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In Solomon v. St. Joseph Hospital, the Second Circuit skipped over appellate-jurisdiction issues to address the district court’s subject-matter jurisdiction. On its face, the opinion suggests that litigants can take interlocutory appeals to challenge federal subject-matter jurisdiction. This would be a massive—and likely inadvertent—expansion of interlocutory appeals.…

In Fraga v. Premium Retail Services, Inc., the First Circuit reviewed what was nominally the denial of a motion to dismiss, as that motion effectively sought to compel arbitration.…

February produced a variety of decisions and developments of note. I discussed many of these in posts throughout the month, which are summarized and linked below. There were also some developments on the issue of whether denials of church-autonomy defenses are immediately appealable via the collateral-order doctrine—a divided Second Circuit denied rehearing en banc on the issue, and a new cert petition asks the Supreme Court to address these appeals.…

In In re Clean Water Act Rulemaking, the Ninth Circuit held that it had jurisdiction to review an order vacating a regulation and remanding the dispute to an agency, as the district court had never deemed the regulation unlawful. This is an interesting twist on the administrative-remand rule. That rule normally bars appeals from orders remanding a dispute to an administrative agency.…

In In re Esteva, the Eleventh Circuit dismissed an appeal after concluding that a Rule 41(a)(1)(A) voluntary dismissal was ineffective. The stipulated dismissal purported to dismiss all unresolved claims. But according to the Eleventh Circuit, that’s not allowed—Rule 41(a)(1)(A) permits the voluntary dismissal of only entire actions, not individual claims.…

In Graber v. Doe II, a panel of the Third Circuit split on whether federal officials could immediately appeal the Bivens question without a qualified-immunity appeal. It’s the second decision in recent memory to reject a pure Bivens appeal. And this time, at least one judge was willing to hold that the Bivens issue was immediately appealable via the collateral-order doctrine.…

Since the Supreme Court’s 2020 decision in Guerrero-Lasprilla v. Barr, several courts of appeals have reexamined the scope of their jurisdiction in immigration appeals. Last week produced another example. In Hernandez v. Garland, the Sixth Circuit held that it could review “good moral character” determinations in immigration appeals, as those determinations involve a mixed question of law and fact.…

In Pettibone v. Russell, the Ninth Circuit categorically held that it could address the Bivens question as part of a qualified-immunity appeal. In the course of doing so, the court rejected its older cases holding to the contrary.…

In Bradley v. Village of University Park, the Seventh Circuit determined that defendants had waived an issue by conceding it in a prior appeal. In doing so, the court explained the difference between conceding an issue for purposes of an appeal and waiving the issue such that it could not be disputed on remand.…

I’ve put the weekly roundup on hiatus for a now. In its place, I’m going to try (emphasis on try) more individual posts and monthly roundups.

So here is the first monthly roundup, covering the appellate-jurisdiction highlights of January 2023. It features a cert grant on a long-simmering circuit split, a new circuit split on contempt appeals, some pendent appellate jurisdiction, and a new cert petition on another split.…