The Month in Federal Appellate Jurisdiction: November 2025

This month’s roundup features two decisions on litigants’ attempts to voluntarily dismiss some of their claims. In one, a defendant filed a written, pretrial notice that it abandoned one of its counterclaims. In another, the parties stipulated to a dismissal, but one defendant did not sign the stipulation. In both cases, the court deemed the attempted voluntary dismissal ineffective. So in both cases, claims remained unresolved, and there was no final, appealable decision. But at least in the first case, I’m wondering if the court was dealing with discrete theories, not claims.

In other decisions, the Ninth Circuit explained that when a district court grants a post-judgment motion, the time to appeal runs from entry of the amended judgment, not the grant itself. And the Fifth Circuit dismissed a purported legislative-privilege appeal, as no privilege holder had actually invoked the privilege. Plus some improper qualified-immunity appeals and more.

• No Finality by Abandoning Claims Before Trial
• The Appeal Clock for Successful Post-Judgment Motions
• Appellate Standing on Legislative Privilege
• A Defective Rule 41 Dismissal Precludes Finality
• The Month’s Improper Qualified-Immunity Appeals
• Quick Notes

No Finality by Abandoning Claims Before Trial

In Simmons v. USI Insurance LLC, the Eleventh Circuit held that the purported abandonment of a counterclaim before trial was ineffective and thus precluded appellate jurisdiction. The counterclaim was the only theory of relief that had not been resolved at summary judgment or trial. And in a written notice before trial, the defendant had said it no longer intended to pursue the theory. The Eleventh Circuit nevertheless held that the counterclaim remained unresolved. And without a decision on all the parties’ claims, there was no final, appealable decision.

The past few years have seen some courts repeatedly hold that litigants cannot voluntarily dismiss discrete claims (rather than dismissing an entire action). These decisions have me wondering: how often are courts addressing discrete claims rather than discrete theories of relief? Although lawyers and judges frequently conflate claims and theories (and doing so is often harmless), there is a difference between the two. And whatever the limits on voluntarily dismissing discrete claims, I don’t see why there should be any limits on parties’ abandoning discrete theories.

Continue reading: No Finality by Abandoning Claims Before Trial.

Simmons v. USI Insurance LLC, 2025 WL 3252333 (11th Cir. Nov. 21, 2025), available at the Eleventh Circuit and Westlaw

The Appeal Clock for Successful Post-Judgment Motions

In Gessele v. Jack in the Box Inc., the Ninth Circuit held that when a district court alters its judgment by granting a post-judgment motion, the time to appeal runs from the entry of an amended judgment. Unlike orders denying post-judgment motions, the appeal clock does not start with the order itself.

Continue reading: The Appeal Clock for Successful Post-Judgment Motions.

Gessele v. Jack in the Box Inc., 2025 WL 3278021 (9th Cir. Nov. 25, 2025), available at the Ninth Circuit and Westlaw

Appellate Standing on Legislative Privilege

In Arnold v. Barbers Hill Independent School District, the Fifth Circuit held that a school district could not appeal to invoke the legislative privilege held by school officials. And those officials had to first invoke the privilege themselves before they could appeal its denial.

Simplifying a bit, Arnold stemmed from a challenge to a school district policy that restricted the length of male students’ hair. The plaintiffs sued the school district. They later sought to depose the district’s superintendent and a former school board president. The school district sought a protective order, invoking legislative privilege. The district court partially granted and partially denied the protective order. The school district, superintendent, former board president, and current board all appealed.

The Fifth Circuit dismissed the appeal, as no one with the authority to invoke legislative privilege had yet invoked it. Legislative privilege belongs to the legislator. So the school district could not invoke the privilege. That meant the school district lacked third-party standing to appeal the district court’s decision.

The superintendent and former board president were not parties to the action. And neither had participated adequately in the district court to appeal the order. Most importantly, neither the superintendent nor the former board president had themselves invoked privilege or otherwise objected. They needed to at least invoke the privilege before they could appeal its denial.

As for the current board, it neither held the privilege nor invoked it in the district court. So it could not appeal either.

Arnold v. Barbers Hill Independent School District, 157 F.4th 749 (5th Cir. Nov. 3, 2025), available at the CourtListener and Westlaw

A Defective Rule 41 Dismissal Precludes Finality

In Allen v. AT&T Mobility Services, LLC, the Eleventh Circuit held that one defendant’s failure to sign a stipulated dismissal rendered that dismissal ineffective, thereby precluding finality.

Allen started as a putative class action. The district court eventually denied class certification. The two named plaintiffs then settled with the two defendants. The parties filed a joint stipulation of dismissal. But only one of the two defendants signed that stipulation.

A putative class member then intervened to appeal the denial of class certification. The Eleventh Circuit dismissed that appeal, as the intervenor had not litigated her claims in the district court. Back in the district court, the defendants moved to dismiss the complaint in intervention. The district court granted that motion, and the intervenor appealed.

The Eleventh Circuit held that it lacked jurisdiction over the appeal. The court had noted in the prior appeal that there was some question as to the effectiveness of the stipulated dismissal, as not all parties had signed it. After that first appeal, the parties had done nothing to cure any deficiencies. And the Eleventh Circuit has held that “procedurally irregular” Rule 41 dismissals are “ineffective and cannot create finality for purposes of appeal.” Both defendants in Allen had appeared and were thus parties. So both needed to sign the voluntarily dismissal.

Only one of them did. That rendered the dismissal ineffective. So the original plaintiffs’ claims were not voluntarily dismissed. With those claims still pending, there was no final, appealable decision.

Allen v. AT&T Mobility Services, LLC, 2025 WL 3251213 (11th Cir. Nov. 21, 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:

• DeVooght v. City of Warren, Michigan, 157 F.4th 893 (6th Cir. Nov. 5, 2025), available at the Sixth Circuit and Westlaw
• Burke v. Pitts, 157 F.4th 1326 (10th Cir. Nov. 4, 2025), available at the Tenth Circuit and Westlaw
• Lilly v. Hall, 2025 WL 3152604 (2d Cir. Nov. 12, 2025), available at CourtListener and Westlaw
• Navarro v. City and County of San Francisco, 2025 WL 3172308 (9th Cir. Nov. 13, 2025), available at the Ninth Circuit and Westlaw

There was also Vann v. City of Rochester, in which the Second Circuit said that it would not review the sufficiency of the evidence in an appeal from a partial grant of summary judgment against the defendants.

And in Harris v. Kim, Judge Clifton dissented to argue that the court lacked appellate jurisdiction to “re-weigh” the district court’s determination that a genuine fact issue existed as to whether a defendant fabricated evidence.

Vann v. City of Rochester, 2025 WL 3079230 (2d Cir. Nov. 4, 2025), available at CourtListener and Westlaw

Harris v. Kim, 2025 WL 3066304 (9th Cir. Nov. 3, 2025), available at the Ninth Circuit and Westlaw

Quick Notes

In In Re East Palestine Train Derailment, the Sixth Circuit dismissed an appeal as untimely when the would-be appellants’ motion to extend the appeal deadline was one day late. The would-be appellants had objected to a class action, and they actually filed two appeals: one from the settlement, and another from an order requiring they post an $850,000 appeal bond. The would-be appellants had sought to extend the time to appeal the bond. But their request was one day late. Their appeal challenging the bond was thus untimely. The would-be appellants also had not paid the appeal bond. So the Sixth Circuit dismissed their appeal from the settlement, too.

In Re East Palestine Train Derailment, 158 F.4th 704 (6th Cir. Nov. 5, 2025), available at the Sixth Circuit and Westlaw

In Estate of Lewis ex rel. Duran v. City of Columbus, the Sixth Circuit held that a would-be intervenor can appeal despite the district court saying that it would consider a renewed motion if certain things happened. The denial of intervention is immediately appealable. And the possibility of a subsequent motion does not change that, as the contingency for the renewed motion might never occur.

Estate of Lewis ex rel. Duran v. City of Columbus, 158 F.4th 814 (6th Cir. Nov. 7, 2025), available at the Sixth Circuit and Westlaw

In Thompson v. Regions Security Services, Inc., the Eleventh Circuit held that a party could appeal despite making an accepted offer of judgment under Federal Rule of Civil Procedure 68(c). The district court had entered summary judgment against the defendant on liability, leaving the amount of damages unresolved. The defendant then made an offer of judgment. But that offer “expressly stated that it was ’not an admission or confession of liability by [the defendant], who retains the right to appeal the Court’s determination of liability.” So the offer (and acceptance) of judgment did not render the case moot.

Thompson v. Regions Security Services, Inc., 2025 WL 3251389 (11th Cir. Nov. 21, 2025), available at the Eleventh Circuit and Westlaw

And in APM Terminals Mobile, LLC v. International Longshoremen’s Association, AFL-CIO, Local Union 1410, the Eleventh Circuit held that a union could not immediately appeal from the denial of arbiration. Because the union’s members were enged in foreign or interstate commerce, the Federal Arbitration Act—including its appeal rules—did not apply to the collective bargaining agreement. The Labor Management Relations Act’s authorization on crafting “a body of federal law for the enforcement of … collective bargaining agreements” did not permit “alter[ing] longstanding principles of finality for appellate jurisdiction.” And denials of arbitration are not appealable via the collateral-order doctrine, as the denial of arbitration is effectively reviewable in an appeal from a final judgment.

APM Terminals Mobile, LLC v. International Longshoremen’s Association, AFL-CIO, Local Union 1410, 2025 WL 3202319 (11th Cir. Nov. 17, 2025), available at the Eleventh Circuit and Westlaw