A footnote in Shoop v. Twyford expanded the list of orders immediately appealable via the collateral-order doctrine to include “[t]ransportation orders issued under the All Writs Act.” In doing so, the Court invited more mischief involving the collateral-order doctrine.
June 22, 2022
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.
The Shoop Litigation
I wrote about the Sixth Circuit’s decision in Shoop in a prior roundup. Briefly, the petitioner in Shoop sought neurological imaging in aid of his habeas petition. Because the facility in which he was held could not perform this imaging, the petitioner sought an order requiring the warden to transport him to a local university medical center. The district court granted this request. The warden then appealed.
A divided Sixth Circuit ultimately affirmed the transportation order. Before doing so, the court determined that it had jurisdiction to immediately review the transportation order under the collateral-order doctrine. That doctrine deems final—and thus immediately appealable—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. As the Sixth Circuit saw things, the transportation order conclusively resolved the transport issue. The order also involved issues unrelated to the merits of the habeas petition that “implicate[d] important issues of state sovereignty and federalism.” And the order would be effectively unreviewable absent an immediate appeal, as the state would “have already undertaken the burden, risk, and expense of transporting [the petitioner] for neurological imaging.” Further, the federalism concerns underlying the order distinguished it from normal discovery orders.
The Majority Opinion
The Supreme Court granted the state’s petition for cert and ultimately reversed the Sixth Circuit.
The majority opinion addressed the Sixth Circuit’s jurisdiction in a footnote. The analysis was brief. No one seemed to dispute that the transportation order was conclusive on the transportation issue or that it would be effectively unreviewable after a final judgment. As for the collateral-order doctrine’s second requirement, the majority said that the transportation order involved “an important question of state sovereignty conceptually distinct from the merits of the prisoner’s claim.” Further, the order was not a normal discovery order. It created public-safety risks (transporting a prisoner outside of the prison walls) and imposed irreparable costs on the state. The Court also noted that every court of appeals to address this issue has concluded that transportation orders are immediately appealable.
Justice Breyer’s Dissent
Justice Breyer dissented, contending that the Sixth Circuit lacked jurisdiction to review the transportation order. As he saw things, the order did not “resolve an important question of state sovereignty conceptually distinct from the merits of the prisoner’s claims.”
Justice Breyer gave three reasons for his conclusion. First, the order was not sufficiently important. It was essentially a discovery order, which are not immediately appealable via the collateral-order doctrine. The benefits of immediate appeals in this context are low. District courts have a comparative advantage in deciding discovery issues, meaning that there are few error-correction benefits to be gleaned from immediate appeals. The potential for disruption is also great, as the discovery appeal can grind district court proceedings to a halt. Immediate as-of-right appeals are thus unnecessary. And when a particular transportation order merits an immediate appeal, other avenues exist: certified appeals under 28 U.S.C. § 1292(b), writs of mandamus, and the contempt option.
Second, state-sovereignty concerns did not change the analysis. For one thing, government litigants get no special treatment in this context:
[T]he mere fact that the appealing party is a State is not, on its own, enough to justify interlocutory appeal. We have never suggested, for example, that a discovery order against a State is immediately appealable simply because it imposes costs on a sovereign State. To allow interlocutory appeal on such grounds would create an anomaly: The State would be able to immediately appeal a discovery order entered against it, but an opposing party would not.
For another, the transportation order in question was not uniquely troublesome. The medical center was the official prison hospital, and it had the infrastructure to accommodate prisoners. Indeed, the state had transported the petitioner to the same medical center 16 times, all without incident. And the mere fact that a transportation order involves risk is not enough to warrant an immediate appeal. Otherwise, all sorts of orders involving the moving of prisoners will now be immediately apepalable.
Finally, Justice Breyer explained that there was insufficient separation between the transportation order and the merits. In its opinion reversing the transportation order, the majority had said that the petitioner must show that “the desired evidence would be admissible in connection with a particular claim for relief.” The district court thus must make a preliminary assessment of the potential evidence. Later, the district court will determine whether that evidence is admissible. “Requiring appellate courts to review both the district court’s preliminary assessment of admissibility on interlocutory appeal and its ultimate assessment of the same question after final judgment is unnecessarily duplicative and inefficient.”
Justice Breyer also noted that there were only four court of appeals decisions on this issue (in addition to Shoop itself) across four decades, which is hardly a consensus of authority.
Justice Gorsuch’s Dissent
Justice Gorsuch dissented separately to contend that the writ of cert was improvidently granted. The Supreme Court took this case to address the propriety of transportation orders. The later-discovered appellate-jurisdiction issue got in the way of that issue. Rather than expand the list of immediately appealable collateral orders, Justice Gorsuch would have saved the transportation issue for a future case.
A Questionable Expansion
I find Shoop’s jurisdictional holding questionable.
At the very least, the issue required more than a curt footnote. It’s hardly obvious that these sorts of transportation orders satisfy the collateral-order doctrine. And the surface-level analysis invites mischief in the future as courts and litigants try to apply Shoop’s holding to other types of orders. (More on that in a moment.)
More to the point, I think Justice Breyer has the better of this argument. As he explained, the costs of these appeals likely outweigh the benefits. The benefits are probably few. District courts are likely to get these orders right (or at least as likely as appellate courts), resulting in few error-correction benefits. As for costs, there are significant opportunities for mischief. Government litigants can use these appeals to delay district court proceedings and grind down opposing parties’ willingness to litigate. The other opportunities for appellate review seem sufficient.
One additional point worth emphasizing is the majority’s conclusion that the transportation order was “conceptually distinct” from the merits. Most recitations of the collateral-order doctrine’s elements say that the order must be completely separate from the merits. But courts occasionally substitute that requirement with a requirement that the issues be conceptually distinct. This comes from Mitchell v. Forsyth, which held that denials of qualified immunity are immediately appealable via the collateral-order doctrine.
As I’ve explained elsewhere, Mitchell’s “conceptually distinct” test fudges the collateral-order doctrine’s separate-from-the-merits requirement. This requirement avoids delay in district court proceedings. If the appealed order is completely separate from the merits, litigation of the merits can proceed while the appeal is pending. Separation also ensures that courts of appeals don’t review the same (or similar) issues twice—once in the collateral-order appeal and again after a final judgment.
When appealable issues are not completely separate from the merits, district court proceedings can stall and courts of appeals might review the same (or similar) issues twice. So even if the transportation order is conceptually distinct from the underlying habeas petition, that’s not enough separation for a well-functioning appeal system.
Courts sometimes bend the rules of appellate jurisdiction so that they can reach a case’s merits. Shoop seems to be one of those cases. This is problematic for the Shoop decision. But it also creates problems for the future. Future litigants will likely rely on Shoop and its shaky reasoning to try and appeal other issues. To be sure, the courts of appeals can beat back these attempted appeals. But that requires work.
Shoop v. Twyford, 2022 WL 2203347 (June 21, 2022), available at the Supreme Court and Westlaw.