The Week in Federal Appellate Jurisdiction: December 4–10, 2022

There were three cases of note from last week. The Third Circuit held that notices of appeal do not encompass post-notice decisions. Litigants must file a second notice, or amend the first, to appeal those decisions. The D.C. Circuit held that it could not review a facial challenge to a statute in an injunction appeal stemming from an as-applied challenge. And the Ninth Circuit determined that a temporary restraining order was effectively an appealable injunction.

• The Third Circuit on Notices of Appeal & Post-Notice Decisions
• The D.C. Circuit on the Scope of Injunction Appeals
• The Ninth Circuit Treated a TRO Denial as an Injunction Denial

The Third Circuit on Notices of Appeal & Post-Notice Decisions

In United States v. Kwasnik, the Third Circuit held that criminal defendants must file a second or amended notice of appeal to challenge post-judgment orders issued after their initial notice.

The defendant pleaded guilty to money laundering but later moved to withdraw his plea. The district court denied that request and sentenced the defendant to 18 years in prison. The defendant then filed a notice of appeal, which was followed by three additional motions to withdraw his guilty plea. The district court denied those three subsequent motions. But the defendant did not file an additional notice of appeal or amend his original one.

The Third Circuit determined that it had jurisdiction over only the first order refusing to withdraw the guilty plea. The court held that “a notice of appeal can encompass only those orders decided before the notice was filed.” It does not extend to subsequent decisions. So by not filing a second notice of appeal or amending his first, the defendant in Kwasnik lost the right to appeal the post-notice decisions.

United States v. Kwasnik, 2022 WL 17491964 (3d Cir. Dec. 8, 2022), available at the Third Circuit and Westlaw

The D.C. Circuit on the Scope of Injunction Appeals

In Green v. U.S. Department of Justice, the D.C. Circuit held that an injunction appeal involving an as-applied challenge to a statute did not also encompass a facial challenge.

Green involved a First Amendment challenge to certain provisions of the Digital Millennium Copyright Act. The district court initially dismissed the plaintiffs’ facial challenge. Later, it denied a preliminary injunction on the as-applied challenge. The plaintiffs then appealed the denial of the injunction. And in that appeal, they asked the court to address their facial challenge.

The D.C. Circuit could review the denial of a preliminary injunction under 28 U.S.C. § 1292(a)(1). But it limited its consideration to the as-applied challenge. The dismissal of the facial challenge was not “inextricably bound” to the preliminary-injunction decision. Although declaring the Act facially unconstitutional would necessarily resolve the as-applied challenge, the reverse was not true. So the plaintiffs’ as-applied challenge was “anything but inextricably bound to their facial challenge.”

Green v. U.S. Department of Justice, 2022 WL 17419644 (D.C. Cir. Dec. 6, 2022), available at the D.C. Circuit and Westlaw

The Ninth Circuit Treated a TRO Denial as an Injunction Denial

In TGB Communications, LLC v. Sellers (no slip opinion available), the Ninth Circuit determined that the denial of a temporary restraining order was immediately appealable via 28 U.S.C. § 1292(a)(1). Denials of TROs are normally not immediately appealable. But sometimes they are, such as when the denial comes after a full adversary hearing and effectively denies injunctive relief. That was the case in TGB Communications. The district court held a full hearing with witnesses and evidence, and the court’s order said effectively denied a preliminary injunction.

TGB Communications, LLC v. Sellers, 2022 WL 17484331 (9th Cir. Dec. 5, 2022), available at Westlaw