Case Information
*3 BEFORE: STAPLETON, ROTH and LEWIS, Circuit Judges. (Filed June 8 , 1995) ___________ David M. Donaldson Arlin M. Adams, Esq. Howard M. Holmes Michael J. Barry, Esq. Supreme Court of Pennsylvania Schnader, Harrison & Administrative Office of PA Courts Lewis Ste 3600 1515 Market Street, Suite 1414 1600 Market St. Philadelphia, PA 19102 Philadelphia, PA 19103
Attorneys for Appellants
Ronald K. M. Williams
Northwest Legal Center
Post Office Box 43175
Philadelphia, PA 19129
Attorney for Appellees
___________ OPINION OF THE COURT ___________
LEWIS, Circuit Judge.
This case raises an issue of apparent first impression: whether an order denying the Rooker-Feldman defense is final as a collateral order. We conclude that an order denying the Rooker- Feldman defense is not final as a collateral order and is not immediately appealable under the collateral order doctrine. We will therefore dismiss this appeal for lack of appellate jurisdiction.
I.
The Family Court Division of the Court of Common Pleas of Philadelphia County operates a nursery at the Family Court Building in Philadelphia. In operating this nursery, the Family Court provides an area for supervised visitation in cases in which supervised visitation has been ordered by the Family Court. In early November of 1993, the Honorable Esther Sylvester, Administrative Judge of the Family Court Division of the Philadelphia Court of Common Pleas, and a defendant in this case, approved the closing of the Family Court nursery on two dates: December 26, 1993 and January 2, 1994. The plaintiffs, Andre Bryant, a non-custodial parent restricted, by court order, to visitation in the Family Court-operated nursery, and Fathers' and Children's Equality, Inc., a non-profit Pennsylvania corporation "chartered to insure the continual access of children to their non-custodial parents and extended family members," Plaintiffs' brief at 3, sought in Pennsylvania Commonwealth Court to enjoin the defendants from closing the nursery on these days. The matter was transferred on jurisdictional grounds to the Pennsylvania Supreme Court where the plaintiffs' request for a preliminary injunction was denied without hearing. No appeal to the United States Supreme Court was sought.
In early March of 1994, Judge Sylvester again
authorized the closing of the Family Court nursery, this time on April 3, 1994. Soon after the authorization of this additional nursery closing, the plaintiffs filed this class action lawsuit in which they claim that by closing the nursery, the defendants violated their rights under the First and Fourteenth Amendments. *5 In lieu of filing an answer, the defendants moved to dismiss under Fed. R. Civ. P. 12(b)(1) and (6). The defendants contended, inter alia, that judicial immunity and the Rooker- Feldman doctrine required dismissal of the plaintiffs' complaint. The district court denied the defendants' motion to dismiss and ordered that discovery proceed. This appeal followed. [1]
II.
Ordinarily, we review only "final" decisions of the
district court under 28 U.S.C. § 1291.
[2]
Federal Ins. Co. v.
Richard I. Rubin & Co., Inc.,
Answer: I do not press the judicial
immunity argument, your honor.
Nor is the issue of qualified immunity before us, the
defendants arguments to the contrary notwithstanding. Having
found that the defendants did not assert qualified immunity, the
district court did not consider the applicability of the
qualified immunity defense. In this appeal, the defendants
contend, with apparent support in the trial record, that they did
in fact argue qualified immunity in the district court. However,
the defendants did not assert qualified immunity in their motion
to dismiss, nor did they argue qualified immunity in their brief
in support of the motion. In a brief styled "Memorandum in
Opposition to Plaintiffs' Motion to Amend Complaint and in
Further Support of Defendants' Motion to Dismiss or, in the
Alternative, for Summary Judgment," which the defendants filed
some six days prior to the district court's denial of their
motion to dismiss, the defendants for the first time argued
qualified immunity. Under these circumstances, the district
court properly refrained from considering the issue of qualified
immunity. Had the district court considered qualified immunity,
the plaintiffs would have been prejudiced by not having had an
opportunity to respond to the defendants' arguments regarding the
applicability of qualified immunity prior to the district court's
ruling on the defendants' motion. And because the district court
did not err in refusing to consider qualified immunity, we lack
jurisdiction to hear the defendants' appeal to the degree it
raises the issue of qualified immunity. See Kulwicki v. Dawson,
[2] The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . .
district court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" Id. (citation and internal quotation marks omitted). According to the defendants, however, we have appellate jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. The defendants contend the district court's order denying the defendants' motion to dismiss is appealable under the "collateral order" doctrine first articulated in Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541 (1949). In Cohen , the Supreme Court held that a "small
class" of collateral orders are final and appealable under 28
U.S.C. § 1291 even though they do not terminate the underlying
litigation. Cohen,
The Supreme Court has repeatedly referred to the
collateral order doctrine as a "narrow exception" to the final
*8
judgment rule,
[3]
see, e.g., Richardson-Merrell, Inc. v. Koller,
Before determining whether the district court's order
denying the defendants' Rooker-Feldman defense qualifies as a
collateral order, a word or two is in order concerning Rooker-
Feldman. The Rooker-Feldman doctrine provides that federal
district courts lack subject matter jurisdiction to sit in direct
review of state court adjudications or to hear constitutional
*10
claims that are "inextricably intertwined" with the state court's
decision. District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 482 n.16 (1983). See also Rooker v. Fidelity Trust
Co.,
As with Younger abstention, which requires federal courts to abstain when there is a pending state court proceeding, part of the justification for Rooker-Feldman is respect for state courts. Just as federal district courts should presume that pending state court proceedings can correctly resolve federal questions, they should also presume that completed state court proceedings have correctly resolved these questions.
A second justification for Rooker- Feldman stems from its similarity to claim preclusion. Like claim preclusion, Rooker- Feldman is partly concerned with finality, with ensuring that litigants do not take multiple bites from the same apple. Once litigants' claims have been adjudicated in the state court system, they should not also have access to the entire federal court system.
Guarino v. Larsen,
III.
A decision denying a motion to dismiss for lack of
subject matter jurisdiction is considered to fall outside the
Cohen exception to the final decision rule. See Transtech
Industries, Inc. v. A & Z Septic Clean,
The Court's most recent discussion of the collateral
order doctrine appears in Digital Equipment Corporation, decided
less than a year ago. In that case, Desktop Direct, Inc.
("Desktop") sued Digital Equipment Corporation ("Digital") for
unlawful use of the "Desktop Direct" name. Digital Equipment
Corporation,
During the course of its analysis of this question, analysis which led to an affirmance of the Tenth Circuit's dismissal of Digital's appeal, the Court rejected Digital's argument that the identification of some interest or right that would be "irretrievably lost" per se satisfies the third Cohen requirement:
[T]he strong bias of § 1291 against piecemeal appeals almost never operates without some cost. A fully litigated case can no more be *14 untried than the law's proverbial bell can be unrung, and almost every pretrial or trial order might be called `effectively unreviewable' in the sense that relief from error can never extend to rewriting history. Thus, erroneous evidentiary rulings, grants or denials of attorney disqualification, and restrictions on the rights of intervening parties may burden litigants in ways that are only imperfectly reparable by appellate reversal of a final district court judgment . . . . But if immediate appellate review were available every such time, Congress's final decision rule would end up a pretty puny one, and so the mere identification of some interest that would be "irretrievably lost" has never sufficed to meet the third Cohen requirement.
Digital Equipment Corporation,
The Court also rejected Digital Equipment's contention that a party's ability to characterize the right allegedly denied as a "right not to stand trial" is both sufficient and necessary for a finding that the order appealed from is a collateral order. This contention, the Court explained, "is neither an accurate distillation of our case law nor an appealing prospect for adding to it." Id. The Court further explained that limiting the collateral order analysis to a focus upon whether the interest asserted could be called a "right not to stand trial" is inadequate to protect against "the urge to push the § 1291 limits." Id.
We have, after all, acknowledged that virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a "right not to stand trial." Allowing immediate appeals to vindicate every such right would move § 1291 aside for claims that the *15 district court lacks personal jurisdiction, that the statute of limitations has run, that the movant has been denied his [or her] Sixth Amendment right to speedy trial, that an action is barred on claim preclusion principles, that no material fact is in dispute and the moving party is entitled to judgment as a matter of law, or merely that the complaint fails to state a claim. Such motions can be made in virtually every case, and it would be no consolation that the party's meritless summary judgment motion or res judicata claim was rejected on immediate appeal; the damage to the efficient and congressionally mandated allocation of judicial responsibility would be done, and any improper purpose the appellant might have had in saddling its opponent with cost and delay would be accomplished. Thus, precisely because candor forces us to acknowledge that there is no single "obviously correct way to characterize" an asserted right, we have held that § 1291 requires courts of appeals to view claims of a "right not to be tried" with skepticism, if not a jaundiced eye.
Id . at 1998-99 (citations omitted).
In the wake of Digital Equipment Corporation, a party's
ability to characterize a district court's decision as denying an
irreparable "right not to stand trial" of itself will not suffice
to entitle that party to an immediate appeal of the decision.
See Digital Equipment Corporation,
*16 The defendants contend that the interests in federalism and comity sought to be protected by Rooker-Feldman would be irreparably harmed by the very fact of federal judicial inquiry into the state court decision at issue. "Once a state adjudication is subjected to discovery, inquiry, review, trial, etc., the integrity of the decision, as protected from federal court review by Rooker-Feldman is gone forever." Defendants' Reply at 6. According to the defendants, Rooker-Feldman is the "equitable corollary to judicial immunity":
[I]t is the immunity state decisions enjoy from federal district court review. Akin to Eleventh Amendment, absolute, or qualified immunity, Rooker-Feldman is of no practical value after final judgment and appeal, i.e., after federal review of a state court adjudication takes place. Any benefit to state courts conferred by Rooker-Feldman "is for the most part lost as litigation proceeds past motion practice." Quite simply, the very fact of a federal court inquiry, without immediate appeal, into a state court adjudication . . . renders Rooker-Feldman worthless.
Defendants' Reply at 7-8.
We disagree with the defendants' contention that
Rooker-Feldman is of no practical value if its ultimate vindication must await the entry of final judgment following district court review of the state court adjudication at issue. The Rooker-Feldman doctrine's value as a protector of state courts is not irreparably undermined by district court review of state court adjudications; so long as district court review of a state court adjudication is followed by the proper application of the doctrine at the court of appeals level, the interests that *17 Rooker-Feldman seeks to further will be secured. To understand why this is so, one need only compare Rooker-Feldman to the types of claims already deemed to fall within the ambit of the collateral order doctrine.
The purpose of the classic immunities -- Eleventh
Amendment, absolute and qualified immunity -- all considered to
fall within the collateral order doctrine, is to prevent the
holder of the immunity from being dragged into federal district
court to answer to civil suits for damages. See Mitchell v.
Forsyth,
Indeed, a finding that the failure to allow immediate
appeal would lead to the infliction of some irreparable harm on
an actual person or entity represents a common thread running
through the cases in which we have found that the order in
question constitutes a collateral order. In Praxis Properties v.
Colonial Sav. Bank,
*19 Congress afforded RTC this right to a stay under § 1821(d)(12) because it realized that upon RTC's appointment as receiver or conservator for a failed thrift, RTC is likely to find the thrift in a state of profound disarray and may require some breathing room to orient itself and determine how best to proceed with pending litigation. If the district court denies a proper request for a stay under § 1821(d)(12), RTC's statutory right to a short litigation cease- fire, like a government official's right to qualified immunity, is "irretrievably lost" absent immediate appeal.
Id. at 60. Similarly, in Federal Ins. Co. v. Richard I. Rubin &
Co., Inc.,
[P]roviding review only after a trial [of the order denying the FSIA defense] would destroy the "legal and practical value" of their sovereign immunity defense. At the post- trial stage of the proceeding, the Dutch parent corporations will have been forced to endure the very burden they are arguing they should not be subjected to in the first place -- a trial on the merits.
Id . at 1282. See also In re School Asbestos Litigation, 842 F.2d 671 (3d Cir. 1988) (holding that an order denying a party the right to engage in public communications with persons and in fora unrelated to the litigation was immediately appealable because "`the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'" (..continued)
in any judicial action or proceeding to which such institution is or becomes a party.
(citation omitted)). In each of these cases, crucial to our conclusion that the order in question constituted an immediately appealable collateral order was the fact that failure to afford immediate appeal would have rendered the right asserted worthless to the actual entity holding the right. The same simply cannot be said in the context of Rooker-Feldman.
One of the interests that the Rooker-Feldman doctrine seeks to promote is respect for state courts. Guarino, 11 F.3d at 1157. To further this interest, the Rooker-Feldman doctrine precludes federal district court review of state court adjudications. See id. Significantly, the protection that Rooker-Feldman affords attaches not to the state courts themselves, but rather to their adjudications. Unlike people, states and state entities -- the direct recipients and beneficiaries of the classic immunities, for example -- adjudications do not suffer irreparably by being haled into
federal district court for review. Indeed, once a court of
appeals rules that under Rooker-Feldman, the district court
lacked subject matter jurisdiction to review the state court
adjudication, it is, both as a practical as well as a legal
matter, as if the state court adjudication had never been
reviewed by a federal district court in the first place. So long
as the state court adjudication's Rooker-Feldman-derived
"immunity" is acknowledged and vindicated by the court of appeals
following the entry of a final judgment, the interest in
*21
respecting state courts by holding their adjudications beyond
federal district court scrutiny is adequately protected.
[7]
By concluding that the denial of a Rooker-Feldman
defense does not give rise to an immediately appealable
collateral order, we do not gainsay the importance of the
interests in federalism and comity that the Rooker-Feldman
doctrine seeks to protect. We simply believe that these
interests are not irreparably harmed through rigorous application
of the final judgment rule. We note that in other contexts these
same interests have been understood to be adequately vindicable
on appeal following the entry of final judgment. See Coleman by
Lee v. Stanziani,
IV. CONCLUSION
Having concluded that an order denying the Rooker- Feldman defense is not immediately appealable under the collateral order rule, we will dismiss for lack of appellate *22 jurisdiction the defendants' appeal from the district court's order denying their Rooker-Feldman defense.
_________________________
Notes
[1] . The question of the applicability of judicial immunity is not before us, as that issue, though argued in the defendants' brief, was waived at oral argument, during which the following exchange took place: The Court: You are not appealing from the denial of your motion insofar as it related and relied on judicial immunity? Answer: No, your honor, it is purely the Rooker-Feldman and the qualified immunity which applies to all the defendants . . . . . . . . The Court: Let me make sure I understand you. I understood you in response to my question on direct to say that the issue of whether your motion was wrongfully denied insofar as it relied on judicial immunity was not before us, you were not pressing that argument . . . you wrote a section in your brief on it, but you are not -- Answer: I am not pressing the judicial immunity argument . . . . The Court: You are not just talking about your argument this morning, your oral argument, you are saying we do not have to address those issues because your clients are no longer relying on them?
[3] . Recently, the Supreme Court observed that the collateral
order doctrine is best understood not as an exception to the
"final decision" rule laid down by Congress in 28 U.S.C. § 1291,
"but as a `practical construction' of it." Digital Equipment
Corporation v. Desktop Direct, Inc.,
[4] . We have stated that the final judgment rule serves a number
of salutary purposes:
It is intended to ensure efficient
administration of scarse judicial resources.
It facilitates maintenance of "the
appropriate relationship between [trial and
appellate] courts." In addition, in cases
where the litigants may have unequal economic
resources, it protects the judicial process
and its participants from the delay which can
prove advantageous to a well-financed
litigant, and fatal to the less well-endowed.
Lusardi v. Xerox Corp.,
[5] . Precisely the same can be said, and has been said by the
Supreme Court, with respect to orders denying the protection of
the Speech or Debate Clause, as well as orders denying the right
not to stand trial on double jeopardy grounds. See Helstoski v.
Meanor,
[6] . 12 U.S.C. § 1821(d)(12) provides: After the appointment of a conservator or receiver for an insured depository institution, the conservator or receiver may request a stay for a period not to exceed -- (i) 45 days, in the case of any conservator; and (ii) 90 days, in the case of any receiver,
[7] . We say that the Rooker-Feldman interests are adequately vindicable on appeal from a final judgment because we recognize, as has the Supreme Court, that section 1291 never operates without some cost. Digital Equipment Corporation, 114 S. Ct. at 1998. Litigants are always burdened in ways that are "only imperfectly reparable by appellate reversal of a final district court judgment." Id.