O'Donnell v. United States

112 F. App'x 36

• Court: Court of Appeals for the Federal Circuit
• Decided: October 13, 2004
• Docket: No. 04-5123, 04-5148
• Status: Published

Opinion

ON MOTION

CLEVENGER, Circuit Judge.

ORDER

The United States moves to dismiss these appeals, filed by John R. O’Donnell and Carol A. O’Donnell (the O’Donnells), for lack of a final appealable judgment. The O’Donnells oppose. The United States moves to stay the briefing schedule. The O’Donnells move to expedite and to stay an order of the United States Court of Federal Claims that requires them to respond to the United States’ motion to dismiss filed in that court.

The O’Donnells filed suit in the Court of Federal Claims challenging the forfeiture of property due to convictions against John R. O’Donnell. The United States moved to dismiss the O’Donnells’ complaint for lack of subject matter jurisdiction. The O’Donnells moved for leave to depose a witness. The Court of Federal Claims stayed the O’Donnells’ discovery motion pending disposition of the motion to dismiss for lack of subject matter jurisdiction. The O’Donnells appeal that order in 04-5123. Thereafter, the Court of Federal Claims ruled that it had jurisdiction to continue proceedings in the matter, notwithstanding the O’Donnells’ appeal. The O’Donnells appeal that order in 04-5148.

The O’Donnells do not dispute that there has been no entry of an appealable final judgment. Instead, they argue that the appeal is permissible pursuant to Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Under the collateral order doctrine, certain orders are appealable despite the lack of a final judgment. A collateral order may be appealed if it conclusively determines the disputed question, resolves an important issue completely separate from the merits of the action, and is effectively unreviewable on appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). We determine that the appeal of the order staying discovery pending disposition of a motion to dismiss, 04-5123, does not meet any of the three required grounds for allowing an appeal from an interlocutory order. Further, we have no jurisdiction over appeal 04-5148 for the same reasons.

Accordingly,

IT IS ORDERED THAT:

(1) The United States’ motion to dismiss is granted. Appeals 04-5123 and 04-5148 are dismissed for lack of jurisdiction.

(2) The United States’ motion to stay the briefing schedule is moot.

(3) The O’Donnells’ motion to stay an order of the trial court is denied.

(4) Each side shall bear its own costs.