Posts in category “Appellate Decisions”

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.…

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.…

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.…

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.…

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.…

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.…

The general, well-known, and riddled-with-exceptions rule is that a decision is not final until the district court has resolved all of the parties’ claims. So what should courts do when the district court overlooks a claim or theory of relief that one of the parties had pleaded? A handful of recent decisions have raised this question.…

In New York State Telecommunications Association v. James, the Second Circuit split over an attempt at manufacturing finality. The district court had granted a preliminary injunction after concluding that federal law preempted a New York state law. The parties then stipulated to entry of a final judgment. A majority of the Second Circuit determined that this preemption decision effectively resolved the action, meaning the state could appeal.…

In Coomer v. Make Your Life Epic LLC, the Tenth Circuit held that denials of anti-SLAPP motions under Colorado law are not immediately appealable via the collateral-order doctrine.

The court drew an interesting line between appeals involving primarily legal issues—which can warrant immediate appeal—and those involving primarily factual issues—which don’t.…

Disclosure: I filed an amicus brief in support of rehearing in this appeal.

In last summer’s Parrish v. United States, a divided Fourth Circuit panel held that when a notice of appeal is treated as a motion to reopen the appeal period under Federal Rule of Appellate Procedure 4(a)(6), the would-be appellant must file a second notice of appeal after that motion is granted.…