Summary
holding that no interlocutory appeal may be taken from a grant of Eleventh Amendment immunity
Summary of this case from Cornforth v. University of Oklahoma Bd.Opinion
No. 91-3152.
December 18, 1991.
Arthur J. Clemens, Jr., pro se.
Robert T. Stephan, Atty. Gen. and Carl A. Gallagher, Asst. Atty. Gen., Topeka, Kan., for defendants-appellees, State of Kan., Kansas Court of Appeals and the Miami County Dist. Court.
Appeal from the United States District Court for the District of Kansas.
Before McKAY, Chief Judge, SEYMOUR, and EBEL, Circuit Judges.
Arthur Clemens is suing the State of Kansas, the Miami County District Court, the Kansas Court of Appeals, and a number of individuals, many of whom appear to be Mr. Clemens' relatives. The district court has dismissed the three state defendants pursuant to their Eleventh Amendment immunity from suit in federal court. Mr. Clemens now appeals this dismissal.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.
Because Mr. Clemens' suit against the individual defendants remains pending in the district court, the order dismissing the state defendants is not final. We join those circuits that have concluded that an order granting immunity is not a collateral order which is immediately appealable under 28 U.S.C. § 1291 (1988), as interpreted by Cohen v. Beneficial Industr. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). See Branson v. City of Los Angeles, 912 F.2d 334, 335 (9th Cir. 1990); Theis v. Smith, 827 F.2d 260, 261 (7th Cir. 1987); Coe v. Ziegler, 817 F.2d 29, 30 (6th Cir. 1987); Thompson v. Betts, 754 F.2d 1243, 1246 (5th Cir. 1985). The rationale for allowing interlocutory appeal of an order denying immunity is that the defendant's right to be free from standing trial can not be effectively vindicated on appeal after trial. See Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-17, 86 L.Ed.2d 411 (1985); Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 644 (10th Cir. 1988). A grant of immunity, in contrast, "may be fully and effectively reviewed after final judgment. Accordingly, it does not fall under the collateral order doctrine." Branson, 912 F.2d at 335.
We therefore dismiss this appeal for lack of jurisdiction.