Skipping Appellate Jurisdiction to Address Subject-Matter Jurisdiction

In Solomon v. St. Joseph Hospital, the Second Circuit skipped over appellate-jurisdiction issues to address the district court’s subject-matter jurisdiction. On its face, the opinion suggests that litigants can take interlocutory appeals to challenge federal subject-matter jurisdiction. This would be a massive—and likely inadvertent—expansion of interlocutory appeals.

The Solomon Litigation

Simplifying a bit, the plaintiff sued the defendants in New York state court, alleging malpractice claims. The defendants then removed the case to federal court. As a basis for federal jurisdiction they invoked (among other things) immunity under the Public Readiness and Emergency Preparedness Act, which is sometimes called the “PREP” Act. The plaintiff never sought a remand or otherwise challenged federal subject-matter jurisdiction.

The defendants then moved to dismiss the plaintiff’s claims, arguing (among other things) that they were immune from liability under the PREP Act. The district court denied that motion. The defendants then appealed to the Second Circuit. And they argued that the Second Circuit had appellate jurisdiction via the collateral-order doctrine.

Skipping Appellate Jurisdiction

The Second Circuit ultimately concluded that the district court lacked subject-matter jurisdiction. Given that conclusion, the court determined that it did not need to address whether denials of PREP Act immunity are immediately appealable via the collateral-order doctrine.

The explanation for bypassing the appellate-jurisdiction issue was brief. The Second Circuit said that it had “appellate jurisdiction to determine whether the district court had jurisdiction below.” In support of this proposition, the court cited to the familiar rule that when a district court lacks subject-matter jurisdiction, a court of appeals has appellate jurisdiction to say so.

Appellate Jurisdiction to Review Subject-Matter Jurisdiction

The Second Circuit’s reliance on that familiar rule is taken out of context. The rule addresses an oddity that some people see in a court of appeals holding that an action doesn’t belong in federal court. Given the appellate court’s conclusion about subject-matter jurisdiction, how can that court review the judgment? The simple answer is that the court of appeals must have jurisdiction to review the judgment. Otherwise the prevailing party would benefit from a judgment rendered by a court without jurisdiction.

It doesn’t follow from this rule that appellate courts can bypass issues of their own jurisdiction. Before a court of appeals can hold that the district court lacked subject-matter jurisdiction, the case must properly be in the appellate court. That normally requires a final decision under 28 U.S.C. § 1291 or some exception to the final-judgment rule. Even when courts exercise so-called “hypothetical” jurisdiction to address a case’s merits, they normally do so only when Article III jurisdiction is secure and the merits are straightforward.

The Second Circuit was thus wrong that it could skip the appellate-jurisdiction issue. The action needed to properly be in the court of appeals before that court can say anything about it.

Far more problematic, however, are the implications for future cases. On its face, Solomon seems to say that litigants can take interlocutory appeals to challenge a district court’s subject-matter jurisdiction. After all, when subject-matter jurisdiction is lacking, Solomon says that the appellate court does not need to address the basis for the appeal—the court can merely assume that it has appellate jurisdiction and address subject-matter jurisdiction.

I’m guessing that the Solomon court did not consider the implications of its treatment of appellate jurisdiction. The court probably wanted to address the jurisdictional implications of the PREP Act, an issue that several federal courts have addressed recently. But the court needed appellate jurisdiction before it could do so.

Solomon v. St. Joseph Hospital, 2023 WL 2376207 (2d Cir. Mar. 7, 2023), available at CourtListener and Westlaw