Nonfinal Sanctions Orders Are Not Appealable Until Fee Awards Are Reduced to a Sum Certain

Introduction

Case: Underwood v. Bank of America Corporation (10th Cir. Aug. 28, 2026).
Parties: Erik M. Underwood (Plaintiff–Appellant, pro se) vs. Bank of America Corporation (“BOA”) (Defendant–Appellee).
Posture: Appeal from a June 18, 2025 district-court order resolving multiple post-judgment disputes, chiefly concerning alleged violations of a discovery protective order and resulting sanctions/attorneys’ fees.

The trademark merits had already been fully adjudicated in BOA’s favor in the district court and in two prior Tenth Circuit appeals. What remained was a series of post-judgment enforcement and sanctions disputes tied to the parties’ protective order—specifically, BOA’s contention that Mr. Underwood repeatedly filed BOA-designated “confidential” documents in other proceedings.

The central issue on appeal was jurisdictional: whether the June 18, 2025 order was a “final decision” appealable under 28 U.S.C. § 1291 where (among other rulings) it awarded additional attorneys’ fees as sanctions but did not set the amount, instead directing BOA to submit a supplemental fee request.

Summary of the Opinion

The Tenth Circuit dismissed the appeal for lack of appellate jurisdiction. It held that the June 18, 2025 order was not final under § 1291 because it granted an attorneys’ fee award without reducing that award to a “sum certain,” leaving further district-court proceedings necessary to determine the amount. The court also rejected Mr. Underwood’s attempt to invoke the collateral order doctrine for rulings denying disqualification/recusal of counsel and the district judge, reiterating that such denials are interlocutory and not immediately appealable.

In addition, the court resolved several motions (granting BOA’s motion to dismiss; denying Mr. Underwood’s sanctions/disqualification motions; granting sealing relief in part; denying without prejudice BOA’s request to enjoin future unsealed filings).

Analysis

Precedents Cited

  • Shields L. Grp., LLC v. Stueve Siegel Hanson LLP, 95 F.4th 1251 (10th Cir. 2024)
    The court used Shields for the foundational proposition that federal appellate courts have “limited subject-matter jurisdiction” and may hear cases only when empowered by the Constitution and Congress. This frames the court’s approach: jurisdiction is not discretionary and must be confirmed before reaching the merits.
  • Rodriguez v. IBP, Inc., 243 F.3d 1221 (10th Cir. 2001)
    Rodriguez supplies the classic § 1291 finality test: a decision is final only when it ends the litigation on the merits and leaves nothing for the district court to do but execute the judgment. The panel applied this test to the post-judgment sanctions/fees setting, emphasizing that ongoing fee-amount proceedings prevent finality.
  • Am. Specialty Ins. Co. v. Britt Paulk Ins. Agency, Inc., 579 F.3d 1106 (10th Cir. 2009)
    This is the controlling authority for the dispositive rule in the case: “[a]n award of attorneys’ fees is not final and appealable” until reduced to a “sum certain.” The panel treated the unfixed supplemental fee award as fatal to § 1291 jurisdiction, even if the remaining work could be characterized as “ministerial.”
  • Est. of Ceballos v. Husk, 919 F.3d 1204 (10th Cir. 2019)
    Cited for the burden allocation: the appellant bears the burden of establishing appellate jurisdiction. The panel invoked this to underscore that Mr. Underwood’s merits-heavy arguments could not substitute for a jurisdictional basis.
  • Adams v. Fed. Aviation Admin., 168 F.4th 1271 (10th Cir. 2026)
    Used to explain how the court treats pro se filings: they are construed liberally, but the court will not serve as the litigant’s advocate or invent arguments. This limits the panel’s willingness to search for alternative jurisdictional pathways not meaningfully developed by Mr. Underwood.
  • In re Am. Ready Mix, Inc., 14 F.3d 1497 (10th Cir. 1994)
    The court relied on this precedent to reject immediate appeal of a denial of judicial recusal/disqualification: such orders are interlocutory and not final. The citation directly answers Mr. Underwood’s collateral-order theory as to the judge.
  • Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981)
    The Supreme Court authority for the related point: denial of a motion to disqualify counsel is not appealable under § 1291 prior to final judgment. This defeats Mr. Underwood’s attempt to obtain immediate review of counsel-disqualification rulings via the collateral order doctrine.
  • Crystal Clear Commc'ns, Inc. v. Sw. Bell Tel. Co., 415 F.3d 1171 (10th Cir. 2005)
    Reinforces that finality ordinarily requires termination of all matters as to all parties and causes of action. The panel used it to explain that even if certain components of the June 18 order were fully resolved (e.g., a previously fixed fee award), the order as a whole was not final because it expressly contemplated additional proceedings on the supplemental fee amount.
  • Underwood v. Bank of Am. Corp., 996 F.3d 1 038 (1 0th Cir. 2021 ) and Underwood v. Bank of Am. Corp., No. 22-1402, 2024 WL 1670592 (10th Cir. Apr. 18, 2024)
    These prior decisions contextualize that the underlying trademark dispute had already ended on the merits, leaving only post-judgment enforcement/sanctions issues. The court used this history to separate merits disputes (not presently appealable) from the jurisdictional question at hand.
  • Underwood v. Bank of Am. Corp., No. 2025-1892, 2 02 5 WL 2 803633 (Fed. Cir. Sept. 30, 2 02 5)
    Not a merits precedent, but important procedurally: it explained why the Tenth Circuit treated the appeal as properly docketed despite Mr. Underwood’s notices referencing the Federal Circuit. The panel effectively declined to dismiss on “wrong court intended” grounds, but still dismissed for lack of finality.

Legal Reasoning

  1. § 1291 finality governs—and the supplemental fee award defeats finality.
    The panel treated the June 18, 2025 order as nonfinal because it awarded additional attorneys’ fees without fixing the amount. Under Am. Specialty Ins. Co. v. Britt Paulk Ins. Agency, Inc., a fee award must be reduced to a “sum certain” to be appealable under § 1291. Because the district court directed BOA to file a supplemental fee request, further judicial work remained—meaning the order was not one that “leaves nothing for the district court to do but execute the judgment” (Rodriguez v. IBP, Inc.).
  2. “Ministerial calculation” is not an exception in this circuit.
    Mr. Underwood argued the fee amount was merely a ministerial computation. The court rejected this framing as legally irrelevant in light of binding circuit precedent: until the amount is set, the award is not final, even if the remaining task seems mechanical.
  3. The collateral order doctrine does not provide a workaround for recusal/counsel-disqualification denials.
    Mr. Underwood sought immediate review of denials of motions to disqualify BOA’s counsel and the district judge. The court held such denials are interlocutory and not immediately appealable, relying on In re Am. Ready Mix, Inc. (judge recusal) and Firestone Tire & Rubber Co. v. Risjord (counsel disqualification).
  4. Partial resolution within an order does not create appellate jurisdiction over the rest.
    The opinion emphasized that even if some issues in the June 18 order were “final” in isolation (e.g., affirmance of a previously fixed fee award), the order remained nonfinal because it expressly required further proceedings on the supplemental fee award. Crystal Clear Commc'ns, Inc. v. Sw. Bell Tel. Co. supported the holistic view of finality.
  5. Jurisdiction must be shown by the appellant, and merits arguments cannot supply it.
    Citing Est. of Ceballos v. Husk, the court held Mr. Underwood did not carry his burden to establish jurisdiction. His extensive merits challenges and objections to the sanctions rationale could not be addressed absent a final appealable decision.

Impact

The decision reinforces a strict, administrable finality rule in sanctions/fee disputes: when a district court awards attorneys’ fees (including as sanctions) but leaves the amount open, an appeal under § 1291 is premature. Practically, litigants must wait until the district court sets a specific dollar amount before appealing fee-based sanctions orders (unless some other statutory or doctrinal avenue for immediate review is properly invoked and applies).

The opinion also reaffirms that denials of recusal and counsel-disqualification motions generally cannot be appealed immediately under the collateral order doctrine, pushing those disputes to post-final-judgment review (or other extraordinary mechanisms not addressed here).

In post-judgment enforcement contexts—especially recurring protective-order disputes—this jurisdictional sequencing can be consequential: parties may face ongoing compliance and escalating fee exposure without immediate appellate review until the district court completes the fee quantification.

Complex Concepts Simplified

  • “Final decision” (28 U.S.C. § 1291): An order you can appeal as of right because it ends the case in the district court (with nothing left except carrying out the judgment).
  • “Sum certain” fee award: A fee award stated as a specific number of dollars. If the court says “fees awarded” but will determine the amount later, it’s not yet final for appeal in the Tenth Circuit.
  • Interlocutory order: A nonfinal order entered while matters remain pending in the district court. Interlocutory orders are generally not immediately appealable.
  • Collateral order doctrine: A narrow exception allowing immediate appeal of a small class of orders that conclusively decide an important issue separate from the merits and would be effectively unreviewable after final judgment. This opinion reiterates that denials of recusal and counsel-disqualification do not qualify.
  • Protective order: A court order controlling how discovery material may be used or disclosed, often restricting “confidential” documents from public filing or use outside the case.
  • Sanctions: Court-imposed consequences for violating rules or orders (here, alleged protective-order violations), often including attorneys’ fees incurred by the opposing party.

Conclusion

Underwood v. Bank of America Corporation is a jurisdictional reaffirmation with practical bite: in the Tenth Circuit, a sanctions order awarding attorneys’ fees is not appealable under § 1291 until the district court sets the amount as a “sum certain,” even if only calculation remains. The decision also reiterates that denials of motions to recuse a judge or disqualify counsel are interlocutory and not immediately appealable under the collateral order doctrine. The broader significance is procedural discipline: appellate review is postponed until the district court finishes the fee-quantification work, preventing piecemeal appeals in continuing post-judgment sanctions disputes.