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It was another eventful week in federal appellate jurisdiction, including an odd decision on appeals from dismissals without prejudice, a jurisdictional decision in the appeal involving conditions for children at Border Patrol stations, and the reply brief for the cert petition on anti-SLAPP appeals.…

Update: The Fifth Circuit granted rehearing en banc, and argument is scheduled for January 23, 2020.

I’ve jokingly characterized the Supreme Court’s decision in Microsoft v. Baker as creating a zombie action: one that is over in the district court but not final—and never will be final—for purposes of appeal. (The joke kills at cocktail parties.)…

In Koh v. Ustich, the Seventh Circuit dismissed a qualified-immunity appeal because all of the defendants’ arguments disputed the version of facts assumed by the district court. It was an undoubtedly correct decision. But the appeal appears to be another unfortunate example of imposing unnecessary delay and expense on plaintiffs’ civil rights claims for no good reason.…

This week’s roundup is slightly later than usual due to a hard drive failure. And it’s a big roundup—it was a busy week.

Let’s start with anti-SLAPP appeals.…

In King v. LeBlanc, the Fifth Circuit dismissed a qualified-immunity appeal that challenged only the district court’s determination that a genuine fact issue existed as to the officer’s deliberate indifference. This far-too-common practice of challenging the facts in qualified-immunity appeals wastes a lot of time for courts and plaintiffs. In King, the Fifth Circuit was quick to remind defendants that it lacks jurisdiction over these arguments.…

In United States v. Paup, the Tenth Circuit held that it had jurisdiction to review a district court order remanding a criminal sentence to a magistrate judge. The remand order did not affect the conviction or sentence and left open only the amount of a restitution order. It was accordingly a final decision that was immediately appealable.…

In Jaludi v. Citigroup, the Third Circuit heard a plaintiff’s appeal from an order compelling arbitration of all of the plaintiff’s claims. The case is another illustration of a district court dismissing—rather than staying—an action after ordering arbitration to proceed. And it’s one that circumvents the normal limits on arbitration appeals.…

One issue that makes jurisdiction over interlocutory qualified-immunity appeals so maddening is the uncertain scope of review. The Supreme Court’s decision in Johnson v. Jones says that courts of appeals are not supposed to review the district court’s conclusion that genuine fact issues exist. Appellate courts should instead take the district court’s assumed facts as given and ask whether those facts make out a clear constitutional violation.…

Last week saw interesting appellate-jurisdiction decisions involving the Foreign Sovereign Immunities Act, immigration appeals, qualified immunity, and administrative/judicial orders.…

A second cert petition has been filed in Xitronix and KLA-Tencor’s fight—as well as the Fifth and Federal Circuit’s fight—over the Federal Circuit’s exclusive jurisdiction in patent appeals. (I mentioned this petition in a recent weekly roundup.) The appeal has ping-ponged from the Federal Circuit to the Fifth Circuit and then back to the Federal Circuit.…