Bryan Lammon

The Month in Federal Appellate Jurisdiction: June 2025 - Final Decisions PLLC Relating forward notices of appeal, automatic stays for remand appeals, deficient final judgments, preservation, and more.

New appellate-jurisdiction roundup featuring decisions on relating forward notices of appeal, automatic stays for remand appeals, deficient final judgments, preservation, and much more.

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finaldecisions.org/the-month-in...

Jurisdiction, Preservation & the Failure to Object to a Magistrate Judge’s Order - Final Decisions PLLC The Fourth Circuit held that failure to object to a magistrate judge's order was a preservation issue, not a jurisdictional one.

The Fourth Circuit held that failure to object to a magistrate judge's order was a preservation issue, not a jurisdictional one.

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finaldecisions.org/jurisdiction...

Immunities & the Rest of the Collateral-Order Doctrine - Final Decisions PLLC The Fourth Circuit suggested that a defense’s providing an immunity from litigation is enough for the collateral-order doctrine. But what about the doctrine’s other requirements, particularly separate...

My quick read suggests that this makes the common mistake (at 15–16) of thinking that a defense's being an immunity is sufficient for the collateral-order doctrine. But a defense still needs to be separate from the merits, which many (most? all?) defenses aren't.

finaldecisions.org/immunities-t...

Questioning the Collateral-Order Doctrine & Pendent Appellate Jurisdiction - Final Decisions PLLC A Fifth Circuit decision expressed some doubts about the collateral-order doctrine and pendent appellate jurisdiction.

I wrote a bit about this a few weeks ago, when Judge Oldham mentioned it in a footnote that the other panel members didn't join.

finaldecisions.org/questioning-...

Contempt Appeals with Specific-but- Unspecified Contempt Sanctions - Final Decisions PLLC The Tenth Circuit held that a $1,000/day fine for civil contempt was a sufficiently specific sanction for the decision to be final.

The Tenth Circuit had jurisdiction to review a civil-contempt order that imposed a $1,000/day fine. Although the ultimate sanction was not yet determined, it was sufficiently specific.

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finaldecisions.org/contempt-app...

Dealing with Deficient Final Judgments - Final Decisions PLLC The Seventh Circuit explained both the problems of and the potential solutions to final judgments that fail to mention all claims.

The Seventh Circuit explained both the problems of and the potential solutions to final judgments that fail to mention all claims.

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finaldecisions.org/dealing-with...

Parrish & Relating Forward Notices of Appeal - Final Decisions PLLC The Supreme Court held that a notice of appeal filed before the appeal period is reopened relates forward to the date of reopening.

Short post on the Supreme Court's decision in Parrish, which held that a premature notice of appeal relates forward to the district court's reopening of the appeal period.

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finaldecisions.org/parrish-rela...

I say this with no irony. I love dorky procedural issues. I often write briefs like I am slogging through molasses, but let me loose on an appellate-jurisdiction question and my fingers fly.

Screenshot of the first page of the Supreme Court's opinion in Parrish v. United States.

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.

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www.supremecourt.gov/opinions/24p...

Ninth Circuit: No Automatic Stays for Remand Appeals - Final Decisions PLLC The Ninth Circuit held that an appeal from a remand order does not automatically stay the remand.

The Ninth Circuit held that an appeal from a remand order does not automatically stay the remand.

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finaldecisions.org/ninth-circui...

Waiving (or Forfeiting) an Unconditional Guilty Plea - Final Decisions PLLC The Fifth Circuit held that the government's failure to invoke an unconditional guilty plea waived the defendant's waiver of a suppression issue.

The Fifth Circuit held that the government's failure to invoke an unconditional guilty plea waived the defendant's waiver of a suppression issue.

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finaldecisions.org/waiving-or-f...

Narrowing v. Denying Permanent Injunctive Relief - Final Decisions PLLC The Seventh Circuit held that it lacked jurisdiction to immediately review an order that narrowed the potential injunctive relief in an action.

The Seventh Circuit held that it lacked jurisdiction to immediately review an order that narrowed—but not denied—the potential injunctive relief in an action.

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finaldecisions.org/narrowing-v-...

The Month in Federal Appellate Jurisdiction: May 2025 - Final Decisions PLLC Effective injunction denials, appealing waiver-based remands, questioning the collateral-order doctrine and pendent appellate jurisdiction, and more.

New appellate-jurisdiction roundup, featuring effective injunction denials, appealing waiver-based remands, questioning the collateral-order doctrine and pendent appellate jurisdiction, and more.

#AppellateSky

finaldecisions.org/the-month-in...

Questioning the Collateral-Order Doctrine & Pendent Appellate Jurisdiction - Final Decisions PLLC A Fifth Circuit decision expressed some doubts about the collateral-order doctrine and pendent appellate jurisdiction.

A Fifth Circuit decision expressed some doubts about the collateral-order doctrine and pendent appellate jurisdiction.

#AppellateSky

finaldecisions.org/questioning-...

Cert Grant on Derivative-Sovereign-Immunity Appeals - Final Decisions PLLC The Supreme Court will decide if defendants can immediately appeal from the denial of derivative sovereign immunity via the collateral-order doctrine.

The Supreme Court will decide if defendants can immediately appeal from the denial of derivative sovereign immunity via the collateral-order doctrine.

#AppellateSky

finaldecisions.org/cert-grant-o...

Immunities & the Rest of the Collateral-Order Doctrine - Final Decisions PLLC The Fourth Circuit suggested that a defense’s providing an immunity from litigation is enough for the collateral-order doctrine. But what about the doctrine’s other requirements, particularly separate...

It might be worth mentioning that just because something is called an "immunity" does not make it immediately appealable.

finaldecisions.org/immunities-t...

The Supreme Court will address whether defendants can immediately appeal the denial of derivative sovereign immunity via the collateral-order doctrine.

Carson’s Test for Effective Injunction Denials - Final Decisions PLLC Carson's three-part test for effective injunction denials probably shouldn't apply when parties expressly sought a preliminary injunction.

A recent Sixth Circuit decision has me thinking that Carson's three-part test for effective injunction denials probably shouldn't apply when parties expressly sought a preliminary injunction.

#AppellateSky

finaldecisions.org/carsons-test...

Class of 2027 Recognizes Visiting Professor Bryan Lammon as Outstanding Teacher One year after Bryan Lammon came to William & Mary Law School as a Visiting Professor of Law, the Class of 2027 honored him as the 1L Professor of the Year.

Thanks so much to my wonderful 1Ls at W&M, and congratulations to all of them for making it through their first year of law school.

law.wm.edu/news/stories...

Appealing Waiver-Based Remands, Part II - Final Decisions PLLC The en banc Fifth Circuit overruled In re Weaver and held that 28 U.S.C. § 1447(d) does not bar review of waiver-based remands.

The en banc Fifth Circuit overruled In re Weaver and held that 28 U.S.C. § 1447(d) does not bar review of waiver-based remands.

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finaldecisions.org/appealing-wa...

Claimed Urgency & Effective Denials of Injunctions - Final Decisions PLLC The Fifth Circuit split over whether a party could appeal from the district court’s delay in deciding a preliminary-injunction motion.

The Fifth Circuit split over whether a party could appeal from the district court’s delay in deciding a preliminary-injunction motion and raised an interesting question of how to determine when delay = denial.

#AppellateSky

finaldecisions.org/claimed-urge...

The Month in Federal Appellate Jurisdiction: April 2025 - Final Decisions PLLC Claims and theories for Rule 54(b), plus appealing TROs, denials of litigation privileges, denials of church-autonomy defenses, and more.

This month's roundup features claims and theories for Rule 54(b), plus appealing TROs, denials of litigation privileges, denials of church-autonomy defenses, and more.

#AppellateSky

finaldecisions.org/the-month-in...

Finished my first year of teaching at William & Mary Law School. The 3L class does this really cool thing where they give hand-written thank you cards to every faculty member. Although I did not have a ton of 3Ls in my classes this year, I am continually impressed by their intelligence and diligence

Claims & Theories in Rule 54(b) Appeals - Final Decisions PLLC The Third Circuit split over the meaning of "claims" for purposes of Rule 54(b), with the dissent arguing that distinct elements means distinct claims.

The Third Circuit split over the meaning of "claims" for purposes of Rule 54(b), with the dissent arguing that distinct elements means distinct claims. But the majority has it right, as there's a difference between claims and theories of relief.

#AppellateSky

finaldecisions.org/claims-theor...

Counts & Claims for Rule 54(b) Appeals - Final Decisions PLLC The Eleventh Circuit explained that different counts are not distinct claims for purposes of Rule 54(b) when they stem from the same events and seek a remedy for the same injury.

Also, I wrote about a similar decision out of the 11th Cir. a few years ago:

finaldecisions.org/counts-claim...

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.

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 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.

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...

Appealing Florida’s Litigation Privileges - Final Decisions PLLC The Eleventh Circuit addressed the immediate appealability of Florida’s absolute and qualified litigation privileges

The Eleventh Circuit addressed the immediate appealability of Florida’s absolute and qualified litigation privileges. Absolute was appealable. Qualified was not.

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finaldecisions.org/appealing-fl...

The Month in Federal Appellate Jurisdiction: March 2025 - Final Decisions PLLC Distinguishing TROs and preliminary injunctions, Brady issues in qualified-immunity appeal, pendent appellate jurisdiction without appellate jurisdiction, and more.

New appellate-jurisdiction roundup, featuring the TRO v. preliminary injunction debate, Brady issues in qualified-immunity appeals, pendent appellate jurisdiction without appellate jurisdiction, and more.

#AppellateSky

finaldecisions.org/the-month-in...

Some Sixth Circuit Discussions of Brady Issues in Qualified-Immunity Appeals - Final Decisions PLLC The Sixth Circuit spoke at length about its jurisdiction to review certain Brady issues as part of qualified-immunity appeals.

And the Sixth Circuit has had two cases in the last month in which judges debated the extent to which they could review Brady issues in qualified-immunity appeals.

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finaldecisions.org/some-sixth-c...