More specifically, the assessment of the applicability of the second Yearsley prong would "presumably overlap" with determinations on the merits regarding the lawfulness of the contractor's challenged actions. Kell v. Benzon, 925 F.3d 448, 458 (10th Cir. 2019); see Aplees.' Mot. to Dismiss, Ex. A at 14 (Br. for the United States as Amicus Curiae, Morales v. Cultural Care, Inc., No. 21-1676 (1st. Cir. Nov. 23, 2022)) ("[T]he question whether a defendant can establish a Yearsley defense is often coterminous with the merits of the action.
Emphasizing how small the class of immediately appealable collateral orders is, this Court has noted that, "[i]n case after case in year after year, the Supreme Court has issued increasingly emphatic instructions that the class of cases capable of satisfying this ‘stringent’ test should be understood as ‘small,’ ‘modest,’ and ‘narrow.’ " Kell v. Benzon, 925 F.3d 448, 452 (10th Cir. 2019) (quoting United States v. Wampler, 624 F.3d 1330, 1334 (10th Cir. 2010) ). Of particular relevance here, the Supreme Court has recognized that when, as here, the order being appealed involves the issue of whether there exists genuinely disputed fact questions, the benefit of an immediate appeal is likely outweighed by the cost of disrupting the ordinary course of litigation.
"The Supreme Court has repeatedly cautioned that the collateral-order doctrine requires 'complete separation' from the merits." Kell v. Benzon, 925 F.3d 448, 455 (10th Cir. 2019) (quotations omitted). And "[t]he question of whether the plaintiff has a cognizable cause of action (and what that cause of action might be) is not a question separate from the merits; it is the merits."
Mindful of this purpose, we have observed that the collateral-order doctrine ordinarily applies "only if an appellate court would probably not need to consider the merits a second time." Kell v. Benzon, 925 F.3d 448, 453 (10th Cir. 2019). Say we were to recognize appellate jurisdiction and affirm the district court's order, and on remand Dr. Coomer were to prove his claims at trial.
Appeals under the collateral order doctrine must be "'the exception, not the rule,' because 'too many interlocutory appeals can cause harm'" given the inefficiencies they create for both district courts and appellate courts. Id. at 1033 (quoting Johnson v. Jones, 515 U.S. 304, 309 (1995)); see also Kell v. Benzon, 925 F.3d 448, 452 (10th Cir. 2019) (
The collateral order doctrine, on which the panel majority relies, recites factors relevant to discretionary review of aspects within the court's jurisdiction. SeeKell v. Benzon , 925 F.3d 448, 453 (10th Cir. 2019) ("[T]he collateral order doctrine would ordinarily apply only if an appellate court would probably not need to consider the merits a second time.").
The Supreme Court has consistently admonished circuit courts against expanding the availability of interlocutory Cohen appeals. See Kell v. Benzon, 925 F.3d 448, 452 (10th Cir. 2018). Our decision heeds the Court's admonitions.
The Supreme Court has consistently admonished circuit courts against expanding the availability of interlocutory Cohen appeals. See Kell v. Benzon, 925 F.3d 448, 452 (10th Cir. 2019). Our decision heeds the Court's admonitions.
An order staying a federal habeas proceeding while state court remedies are being exhausted is not a collateral order subject to interlocutory appeal. See, e.g., Kell v. Bazon, 925 F.3d 448, 467 (10th Cir. 2019); Grace v. Vannoy, 826 F.3d 813, 821 (5th Cir. 2016); Stanley v. Chappell, 764 F.3d 990, 995-96 (9th Cir. 2014); Howardv. Norris, 616 F.3d 799, 803 (8th Cir. 2010); see also Gacho v. Butler, 792 F.3d 732, 733 (7th Cir. 2015) (concluding that dismissal of federal habeas action without prejudice was not an appealable final order when the order granted leave to refile after state remedies were exhausted).
A district court's denial of a stay and abate would likely be an abuse of discretion if a petitioner had (1) "good cause for his failure to exhaust," (2) "potentially meritorious" unexhausted claims, and (3) "no indication . . . [of] intentionally dilatory litigation tactics." Id. at 278; see also Kell v. Benzon, 925 F.3d 448, 468 (10th Cir. 2019). The total exhaustion requirement in 28 U.S.C. § 2254(b)(1)(A) and the 1-year statute of limitations in 28 U.S.C. § 2244(d) can foreclose "mixed petitions" from federal review.