Two rare opinions explaining decisions on discretionary appeals under § 1292(b) and Rule 23(f), appeals from post-judgment attachment orders, and more.
January 26, 2022
Last week saw two rare opinions on the discretionary appeals. The Ninth Circuit refused to hear a certified appeal under 28 U.S.C. § 1292(b) because the certified order did not include a question of law. And the Third Circuit accepted a Federal Rule of Civil Procedure 23(f) petition to appeal a class-certification decision, partly due to a perception that the district court judge was pressuring the defendants to settle. In another case, the Third Circuit explained its jurisdiction over post-judgment attachment orders. In the course of doing so, the court explored the precedential effect of old cases involving writs of error. Plus an appeal after a voluntary dismissal without prejudice in the Second Circuit, and an Eleventh Circuit decision acknowledging the changes wrought by recent amendments to Federal Rule of Appellate Procedure 3(c).
Derivative sovereign-immunity appeals, appealing the duty to defend, what counts as a Rule 59(e) motion, relating forward notices of appeal, the jurisdictionality of the cross-appeal deadline, and reviewing punitive-damages requests in a qualified-immunity appeal.
January 19, 2022
Last week, the Ninth Circuit held that defendants cannot use the collateral-order doctrine to immediately appeal from the denial of derivative sovereign immunity. The Eleventh Circuit concluded that a duty-to-defend order was an appealable injunction. The Sixth Circuit rejected an argument that a Rule 59(e) motion was not good enough to delay the start of the appeal clock. The Tenth Circuit related forward a premature notice of appeal. The Second Circuit excused the late filing of a cross-appeal, though it noted that not everyone agrees that the filing deadline is non-jurisdictional. And the Fifth Circuit refused to review the availability of punitive damages while hearing a qualified-immunity appeal.
Appeals involving manufactured finality in class actions, winding down a trust, Colorado River stays, the scope of qualified-immunity appeals, and more.
January 12, 2022
Last week produced several decisions of note. The most interesting to me was a divided motions panel decision from the Sixth Circuit. The majority refused to dismiss an appeal when the plaintiff asked the district court to grant summary judgment for the defendant. The case strikes me as odd, however, as the plaintiff apparently wants to appeal only an interlocutory class-certification decision—the plaintiff doesn’t seem to challenge its merits loss.
In other decisions, the Eleventh Circuit rejected several proffered grounds for appellate jurisdiction in a case that challenged an order involving the winding down of a trust. The Eighth Circuit split over whether a decision staying an action pending the resolution of related state court proceedings was a Colorado River stay that would warrant an immediate appeal. And several courts addressed their jurisdiction in appeals from the denial of qualified immunity. Plus effective notices of appeal, injunction appeals, and appeals from sealing orders.
Reviewing refusals to waive the deadline for reopening immigration proceedings, damages trials and § 1292(c)(2), the appeal timeline for denied writs of coram nobis, fact-based qualified-immunity appeals, and more.
January 6, 2022
I’m back from my annual holiday break with roundup covering the previous two weeks. There were a few decisions of note. The Third Circuit joined nearly every other circuit in holding that it cannot review a discretionary decision not to waive the Violence Against Women Act’s deadline for reopening immigration proceedings. The en banc Federal Circuit declined to reconsider whether a damages trial is an “accounting” for purposes of § 1292(c)(2). The Seventh Circuit held that Federal Rule of Civil Procedure 58’s provisions on deeming a judgment entered apply to the denial of a writ of coram nobis. That court also dismissed a qualified-immunity appeal insofar as the defendants challenged the factual basis for the immunity denial. Plus pendent appellate jurisdiction over a judicial-notice decision and the scope of remand appeals.
The final weekly roundup of 2021, featuring appeals from orders denying a judicial-proceedings privilege, the “matter of substantive law” exception to § 1447(d), and the preclusive effect of withdrawn immigration applications.
December 22, 2021
It’s the last roundup of the year. And it’s a short one. The Third Circuit dismissed an appeal from an order concluding that factual disputes precluded a decision on judicial-proceedings privilege. The defendant had framed the appeal as one from the denial of absolute immunity. But even if it was, unresolved fact issues prevented the order from being appealable. The Eleventh Circuit dismissed an appeal from a remand order, rejecting—and expressing some doubts about the existence of—the “matter of substantive law” exception to 28 U.S.C. § 1447(d). And the Second Circuit asked the Board of Immigration Appeals to specify the preclusive effect of an inadmissibility determination when a petitioner later withdraws an application for admission.
I’ll be back after the new year with the annual double-sized Winter Break edition to cover what happens over the break.
Remand appeals in bankruptcy, appeals by a prevailing party, injunction appeals without an order to do anything, starting the post-judgment-motion clock with a notice of appeal, designating forthcoming decisions in a notice of appeal, and more.
December 17, 2021
I’m a little late with this week’s roundup, but there were several cases worth discussing. The Seventh Circuit applied the two (separate but seemingly identical) restrictions on reviewing a bankruptcy court’s remand orders. The Sixth Circuit rejected a factual challenge to the denial of qualified immunity and dismissed an appeal from a prevailing defendant who was unhappy with some of the district court’s analysis. The Third Circuit explained that an order deeming a trust governed by ERISA was not an appealable injunction. The Eleventh Circuit held that when the district court does not set out its judgment in a separate document, the time for filing post-judgment motions begins to run once a party files a notice of appeal. That court also held that a notice of appeal designating forthcoming decisions on post-judgment motions was inadequate to appeal those subsequent decisions. Plus a new cert petition on appealing discovery orders in Chapter 15 bankruptcy proceedings, appealing orders refusing to dissolve an injunction, and the appealability of denied summary-judgment motions.
Struck post-judgment motions and the appeal deadline, fact-based qualified-immunity appeals, post-judgment appeals, partial-yet-final summary-judgment decisions, and more.
December 8, 2021
There’s lots to talk about from last week. The Fifth Circuit weighed in on the split over whether a struck post-judgment motion could reset the appeal clock. The Sixth Circuit again split on the extent to which it could separate “factual” and “legal” arguments in qualified-immunity appeals. Two other courts dealt with appeals that challenged the factual basis for immunity denials. The Fifth Circuit addressed its jurisdiction in post-judgment proceedings. And the Second Circuit explained how a partial summary-judgment decision could be a final decision. Plus decisions on reviewing § 1292(b) denials and unspecified costs.
Qualified-immunity appeals and Heck v. Humphrey, appealing stricken interpleader complaints, appealing attorney-appearance orders, and the deadline for intervention appeals in criminal cases.
December 2, 2021
It’s an extra-busy week, so this week’s roundup has to be quick.
More mandamus from the Federal Circuit, appealing unsealing orders via the collateral-order doctrine, and pendent appellate jurisdiction over the merits in a qualified-immunity appeal.
November 23, 2021
Last week was a big one for mandamus in the Federal Circuit. That court issued three writs of mandamus (and dismissed another as moot), all directed to denials of transfer motions by the same district court judge. That judge has recently seen a lot of mandamus petitions targeting his transfer decisions, and I’ve linked several blog posts below discussing these petitions.
In other decisions, the Eleventh Circuit held that it could immediately review unsealing orders via the collateral-order doctrine. That court had already held that orders granting motions to seal and denying motions to unseal were immediately appealable via the doctrine. The court extended the rationale of those decisions to unsealing orders. And the Sixth Circuit used pendent appellate jurisdiction to review the merits of a state law claim as part of a qualified-immunity appeal. The merits of that claim were “inextricably intertwined” with state law immunity, so the court could review both.
A Ninth Circuit decision on the scope of review over expedited removal orders.
November 17, 2021
Last week saw only one case of note.
In Guerrier v. Garland, the Ninth Circuit held that the Supreme Court’s decision in DHS v. Thuraissigiam abrogated the Ninth Circuit’s “colorable constitutional claim” exception to the limits on reviewing expedited removal orders.