    Case: 18-51008   Document: 00515152745      Page: 1   Date Filed: 10/09/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                           United States Court of Appeals
                                                                    Fifth Circuit

                                No. 18-51008                      FILED
                                                            October 9, 2019
                                                             Lyle W. Cayce
                                                                  Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff−Appellee,

versus

LUIS VALENCIA,

                                           Defendant−Appellant.




                Appeal from the United States District Court
                     for the Western District of Texas




Before OWEN, Chief Judge, and JONES and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Luis Valencia appeals the denial of his motion to dismiss his indictment.
Concluding that we lack jurisdiction, we dismiss the appeal.

                                      I.
     In November 2017, a grand jury indicted Valencia for violations of
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                                  No. 18-51008
various federal statutes. One year later, the President accepted the resigna-
tion of Attorney General Sessions and designated Matthew Whitaker as Acting
Attorney General. Citing the alleged illegality of Whitaker’s designation, Val-
encia moved to dismiss the indictment. The district court denied the motion
on the merits, concluding that Whitaker’s designation was valid under both
the U.S. Constitution and relevant federal statutes.

                                       II.
                                       A.
      Valencia’s argument proceeds in two steps. First, he contends that the
district court erroneously held that Whitaker’s designation conformed to the
Appointments Clause, Art. II § 2, cl. 2, and to applicable federal statutory law,
28 U.S.C. §§ 508, 3345. Second, Valencia suggests that the court also erred in
holding that, even absent a lawfully appointed Attorney General, a validly
appointed United States Attorney maintains the authority to prosecute. The
government replies that we lack jurisdiction because the district court’s denial
of Valencia’s motion to dismiss “was not a ‘final decision[]’ under 28 U.S.C.
§ 1291” and “the collateral-order doctrine does not apply.”

      Valencia does not claim that this court has jurisdiction under § 1291.
Instead, he avers that the order is appealable as a collateral order. “[A]s courts
of limited jurisdiction, we are obliged to examine the basis of our own jurisdic-
tion before reviewing the merits.” United States v. Pittman, 915 F.3d 1005,
1007 (5th Cir. 2019) (citation and internal quotation marks omitted).

                                     B.
      The collateral order doctrine allows appeals from a “small class [of
orders] which finally determine claims of right separable from, and collateral
to, rights asserted in the action, too important to be denied review and too

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                                 No. 18-51008
independent of the cause itself to require that appellate consideration be
deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541, 546 (1949). Applicable orders 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.” Will v. Hallock, 546 U.S. 345, 349 (2006) (quot-
ing P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144
(1993)). “The collateral order doctrine is rarely applied in criminal cases,” In
re Grand Jury Subpoena, 190 F.3d 375, 381 (5th Cir. 1999), and is interpreted
“with the utmost strictness,” Pittman, 915 F.3d at 1008 (citations omitted).

      The denial of Valencia’s motion is not an appealable collateral order.
Although the order did “conclusively determine the disputed question,” argua-
bly “resolv[ing] an important issue completely separate from the merits of the
action,” it is not “effectively unreviewable on appeal from a final judgment.”
Indeed, Valencia will have the opportunity to raise these same issues when
appealing any adverse final judgment per § 1291.

      The Supreme Court has “had numerous opportunities in the [70] years
since Cohen to consider the appealability of prejudgment orders in criminal
cases, [and has] found denials of only three types of motions to be immediately
appealable: motions to reduce bail, motions to dismiss on double jeopardy
grounds, and motions to dismiss under the Speech or Debate Clause.” Midland
Asphalt Corp. v. United States, 489 U.S. 794 (1989) (internal citations omitted).
We decline to find a new category today. See Mohawk Indus., Inc. v. Carpenter,
558 U.S. 100, 113 (2009) (“[T]he class of collaterally appealable orders must
remain narrow and selective in its membership.”) (citation and internal quota-
tion marks omitted).

      The appeal is DISMISSED for want of jurisdiction.

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