Denial of Disqualification Motion Not Appealable under § 1291 before Final Judgment — Mandamus May Be Available in Exceptional Circumstances

Averhart v. CWA Union Local 1033, 2014 U.S. App. LEXIS 12609 (3d Cir. July 3, 2014):

In his supplemental brief, Averhart concedes that this Court presently lacks jurisdiction under 28 U.S.C. § 1291 to review the District Court's denial of his request to disqualify counsel, and he has expressly withdrawn his appeal to that extent. (Appellant's Supp. Br. at 1-2.)1

1   Averhart's concession is correct because "a district court's order denying a motion to disqualify counsel is not appealable under § 1291 prior to  [*4] final judgment in the underlying litigation." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379 (1981). The Supreme Court has not ruled out the use of mandamus to challenge an order denying disqualification of counsel in exceptional circumstances, see id. at 378 n.13, but Averhart has neither filed a mandamus petition nor mentioned mandamus through two rounds of briefing and has instead withdrawn his challenge to this portion of the District Court's order. We nevertheless note that Averhart has not raised any exceptional circumstance that might warrant mandamus relief.

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