Eleventh Circuit Denies Challenge to Removal of Stay Under TVPA for Lack of Appellate Jurisdiction

In Plaintiff A v. Schair, No. 12-16542 (Mar. 7, 2014), the defendant challenged the removal of a stay granted to a civil action pursuant to the Victims of Trafficking and Violence Protection Act (“TVPA”), but the Eleventh Circuit declined to reach the merits of his case. Rather, the Court found that the removal of a stay did not qualify as an appealable action under the collateral action doctrine because the defendant’s asserted interest in avoiding a Fifth Amendment claim against self-incrimination does not amount to a substantial public interest justifying interlocutory appellate jurisdiction.

The four plaintiffs filed a civil action against defendant and his corporation on the grounds that the corporation was a sex tourism operation in Brazil. The defendant successfully moved for a mandatory stay under 18 U.S.C. § 1595(b)(1) due to criminal investigations in the United States and Brazil. In late 2012, the defendants were informed that the U.S. Department of Justice chose to not prosecute the defendants. Accordingly, the district court removed the mandatory stay of the action, ruling that the TVPA mandatory stay provision did not mandate a stay for foreign criminal investigations.

The Eleventh Circuit first determines whether the defendants sufficiently established appellate jurisdiction. The Court notes that defendant failed to seek an interlocutory order under 28 U.S.C. § 1292. Further, the Court finds no final order, as the denial of a motion to stay consistently has not been considered a final order (See Anderson v. United States, 520 F.2d 1027, 1028 (5th Cir. 1975)). The Court then turned to the collateral action doctrine to determine whether jurisdiction exists for this appeal.

Three strict requirements exist for a collateral action to be appealable absent an interlocutory order: (1) a conclusive determination of a disputed question, (2) a resolution of “an important issue completely separate from the merits” of the underlying case, and (3) an order “effectively unreviewable” after the final order. Will v. Hallock, 546 U.S. 345, 349 (2006). The opinion focuses on the requirement of an important issue justifying the substantial public interest in an interlocutory appeal. The Court limits the public interests justifying the collateral action doctrine to separation of powers interests and other structural constitutional interests. In contrast, the Court finds no substantial interest in avoiding the possibility of self-incrimination because the mandatory stay provision of the TVPA was meant to assist prosecutors, to permit the defendant to decide the importance of avoiding self-incrimination, and to avoid the undue delay in the district courts of deciding such piecemeal appeals. Accordingly, the Court found that the defendant cannot claim appellate jurisdiction under the collateral action doctrine and thus may not appeal the interlocutory removal of the stay motion.

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