The Fourth Circuit suggested that a defense’s providing an immunity from litigation is enough for the collateral-order doctrine. But what about the doctrine’s other requirements, particularly separateness?
February 27, 2024
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