The Month in Federal Appellate Jurisdiction: August 2025
Last month saw a new circuit split on the deadline for appealing qualified-immunity denials. The Ninth Circuit held that the apeal clock starts with the entry of the order denying qualified immunity, not with any subsequent entry of a judgment. In doing so, the Ninth Circuit split with the Fifth, which has held that the separate-document requirement applies to appealable orders just as much as appealable judgments. (After all, an appealable order is a judgment under Rule 54(a).)
There were also decisions on preliminary-injunction appeals and remand appeals, as well as some fact-based qualified-immunity appeals.
- New Split on the Deadline for Appealing Qualified-Immunity Denials
- Some Questions About Appealing Injunctions
- Review of Remand Orders
- The Month’s Improper Qualified-Immunity Appeals
New Split on the Deadline for Appealing Qualified-Immunity Denials
In McNeil v. Gittere, the Ninth Circuit held that the appeal clock for a denial of qualified immunity starts running with the denial, not with any subsequent entry of a judgment.
The court relied on 28 U.S.C. § 2107(a), which requires that parties appeal “within thirty days after the entry of [a] judgment, order or decree.” The appealed order was the district court’s denial of qualified immunity. And that order was entered on the docket the same day it issued. So under § 2107(a)’s plain text, a notice of appeal was due within 30 days of that order.
The court rejected the defendants’ reliance on Federal Rule of Appellate Procedure 4(a)(7). That provision defines the entry of a judgment for purposes of the rule. And it states that this entry occurs when either (1) the district court sets out the judgment in a separate document or (2) 150 days pass from the appealed order.
Because there was no separate document in McNeil, the defendants argued that the appeal clock started 150 days after the denial of qualified immunity. Not so, said the Ninth Circuit. The rules cannot override statutes. So § 2107(a)’s requirement of an appeal within 30 days of an appealed order controlled over Rule 4(a)(7): “To the extent the Rules allow more time to appeal collateral orders with no corresponding separate document, the Rules conflict with the statute and are thus invalid.”
The court added that although there was some ambiguity as to when entry of a judgment occurred, there was no ambiguity as to the entry of an order. So Rule 4(a)(7) presumably still applies to appeals from final judgments.
Unmentioned in McNeil is that the decision splits from the Fifth Circuit, which held that Rule 4(a)(7) applies to qualified-immunity appeals.
McNeil v. Gittere, 2025 WL 2503127 (9th Cir. Sep. 2, 2025), available at the Ninth Circuit and Westlaw
Some Questions About Appealing Injunctions
As is becoming a trend of late, several courts addressed their jurisdiction over denials of preliminary injunctions and related orders.
In Vasquez Perdomo v. Noem, the Ninth Circuit held that a temporary restraining order was in effect an immediately appealable injunction. The temporary restraining order was issued after notice, briefing, and a hearing. And the order was to remain in effect more than 14 days.
In Las Vegas Sun, Inc. v. Adelson, the Ninth Circuit held that an order expressly refusing to dissolve an injunction is appealable under 28 U.S.C. § 1292(a)(1) without any analysis as to whether the order effectively denied an injunction.
And in Doe ex rel. Doe v. South Carolina, the Fourth Circuit held that it could review a district court’s decision to stay further proceedings as part of an appeal from the denial of a preliminary injunction. The court explained that the stay was inextricably intertwined with the injunction denial. Alternatively, the stay itself effectively denied a preliminary injunction.
Vasquez Perdomo v. Noem, 2025 WL 2181709 (9th Cir. Aug. 1, 2025), available at the Ninth Circuit and Westlaw
Las Vegas Sun, Inc. v. Adelson, 2025 WL 2203418 (9th Cir. Aug. 4, 2025), available at the Ninth Circuit and Westlaw
Doe ex rel. Doe v. South Carolina, 2025 WL 2375386 (4th Cir. Aug. 15, 2025), available at the Fourth Circuit and Westlaw
Review of Remand Orders
August also saw some decisions on remand appeals.
In Skyline Tower Painting, Inc. v. Goldberg, the Fouth Circuit held that 28 U.S.C. § 1447(d) does not bar appellate review of a remand ordered under the Class Action Fairness Act’s local-controversy exception. Secion 1447(d)’s general bar applies only to remands under § 1447(c)—those based on a lack of subject-matter jurisdiction or a defect in removal. A CAFA remand is not based on either of these. The court also held that 28 U.S.C. § 1453—which authorizes discretionary review of CAFA remand orders—is not the exclusive avenue for appellate review. That provision compliments 28 U.S.C. § 1291 by authorizing discretionary review of orders that otherwise might not be appealable under § 1291.
And in Renteria-Hinojosa v. Sunsweet Growers, Inc., the Ninth Circuit held that it could review a remand order that was based on the plaintiff’s failure to exhaust remedies. The district court dismissed the plaintiff’s only federal theory of relief for failure to exhaust and remanded the rest of the action—consisting of only state law theories of relief—to the state court. The Ninth Circuit explained that this remand was not jurisdictional—the district court could have retained the state claims via supplemental jurisdiction.
Skyline Tower Painting, Inc. v. Goldberg, 2025 WL 2177335 (4th Cir. Aug. 1, 2025), available at the Fourth Circuit and Westlaw
Renteria-Hinojosa v. Sunsweet Growers, Inc., 2025 WL 2351203 (9th Cir. Aug. 14, 2025), available at the Ninth Circuit and Westlaw
The Month’s Improper Qualified-Immunity Appeals
Here are last month’s improper, fact-based qualified-immunity appeals:
- Ellis v. Salt Lake City Corporation, 2025 WL 2213327 (10th Cir. Aug. 5, 2025), available at the Tenth Circuit and Westlaw
- Boone v. City of Elizabeth, 2025 WL 2255017 (3d Cir. Aug. 7, 2025), available at the Third Circuit and Westlaw
- Ellis v. Yasenchack, 2025 WL 2427724 (6th Cir. Aug. 22, 2025), available at the Sixth Circuit and Westlaw
- In Velasco Ortega v. Holloway, 2025 WL 2477160 (9th Cir. Aug. 28, 2025), available at the Ninth Circuit and Westlaw
A few additional notes.
First, in Ellis, the Tenth Circuit held that evidence-admissibility issues are not within the scope of qualified-immunity appeals. The court also rejected the defendants’ reliance on the blatant-contradiction exception.
Second, the Boone panel split over whether it could review the favorable-termination requirement of the plaintiff’s malicious-prosecution theory.
Third, In Krueger v. Phillips, the Tenth Circuit applied several exceptions to the general bar on reviewing evidence sufficiency. Because the district court omitted some material facts, the Tenth Circuit supplemented the district court’s account with its own review of the record. The Tenth Circuit rejected some of the district court’s factual assumptions under the blatant-contradiction exception. And the Tenth Circuit rejected others because the district court committed a legal error en route to making its assumptions—namely, the district court occasionally credited the defendants’ evidence over the plaintiff’s.
And in Norman v. Ingle, the Fifth Circuit applied that court’s video-evidence exception to the general bar on reviewing evidence sufficiency in qualified-immunity appeals.
Krueger v. Phillips, 2025 WL 2424209 (10th Cir. Aug. 22, 2025), available at the Tenth Circuit and Westlaw
Norman v. Ingle, 2025 WL 2371174 (5th Cir. Aug. 15, 2025), available at the Fifth Circuit and Westlaw
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More ContactRelated Posts
This month’s roundup features two decisions on litigants’ attempts to voluntarily dismiss some of their claims. In one, a defendant filed a written, pretrial notice that it abandoned one of its counterclaims. In another, the parties stipulated to a dismissal, but one defendant did not sign the stipulation. In both cases, the court deemed the […]
Continue reading....
September’s biggest development in federal appellate jurisdiction concerned appeals from denials of anti-SLAPP motions under California law. The Ninth Circuit overruled its longstanding rule that defendants can immediately appeal from these denials via the collateral-order doctrine. But only a week later, the Federal Circuit followed that now-overruled caselaw and heard an anti-SLAPP appeal. It will […]
Continue reading....
Last month saw the Ninth Circuit apply its rule that a minute order can count as a separate document for purposes of starting the appeal clock. The Sixth Circuit explained when it cannot review contract-formation issues in an arbitration appeal. And the Fourth Circuit declined to exercise pendent appellate jurisdiction over standing and ripeness issues […]
Continue reading....
An extended vacation and some pressing matters in cases prevented me from posting much last month. But that doesn’t mean July was uneventful. Courts addressed the propriety appeals from the rejection of various defenses, including state immunities and the litigation privilege. The Eleventh Circuit held that a parties can use Rule 41 to dismiss a […]
Continue reading....
Last month saw the last Supreme Court decision from this term on appellate jurisdiction. The Court held that a notice of appeal filed before the district court reopens the time to appeal relates forward to that reopening. In the courts of appeals, we saw decisions on automatic stays for remand appeals, the various ways to […]
Continue reading....Recent Posts
This month’s roundup features two decisions on litigants’ attempts to voluntarily dismiss some of their claims. In one, a defendant filed a written, pretrial notice that it abandoned one of its counterclaims. In another, the parties stipulated to a dismissal, but one defendant did not sign the stipulation. In both cases, the court deemed the […]
Continue reading....
In Gessele v. Jack in the Box Inc., the Ninth Circuit held that when a district court alters its judgment by granting a post-judgment motion, the time to appeal runs from the entry of an amended judgment. Unlike orders denying post-judgment motions, the appeal clock does not start with the order itself.
Continue reading....
In Simmons v. USI Insurance LLC, the Eleventh Circuit held that the purported abandonment of a counterclaim before trial was ineffective and thus precluded appellate jurisdiction. The counterclaim was the only theory of relief that had not been resolved at summary judgment or trial. And in a written notice before trial, the defendant had said […]
Continue reading....
September’s biggest development in federal appellate jurisdiction concerned appeals from denials of anti-SLAPP motions under California law. The Ninth Circuit overruled its longstanding rule that defendants can immediately appeal from these denials via the collateral-order doctrine. But only a week later, the Federal Circuit followed that now-overruled caselaw and heard an anti-SLAPP appeal. It will […]
Continue reading....
Last month saw the Ninth Circuit apply its rule that a minute order can count as a separate document for purposes of starting the appeal clock. The Sixth Circuit explained when it cannot review contract-formation issues in an arbitration appeal. And the Fourth Circuit declined to exercise pendent appellate jurisdiction over standing and ripeness issues […]
Continue reading....