The Month in Federal Appellate Jurisdiction: February 2025

Last month saw another rejection of pure Bivens appeals, an analysis of Perlman appeals in the grand-jury context, and a ruling on mandatory stays during a remand appeal. Plus an odd sovereign-immunity appeal, appeals without the express resolution of all claims, and much more.

• One More Rejection of Pure Bivens Appeals
• Perlman Appeals in the Grand Jury Context
• Mandatory Stays & Remand Appeals
• Overlooked & Effectively Resolved Claims in the Fourth Circuit
• A Sovereign-Immunity Appeal Without a Denial—or Even Request for—Sovereign Immunity
• A Fifth Circuit Split on Institutional-Reform Appeals
• Some Bankruptcy Appeals
• The Month’s Improper Qualified-Immunity Appeals
• Quick Notes

One More Rejection of Pure Bivens Appeals

In Fleming v. United States, the Eleventh Circuit became the fifth court of appeals to reject pure Bivens appeals. The court held that federal officials cannot immediately appeal the Bivens question without also appealing the denial of qualified immunity. Unlike some of the prior decisions, this one was unanimous. And it puts the government’s record at 0-5 on this issue.

Fleming provides a really nice overview of why the Bivens question should not be immediately appealable. The decision also offers some great discussion of the collateral-order doctrine’s third requirement—i.e., that an order be effectively unreviewable in an appeal after a final judgment. The Eleventh Circuit explained that this implicates both importance and urgency. In the court’s words, “[i]nterlocutory appeals are not for issues that are merely important; they are for issues that are important, now.”

Read more: One More Rejection of Pure Bivens Appeals.

Fleming v. United States, 2025 WL 369221 (11th Cir. Feb. 3, 2025), available at the Eleventh Circuit and Westlaw

Perlman Appeals in the Grand Jury Context

In In re Grand Jury Subpoeans Dated Sep. 13, 2023, the Second Circuit held that the target of a grand jury investigation could appeal an order directing the target’s attorneys to disclose documents over a claim of attorney-client privilege. The order was appealable via the Perlman doctrine, which generally allows privilege claimants to appeal from discovery orders directed at third parties. And the Supreme Court’s 2009 decision in Mohawk Industries, Inc. v. Carpenter did not affect Perlman appeals in the context of grand jury proceedings.

Read more: Perlman Appeals in the Grand Jury Context.

In re Grand Jury Subpoeans Dated Sep. 13, 2023, 2025 WL 428359 (2d Cir. Feb. 7, 2025), available at CourtListener and Westlaw

Mandatory Stays & Remand Appeals

In City of Martinsville v. Express Scripts, Inc., a divided Fourth Circuit held that a court must stay proceedings—and not process a remand order—if the defendant appeals before the district court can send the remand order to the state court. The majority thought that the rule of Griggs v. Provident Consumer Discount Co.—particularly as the Supreme Court recently explained that rule in Coinbase, Inc. v. Bielski—required the district court to refrain from acting once the appeal was filed. Judge Wynn dissented, arguing that the majority was reading too much into Coinage.

Read more: Mandatory Stays & Remand Appeals.

City of Martinsville v. Express Scripts, Inc., 2025 WL 441758 (4th Cir. Feb. 10, 2025), available at the Fourth Circuit and Westlaw

Overlooked & Effectively Resolved Claims in the Fourth Circuit

Sometimes a district court doesn’t resolve all the claims in an action. The district court might overlook one of a plaintiff’s many claims. Or the district court might forget about counterclaims or crossclaims. Regardless of what happened, the district court has explicitly resolved only part of an action. If the district court thereafter enters judgment and closes the case, is there a final, appealable decision under 28 U.S.C. § 1291?

Courts generally hold that the failure to resolve all claims means there is no final decision. But sometimes a court of appeals will say that the district court effectively (though not expressly) resolved all the claims, making its decision final.

There is, however, a third way: so long as the district court says it is finished with a case, a final decision exists. Granted, this might mean that some claims were not expressly resolved. But that’s a problem with the judgment, and it’s a problem that the parties can challenge on appeal.

Some recent decisions from the Fourth Circuit illustrate the various approaches to this issue.

Read more: Overlooked & Effectively Resolved Claims in the Fourth Circuit

Estate of Cunningham v. Mayor and City Council of Baltimore, 2025 WL 409790 (4th Cir. Feb. 6, 2025), available at the Fourth Circuit and Westlaw

FX Aviation Capital LLC v. Guerrero, 2025 WL 521303 (4th Cir. Feb. 18, 2025), available at the Fourth Circuit and Westlaw

A Sovereign-Immunity Appeal Without a Denial—or Even Request for—Sovereign Immunity

In Martinez v. Texas Department of Public Safety, the Fifth Circuit allowed a governmental defendant to take a sovereign-immunity appeal despite the defendant’s not having asked for immunity.

The case involved claims against the Texas Department of Public Safety, and the Department pleaded a sovereign-immunity defense in its answer. The Department later moved for summary judgment. But that motion did not invoke sovereign immunity. When the district court only partially granted that motion, the Department appealed. And in that appeal, the Department argued sovereign immunity.

The Fifth Circuit said that it had jurisdiction over the appeal, as denials of sovereign immunity are immediately appealable. In a footnote, the court recognized that the defendant had not actually sought—and the district court had not denied—sovereign immunity. But the Fifth Circuit thought that it still had appellate jurisdiction because sovereign-immunity can be invoked for the first time on appeal.

This decision doesn’t make sense to me. Denials of sovereign immunity are appealable via the collateral-order doctrine. So there must be an order denying sovereign immunity—or at least an effective denial of that immunity—for the collateral-order doctrine to apply. And even if sovereign immunity can be raised for the first time on appeal, that rule speaks to preservation of an issue, not appellate jurisdiction.

Perhaps the Martinez court was just taking a shortcut; had it dismissed the appeal, the Department likely would have sought immunity in the district court and, if unsuccessful, appealed. But the case should not be read as creating a right to immediately appeal to argue sovereign immunity without first seeking immunity in the district court.

Martinez v. Texas Department of Public Safety, 2025 WL 415100 (5th Cir. Feb. 6, 2025), available at the Fifth Circuit and Westlaw

A Fifth Circuit Split on Institutional-Reform Appeals

In Parker v. Hooper, the Fifth Circuit split over whether an order in an institutional-reform case was final under 28 U.S.C. § 1291 or an appealable injunction under 28 U.S.C. § 1292(a)(1).

The majority held that the order was neither. As for finality, the order did not show that the district court was done with the action. The order required only the appointment of special masters to create a remedial plan, which the district court planned to review before determining specific remedies. And the order did not impose any obligations on the defendants that would amount to an injunction. The defendants had only to propose names of potential special masters, a case-management order that had none of the hallmarks of injunctive relief. In short, the district court was not yet finished determining—much less ordering—the injunctive remedies in the action.

Judge Jones dissented. She thought that the district court’s order—which said that it was entering a “judgment” and contained details on remedies—showed that the district court was finished with the substance of the litigation. And she argued that remedial details were not necessary for the order to amount to an interlocutory injunction under Fifth Circuit precedent.

Parker v. Hooper, 2025 WL 473408 (5th Cir. Feb. 12, 2025), available at the Fifth Circuit and Westlaw

Some Bankruptcy Appeals

In LeClair v. Tavenner, the Fourth Circuit held that a bankruptcy court’s interpretation of a debtor’s operating agreement was a final, appealable decision. The appeal stemmed from the bankruptcy of a law firm, which had an operating agreement that governed the firm members’ ability to withdraw funds from the firm. The bankruptcy court interpreted this agreement to bar withdraws after the firm created a dissolution committee. The Fourth Circuit held (without much explanation) that the order conclusively interpreting the operating agreement resolved a discrete dispute within the bankruptcy and was therefore final. The district court’s order largely affirming the bankruptcy court was final for the same reason. And the district court’s requiring slight modifications to the bankruptcy court’s order did not change things, as the changes were ministerial.

And in In re Elebute, the Fifth Circuit held that an order reopening bankruptcy proceedings is not appealable. The reopening order did not resolve a distinct proceeding in bankruptcy. It was instead “only a preliminary step” towards the resolution of the bankruptcy proceeding. Moreover, the reopening order did not merge into the ultimate dismissal of the debtor’s case, as the dismissal was due to a failure to prosecute. And the merger rule normally doesn’t apply when an action is dismissed due to a failure to prosecute.

LeClair v. Tavenner, 2025 WL 422399 (4th Cir. Feb. 7, 2025), available at the Fourth Circuit and Westlaw

In re Elebute, 2025 WL 429584 (5th Cir. Feb. 7, 2025), available at the Fifth Circuit and Westlaw

The Month’s Improper Qualified-Immunity Appeals

Here are last month’s improper, fact-based qualified-immunity appeals:

• Howard v. Collins, 2025 WL 429916 (6th Cir. Feb. 7, 2025), available at the Sixth Circuit and Westlaw
• Smith v. Jennings, 2025 WL 517816 (4th Cir. Feb. 18, 2025), available at the Fourth Circuit and Westlaw
• Hulon v. City of Lansing, 2025 WL 554201 (6th Cir. Feb. 19, 2025), available at the Sixth Circuit and Westlaw
• Morales v. Ladner, 2025 WL 586829 (5th Cir. Feb. 24, 2025), available at the Fifth Circuit and Westlaw
• Beathard v. Lyons, 2025 WL 632975 (7th Cir. Feb. 27, 2025), available at the Seventh Circuit and Westlaw
• Singh v. Jenal, 2025 WL 655080 (9th Cir. Feb. 28, 2025), available at the Ninth Circuit and Westlaw

Quick Notes

In Waetzig v. Halliburton Energy Services, Inc., the Supreme Court held that an action voluntarily dismissal under Federal Rule of Civil Procedure 41(a) was a “final proceeding” for purposes of Federal Rule of Civil Procedure 60(b). In the course of doing so, the Court explained that the meaning of “final” is Rule 60(b) is not the same as “final” in the context of appellate jurisdiction.s

Waetzig v. Halliburton Energy Services, Inc., 2025 WL 608110 (Feb. 26, 2025), available at the Supreme Court and Westlaw

In United States ex rel. Doe v. Planned Parenthood Federation of America, Inc., the Fifth Circuit held that a party could immediately appeal from the denial of an attorney-immunity defense via the collateral-order doctrine.

United States ex rel. Doe v. Planned Parenthood Federation of America, Inc., 2025 WL 618102 (5th Cir. Feb. 26, 2025), available at the Fifth Circuit and Westlaw

In Virtus Pharmaceuticals, LLC v. Woodfield Distribution, LLC, the Eleventh Circuit dismissed an appeal because the district court had erred in entering a partial judgment under Federal Rule of Civil Procedure 54(b). The Eleventh Circuit noted that the failure to expressly say that there was “no just reason for delay” was not fatal—district courts don’t have to use those magic words. The court of appeals could infer that the district court thought as much from its order entering the partial judgment. But the district court in Virtus Pharmaceuticals abused its discretion in concluding that there was no just reason for delay. The case was not unusual, the appealed claims were not separate from those still pending in the district court, and no “special circumstances” warranted an immediate appeal.

Virtus Pharmaceuticals, LLC v. Woodfield Distribution, LLC, 2025 WL 548247 (11th Cir. Feb. 19, 2025), available at the Eleventh Circuit and Westlaw

Compare Virtus Pharmaceuticals with Chapman v. Dunn, in which the Eleventh Circuit determined that a district court’s reasons for entering a Rule 54(b) partial judgment were both obvious and valid. The district court did not explain its Rule 54(b) decision. But the court had resolved all claims except those against one defendant. And the action against that defendant needed to be stayed due to its filing for bankruptcy. Given the uncertainty of when that bankruptcy would be resolved, there was good reason to allow an appeal of the resolved claims. There was also no overlap in the resolved and unresolved claims.

Chapman v. Dunn, 2025 WL 599126 (11th Cir. Feb. 25, 2025), available at the Eleventh Circuit and Westlaw