Error: Expected the default config, but wasn't able to find it, or it isn't a Dictionary
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 13, 2008 Decided December 12, 2008
No. 07-5391
WENDY A. OSCARSON,
APPELLEE
v.
OFFICE OF THE SENATE SERGEANT AT ARMS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cv00026)
M. Stacey Bach, Senate Senior Counsel for Employment,
Office of the Senate Sergeant at Arms, argued the cause for
appellant. With her on the briefs were Jean M. Manning,
Senate Chief Counsel for Employment, and C. Patrick
McMurray, Senate Assistant Counsel for Employment.
Avi L. Kumin argued the cause for appellee. With him on
the brief were Debra S. Katz, Lisa J. Banks, and Daniel B.
Edelman.
Before: GARLAND and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Wendy A. Oscarson is
an employee of the Office of the Senate Sergeant at Arms
(“SAA”); she suffers from cervical disc disease and left carpal
tunnel syndrome. In 2002, she requested accommodations in
the form of ergonomic, high-backed chairs for each of her
three work stations. Although SAA officials eventually made
these accommodations, Oscarson asserts that in doing so they
unreasonably delayed. She brought suit against the SAA
under the Congressional Accountability Act (“CAA”), which
makes certain provisions of the Americans with Disabilities
Act (“ADA”) applicable to congressional offices. 2 U.S.C.
§ 1311(a)(3).
The SAA moved to dismiss for lack of subject matter
jurisdiction. It claimed that Oscarson had failed to comply
with the CAA’s requirement that a request for counseling be
filed with the Senate’s Office of Compliance within 180 days
of the alleged violation. 2 U.S.C. § 1402. The SAA argued
that this stripped the district court of jurisdiction, claiming
that the CAA’s jurisdictional provision, 2 U.S.C. § 1408,
incorporated the timeliness requirement of § 1402 and made
compliance with it a condition of the CAA’s waiver of
sovereign immunity. The district judge denied the motion in a
minute order, and the SAA now seeks an interlocutory appeal.
We dismiss the appeal for lack of appellate jurisdiction.
* * *
The federal courts of appeals have jurisdiction over the
“final decisions” of district courts. 28 U.S.C. § 1291.
Interlocutory appeals “are the exception, not the rule,”
Johnson v. Jones, 515 U.S. 304, 309 (1995), and denials of
3
motions to dismiss are generally not reviewable. McSurely v.
McClellan, 697 F.2d 309, 315 (D.C. Cir. 1982). In Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949),
however, the Supreme Court established that certain collateral
orders are immediately appealable. To come within the scope
of the collateral order doctrine, an order must “[1]
conclusively determine the disputed question, [2] resolve an
important issue completely separate from the merits of the
action, and [3] be effectively unreviewable on appeal from a
final judgment.” Coopers & Lybrand v. Livesay, 437 U.S.
463, 468 (1978).
The courts have allowed interlocutory appeals for various
immunity defenses, reasoning that reversal after final
judgment gives no effective protection for the right not to bear
the burden of litigation. See Rendall-Speranza v. Nassim, 107
F.3d 913, 916 (D.C. Cir. 1997). They have approved such
appeals, for example, for denials of qualified immunity,
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), Eleventh
Amendment immunity, Puerto Rico Aqueduct & Sewer Auth.
v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993), and a
foreign state’s sovereign immunity, Princz v. Federal
Republic of Germany, 998 F.2d 1, 1 (D.C. Cir. 1993).
There are a number of questions that would have to be
answered affirmatively for interlocutory review to be proper
here, including, among others: (1) whether such review is
available for defenses of federal sovereign immunity at all; (2)
whether the CAA can be read as making the timeliness of a
request for counseling jurisdictional, or has otherwise signaled
an intent to protect the SAA from the burden of litigation in
the absence of a timely request; and (3) whether the nature of
the dispute over timeliness, given its factbound character and
its overlap with the merits, is such that interlocutory review
would be permitted if the first two hurdles were overcome.
We assume arguendo answers to the first two issues in favor
4
of the SAA, but conclude that the answer to the third question
is negative and fatal to our jurisdiction.
First, we note an apparent split in the circuits over
whether denials of claims of federal sovereign immunity may
ever qualify for interlocutory review. Alaska v. United States,
64 F.3d 1352, 1355 (9th Cir. 1995); Pullman Constr. Indus. v.
United States, 23 F.3d 1166, 1168 (7th Cir. 1994) (“[T]he
United States Code is riddled with statutes authorizing relief
against the United States and its agencies . . . . [I]t is difficult
to speak of federal sovereign immunity as a ‘right not to be
sued.’”); see also Houston Cmty. Hosp. v. Blue Cross & Blue
Shield of Tex., Inc., 481 F.3d 265, 280 (5th Cir. 2007). But
see In re World Trade Ctr. Disaster Site Litig., 521 F.3d 169,
191 (2d Cir. 2008) (“We are not convinced that Pullman or its
progeny counsel us to disregard the statements of the Supreme
Court that sovereign immunity encompasses a right not to be
sued . . . .”). A decision in this circuit expressed skepticism
about the cases saying that federal sovereign immunity
categorically excludes a right not to be sued, but expressly
declined to resolve the issue. In re Sealed Case No. 99-3091,
192 F.3d 995, 1000 (D.C. Cir. 1999). We also do not need to
reach it today.
Second, we note the complexities of the question whether
the CAA implies that the SAA should be protected from the
burdens of suit in the absence of a timely request for
counseling. The appellant’s attorney conceded at oral
argument that if § 1402’s timeliness criterion is not
jurisdictional, there can be no interlocutory appeal. Oral
Argument Rec. 3:23-3:25. We need not decide whether this
concession accurately reflects the law. On the one hand,
statutes of limitations generally do not give rise to a right not
to stand trial. See Digital Equip. Corp. v. Desktop Direct.
Inc., 511 U.S. 863, 873 (1994). On the other hand, the
Supreme Court offered its principal explanation for allowing
5
interlocutory appeal in the immunity context in Mitchell v.
Forsyth, addressing officials’ qualified immunity—an
immunity that was itself entirely a judicial creation. 472 U.S.
at 524-30. Apart from that, there is uncertainty whether the
CAA time limitation is in fact jurisdictional, and whether, if it
is, a district court’s finding of jurisdiction is subject to
interlocutory review.
In any event, assuming arguendo answers to these
questions favorable to the SAA, we lack jurisdiction over this
appeal. The district court’s decision appears to be simply a
conclusion that the rather complex concatenation of
undisputed facts failed to establish that Oscarson’s request for
counseling was untimely. Our interlocutory review of such a
determination would be at odds with the principles set out by
the Supreme Court in Johnson v. Jones, 515 U.S. 304, 309
(1995); moreover, as the facts in question are bound up with
the merits of the appellee’s claim, the issue fails to satisfy the
Cohen test’s requirement that it be completely separate from
the merits of the underlying action, Coopers & Lybrand, 437
U.S. at 468.
* * *
In Johnson the appellants sought to challenge the district
judge’s determination that there was sufficient evidence to
raise a triable issue of fact with respect to their qualified
immunity defense. 515 U.S. at 308. The question before the
Court was whether Mitchell v. Forsyth’s provision for
interlocutory review would reach such a question of evidence
sufficiency. Id. The Court denied interlocutory review and
held that immediate appeals of qualified immunity matters
would be limited to cases presenting relatively “abstract issues
of law.” Id. at 317.
6
On the conceptual level, the Court explained,
interlocutory review of fact-related determinations does not
comport with Cohen’s theory of appealability. Id. at 314.
Cohen allows for interlocutory appeals only where the
“decision involves issues significantly different from those
that underlie the plaintiff’s basic case.” Id. Where
defendants seek to appeal evidence sufficiency
determinations, however, “it will often prove difficult to find
any such ‘separate’ question—one that is significantly
different from the fact-related legal issues that likely underlie
the plaintiff’s claim on the merits.” Id.
In practical terms, the Court found that “the competing
considerations that underlie questions of finality” counseled
against immediate review for this class of decisions. Id. at
315-16. First, because trial judges constantly confront
questions such as the existence or non-existence of a triable
issue of fact, “appellate judges enjoy no comparative expertise
in such matters” and “interlocutory appeals are less likely to
bring important error-correcting benefits here than where
purely legal matters are at issue, as in Mitchell.” Id. at 316.
Second, assessing “whether or not a record demonstrates a
‘genuine’ issue of fact for trial . . . can consume inordinate
amounts of appellate time,” leading to greater delay than in
cases such as Mitchell, involving a pure issue of law. Id.
Third, interlocutory appeals of such rulings would “make[]
unwise use of appellate courts’ time, by forcing them to
decide in the context of a less developed record, an issue very
similar to one they may well decide anyway later, on a record
that will permit a better decision.” Id. at 317. All in all,
“considerations of delay, comparative expertise of trial and
appellate courts, and wise use of appellate resources argue in
favor of limiting interlocutory appeals of ‘qualified immunity’
matters to cases presenting more abstract issues of law.” Id.
7
Although this case concerns federal sovereign immunity
rather than qualified immunity, we cannot imagine why the
Johnson principles would not apply with equal force to the
immunity claim here. See Burlington Northern & Santa Fe
Ry. v. Vaughn, 509 F.3d 1085, 1091 (9th Cir. 2007) (applying
Johnson in the context of a tribal immunity claim and stating
that “denial of an immunity claim is appealable on an
interlocutory basis only to the extent that it turns on an issue
of law” (emphasis added)). We must therefore determine
whether this appeal turns on the sort of abstract legal issue
that Johnson would permit us to review.
* * *
The task of determining what kind of issue this appeal
presents is complicated somewhat by the fact that the district
judge denied the appellant’s Rule 12(b)(1) motion in a minute
order, without providing reasons for doing so. The basis for
his decision, however, is reasonably clear.
In its motion, the SAA argued that the timeliness
requirement of § 1402 was jurisdictional, and that Oscarson
had failed to meet it because her own statements indicated that
her injury had accrued more than 180 days before she
requested counseling. Def.’s Mot. to Dismiss at 6-8. In her
opposition to the motion, Oscarson did not contest that the
requirement was jurisdictional, but argued that she had
complied with it. Pl.’s Opp’n to Def.’s Mot. to Dismiss at 4-
13. Although the argument was not before the judge, it is
theoretically possible that he denied the motion on the
grounds that the requirement was not jurisdictional. But if the
judge held that view, he could simply have recast the Rule
12(b)(1) motion as one under Rule 12(b)(6); we find it
unlikely that he would silently deny the motion on the theory
8
that it was wrongly numbered. We therefore reject this
hypothesis as extremely improbable.
We are left with the conclusion that the district judge
rejected the SAA’s assertion that under the facts claimed by
Oscarson—which were undisputed for purposes of the SAA’s
motion—her counseling request was untimely. This
determination does not turn on an abstract question of law,
Johnson, 515 U.S. at 313, and does not address an issue
separate from the merits of the underlying action, Coopers &
Lybrand, 437 U.S. at 468.
The SAA asserts that a claim accrues when the plaintiff
knows or should know about the injury. Appellant’s Br. at 30.
It reasons that a number of facts contained in Oscarson’s
statements and allegations—for example, her assertion that in
October 2002 she felt that the SAA “had completely dropped
the ball” on her accommodation request—establish that she
knew of her injury more than 180 days before she requested
counseling. Id. at 38. Oscarson counters that other facts—for
example, that she stayed in contact with SAA officials
regarding her accommodation request well into 2003—
demonstrate that she did not yet know about the injury.
Appellee’s Br. at 36. Thus the dispute is, as in Johnson, over
the legal classification of a congeries of facts, here facts on
which the parties conditionally agree. Therefore, the
“considerations of delay, comparative expertise of trial and
appellate courts, and wise use of appellate resources,”
Johnson, 515 U.S. at 317, counsel against interlocutory
review just as strongly in this case.
The SAA’s briefs twice call our attention to the fact that
its motion to dismiss assumed the validity of the facts asserted
by Oscarson. Appellant’s Br. at 3 n.3; Appellant’s Reply Br.
at 8. Accordingly, it argues, Johnson “is inapposite.” Id. at 8
n.10. The argument completely misconceives the Johnson
9
rule. Johnson itself addressed an appeal by defendants from
the district court’s denial of their summary judgment motion,
Johnson, 515 U.S. at 307-08, 319-20; see also Jones v.
Johnson, 26 F.3d 727 (7th Cir. 1994), a ruling that courts of
appeal review de novo as a matter of law. Defenders of
Wildlife v. Gutierrez, 532 F.3d 913, 918 (D.C. Cir. 2008).
There, as here, the question was how the law applied to the
rather complex set of facts asserted by the non-moving party.
There had been no fact-finding by the district court, and no
call on the court of appeals to review any purely factual
determinations. But Johnson and this case pose the sort of
fact-rich legal issues for which the theory of interlocutory
review under Cohen is inapplicable, at least in the immunity
context.
Johnson’s observation that factual issues would often be
difficult to separate from the merits of the underlying action
also applies here. Id. at 314. Whether a CAA plaintiff timely
requested counseling depends on the date of the alleged
violation, which in turn depends on what constitutes a
violation and on pinpointing the time of its occurrence. Here
the SAA suggests that Oscarson knew or should have known
of the injury underlying her claim when she “reasonably
should have suspected that her rights were violated,”
Appellant’s Br. at 31, raising a question that can only be
answered by considering at what point the alleged delay might
be thought to amount to a violation. In a case of delayed
accommodation, such as the present one, merits and
timeliness of request for counseling are tightly meshed.
Because of the mingling of preliminary and merits issues,
the SAA’s appeal fails not only Johnson’s requirement but
also the second necessary condition for an interlocutory
appeal under the collateral order doctrine—that the issue be
“completely separate from the merits of the action.” Coopers
& Lybrand v. Livesay, 437 U.S. at 468.
10
Under both Cohen and Johnson, therefore, we lack
jurisdiction over this appeal.
* * *
The appeal is
Dismissed.