The Week in Federal Appellate Jurisdiction: December 2–8, 2019

The post-holiday week saw only a handful of appellate-jurisdiction decisions. The Eighth Circuit addressed a local bankruptcy rule that required separate notices of appeal to appeal separate orders. The Eleventh Circuit rejected a fact-based qualified-immunity appeal. The Sixth Circuit extended pendent appellate jurisdiction over a plaintiff’s motion for summary judgment in another qualified-immunity appeal. And cumulative finality saved premature notice of appeal.

• The Eighth Circuit upheld the validity of a local bankruptcy rule that required separate notices of appeal, though noncompliance required a chance to cure
• The Eleventh Circuit rejected an attempt to challenge the assumed facts in an interlocutory qualified-immunity appeal
• The Sixth Circuit unnecessarily extended pendent appellate jurisdiction in an interlocutory qualified-immunity appeal
• Cumulative finality to the rescue in the Third Circuit
• Reply brief filed in cert petition from Rule 23(f) denial

The Eighth Circuit upheld the validity of a local bankruptcy rule that required separate notices of appeal, though noncompliance required a chance to cure

In In re Reed, the Eighth Circuit held that failure to comply with a local bankruptcy rule requiring separate notices of appeal from separate bankruptcy orders did not warrant dismissing the appeal.

Reed began with a bankruptcy court banning an attorney from practicing before it. The lawyer later sought reinstatement and, separately, moved to disqualify the judge who banned him from presiding over the reinstatement request. That bankruptcy judge denied each motion in a separate order. The lawyer then filed a single notice of appeal, seeking review of both orders in the district court. But a local bankruptcy rule required filing separate notices—and paying separate filing fees—for each order being appealed. The lawyer in Reed filed only one notice, and he paid only one fee. The district court dismissed his appeal for failing to comply with the local rule.

On further appeal to the Eighth Circuit, the court or appeals held that the local bankruptcy rule was valid because it was not inconsistent with any Federal Rules of Bankruptcy Procedure. But the district court erred in enforcing the rule without any chance for the lawyer to fix the error. The defect was not jurisdictional, and the rules governing notices of appeal are meant to apply liberally. The notice here provided all necessary information: who was appealing, what they were appealing, and where they were appealing. The district court accordingly should have given the lawyer a chance to cure the defective notice.

In re Reed, 2019 WL 6484235 (8th Cir. Dec. 3, 2019), available at the Eighth Circuit and Westlaw.

The Eleventh Circuit rejected an attempt to challenge the assumed facts in an interlocutory qualified-immunity appeal

In Scott v. Gomez, the Eleventh Circuit rejected a veiled attempt at challenging the district court’s assumed facts in an interlocutory qualified-immunity appeal.

The plaintiff in Scott had sued two prison officers for failing to protect him from other inmates. The officers sought qualified immunity, arguing that they took reasonable measures to guarantee the plaintiff’s safety. But the district court denied qualified immunity, and the officers appealed.

Interlocutory qualified-immunity appeal are normally limited to addressing whether the district court’s assumed facts make out a clear constitutional violation. Under Johnson v. Jones, the courts of appeals lack jurisdiction to address whether the summary-judgment record supports those assumed facts. The officers in Scott purported to abide by this jurisdictional limit and argue that, even under the facts assumed by the district court, they were entitled to qualified immunity. But the Eleventh Circuit detected a backdoor effort to appeal the assumed facts: “[A]fter a careful reading of their briefs, we determine that [the officers] misstate their actual arguments—they solely challenge the factual determinations made by the district court, though they cloak their challenges in the guise of legal issues.” The Eleventh Circuit accordingly dismissed the appeal for lack of jurisdiction.

This is another unfortunate example of a civil rights case being delayed by an improper qualified-immunity appeal.

Scott v. Gomez, 2019 WL 6522040 (11th Cir. Dec. 4, 2019), available at the Eleventh Circuit and Westlaw.

The Sixth Circuit unnecessarily extended pendent appellate jurisdiction in an interlocutory qualified-immunity appeal

In Thames v. City of Westland, the Sixth Circuit extended pendent appellate jurisdiction to a plaintiff’s cross-motion for summary judgment in a qualified-immunity appeal.

Thames was a civil rights suit against several defendants stemming from the plaintiff’s arrest, with the plaintiff pleading false-arrest, retaliatory-arrest, and equal-protection claims. As relevant here, the parties cross-moved for summary judgment: the plaintiff sought summary on liability, and the arresting officers sought qualified immunity. The district court denied both motions. The officers appealed the denial of qualified immunity, as they can do under Mitchell v. Forsyth. The plaintiff also appealed the denial of summary judgment on liability, invoking the court’s pendent appellate jurisdiction.

Pendent appellate jurisdiction allows parties to appeal normally non-appealable interlocutory decisions by piggybacking on a proper interlocutory appeal. But to do so, immediate review of those non-appealable issues must be necessary to resolve, or inextricably intertwined with, the appealable ones. The Sixth Circuit seemed to recognize these limits on pendent appellate jurisdiction, noting that it was proper “only when the immunity issues absolutely cannot be resolved without addressing the nonappealable pendent issues.” But it went on to say that jurisdiction was proper in Thames because resolution of the appealable issues also resolved the non-appealable ones:

Here, the question of the officers’ liability is so completely intertwined with the claims of qualified immunity that we find that one necessarily resolves the other and establishes pendent appellate jurisdiction.

This is backwards. It’s not enough that resolution of the appealable issue necessarily resolves the non-appealable one. Review of the non-appealable issue must be necessary to review the appealable one. Decisions like this invite a lot of wasted and unnecessary attempts at appeals.

Thames v. City of Westland, 2019 WL 6650561 (6th Cir. Dec. 6, 2019), available at the Sixth Circuit and Westlaw.

Cumulative finality to the rescue in the Third Circuit

In Bangura v. Commonwealth of Pennsylvania, the Third Circuit held that a premature notice of appeal ripened upon the resolution of all outstanding cross-claims.

The plaintiff in Bangura brought employment-discrimination claims against several defendants. In their answers, the defendants filed various cross-claims against one another. The district court dismissed all of the plaintiff’s claims, after which the plaintiff filed her notice of appeal. But at the time she filed that notice, the cross-claims remained pending, and they were resolved a few weeks later.

The notice of appeal was accordingly premature when filed. But the Third Circuit held that the subsequent resolution of the cross-claims saved the notice. This was so under the doctrine of cumulative finality, which allows subsequent events to sometimes save a premature notice.

I wrote an article about cumulative finality (creatively titled Cumulative Finality) for anyone interested in the topic.

Bangura v. Commonwealth of Pennsylvania, 2019 WL 6492482 (3d Cir. Dec. 3, 2019), available at the Third Circuit and Westlaw.

Reply brief filed in cert petition from Rule 23(f) denial

The reply brief in Apache Corp. v. Rhea has been filed.

The case ostensibly addresses the ascertainability requirement for class certification. But it comes after the Tenth Circuit declined to hear a discretionary class-certification appeal under Rule 23(f). The opposition brief accordingly argued the real issue presented is whether the Tenth Circuit abused its discretion in denying the discretionary appeal—a matter over which the courts of appeals have unfettered discretion. Like the initial petition, the reply invokes the Supreme Court’s decision in Dart Cherokee Basin Operating Co. v. Owens—which reviewed a Class Action Fairness Act remand even though the court of appeals had denied a discretionary appeal under 28 U.S.C. § 1453(c)(1)—to argue that the Supreme Court can review this matter.

Prior coverage of the petition is here, and prior coverage of the opposition brief is here. The case is scheduled for the Supreme Court’s January 10, 2020, conference.

Reply Brief for Petitioner, Apache Corp. v. Rhea, No. 19-503 (Dec. 3, 2019), available at the Supreme Court and Westlaw.