appeals); Yates v. Cleveland, 941 F.2d 444, 448 (6th Cir. 1991) (citing Apostol, infra, with approval); Johnson v. Hay, 931 F.2d 456, 459 n.2 (8th Cir. 1991) (in context of qualified immunity defense, jurisdiction is transferred to court of appeals unless "appeal is utterly lacking in merit and for the purpose of delay only"); Stewart v. Donges, 915 F.2d 572, 576 (10th Cir. 1990) (frivolity exception to transfer of jurisdiction principle applies in context of qualified immunity defense); Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir. 1989) (same); United States v. Hines, 689 F.2d 934, 937 (10th Cir. 1982) (district court not divested of jurisdiction in context of double jeopardy defense if " after a hearing and,  for substantial reasons given,  [district court] found the claim to be frivolous"); United States v. Dunbar, 611 F.2d 985, 988 (5th Cir. 1980) (en banc), cert. denied, 447 U.S. 926, 100 S. Ct. 3022, 65 L. Ed. 2d 1120 (1980) ("Henceforth, the district courts, in any denial of a double jeopardy motion, should make written findings determining whether the motion is frivolous or nonfrivolous . . .").
The Third Circuit has not specifically applied the frivolity exception in the sovereign immunity context. Nonetheless, as in Leppo, Defendants Ridge and Horn seek interlocutory review of a collateral order that is treated as an appealable final order for purposes of 28 U.S.C.A. § 1291. Also, as in Leppo, the interlocutory appealability of Eleventh Amendment questions offers Defendants Ridge and Horn a means by which to delay the judicial proceedings for tactical reasons. I therefore see no reason why the frivolity exception with regard to interlocutory double jeopardy appeals should not apply with equal force to interlocutory Eleventh Amendment appeals. In short, I believe Leppo authorizes this Court to entertain Plaintiffs' Motion for Preliminary Injunctive and Declaratory Relief Pending Appeal if it finds the Eleventh Amendment appeal of Defendants Ridge and Horn to be frivolous.
Although Leppo does not precisely define "frivolous," in Dreibelbis v. Marks, the Third Circuit acknowledged that it has, in the past, "implicitly adopted the standard of frivolousness applied by the Supreme Court in [ Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967), reh'g denied, 388 U.S. 924, 87 S. Ct. 2094, 18 L. Ed. 2d 1377 (1967)]: [to wit,] a matter is not frivolous if any of the legal points are arguable on their merits." 675 F.2d 579, 580 (3rd Cir. 1982) (internal quotations omitted); Deutsch v. United States, 67 F.3d 1080, 1086 n.6 (3rd Cir. 1995) (same); Keno v. Doe, 74 F.R.D. 587, 588 (D.N.J. 1977), aff'd, 578 F.2d 1374 (3rd Cir. 1978) (defining "frivolous action" as one in which "realistic chances of ultimate success are slight"); Galloway Farms, Inc. v. United States, 834 F.2d 998, 1000-01 (Fed. Cir. 1987) (stating that "other circuits have succinctly defined frivolous claims or appeals as those which involve legal points not arguable on their merits, or those whose disposition is obvious") (internal quotations and citations omitted). See also Neitzke v. Williams, 490 U.S. 319, 320, 109 S. Ct. 1827, 1829, 104 L. Ed. 2d 338 (1989) (stating that frivolity is not co-extensive with failure to state a claim and that complaints dismissed for failure to state a claim may raise arguable, but ultimately uncognizable, claims whereas frivolity applies to class of claims that are inarguable).
The question before the Court, therefore, is whether the Eleventh Amendment appeal of Defendants Ridge and Horn raises any legal points which are arguable on their merits.
1. Seminole Tribe
Defendants Ridge and Horn contend that Seminole Tribe of Florida v. Florida, 134 L. Ed. 2d 252, 116 S. Ct. 1114 (1996), renders their Eleventh Amendment appeal nonfrivolous because it arguably bars Plaintiffs' action.
In Seminole Tribe, the Supreme Court of the United States disallowed a collateral, Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908),
suit when the federal statute which was allegedly transgressed -- and which was the subject of the Ex parte Young action -- itself contained a remedy for the violations: "where Congress has created a detailed remedial scheme for the enforcement of a particular right, we have, in suits against federal officers, refused to supplement that scheme with one created by the judiciary." Id. at 1132 (quotation and citation omitted).
Defendants Ridge and Horn argue that even though this Court disagreed in adjudicating the Motion to Dismiss, it is, nonetheless, arguable that the habeas framework contains a sufficiently "detailed remedial scheme" such that Seminole Tribe renders Ex parte Young inapplicable. I disagree.
Neither in the extensive briefing in support of their Motion to Dismiss, nor during oral argument
on the instant Motion, were Defendants Ridge and Horn able to point to a single provision of the habeas scheme -- including the Anti-Terrorism and Effective Death Penalty Act amendments thereto -- which would in any way permit Plaintiffs to learn whether Pennsylvania is an opt-in state and, by so learning, to know whether the longer or the shorter statue of limitations applies to their habeas appeals.
In their Brief in Opposition to Certification of the Eleventh Amendment Appeal as Frivolous, ("Defs.' Br."), Defendants Ridge and Horn expend considerable ink proving what the Court and Plaintiffs readily acknowledge: that the federal habeas regime contains a detailed remedial scheme. However, under the Supreme Court's teaching in Seminole Tribe, the proper inquiry is not whether the statute contains a detailed remedial scheme, but whether it contains a detailed remedial scheme for the vindication of the right which is the subject of the Ex parte Young suit. In this regard, I can confidently state that, even after the recent amendments, the habeas framework contains absolutely no provision which would enable Plaintiffs to vindicate their due process right to know which statute of limitations applies to death row habeas petitions. In fact, the habeas opt-in provisions of the Anti-Terrorism and Effective Death Penalty Act are so devoid of any remedy to vindicate that right, that to assert otherwise is simply inarguable; hence, frivolous.
2. Constitutional Right
Defendants Ridge and Horn argue, in the alternative, that their Eleventh Amendment appeal is not frivolous because, on review, analysis of the Eleventh Amendment issue necessarily requires revisiting the question as to whether Plaintiffs have "established the existence of any constitutional right at all." (Defs.' Br. at 10). In other words, because Plaintiffs' claim of "a due process right to know" is itself "arguable," Defendants Ridge and Horn contend that any appeal in which this question is scrutinized renders that appeal nonfrivolous.
I agree that whether there exists an underlying right to know in the instant case is arguable. Therefore, in weighing the argument of Defendants Ridge and Horn, the question is whether it is frivolous to suggest that, on appeal of an adverse Eleventh Amendment ruling, the circuit court will review the underlying constitutional right that forms the foundation for the application of Ex parte Young.
I believe the answer is no.
There is no case which squarely delineates the scrutiny to which the Third Circuit must subject interlocutory Eleventh Amendment appeals. A paragraph from the Supreme Court case Siegert v. Gilley, 500 U.S. 226, 111 S. Ct. 1789, 114 L. Ed. 2d 277, reh'g denied, 501 U.S. 1265, 111 S. Ct. 2920, 115 L. Ed. 2d 1084 (1991), however, is sufficient to prove that the position of Defendants Ridge and Horn on this matter is not frivolous. In Siegert, which dealt with the defense of qualified immunity, the Court noted that,
In Harlow we said that "until this threshold immunity question is resolved, discovery should not be allowed." A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is "clearly established" at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all. Decision of this purely legal question permits courts expeditiously to weed out suits which fail the test without requiring a defendant who rightly claims qualified immunity to engage in expensive and time consuming preparation to defend the suit on its merits. One of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.
111 S. Ct. at 1793 (emphasis added) (citations omitted). See also D.R. by L.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364, 1368 (3rd Cir. 1992), cert. denied, 506 U.S. 1079, 113 S. Ct. 1045, 122 L. Ed. 2d 354 (1993) (reviewing qualified immunity defense on appeal and stating that "the predicate question . . . [is] whether plaintiffs allege deprivation of any right secured by the constitution. We will, therefore, consider plaintiffs' allegations of constitutional error as they relate to all of the  defendants") (quotation and citation omitted).
On the strength of this paragraph, I cannot say that it is frivolous to suggest that a review of the Eleventh Amendment appeal of Defendants Ridge and Horn will entail an examination of the cognizability of the underlying constitutional right which Plaintiffs contend is being infringed.
For this reason, I cannot conclude that the Eleventh Amendment appeal of Defendants Ridge and Horn is frivolous.
B. Rule 62(c)
Plaintiffs last argument is that Fed. R. Civ. P. 62(c) gives this Court continuing jurisdiction to entertain their Motion for Preliminary Injunctive and Declaratory Relief Pending Appeal. The Rule provides, in relevant part, that
when an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.