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The following guest post is by Alan B. Morrison. Mr. Morrison is the Lerner Family Associate Dean for Public Interest & Public Service Law at George Washington University Law School, where he teaches civil procedure. He is also the co-author, with Howard Eisenberg, of an article dealing with similar appeal issues: Discretionary Appellate Review of Non-Final Orders: It’s Time To Change the Rules, 1 Journal of Appellate Practice & Process 285 (1999) (PDF, 1.3 MB).…

Update, September 4, 2019: Back before the district court, the court certified its decisions for an immediate appeal under § 1292(b). Trump then petitioned to appeal, and on September 4, 2019, the D.C. Circuit granted the petition.

In the emoluments suit brought by members of Congress, the D.C. Circuit tried to avoid weighing in on whether it can order a district court—via a writ of mandamus—to certify an order for immediate appeal under 28 U.S.C.…

This week saw more emoluments/mandamus/§ 1292(b) action, this time in the D.C. Circuit. The Third Circuit took sides in the circuit split on whether indigent prisoners can proceed in forma pauperis in the appeal from their third strike. The Eighth Circuit addressed the appealability of a remand order based on § 1446(c)’s one-year limit on removal.…

The major appellate-jurisdiction event last week was the Fourth Circuit’s decision in one of the emoluments appeals, granting mandamus to reverse the denial of a § 1292(b) certification. Besides that it was a relatively quiet week. Still, there were decisions of note on administrative exhaustion, notices of appeal, default judgments, and immigration appeals.…

The Fourth Circuit took the extraordinary (and possibly improper) step today of directing a district court—via a writ of mandamus—to certify an issue for immediate appeal under 28 U.S.C. § 1292(b). It did so in one of two interlocutory appeals in Maryland and the District of Columbia’s emoluments-clause suit against Donald Trump.…

There were several interesting appellate-jurisdiction decisions this week, with many of them coming out of the Third Circuit. Decisions touched on qualified-immunity, pendent appellate jurisdiction over municipal-liability claims, preliminary injunctions, tolling appeal-filing deadlines, appellate waivers in plea agreements, and appeals under the Bail Reform Act.

Let’s start, however, with a fascinating new cert petition.…

In Dominion Energy, Inc. v. City of Warren Police and Fire Retirement System (PDF, 147KB), the Fourth Circuit announced a non-exhaustive list of things it would consider in deciding whether to allow an appeal from an order remanding a class action to state court. These criteria are the same as those that several other courts of appeals use.…

The Supreme Court granted cert yesterday in Dex Media Inc. v. Click-To-Call Technologies, LP. The case concerns the appealability of the Patent Trial and Appeal Board’s decision to institute inter partes review. The statute in question—35 U.S.C. § 314(d)—says that “[t]he determination . . . whether to institute an inter partes review under this section shall be final and nonappealable.”…

The federal courts’ ongoing project of delineating which procedural rules are jurisdictional and which aren’t (and are instead claim-processing rules) continues.

The Seventh Circuit held this week that 28 U.S.C. § 2107(c)’s excusable neglect/good cause requirement for an extension of the appeal-filing deadline is jurisdictional. And the Tenth Circuit applied an earlier decision holding that administrative exhaustion of arguments under the Black Lung Benefits Act is jurisdictional, though the panel appeared to doubt that earlier decision.…

In Hamer v. Neighborhood Housing Services of Chicago, the Supreme Court offered a convenient shorthand for determining whether an appeal-filing time limit is jurisdictional: those prescribed by statutes are, but those found only in court-made rules are not. Bankruptcy’s appeal-filing deadline is a bit of both. 28 U.S.C. § 158(c)(2) says a notice of appeal must be filed within an amount of time set by Bankruptcy Rule 8002, which in turn specifies a 14-day filing deadline.…