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The requirements for collateral order appeal have been distilled down to three conditions: that an order (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. The conditions are stringent and unless they are kept so, the underlying doctrine will overpower the substantial finality interests 28 U.S.C.S. § 1291 is meant to further: judicial efficiency, for example, and the sensible policy of avoiding the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise.
In a warranted search of Susan and Richard Hallocks' residence, Customs Service agents seized computer equipment, software, and disk drives. No criminal charges were ever brought, but the equipment was returned damaged, with all of the stored data lost, forcing Susan to close her computer software business. She sued the United States under the Federal Tort Claims Act, invoking the waiver of sovereign immunity, 28 U.S.C. § 1346, and alleging negligence by the customs agents in executing the search. While that suit was pending, Susan also filed this action against the individual agents under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619, alleging that the damage they caused to her computers deprived her of property in violation of the Fifth Amendment's Due Process Clause. After the District Court dismissed the first suit on the ground that the agents' activities fell within an exception to the Tort Claims Act's waiver of sovereign immunity, § 2680(e), the agents moved for judgment in the Bivens action. They relied on the Tort Claims Act's judgment bar, § 2676, which provided that “the judgment in an action under Section 1346(b) constituted a complete bar to any action against the employee of the government whose act or omission gave rise to the claim.” The District Court denied the motion, holding that dismissal of the Tort Claims Act suit against the Government failed to raise the Act's judgment bar. The Second Circuit affirmed, after first ruling in favor of jurisdiction under the collateral order doctrine. Under this doctrine, appellate authority to review "all final decisions of the district courts," § 1291, included jurisdiction over a narrow class of decisions that did not terminate the litigation, but were sufficiently important and collateral to the merits that they should nonetheless be treated as final. The agents petitioned for a writ of certiorari.
Was the refusal to apply the judgment bar of the Federal Tort Claims Act open to collateral appeal?
The Court held that a refusal to apply the Federal Tort Claims Act's judgment bar was not open to collateral appeal. According to the Court, while it could be argued that the Federal Government's efficiency would be compromised--and that officials would be burdened and distracted--if the Bivens action went to trial, it was not the preservation of government officials' initiative, but the avoidance of litigation for its own sake, that supported the § 2676 judgment bar. The § 2676 judgment bar had no claim to greater importance than the typical defense of claim preclusion (or res judicata), to which the § 2676 judgment bar was analogous, and thus an order rejecting the defense of this judgment bar cried for no immediate appeal of right as a collateral order. Moreover, a rule respecting a prior judgment by giving a defense against relitigation--as both the § 2676 judgment bar and the claim-preclusion defense provided--had not been thought to protect values so great that only immediate appeal could effectively vindicate them. Accordingly, the judgment of the Second Circuit was vacated and the case was remanded with instructions to dismiss the appeal for lack of jurisdiction.