The Seventh Circuit offered a helpful reminder: the time to appeal an award of attorneys fees runs from the order on fees, not the entry any separate document.
August 10, 2024
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.
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The Fourth Circuit dismissed an appeal in which defendants argued that a state agency—which could invoke sovereign immunity—should be joined under Rule 19.
August 10, 2024
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. The motion was instead only a decision that a state agency was not a party that should be joined under Federal Rule of Civil Procedure 19.
The Fourth Circuit held that a privilege claimant could not appeal to challenge filter protocols for potentially protected evidence.
August 8, 2024
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. The Fourth Circuit held that under DiBella v. United States, the order was neither an appealable final decision nor an appealable denial of a preliminary injunction.
The Fifth Circuits said that it could review a personal-jurisdiction defense as part of an arbitration appeal. But it didn't need to.
August 3, 2024
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. And the panel ultimately remanded the case for the district court to address personal-jurisdiction (as well as subject-matter jurisdiction), which might render the arbitration issue moot.
All of this could have been done without mentioning appellate jurisdiction over the personal-jurisdiction defense. The Fifth Circuit could have simply remanded the case for the district court to address personal jurisdiction in the first instance. And I think doing so would have been the better move—whether personal- and subject-matter-jurisdiction issues are within the scope of interlocutory appeals is a difficult, unsettled issues.
The Fourth Circuit applied the administrative-remand rule to a district court order that remanded a long-pending naturalization application to the Citizenship and Immigration Services.
August 1, 2024
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.
The courts of appeals have split on whether they can review a remand order based on waiver, and the Fifth Circuit doubts that it’s on the correct side.
July 30, 2024
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. But it was bound by the Fifth Circuit’s decision in In re Weaver, which held that 28 U.S.C. § 1447(d) barred review of such a remand.
The Fourth Circuit nicely explained that manufactured finality comes in a variety of forms, some of which are acceptable and some of which aren’t.
June 19, 2024
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. So the petitioners were not trying to improperly manufacture an interlocutory appeal.
The opinion nicely recognizes that not all varieties of manufactured finality should be treated the same.
The Fifth Circuit now appears to permit defendants invoking qualified immunity to immediately appeal orders regarding the scope of discovery.
June 7, 2024
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. But there was no deferral in Asante-Chioke. And the Fifth Circuit’s decision opens the door to future appeals challenging the scope of discovery in civil-rights actions.
A Seventh Circuit concurrence explained why litigants should not be able to take collateral-order appeals from orders orders distributing some of the assets in a receivership.
May 11, 2024
In SEC v. EquityBuild, Inc., the Seventh Circuit heard an appeal from order approving the distribution of some—but not all—of the assets in a receivership proceeding. The order was appealable under the Seventh Circuit’s caselaw, which deemed these orders appealable via the collateral-order doctrine. Judge Easterbrook concurred to express doubt in this caselaw and suggest that the issue—one on which the courts have split—should be resolved by the Supreme Court.
A divided Tenth Circuit held that the Bivens question is not independently appealable via the collateral-order doctrine; it must be part of a qualified-immunity appeal.
May 9, 2024
The federal government appears to be on a mission to get immediate appeals for orders recognizing a Bivens remedy. So far, those efforts have been unsuccessful. Two courts of appeals—the Third and the Sixth Circuits—have rejected these pure Bivens appeals.
In Mohamed v. Jones, the Tenth Circuit became the third. Like the Third and Sixth Circuits before it, the Tenth Circuit recognized that the Bivens question does not exist to shield federal officials from the burdens of litigation. That’s qualified immunity’s job. The separation-of-powers concerns that Bivens implicates also do not warrant an immediate appeal. And government defendants can easily secure review of the Bivens issue via an appeal from the denial of qualified immunity.
Mohamed is not the last we’ll see of this issue. There are at least two more pending cases in which the federal government is trying to appeal the Bivens question. And the Tenth Circuit’s decision came with a dissent. I will not be surprised when the government seeks rehearing en banc or, more likely, cert.