United States District Court, D. Minnesota
Robert A. Kunshier, Petitioner,
Timothy Walz, Governor of the State of Minnesota; Tony Lourey, Commissioner of the Minnesota Department of Human Services; and The State of Minnesota, Respondents.
C. Tostrud United States District Judge
matter is before the Court on the motion of petitioner Robert
Kunshier (“Kunshier”) for a certificate of
appealability. ECF No. 22. Kunshier is civilly committed
pursuant to the Minnesota Sex Offender Program; he commenced
this habeas corpus action on March 28, 2016, under 28 U.S.C.
§ 2254 seeking release from confinement because he
completed his necessary treatment. Pet. ¶¶ 1, 6
[ECF No. 1]. Chief District Court Judge John R. Tunheim,
ordered this case-along with a number of others-stayed
pending the resolution of Karsjens v. Piper, No.
11-cv-3659 (DWF/TNL), and its appeal to the United States
Court of Appeals for the Eighth Circuit, or until further
order of the District Court. ECF Nos. 6, 13, 21. Kunshier is
a member of the Karsjens class action. Mem. in Supp.
at 7-8 [ECF No. 23]. He argues that the continued stay of
this case violates his due process rights, namely, his
“access to the courts for redress of wrongs.”
Mot. at 2 (internal quotation marks omitted).
district court can issue a certificate of appealability to
grant a petitioner the right to appeal a final order in a
habeas corpus case to a court of appeals. See 28
U.S.C. § 2253(a), (c)(1)(A). A final order is “one
that ends the litigation on the merits and leaves nothing for
the court to do but execute the judgment.” Gray v.
Swenson, 430 F.2d 9, 11 (8th Cir. 1970); Stewart v.
Bishop, 403 F.2d 674, 678 (8th Cir. 1968) (“[Fed.
R. Civ. P.] 81(a) . . . expressly makes the rules of civil
procedure applicable to habeas corpus proceedings. 28
U.S.C.A. § 2253, which governs appeals in federal habeas
corpus proceedings, clearly contemplates that appeals shall
be from the final order. 28 U.S.C.A. § 1291, the general
statute conferring jurisdiction upon the Court of Appeals to
review District Court judgments, limits review to ‘all
final decisions of the district courts of the United
States.'”)); see Andrews v. United States,
373 U.S. 334, 340 (1963) (stating that the standards of
finality in habeas corpus cases are just as exacting as they
are in other civil cases). Here, Kunshier requests a
certificate of appealability be issued to review a stay
order. This case is stayed because the primary issue raised
in Kunshier's petition, namely, his challenge to the
release criteria of the Minnesota Sex Offender Program, is
sufficiently related to the issues being litigated and
appealed in the Karsjens case. See Dec. 20,
2018 Order at 24 [ECF No. 21].
case, the stay order is not immediately appealable because it
is not a final order, nor does it satisfy the requirements
for alternate routes to appellate review including the
collateral order doctrine or an appeal by permission under 28
U.S.C. § 1292(b). “The only time that an order
granting a stay will be considered a final order is if [the
stay] is tantamount to a dismissal and [the stay] effectively
ends the litigation.” Kreditverein der Bank Austria
Creditanstalt fur Niederosterreich und Bergenland v.
Nejezchleba, 477 F.3d 942, 946 (8th Cir. 2007)
(alterations in original) (citation omitted); see Moses
H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460
U.S. 1, 9 n.8, 10 n.11 (1983) (stating dismissal means the
case is “effectively out of federal
court” and a stay is immediately appealable if
“the object of the stay is to require all or an
essential part of the federal suit to be litigated in
[another] forum”). Here, the stay does not effectively
dismiss Kunshier's case; it does not surrender
jurisdiction to a non-federal forum, instead it allows the
very same federal district and appellate courts to decide
related issues in Karsjens that will control or
narrow the unresolved issues in Kunshier's lawsuit. In
essence, the stay avoids duplicative litigation. See
Colorado River Water Conservation Dist. v. United
States, 424 U.S. 800, 817 (1976) (“As between
federal district courts, . . . the general principle is to
avoid duplicative litigation.” (citation omitted)).
collateral order doctrine accommodates a ‘small
class' of rulings, not concluding the litigation, but
conclusively resolving ‘claims of right separable from,
and collateral to, rights asserted in the action.'”
Will v. Hallock, 546 U.S. 345, 349 (2006) (citation
omitted). The requirements for a collateral order appeal are
“that an order  conclusively determine the disputed
question,  resolve an important issue completely separate
from the merits of the action, and  be effectively
unreviewable on appeal from a final judgment.”
Id. (citation and internal quotation marks omitted).
“That a ruling ‘may burden litigants in ways that
are only imperfectly reparable by appellate reversal of a
final district court judgment . . . has never
sufficed.'” Mohawk Indus., Inc. v.
Carpenter, 558 U.S. 100, 107 (2009) (citation omitted).
“Instead, the decisive consideration is whether
delaying review until the entry of final judgment
‘would imperil a substantial public interest' or
‘some particular value of a high order.'”
Id. (citing Will, 546 U.S. at 352-53).
Kunshier's opportunity to litigate in federal court is
not foreclosed by the stay, it is only delayed and that delay
does not rise to the level of an important claim of right
under the collateral order doctrine. See
Kreditverein, 477 F.3d at 947-48.
U.S.C. § 1292(b) allows a district judge to certify an
order “not otherwise appealable” if “such
order involves a controlling question of law as to which
there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially
advance the ultimate termination of the litigation.”
These kinds of interlocutory appeals should be authorized
only sparingly and in extraordinary cases. Union Cty.,
Iowa v. Piper Jaffray & Co., 525 F.3d 643, 646 (8th
Cir. 2008) (citations omitted). This is not one of those
extraordinary cases. Implementing the stay in this case was a
discretionary decision made by the district court and is not
considered a controlling question of law. See Great Lakes
Gas Transmission Ltd. P'ship v. Essar Steel Minn.,
LLC, No. 09-cv-3037 (SRN/LIB), 2015 WL 3915687, at *4
(D. Minn. June 25, 2015) (citing White v. Nix, 43
F.3d 374, 377 (8th Cir. 1994) (“A legal question of the
type referred to in § 1292(b) contrasts with a
‘matter for the discretion of the trial
court.'” (citation omitted))).
courts have the inherent authority to manage their dockets
and courtrooms with a view toward the efficient and expedient
resolution of cases.” Dietz v. Bouldin, 136
S.Ct. 1885, 1892 (2016) (citing Landis v. North American
Co., 299 U.S. 248, 254 (1936)). Maintaining the stay in
sufficiently-related cases-including Kunshier's- through
the Karsjens appeal is the most efficient means of
achieving a final resolution on some of the complex issues
these cases present, easing the burden on litigants as well
as the Court. See id.; Fed.R.Civ.P. 1; see also
Miccosukee Tribe of Indians of Fla. v. S. Fla. Water Mgmt.
Dist., 559 F.3d 1191, 1198 (11th Cir. 2009)
(“[T]he reason for the district court's stay was at
least a good one, if not an excellent one: to await a federal
appellate decision that is likely to have a substantial or
controlling effect on the claims and issues in the stayed
based upon all the files, records, and proceedings herein,
IT IS HEREBY ORDERED that the Motion for
Certificate of Appealability [ECF No. 22] is
 Current Governor Timothy Walz and
current Commissioner of the Minnesota Department of Human
Services Tony Lourey are substituted for their predecessors
former governor Mark Dayton and former Commissioner Emily
Johnson Piper, because a “[public] officer's
successor is automatically substituted as a party” and