                                                                        FILED
                                                            United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                 Tenth Circuit

                           FOR THE TENTH CIRCUIT                   July 11, 2019
                       _________________________________
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
J & L BROWN FAMILY, LLC,

      Plaintiff - Appellee,

v.                                                     No. 18-3176
                                           (D.C. No. 5:18-CV-04006-SAC-KGS)
ARZELLA BRADSHAW; HIGH PLAINS                            (D. Kan.)
FARM CREDIT; BANK OF HAYS, f/k/a
Hanston State Bank; UNITED STATES
OF AMERICA, acting through the Farm
Service Agency, United States Department
of Agriculture; KANSAS DEPARTMENT
OF REVENUE,

      Defendants,

MAHIEU ELDER LAW PA,

      Defendant - Appellee,

and

RODNEY BRADSHAW,

      Defendant Cross Claimant -
      Appellant,

v.

UNITED STATES OF AMERICA, acting
through the Farm Service Agency, United
States Department of Agriculture,

      Cross Claim Defendant - Appellee.
                     _________________________________
                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, PHILLIPS, and CARSON, Circuit Judges.
                  _________________________________

       Rodney Bradshaw appeals pro se from a district court order in this mortgage-

foreclosure case brought by J & L Brown Family, LLC. For the reasons discussed below,

we dismiss the appeal as moot.

                                    I. BACKGROUND

       In 2013, J & L loaned Mr. Bradshaw and his wife $225,000, secured by a

mortgage on five tracts of land comprising their Kansas farm. J & L’s mortgage

occupied various levels of priority in relation to other mortgages and liens on the

Bradshaws’ property that were possessed by the United States Department of

Agriculture’s (USDA’s) Farm Service Agency, the Mahieu Elder law firm, the Kansas

Department of Revenue, the Bank of Hays, and the High Plains Farm Credit company.

                  A. State Suit, Removal, and Dismissal of Crossclaim

       In January 2018, J & L filed a petition in Kansas state court to foreclose on the

mortgage based on the Bradshaws’ default on the loan. The United States removed the

case to federal district court based on its 2007 mortgage interest in tract one.


       *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.

                                              2
       Mr. Bradshaw filed a pro se document asserting a crossclaim against the USDA.

It sought (1) a stay of the foreclosure proceedings, (2) a review of the USDA’s denial of a

hearing on his discrimination complaints based on his race (Mr. Bradshaw is African

American), and (3) a “remand to the [USDA’s] Administrative Law Judge.” R. at 27.1 In

support, Mr. Bradshaw alleged that “[t]he property subject to this suit falls under two

separate and distinct forms of moratorium relief.” R. at 25. He asked for a moratorium

on foreclosure because (1) he “was a Track A claimant in the Pigford class action,” id.,2

and (2) he “has been harassed by the USDA and its employees for more than 40 years

and the Agency is still continuing to discriminate against him by failing to give him a

formal hearing on the merits,” id. at 27.3




       1
         Arzella Bradshaw’s participation in the case was limited to informing the
district court of divorce proceedings with her husband and stipulating “to foreclosure
of her in rem interest, right or claim to the Real Property, to satisfy J&L’s Mortgage
and liens on the Real Property.” R. at 638.
       2
        Pigford was a class-action lawsuit on behalf of African-American farmers
who claimed racial discrimination in the USDA’s administration of farm loan
programs. See Pigford v. Glickman, 185 F.R.D. 82, 86 (D. D.C. 1999). It culminated
in a consent decree specifying a process to resolve discrimination claims against the
USDA. Mr. Bradshaw did not, however, prevail on his Track A Pigford claim.
“[T]hose who seek relief under Track A forever waive their right to seek review in
any court or before any tribunal of the decision of the arbitrator with respect to any
claim that is, or could have been decided.” Pigford v. Vilsack, 97-CV-1978 (PLF),
2016 WL 4921378, at *5 (D. D.C. Sept. 15, 2016) (internal quotation marks omitted).
       3
        Under 7 U.S.C. § 1981a(b), there is a “moratorium . . . on all acceleration and
foreclosure proceedings instituted by the [USDA] against any farmer or rancher who”
has “a claim of program discrimination that is accepted by the Department as valid.”
See also 7 C.F.R. § 766.358(a) (enabling regulation).

                                             3
       J & L and the United States opposed Mr. Bradshaw’s requests for relief, arguing

his moratorium theories did not apply to a private foreclosure action. Mr. Bradshaw

responded, arguing that if he was granted an administrative hearing, he “could possibly

pay [J & L] the money [it] is owed and also move the Secretary to take action to satisfy

the alleged debts [under] 42 U.S. Code § 3535(i).” R. at 433.4 He also moved to enjoin

the Mahieu law firm from selling his farm equipment to satisfy a judgment against him in

an unrelated state court case.

       The district court dismissed Mr. Bradshaw’s crossclaim without prejudice because

he did not assert it as part of a pleading. It denied his other motions as meritless.

     B. Denial of Mr. Bradshaw’s Motions and Request for Permission to Appeal

       Several weeks later, Mr. Bradshaw filed motions requesting much of the same

relief he had sought before. He also included an answer. Mr. Bradshaw relied on many

of the same legal theories the district court had explained were meritless. He sought to

plead a crossclaim for breach of fiduciary duty against the Secretary of Agriculture under

5 U.S.C. § 8477,5 alleging the Secretary was liable for “failing to enforce the moratorium

provisions of 7 CFR 766.358 and such authority to do so is found under 42 USC

3535(i).” R. at 509.




       4
        Section 3535(i)(1) authorizes the Secretary of Housing and Urban
Development to bring an action to “purchase at any foreclosure or any other sale any
property in connection with which he has made a loan or grant.”
       5
         Section 8477 governs fiduciary responsibilities in the Federal Retirement
Thrift Investment Management System.
                                              4
       J & L filed a motion for partial summary judgment, seeking to foreclose on its

claim against the Mr. Bradshaws and requesting a priority determination of the

competing interests in the five parcels. The United States opposed Mr. Bradshaw’s

reasserted motions, characterizing them as “un-intelligible, and . . . in most respects

copied verbatim from Mr. Bradshaw’s previous crossclaim and motions in this case.”

R. at 606. The United States moved to dismiss or for summary judgment based on its

previous filings.

       On August 8, 2018, the district court entered an order denying Mr. Bradshaw’s

reasserted motions. On August 15, apparently in response to that order, Mr. Bradshaw

filed a document entitled, “Permission to File Interlocutory Appeal.” R. at 678. He

designated three issues for appellate review: (1) “whether [he] is entitled to [the]

moratorium provisions provided in the Pigford Settlement Agreement”; (2) whether 7

U.S.C. § 1981a, 7 C.F.R. § 766.358, and 42 U.S.C. § 3535(i) require the Secretary of

Agriculture “to enforce the Act of Congress designed to protect Black farmers . . . who

ha[ve] not been given a hearing for administrative offsets an[d] continued discrimination

by [t]he USDA”; and (3) “Did the District Court abuse its discretion by denying a

preliminary injunction against foreclosure by a third party.” R. at 678-79 (italics added).

       The district court did not certify any part of its August 8 order for interlocutory

appeal. See 28 U.S.C. § 1292(b).6 Instead, it docketed the “Permission to File” as a

notice of interlocutory appeal, and the case continued.


       6
        As discussed below, an interlocutory appeal from the denial of an injunction
does not require certification. See 28 U.S.C. § 1292(a)(1).
                                              5
     C. Orders Granting Partial Summary Judgment, Dismissal, and Foreclosure

       On August 16, 2018, the district court entered an order granting J & L’s motion

for partial summary judgment and the United States’ motion to dismiss Mr. Bradshaw’s

cross-claim. On September 5, the court executed and filed a journal entry drafted by

J & L that designated the priorities of Mr. Bradshaw’s creditors, foreclosed J & L’s

mortgage, and authorized J & L to sell the five tracts of Mr. Bradshaw’s farm. On

October 26, the district court entered a final judgment. Mr. Bradshaw did not thereafter

file a notice of appeal.

                                    II. DISCUSSION 7

                 A. Permission to File Interlocutory Appeal and Waiver

       A timely filed notice of appeal in a civil case is a prerequisite to appellate

jurisdiction. See Bowles v. Russell, 551 U.S. 205, 214 (2007). Ordinarily, a notice of

appeal must be filed in the district court “within 60 days after entry of the judgment or

order appealed from if one of the parties is . . . the United States.” Fed. R. App. P.

4(a)(1)(B)(i).

       The only document resembling a notice of appeal is Mr. Bradshaw’s August 15

“Permission to File Interlocutory Appeal.” It designated only one issue that was eligible

for automatic interlocutory appeal—whether the district court abused its discretion in

denying injunctive relief. See 28 U.S.C. § 1292(a)(1). But Mr. Bradshaw waived that




       7
        Because Mr. Bradshaw appears pro se, we liberally construe his filings.
Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).
                                              6
issue by not arguing it in his opening appellate brief. See Silverton Snowmobile Club v.

U.S. Forest Serv., 433 F.3d 772, 783 (10th Cir. 2006). The other two issues designated in

the “Permission to File Interlocutory Appeal,” which concern Mr. Bradshaw’s

foreclosure-moratorium theories, were not certified for interlocutory review, see 28

U.S.C. § 1292(b), and then presented to this court in a petition for discretionary review,

see Fed. R. App. P. 5(a)(1). Thus, this court has nothing to review based on the

“Permission to File Interlocutory Appeal.”

                                B. Foreclosure and Mootness

       That does not, however, end our jurisdictional inquiry. Mr. Bradshaw filed his

opening appellate brief on October 29, 2018—three days after the district court entered a

final judgment. “The Federal Rules [of Appellate Procedure] . . . do not preclude an

appellate court from treating a filing styled as a brief as a notice of appeal . . . if the filing

is timely under Rule 4 and conveys the information required by Rule 3(c).” Smith v.

Barry, 502 U.S. 244, 249 (1992). Under Rule 3(c), a notice of appeal must “specify the

party or parties taking the appeal,” “designate the judgment, order, or part thereof being

appealed,” and “name the court to which the appeal is taken.” Fed. R. App. P. 3(c).

Mr. Bradshaw’s opening brief satisfies Rule 3(c) by specifying that he is the appellant

and by designating the district court’s August 16 order for review by this court.

       In his opening brief, just as he did in his initial filing in the district court,

Mr. Bradshaw argues that “[t]he property subject to this suit falls under two separate and

distinct forms of moratorium relief.” Aplt. Opening Br. at 4. The problem with this



                                                7
argument is that the foreclosure of J & L’s mortgage rendered it moot because he does

not challenge the foreclosure order on appeal.

       “Mootness is a threshold issue because the existence of a live case or controversy

is a constitutional prerequisite to federal court jurisdiction.” Rio Grande Silvery Minnow

v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010) (internal quotation

marks omitted). “A case is moot when it is impossible for the court to grant any effectual

relief whatever to a prevailing party. The crucial question is whether granting a present

determination of the issues offered will have some effect in the real world.” Petrella v.

Brownback, 787 F.3d 1242, 1255-56 (10th Cir. 2015) (citation and internal quotation

marks omitted).

       Because J & L’s mortgage has already been foreclosed, a moratorium on

foreclosure would have no application. The property interests were settled in the district

court’s September 5, 2018 journal entry, which Mr. Bradshaw does not challenge in his

appeal. Thus, whether a moratorium on foreclosure should be imposed so Mr. Bradshaw

can pursue claims against the USDA is a moot issue. See NBC-USA Housing, Inc.,

Twenty-Six v. Donovan, 674 F.3d 869, 872-73 (D.C. Cir. 2012) (holding that intervening

foreclosure sale mooted property owner’s appeal from order denying an injunction

against a sale). This court therefore lacks jurisdiction over Mr. Bradshaw’s appeal.




                                             8
                          III. CONCLUSION

We dismiss this appeal as moot.
                                  Entered for the Court


                                  Scott M. Matheson, Jr.
                                  Circuit Judge




                                  9
