Appellate Review of Collateral Orders Under Federal and Colorado Law

Publication year2014
CitationVol. 43 No. 12 Pg. 69
43 Colo.Law. 69
Appellate Review of Collateral Orders Under Federal and Colorado Law
Vol. 43, No. 12 [Page 69]
The Colorado Lawyer
December, 2014

Columns Appellate Practice

Appellate Review of Collateral Orders Under Federal and Colorado Law

By Marcy G. Glenn

This Appellate Practice column will publish quarterly, usually in the January, April, June, and November issues. Marcy G. Glenn (, Christina F. Gomez (, and Stephen G. Masciocchi ( are partners with the law firm of Holland & Hart LLP and are members of the firm's Appellate Practice Group. They serve as column co-editors and alternate writing practical, how-to articles that may be based on recent decisions from the Colorado Supreme Court, the Colorado Court of Appeals, the U.S. Supreme Court, or the Tenth Circuit. Reader feedback is welcome.

About the Author

Marcy G. Glenn is a partner in the appellate Practice Group at Holland & Hart LLP. For more than thirty years, she has litigated appeals in the U.S. Supreme Court, federal courts of appeals, the Colorado appellate courts, and other states' appellate courts. Glenn also regularly handles complex trial-level briefing— mglenn@hollandhart. com.

"One of these things is not like the other. "[1]

Many similarities exist between federal and Colorado law regarding appellate jurisdiction over interlocutory appeals. However, the Colorado appellate courts have not wholly embraced one well-established basis for federal appellate review of an order before the completion of all proceedings on the merits in the district court: the collateral order doctrine. This article considers the federal collateral order doctrine and decisions of the Colorado Supreme Court and Colorado Court of Appeals that address this doctrine. It suggests a need for clarification of the extent to which the collateral order doctrine permits immediate appeals in particular types of cases in Colorado.

Similarities in Federal and Colorado Interlocutory Appeals

There are numerous parallels between federal and Colorado law conferring appellate jurisdiction over final judgments and interlocutory orders.[2] Both bodies of law generally give appellate courts jurisdiction to hear appeals from final judgments,[3] and both use a similar, common-sense definition of a district court's final judgment—one "that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment."[4]

Both federal and Colorado law provide several similar bases for interlocutory appeals of orders that would not be final judgments under that definition. For example:

• Both federal and Colorado law authorize interlocutory appeals as of right from specified classes of orders, including orders granting or denying injunctions,[5] orders relating to the appointment of receivers,[6] and orders regarding arbitration.[7]

• Under similar, though not identical, statutes and rules, federal and Colorado intermediate appellate courts—the U.S. courts of appeals and the Colorado Court of Appeals—have discretionary jurisdiction over certain interlocutory appeals, upon certification by the district court that the order involves a controlling and unresolved question of law and that an immediate appeal may lead to a final termination of the litigation.[8]

• Under both federal and Colorado law, parties may file discretionary appeals from orders concerning class certification.[9]

• Under extraordinary circumstances, both federal courts of appeals and the Colorado Supreme Court may exercise their respective original jurisdiction to review interlocutory orders. [10]

• Under virtually identical federal and Colorado versions of Civil Rule of Procedure 54(b), parties have the right to take immediate appeals where the district court has directed the entry of a final judgment as to one or more but fewer than all of the claims or parties.[11]

However, there are significant differences between federal and Colorado law concerning the extent to which the collateral order doctrine may permit immediate appeals.

The Federal Collateral Order Doctrine

The collateral order doctrine developed as "an expansive interpretation of the finality requirement"[12] under 28 USC § 1291, the statute that vests federal courts of appeals with jurisdiction to review "final decisions of the district courts." The U.S. Supreme Court first adopted the doctrine in 1949, in Cohen v. Beneficial Industrial Loan Corp.[13] The Court recognized a class of immediately appealable orders, which it described as "finally determin[ing] claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated."[14] Over the years, the Court has refined the elements to require that an appealable collateral order (1) "conclusively determine the disputed question," (2) "resolve an important issue completely separate from the merits of the action," and (3) "be effectively unreviewable on appeal from a final judgment."[15]

With the exception of appeals from orders denying dispositive motions based on immunity issues, discussed below, over the years, the Court has tended toward restriction of the collateral order doctrine. For example, in Mohawk Industries, Inc. v. Carpenter,[16] the Court emphasized that "Cohen’s collateral order doctrine . . . must ‘never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment is entered.’"[17] The Court described its admonition as reflecting "a healthy respect for the virtues of the final-judgment rule[,]" because " [p]ermitting piecemeal, prejudgment appeals . . . undermines ‘efficient judicial administration’ and encroaches upon the prerogatives of district court judges, who play a ‘special role’ in managing ongoing litigation."[18] In its more recent decisions, the Court has emphasized Congressional intent that "rulemaking, ‘not expansion by court decision’" would be "the preferred means for determining whether and when prejudgment orders should be immediately appealable."[19]

Federal Orders Deemed to be Collateral Orders

Over the past sixty-five years, the Court has recognized the following orders, among others, as collateral orders that satisfy the three Cohen elements:

• an order requiring the plaintiffs to post a substantial bond, under a state statute, to proceed with a shareholder derivative action filed in federal court[20]

• an order vacating the attachment of a vessel that would have provided the only effective means of implementing a decree in an admiralty action[21]

• an order imposing on the defendants 90% of the costs of providing notice to class members in a class action[22]

• an order remanding a case to a state court based on abstention[23]

• an order denying a pretrial motion to dismiss an indictment on double jeopardy grounds.[24]

The federal courts of appeals have invoked the doctrine to review a variety of other purportedly collateral orders, including many that are likely beyond the limited scope articulated in Mohawk and other Supreme Court decisions.[25]

Federal Orders Held Not to be Collateral Orders

The Court has rejected collateral order arguments in attempted interlocutory appeals from many other types of orders, including:

• an order requiring the disclosure of purportedly privileged information[26]

• an order rescinding a settlement agreement and vacating the voluntary dismissal of the litigation[27]

• an order denying class certification;[28]

• an order denying a government agent’s motion to dismiss based on the judgment bar provision of the Federal Tort Claims Act.[29]

In addition, the Court has consistently held that orders on motions to disqualify opposing counsel must await appeal until the conclusion of the cases on the merits, regardless of whether the orders grant or deny disqualification, and in both the civil and criminal contexts.[30] However, in United States v. Bolden, the Tenth Circuit held that the district court’s disqualification of an entire U.S. Attorney’s Office "implicates separation of powers concerns that were not at issue" in the Supreme Court’s disqualification cases, and that those separation of powers issues satisfied each of the three Cohen prerequisites for collateral order designation.[31]

Federal Orders on Immunity

The vast majority of collateral order jurisprudence concerns orders denying dispositive motions on the basis of immunity from suit. Based largely on the principle that most constitutional and statutory immunities are intended to protect a defendant from suit, as well as from liability-and, therefore, that the immunity’s protection "is effectively lost if a case is erroneously permitted to go to trial"[32]-the Supreme Court and the Tenth Circuit have deemed the following types of orders as falling within the collateral order doctrine:

• an order denying a motion to dismiss an indictment of a former member of Congress based on immunity under the U.S. Constitution’s Speech or Debate Clause[33]

• an order denying a motion for summary judgment based on absolute immunity in a USC § 1983 civil rights action[34]

• an order denying a motion for summary judgment based on qualified immunity in a § 1983 action[35]

• an order denying a motion to dismiss a breach of contract claim...

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