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November saw a pair of interesting decisions on the application of Smith v. Spizzirri as well as a formal standard for successive injunction appeals in the Tenth Circuit. But let’s start with a decision on whether a post-judgment motion to reconsider reset the appeal clock.

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October was discovery-appeal month. The Ninth Circuit held that a § 1782 order was not final when the district court had not resolved post-order objections to the discovery. The Fifth Circuit permitted an immediate appeal from a discovery order that implicated First Amendment interests. The Eleventh Circuit held that a party could not take a Perlman appeal when the same objections to discovery could be addressed through the party’s own contempt appeal. And a new cert petition asks if discovery orders are immediately appealable when a defendant has raised the qualified-immunity defense.

There were some additional decisions of note, including an attempted collateral-order appeal on the Yearsley doctrine and the Fifth Circuit’s reconciliation of the prison-mailbox and the mistaken-filing rules. But let’s start with a nice reminder that appellate courts need to have their own jurisdiction before they can address the district court’s.

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In CPC Patent Technologies Pty Ltd. v. Apple Inc., the Ninth Circuit held that a 28 U.S.C. § 1782 discovery proceeding was not final because the district court had not definitively resolved the scope of discovery. Although the district court had authorized a subpoena, the court had not addressed the discovery target’s objections to the scope of discovery. Until those issues were resolved, the discovery target could not appeal.

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In In Re Grand Jury Investigation, the Eleventh Circuit held that a privilege claimant could not appeal orders compelling it and third parties to produce documents.

The analysis of the order directed at the privilege claimant was straightforward. Privilege claimants normally must take contempt appeals to challenge a discovery order. The privilege claimant in Grand Jury Investigation had not been held in contempt. So it couldn’t appeal.

The order directed at third parties was more interesting. Under the Perlman doctrine, privilege claimants can normally immediately appeal discovery orders directed to a third party. But the Eleventh Circuit held that the claimant here could not take a Perlman appeal. That’s because the claimant could have raised all of its challenges to the third-party discovery order by taking its own appeal. Appellate review of those issues was therefore possible, meaning Perlman didn’t apply.

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In Christmas v. Hooper, the Fifth Circuit held that the prison-mailbox rule applies to notices of appeal mistakenly sent to a court of appeals.

In doing so, the court had to resolve a tension between two portions of Federal Rule of Appellate Procedure 4. Rule 4(c)(1) says that an imprisoned appellant’s notice of appeal is deemed filed on the day it is deposited in the prison mail system. Rule 4(d) says that when litigants mistakenly send their notice to the court of appeals, the notice is deemed filed when the court of appeals receives it.

So what happens when an imprisoned appellant deposits a notice of appeal in the prison mail system but addresses that notice to a court of appeals? The Fifth Circuit held that Rule 4(c)(1)’s prison-mailbox rule applies, such that the notice is filed when deposited.

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September saw yet another court of appeals split over whether federal officials can immediately appeal the Bivens question without a qualified-immunity appeal. I’ve been following this issue for a while, and at least one more court of appeals is poised to address it. I won’t be surprised to see some cert petitions on this matter in the not-too-distant future.

In other developments, the Second Circuit held that Rule 4(a)(4) is a mandatory claims-processing rule, meaning that a court cannot excuse a failure to comply with it. The Tenth Circuit again failed to apply the Rule 3(c) amendments to a notice of appeal, instead limiting the scope of appeal to the order designated in the notice. And the Second Circuit addressed the state-sponsored terrorism bar to appeals from denials of foreign sovereign immunity. Plus the scope of remand appeals, the prison-mailbox rule applied to electronic filing, and more.

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In Malek v. Feigenbaum, the Second Circuit reiterated its rule that a post-judgment motion must be timely filed—not merely served—to reset the time to appeal under Federal Rule of Appellate Procedure 4(a)(4). The court went on to hold that although Rule 4 is a claims-processing rule, it is a mandatory one that is not subject to equitable exceptions. The Second Circuit ended by concluding that a notice of appeal that designated the district court’s final judgment did not permit an appeal from a subsequent denial of reconsideration, even though that notice came after the denial.

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Disclosure: I participated in a moot oral argument for the plaintiff-appellee in this case.

In Garraway v. Ciufo, a divided Ninth Circuit held that federal officials cannot immediately appeal the Bivens question without a qualified-immunity appeal.

So far the courts of appeals have unanimously rejected the federal government’s efforts to secure immediate Bivens appeals. But these decisions have produced dissents, with judges contending that immediate appeals are warranted due to the interests the Bivens question implicates. And at least one more pending appeal presents this issue. This is probably not the end of the government’s attempts to secure pure Bivens appeals.

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A new assistant paw-fessor/junior paw-ssociate joined Final Decisions.

Photo of a Shih Tzu puppy.

That didn’t leave a lot of time to write this month’s roundup. So this month is mostly quick notes. But that doesn’t mean there weren’t cases of interest.

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In In re Lion Air Flight JT 610 Crash, the Seventh Circuit reviewed a preemption issue as part of a certified appeal that concerned the right to a jury trial. The district court had thought that only the jury-trial issue warranted an immediate appeal under 28 U.S.C. § 1292(b). But the Seventh Circuit concluded that the preemption decision was part of the same order and thus also within the scope of the certified appeal. After all, the right to a jury trial turned on the extent to which federal law preempted the plaintiffs’ state law claims.
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