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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 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.…

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.…

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).…

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.…

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.…

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.…

July was a fairly quiet month. But there were still a few decisions worth discussing.…

In Hines v. Stamos (no PDF currently available), the Fifth Circuit spoke at length about its jurisdiction to review a personal-jurisdiction defense as part of an arbitration appeal. But the discussion was entirely unnecessary. The district court had never ruled on the personal-jurisdiction defense, meaning that there was no order to review.…