Criminal Appeals & Some Thoughts on the Collateral-Order Doctrine

The collateral-order doctrine is one of the most frequently invoked exceptions to the final-judgment rule. The doctrine deems final a district court order that (1) conclusively resolves an issue, (2) involves an important issue that is separate from the merits, and (3) would be effectively unreviewable in an appeal after a final judgment. The collateral-order doctrine is also the final-judgment rule’s most maligned exception. Its requirements have a variety of meanings, and courts have applied it in a variety of ways. The doctrine is accordingly rife with complexity and uncertainty.

Two recent decisions illustrate some of the issues with the collateral-order doctrine, particularly issues that arise in criminal cases. In United States v. Trump, the D.C. Circuit held that it could review a denial of presidential immunity in a criminal prosecution. In the course of doing so, the D.C. Circuit had to wrestle with whether appeals under the collateral-order doctrine require a statutory or constitutional immunity from litigation. And in United States v. Castellon, a concurring judge suggested that the normal strictness with which courts apply the collateral-order doctrine in criminal cases should not apply to sentencing appeals.

These decisions hint at something I’ve been thinking about for a while. I’m not sure there is a single collateral-order doctrine anymore. I suspect there are instead multiple versions of the doctrine, each applying in different contexts and having different requirements. And some clarity might come from acknowledging the variety of collateral-order doctrines.

Applying the Collateral-Order Doctrine with the “Utmost Strictness” in Criminal Cases

The Supreme Court has frequently tried to cabin the scope of the collateral-order doctrine. Those efforts have been especially strong in the criminal context. The Court has noted that delays are especially harmful in criminal cases. So the Court has approached the collateral-order doctrine with the “utmost strictness” in the criminal context. Indeed (and as courts often like to point out), the Supreme Court has allowed collateral-order appeals from criminal prosecutions in only four instances:

• Denials of a double jeopardy defense,
• Denials of a Speech & Debate Clause immunity,
• Denials of claims of excessive bail, and
• Orders requiring the involuntary medication of a defendant.

One aspect of this strictness is the Court’s dubious approach to claims of an immunity from litigation. A right to avoid litigation—that is, a right to be free from the cost, burdens, and uncertainty of litigation—cannot be remedied in an appeal from a final judgment. At that point, the damage cannot be undone. So certain immunities from litigation, such as qualified immunity, are immediately appealable.

But it’s too easy to frame a defense as a right to avoid litigation. To distinguish between mere defenses from liability and immunities from suit, the Supreme Court said in Midland Asphalt Corp. v. United States that rights not to be tried for collateral-order purposes “rest[] upon an explicit statutory or constitutional guarantee that trial will not occur.” Combined with the “utmost strictness” approach that criminal cases require, Midland Asphalt’s requirement of a explicit guarantee suggests little room for collateral-order appeals in criminal cases. A recent First Circuit case illstrates as much. The court held that denials of judicial immunity in criminal prosecutions are not immediately appealable, as judicial immunity does not have a statutory or constitutional basis.

United States v. Trump & Explicit Guarantees

The D.C. Circuit had to reckon with Midland Asphalt in United States v. Trump. The district court rejected the defendant’s claim of presidential immunity. And the D.C. Circuit held that this denial was appealable via the collateral-order doctrine, despite there being no explicit statutory or constitutional guarantee of presidential immunity from criminal prosecution.

Regarding Midland Asphalt, the D.C. Circuit explained that the opinion cannot be read literally, as if it was carefully chosen statutory language. The court thought that the Supreme Court’s subsequent decision in Digital Equipment Corp. v. Desktop Direct, Inc. opened the door to exceptions to Midland Asphalt’s “explicit statutory or constitutional guarantee” requirement. The court also thought that the statement might be dicta. To resolve any doubts, the court pointed out that the president is “sui generis”:

In the civil context, the Court has held that the denial of the President’s assertion of absolute immunity is immediately appealable “[i]n light of the special solicitude due to claims alleging a threatened breach of essential Presidential prerogatives under the separation of powers.” And in United States v. Nixon, the Court waived the typical requirement that the President risk contempt before appealing because it would be “unseemly” to require the President to do so “merely to trigger the procedural mechanism for review of the ruling.” It would be equally “unseemly” for us to require that former President Trump first be tried in order to secure review of his immunity claim after final judgment.

The court ended by noting that Midland Asphalt provided no good reason to distinguish between explicit constitutional immunities and implicit ones when it came to appellate jurisdiction.

So perhaps Midland Asphalt’s express-guarantee requirement is not as strong as previously believed.

United States v. Castellon & Sentencing Appeals

There is also some question of whether the “utmost strictness” approach to criminal appeals applies to all stages of criminal proceedings. In United States v. Castellon, the Fourth Circuit dismissed an appeal from an order requiring a criminal defendant to appear at a sentencing hearing. The court explained that an attendance order does not implicate an important right that required an immediate appeal. Granted, any right not to attend would be irretrievably lost—there was no way to correct this error in an appeal after sentencing. But the right to waive presence at sentencing comes from Federal Rule of Criminal Procedure 43. And that rule exists for judicial economy purposes, not to protect a defendant’s rights. The Fourth Circuit accordingly concluded that the “interest in waiving the right to be physically present at resentencing paled in comparison to the four interests that have been deemed sufficiently important to give rise to collateral order jurisdiction.” (Cleaned up.)

Judge Wynn concurred in the judgment. He pointed out that the especially strict approach to the collateral-order doctrine came from the “compelling interest in prompt trials.” That interest, Judge Wynn explained, goes away after a conviction. So in the sentencing context, the court should not approach the collateral-order doctrine as strictly as it does when a defendant appeals before a conviction.

Collateral-Order Doctrines

One thing I’ve been thinking about lately is that there might not be a single collateral-order doctrine anymore. There might instead be multiple versions of the doctrine that govern different things. Judge Wynn’s concurrence in Castellon hints at this, as he suggests applying the normal collateral-order doctrine (of Cohen v. Beneficial Industrial Loan Corp.) rather than the strict one for criminal cases (which he attributed to the Supreme Court’s decision in Flanagan v. United States). Maybe separating the strains of collateral-order jurisprudence would bring some clarity and predictability to this area of the law.

United States v. Trump, 2024 WL 436971 (D.C. Cir. Feb. 6, 2024), available at the D.C. Circuit and Westlaw

United States v. Castellon, 2024 WL 591893 (4th Cir. Feb. 14, 2024), available at the Fourth Circuit and Westlaw