Frederick Allen v. Joshua Stein

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 23, 2026
• Docket: 24-1954
• Status: Published

Opinion

USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 1 of 35

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-1954

FREDERICK L. ALLEN; NAUTILUS PRODUCTIONS, LLC,

Plaintiffs – Appellees,

v.

JOSHUA H. STEIN, Governor of North Carolina; SUSAN WEAR KLUTTZ, Former Secretary of the North Carolina Department of Natural and Cultural Resources, in her official capacity; MARGRETTE KATHRYN THOMPSON, Chief Deputy Secretary of the North Carolina Department of Natural and Cultural Resources, in her official capacity; DARIN J. WATERS, Deputy Secretary of the North Carolina Department of Natural and Cultural Resources, in his official capacity; CATHERINE ANN SWAIN, Director of Marketing of the North Carolina Department of Natural and Cultural Resources, in her official capacity; JAMES CHRISTOPHER SOUTHERLY, State Archaeologist, in his official capacity; STEPHEN ATKINSON, Deputy State Archaeologist - Underwater and Director of the Underwater Archaeology Branch of the North Carolina Department of Natural and Cultural Resources, in his official capacity; NORTH CAROLINA DEPARTMENT OF NATURAL AND CULTURAL RESOURCES; STATE OF NORTH CAROLINA; JEFFREY NEALE JACKSON, Attorney General of North Carolina, in his official capacity; PAMELA BREWINGTON CASHWELL, Secretary of the North Carolina Department of Natural and Cultural Resources, in her official capacity; SARAH KOONTS, in her official capacity; MARIA E. VANN, Director of Regional History Museums of the North Carolina Department of Natural and Cultural Resources, in her official capacity; MIKE CARRAWAY, in his official capacity; WILLIAM SCHORR JOHNSON, Director of Communications of the North Carolina Department of Natural and Cultural Resources, in his official capacity,

Defendants – Appellants, USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 2 of 35

and

FRIENDS OF QUEEN ANNE'S REVENGE, A NON-PROFIT CORPORATION,

Defendant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:15-cv-00627-BO)

Argued: October 22, 2025 Decided: January 23, 2026

Before NIEMEYER, KING, and HARRIS, Circuit Judges.

Reversed in part, vacated in part, and remanded with directions by published opinion. Judge King wrote the opinion, in which Judge Niemeyer and Judge Harris joined.

ARGUED: Nicholas Scott Brod, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants. Adam Adler, REICHMAN JORGENSEN LEHMAN & FELDBERG LLP, Redwood Shores, California, for Appellees. ON BRIEF: Jeff Jackson, Attorney General, Ryan Y. Park, Solicitor General, Kaeli E. Czosek, Solicitor General Fellow, Olga E. Vysotskaya de Brito, Senior Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants. Susan Freya Olive, OLIVE & OLIVE, P.A., Durham, North Carolina; G. Jona Poe, Jr., POE LAW FIRM, PLLC, Durham, North Carolina; Elliot Sol Abrams, CHESHIRE, PARKER, SCHNEIDER, PLLC, Raleigh, North Carolina, for Appellees.

2 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 3 of 35

KING, Circuit Judge:

In this appeal from the Eastern District of North Carolina, we address another

chapter in the decade-long quest by plaintiffs Frederick Allen and his video production

company, Nautilus Productions, LLC (collectively, “Allen”), to secure a federal court

judgment against a host of defendants — including the State of North Carolina, its

Governor and Attorney General, its Department of Natural and Cultural Resources, and

various other state officials (collectively, the “North Carolina defendants”) — for copyright

infringement. Allen’s claims arise from photographs and videos he made during an

excavation of the sunken remains of the pirate ship called the Queen Anne’s Revenge,

which was commanded by the infamous Blackbeard in waters near the Old North State in

the early 1700s.

Over a decade ago, in 2015, Allen initiated this lawsuit against the North Carolina

defendants. In 2018, on appeal from a 2017 district court order that denied immunity

claims interposed by the North Carolina defendants, this Court reversed. Our decision

ruled, inter alia, that those defendants were entitled to sovereign immunity, qualified

immunity, and legislative immunity on the various claims. See Allen v. Cooper, 895 F.3d

337 (4th Cir. 2018) (the “2018 Decision”). Allen thereupon sought relief from our Court’s

sovereign immunity rulings in the Supreme Court. The Court granted certiorari and, in its

2020 decision, affirmed our sovereign immunity rulings across the board. See Allen v.

Cooper, 589 U.S. 248 (2020) (the “2020 Supreme Court Decision”).

Notwithstanding those decisions by our Court and the Supreme Court, the district

court in 2021 authorized Allen to reopen his lawsuit against the North Carolina defendants.

3 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 4 of 35

See Allen v. Cooper, No. 5:15-cv-00627 (E.D.N.C. Aug. 18, 2021), ECF No. 118 (the

“2021 Decision”). That is, Allen was authorized by the 2021 Decision to amend his failed

complaint and pursue an entirely new constitutional theory of liability for copyright

infringement against the North Carolina defendants — by alleging “as-applied” or “case-

by-case” abrogation of state sovereign immunity — premised on a 2006 Supreme Court

decision called United States v. Georgia, 546 U.S. 151 (2006) (the “Georgia theory”).

The North Carolina defendants, in a familiar fashion, moved, inter alia, to dismiss

the claims alleged in Allen’s newly amended complaint on Eleventh Amendment sovereign

immunity grounds. In 2024, the district court denied sovereign immunity on one of the

new claims and authorized Allen’s Georgia theory to proceed to discovery. See Allen v.

Cooper, No. 5:15-cv-00627 (E.D.N.C. Aug. 30, 2024), ECF No. 168 (the “2024 Ruling”).

The North Carolina defendants have again appealed, seeking to challenge both the 2021

Decision and the 2024 Ruling. As explained herein, we are constrained to reverse the 2021

Decision, vacate and hold for naught the 2024 Ruling, and remand with directions.

I.

A.

Just as this appeal involves a storied history, the same is true for the facts underlying

Allen’s copyright claims. For approximately seven months in about 1717 and 1718, a

notorious pirate named Edward Teach — colloquially referred to as the “pirate

Blackbeard” — commandeered control of a French vessel then known as La Concorde.

Upon capturing the French vessel, Blackbeard renamed her the Queen Anne’s Revenge (the

4 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 5 of 35

“Revenge”), and he equipped the Revenge for piracy activity on the high seas.

Approximately six months later, however, Blackbeard ran the Revenge aground near

Beaufort Inlet on the North Carolina coast. The wreckage of the Revenge was beneath the

waves until 1996, when Intersal, Inc., a private exploration company, discovered the

sunken remains of the plundered vessel.

Due to its location, the Revenge and its artifacts were and are the property of the

State of North Carolina, and thus subject to the Old North State’s “exclusive dominion and

control.” See N.C. Gen. Stat. § 121-22; see also 43 U.S.C. § 2105(c). In 1998, Intersal

and the Department of Natural and Cultural Resources of North Carolina entered into a 15-

year salvage agreement. Following execution of the salvage agreement, Intersal hired

Allen to be the exclusive videographer for the Revenge recovery project.

It was at this point, according to Allen, that the North Carolina defendants began to

emulate Blackbeard himself — that is, they initiated a “concerted campaign of intentional

piracy to steal Allen’s property.” See Br. of Appellee 3 (citation modified). During a

multi-year recovery effort regarding the Revenge, Allen captured video footage of the

shipwreck and registered 13 copyrights with the United States Copyright Office. Each of

Allen’s copyrights covered a specific year’s worth of videos.

Allen asserts that he first discovered acts of copyright infringement by the North

Carolina defendants in 2013, when his protected work was uploaded to a state-operated

YouTube channel and onto other social media platforms. Allen then approached the North

Carolina defendants with his concerns, and the parties settled their differences. That

resolution soon soured, however, and Allen alleges that the North Carolina defendants

5 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 6 of 35

continued to improperly use his video footage online, as well as in a newsletter about the

State’s Maritime Museum. Allen also asserts that the North Carolina defendants devised

and executed a plan to infringe on his copyrights shortly thereafter, and did so specifically

by enacting legislation in 2015. That legislation was passed by the North Carolina General

Assembly and signed into law by the Governor. It was then codified as N.C. Gen. Stat.

§ 121-25(b) (2015). 1 Allen has characterized § 121-25(b) as specifically targeting his work

and authorizing the North Carolina defendants to infringe on his copyrights, without

limitation.

B.

1.

As recited earlier, Allen initiated this lawsuit in the Eastern District of North

Carolina in 2015. By amended complaint filed in March 2016, Allen alleged three claims

that are relevant here. See Allen v. McCrory, No. 5:15-cv-00627 (E.D.N.C. Mar. 7, 2016),

Allen refers to N.C. Gen. Stat. § 121-25(b) in these proceedings as “Blackbeard’s 1

Law.” At the time of its enactment, § 121-25(b) provided as follows:

All photographs, video recordings, or other documentary materials of a derelict vessel or shipwreck or its contents, relics, artifacts, or historic materials in the custody of any agency of North Carolina government or its subdivisions shall be a public record pursuant to G.S. 132-1. There shall be no limitation on the use of or no requirement to alter any such photograph, video recordings, or other documentary material, and any such provision in any agreement, permit, or license shall be void and unenforceable as a matter of public policy.

See N.C. Gen. Stat. § 121-25(b) (2015).

6 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 7 of 35

ECF No. 12 (the “2016 Complaint”). 2 In Count I, Allen sought a declaratory judgment

that § 121-25(b), the so-called “Blackbeard’s Law” enacted in North Carolina, was

preempted by a federal statute — that is, the Copyright Act, 17 U.S.C. § 101 et seq. In

Count II, Allen sought damages and injunctive relief for the alleged copyright

infringement.

In Count III, Allen alleged a civil rights claim under 42 U.S.C. § 1983, specifying

two constitutional violations. Allen first alleged that the 2015 enactment of N.C. Gen. Stat.

§ 121-25(b) constituted an unconstitutional taking of Allen’s property, in contravention of

the Takings Clause of the Fifth Amendment. Second, Count III specified that such conduct

also violated Allen’s rights under the Due Process Clause of the Fourteenth Amendment.

In addition to the North Carolina defendants, Allen sued a nonprofit non-governmental

entity called the Friends of Queen Anne’s Revenge (the “Friends of QAR”), alleging that

it had participated in the infringement activities of the North Carolina defendants.

2.

In May 2016, the North Carolina defendants moved to dismiss the 2016 Complaint,

claiming Eleventh Amendment sovereign immunity on behalf of the North Carolina

entities and officials sued in their official capacities, and claiming both qualified and

legislative immunity as to each and every North Carolina official sued in an individual

capacity. A basis for the North Carolina defendants’ sovereign immunity claim was that

2 The 2016 Complaint alleged two other counts, for unfair and deceptive trade practices, and for civil conspiracy. Those claims were dismissed by the district court in 2017 on sovereign immunity grounds. Neither are at issue in this appeal.

7 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 8 of 35

§ 511 of the Copyright Remedy Clarification Act of 1990 (the “CRCA”) — which

specified a legislative intent to abrogate state sovereign immunity for copyright claims —

was not a valid exercise of congressional power, rendering § 511’s purported immunity

abrogation unconstitutional. See 17 U.S.C. § 511(a) (declaring abrogation of state

sovereign immunity from copyright claims).

3.

By Order of March 23, 2017, the district court granted the North Carolina

defendants’ motion to dismiss in part. Specifically, the Order dismissed nearly all of

Allen’s claims alleged in the 2016 Complaint, excepting Counts I and II. In so ruling, the

court determined that Congress, in enacting the CRCA, had validly exercised its authority

to abrogate state sovereign immunity. As a result, the court denied the North Carolina

defendants’ immunity claims on Counts I and II. See Allen v. Cooper, No. 5:15-cv-00627

(E.D.N.C. Mar. 23, 2017), ECF No. 69 (the “2017 Ruling”). In dismissing Count III,

however, the court decided that it was constrained, by Fourth Circuit precedent, to conclude

that Allen’s “takings claims brought under § 1983 are barred by the Eleventh Amendment

when North Carolina courts are available for such a claim to be brought.” Id. at 18 (citing

Hutto v. S.C. Ret. Sys., 773 F.3d 536, 552 (4th Cir. 2014)).

4.

As mentioned earlier, the North Carolina defendants pursued a collateral order

appeal of the district court’s 2017 Ruling on Counts I and II to our Court. Allen cross-

appealed, challenging the court’s rulings regarding the dismissal of the Count III takings

claim, to the extent that claim alleged violations of Fourteenth Amendment due process.

8 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 9 of 35

In our comprehensive 2018 Decision — authored by our colleague Judge Niemeyer

— we ruled that Congress had not validly abrogated State sovereign immunity when it

adopted the CRCA. See Allen v. Cooper, 895 F.3d 337, 353 (4th Cir. 2018) (“[W]e

conclude that the [CRCA’s] wholesale abrogation of sovereign immunity for claims of

copyright infringement is grossly disproportionate to the relevant injury under the

Fourteenth Amendment . . . .”). Our 2018 Decision also ruled that the claims of qualified

and legislative immunity by the North Carolina defendants collectively barred all claims

against those sued in their individual capacities. Id. at 356-58.

The 2018 Decision thus reversed the 2017 Ruling and remanded to the district court

for a dismissal of each of the North Carolina defendants from Allen’s lawsuit. As a result,

the Friends of QAR was the only defendant remaining in the litigation. Allen filed a

petition for certiorari in January 2019, requesting the Supreme Court to determine whether

Congress had validly abrogated state sovereign immunity from copyright infringement

claims when the CRCA was enacted.

5.

In June 2019, the Supreme Court granted Allen’s petition for certiorari and heard

and considered the merits of our 2018 Decision concerning sovereign immunity. Writing

for the Court, Justice Kagan explained and ruled that state sovereign immunity had not

been validly abrogated by the CRCA. 3 See Allen v. Cooper, 589 U.S. 248, 266-67 (2020)

3 In his petition for certiorari, Allen did not seek review of any of the qualified or legislative immunity rulings that were made in our 2018 Decision.

9 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 10 of 35

(recognizing that CRCA was designed to provide uniform remedy for statutory

infringement “rather than to redress or prevent unconstitutional conduct”). Accordingly,

Judge Niemeyer’s 2018 Decision was affirmed. Id. at 267 (declaring that “we affirm the

judgment below”).

After the Supreme Court’s 2020 decision affirming our 2018 Decision, Allen settled

his dispute with the sole remaining defendant in the litigation — the Friends of QAR. As

a result, Allen voluntarily dismissed his claims against that defendant with prejudice on

August 17, 2020. By all accounts, Allen’s lawsuit concerning this entire matter was closed.

C.

But Allen was not ready to give up. On September 4, 2020, Allen filed in the district

court for the Eastern District of North Carolina what he called a “motion for

reconsideration,” relying on Rule 60(b)(6) of the Federal Rules of Civil Procedure. He

requested reconsideration of the district court’s 2017 Ruling that had dismissed the § 1983

Fifth Amendment takings claim alleged in Count III of the 2016 Complaint. Allen therein

also moved to amend his dismissed complaint to “even more clearly set out the facts

supporting his cause of action,” and to authorize a new theory for abrogation of sovereign

immunity. See J.A. 58. 4 That new theory concerning sovereign immunity was predicated

on United States v. Georgia, 546 U.S. 151 (2006), a Supreme Court decision that — 14

4 Citations herein to “J.A. ___” refer to the contents of the Joint Appendix filed by the parties in this appeal.

10 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 11 of 35

years before Allen’s motion for reconsideration — had adopted the proposition that

Congress has “authority to abrogate sovereign immunity for claims arising from state

conduct that amounts to an actual violation of the Fourteenth Amendment’s substantive

guarantees.” See Allen, 895 F.3d at 349 (citing Georgia, 546 U.S. at 158 (2006)).

In August 2021, the district court granted Allen’s reconsideration motion. Prior to

analyzing the merits of the motion, the 2021 Decision recognized that Allen filed his

motion “pursuant to Rule 60 of the Federal Rules of Civil Procedure.” See 2021 Decision

4. But it then declared that Rule 60 was “not applicable,” because the 2017 Ruling

“dismissed only some of the defendants and some of the claims.” Id. at 5-6 (reciting that

“[r]ather than deny the motion because it cites to Rule 60(b), the Court will construe

[Allen’s] Rule 60(b) motion as a Rule 54(b) motion to reconsider”).

When considering whether Allen’s reconsideration motion was timely, however, the

2021 Decision relied on Rule 60(b). Although the motion had been filed more than three

years after the 2017 Ruling, the district court noted that due to the time lapse caused by the

Fourth Circuit and Supreme Court appeals, there was only an 82-day delay between the

2020 Supreme Court Decision and Allen’s motion, which was deemed, in the view of the

court, “reasonably timely.” See 2021 Decision 7-8 (citing Fed. R. Civ. P. 60(b)).

The 2021 Decision next addressed the merits of Allen’s Rule 60(b) motion and ruled

that a 2019 Supreme Court decision, Knick v. Township of Scott, Pennsylvania, 588 U.S.

180 (2019), had implicitly overruled the Fourth Circuit precedent that the district court had

relied on in its 2017 Ruling. In that regard, the 2021 Decision declared that the district

11 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 12 of 35

court’s 2017 dismissal of the § 1983 Fifth Amendment takings claim in Count III of the

2016 Complaint was flawed. The 2021 Decision thus ruled that reconsideration was proper

“under either Rule 54(b) or Rule 60(b)” due to a “change in decisional law,” and that Count

III was “no longer dismissed” from the then-concluded litigation. See 2021 Decision 21.

Having thereby revived the Count III Fifth Amendment takings claim, the 2021

Decision turned to Allen’s request for permission to allege a new theory of abrogation of

sovereign immunity, predicated on the Supreme Court’s 2006 Georgia decision. That

“new” theory would purportedly allow Allen to pursue his copyright infringement claims

and the resulting constitutional violations that had been dismissed by our Court’s 2018

Decision and the 2020 Supreme Court Decision. But instead of analyzing the Georgia-

based request under Rule 60(b)(6) — again, the Rule that Allen had invoked in his

reconsideration motion — the district court again turned to Rule 54(b) and stated that

“reconsideration of its previous order of dismissal is appropriate in this case under the Rule

54(b) standard.” See 2021 Decision 22.

The 2021 Decision then concluded that the district court’s “reconsideration” of

Allen’s copyright infringement and Fourteenth Amendment claims against the North

Carolina defendants was proper because the district court had previously ruled that the

CRCA was a valid prophylactic abrogation of state sovereign immunity, and the court had

“never considered whether [Allen has] a valid claim for abrogation under Georgia.” See

2021 Decision 22. And it proclaimed that the district court had “never expressly closed

the door to a valid claim of case-by-case abrogation under Georgia,” and that the Fourth

Circuit and the Supreme Court also “passed on the Georgia issue.” Id.

12 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 13 of 35

Finally, in response to the North Carolina defendants’ contentions that Allen’s

Georgia theory failed on its merits in any event, the 2021 Decision relied on Rule 15(a)(2)

of the Federal Rules of Civil Procedure and recognized that leave to amend a complaint

may be “freely given when justice requires.” See 2021 Decision 24. The district court thus

granted Allen leave to amend because “Georgia serves as a valid basis for [Allen] to bring

[his] constitutional claims,” and it determined that such leave was proper in order to give

Allen an opportunity to “buttress [his] allegations of ‘a modern form of piracy’” by the

North Carolina defendants. Id. (quoting Allen, 589 U.S. at 252).

In September 2021, the North Carolina defendants noticed an appeal to our Court,

seeking therein a review of the 2021 Decision that had reinstated Allen’s lawsuit and

granted Allen leave to amend his 2016 Complaint to allege his Georgia theory. Allen

responded with a motion to dismiss the appeal for lack of jurisdiction. In October 2022,

we granted Allen’s motion to dismiss by ruling that the 2021 Decision was neither an

appealable final decision, nor an appealable interlocutory order. See Allen v. Cooper, No.

21-2040, 2022 WL 19226124 (4th Cir. Oct. 14, 2022), ECF No. 27.

D.

In February 2023, Allen filed a second amended complaint in the district court,

alleging therein a garden variety of claims. See Allen v. Cooper, No. 5:15-cv-00627

(E.D.N.C. Feb. 8, 2023), ECF No. 134 (the “2023 Amended Complaint”). In April 2023,

the North Carolina defendants moved to strike a major portion of the 2023 Amended

13 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 14 of 35

Complaint under Rule 12(f) of the Federal Rules of Civil Procedure, maintaining that most

of the Amended Complaint substantially exceeded the bounds authorized by the 2021

Decision. By that same motion, the North Carolina defendants again moved to dismiss all

non-stricken allegations of the 2023 Amended Complaint on their sovereign immunity

claims, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.

Stemming inherently from the district court’s 2021 Decision authorizing Allen to

reopen this litigation and amend his complaint, the court in 2024 entered an order that is

relevant here: the 2024 Ruling analyzing the North Carolina defendants’ motion to

dismiss. In its 2024 Ruling, the district court recognized that “much of the Second

Amended Complaint [went] far beyond the Court’s instructions” in the 2021 Decision. See

2024 Ruling 2 (citation modified). The 2024 Ruling explained that the 2021 Decision was

clear, in that it only authorized “Allen’s direct takings claim [alleged in Count III of the

2016 Complaint] and his Georgia claims” to proceed. Id. at 13. The 2024 Ruling therefore

struck all claims that exceeded that mandate without further discussion. Id. at 13-14. 5

The district court’s 2024 Ruling then characterized two counts of the 2023 Amended

Complaint — that is, Counts III and IV — to be takings claims that arose under the Takings

Clause of the Fifth Amendment. The 2024 Ruling also dismissed those claims, however,

as barred by Eleventh Amendment sovereign immunity. See 2024 Ruling 21-22

5 Allen did not cross-appeal in connection with the 2024 Ruling, to the extent it afforded the North Carolina defendants relief under Rule 12(f). Accordingly, we need not address that aspect of the 2024 Ruling in further detail.

14 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 15 of 35

(discussing Zito v. N.C. Coastal Res. Comm’n, 8 F.4th 281, 286-88 (4th Cir. 2021), which

declared that “Knick did not undermine Hutto, where this Court held sovereign immunity

to bar a takings claim against a State in federal court if state courts remain open to

adjudicating the claim”). 6

The 2024 Ruling then turned to Allen’s Georgia theory and stated that Georgia was

“linked inextricably” to Count I of the 2023 Amended Complaint — the only surviving

claim remaining before the district court — which had alleged copyright infringement, in

contravention of 17 U.S.C. § 501 et seq., against the North Carolina defendants in their

official capacities. See 2024 Ruling 13-14. The 2024 Ruling addressed, therefore, whether

the North Carolina defendants’ copyright infringement activities constituted a denial of

Fourteenth Amendment procedural due process. That is, it assessed whether sovereign

immunity had been abrogated under a case-by-case theory of abrogation, predicated on the

Supreme Court’s 2006 decision in United States v. Georgia, 546 U.S. 151, 158 (2006)

(ruling that Congress has plenary authority to abrogate sovereign immunity on an as-

applied basis for claim arising from state conduct that “actually” violates the Fourteenth

Amendment). To that end, the 2024 Ruling recited that the district court had to consider

“whether Allen states claims for copyright infringement and [whether] that same conduct

also violates the Fourteenth Amendment.” See 2024 Ruling 28.

The 2024 Ruling also ruled that Allen failed to allege a Georgia-based Fourteenth 6

Amendment due process violation on a takings theory. See 2024 Ruling 37.

15 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 16 of 35

Rejecting the North Carolina defendants’ copyright defenses, the 2024 Ruling

determined that Allen had properly alleged — under the Georgia theory — willful or

intentional copyright infringement, as well as a Fourteenth Amendment violation. The

court recited that the North Carolina defendants were “in the position to foresee a

deprivation and [they] acted pursuant to an established state procedure — § 121-25(b) —

whose purpose was to deprive Allen of his protected interest in his copyrights.” See 2024

Ruling 41. That is, the 2024 Ruling concluded that “under Georgia, [§ 511 of the CRCA]

validly abrogates the State’s sovereign immunity as-applied.” Id. at 43. As a result, Count

I of the 2023 Amended Complaint — alleging copyright infringement and a related denial

of Fourteenth Amendment due process pursuant to Allen’s Georgia theory — was Allen’s

sole surviving claim (the “Georgia copyright infringement due process claim”).

* * *

On September 30, 2024, the North Carolina defendants noticed the appeal that is

now pending before our Court. The defendants therein stated that they appealed “from

those parts of the district court’s [2024 Ruling] that denied defendants’ motions to dismiss

the second amended complaint.” See J.A. 316.

II.

Having ascertained and summarized the factual and procedural background of this

appeal, we turn to the issues which are raised in these circumstances and the competing

contentions of the parties. Three issues are presented for consideration.

16 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 17 of 35

First, we must examine the extent and bases of our jurisdiction in this appeal, which

was initiated by the North Carolina defendants following the 2024 Ruling. Second, we

assess whether and to what extent we must consider and resolve the contention of the North

Carolina defendants that the 2021 Decision was fatally flawed. And third, we will decide

whether the challenge of the North Carolina defendants to the 2024 Ruling of the district

court should be sustained.

III.

Having provided the foregoing overview of the issues we are obliged to resolve, we

turn to them in that order. Specifically, we will assess our jurisdiction, consider the 2021

Decision, and then discuss our disposition of the 2024 Ruling.

In assessing the jurisdictional morass presented here, we will first summarize the

respective positions of the parties. We indisputably possess jurisdiction over the 2024

Ruling, pursuant to the collateral order doctrine, because that Ruling denied the North

Carolina defendants sovereign immunity from Allen’s Georgia copyright infringement due

process claim. See Jackson Creek Marine, LLC v. Maryland, 153 F.4th 423, 428 (4th Cir.

2025) (“[T]he denial of a state’s assertion of sovereign immunity may be immediately

appealed under the collateral order doctrine.”).

But the North Carolina defendants contend that, in resolving this appeal, we are also

entitled to review the 2021 Decision of the district court, pursuant to Rule 3(c)(4) of the

17 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 18 of 35

Federal Rules of Appellate Procedure. Specifically, they maintain that the 2021 Decision

was an earlier-in-time ruling that “led up to” and merged into the appealable 2024 Ruling.

See Reply Br. of Appellant 6-7. The North Carolina defendants argue, in other words, that

a denial of sovereign immunity is a final decision under 28 U.S.C. § 1291, and therefore

that it is an “appealable order” with which the 2021 Decision must merge. Id. at 14 (relying

on Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 141

(1993)); see also Lee-Thomas v. Prince George’s Cnty. Pub. Schs., 666 F.3d 244, 247 (4th

Cir. 2012) (“We possess jurisdiction under the collateral order doctrine to review a denial

of Eleventh Amendment immunity, in that such a ruling is deemed a final decision under

28 U.S.C. § 1291.”).

Allen, on the other hand, contends that our jurisdiction in this appeal is limited to

the 2024 Ruling only. Allen asserts that the authorities relied upon by the North Carolina

defendants for their merger argument involve appeals that arise from traditional final

judgment rulings, such as summary judgments, rather than collateral orders that are

appealable because they are final decisions within the meaning of § 1291, such as an order

— like the 2024 Ruling — denying sovereign immunity. See Jenkins v. Woodard, 109

F.4th 242, 246-47 (4th Cir. 2024) (merging order granting summary judgment with earlier

orders denying requests for appointment of counsel and additional time for discovery).

To be sure, Rule 3(c)(4) of the Appellate Rules provides that a “notice of appeal

encompasses all orders that, for purposes of appeal, merge into the designated judgment or

appealable order.” See Fed. R. App. P. 3(c)(4). But our Court has apparently never applied

Rule 3(c)(4) to merge and confer appellate jurisdiction over an earlier interlocutory order,

18 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 19 of 35

such as the 2021 Decision, with an appealable collateral order denying a claim of sovereign

immunity, or any other type of immunity.

In these circumstances, we are content to leave for another day the North Carolina

defendants’ Rule 3 merger contention. And that is because we are satisfied that we possess

what is called pendent appellate jurisdiction over the 2021 Decision.

Pendent appellate jurisdiction is a “judicially-created, discretionary exception to the

final judgment requirement.” See Rux v. Republic of Sudan, 461 F.3d 461, 475 (4th Cir.

2006). When an issue is already properly before a court of appeals, “[p]endent appellate

jurisdiction permits appellate courts to ‘retain the discretion to review issues that are not

otherwise subject to immediate appeal when such issues are so interconnected with

immediately appealable issues that they warrant concurrent review.’” See Nero v. Mosby,

890 F.3d 106, 123 (4th Cir. 2018) (citing Rux, 461 F.3d at 475). Though pendent appellate

jurisdiction should only be exercised sparingly, we have recognized that it may be utilized

“(1) when an issue is inextricably intertwined with a question that is the proper subject of

an immediate appeal; or (2) when review of a jurisdictionally insufficient issue is necessary

to ensure meaningful review of an immediately appealable issue.” See Scott v. Fam. Dollar

Stores, Inc., 733 F.3d 105, 111 (4th Cir. 2013) (citation modified); see also Swint v.

Chambers Cnty. Comm’n, 514 U.S. 35, 49-50 (1995) (cautioning against “a rule loosely

allowing pendent appellate jurisdiction”).

As to the first situation, separate issues are “inextricably intertwined” when “the

same specific question will underlie both the appealable and the non-appealable order, such

19 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 20 of 35

that resolution of the question will necessarily resolve the appeals from both orders at

once.” See Indus. Servs. Grp., Inc. v. Dobson, 68 F.4th 155, 167 (4th Cir. 2023) (citation

modified); see also Altman v. City of High Point, N.C., 330 F.3d 194, 207 n.10 (4th Cir.

2003) (determining that resolution of issue of whether officers were entitled to qualified

immunity was “inextricably intertwined” with issue of whether municipality could be held

liable because the immunity issue “fully resolve[d]” the municipality’s liability). We have

thus exercised pendent appellate jurisdiction when an earlier, non-immediately appealable

order “is inextricably linked to the outcome of the” appealable issue. See Hinson v.

Norwest Fin. S.C., Inc., 239 F.3d 611, 615 (4th Cir. 2001).

As to the second scenario, an issue is “necessary to ensure meaningful review if

resolution of the appealable issue necessarily resolves the non-appealable issue or where

review of the non-appealable issue is necessary to ensure meaningful review of the

appealable one.” See Scott, 733 F.3d at 111 (citation modified). Our Court has utilized

this alternative when orders at issue have been “so interconnected” that they had to be

reviewed concurrently. See Elegant Massage, LLC v. State Farm Mut. Auto. Inc. Co., 95

F.4th 181, 188-89 (4th Cir. 2024) (exercising pendent appellate jurisdiction over non-

appealable order because “threshold merits question” addressed therein was “integral” to

ruling in appealable order).

The circumstances of this collateral order appeal from the 2024 Ruling warrant the

exercise of our discretion to review the 2021 Decision under either prong of the pendent

jurisdiction analysis. See Ealy v. Pinkerton Gov’t Servs., Inc., 514 Fed. App’x 299, 309

20 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 21 of 35

(4th Cir. 2013) (“But the two potential pendent jurisdiction scenarios set forth in Swint are

not always so easily distinguished.”). Put succinctly, it would be unworkable for us to rule

that we possess jurisdiction with respect to the 2024 Ruling — which denied the North

Carolina defendants sovereign immunity — but that we lack jurisdiction concerning the

2021 Decision that made the 2024 Ruling possible.

To be sure, this is not a situation where the 2021 Decision is merely related to, or

helpful to, an analysis of the 2024 Ruling. The 2021 Decision is the sole and only seed

thereof. Put differently, the 2021 Decision is the necessary foundational prerequisite for

the appealable 2024 Ruling, and it is therefore linked inextricably to our disposition of this

appeal. The plain terms of the 2024 Ruling make that clear, as they reference the scope of

the authorized “reconsideration” fixed by the 2021 Decision in analyzing the North

Carolina defendants’ sovereign immunity-based motion to dismiss. See 2024 Ruling 2

(“Much of the Second Amended Complaint goes far beyond the Court’s instructions[.]”).

The 2021 Decision also made explicit rulings concerning Allen’s Georgia theory, which is

an issue in the North Carolina defendants’ appeal of the 2024 Ruling. See 2021 Decision

23-24 (determining that alleged conduct of North Carolina defendants amounted to both

statutory and constitutional violations, and “[t]herefore, [Allen] can still use the CRCA as

a basis for [his] Georgia claim”).

On a similar score, the 2021 Decision was the sole basis for the district court’s

purported authority relative to the 2024 Ruling. See Hendricks v. Bank of America, 408

F.3d 1127, 1134-35 (9th Cir. 2005) (explaining that pendent appellate jurisdiction may

exist “over those questions that implicate the very power the district court used to issue the

21 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 22 of 35

rulings then under consideration”). In this situation, if the court erred in 2021 in reopening

this litigation to “reconsider” contentions that it never addressed, it would unequivocally

have no authority to analyze and resolve the North Carolina defendants’ Eleventh

Amendment sovereign immunity claims before us today.

The foregoing concerns are especially ripe here, because our Court and the Supreme

Court have each determined at least six years ago that the North Carolina defendants are

entitled to sovereign immunity on Allen’s claims. And in these circumstances, the 2021

Decision is “so interconnected” with the 2024 Ruling “as to require concurrent review.”

See Elegant Massage, LLC, 95 F.4th at 188. As a result, we will exercise our discretion to

apply the pendent appellate jurisdiction doctrine and also assess the 2021 Decision in this

collateral order appeal from the 2024 Ruling.

Satisfied with the jurisdictional question, we proceed to assess whether the district

court erred in reopening Allen’s litigation in 2021. 7 As explained above, on September 4,

2020, Allen moved for reconsideration in the district court, relying on Rule 60(b)(6) of the

Federal Rules of Civil Procedure, which applies to relief from final judgments, orders, or

7 As a threshold matter, we reject Allen’s contention that the North Carolina defendants waived their objections to the 2021 Decision by failing to raise them when they appealed the 2021 Decision in September 2021. Allen moved to dismiss immediately after the North Carolina defendants noticed their 2021 appeal. And we granted Allen’s motion and dismissed for lack of jurisdiction. See Allen v. Cooper, No. 21-2040, 2022 WL 19226124 (4th Cir. Oct. 14, 2022), ECF No. 27.

22 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 23 of 35

proceedings in certain circumstances. The court, however, proceeded to a

“reconsideration” of Allen’s copyright and constitutional claims under Rule 54(b) — a less

onerous Rule for modification of non-final decisions.

Of importance here, a district court’s application of each of those Rules is reviewed

on appeal for abuse of discretion. See, e.g., Carlson v. Bos. Sci. Corp., 856 F.3d 320, 325

(4th Cir. 2017) (reviewing 54(b) ruling for abuse of discretion); Aikens v. Ingram, 652

F.3d 496, 501 (4th Cir. 2011) (en banc) (reviewing 60(b) ruling for abuse of discretion).

We have recognized that “a district court abuses its discretion when it acts in an arbitrary

manner, when it fails to consider judicially-recognized factors limiting its discretion, or

when it relies on erroneous factual or legal premises.” See Wall v. Rasnick, 42 F.4th 214,

220 (4th Cir. 2022) (citation modified). Notably, our Court has made clear that “an error

of law is by definition an abuse of discretion, and such an error is alone grounds for

reversal.” See Wudi Industrial (Shanghai) Co., Ltd. v. Wong, 70 F.4th 183, 190 (2023)

(citation modified); Pendleton v. Jividen, 96 F.4th 652, 656 (4th Cir. 2024) (“A ruling that

rests on an error of law is necessarily an abuse of discretion.”).

In this light, we will first evaluate whether the district court abused its discretion in

deciding to apply Rule 54(b) — rather than Rule 60(b) — to its consideration of Allen’s

2021 motion to revive his Georgia-based copyright and constitutional claims. And we are

satisfied that the court erred in that regard. Put simply, Rule 60(b) was the only conceivable

— yet nevertheless inadequate — means to reopen this litigation.

23 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 24 of 35

Before explaining that reconsideration of this litigation was erroneous under Rule

60(b), we will first discuss why it was not permissible under Rule 54(b) and describe why

the 2021 Decision amounts to an “error of law” that is “alone grounds for reversal.” See

Wudi, 70 F.4th at 190 (citation modified). And that is because Rule 54(b) applies to

interlocutory, pre-judgment orders, whereas Rule 60(b) governs final judgments. Rule

54(b) provides, in relevant part, that

any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.

See Fed. R. Civ. P. 54(b) (emphasis added). By contrast, and entirely on the other hand,

Rule 60(b) is titled “Grounds for Relief from a Final Judgment, Order, or Proceeding.”

See Fed. R. Civ. P. 60(b) (emphasis added).

In addressing Allen’s request in 2021 for “reinstatement of [his] lawsuit and an

opportunity to amend [his] complaint” with respect to his then-dismissed claims that the

North Carolina defendants had violated the CRCA and the Fourteenth Amendment, the

district court ruled that “reconsideration of its [2017 Ruling] of dismissal is appropriate in

this case under the Rule 54(b) standard.” See 2021 Decision 21-22. The court determined

that its 2017 Ruling had not been a final order, because only some of Allen’s claims against

the North Carolina defendants were dismissed, and a non-governmental defendant, the

Friends of QAR, remained in the suit. But that analysis failed to assess the relevant

24 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 25 of 35

appellate procedural history. Taking that history into account, there is no doubt that the

2017 Ruling was not an interlocutory order within the purview of Rule 54(b).

A brief restatement of the procedural timeline is helpful. The district court ruled in

2017 that the North Carolina defendants’ sovereign immunity contentions on Allen’s

copyright-based claims had not been abrogated. We reversed that decision — ruling in

2018 that the North Carolina defendants were immune from Allen’s claims. And the

district court then dismissed Allen’s claims against the North Carolina defendants —

pursuant to our Court’s mandate — on August 24, 2018.

Following the Supreme Court’s affirmance of our Court’s 2018 Decision in 2020,

Allen dismissed his lawsuit against the only then-remaining defendant, the Friends of

QAR, on August 17, 2020. With all parties having been dismissed from the litigation, as

of August 2020, the lawsuit was no longer in existence, in that all rights and liabilities

between and among the various parties had been adjudicated within the meaning of Rule

54(b).

In other words, the district court’s implementation of our Court’s 2018 mandate and

Allen’s dismissal of the Friends of QAR in 2020 necessarily had resulted in a final

judgment. There was thus no interlocutory order for the district court to seek to “revise”

in 2021. See Fed. R. Civ. P. 54(b); Waetzig v. Halliburton Energy Servs., Inc., 604 U.S.

305, 312 (2025) (holding that even a “voluntary dismissal without prejudice is ‘final’ under

Rule 60(b)” and that such a “dismissal is the conclusive and last filing on the docket, and

it completes the particular lawsuit at issue” (citation modified)). This litigation — which

began in 2015 — was concluded in 2020, and there was nothing for the district court to do

25 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 26 of 35

with respect to Allen’s lawsuit. See Calderon v. GEICO Gen. Ins. Co., 754 F.3d 201, 204

(4th Cir. 2014) (“In the ordinary course a ‘final decision’ is one that ends the litigation on

the merits and leaves nothing for the court to do but execute the judgment.” (citation

modified)).

The purpose of Rule 54(b) is to allow an appeal before “the determination of all

issues as to all parties” and “before a final judgment can be had.” See Dickinson v.

Petroleum Conversion Corp., 338 U.S. 507, 511 (1950). Although the district court’s 2021

actions might have been proper in 2017, they were not proper in 2021. The 2021 Decision

of the district court was thus an abuse of its discretion.

Resisting that straightforward conclusion, however, Allen maintains that he had

obtained leave to file his motion for reconsideration before he voluntarily dismissed the

Friends of QAR, and that there was not a final judgment for Rule 60(b) purposes. But this

proposition is without merit. Despite Allen’s creative characterizations, Allen’s Rule

60(b)(6) motion was undeniably filed on September 4, 2020, after he had voluntarily

dismissed the Friends of QAR on August 17, 2020. Put simply, the briefing schedule

established by the district court is not the relevant measurement — the motion itself, which

Allen filed to seek leave to amend his complaint to again pursue his claims against the

North Carolina defendants, is what controls. See Fed. R. Civ. P. 41(a)(1)(A)(ii)

(establishing that voluntary stipulation of dismissal does not require court order to become

effective); see also 9 Charles A. Wright & Arthur Miller, Federal Practice and Procedure

§ 2363, at 270-271 (2d ed. 1995) (explaining that “voluntary dismissal by stipulation is

effective immediately upon filing and does not require judicial approval”).

26 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 27 of 35

The result of the foregoing analysis is inevitable: On September 4, 2020, when

Allen filed his motion for reconsideration — seeking leave to amend his failed and

dismissed complaint — there were no live claims then pending against any defendant, and

this lawsuit had terminated. And Allen apparently recognized that Rule 60(b) was the only

possible avenue for obtaining reconsideration, as he invoked that Rule himself. See J.A.

58 (declaring that Allen “move[s] pursuant to Rule 60(b)(6) for [the district court] to

reconsider its Order . . . dismissing Count III of Allen’s amended complaint”); see also

J.A. 54 (status report filed by Allen on July 15, 2020 in the district court describing Allen’s

settlement with Friends of Queen Anne’s Revenge as “the only live issue in the case”).

We accordingly turn to whether the district court abused its discretion on August

18, 2021, by filing its 2021 Decision that purported to reopen this litigation under Rule

60(b). See Humphrey v. Humphrey, 434 F.3d 243, 248 (4th Cir. 2006) (“When a trial court

applies the wrong legal test an appellate court may resolve the case without remanding if

the evidence would inevitably produce the same outcome under the correct standard.”

(citation modified)). We are satisfied that an abuse of discretion occurred with respect to

the 2021 Decision.

Rule 60(b) of the Federal Rules of Civil Procedure authorizes a federal court to

“relieve a party from a final judgment, order, or proceeding” in certain specific

circumstances, including mistake or excusable neglect, newly discovered evidence, or

27 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 28 of 35

fraud. See Fed. R. Civ. P. 60(b)(1)-(5) (citation modified). 8 Rule 60(b) also contains a

“catchall” provision — in Rule 60(b)(6) — that a court may apply for “any other reason

that justifies relief.” Id. at 60(b)(6). The catchall provision of Rule 60(b)(6) is only to be

applied, however, when “the movant demonstrates extraordinary circumstances.” See

Wells Fargo Bank, N.Z. v. AMH Roman Two NC, LLC, 859 F.3d 295, 299 (4th Cir. 2017)

(citation modified); Ackermann v. United States, 340 U.S. 193, 199-202 (1950) (explaining

that “extraordinary circumstances” are required for Rule 60(b)(6) relief).

Moreover, “to obtain relief from a judgment under Rule 60(b), a moving party must

first show (1) that the motion is timely, (2) that he has a meritorious claim or defense, and

(3) that the opposing party will not suffer unfair prejudice if the judgment is set aside.” See

United States v. Welsh, 879 F.3d 530, 533 (4th Cir. 2018). Of especial relevance here, “if

8 Specifically, Rule 60(b)’s multiple enumerated reasons for relief, absent its “catchall” provision, include the following:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void; [and]

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable[.]

See Fed. R. Civ. P. 60(b)(1)-(5).

28 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 29 of 35

the reason asserted for the Rule 60(b)(6) motion could have been addressed on appeal from

the judgment, we have denied the motion as merely an inappropriate substitute for an

appeal.” See Aikens, 652 F.3d at 501; Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993

F.2d 46, 48 (4th Cir. 1993) (explaining that “voluntary, deliberate, free, untrammeled

choice” not to appeal judgment or order will not provide basis for Rule 60(b)(6) relief

(citing Ackermann, 340 U.S. at 200)).

In the present situation, Allen moved for reconsideration under Rule 60(b)(6) and

has made no assertion that his request for reconsideration fits into any of the five other

enumerated scenarios in Rule 60(b)(1) through (5). Nor could he. The Georgia decision

had been established Supreme Court precedent since 2006, that is, for approximately 14

years at the time Allen filed his Rule 60(b) motion. We must therefore decide whether

Allen has shown that there were “extraordinary circumstances” — which must exist in

order to invoke the “catchall” provision of Rule 60(b)(6) — sufficient to allow him to

reopen this litigation in 2021 and amend his complaint to reallege previously-dismissed

claims under an afterthought theory. The answer to that question is strikingly simple: no

such circumstances existed here, and the district court’s ruling is thus an erroneous abuse

of discretion.

In that regard, the crux of the district court’s reasoning in its 2021 Decision for

reopening this litigation and authorizing Allen to pursue his 2006 Georgia theory of

liability is that, because the district court had previously determined that the CRCA was

29 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 30 of 35

valid prophylactic abrogation, “it never considered whether [Allen has] a valid claim for

abrogation under Georgia.” See 2021 Decision 22. The court explained that it

never expressly closed the door to a valid claim of case-by-case abrogation under Georgia. Because this Court, the Fourth Circuit, and the Supreme Court all passed on the Georgia issue, it is appropriate to consider this claim for case-by-case abrogation following the Supreme Court’s decision rejecting the CRCA as a valid prophylactic statute.

Id. 9

The district court’s explanation in the 2021 Decision is fatally flawed for multiple

reasons. First, and perhaps most critically, the Georgia decision had been “on the books”

since 2006 — 10 years before Allen had even filed his 2016 Complaint. See United States

v. Georgia, 546 U.S. 151 (2006). Allen had never alleged a Georgia theory, and he had

neither raised nor pursued a Georgia-based contention before this Court in the 2018 appeal.

Critically, Allen did not argue a Georgia theory in the Supreme Court after our Court

disposed of his prophylactic abrogation theory. And that fact is important, because the

Georgia Court itself had granted a remand for the lower courts to assess whether as-applied

abrogation could be a viable alternative for the claims.

Second, neither Allen nor the district court has presented any explanation of how

Allen’s failure to pursue an established legal theory — such as that created by Georgia —

could ever meet the exceptional circumstances requirement of Rule 60(b)(6). See Omni

9 We observe that the 2021 Decision’s assertion that the Fourth Circuit “passed” on the Georgia issue is belied by our 2018 Decision. See Allen v. Cooper, 895 F.3d 337, 349 (4th Cir. 2018) (citing to Georgia and declaring that “Congress has plenary authority to abrogate sovereign immunity for claims arising from state conduct that amounts to an actual violation of the Fourteenth Amendment’s substantive guarantees”).

30 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 31 of 35

Outdoor Advert., Inc. v. Columbia Outdoor Advert., Inc., 974 F.2d 502, 506 (4th Cir. 1992)

(“[N]othing in the federal rules encourages a plaintiff to delay bringing causes of action

until the plaintiff’s ‘better’ claim is resolved.”). And, in this situation, Allen would need

to justify hauling the North Carolina defendants back into court concerning claims that

were dismissed years earlier on Eleventh Amendment sovereign immunity grounds. Put

simply, we agree with the North Carolina defendants that the prejudice to them from

Allen’s delay in pursuing his Georgia theory is “manifest.” See Br. of Appellant 35.

Third, the 2021 Decision was fatally flawed for yet another reason. That is, the

district court bypassed the second and third prongs of the Rule 60(b) analysis — i.e., that

the movant must establish that he has a meritorious claim or defense and that the opposing

party will not suffer unfair prejudice — in a handful of sentences from its 2021 Decision,

which perplexingly collapsed Allen’s Rule 60(b)(6) and Rule 15(a) burdens:

Defendant argues that [Allen’s] Georgia argument fails on the merits. However, [Allen] seek[s] an opportunity to amend to allege more facts to buttress the allegations of taking without due process, intentional infringements, and those responsible. Rule 15 of the Federal Rules of Civil Procedure provides that a party may amend his pleadings with leave of the court. Fed. R. Civ. P. 15(a)(2). Further, Rule 15 directs that leave to amend be freely given when justice requires. Id. “This liberal rule gives effect to the federal policy in favor of resolving cases on their merits instead of disposing of them on technicalities.” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (citing Conley v. Gibson, 335 U.S. 41, 48 (1957)).

See 2021 Decision 24 (emphasis added).

Notwithstanding the district court’s faulty analysis, the Supreme Court has recently

confirmed that a movant must satisfy Rule 60(b)(6)’s standard before a district court can

consider the issue of whether to grant leave to amend a complaint:

31 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 32 of 35

The Rule 60(b)(6) standard does not change when a party seeks to reopen his case to amend his complaint. In that circumstance, satisfaction of Rule 60(b)(6) necessarily precedes any application of Rule 15(a).

See BLOM Bank SAL v. Honickman, 605 U.S. 204, 213 (2025); see also Daulatzai v.

Maryland, 97 F.4th 166, 178 (4th Cir. 2024) (recognizing that “if a plaintiff seeks to reopen

a case under Rule 60(b) in order to file an amended complaint, she must satisfy one of the

Rule 60(b) grounds before a court may consider her motion to amend”). The 2021 Decision

authorized Allen to reopen his litigation then and there, and to demonstrate its merits later,

notwithstanding the North Carolina defendants’ objections. See BLOM Bank SAL, 605

U.S. at 214 (“What a district court may not do is what the Second Circuit demanded here:

dilute Rule 60(b)(6)’s stringent standard by balancing it with Rule 15(a)’s liberal pleading

principles.” (citation modified)).

Fourth, we cannot accept the 2021 Decision’s explanation that the belated nature of

Allen’s request to amend and pursue the Georgia theory prevents an unwarranted disposal

of a lawsuit on a “technicality.” See 2021 Decision 24 (citation modified). On the contrary,

it is difficult to imagine how the restart of this litigation is anything other than a “do-over.”

Our Court has been clear that “although Rule 15(a) indicates that leave to amend should be

freely given when justice so requires, the rule does not afford plaintiffs a tool to engage in

the litigation of cases one theory at a time.” See Omni Outdoor, 974 F.2d at 506 (citation

modified). As our Judge Wilkinson cogently explained therein, “trying cases one claim at

a time is both unfair to the opposing party and inefficient for the judicial system.” Id. In

these circumstances, Allen had a full and fair opportunity to raise and litigate his Georgia

32 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 33 of 35

contentions when he initiated this lawsuit in 2015. But he failed to do so then, in 2018

before our Court, and again in the Supreme Court in 2020.

Put simply, the district court abused its discretion in rendering its 2021 Decision.

We are constrained to reverse each of the rulings made therein with respect to the Georgia

copyright infringement due process claim. 10

In light of our conclusion that the 2021 Decision was an abuse of the district court’s

discretion, we turn to an assessment of the 2024 Ruling. On that score, we are satisfied to

vacate as moot the 2024 Ruling, pursuant to our Court’s precedent in Norfolk Southern

Railway Co. v. City of Alexandria, 608 F.3d 150 (4th Cir. 2010). As we recognized in 2010

in our Norfolk Southern decision, “[w]e are always obliged to assure ourselves that a live

dispute exists between the parties at all stages of litigation.” Id. at 161. To that end, “[a]

dispute is moot when the parties lack a legally cognizable interest in the outcome.” Id.

(citation modified). And “the parties lack such an interest when . . . our resolution of an

issue could not possibly have any practical effect on the outcome of the matter.” Id.; see

also Holloway v. City of Va. Beach, 42 F.4th 266, 275 (4th Cir. 2022) (“Under these well-

10 As we have heretofore explained, see supra Part I.C.2, the 2021 Decision also authorized reconsideration of the 2016 Complaint’s Count III Fifth Amendment takings claim that was dismissed by the district court in its 2017 Ruling. Because reconsideration of that claim was predicated on a perceived change in decisional law — rather than on Allen’s Georgia theory — and because no party contests the district court’s dismissal of that claim in its 2024 Ruling, we do not review that ruling.

33 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 34 of 35

established mootness principles, federal courts may not opine on the merits of a case when

doing so would have no practical effect on the outcome of the matter.” (citation modified)).

With those well-established principles in mind, “[t]he customary practice when a

case is rendered moot on appeal is to vacate the moot aspects of the lower court’s

judgment,” if the mootness “occurred through happenstance, rather than through the

voluntary action of the losing party.” See Norfolk S., 608 F.3d at 161-62 (citation

modified); Goldman v. Brink, 41 F.4th 366, 369 (4th Cir. 2022) (applying Norfolk Southern

precedent to, inter alia, vacate “unreviewed” constitutional ruling on Eleventh Amendment

sovereign immunity); Palmer v. Liberty Univ., Inc., 72 F.4th 52, 69 (4th Cir. 2023).

In these circumstances, we are of opinion that a decision on the underlying merits

of the 2024 Ruling “could not possibly have any practical effect on the outcome of the

matter,” given our disposition today on the 2021 Decision. See Norfolk S., 608 F.3d at 161.

That is, the resolution of the Eleventh Amendment sovereign immunity issues presented

— yet again — in this matter, vis-à-vis the 2024 Ruling, would necessarily “result in an

advisory opinion being rendered” on moot constitutional issues. Id. at 162; Goldman, 41

F.4th at 369. And although a party “may desire that we render an opinion to satisfy [a]

demand for vindication or curiosity about who’s in the right and who’s in the wrong”

relative to the Georgia copyright infringement due process claim, “we may only decide

cases that matter in the real world.” See Norfolk S., 608 F.3d at 161 (citation modified).

34 USCA4 Appeal: 24-1954 Doc: 44 Filed: 01/23/2026 Pg: 35 of 35

IV.

Pursuant to the foregoing, we are constrained to reverse the 2021 Decision and

vacate as moot — and hold for naught — the 2024 Ruling, as well as all rulings of the

district court subsequent to the 2021 Decision. Consistent therewith, we remand with

directions to close this litigation by dismissing the North Carolina defendants and all claims

lodged and pending against them herein, with prejudice.

REVERSED IN PART, VACATED IN PART, AND REMANDED WITH DIRECTIONS