### 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. C oncluding 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: 10/09/2019No. 18

- 51008

2 various federal statutes. One year later, the President accepted the resig na
tion of Attorney General Sessions and designated Matthew Whit a ker as Acting Attorney General. Citing the alleged illegality of Whita ker’s desig na tion , Val

en cia moved to dismiss the indictment

. The district court denied the motion
on the merits , concluding that Whit a ker’s designation was valid under both the U.S. Constitution and rele vant federal statut es

.
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 becau se 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 a vers 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 juris dic

tion before reviewing the merits .” United States v. Pittman , 915 F.3d 1005, 1007 (5th Cir. 2019) (cita tion 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: 10/09/2019No. 18

- 51008

3 inde pendent 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) (quot

ing 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 inter preted “with the utmost strictness , ” Pittman , 915 F.3d at 1008 ( citations omitted)

. T he denial of Valencia’s motion is not an appealable collateral order. Although the order did “conclusively determine the disputed question,” argu a
bly “resolv[ing] an important issue completely separate fr om 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 appeal ing 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. Carpente r , 558 U.S. 100, 113 (2009) (“[T] he class of collaterally appealable orders must remain narrow and selective in its membership.” ) (citation and internal quota

tion marks omitted). The appeal is DISMISSED for want of jurisdiction

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