“[W]here Congress includes particular language in one sec- tion of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate in- clusion or exclusion.”
How later courts described this case
- “[W]here Congress includes particular language in one sec- tion of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate in- clusion or exclusion.”
- “Rule 72(a) ‘parties’ are the parties before the magistrate, not the parties to the litigation from which the nondispositive matter originated.”
- providing the three factors for nonparty standing to appeal
Written by the judges who cited it.
The opinion
Case: 25-70014 Document: 90-1 Page: 1 Date Filed: 03/09/2026
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
March 9, 2026
No. 25-70014 Lyle W. Cayce
____________ Clerk
Carlos Manuel Ayestas, also known as Dennis Zelaya Corea,
Petitioner—Appellee,
versus
Harris County District Attorney’s Office,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CV-2999
______________________________
Before Smith, Southwick, and Ho, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Carlos Ayestas was convicted of capital murder and sentenced to
death. He filed a federal habeas corpus petition raising claims of ineffective
assistance of counsel (“IAC”). After his petition was denied, Ayestas filed a
Federal Rule of Civil Procedure 59(e) motion to alter the judgment. Shortly
thereafter, his habeas counsel located, in the case file provided by the pro-
secution, a memorandum indicating that the state had sought the death pen-
alty on account of Ayestas’s non-citizen status.
Ayestas filed a motion to amend his habeas petition, seeking to add
Case: 25-70014 Document: 90-1 Page: 2 Date Filed: 03/09/2026
No. 25-70014
Eighth and Fourteenth Amendment selective-prosecution claims. The dis-
trict court dismissed the claims in the motion to amend, holding that they
were jurisdictionally barred as a “second or successive habeas corpus appli-
cation” under 28 U.S.C. § 2244(b).
Six years later, Ayestas filed a Federal Rule of Civil Procedure 60(b)
motion to reopen the judgment, citing the intervening decision in Banister v.
Davis, 590 U.S. 504 (2020), which held that Rule 59(e) motions are not “suc-
cessive habeas corpus applications” under § 2244(b). The district court
granted the motion.
Ayestas filed an amended habeas petition, and discovery commenced.
Over assertions of work-product privilege from the Harris County District
Attorney’s Office (“HCDA”), Ayestas sought, and the district court grant-
ed, discovery of charging memoranda for comparator capital murder defen-
dants within a thirty-year span and the complete file related to Ayestas.
HCDA appeals the discovery order.
Because we have jurisdiction over the appeal under the collateral-
order doctrine and the district court lacked jurisdiction over Ayestas’s
selective-prosecution claims, we vacate the discovery order and dismiss the
selective-prosecution claims.
I.
Santiaga Paneque was found dead in Houston in 1995. Law enforce-
ment identified Ayestas and two others as persons of interest. The Harris
County District Attorney was John B. Holmes, Jr., and Kelly Siegler was his
Court Chief. Before Ayestas was arrested, Siegler wrote, and Holmes signed,
an internal Capital Murder Summary (the “Siegler Memorandum”), which
recommended that HCDA seek death against Ayestas. The Siegler Memo-
randum justified that recommendation with two facts: Paneque was elderly,
and “the Defendant is not a citizen.” HCDA ultimately secured a conviction
2
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No. 25-70014
and death sentence. The Siegler Memorandum was not made available to
Ayestas during his state trial because it was treated as confidential work
product.
Ayestas filed a federal habeas petition challenging his conviction and
sentence. Ayestas asserted a constitutional IAC claim. The district court
denied his petition on November 18, 2014. 1 Ayestas filed a Rule 59(e) motion
to alter the judgment on December 16, 2014, once again asserting IAC.
On December 22, 2014, while the Rule 59(e) motion was pending,
Ayestas’s counsel discovered the Siegler Memorandum, which HCDA inad-
vertently had left in the case file provided to Ayestas’s habeas counsel. On
January 9, 2015, Ayestas filed a motion for leave to amend his habeas petition
(“2015 Motion to Amend”), arguing that HCDA had sought the death pen-
alty against Ayestas on account of his non-citizen status, violating the Eighth
and Fourteenth Amendments.
The district court denied the 2015 Motion to Amend. The court held
that the motion constituted a “second or successive habeas corpus applica-
tion” under 28 U.S.C. § 2244(b)(2), which generally bars such applications.
Further, the court held that Ayestas’s claims based on the Siegler Memoran-
dum did not meet the exceptions listed in § 2244(b)(2)(B) because Ayestas
did not “allege that the [Siegler Memorandum] could not have been discov-
ered previously though the exercise of due diligence.” Thus, the court held
that the claims were jurisdictionally barred. The litigation seemingly came to
an end when the Fifth Circuit denied relief on Ayestas’s IAC claim and the
Supreme Court denied certiorari. Ayestas v. Davis, 933 F.3d 384 (5th Cir.
_____________________
1
The district court had denied his petition in 2011, before the Supreme Court
granted certiorari and remanded in light of relevant IAC cases decided in 2012 and 2013.
See Ayestas v. Thaler, 569 U.S. 1015 (2013).
3
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No. 25-70014
2019), cert. denied, 589 U.S. 1203 (2020).
In 2020, the Supreme Court decided Banister. The Court held that a
Rule 59(e) motion to alter or amend a habeas court’s judgment is not a second
or successive habeas petition under § 2244(b)(2). Ayestas filed a Rule 60(b)
motion for relief from judgment, citing Banister.
The district court granted Ayestas’s Rule 60(b) motion. First, it held
that Ayestas’s Rule 60(b) attack on the 2015 order refusing amendment was
not a successive petition under § 2244(b)(2) because the 2015 order was a
“previous ruling which precluded a merits determination.” Second, it held
that, under Banister, the 2015 Motion to Amend was not a successive habeas
application because it was made in the posture of Rule 59(e).
Ayestas filed an amended habeas petition, and discovery commenced.
Ayestas served a subpoena on HCDA seeking, in part, case files for relevant
Hispanic and non-citizen defendants, along with all charging memoranda for
HCDA defendants charged with murder or capital murder from 1979 to
2008. HCDA asserted work-product and deliberative-process privileges.
Ayestas filed a motion to compel.
The magistrate judge granted the motion ordering HCDA to produce
“(i) charging memoranda created from 1979 to 2008 (the ‘Covered Period’)
for comparator defendants charged with capital murder who are sufficiently
likely to be non-white, foreign nationals, or non-citizens; (ii) charging memo-
randa from the Covered Period for comparator defendants charged with cap-
ital murder of victims with certain demographic attributes; (iii) full access to
the prosecutorial file from the Ayestas prosecution, including any material
that the HCDA treats as privileged and confidential.” HCDA did not object
to the order in the district court. HCDA appeals.
4
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No. 25-70014
II.
“An appellate federal court must satisfy itself not only of its own jur-
isdiction, but also of that of the district court in a cause under review. This
court reviews subject-matter jurisdiction de novo as a question of law.”
Cadence Bank v. Johnson, 160 F.4th 197, 201 (5th Cir. 2025) (citation
modified).
III.
This appeal presents five issues: (1) whether we have jurisdiction over
the appeal, (2) whether HCDA has standing to bring this appeal, (3) whether
the district court had jurisdiction, (4) whether Armstrong precludes discov-
ery, and (5) whether the materials listed in the discovery order are protected
under the work-product doctrine.
A.
1.
“Our appellate jurisdiction generally extends only to ‘final decisions
of the district courts.’” La Union Del Pueblo Entero v. Abbott, 68 F.4th 228,
232 (5th Cir. 2023) (quoting Vantage Health Plan, Inc. v. Willis-Knighton Med.
Ctr., 913 F.3d 443, 448 (5th Cir. 2019)). But we also have jurisdiction “over
a ‘narrow class of decisions’ that are ‘immediately appealable as collateral
orders even if no final judgment has been rendered.’” Lewis v. Crochet,
105 F.4th 272, 279 (5th Cir. 2024) (quoting Vantage, 913 F.3d at 448). Such
interlocutory orders are “immediately appealable under this rule only if they
‘(1) conclusively determine the disputed question, (2) resolve an important
issue completely separate from the merits of the action, and (3) [are] effec-
tively unreviewable on appeal.’” La Union, 68 F.4th at 232 (quoting Van-
tage, 913 F.3d at 448). As the first prong is easily met, 2 and Ayestas does not
_____________________
2
The disputed issue—the discovery order against HCDA—was “conclusively
5
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No. 25-70014
dispute that the order meets the second prong, we focus on the third prong
of the test.
In Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009), the Court
held that parties may not immediately appeal discovery orders adverse to
attorney-client privilege under the collateral-order doctrine. The Court em-
phasized that such orders are not “effectively unreviewable” on appeal from
a final judgment because alternative mechanisms—such as post-judgment
appeals or contempt proceedings—adequately protect the privilege. Id.
at 110–12.
But “Mohawk does not speak to the predicament of third parties,
whose claims to reasonable protection from the courts have often been met
with respect.” Whole Woman’s Health, 896 F.3d at 368. Indeed, evidentiary
privileges protect nonparties differently from parties:
The harm to third parties is not the admission of adverse
evidence at trial (an error potentially correctable for a party on
retrial), but the disclosure of their confidential and sensitive
information without full access to appellate review. Third par-
ties have no power to control the course of litigation nor any
influence over appeal from a final judgment. A third party may
of course petition for a “writ of mandamus” or may “defy a
disclosure order and incur court-imposed sanctions.” Manda-
mus review, however, is very narrow, and incurring sanctions
is risky.
Vantage, 913 F.3d at 449 (quoting Mohawk, 558 U.S. at 109–12) (citation
modified). The “decisive consideration is whether delaying review until the
entry of final judgment would imperil a substantial public interest or some
_____________________
determined.” We have routinely held that disclosure orders adverse to nonparties are con-
clusive determinations under the collateral-order doctrine. See Whole Woman’s Health v.
Smith, 896 F.3d 362, 367 (5th Cir. 2018), as revised (July 17, 2018); Vantage, 913 F.3d at 448.
6
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No. 25-70014
particular value of a high order.” Leonard v. Martin, 38 F.4th 481, 486 (5th
Cir. 2022) (citation modified).
The prosecutorial work-product privilege asserted by HCDA impli-
cates a substantial public interest. The work-product doctrine “reflects the
strong ‘public policy underlying the orderly prosecution and defense of legal
claims.’” United States v. Nobles, 422 U.S. 225, 236–37 (1975) (quoting Hick-
man v. Taylor, 329 U.S. 495, 510 (1947)). The disclosure of prosecutorial
work product “delays the criminal proceeding, threatens to chill law enforce-
ment by subjecting the prosecutor’s motives and decisionmaking to outside
inquiry, and may undermine prosecutorial effectiveness by revealing the
Government’s enforcement policy.” United States v. Armstrong, 517 U.S.
456, 465 (1996) (quoting Wayte v. United States, 470 U.S. 598, 607 (1985)).
Those substantial public interests serve as the bases for Armstrong’s high bar
for discovery. Id. at 468 (“The justifications for a rigorous standard for the
elements of a selective-prosecution claim thus require a correspondingly rig-
orous standard for discovery in aid of such a claim.”).
The discovery order against HCDA is thus an appealable collateral
order.
2.
Ayestas asserts that even if the discovery order is within the collateral-
order doctrine, we do not have jurisdiction to review it because HCDA failed
to object in the district court in compliance with Rule 72(a), which states:
When a pretrial matter not dispositive of a party’s claim or
defense is referred to a magistrate judge to hear and decide, the
magistrate judge must promptly conduct the required proceed-
ings and, when appropriate, issue a written order stating the
decision. A party may serve and file objections to the order
within 14 days after being served with a copy. A party may not
assign as error a defect in the order not timely objected to.
7
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No. 25-70014
Fed. R. Civ. P. 72(a).
Rule 72(a) does not speak to the obligations of nonparties. This stands
in stark contrast to other rules that explicitly reference the rights and obliga-
tions of “nonparties” or “third parties.” See Fed. R. Civ. P. 4, 5.2, 14,
32, 34, 37, 53, 71. The plain wording of the disparate exclusion of “nonparty”
is that Rule 72(a) does not cover nonparties. See Duncan v. Walker, 533 U.S.
167, 173 (2001) (“[W]here Congress includes particular language in one sec-
tion of a statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the disparate in-
clusion or exclusion.”). 3 Ayestas asserts that HCDA’s reading of Rule 72(a)
to exclude nonparties is “absurd” since a nonparty would have no time limit
for seeking review. But notices of appeal must be filed within 30 days of the
order, limiting the time to seek relief. See Fed. R. App. P. 4(a)(1)(A).
The dissent posits that Rule 4(a)(1)(A) does not limit nonparty
appeals because the rule references only “parties.” But when faced with a
rule with no textual deadline, we do not declare that there is no dead-
line. Rather, we establish a deadline by making a “judicial determination
within the general framework of familiar legal principles.” Runyon v.
McCrary, 427 U.S. 160, 180 (1976).
We therefore have jurisdiction over this appeal. 4
_____________________
3
Ayestas himself recognizes this distinction. In the merits section of his brief, he
asserts that HCDA cannot claim the privilege protections of Rule 26(b)(3) because it pro-
tects only a “party.”
4
HCDA has standing to bring this appeal. See Castillo v. Cameron Cnty., 238 F.3d
339, 349 (5th Cir. 2001) (providing the three factors for nonparty standing to appeal). First,
HCDA participated in the proceedings in the district court, filing a response to Ayestas’s
motion to compel discovery. Second, “equity favors this appeal because [HCDA has] no
other mechanism to vindicate [its] potentially meritorious claims of [work-product] privi-
lege.” La Union del Pueblo Entero v. Abbott, 93 F.4th 310, 316 (5th Cir. 2024). Third,
HCDA has a personal stake in the outcome of this appeal: whether it will be required to
8
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No. 25-70014
B.
Ayestas asserts that the district court had jurisdiction over his
selective-prosecution claims from either the 2015 Motion to Amend or the
2021 Rule 61(b) Motion. Section 2244(b)(2) states:
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless--
(A) the applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable;
or
(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of due dili-
gence; and
(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to establish
by clear and convincing evidence that, but for constitutional
error, no reasonable factfinder would have found the applicant
guilty of the underlying offense.
28 U.S.C § 2244(b)(2). Where a petition does not meet the demands of
§ 2244(b)(2), we are “required to dismiss for lack of jurisdiction.” Blackman
v. Davis, 909 F.3d 772, 780 (5th Cir. 2018), as revised (Dec. 26, 2018).
1.
Ayestas asserts that the district court had jurisdiction over the claims
raised in the 2015 Motion to Amend because Banister held that Rule 59(e)
motions are not successive habeas corpus applications under § 2244(b).
Though Banister recognized that Rule 59(e) motions are not succes-
_____________________
turn over decades’ worth of privileged materials.
9
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No. 25-70014
sive petitions under § 2244(b), it narrowly defined the scope of what consti-
tutes a Rule 59(e) motion. “To begin with, Rule 59(e) gives a prisoner only a
narrow window to ask for relief—28 days, with no extensions. Next, a pris-
oner may invoke the rule only to request reconsideration of matters properly
encompassed in the challenged judgment. And ‘reconsideration’ means just
that: Courts will not entertain arguments that could have been but were not
raised before the just-issued decision. A Rule 59(e) motion is therefore
backward-looking; and because that is so, it maintains a prisoner’s incentives
to consolidate all of his claims in his initial application.” Banister, 590 U.S.
at 516 (citation modified).
The claims raised in the 2015 Motion to Amend “could have been but
were not raised before the just-issued decision.” The claims in the 2015
Motion to Amend were Eighth and Fourteenth Amendment claims based on
the Siegler Memorandum, unlike the IAC claims unrelated to the Siegler
Memorandum. Though Ayestas’s counsel did not realize he had possession
of the Siegler Memorandum until December 22, 2014, he did not exercise
reasonable diligence in searching for evidence such as the Siegler Memo-
randum. 5 Nothing “suggests [Ayestas’s counsel] sought to examine the pro-
secution’s file prior to the December 22 search that uncovered the memoran-
dum.” Ayestas v. Stephens, 817 F.3d 888, 900 (5th Cir. 2016), vacated on other
grounds sub nom. Ayestas v. Davis, 584 U.S. 28 (2018).
_____________________
5
Ayestas asserts that TDCJ has admitted that the Siegler Memorandum was not
previously available to Ayestas’s counsel. Ayestas quotes a TDCJ brief opposing certiorari
stating: “The fact that [the Siegler Memorandum] is privileged explains why it was not
voluntarily turned over to [Ayestas’s] counsel during the criminal trial.” But TDCJ’s
“admission” only explains why prosecutors did not turn over the Siegler Memorandum
voluntarily during the state court trial. Ayestas does not point to any evidence showing that
the Siegler Memorandum was not made available to him, whether voluntarily or not, earlier
in the habeas proceedings.
10
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No. 25-70014
Ayestas asserts that even if his 2015 Motion to Amend is not a
Rule 59(e) motion, it is not successive because his then-pending Rule 59(e)
motion suspended finality, thus making any later filing not successive. A
Rule 59(e) motion merely “suspends finality” of the original
judgment so that the district court can “fix any mistakes and
thereby perfect its judgment before a possible appeal.” A
Rule 59(e) motion is “a limited continuation of the original
proceeding—indeed, a part of producing the final judgment
granting or denying habeas relief.” As a result, disposition on
a Rule 59(e) motion ‘merges into the final judgment’ of the ini-
tial habeas filing.
Rivers v. Guerrero, 605 U.S. 443, 454 (2025) (quoting Banister, 590 U.S.
at 516, 521) (citation modified). It is because Rule 59(e) motions merge into
the final judgment that “they are not themselves properly considered to be
second or successive filings under AEDPA.” Id. (citing Banister, 590 U.S.
at 517) (emphasis added).
Though the 2015 Motion to Amend was filed while a Rule 59(e) mo-
tion was pending, it is still a successive filing. First, the 2015 Motion to
Amend did not ask the district court to “fix any mistakes” in the original
judgment. It involved claims wholly separate from the IAC claims decided
in the original judgment. Second, Banister and Rivers explain why Rule 59(e)
motions themselves are not successive. Those cases do not require that any-
thing filed during a pending Rule 59(e) motion be deemed non-successive.
To hold otherwise would render the limits of Rule 59(e) motions meaning-
less. A petitioner could file a barren Rule 59(e) motion and then immediately
flood the district court with extra claims not properly within the scope of
Rule 59(e).
Because Ayestas’s claims in the 2015 Motion to Amend “could have
been but were not raised before the just-issued decision,” the 2015 Motion
to Amend does not qualify as a Rule 59(e) Motion and therefore falls outside
11
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the scope of Banister. The 2015 Motion to Amend is thus a successive appli-
cation under § 2244(b)(2). Because the 2015 Motion to Amend did not rely
on a “new rule of constitutional law” and could “have been discovered previ-
ously through the exercise of due diligence,” it is barred under § 2244(b)(2).
2.
Ayestas asserts that the district court had jurisdiction over the claims
raised in the 2021 Rule 60(b) Motion because, instead of adding a new claim,
he sought to attack a procedural holding that precluded merits consideration.
“Rule 60(b) allows a party to seek relief from a final judgment, and request
reopening of his case, under a limited set of circumstances including fraud,
mistake, and newly discovered evidence.” Gonzalez v. Crosby, 545 U.S. 524,
528 (2005). But “[u]sing Rule 60(b) to present new claims for relief from a
state court’s judgment of conviction—even claims couched in the language
of a true Rule 60(b) motion—circumvents AEDPA’s requirement that a new
claim be dismissed unless it relies on either a new rule of constitutional law
or newly discovered facts.” Id. at 531.
Ayestas attempts what AEDPA prohibits. He filed a Rule 60(b) mo-
tion, citing the intervening change in law from Banister, attempting to add
claims not included in his original habeas petition: Eighth and Fourteenth
Amendment claims based on the Siegler Memorandum. 6 And “[a] motion
that seeks to add a new ground for relief . . . will of course qualify” as a
“claim” under § 2244(b)(2). Gonzalez, 545 U.S. at 532.
Because Ayestas’s Rule 60(b) motion falls within the ambit of
§ 2244(b)(2), it must satisfy one of the two exceptions to the general bar for
_____________________
6
These claims were not properly presented in prior habeas petitions. They were
not included in Ayestas’s original petition, and his 2015 Motion to Amend was improper,
for the reasons explained above.
12
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No. 25-70014
the district court to have jurisdiction. It meets neither. First, the claim does
not rely on “a new rule of constitutional law.” See § 2244(b)(2)(A). Ayes-
tas’s 2021 Rule 60(b) Motion relies on the new statutory rule set forth in Ban-
ister that Rule 59(e) motions are not successive habeas corpus applications
under § 2244(b). Second, the factual predicate for this claim could have been
discovered previously through the exercise of due diligence, as discussed
above. See § 2244(b)(2)(B). The claims in Ayestas’s 2021 Rule 60(b)
Motion are barred.
Because the claims raised by Ayestas, in both the 2015 Motion to
Amend and the 2021 Rule 60(b) Motion, are jurisdictionally barred by
§ 2244(b)(2), the district court lacked jurisdiction to order discovery.
Conclusion
We have jurisdiction over the appeal under the collateral-order doc-
trine, and the district court lacked jurisdiction over Ayestas’s selective-
prosecution claims. The discovery order is VACATED, and Ayestas’s
selective-prosecution claims in the habeas petition are DISMISSED.
13
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No. 25-70014
Leslie H. Southwick, Circuit Judge, dissenting:
“The law is settled that appellate courts are without jurisdiction to
hear appeals directly from federal magistrates.” Mayfield v. Butler Snow,
L.L.P., 75 F.4th 494, 502 (5th Cir. 2023) (quotation omitted). That rule
controls the present appeal because none of the statutory exceptions to the
rule apply. Indeed, the majority has created a new exception — an appeal
will be allowed from a magistrate judge’s denial of a non-party’s motion to
block discovery if such discovery would cause significant harm. There is no
need for such an exception, and categorizing the appeal as a straightforward
application of the collateral order doctrine does not work.
I respectfully dissent.
The Harris County District Attorney (“HCDA”) did not raise any
objections to the magistrate judge’s order in the district court and instead
appealed that order directly to this court. Absent “approval by the district
judge of” a magistrate judge’s order granting a motion to compel, “such
order does not constitute a final decision of the district court. The only
circumstance in which an order of a magistrate judge may be appealed
directly to this Court is described in 28 U.S.C. § 636(c)(1) and (3).” Gregg v.
Linder, 349 F.3d 860, 862 (5th Cir. 2003). Those statutory provisions require
“the consent of the parties” to final disposition by the magistrate judge of
matters referred to the magistrate judge. 28 U.S.C. § 636(c)(1), (3). Here,
the parties did not consent, making those provisions inapplicable.
Under the collateral order doctrine, this court has “jurisdiction over
a narrow class of decisions that are immediately appealable as collateral
orders even if no final judgment has been rendered.” Lewis v. Crochet, 105
F.4th 272, 279 (5th Cir. 2024) (quotation omitted). That doctrine, the
Supreme Court has “underscored, is narrow, stringent, and of modest
scope.” Geo Grp., Inc. v. Menocal, No. 24-758, 2026 WL 513536, at *4 (U.S.
14
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No. 25-70014
Feb. 25, 2026) (quotations omitted). Indeed, unless the conditions for use of
the doctrine “are kept [stringent], the underlying doctrine will overpower the
substantial finality interests [28 U.S.C.] § 1291 is meant to further.” Will v.
Hallock, 546 U.S. 345, 349–50 (2006). “A pre-judgment order, to get
immediate review, must (1) conclusively determine the disputed question,
(2) resolve an important issue completely separate from the merits of the
action, and (3) be effectively unreviewable on appeal from a final judgment.”
Geo Grp., 2026 WL 513536, at *4 (quotation marks omitted) (quoting Van
Cauwenberghe v. Biard, 486 U.S. 517, 522 (1988)). Here, the discovery order
was reviewable — by the district court.
Applying the collateral order doctrine “in the discovery context, this
court allows immediate appeal of orders that unseal a nonparty’s confidential
business documents . . . or allow discovery against a nonparty with substantial
First Amendment implications.” Leonard v. Martin, 38 F.4th 481, 487 (5th
Cir. 2022) (first citing Vantage Health Plan, Inc. v. Willis-Knighton Med. Ctr.,
913 F.3d 443, 449–50 (5th Cir. 2019); and then citing Whole Woman’s Health
v. Smith, 896 F.3d 362, 368 (5th Cir. 2018)). We allow such appeals because
“[e]ach of these cases implicates ‘some particular value of a high order’ or
‘substantial public interest’ that would be imperiled or destroyed if review
were delayed until after entry of an archetypal final judgment.” Id. (quoting
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (2009)). In each of those
precedents, the discovery order in question was either issued by a district
judge or issued by a magistrate judge and then upheld by a district judge.
Here, the contested discovery is a subpoena to a nonparty. Had the
discovery order been issued or upheld by a district judge, it would run
headlong into the fact that “this court and every other circuit court hold that
the collateral order doctrine does not provide jurisdiction over a nonparty’s
appeal from a discovery order because nonparties have alternative avenues
15
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No. 25-70014
for appellate review.” Id. Several options exist for those who, like HCDA,
are not parties to the underlying case from which the order in question arises:
For one, the nonparty may disobey the district court’s order,
be cited for contempt, and then challenge the underlying
discovery order in appealing the contempt citation. . . . Indeed,
the contempt route is broader for nonparties than it is for
parties. Unlike a party, who may only appeal a criminal
contempt citation, a nonparty may appeal either a criminal or a
civil contempt order. . . . Alternatively, a nonparty may request
that the district court certify a § 1292(b) appeal or, in
extraordinary cases, seek a writ of mandamus.
Id. at 488 (citations omitted).
Those options are inapplicable here, as there is no need to utilize any
of them until the district court has had an opportunity to resolve objections.
Of significance, neither the majority opinion nor the briefs cite any decision
where the collateral order doctrine has been used to support an appeal
directly from a magistrate judge’s order. Even if such an example exists, it
does not change the fact that here there was no need to jump the line and get
to this court ahead of a district court ruling.
Instead of coming to this court, HCDA should have sought review in
the district court. HCDA could have done so by using the process outlined
in Federal Rule of Civil Procedure 72 or appealing to the district court’s
power to reconsider the magistrate judge’s order under 28 U.S.C.
§ 636(b)(1)(A).
I describe each, but first, some background. The district court,
applying Rule 6 of the Rules Governing Section 2254 Cases, granted Ayestas
leave to conduct discovery under the Federal Rules of Civil Procedure.
Ayestas then properly issued a subpoena to HCDA under Federal Rule of
Civil Procedure 45, to which HCDA objected.
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As occurred here, subpoenas for discovery are often issued to
nonparties. See, e.g., Jordan v. Comm’r, Miss. Dep’t of Corr., 947 F.3d 1322,
1324 (11th Cir. 2020). In Jordan, the plaintiff Mississippi death row inmates
subpoenaed the nonparty Georgia Department of Corrections. Id. That
nonparty moved to quash in the Northern District of Georgia, where
compliance with the subpoena was required; a magistrate judge granted the
motion. Id. at 1326. Jordan describes the normal and necessary path for
review of all magistrate judge discovery orders. It is true that there, it was
the plaintiffs, not nonparties, who filed objections with the district court.
Nonetheless, nonparties also must seek relief first from the district court.
Nonparties do not have the right to appeal from a magistrate judge to a circuit
court of appeals under a narrow and stringent doctrine of modest scope every
time the alleged error is substantial. I will explain.
Rule 72 has two subsections. Rule 72(a) governs any “pretrial matter
not dispositive of a party’s claim or defense [that] is referred to a magistrate
judge to hear and decide.” Fed. R. Civ. P. 72(a). It requires a “party” to
file objections within 14 days to “assign as error a defect in the order.” Id.
Rule 72(b) concerns any “pretrial matter dispositive of a claim or defense.”
Fed. R. Civ. P. 72(b)(1). A magistrate judge must enter a recommended
disposition; a party may file objections to that recommendation within 14
days; the district court then considers de novo any part of the
recommendation to which a party has properly objected. Id.
HCDA contends it is not subject to Rule 72’s procedures because it
is not a “party” to the underlying case. “Party” in Rule 72, however, is best
understood to mean a “party” to an order issued by a magistrate judge under
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that rule. 1 See Diamantis v. Milton Bradley Co., 772 F.2d 3, 4 n.2 (1st Cir.
1985) (“Rule 72(a) ‘parties’ are the parties before the magistrate, not the
parties to the litigation from which the nondispositive matter originated.”).
This circuit apparently has not made that holding before, but I would do so
in this case to avoid the majority’s distortions of the usual process for
objecting to discovery in district court and instead allowing those objections
to begin here. There is another means to avoid so impractical a result, and
that will be discussed momentarily.
Reading Rule 72 to apply to any party to a magistrate judge’s order
also is consistent with the purpose of Rule 71, which provides that when an
order “may be enforced against a nonparty, the procedure for enforcing the
order is the same as for a party.” Fed. R. Civ. P. 71. In other words,
“nonparties have recourse to, and are subject to, process in the same measure
as parties.” 12 Wright & Miller’s Federal Practice &
Procedure § 3031 (3d ed. 2025). Here, HCDA has recourse to, and is
subject to, the processes provided in Rule 72. Rule 71 may not apply directly,
but it at least provides an analogy in the immediately preceding civil rule
_____________________
1
To support that nonparties would not be exempt from the time limit for an appeal,
the majority states that nonparties must file notices of appeal within 30 days after issuance
of the challenged order under Federal Rule of Appellate Procedure 4(a)(1)(A).
Throughout, however, Rule 4 (like Rule 72) refers to appeals only by a “party.” Fed. R.
App. P. 4; see also Fed. R. App. P. 3(c)(1)(A) (requiring that any notice of appeal
“specify the party or parties taking the appeal”). The majority addresses that fact by citing
caselaw about borrowing a statute of limitations when the relevant statute governing the
cause of action lacks one. See Runyon v. McCrary, 427 U.S. 160, 180 (1976). Even if that
concept applies to the Federal Rules as well, I find the applicable principle here is that when
the Federal Rules, Appellate and Civil, refer to a “party,” they are referring to those
affected by the relevant court ruling. In my view, that applies clearly to Civil Rule 72
because that Rule will often have to be used to obtain discovery from those who are not
parties to the litigation.
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regarding how persons subject to a magistrate judge’s order may receive
review under Rule 72.
This approach also accords with this court’s approach in the Rule
60(b) context. That Rule refers only to relief from a judgment for “a party
or its legal representative.” Fed. R. Civ. P. 60(b). Nevertheless, we have
interpreted it to permit requests for relief by other persons whose legal rights
are directly affected by a judgment. See Harrell v. DCS Equip. Leasing Corp.,
951 F.2d 1453, 1458 n.14 (5th Cir. 1992) (citing Kem Mfg. Corp. v. Wilder, 817
F.2d 1517, 1520 (11th Cir. 1987)).
Practice, too, supports allowing nonparties to follow Rule 72
procedures to challenge a magistrate judge’s discovery order directed at
them. District courts in this circuit and others regularly consider nonparties’
Rule 72 objections to magistrate judges’ orders or recommendations. See,
e.g., Evans v. Robertson, No. 24-13435, 2025 WL 1739385, at *1 (E.D. Mich.
June 23, 2025); Advanced Magnesium Alloys Corp. v. Dery, No. 1:20-cv-02247,
2024 WL 244932, at *5 (S.D. Ind. Jan. 23, 2024); Nike, Inc. v. Wu, 349 F.
Supp. 3d 346, 353 (S.D.N.Y. 2018); Crable v. State Farm Mut. Auto. Ins. Co.,
No. 5:10–cv–402–Oc–37, 2012 WL 1325831, at *2 (M.D. Fla. Apr. 17, 2012);
Perry v. Schwarzenegger, 268 F.R.D. 344, 348 (N.D. Cal. 2010); MZH, Ag v.
State Indus.-Trade Unitary Enter. “Belaya Russ”, No. 03Civ. 3774RMBAJP,
2003 WL 22852895, at *1 (S.D.N.Y. Nov. 10, 2003); Butler v. Rigsby, No.
Civ.A 96–2453, 1998 WL 164857, at *2 (E.D. La. Apr. 7, 1998).
The briefing in this case identifies only two supposed examples in
which a district court refused to consider a nonparty’s Rule 72 objections.
See Quantlab Grp., LP v. Dempster, No. CV H-18-2171, 2019 WL 7037653
(S.D. Tex. Dec. 20, 2019); In re Ulmans, No. 1:23-MC-23, 2023 WL 3412769
(S.D.N.Y. May 12, 2023). Their circumstances differed significantly from
the facts here. In the Texas case, the district court concluded the nonparties
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needed leave of court to object. See Quantlab, 2019 WL 7037653, at *2. That
case did not involve an objection by a nonparty to being ordered to provide
discovery; rather, the objectors were interlopers whom the court prevented
from objecting to an order entered in favor of one party and against another
party. See id. at *1–2. In the New York case, the objectors were also
interlopers, and the court stated it was unclear whether they had a concrete
interest in the discovery sufficient to warrant consideration of their
objections. See In re Ulmans, 2023 WL 3412769, at *2. Nonetheless, the
court declined to resolve that question and instead based its refusal to
consider the objections on the grounds that they were conclusory and not
aimed particularly at the magistrate judge’s recommendation. Id. These two
cases are thus consistent with the proposition that a “party” under Rule 72
includes a party to an order issued by a magistrate judge under that Rule, as
the nonparties in those cases did not appear before the magistrate judge and
were not subject to the magistrate judge’s order.
Rule 72(a) applies. It governs any “pretrial matter not dispositive of
a party’s claim or defense [that] is referred to a magistrate judge to hear and
decide.” Fed. R. Civ. P. 72(a). Ayestas’s motion to compel discovery
from HCDA constituted a nondispositive pretrial matter. See Jordan, 947
F.3d at 1327–28 (holding that motion to quash nonparty subpoena was
nondispositive). A leading federal practice treatise agrees that “discovery
rulings should ordinarily be viewed as nondispositive.” 12 Wright &
Miller’s Federal Practice & Procedure § 3068.2 (3d ed. 2025).
Accordingly, the district court stated in an order that Ayestas’s motion was
“referred” to the magistrate judge. After the magistrate judge issued the
ruling in question, HCDA had 14 days to object. See Fed. R. Civ. P.
72(a).
HCDA argues that even if it is considered a party, Rule 72 is
nevertheless inapplicable because “the plain language of Rule 72 only makes
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it applicable to matters not dispositive of a party’s claim or defense,” and
“the claim at issue in this appeal is dispositive to the only claim affecting
HCDA.” HCDA overlooks Rule 72(b), which governs pretrial matters
dispositive of a claim or defense. That subsection also provides only a 14-day
period during which a party may object to the magistrate judge’s
recommendation, which the district court then must review. See Fed. R.
Civ. P. 72(b). Therefore, either 72(a) or 72(b) applies, and neither of them
allows this appeal because HCDA did not file, and the district court did not
consider, any objections. Objections not timely made under Rule 72 are
forfeited. See Fed. R. Civ. P. 72(a) (“A party may not assign as error a
defect in the order not timely objected to.”).
Alternatively, HCDA could have sought review under 28 U.S.C.
§ 636(b)(1)(A). That statute provides that when a district court designates a
magistrate judge to determine a pretrial matter, the district court “may
reconsider” the magistrate judge’s order if it is clearly erroneous or contrary
to law. 28 U.S.C. § 636(b)(1)(A). The Seventh and Tenth Circuits have held
that a district court retains this power even if a party fails to make a timely
objection under Rule 72. See Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d
752, 760 (7th Cir. 2009); Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir.
2006). I find it is a sound approach to allow an objection under this statute
even when there is no timely objection under Rule 72.
I would dismiss this appeal, recognizing that HCDA can now seek
review in the district court under Section 636. To allow an appeal here
directly from the magistrate judge converts the stringent collateral order
doctrine into a frequently available path for everyday rulings, even if only the
really important ones, by magistrate judges. Respectfully, I dissent.
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