KIMBERLY A. NICE, a personal representative of the estate of Shawn R. Nice 1st Lt USMC deceased, H.N., a minor child, Plaintiffs-Appellees,
L-3 COMMUNICATIONS VERTEX AEROSPACE LLC, ESTATE OF CHARLES HAROLD MCDANIEL, Defendants-Appellants.
Appeals from the United States District Court for the
Northern District of Florida D.C. Docket No.
ED CARNES, Chief Judge, DUBINA, Circuit Judge, and ABRAMS,
Nice filed this wrongful death action against L-3
Communications Vertex Aerospace and the Estate of Charles
McDaniel after a Navy aircraft crashed during a training
exercise, killing her husband and everyone else on board. The
defendants filed a motion to dismiss for lack of subject
matter jurisdiction on political question grounds, which the
district court denied. The defendants appeal that order,
contending that interlocutory review is proper under the
collateral order doctrine and, alternatively, that it is
appropriate under 28 U.S.C. § 1292(b).
FACTS AND PROCEDURAL HISTORY
Lieutenant Shawn Nice was training as a navigator on a
Navy-owned jet aircraft during a training exercise when the
aircraft crashed in north Georgia. Charles McDaniel, a
Navy-approved pilot and Vertex employee, was piloting the
aircraft when it crashed. An investigation showed that the
aircraft was travelling at a speed of 330 knots when a
malfunction caused an inadvertent left rudder movement, which
McDaniel countered by moving the rudder to the right.
McDaniel's attempt to compensate for the malfunction at
that speed broke the tail apart, causing the crash.
Nice's wife filed this wrongful death action against
Vertex and McDaniel's estate. She claimed that
McDaniel's negligent response to the malfunction caused
the tail to fail and the aircraft to crash. The defendants
raised the affirmative defense of comparative fault by the
Navy, arguing that the Navy's choice of the aircraft,
selection of the mission speed and altitude, and oversights
in the training manual contributed in whole or in part to the
crash. The defendants filed a motion to dismiss
for lack of subject matter jurisdiction on the ground that
their comparative fault defense would require the jury to
evaluate sensitive Navy decisions, making the case
nonjusticiable under the political question doctrine.
district court denied the motion, finding that the negligence
claim hinged on McDaniel's reaction to the malfunction,
which had nothing to do with the Navy's decisions. The
defendants appealed that order, asserting appellate
jurisdiction as of right under the collateral order doctrine.
The defendants also filed a petition for permission to appeal
under 28 U.S.C. § 1292(b), which permits discretionary
interlocutory appeals, and a motions panel of this Court
granted that petition.
jurisdiction over "appeals from all final decisions of
the district courts of the United States." 28 U.S.C.
§ 1291. A decision "is considered final and
appealable only if it ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment,
" W.R. Huff Asset Mgmt. Co. v. Kohlberg, Kravis,
Roberts & Co., L.P., 566 F.3d 979, 984 (11th Cir.
2009), so denials of a motion to dismiss are normally not
considered final under § 1291, see Foy v. Schantz,
Schatzman & Aaronson, P.A., 108 F.3d 1347, 1350
(11th Cir. 1997).
appeal presents two jurisdictional issues: (1) whether the
district court's order is appealable as of right under
the collateral order doctrine, which is an exception to the
final judgment rule, and (2) whether we should exercise our
discretion to permit the defendants' appeal under §
Collateral Order Issue
collateral order doctrine recognizes "a small category
of decisions that, although they do not end the litigation,
must nonetheless be considered final." In re
Hubbard, 803 F.3d 1298, 1305 (11th Cir. 2015) (quotation
marks omitted). That small category "includes only
decisions that are conclusive, that resolve important
questions separate from the merits, and that are effectively
unreviewable on appeal from the final judgment in the
underlying action." Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 106, 130 S.Ct. 599, 605 (2009).
Nice does not contest the first two requirements. As for the
third requirement, the defendants argue that without an
immediate appeal their comparative fault defense will require
the jury to second-guess sensitive Navy decisions, which
harms the public's interest in separation of powers, and
a later appeal will not undo that damage. That argument
cannot engage in an "individualized jurisdictional
inquiry" to determine whether a decision fits into the
small category of collateral order decisions. Id. at
107, 130 S.Ct. at 605 (quotation marks
omitted). That is exactly what the defendants want
us to do here. Their argument that an immediate appeal is
necessary to stop a jury from second-guessing the Navy's
decisions turns on the Navy's choice of the aircraft,
selection of the mission speed and altitude, and instructions
in the training manual, all of which are facts peculiar to
this case. Instead of delving into those facts, we must focus
on whether the "class of claims, taken as a whole, can
be adequately vindicated" by means other than an
immediate appeal. Id. The defendants can raise their
subject matter jurisdiction argument after final judgment,
their argument that the court's order may be burdensome
in "ways that are only imperfectly reparable by
appellate reversal of a final district court judgment . . .
has never sufficed" to satisfy the third condition.
Id. (quotation marks omitted); see also Digital
Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 873,
114 S.Ct. 1992, 1998-99 (1994) (stating that "virtually
every right that could be enforced appropriately by pretrial
dismissal might loosely be described as ...