Opinion
23-4015
02-28-2023
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KIRK ARDELL SJODIN, JR., Defendant-Appellant.
(D.C. No. 4:22-CR-00105-RJS-PK-1) (D. Utah)
Before HARTZ, BACHARACH, and ROSSMAN, Circuit Judges.
ORDER
Pro se appellant Kirk Ardell Sjodin, Jr. seeks to appeal from the district court's "failure . . . to hear [his] emergency injunctions", which remain pending in the criminal case underlying this appeal. [See ECF No. 92 (Mr. Sjodin's notice of appeal)].
Upon receipt of Mr. Sjodin's notice of appeal, this court issued an order to show cause, directing him to identify in writing any basis for its exercise of jurisdiction over the appeal. Mr. Sjodin filed a timely response. Upon consideration of these materials, the district court docket, and the applicable law, the court dismisses the appeal for the reasons set forth below.
This court's appellate jurisdiction is generally limited to review of final decisions. See 28 U.S.C. § 1291. In criminal cases, this "final judgment rule" "generally requires that a defendant await conviction and sentencing before raising an appeal," United States v. Perea, 977 F.3d 1297, 1299 (10th Cir. 2020) (citation and internal quotation marks omitted), and allows for interlocutory appeal "only when the asserted right cannot be vindicated after trial." See United States v. Tucker, 745 F.3d 1054, 1064-65 (10th Cir. 2014) (discussing cases permitting interlocutory review); see also Flanagan v. United States, 465 U.S. 259, 265 (1984) ("The importance of the final judgment rule has led the [Supreme] Court to permit departures from the rule only when observance of it would practically defeat the right to any review at all." (citation and internal quotation marks omitted)).
A statutory exception to the "final judgment rule" allows the court to review the issuance or denial of injunctive relief, Miller v. Basic Research, LLC, 750 F.3d 1173, 1176 (10th Cir. 2014) (citing 28 U.S.C. § 1292), and in certain, limited circumstances, an "order may be appealed because it was a de facto denial of a preliminary injunction," rather than an express denial of that relief. See Office of Pers. Mgmt. v. Am. Fed'n of Gov't Emps., AFL-CIO, 473 U.S. 1301, 1305 (1985).
In the latter situation, however, jurisdiction is appropriate only where: (1) the order has the practical effect of granting or denying an injunction; (2) an immediate appeal "will further the statutory purpose of permitting litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence;" and (3) the order can be "effectually challenged only by immediate appeal." Miller, 750 F.3d at 1176 (citations and internal quotation marks omitted).
Mr. Sjodin's appeal does not meet these criteria. Any perceived delay in the district court's ruling on Mr. Sjodin's injunction motions is not a de facto denial of those motions: those motions remain pending on the district court's docket and the district court remains actively engaged in the management of its docket. Nor is this court persuaded that "delaying appellate jurisdiction imposes serious consequences or that the district court's decision . . . will effectively evade appellate review." Miller, 750 F.3d at 1176-77.
Finally, to the extent Mr. Sjodin asks this court to direct the district court to act, the court notes that "[m]andamus may not be used as a substitute for appeal." John E. Burns Drilling Co. v. Cent. Bank of Denver, 739 F.2d 1489, 1493 (10th Cir. 1984).
For the foregoing reasons, this court is without jurisdiction to hear this appeal. See Tucker, 745 F.3d at 1064-65.
APPEAL DISMISSED.