United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 2011 Decided March 13, 2012

No. 10-7106

OSCAR SALAZAR, BY HIS PARENTS AND NEXT FRIENDS, ADELA

AND OSCAR SALAZAR, ET AL.,

APPELLEES

v.

DISTRICT OF COLUMBIA, ET AL.,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:93-cv-00452)

Richard S. Love, Senior Assistant Attorney General, Office

of the Attorney General for the District of Columbia, argued the

cause for appellants. With him on the briefs were Irvin B.

Nathan, Attorney General, Todd S. Kim, Solicitor General, and

Donna M. Murasky, Deputy Solicitor General. Robert C.

Utiger, Attorney, entered an appearance.

Kathleen L. Millian argued the cause for appellees. With

her on the brief were Bruce J. Terris and Jane M. Liu. Lynn E.

Cunningham, Martha J. Perkins, and Paula D. Scott entered

appearances.
2

Before: ROGERS, GARLAND, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Since 1993, a consent decree has

governed how the District of Columbia provides “early and

periodic screening, diagnostic, and treatment services” under the

Medicaid Act. The District has now asked the district court to

vacate that decree on two grounds: that an intervening Supreme

Court decision has made clear that the plaintiffs lack a private

right of action to enforce the Medicaid Act, and that in any event

the District has come into compliance with the requirements of

the Act. After the district court rejected the District’s first

argument, the District appealed without waiting for resolution of

the second -- which remains pending. Because we conclude that

the court’s rejection of one of the District’s two arguments does

not constitute an order “refusing to dissolve [an] injunction[]”

within the meaning of 28 U.S.C. § 1292(a)(1), we dismiss the

appeal for lack of jurisdiction.

I

In 1993, the plaintiffs filed a class action complaint under

42 U.S.C. § 1983, alleging that the District of Columbia was

violating the Medicaid Act, 42 U.S.C. § 1396 et seq. In

particular, the plaintiffs alleged that the District was failing to

properly administer the Act’s child health provisions -- known

as “early and periodic screening, diagnostic, and treatment”

(EPSDT) services. 42 U.S.C. § 1396a(a)(43); id. § 1396d(r); see

Compl. at 37 (J.A. 275). Although the District argued that the

plaintiffs had no private right to enforce those provisions under

42 U.S.C. § 1983, the district court disagreed, Wellington v.

District of Columbia, 851 F. Supp. 1, 6 (D.D.C. 1994), and

determined that the District had violated the Act, Salazar v.

District of Columbia, 954 F. Supp. 278, 328-33 (D.D.C. 1996).
3

The District sought appellate review, but it ultimately

dismissed its appeal in favor of entering into a comprehensive

settlement. The district court approved the settlement and, in

January 1999, entered the Settlement Order at issue here. That

Order contains detailed requirements governing the District’s

EPSDT services. The Order, together with subsequent remedial

orders, continues in effect today.

In 2009, the District moved, pursuant to Rule 60(b)(5) and

(6) of the Federal Rules of Civil Procedure, to terminate the

Settlement Order and related orders.1 The District made two

arguments in support of its motion. First, it contended that the

Supreme Court’s intervening decision in Gonzaga University v.

Doe, 536 U.S. 273 (2002), “resolved prior confusion in the

Supreme Court’s . . . jurisprudence in a manner” indicating that

there is no private right of action to enforce the EPSDT

provisions of the Medicaid Act under § 1983. Defs.’ Mem. in

Supp. of Mot. to Terminate at 5 (J.A. 604). Second, the District

maintained that, even if the plaintiffs did have such a right of

action, continuation of the decree was no longer equitable

because the District had achieved compliance with federal law

governing EPSDT services. Id. at 20 (J.A. 619).

In response to the District’s motion, the plaintiffs sought

discovery as to whether the District was in fact in compliance

with the Medicaid Act. Opposing that request, the District

argued that the parties should first brief the private right of

action issue. “If the Court agrees with the District that no

private right of action exists . . . , expensive and time consuming

1

Under Rule 60(b), the court may grant relief from a final

judgment based on, inter alia, a finding that “the judgment has been

satisfied, released or discharged; . . . or applying it prospectively is no

longer equitable,” FED R. CIV. P. 60(b)(5), or for “any other reason

that justifies relief,” id. 60(b)(6).
4

discovery will have been avoided. If the Court rules against the

District, discovery can commence.” Defs.’ Opp. to Pls.’ Mot.

for Disc. at 3 (J.A. 679). The court adopted the District’s

suggestion and put discovery on hold. Order on Pls.’ Mot. for

Disc. at 1-2 (J.A. 683-84). 

In August 2010, after briefing and argument on the private

right of action issue, the district court concluded that relief on

that ground was unwarranted for three reasons. First, noting

that motions under Rule 60(b) must be brought “within a

reasonable time,” FED.R.CIV.P. 60(c)(1), the court held that the

District had “prejudice[d] Plaintiffs’ interests in finality and

repose” by waiting seven years after Gonzaga was issued before

filing its motion. Salazar v. District of Columbia, 729 F. Supp.

2d 257, 261 (D.D.C. 2010). Second, the court held that

Gonzaga did not constitute a “significant change” in the law, but

merely a clarification. Id. at 266. As a result, the District could

not satisfy either Rule 60(b)(5), which requires “a significant

change either in factual conditions or in law,” Rufo v. Inmates

of the Suffolk Cnty. Jail, 502 U.S. 367, 384 (1992), or Rule

60(b)(6), which requires “extraordinary circumstances,”

Ackermann v. United States, 340 U.S. 193, 199 (1950). See

Salazar, 729 F. Supp. 2d at 263-64. Finally, the court held that

the District had misinterpreted Gonzaga. In the court’s view,

Gonzaga did not deprive the plaintiffs of a private right of action

to enforce the Medicaid Act’s EPSDT provisions. See id. at

268-71. 

Based on this reasoning, the district court issued an order

denying the District’s motion to terminate “as to the private

right of action issue.” Id. at 272. The District appealed

immediately, without seeking a ruling on its alternative

argument that it had come into compliance with the statute. As

of the date of this decision, nothing further has transpired with

respect to the compliance issue in the district court. The
5

plaintiffs have not renewed their request for discovery, the

District has not sought judgment, and the court has not ruled. 

See Oral Arg. Recording at 7:15-7:45; Civil Docket for Case No.

1:93-cv-00452 (as of Mar. 6, 2012).

II

Because we are a court of limited jurisdiction, our inquiry

must always begin by asking whether we have jurisdiction to

decide a particular appeal. See United States v. E-Gold, Ltd.,

521 F.3d 411, 413 (D.C. Cir. 2008); see also Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). If we

conclude that we lack jurisdiction, that is also where our inquiry

ends. 

Under 28 U.S.C. § 1291, our appellate jurisdiction generally

extends only to the “final decisions” of district courts. Carson

v. American Brands, Inc., 450 U.S. 79, 83 (1981). Although this

finality requirement necessarily delays the resolution of

important legal questions, Congress has determined that such

delay must be tolerated in order to avoid “the debilitating effect

on judicial administration” that would otherwise result from

“piecemeal appe[llate] disposition of what is, in practical

consequence, but a single controversy.” Coopers & Lybrand v.

Livesay, 437 U.S. 463, 471 (1978). Nonetheless, “[b]ecause

rigid application of this principle was found to create undue

hardship in some cases, . . . Congress created certain exceptions

to it.” Carson, 450 U.S. at 83. 

The District invokes one such exception, 28 U.S.C.

§ 1292(a)(1), which gives this court jurisdiction over appeals

from “[i]nterlocutory orders . . . granting, continuing, modifying,

refusing or dissolving injunctions, or refusing to dissolve or

modify injunctions.” In the District’s view, the district court’s

rejection of its private cause of action argument falls within that
6

exception. According to the District, by rejecting that argument,

the court “refus[ed] to dissolve [an] injunction[].” Id. 

 The exception provided by § 1292(a)(1) is a limited one,

and the Supreme Court has “construed [it] narrowly.” Carson,

450 U.S. at 84. Because the “congressional policy against

piecemeal review” remains an important concern, id., the Court

declared in Switzerland Cheese Ass’n v. E. Horne’s Market, Inc.

that we must “approach this statute somewhat gingerly lest a

floodgate be opened.” 385 U.S. 23, 24 (1966). To employ a

different metaphor suggested by that case’s title, we must take

care not to turn the barrier against piecemeal appeals into Swiss

cheese.

After a series of decisions by the Supreme Court and this

court, the scope of § 1292(a)(1) is now relatively clear, though

resistant to brief summary. If the interlocutory order in question

is one “clearly granting or denying a specific request for

injunctive relief” -- or, for purposes of this case, one clearly

denying a specific request to dissolve an injunction -- it falls

within the plain text of § 1292(a)(1) and is appealable without

any further showing. Int’l Ass’n of Machinists & Aerospace

Workers, AFL-CIO v. Eastern Airlines, Inc., 849 F.2d 1481,

1486 n.11 (D.C. Cir. 1988); I.A.M. Nat’l Pension Fund Benefit

Plan A v. Cooper Indus., Inc., 789 F.2d 21, 24 n.3 (D.C. Cir.

1986). Even if an order does not by its terms grant or deny a

specific request for an injunction -- or, as here, does not by its

terms grant or deny a specific request to dissolve an injunction --

the order may still be appealable if it has the “practical effect”

of doing so. Carson, 450 U.S. at 83; Cobell v. Norton, 334 F.3d

1128, 1137 (D.C. Cir. 2003). But such a “practical effect” order

is appealable without more only if it “affect[s] predominantly all

of the merits.” I.A.M., 789 F.2d at 24 n.3 (quoting Ctr. for Nat’l

Sec. Studies v. CIA, 711 F.2d 409, 412-13 (D.C. Cir. 1983)). 

Otherwise, a “practical effect” order is appealable only if the
7

appellant can show that two further requirements are met: that

the order “might have a ‘serious, perhaps irreparable,

consequence,’ and that the order can be ‘effectually challenged’

only by immediate appeal.” Carson, 450 U.S. at 84; see Cobell,

334 F.3d at 1137; Int’l Ass’n of Machinists, 849 F.2d at 1486

n.11; United States v. Western Elec. Co., 777 F.2d 23, 29-30

(D.C. Cir. 1985). We refer to these as the “Carson

requirements,” after the Supreme Court opinion that first

enunciated them, Carson v. American Brands, Inc., 450 U.S. at

84.2

We apply this analysis in the following sections.

2

Carson did not itself contain the “affects predominantly all of

the merits” exception, which comes from this court’s decisions in

I.A.M., 789 F.2d at 24 n.3, and Center for National Security Studies,

711 F.2d at 413. Carson was also unclear as to whether the two

Carson requirements apply only to “practical effect” orders, or also to

orders expressly granting or denying injunctions. The Supreme Court

has subsequently suggested that the former is the case, and this circuit

and others have so held. See Gulfstream Aerospace Corp. v.

Mayacamas Corp., 485 U.S. 271, 287-88 (1988) (“Section 1292(a)(1)

will, of course, continue to provide appellate jurisdiction over orders

that grant or deny injunctions and orders that have the practical effect

of granting or denying injunctions and have ‘serious, perhaps

irreparable, consequence.’” (emphasis added)); Int’l Ass’n of

Machinists, 849 F.2d at 1486 n.11 (“Carson does not apply to an order

clearly granting or denying a specific request for injunctive relief;

such orders are always appealable under § 1292(a)(1).” (quoting

I.A.M., 789 F.2d at 24 n.3)); see also Robert Bosch LLC v. Pylon Mfg.

Corp., 659 F.3d 1142, 1147 (Fed. Cir. 2011); CFTC v. Walsh, 618

F.3d 218, 224 (2d Cir. 2010); Edwards v. Prime, Inc., 602 F.3d 1276,

1290 (11th Cir. 2010); Westar Energy, Inc. v. Lake, 552 F.3d 1215,

1223 (10th Cir. 2009).
8

A

 The first issue is whether the district court’s August 2010

order is one that clearly denies a specific request to dissolve an

injunction, and hence is appealable without a further showing. 

See I.A.M., 789 F.2d at 24 n.3. In this case, that issue has two

subparts: (1) whether the 1999 Settlement Order (together with

its related remedial orders) is an injunction; and (2) whether the

August 2010 order constitutes an order clearly “refusing to

dissolve” that Order.3

 Although we are inclined to agree with

both parties that the Settlement Order grants injunctive relief,

Salazar Br. 8; District Br. 2, we need not resolve that issue

because the August order did not clearly refuse to dissolve the

Settlement Order.4

 

3

Cf. Western Elec., 777 F.2d at 28-29 & n.12 (applying Carson

requirements where, although the court found that a consent decree

was an injunction, it was not clear whether the appealed-from order

constituted a “modification” of that decree). 

4

The argument that the Settlement Order is an injunction for

purposes of § 1292(a)(1) is quite strong, given this court’s broad

definition of an injunction as any order “‘directed to a party,

enforceable by contempt, and designed to accord or protect some or

all of the substantive relief sought by a complaint in more than

preliminary fashion,’” E-Gold, 521 F.3d at 415 (quoting I.A.M., 789

F.2d at 24), as well as our decisions regarding similar orders, see

Twelve John Does v. District of Columbia, 117 F.3d 571, 574 (D.C.

Cir. 1997) (holding that a consent decree is an injunction); Western

Elec., 777 F.2d at 28 n.12 (same). The principal cause for hesitation

is Carson itself, which held that the “order declining to enter the

proposed consent decree” in that case “did not in terms ‘refus[e]’ an

‘injunctio[n],’” but rather “had the practical effect of doing so.” 450

U.S. at 83. It may be, however, that Carson was focusing on the

“refusing,” rather than the “injunction,” issue. 
9

The August 2010 order did nothing more than reject the

first of two reasons the District offered in support of dissolution,

leaving argument on and resolution of the second rationale

pending. Indeed, as the terms of the order make clear, it did not

deny the District’s motion in its entirety, but only “as to the

private right of action issue.” Salazar, 729 F. Supp. 2d at 272. 

Accordingly, the order “did not in terms” refuse to dissolve an

injunction. See Carson, 450 U.S. at 83. 

The crux of the District’s contrary argument is that: “It does

not matter what the district court may yet do” in ruling on the

remaining rationale; “what matters is that the order in question

indisputably did refuse to dissolve or modify the Settlement

Order.” District Reply Br. 6. The implications of this argument

are sweeping: in a more complicated case, it would permit a

party to present five, or ten, or a hundred arguments for vacating

an injunction, and then appeal each time the court decided any

one of them. This would certainly leave the barrier against

piecemeal appeals with as many holes as Swiss cheese.5

Switzerland Cheese itself makes clear that it does indeed

matter whether there is something more that the district court

“may yet do.” There, the Supreme Court held that the plaintiffs

could not appeal the denial of a motion for summary judgment

on a request for a permanent injunction, because a trial on

unresolved factual issues was still in the offing. 385 U.S. at 25.

5

We do not mean to suggest that whenever there is something

more that the district court “may yet do,” a party cannot appeal under

§ 1292(a)(1). Indeed, because § 1292(a)(1) authorizes appeals from

“interlocutory” orders, there will always be something yet to do in the

district court. We merely hold that, when a district court rejects only

one of multiple grounds for dissolving an injunction, the court has not

“in terms” refused to dissolve that injunction within the meaning of

Carson.
10

Denying summary judgment was no less a “refus[al]” to

immediately grant the requested injunction in that case than was

rejecting one of the District’s two grounds a “refus[al]” to

immediately dissolve the Settlement Order here. And yet, the

Court held that there was no appellate jurisdiction in Switzerland

Cheese because the refusal to immediately grant relief was not

the end of the matter.6

This court reached a similar result in Center for National

Security Studies, 711 F.2d at 414. Although the complaint in

that case sought disclosure of twelve categories of documents

under the Freedom of Information Act (FOIA), the plaintiffs

filed an appeal after the district court granted the defendant’s

motion for summary judgment as to only one. Rather than treat

the court’s order as expressly denying an injunction, we instead

characterized it as having the “practical effect” of doing so, id.

at 412; applied the Carson requirements, id. at 413; and

dismissed for lack of jurisdiction because the plaintiffs failed to

show they would suffer irreparable injury by waiting to appeal

from a final judgment on the complaint, id. at 414.

The District objects that barring an appeal at this juncture

“would elevate form over substance” because this court “plainly

would have jurisdiction if the District had filed two separate

motions (rather than one motion with two separate grounds) and

the district court had denied one of them.” District Br. 3. We

do not believe that appellate jurisdiction can be conjured so

easily. First, had the District attempted to simultaneously file

6

Although in Switzerland Cheese the Supreme Court did not

describe the order at issue as one having the “practical effect” of

refusing an injunction, it subsequently did so in Carson, explaining

that the Switzerland Cheese petitioners’ appeal had been dismissed

because they were unable to show irreparable harm from waiting until

the judgment was final. 450 U.S. at 84-85.
11

separate motions seeking the same relief and differing only in

their rationales, the district court might well have consolidated

them by exercising its inherent authority to order its

proceedings. See United States v. Western Elec. Co., 46 F.3d

1198, 1207 n.7 (D.C. Cir. 1995). Second, had the District

instead held back its alternative rationale, filing it sometime

later in the form of another Rule 60(b) motion, it would have

risked a ruling that such manipulation warranted denial because

the motion was not filed “within a reasonable time,” FED. R.

CIV. P. 60(c)(1). See Salazar v. District of Columbia, 633 F.3d

1110 (D.C. Cir. 2011).

Nor is there any reason to be embarrassed about

“elevat[ing] form over substance” under these circumstances. 

After all, form-over-substance is precisely the point of a 

doctrine that distinguishes between an order that “clearly”

denies a “specific” request to dissolve an injunction, and one

that does so only “in practical effect.” Accordingly, the District

can justify an appeal at this time only if the August 2010 order

falls within the latter category.

B

 As we have discussed, an interlocutory order that does not

expressly refuse to grant or dissolve an injunction may still be

appealable under § 1292(a)(1) if it has the “practical effect” of

doing so. Although a number of cases have shed light on the

meaning of “practical effect,” none has extended the term as far

as would be required to cover the order at issue here.

Carson itself held that a district court’s refusal to grant a

joint motion to enter a consent decree containing injunctive

relief was in practical effect the denial of an injunction. See 450

U.S. at 83-84. Unlike here, however, the district court’s refusal

left no rationale for entering the decree unaddressed. 
12

Switzerland Cheese, which Carson subsequently characterized

as a practical effect case, see supra note 6, is a step closer, as it

involved a court order that denied summary judgment while

leaving trial on the merits to follow. See 385 U.S. at 25. But

that order did not reject only one of multiple grounds for

summary judgment; it rejected the summary judgment motion

in toto. Our own decision in Center for National Security

Studies is another step closer. There, we treated the grant of a

defendant’s motion for summary judgment on only one count of

a FOIA complaint, a count that sought disclosure of only one

category of documents, as having the practical effect of denying

a request for an injunction. But even there, the district court

decided the only pending motion in its entirety -- the defendant

had not filed for summary judgment with respect to the other

counts seeking disclosure of other documents -- thereby entirely

resolving the issue regarding that count. See Ctr. for Nat’l Sec.

Studies, 711 F.2d at 410.7

We need not decide whether to take the still further step that

would be required to cover the district court’s August 2010

order: that is, characterizing an order rejecting only one of two

grounds supporting a motion to dissolve an injunction as having

the practical effect of refusing dissolution. Although a

“practical effect” order is appealable without more if it “affect[s]

predominantly all of the merits,” I.A.M., 789 F.2d at 24 n.3

(quoting Ctr. for Nat’l Sec. Studies, 711 F.2d at 412-13), the

order in this case did not do so. Rather, it resolved only one of

two merits issues, neither of which predominated over the other

as each constituted an independent ground for dissolution of the

7

We note that, although the orders in Switzerland Cheese and

Center for National Security Studies were regarded as having the

practical effect of refusing injunctions, the appeal in each was

ultimately dismissed for lack of jurisdiction. See 385 U.S. at 25; 711

F.2d at 414.
13

Settlement Order.8 Accordingly, even if the district court’s

order had the requisite practical effect, it is still appealable only

if the District “can show [1] that [the] order of the district court

might have a ‘serious, perhaps irreparable consequence,’ and [2]

that the order can be ‘effectually challenged’ only by immediate

appeal.” Carson, 450 U.S. at 84; Ctr. for Nat’l Sec. Studies, 711

F.2d at 413. Carson requires both showings, I.A.M., 789 F.2d

at 24, and the District of Columbia has failed to make either one.

1. The District maintains that the denial of its requested

relief threatens “serious, perhaps irreparable consequence”

because continuation of the challenged orders will “divert [the

District’s] increasingly scarce financial and human resources.” 

Reply Br. 7. “[E]ach day that they are in place,” the District

declares, the orders cost it attorneys’ fees, impose litigation

burdens, and “consum[e] the time and resources of government

officials.” Id. at 8-9. These kinds of injuries, however, are

generally insufficient to warrant immediate appeal in a

“practical effect” case. As we have explained, “[t]he cost and

delay associated with litigation does not serve to establish

irreparable harm” under Carson. Western Elec., 777 F.2d at 30;

see I.A.M., 789 F.2d at 25 (“Formidable as it is, the cost and

delay associated with modern-day litigation simply does not

establish irreparable harm.”).9

8

Cf. I.A.M., 789 F.2d at 24 n.3 (holding that an order that granted

only interim relief but declined to address the merits of the appellant’s

defense and counterclaims “cannot be said to have affected

predominantly all of the merits of the case”); Ctr. for Nat’l Sec.

Studies, 711 F.2d at 413 (holding that a summary judgment order that

ruled on the merits of one count but left eleven counts pending “did

not affect predominantly all of the merits in the case”).

9

In Carson, by contrast, the claimed injuries were sufficiently

irreparable. There, the consent decree that the district court denied

would have directed changes in the defendant employer’s personnel
14

The District also contends that continuation of the orders

“threatens ‘serious, perhaps irreparable’ harm to separation of

powers and democratic principles” because it “depriv[es] its

current elected officials of their ‘designated legislative and

executive functions’” until the district court issues a final order. 

Reply Br. 7 (quoting Horne v. Flores, 129 S. Ct. 2579, 2594

(2009)). This argument, once again, has sweeping implications

-- suggesting that judicial restriction of the District’s freedom of

action in administering one of its programs constitutes per se

irreparable injury. But whether or not the argument might

satisfy Carson in some other case, it rings hollow on the facts of

this one. 

To begin with, the strength of the District’s concern about

the Settlement Order’s fiscal and democratic consequences is

cast in doubt by its recent vintage. The District waited seven

years after the Court issued Gonzaga before bringing its motion

to terminate based on that decision, and it has not explained why

its concern only recently became so pressing. Cf. Quince

Orchard Valley Citizens Ass’n v. Hodel, 872 F.2d 75, 80 (4th

Cir. 1989) (noting that a “‘period of delay’” may “‘indicate an

absence of the kind of irreparable harm required to support a

preliminary injunction’” (quoting Citibank, N.A. v. Citytrust,

756 F.2d 273, 276 (2d Cir. 1985))).

Moreover, although the District repeatedly states that it was

the district court that “chose” to initially address only one of its

two grounds for relief, Reply Br. 1, 2, 5, that is not quite the

policies for the benefit of the plaintiff employees. See 450 U.S. at 89-

90. Carson found that without an immediate appeal, the plaintiffs

might forever lose both the chance to settle the case on the terms the

parties had negotiated, id. at 86, and “specific job opportunities and

the training and competitive advantages that would come from those

opportunities,” id. at 89 n.16.
15

whole story. After the District filed its motion to terminate the

Settlement Order, the plaintiffs promptly filed a motion to take

discovery on the factual question of whether the District was --

as it contended -- in compliance with federal law. The District

responded by opposing the plaintiffs’ request, proposing that

they not be allowed to take discovery until after the court

resolved the private cause of action issue. Defs.’ Opp. to Pls.’

Mot. for Disc. at 2-3 (J.A. 678-79). “If the Court rules against

the District,” the District’s opposition said, “discovery can

commence[, and] it is difficult to imagine any possible prejudice

to the plaintiffs in waiting.” Id. at 3 (J.A. 679).10 In short, it was

the District’s litigation strategy, adopted by the court, that led to

the bifurcation of issues; had the District not proposed

bifurcation, discovery regarding compliance would have

proceeded in tandem with briefing on the cause of action issue. 

And if the litigation had proceeded in that fashion, it is likely

that by now either the District would be free of the Settlement

Order or we would be reviewing the merits of a final decision.

Finally, the District’s inactivity in the district court after

that court rejected its cause of action argument only adds to our

skepticism regarding its claim of “serious, perhaps irreparable”

harm. During the entire time its appeal has been pending, the

District has done nothing to pursue a decision on its statutory

compliance argument. See Oral Arg. Recording at 7:15-7:45;

Civil Docket for Case No. 1:93-cv-00452 (as of Mar. 6, 2012). 

Under these circumstances, and absent any more particularized

showing of irreparable injury, we conclude that the District has

failed to meet the first Carson requirement. Cf. Carson, 450

U.S. at 84-85 (explaining that the Switzerland Cheese petitioners

10There was nothing in the District’s opposition to suggest that it

planned to appeal immediately if it lost the cause of action issue; to the

contrary, the filing gave every indication that if the District lost, it

would move ahead on the compliance question. 
16

could not show that the order denying summary judgment on

their request for a permanent injunction caused them irreparable

harm because they had failed to pursue preliminary injunctive

relief). 

2. The District’s contention that the court’s order

satisfies the second Carson requirement because it “can be

effectively challenged only by immediate appeal,” Reply Br.

9, is even weaker than its claim of irreparable injury. The

District argues that we must hear its appeal immediately

because, since the date the District Court decided “the private

right of action issue now before this court, no action has been

taken to advance resolution of the remaining issues [of

statutory compliance] raised in the District’s motion.” Id.

(emphasis added). But the use of the passive voice obscures

the fact that the District itself has taken no action to advance

the resolution of the matter in the district court, as we have

just discussed. Under these circumstances, the District’s

concern is premature at best, and we have no reason to

conclude that the order rejecting the District’s private cause

of action argument cannot be challenged effectively once

there is a ruling on its remaining compliance argument.

Accordingly, the District’s piecemeal appeal fails both

Carson requirements, and we are therefore without

jurisdiction to hear it at this time.11

11We note that under a different jurisdictional provision, 28

U.S.C. § 1292(b), “a party may ask the district court to certify, and the

court of appeals to accept, an interlocutory appeal” of an order that

involves “‘a controlling question of law,’ the prompt resolution of

which ‘may materially advance the ultimate termination of the

litigation.’” Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 607

(2009) (quoting 28 U.S.C. § 1292(b)). The District has not pursued

this avenue for obtaining review.
17

III

For the foregoing reasons, we dismiss the District’s

appeal for lack of jurisdiction.

So ordered.