The Week in Federal Appellate Jurisdiction: June 13–19, 2021

I’m on vacation this week, which means a truncated weekly roundup.

• The Seventh Circuit Saw No Excusable Neglect in Thinking a Second Post-Judgment Motion Extended the Appeal Deadline
• The Eighth Circuit Avoided Deciding an Excusable-Neglect Determination
• The D.C. Circuit Said That an SEC Order Requesting Plans for Data Dissemination Was Not Final
• The Tenth Circuit Immediately Reviewed a Decision That Defendants Had Forfeited Their Qualified-Immunity Defense

The Seventh Circuit Saw No Excusable Neglect in Thinking a Second Post-Judgment Motion Extended the Appeal Deadline

In Krivak v. Home Depot U.S.A., Inc., the Seventh Circuit rejected a district court’s extension of an appeal deadline.

The plaintiff in Krivak filed two post-judgment motions: one for reconsideration and—after the district court denied reconsideration—one for relief from the judgment. Only the first motion extended the appeal deadline. The plaintiff waited to appeal until after the district court denied the second post-judgment motion.

When the Seventh Circuit pointed out that the appeal seemed late, the district court extended the appeal deadline under Federal Rule of Appellate Procedure 4(a)(5). But that extension, the Seventh Circuit concluded, was an abuse of discretion. The rules allow for only one post-judgment motion to extend the appeal deadline. And “counsel’s ‘inability or refusal to read and comprehend the plain language of the federal rules’ cannot satisfy the strict excusable neglect standard.”

Krivak v. Home Depot U.S.A., Inc., 2021 WL 2460984 (7th Cir. June 17, 2021), available at the Seventh Circuit and Westlaw.

The Eighth Circuit Avoided Deciding an Excusable-Neglect Determination

In Gould ex rel St. Louis-Kansas City Carpenters Regional Council v. Bond, the Eighth Circuit declined to say whether a district court abused its discretion in extending an appeal deadline.

The plaintiff in Gould filed his notice of appeal one day late. On the last day of the appeal window, the plaintiff’s attorney “believed that he forwarded a notice of appeal to his legal assistant for filing. He had not.” The next day, the plaintiff sought leave to file his notice out of time. The district court granted this request, saying only that the failure to file was due to “excusable neglect.”

The Eighth Circuit appeared to disagree with the district court’s assessment of excusable neglect. The “untimeliness was the result of ‘garden variety’ delay by [the plaintiff] and negligence by his two attorneys, not their excusable neglect of a mandatory and jurisdictional filing requirement.” But whether the district court abused its discretion in granting the extension was a close question. The Eighth Circuit accordingly avoided the issue and proceeded to address the merits. It could do so, the court said, because the underlying issue—whether the plaintiff could file an action on behalf of his union—was also a jurisdictional question.

Gould ex rel St. Louis-Kansas City Carpenters Regional Council v. Bond, 2021 WL 2405735 (8th Cir. June 14, 2021), available at the Eighth Circuit and Westlaw.

The D.C. Circuit Said That an SEC Order Requesting Plans for Data Dissemination Was Not Final

In Nasdaq Stock Market LLC v. SEC, the D.C. Circuit dismissed a challenge to an SEC order that asked national securities exchanges to submit plans for information sharing.

Simplifying a fair bit, the SEC regulates the system for disseminating “certain types of quotation and transaction information for publicly traded equity securities.” The SEC recently proposed adopting a single information-sharing plan, and it ordered stock exchanges to submit proposals with certain features. Several stock exchanges challenged this order in the D.C. Circuit. They argued that the SEC lacked authority to adopt a plan with the three of the requested features.

That D.C. Circuit dismissed the challenge. It has jurisdiction over only “final orders of the SEC.” And to be final, an SEC order must (among other things) “mark the consummation of the agency’s decisionmaking process.” The order failed this requirement. The order was merely a call for proposals, and the SEC had not committed to any course of action. So although the order “was definitive on the question whether the three challenged plan elements had to be included in the proposal, it was not a ‘definitive statement of position’ on the question the Commission had initiated proceedings to answer—whether the three features should be included in the eventual plan.”

Nasdaq Stock Market LLC v. SEC, 2021 WL 2425956 (D.C. Cir. June 15, 2021), available at the D.C. Circuit and Westlaw.

The Tenth Circuit Immediately Reviewed a Decision That Defendants Had Forfeited Their Qualified-Immunity Defense

In A Brighter Day, Inc. v. Barnes, the Tenth Circuit noted that it could review the rejection of a qualified-immunity defense even though the district court deemed the defense forfeited.

Brighter Day involved civil-rights claims against government officials involved in regulating child-placement agencies. The defendants moved to dismiss, arguing that the plaintiffs’ allegations were insufficient. The district court denied that motion. In a footnote, the district court also rejected the defendant’s invocation of qualified immunity as “woefully underdeveloped.” The defendants then appealed.

On appeal, the plaintiffs argued that the defendants’ failure to develop their qualified-immunity defense deprived the court of appellate jurisdiction. The Tenth Circuit rejected this contention. It noted that it had jurisdiction to review “decisions” denying qualified immunity. And the district court’s decision expressly denied immunity. The extent to which the defendants developed the defense could be relevant to the relief on appeal; the court of appeals could conclude, for example, that the defendants had forfeited the defense. But the sufficiency of the defendants’ briefing in the district court did not affect appellate jurisdiction over a decision denying qualified immunity.

A Brighter Day, Inc. v. Barnes, 2021 WL 2411882 (10th Cir. June 14, 2021), available at the Tenth Circuit and Westlaw.