OCTOBER TERM, 1994
Syllabus
SWINT ET AL.
v. CHAMBERS COUNTY COMMISSION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 93-1636. Argued January 10, 1995-Decided March 1, 1995
In the wake of police raids on a nightclub in Chambers County,
Alabama, two of the club's owners joined by an employee and a
patron (all petitioners here) sued respondent Chambers County
Commission, along with a municipality and three individual police
officers; petitioners sought damages and other relief under 42 U.
S. C. § 1983 for alleged civil rights violations. The District
Court denied the summary judgment motions of all five defendants,
ruling,
inter alia, that the individual officers were not
entitled to qualified immunity from suit and that the sheriff who
authorized the raids, although a state employee, may have been the
county's final policymaker for law enforcement. The District Court
stated that it would rule dispositively on the county's liability
before jury deliberations. Invoking the rule that an order denying
qualified immunity is appealable before trial,
Mitchell v.
Forsyth, 472
U. S. 511, 530, the individual defendants immediately appealed.
The county commission also appealed, arguing that the denial of its
summary judgment motion was immediately appealable as a collateral
order satisfying the test announced in
Cohen v.
Beneficial Industrial Loan Corp., 337 U. S. 541, 546, and,
alternatively, that the Eleventh Circuit had "pendent appellate
jurisdiction" to decide the questions presented by the commission.
The Eleventh Circuit rejected the county commission's first
argument, but asserted pendent jurisdiction over the commission's
appeal. Determining that the sheriff was not a policymaker for the
county, the Eleventh Circuit held that the county commission
qualified for summary judgment.
Held: The Eleventh Circuit lacked jurisdiction to rule on
the county commission's liability at this interlocutory stage of
the litigation and, accordingly, should have dismissed the
commission's appeal. Pp.41-51.
(a) The order denying the county commission's summary judgment
motion was not an appealable collateral order under
Cohen,
supra, at 546, which allows immediate appeal from decisions
that are conclusive, resolve important questions separate from the
merits, and are effectively unreviewable on appeal from final
judgment. The order in question fails this test because it was
tentative, the District Court having announced its intention to
revisit its initial determination. Moreover,
36
Syllabus
the order is effectively reviewable after final judgment,
because the commission's assertion that the sheriff is not its
policymaker ranks solely as a defense to liability, not as an
immunity from suit that is effectively lost if the case is
erroneously permitted to go to trial. See
Mitchell, supra,
at 526. Pp. 41-43.
(b) There is no "pendent party" appellate jurisdiction of the
kind the Eleventh Circuit purported to exercise. Although that
court unquestionably had jurisdiction immediately to review the
denial of the individual officers' summary judgment motions, it did
not thereby gain authority to review at once the unrelated question
of the county commission's liability. The parties' arguments to the
contrary drift away from the statutory instructions Congress has
given to control the timing of appellate proceedings. In
particular, 28 U. S. C. § 1292(b) confers on district courts first
line discretion to certify for immediate appeal interlocutory
orders deemed pivotal and debatable; this provision grants to the
court of appeals discretion to review only orders first certified
by the district court. If courts of appeals had jurisdiction of the
type here claimed by the Eleventh Circuit, § 1292(b)'s two-tiered
arrangement would be severely undermined. Furthermore, provisions
Congress passed in 1990 and 1992, 28 U. S. C. § 2072(c) and 28 U.
S. C. § 1292(e), designate the rulemaking process as the way to
define or refine when a district court ruling is "final" and when
an interlocutory order is appealable. These legislative provisions
counsel resistance to expansion of appellate jurisdiction by court
decision.
Abney v.
United States, 431 U. S. 651, 662-663,
and
United States v.
Stanley, 483 U. S. 669, 676-677,
securely support the conclusion that the Eleventh Circuit lacked
jurisdiction to review the denial of the county commission's
summary judgment motion. Although the parties are correct that this
Court has not universally required courts of appeals to confine
review to the precise decision independently subject to review, the
Court need not definitively or preemptively settle here whether or
when it may be proper for a court of appeals with jurisdiction over
one ruling to review, conjunctively, related rulings that are not
themselves independently appealable. The parties do not-indeed
could not-contend that the District Court's decision to deny the
commission's motion on the ground that the sheriff may have been a
county policymaker was inextricably intertwined with that court's
decision to deny the individual defendants' qualified immunity
motions, or that review of the former decision was necessary to
ensure meaningful review of the latter. Pp. 43-51.
5 F.3d
1435 and
11 F.3d
1030, vacated in part and remanded.
GINSBURG, J., delivered the opinion for a unanimous Court.
37
Robert B. McDuff argued the cause for petitioners. With him on
the briefs were Carlos A. Williams, Bryan Stevenson, and Bernard
Harcourt.
Paul R.
Q. Wolfson argued the cause for the United States
as amicus curiae in support of petitioners. On the brief were
Solicitor General Days, Assistant Attorney General Patrick, Deputy
Solicitor General Bender, Beth S. Brinkmann, Jessica Dunsay Silver,
and Linda F. Thome.
Paul M. Smith argued the cause for respondents. With him
on the brief for respondent Chambers County Commission were
Bruce J. Ennis, Donald B. Verrilli, Jr., James W
Webb, Kendrick E. Webb, and
Bart Harmon. *
JUSTICE GINSBURG delivered the opinion of the Court.
In the wake of successive police raids on a nightclub in
Chambers County, Alabama, two of the club's owners joined by an
employee and a patron (petitioners here) sued the Chambers County
Commission (respondent here), the city of Wadley, and three
individual police officers. Petitioners sought damages and other
relief, pursuant to 42 U. S. C. § 1983, for alleged civil rights
violations. We granted certiorari to review the decision of the
United States Court of Appeals for the Eleventh Circuit, which held
that the Chambers County Commission qualified for summary judgment
because the sheriff who authorized the raids was a state executive
officer and not an agent of the county commission. We do not reach
that issue, however, because we conclude
*J. Michael McGuinness filed a brief for the Southern
States Police Benevolent Association as
amicus curiae urging
reversal.
Briefs of
amici curiae urging affirmance were filed for
Jefferson County, Alabama, by
Charles S.
Wagner; and
for the National Association of Counties et al. by
Richard
Ruda.
Mitchell F. Dolin, T. Jeremy Gunn, Steven R. Shapiro, Michael A.
Cooper, Herbert
J. Hansell, Norman Redlich, Thomas
J.
Henderson, and Sharon R. Vinick filed a brief for the American
Civil Liberties Union et al. as amici curiae.
38
that the Eleventh Circuit lacked jurisdiction to rule on the
county commission's liability at this interlocutory stage of the
litigation.
The Eleventh Circuit unquestionably had jurisdiction to review
the denial of the individual police officer defendants' motions for
summary judgment based on their alleged qualified immunity from
suit. But the Circuit Court did not thereby gain authority to
review the denial of the Chambers County Commission's motion for
summary judgment. The commission's appeal, we hold, does not fit
within the "collateral order" doctrine, nor is there "pendent
party" appellate authority to take up the commission's case. We
therefore vacate the relevant portion of the Eleventh Circuit's
judgment and remand the case for proceedings consistent with this
opinion.
I
On December 14, 1990, and again on March 29, 1991, law
enforcement officers from Chambers County and the city of Wadley,
Alabama, raided the Capri Club in Chambers County as part of a
narcotics operation. The raids were conducted without a search
warrant or an arrest warrant. Petitioners filed suit, alleging,
among other claims for relief, violations of their federal civil
rights. Petitioners named as defendants the county commission; the
city of Wadley; and three individual defendants, Chambers County
Sheriff James C. Morgan, Wadley Police Chief Freddie Morgan, and
Wadley Police Officer Gregory Dendinger.
The five defendants moved for summary judgment on varying
grounds. The three individual defendants asserted qualified
immunity from suit on petitioners' federal claims. See
Anderson v.
Creighton, 483 U. S. 635, 639 (1987)
(governmental officials are immune from suit for civil damages
unless their conduct is unreasonable in light of clearly
established law). Without addressing the question whether Wadley
Police Chief Freddie Morgan, who participated in the
39
raids, was a policymaker for the municipality, the city argued
that a
respondeat superior theory could not be used to hold
it liable under § 1983. See
Monell v.
New York City Dept.
of Social Servs., 436 U. S. 658, 694 (1978)
(a local government may not be sued under § 1983 for injury
inflicted solely by its nonpolicymaking employees or agents). The
Chambers County Commission argued that County Sheriff James C.
Morgan, who authorized the raids, was not a policymaker for the
county.
The United States District Court for the Middle District of
Alabama denied the motions for summary judgment. The District Court
agreed that § 1983 liability could not be imposed on the city for
an injury inflicted by a nonpolicymaking employee; that court
denied the city's summary judgment motion, however, because the
city had failed to argue that Wadley Police Chief Freddie Morgan
was not its policymaker for law enforcement. Regarding the county
commission's motion, the District Court was "persuaded by the
Plaintiffs that Sheriff [James C.] Morgan may have been the final
decision-maker for the County in ferreting out crime, although he
is a State of Alabama employee." App. to Pet. for Cert. 67a. The
District Court later denied the defendants' motions for
reconsideration, but indicated its intent to revisit, before jury
deliberations, the question whether Sheriff Morgan was a
policymaker for the county:
"The Chambers County Defendants correctly point out that whether
Sheriff James Morgan was the final policy maker is a question of
law that this Court can decide. What th[is] Court decided in its
[prior order] was that the Plaintiffs had come forward with
sufficient evidence to persuade this Court that Sheriff Morgan may
be the final policy maker for the County. The parties will have an
opportunity to convince this Court that Sheriff Morgan was or was
not the final policy maker
40
for the County, and the Court will make a ruling as a matter of
law on that issue before the case goes to the jury." Id., at
72a.
Invoking the rule that an order denying qualified immunity is
appealable before trial,
Mitchell v.
Forsyth,
472 U. S. 511,
530 (1985), the individual defendants immediately appealed. The
city of Wadley and the Chambers County Commission also appealed,
arguing, first, that the denial of their summary judgment
motions-like the denial of the individual defendants' summary
judgment motions-was immediately appealable as a collateral order
satisfying the test announced in
Cohen v.
Beneficial
Industrial Loan Corp., 337 U. S. 541, 546 (1949) (decisions
that are conclusive, that resolve important questions apart from
the merits of the underlying action, and that are effectively
unreviewable on appeal from final judgment may be appealed
immediately). Alternatively, the city and county commission urged
the Eleventh Circuit Court of Appeals to exercise "pendent
appellate jurisdiction," a power that court had asserted in earlier
cases. Stressing the Eleventh Circuit's undisputed jurisdiction
over the individual defendants' qualified immunity pleas, the city
and county commission maintained that, in the interest of judicial
economy, the court should resolve, simultaneously, the city's and
commission's appeals.
The Eleventh Circuit affirmed in part and reversed in part the
District Court's order denying summary judgment for the individual
defendants.
5 F.3d
1435, 1448 (1993), modified,
11 F.3d
1030, 1031-1032 (1994). Next, the Eleventh Circuit held that
the District Court's rejections of the county commission's and
city's summary judgment motions were not immediately appealable as
collateral orders. 5 F.3d, at 1449, 1452. Nevertheless, the Circuit
Court decided to exercise pendent appellate jurisdiction over the
county commission's appeal.
Id., at 1449-1450. Holding that
Sheriff James C.
41
Morgan was not a policymaker for the county in the area of law
enforcement, the Eleventh Circuit reversed the District Court's
order denying the county commission's motion for summary judgment.
Id., at 1450-1451. The Eleventh Circuit declined to exercise
pendent appellate jurisdiction over the city's appeal because the
District Court had not yet decided whether Wadley Police Chief
Freddie Morgan was a policymaker for the city.
Id., at
1451-1452.1
We granted certiorari to review the Court of Appeals' decision
that Sheriff Morgan is not a policymaker for Chambers County. 512
U. S. 1204 (1994). We then instructed the parties to file
supplemental briefs addressing this question:
Given the Eleventh Circuit's jurisdiction to review immediately
the District Court's refusal to grant summary judgment for the
individual defendants in response to their pleas of qualified
immunity, did the Circuit Court also have jurisdiction to review at
once the denial of the county commission's summary judgment motion?
513 U. S. 958 (1994). We now hold that the Eleventh Circuit should
have dismissed the county commission's appeal for want of
jurisdiction.
II
We inquire first whether the denial of the county commission's
summary judgment motion was appealable as a collateral order. The
answer, as the Court of Appeals recognized, is a firm "No."
By statute, federal courts of appeals have "jurisdiction of
appeals from all final decisions of the district courts," except
where direct review may be had in this Court. 28 U. S. C. § 1291.
"The collateral order doctrine is best understood not as an
exception to the 'final decision' rule laid down by Con-
IOn Sheriff James C. Morgan's suggestion for rehearing en bane,
the Eleventh Circuit modified its opinion with respect to an issue
not relevant here and denied rehearing en bane.
11 F.3d
1030 (1994).
42
gress in § 1291, but as a 'practical construction' of it."
Digital Equipment Corp. v.
Desktop Direct, Inc.,
511 U. S. 863,
867 (1994) (quoting
Cohen, 337 U. S., at 546). In
Cohen, we held that § 1291 permits appeals not only from a
final decision by which a district court disassociates itself from
a case, but also from a small category of decisions that, although
they do not end the litigation, must nonetheless be considered
"final."
Id., at 546. That small category includes only
decisions that are conclusive, that resolve important questions
separate from the merits, and that are effectively unreviewable on
appeal from the final judgment in the underlying action.
Ibid.
The District Court planned to reconsider its ruling on the
county commission's summary judgment motion before the case went to
the jury. That court had initially determined only that "Sheriff
Morgan ...
may have been the final policy maker for the
County." App. to Pet. for Cert. 67a (emphasis added). The ruling
thus fails the
Cohen test, which "disallowes] appeal from
any decision which is tentative, informal or incomplete." 337 U.
S., at 546; see
Coopers &
Lybrand v.
Livesay, 437
U. S. 463, 469 (1978) (order denying class certification held
not appealable under collateral order doctrine, in part because
such an order is "subject to revision in the District Court").
Moreover, the order denying the county commission's summary
judgment motion does not satisfy
Cohen's requirement that
the decision be effectively unreviewable after final judgment. When
we placed within the collateral order doctrine decisions denying
pleas of government officials for qualified immunity, we stressed
that an official's qualified immunity is "an
immunity from
suit rather than a mere defense to liability; and like an
absolute immunity, it is effectively lost if a case is erroneously
permitted to go to trial."
Mitchell, 472 U. S., at 526
(emphasis in original).
43
The county commission invokes our decision in
Monell,
which held that municipalities are liable under § 1983 only for
violations of federal law that occur pursuant to official
governmental policy or custom.
Monell, the commission
contends, should be read to accord local governments a qualified
right to be free from the burdens of trial. Accordingly, the
commission maintains, the commission should be able to appeal
immediately the District Court's denial of its summary judgment
motion. This argument undervalues a core point we reiterated last
Term: "§ 1291 requires courts of appeals to view claims of a 'right
not to be tried' with skepticism, if not a jaundiced eye,"
Digital Equipment, 511 U. S., at 873, for "virtually every
right that could be enforced appropriately by pretrial dismissal
might loosely be described as conferring a 'right not to stand
trial,'"
ibid.; cf.
United States v.
MacDonald, 435
U. S. 850, 858-859 (1978) (denial of pretrial motion to dismiss
an indictment on speedy trial grounds held not appealable under
collateral order doctrine).
The commission's assertion that Sheriff Morgan is not its
policymaker does not rank, under our decisions, as an immunity from
suit. Instead, the plea ranks as a "mere defense to liability."
Mitchell, 472 U. S., at 526. An erroneous ruling on
liability may be reviewed effectively on appeal from final
judgment. Therefore, the order denying the county commission's
summary judgment motion was not an appealable collateral order.
III
Although the Court of Appeals recognized that the District
Court's order denying the county commission's summary judgment
motion was not appealable as a collateral order, the Circuit Court
reviewed that ruling by assuming jurisdiction pendent to its
undisputed jurisdiction to review the denial of the individual
defendants' summary judgment motions. Describing this "pendent
appellate jurisdiction" as discretionary, the Eleventh Circuit
concluded that judicial
44
economy warranted its exercise in the instant case: "If the
County Commission is correct about the merits in its appeal," the
court explained, "reviewing the district court's order would put an
end to the entire case against the County .... " 5 F. 3d, at
1450.2
2 The Federal Courts of Appeals have endorsed the doctrine of
pendent appellate jurisdiction, although they have expressed
varying views about when such jurisdiction is properly exercised.
See,
e. g., Roque-Rodriguez v.
Lema Moya, 926 F.2d
103, 105, n. 2
(CA1 1991) (noting that the First Circuit
has "refrained" from exercising pendent appellate jurisdiction, but
characterizing the Circuit's practice as "self-imposed");
Golino v.
New Haven, 950 F.2d
864, 868-869
(CA2 1991) (exercising discretion to
consider otherwise nonappealable issues because sufficient overlap
exists in the factors relevant to the appealable and nonappealable
issues), cert. denied, 505 U. S. 1221 (1992);
Natale v.
Ridgefield, 927 F.2d
101, 104
(CA2 1991) ("Only in exceptional circumstances
should litigants, over whom this Court cannot ordinarily exercise
jurisdiction, be permitted to ride on the jurisdictional coattails
of another party.");
National Union Fire Ins. Co. v.
City
Savings, F. S.
B., 28 F.3d
376, 382, and n. 4
(CA3 1994) (reserving question
whether pendent appellate jurisdiction is available in any
circumstances other than when "necessary to ensure meaningful
review of an appealable order") (internal quotation marks omitted);
Roberson v.
Mullins, 29 F.3d
132,
136 (CA4 1994) (recognizing pendent appellate
jurisdiction "if the issues involved in the two rulings
substantially overlap and review will advance the litigation or
avoid further appeals") (internal quotation marks omitted);
Silver Star Enterprises v.
MN SARAMACCA, 19 F.3d
1008, 1014
(CA5 1994) (declining to exercise pendent
appellate jurisdiction because otherwise nonappealable order was
not "inextricably entwined" with appealable order);
Williams
v.
Kentucky, 24 F.3d
1526, 1542
(CA6 1994) (same);
United States ex rel.
Valders Stone &
Marble, Inc. v.
C-Way Constr.
Co., 909 F.2d
259, 262
(CA7 1990) (pendent appellate jurisdiction is
proper only "[w]hen an ordinarily unappealable interlocutory order
is inextricably entwined with an appealable order" and there are
"compelling reasons" for immediate review; a "close relationship"
between the two orders does not suffice) (internal quotation marks
omitted);
Drake v.
Scott, 812 F.2d
395, 399
(CA8) ("[W]hen an interlocutory appeal is
properly before us ... we have jurisdiction also to decide closely
related issues of law."), cert. denied, 484 U. S. 965 (1987);
TransWorld Airlines, Inc. v.
American Coupon Exchange,
Inc., 913 F.2d
676, 680
(CA9 1990) (jurisdiction under § 1291(a)(1) to
review on an interlocutory basis a preliminary
45
Petitioners join respondent Chambers County Commission in urging
that the Eleventh Circuit had pendent appellate jurisdiction to
review the District Court's order denying the commission's summary
judgment motion. Both sides emphasize that § 1291's final decision
requirement is designed to prevent parties from interrupting
litigation by pursuing piecemeal appeals. Once litigation has
already been interrupted by an authorized pretrial appeal,
petitioners and the county commission reason, there is no cause to
resist the economy that pendent appellate jurisdiction promotes.
See Supplemental Brief for Petitioners 16-17; Supplemental Brief
for Respondent 5, 9. Respondent county commission invites us to
adopt a "'libera[lJ''' construction of § 1291, and petitioners urge
an interpretation sufficiently "[p]ractical" and "[f]lexible" to
accommodate pendent appellate review as exercised by the Eleventh
Circuit. See
id., at 4; Supplemental Brief for Petitioners
14.
These arguments drift away from the statutory instructions
Congress has given to control the timing of appellate proceedings.
The main rule on review of "final decisions," § 1291, is followed
by prescriptions for appeals from "interlocutory decisions," §
1292. Section 1292(a) lists three cate-
injunction order "extends to all matters 'inextricably bound up'
with th[at] order");
Robinson v.
Volkswagenwerk AG,
940 F.2d
1369, 1374 (CAlO 1991) (pendent appellate jurisdiction is
properly exercised where "review of the appealable issue involves
consideration of factors closely related or relevant to the
otherwise nonappealable issue" and judicial economy is served by
review), cert. denied, 502 U. S. 1091 (1992);
Stewart v.
Baldwin County Bd. of Ed., 908 F.2d
1499, 1509 (CA111990) ("Pendent jurisdiction is properly
exercised over nonappealable decisions of the district court when
the reviewing court already has jurisdiction over one issue in the
case.");
Consarc Corp. v.
Iraqi Ministry, 27 F.3d
695, 700 (CADC 1994) ("This Circuit has invoked [pendent
appellate jurisdiction] only in a narrow class of cases, to review
an interlocutory order that itself is not yet subject to appeal but
is 'closely related' to an appealable order.").
46
gories of immediately appealable interlocutory decisions.3 Of
prime significance to the jurisdictional issue before us, Congress,
in 1958, augmented the § 1292 catalog of immediately appealable
orders; Congress added a provision, § 1292(b), according the
district courts circumscribed authority to certify for immediate
appeal interlocutory orders deemed pivotal and debatable. Section
1292(b) provides:
"When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion
that such order involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the ultimate
termination of the litigation, he shall so state in writing in such
order. The Court of Appeals which would have jurisdiction of an
appeal of such action may thereupon, in its discretion, permit an
appeal to be taken from such order, if application is made to it
within ten days after the entry of the order: Provided,
however, That application for an appeal hereunder shall not
stay proceedings in the district court unless the district judge or
the Court of Appeals or a judge thereof shall so order."
3 Section 1292(a) provides in relevant part:
"[T]he courts of appeals shall have jurisdiction of appeals
from:
"(1) Interlocutory orders of the district courts ... granting,
continuing, modifying, refusing or dissolving injunctions, or
refusing to dissolve or modify injunctions, except where a direct
review may be had in the Supreme Court;
"(2) Interlocutory orders appointing receivers, or refusing
orders to wind up receiverships or to take steps to accomplish the
purposes thereof, such as directing sales or other disposals of
property;
"(3) Interlocutory decrees of such district courts or the judges
thereof determining the rights and liabilities of the parties to
admiralty cases in which appeals from final decrees are
allowed."
47
Congress thus chose to confer on district courts first line
discretion to allow interlocutory appeals.4 If courts of appeals
had discretion to append to a Cohen-authorized appeal from a
collateral order further rulings of a kind neither independently
appealable nor certified by the district court, then the two-tiered
arrangement § 1292(b) mandates would be severely undermined.5
4 When it passed § 1292(b), Congress had before it a proposal,
by Jerome Frank of the Court of Appeals for the Second Circuit, to
give the courts of appeals sole discretion to allow interlocutory
appeals. Judge Frank had opposed making interlocutory appeal
contingent upon procurement of a certificate from the district
judge; he advanced instead the following proposal:
"'It shall be the duty of the district judge to state in writing
whether in his opinion the appeal is warranted; this statement
shall be appended to the petition for appeal or, as promptly as
possible after the filing of such petition in the court of appeals,
shall be forwarded to said court by the district judge. The court
of appeals shall take into account, but shall not be bound by, such
statement in exercising its discretion.''' Undated letter from
study committee to the Tenth Circuit Judicial Conference, in
5 This case indicates how the initial discretion Congress lodged
in district courts under § 1292(b) could be circumvented by the
"liberal" or "flexible" approach petitioners and respondent prefer.
The District Court here ruled only tentatively on the county
commission's motion and apparently contemplated receipt of further
evidence from the parties before ruling definitively. See order
denying motions to reconsider, App. to Pet. for Cert. 72a ("The
parties will have an opportunity to convince this Court that
Sheriff Morgan was or was not the final policy maker for the
County, and the Court will make a ruling as a matter of law on that
issue before the case goes to the jury."); cf.
Swint v.
Wadley, 5 F.3d
1435, 1452 (CAll 1993) (to determine whether an official is a
final policymaker, a district court "should examine not only the
relevant positive law ...
but also the relevant customs and
practices having the force of law") (emphasis in original). In
view of the incomplete state of the District Court's adjudication,
including some uncertainty whether plaintiffs meant to sue the
county as discrete from the commission members, it is unlikely that
a § 1292(b) certification would have been forthcoming from the
District Judge.
48
Two relatively recent additions to the Judicial Code also
counsel resistance to expansion of appellate jurisdiction in the
manner endorsed by the Eleventh Circuit. The Rules Enabling Act, 28
U. S. C. § 2071
et seq., gives this Court "the power to
prescribe general rules of practice and procedure ... for cases in
the United States district courts ... and courts of appeals." §
2072(a). In 1990, Congress added § 2072(c), which authorizes us to
prescribe rules "defin[ing] when a ruling of a district court is
final for the purposes of appeal under section 1291." Two years
later, Congress added § 1292(e), which allows us to "prescribe
rules, in accordance with section 2072 ... to provide for an appeal
of an interlocutory decision to the courts of appeals that is not
otherwise provided for under [§ 1292] (a), (b), (c), or (d)."
Congress thus has empowered this Court to clarify when a
decision qualifies as "final" for appellate review purposes, and to
expand the list of orders appealable on an interlocutory basis. The
procedure Congress ordered for such changes, however, is not
expansion by court decision, but by rulemaking under § 2072. Our
rulemaking authority is constrained by §§2073 and 2074, which
require, among other things, that meetings of bench-bar committees
established to recommend rules ordinarily be open to the public, §
2073(c)(1), and that any proposed rule be submitted to Congress
before the rule takes effect, § 2074(a). Congress' designation of
the rulemaking process as the way to define or refine when a
district court ruling is "final" and when an interlocutory order is
appealable warrants the Judiciary's full respect.6
6 In the instant case, the Eleventh Circuit asserted not merely
pendent appellate jurisdiction, but pendent
party appellate
jurisdiction: The court appended to its jurisdiction to review the
denial of the
individual defendants' qualified immunity
motions jurisdiction to review the denial of the
commission's summary judgment motion. We note that in 1990,
Congress endeavored to clarify and codify instances appropriate for
the exercise of pendent or "supplemental" jurisdiction in district
courts. 28 U. S. C. § 1367 (1988 ed., Supp. V); see § 1367(a)
(providing for "supplemen-
49
Two decisions of this Court securely support the conclusion that
the Eleventh Circuit lacked jurisdiction instantly to review the
denial of the county commission's summary judgment motion:
Abney v.
United States, 431 U. S. 651 (1977), and
United States v.
Stanley, 483 U. S. 669 (1987). In
Abney, we permitted appeal before trial of an order denying
a motion to dismiss an indictment on double jeopardy grounds.
Immediate appeal of that ruling, we held, fit within the
Cohen collateral order doctrine. 431 U. S., at 662. But we
further held that the Court of Appeals lacked authority to review
simultaneously the trial court's rejection of the defendant's
challenge to the sufficiency of the indictment.
Id., at
662-663. We explained:
"Our conclusion that a defendant may seek immediate appellate
review of a district court's rejection of his double jeopardy claim
is based on the special considerations permeating claims of that
nature which justify a departure from the normal rule of finality.
Quite obviously, such considerations do not extend beyond the claim
of formal jeopardy and encompass other claims presented to, and
rejected by, the district court in passing on the accused's motion
to dismiss. Rather, such claims are appealable if, and only if,
they too fall within Cohen's collateral-order exception to
the final-judgment rule. Any other rule would encourage criminal
defendants to seek review of, or assert, frivolous double jeopardy
claims in order to bring more serious, but otherwise nonappealable
questions to the attention of the courts of appeals prior to
conviction and sentence." Id., at 663 (citation
omitted).
Petitioners suggest that
Abney should control in criminal
cases only. Supplemental Brief for Petitioners 11. But the concern
expressed in
Abney-that a rule loosely allowing pendent
appellate jurisdiction would encourage parties to
tal jurisdiction" over "claims that involve the joinder or
intervention of additional parties").
50
parlay
Cohen-type collateral orders into multi-issue
interlocutory appeal tickets-bears on civil cases as well.
In
Stanley, we similarly refused to allow expansion of
the scope of an interlocutory appeal. That civil case involved an
order certified by the trial court, and accepted by the appellate
court, for immediate review pursuant to § 1292(b). Immediate
appellate review, we held, was limited to the certified order;
issues presented by other, noncertified orders could not be
considered simultaneously. 483 U. S., at 676-677.
The parties are correct that we have not universally required
courts of appeals to confine review to the precise decision
independently subject to appeal. See,
e. g., Thornburgh v.
American College of Obstetricians and Gynecologists, 476 U.
S. 747, 755-757 (1986) (Court of Appeals reviewing District Court's
ruling on preliminary injunction request properly reviewed merits
as well);
Eisen v.
Carlisle &
Jacquelin,
417 U. S. 156,
172-173 (1974) (Court of Appeals reviewing District Court's order
allocating costs of class notification also had jurisdiction to
review ruling on methods of notification);
Chicago, R. 1.
&
P. R. Co. v.
Stude, 346 U. S. 574, 578 (1954)
(Court of Appeals reviewing order granting motion to dismiss
properly reviewed order denying opposing party's motion to remand);
Deckert v.
Independence Shares Corp., 311 U. S. 282, 287 (1940)
(Court of Appeals reviewing order granting preliminary injunction
also had jurisdiction to review order denying motions to dismiss).
Cf.
Schlagenhauf v.
Holder, 379 U. S. 104, 110-111
(1964) (Court of Appeals exercising mandamus power should have
reviewed not only whether District Court had authority to order
mental and physical examinations of defendant in personal injury
case, but also whether there was good cause for the ordered
examinations).
We need not definitively or preemptively settle here whether or
when it may be proper for a court of appeals, with jurisdiction
over one ruling, to review, conjunctively,
51
related rulings that are not themselves independently
appealable. See
supra, at 48 (describing provisions by
Congress for rulemaking regarding appeals prior to the district
court's final disposition of entire case). The parties do not
contend that the District Court's decision to deny the Chambers
County Commission's summary judgment motion was inextricably
intertwined with that court's decision to deny the individual
defendants' qualified immunity motions, or that review of the
former decision was necessary to ensure meaningful review of the
latter. Cf. Kanji, The Proper Scope of Pendent Appellate
Jurisdiction in the Collateral Order Context, 100 Yale L. J. 511,
530 (1990) ("Only where essential to the resolution of properly
appealed collateral orders should courts extend their
Cohen
jurisdiction to rulings that would not otherwise qualify for
expedited consideration."). Nor could the parties so argue. The
individual defendants' qualified immunity turns on whether they
violated clearly established federal law; the county commission's
liability turns on the allocation of law enforcement power in
Alabama.
***
The Eleventh Circuit's authority immediately to review the
District Court's denial of the individual police officer
defendants' summary judgment motions did not include authority to
review at once the unrelated question of the county commission's
liability. The District Court's preliminary ruling regarding the
county did not qualify as a "collateral order," and there is no
"pendent party" appellate jurisdiction of the kind the Eleventh
Circuit purported to exercise. We therefore vacate the relevant
portion of the Eleventh Circuit's judgment and remand the case for
proceedings consistent with this opinion.
It is so ordered.
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