- Neither party disputes the interlocutory nature of this appeal. Instead, both assert we have jurisdiction under the collateral order doctrine, claiming theMessage 1 of 1 , Oct 19, 2008View Source
Neither party disputes the interlocutory nature of this appeal. Instead, both assert we have jurisdiction under the collateral order doctrine, claiming the penalty abatement issue may become effectively unreviewable if we do not consider it at this time. In a "small class" of cases, we have jurisdiction over interlocutory appeals from non-final orders that "finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). A case fits within this discrete subset of interlocutory orders when the appeal meets the three requirements of the collateral order doctrine. First, "the order must conclusively determine the disputed question;" second, it must "resolve an important issue completely separate from the merits of the action;" and third, it must be "effectively unreviewable on appeal from a final judgment." Coopers & Lybrand, 437 U.S. at 468 (footnote omitted). "The conditions are 'stringent,' and unless they are kept so, the underlying doctrine will overpower the substantial finality interests § 1291 is meant to further . . . ." Will v. Hallock, 126 S.Ct. 952, 957 (2006). A district court order that "fails to satisfy any one of [the Cohen] requirements" is not reviewable under the collateral order doctrine. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 276 (1988). Mesa Oil, Inc. v. United States, 467 F.3d 1252 (10th Cir. 2006).
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