We first examine whether DeGeorge has any other adequate means, such as direct appeal, to attain the relief he seeks, which is the dismissal of counts one through twelve of his indictment as time barred. We are guided in this issue by United States v. Rossman, 940 F.2d 535, 536 (9th Cir. 1991) (per curiam), which held that the denial of a motion to dismiss an indictment as time barred was not a final order appealable pursuant to 28 U.S.C. ยง 1291, or an interlocutory order appropriate for immediate review pursuant to Abney v. United States, 431 U.S. 651, 656-58 (1977). It is implicit in Rossman, and the decisions of the Third and Sixth Circuits upon which it relies, that the denial of a motion to dismiss an indictment as time barred may be reviewed on direct appeal after trial.
Appellee equates the language in GARA ยง 2(a) with a statute of limitations. It is well-established that interlocutory appeals are not available to address statute of limitations issues because a statute of limitations does not give rise to a right not to stand trial, but rather creates a safeguard against unfair verdicts from delinquent suits. United States v. Rossman, 940 F.2d 535, 536 (9th Cir. 1991); see also Digital Equip. Corp., 511 U.S. at 873, 114 S.Ct. 1992 ("We have, after all, acknowledged that virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a `right not to stand trial.' Allowing immediate appeals to vindicate every such right would move ยง 1291 aside for claims . . . that the statute of limitations has run. . . ." (citations omitted)).
"To warrant review under the collateral order doctrine, the 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.'" Plata v. Brown, 754 F.3d 1070, 1075 (9th Cir. 2014) (quoting Will v. Hallock, 546 U.S. 345, 349 (2006)). A statute of limitations claim does not satisfy the requirement that a collateral order be effectively unreviewable on appeal from final judgment. United States v. Rossman, 940 F.2d 535, 536 (9th Cir. 1991); see also Est. of Kennedy v. Bell Helicopter Textron, Inc., 283 F.3d 1107, 1111 (9th Cir. 2002)
Denial of a defense to suit is not immediately appealable. Cf. Burns-Vidlak v. Chandler, 165 F.3d 1257, 1261 (9th Cir. 1999) (holding that denial of defense to liability for punitive damages is not immediately appealable); United States v. Rossman, 940 F.2d 535, 536 (9th Cir. 1991) (per curiam) (denial of motion to dismiss even though claim was time-barred is not appealable). The State's argument that the claims are inextricably intertwined with its sovereign immunity fares no better.
As defendant acknowledges, the four circuit courts to have addressed the issue are in agreement that the denial of a limitations defense is not immediately appealable. See, e.g., United States v. Weiss, 7 F.3d 1088, 1089-90 (2d Cir. 1993); United States v. Rossman, 940 F.2d 535, 536 (9th Cir. 1991) (per curiam); United States v. Davis, 873 F.2d 900, 908-09 (6th Cir. 1989) (cited in Pi, 174 F.3d at 750);United States v. Levine, 658 F.2d 113, 116-29 (3d Cir. 1981). And the Supreme Court has held that denials of motions to dismiss on speedy-trial grounds are not immediately appealable.
More recently, the ninth circuit cited both Levine and Davis in holding that a statute-of-limitations claim does not satisfy the irreparable harm requirement of the "collateral order" doctrine. United States v. Rossman, 940 F.2d 535, 536 (9th Cir. 1991). Weiss urges us to reject the reasoning of our sister circuits and hold that the "clear language of ยง 3282" meets the third criterion of the Cohen doctrine.
Moreover, federal courts have held they lack appellate jurisdiction over interlocutory appeals from orders denying a motion to dismiss criminal charges based on statute of limitations. See U.S. v. Mandycz, 351 F.3d 222, 225-26 (6th Cir. 2003), cert, denied, 543 U.S. 816 (2004); U.S. v. Davis, 873 F.2d 900, 901, 908-09 (6th Cir. 1989), cert, denied, 493 U.S. 923 (1989); U.S. v. Weiss, 7 F.3d 1088, 1089-91 (2d Cir. 1993); U.S. v. Rossman, 940 F.2d 535, 536 (9th Cir. 1991); U.S. v. Levine, 658 F.2d 113 (3d Cir. 1981). It is undisputed that Higa did not seek to dismiss the complaint in the underlying matter on double jeopardy grounds, but rather on statute of limitations grounds; thus, the collateral-order doctrine does not apply here.
Four other federal circuits are in accord. See, United States v. Weiss, 7 F.3d 1088, 1089-90 (2d Cir.1993); United States v. Rossman, 940 F.2d 535, 536 (9th Cir.1991) (per curiam); United States v. Davis, 873 F.2d 900, 908-09 (6th Cir.1989) (cited in Pi, 174 F.3d at 750); United States v. Levine, 658 F.2d 113, 116-29 (3d Cir.1981). From the cited federal cases we discern that the guiding principle underlying the collateral order doctrine is that the moving party is "vindicating or claiming a right to avoid trial." Will v. Hallock, 546 U.S. 345, 351 (2006).