iiinova — where your digital self keeps evolving

Bryan Lammon @finaldecisions.org · 16/10/2025

One week after the 9th Cir. overrules its caselaw permitting immediate appeals of anti-SLAPP denials under California law, the Fed. Cir. held that those denials are immediately appealable. No mention of the 9th Cir.'s en banc decision. #AppellateSky www.cafc.uscourts.gov/opinions-ord...

Screenshot of a judicial opinion. The relevant text reads:

We do not hold here that denials of anti-SLAPP motions to strike arising under any state's law are immediately appealable as a matter of right before this Court. Our holding today applies only, at this point, to California's anti-SLAPP statute. If we are presented with a case arising under another state's law, in determining whether we have appellate jurisdiction for a given case raising an issue regarding an anti-SLAPP motion to strike, we must evaluate the relevant state's anti-SLAPP statute at issue on appeal and evaluate how that tool has been exercised in practice to understand whether that given instance comports with the collateral-order exception to the final decision rule under Federal Circuit law.

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Bryan Lammon @finaldecisions.org · 12/06/2025

Invoking the longstanding federal practice of cumulative finality—which often gives effect to premature notices of appeal—the Supreme Court held in Parrish that a premature notice of appeal related forward to the reopening of the appeal period. #AppellateSky www.supremecourt.gov/opinions/24p...

Screenshot of the first page of the Supreme Court's opinion in Parrish v. United States.

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Bryan Lammon @finaldecisions.org · 16/04/2025

I think the dissent makes the all-too-common mistake of conflating "claims" and "theories of relief." (On this point, see St. Augustine School v. Underly, 78 F.4th 349 (7th Cir. 2023), screenshotted below.) Most of the time that mistake is harmless. But sometimes it matters.

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Since then, the case has been before numerous courts. In order to place the issues now before us in context, we need to go back to basics. We begin by recalling the distinction between a legal claim and a theory supporting relief (what the common law used to call a cause of action). A claim is the set of operative facts that produce an assertable right in court and create an entitlement to a remedy. A theory of relief is the vehicle for pursuing the claim; it may be based on any type of legal source, whether a constitution, statute, precedent, or administrative law. The specific theory dictates what the plaintiff needs to prove to prevail on a claim and what relief may be available. One lawsuit may raise multiple claims, and each claim may be supported by multiple theories.

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Bryan Lammon @finaldecisions.org · 16/04/2025

Really interesting 3d Cir. split over what counts as a "claim" under Rule 54(b). The majority said the district court resolved a distinct theory of recovery but not a claim. The dissent argued that post-Twiqbal we define claims by their elements. www2.ca3.uscourts.gov/opinarch/241...

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That is because their warranty counts are an alternative theory of recovery to their fraud counts rather than separate “claims” for purposes of Rule 54(b). So the District Court’s Rule 54(b) judgment as to the fraud counts did not finally resolve a “claim.”

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Those decisions did more than articulate plausibility as the standard for evaluating the sufficiency of allegations – they also structured the inquiry around the elements needed to prove a claim....

Applying that principle here, the fraud-based counts in the amended complaint do not have the same elements as the breach-of-warranty counts in that pleading.

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Bryan Lammon @finaldecisions.org · 07/02/2025

The 5th Cir. said that a government entity could appeal the denial of sovereign immunity without moving to dismiss/for summary judgment on immunity grounds. That's not how this should work—you need a denial of immunity for appellate jurisdiction. #AppellateSky www.ca5.uscourts.gov/opinions/unp...

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The DPS appealed, arguing that the district court should have granted summary judgment on Count 6 because of its sovereign immunity. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 141 (1993) (recognizing that an order denying sovereign immunity is an appealable collateral order).

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It did not, however, raise that defense in its motion to dismiss or its motion for summary judgment. And it does not appear that the district court ever ruled on it. But the Supreme Court “has said that the Eleventh Amendment bar may be asserted for the first time on appeal.” Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 393–94 (1998) (Kennedy, J., concurring) (citing, e.g.,

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Bryan Lammon @finaldecisions.org · 04/02/2025

There's some really good explanation here of how the collateral-order doctrine's third requirement—that the order is effectively unreviewable—requires both importance and urgency.

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[T]he interest is not just substantial but also time-bound....

Interlocutory appeals are not for issues that are merely important; they are for issues that are important, now.

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Bryan Lammon @finaldecisions.org · 04/02/2025

The government is now 0-5 when it comes to taking pure Bivens appeals via the collateral-order doctrine. #AppellateSky media.ca11.uscourts.gov/opinions/pub...

Screen shot of a court opinion. The body of the opinion reads:

Patience is a virtue. At least, that’s the message Title 28, United States Code, Section 1291, conveys. Section 1291 gives us jurisdiction over district courts’ “final decisions.” In contrast, we ordinarily lack jurisdiction over district courts’ decisions that don’t end the litigation—meaning litigants must wait for a final judgment before they can appeal. But a judge-made rule called the “collateral-order doctrine” offers a limited exception to this final-decision rule. The collateral-order doctrine extends § 1291’s jurisdictional grant to interlocutory appeals of “a small class of collateral rulings that, although they do not end the litigation, are appropriately deemed ‘final.’” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009) (cleaned up). This case requires us to determine whether to expand the collateral-order doctrine to permit an im- mediate appeal when a district court recognizes a cause of action under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), outside the context of addressing a qualified-immunity claim.

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We join all four other circuits that have considered this question in declining to move the fenceposts of the collateral-order doctrine. The doctrine is a minimal exception to the general rule that only final judgments are appealable. It covers only orders that threaten important interests that become moot if an appeal is not interlocutory. But orders recognizing Bivens claims, unlike orders denying immunity from those claims, do not fall into this class. So we dismiss this interlocutory appeal for lack of jurisdiction.

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Bryan Lammon @finaldecisions.org · 18/01/2025

This 9thCir. decision has a lot of jurisdiction in it (appellate and otherwise). But the rule regarding notices of appeal and would-be intervenors is particularly interesting, generally requiring appeals before intervention is granted. #AppellateSky cdn.ca9.uscourts.gov/datastore/me...

Screenshot of the linked court opinion with highlighted text:

Prospective intervenors are subject to the same 60-day time limit as parties, even while their motions to intervene are pending. A motion to intervene alone is not construed as a motion to extend the deadline.

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AEC did not move to extend the time to appeal under Rule 4, but did file a notice appealing the Phase One order on April 16, 2020, within 60 days of the Phase One order but before its motion to intervene was denied on July 24, 2020.

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Chesapeake, for its part, did not file a motion to extend the time for filing an appeal and filed a notice of appeal on May 29, 2020, outside of the 60-day window.... As Evans made clear, notices of appeal filed after the 60-day deadline, where the parties have taken no action to extend the deadline, are untimely.

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Bryan Lammon @finaldecisions.org · 15/01/2025

From a recent 6th Cir. decision in a qualified-immunity appeal. If this is correct—and it is—then qualified-immunity denials are not separate from the merits and should not be immediately appealable via the collateral-order doctrine. #AppellateSky www.opn.ca6.uscourts.gov/opinions.pdf...

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So a court cannot grant “meaningful review” to a qualified-immunity defense without delving into the merits.

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Bryan Lammon @finaldecisions.org · 09/01/2025

Helpful explanation from the D.C. Cir.'s Judge Pillard that appellate standing—whatever it might mean—does not require appellants to re-establish Article III standing when taking an appeal. #AppellateSky media.cadc.uscourts.gov/opinions/doc...

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Bryan Lammon @finaldecisions.org · 12/12/2024

Nice reminder from the Ninth Circuit that if an order is final under the administrative-remand rule, everyone—not just the agency—can appeal. #AppellateSky cdn.ca9.uscourts.gov/datastore/op...

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We also have jurisdiction over the hospitals’ cross-appeal because our jurisdiction extends to the district court’s entire decision. We have held that if “both the plaintiff and the relevant agency” seek “review of the district court’s remand order,” the order is final for both parties’ appeals.

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Bryan Lammon @finaldecisions.org · 09/11/2024

The 6th Cir. held that a post-judgment motion did not reset the appeal clock because it invoked an abrogated local rule rather than FRCP 59 or 60. So the appeal from the judgment untimely. This seems wrong. #AppellateSky www.opn.ca6.uscourts.gov/opinions.pdf...

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[S]he moved for reconsideration under Eastern District of Michigan Local Rule 7.1(h). That Local Rule, however, was amended two years prior to read “[p]arties seeking reconsideration of final orders or judgments must file a motion under Federal Rule of Civil Procedure 59(e) or 60(b). The court will not grant reconsideration of such an order or judgment under this rule.” ... Miller never once mentioned Rules 59(e) or 60(b) in her motion for reconsideration.

...

The Local Rule’s amended text now plainly forecloses any continued construal as a Rule 59(e) motion ....

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Accordingly, Miller’s motion for reconsideration did not alter the thirty-day notice-of-appeal deadline.

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Bryan Lammon @finaldecisions.org · 25/10/2024

Interesting decision from the #9thCir on finality in §1782 discovery proceedings: the proceeding was not final because the district court—despite ordering discovery—had not definitively determined the scope of discovery. #AppellateSky cdn.ca9.uscourts.gov/datastore/op...

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The fundamental problem in this case is that although the district court rejected Apple’s arguments which, if accepted, would have precluded § 1782 discovery altogether, the scope of discovery and type of information that Apple must produce remains undetermined.

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Bryan Lammon @finaldecisions.org · 23/10/2024

Interesting (and oddly unpublished) decision from the #10thCir holding that an order denying relief under the Yearsley doctrine is not immediately appealable via the collateral-order doctrine due to a lack of separation from the merits. www.ca10.uscourts.gov/sites/ca10/f...

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We conclude that we lack appellate jurisdiction over GEO’s interlocutory appeal of the district court’s order denying GEO’s claim of protection from suit under Yearsley because appellate review of an order denying such protection cannot be undertaken completely separate from the merits; consequently, an order denying Yearsley’s applicability does not satisfy the collateral order doctrine of Cohen.

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In our view, there is overlap between the second Yearsley prong—viz., whether the government directed the contractor’s challenged actions—and the merits of a plaintiff’s claims challenging the lawfulness of those actions.

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The significant role that the actual facts—as pleaded at the 12(b)(6) phase or established by the evidence at the summary-judgment phase—play in the Yearsley analysis not only helps to explain why review of a district court’s order rejecting the applicability of the Yearsley doctrine cannot be reviewed completely separate from the merits, but also, importantly, helps to explain why review of that issue is distinguishable from review of denials of qualified immunity—which are routinely considered on an interlocutory basis.

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Bryan Lammon @finaldecisions.org · 06/09/2024

Distinguishing final decisions from final judgments in the D. Colo. I like the phrasing "starts the countdown to the end of that jurisdiction," which captures the only statutory reqs: a final decision and timely notice of appeal. #AppellateSky www.courtlistener.com/docket/14585...

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The standard for granting a Rule 59(e) motion reflects a strong interest in finality at two levels: the district court’s final decision, which marks the beginning of appellate jurisdiction, and the entry of final judgment, which starts the countdown to the end of that jurisdiction.

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Bryan Lammon @finaldecisions.org · 05/09/2024

A new assistant paw-fessor/junior paw-ssociate joined Final Decisions. That didn't leave a lot of time for this month's appellate-jurisdiction roundup, which is mostly quick notes. But there were still lots of interesting decisions. #AppellateSky finaldecisions.org/the-month-in...

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Bryan Lammon @finaldecisions.org · 18/07/2024

In case you missed it, earlier this month the Seventh Circuit gave a helpful primer on indicative rulings. #AppellateSky media.ca7.uscourts.gov/cgi-bin/Opin...

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Bryan Lammon @finaldecisions.org · 08/07/2024

The intersection of federal-officer removal and programming jokes.

Screenshot of a court opinion. Relevant text is:
Our circuit has not yet applied these Watson-derived factors to address whether a healthcare provider acts at the direction of the National Coordinator when it creates an EHR website with an embedded tracking code. Thankfully, we are not staring at blank computer screens, learning how to program “Hello, World!”[footnote marker]

[Footnote:] To ruin a joke with explanation: when students learn a new programming language, they often start by creating a computer program that displays the message “Hello, World!” See Brian W. Kernighan & Dennis Ritchie, The C Programming Language 9–10 (1st ed. 1978).

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Bryan Lammon @finaldecisions.org · 18/06/2024

The #5thCir again held that non-parties can appeal from discovery orders adverse to a claim of privilege. I again think that doing so is wrong—contempt is the appropriate avenue for these appeals. #AppellateTwitter www.ca5.uscourts.gov/opinions/pub...

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Lewis contends that “[d]isclosure orders adverse to the attorney-client privilege do not qualify for immediate appeal under the collateral order doctrine” based on the Court’s decision in Mohawk, 558 U.S. at 108–09. We disagree.

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We disagreed and held that the consequences of forced discovery were “effectively unreviewable” on appeal from the final judgment because the appellant was a non-party to the case.... We reasoned that “Mohawk does not speak to the predicament of third parties, whose claims to reasonable protection from the courts have often been met with respect.”

...

Whole Woman’s Health is instructive here. Appellants’ claims are effectively unreviewable after final judgment because, unlike parties to an action, they can sustain no relief from a new trial order.

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Bryan Lammon @finaldecisions.org · 14/06/2024

Someone tried to argue the implications of the #2dCir's Solomon case, which skipped a question of appellate jurisdiction to address the district court's subject-matter jurisdiction. I don't find the court's explanation convincing; Solomon is just wrong. ww3.ca2.uscourts.gov/decisions/is...

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Finally, Defendants argue that because courts have jurisdiction to determine their own jurisdiction, we always have appellate jurisdiction—no matter the order appealed from—to correct a district court’s erroneous exercise of subject-matter jurisdiction. Grey Br. at 2–6 (citing, among others, Solomon v. St. Joseph Hosp., 62 F.4th 54 (2d Cir. 2023)). This argument is simply wrong. The Defendants’ reliance on Solomon is misplaced.

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Bryan Lammon @finaldecisions.org · 06/06/2024

The Fifth Circuit allowed an immediate appeal from an order that did not limit discovery to qualified-immunity issues. Among the multiple problems with this rule: it makes appellate jurisdiction turn on the merits. #AppellateSky www.ca5.uscourts.gov/opinions/pub...

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Another immediately appealable order is an order “declin[ing] or refus[ing] to rule on a motion to dismiss based on a government officer’s defense of qualified immunity.”

...

This court has jurisdiction to review discovery orders under the collateral order doctrine that do not follow Zapata’s “careful procedure.”

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Our court may review an order under the collateral order doctrine that exceeds the requisite “narrowly tailored” scope.

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Bryan Lammon @finaldecisions.org · 06/06/2024

Great explanation from the Fourth Circuit of why manufactured finality does not always preclude appellate review. #AppellateSky www.ca4.uscourts.gov/opinions/231...

Screenshot of a court opinion with highlighted text: "Contriving finality, however, doesn’t always preclude our review."

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Bryan Lammon @finaldecisions.org · 04/06/2024

Typography lesson from the #7thCir: don't use Bernhard Modern. #AppellateSky media.ca7.uscourts.gov/cgi-bin/Opin...

Screenshot of the linked court opinion with highlighted text:

We hope that Bernhard Modern has made its last appearance in an appellate brief.

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Bryan Lammon @finaldecisions.org · 17/05/2024

Really interesting explanation of a Rule 23(f) denial from the #3dCir: permission to appeal should be granted when the case presents novel or unsettled class-certification issues—not novel or unsettled merits issues. #AppellateSky www2.ca3.uscourts.gov/opinarch/238...

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We thus reiterate that permission to appeal should be granted where the certification decision itself under Rule 23(a) and (b) turns on a novel or unsettled question of law, not simply where the merits of a particular case may turn on such a question.

Highlighted court opinion with highlighted text:

Here, Teva’s challenge amounts to a request to define — at the class certification stage — the reach of Section 10(b) of the Securities Exchange Act with respect to dual-listed securities. . . . Novel as it may be, any question of whether or how Section 10(b) applies to dual-listed securities does not directly relate to the requirements of Rule 23(a) or (b), and thus need not be decided at the class certification stage. Review under 23(f) is therefore not appropriate.

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Bryan Lammon @finaldecisions.org · 07/05/2024

The #10thCir held (2-1) that the Bivens question is not independently appealable via the collateral-order doctrine; it must be part of a qualified-immunity appeal. This is probably not the last we'll see of this issue. #AppellateSky www.ca10.uscourts.gov/sites/ca10/f...

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"the BOP defendants did not make a qualified immunity argument in their opening brief"

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We conclude they have not shown that Bivens extension orders are effectively unreviewable after a final judgment and therefore have not satisfied the third Cohen factor.

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Bryan Lammon @finaldecisions.org · 06/05/2024

Interesting #7thCir concurrence today on the circuit split over appealing distribution orders in a receivership. (The panel followed circuit law holding that these orders are appealable via the collateral-order doctrine.) #AppellateSky media.ca7.uscourts.gov/cgi-bin/Opin...

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Did the district court in this case resolve questions “separate from the merits”? Far from being “collateral” to the merits, a decision about who receives how much of the proceeds from a sale is the merits.

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Once the district court has specified the final distribution, BC57 could present on appeal the same arguments that we resolve today.

Screenshot of a court opinion discussing resolution of the split over distribution appeals in receiverships.

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Bryan Lammon @finaldecisions.org · 27/04/2024

Really interesting split decision on manufactured finality out of the #2dCir. The majority and dissent primarily disagree about whether the district court effectively resolved the action. #AppellateSky ww3.ca2.uscourts.gov/decisions/is...

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The district court effectively resolved the Plaintiffs’ preemption claim as a matter of law, by rejecting the legal basis of New York’s preemption defenses; all claims have been disposed of with finality and with prejudice; the parties stipulated to judgment solely to obtain immediate appellate review, without circumventing any restrictions on our appellate jurisdiction; and New York expressly preserved its right to appeal from the stipulated judgment. The parties have not circumvented the final judgment rule but have merely accelerated the process of obtaining the final judgment that became inevitable once the district court reached its legal conclusion.

Screen shot of the dissenting opinion, with highlighted text:

First, in order to “plainly reject[]” the legal basis for the appellant’s case, id. at 13, the district court’s decision must be a “final ruling” on an issue, as opposed to a tentative finding or dicta . . . . Second, the stipulated judgment appeal cannot be an attempt to circumvent the interlocutory appellate rules already in place.

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Bryan Lammon @finaldecisions.org · 24/04/2024

This is too many initialisms....

Screen shot of a court opinion in which the court used ten initialisms in a single paragraph. Also, a footnote informs the reader that "a glossary of acronyms is attached in an Appendix to this opinion."

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Bryan Lammon @finaldecisions.org · 24/04/2024

The #10thCir held that denials of anti-SLAPP motions under Colorado law are not immediately appealable via the collateral-order doctrine. The circuit split deepens. #AppellateSky www.ca10.uscourts.gov/sites/ca10/f...

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But as the Supreme Court has made clear, "if what is at issue . . . is nothing more than whether the evidence could support a finding that particular conduct occurred, the question decided is not truly ‘separable’ from the plaintiff’s claim." Given the fact-dependent nature of the anti SLAPP analysis, and relying on Johnson, we conclude that we lack appellate jurisdiction to review the district court’s order.

Moreover, appellate review here would infringe on a principal purpose of the separability requirement: preventing piecemeal appellate review. . . .

For these reasons, the collateral-order doctrine does not allow appeals from orders denying special motions to dismiss under Colorado’s anti-SLAPP statute.

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Bryan Lammon @finaldecisions.org · 15/04/2024

The #6thCir held that it lacks jurisdiction over Heck v. Humphrey arguments in qualified-immunity appeals. But it extended pendent appellate jurisdiction to a judicial-estoppel issue. #AppellateSky www.opn.ca6.uscourts.gov/opinions.pdf...

we now hold that we lack pendent appellate jurisdiction over Heck claims in qualified-immunity appeals

Unlike his Heck claim, Young’s estoppel argument could alter the “historic facts” that we would consider when deciding his qualified-immunity request. Thore v. Howe, 466 F.3d 173, 178–87 (1st Cir. 2006). If Chaney-Snell admitted in the criminal case that Young did not punch him, judicial estoppel might bar Chaney-Snell from claiming the contrary in this suit. See Lowery v. Stovall, 92 F.3d 219, 222–25 (4th Cir. 1996). If so, we would ask whether Young should receive qualified immunity under his version of the events, see id. at 221, 226, the only “genuine” version given our estoppel holding, Fed. R. Civ. P. 56(a). Because Young’s qualified-immunity claim “cannot be resolved without addressing” his estoppel argument, Chambers, 145 F.3d at 797, we may consider that argument to “meaningful[ly] review” the immunity claim, Swint, 514 U.S. at 51; see also Ashcroft v. Iqbal, 556 U.S. 662, 673–75 (2009).

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Bryan Lammon @finaldecisions.org · 11/04/2024

The #9thCir dismissed an appeal from a district court order remanding a "super snap removal." cdn.ca9.uscourts.gov/datastore/op...

Screenshot of a court opinion discussing "super snap removal."

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Bryan Lammon @finaldecisions.org · 10/04/2024

BP said that an invocation of §1442 federal-officer removal—even a frivolous one—allows plenary review of a remand order. Is this the first post-BP case in which an appellate court suggested sanctions for a frivolous reliance on §1442? media.ca7.uscourts.gov/cgi-bin/Opin...

Screenshot of a case excerpt describing the grounds for removal.

Both this court in Lu Junhong and the Supreme Court in BP v. Baltimore recognized that ajempting to remove under §1442 would be ajractive to many defendants who sought to sidestep the need for all defendants’ consent or wanted to obtain appellate review of any remand order.

The district judge should consider whether Smith & Wesson must reimburse the plaintiﬀs’ costs and fees occasioned by the unjustiﬁed removal and appeal.

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Bryan Lammon @finaldecisions.org · 08/04/2024

I don't think I've seen this before. Appeal 1: Reversed & remanded. Appeal 2: Dismissed due to unresolved counterclaims (which were also unresolved during Appeal 1). Appeal 3: We lacked jurisdiction in Appeal 1, so it's vacated. #AppellateSky www.opn.ca6.uscourts.gov/opinions.pdf...

In the first appeal, we reversed the district court’s grant of summary judgment to Defendants on Plaintiffs’ copyright-infringement claim related to the software code and remanded the case to the district court “for the taking of additional evidence.” We dismissed the second appeal for lack of appellate jurisdiction.

As mentioned above, in RJ Control II, we dismissed Plaintiffs’ appeal for lack of jurisdiction because, at the time of the appeal, Multiject and Elder’s amended counterclaim remained pending in the district court. This necessarily means that we also lacked appellate jurisdiction when we decided RJ Control I because the amended counterclaim was pending at the time of that decision as well. Therefore, we will vacate our decision in RJ Control I.

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Bryan Lammon @finaldecisions.org · 28/03/2024

Although the #9thCir reached the right outcome here, the discussion in this paragraph is outdated. Under the revised Rule 3(c), "a notice of appeal encompasses the final judgment ... if the notice designates ... an order described in Rule 4(a)(4)(A)." cdn.ca9.uscourts.gov/datastore/me...

To the extent that the County argues we lack jurisdiction to review the summary judgment order because the notice of appeal referenced only the order resolving the Rule 60(b) motion, we disagree. Fed. R. App. P. 3 specifies that a notice of appeal must “designate the judgment—or the appealable order—from which the appeal is taken.” Fed. R. App. P. 3(c)(1)(B). We have instructed that “a mistake in designating the judgment appealed from should not bar appeal as long as the intent to appeal a specific judgment can be fairly inferred and the appellee is not prejudiced or misled by the mistake.” ... Here, where the district court's denial of T.A.'s Rule 60(b) motion denied reconsideration of its summary judgment order, T.A.'s intent to appeal both the Rule 60(b) ruling and the underlying summary judgment ruling is “fairly inferred.” Id. And we conclude that there is no prejudice to the County that warrants limiting the notice of appeal to only the Rule 60(b) ruling.

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Bryan Lammon @finaldecisions.org · 28/03/2024

The 2d Cir held that the merger rule doesn't apply to sanction dismissals (a la dismissals for a failure to prosecute). To challenge interlocutory orders, the would-be appellant must first obtain reversal of the dismissal. #AppellateSky www.courtlistener.com/opinion/9488...

"the presiding magistrate judge recommended dismissing the case as a sanction under Federal Rules of Civil Procedure 16(f), 37(b), and 41(b) because Marquez had purportedly failed to comply with discovery obligations and related orders."

"Interlocutory orders do not merge, however, when a final judgment of dismissal is imposed as a sanction for litigation misconduct, such as a failure to prosecute."

"Our published opinions have applied this rule to dismissals as a sanction for failure to prosecute, but in summary orders we have applied the same rule to dismissals as a sanction for noncompliance with discovery orders. . . . We follow that approach here."

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Bryan Lammon @finaldecisions.org · 22/03/2024

The 8th Cir. split over whether it could reconsider a motions panel's denial of a motion to dismiss the appeal. The majority said changed circumstances permitted reexamination. J. Melloy argued that reconsideration required a manifest injustice/clear error. ecf.ca8.uscourts.gov/opndir/24/03...

A threshold issue we must first address is our authority to consider the jurisdictional issue. Our case law reflects a period during which a hearing panel’s authority to review an administrative panel’s denial of a motion to dismiss for lack of jurisdiction was in flux

The record in this case has been developed since the administrative panel’s summary denial.

The McCuen court held that an administrative panel decision to deny a motion to dismiss for want of jurisdiction constitutes the law of the case unless there is a showing of manifest injustice or clear error

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Bryan Lammon @finaldecisions.org · 17/11/2023

Interesting concurrence out of the 4th Cir. arguing that immigration's 30-day appeal deadline is not jurisdictional. Also of interest is the government's recent change in position to argue the same. www.ca4.uscourts.gov/opinions/221...

The 30-day deadline is “‘mandatory and jurisdictional’ and is ‘not subject to equitable tolling.’”

...

We subsequently concluded that “the holding in Santos-Zacaria is limited to § 1252(d)(1) and the Supreme Court has not overruled Stone,” therefore “we are bound to apply Stone unless and until the Supreme Court provides to the contrary.”

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In a Notice of Supplemental Authority, the Government renounced its prior position on jurisdiction and adopted the opposite argument, asserting that we do have jurisdiction over this petition

But the Supreme Court recently cast doubt on our characterization of the deadline as “jurisdictional.”

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Bryan Lammon @finaldecisions.org · 07/11/2023

I don't remember ever seeing this before: the government only partially objected to an untimely notice of appeal in a criminal case. So the 3d Cir. partially dismissed the appeal and reviewed the issues to which the government did not object. www2.ca3.uscourts.gov/opinarch/223...

And here, the Government objects—but only partially. Following the same dividing line as the appellate waiver in the plea agreement, the Government objects to Crump’s challenges to the four-point enhancements under § 2K2.1(b)(4)(B) for the obliteration of a serial number and § 2K2.1(b)(6)(B) for felony reckless endangerment of another person. But the Government does not object to the timeliness of Crump’s appeal of his two crime-of-violence challenges. Accordingly, Crump’s challenges to the four-point enhancements imposed under § 2K2.1(b)(4)(B) and § 2K2.1(b)(6)(B) will be dismissed, but his two crime-of-violence arguments, which, if both successful, would yield a Guidelines range of 37 to 46 months, remain for consideration on appeal.

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Bryan Lammon @finaldecisions.org · 27/10/2023

The 3d Cir. held that seizure orders under the Defend Trade Secrets Act are not appealable under §1292(a)(1) as orders effectively granting or denying an injunction. www2.ca3.uscourts.gov/opinarch/222...

[Describing the three-part test for effective injunctions.]

But no DTSA seizure order can satisfy the first or second prong.

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Bryan Lammon @finaldecisions.org · 20/10/2023

I've got some doubts about jurisdiction over this qualified-immunity appeal from the 8th Cir. Most (if not all) reversible summary-judgment decisions could be characterized as "misapplications" of the summary-judgment standard.

The first is whether the district court picked and applied the right summary-judgment standard. The second is whether unverified factual allegations can substitute for actual evidence in determining whether a genuine issue of material fact exists. In our view, both raise pure “legal issues” that fall within our jurisdiction, as limited as it may be.

In its orders, the district court emphasized that the officers had not come up with any evidence definitively defeating the plaintiff’s claims. . . . The problem is that, according to Celotex, the officers were free to rely on the absence of evidence supporting the plaintiff’s claims.

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Bryan Lammon @finaldecisions.org · 17/10/2023

A new cert petition asks if the Bivens question is—standing alone—immediately appealable under the collateral-order doctrine. cc: @stevevladeck.bsky.social www.supremecourt.gov/search.aspx?...

Petition cover and question presented in Boresky v. Graber, No. 23-384: "Whether a district court decision fashioning a new implied cause of action under Bivens is immediately appealable."

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Bryan Lammon @finaldecisions.org · 13/10/2023

I've probably read dozens of cases that say the failure to file a new/amended notice of appeal under FRAP 4(a)(4)(B)(ii) means the court lacks appellate jurisdiction, and I never gave that statement a second thought. But now I'm wondering: is Rule 4(a)(4)(B)(ii) jurisdictional?

To appeal the order denying his Rule 60(b) motion, Garnett had to file a new notice of appeal or an amended notice of appeal within 30 days of the denial of the order. See Fed. R. App. P. 4(a)(4)(B)(ii) . . . . Garnett didn’t file a new or amended notice of appeal challenging the order dismissing his Rule 60(b) motion within 30 days.

. . .

Because Garnett failed to timely file a new notice of appeal or an amended notice of appeal from the order denying his Rule 60(b) motion, we lack jurisdiction to consider the order on appeal.

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Bryan Lammon @finaldecisions.org · 11/10/2023

Might not be a problem when voluntarily dismissing all claims against one of multiple defendants. At least some courts have read an exception into Rule 41 that allows those dismissals.

My second thought concerns the exception for all claims against a single defendant. As the Eleventh Circuit acknowledged in Esteva, courts have recognized an exception to the “actions only” rule in multi-defendant suits:

We have recognized an exception to this rule, allowing plaintiffs to voluntarily dismiss less than the entire action so long as they dismiss a defendant in its entirety (i.e., they dismiss all of the claims brought against that defendant).

But what is the basis for this exception? The text still says “action.” And a multi-defendant action is still a single action. That’s why the resolution of all claims against one defendant is not appealable when claims against other defendants remain pending. Perhaps this is all an argument to do away with the multi-defendant exception. (That was one of the dissent’s arguments in Williams v. Taylor Seidenbach Co.). But it at least shows some inconsistency in courts’ treatment of Rule 41.

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Bryan Lammon @finaldecisions.org · 09/10/2023

Now up on SSRN: my article studying manufactured finality. I found that it comes in more forms than most realize. And Microsoft Corp v. Baker should have different implications for those different forms. papers.ssrn.com/sol3/papers....

Manufactured Finality title page and abstract

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Bryan Lammon @finaldecisions.org · 07/10/2023

Now this is interesting. The 11th Cir has recently been adamant in holding that Rule 41 allows for the voluntary dismissal only of entire actions. But this decision from yesterday says that litigants can "abandon" individual claims to create a final decision. media.ca11.uscourts.gov/opinions/pub...

the Lowerys filed a "notice of intent to abandon" the bad-faith claim alleged in count three. The notice stated that the Lowerys had "elect[ed] to forego" the penalties and fees they were seeking in count three and were "abandon[ing]" that count.

Our precedent establishes that the Lowerys resolved count three by abandoning it. A party may "abandon[]" a claim "in response to questioning by the trial judge." And a written notice abandoning a claim without objection by the opposing party accomplishes the same thing.... Because the Lowerys expressly abandoned the only claim that the partial summary judgment did not resolve, the district court correctly found that "no additional claims for adjudication remain[ed] pending."

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Bryan Lammon @finaldecisions.org · 05/10/2023

Left: SCOTUS decision from last May. Right: 5th Cir. decision from yesterday. I've seen unpublished opinions similarly using old, abrogated law when it comes to the FRAP 3(c) amendments. Anyone have other examples?

For the reasons explained below, we hold that §1252(d)(1) is not jurisdictional.

Thus, to the extent she now raises a claim of persecution based on political opinion on appeal, we lack jurisdiction to consider it because it is unexhausted.

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Bryan Lammon @finaldecisions.org · 05/10/2023

The 9th Cir held that denials of PREP Act immunity are immediately appealable via the collateral-order doctrine. I think it's the first court to do so? And I continue to wonder whether immunity defenses are really collateral orders.

A denial of PREP Act immunity also satisfies the collateral order doctrine’s requirements.

Second, a denial of PREP Act immunity resolves an important question separate from the merits. Whether PREP Act immunity applies turns on whether the claim for which immunity is asserted relates to the defendant’s use of certain medical countermeasures, a determination that “generally will have no bearing on the merits of the underlying action.”

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