Collateral Orders

By Mike Dorf

Per tradition, the first full opinion assigned to a new Justice--in this case Justice Sotomayor--was in a unanimous case.  On Tuesday, the Court handed down Mohawk Industries Inc. v. Carpenter.   The case involves the scope of the "collateral order" doctrine.  I'll provide a very abbreviated intro to the issue and then a few observations.


Modern federal court litigation is often a very complex undertaking, in which a district judge will make very many rulings both before and during trial.  Some of these rulings could turn out to be wrong but if a party objects to any particular ruling, he, she or it usually does not get to appeal right away.  The aggrieved party must wait until the whole case is over and then, if unhappy with the final result, appeal based upon whichever of the alleged errors the party thinks contributed to losing the case.  This is called the "final judgment rule" (FJR) and it's codified here.  The reason for the FJR is obvious upon a moment's reflection: If the entire district court case had to stop for an appeal whenever any party was dissatisfied with a district court ruling, a case would bump back and forth between the district court and the appeals court potentially dozens of times.  Cases would take way too long to litigate.  (They already take way too long, so w/o the FJR they would take way way way too long.)

That said, there are occasions when an immediate appeal is appropriate, and the legal system has a number of mechanisms for dealing with this: Notwithstanding the FJR, another provision authorizes a district court to certify a difficult question for interlocutory appeal, which the appeals court then has discretion to entertain.  This procedure makes sense, for example, when the district court fears holding a lengthy trial based on a preliminary ruling that could be reversed, thereby necessitating a second lengthy trial.  In addition, an aggrieved party need not wait until final judgment to seek a writ of mandamus from an appeals court effectively reversing a district court ruling, where the latter is a clear abuse of discretion or manifest injustice.  This too is a discretionary remedy.

Yet another means of obtaining review before final judgment is under the judge-made "collateral order" doctrine.  Here the idea is that some issue is wholly collateral to, and separate from the merits of the underlying claim AND that the party seeking to appeal cannot vindicate his or her underlying rights by waiting until the end of the whole case.  A classic example is double jeopardy.  Suppose a trial court rejects a criminal defendant's argument that trying him for crime X would violate his right against double jeopardy because he has already been acquitted of crime Y, which, he claims, is effectively the same.  The double jeopardy ruling is not a final judgment, because there hasn't yet been a trial on the charge of X.  Nonetheless, the defendant gets to appeal the ruling under the collateral order doctrine because the right against double jeopardy is understood specifically as a right against HAVING TO STAND TRIAL AT ALL.  There is no way to vindicate that right after a trial.

Observations on the Mohawk Case

1) The issue in Mohawk was whether a district court ruling that a party waived the attorney-client privilege (ACP) falls within the collateral order doctrine.  The argument for so finding is straightforward enough: The ACP does not merely protect against the introduction of privileged statements into evidence; it protects against their disclosure.  Thus, once the assertedly privileged info has been disclosed, there's no way to "undisclose" it.  Nonetheless, the Supreme Court rejected this argument, and not just for waiver questions but for all cases in which it is argued that a district court erroneously denied a claim of ACP.

2) To my mind, a key portion of Justice Sotomayor's opinion is illogical.  She makes a great deal out of the fact that the collateral order doctrine is not the sole means of obtaining review before final judgment, citing discretionary interlocutory review, mandamus, and the possibility that a party can defy a disclosure ruling, and then obtain review in the course of an adjudication of sanctions, including the possibility of contempt.  The reason I find reliance on these alternatives illogical is that they are ALWAYS alternatives.  The point of the collateral order doctrine's focus on whether an interest can be vindicated post-judgment is to determine whether the party has a (statutory) right to pre-final-judgment review, under the collateral order rule.  If the possibility of discretionary review under some other mechanism or of review via contempt were sufficient to defeat this claim under the collateral order rule, then it would be sufficient to defeat every claim under the collateral order rule.  A criminal defendant seeking to appeal an adverse double jeopardy ruling, or a state seeking to appeal an adverse sovereign immunity ruling, could also try to take advantage of discretionary review, mandamus, or contempt.  But they don't have to because the Court has held that they ARE entitled to review under the collateral order doctrine.

3) The real concern of the Court appears to be a worry about floodgates.  District courts decide a lot of privilege issues and if they're all going to be reviewable as collateral, then that will undermine the FJR.  The petitioner had argued that this concern was fanciful--that there was no flood of collateral review of privilege decisions in the circuits that had allowed such review--but the majority brushed that aside by saying that it was too early to know this.  I suspect as well that the Court saw no good basis for distinguishing ACP claims from other privilege claims, and so thought that the floodgates really might have opened up.

4) [Finally, a point that was suggested by a number of my civil procedure colleagues from around the country who take part in a civil procedure listserve:] There is in the subtext of the opinion some hint of Justice Sotomayor's experience as a district court judge.  A district court's ruling is likely to be upheld and, we can imagine her thinking, even if it's reversed, that doesn't mean the appeals court was right and the district court wrong in any deep sense.  So, she says, the game isn't worth the candle, especially given what a nuisance collateral order review is for a district judge trying to move cases on her docket along.  And a district judge who doesn't mind the intrusion can always grant her discretionary permission for an interlocutory appeal (which the appeals court can then take if it's really gung ho on reversing).  So this turns out to be a very fitting first opinion for the only current Justice who spent time as a district judge.