United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 18, 2011 Decided March 13, 2012
No. 10-7106
OSCAR SALAZAR, BY HIS PARENTS AND NEXT FRIENDS, ADELA
AND OSCAR SALAZAR, ET AL.,
APPELLEES
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:93-cv-00452)
Richard S. Love, Senior Assistant Attorney General, Office
of the Attorney General for the District of Columbia, argued the
cause for appellants. With him on the briefs were Irvin B.
Nathan, Attorney General, Todd S. Kim, Solicitor General, and
Donna M. Murasky, Deputy Solicitor General. Robert C.
Utiger, Attorney, entered an appearance.
Kathleen L. Millian argued the cause for appellees. With
her on the brief were Bruce J. Terris and Jane M. Liu. Lynn E.
Cunningham, Martha J. Perkins, and Paula D. Scott entered
appearances.
2
Before: ROGERS, GARLAND, and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Since 1993, a consent decree has
governed how the District of Columbia provides “early and
periodic screening, diagnostic, and treatment services” under the
Medicaid Act. The District has now asked the district court to
vacate that decree on two grounds: that an intervening Supreme
Court decision has made clear that the plaintiffs lack a private
right of action to enforce the Medicaid Act, and that in any event
the District has come into compliance with the requirements of
the Act. After the district court rejected the District’s first
argument, the District appealed without waiting for resolution of
the second -- which remains pending. Because we conclude that
the court’s rejection of one of the District’s two arguments does
not constitute an order “refusing to dissolve [an] injunction[]”
within the meaning of 28 U.S.C. § 1292(a)(1), we dismiss the
appeal for lack of jurisdiction.
I
In 1993, the plaintiffs filed a class action complaint under
42 U.S.C. § 1983, alleging that the District of Columbia was
violating the Medicaid Act, 42 U.S.C. § 1396 et seq. In
particular, the plaintiffs alleged that the District was failing to
properly administer the Act’s child health provisions -- known
as “early and periodic screening, diagnostic, and treatment”
(EPSDT) services. 42 U.S.C. § 1396a(a)(43); id. § 1396d(r); see
Compl. at 37 (J.A. 275). Although the District argued that the
plaintiffs had no private right to enforce those provisions under
42 U.S.C. § 1983, the district court disagreed, Wellington v.
District of Columbia, 851 F. Supp. 1, 6 (D.D.C. 1994), and
determined that the District had violated the Act, Salazar v.
District of Columbia, 954 F. Supp. 278, 328-33 (D.D.C. 1996).
3
The District sought appellate review, but it ultimately
dismissed its appeal in favor of entering into a comprehensive
settlement. The district court approved the settlement and, in
January 1999, entered the Settlement Order at issue here. That
Order contains detailed requirements governing the District’s
EPSDT services. The Order, together with subsequent remedial
orders, continues in effect today.
In 2009, the District moved, pursuant to Rule 60(b)(5) and
(6) of the Federal Rules of Civil Procedure, to terminate the
Settlement Order and related orders.1 The District made two
arguments in support of its motion. First, it contended that the
Supreme Court’s intervening decision in Gonzaga University v.
Doe, 536 U.S. 273 (2002), “resolved prior confusion in the
Supreme Court’s . . . jurisprudence in a manner” indicating that
there is no private right of action to enforce the EPSDT
provisions of the Medicaid Act under § 1983. Defs.’ Mem. in
Supp. of Mot. to Terminate at 5 (J.A. 604). Second, the District
maintained that, even if the plaintiffs did have such a right of
action, continuation of the decree was no longer equitable
because the District had achieved compliance with federal law
governing EPSDT services. Id. at 20 (J.A. 619).
In response to the District’s motion, the plaintiffs sought
discovery as to whether the District was in fact in compliance
with the Medicaid Act. Opposing that request, the District
argued that the parties should first brief the private right of
action issue. “If the Court agrees with the District that no
private right of action exists . . . , expensive and time consuming
1
Under Rule 60(b), the court may grant relief from a final
judgment based on, inter alia, a finding that “the judgment has been
satisfied, released or discharged; . . . or applying it prospectively is no
longer equitable,” FED R. CIV. P. 60(b)(5), or for “any other reason
that justifies relief,” id. 60(b)(6).
4
discovery will have been avoided. If the Court rules against the
District, discovery can commence.” Defs.’ Opp. to Pls.’ Mot.
for Disc. at 3 (J.A. 679). The court adopted the District’s
suggestion and put discovery on hold. Order on Pls.’ Mot. for
Disc. at 1-2 (J.A. 683-84).
In August 2010, after briefing and argument on the private
right of action issue, the district court concluded that relief on
that ground was unwarranted for three reasons. First, noting
that motions under Rule 60(b) must be brought “within a
reasonable time,” FED. R. CIV. P. 60(c)(1), the court held that the
District had “prejudice[d] Plaintiffs’ interests in finality and
repose” by waiting seven years after Gonzaga was issued before
filing its motion. Salazar v. District of Columbia, 729 F. Supp.
2d 257, 261 (D.D.C. 2010). Second, the court held that
Gonzaga did not constitute a “significant change” in the law, but
merely a clarification. Id. at 266. As a result, the District could
not satisfy either Rule 60(b)(5), which requires “a significant
change either in factual conditions or in law,” Rufo v. Inmates
of the Suffolk Cnty. Jail, 502 U.S. 367, 384 (1992), or Rule
60(b)(6), which requires “extraordinary circumstances,”
Ackermann v. United States, 340 U.S. 193, 199 (1950). See
Salazar, 729 F. Supp. 2d at 263-64. Finally, the court held that
the District had misinterpreted Gonzaga. In the court’s view,
Gonzaga did not deprive the plaintiffs of a private right of action
to enforce the Medicaid Act’s EPSDT provisions. See id. at
268-71.
Based on this reasoning, the district court issued an order
denying the District’s motion to terminate “as to the private
right of action issue.” Id. at 272. The District appealed
immediately, without seeking a ruling on its alternative
argument that it had come into compliance with the statute. As
of the date of this decision, nothing further has transpired with
respect to the compliance issue in the district court. The
5
plaintiffs have not renewed their request for discovery, the
District has not sought judgment, and the court has not ruled.
See Oral Arg. Recording at 7:15-7:45; Civil Docket for Case No.
1:93-cv-00452 (as of Mar. 6, 2012).
II
Because we are a court of limited jurisdiction, our inquiry
must always begin by asking whether we have jurisdiction to
decide a particular appeal. See United States v. E-Gold, Ltd.,
521 F.3d 411, 413 (D.C. Cir. 2008); see also Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). If we
conclude that we lack jurisdiction, that is also where our inquiry
ends.
Under 28 U.S.C. § 1291, our appellate jurisdiction generally
extends only to the “final decisions” of district courts. Carson
v. American Brands, Inc., 450 U.S. 79, 83 (1981). Although this
finality requirement necessarily delays the resolution of
important legal questions, Congress has determined that such
delay must be tolerated in order to avoid “the debilitating effect
on judicial administration” that would otherwise result from
“piecemeal appe[llate] disposition of what is, in practical
consequence, but a single controversy.” Coopers & Lybrand v.
Livesay, 437 U.S. 463, 471 (1978). Nonetheless, “[b]ecause
rigid application of this principle was found to create undue
hardship in some cases, . . . Congress created certain exceptions
to it.” Carson, 450 U.S. at 83.
The District invokes one such exception, 28 U.S.C.
§ 1292(a)(1), which gives this court jurisdiction over appeals
from “[i]nterlocutory orders . . . granting, continuing, modifying,
refusing or dissolving injunctions, or refusing to dissolve or
modify injunctions.” In the District’s view, the district court’s
rejection of its private cause of action argument falls within that
6
exception. According to the District, by rejecting that argument,
the court “refus[ed] to dissolve [an] injunction[].” Id.
The exception provided by § 1292(a)(1) is a limited one,
and the Supreme Court has “construed [it] narrowly.” Carson,
450 U.S. at 84. Because the “congressional policy against
piecemeal review” remains an important concern, id., the Court
declared in Switzerland Cheese Ass’n v. E. Horne’s Market, Inc.
that we must “approach this statute somewhat gingerly lest a
floodgate be opened.” 385 U.S. 23, 24 (1966). To employ a
different metaphor suggested by that case’s title, we must take
care not to turn the barrier against piecemeal appeals into Swiss
cheese.
After a series of decisions by the Supreme Court and this
court, the scope of § 1292(a)(1) is now relatively clear, though
resistant to brief summary. If the interlocutory order in question
is one “clearly granting or denying a specific request for
injunctive relief” -- or, for purposes of this case, one clearly
denying a specific request to dissolve an injunction -- it falls
within the plain text of § 1292(a)(1) and is appealable without
any further showing. Int’l Ass’n of Machinists & Aerospace
Workers, AFL-CIO v. Eastern Airlines, Inc., 849 F.2d 1481,
1486 n.11 (D.C. Cir. 1988); I.A.M. Nat’l Pension Fund Benefit
Plan A v. Cooper Indus., Inc., 789 F.2d 21, 24 n.3 (D.C. Cir.
1986). Even if an order does not by its terms grant or deny a
specific request for an injunction -- or, as here, does not by its
terms grant or deny a specific request to dissolve an injunction --
the order may still be appealable if it has the “practical effect”
of doing so. Carson, 450 U.S. at 83; Cobell v. Norton, 334 F.3d
1128, 1137 (D.C. Cir. 2003). But such a “practical effect” order
is appealable without more only if it “affect[s] predominantly all
of the merits.” I.A.M., 789 F.2d at 24 n.3 (quoting Ctr. for Nat’l
Sec. Studies v. CIA, 711 F.2d 409, 412-13 (D.C. Cir. 1983)).
Otherwise, a “practical effect” order is appealable only if the
7
appellant can show that two further requirements are met: that
the order “might have a ‘serious, perhaps irreparable,
consequence,’ and that the order can be ‘effectually challenged’
only by immediate appeal.” Carson, 450 U.S. at 84; see Cobell,
334 F.3d at 1137; Int’l Ass’n of Machinists, 849 F.2d at 1486
n.11; United States v. Western Elec. Co., 777 F.2d 23, 29-30
(D.C. Cir. 1985). We refer to these as the “Carson
requirements,” after the Supreme Court opinion that first
enunciated them, Carson v. American Brands, Inc., 450 U.S. at
84.2
We apply this analysis in the following sections.
2
Carson did not itself contain the “affects predominantly all of
the merits” exception, which comes from this court’s decisions in
I.A.M., 789 F.2d at 24 n.3, and Center for National Security Studies,
711 F.2d at 413. Carson was also unclear as to whether the two
Carson requirements apply only to “practical effect” orders, or also to
orders expressly granting or denying injunctions. The Supreme Court
has subsequently suggested that the former is the case, and this circuit
and others have so held. See Gulfstream Aerospace Corp. v.
Mayacamas Corp., 485 U.S. 271, 287-88 (1988) (“Section 1292(a)(1)
will, of course, continue to provide appellate jurisdiction over orders
that grant or deny injunctions and orders that have the practical effect
of granting or denying injunctions and have ‘serious, perhaps
irreparable, consequence.’” (emphasis added)); Int’l Ass’n of
Machinists, 849 F.2d at 1486 n.11 (“Carson does not apply to an order
clearly granting or denying a specific request for injunctive relief;
such orders are always appealable under § 1292(a)(1).” (quoting
I.A.M., 789 F.2d at 24 n.3)); see also Robert Bosch LLC v. Pylon Mfg.
Corp., 659 F.3d 1142, 1147 (Fed. Cir. 2011); CFTC v. Walsh, 618
F.3d 218, 224 (2d Cir. 2010); Edwards v. Prime, Inc., 602 F.3d 1276,
1290 (11th Cir. 2010); Westar Energy, Inc. v. Lake, 552 F.3d 1215,
1223 (10th Cir. 2009).
8
A
The first issue is whether the district court’s August 2010
order is one that clearly denies a specific request to dissolve an
injunction, and hence is appealable without a further showing.
See I.A.M., 789 F.2d at 24 n.3. In this case, that issue has two
subparts: (1) whether the 1999 Settlement Order (together with
its related remedial orders) is an injunction; and (2) whether the
August 2010 order constitutes an order clearly “refusing to
dissolve” that Order.3 Although we are inclined to agree with
both parties that the Settlement Order grants injunctive relief,
Salazar Br. 8; District Br. 2, we need not resolve that issue
because the August order did not clearly refuse to dissolve the
Settlement Order.4
3
Cf. Western Elec., 777 F.2d at 28-29 & n.12 (applying Carson
requirements where, although the court found that a consent decree
was an injunction, it was not clear whether the appealed-from order
constituted a “modification” of that decree).
4
The argument that the Settlement Order is an injunction for
purposes of § 1292(a)(1) is quite strong, given this court’s broad
definition of an injunction as any order “‘directed to a party,
enforceable by contempt, and designed to accord or protect some or
all of the substantive relief sought by a complaint in more than
preliminary fashion,’” E-Gold, 521 F.3d at 415 (quoting I.A.M., 789
F.2d at 24), as well as our decisions regarding similar orders, see
Twelve John Does v. District of Columbia, 117 F.3d 571, 574 (D.C.
Cir. 1997) (holding that a consent decree is an injunction); Western
Elec., 777 F.2d at 28 n.12 (same). The principal cause for hesitation
is Carson itself, which held that the “order declining to enter the
proposed consent decree” in that case “did not in terms ‘refus[e]’ an
‘injunctio[n],’” but rather “had the practical effect of doing so.” 450
U.S. at 83. It may be, however, that Carson was focusing on the
“refusing,” rather than the “injunction,” issue.
9
The August 2010 order did nothing more than reject the
first of two reasons the District offered in support of dissolution,
leaving argument on and resolution of the second rationale
pending. Indeed, as the terms of the order make clear, it did not
deny the District’s motion in its entirety, but only “as to the
private right of action issue.” Salazar, 729 F. Supp. 2d at 272.
Accordingly, the order “did not in terms” refuse to dissolve an
injunction. See Carson, 450 U.S. at 83.
The crux of the District’s contrary argument is that: “It does
not matter what the district court may yet do” in ruling on the
remaining rationale; “what matters is that the order in question
indisputably did refuse to dissolve or modify the Settlement
Order.” District Reply Br. 6. The implications of this argument
are sweeping: in a more complicated case, it would permit a
party to present five, or ten, or a hundred arguments for vacating
an injunction, and then appeal each time the court decided any
one of them. This would certainly leave the barrier against
piecemeal appeals with as many holes as Swiss cheese.5
Switzerland Cheese itself makes clear that it does indeed
matter whether there is something more that the district court
“may yet do.” There, the Supreme Court held that the plaintiffs
could not appeal the denial of a motion for summary judgment
on a request for a permanent injunction, because a trial on
unresolved factual issues was still in the offing. 385 U.S. at 25.
5
We do not mean to suggest that whenever there is something
more that the district court “may yet do,” a party cannot appeal under
§ 1292(a)(1). Indeed, because § 1292(a)(1) authorizes appeals from
“interlocutory” orders, there will always be something yet to do in the
district court. We merely hold that, when a district court rejects only
one of multiple grounds for dissolving an injunction, the court has not
“in terms” refused to dissolve that injunction within the meaning of
Carson.
10
Denying summary judgment was no less a “refus[al]” to
immediately grant the requested injunction in that case than was
rejecting one of the District’s two grounds a “refus[al]” to
immediately dissolve the Settlement Order here. And yet, the
Court held that there was no appellate jurisdiction in Switzerland
Cheese because the refusal to immediately grant relief was not
the end of the matter.6
This court reached a similar result in Center for National
Security Studies, 711 F.2d at 414. Although the complaint in
that case sought disclosure of twelve categories of documents
under the Freedom of Information Act (FOIA), the plaintiffs
filed an appeal after the district court granted the defendant’s
motion for summary judgment as to only one. Rather than treat
the court’s order as expressly denying an injunction, we instead
characterized it as having the “practical effect” of doing so, id.
at 412; applied the Carson requirements, id. at 413; and
dismissed for lack of jurisdiction because the plaintiffs failed to
show they would suffer irreparable injury by waiting to appeal
from a final judgment on the complaint, id. at 414.
The District objects that barring an appeal at this juncture
“would elevate form over substance” because this court “plainly
would have jurisdiction if the District had filed two separate
motions (rather than one motion with two separate grounds) and
the district court had denied one of them.” District Br. 3. We
do not believe that appellate jurisdiction can be conjured so
easily. First, had the District attempted to simultaneously file
6
Although in Switzerland Cheese the Supreme Court did not
describe the order at issue as one having the “practical effect” of
refusing an injunction, it subsequently did so in Carson, explaining
that the Switzerland Cheese petitioners’ appeal had been dismissed
because they were unable to show irreparable harm from waiting until
the judgment was final. 450 U.S. at 84-85.
11
separate motions seeking the same relief and differing only in
their rationales, the district court might well have consolidated
them by exercising its inherent authority to order its
proceedings. See United States v. Western Elec. Co., 46 F.3d
1198, 1207 n.7 (D.C. Cir. 1995). Second, had the District
instead held back its alternative rationale, filing it sometime
later in the form of another Rule 60(b) motion, it would have
risked a ruling that such manipulation warranted denial because
the motion was not filed “within a reasonable time,” FED. R.
CIV. P. 60(c)(1). See Salazar v. District of Columbia, 633 F.3d
1110 (D.C. Cir. 2011).
Nor is there any reason to be embarrassed about
“elevat[ing] form over substance” under these circumstances.
After all, form-over-substance is precisely the point of a
doctrine that distinguishes between an order that “clearly”
denies a “specific” request to dissolve an injunction, and one
that does so only “in practical effect.” Accordingly, the District
can justify an appeal at this time only if the August 2010 order
falls within the latter category.
B
As we have discussed, an interlocutory order that does not
expressly refuse to grant or dissolve an injunction may still be
appealable under § 1292(a)(1) if it has the “practical effect” of
doing so. Although a number of cases have shed light on the
meaning of “practical effect,” none has extended the term as far
as would be required to cover the order at issue here.
Carson itself held that a district court’s refusal to grant a
joint motion to enter a consent decree containing injunctive
relief was in practical effect the denial of an injunction. See 450
U.S. at 83-84. Unlike here, however, the district court’s refusal
left no rationale for entering the decree unaddressed.
12
Switzerland Cheese, which Carson subsequently characterized
as a practical effect case, see supra note 6, is a step closer, as it
involved a court order that denied summary judgment while
leaving trial on the merits to follow. See 385 U.S. at 25. But
that order did not reject only one of multiple grounds for
summary judgment; it rejected the summary judgment motion
in toto. Our own decision in Center for National Security
Studies is another step closer. There, we treated the grant of a
defendant’s motion for summary judgment on only one count of
a FOIA complaint, a count that sought disclosure of only one
category of documents, as having the practical effect of denying
a request for an injunction. But even there, the district court
decided the only pending motion in its entirety -- the defendant
had not filed for summary judgment with respect to the other
counts seeking disclosure of other documents -- thereby entirely
resolving the issue regarding that count. See Ctr. for Nat’l Sec.
Studies, 711 F.2d at 410.7
We need not decide whether to take the still further step that
would be required to cover the district court’s August 2010
order: that is, characterizing an order rejecting only one of two
grounds supporting a motion to dissolve an injunction as having
the practical effect of refusing dissolution. Although a
“practical effect” order is appealable without more if it “affect[s]
predominantly all of the merits,” I.A.M., 789 F.2d at 24 n.3
(quoting Ctr. for Nat’l Sec. Studies, 711 F.2d at 412-13), the
order in this case did not do so. Rather, it resolved only one of
two merits issues, neither of which predominated over the other
as each constituted an independent ground for dissolution of the
7
We note that, although the orders in Switzerland Cheese and
Center for National Security Studies were regarded as having the
practical effect of refusing injunctions, the appeal in each was
ultimately dismissed for lack of jurisdiction. See 385 U.S. at 25; 711
F.2d at 414.
13
Settlement Order.8 Accordingly, even if the district court’s
order had the requisite practical effect, it is still appealable only
if the District “can show [1] that [the] order of the district court
might have a ‘serious, perhaps irreparable consequence,’ and [2]
that the order can be ‘effectually challenged’ only by immediate
appeal.” Carson, 450 U.S. at 84; Ctr. for Nat’l Sec. Studies, 711
F.2d at 413. Carson requires both showings, I.A.M., 789 F.2d
at 24, and the District of Columbia has failed to make either one.
1. The District maintains that the denial of its requested
relief threatens “serious, perhaps irreparable consequence”
because continuation of the challenged orders will “divert [the
District’s] increasingly scarce financial and human resources.”
Reply Br. 7. “[E]ach day that they are in place,” the District
declares, the orders cost it attorneys’ fees, impose litigation
burdens, and “consum[e] the time and resources of government
officials.” Id. at 8-9. These kinds of injuries, however, are
generally insufficient to warrant immediate appeal in a
“practical effect” case. As we have explained, “[t]he cost and
delay associated with litigation does not serve to establish
irreparable harm” under Carson. Western Elec., 777 F.2d at 30;
see I.A.M., 789 F.2d at 25 (“Formidable as it is, the cost and
delay associated with modern-day litigation simply does not
establish irreparable harm.”).9
8
Cf. I.A.M., 789 F.2d at 24 n.3 (holding that an order that granted
only interim relief but declined to address the merits of the appellant’s
defense and counterclaims “cannot be said to have affected
predominantly all of the merits of the case”); Ctr. for Nat’l Sec.
Studies, 711 F.2d at 413 (holding that a summary judgment order that
ruled on the merits of one count but left eleven counts pending “did
not affect predominantly all of the merits in the case”).
9
In Carson, by contrast, the claimed injuries were sufficiently
irreparable. There, the consent decree that the district court denied
would have directed changes in the defendant employer’s personnel
14
The District also contends that continuation of the orders
“threatens ‘serious, perhaps irreparable’ harm to separation of
powers and democratic principles” because it “depriv[es] its
current elected officials of their ‘designated legislative and
executive functions’” until the district court issues a final order.
Reply Br. 7 (quoting Horne v. Flores, 129 S. Ct. 2579, 2594
(2009)). This argument, once again, has sweeping implications
-- suggesting that judicial restriction of the District’s freedom of
action in administering one of its programs constitutes per se
irreparable injury. But whether or not the argument might
satisfy Carson in some other case, it rings hollow on the facts of
this one.
To begin with, the strength of the District’s concern about
the Settlement Order’s fiscal and democratic consequences is
cast in doubt by its recent vintage. The District waited seven
years after the Court issued Gonzaga before bringing its motion
to terminate based on that decision, and it has not explained why
its concern only recently became so pressing. Cf. Quince
Orchard Valley Citizens Ass’n v. Hodel, 872 F.2d 75, 80 (4th
Cir. 1989) (noting that a “‘period of delay’” may “‘indicate an
absence of the kind of irreparable harm required to support a
preliminary injunction’” (quoting Citibank, N.A. v. Citytrust,
756 F.2d 273, 276 (2d Cir. 1985))).
Moreover, although the District repeatedly states that it was
the district court that “chose” to initially address only one of its
two grounds for relief, Reply Br. 1, 2, 5, that is not quite the
policies for the benefit of the plaintiff employees. See 450 U.S. at 89-
90. Carson found that without an immediate appeal, the plaintiffs
might forever lose both the chance to settle the case on the terms the
parties had negotiated, id. at 86, and “specific job opportunities and
the training and competitive advantages that would come from those
opportunities,” id. at 89 n.16.
15
whole story. After the District filed its motion to terminate the
Settlement Order, the plaintiffs promptly filed a motion to take
discovery on the factual question of whether the District was --
as it contended -- in compliance with federal law. The District
responded by opposing the plaintiffs’ request, proposing that
they not be allowed to take discovery until after the court
resolved the private cause of action issue. Defs.’ Opp. to Pls.’
Mot. for Disc. at 2-3 (J.A. 678-79). “If the Court rules against
the District,” the District’s opposition said, “discovery can
commence[, and] it is difficult to imagine any possible prejudice
to the plaintiffs in waiting.” Id. at 3 (J.A. 679).10 In short, it was
the District’s litigation strategy, adopted by the court, that led to
the bifurcation of issues; had the District not proposed
bifurcation, discovery regarding compliance would have
proceeded in tandem with briefing on the cause of action issue.
And if the litigation had proceeded in that fashion, it is likely
that by now either the District would be free of the Settlement
Order or we would be reviewing the merits of a final decision.
Finally, the District’s inactivity in the district court after
that court rejected its cause of action argument only adds to our
skepticism regarding its claim of “serious, perhaps irreparable”
harm. During the entire time its appeal has been pending, the
District has done nothing to pursue a decision on its statutory
compliance argument. See Oral Arg. Recording at 7:15-7:45;
Civil Docket for Case No. 1:93-cv-00452 (as of Mar. 6, 2012).
Under these circumstances, and absent any more particularized
showing of irreparable injury, we conclude that the District has
failed to meet the first Carson requirement. Cf. Carson, 450
U.S. at 84-85 (explaining that the Switzerland Cheese petitioners
10
There was nothing in the District’s opposition to suggest that it
planned to appeal immediately if it lost the cause of action issue; to the
contrary, the filing gave every indication that if the District lost, it
would move ahead on the compliance question.
16
could not show that the order denying summary judgment on
their request for a permanent injunction caused them irreparable
harm because they had failed to pursue preliminary injunctive
relief).
2. The District’s contention that the court’s order
satisfies the second Carson requirement because it “can be
effectively challenged only by immediate appeal,” Reply Br.
9, is even weaker than its claim of irreparable injury. The
District argues that we must hear its appeal immediately
because, since the date the District Court decided “the private
right of action issue now before this court, no action has been
taken to advance resolution of the remaining issues [of
statutory compliance] raised in the District’s motion.” Id.
(emphasis added). But the use of the passive voice obscures
the fact that the District itself has taken no action to advance
the resolution of the matter in the district court, as we have
just discussed. Under these circumstances, the District’s
concern is premature at best, and we have no reason to
conclude that the order rejecting the District’s private cause
of action argument cannot be challenged effectively once
there is a ruling on its remaining compliance argument.
Accordingly, the District’s piecemeal appeal fails both
Carson requirements, and we are therefore without
jurisdiction to hear it at this time.11
11
We note that under a different jurisdictional provision, 28
U.S.C. § 1292(b), “a party may ask the district court to certify, and the
court of appeals to accept, an interlocutory appeal” of an order that
involves “‘a controlling question of law,’ the prompt resolution of
which ‘may materially advance the ultimate termination of the
litigation.’” Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 607
(2009) (quoting 28 U.S.C. § 1292(b)). The District has not pursued
this avenue for obtaining review.
17
III
For the foregoing reasons, we dismiss the District’s
appeal for lack of jurisdiction.
So ordered.