The Second Circuit assumed that it had jurisdiction over an interlocutory appeal and held that the district court lacked subject-matter jurisdiction.
March 7, 2023
In Solomon v. St. Joseph Hospital, the Second Circuit skipped over appellate-jurisdiction issues to address the district court’s subject-matter jurisdiction. On its face, the opinion suggests that litigants can take interlocutory appeals to challenge federal subject-matter jurisdiction. This would be a massive—and likely inadvertent—expansion of interlocutory appeals.
The First Circuit explained that it can review the denial of a motion to dismiss when the only ground for dismissal was to compel arbitration.
March 4, 2023
In Fraga v. Premium Retail Services, Inc., the First Circuit reviewed what was nominally the denial of a motion to dismiss, as that motion effectively sought to compel arbitration.
The Ninth Circuit held that the administrative-remand rule—which generally bars appeals from orders remanding a matter to an agency—doesn’t apply to non-merits vacaturs of regulations.
February 22, 2023
In In re Clean Water Act Rulemaking, the Ninth Circuit held that it had jurisdiction to review an order vacating a regulation and remanding the dispute to an agency, as the district court had never deemed the regulation unlawful. This is an interesting twist on the administrative-remand rule. That rule normally bars appeals from orders remanding a dispute to an administrative agency. The Ninth Circuit said that this general rule applied only to remands after the district court resolved a dispute on the merits.
The Eleventh Circuit held that a Rule 41(a)(1)(A) dismissal—which purported to dismiss all unresolved claims—was ineffective and thus did not produce a final, appealable decision.
February 20, 2023
In In re Esteva, the Eleventh Circuit dismissed an appeal after concluding that a Rule 41(a)(1)(A) voluntary dismissal was ineffective. The stipulated dismissal purported to dismiss all unresolved claims. But according to the Eleventh Circuit, that’s not allowed—Rule 41(a)(1)(A) permits the voluntary dismissal of only entire actions, not individual claims. With the voluntary dismissal ineffective, the unresolved claims were still pending in the district court.
Most (if not all) courts of appeals hold that litigants cannot dismiss individual claims via Rule 41(a)(1)(A) dismissals. But I’m not so sure about that reading of the rule.
The Third Circuit split on whether federal officials can appeal Bivens issues without appealing from the denial of qualified immunity.
February 16, 2023
In Graber v. Doe II, a panel of the Third Circuit split on whether federal officials could immediately appeal the Bivens question without a qualified-immunity appeal. It’s the second decision in recent memory to reject a pure Bivens appeal. And this time, at least one judge was willing to hold that the Bivens issue was immediately appealable via the collateral-order doctrine.
Following its earlier ruling on hardship determinations, the Sixth Circuit held that it can review “good moral character” determinations in cancellation-of-removal cases.
February 14, 2023
Since the Supreme Court’s 2020 decision in Guerrero-Lasprilla v. Barr, several courts of appeals have reexamined the scope of their jurisdiction in immigration appeals. Last week produced another example. In Hernandez v. Garland, the Sixth Circuit held that it could review “good moral character” determinations in immigration appeals, as those determinations involve a mixed question of law and fact.
The Ninth Circuit definitively held that the Bivens question is within the scope of qualified-immunity appeals, rejecting pre-Wilkie cases that said otherwise.
February 13, 2023
In Pettibone v. Russell, the Ninth Circuit categorically held that it could address the Bivens question as part of a qualified-immunity appeal. In the course of doing so, the court rejected its older cases holding to the contrary.
The Seventh Circuit explained the difference between conceding an issue for purposes of an appeal and waiving the issue outright.
February 9, 2023
In Bradley v. Village of University Park, the Seventh Circuit determined that defendants had waived an issue by conceding it in a prior appeal. In doing so, the court explained the difference between conceding an issue for purposes of an appeal and waiving the issue such that it could not be disputed on remand.
The Eleventh Circuit dismissed an appeal from a contempt order because the district court had not yet determined the sanction.
February 7, 2023
In In re Grand Jury Subpoena, the Eleventh Circuit explained that it could not review a contempt decision without a sanction.
A catalogue of failed efforts to get the Tenth Circuit to apply the recent amendments to Federal Rule of Appellate Procedure 3(c).
November 15, 2022
Several courts of appeals have limited the scope of an appeal to the orders designated in a notice of appeal. Recent amendments to Federal Rule of Appellate Procedure 3(c) were supposed to end that practice. These amendments became effective last December. Yet some courts have overlooked these changes, continuing to apply caselaw that the amendments abrogated.
When the Tenth Circuit did so in Dawson v. Archambeau, Sean Marotta and I decided to try and do something about it. We filed an amicus brief pointing out that the court had neglected to apply the new rule. The Tenth Circuit responded with a second opinion saying that the amended Rule 3(c) did not apply to notices filed before the amendments’ effective date. Sean and I disagreed with that conclusion. So we filed a second amicus brief, this time asking the court to sit en banc to address the retroactivity of the Rule 3(c) amendments.
Last week, the Tenth Circuit adhered to its conclusion that the notice of appeal limited the scope of the appeal to the designated order. The court said that even if the amended Rule 3(c) applied, the appealed order did not merge into a subsequent judgment to which Rule 3(c) would apply. This conclusion can’t possibly be correct. But it looks like the end of the road for this effort.