Rebutting the Roberts Court: reinventing the collateral order doctrine through judicial decision-making.

Author:Harris, Michael E.

A civil procedure revival has quietly been underway since the inception of the Roberts Court in 2005. (1) Unnoticed and sweeping changes may be in the works following the "dramatic theoretical and doctrinal shifts" (2) resulting from the Court's rulings in more than twenty cases concerning core areas of civil procedure. (3) Even considering the civil procedure revolution that has gone largely undetected, far less attention has been drawn to the Roberts Court's decisions interpreting the Court's role in determining the scope of the collateral order doctrine. (4) The significance is practical as well as theoretical because the Court's redefined role in shaping the collateral order doctrine has a direct effect on the immediate appealability of pre-judgment orders issued in both civil and criminal cases on a daily basis.

To put the significance of the issue in context, imagine yourself as the attorney for an allegedly wrongfully terminated employee. (5) A district court has ordered you to disclose information concerning your client's pre-termination interview with his previous employer's attorney. You opposed such a disclosure on grounds of attorney-client privilege but were overruled. Considering the dilemma, you can identify only a few courses of action. (6)

First, you could disclose the information. That approach, however, may not only adversely affect your client but also constitute an ethical violation for a breach of the attorney-client privilege. Second, you could refuse to disclose the information. This course would certainly justify the court in issuing both a contempt order and sanctions. (7) Third, you could immediately appeal the disclosure order. There are various methods to pursue an immediate appeal; none of them, however, are likely to work.

In an increasingly small number of cases, an immediate appeal may be allowed under the certification procedures outlined in 28 U.S.C. [section] 1292(b). (8) Under the certification procedure you would first have to persuade the district court to certify the issue, by showing the appeal would involve '"a controlling question of law' the prompt resolution of which 'may materially advance the ultimate termination of the litigation.'" (9) Even then, you still must persuade the court of appeals to accept the appeal. An alternative route to an immediate appeal would be to attempt the herculean task of showing such an extraordinary circumstance of manifest injustice to persuade the court of appeals to issue a writ of mandamus. (10)

The last method of securing an immediate appeal is available only if the adverse disclosure order fell within "that small class" of cases that are exempted from the final judgment rule--those non-final orders qualifying as elite members of the collateral order doctrine. (11) Although the Supreme Court has determined that a public official may immediately appeal an order denying his immunity defense, (12) the Court has slammed the door on attempts to immediately appeal an adverse disclosure order. (13)

This hypothetical situation frequently occurs in courts throughout the country. The obvious hardship of a wrongfully imposed disclosure order coupled with the difficulty and unpredictability of securing an immediate appeal leaves both the attorney and the client in an unnecessarily precarious position. The question has been asked before, (14) but is worth asking again: why does our judicial system tolerate delayed appellate review of non-final orders, such as disclosure orders, but allow immediate appellate review of other orders, such as those concerning immunity defenses? The Court has provided a variety of attempted explanations and clarifications of its finality jurisprudence and the scope of the collateral order doctrine since its inception in 1949. (15) But only recently--under the Roberts Court's civil procedure revolution--has the Court resorted to invoking its rulemaking authority under 28 U.S.C. [section][section] 2072(c) and 1292(e) to steadfastly reject any novel attempts to expand the contours of the collateral order doctrine. (16)

In Mohawk Industries, the Supreme Court reaffirmed its principled refusal to expand the list of immediately appealable non-final orders. (17) The Court rested its conclusion on an interpretation that Sections 1292(e) and 2072(c) were designed as statutory limitations to prevent judicial expansion of the collateral order doctrine. (18) The Court mistakenly used the statutes as a shield, defying both legislative history and prudential concerns. (19) Instead, the Court should articulate a more flexible, balanced approach to the Cohen conditions (20)--emphasizing the implicit similarities to the standards of relief for a preliminary injunction--that would inevitably expand, through judicial decision-making, the currently settled, strict confines of the collateral order doctrine. (21)

This Note will focus on the Court's invocation of its rulemaking authority under Sections 1292(e) and 2072(c), specifically analyzing the merits of the Court's use of this authority as a shield to any attempted expansion of the collateral order doctrine. Part I provides a contextual background of the collateral order doctrine, tracking its trajectory of judicial expansion and contraction as an exception to the final judgment rule. Part II reviews the legislative history of Congress's grant of rulemaking authority to the Court and argues the Court is mistaken to interpret these sources as support for a bar on judicial expansion of the collateral order doctrine. Part III examines the codification of Rule 23(f) of the Federal Rules of Civil Procedure to explain how the collateral order doctrine is unsuited for codification as a federal rule and argues the Court should refrain from invoking its rulemaking authority even though Congress has granted it. Finally, Part IV proposes the collateral order doctrine is best understood and most useful as a flexible standard.


    1. The Final Judgment Rule

      "Do you have a final decision?" (22) Judge Aldisert posed this question to appellate litigators in his chapter on jurisdiction in Winning on Appeal, (23) Section 1291 of the United States Code grants jurisdiction to federal appellate courts "from all final decisions of the district courts ... except where a direct review may be had in the Supreme Court." (24) The Supreme Court has described a final decision as one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment," (25) or similarly, those decisions that "trigger the entry of judgment." (26) Because the final judgment rule has been the "heart of appellate jurisdiction in the federal system" for over two centuries, Judge Aldisert sensibly presented this as his first question to litigators considering bringing an appeal. (27)

      The policy justifications for the final judgment rule are, in a broad sense, matters of judicial efficiency and preservation of the traditional trial process. (28) Preventing piecemeal litigation is often seen as a means of promoting judicial efficiency and respecting the traditional role of the trial judge. (29) According to this rationale, the cost of a wrong decision by a trial judge is typically outweighed by either the benefit provided by uninterrupted trial proceedings or the assurance that the issue is adequately reviewable through alternatives to an immediate appeal. (30) The Supreme Court has also expressed a fear that immediate appealability of non-final orders may be used as a harassment tool by a litigant seeking to increase the time and cost of litigation at the expense of the opposing party. (31)

      The final judgment rule, however, also has flaws. In its attempt to strike a balance between efficient judicial administration, deference to the lower courts, and litigant protection, the final judgment rule often produces a disparate impact on parties. Judge Aldisert recognized such an impact and advised practitioners accordingly: "If it appears that you lack finality, argue the justice side. If it appears that your opponent has prematurely brought an appeal, argue the inconvenience and costs of piecemeal review side." (32) Based on these concerns, the 1949 Supreme Court addressed the practical effects of the balance struck by the final judgment rule--in favor of deference and efficiency. The Court invented the collateral order doctrine to shift that balance.

    2. The Collateral Order Doctrine's Inception as a Judicial Invention

      The Supreme Court, recognizing the hardships occasionally resulting from the final judgment rule, (33) carved out an exception to the rule when it decided Cohen v. Beneficial Industrial Loan Corp. (34) In that case, the Court held that a district court's ruling that it was not bound to apply a state law requiring the plaintiffs in a shareholder derivative action to post a bond before proceeding to trial was immediately appealable. (35) In reaching its decision, the Court gave the term "final disposition" a practical rather than strictly technical definition--and, in doing so, invented the collateral order doctrine. (36) It reasoned that this decision fell into "that small class" of cases which warrant an exception from the final judgment rule because it "finally determine[d] 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." (37)

      This decision, and the other "small class" of cases exempted from the final judgment rule were now members of the collateral order doctrine. Subsequent courts broke the broad formulation devised by the Supreme Court into three--sometimes four--separate conditions that a litigant must satisfy before an appellate court...

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