Oscarson v. Office of the Senate Sergeant at Arms

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 13, 2008 Decided December 12, 2008

No. 07-5391

WENDY A. OSCARSON,

APPELLEE

v.

OFFICE OF THE SENATE SERGEANT AT ARMS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 04cv00026)

M. Stacey Bach, Senate Senior Counsel for Employment,

Office of the Senate Sergeant at Arms, argued the cause for

appellant. With her on the briefs were Jean M. Manning,

Senate Chief Counsel for Employment, and C. Patrick

McMurray, Senate Assistant Counsel for Employment.

Avi L. Kumin argued the cause for appellee. With him on

the brief were Debra S. Katz, Lisa J. Banks, and Daniel B.

Edelman.

Before: GARLAND and BROWN, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

WILLIAMS, Senior Circuit Judge: Wendy A. Oscarson is

an employee of the Office of the Senate Sergeant at Arms

(“SAA”); she suffers from cervical disc disease and left carpal

tunnel syndrome. In 2002, she requested accommodations in

the form of ergonomic, high-backed chairs for each of her

three work stations. Although SAA officials eventually made

these accommodations, Oscarson asserts that in doing so they

unreasonably delayed. She brought suit against the SAA

under the Congressional Accountability Act (“CAA”), which

makes certain provisions of the Americans with Disabilities

Act (“ADA”) applicable to congressional offices. 2 U.S.C.

§ 1311(a)(3).

The SAA moved to dismiss for lack of subject matter

jurisdiction. It claimed that Oscarson had failed to comply

with the CAA’s requirement that a request for counseling be

filed with the Senate’s Office of Compliance within 180 days

of the alleged violation. 2 U.S.C. § 1402. The SAA argued

that this stripped the district court of jurisdiction, claiming

that the CAA’s jurisdictional provision, 2 U.S.C. § 1408,

incorporated the timeliness requirement of § 1402 and made

compliance with it a condition of the CAA’s waiver of

sovereign immunity. The district judge denied the motion in a

minute order, and the SAA now seeks an interlocutory appeal.

We dismiss the appeal for lack of appellate jurisdiction.

* * *

The federal courts of appeals have jurisdiction over the

“final decisions” of district courts. 28 U.S.C. § 1291.

Interlocutory appeals “are the exception, not the rule,”

Johnson v. Jones, 515 U.S. 304, 309 (1995), and denials of

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motions to dismiss are generally not reviewable. McSurely v.

McClellan, 697 F.2d 309, 315 (D.C. Cir. 1982). In Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949),

however, the Supreme Court established that certain collateral

orders are immediately appealable. To come within the scope

of the collateral order doctrine, an order 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.” Coopers & Lybrand v. Livesay, 437 U.S.

463, 468 (1978).

The courts have allowed interlocutory appeals for various

immunity defenses, reasoning that reversal after final

judgment gives no effective protection for the right not to bear

the burden of litigation. See Rendall-Speranza v. Nassim, 107

F.3d 913, 916 (D.C. Cir. 1997). They have approved such

appeals, for example, for denials of qualified immunity,

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), Eleventh

Amendment immunity, Puerto Rico Aqueduct & Sewer Auth.

v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993), and a

foreign state’s sovereign immunity, Princz v. Federal

Republic of Germany, 998 F.2d 1, 1 (D.C. Cir. 1993).

There are a number of questions that would have to be

answered affirmatively for interlocutory review to be proper

here, including, among others: (1) whether such review is

available for defenses of federal sovereign immunity at all; (2)

whether the CAA can be read as making the timeliness of a

request for counseling jurisdictional, or has otherwise signaled

an intent to protect the SAA from the burden of litigation in

the absence of a timely request; and (3) whether the nature of

the dispute over timeliness, given its factbound character and

its overlap with the merits, is such that interlocutory review

would be permitted if the first two hurdles were overcome.

We assume arguendo answers to the first two issues in favor

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of the SAA, but conclude that the answer to the third question

is negative and fatal to our jurisdiction.

First, we note an apparent split in the circuits over

whether denials of claims of federal sovereign immunity may

ever qualify for interlocutory review. Alaska v. United States,

64 F.3d 1352, 1355 (9th Cir. 1995); Pullman Constr. Indus. v.

United States, 23 F.3d 1166, 1168 (7th Cir. 1994) (“[T]he

United States Code is riddled with statutes authorizing relief

against the United States and its agencies . . . . [I]t is difficult

to speak of federal sovereign immunity as a ‘right not to be

sued.’”); see also Houston Cmty. Hosp. v. Blue Cross & Blue

Shield of Tex., Inc., 481 F.3d 265, 280 (5th Cir. 2007). But

see In re World Trade Ctr. Disaster Site Litig., 521 F.3d 169,

191 (2d Cir. 2008) (“We are not convinced that Pullman or its

progeny counsel us to disregard the statements of the Supreme

Court that sovereign immunity encompasses a right not to be

sued . . . .”). A decision in this circuit expressed skepticism

about the cases saying that federal sovereign immunity

categorically excludes a right not to be sued, but expressly

declined to resolve the issue. In re Sealed Case No. 99-3091,

192 F.3d 995, 1000 (D.C. Cir. 1999). We also do not need to

reach it today.

Second, we note the complexities of the question whether

the CAA implies that the SAA should be protected from the

burdens of suit in the absence of a timely request for

counseling. The appellant’s attorney conceded at oral

argument that if § 1402’s timeliness criterion is not

jurisdictional, there can be no interlocutory appeal. Oral

Argument Rec. 3:23-3:25. We need not decide whether this

concession accurately reflects the law. On the one hand,

statutes of limitations generally do not give rise to a right not

to stand trial. See Digital Equip. Corp. v. Desktop Direct.

Inc., 511 U.S. 863, 873 (1994). On the other hand, the

Supreme Court offered its principal explanation for allowing

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interlocutory appeal in the immunity context in Mitchell v.

Forsyth, addressing officials’ qualified immunity—an

immunity that was itself entirely a judicial creation. 472 U.S.

at 524-30. Apart from that, there is uncertainty whether the

CAA time limitation is in fact jurisdictional, and whether, if it

is, a district court’s finding of jurisdiction is subject to

interlocutory review.

In any event, assuming arguendo answers to these

questions favorable to the SAA, we lack jurisdiction over this

appeal. The district court’s decision appears to be simply a

conclusion that the rather complex concatenation of

undisputed facts failed to establish that Oscarson’s request for

counseling was untimely. Our interlocutory review of such a

determination would be at odds with the principles set out by

the Supreme Court in Johnson v. Jones, 515 U.S. 304, 309

(1995); moreover, as the facts in question are bound up with

the merits of the appellee’s claim, the issue fails to satisfy the

Cohen test’s requirement that it be completely separate from

the merits of the underlying action, Coopers & Lybrand, 437

U.S. at 468.

* * *

In Johnson the appellants sought to challenge the district

judge’s determination that there was sufficient evidence to

raise a triable issue of fact with respect to their qualified

immunity defense. 515 U.S. at 308. The question before the

Court was whether Mitchell v. Forsyth’s provision for

interlocutory review would reach such a question of evidence

sufficiency. Id. The Court denied interlocutory review and

held that immediate appeals of qualified immunity matters

would be limited to cases presenting relatively “abstract issues

of law.” Id. at 317.

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On the conceptual level, the Court explained,

interlocutory review of fact-related determinations does not

comport with Cohen’s theory of appealability. Id. at 314.

Cohen allows for interlocutory appeals only where the

“decision involves issues significantly different from those

that underlie the plaintiff’s basic case.” Id. Where

defendants seek to appeal evidence sufficiency

determinations, however, “it will often prove difficult to find

any such ‘separate’ question—one that is significantly

different from the fact-related legal issues that likely underlie

the plaintiff’s claim on the merits.” Id.

In practical terms, the Court found that “the competing

considerations that underlie questions of finality” counseled

against immediate review for this class of decisions. Id. at

315-16. First, because trial judges constantly confront

questions such as the existence or non-existence of a triable

issue of fact, “appellate judges enjoy no comparative expertise

in such matters” and “interlocutory appeals are less likely to

bring important error-correcting benefits here than where

purely legal matters are at issue, as in Mitchell.” Id. at 316.

Second, assessing “whether or not a record demonstrates a

‘genuine’ issue of fact for trial . . . can consume inordinate

amounts of appellate time,” leading to greater delay than in

cases such as Mitchell, involving a pure issue of law. Id.

Third, interlocutory appeals of such rulings would “make[]

unwise use of appellate courts’ time, by forcing them to

decide in the context of a less developed record, an issue very

similar to one they may well decide anyway later, on a record

that will permit a better decision.” Id. at 317. All in all,

“considerations of delay, comparative expertise of trial and

appellate courts, and wise use of appellate resources argue in

favor of limiting interlocutory appeals of ‘qualified immunity’

matters to cases presenting more abstract issues of law.” Id.

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Although this case concerns federal sovereign immunity

rather than qualified immunity, we cannot imagine why the

Johnson principles would not apply with equal force to the

immunity claim here. See Burlington Northern & Santa Fe

Ry. v. Vaughn, 509 F.3d 1085, 1091 (9th Cir. 2007) (applying

Johnson in the context of a tribal immunity claim and stating

that “denial of an immunity claim is appealable on an

interlocutory basis only to the extent that it turns on an issue

of law” (emphasis added)). We must therefore determine

whether this appeal turns on the sort of abstract legal issue

that Johnson would permit us to review.

* * *

The task of determining what kind of issue this appeal

presents is complicated somewhat by the fact that the district

judge denied the appellant’s Rule 12(b)(1) motion in a minute

order, without providing reasons for doing so. The basis for

his decision, however, is reasonably clear.

In its motion, the SAA argued that the timeliness

requirement of § 1402 was jurisdictional, and that Oscarson

had failed to meet it because her own statements indicated that

her injury had accrued more than 180 days before she

requested counseling. Def.’s Mot. to Dismiss at 6-8. In her

opposition to the motion, Oscarson did not contest that the

requirement was jurisdictional, but argued that she had

complied with it. Pl.’s Opp’n to Def.’s Mot. to Dismiss at 4-

13. Although the argument was not before the judge, it is

theoretically possible that he denied the motion on the

grounds that the requirement was not jurisdictional. But if the

judge held that view, he could simply have recast the Rule

12(b)(1) motion as one under Rule 12(b)(6); we find it

unlikely that he would silently deny the motion on the theory

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that it was wrongly numbered. We therefore reject this

hypothesis as extremely improbable.

We are left with the conclusion that the district judge

rejected the SAA’s assertion that under the facts claimed by

Oscarson—which were undisputed for purposes of the SAA’s

motion—her counseling request was untimely. This

determination does not turn on an abstract question of law,

Johnson, 515 U.S. at 313, and does not address an issue

separate from the merits of the underlying action, Coopers &

Lybrand, 437 U.S. at 468.

The SAA asserts that a claim accrues when the plaintiff

knows or should know about the injury. Appellant’s Br. at 30.

It reasons that a number of facts contained in Oscarson’s

statements and allegations—for example, her assertion that in

October 2002 she felt that the SAA “had completely dropped

the ball” on her accommodation request—establish that she

knew of her injury more than 180 days before she requested

counseling. Id. at 38. Oscarson counters that other facts—for

example, that she stayed in contact with SAA officials

regarding her accommodation request well into 2003—

demonstrate that she did not yet know about the injury.

Appellee’s Br. at 36. Thus the dispute is, as in Johnson, over

the legal classification of a congeries of facts, here facts on

which the parties conditionally agree. Therefore, the

“considerations of delay, comparative expertise of trial and

appellate courts, and wise use of appellate resources,”

Johnson, 515 U.S. at 317, counsel against interlocutory

review just as strongly in this case.

The SAA’s briefs twice call our attention to the fact that

its motion to dismiss assumed the validity of the facts asserted

by Oscarson. Appellant’s Br. at 3 n.3; Appellant’s Reply Br.

at 8. Accordingly, it argues, Johnson “is inapposite.” Id. at 8

n.10. The argument completely misconceives the Johnson

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rule. Johnson itself addressed an appeal by defendants from

the district court’s denial of their summary judgment motion,

Johnson, 515 U.S. at 307-08, 319-20; see also Jones v.

Johnson, 26 F.3d 727 (7th Cir. 1994), a ruling that courts of

appeal review de novo as a matter of law. Defenders of

Wildlife v. Gutierrez, 532 F.3d 913, 918 (D.C. Cir. 2008).

There, as here, the question was how the law applied to the

rather complex set of facts asserted by the non-moving party.

There had been no fact-finding by the district court, and no

call on the court of appeals to review any purely factual

determinations. But Johnson and this case pose the sort of

fact-rich legal issues for which the theory of interlocutory

review under Cohen is inapplicable, at least in the immunity

context.

Johnson’s observation that factual issues would often be

difficult to separate from the merits of the underlying action

also applies here. Id. at 314. Whether a CAA plaintiff timely

requested counseling depends on the date of the alleged

violation, which in turn depends on what constitutes a

violation and on pinpointing the time of its occurrence. Here

the SAA suggests that Oscarson knew or should have known

of the injury underlying her claim when she “reasonably

should have suspected that her rights were violated,”

Appellant’s Br. at 31, raising a question that can only be

answered by considering at what point the alleged delay might

be thought to amount to a violation. In a case of delayed

accommodation, such as the present one, merits and

timeliness of request for counseling are tightly meshed.

Because of the mingling of preliminary and merits issues,

the SAA’s appeal fails not only Johnson’s requirement but

also the second necessary condition for an interlocutory

appeal under the collateral order doctrine—that the issue be

“completely separate from the merits of the action.” Coopers

& Lybrand v. Livesay, 437 U.S. at 468.

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Under both Cohen and Johnson, therefore, we lack

jurisdiction over this appeal.

* * *

The appeal is

Dismissed.