                                                                    F I L E D
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 October 31, 2006

                                                                Elisabeth A. Shumaker
                                  PUBLISH                           Clerk of Court

              UNITED STATES COURT OF APPEALS
                       TENTH CIRCUIT



 M ESA OIL, IN C.,

       Plaintiff-Appellant,

 v.                                                   No. 05-1107

 U N ITED STA TES O F A M ER ICA,

       Defendant-Appellee.



                 Appeal from the United States District Court
                         for the District of Colorado
                         (D.C. No. 03-F-1677 (PAC))


Theodore H. M erriam (Kevin A. Planegger with him on the briefs), M erriam Law
Firm, P.C., Denver, Colorado, for Plaintiff-Appellant.

Teresa E. M cLaughlin, Attorney, Tax Division (Eileen J. O’Connor, Assistant
Attorney General; and John A. Nolet, Attorney, Tax Division, with her on the
brief), Department of Justice, W ashington, D.C., for Defendant-Appellee.


Before L UC ER O, SE YM OU R, and O’BRIEN, Circuit Judges.


SE YM O UR, Circuit Judge.
      M esa Oil, Inc. (“M esa”) appeals from the partial judgment of the district

court upholding the Internal Revenue Service (“IRS”) Appeals Office’s denial of

M esa’s request for abatement of financial penalties. The district court also

ordered a remand to the Appeals Officer for reconsideration of M esa’s request for

an alternative payment plan to repay its delinquent taxes and penalties. W e

dismiss the appeal for lack of jurisdiction.



                                           I

      M esa failed to pay federal employment taxes for three fiscal quarters in

2002 and corporate income taxes for the year 2001. After the IRS expressed its

intent to satisfy unpaid taxes and penalties via a levy on its corporate assets, M esa

initiated a collection due process (“CDP”) hearing with the Rocky M ountain

Appeals O ffice of the IRS. At the CDP hearing, M esa asserted it was entitled to

penalty abatement for reasonable cause. It also argued it should be permitted to

pay in installments or be afforded additional time to arrange financing sufficient

to satisfy its tax liabilities. The Appeals Officer concluded M esa was not entitled

to penalty abatement and rejected its request for an alternative payment plan.

      M esa appealed the A ppeal Officer’s decision to the district court. On

cross-motions for summary judgment, the district court issued a judgment and

remand order on January 31, 2005 affirming the Appeals Officer’s denial of

M esa’s request for penalty abatement and reversing and remanding to the

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Appeal’s Officer for further consideration of M esa’s alternative collection

request. M esa filed a notice of appeal to this court seeking review of the district

court’s decision upholding the Appeals Officer’s denial of a penalty abatement.

M esa does not, of course, seek review of the district court’s order in its favor

remanding payment issues to the Appeals Officer.



                                          II

      This court has jurisdiction to entertain appeals from “final decisions of the

district courts.” 28 U.S.C. § 1291. To be final, a decision ordinarily “ends the

litigation on the merits and leaves nothing for the court to do but execute the

judgment.” Cunningham v. Hamilton Cty., Ohio, 527 U.S. 198, 204 (1999)

(quotations and citations omitted). “The finality requirement in § 1291 evinces a

legislative judgment that restricting appellate review to final decisions prevents

the debilitating effect on judicial administration caused by piecemeal appeal

disposition of what is, in practical consequences, but a single controversy.”

Coopers & Lybrand v. Livesay, 437 U.S. 463, 471 (1968) (quotations and

citations omitted).

      In general, a “decision to remand is not a resolution of the controversy on

its merits,” and is not a final decision. Loffland Bros., Co. v. Rougeau, 655 F.2d

1031, 1032 (10th Cir. 1981). The district court’s bifurcated order here,

determining one issue but remanding M esa’s alternative payment request, is

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clearly not a final decision ending the litigation on the merits and it therefore

does not fall within the ordinary application of the jurisdictional grant of 28

U.S.C. § 1291.

      Neither party disputes the interlocutory nature of this appeal. Instead, both

assert we have jurisdiction under the collateral order doctrine, claiming the

penalty abatement issue may become effectively unreviewable if we do not

consider it at this time. In a “small class” of cases, we have jurisdiction over

interlocutory appeals from non-final orders that “finally determine claims of right

separable from, and collateral to, rights asserted in the action, too important to be

denied review and too 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). A case fits within this

discrete subset of interlocutory orders when the appeal meets the three

requirements of the collateral order doctrine. First, “the order must conclusively

determine the disputed question;” second, it must “resolve an important issue

completely separate from the merits of the action;” and third, it must be

“effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand,

437 U .S. at 468 (footnote omitted). “The conditions are ‘stringent,’ and unless

they are kept so, the underlying doctrine will overpower the substantial finality

interests § 1291 is meant to further . . . .” Will v. Hallock, 126 S. Ct. 952, 957

(2006). A district court order that “fails to satisfy any one of [the Cohen]

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requirements” is not reviewable under the collateral order doctrine. Gulfstream

Aerospace Corp. v. M ayacamas Corp., 485 U.S. 271, 276 (1988).

      Because we conclude M esa does not meet the third requirement of the

Cohen doctrine, we bypass an analysis of the first tw o prongs. See Lauro Lines

S.R.L. v. Chasser, 490 U.S. 495, 498 (1989) (“[W]e need not decide whether an

order [meets the first two requirements,] for the District Court’s orders fail to

satisfy the third requirement of the collateral order test.”) . The collateral order

doctrine’s third prong requires that the district court order be “effectively

unreviewable” in order to trigger the extension of appellate jurisdiction to an

interlocutory appeal. The Supreme Court has consistently “reiterated the general

rule that an order is effectively unreviewable only where the order at issue

involves an asserted right the legal and practical value of which would be

destroyed if it were not vindicated before trial.” Id. at 498-99 (quotations and

citations omitted). The costs of unnecessary litigation caused by what eventually

turns out to be an error by the district court is insufficient to warrant an

interlocutory appeal. Id. at 499. Rather, the Court has “insisted that the right

asserted be one that is essentially destroyed if its vindication must be postponed

until trial is completed.” Id.

      The unreviewability requirement promotes judicial efficiency by restricting

the application of the collateral order doctrine and limiting our acceptance of

cases where future, successive appeals are possible. In adherence to the broader

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finality requirement and the stringent nature of the collateral order doctrine, we

are required to abstain from review of an individual issue until the entire case is

complete in order to prevent piecemeal appeals. Coopers & Lybrand, 437 U.S. at

468 n.8 (quoting Cobbledick v. United States, 309 U.S. 323, 325 (1940)).

      The determinative question for finding jurisdiction in this case is whether

the district court’s ruling on penalties will be effectively unreviewable following

the Appeal Officer’s resolution of the manner of payment. W ithout citing any

authority, both parties express concern that if M esa prevails on remand on the

payment matter, it will be precluded from obtaining review of the penalty

abatement decision. This is clearly not the case. See State Bank of Spring Hill v.

Anderson (In re Bucyrus Grain Co., Inc.), 905 F.2d 1362 (10th Cir. 1990). In

Bucyrus, the district court reversed a determination by the bankruptcy court that a

secured creditor had priority over customers of the debtor, and remanded for a

determination of the value of the customers’ claims. Following the bankruptcy

court’s valuation decision on remand, the secured creditor attempted to bypass the

district court by appealing that court’s earlier adverse priority determination

directly to this court. W e held that the district court’s partial remand order was

not a final order because the court remanded to the bankruptcy court for

“significant further proceedings.” See id. at 1366. W e further held that “the

proper procedural course for the [secured creditor] is to appeal the bankruptcy

court's decision on remand to the district court first. Then, if the district court

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rules unfavorably, the [secured creditor] could appeal to this court.” Id. at 1367.

The creditor in Bucyrus was thus instructed to first raise in district court any

outstanding issues after the remand and then, if needed, in a later appeal to this

court. As Bycyrus suggests, a decision generated coincident to a remand decision

retains a viable path of review following a ruling on remand. See also Lakes

Pilots Ass’n,, Inc. v. United States Coast Guard, 359 F.3d 624, 625 (D.C. Cir.

2004) (“[Appellants] will still be aggrieved by the outcome [after the decision on

remand] . . . and thus will be able again to seek judicial review, including review

in the court of appeals, raising not only new issues but all those on which it got

no satisfaction in its original challenge.”); Howell v. Schweiker, 699 F.2d 524,

526 (11th Cir. 1983) (Appeal dismissed for lack of jurisdiction, the court stating

“[a]ny legal ruling made in the present order can be reviewed effectively after the

remand.”).

      Both parties cite Sullivan v. Finkelstein, 496 U.S. 617 (1990), to support

our exercise of jurisdiction over this appeal. Although the Supreme Court in

Finkelstein found appellate jurisdiction over a partial remand order was proper,

the Court’s legal support for finality and appellate review derived from specific

statutory language in 42 § U.S.C. 405(g) of the Social Security Act. See

Finkelstein, 496 U.S. at 625 (“such a remand order is a ‘judgment’ in the

terminology of § 405(g)”). See also Forney v. Apfel, 524 U.S. 266, 270 (1998)

(“[Finkelstein] reasoned primarily from the language of § 405(g), that a district

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court judgment remanding a Social Security disability benefit case” was

appealable.). In this case, we are reviewing a district court judgment that

received its jurisdictional grant from 26 U.S.C. § 6330(d)(1)(B) of the Internal

Revenue Code, not from § 405 of the Social Security Act. Because Finkelstein’s

justification for review was grounded in the statutory language of § 405(g), and §

405(g) has no relevance to the present case, the Court’s holding in Finkelstein

does not support a present exercise of jurisdiction.

       The availability of review after remand also distinguishes this case from

the more common application of the collateral order doctrine to appeals in

administrative actions by the government. As we noted in Bender v. Clark, 744

F.2d 1424, 1428 (10th Cir. 1984), for example, “because the government in such a

case has no avenue for obtaining judicial review of its own administrative

decisions, it may well be foreclosed from again appealing the district court's

determination at any later stage of this proceeding.” See also Occidental

Petroleum C orp., v. SEC, 873 F.2d 325, 332 (D.C. Cir. 1989) (finding jurisdiction

where after remand SEC “will not be able to appeal its own decision”); Stone v.

Heckler, 722 F.2d 464, 467 (9th Cir. 1983) (finding jurisdiction because Secretary

of Health and Human Services would not be able to appeal following a decision

on remand).

      The district court’s affirmation of penalties and remand on payment issues

was in this case does not similarly satisfy the requirements of the collateral order

                                         -8-
doctrine. Consequently, M esa must follow the procedural course outlined in

Bucyrus and await the appeal on its penalty decision until completion of the

remanded proceedings. By forgoing review until the Appeals Officer resolves the

payment issue, we avoid the undesirable possibility of multiple, piecemeal

appeals. Because the penalty decision is reviewable upon conclusion of the

remanded proceedings irrespective of who prevails upon the payment issue, the

collateral order doctrine does not shelter M esa’s interlocutory appeal from the

finality requirement.

      Accordingly, this appeal is DISM ISSED for a lack of jurisdiction.




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