedreira v. Sunrise Children’s Services, Inc., 2020 WL 5230441 (6th Cir. Sep. 2, 2020), available at the Sixth Circuit and Westlaw.
The Fifth Circuit on Appealing Dismissals Pending the Heck Conditions
In Cook v. City of Tyler, the Fifth Circuit held that it lacked jurisdiction to review a district court decision dismissing a complaint pending the vacatur of the plaintiff’s conviction.
The plaintiff in Cook brought claims alleging wrongful prosecutions, convictions, and imprisonment. But the convictions underlying those claims was still on the books. Heck v. Humphrey therefore barred the plaintiff’s claims; he could pursue them only after the Texas Court of Criminal Appeals vacated his conviction and the state dropped the charges. (The opinion suggests that both of those events are forthcoming.) So at the defendant’s suggestion, the district court dismissed the plaintiff’s suit. The court’s order said that the dismissal was “WITH PREJUDICE to the claims being asserted again until the Heck conditions are met.”
Despite getting the dismissal they asked for, the defendants appealed. This appeal brought with it a few jurisdictional knots.
First, the Fifth Circuit held that the dismissal was effectively one without prejudice. A dismissal under Heck does not preclude later refiling the claims. So a Heck dismissal is necessarily without prejudice. The language that the district court used—saying that the dismissal was with prejudice “until the Heck conditions are met”—is language that the Fifth Circuit condoned in Johnson v. McElveen. The language means only that plaintiffs cannot refile the dismissed claims until their convictions have been vacated.
Second, and because the dismissal was without prejudice, the Fifth Circuit held that the district court had not issued a final, appealable decision. Courts sometimes hold that dismissals without prejudice are not appealable. The plaintiff can refile the same suit in the same district court, meaning that the litigation is not yet over. Granted, some Heck dismissals are appealable. A plaintiff might contend, for example, that Heck does not apply at all. But the dismissal in Cook was essentially a pause in the litigation; the plaintiff is waiting for the Texas courts to vacate his conviction, after which he planned to refile his claims.
Cook v. City of Tyler, 2020 WL 5268509 (5th Cir. Sep. 4, 2020), available at the Fifth Circuit and Westlaw.
The Sixth Circuit Rejected a Municipality’s Attempt to Piggyback on a Qualified-Immunity Appeal
In Hammond v. County of Oakland, the Sixth Circuit held that it lacked pendent appellate jurisdiction over a municipality’s attempt to appeal alongside a qualified-immunity appeal.
Simplifying a bit, the case involved excessive-force claims stemming from a police dog’s biting the plaintiff. The plaintiff sued both the officer who ordered the dog to bite him and the county that employed the officer. The district court denied the officer’s request for qualified immunity and the county’s motion for summary judgment. Both defendants appealed.
In the officer’s appeal, the Sixth Circuit affirmed; under the plaintiff’s version of events, the officer had ordered his dog to bite a handcuffed, compliant suspect. That was clearly unconstitutional.
As for the county, the court lacked jurisdiction to review the denial of summary judgment. That decision was not itself independently appealable, so jurisdiction was proper only via pendent appellate jurisdiction. And the Sixth Circuit will extend pendent appellate jurisdiction in this context only if the individual defendant’s appeal necessarily resolved the county’s. The court had concluded that, under the plaintiff’s version of events, a constitutional violation occurred. So the the individual officer’s appeal did not resolve the county’s, and pendent appellate jurisdiction was improper.
Hammond v. County of Oakland, 2020 WL 5269819 (6th Cir. Sep. 4, 2020), available at the Sixth Circuit and Westlaw.