Frederick L. Allen, et al. v. Joshua Stein, Governor of North Carolina, et al.

Congress and this Court’s precedents have tightly circumscribed appellate courts’ authority to review non-final, interlocutory issues. In Swint v. Chambers County Commission, 514 U.S. 35 (1995), this Court left open whether federal courts hearing an interlocutory appeal can assert pendent appellate jurisdiction to review otherwise unappealable issues that are (i)“inextricably intertwined with” or (ii) “necessary to ensure meaningful review of ” the independently appealable order, id. at 51. Since Swint, the circuits have split 8-3-2 over whether pendent jurisdiction is available beyond those two circumstances. Eight circuits hold that Swint is the limit; three, including the Fourth Circuit below, have crafted their own broader tests; and two are internally divided. In this interlocutory sovereign immunity appeal, the Fourth Circuit never addressed sovereign immunity. Instead, the court—sua sponte and over respondents’ express waiver—departed from Swint and asserted pendent appellate jurisdiction to review an unrelated procedural order. The questions presented are:

1. Whether, on an interlocutory appeal, a federal court of appeals may exercise pendent appellate jurisdiction to review issues neither inextricably intertwined with nor necessary to ensure meaningful review of the independently appealable order.

2. Whether summary reversal is warranted because the Fourth Circuit transgressed the partypresentation principle by sua sponte exercising jurisdiction on a basis appellants waived.