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In the 1980s and early 1990s, federal appellate courts frequently resorted to a judge-made doctrine known as “pendent appellate jurisdiction” to review lower court rulings that were not otherwise independently appealable. However, in Swint v. Chambers County Commission, 514 U.S. 35 (1995), the U.S. Supreme Court appeared to cast substantial doubt on the propriety of the doctrine. Undaunted, federal courts have increasingly exploited language in Swintto breathe life back into pendent appellate jurisdiction. Like Mark Twain, it appears that rumors of its demise have been greatly exaggerated. WHEN PENDENT JURISDICTION COMES UP IN A CASE When a party appeals from a final judgment that completely concludes all litigation in the trial court, the jurisdiction of the court of appeals extends to all orders and rulings of the trial court that were properly preserved and led up to that judgment. Appeals from nonfinal rulings are more problematic. When a party is permitted — by statute, rule or judicial exception to the final-judgment rule — to appeal an interlocutory ruling, the question may arise as to whether the appellate court’s jurisdiction is confined to that particular party and ruling, or whether it extends to other rulings regarding that same party or other parties in the case. Here, the doctrine of pendent appellate jurisdiction comes to the fore. The Supreme Court has broadly described pendent appellate jurisdiction as the discretionary authority of a “court of appeals with jurisdiction over one ruling to review, conjunctively, related rulings that are not themselves independently appealable.” Swint,514 U.S. at 50. Although they often expressed varying views about when a court might properly exercise pendent appellate jurisdiction, federal courts in the years leading to Swint uniformly endorsed the doctrine. See Swint, 514 U.S. at 44 n.2; compare Roberson v. Mullins, 29 F.3d 132 (4th Cir. 1994) (the two rulings must “substantially overlap”), with Silver Star Enterprises v. M/V SARAMACCA, 19 F.3d 1008 (5th Cir. 1994) (nonappealable order must be “inextricably entwined” with appealable order). Pendent appellate jurisdiction may arise in a variety of contexts, far too many to describe fully in this brief article. One common setting is an appeal of an interlocutory order under the collateral-order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Cohenpermits immediate appeal of certain nonfinal orders when they conclusively resolve important questions separate from, and collateral to, the merits of the action and are effectively unreviewable on appeal from a final judgment. Orders denying defenses based on absolute or qualified immunity or on double-jeopardy grounds are but a few of the interlocutory rulings that are immediately appealable under Cohen. Public officials taking immediate appeals under Cohenfrom the denial of immunity defenses often want the court of appeals to review other trial court rulings that do not qualify as Cohencollateral orders and that are not, therefore, immediately appealable. For example, the public official might also seek review of the district court’s denial of a motion to dismiss the complaint for failure to state a claim, a ruling that ordinarily is not immediately appealable. Before Swint, appellate courts regularly exercised pendent appellate jurisdiction in such circumstances, sometimes avoiding the immunity question altogether. See, e.g., ACLU v. Wicomico County, 999 F.2d 780 (4th Cir. 1993); Drake v. Scott, 812 F.2d 395 (8th Cir. 1987). Similarly, a party appealing an interlocutory order granting or refusing an injunction under 28 U.S.C. 1292(a)(1) might ask the appeals court to exercise pendent jurisdiction to review other trial court rulings that did not directly involve injunctive relief and that did not, therefore, fall within the parameters of section 1292(a)(1). See Katz v. Lear Siegler Inc., 909 F.2d 1459, 1461 (Fed. Cir. 1990) (reviewing joinder order in connection with appeal of injunction). See also Martin v. Consultants & Administrators Inc., 966 F.2d 1078 (7th Cir. 1992) (using pendent appellate jurisdiction to review non-certified order in Rule 54(b) appeal). ‘SWINT’APPEARS TO SLAM ON THE BRAKES In Swint, several plaintiffs sued a county commission and three individual police officers for civil rights violations under 42 U.S.C. 1983 after police raids on a nightclub. The district court denied summary judgment to all of the defendants, holding that the police officers were not entitled to qualified immunity and rejecting the commission’s claim that it could not be held vicariously liable for the officers’ conduct. Both the individual officers and the county commission immediately appealed. Although the U.S. Court of Appeals for the 11th Circuit had jurisdiction over the officers’ immunity appeals under Cohen, the county commission’s appeal did not qualify as a collateral order. Nonetheless, in the interests of “judicial economy,” the court of appeals asserted pendent appellate jurisdiction to review the trial court’s denial of summary judgment to the county commission. Swint, 514 U.S. at 44. The Supreme Court reversed the 11th Circuit’s decision regarding the county commission because, the high court held, the circuit court lacked jurisdiction over the commission’s appeal. Id. at 49. Although it acknowledged the widespread acceptance of pendent appellate jurisdiction, the Supreme Court expressed unanimous concern that “a rule loosely allowing pendent appellate jurisdiction would encourage parties to parlay Cohen-type collateral orders into multi-issue interlocutory appeal tickets.” Id. at 49-50. In the Supreme Court’s view, the arguments in favor of pendent appellate jurisdiction “drift away from the statutory instructions Congress has given to control the timing of appellate proceedings.” Id. at 45. As the court pointed out, Congress opted to confer on the district courts “first-line discretion” to allow interlocutory appeals under 28 U.S.C. 1292(b), subject to appellate approval. This two-tiered arrangement would be “severely undermined” if courts of appeals had “discretion to append to a Cohen-authorized appeal from a collateral order further rulings of a kind neither independently appealable nor certified by the district court.” Id. at 47. Moreover, the court noted, recent amendments to the Judicial Code further “counsel[ed] resistance to expansion of appellate jurisdiction.” Id. at 48. Although Congress explicitly gave the court authority to adopt court rules defining finality for purposes of appeal, the procedure Congress ordered was “not expansion by court decision, but by rulemaking.” Id. Taken alone, these statements suggest that the Supreme Court wholly rejected pendent appellate jurisdiction. However, other language in the opinion is not so categorical. In the opinion’s penultimate paragraph, the court cautioned that it had not “definitively or preemptively settle[d] here whether or when it may be proper for a court of appeals, with jurisdiction over one ruling, to review, conjunctively, related rulings that are not themselves independently appealable.” Id. at 51. In that regard, the court expressly noted in its conclusion that Swintinvolved ” ‘pendent party’ appellate jurisdiction.” More important, the court pointedly emphasized that the county commission did not contend the trial court’s denial of its summary judgment motion was “inextricably intertwined with that court’s decision to deny the individual defendants’ qualified immunity motions, or that review of the former decision was necessary to ensure meaningful review of the latter.” Id. PENDENT JURISDICTION AFTER THE ‘SWINT’DECISION Despite Swint’sskepticism about the propriety of the judge-created doctrine of pendent appellate jurisdiction, most federal circuit courts have read the decision as waving a cautionary flag, rather than calling an outright halt to pendent appellate jurisdiction. The 7th and 11th circuits have sounded perhaps the most pessimistic notes. Seventh Circuit Chief Judge Richard Posner describes the doctrine as “hang[ing] by a thread” after Swint. Underwood v. Hilliard, 98 F.3d 956, 964 (7th Cir. 1996). See also Nolen v. Jackson, 102 F.3d 1187, 1189 (11th Cir. 1997) (pendent issue jurisdiction “is uncertain” after Swint). Other judges have been more sanguine. The 2d Circuit recently observed that Swintannounced only a “general rule” and that its “restrictions are not absolute.” Merritt v. Shuttle Inc.,187 F.3d 263, 268 (2d Cir. 1999). The continued viability of pendent party appellate jurisdiction has provoked the most disagreement. The 11th Circuit appears to believe that Swintprohibits the exercise of pendent party jurisdiction under any circumstances. See Nolen, 102 F.3d at 1189. In the 3d and 10th circuits, pendent party jurisdiction remains available but only in very “restricted,” “compelling” or “unusual” circumstances. See Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997); In re Tutu Wells, 120 F.3d 368, 382 (3d Cir. 1997). According to Judge Guido Calabresi, of the 2d Circuit, however, pendent party jurisdiction poses less of a threat to our final-judgment scheme than pendent issue jurisdiction: “The likelihood of one party opening the door and the other party walking through with its otherwise jurisdictionally insufficient claims seems less great than that of one party, having gotten its foot in the door, seeking to bring in everything else it has.” Rein v. Socialist People’s Libyan Arab Jamahiriya,162 F.3d 748, 757 (2d Cir. 1998). NOTE ‘LOOSE USE’ OF PENDANT JURISDICTION Regardless of the context in which the doctrine is invoked, federal courts do appear to have taken to heart the Supreme Court’s concerns about the “loose” use of pendent appellate jurisdiction. To that end, courts have repeatedly emphasized that their discretion to exercise pendent appellate jurisdiction should be used sparingly. Generally, they have invoked the doctrine since Swintonly when at least one of the two conditions emphasized in Swintis present: First, the unappealable order is “inextricably intertwined” with the appealable ruling; and/or second, review of the otherwise unappealable order is necessary to ensure meaningful review of the appealable order. See, e.g., Mendocino Environmental Center v. Mendocino County,192 F.3d 1283, 1296 (9th Cir. 1999); Nationsbank Corp. v. Herman,174 F.3d 424, 428 (4th Cir. 1999); Law v. NCAA,134 F.3d 1025, 1027 (10th Cir. 1998). The 2d Circuit’s decision in Merrittexemplifies the current approach, which, a cynic might point out, may not be so different from past practice. That case involved a Cohenappeal by federal officials from a district court’s interlocutory order rejecting qualified immunity defenses. The appellate court then relied on pendent appellate jurisdiction to review the trial court’s refusal to dismiss plaintiff’s claims for lack of subject-matter jurisdiction. Examining the subject-matter jurisdiction ruling was, according to the court, “necessary to ensure meaningful review” of the immunity ruling, as the existence of subject-matter jurisdiction “goes to the very power” of the district court to issue the immunity ruling that brought the case to the appellate court in the first place. See 187 F.3d at 269. See also Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan,115 F.3d 1020, 1027 (D.C. Cir. 1997) (exercising pendent appellate jurisdiction to review personal jurisdiction ruling in immunity appeal). Even the Supreme Court has now given its explicit approval to the exercise of pendent appellate jurisdiction. In Clinton v. Jones,520 U.S. 681 (1997), the court noted that the 8th Circuit had properly exercised pendent appellate jurisdiction over a stay of proceedings in a case in which that order was “inextricably intertwined” with a ruling that the president was protected from trial by temporary immunity and review of the latter decision was necessary to “ensure meaningful review” of the former. See id. at 707 n.41. See also Amchem Products Inc. v. Windsor,521 U.S. 591 (1997) (reviewing class certification issues in connection with appeal of injunction). Pendent appellate jurisdiction thus remains a basis for federal appellate courts to review rulings that otherwise could not be appealed until the conclusion of a case. However, counsel seeking to invoke the doctrine must be cognizant of its limits in this post- Swintera. They should hew closely to the two conditions enumerated in Swintto enhance the prospects of convincing the court of appeals to exercise discretion to invoke pendent appellate jurisdiction. Mr. Kravitz is head of the appellate practice group at Wiggin & Dana, in New Haven, Conn. He was a visiting lecturer at Yale Law School during the spring 2000 semester.

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