The Month in Federal Appellate Jurisdiction: May 2025

May saw several decisions on effective injunction denials. One of those decisions raised an interesting question about the Supreme Court’s test for when a district court order effective denies a preliminary injunction.

In other developments, the Fifth Circuit sat en banc to jettison its rule barring review of waiver-based remands. Other decisions addressed the finality implications of subsumed theories of relief and resetting the appeal clock in post-judgment proceedings. There was also an interesting decision that questioned both the collateral-order doctrine and pendent appellate jurisdiction. Plus some improper qualified-immunity appeals, the voluntary dismissal of doomed claims, and more.

• Effective Injunction Denials
• Appealing Waiver-Based Remands, Part II
• Questioning the Collateral-Order Doctrine & Pendent Appellate Jurisdiction
• Appeals & Subsumed Theories of Relief
• Voluntary, Without-Prejudice Dismissals of Doomed Claims
• Resetting the Appeal Clock in Post-Judgment Proceedings
• The Month’s Improper Qualified-Immunity Appeals
• Quick Notes

Effective Injunction Denials

Injunction appeals have been in the spotlight of late. We’ve seen a few recent decisions on appeals from temporary restraining orders. And May produced a number of cases involving effective denials of preliminary injunctions.

I wrote about three of those cases. First was the Fifth Circuit’s decision in Amazon.com Services LLC v. NLRB, in which the court split over whether a party could appeal from the district court’s delay in deciding a preliminary-injunction motion. You can read about that decision at my post Claimed Urgency & Effective Denials of Injunctions.

I later wrote about the Supreme Court’s test for effective injunction denials, which comes from Carson v. American Brands, Inc.. I suggested that the Carson test’s second and third elements shouldn’t apply when a party expressly sought an injunction—those elements are helpful only when a party sought something else that has some connection to or impact on potential injunctive relief. You can read about that—as well as the Supreme Court’s effective-denial decision in A.A.R.P. v. Trump and the Sixth Circuit’s decision in Doe v. Lee—at my post Carson’s Test for Effective Injunction Denials.

Amazon.com Services LLC v. NLRB, 2025 WL 1303629 (5th Cir. May 6, 2025), available at the Fifth Circuit and Westlaw

A.A.R.P. v. Trump, 2025 WL 1417281 (May 16, 2025), available at the Supreme Court and Westlaw

Doe v. Lee, 2025 WL 1367828 (6th Cir. May 12, 2025), available at the Sixth Circuit and Westlaw

Appealing Waiver-Based Remands, Part II

In Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, the en banc Fifth Circuit held that 28 U.S.C. § 1447(d) does not bar review of waiver-based remands. In so holding, the court overruled its decision in In re Weaver.

Read more: Appealing Waiver-Based Remands, Part II

Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, 2025 WL 1420220 (5th Cir. May 16, 2025), available at the Fifth Circuit and Westlaw

Questioning the Collateral-Order Doctrine & Pendent Appellate Jurisdiction

In Heidi Group, Inc.v. Texas Health and Human Services Commission, the Fifth Circuit reviewed the denial of federal and state immunities but declined to exercise pendent appellate jurisdiction over other issues. In the course of doing so, one judge questioned the collateral-order doctrine’s application to state immunities, and the entire court questioned the doctrine of pendent appellate jurisdiction.

Read more: Questioning the Collateral-Order Doctrine & Pendent Appellate Jurisdiction

Heidi Group, Inc. v. Texas Health and Human Services Commission, 2025 WL 1509395 (5th Cir. May 28, 2025), available at the Fifth Circuit and Westlaw

Appeals & Subsumed Theories of Relief

In Zivkovic v. Laura Christy LLC, the Second Circuit vacated a partial judgment entered under Federal Rule of Civil Procedure 54(b) because the district court had not resolved a theory of relief that, as the parties saw things, was subsumed in the theories the court did decide.

Simplifying as much as possible, Zivkovic involved a class of former restaurant employees that brought wage-and-hour claims against a restaurant. The plaintiffs sought relief under both New York law and the Fair Labor Standards Act. But before trial, the parties agreed that they would try only the state law issues to the jury. New York’s laws were more favorable to the employees than the FLSA. The trial would thus be simpler if the parties presented only the state theories of relief.

A jury returned a verdict for the plaintiffs, and the district court entered judgment in their favor. That judgment did not mention the FLSA theory of relief.

The class representative had also brought individual claims for national-origin discrimination. And although the jury found for him, too, the district court ordered a new trial on those claims.

Wanting to appeal the judgment on the wage-and-hour claims, the defendants sought a partial judgment under Rule 54(b). Concluding that the wage-and-hour claims were sufficiently separate from the class representative’s still-pending discrimination claims, the district court granted the request. When questions about the FLSA issues later arose, the district court entered an order “conditionally dismiss[ing] the[] FLSA claims as moot in light of the judgment in their favor on the [state law] claims without prejudice to reinstatement if but only if the judgment in their favor on the [state law] claims is reversed or otherwise vacated on appeal.”

The Second Circuit held that the Rule 54(b) partial judgment was improper because the FLSA issues were still pending.

The Second Circuit explained that the FLSA and state law theories of recovery were intertwined—they sought relief for the same injuries. And the district court had not resolved the FLSA theories. The initial judgment didn’t mention them. And they weren’t mooted by entry of that judgment. They were still alive in the district court.

The conditional dismissal did not help matters. The Second Circuit saw it as an attempted end-run around the finality requirement, as the plaintiffs were only putting the FLSA claims on ice in case the court of appeals reversed. To appeal, the plaintiffs would need to disclaim any right to reassert their FLSA claims.

The Second Circuit added that with the FLSA claims unresolved, a Rule 54(b) partial judgment was not only improper but also an abuse of discretion. Given the overlap in the underlying facts, it would be more efficient to review the state and federal theories together, not separately.

Zivkovic v. Laura Christy LLC, 2025 WL 1409011 (2d Cir. May 15, 2025), available at CourtListener and Westlaw

Voluntary, Without-Prejudice Dismissals of Doomed Claims

In Mullane v. Moreno, the Eleventh Circuit held that the voluntary, without-prejudice dismissal of all claims against the lone remaining defendant resulted in a final decision because those claims were doomed.

Mullane involved common-law tort claims against several defendant. The district court dismissed all the claims against some of the defendants. And the United States was substituted for the remaining defendants. The plaintiff then voluntarily dismissed the remaining claims without prejudice.

The Eleventh Circuit noted that the voluntary, without-prejudice dismissal of some claims can preclude finality. But in Mullane, the dismissal merely recognized that the action was over. “[The plaintiff] was precluded from pursuing his state-law tort claims against the United States by the ‘intentional tort exception’ to the FTCA’s waiver of sovereign immunity.” So “there [was] no indication that [the plaintiff] attempted to manufacture jurisdiction by voluntarily dismissing his claims against the United States.”

Mullane v. Moreno, 2025 WL 1386666 (11th Cir. May 14, 2025), available at the Eleventh Circuit and Westlaw

Resetting the Appeal Clock in Post-Judgment Proceedings

In Warner v. City of Marathon, the Eleventh Circuit held that a motion to reconsider reset the time to appeal the refusal to reopen a case.

Simplifying a bit, the district court in Warner dismissed the plaintiffs’ action in 2018. About five years later, the plaintiffs sought to reopen the federal proceeding by filing a motion under Federal Rule of Civil Procedure 60(b). The district court denied that motion, and the plaintiffs sought reconsideration four weeks later. About a month and a half after that, the district court denied that reconsideration. The plaintiffs then appealed.

The defendant argued that the appeal was untimely. They contended that although a timely post-judgment motion resets the appeal clock, a second post-judgment motion normally doesn’t. Because the plaintiffs had sought to reopen the case with a post-judgment motion (i.e., the Rule 60(b) motion), the defendants argued that the subsequent request for reconsideration could not reset the appeal time.

The Eleventh Circuit disagreed. The motion to reopen was filed as part of post-judgment proceedings, not as a way to challenge the original judgment. So the denial of the motion to reopen was a final decision entered in post-judgment proceedings. The subsequent reconsideration motion rendered that decision non-final. After all, “[a] timely motion for reconsideration filed within a window to appeal does not toll anything; it renders an otherwise final decision of a district court not final for purposes of appeal.” (Quotation marks omitted.) Only once the district court denied reconsideration did the appeal clock begin to run. So there was no need to turn to Federal Rule of Appellate Procedure 4(a)(4) and the rules regarding subsequent post-judgment motions.

Warner v. City of Marathon, 2025 WL 1502666 (11th Cir. May 27, 2025), available at the Eleventh Circuit and Westlaw

The Month’s Improper Qualified-Immunity Appeals

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

• Durr v. Madison County, 2025 WL 1276110 (2d Cir. May 2, 2025), available at CourtListener and Westlaw
• McKee v. Bullock, 2025 WL 1342022 (11th Cir. May 8, 2025), available at the Eleventh Circuit and Westlaw
• Reeves v. Medding, 2025 WL 1392159 (4th Cir. May 14, 2025), available at the Fourth Circuit and Westlaw
• Hooks v. City of Warren, 2025 WL 1542294 (6th Cir. May 30, 2025), available at the Sixth Circuit and Westlaw

Quick Notes

In BNP Paribas v. New Mexico State Investment Council, the Second Circuit dismissed an appeal from an order that enforced a settlement agreement. The order was not final under 28 U.S.C. § 1291 because it “merely interpret[ed] an injunction and settlement agreement to bar certain claims and then direct[ed] the dismissal of those claims.” Without a finding of contempt and sanctions, such an order is not normally appealable. Nor was the order appealable under 28 U.S.C. § 1292(a)(1), as it did not grant any new injunctive relief or modify an existing injunction.

BNP Paribas v. New Mexico State Investment Council, 2025 WL 1443654 (2d Cir. May 20, 2025), available at CourtListener and Westlaw

And in League of United Latin American Citizens v. Abbott, the Fifth Circuit explained that its rule permitting governmental-privilege appeals does not apply when a district court denies a discovery request. Plaintiffs must wait until the end of district court proceedings to appeal those decisions.

League of United Latin American Citizens v. Abbott, 2025 WL 1467462 (5th Cir. May 22, 2025), available at the Fifth Circuit and Westlaw