Questioning the Collateral-Order Doctrine & Pendent Appellate Jurisdiction

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 pendent appellate jurisdiction.

The Appeal in Heidi Group

Simplifying a fair bit, Heidi Group stemmed from an alleged conspiracy to steal documents from cloud storage. The plaintiff sought relief under both the Fourth Amendment and Texas law, and it sued some defendants in both their individual and official capacities.

The defendants sought judgment on the pleadings. They raised immunity defenses to some of the federal and state theories of relief. And they argued that the other theories (to which immunity defenses did not apply) failed on their merits.

The district court denied judgment on the pleadings. The defendants then appealed from the denial of qualified and state-law immunity. And in that appeal, the defendants also sought review of the district court’s order on the theories to which immunities didn’t apply.

Questioning Rules of Appellate Jurisdiction

The Fifth Circuit said that it had jurisdiction over the immunity issues. But couldn’t or wouldn’t exercise pendent-appellate jurisdiction over the remaining issues. And the court raised some questions about both of these appellate-jurisdiction doctrines.

Questioning Collateral-Order Jurisdiction Over State Immunities

The Fifth Circuit said that it had jurisdiction to review the denial of qualified immunity via the collateral-order doctrine, as “[o]ders denying qualified immunity are classic collateral orders.” Following Fifth Circuit precedent, the court also said that it had jurisdiction to review the denial of official immunity under Texas law.

In a footnote that two of the panel members didn’t join, Judge Oldham (the opinion’s author) questioned the application of the collateral-order doctrine to state immunities. He noted that “[t]he collateral-order doctrine is an atextual exception to the longstanding final-judgment rule embodied in 28 U.S.C. § 1291.” And for an order to be appealable under that doctrine, it must involve issues that are too important to delay review.

That too-important requirement is satisfied, Judge Oldham thought, when it comes to federal immunities. Those immunities present “a federal interest in federal courts ensuring they are not undermined.”

“But,” he continued, “there is no apparent federal interest—at least not one making the issues ‘too important to be denied review’—involved in the denial of state-law immunities.” After all, those immunities do not derive from a federal statutory or constitutional guarantee against the burdens of trial.

Questioning All of Pendent Appellate Jurisdiction

As the other theories of relief, the court held that it lacked pendent appellate jurisdiction. One theory, the court determined, was not intertwined with the appealable issues, nor did it overlap with those issues. And while there was some overlap with another theory, the court thought that the theory presented sufficiently distinct issues as to warrant declining the exercise of pendent appellate jurisdiction.

In a footnote joined by the entire panel, the court also questioned the doctrine of pendent appellate jurisdiction. The court noted that “neither 28 U.S.C. § 1291 nor § 1292 provides a plausible textual hook for the doctrine of pendent appellate jurisdiction.” The doctrine also conflicts with the normally limited view of federal jurisdiction. The court added that this tension with text and policy “is further exacerbated when pendent appellate jurisdiction would serve as a prophylactic to the already prophylactic collateral-order doctrine.” The Supreme Court has accordingly “suggested ‘pendent appellate jurisdiction in [the] collateral-order context would undermine § 1292(b).’” (Quoting Microsoft Corp. v. Baker.)

Worthy of Questioning

As someone who has doubts about both the collateral-order doctrine and pendent appellate jurisdiction, it was nice to see someone questioning them. But my concerns are a bit different from those expressed in Heidi Group. The problem with the collateral-order doctrine, as I see it, is the tendency to overlook the doctrine’s separateness requirement when dealing with so-called immunities. And pendent appellate jurisdiction is rarely—if ever—necessary. It’s also impractical given the lack of any way to determine the scope of an appeal in advance of full briefing.

Heidi Group, Inc. v. Texas Health and Human Services Commission, 2025 WL 1509395 (5th Cir. May 28, 2025), available at the Fifth Circuit and Westlaw