The State's Right to be Free From Trial: Is the Denial of Sovereign Immunity Immediately Appealable?

Abstract

This article previews the issues and arguments in Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, on the Supreme Court’s 1992-92 appellate docket. The issue in Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc. is whether a trial court's denial of the defense of sovereign immunity satisfies the requirements of the collateral order doctrine so as to permit immediate appellate review of that decision.

The Supreme Court this Term will conduct its early procedural warm-up exercises with yet another case involving the immediate appealability of a trial court's decision. Questions surrounding the possibility of an immediate review of an adverse trial ruling are now blooming Supreme Court annuals. In federal court, the basic rule is that litigants are not permitted to interrupt trial proceedings to appeal a trial court's order concerning some aspect of procedure before the trial ends in a final judgment. However, certain federal statutes allow immediate or "interlocutory" appeal.In addition, various court-developed exceptions permit relief from the harshness of the final judgment rule.

Puerto Rico Aqueduct is the seventh case in five years involving the so-called "collateral order" doctrine of interlocutory appeal. See Lauro Lines S.R.L. v. Chasser, 490 U.S. 495 (1989); Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989); United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72 (1988); Van Cauwenberghe v. Biard, 486 U.S. 517 (1988); Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 217 (1988); and Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370 (1987). In this year's flowering of interlocutory appellate review, the Eleventh Amendment meets the collateral order doctrine.

In the broadest sense, the Court's consideration of the interlocutory appeal issue in PRASA v. Metcalf & Eddy offers the Court an opportunity to further define the interest that the Eleventh Amendment protects. If the Court takes this analytical approach, then the Justices doctrinally may refine our understanding of the nature of sovereign immunity. In the narrowest sense, PRASA's appeal is significant to the extent that governmental entities are named as defendants in federal lawsuits. In this regard, the Court will have to assess a potential "floodgates" argument: whether the prevalence of governmental defendants in lawsuits and the frequent invocation of sovereign immunity weighs against expanding the opportunity for interlocutory appeal.