Bryan Lammon
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finaldecisions.org
Bryan Lammon
@finaldecisions.org
1K followers 460 following 200 posts
Lawyer & law professor focused on appellate jurisdiction. Founder of Final Decisions PLLC (finaldecisions.org).
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finaldecisions.org
One week after the 9th Cir. overrules its caselaw permitting immediate appeals of anti-SLAPP denials under California law, the Fed. Cir. held that those denials are immediately appealable. No mention of the 9th Cir.'s en banc decision.

#AppellateSky

www.cafc.uscourts.gov/opinions-ord...
Screenshot of a judicial opinion. The relevant text reads: We do not hold here that denials of anti-SLAPP motions to strike arising under any state's law are immediately appealable as a matter of right before this Court. Our holding today applies only, at this point, to California's anti-SLAPP statute. If we are presented with a case arising under another state's law, in determining whether we have appellate jurisdiction for a given case raising an issue regarding an anti-SLAPP motion to strike, we must evaluate the relevant state's anti-SLAPP statute at issue on appeal and evaluate how that tool has been exercised in practice to understand whether that given instance comports with the collateral-order exception to the final decision rule under Federal Circuit law.
October 16, 2025 at 1:01 PM
finaldecisions.org
Invoking the longstanding federal practice of cumulative finality—which often gives effect to premature notices of appeal—the Supreme Court held in Parrish that a premature notice of appeal related forward to the reopening of the appeal period.

#AppellateSky

www.supremecourt.gov/opinions/24p...
Screenshot of the first page of the Supreme Court's opinion in Parrish v. United States.
June 12, 2025 at 3:52 PM
finaldecisions.org
I think the dissent makes the all-too-common mistake of conflating "claims" and "theories of relief." (On this point, see St. Augustine School v. Underly, 78 F.4th 349 (7th Cir. 2023), screenshotted below.) Most of the time that mistake is harmless. But sometimes it matters.
Screenshot of a court opinion with the text: Since then, the case has been before numerous courts. In order to place the issues now before us in context, we need to go back to basics. We begin by recalling the distinction between a legal claim and a theory supporting relief (what the common law used to call a cause of action). A claim is the set of operative facts that produce an assertable right in court and create an entitlement to a remedy. A theory of relief is the vehicle for pursuing the claim; it may be based on any type of legal source, whether a constitution, statute, precedent, or administrative law. The specific theory dictates what the plaintiff needs to prove to prevail on a claim and what relief may be available. One lawsuit may raise multiple claims, and each claim may be supported by multiple theories.
April 16, 2025 at 3:31 PM
finaldecisions.org
Really interesting 3d Cir. split over what counts as a "claim" under Rule 54(b). The majority said the district court resolved a distinct theory of recovery but not a claim. The dissent argued that post-Twiqbal we define claims by their elements.

www2.ca3.uscourts.gov/opinarch/241...
Screenshot of a court opinion with highlighted text: That is because their warranty counts are an alternative theory of recovery to their fraud counts rather than separate “claims” for purposes of Rule 54(b). So the District Court’s Rule 54(b) judgment as to the fraud counts did not finally resolve a “claim.” Screenshot of a court opinion with highlighted text: Those decisions did more than articulate plausibility as the standard for evaluating the sufficiency of allegations – they also structured the inquiry around the elements needed to prove a claim.... Applying that principle here, the fraud-based counts in the amended complaint do not have the same elements as the breach-of-warranty counts in that pleading.
April 16, 2025 at 3:31 PM
finaldecisions.org
The 5th Cir. said that a government entity could appeal the denial of sovereign immunity without moving to dismiss/for summary judgment on immunity grounds.

That's not how this should work—you need a denial of immunity for appellate jurisdiction.

#AppellateSky

www.ca5.uscourts.gov/opinions/unp...
Screenshot of a court opinion with highlighted text: The DPS appealed, arguing that the district court should have granted summary judgment on Count 6 because of its sovereign immunity. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 141 (1993) (recognizing that an order denying sovereign immunity is an appealable collateral order). Screenshot of a court opinion with highlighted text: It did not, however, raise that defense in its motion to dismiss or its motion for summary judgment. And it does not appear that the district court ever ruled on it. But the Supreme Court “has said that the Eleventh Amendment bar may be asserted for the first time on appeal.” Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 393–94 (1998) (Kennedy, J., concurring) (citing, e.g.,
February 7, 2025 at 12:45 PM
finaldecisions.org
There's some really good explanation here of how the collateral-order doctrine's third requirement—that the order is effectively unreviewable—requires both importance and urgency.
Screenshot of a court opinion with highlighted text: [T]he interest is not just substantial but also time-bound.... Interlocutory appeals are not for issues that are merely important; they are for issues that are important, now.
February 4, 2025 at 4:54 PM
finaldecisions.org
The government is now 0-5 when it comes to taking pure Bivens appeals via the collateral-order doctrine.

#AppellateSky

media.ca11.uscourts.gov/opinions/pub...
Screen shot of a court opinion. The body of the opinion reads: Patience is a virtue. At least, that’s the message Title 28, United States Code, Section 1291, conveys. Section 1291 gives us jurisdiction over district courts’ “final decisions.” In contrast, we ordinarily lack jurisdiction over district courts’ decisions that don’t end the litigation—meaning litigants must wait for a final judgment before they can appeal. But a judge-made rule called the “collateral-order doctrine” offers a limited exception to this final-decision rule. The collateral-order doctrine extends § 1291’s jurisdictional grant to interlocutory appeals of “a small class of collateral rulings that, although they do not end the litigation, are appropriately deemed ‘final.’” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009) (cleaned up). This case requires us to determine whether to expand the collateral-order doctrine to permit an im- mediate appeal when a district court recognizes a cause of action under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), outside the context of addressing a qualified-immunity claim. Screenshot of an opinion, the relevant part of which reads: We join all four other circuits that have considered this question in declining to move the fenceposts of the collateral-order doctrine. The doctrine is a minimal exception to the general rule that only final judgments are appealable. It covers only orders that threaten important interests that become moot if an appeal is not interlocutory. But orders recognizing Bivens claims, unlike orders denying immunity from those claims, do not fall into this class. So we dismiss this interlocutory appeal for lack of jurisdiction.
February 4, 2025 at 4:46 PM
finaldecisions.org
This 9thCir. decision has a lot of jurisdiction in it (appellate and otherwise). But the rule regarding notices of appeal and would-be intervenors is particularly interesting, generally requiring appeals before intervention is granted.

#AppellateSky

cdn.ca9.uscourts.gov/datastore/me...
Screenshot of the linked court opinion with highlighted text: Prospective intervenors are subject to the same 60-day time limit as parties, even while their motions to intervene are pending. A motion to intervene alone is not construed as a motion to extend the deadline. Screenshot of the linked opinion with highlighted text: AEC did not move to extend the time to appeal under Rule 4, but did file a notice appealing the Phase One order on April 16, 2020, within 60 days of the Phase One order but before its motion to intervene was denied on July 24, 2020. Screenshot of the linked opinion with highlighted text: Chesapeake, for its part, did not file a motion to extend the time for filing an appeal and filed a notice of appeal on May 29, 2020, outside of the 60-day window.... As Evans made clear, notices of appeal filed after the 60-day deadline, where the parties have taken no action to extend the deadline, are untimely.
January 18, 2025 at 2:14 PM
finaldecisions.org
From a recent 6th Cir. decision in a qualified-immunity appeal.

If this is correct—and it is—then qualified-immunity denials are not separate from the merits and should not be immediately appealable via the collateral-order doctrine.

#AppellateSky

www.opn.ca6.uscourts.gov/opinions.pdf...
Screenshot of a court opinion with highlighted text: So a court cannot grant “meaningful review” to a qualified-immunity defense without delving into the merits.
January 15, 2025 at 11:16 AM
finaldecisions.org
Helpful explanation from the D.C. Cir.'s Judge Pillard that appellate standing—whatever it might mean—does not require appellants to re-establish Article III standing when taking an appeal.

#AppellateSky

media.cadc.uscourts.gov/opinions/doc...
January 9, 2025 at 7:29 PM
finaldecisions.org
Nice reminder from the Ninth Circuit that if an order is final under the administrative-remand rule, everyone—not just the agency—can appeal.

#AppellateSky

cdn.ca9.uscourts.gov/datastore/op...
Screenshot of a court opinion with highlighted text: We also have jurisdiction over the hospitals’ cross-appeal because our jurisdiction extends to the district court’s entire decision. We have held that if “both the plaintiff and the relevant agency” seek “review of the district court’s remand order,” the order is final for both parties’ appeals.
December 12, 2024 at 12:16 PM
finaldecisions.org
The 6th Cir. held that a post-judgment motion did not reset the appeal clock because it invoked an abrogated local rule rather than FRCP 59 or 60. So the appeal from the judgment untimely.

This seems wrong.

#AppellateSky

www.opn.ca6.uscourts.gov/opinions.pdf...
Screenshot of a court opinion with highlighted text: [S]he moved for reconsideration under Eastern District of Michigan Local Rule 7.1(h). That Local Rule, however, was amended two years prior to read “[p]arties seeking reconsideration of final orders or judgments must file a motion under Federal Rule of Civil Procedure 59(e) or 60(b). The court will not grant reconsideration of such an order or judgment under this rule.” ... Miller never once mentioned Rules 59(e) or 60(b) in her motion for reconsideration. ... The Local Rule’s amended text now plainly forecloses any continued construal as a Rule 59(e) motion .... Screenshot of a judicial opinion with highlighted text: Accordingly, Miller’s motion for reconsideration did not alter the thirty-day notice-of-appeal deadline.
November 9, 2024 at 1:00 PM
finaldecisions.org
Interesting decision from the #9thCir on finality in §1782 discovery proceedings: the proceeding was not final because the district court—despite ordering discovery—had not definitively determined the scope of discovery.

#AppellateSky

cdn.ca9.uscourts.gov/datastore/op...
Screenshot of a court opinion. Screenshot of a court opinion with highlighted text: The fundamental problem in this case is that although the district court rejected Apple’s arguments which, if accepted, would have precluded § 1782 discovery altogether, the scope of discovery and type of information that Apple must produce remains undetermined. Screenshot of a court opinion.
October 25, 2024 at 11:28 AM
finaldecisions.org
Interesting (and oddly unpublished) decision from the #10thCir holding that an order denying relief under the Yearsley doctrine is not immediately appealable via the collateral-order doctrine due to a lack of separation from the merits.

www.ca10.uscourts.gov/sites/ca10/f...
Screenshot of a judicial opinion with highlighted text: We conclude that we lack appellate jurisdiction over GEO’s interlocutory appeal of the district court’s order denying GEO’s claim of protection from suit under Yearsley because appellate review of an order denying such protection cannot be undertaken completely separate from the merits; consequently, an order denying Yearsley’s applicability does not satisfy the collateral order doctrine of Cohen. Screenshot of a judicial opinion with highlighted text: In our view, there is overlap between the second Yearsley prong—viz., whether the government directed the contractor’s challenged actions—and the merits of a plaintiff’s claims challenging the lawfulness of those actions. Screenshot of a judicial opinion with highlighted text: The significant role that the actual facts—as pleaded at the 12(b)(6) phase or established by the evidence at the summary-judgment phase—play in the Yearsley analysis not only helps to explain why review of a district court’s order rejecting the applicability of the Yearsley doctrine cannot be reviewed completely separate from the merits, but also, importantly, helps to explain why review of that issue is distinguishable from review of denials of qualified immunity—which are routinely considered on an interlocutory basis.
October 23, 2024 at 10:23 AM
finaldecisions.org
Distinguishing final decisions from final judgments in the D. Colo. I like the phrasing "starts the countdown to the end of that jurisdiction," which captures the only statutory reqs: a final decision and timely notice of appeal.

#AppellateSky

www.courtlistener.com/docket/14585...
Screenshot of a court opinion with highlighted text: The standard for granting a Rule 59(e) motion reflects a strong interest in finality at two levels: the district court’s final decision, which marks the beginning of appellate jurisdiction, and the entry of final judgment, which starts the countdown to the end of that jurisdiction.
September 6, 2024 at 2:34 PM
finaldecisions.org
A new assistant paw-fessor/junior paw-ssociate joined Final Decisions. That didn't leave a lot of time for this month's appellate-jurisdiction roundup, which is mostly quick notes. But there were still lots of interesting decisions.

#AppellateSky

finaldecisions.org/the-month-in...
Photo of a Shih Tzu puppy.
September 5, 2024 at 5:03 PM
finaldecisions.org
In case you missed it, earlier this month the Seventh Circuit gave a helpful primer on indicative rulings.

#AppellateSky

media.ca7.uscourts.gov/cgi-bin/Opin...
Screenshot of a court opinion.
July 18, 2024 at 1:53 PM
finaldecisions.org
The intersection of federal-officer removal and programming jokes.
Screenshot of a court opinion. Relevant text is: Our circuit has not yet applied these Watson-derived factors to address whether a healthcare provider acts at the direction of the National Coordinator when it creates an EHR website with an embedded tracking code. Thankfully, we are not staring at blank computer screens, learning how to program “Hello, World!”[footnote marker] [Footnote:] To ruin a joke with explanation: when students learn a new programming language, they often start by creating a computer program that displays the message “Hello, World!” See Brian W. Kernighan & Dennis Ritchie, The C Programming Language 9–10 (1st ed. 1978).
July 8, 2024 at 4:43 PM
finaldecisions.org
The #5thCir again held that non-parties can appeal from discovery orders adverse to a claim of privilege. I again think that doing so is wrong—contempt is the appropriate avenue for these appeals.

#AppellateTwitter

www.ca5.uscourts.gov/opinions/pub...
Screenshot of a court opinion with highlighted text: Lewis contends that “[d]isclosure orders adverse to the attorney-client privilege do not qualify for immediate appeal under the collateral order doctrine” based on the Court’s decision in Mohawk, 558 U.S. at 108–09. We disagree. Screenshot of a court opinion with highlighted text: We disagreed and held that the consequences of forced discovery were “effectively unreviewable” on appeal from the final judgment because the appellant was a non-party to the case.... We reasoned that “Mohawk does not speak to the predicament of third parties, whose claims to reasonable protection from the courts have often been met with respect.” ... Whole Woman’s Health is instructive here. Appellants’ claims are effectively unreviewable after final judgment because, unlike parties to an action, they can sustain no relief from a new trial order.
June 18, 2024 at 9:00 PM
finaldecisions.org
Someone tried to argue the implications of the #2dCir's Solomon case, which skipped a question of appellate jurisdiction to address the district court's subject-matter jurisdiction. I don't find the court's explanation convincing; Solomon is just wrong.

ww3.ca2.uscourts.gov/decisions/is...
Screenshot of a court opinion with highlighted text: Finally, Defendants argue that because courts have jurisdiction to determine their own jurisdiction, we always have appellate jurisdiction—no matter the order appealed from—to correct a district court’s erroneous exercise of subject-matter jurisdiction. Grey Br. at 2–6 (citing, among others, Solomon v. St. Joseph Hosp., 62 F.4th 54 (2d Cir. 2023)). This argument is simply wrong. The Defendants’ reliance on Solomon is misplaced.
June 14, 2024 at 5:54 PM
finaldecisions.org
The Fifth Circuit allowed an immediate appeal from an order that did not limit discovery to qualified-immunity issues.

Among the multiple problems with this rule: it makes appellate jurisdiction turn on the merits.

#AppellateSky

www.ca5.uscourts.gov/opinions/pub...
Screenshot of a court opinion. Screenshot of a court opinion with highlighted text: Another immediately appealable order is an order “declin[ing] or refus[ing] to rule on a motion to dismiss based on a government officer’s defense of qualified immunity.” ... This court has jurisdiction to review discovery orders under the collateral order doctrine that do not follow Zapata’s “careful procedure.” Screenshot of a court opinion with highlighted text: Our court may review an order under the collateral order doctrine that exceeds the requisite “narrowly tailored” scope.
June 6, 2024 at 8:53 PM
finaldecisions.org
Great explanation from the Fourth Circuit of why manufactured finality does not always preclude appellate review.

#AppellateSky

www.ca4.uscourts.gov/opinions/231...
Screenshot of a court opinion with highlighted text: "Contriving finality, however, doesn’t always preclude our review." Screenshot of a court opinion.
June 6, 2024 at 8:43 PM
finaldecisions.org
Typography lesson from the #7thCir: don't use Bernhard Modern.

#AppellateSky

media.ca7.uscourts.gov/cgi-bin/Opin...
Screenshot of the linked court opinion. Screenshot of the linked court opinion. Screenshot of the linked court opinion with highlighted text: We hope that Bernhard Modern has made its last appearance in an appellate brief.
June 4, 2024 at 1:48 PM
finaldecisions.org
Really interesting explanation of a Rule 23(f) denial from the #3dCir: permission to appeal should be granted when the case presents novel or unsettled class-certification issues—not novel or unsettled merits issues.

#AppellateSky

www2.ca3.uscourts.gov/opinarch/238...
Screenshot of a court opinion with highlighted text: We thus reiterate that permission to appeal should be granted where the certification decision itself under Rule 23(a) and (b) turns on a novel or unsettled question of law, not simply where the merits of a particular case may turn on such a question. Highlighted court opinion with highlighted text: Here, Teva’s challenge amounts to a request to define — at the class certification stage — the reach of Section 10(b) of the Securities Exchange Act with respect to dual-listed securities. . . . Novel as it may be, any question of whether or how Section 10(b) applies to dual-listed securities does not directly relate to the requirements of Rule 23(a) or (b), and thus need not be decided at the class certification stage. Review under 23(f) is therefore not appropriate.
May 17, 2024 at 7:40 PM
finaldecisions.org
The #10thCir held (2-1) that the Bivens question is not independently appealable via the collateral-order doctrine; it must be part of a qualified-immunity appeal.

This is probably not the last we'll see of this issue.

#AppellateSky

www.ca10.uscourts.gov/sites/ca10/f...
Screenshot of a court opinion with highlighted text: "the BOP defendants did not make a qualified immunity argument in their opening brief" Screenshot of a court opinion with highlighted text: We conclude they have not shown that Bivens extension orders are effectively unreviewable after a final judgment and therefore have not satisfied the third Cohen factor. Screenshot of a court opinion. Screenshot of a court opinion.
May 7, 2024 at 3:44 PM