John Morrow, Jr. v. Tanya Morrow

Filing

UNPUBLISHED OPINION ORDER FILED. [16-40455 Dismissed for Lack of Jurisdiction] Judge: WED, Judge: EBC, Judge: PRO; denying as moot motion to file amicus brief [8371537-2]; denying motion to proceed IFP filed by Appellant Ms. Tanya Morrow [8274795-2] [16-40455]

Case: 16-40455

Document: 00514103521

Page: 1

Date Filed: 08/04/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40455
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
August 4, 2017
Lyle W. Cayce
Clerk

JOHN RANDALL MORROW, JR.,
Plaintiff-Appellee
v.
TANYA MORROW,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:16-CV-27
Before DAVIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *

Appellant Tanya Morrow moves for leave to proceed in forma pauperis
(IFP) in her appeal of the district court’s remand of her case to state court,
which was based on the grounds that the notice of removal was untimely and
that the court lacked subject matter jurisdiction. Gregory Roberts has moved
for leave to file a brief as amicus curiae on behalf of the Families Civil Liberties
Union in support of Morrow.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

Case: 16-40455

Document: 00514103521

Page: 2

Date Filed: 08/04/2017

No. 16-40455
By moving to proceed IFP in this court, Morrow is challenging the
district court’s certification that her appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). This court’s inquiry into
whether an appeal is taken in good faith “is limited to whether the appeal
involves

legal

points arguable

on

their

merits (and therefore not

frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). If the court
upholds the district court’s certification decision, the appellant must pay the
filing fee or the appeal will be dismissed for want of prosecution. Baugh, 117
F.3d at 202. Alternatively, this court may dismiss the appeal sua sponte if it
is frivolous. Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
As a threshold matter, this court must determine whether it has
jurisdiction to entertain Morrow’s appeal. Mosley v. Cozby, 813 F.2d 659, 660
(5th Cir. 1987). Because the removal in this case was effected under 28 U.S.C.
§ 1443, the general prohibition against reviewing remand orders does not
apply herein. See 28 U.S.C. § 1447(d). However, “the timely filing of a notice
of appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551
U.S. 205, 214 (2007). Federal courts lack the authority to create equitable
exceptions to jurisdictional requirements, and an appeal that “has not been
prosecuted . . . within the time limited by the acts of Congress . . . must be
dismissed for want of jurisdiction.” Bowles, 551 U.S. at 213-14.
Morrow’s notice of appeal, filed on March 28, 2016, is untimely from the
remand order that was entered on February 22, 2016. See FED. R. APP. P.
4(a)(1)(A) (a party must file a notice of appeal in a civil case within 30 days of
the order appealed from). There is no basis to construe the motion as a motion
for extension of time under Federal Rule of Appellate Procedure 4(a)(5).
Accordingly, her IFP motion is denied, and her appeal is dismissed for lack of
jurisdiction. See Bowles, 551 U.S. at 214.

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Case: 16-40455

Document: 00514103521

Page: 3

Date Filed: 08/04/2017

No. 16-40455
The motion of Gregory Roberts for leave to file a brief as amicus curiae
on behalf of the Families Civil Liberties Union is denied as moot.
APPEAL DISMISSED; MOTIONS DENIED.

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