Appealing summary-judgment denials, jurisdiction over hardship determinations in immigration appeals, without-prejudice anti-SLAPP denials, and more.
January 13, 2021
Last week saw a variety of appellate-jurisdiction decisions. The Second Circuit effectively held that a denied summary-judgment motion does not preserve a purely legal issue for appeal. The Sixth Circuit weighed in on the split over jurisdiction to review hardship determinations in immigration cases. The Tenth Circuit held that a defendant could not appeal a without-prejudice denial of an anti-SLAPP motion. In another case, the Tenth Circuit explained finality in foreclosure actions. The Eleventh Circuit held that an attorney could appeal a sanction order even though the attorney was not named in the notice of appeal. The Sixth Circuit explained that the non-jurisdictional nature of the criminal appeal deadline meant the government can withdraw its objection to a late appeal. And the Seventh Circuit had to determine the finality of an ambiguous judgment.
- The Second Circuit on Appealing Summary-Judgment Denials
- The Sixth Circuit on Appealing Hardship Determinations in Immigration Appeals
- The Tenth Circuit Said No Appeal From a Without-Prejudice Denial of an Anti-SLAPP Motion
- Another Cert Petition on § 1447(d) Remand Appeals
- The Tenth Circuit on Finality in Foreclosure Actions
- The Eleventh Circuit Excused the Failure to Name an Attorney in a Notice of Appeal From a Sanctions Order
- The Sixth Circuit Held that the Government Can Withdraw Timeliness Objections in Criminal Appeals
- The Seventh Circuit on Ambiguous Finality
The Second Circuit on Appealing Summary-Judgment Denials
As a general rule, parties cannot appeal an order denying summary judgment after a case proceeds to a full trial. In such a case, the trial record supersedes the summary-judgment record. So any questions about the sufficiency of the evidence at summary judgment become more or less moot; what matters is the sufficiency of the trial evidence. And litigants must raise challenges to the sufficiency of the trial evidence via motions under Federal Rule of Civil Procedure 50. The issue might better be characterized as whether summary-judgment denials preserve issues for appeal; the appellant is challenging the judgment for reasons specified in the summary-judgment motion. But the point is that a denied summary-judgment motion does not preserve challenges to the sufficiency of the evidence at trial.
A potential exception to this rule might exist when a summary-judgment motion raises a purely legal issue. That is, the denied summary-judgment motion might be enough to preserve that purely legal issue for appeal. In last week’s Omega SA v.375 Canal, LLC, a panel of the Second Circuit split on this matter. The majority held that a denied motion for summary judgment was not sufficient to preserve a challenge to the applicable legal standard. A partial dissent from Judge Lohier argued to the contrary.
The issue was ultimately irrelevant; the appellant had preserved the same issue by objecting to the jury instructions. But the holding could be important for future litigants who don’t otherwise preserve for appeal issues that they raised in a denied summary-judgment motion.
For more, see my post The Second Circuit Split on Appealing Summary-Judgment Denials.
Omega SA v.375 Canal, LLC, 2021 WL 42112 (2d Cir. Jan. 6, 2021), available at CourtListener and Westlaw.
The Sixth Circuit on Appealing Hardship Determinations in Immigration Appeals
The appellate-jurisdiction provisions of immigration law can get complicated. The law generally strips the courts of appeals of jurisdiction to review a variety of issues. But a savings clause adds that they retain jurisdiction to review legal and constitutional issues. And in last year’s Guerrero-Lasprilla v. Barr, the Supreme Court held that appellate jurisdiction exists to review mixed questions—i.e., application of the law to the facts.
Before Guerrero-Lasprilla, most (if not all) courts of appeals held that they lacked jurisdiction to review whether an immigration petitioner had shown the “exceptional and extremely unusual hardship” necessary for cancellation of removal. Since Guerrero-Lasprilla, the courts have split on this issue. Last week, the Sixth Circuit became the second court to hold that it has jurisdiction to review hardship determinations. In doing so, the Sixth Circuit joined the Eleventh Circuit but split with the Third and Tenth.
For more on this issue and the Sixth Circuit’s decision in Singh, see my post Appealing Hardship Determinations in Immigration Cases.
Singh v. Rosen, 2021 WL 56151 (6th Cir. Jan. 7, 2021), available at the Sixth Circuit and Westlaw.
The Tenth Circuit Said No Appeal From a Without-Prejudice Denial of an Anti-SLAPP Motion
The appealability of anti-SLAPP motions—special motions to dismiss suits brought with the purpose or effect of stifling constitutionally protected speech—is a long-simmering issue in the courts of appeals. Last week, in Farmland Partners, Inc. v. Fortunae, the Tenth Circuit added another twist, holding that a without-prejudice dismissal of an anti-SLAPP motion is not immediately appealable.
Simplifying a fair bit, Farmland Partners involved a real-estate investment trust’s suit against the author of an article about the trust. The author had questioned the trust’s solvency. Shortly thereafter, the trust’s stock price dropped almost 40%. The trust sued the author in Colorado state court, alleging defamation and other claims.
The author removed the case to federal court and then moved to dismiss it under the Texas Citizens Participation Act—Texas’s anti-SLAPP law. But the district court declined to rule on the motion’s merits. The trust had also sued several John Doe defendants, and the district court thought that their presence made subject-matter jurisdiction uncertain. The district court noted that, once jurisdictional issues were resolved, the author could renew the motion. The author then appealed to the Tenth Circuit.
A majority of the Tenth Circuit held that the without-prejudice denial was not appealable via the collateral-order doctrine. Under that doctrine, a district court’s otherwise-interlocutory decision is deemed final and appealable if the decision (1) conclusively resolves an issue, (2) involves an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal after a final judgment. The Tenth Circuit addressed only the first requirement—that the district court conclusively resolve the issue—and held that the without-prejudice denial was not conclusive. The district court said that it would revisit the issue once jurisdiction had been settled.
Judge Briscoe concurred. She thought that the district court had been wrong to question its subject-matter jurisdiction. And the district court’s delay in deciding the anti-SLAPP motion—like a delay in deciding absolute or qualified immunity—was effectively a denial. Anti-SLAPP laws often exist to protect defendants from the burdens and inconveniences of litigation. So the delay in deciding the motion, Judge Briscoe contended, was effectively a denial. But Judge Briscoe agreed with the outcome; the district court had not decided the anti-SLAPP motion, so a remand for a decision and reasoned opinion on the issue was appropriate.
Farmland Partners, Inc. v. Fortunae, 2021 WL 48786 (10th Cir. Jan. 6, 2021), available at the Tenth Circuit and Westlaw.
Another Cert Petition on § 1447(d) Remand Appeals
The last year or so has seen a quartet of decisions on the scope of remand appeals when an exception to 28 U.S.C. § 1447(d) applies. That provision generally bars appellate review of remand orders. But it includes two express exceptions: when removal was based on the federal-officer statute or the civil-rights removal statute. Four circuits—the First, Fourth, Ninth, and Tenth—have recently held that when one of those exceptions applies, the scope of the appeal encompasses only the excepted grounds for removal. Other potential grounds for removal are still barred.
The Supreme Court granted cert in one of these cases—BP P.L.C. v. Mayor & City Council of Baltimore—which comes out of the Fourth Circuit. Argument is scheduled for next week.
The defendants in another one of these cases—the First Circuit’s decision, Rhode Island v. Shell Oil Products Co.—have now petitioned for cert, too. The petition presents the same question as BP and asks the Supreme Court to hold the petition pending the decision in BP.
You can read more about the First Circuit’s decision in Shell Oil in a prior weekly roundup, The Week in Federal Appellate Jurisdiction: October 25–31, 2020.
Petition for a Writ of Certiorari, Shell Oil Products Co. v. Rhode Island, No. 20-900 (Dec. 30, 2020), available at the Supreme Court and Westlaw.
The Tenth Circuit on Finality in Foreclosure Actions
In MTGLQ Investors, LP v. Wellington, the Tenth Circuit held that a judgment of foreclosure was sufficiently final for appeal purposes, even though the property had not yet been sold.
The case involved a mortgage company’s foreclosure action against a homeowner. The district court granted summary judgment to the mortgage company and entered a judgment of foreclosure. But that judgment contemplated the further exercise of jurisdiction over the dispute:
In the Judgment of Foreclosure, the district court stated that it retained jurisdiction over confirmation of the sale and, “if necessary,” “assisting the purchaser at the foreclosure sale, or its successor and assigns, in obtaining possession of the property” and “entering a deficiency judgment upon approval of the Special Master’s Report subsequent to the foreclosure sale.” The court also retained jurisdiction “for determining all other issues presented in this action and not specifically ruled on in this Judgment of Foreclosure.”
The Tenth Circuit held that the judgment was final and appealable. The court said “that a decree of sale in a foreclosure suit, which settles all the rights of the parties and leaves nothing to be done but to make the sale and pay out the proceeds, is a final decree for the purposes of an appeal.” And the decree in judgment of foreclosure in MTGLQ Investors left only ancillary issues for the district court’s potential resolution.
MTGLQ Investors, LP v. Wellington, 2021 WL 56698 (10th Cir. Jan. 7, 2021), available at the Tenth Circuit and Westlaw.
The Eleventh Circuit Excused the Failure to Name an Attorney in a Notice of Appeal From a Sanctions Order
In Lacayo v. Puerta de Palmas Condominium Association, the Eleventh Circuit held that a notice of appeal from an attorney-sanction order was sufficient, even though it didn’t name the attorney.
The plaintiffs in Lacayo had sued a variety of defendants, alleging claims related to their expulsion from a condo. The district court dismissed the complaint for failure to state a claim. Some of the defendants then sought sanctions. And the district court granted those sanctions against the plaintiff’s attorney, concluding that he had “engaged in unreasonable and vexatious conduct that led to multiplied proceedings.” (Cleaned up.) The sanctions amounted to almost $15,000.
The attorney then tried to appeal. But he was not named in the notice of appeal. And Federal Rule of Appellate Procedure 3(c) requires that a notice of appeal name the appealing parties. Failure to name an attorney on a notice of appeal can deprive the appellate court of jurisdiction to review a sanctions order.
The Eleventh Circuit nevertheless held that the notice of appeal was sufficient. Courts can excuse the failure to name a party when that party’s intention to appeal is “obviously clear.” And in Lacayo, the attorney’s intention was sufficiently clear. The notice identified the sanctions order as the order being appealed. And the parties that were named—the plaintiffs—did not have standing to challenge that sanction order. So it had to be the attorney that was appealing.
Lacayo v. Puerta de Palmas Condominium Association, 2021 WL 71791 (11th Cir. Jan. 8, 2021), available at the Eleventh Circuit and Westlaw.
The Sixth Circuit Held that the Government Can Withdraw Timeliness Objections in Criminal Appeals
And in United States v. Jackson, the Sixth Circuit held that the United States can withdraw its objection to the timeliness of a criminal appeal.
Simplifying a bit, the defendant in Jackson had been convicted of drug offenses. Six months later, he tried to appeal. The United States initially objected to the appeal as untimely. But that procedural issue eventually became “thorny”; there was some question of whether the defendant had properly sought an extension of the time to appeal. The United States accordingly dropped its objection to the appeal, preferring to defend on the merits.
The Sixth Circuit held that the United States could do so. Unlike the civil-appeal deadline, the deadline for appealing in criminal cases is not jurisdictional. So the United States can (and occasionally does) forfeit or waive any objection to the timeliness of a criminal appeal.
In Jackson, the government withdrew its objection before any decision on the timeliness issue. Given the non-jurisdictional nature of the appeal deadline, the Sixth Circuit saw no impediment to honoring the government’s request.
The court of appeals also concluded that it should not itself dismiss the appeal as untimely. Even without an objection, the court can enforce a non-jurisdictional appeal deadline “if the appeal implicates the important judicial interests of finality of convictions and efficient administration of claim processing.” But the six-month delay in Jackson did not implicate any “important judicial interests” that would warrant the court’s dismissing the appeal.
United States v. Jackson, 2021 WL 37495 (6th Cir. Jan. 5, 2021), available at the Sixth Circuit and Westlaw.
The Seventh Circuit on Ambiguous Finality
In Sterling National Bank v. Block, the Seventh Circuit concluded that a district court had intended to resolve all claims before it—and thus enter a final decision—even though there was some ambiguity on that point.
Sterling National Bank involved a variety of claims and counterclaims, some of which sought declaratory relief. The district court initially entered judgment for the defendants without expressly resolving all of those claims. The district court then reopened the case, and the defendants voluntarily dismissed some unresolved counterclaims. But the district court never entered an amended judgment.
The Seventh Circuit ultimately concluded that the district court’s decision was sufficiently final for appeal. The court of appeals noted that it “expect[s] a more thorough accounting of each party’s respective rights and obligations at the conclusion of an action seeking declaratory relief.” But even when that explanation is lacking, the court of appeals “may nevertheless have jurisdiction if the practicalities weigh heavily toward a common sense conclusion that the district court intended to enter a final judgment.” And here, the district court had done enough. It had denied the claims for declaratory relief. And the parties appeared to agree that the district court had resolved all of their claims.
Sterling National Bank v. Block, 2021 WL 30832 (7th Cir. Jan. 5, 2021), available at the Seventh Circuit and Westlaw.