UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ J & L BROWN FAMILY, LLC, Plaintiff - Appellee,

v. ARZELLA BRADSHAW; HIGH PLAINS 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. No. 18-3176 (D.C. No. 5:18-CV -04006-SAC-KGS) (D. Kan.)

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### July 11, 2019
Elisabeth A. Shumaker Clerk of Court2 ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , PHILLIPS , and CARSON , Circuit Judges.

________________ _________________ Rodney Bradshaw appeals pro se from a district court order in this mortgageforeclosure case brought by J & L Brown Family, LLC. For the r easons discussed below, we dismiss the appeal as moot.
I. BACKGROUND In 2013, J & L loaned Mr. Bradsha w and his wife $225,000, secu red by a mortgage on five tracts of la nd comprising their Kansas farm. J & L’s mortgage occupied various levels of prior ity in relation to other mortga ges and liens on the Bradshaws’ property that were possessed by the United States De partment of Agriculture’s (USDA’s) Farm Serv ice Agency, the Mahieu Elder la w firm, the Kansas Department of Revenue, the Bank of Hays, and the High Plains Fa rm 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 Unit ed States removed the case to federal district court based on its 2007 mortgage inter est in tract one.

* After examining the briefs and appellate record, this panel ha s 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 ther efore submitted without oral argument. T his order and judgment is no t binding precedent, except under the doctrines of la w of the case, res judicata, an d collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.3 Mr. Bradshaw filed a pro se docum ent asserting a crossclaim ag ainst the USDA. It sought (1) a stay of the fore closure proceedings, (2) a revi ew of the USDA’s denial of a hearing on his discrimination co mplaints 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 th at “[t]he property subject to t his suit falls under two separate and distinct forms o f moratorium relief.” R. at 25. He asked for a moratorium on foreclosure because (1) he “was a Track A claimant in the Pi gford 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 continui ng to discriminate against him by failing to give him a formal hearing on the merits,” id. at 27. 3

1 Arzella Bradshaw’s participati on in the case was limited to in forming the district court of divorce proceed ings with her husband and stip ulating “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 P roperty.” R. at 638.

2 Pigford was a class-action lawsuit on behalf of African -American farme rs who claimed racial discriminatio n 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 discriminat ion claims against the USDA. Mr. Bradshaw did not, how ever, prevail on his Track A Pigford claim. “[T]hose who seek relief under Tr ack A forever waive their righ t to seek review in any court or before any tribuna l of the decision of the arbitra tor with respect to any claim that is, or coul d have been decided.” Pigford v. Vilsack , 97-CV-1978 (PLF), 2016 WL 4921378, at *5 (D. D.C. S ept. 15, 2016) (internal quota tion marks omitted).

3 Under 7 U.S.C. § 1981a(b), there is a “moratorium . . . on all acceleration and foreclosure proceedings institu ted by the [USDA] against any fa rmer or rancher who” has “a claim of program discrim ination that is accepted by the Department as valid.” See also 7 C.F.R. § 766.358(a) (enabling regulation).4 J & L and the United States opposed Mr. Bradshaw’s requests fo r relief, arguing his moratorium theories did not apply to a private foreclosure action. Mr. Bradshaw responded, arguing that if he was granted an administrative hea ring, he “could possibly pay [J & L] the mone y [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 M r. Bradshaw’s crossclaim without prejudice because he did not assert it as part o f a pleading. It denied his othe r motions as meritless.
B. Denial of Mr. Bradshaw’s Motions an d Request for Permission to Appeal Several weeks later, Mr. Bradshaw filed motions requesting muc h of the same relief he had sought before. He also included an answer. Mr. Bradshaw relied on many of the same legal theories the d istrict court had explained wer e meritless. He sought to plead a crossclaim for breach of fi duciary duty against the Sec retary of Agriculture under 5 U.S.C. § 8477, 5 alleging the Secretary was liab le for “failing to enforce the moratorium provisions of 7 CFR 766.358 and such authority to do so is foun d under 42 USC 3535(i).” R. at 509.

4 Section 3535(i)(1) authorizes the Secretary of Housing and Urb an 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 r esponsibilities in the Federal Retirement Thrift Investment Management System.5 J & L filed a motion for partia l summary judgment, seeking to foreclose on its claim against the Mr. Bradshaws and requesting a priority deter mination of the competing interests in the five parcels. The United States opp osed Mr. Bradshaw’s reasserted motions, characteriz ing them as “un-intelligible, an d . . . in most respects copied verbatim from Mr. Bradsha w’s previous crossclaim and mot ions in this case.” R. at 606. The United States m oved to dismiss or for summary j udgment based on its previous filings. On August 8, 2018, the district court entered an order denying Mr. Bradshaw’s reasserted motions. On August 1 5, apparently in response to th at order, Mr. Bradshaw filed a document entitled, “Perm ission to File Interlocutory Ap peal.” R. at 678. He designated three issues for appe llate 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) req uire the Secretary of Agriculture “to enforce the Ac t 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 discr etion by denying a preliminary injunction against fo reclosure by a third party.” R. at 678-79 (italics added). The district court did not cer tify any part of its August 8 or der for interlocutory appeal. See 28 U.S.C. § 1292(b). 6 Instead, it docketed the “P ermission to File” as a notice of interlocutory appe al, and the case continued.

6 As discussed below, an interloc utory appeal from the denial of an injunction does not require certification. See 28 U.S.C. § 1292(a)(1).6 C. Orders Granting Partial Summary Judgm ent, Dismissal, and Foreclosure On August 16, 2018, the district court entered an order granti ng J & L’s motion for partial summary judgment and the United States’ motion to d ismiss Mr. Bradshaw’s cross-claim. On September 5, the court executed and filed a jo urnal entry drafted by J & L that designated the prio rities of Mr. Bradshaw’s creditor s, foreclosed J & L’s mortgage, and authorized J & L t o sell the five tracts of Mr. B radshaw’s farm. On October 26, the district court entered a final judgment. Mr. B radshaw 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 prerequis ite to appellate jurisdiction. See Bowles v. Russell , 551 U.S. 205, 214 (2007). Ordinarily, a notice of appeal must be filed in the distr ict court “within 60 days afte r entry of the judgment or order appealed from if one of the parties is . . . the United S tates.” Fed. R. App. P. 4(a)(1)(B)(i). The only document resembling a notice of appeal is Mr. Bradsha w’s August 15 “Permission to File Interlocutor y Appeal.” It d esignated only one issue that was eligible for automatic interlocutory appea l—whether the district court a bused its discretion in denying injunctive relief. See 28 U.S.C. § 1292(a)(1). But Mr. Bradshaw waived that

7 Because Mr. Bradshaw appears pr o se, we liberally construe his filings. Ledbetter v. City of Topeka , 318 F.3d 1183, 1187 (1 0th Cir. 2003).7 issue by not arguing it in h is opening appellate brief. See Silverton Snowmobile Club v.
U.S. Forest Serv. , 433 F.3d 772, 783 (10th Cir. 20 06). The other two issues des ignated in the “Permission to File Interlocutory Appeal,” which concern Mr . Bradshaw’s foreclosure-moratorium theorie s, were not certified for interlo cutory review, see 28 U.S.C. § 1292(b), and then pres ented to this court in a petitio n for discretionary review,

see Fed. R. App. P. 5(a)(1 ). Thus, this court has nothing to revi ew based on the “Permission to File Interlocutory Appeal.”
B. Foreclosure and Mootness That does not, however, end ou r jurisdictional inquiry. Mr. B radshaw filed his opening appellate brief on Octobe r 29, 2018—three days after th e 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 n otice of appeal . . . if the filing is timely under Rule 4 and convey s the information required by Rule 3(c).” Smith v. Barry , 502 U.S. 244, 249 (1992). Under R ule 3(c), a notice of appea l must “specify the party or parties taking the appe al,” “designate the judgment, o rder, 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 satis fies Rule 3(c) by specifying that he is the appellant and by designating the district court’s August 16 order for rev iew by this court. In his opening brief, just as h e did in his initial filing in the district court, Mr. Bradshaw argues that “[t]he property subject to this suit f alls under two separate and distinct forms of moratorium re lief.” Aplt. Opening Br. at 4. The problem with this8 argument is that the foreclosure of J & L’s mortgage rendered i t 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, 11 09 (10th Cir. 2010) (i nternal quotation marks omitted). “A case is moot w hen it is impossible for the court to grant any effectual relief whatever to a prevailing pa rty. The crucial question is whether granting a present determination of the issues offe red will have some effect in th e real world.” Petrella v.
Brownback , 787 F.3d 1242, 1255- 56 (10th Cir. 2015) (c itation and interna l quotation marks omitted). Because J & L’s mortgage has al ready been foreclosed, a morato rium on foreclosure would have no appli cation. The property interests were settled in the district court’s September 5, 2018 journal entry, w hich Mr. Bradshaw doe s not challenge in his appeal. Thus, whether a morator ium on foreclosure should be im posed so Mr. Bradshaw can pursue claims against t he USDA is a moot issue. See NBC-USA Housing, Inc., Twenty-Six v. Donovan , 674 F.3d 869, 872-7 3 (D.C. Cir. 2012) (hol ding that interveni ng foreclosure sale mooted propert y owner’s appeal from order deny ing an injunction against a sale). This court ther efore lacks jurisdiction over Mr. Bradshaw’s appeal.9 III. CONCLUSION We dismiss this appeal as moot. Entered for the Court

Scott M. Matheson, Jr. Circuit Judge