No immediate appeal in House v. Burwell.

The district court in House v. Burwell has denied the government’s motion to immediately appeal its decision finding that the House of Representatives can sue the administration over an ACA-related appropriations dispute.

To be sure, the case would be over more quickly if Defendants were able to appeal—and if they prevailed—now. But that is true every time a defendant’s motion to dismiss is denied. The relevant question [under 28 U.S.C. §1292(b)] is whether immediate appeal would materially advance the ultimate termination of the litigation. In this case, it would not. Unlike typical civil litigation, where the denial of a motion to dismiss would be followed by months or even years of discovery, this case is presently suited for summary disposition: the facts are not in dispute. Dispositive motions can be briefed and decided in a matter of months—likely before an interlocutory appeal could even be decided. At that point, both standing and the merits may be appealed. Having considered the issue carefully, the Court is confident that the D.C. Circuit will be best served by reviewing a complete record on standing and the merits.

The court’s reasoning implies that interlocutory appeals are never appropriate in purely legal disputes, which strikes me as much too categorical a rule. Still, the decision isn’t unreasonable. The court is right that the case will be over relatively soon: the parties will both move for summary judgment on a briefing schedule that runs into the middle of January. We’re likely to see a decision on the merits of the case in March or April.

At that point, the government can appeal. Until then, it’s stuck in the district court.


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