Posts in category “Weekly Roundup”
Last week saw a trio of decisions on appeal deadlines. The Fifth Circuit appears to have held that the 30-day window for filing a notice of appeal in a civil case is not jurisdictional, which means that courts can excuse late notices. The Sixth Circuit addressed the effect of stricken post-judgment motions on the appeal deadline. And the Seventh Circuit held that a single filing could be both a motion to reopen the appeal window and a notice of appeal filed within that reopened window. In cert-stage developments, the United States supported a petition for cert on the appealability of government-contractor defenses. Plus decisions on appealing refusals to enforce consent decrees, dismissals due to Heck v. Humphrey, and municipal liability.
Last week saw a divided Third Circuit address when a district court decision is, practically speaking, an appealable injunction. The Third Circuit also issued two decisions holding that the scope of a qualified-immunity appeal includes prior denials of immunity. The Ninth Circuit explained why a request for attorneys’ fees does not stop the appeal clock (and cannot be re-characterized as a Rule 59 motion). And the Eleventh Circuit dismissed a remand appeal involving an erroneous certification of federal employment. Plus appeals from dismissals without prejudice, appealing a TRO, disputed facts in a qualified-immunity appeal, pendent appellate jurisdiction over a Monell claim, and direct appeals from a magistrate judge’s decision.
Last week saw a new split on whether the government can appeal the denial of its motion to dismiss a qui tam suit. The Eleventh Circuit held that a defendant could not appeal the denial of a renewed challenge to the plaintiff’s proceeding anonymously. Sitting en banc, that court also addressed its caselaw on the scope of certain immigration appeals. The Sixth Circuit held that an unspecified award of punitive damages precludes finality. The Ninth Circuit heard an appeal from a garnishment order entered in ongoing post-judgment proceedings. Plus another decision on the scope of immigration appeals, Rule 3(c)’s order-designation requirement for notices of appeal, appealing dismissals without prejudice, appealing administrative remands, an improper qualified-immunity appeal, and the effect on the appeal clock of non-substantive amendments to a judgment.
Last week saw the First Circuit join the list of courts with internally inconsistent law on when subsequent events save a premature notice of appeal. An Eleventh Circuit decision produced three separate opinions on the collateral-order doctrine’s application to appeals from the denial of state-action immunity. The D.C. Circuit held that overlap between resolved and unresolved claims made a Rule 54(b) appeal improper. Two courts addressed appeals from without-prejudice denials of intervention. And the Ninth Circuit heard an appeal from an order requiring a criminal defendant to repatriate millions of dollars for potential forfeiture, treating the order as an injunction. Plus a split decision from the Fifth Circuit on its exclusive jurisdiction to review SEC proceedings, which includes really interesting discussions about the adequacy of final-judgment appeals.
Lots of interesting appellate-jurisdiction decisions last week. The Third Circuit allowed what looked to be a pure interlocutory appeal of the Bivens question. The Ninth Circuit held that the government could not immediately appeal the denial of its motion to dismiss a qui tam suit, at least when the government had not intervened. The Tenth Circuit addressed its jurisdiction—normal and pendent—in an appeal from an administrative remand. Three other courts addressed pendent appellate jurisdiction—two in the context of municipal appeals alongside qualified-immunity appeals and a third in the context of unspecified attorneys’ fees. And the Sixth Circuit held that it could review whether a district court should have assumed more plaintiff-favorable facts in denying qualified immunity. Plus mandamus for a transfer decision and jurisdiction to review magistrate judge decisions.
Last week saw a slew of Ninth Circuit decisions of note. The court addressed appeals after some claims have been dismissed without prejudice, Perlman appeals, and cumulative finality. The Seventh Circuit also had its own cumulative-finality decision when a plaintiff appealed rather than amend its complaint. Several courts addressed the facts they should take as true for purposes of a qualified-immunity appeal. And the Eleventh Circuit declined to extend pendent appellate jurisdiction over a venue issue in an arbitration appeal.
Relatively brief roundup this week. A split Ninth Circuit held that it lacked jurisdiction to review an order directing class-wide arbitration when the defendant wanted individual arbitration. The Third Circuit applied the blatant-contradiction exception to review the genuineness of fact disputes in a qualified-immunity appeal. And the Seventh Circuit required an amended notice of appeal to challenge a post-judgment order refusing to unseal records. Plus more arbitration and qualified-immunity appeals and disclaiming the right to refile voluntarily dismissed claims.
Last week, the Eleventh Circuit addressed its appellate jurisdiction after some claims have been voluntarily dismissed without prejudice. The Fourth Circuit held that defendants can forfeit the Bivens question in an interlocutory qualified-immunity appeal. The Federal Circuit reviewed a non-final order from the Veterans Court. And the reply in support of cert was filed in a case that asks the Supreme Court to address the scope of remand appeals under 28 U.S.C. § 1447(d). Plus another appeal after a dismissal without prejudice, appealing post-judgment decisions, and the lack of finality despite a district court’s administratively closing a case.
Last week was eventful. The Tenth Circuit joined the Fourth and Ninth Circuits in holding that an exception to § 1447(d)’s bar on reviewing remand orders allowed review of only the expressly excepted grounds for removal. All three of those decisions could be on their way to the Supreme Court. In a case involving service of process via Twitter on a former head of state, the D.C. Circuit joined the Seventh Circuit (and disagreed with the long-standing caselaw of several other circuits) in holding that district courts cannot restart the time for seeking a § 1292(b) appeal by recertifying an order. The Fifth and Ninth Circuits each applied their peculiar rules for appealing when some claims have been dismissed without prejudice. The Fifth Circuit addressed a district court’s jurisdiction to accept an amended pleading when a notice of appeal has been filed. The Ninth Circuit tackled a remand appeal involving the required joinder of a non-diverse party. And the First Circuit reaffirmed its rule that defendants can appeal restitution orders before the district court specifies the amount of restitution. Plus an improper qualified-immunity appeal, the administrative-remand rule, appealing the denial of a motion to seal, and finality in bankruptcy.
Last week saw two decisions in which courts had to reject fact-based qualified-immunity appeals. A new cert petition asks if the government can use mandamus to take interlocutory appeals in criminal cases that are not otherwise authorized by statute. The Fifth Circuit addressed the appealability of decisions severing or transferring third-party admiralty claims. And the opposition to cert was filed in Baltimore’s climate-change litigation, which addresses the scope of remand appeals under 28 U.S.C. § 1447(d). Plus some decisions on appealing liability without a damages calculation, administrative appeals when the agency won’t decide a petition, and habeas exhaustion.
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