Some lawyers not well-versed in appellate jurisdiction may find themselves fighting against one of two extremes when it comes to interlocutory decisions: the impulse to appeal everything (appealable or not), or failing to evaluate interlocutory orders for possible exceptions to the “final judgment rule,” figuring “why bother” until a final judgment is entered. Then there are those in the middle who recognize opportunity in interlocutory orders, and seize it.
Such were the lawyers representing the appellants in Lazy Y Ranch Ltd. v. Behrens, case no. 07-35315 (9th Cir. Sept. 26, 2008). Lazy Y sued, alleging a violation of equal protection, after its bids for grazing on state land were rejected in favor of other bidders. The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, arguing that the complaint failed to allege a violation of equal protection and, alternatively, that the defendants had qualified immunity. Their motion to dismiss relied on extrinsic documents. Lazy Y moved successfully to strike many of those documents, and prevailed against the motion to dismiss. Defendants appealed from both the order denying the motion to dismiss and the order striking certain exhibits.
Taking up the question of jurisdiction under the collateral order doctrine, the court reasons:
We begin by briefly addressing Lazy Y’s suggestion that we lack appellate jurisdiction over this interlocutory appeal. Lazy Y argues that (1) Defendants’ attacks on the order denying the motion to dismiss exceed the scope of the “collateral order” doctrine upon which they allege jurisdiction, and (2) the order granting Lazy Y’s motion to strike documents is unappealable under any doctrine. We disagree.
In general, a party is entitled only to a single appeal, to be “deferred until final judgment has been entered.” [Citation.] However, under the collateral order doctrine, a litigant may appeal from a “narrow class of decisions that do not terminate the litigation, but must, in the interest of achieving a healthy legal system, nonetheless be treated as final.” [Citation.] To be appealable under the collateral order doctrine, a district court decision must (1) be “conclusive,” (2) “resolve important questions completely separate from the merits,” and (3) “render such important questions effectively unreviewable on appeal from final judgment in the underlying action.” [Citation.]
Because qualified immunity is immunity from suit itself and not merely a defense to liability, orders denying qualified immunity may be immediately appealable under the collateral order doctrine, including orders denying a motion to dismiss. [Citation.] Such an order is reviewable to the extent that it raises an issue of law. [Citations.]
Here, contrary to Lazy Y’s suggestion, we do not construe Defendants’ appeal to depend on “their version of the facts.” Rather, Defendants argue that Lazy Y’s allegations of pretext and animus are irrelevant under Equal Protection law, because they have articulated legitimate reasons for rejecting Lazy Y’s bids. In other words, Defendants argue that their articulated purposes end the inquiry and mean that Lazy Y’s claims of actual improper motives fail to establish an Equal Protection violation. They also argue that Lazy Y brings “class of one” claims that are either incognizable or not clearly established in the context of public contracting. These are contentions of law. [Citation.]
Moreover, whether Defendants’ exhibits should have been considered is essentially a legal question, and the order granting the motion to strike was simply part of the Rule 12(b)(6) analysis, as the district court resolved that motion solely to establish the record for the motion to dismiss. [Citation.]
So, appellants got their day in the court of appeals. Turns out to be for naught, however, as the court affirms. But at least they had their shot.