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Robert H. Klonoff has posted a draft of his new article Federal Rule of Civil Procedure 23(f): Reflections After a Quarter Century. The article includes new empirical data on appeals (and attempts to appeal) under Federal Rule of Civil Procedure 23(f) and updates my study from a few years ago.…
Continue reading....In Dubon v. Jaddou, the Fourth Circuit dismissed an appeal from an order remanding a naturalization action to the U.S. Citizenship and Immigration Services. The court acknowledged that this remand order would be unreviewable in any future proceedings. But it thought that this lack of review was harmless, as the applicant could eventually obtain judicial review of the underlying naturalization decision.…
Continue reading....In Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, the Fifth Circuit held that it lacked jurisdiction to review an order that remanded a removed action because the defendant had waived the right to remove. But the panel doubted that doing so was correct. Indeed, the panel seemed almost certain that its decision was wrong.…
Continue reading....Quick roundup this month, starting with another expansion of the scope of qualified-immunity appeals.…
Continue reading....Federal courts of appeals have spent a lot of energy determining whether litigants can appeal after a dismissal without prejudice. Some courts have declared that these dismissals are final decisions and thus generally appealable. And some courts—sometimes the same courts, albeit in different opinions—announce the opposite rule: that dismissals without prejudice are not generally appealable.…
Continue reading....In Jones v. U.S. Merit Systems Protection Board, the Fourth Circuit reviewed a decision of the Merit Systems Protection Board even though the petitioners voluntarily dismissed some of their theories of relief. That voluntary dismissal was with prejudice, which made it highly unlikely that the voluntarily dismissed theories would ever resurface.…
Continue reading....In Asante-Chioke v. Dowdle, the Fifth Circuit reviewed an order refusing to limit the scope of discovery to qualified-immunity issues. The court said that it could immediately review this sort of order via the collateral-order doctrine. But I have my doubts. The Fifth Circuit relied on a line of cases holding that defendants can appeal decisions to defer ruling on qualified immunity until after discovery.…
Continue reading....Last month saw the Supreme Court wrap up its appellate-jurisdiction docket for the term. The Court held that district courts must stay actions after ordering arbitration so long as a party requests a stay. The Court also held that another deadline—the time to appeal MSPB decisions—is not jurisdictional.
The courts of appeals also issued several decisions of note.…
Continue reading....In Harrow v. Department of Defense, the Supreme Court held that the 60-day deadline for appealing decisions from the Merit System Protection Board is not jurisdictional. It’s a solid decision. It also raises questions about how Federal Rule of Appellate Procedure 26(b) applies to the equitable tolling of administrative appeals.…
Continue reading....In Smith v. Spizzirri, the Supreme Court held that district courts must stay—not dismiss—an action if the district court orders arbitration and a party requests a stay. The decision resolves a long-standing split over the ability to dismiss actions after ordering arbitration.
The decision also has implications for appellate jurisdiction.…
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