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Appellate litigators often are asked to try to obtain appellate review of an issue prior to final judgment in a case. A number of possible approaches are familiar, including the “collateral order” doctrine, certification of a partial judgment as final in a multiple-claim or multiparty action under Fed. R. Civ. P. 54(b), immediate appeal of an injunction pursuant to 28 U.S.C. 1292(a)(1) and certification of a controlling question of law under 28 U.S.C. 1292(b). One potential avenue, however, frequently is overlooked: pendent appellate jurisdiction. Borrowed from the traditional concept of pendent jurisdiction in trial courts, this doctrine provides appellate jurisdiction over an issue that is not itself subject to appeal prior to final judgment but is pendent to another issue that is immediately appealable. Such jurisdiction can be invoked with respect to either pendent issues or pendent parties. Where the requirements for such piggyback jurisdiction are met, an interlocutory appeal can include nonappealable pendent issues. Courts, however, are wary of pendent appellate jurisdiction and carefully scrutinize its invocation. PENDENT APPELLATE JURISDICTION IN THE HIGH COURT The Supreme Court addressed the doctrine of pendent appellate jurisdiction in Swint v. Chambers County Comm., 514 U.S. 35 (1995). The court held that the court of appeals’ “collateral order” jurisdiction over the immediate appeal of the denial of qualified immunity to individual defendants did not confer “pendent party appellate jurisdiction” over the county’s interlocutory appeal of the denial of its motion for summary judgment on liability. Although the court of appeals had concluded that judicial economy supported pendent appellate jurisdiction there, the Supreme Court stressed the congressional policy in favor of the “final judgment” rule and against piecemeal appeals. As the court explained, “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 addition, the court also emphasized the critical function of the district court in allowing otherwise interlocutory appeals. Finally, it highlighted the judiciary’s power to define the concept of “finality” through rule-making proceedings authorized by Congress. In so ruling, the Supreme Court expressly did “not definitively or preemptively settle 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 50-51. Because the individual immunity and county liability issues in Swint were “unrelated,” the court confined its ruling to cases where the appealable and the nonappealable pendent questions are not “inextricably intertwined” and review of the latter is not “necessary to ensure meaningful review” of the former. Id. at 51. Swint‘s frosty treatment of pendent appellate jurisdiction made the lower federal courts “skittish” about this ” ‘controversial and embattled doctrine’ ” ( Greenwell v. Aztar Indiana Gaming Corp., 268 F.3d 486, 491 (7th Cir. 2001)), and reflected “profound skepticism concerning judge-created doctrines of appellate jurisdiction” that left the doctrine “hang[ing] by a thread.” In re Rimsat Ltd. 98 F.3d 956, 964 (7th Cir. 1996). The Supreme Court also appeared to indicate doubts about the doctrine in Johnson v. Jones, 515 U.S. 304, 318 (1995). However, although otherwise lost in the public glare of the case, the court itself subsequently affirmed the court of appeals’ exercise of pendent appellate jurisdiction in Clinton v. Jones, 520 U.S. 681, 707 n.41 (1997). Notwithstanding the possible implications of Swint, the courts of appeals have consistently upheld the validity of pendent appellate jurisdiction. Indeed, a number of courts have continued to exercise pendent party jurisdiction despite Swint‘s reservations on that precise issue. See, e.g., Rein v. Socialist People’s Libyan Arab Jamahiriya, 162 F.3d 748, 757 (2d Cir. 1998); In re Tutu Wells Contamination Litig., 120 F.3d 368, 386 (3d Cir. 1997); Morley v. Ciba-Geigy Corp., 66 F.3d 21, 22 n.1 (2d Cir. 1995); Moore v. City of Wyannewood, 57 F.3d 924, 930 (10th Cir. 1995). Courts of appeals have sustained pendent appellate jurisdiction across the full range of possible jurisdictional bases for the immediately appealable issue. Thus, pendent jurisdiction can exist in cases involving “collateral order” appeals, Rule 54(b) certifications, interlocutory appeals of injunctions pursuant to Section 1292(a)(1), and Section 1292(b) certifications of controlling questions of law. See, e.g., Clinton, 520 U.S. at 707 & n.41 (“collateral order” appeal); Meredith v. Oregon, 321 F.3d 807, 811-12 (9th Cir. 2003) (appeal of injunction under Section 1292(a)(1)); Greenwell, 268 F.3d at 491 (Rule 54(b) certification); see also Gilda Marx Inc. v. Wildwood Exercise Inc., 85 F.3d 675, 679 (D.C. Cir. 1996) (indicating that pendent appellate jurisdiction can be exercised in certified appeal under Section 1292(b)). In applying pendent appellate jurisdiction, courts remain mindful of the general policy of finality and the prospect that the doctrine could be abused to disrupt trial litigation and burden the appellate process. Accordingly, the doctrine is considered a limited exception to the “final judgment” rule that is available in the discretion of the reviewing court. See, e.g., 16 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction � 3937 at 696 (2d ed. 1996). Under Swint, lower courts generally have recognized that pendent appellate jurisdiction can exist where either the appealable and the pendent issues are “inextricably intertwined” or the resolution of the pendent issue is “necessary to ensure meaningful review” of the appealable issue. E.g., National R.R. Passenger Corp. v. ExpressTrak LLC, 330 F.3d 523, 527-28 (D.C. Cir. 2003). To be sure, some courts have adopted different verbal formulations of the applicable test. See Lamar Advertising of Penn. LLC v. Town of Orchard Park, 356 F.3d 365, 372 & n.8 (2d Cir. 2004). And one court has suggested that these two prongs are, in fact, essentially the same. See Rein, 162 F.3d at 758. Nevertheless, the courts of appeals are largely in accord in their general understanding of this doctrine. Pendent appellate jurisdiction has been found where the appealable and pendent issues are subject to decision under the same legal standard. In that circumstance, the pendent issue is coincident with or included within the appealable issue so that the resolution of one also effectively resolves the other. See, e.g., Coleman v. Parkman 349 F.3d 534, 537 (8th Cir. 2003); Meredith, 321 F.3d at 814 & n.7; Crockett v. Cumberland College, 316 F.3d 571, 578-79 (6th Cir. 2003); Lewis v. New Mexico Dept. of Health, 261 F.3d 970, 978 (10th Cir. 2001). Indeed, it was precisely this analysis by the court of appeals that the Supreme Court affirmed in Clinton v. Jones. In addition to the applicable legal standard, courts also have considered the logical relationship between the pendent and the appealable legal issues. For instance, because the 11th Amendment provides states with immunity from federal suits for damages, “collateral order” jurisdiction over the denial of an 11th Amendment defense supported pendent appellate jurisdiction to determine whether the statute in question created a private cause of action for damages in the first place. See Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 123-24 (1st Cir. 2003). Likewise, where a court of appeals had “collateral order” jurisdiction over an 11th Amendment issue in a qui tam case, it exercised pendent appellate jurisdiction to decide the antecedent statutory question of whether a state is a “person” within the meaning of the False Claims Act. See U.S. v. State of Vt. Agency of Natural Resources, 162 F.3d 195, 203 (2d Cir. 1998). The Supreme Court, in subsequently reversing on the statutory question, noted but did not address the court of appeals’ exercise of pendent jurisdiction. See 529 U.S. 765, 770 n.2 (2000). Moreover, courts have looked to the degree of factual overlap between the pendent and the appealable issues. See, e.g., Toussie v. Powell, 323 F.3d 178, 184 (2d Cir. 2003). By itself, however, similarity in the relevant facts is not sufficient to establish pendent jurisdiction if the issues are not interrelated. See, e.g., State of California v. Campbell, 138 F.3d 772, 778-79 (9th Cir. 1998). A NARROW, YET IMPORTANT, RESOURCE FOR LITIGATORS Finally, pendent appellate jurisdiction has been invoked to review otherwise nonappealable questions concerning the district court’s subject-matter jurisdiction (and indeed other quasi-jurisdictional threshold matters). These decisions reason that a justiciable case properly litigated in federal court is a necessary prerequisite to any appellate review and therefore the issue of subject-matter jurisdiction is pendent to the appealable issue. See, e.g., Lamar Advertising, 356 F.3d at 371-73 (standing); Meredith, 321 F.3d at 815-16 (subject-matter jurisdiction, sovereign immunity and Younger abstention); National R.R. Passenger Corp., 330 F.3d at 528 (arbitrability); Immigrant Assistance Project, L.A. County v. INS, 306 F.3d 842, 868-69 (9th Cir. 2002) (class action certification in injunctive suit); Timpanagos Tribe v. Conway, 286 F.3d 1195, 1201 & n.2 (10th Cir. 2002) (subject-matter jurisdiction); Merritt v. Shuttle Inc., 187 F.3d 263, 268-69 (2d Cir. 1999) (subject-matter jurisdiction); but see IDS Life Ins. Co. v. SunAmerica Inc., 103 F.3d 524, 527-29 (7th Cir. 1996) (Federal Arbitration Act precludes immediate appeal of arbitrability pursuant to pendent appellate jurisdiction). As these cases demonstrate, pendent appellate jurisdiction can provide the ground to obtain immediate review of otherwise nonappealable questions. This doctrine, while narrow, is an important resource for the appellate litigator. Mark I. Levy practices in the area of Supreme Court and appellate litigation in the Washington office of Atlanta-based Kilpatrick Stockton.

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