10th Circuit Explains Exception to Administrative-Remand Rule; Finds Exception Inapplicable

Per Trout Unlimited v. U.S. Dept. of Agriculture, 441 F.3d 1214 (10th Cir. March 28, 2006):

This court has jurisdiction over final decisions of the federal district courts pursuant to 28 U.S.C. § 1291. Jurisdiction under § 1291 generally is contingent upon “the existence of a decision by the District Court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). Under § 1291, “remand by a district court to an administrative agency for further proceedings is ordinarily not appealable because it is not a final decision.” Bender v. Clark, 744 F.2d 1424, 1426-27 (10th Cir.1984). Nonetheless, this court has recognized that the “administrative-remand rule” is not without exception. Baca-Prieto v. Guigni, 95 F.3d 1006, 1008 (10th Cir.1996).

In the context of a district court order remanding a matter to an administrative agency, jurisdiction may be appropriate when the issue presented is both urgent and important. Bender, 744 F.2d at 1427. If these two conditions are met, this court will apply a balancing test and assert jurisdiction if “the danger of injustice by delaying appellate review outweighs the inconvenience and costs of piecemeal review.” This court has warned, however, that Bender and Cotton Petroleum“must be narrowly construed ··· to preserve the vitality of § 1291.” Boughton v. Cotter Corp., 10 F.3d 746, 752 (10th Cir.1993).

Defendant-Intervenors make the conclusory allegation that delaying appellate review of the district court's Long Draw decision will “result in uncertainty, additional litigation, confusion and a very real danger of injustice.” They offer no support for this statement, however, and we can discern no reason why this case requires urgent or immediate judicial consideration. In this case, delayed review will not result in injustice. Defendant-Intervenors do not claim the Forest Service will require implementation of bypass flows during the remand process. If the Forest Service's decision on remand is not satisfactory, Defendant-Intervenors can pursue administrative remedies and, if necessary, seek review in the district and appellate courts at a later stage in the proceedings. Finally, Defendant-Intervenors have not supported their bare assertion that delay in judicial review has resulted in, or will result in, additional disputes and litigation.

In sum, this case does not fall within the narrow exception to the administrative-remand rule. Although the issues presented may be important, the need for judicial review is not urgent. Accordingly, this court lacks jurisdiction to hear the appeal.