2nd Circuit Demands Briefs on Jurisdiction in N.Y. Affordable Broadband Case

New York state and ISP associations must file supplemental briefs on whether the 2nd U.S. Circuit Court of Appeals has appellate jurisdiction over the lower court’s final judgment that the parties negotiated, the court ordered Friday. In the challenge of New York’s Affordable Broadband Act (ABA), the state told the court last week that the stipulated final decision was appealable (see 2301200029). Judges grilled New York on the question at a hearing earlier this month (see 2301120041). To clear an appeals path, the New York attorney general in July 2021 reached agreement with ISP plaintiffs that the state reserved appeal rights but would not to enforce its law (see 2107230044). They agreed the court’s holdings on preemption in a June 11 preliminary injunction order resolved legal issues and should be used as a final judgment. In Monday’s order, judges asked if the state’s agreement to be “permanently enjoined from enforcing” the ABA was “an ‘intentional relinquishment’ of Defendant-Appellant’s claim to be free from such an injunction?” It asked if any “defect in appellate standing” was cured by the stipulated judgment saying the state reserved all rights to appeal. Also, the court wonders if the stipulated judgment lacked “finality … insofar as Plaintiffs-Appellees voluntarily dismissed their claim” without prejudice. Briefs will be due Jan. 30, the court said.