Shophar v. Johnson Cnty.
| Decision Date | 10 August 2021 |
| Docket Number | 20-3248 |
| Parties | JOREL SHOPHAR, Plaintiff-Appellant, v. JOHNSON COUNTY, KANSAS; CHRISTINA GYLLENBORG; KRISSY GORSKI, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D.C. No. 2:20-CV-02280-EFM-TJJ) (D. Kansas)
Before HARTZ, KELLY, and McHUGH, Circuit Judges.
Plaintiff-appellant Jorel Shophar, proceeding pro se, appeals from the district court's order (1) dismissing his case for lack of subject-matter jurisdiction, and (2) imposing filing restrictions.[1] We affirm the district court's ruling as to subject matter jurisdiction. We hold we lack jurisdiction over Mr. Shophar's appeal to the extent it challenges the district court's imposition of filing restrictions.
In May 2020, Krissy Gorski-the mother of Mr. Shophar's children-filed a Petition for Protection from Stalking ("PFS") pursuant to Kansas law in Kansas state district court-specifically, the Johnson County District Court. In this petition, Ms. Gorski requested that the court issue an ex parte temporary order restraining Mr Shophar from taking various actions, including following, harassing, calling, or otherwise communicating with her. The Johnson County District Court granted the temporary order of protection. A week later, Judge Christina Gyllenborg of the Johnson County District Court issued an order continuing the temporary order and scheduling a hearing for a final order of protection the following month.
Before that hearing could take place, Mr. Shophar removed the case to the U.S. District Court for the Northern District of Illinois. In his notice of removal, Mr. Shophar alleged, among other things, that the PFS order is a "fraudulent foreign protection order" and that the defendants are "attempting to mischaracterize [him] and cover-up sexual abuse[] and physical abuse of the children." ROA at 8. He named Johnson County, Kansas ("Johnson County"), Judge Gyllenborg, and Ms. Gorski as respondents. They are the appellees in the instant appeal.
The Northern District of Illinois subsequently transferred the case to the U.S. District Court for the District of Kansas. In an order issued on December 9, 2020, the U.S. District Court for the District of Kansas concluded it lacked subject-matter jurisdiction over Mr. Shophar's claims under the Rooker-Feldman doctrine, reasoning Mr. Shophar's filing merely sought review of Ms. Gorski's allegations in her PFS and of Judge Gyllengborg's subsequent order. Id. at 328 . The district court further held that if Mr. Shophar "intended to assert any other viable ground for removal, [it could not] identify it." Id. at 329. It therefore dismissed Mr. Shophar's entire case for lack of subject-matter jurisdiction.
In the same order, the district court imposed filing restrictions on Mr. Shophar. Specifically, the district court stated:
[Mr.] Shophar will be required to obtain leave of Court to submit future filings in any existing cases currently pending in the U.S. District Court for the District of Kansas, or to initiate a civil action in the U.S. District Court for the District of Kansas without representation of an attorney licensed to practice in the State of Kansas and admitted to practice before this Court.
Id. at 332. The district court permitted Mr. Shophar to file objections to these restrictions, stating: "[Mr.] Shophar may file objections in writing to the Court's Order issuing the above filing restrictions by no later than 14 days after receipt of this Order." Id. at 334.
Mr. Shophar filed a notice of appeal to this court on the same day-i.e., December 9. On December 23, Mr. Shophar filed an objection to the district court's imposition of filing restrictions. On December 30, 2020, the district court entered an order overruling Mr. Shophar's objection and imposing restrictions. Mr. Shophar did not file a new or amended notice of intent to appeal the filing restrictions following the district court's December 30 Order.
In "every . . . appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes." Lang v. Lang (In re Lang), 414 F.3d 1191, 1195 (10th Cir. 2005) (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998)). That is, whether we have appellate jurisdiction "is antecedent to all other questions, including the question of the subject matter of the District Court." Id. (internal quotation marks omitted). "[T]he appellant . . . bears the burden to establish appellate jurisdiction." EEOC v. PJ Utah, LLC, 822 F.3d 536, 542 n.7 (10th Cir. 2016).
Here, we conclude (1) we lack jurisdiction to review the district court's imposition of filing restrictions, but (2) we have jurisdiction to review the district court's dismissal of Mr. Shophar's case for lack of subject matter jurisdiction. We explain the basis for each conclusion below.
"Aside from a few well-settled exceptions, federal appellate courts have jurisdiction solely over appeals from 'final decisions of the district courts of the United States.'" Rekstad v. First Bank Sys., Inc., 238 F.3d 1259, 1261 (10th Cir. 2001) (quoting 28 U.S.C. § 1291). The Supreme Court has defined "a 'final decision' [as] one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Ray Haluch Gravel Co. v. Cent. Pension Fund, 571 U.S. 177, 183 (2014) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)).
Assuming no exception applies, an appellant who files a notice of appeal from a nonfinal decision has filed a premature appeal. In most civil cases this defect may be "cured" by obtaining a final judgment disposing of all claims and parties. See Fed. R. App. P. 4(a)(2) (); Shepherd v. Holder, 678 F.3d 1171, 1178 (10th Cir. 2012) (collecting cases). The Supreme Court has clarified, however, that "a notice of appeal from a nonfinal decision . . . operate[s] as a notice of appeal from the final judgment only when a district court announces a decision that would be appealable if immediately followed by the entry of judgment." FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S. 269, 276 (1991). In other words, "[a] premature notice of appeal may ripen . . . upon entry of a subsequent final order, [only] so long as the order leading to the premature notice of appeal has some indicia of finality and is likely to remain unchanged during subsequent court proceedings." Elm Ridge Expl. Co., LLC v. Engle, 721 F.3d 1199, 1209 n.5 (10th Cir. 2013) (quotation marks omitted). Thus, a notice of appeal from a clearly interlocutory ruling does not ripen into a notice of appeal from the final judgment. FirsTier Mortg., 498 U.S. at 276.
Here, the district court's December 9, 2020, order imposing filing restrictions was clearly interlocutory. It lacked "indicia of finality" and was not "likely to remain unchanged during subsequent court proceedings" because it expressly allowed Mr. Shophar to file objections. Judd v. Univ. of N.M., 204 F.3d 1041, 1043 (10th Cir. 2000), as amended (Mar. 22, 2000) ( ). The order did not become final until December 30, when the district court overruled Mr. Shophar's objections and ordered the restrictions to be "made final and imposed." ROA at 343. Accordingly, Mr. Shophar's notice of appeal from the December 9 Order could not ripen into a notice of appeal from the final judgment imposing filing restrictions. See FirsTier Mortg., 498 U.S. at 276; see also Judd, 204 F.3d at 1043. And, as indicated, Mr. Shophar did not file a new or amended notice of his intent to appeal the filing restrictions following the district court's December 30 Order.
Mr Shophar did, of course, file an appellate brief, which the Supreme Court instructs may be deemed "the 'functional equivalent' of [a] formal notice of appeal." Smith v. Barry, 502 U.S. 244, 248 (1992) (quoting Smith v. Galley, 919 F.2d 893, 895 (4th Cir. 1990), rev'd sub nom. Smith v. Barry, 502 U.S. 244). The Supreme Court further directs, however, that appellate briefing may be treated as such only if it (1) "provides sufficient notice to other parties and the courts" of "the litigant's intent to seek appellate review," and (2) is "filed within the time specified by [Federal Rule of Appellate Procedure] 4." Id. at 248-49. Here, Mr. Shophar's appellate brief fails on both counts. First, it does not provide sufficient notice of his intent to appeal the district court's December 30 Order. The brief's introduction explicitly states: "[Mr.] Shophar[] appeals the District Court's ruling that was entered by [the] District Court of Kansas on December 9, 2020." Aplt. Br. at 1 (emphasis in original). The section of Mr. Shophar's brief discussing filing restrictions also...
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