Whether a court of appeals can refuse to exercise its jurisdiction to determine its own jurisdiction

QUESTION PRESENTED Sunoco is caught between a rock and a hard place. It is saddled with a $155 million class-action damages award that it very much wishes to appeal but firmly believes is not yet final. The district court that issued that award, by contrast, insists that it has issued a final order that is appealable and ripe for execution. That dynamic is hardly unprecedented, and should have been unproblematic. Sunoco responded by doing what parties faced with similar dilemmas have been doing for decades: It filed a protective appeal asking the Tenth Circuit to resolve the finality dispute pursuant to its jurisdiction to determine its own jurisdiction, while preserving and _ articulating Sunoco’s view that the order appealed was not final. The first time Sunoco did so, the Tenth Circuit agreed in full: It resolved the finality dispute, agreeing with Sunoco that the order was not final, and dismissed the appeal. Yet when Sunoco filed later protective appeals preserving and asserting its view that the district court’s efforts to fix the finality problem failed, the Tenth Circuit inexplicably broke from established practice and refused to address finality. Instead, it held that by preserving and asserting its view that the orders were non-final, Sunoco failed to satisfy its “burden” to establish appellate jurisdiction. As a result, Sunoco is unable to appeal orders that it believes in good faith are non-final (but the district court views as final and subject to execution) precisely because it believes in good faith they are not final. The question presented is: Whether a court of appeals can refuse to exercise its jurisdiction to determine its own jurisdiction—and ii instead dismiss an appeal on the ground that an appellant has not met its “burden” to establish jurisdiction—when an appellant files a protective appeal reflecting its good-faith belief that a district court order is not final.