What is the collateral bar rule on a conditional release order?

But under the court's decision today, the government could rarelyif everappeal such an order. If the state obeys the order and holds the hearing, the appeal (like this one) is moot. If the state does not wish to obey the order, it would have no guarantee of immediate review under the rule announced today. Nor could the state ignore the order in the hope of later challenging it in an enforcement proceeding. See

[657 F.3d 1040]

Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967); In re Establishment Inspection of Hern Iron Works, Inc., 881 F.2d 722, 725 (9th Cir.1989) (In brief, the collateral bar rule permits a judicial order to be enforced through criminal contempt even though the underlying decision may be incorrect and even unconstitutional.).

[657 F.3d 1040]

Moreover, even application of the seemingly bright-line rule proposed by the majority would be difficult in practice. As in this case, it is often difficult to tell whether a district court is actually granting a writ of habeas corpus. See Alexander v. U.S. Parole Comm'n, 514 F.3d 1083, 1087 (10th Cir.2008) (Unfortunately, not all orders state clearly whether release has been granted or denied.). Thus, closer inspection would be needed on a case-by-case basis to determine whether an ambiguous order is the functional equivalent of a conditional release order. Id. at 1089. I think it inappropriate for us to be undertaking such an inquiry.

Given these difficulties with the majority's new rule, I cannot join in its opinion. I do, however, agree that we do not have jurisdiction over this appeal. Accordingly, I would dismiss for mootness and vacate the judgment of the district court. See Burke v. Barnes, 479 U.S. 361, 365, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987).

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