Appealing the Disqualification of a U.S. Attorney’s Office
Orders on the disqualification of counsel are not normally appealable. In most cases, an appeal from a final judgment suffices to protect the relevant interests. But what about when a district court disqualifies an entire U.S. Attorney’s Office from participating in a prosecution? Several courts have held that such a disqualification is immediately appealable via the collateral-order doctrine. Last week, in United States v. Williams, the Ninth Circuit agreed.
The Disqualification Order in Williams
Williams stemmed from the prosecution of alleged gang members for a variety of offenses. Simplifying a bit, several of the defendants alleged (in sealed and ex parte motions) misconduct on the part of the Assistant U.S. Attorney prosecuting the case. The district court ultimately disqualified in the entire Arizona U.S. Attorney’s Office and ordered the government to obtain counsel from another district or Main Justice.
The government then filed an appeal and, alternatively, petitioned for a writ of mandamus.
Appealing Attorney-Disqualification Orders
Attorney-disqualification orders—whether granting or denying disqualification—are obviously not final in the traditional sense. But litigants have tried to appeal these orders via the collateral-order doctrine. That doctrine permits appeals from certain kinds of orders that (1) conclusively resolve an issue, (2) involve an important issue that is separate from the merits, and (3) would be effectively unreviewable in a final-judgment appeal.
The Supreme Court has addressed this issue a few times. Each time, it rejected the appeal. In Firestone Tire & Rubber Co. v. Risjord, the Court held that litigants cannot take a collateral-order appeal from an order refusing to disqualify counsel in a civil case. In Flanagan v. United States, the Court held that criminal defendants cannot appeal from an order disqualifying defense counsel. And in Richardson-Merrell, Inc. v. Koller, the Court held that civil litigants cannot appeal from orders disqualifying counsel.
The Supreme Court has not addressed the appealability of orders disqualifying an entire U.S. Attorney’s Office. But a few courts of appeals—at least the Third, Sixth, Seventh, and Tenth Circuits—have. And they have all held that these orders satisfy the collateral-order doctrine.
Jurisdiction Under the Collateral-Order Doctrine
In Williams, the Ninth Circuit joined those other circuits. The disqualification order was conclusive (as most disqualification orders are). The order was separate from the criminal charges and implicated separation-of-powers interests. And a final-judgment appeal would not suffice:
Whether or not the government ultimately prevails on the misconduct motions here, the harm to the separation of powers cannot be remedied after a ruling on the defendants’ charges. After a final judgment, it will be too late for our court to undo any improper encroachment on the Executive branch’s prosecutorial prerogatives. If a trial results in an acquittal, then double jeopardy bars the government from appealing or re-prosecuting the case. And if the government obtains a guilty plea or verdict, it’s unlikely we can rectify the situation because the government has already prevailed.
(Citations omitted.)
The Ninth Circuit accordingly concluded “that disqualification of an entire U.S. Attorney’s Office warrants immediate appellate review under the collateral order doctrine.”
United States v. Williams, 2023 WL 3516095 (9th Cir. May 18, 2023), available at the Ninth Circuit and Westlaw
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More ContactRelated Posts
In Heidi Group, Inc.v. Texas Health and Human Services Commission, the Fifth Circuit reviewed the denial of federal and state immunities but declined to exercise pendent appellate jurisdiction over other issues. In the course of doing so, one judge questioned the collateral-order doctrine’s application to state immunities, and the entire court questioned the doctrine of […]
Continue reading....
In Grippa v. Rubin, the Eleventh Circuit addressed the immediate appealability of Florida’s absolute and qualified litigation privileges. The court determined that the absolute privilege was immediately appealable via the collateral-order doctrine. But the qualified litigation privilege was not.
Continue reading....
In New Albany Main Street Properties v. Watco Companies, LLC, the Sixth Circuit held that it could not review a decision granting leave to amend as part of a qualified-immunity appeal. The leave-to-amend decision was not itself immediately appealable. Nor could it tag along with the denial of immunity (which technically involved qualified immunity under […]
Continue reading....
In SEC v. EquityBuild, Inc., the Seventh Circuit heard an appeal from order approving the distribution of some—but not all—of the assets in a receivership proceeding. The order was appealable under the Seventh Circuit’s caselaw, which deemed these orders appealable via the collateral-order doctrine. Judge Easterbrook concurred to express doubt in this caselaw and suggest […]
Continue reading....
In Coomer v. Make Your Life Epic LLC, the Tenth Circuit held that denials of anti-SLAPP motions under Colorado law are not immediately appealable via the collateral-order doctrine. The court drew an interesting line between appeals involving primarily legal issues—which can warrant immediate appeal—and those involving primarily factual issues—which don’t. The court explained that fact-heavy […]
Continue reading....Recent Posts
May saw several decisions on effective injunction denials. One of those decisions raised an interesting question about the Supreme Court’s test for when a district court order effective denies a preliminary injunction. In other developments, the Fifth Circuit sat en banc to jettison its rule barring review of waiver-based remands. Other decisions addressed the finality […]
Continue reading....
In Heidi Group, Inc.v. Texas Health and Human Services Commission, the Fifth Circuit reviewed the denial of federal and state immunities but declined to exercise pendent appellate jurisdiction over other issues. In the course of doing so, one judge questioned the collateral-order doctrine’s application to state immunities, and the entire court questioned the doctrine of […]
Continue reading....
The Supreme Court granted cert in GEO Group, Inc. v. Menocal. The case asks if defendants can immediately appeal from the denial of derivative sovereign immunity via the collateral-order doctrine. I wrote about the petition and the underlying circuit split earlier this year. And I wrote about the Tenth Circuit decision from which the petition stems […]
Continue reading....
Injunction appeals have been in the spotlight of late. We’ve seen a few recent decisions on appeals from temporary restraining orders. And this month has already produced three cases involving effective denials of preliminary injunctions. One of these cases raised a question about the test for effective—and thus appealable—injunction denials. Under the Supreme Court’s decision […]
Continue reading....
In Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, the en banc Fifth Circuit held that 28 U.S.C. § 1447(d) does not bar review of waiver-based remands. In so holding, the court overruled its decision in In re Weaver.
Continue reading....