A Failure to Timely Cross-Appeal an Issue Is Not Jurisdictional and Thus Objection to Such an Omission Can Be Forfeited, Holds Sixth Circuit

In Georgia-Pacific Consumer Prods. v. NCR Corp., No.18-1806 (6th Cir. July 14, 2022), in an order denying rehearing en banc, the panel amends its original order with an appendix to hold that any objection to a party’s failure to timely cross-appeal from a final judgment does not go to subject-matter jurisdiction, and thus may beContinue reading “A Failure to Timely Cross-Appeal an Issue Is Not Jurisdictional and Thus Objection to Such an Omission Can Be Forfeited, Holds Sixth Circuit”

Sixth Circuit and En Banc Eleventh Circuit Each Forgive the Government’s Abandonment of Fourth Amendment Arguments, Finding Them Forfeited Rather Than Waived

Two courts issue decisions the same day considering Fourth Amendment arguments that the government forfeited, holding that federal courts of appeals have the power and can properly exercise their discretion to reach such issues. United States v. Campbell, No. 16-10128 (11th Cir. Feb. 16, 2022): Defendant Campbell was indicted for possessing a firearm as aContinue reading “Sixth Circuit and En Banc Eleventh Circuit Each Forgive the Government’s Abandonment of Fourth Amendment Arguments, Finding Them Forfeited Rather Than Waived”

Split Sixth Circuit Panel Holds that Government Did Not Forfeit Argument on Appeal That the Plaintiff Failed to State a Bivens Claim

In Elhady v. Unidentified CBP Agents, No.20-1339 (6th Cir. Nov. 19, 2021), the panel majority skips over the qualified immunity issue presented in the interlocutory appeal to hold that the plaintiff failed on the merits to state a Bivens claim against several border-patrol agents. The judges disagree about whether the government forfeited this merits argumentContinue reading “Split Sixth Circuit Panel Holds that Government Did Not Forfeit Argument on Appeal That the Plaintiff Failed to State a Bivens Claim”

Sixth Circuit Sorts Out Waiver, Forfeiture, and Invited Error in Criminal Sentence Appeal

In United States v. Montgomery, No. 20-1201 (6th Cir. May 24, 2021), a Sixth Circuit panel tries to bring clarity to the distinction between forfeiture and waiver in an appeal of a sentencing error. “The difference between waiver and forfeiture has long bedeviled lawyers and judges alike. Lawyers often split the difference, using the termsContinue reading “Sixth Circuit Sorts Out Waiver, Forfeiture, and Invited Error in Criminal Sentence Appeal”