Immunities & the Rest of the Collateral-Order Doctrine
In Amisi v. Brooks, the Fourth Circuit held that defendants can immediately appeal from the refusal to dismiss a claim as barred by the Virginia Workers’ Compensation Act. The court thought that the Act provided an immunity from litigation. And that, apparently, was all that was necessary for an appeal via the collateral-order doctrine. But are immunities sufficiently separate from the merits, as the collateral-order doctrine also purports to require?
Immunity & Appealability Under the Workers’ Compensation Act
Like most (all?) workers’ compensation schemes, Virginia’s provides relief for workplace injuries while barring certain common law claims. Relief under the Act does not require a showing of fault. But the Act also provides the exclusive remedy for injured employees. That is, relief under the Act replaces normal tort claims. So if a plaintiff brings a claim that falls within the Act’s scope, the employer has a rock-solid defense: the Act’s exclusivity provisions bar the claim.
The Fourth Circuit determined that denials of this defense are immediately appealable via the collateral-order doctrine. The court noted that “[d]ecisions denying immunity are often immediately appealable collateral orders.” And most Virginia decisions (particularly more recent ones) treated the Act as providing an immunity from suit. The Fourth Circuit seemed to think that was the end of the analysis:
Since Virginia law treats the exclusivity provision as conferring immunity from suit, the denial of summary judgment on this claim is a collateral order that we may review.
Where’s Separateness?
Something’s missing here: the collateral-order doctrine’s other requirements. To be appealable under the collateral-order doctrine, an order must (1) conclusively resolve an issue, (2) resolve an important issue that is separate from the merits, and (3) be effectively unreviewable in an appeal after a final judgment.
Immunities from litigation normally satisfy the third requirement. After all, the defense exists to shield litigants from the cost, inconvenience, and uncertainty that comes from litigation. So an appeal after a litigant has suffered those burdens is too late.
But the collateral-order doctrine also requires that the appealed issue be separate from the merits. This separateness requirement has been phrased different ways. Sometimes courts say that the appealed issue must be completely separate from the merits. Other times courts require only that the two be conceptually distinct.
Regardless, separation is required. And that makes sense. The separation requirement prevents duplicative appeals, wherein a court of appeals addresses the same (or even similar) factual and legal issues in two appeals. If an issue is separate from anything that might be appealed later on, there is no risk of such overlapping appeals. The separation requirement also prevents delays due to immediate appeals. If the appealed issues are separate from those that remain in the district court, litigation in that court can proceed without interruption.
Immunities aren’t always separate from the merits. They’re instead often defenses on the merits that involve significant factual and legal overlap. And because they provide an immunity from litigation, they often require staying district court proceedings during the appeal. Immunity appeals thus risk duplicative appellate review and delays in litigation. These appeals seem like a poor fit for the collateral-order doctrine.
This isn’t to say immunities should never be immediately appealable. Maybe they should be appealable at an appellate court’s discretion (and without an automatic stay of district court proceedings). But the collateral-order doctrine is a blunt, overbroad, and ill-suited instrument for immunity appeals.
Amisi v. Brooks, 2024 WL 718699 (4th Cir. Feb. 22, 2024), available at the Fourth Circuit and Westlaw
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More ContactRelated Posts
In Heidi Group, Inc.v. Texas Health and Human Services Commission, the Fifth Circuit reviewed the denial of federal and state immunities but declined to exercise pendent appellate jurisdiction over other issues. In the course of doing so, one judge questioned the collateral-order doctrine’s application to state immunities, and the entire court questioned the doctrine of […]
Continue reading....
The Supreme Court granted cert in GEO Group, Inc. v. Menocal. The case asks if defendants can immediately appeal from the denial of derivative sovereign immunity via the collateral-order doctrine. I wrote about the petition and the underlying circuit split earlier this year. And I wrote about the Tenth Circuit decision from which the petition stems […]
Continue reading....
In Grippa v. Rubin, the Eleventh Circuit addressed the immediate appealability of Florida’s absolute and qualified litigation privileges. The court determined that the absolute privilege was immediately appealable via the collateral-order doctrine. But the qualified litigation privilege was not.
Continue reading....
In New Albany Main Street Properties v. Watco Companies, LLC, the Sixth Circuit held that it could not review a decision granting leave to amend as part of a qualified-immunity appeal. The leave-to-amend decision was not itself immediately appealable. Nor could it tag along with the denial of immunity (which technically involved qualified immunity under […]
Continue reading....
In Ashley v. Clay County, the Fifth Circuit held that a municipal defendant could appeal a district court’s refusal to resolve an immunity defense despite the district court’s ordering arbitration.
Continue reading....Recent Posts
This month’s roundup features two decisions on litigants’ attempts to voluntarily dismiss some of their claims. In one, a defendant filed a written, pretrial notice that it abandoned one of its counterclaims. In another, the parties stipulated to a dismissal, but one defendant did not sign the stipulation. In both cases, the court deemed the […]
Continue reading....
In Gessele v. Jack in the Box Inc., the Ninth Circuit held that when a district court alters its judgment by granting a post-judgment motion, the time to appeal runs from the entry of an amended judgment. Unlike orders denying post-judgment motions, the appeal clock does not start with the order itself.
Continue reading....
In Simmons v. USI Insurance LLC, the Eleventh Circuit held that the purported abandonment of a counterclaim before trial was ineffective and thus precluded appellate jurisdiction. The counterclaim was the only theory of relief that had not been resolved at summary judgment or trial. And in a written notice before trial, the defendant had said […]
Continue reading....
September’s biggest development in federal appellate jurisdiction concerned appeals from denials of anti-SLAPP motions under California law. The Ninth Circuit overruled its longstanding rule that defendants can immediately appeal from these denials via the collateral-order doctrine. But only a week later, the Federal Circuit followed that now-overruled caselaw and heard an anti-SLAPP appeal. It will […]
Continue reading....
Last month saw the Ninth Circuit apply its rule that a minute order can count as a separate document for purposes of starting the appeal clock. The Sixth Circuit explained when it cannot review contract-formation issues in an arbitration appeal. And the Fourth Circuit declined to exercise pendent appellate jurisdiction over standing and ripeness issues […]
Continue reading....