Waiver – Paul Mollica's Federal Courts Blog

Seventh Circuit Cleans Up Intra-Circuit Split of Authority on Standard of Appellate Review of Orders Denying Arbitration

In Moore v Club Exploria, LLC, No. 25-2721 (7th Cir. Aug. 18, 2026), the Seventh Circuit grapples with a divide in the case law about whether district court orders denying arbitration are reviewed deferentially or de novo. The court concludes that clear-error review applies unless the reviewing the order “requires us to elaborate on thisContinue reading “Seventh Circuit Cleans Up Intra-Circuit Split of Authority on Standard of Appellate Review of Orders Denying Arbitration”

Never Say Die: D.C. Circuit Holds That Plaintiff Preserved Standing Argument by Raising It for the First Time in a Fed. R. Civ. P. 59(e) Motion After District Court’s Dismissal

In Tanner-Brown v. Haaland, No. 22-5302 (D.C. Cir. June 25, 2024), the D.C. Circuit reverses dismissal on Article III standing grounds of an action against the U.S. Department of Interior for an accounting, based on an argument only first raised by plaintiff after dismissal in a Fed. R. Civ. P. 59(e) motion to reconsider. “AppellantContinue reading “Never Say Die: D.C. Circuit Holds That Plaintiff Preserved Standing Argument by Raising It for the First Time in a Fed. R. Civ. P. 59(e) Motion After District Court’s Dismissal”

Party Waived Argument By Not Citing the Correct Circuit Authority in the District Court, Holds Split Eighth Circuit Panel

In Meinen v. Bi-State Development Agency, No. 231242 (8th Cir. May 16, 2024), a 2-1 Eighth Circuit panel held that the party’s failure to cite a favorable Eighth Circuit case in the district court thereby forfeited an legal argument based on that case. The dissent notes that this holding creates a split in the circuits.Continue reading “Party Waived Argument By Not Citing the Correct Circuit Authority in the District Court, Holds Split Eighth Circuit Panel”

Seventh Circuit Merits Panel Overrules Motion Panel, Revoking Appointment of Appellate Counsel That Resulted in “Forbidden” Hybrid Representation

In United States v. Njos, No. 21-3412 (7th Cir. May 22, 2023), a Seventh Circuit holds – in the fullness of time – that the court’s motion panel should not have appointed counsel in behalf of a criminal defendant to pursue an argument that the defendant expressly waived, and therefore grants the defendant’s motion toContinue reading “Seventh Circuit Merits Panel Overrules Motion Panel, Revoking Appointment of Appellate Counsel That Resulted in “Forbidden” Hybrid Representation”

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”

Federal Magistrate Judge Lacked Subject-Matter Jurisdiction to Dismiss Plaintiff’s Complaint Where Defendants Had Not Yet Appeared and Consented, Holds Third Circuit

In Burton v. Schamp, No. 18-1174 (3d Cir. Feb. 3, 2022), the Third Circuit—hearing two consolidated prisoner appeals—holds that the failure of unserved defendants to consent to a U.S. federal magistrate judge (magistrate) before the complaint is dismissed deprives the magistrate of subject-matter jurisdiction under 28 U.S.C. § 636(c)(1). The panel rejects defendants’ arguments in supportContinue reading “Federal Magistrate Judge Lacked Subject-Matter Jurisdiction to Dismiss Plaintiff’s Complaint Where Defendants Had Not Yet Appeared and Consented, Holds Third Circuit”

Class Waiver of Appeals from Award Determinations Enforced by Fifth Circuit, Sidestepping the Issue of Who the Proper Appellee Might Be

In Frego v. Settlement Class Counsel, No. 20-30596 (5th Cir. Oct. 27, 2021), the panel sidesteps an “odd” question of who the proper appellee might be in a “closed” fund class settlement, holding instead that the plaintiff-appellants waived the right to appeal the award under the class settlement. “After ten years of litigation, a classContinue reading “Class Waiver of Appeals from Award Determinations Enforced by Fifth Circuit, Sidestepping the Issue of Who the Proper Appellee Might Be”

No Deference to Litigation-Conduct Waiver Holding Based on “Conclusory Assertions,” Holds Fifth Circuit

In Int’l Energy Ventures Mgt. v. United Energy Grp., No. 20-20221 (5th Cir. May 28, 2021), the Fifth Circuit reverses – on the case’s second appearance in that court – an order compelling arbitration, based on the plaintiff’s three-year “persistent pursuit of litigation.” “International Energy Ventures Management (‘IEVM’) sued United Energy Group (‘UEG’) more thanContinue reading “No Deference to Litigation-Conduct Waiver Holding Based on “Conclusory Assertions,” Holds Fifth Circuit”

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”