Second Circuit on Appealability of Interlocutory Order Granting Eleventh Amendment Immunity

Morris-Hayes v. Board of Educ. of Chester Union Free School Dist., 423 F.3d 153 (2d Cir. Sep. 12, 2005):

Eleventh Amendment immunity is a form of absolute immunity. Accordingly, when the Supreme Court was confronted with the question whether "a district court order denying a claim by a State or a state entity to Eleventh Amendment immunity from suit in federal court may be appealed under the collateral order doctrine of [Cohen ]," it answered the question in the affirmative. Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 143, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). Whether an interlocutory order granting Eleventh Amendment immunity is appealable is not so well settled. The First Circuit, extending the holding of Metcalf & Eddy, has held that an interlocutory appeal "is proper as to the Eleventh Amendment issue, as pre-trial orders granting or denying Eleventh Amendment immunity are immediately appealable." Rosie D. v. Swift, 310 F.3d 230, 233 (1st Cir.2002). [citations omitted]. The Supreme Court in Metcalf & Eddy, however, never held that an order granting immunity could be appealed from prior to the entry of a final judgment. We never have interpreted Metcalf & Eddy to permit appeals from interlocutory orders granting Eleventh Amendment immunity, citing it only for the proposition for which it stands: the appealability of orders denying Eleventh Amendment immunity. . . . With respect to interlocutory orders relating to qualified immunity, we have noted the following: "All circuits that have considered whether the collateral order doctrine confers appellate jurisdiction over appeals arising from a grant of partial summary judgment based on qualified immunity have universally held that such a judgment is not immediately appealable." LaTrieste Rest. & Cabaret, 96 F.3d at 599. In joining our sister circuits, we explained that the reason for not allowing an interlocutory appeal of an order granting qualified immunity is that "[a] grant of summary judgment based on qualified immunity does not lead to any loss of [a] right that cannot be remedied on appeal." Id. [citations omitted]. The same rationale leads us to conclude that an interlocutory order granting Eleventh Amendment immunity likewise is non-appealable.