Amie v. City of Jennings

PER CURIAM: * The City of Jennings appeals a district court order dismissing its affirmative defense. Because the order is not an appeal-able “final decision” under 28 U.S.C. § 1291, we dismiss the appeal for lack of jurisdiction. This case involves claims of gender-based discrimination, violations of state tort law, and negligence. The plaintiffs filed suit alleging that they were subject to a hostile work environment while employed by the City of Jennings Police Department. The City filed a motion for summary judgment asserting, among other things, that it was entitled to the affirmative defense established in Faragher v. City of Boca Raton 2 and Burlington Industries, Inc. v. Ellerth. 3 The City’s motion was denied. The plaintiffs then filed a cross-motion for partial summary judgment, asserting that the City was not entitled to the Faragher/Ellerth defense. The district court agreed and granted the cross-motion for partial summary judgment. The City appealed, arguing that under the collateral order doctrine, this court has appellate jurisdiction. We disagree. By statute, federal courts of appeals have jurisdiction over appeals “from all final decisions of the district courts ..., except where a direct review may be had in the Supreme Court.” 4 This statutory provision has been interpreted to permit appeals from a “small category of decisions that, although they do not end the litigation, must nonetheless be considered ‘final.’ ” 5 That small category includes only decisions that “[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] [would] be effectively unreviewable on appeal from a final judgment.” 6 Immediate appeals from such orders are permitted under the collateral order doc *312 trine, but the doctrine’s conditions are stringent and its scope is narrow. 7 For example, under the collateral order doctrine, appeals have been permitted from orders rejecting absolute or qualified immunity, denying a State’s claim to Eleventh Amendment immunity, or rejecting a criminal defendant’s double jeopardy defense. 8 However, appeals from orders determining merits defenses have been dismissed for lack of jurisdiction; the orders would be fully and effectively reviewable on appeal, 9 and the orders are not completely separable from the merits. 10 In this case, the City appeals from an order dismissing its affirmative defense to the claims’ merits. The order is clearly outside the scope of the collateral order doctrine. Even assuming the City’s Faragher/Ellerth defense is completely separable from the merits, the order denying it will be fully and effectively reviewable on appeal, if and when a final judgment is rendered. Appellate reversal of the district court’s alleged error may not provide perfect relief “in the sense that relief from error can never extend to rewriting history.” 11 But only effective review, not perfect relief, is required. Otherwise, immediate appellate review would be available as a matter of course, and “Congress’s final decision rule would end up a pretty puny one.” 12 For these reasons, the appeal is DISMISSED for lack of jurisdiction. Footnotes [*] Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. [2] 524 U.S. 775, 807-08, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). [3] 524 U.S. 742, 764-65, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). [4] 28 U.S.C. § 1291. [5] Swint v. Chambers County Comm'n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). [6] Will v. Hallock, — U.S. -, -, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006) (internal quotation marks and citations omitted); see also Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). [7] Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994). [8] Hallock, - U.S. at -, 126 S.Ct. 952. [9] See, e.g., Acoustic Sys., Inc. v. Wenger Corp., 207 F.3d 287, 296 (5th Cir.2000) (dismissing appeal of an order refusing to grant summary judgment based on an affirmative defense); Exxon Corp. v. Oxxford Clothes, Inc., 109 F.3d 1069, 1069-70 n. 2 (5th Cir.1997) (dismissing appeal of an order dismissing affirmative defenses); cf. Spiess v. C. Itoh & Co., 725 F.2d 970, 974 (5th Cir.1984) (dismissing appeal of an order denying a Rule 12(b)(6) motion because the motion "raised an essentially merits defense”), cert. denied, 469 U.S. 829, 105 S.Ct. 115, 83 L.Ed.2d 58 (1984). [10] See Oxxford Clothes, 109 F.3d at 1070 n. 2.; cf. Spiess, 725 F.2d at 974. [11] Digital Equip., 511 U.S. at 872, 114 S.Ct. 1992. [12] Id.