Whether the appellate court has jurisdiction to hear an appeal arises more often than a lot of people might think. The issue is critical, and thus rule 28(a)(4), Federal Rules of Appellate Procedure, requires that the appellant’s opening brief set forth the facts and law that establish appellate jurisdiction, including the alternate basis for appellate jurisdiction when the appeal is other than from a final judgment.
In United States v. No Runner, case no. 08-30449 (9th Cir. Dec. 30, 2009), the issue is whether a defendant can appeal under the “collateral order doctrine” from an order determining her competent to stand trial, or instead must wait for entry of final judgment to appeal. The court first notes the conditions that satisfy the doctrine:
As a general rule, we have jurisdiction to review only “final decisions of the district courts.” 28 U.S.C. § 1291. “In criminal cases, this rule ordinarily prohibits appellate review until a defendant is convicted and sentenced.” United States v. Friedman, 366 F.3d 975, 978 (9th Cir. 2004). Under the collateral order doctrine, however, a non-final order is appealable if three conditions are satisfied.
First, it “must conclusively determine the disputed question”; second, it must “resolve an important issue completely separate from the merits of the action”; third, it must “be effectively unreviewable on appeal from a final judgment.”
Flanagan v. United States, 465 U.S. 259, 265 (1984) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978) (footnote omitted)).
It doesn’t take long for the court to conclude that the order finding the defendant competent to stand trial satisfies only the second condition. It notes that the ruling does not conclusively determine the disputed question because the issue of competency “remains open throughout the trial, and may be raised by the defendant, or by the court, at any time” under 18 U.S.C. § 4241(a). Regarding the third factor, appellant argued that the right protected by a determination of incompetence is the right to avoid trial entirely, and thus awaiting final judgment before appeal cannot possibly vindicate that right. The court, however, notes the policy of narrowly construing the collateral order doctrine and characterizes the purpose of the competency proceedings as protecting the due process right to a fair trial rather than the right to avoid trial entirely, and thus finds the order of competency effectively reviewable on appeal from a final judgment.
