Friday, November 03, 2006

Tenth Circuit Notes Propriety of Pendent Appellate Jurisdiction Over Otherwise Nonappealable Decision

Per Kirkland v. St. Vrain Valley School Dist. No. Re-1J, 464 F.3d 1182 (10th Cir. Sep 26, 2006):

. . . [T]his court has jurisdiction to consider the individual Defendants' interlocutory appeal from the denial of qualified immunity. See Perez, 421 F.3d at 1131; see also Denver Justice and Peace Comm., Inc. v. City of Golden, 405 F.3d 923, 927 (10th Cir.2005), cert, denied, --- U.S. ----, 126 S.Ct. 1164 (2006). In light of that, we also have "discretion to exercise pendent appellate jurisdiction over nonappealable issues ... in the same case." Roska ex rel. Roska v. Sneddon, 437 F.3d 964, 970 (10th Cir.2006).

It is appropriate to exercise pendent appellate jurisdiction where the otherwise nonappealable decision is inextricably intertwined with the appealable decision, or where review of the nonappealable decision is necessary to ensure meaningful review of the appealable one. A nonappealable decision is inextricably intertwined with an appealable one if resolution of the appealable decision necessarily resolves the nonappealable issue as well. The exercise of pendent jurisdiction, however, is generally disfavored. Id. (citations, quotations omitted). Furthermore, "the Cohen [collateral order] doctrine applies to pendent claims as well. Pendent claims are thus appealable 'if, and only if, they too fall within Cohen's collateral-order exception to the final-judgment rule.' " Timpanogos Tribe, 286 F.3d at 1200 (quoting Swint v. Chambers County Comm'n, 514 U.S. 35, 49, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995)).


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