August 17, 2019

Tenth Circuit: Interlocutory Appeal Dismissed for Lack of Jurisdiction

The Tenth Circuit published its opinion in United States v. Copar Pumice Company on Monday, May 6, 2013.

This case involves the parties’ nearly ten-year legal dispute involving mining operations in the New Mexico Santa Fe National Forest. The claims are based on allegations that the Cooks and Copar removed and used undersized pumice from a mine in violation of a settlement agreement with the United States, the Jemez National Recreation Area Act (“JNRAA”), 16 U.S.C. § 460jjj, and applicable regulations. Although the case remains pending in the district court, the Cooks and Copar have filed an interlocutory appeal from discovery orders requiring their former and present law firms to produce documents containing legal advice counsel gave to them regarding the legality of mining, transporting, processing, and marketing pumice from their mine. Specifically, the Cooks and Copar appeal the denial of their motion for protective order and their motion to quash subpoenas, contending that this court has appellate jurisdiction under the collateral order, Perlman, and pragmatic finality doctrines. The United States has filed a motion to dismiss this appeal for lack of jurisdiction.

This Court’s jurisdiction is limited to review of “final decisions of the district courts.” 28 U.S.C. § 1291. A decision is “‘final’ when it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” In re Motor Fuel Temperature Sales Practices Litig., 641 F.3d 470, 481 (10th Cir. 2011) (quotation omitted), cert. denied, 132 S. Ct. 1004 (2012). Also, orders for the production of documents during the course of litigation are not ‘final orders’ subject to immediate appellate review. In certain limited circumstances, however, the Court has exercised jurisdiction over an interlocutory appeal under the collateral order doctrine (also known as the Cohen doctrine), the Perlman doctrine, and the pragmatic finality doctrine. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949); Perlman v. United States, 247 U.S. 7 (1918). The Tenth Circuit concluded that none of these doctrines applied to this case.

Accordingly, the Tenth Circuit granted the government’s motion and dismissed the appeal for lack of jurisdiction.

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