Earl C. Diamond v. United States District Court for the Central District of California, and United States of America, Real Party in Interest
Opinion
Opinion
ORDER
Petitioner filed a petition for writ of mandamus on October 14, 1981 seeking review of the district court’s order of September 29, 1981. By that order, the district court denied petitioner’s motion for leave to file a late notice of appeal from its earlier order denying his motion to dismiss the indictment on the ground of double jeopardy.
We may not accept mandamus jurisdiction over a matter subject to direct appeal. See Helstoski v. Meanor, 442 U.S. 500 , 99 S.Ct. 2445 , 61 L.Ed.2d 30 (1979). Thus, the initial question is whether the September 29, 1981 order is subject to direct appeal or to review by mandamus only.
This Court has not previously addressed the issue whether an order denying a motion to file a late notice of appeal is itself appealable. However, we have little difficulty in concluding that such an order is appealable under 28 U.S.C. § 1291 . See Matter of Orbitec Corporation, 520 F.2d 358, 360 (2d Cir. 1975). Such orders are appealable whether the motion seeks leave to file a late appeal from a final judgment or from an order which falls within the collateral order exception, see Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93…