USA v. Jeffrey Spivack

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11886
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY SPIVACK,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:21-cr-80016-KAM-1
____________________
USCA11 Case: 23-11886 Document: 13-1 Date Filed: 08/15/2023 Page: 1 of 2

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2 Opinion of the Court 23-11886
Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges.
PER CURIAM:
This appeal is DISMISSED, sua sponte, for lack of jurisdic-
tion. Jeffrey Spivack appeals from the district court’s May 18, 2023,
order construing his motion to dismiss as a 28 U.S.C. § 2255 motion
to vacate. That order is not final and appealable, however, because
it did not end the litigation on the merits in the district court. See
28 U.S.C. § 1291; Acheron Cap., Ltd. v. Mukamal, 22 F.4th 979, 986
(11th Cir. 2022) (stating that a final order ends the litigation on the
merits and leaves nothing for the court to do but execute its judg-
ment). The district court has not ruled on the recharacterized
§ 2255 motion.
Additionally, the district court’s May 18, 2023 order is not
effectively unreviewable on appeal from a final order resolving the
case on the merits. Plaintiff A v. Schair, 744 F.3d 1247, 1252-53 (11th
Cir. 2014) (explaining that a ruling that does not conclude the liti-
gation may be appealed under the collateral order doctrine if it, in-
ter alia, is “effectively unreviewable on appeal from a final judg-
ment”).
No petition for rehearing may be filed unless it complies
with the timing and other requirements of 11th Cir. R. 40-3 and all
other applicable rules.
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