Willie Dishon Obadiah v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10817
Non-Argument Calendar
____________________
WILLIE DISHON OBADIAH,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket Nos. 1:20-cv-24229-BB,
1:19-cr-20321-BB-1
USCA11 Case: 23-10817 Document: 26-1 Date Filed: 05/02/2024 Page: 1 of 5

-- 1 of 5 --

2 Opinion of the Court 23-10817
____________________
Before L AGOA, BRASHER , and A BUDU , Circuit Judges.
PER CURIAM:
Willie Dishon Obadiah appeals the district court’s order dis-
missing for lack of jurisdiction his Federal Rule of Civil Proce-
dure 60(b) motion to reopen his 28 U.S.C. § 2255 proceedings. The
government concedes that the district court erred in concluding
that it lacked jurisdiction to rule on his motion but argues that Oba-
diah abandoned the relevant issue and that we should affirm on an
alternative basis. Because Obadiah did not abandon this issue and
because the district court had jurisdiction, we reverse the district
court’s dismissal and remand the case for the district court to con-
sider the motion’s merits in the first instance.
A certificate of appealability is not required to appeal the dis-
trict court’s dismissal of a Rule 60(b) motion for lack of subject mat-
ter jurisdiction. See Osbourne v. Sec’y, Fla. Dep’t of Corr., 968 F.3d
1261, 1264 n.3 (11th Cir. 2020) (quoting Hubbard v. Campbell, 379
F.3d 1245, 1247 (11th Cir. 2004)). “Instead, we may review such a
dismissal as a ‘final decision’ under 28 U.S.C. § 1291.” Id. Moreover,
we have an obligation to sua sponte assure ourselves of our own
jurisdiction and the jurisdiction of a lower court we are reviewing.
See Blue Cross & Blue Shield of Ala. v. Sanders, 138 F.3d 1347, 1351
(11th Cir. 1998). We review the district court’s legal conclusions
about jurisdiction de novo. See Calderon v. Baker Concrete Constr., Inc.,
771 F.3d 807, 810 (11th Cir. 2014).
USCA11 Case: 23-10817 Document: 26-1 Date Filed: 05/02/2024 Page: 2 of 5

-- 2 of 5 --

23-10817 Opinion of the Court 3
An appellant abandons an issue by failing to challenge it on
appeal. See Irwin v. Hawk, 40 F.3d 347, 347 n.1 (11th Cir. 1994). An
appellant also abandons a claim when he presents it through only
“passing references” or “in a perfunctory manner without support-
ing arguments and authority.” Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681 (11th Cir. 2014). “[S]imply stating that an issue
exists,” without more, “constitutes abandonment of that issue.” Id.
(quoting Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir.
2009)). But we read briefs filed by pro se litigants liberally. See Tim-
son v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
“[P]arties cannot waive [or forfeit] subject matter jurisdic-
tion.” Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999). And even
if this issue could be abandoned, we do not read Obadiah’s pro se
brief to abandon it because Obadiah clearly stated in his brief that
he is seeking review of the district court’s jurisdictional ruling on
his Rule 60(b) motion and argued that point in this Court with ci-
tations to case law in his response to the government’s motion for
summary affirmance. Thus, we address this jurisdictional point.
Generally, “the filing of a notice of appeal deprives the dis-
trict court of jurisdiction over all issues involved in the appeal.” Ma-
hone v. Ray, 326 F.3d 1176, 1179 (11th Cir. 2003). But this rule does
not prevent the district court “from entertaining motions on mat-
ters collateral to those at issue on appeal,” id., or acting “in further-
ance of the appeal,” id. (quoting Lairsey v. Advance Abrasives Co., 542
F.2d 928, 930 (5th Cir. 1976)). Thus, although a district court cannot
grant a Rule 60(b) motion after a notice of appeal has been filed,
USCA11 Case: 23-10817 Document: 26-1 Date Filed: 05/02/2024 Page: 3 of 5

-- 3 of 5 --

4 Opinion of the Court 23-10817
“district courts retain jurisdiction after the filing of a notice of ap-
peal to entertain and deny a Rule 60(b) motion.” Id. at 1180.
Therefore, we have explained that a district court should
consider a Rule 60(b) motion presented after a notice of appeal has
been filed and assess its merits. See id. If the district court wants to
deny the motion, it has jurisdiction to do so. See id. If the district
court wants to grant the motion, it can indicate its belief that the
arguments raised therein are meritorious after which the movant
may petition us for remand. See id. After we remand and confer full
jurisdiction on the district court, it may grant the motion. See id.
Here, as the government concedes, the district court erred
in concluding that it lacked jurisdiction. The district court had ju-
risdiction to consider the merits of Obadiah’s motion and deny it
or indicate that it wished to grant it. See id. at 1179–80. While we
may affirm on any basis supported by the record, see Turlington v.
Atlanta Gas Light Co., 135 F.3d 1428, 1433 n.9 (11th Cir. 1998), we
generally won’t consider issues the district court did not decide, see
MSP Recovery Claims, Series LLC v. Metro. Gen. Ins. Co., 40 F.4th 1295,
1306 (11th Cir. 2022) (quoting McKissick v. Busby, 936 F.2d 520, 522
(11th Cir. 1991)) (citing Nyland v. Moore, 216 F.3d 1264, 1267 (11th
Cir. 2000)). Because the district court dismissed the motion for lack
of jurisdiction and did not address its merits, we decline to consider
the merits as an alternative basis for affirmance.
As in Mahone v. Ray, 326 F.3d 1176 (11th Cir. 2003), we
REVERSE the district court’s dismissal of Obadiah’s Rule 60(b)
motion and REMAND the case to the district court with
USCA11 Case: 23-10817 Document: 26-1 Date Filed: 05/02/2024 Page: 4 of 5

-- 4 of 5 --

23-10817 Opinion of the Court 5
instructions to consider the merits of that motion in the first in-
stance. See id. at 1181.
USCA11 Case: 23-10817 Document: 26-1 Date Filed: 05/02/2024 Page: 5 of 5

-- 5 of 5 --