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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.
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.
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.
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.
A new assistant paw-fessor/junior paw-ssociate joined Final Decisions.
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.
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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In Upchurch v. O’Brien, the Seventh Circuit dismissed as untimely an appeal from a sanction-based award of attorneys fees. The court explained that an award of attorneys fees need not be set out in a separate document to start the appeal clock. Instead, the clock starts when the fees are awarded.
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In McEvoy v. Diversified Energy Co., the Fourth Circuit dismissed a somewhat convoluted invocation of sovereign immunity. The defendants appealed to argue that a district court’s Rule 19 decision effectively denied a non-party’s sovereign immunity. But the defendant had never itself sought immunity. Nor had the actual immunity holder intervened to protect its interests. The motion was instead only a decision that a state agency was not a party that should be joined under Federal Rule of Civil Procedure 19.
In In re Search Warrants Issued February 18, 2022, the Fourth Circuit dismissed an appeal that challenged the filter protocols for seized evidence. The district court had approved certain protocols to weed out potentially protected evidence. The district court later denied a privilege claimant’s motion seeking to alter those protocols. The Fourth Circuit held that under DiBella v. United States, the order was neither an appealable final decision nor an appealable denial of a preliminary injunction.
July was a fairly quiet month. But there were still a few decisions worth discussing.
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