Monday, February 9, 2015

Seventh Circuit: Collateral-Order Doctrine Did Not Apply Because District Court’s Denial of Summary Judgment Was Not Effectively Unreviewable on Appeal From Final Judgment

By Myriam Zreczny Kasper
Chief Assistant Corporation Counsel, Appeals Division, City of Chicago Department of Law

In Herx v. Diocese of Fort Wayne-South Bend, Inc., 772 F.3d 1085 (7th Cir. 2014), the United States Court of Appeals for the Seventh Circuit dismissed for lack of jurisdiction the interlocutory appeal of the Diocese from the order denying its motion for summary judgment, holding that the collateral-order doctrine did not apply because the order was not effectively unreviewable on appeal from a final judgment. Id. at 1090-92.

Herx worked as a teacher for a Catholic school. Herx, 772 F.3d at 1086. She was discharged because she underwent in vitro fertilization in violation of the moral teaching of the Catholic Church. Id. at 1087. Herx sued, and the Diocese moved for summary judgment. Id. The district court denied summary judgment in part. Id. The Diocese filed an interlocutory appeal, invoking the collateral-order doctrine of appellate jurisdiction, and Herx moved to dismiss the appeal. Id. at 1088. 

The Seventh Circuit granted Herx’s motion and dismissed the appeal. The reviewing court explained that the collateral-order doctrine “confers finality – and thus immediate appealability -- on a small category” of interlocutory orders. Herx, 772 F.3d at 1088. There are three “stringent” conditions for collateral-order review. Id. at 1089. It requires: “(1) a conclusive decision; (2) on an important issue that is conceptually separate from the merits ... (3) that is effectively unreviewable on an appeal from a final judgment.” Id. In determining whether these requirements are met, the court does not engage in an “individualized jurisdictional inquiry,” but focuses instead “on the entire category to which a claim belongs.” Id. Citing United States Supreme Court precedent, the court emphasized that the doctrine is “narrow” and “modest” in scope. Id. The court explained that the categories of claims to which the doctrine has been applied are those that involve an immunity from trial, such as a public official’s claims of absolute or qualified immunity, a State’s claim of Eleventh Amendment immunity, a foreign government’s claim of sovereign immunity, or an order denying a criminal defendant’s claim of double jeopardy. Id.

The Seventh Circuit focused on the third condition – whether the challenged order would be effectively unreviewable on appeal after final judgment – and explained that the Supreme Court has held that the “crucial question” is “whether deferring review until final judgment so imperils” the interest at stake “as to justify the cost of allowing immediate appeal of the entire class of relevant orders.” Id. at 1090 (citations and internal quotation marks omitted). In cases where collateral-order review has been allowed, the court explained, “some particular value of a high order was marshaled in support of the interest in avoiding trial,” including “honoring the separation of powers, preserving the efficiency of government and the initiative of officials, respecting a State’s dignitary interests, and mitigating the government’s advantage over the individual.” Id. (citations and internal quotation marks omitted). 

The Seventh Circuit held that the Diocese’s appeal failed to satisfy this third condition. Although the Diocese had asserted important statutory and constitutional rights in defense against Herx’s claims, it could not assert any immunity from the burdens of trial. Herx, 772 F.3d at 1091. The court also rejected the Diocese’s argument that collateral-order review was necessary to avoid an encroachment on its First Amendment interests in religious liberty, explaining that the district court had not ordered a religious question submitted to the jury and would instruct the jury accordingly. Id. Thus, none of the interests the Diocese asserted would be irreparably harmed by enforcing the ordinary rule that appeals may be taken only after final judgment. Id. at 1091-92.

Because the district court’s decision was not effectively unreviewable after final judgment, the collateral-order doctrine did not apply, and the court dismissed the appeal for lack of jurisdiction. Herx, 772 F.3d at 1092.

Recommended Citation: Myriam Zreczny Kasper, Seventh Circuit: Collateral-Order Doctrine Did Not Apply Because District Court’s Denial of Summary Judgment Was Not Effectively Unreviewable on Appeal From Final JudgmentThe Brief, (February 9, 2015),

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