Second Circuit Discusses Appealability in Review of Two EDNY Decisions

In the past two weeks, the Second Circuit has issued two significant decisions in appeals from EDNY cases concerning the appealability of certain orders.

On April 14, 2014, the Second Circuit issued a decision in United States v. Doe, Docket No. 14-572, dismissing an appeal from an order “granting the government’s motion for a protective order that would allow proffer statements made by” defendant Doe “to be disclosed to his codefendants’ because the non-final order was not appealable under the collateral order doctrine.  The Court explained that the order did not satisfy the criteria for the collateral order doctrine because the

The collateral order doctrine permits an appeal of a small class of collateral rulings that, although they do not end the litigation, are appropriately deemed final. Only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment the underlying action fall within this exception to the rule of finality. In making this determination, we do not engage in an individualized jurisdictional inquiry. Rather, our focus is on the entire category to which a claim belongs. The policy embodied in 28 U.S.C. § 1291 is at its strongest in the field of criminal law. As Doe’s counsel concedes, disclosure of these proffer statements is a routine practice; we therefore cannot conclude that the entire category, of orders sanctioning the disclosure of proffer statements raises issues of such importance as to justify an exception to the final judgment rule.

(Internal quotations and citations omitted) (emphasis added).

On April 2, 2014, the Second Circuit issued a decision in United States ex rel. Maurice Keshner v. Nursing Personnel Home Care, Docket Nos. 13-1688-cv (Lead), 14-251-cv (Con), addressing the question of when the time to appeal non-final attorney fee awards is triggered.

The Court was presented with a motion to dismiss an appeal from an order issued by the EDNY awarding a qui tam plaintiff attorney’s fees because the appeal had been filed more than 60 days after the initial decision granting the fees was issued.  The Court held that a “fee award, entered before entry of a final judgment or a partial judgment entered pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, did not have to be appealed until entry of an appealable judgment.” It explained that:

because the fee award against [the appealing defendant] was a collateral order in a case that remained pending because of open claims against other defendants, the entry of the fee award did not trigger [the defendant's] obligation to file a notice of appeal. Failure to take an available collateral order appeal does not forfeit the right to review the order on appeal from a final judgment. Indeed, we would not expect an appellate court to require an interlocutory appeal of a pre-judgment or pre-final order fee award because review of a fee award would normally be intertwined with the merits of an appeal from a final judgment or final order. Of course, once the District Court in the pending case entered a partial judgment under Rule 54(b), the time to appeal that judgment began upon its entry.

(Internal quotations and citations omitted).

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