The Month in Federal Appellate Jurisdiction: March 2025

Last month featured a Sixth Circuit debate over jurisdiction to review Brady issues in appeals from the denial of qualified immunity. There was also an especially odd Second Circuit decision in which the court exercised pendent appellate jurisdiction over a normally non-appealable issue even though the court lacked jurisdiction over any other issue. And there was a variety of decisions on the appealability of certain defenses, injunctions, arbitration denials, and more.

Let’s start, however, with the appealability of temporary restraining orders—an issue that has garnered significant attention as of late.

• Appealing TROs
• Some Sixth Circuit Discussions of Brady Issues in Qualified-Immunity Appeals
• Pendent Appellate Jurisdiction Without a Valid Appeal?
• No Immediate Appeals of a Public-Disclosure-Bar Defense
• Injunction Appeals & Effective Denials
• § 1447(d) & Arbitration Denials
• Another Decertified Certified Appeal
• Merging Post-Judgment Motions Into Other Post-Judgment Motions
• The Month’s Improper Qualified-Immunity Appeals
• Quick Notes

Appealing TROs

At least two decisions from last month touched on whether a temporary restraining order was effectively a preliminary injunction and thus appealable under 28 U.S.C. § 1292(a)(1).

In California v. U.S. Department of Education, the First Circuit used hypothetical appellate jurisdiction to deny a stay pending appeal. The First Circuit thought it could bypass TRO-or-injunction question because “the party asserting [statutory jurisdiction] w[ould] not obtain its requested relief even were there jurisdiction.”

And in J.G.G. v. Trump, the D.C. Circuit split over whether a TRO was appealable. Judges Henderson and Walker thought that it was, as the TRO risked “irretrievable” harm to the government. Judge Millett disagreed, contending that the government had shown no actual harm from the TRO.

Also, dissenting in Department of State v. AIDS Vaccine Advocacy Coalition, Justice Alito said that “[c]larification of the standards for distinguishing between a [temporary restraining order] and a preliminary injunction is a matter that deserves th[e] Court’s attention at the present time.” So we might see a case in the near future on the standards for when a TRO is effectively a preliminary injunction and thus appealable.

California v. U.S. Department of Education, 2025 WL 878431 (1st Cir. Mar. 21, 2025), available at the First Circuit and Westlaw

J.G.G. v. Trump, 2025 WL 914682 (D.C. Cir. Mar. 26, 2025), available at CourtListener and Westlaw

Department of State v. AIDS Vaccine Advocacy Coalition, 2025 WL 698083 (Mar. 5, 2025), available at the Supreme Court and Westlaw

Some Sixth Circuit Discussions of Brady Issues in Qualified-Immunity Appeals

In two appeals—Clark v. Louisville-Jefferson County Metro Government and Salter v. City of Detroit, the Sixth Circuit spoke at length about its jurisdiction to review certain Brady issues as part of qualified-immunity appeals. The cases produced a total of six opinions, several of which dove into this jurisdictional issue.

Read more: Some Sixth Circuit Discussions of Brady* Issues in Qualified-Immunity Appeals*.

Clark v. Louisville-Jefferson County Metro Government, 2025 WL 732838 (6th Cir. Mar. 7, 2025), available at the Sixth Circuit and Westlaw

Salter v. City of Detroit, 2025 WL 880238 (6th Cir. Mar. 21, 2025), available at the Sixth Circuit and Westlaw

Pendent Appellate Jurisdiction Without a Valid Appeal?

In Rossy v. City of Buffalo, the Second Circuit appeared to both dismiss a qualified-immunity appeal for a lack of jurisdiction and exercise pendent appellate jurisdiction over a plaintiff’s cross-appeal. This is odd. Pendent appellate jurisdiction allows normally non-appealable issues to tag along with appealable ones. But if the denial of qualified immunity was not appealable, there was nothing for the plaintiff’s appeal to piggyback on.

Read more: Pendent Appellate Jurisdiction Without a Valid Appeal?

Rossy v. City of Buffalo, 2025 WL 816301 (2d Cir. Mar. 14, 2025), available at CourtListener and Westlaw

No Immediate Appeals of a Public-Disclosure-Bar Defense

In United States ex rel. Fiorisce, LLC v. Colorado Technical University, Inc., the Tenth Circuit held that a defendant could not immediately appeal an order refusing to dismiss an action under the False Claims Act’s public-disclosure bar. The public-disclosure bar does not create a right to avoid trial that would warrant an immediate appeal under the collateral-order doctrine. Nor did the bar implicate a substantial public interest that might satisfy the collateral-order doctrine’s third requirement—that the order be effectively unreviewable in an appeal from a final judgment.

United States ex rel. Fiorisce, LLC v. Colorado Technical University, Inc., 2025 WL 679421 (10th Cir. Mar. 4, 2025), available at the Tenth Circuit and Westlaw

Injunction Appeals & Effective Denials

In Space Exploration Technologies, Corp. v. National Labor Relations Board, the Fifth Circuit held that a district court had not effectively denied an injunction by not deciding an injunction motion on the plaintiff’s timeline.

Simplifying only a little bit, the case involved a challenge to the constitutionality of the National Labor Relations Board. Several of the plaintiff’s former employees were pursuing claims against the plaintiff before the NLRB. After the NLRB consolidated those claims into a single proceeding, the plaintiff filed suit in federal court, arguing that the NLRB’s structure violates the constitution.

The two cases proceeded in parallel. And the timeline is particularly important. In January 2024, the plaintiff asked the district court to enjoin the NLRB proceedings. The district court did not decide that motion, as the case got bogged down in a mire of transfer issues. Some time later, the NLRB scheduled a hearing to resolve some discovery disputes. The plaintiff learned of the hearing on April 24, which was scheduled for a week later on May 2. Two days after learning of the hearing, the plaintiff requested a decision on its injunction request by May 2. On April 30, with the injunction motion still pending, the plaintiff appealed to the Fifth Circuit. As grounds for appellate jurisdiction, the plaintiff argued that the district court had effectively denied the request for a preliminary injunction.

The Fifth Circuit disagreed. There was of course no actual denial of a preliminary injunction. Nor was there an effective denial.

For one thing, the plaintiff had not shown the “serious, perhaps irreparable consequences” that are necessary for an effective injunction denial. All the plaintiff was required to do by May 2 was participate in a hearing; the NLRB had said that the plaintiff did not have to produce any evidence before or during that hearing. Indeed, there was no indication that the plaintiff would suffer any consequences from participating in the hearing. It was not enough that—were the plaintiff correct in its lawsuit—that the plaintiff would have to participate in an unconstitutional proceeding.

There was also not an effective injunction denial because the district court had not ruled by the plaintiff’s proffered deadline. “Appeal cannot be achieved simply by asserting that the trial court has failed to act as promptly as wished by a party seeking an injunction.” And much of the delay in deciding the injunction request stemmed from the need to resolve transfer issues.

Space Exploration Technologies, Corp. v. National Labor Relations Board, 2025 WL 703687 (5th Cir. Mar. 5, 2025), available at the Fifth Circuit and Westlaw

§ 1447(d) & Arbitration Denials

In Wu v. Liu, the Eleventh Circuit held that it lacked jurisdiction to review an order that both refused to compel arbitration and remanded an action to state court.

Simplifying only a bit, Wu started as a state court action involving only state law claims. The defendant removed the action to federal court, arguing that removal was proper under 9 U.S.C. § 205. Section 205 allows the removal of suits relating to “an arbitration agreement or award falling under the Convention [on the Recognition and Enforcement of Foreign Arbitral Awards].” The defendant also sought to compel arbitration. The plaintiff responded with a motion to remand.

In a single order, the district court refused to order arbitration and remanded the action to state court. The district court determined that the defendant was not a signatory to the arbitration clause he sought to invoke. And with no arbitration agreement, § 205 did not permit removal.

The defendant then appealed, arguing that appellate jurisdiction existed under 9 U.S.C. § 16(a)(C). That provision permits immediate appeals of orders refusing to compel arbitration in § 205 cases.

But the Eleventh Circuit held that 28 U.S.C. § 1447(d) barred review. Section 1447 generally bars review of orders remanding an action to state court. The court explained that “[w]hen Congress intends to make section 1447(d) inapplicable to new grounds for removal, it says so expressly.” Section 205 had nothing of the sort.

The court went on to hold that other judge-made exceptions to § 1447(d) did not apply. The district court’s conclusion that the defendant could not enforce the arbitration provision was not binding on the state court, so review of the remand order was not necessary to provide review of substantive issues in the action. And the denial of the motion to compel arbitration was not a final decision on that issue, as (again) the state court would not be bound by the district court’s decision.

Wu v. Liu, 2025 WL 854669 (11th Cir. Mar. 19, 2025), available at the Eleventh Circuit and Westlaw

Another Decertified Certified Appeal

In Doe LS 340 v. Uber Technologies, Inc., the Ninth Circuit revoked its decision to certify an order for an immediate appeal under 28 U.S.C. § 1292(b). The court of appeals concluded that “interlocutory review w[ould] not materially advance the litigation because the district court was largely without authority to grant the relief [the defendant] sought.” And there was no controlling question subject to reasonable dispute, as the would-be appellant did not seriously dispute the district court’s conclusion (which concerned the enforceability of a collective-action waiver under California law).

Doe LS 340 v. Uber Technologies, Inc., 2025 WL 752485 (9th Cir. Mar. 10, 2025), available at the Ninth Circuit and Westlaw

Merging Post-Judgment Motions Into Other Post-Judgment Motions

In Osborne v. Belton, the Fifth Circuit explained that a notice of appeal designating a decision on a post-judgment motion encompassed an earlier decision on a different post-judgment motion. The district court had granted summary judgment, then denied a motion under Federal Rule of Civil Procedure 60(b), and then later denied a motion under Federal Rule of Civil Procedure 59(e). The Fifth Circuit said that “[w]hile the general merger rule looks backward from the final judgment, encompassing all interlocutory orders, Federal Rule of Appellate Procedure 3(c)(5) looks forward from the final judgment, encompassing all post-judgment orders up to and including the order designated in the notice of appeal.”

Osborne v. Belton, 2025 WL 750348 (5th Cir. Mar. 10, 2025), available at the Fifth Circuit and Westlaw

The Month’s Improper Qualified-Immunity Appeals

Here are last month’s improper, fact-based qualified-immunity appeals:

• Fugenschuh v. Minnehan, 2025 WL 717382 (8th Cir. Mar. 6, 2025), available at the Eighth Circuit and Westlaw
• Freeman v. Sansom, 2025 WL 763427 (2d Cir. Mar. 11, 2025), available at CourtListener and Westlaw
• Clark v. Abdallah, 2025 WL 798971 (6th Cir. Mar. 13, 2025), available at the Sixth Circuit and Westlaw
• Hulon v. City of Lansing, 2025 WL 817492 (6th Cir. Mar. 14, 2025), available at the Sixth Circuit and Westlaw
• Denby v. Engstrom, 2025 WL 841608 (9th Cir. Mar. 18, 2025), available at the Ninth Circuit and Westlaw
• Mertins v. City of Mount Clemens, 2025 WL 847912 (6th Cir. Mar. 18, 2025), available at the Sixth Circuit and Westlaw

There was also the Fifth Circuit’s decision in McClain v. Delgado, in which the Fifth Circuit divided over whether fact issues precluded jurisdiction over a qualified-immunity appeal (Judge Barksdale argued in dissent that they did). In full disclosure, I’m now working on McClain, so that’s all I will say about the case for now.

McClain v. Delgado, 2025 WL 868168 (5th Cir. Mar. 20, 2025), available at the Fifth Circuit and Westlaw

Quick Notes

In Lewis v. Paymaster Payroll Systems, Inc., the Second Circuit dismissed an appeal because the district court had dismissed a complaint with leave to amend. A dismissal with leave to amend is not a final decision. Nor did the plaintiff’s decision to appeal rather than amend render the dismissal final. Granted, several courts hold that an appeal effectively waives the right to amend, thereby creating a final, appealable decision. But the plaintiff’s actions in Lewis were ambiguous—the plaintiff said he intended to file an amended complaint—so the Second Circuit could not treat the appeal as an implicit disclaimer of the right to amend.

Lewis v. Paymaster Payroll Systems, Inc., 2025 WL 706479 (2d Cir. Mar. 5, 2025), available at CourtListener and Westlaw

In McCray v. Donathan, the Seventh Circuit held that an order partially granting permission to proceed in forma pauperis is immediately appealable. The district court denied only the plaintiff’s request to waive the filing fee. So just like in a case in which in forma pauperis status was denied in its entirely, the case would not proceed until the plaintiff paid the ordered fee.

McCray v. Donathan, 2025 WL 783508 (7th Cir. Mar. 12, 2025), available at the Seventh Circuit and Westlaw

In Woodward v. Credit Service International Corp., the Eighth Circuit said that a district court order denying a motion without prejudice was “not an interlocutory order” and thus did not merge into the final judgment. This seems odd to me. The only reason given is that the order simply directed the party to file a motion in conformance with local rules. But concerned that its decision might be a “drive-by jurisdictional ruling,” the Eighth Circuit then went on to address the merits of the plaintiff’s challenge to that order.

Woodward v. Credit Service International Corp., 2025 WL 891514 (8th Cir. Mar. 24, 2025), available at the Eighth Circuit and Westlaw

And in Gelin v. Baltimore County, the Fourth Circuit addressed the immediate appealability of some defenses under Maryland law. The court reaffirmed an earlier decision that allows Maryland municipalities to immediately appeal from the denial of Maryland governmental immunity. But Maryland’s common-law public official immunity was not immediately appealable. The Fourth Circuit concluded that this latter immunity protected only against liability, not litigation.

Gelin v. Baltimore County, 2025 WL 911197 (4th Cir. Mar. 26, 2025), available at the Fourth Circuit and Westlaw