The Month in Federal Appellate Jurisdiction: July 2025

An extended vacation and some pressing matters in cases prevented me from posting much last month. But that doesn’t mean July was uneventful. Courts addressed the propriety appeals from the rejection of various defenses, including state immunities and the litigation privilege. The Eleventh Circuit held that a parties can use Rule 41 to dismiss a single plaintiff in a multi-plaintiff action. And we had another discussion of appellate jurisdiction when parties fail to object to a magistrate judge’s decision. Plus some improper qualified-immunity appeals and more.

• The Collateral-Order Doctrine and State Immunities
• Some Questions About Litigation-Privilege Appeals in the Tenth Circuit
• Dismissing a Single Plaintiff via Rule 41(a)
• Fugitive-Disentitlement Appeals & the Case-Specific Collateral-Order Doctrine
• Jurisdiction, Preservation & Un-objected Magistrate Judge Decisions
• The Month’s Improper Qualified-Immunity Appeals
• Quick Notes

The Collateral-Order Doctrine and State Immunities

In Frias v. Hernandez, the Fifth Circuit reversed a denial of immunity under state law. The court heard an immediate appeal from that denial via the collateral-order doctrine. And Judge Oldham wrote separately to again question the use of the collateral-order doctrine for state immunities.

Judge Oldham raised this concern last month in a footnote to a majority opinion that the other members of the panel didn’t join. Now he has written about the issue at some length in a separate concurrence.

Judge Oldham saw three reasons why the collateral-order doctrine should not extend to state immunities:

1. States cannot change federal jurisdiction. But permitting appeals over state immunities does essentially that.
2. The Supreme Court has never extended the collateral-order doctrine to state law immunities.
3. To be appealable via the collateral-order doctrine, an imperiled right must rest on an “explicit federal statutory or constitutional guarantee.” (Quotation marks omitted.)

Judge Oldham also questioned the proposition that “[d]enials of immunities from suit are collateral orders.” He noted that only some so-called immunities qualify for immediate appeals, namely immunities that come from a statutory or constitutional provision.

Finally, Judge Oldham questioned federal courts’ deference to states’ characterization of their own immunities as protections from litigation. He thought that federal courts needed to decide for themselves how to characterize the right.

As I said last month, I like that someone is questioning the collateral-order doctrine’s application to so-called immunity defenses. But, again, the problems run deeper than Judge Oldham acknowledges. Immunities are rarely collateral. They are often defenses with close ties to a suit’s merits. And immediate appeal of immunities often requires halting all district court proceedings. It is thus hard to see how immunities are sufficiently separate from the merits.

Frias v. Hernandez, 2025 WL 1831589 (5th Cir. July 3, 2025), available at the Fifth Circuit and Westlaw

Some Questions About Litigation-Privilege Appeals in the Tenth Circuit

In Vivos Therapeutics, Inc. v. Ortho-Tain, Inc., the Tenth Circuit dismissed an appeal from the denial of absolute-litigation privilege. The court was bound by the law-of-the-case doctrine to do so, as a prior panel had dismissed a similar appeal in the same action. But the Tenth Circuit expressed some doubts about the relevant law.

Simplifying only a bit, Vivos Therapeutics involved a variety of trademark and defamation claims. The defendant moved to dismiss some of the claims, arguing that “the communications underlying those claims were preliminary to and related to [separate] litigation and therefore protected by the Colorado litigation privilege.” The district court rejected this defense, and the defendant appealed.

The Tenth Circuit largely dismissed this first appeal for a lack of jurisdiction. The court held that nearly all of the denial of the litigation privilege “turned in part on disputed factual questions” and was thus outside the court’s limited jurisdiction in an appeal under the collateral-order doctrine. But one issue on appeal—whether one of the defendants could invoke the privilege—was purely legal. The Tenth Circuit reversed the dismissal on this legal ground and remanded for further proceedings.

In those further proceedings, the defendant again sought—and was denied—protection under the litigation privilege. The defendant appealed again.

The Tenth Circuit again dismissed the appeal. The previous panel had said that denials of the litigation privilege were immediately appealable via the collateral-order doctrine. But the panel had also said that those denials are not appealable—even at the motion-to-dismiss stage—when “a district court cannot rule on the merits of an immunity defense at the dismissal stage because the allegations in the pleadings are insufficient as to some factual matter.” The district court’s second denial was “virtually identical” to the one the Tenth Circuit had previously refused to review. So under the law-of-the-case doctrine, the Tenth Circuit again lacked appellate jurisdiction.

In two lengthy footnotes, the Tenth Circuit questioned much of the law it applied in Vivos Therapeutics. The court first questioned whether denials of the litigation privilege are immediately appealable and suggested that the Supreme Court’s decision in Will v. Hallock abrogated the Tenth Circuit law on this point. The court then questioned whether factual disputes could preclude appeals from denials of immunity defenses at the motion-to-dismiss stage, as Ashcroft v. Iqbal seemed to abrogate the Tenth Circuit’s law on this issue. Vivos Therapeutics did not require resolving either of these issues. But both of them seem ripe for reconsideration in the Tenth Circuit.

Vivos Therapeutics, Inc. v. Ortho-Tain, Inc., 2025 WL 1873125 (10th Cir. July 8, 2025), available at the Tenth Circuit and Westlaw

Dismissing a Single Plaintiff via Rule 41(a)

In Weinstein v. 440 Corp., the Eleventh Circuit held that a plaintiff in a multi-plaintiff action can voluntarily dismiss all of their claims via Federal Rule of Civil Procedure 41(a). The holding is relevant to manufactured finality, which often involves litigants voluntarily dismissing some or all of their claims.

The Eleventh Circuit has been at the forefront of courts’ holding that Rule 41 normally does not permit the voluntary dismissal of discrete claims. The relevant portions of the rule speak only of dismissing actions. So the Eleventh Circuit has held that a claimant can rely on Rule 41(a) only if that claimant abandons all of its claims. Other purported uses of Rule 41(a)—targeting some but not all the claims in an action—are invalid.

But the Eleventh Circuit has recognized an exception to this general rule. It has held that plaintiffs can use Rule 41(a) voluntarily dismiss all claims against a single defendant in a multi-defendant action. The Eleventh Circuit says “that this exception (if it can be called that) is compatible with Rule 41(a)’s text because in a multi-defendant lawsuit, an ‘action’ can refer to all the claims against one party.” (Cleaned up.)

Weinstein said that the same logic applies to actions with multiple plaintiffs. So “under Rule 41(a), an ‘action’ refers to all claims that an individual plaintiff has brought against an individual defendant, even if multiple actions involving multiple parties have been combined into a single lawsuit.” That means “[a] single plaintiff or a single defendant may be dismissed from a lawsuit pursuant to Rule 41(a) if (and only if) all claims involving the dismissed party are also dismissed.” The Eleventh Circuit added that such a rule is “consistent with the purpose of Rule 41(a), which is to permit a plaintiff to take [a] case out of court at an early stage if no other party will be prejudiced.” (Quotation marks omitted.)

Weinstein v. 440 Corp., 2025 WL 2092034 (11th Cir. July 25, 2025), available at the Eleventh Circuit and Westlaw

Fugitive-Disentitlement Appeals & the Case-Specific Collateral-Order Doctrine

In United States v. Vladimirovich, the Second Circuit immediately reviewed a fugitive-disentitlement order via the collateral-order doctrine. The courts of appeals have split on whether these orders are immediately appealable, with the Second Circuit having already held that they are. See this post for more on fugitive disentitlement and the split.

Of note, the decision includes some pretty case-specific collateral-order analysis. But that’s not how the collateral-order doctrine is supposed to work—orders are supposed to be appealable or not as a category. Because the Second Circuit has already said that fugitive-disentitlement orders are immediately appealable, there was no need to address whether the order in Vladimirovich satisfied the collateral-order doctrine’s requirements.

United States v. Vladimirovich, 2025 WL 2101184 (2d Cir. July 28, 2025), available at CourtListener and Westlaw

Jurisdiction, Preservation & Un-objected Magistrate Judge Decisions

In Vanicek v. Lyman-Richey Corp., the Eighth Circuit said that it lacked jurisdiction to review a magistrate judge’s denial of leave to amend because the plaintiff did not object to the magistrate judge’s decision. This is not an uncommon holding. But it’s notable given the Fourth Circuit’s decision from last month holding that failure to object goes to preservation, not jurisdiction.

Vanicek v. Lyman-Richey Corp., 2025 WL 2047173 (8th Cir. July 22, 2025), available at the Eighth Circuit and Westlaw

The Month’s Improper Qualified-Immunity Appeals

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

• O’Neil v. Hill, 2025 WL 1892449 (11th Cir. July 9, 2025), available at the Eleventh Circuit and Westlaw
• Benavides v. Nunez, 2025 WL 1943949 (5th Cir. July 16, 2025), available at the Fifth Circuit and Westlaw

There was also Wells ex rel. Locke v. Hanneman, in which the Eighth Circuit rejected a defendant’s attempt to invoke the blatant-contradiction exception.

Wells ex rel. Locke v. Hanneman, 2025 WL 2015918 (8th Cir. July 18, 2025), available at the Eighth Circuit and Westlaw

Quick Notes

In Kalil Design Concepts, LLC v. Pownall, the Eleventh Circuit vacated a partial judgment under Federal Rule of Civil Procedure 54(b). The only proffered reason for the partial judgment was that the defendant did not intend to proceed on its counterclaims if the court of appeals affirmed the dismissal of the plaintiff’s claims. The Eleventh Circuit saw no “pressing” equitable concerns in this desire that would warrant an immediate appeal.

Kalil Design Concepts, LLC v. Pownall, 2025 WL 1805433 (11th Cir. July 1, 2025), available at the Eleventh Circuit and Westlaw

In Certain Underwriters at Lloyd’s of London v. Empress Marine Ventures, Ltd., the Eleventh Circuit reviewed the resolution of some claims in an admiralty action even thought some counterclaims remain unresolved. The court could do so via 28 U.S.C. § 1292(a)(3), which gives appellate courts jurisdiction over “[i]nterlocutory decrees … determining the rights and liabilities of the parties to admiralty cases.” The court also noted that the resolved claims had to be admiralty claims—the court would not have jurisdiction if the only claim on appeal was a non-admiralty claim that happened to be resolved in an admiralty action.

Certain Underwriters at Lloyd’s of London v. Empress Marine Ventures, Ltd., 2025 WL 1835980 (11th Cir. July 3, 2025), available at the Eleventh Circuit and Westlaw

In Shafer v. Morgan Stanley, the Second Circuit dismissed an appeal from an order granting arbitration. Under 9 U.S.C. § 16(b)(2), “an appeal may not be taken from an interlocutory order … directing arbitration to proceed.” The appellant in Shafer tried “to sidestep this plain language by arguing that the district court improperly commented on the merits of the underlying dispute in a manner that effectively directed the arbitrator to decide the case in Plaintiffs’ favor.” But the district court’s express grant of the appellant’s arbitration motion was not an effective denial of that motion just because the district court commented on the merits.

Shafer v. Morgan Stanley, 2025 WL 1890535 (2d Cir. July 9, 2025), available at CourtListener and Westlaw

In Anderson & Koch Ford, Inc. v. Ford Motor Company, the Eighth Circuit held that it had jurisdiction over an appeal despite the without-prejudice dismissal of some claims. At oral argument, the appellant agreed to the appellate court’s modifying the judgment to make that dismissal with prejudice. This solved the court’s concerns about manufactured finality.

Anderson & Koch Ford, Inc. v. Ford Motor Company, 2025 WL 1902622 (8th Cir. July 10, 2025), available at the Eighth Circuit and Westlaw

In Troupe v. Young, the Eighth Circuit held that a district court’s declaring its decision final did not make it so. The district court had granted qualified immunity on some of the plaintiff’s claims and then said that its decision was final and appealable. The plaintiff did not appeal this grant until much later, after the district court had resolved all the parties’ claims. The Eighth Circuit said that grant did not start the appeal clock, as more remained to be done in the district court. The district court’s statement to the contrary had no effect.

Troupe v. Young, 2025 WL 1910566 (8th Cir. July 11, 2025), available at the Eighth Circuit and Westlaw

In Immigrant Defenders Law Center v. Noem, the Ninth Circuit held that the government could appeal from an order staying the re-implementation of the government’s “Remain in Mexico” immigration policy. Though ostensibly a stay under the Administrative Procedure Act, the order satisfied all three of the Carson factors and was thus effectively a preliminary injunction, appealable via 28 U.S.C. § 1292(a)(1). The order had the same practical effects as a preliminary injunction. It came after a full briefing and a hearing. The order interfered with the government’s “ability to effectuate a statute duly enacted by Congress, which is a cognizable form of irreparable injury.” (Quotation marks omitted.) And the order could not be effectively reviewed after a final judgment.

Immigrant Defenders Law Center v. Noem, 2025 WL 2080742 (9th Cir. July 18, 2025), available at the Ninth Circuit and Westlaw

In In Re Sealed Case, the D.C. Circuit explained that the resolution of a challenge to a nondisclosure order is a final, appealable decision. Nondisclosure orders prohibit subpoena recipients from disclosing that they received a subpoena. So when litigation is brought to challenge a nondisclosure order, the resolution of that challenge ends district court proceedings and leave nothing left to do. The court thus did not need to resort to the collateral-order doctrine to review the nondisclosure challenge.

In Re Sealed Case, 2025 WL 2013687 (D.C. Cir. July 18, 2025), available at the D.C. Circuit and Westlaw

In United States v. Greenwood, the Second Circuit held that the civil-appeal deadline applies to a non-party’s appeal from an order refusing to unseal or unredact materials submitted in support of a criminal sentencing. The unsealing/unredacting proceeding was “ancillary” to the criminal case and “carrie[d] many of the hallmarks of a civil proceeding.” (Quotation marks omitted.) Indeed, the motion to unseal documents could have been brought as its own civil proceeding (rather than by intervening in the criminal case). So the civil appeal deadline applied, not the criminal one.

United States v. Greenwood, 2025 WL 2101302 (2d Cir. July 28, 2025), available at CourtListener and Westlaw

In East Gate-Logistics Park Chicago, LLC v. CenterPoint Properties Trust, the Seventh Circuit dismissed an appeal from what the district court had called a Colorado River stay. The order was not, in fact, a Colorado River stay (which would have been immediately appealable). It was instead a regular case-management stay that did not risk putting the parties out of federal court. And what an order does—not what it says—matters.

East Gate-Logistics Park Chicago, LLC v. CenterPoint Properties Trust, 2025 WL 2027839 (7th Cir. July 21, 2025), available at the Seventh Circuit and Westlaw

And in Acorda Therapeutics, Inc. v. Alkermes PLC, the Federal Circuit held that it lacked jurisdiction over an appeal from an order confirming an arbitral award. The plaintiff had sought to modify the award because the arbitrator had “manifestly disregarded” federal patent law. But the action did not arise under the patent law. Patent law did not create the legal right the plaintiff sought to enforce—the Federal Arbitration Act did. And the plaintiff’s case did not necessarily raise a patent issue.

Acorda Therapeutics, Inc. v. Alkermes PLC, 2025 WL 2088907 (Fed. Cir. July 25, 2025), available at the Federal Circuit and Westlaw