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There were a few decisions of note last week. The en banc Fifth Circuit addressed the finality trap in a case that I’ve been following for quite some time. The Second Circuit joined other circuits in cutting back the availability of Perlman appeals. And the Sixth Circuit heard two more appeals involving temporary restraining orders.…

When plaintiffs lose on some of their claims and then voluntarily dismiss the rest, they risk falling into the finality trap. If the remaining claims were voluntarily dismissed without prejudice, most courts of appeals will hold that the district court has not issued a final, appealable decision under 28 U.S.C. § 1291.…

Last week was an eventful one. There was another COVID-19 related appeal from a temporary restraining order, with the Fifth Circuit suggesting that an adversary hearing alone converts a TRO to a preliminary injunction for appeal purposes. The Foreign Intelligence Surveillance Court of Review issued a decision on its jurisdiction to review FISC decisions.…

Last week, the Supreme Court addressed the scope of review in appeals from inter partes review. Judge Hamilton of the Seventh Circuit gave an excellent explanation of abuse-of-discretion review. More defendants sought (with mixed success) immediate appellate review of temporary restraining orders. Plus a writ of mandamus to the EPA, an improper qualified-immunity appeal, appealing bankruptcy remands, pendent appellate jurisdiction, notices of appeal, and appeals in post-judgment enforcement proceedings.…

The standard of review is an essential part of any appeal; you cannot know whether the district court erred without knowing how the court of appeals will look at the district court’s decision. This is particularly true of abuse-of-discretion review. Discretion necessarily means that there is more than one affirm-able answer.…

As a general rule, temporary restraining orders (often initialized as TROs) are not immediately appealable. Granted, 28 U.S.C. § 1292(a)(1) permits appeals from orders concerning injunctions. But TROs are normally not considered injunctions for appellate-jurisdiction purposes. So litigants generally must wait until the district court rules on a preliminary injunction before taking an appeal.…

Last week, the D.C. Circuit untangled several appellate issues—including the necessity of a cross-appeal to argue personal jurisdiction—in the course of hearing an appeal. The Seventh Circuit held that an attempted class-action objector lacked appellate standing when she did not seek to intervene. Plus another attempted appeal from a temporary restraining order, some improper qualified-immunity appeals, the timeliness of intervention appeals, appealing dismissals without prejudice, and appellate jurisdiction in cases of unserved defendants.…

Last week, the Sixth Circuit addressed the appealability of a district court order delaying a decision on a motion to compel arbitration. The Ninth Circuit required meaningful district court participation in dismissals without prejudice for those dismissals to be appealable. Two courts of appeals addressed their jurisdiction to review temporary restraining orders in the context of COVID-19 related abortion restrictions.…

Last week, the Advisory Committee on Appellate Rules met and considered (among other things) the proposed amendments to Rule 3(c) and cumulative finality. A split Second Circuit held that immigration’s jurisdiction-stripping provisions applied only when a petitioner was deemed removable due to a covered criminal offense. The Fifth Circuit addressed when reconsideration decisions can restart the clock for taking an arbitration appeal.…

Programming Note: Weekly roundups will probably be short, and new posts will probably be rare, for the next few weeks.

The Supreme Court addressed the scope of review in immigration appeals. The Sixth Circuit reversed course on the jurisdictional basis for sentencing appeals. The Ninth Circuit joined everyone else in holding that Rule 23(f) appeals are available for reconsideration orders only when the orders change the status quo.…