The Month in Federal Appellate Jurisdiction: October 2025

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 be interesting to see whether the Federal Circuit reconsiders its decision.

Beyond that, a divided Sixth Circuit held that a merits panel could not expand a certificate of appealability issued by a motions panel. And the Third Circuit used pendent appellate jurisdiction in a qualified-immunity appeal to review whether a plaintiff could sue a state legislator for violating the Telephone Consumer Protection Act. Plus decisions on the scope of foreign-sovereign-immunity appeals, a district court’s jurisdiction after a Rule 23(f) petition is filed, and more.

• No more anti-SLAPP appeals under California law in the Ninth Circuit…
• … but they are appealable in the Federal Circuit
• No expanding a motions panel’s certificate of appealability
• Reviewing the Availability of a Remedy in Qualified-Immunity Appeals
• Quick Notes

No more anti-SLAPP appeals under California law in the Ninth Circuit…

In Gopher Media LLC v. Melone, the en banc Ninth Circuit held that litigants cannot immediately appeal from the denial of anti-SLAPP motions under California law.

Simplifying a bit, several states have passed anti-SLAPP laws, which exist to protect defendants from litigation that has the purpose of effect of chilling First Amendment rights. The statutes normally permit defendants to file a special motion to strike, which normally requires a plaintiff to show some likelihood of success before the case can proceed. The Ninth Circuit has held that California’s anti-SLAPP law applies in federal court (more on this later). The Ninth Circuit also held in 2003’s Batzel v. Smith that denials of these anti-SLAPP motions were immediately appealable via the collateral-order doctrine.

Gopher identified two problems with Batzel’s hodling. First, denials of anti-SLAPP motions were not sufficiently separate from the merits. These motions require courts to address both whether the claim “arises from any act ‘in furtherance of the person’s right of petition or free speech,’ which necessarily involves reviewing the ‘content’ and ‘context’ of the factual allegations in a plaintiff’s complaint.” (Quoting the statute.) These motions also require an assessment of the probability that a plaintiff will succeed on the merits. Neither of these inquiries is an abstract issue of law. And both are likely to arise multiple times as an action proceeds. There was thus a risk of duplicative and piecemeal appeals.

Second, appellate courts can effectively review denials of anti-SLAPP motions in appeals after a final judgment. California’s anti-SLAPP law does not provide an immunity from the burdens and uncertainties of litigation. It instead is a defense to liability. And defenses to liability can be effectively reviewed after the end of district court proceedings.

The en banc court did not address whether California’s anti-SLAPP law applied in federal court—another question that has split the courts of appeals. Two separate opinions addressed this issue. So if one of these cases gets all the way to a final judgment, we might see another en banc case involving California’s anti-SLAPP law in the future.

Gopher Media LLC v. Melone, Error (9th Cir. Oct. 9, 2025), available at the Ninth Circuit and Westlaw

… but they are appealable in the Federal Circuit

Only a few days after Gopher media, the Federal Circuit held in IQE PLC v. Newport Fab, LLC that litigants can immediately appeal the denial of an anti-SLAPP motion under California law. The Federal Circuit did not mention Gopher Media. But the Federal Circuit applies its own law of appellate jurisdiction, not that of the circuit from which a case comes. And the Federal Circuit thought that “[t]he denial of an anti-SLAPP motion to strike under California law … appears to fit squarely within the collateral order exception to the final-judgment rule.”

It will be interesting to see if the plaintiff in IQE seeks reconsideration. It hasn’t as of this writing. But the Federal Circuit’s local rules set the deadline for rehearing motions at 30 days.

IQE PLC v. Newport Fab, LLC, 2025 WL 2922441 (Fed. Cir. Oct. 15, 2025), available at the Federal Circuit and Westlaw

No expanding a motions panel’s certificate of appealability

In Randolph v. Macauley, the Sixth Circuit held that a merits panel cannot expand a certificate of appealability beyond what a motions panel granted. In doing so, the Sixth Circuit split from the Third and Ninth Circuits.

The court gave several reasons for this limit on a merits panel’s power. One was was the lack of any procedures for such reconsideration in either the Antiterrorism and Effective Death Penalty Act or the Sixth Circuit’s local rules. Another was the law-of-the-case doctrine.

Judge Randolph wrote separately to argue that merits panels should be able to expand a certificate of appealability.

Randolph v. Macauley, 2025 WL 2962724 (6th Cir. Oct. 21, 2025), available at the Sixth Circuit and Westlaw

Reviewing the Availability of a Remedy in Qualified-Immunity Appeals

In Perrong v. Bradford, the Third Circuit reviewed whether plaintiffs can sue state actors for violating the Telephone Consumer Protection Act as part of a qualified-immunity appeal. The plaintiff had sued a state legislator for sending mass communications to constituents. The district court denied the legislator’s motion for summary judgment on qualified-immunity grounds, and the legislator appealed. The Third Circuit said that it could review whether the Act “clearly expresses a cause of action against a state actor,” as that inquiry was “logically antecedent to the question of sovereign immunity.” (Quotation marks omitted.) That made the issues sufficiently intertwined for the court to exercise pendent appellate jurisdiction.

Perrong v. Bradford, 2025 WL 2825982 (3d Cir. Oct. 6, 2025), available at the Third Circuit and Westlaw

Quick Notes

In Helmerich & Payne International Drilling Co. v. Venezuela, the D.C. Circuit reviewed personal-jurisdiction and act-of-state defenses in an appeal from the denial of foreign-sovereign immunity. The court noted that in sovereign-immunity appeals, it “routinely consider[s] pendent claims challenging refusals to dismiss for lack of personal jurisdiction.” And the act-of-state defense was “inextricably intertwined” with sovereign immunity, as it impacted the court’s analysis of the expropriation exception to sovereign immunity

Helmerich & Payne International Drilling Co. v. Venezuela, 2025 WL 2810976 (D.C. Cir. Oct. 3, 2025), available at the D.C. Circuit and Westlaw

In Nova Scotia Health Employees’ Pension Plan v. McDermott International, Inc., the FIfth Circuit explained that a petition to appeal under Federal Rule of Civil Procedure 23(f) does not deprive the district court of jurisdiction over a case. The district court instead loses jurisdiction if the court of appeals grants the petition.

Nova Scotia Health Employees’ Pension Plan v. McDermott International, Inc., 2025 WL 2814735 (5th Cir. Oct. 3, 2025), available at the Fifth Circuit and Westlaw

In Dukes v. Sheriff of Levy County, the Eleventh Circuit applied its both-questions exception to the normal jurisdictional limits on qualified-immunity appeals. That exception permits the court to review “both issues of evidentiary sufficiency and of law” when an appealing defendant raises both kinds of issues.

The exception is inconsistent with Johnson v. Jones, and the Eleventh Circuit should abrogate it.

Dukes v. Sheriff of Levy County, 2025 WL 2934717 (11th Cir. Oct. 16, 2025), available at the Eleventh Circuit and Westlaw

In Tudor v. Young, the Tenth Circuit held claimants in an interpleader action cannot immediately appeal the district court’s decision that the plaintiff had deposited sufficient funds to invoke subject-matter jurisdiction. The Tenth Circuit reasoned that the deposit issue did not implicate a “substantial public interest or particular value of a high order that warrants extending the collateral-order doctrine to the[] appeal.”

Tudor v. Young, 2025 WL 3025614 (10th Cir. Oct. 29, 2025), available at the Tenth Circuit and Westlaw

And in Blakesley v. Marcus, the First Circuit used hypothetical appellate jurisdiction to avoid deciding whether litigants could immediately appeal the denial of a special motion to strike under Massachusetts’ anti-SLAPP law. The court thought it unclear whether the denial was sufficiently separate from the merits to permit an appeal via the collateral-order doctrine. But rather than wade into this issue—one on which the courts of appeals have split—the First Circuit determined that it could avoid it. The First Circuit holds that it “may assume appellate jurisdiction when, as here, the case poses a difficult question of statutory jurisdiction and [its] decision on the merits will favor the party challenging our jurisdiction.” And that was the case in Blakesley.

Blakesley v. Marcus, 2025 WL 3042628 (1st Cir. Oct. 31, 2025), available at the First Circuit and Westlaw