The Week in Federal Appellate Jurisdiction: June 19–25, 2022
There’s not a lot to talk about from last week. In a footnote, the Supreme Court added another type of order to the list of immediately appealable collateral orders. And the Tenth Circuit explained its caselaw on fact-based absolute-immunity appeals.
- Shoop, the Collateral-Order Doctrine & Transportation Orders
- The Tenth Circuit on Fact-Based Absolute-Immunity Appeals
Shoop, the Collateral-Order Doctrine & Transportation Orders
In Tuesday’s Shoop v. Twyford, the Supreme Court reversed an order that required the state to transport a habeas petitioner from his prison to a hospital for medical testing. Before doing so, the Court had to explain how the Sixth Circuit had jurisdiction to immediately review this order. In a footnote, the Supreme Court said that the order was immediately appealable via the collateral-order doctrine. Dissenting, Justice Breyer would have held to the contrary. Also dissenting, Justice Gorsuch would have dismissed the case as improvidently granted, as the appellate-jurisdiction issue complicated the Court’s consideration of the transportation order.
I think the dissents have the better of the argument. Transportation orders like the one in Shoop are essentially discovery orders. And discovery orders like these are neither completely separate from the merits nor sufficiently important to warrant immediate review. Perhaps more troubling is Shoop’s use of the “conceptually distinct” test for separation. The majority said only that the transportation order was “conceptually distinct” from the merits—not that it was completely separate. This variation on the separateness requirement fudges the collateral-order requirements and risks both delayed district court proceedings and duplicative appellate review. The Court’s use of the test in Shoop—along with the Court’s brief, surface-level analysis—invites future mischief as litigants rely on Shoop to appeal other kinds of orders.
For more on Shoop, see my post Shoop, the Collateral-Order Doctrine & Transportation Orders.
Shoop v. Twyford, 2022 WL 2203347 (June 21, 2022), available at the Supreme Court and Westlaw.
The Tenth Circuit on Fact-Based Absolute-Immunity Appeals
In Vivos Therapeutics, Inc. v. Ortho-Tain, Inc., the Tenth Circuit dismissed an absolute-immunity appeal that turned on a factual dispute. The defendant invoked the litigation privilege against defamation claims, the denial of which would normally be appealable via the collateral-order doctrine. But the Tenth Circuit has held that denials based on factual issues are not immediately appealable. And that was partially the case in Vivos Therapeutics: the district court denied immunity due to a factual question of good faith concerning one of the allegedly defamatory statements.
Vivos Therapeutics, Inc. v. Ortho-Tain, Inc., 2022 WL 2223141 (10th Cir. June 21, 2022), available at the Tenth Circuit and Westlaw.
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