Defense, Not Immunity: The Supreme Court Narrows Collateral Order Appeals in Menocal

Under the “final judgment” rule, parties generally must wait until judgment is entered before they can appeal an adverse decision. One notable exception is the collateral order doctrine—a judge‑made rule that allows parties to immediately appeal certain final decisions that are “collateral” to the merits. To be appealable under this doctrine, an order must “(1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.” Van Cauwenberghe v. Biard, 486 U.S. 517, 522 (1988). Defendants frequently invoke this doctrine to appeal orders that deny a claim of immunity, which the Supreme Court has long deemed a collateral order under its three-prong test. Thus, whether a case involves an immunity or a more run-of-the-mill legal defense can be dispositive as to whether an immediate appeal is permissible.

Read the full blog post.