The Week in Federal Appellate Jurisdiction: November 24–December 1, 2019

The short holiday week still had a few decisions of note. The Fourth Circuit weighed in on the split over the finality of orders remanding immigration proceedings for background checks. The Seventh Circuit joined the Third Circuit (but disagreed with the Sixth) in holding that failure to object to an untimely motion to reconsider did not make that motion timely for purposes of tolling appellate deadlines. The Third Circuit treated as non-jurisdictional the requirement that a criminal defendant file a new notice of appeal after a deferred restitution order; the government’s objection to the lack of a second notice was thus forfeited. And two courts addressed appeals from dismissals without prejudice (although they reached seemingly inconsistent decisions).

• The Fourth Circuit held that orders remanding immigration proceedings for background checks are not final orders of removal
• The Seventh Circuit held that failure to object to an untimely motion to reconsider did not make that motion timely for tolling purposes
• The Eleventh Circuit rejected an inadequate notice of appeal
• The Third Circuit held that the government forfeited any challenge to a criminal defendant’s failure to file a notice of appeal from a restitution order
• Two decisions on appealing dismissals without prejudice

The Fourth Circuit held that orders remanding immigration proceedings for background checks are not final orders of removal

In Kouambo v. Barr, the Fourth Circuit held that a Board of Immigration Appeals decision remanding a case for background checks is not a “final order of removal” and thus not appealable.

The petitioner in Kuambo had fled the Central African Republic, first to the Democratic Republic of Congo, then the Republic of Congo, and finally the United States. There he sought asylum. An immigration judge determined that the petitioner had “firmly resettled” in the Republic of Congo, such that he was statutorily ineligible for asylum. But the immigration judge also determined that the petitioner would face political persecution should he return to the Central African Republic. The judge accordingly ordered the petitioner removed but granted withholding of removal.

The petitioner then sought review of the asylum denial before the Board of Immigration Appeals. The Board affirmed the immigration judge’s conclusion on statutory eligibility. And it remanded the case for background checks necessary for the grant of withholding of removal. Rather than wait for those remanded proceedings to finish, the petitioner in Kouambu appealed the Board’s decision to the Fourth Circuit.

The Fourth Circuit held that the remand order was not a final order of removal and thus not appealable. Under 8 U.S.C. § 1252(a)(1), the courts of appeals have jurisdiction to review only final orders of removal. And, according to the Fourth Circuit, the statutory language of the immigration laws suggests that there can be only one final order of removal—not several—in removal proceedings. The court backed up this reading with practical considerations; were immigration proceedings to produce multiple final orders of removal, there would be overlapping and possibly duplicative appeals as cases move among the immigration authorities. The court also noted that substantive proceedings were not yet complete. Immigration regulations provide that withholding of removal cannot be granted until requisite background checks are complete, so the immigration judge’s decision on withholding of removal might change after the checks. The Board’s decision thus did not mark the final determination of the agency.

In so holding, the Fourth Circuit aligned several other circuits, including the Fifth, Eighth, and Ninth. But the courts are not unanimous; the Seventh Circuit holds that these remand orders are final and appealable.

Kouambo v. Barr, 2019 WL 6267359 (4th Cir. Nov. 25, 2019), available at the Fourth Circuit and Westlaw.

The Seventh Circuit held that failure to object to an untimely motion to reconsider did not make that motion timely for tolling purposes

In Sease v. Darko, the Seventh Circuit held that a defendant’s failure to object to a late-filed motion to reconsider did not render that motion timely or toll the time to appeal.

Sease was a civil rights suit for a false arrest and an unreasonable search. The district court dismissed the plaintiff’s claims and—30 days after entering judgment against him—extended the time for filing a motion to reconsider. The plaintiff filed his motion to reconsider on the new deadline, but the district court denied it a few months later. The plaintiff then filed his notice of appeal.

The Seventh Circuit held that the notice was untimely to appeal the original judgment (though it was timely to appeal the reconsideration decision). Appellants normally have 30 days from the judgment to file their notice of appeal, and the plaintiff’s notice in Sease was filed well outside that window. And the time for appealing was not tolled by the plaintiff’s motion for reconsideration. Granted, Appellate Rule 4(a)(4)(A) tolls the time for filing a notice of appeal when a party files a timely motion for reconsideration. But those motions must be filed within 28 days of the judgment to be timely. The plaintiff in Sease missed that window, and, under Civil Rule 6(b)(2), the district court could not extend it.

The defendants’ failure to object to the untimely motion for reconsideration did not affect this conclusion. As the Seventh Circuit saw things, an untimely motion does not become timely for purposes of tolling the appeal deadline just because the opposing party did not object. The court had previously held that holding otherwise would allow parties to use untimely postjudgment motions to extend the time for appealing, “undermining congressional bounds on appellate jurisdiction.” What’s more, the appeal deadline—and some limits on extending that deadline—are jurisdictional. The lack of an objection is thus not enough to ultimately toll the appellate deadline.

The circuits have split on this issue. The Third Circuit agrees that failure to object to an untimely motion to reconsider does not make that motion timely for purposes of tolling appellate deadlines. But the Sixth Circuit has held to the contrary.

Sease v. Darko, 2019 WL 6358695 (7th Cir. Nov. 27, 2019), available at the Seventh Circuit and Westlaw.

The Eleventh Circuit rejected an inadequate notice of appeal

In United States v. Baxter, the Eleventh Circuit held that a document was not effectively a notice of appeal, so the defendant failed to file a timely notice.

Baxter was a criminal case, and the defendant sought to appeal the denial of a Rule 60(b) motion that challenged his sentence insofar as it imposed a fine. Proceeding pro se, he filed a document with the following title:

OBJECTIONS TO GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION FOR RELIEF FROM JUDGMENT AND ORDER PURSUANT TO FED. R. [CIV.] P. 60(B)(1)(6) AND/OR NOTICE OF AN APPEAL.

According to the Eleventh Circuit, this document was inadequate to function as a notice of appeal for three reasons.

First, the body of the document did not indicate the court to which the defendant was appealing. Appellate Rule 3(c)(1)(C) requires that a notice “name the court to which the appeal is taken.” The defendant’s didn’t do this. And as the Eleventh Circuit saw things, this was not a “nitpicky criticism”: this requirement exists to provide sufficient notice to the court and parties, and the defendant’s filing did not indicate whether he intended to appeal to the Eleventh Circuit or seek reconsideration in the district court.

Second, the document’s title did not sufficiently show an intent to appeal. The court thought that the defendant’s use of “and/or” created ambiguity as to what the defendant really wanted—reconsideration in the district court, to raise objections in the district court, or to appeal.

Third, the notice did not mention the district court’s denial of the defendant’s Rule 60(b) motion. It identified only the government’s response to that motion. And Rule 3(c)(1)(B) requires that a notice designate the judgment or order being appealed. Although the court might have inferred that the defendant intended to seek review of the Rule 60(b) decision, “the context here—specifically, [the defendant]’s voluminous record of appeals and filings—caution[ed] against such an inference.”

The defendant thus failed to file a timely, proper notice of appeal, and the court dismissed the appeal.

United States v. Baxter, 2019 WL 6358747 (11th Cir. Nov. 27, 2019), available at the Eleventh Circuit and Westlaw.

The Third Circuit held that the government forfeited any challenge to a criminal defendant’s failure to file a notice of appeal from a restitution order

In United States v. Restitullo, the Third Circuit concluded that the government waited too long to raise a criminal defendant’s failure to file a new notice of appeal after his sentence was amended to add restitution.

The opinion is not perfectly clear about the timing of the events relevant to appellate jurisdiction. But it appears that the defendant in Restitullo was sentenced to 40 years’ imprisonment, after which he filed a notice of appeal. The district court later ordered the defendant to also pay $312,000 in restitution, and the defendant did not file another notice of appeal. The government then argued that the defendant had failed to timely appeal the restitution order, such that the court of appeals lacked jurisdiction to review it.

The Third Circuit rejected this argument. The defendant had filed a timely appeal from his sentence of imprisonment. And the Third Circuit read Manrique v. United States to hold that the requirement of filing a timely notice from an amended judgment imposing restitution is not jurisdictional; it’s instead a mandatory claims-processing rule that can be forfeited if not timely raised. In Restitullo, the government waited too long to raise the lack of a notice of appeal from the amended judgment:

The government waited nearly two months after [the defendant] filed his reply brief, more than four months after [the defendant] submitted his opening brief, and more than a year and a half after the District Court entered the restitution order to raise the issue.

The government had accordingly forfeited any objection to the lack of a notice.

Note, Manrique never said that a second notice is not jurisdictionally required in cases of deferred restitution orders; it said only that the requirement is “at least a mandatory claim-processing rule” that, in Manrique, was properly invoked.

United States v. Restitullo, 2019 WL 6357261 (3d Cir. Nov. 27, 2019), available at the Third Circuit and Westlaw.

Two decisions on appealing dismissals without prejudice

Two courts addressed appeals from dismissals without prejudice, reaching seemingly inconsistent results.

In Mierzwa v. Dudek, the Third Circuit held that it had jurisdiction over an appeal even though the plaintiff’s complaint had been dismissed without prejudice. The district court had dismissed a motion for a scheduling conference as moot, suggesting that the district court intended its dismissal to be the end of proceedings in that court. And the plaintiff had elected to stand on his complaint as dismissed by immediately appealing the dismissal instead of amending or refiling his complaint.

But in The King/Morocco v. Banner of N.O., the Fifth Circuit dismissed an appeal from a dismissal without prejudice. After the defendant moved to dismiss the plaintiff’s claims, the district court ordered the plaintiff (who was proceeding pro se) to file a response to the motion. The district court later ordered the plaintiff to file an amended complaint. The plaintiff filed neither. So the district court granted the defendant’s motion and dismissed the claims without prejudice. The plaintiff then appealed. But the Fifth Circuit concluded that the district court had not entered a final, appealable decision; the dismissal was not final because “the district court did not adjudicate or dispose of any substantive issues on the merits.” The court did not address whether the plaintiff’s appeal signaled his intent to stand on the dismissed complaint.

Mierzwa v. Dudek, 2019 WL 6445405 (3d Cir. Nov. 29, 2019), available at the Third Circuit and Westlaw.

The King/Morocco v. Banner of N.O., 2019 WL 6359389 (5th Cir. Nov. 27, 2019), available at the Fifth Circuit and Westlaw.