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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.…

Immigration law generally strips the courts of appeals of jurisdiction to review a variety of factual and discretionary issues. But a savings clause preserves jurisdiction to review legal and constitutional issues. And in 2020’s Guerrero-Lasprilla v. Barr, the Supreme Court held that appellate jurisdiction exists to review mixed questions of law and fact—i.e.…

In In re Grand Jury Subpoena, the Eleventh Circuit explained that it could not review a contempt decision without a sanction.…

The Supreme Court held in Ortiz v. Jordan that parties cannot appeal evidence-sufficiency issues raised in a denied summary-judgment motion after a trial on the merits. Parties must instead raise issues with the sufficiency of the trial evidence via a motion under Federal Rule of Civil Procedure 50. But Ortiz left open the possibility that a denied summary-judgment motion could preserve purely legal issues for appeal.…