The Month in Federal Appellate Jurisdiction: January 2025

Last month produced decisions involving a variety of appellate-jurisdiction issues. The Fifth Circuit decertified a § 1292(b) appeal. Judge Pillard of the D.C. Circuit explained that appellate “standing” does not require re-establishing standing in the court of appeals. The Sixth Circuit said that qualified immunity and an action’s merits are intertwined, which suggests (perhaps unintentionally) that denials of qualified immunity should not be immediately appealable via the collateral-order doctrine. And the Fifth Circuit allowed a municipal defendant to appeal a denial of immunity despite the district court also ordering arbitration.

On top of that, the Supreme Court granted cert to address whether a second notice of appeal is required after a district court reopens the time to appeal. And a new cert petition asks if the denial of derivative sovereign immunity is immediately appealable.

Plus abstention appeals in bankruptcy, requiring would-be intervenors to appeal, the need to attach judgments in bankruptcy appeals, and much more.

• Cert Grant on Post-Reopening Notices of Appeal
• Decertifying a Certified Appeal Under § 1292(b)
• The Misnomer of Appellate “Standing”
• Qualified-Immunity Appeals & the Merits
• Arbitration, Immunity & the Collateral-Order Doctrine
• The First Circuit on the Solicitor General’s Authorization of Government Appeals
• Abstention Appeals in Bankruptcy Cases
• Issues with Injunctions & Intervenors
• Failure to Attach Judgments in Bankruptcy Appeals
• New Cert Petition on Derivative Sovereign Immunity Appeals
• The Month’s Improper Qualified-Immunity Appeals
• Quick Notes

Cert Grant on Post-Reopening Notices of Appeal

Disclosure: I filed an amicus brief in the Fourth Circuit in support of rehearing its decision in this case and discussed the cert petition with the petitioner’s counsel.

The Supreme Court granted certiorari in Parrish v. United States. The case asks if a would-be appellant must file a second notice of appeal after a court treats the first notice as a motion to reopen the time to appeal under Federal Rule of Appellate Procedure 4(a)(6).

Read more: Cert Grant on Post-Reopening Notices of Appeal

Decertifying a Certified Appeal Under § 1292(b)

In Silverthorne Seismic, L.L.C. v. Sterling Seismic Services, Ltd., a majority of the Fifth Circuit held that a motions panel had erred in permitting a certified appeal under 28 U.S.C. § 1292(b). The district court had certified for an immediate appeal a decision on how the plaintiffs could prove reasonable-royalty damages in a trade-secret case. The majority thought that no immediate guidance was necessary on this damages issue, which—if the defendants prevailed at the pending trial—would never arise. And an immediate appeal would delay—not accelerate—the resolution of the action. Judge Higginson dissented, contending that the majority had read § 1292(b) too strictly and immediate appellate review of this damages issue was warranted.

Like many courts, the Fifth Circuit treated § 1292(b)’s criteria—a substantial ground for difference of opinion, a controlling question of law, and material advancement of the litigation—as prerequisites to an appeal. The order in Silverthorne Seismic failed two of those requirements and was thus ineligible for certification.

But I doubt that courts should treat § 1292(b) as imposing eligibility requirements that must be satisfied in every case. The criteria should instead serve as guidelines for the exercise of discretion. That is, § 1292(b)’s criteria should not determine whether a court can hear an interlocutory appeal. They should instead guide the decision of whether that court should hear the appeal.

Read more: Decertifying a Certified Appeal Under § 1292(b).

Silverthorne Seismic, L.L.C. v. Sterling Seismic Services, Ltd., 2025 WL 25413 (5th Cir. Jan. 3, 2025), available at the Fifth Circuit and Westlaw

The Misnomer of Appellate “Standing”

Courts sometimes suggest that would-be appellants must establish appellate standing by showing that the appealed decision injured the would-be appellant. When the appealing party cannot show this injury, these courts think that they have lost Article III jurisdiction.

But as a recent opinion from the D.C. Circuit’s Judge Pillard explained, that’s not quite right. Judge Pillard concurred in the D.C. Circuit’s refusal to reconsider the panel decision in Lewis v. Becerra. And Judge Pillard used that opinion to address the panel’s discussion of standing.

Read more: The Misnomer of Appellate “Standing”.

Lewis v. Becerra, 2025 WL 37164 (D.C. Cir. Jan. 7, 2025), available at the D.C. Circuit and Westlaw

Qualified-Immunity Appeals & the Merits

The Sixth Circuit all but acknowledged that qualified immunity is not separable from an action’s merits. And such separation is necessary for a collateral-order appeal.

In New Albany Main Street Properties v. Watco Companies, LLC, the Sixth Circuit held that it could not review a decision granting leave to amend as part of a qualified-immunity appeal. The leave-to-amend decision was not itself immediately appealable. Nor could it tag along with the denial of immunity (which technically involved qualified immunity under Kentucky law).

There is nothing all that remarkable in this outcome (though it’s always refreshing to see an appellate court decline to expand the scope or availability of qualified-immunity appeals). What’s interesting about New Albany is the court’s discussion of the connection between qualified immunity and an action’s merits.

Read more: Qualified-Immunity Appeals & the Merits.

New Albany Main Street Properties v. Watco Companies, LLC, 2025 WL 88943 (6th Cir. Jan. 14, 2025), available at the Sixth Circuit and Westlaw

Arbitration, Immunity & the Collateral-Order Doctrine

In Ashley v. Clay County, the Fifth Circuit held that a municipal defendant could appeal a district court’s refusal to resolve an immunity defense despite the district court’s ordering arbitration.

Read more: Arbitration, Immunity & the Collateral-Order Doctrine.

Ashley v. Clay County, 2025 WL 64013 (5th Cir. Jan. 10, 2025), available at the Fifth Circuit and Westlaw

The First Circuit on the Solicitor General’s Authorization of Government Appeals

In Massachusetts Lobstermen’s Association, Inc. v. Menashes, the First Circuit held that the Solicitor General’s late authorization of a government appeal does not deprive the court of appellate jurisdiction.

The Solicitor General determines whether and to what extent the government will appeal. But sometimes the federal government will file a notice of appeal before the Solicitor General approves of the appeal. This is done to protect the government’s right to appeal. The government normally has 60 days to appeal. But sometimes the Solicitor General needs more than those 60 days to decide whether to appeal. In those cases, the government might file a protective notice of appeal pending the Solicitor General’s decision.

That’s what happened in Massachusetts Lobstermen’s Association. And the First Circuit joined three other courts of appeals in holding that a delayed authorization does not affect the timeliness of the government’s appeal. To be sure, the Solicitor General must authorize a government appeal. But the filing of a notice of appeal and the appeal itself are different:

The filing of a notice of appeal is a procedural step that both invokes an appeals court’s jurisdiction and preserves a party’s right to seek appellate review of an adverse judgment. It does not, however, obligate the filing party to pursue the appeal to judgment (or even to briefing) or otherwise constitute “the appeal” ….

Massachusetts Lobstermen’s Association, Inc. v. Menashes, 2025 WL 341699 (1st Cir. Jan. 30, 2025), available at the First Circuit and Westlaw

Abstention Appeals in Bankruptcy Cases

In In re Ellingsworth Residential Community Association, Inc., the Eleventh Circuit held a district court had appellate jurisdiction to review a bankruptcy court’s abstention order.

Bankruptcy actions can involve two kinds of abstention. Bankruptcy courts generally have discretion to abstain from hearing a particular proceeding. But a statute (8 U.S.C. § 1334(c)(2)) requires that bankruptcy courts abstain from resolving certain disputes.

The Eleventh Circuit held that orders denying mandatory abstention under § 1334(c)(2) are immediately appealable:

Like stay-relief motions, orders denying mandatory abstention determine whether a party can pursue her claims in a forum outside of bankruptcy court. And when a court denies a request for mandatory abstention, it definitively closes off the possibility of litigating the claim in state court, forcing the party to remain within the bankruptcy system.

The denial of mandatory abstention thus resolves a distinct proceeding in bankruptcy. And the resolution of a distinct proceeding in bankruptcy is appealable.

In re Ellingsworth Residential Community Association, Inc., 2025 WL 78887 (11th Cir. Jan. 13, 2025), available at the Eleventh Circuit and Westlaw

Issues with Injunctions & Intervenors

In Montana Wildlife Federation v. Haaland, the Ninth Circuit wrestled with whether orders were appealable injunctions and whether intervenors had timely appealed. It also addressed a request to extend pendent appellate jurisdiction.

Simplifying more than a bit, the case involved environmental organizations’ challenges to oil-and-gas leases sold by the Bureau of Land Management. The Ninth Circuit first determined that a district court order vacating some leases was not an appealable injunction under 28 U.S.C. § 1292(a)(1). Although the district court declared the Bureau’s action unlawful, the court did not require any action from the Bureau. The Ninth Circuit contrasted this with another order that vacated certain lease sales. That order required additional action from the government, namely the return of the sale proceeds.

The Ninth Circuit went on to address the timeliness of two intervenors’ notices of appeal. The Ninth Circuit holds that prospective intervenors must file a notice of appeal within the normal appeal deadline (in Montana Wildlife, 60 days), even if their motions to intervene are still pending at that time. Only one of the would-be intervenors in Montana Wildlife filed a notice of appeal within that time. The other did not, nor did it seek an extension of the deadline (and the court would not treat the motion to intervene as an extension request).

Finally, the Ninth Circuit refused to extend pendent appellate jurisdiction to an order refusing to transfer the action. That order was not intertwined with, nor necessary to effectively review, the appealed preliminary injunction.

Montana Wildlife Federation v. Haaland, 2025 WL 225388 (9th Cir. Jan. 17, 2025), available at the Ninth Circuit and Westlaw

Failure to Attach Judgments in Bankruptcy Appeals

In In re Serta Simmons Bedding, L.L.C., the Fifth Circuit held that the notice of a bankruptcy appeal was valid despite not attaching the judgment.

Federal Rule of Bankruptcy 8003(a)(3)(B) requires that a notice of appeal (among other things) “be accompanied by the judgment—or the appealable order or decree—from which the appeal is taken.” (The appeal in Serta Simmons was technically a certified appeal under Federal Rule of Bankruptcy 8006(a), but that rule requires a notice that complies with Rule 8003.) The appellants in Serta Simmons did not attach the appealed judgment to their notice. The appellees argued that this rendered the notice invalid.

The Fifth Circuit disagreed. For one thing, the judgment-attachment requirement comes from a rule—not a statute—and therefore did not affect appellate jurisdiction. For another, Rule 8003 also says that “failure to take any step other than the timely filing of a notice of appeal does not affect the appeal’s validity, but is ground only for the [reviewing court] to act as it considers appropriate, including dismissing the appeal.” And the notice of appeal in Serta Simmons did everything else it needed to. It designated the docket number, docket entry, and date of the appealed judgment. No one was confused, and the appeal could proceed.

In re Serta Simmons Bedding, L.L.C., 2024 WL 5250365 (5th Cir. Jan. 21, 2025), available at the Fifth Circuit and Westlaw

New Cert Petition on Derivative Sovereign Immunity Appeals

A new cert petition asks whether the denial of derivative sovereign immunity is immediately appealable via the collateral-order doctrine.

Read more: New Cert Petition on Derivative Sovereign Immunity Appeals.

Petition for Writ of Certiorari, GEO Group, Inc. v. Menocal, (Jan. 13, 2025), available at the Supreme Court and Westlaw

The Month’s Improper Qualified-Immunity Appeals

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

• Fallen v. McEnroe, 2025 WL 32816 (3d Cir. Jan. 6, 2025), available at the Third Circuit and Westlaw
• Fagon v. Kiely, 2025 WL 88418 (2d Cir. Jan. 14, 2025), available at CourtListener and Westlaw
• Loynachan v. Smiley, 2025 WL 219115 (9th Cir. Jan. 16, 2025), available at the Ninth Circuit and Westlaw
• Brown v. Burmaster, 2025 WL 227785 (5th Cir. Jan. 17, 2025), available at the Fifth Circuit and Westlaw
• Gillman v. City of Troy, 2025 WL 262331 (6th Cir. Jan. 22, 2025), available at the Sixth Circuit and Westlaw

There were also two cases in which dissenting judges argued that factual disputes required dismissing a qualified-immunity appeal. One was Judge Lee in the Seventh Circuit’s decision in Manery v. Lee. The other was Chief Judge Elrod in the Fifth Circuit decision Bailey v. Ramos.

Manery v. Lee, 2025 WL 40282 (7th Cir. Jan. 7, 2025), available at the Seventh Circuit and Westlaw

Bailey v. Ramos, 2025 WL 66320 (5th Cir. Jan. 10, 2025), available at the Fifth Circuit and Westlaw

Quick Notes

In Chemical Solvents, Inc. v. Greenwich Insurance Co., the Sixth Circuit dismissed an attempted manufactured appeal because the unresolved claims were dismissed without prejudice.

Chemical Solvents, Inc. v. Greenwich Insurance Co., 2025 WL 40943 (6th Cir. Jan. 7, 2025), available at the Sixth Circuit and Westlaw

In United States v. Ali, the Eleventh Circuit said that it lacked jurisdiction under 28 U.S.C. § 1292(a)(1) to review a struck motion for injunctive relief. The court acknowledged that refusal to rule on such a motion can amount to an appealable denial of injunctive relief. But a struck motion is neither denied nor ignored—it ceases to exist.

United States v. Ali, 2025 WL 327379 (11th Cir. Jan. 29, 2025), available at the Eleventh Circuit and Westlaw

And in United States v. Shade, the Fourth Circuit said it could review a conviction and sentence despite an unresolved motion to seal. Although “the presence of the collateral pending motion to seal meant there was something left for the district court to do in a literal sense, the merits of the conviction and sentence were settled, so the judgment was ripe for review.” (Cleaned up.)

United States v. Shade, 2025 WL 325754 (4th Cir. Jan. 29, 2025), available at the Fourth Circuit and Westlaw