IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-51008

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 

United States Court of Appeals

Fifth Circuit

FILED

October 9, 2019

Lyle W. Cayce

Clerk

 Case: 18-51008 Document: 00515152745 Page: 1 Date Filed: 10/09/2019
No. 18-51008

2

various federal statutes. One year later, the President accepted the resignation of Attorney General Sessions and designated Matthew Whitaker as Acting 

Attorney General. Citing the alleged illegality of Whitaker’s designation, Valencia 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 jurisdiction 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 

 Case: 18-51008 Document: 00515152745 Page: 2 Date Filed: 10/09/2019
No. 18-51008

3

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) (quoting 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,” arguably “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 quotation marks omitted).

The appeal is DISMISSED for want of jurisdiction.

 Case: 18-51008 Document: 00515152745 Page: 3 Date Filed: 10/09/2019