Will v. Hallock

(Slip Opinion) OCTOBER TERM, 2005 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

WILL ET AL. v. HALLOCK ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

No. 04–1332. Argued November 28, 2005—Decided January 18, 2006

In a warranted search of Susan and Richard Hallocks’ residence, Cus-

toms 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, alleging that the

damage they caused to her computers deprived her of property in vio-

lation of the Fifth Amendment’s Due Process Clause. After the Dis-

trict Court dismissed the first suit on the ground that the agents’ ac-

tivities 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 provides that “the judgment in an action under 1346(b)

. . . constitute[s] a complete bar to any action . . . against the em-

ployee 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 dis-

trict courts,” §1291, includes jurisdiction over “a narrow class of deci-

sions that do not terminate the litigation,” but are sufficiently impor-

tant and collateral to the merits that they should “nonetheless be

treated as ‘final,’ ” Digital Equipment Corp. v. Desktop Direct, Inc., 511

2 WILL v. HALLOCK

Syllabus

U. S. 863, 867.

Held: A refusal to apply the Federal Tort Claims Act’s judgment bar is

not open to collateral appeal. Pp. 4–9.

(a) Three conditions are required for collateral appeal: the order

must “[1] conclusively determine the disputed question; [2] resolve an

important issue completely separate from the merits . . . , and [3] be

effectively unreviewable on appeal from a final judgment.” Puerto

Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S.

139, 144. Those conditions are “stringent.” Digital Equipment, su-

pra, at 868. Unless they are kept so, the underlying doctrine will

overpower the substantial finality interests §1291 is meant to fur-

ther. Pp. 3–4.

(b) Among the “small class” of orders this Court has held to be col-

laterally appealable are those rejecting absolute immunity, Nixon v.

Fitzgerald, 457 U. S. 731, 742, qualified immunity, Mitchell v. For-

syth, 472 U. S. 511, 530, and a State’s Eleventh Amendment immu-

nity claim, Puerto Rico Aqueduct, supra, at 144–145. In each of these

cases, the collaterally appealing party was vindicating or claiming a

right to avoid trial, in satisfaction of the third condition: unless the

order to stand trial was immediately appealable the right would be

effectively lost. However, to accept the generalization that any order

denying a claim of right to prevail without trial satisfies the third

condition would leave §1291’s final order requirement in tatters. See

Digital Equipment, supra, at 872–873. Pp. 4–5.

(c) Thus, only some orders denying an asserted right to avoid the

burdens of trial qualify as orders that cannot be reviewed “effec-

tively” after a conventional final judgment. The further characteris-

tic that merits collateral appealability is “a judgment about the value

of the interests that would be lost through rigorous application of the

final judgment requirement.” Digital Equipment, supra, at 878–879.

In each case finding appealability, some particular value of a high

order was marshaled in support of the interest in avoiding trial, e.g.,

honoring the separation of powers, Nixon, supra, at 749, 758, pre-

serving the efficiency of government and the initiative of its officials,

Mitchell, supra, at 526, and respecting a State’s dignitary interests,

Puerto Rico Aqueduct, supra, at 146. It is not mere avoidance of a

trial, but avoidance of a trial that would imperil a substantial public

interest that counts. Coopers & Lybrand v. Livesay, 437 U. S. 463,

468. Pp. 5–7.

(d) The customs agents’ claim here does not serve a weighty public

objective. This case must be distinguished from qualified immunity

cases. The nub of such immunity is the need to induce government

officials to show reasonable initiative when the relevant law is not

“clearly established,” Harlow v. Fitzgerald, 457 U. S. 800, 817; a

Cite as: 546 U. S. ____ (2006) 3

Syllabus

quick resolution of a qualified immunity claim is essential. There is,

however, no such public interest at stake simply because the judg-

ment bar is said to be applicable. It is the avoidance of litigation for

its own sake that supports the bar, and if simply abbreviating litiga-

tion troublesome to government employees were important enough,

§1291 would fade out whenever the government or an official lost in

an early round. Another difference between qualified immunity and

the judgment bar lies in the bar’s essential procedural element.

While a qualified immunity claim is timely from the moment an offi-

cial is served with a complaint, the judgment bar can be raised only

after a case under the Tort Claims Act has been resolved in the Gov-

ernment’s favor. The closer analogy to the judgment bar is the de-

fense of res judicata. Both are grounded in the perceived need to

avoid duplicative litigation, not in a policy of freeing a defendant

from any liability. But this rule of respecting a prior judgment by

giving a defense against relitigation has not been thought to protect

values so important that only immediate appeal can effectively vindi-

cate them. See Digital Equipment, supra, at 873. Pp. 7–9.

387 F. 3d 147, vacated and remanded.

SOUTER, J., delivered the opinion for a unanimous Court.

Cite as: 546 U. S. ____ (2006) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–1332

_________________

RICHARD WILL, ET AL., PETITIONERS v. SUSAN

HALLOCK ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[January 18, 2006]

JUSTICE SOUTER delivered the opinion of the Court.

The authority of the Courts of Appeals to review “all

final decisions of the district courts,” 28 U. S. C. §1291,

includes appellate jurisdiction over “a narrow class of

decisions that do not terminate the litigation,” but are

sufficiently important and collateral to the merits that

they should “nonetheless be treated as final,” Digital

Equipment Corp. v. Desktop Direct, Inc., 511 U. S. 863, 867

(1994) (internal quotation marks omitted). The issue here is

whether a refusal to apply the judgment bar of the Federal

Tort Claims Act is open to collateral appeal. We hold it is

not.

I

The complaint alleges that Susan Hallock owned a

computer software business that she and her husband,

Richard, operated from home. After information about

Richard Hallock’s credit card was stolen and used to pay

the subscription fee for a child pornography Web site,

agents of the United States Customs Service, investigating

the Web site, traced the payment to Richard Hallock’s

card and got a warrant to search the Hallocks’ residence.

2 WILL v. HALLOCK

Opinion of the Court

With that authority, they seized the Hallocks’ computer

equipment, software, and disk drives. No criminal charges

were ever brought, but the Government’s actions produced

a different disaster. When the computer equipment was

returned, several of the disk drives were damaged, all of

the stored data (including trade secrets and account files)

were lost, and the Hallocks were forced out of business.

In July 2002, Susan Hallock and her company brought

an action against the United States under the Federal

Tort Claims Act, invoking the waiver of sovereign immu-

nity, 28 U. S. C. §1346, and alleging negligence by the

customs agents in executing the search. The merits of the

claim were never addressed, for the District Court granted

the Government’s motion to dismiss, holding that the

agents’ activities occurred in the course of detaining goods

and thus fell within an exception to the Act’s waiver of

sovereign immunity, §2680(e). Hallock v. United States,

253 F. Supp. 2d 361 (NDNY 2003).

While the suit against the Government was still pend-

ing, Susan Hallock filed this action against the individual

agents under Bivens v. Six Unknown Fed. Narcotics

Agents, 403 U. S. 388 (1971), alleging in her complaint

that the agents had damaged her computers and thus

deprived her of property including business income in

violation of the Due Process Clause of the Fifth Amend-

ment. After the District Court dismissed the first suit

against the Government, the agents moved for judgment

in the Bivens action, citing the judgment bar of the Tort

Claims Act, that “the judgment in an action under 1346(b)

of this title shall constitute a complete bar to any action by

the claimant, by reason of the same subject matter,

against the employee of the government whose act or

omission gave rise to the claim.” §2676.

The District Court denied the motion, holding that

dismissal of the action against the Government under the

Tort Claims Act was solely on a procedural ground, and

Cite as: 546 U. S. ____ (2006) 3

Opinion of the Court

thus failed to raise the judgment bar. Hallock v. Bonner,

281 F. Supp. 2d 425, 427 (NDNY 2003). The Court of

Appeals for the Second Circuit affirmed, after first finding

jurisdiction under the collateral order doctrine. Hallock v.

Bonner, 387 F. 3d 147 (2004). We granted certiorari to

consider the judgment bar, 545 U. S. ___ (2005), but now

vacate for want of appellate jurisdiction on the part of the

Court of Appeals.

II

The collateral order doctrine, identified with Cohen v.

Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), is

“best understood not as an exception to the ‘final decision’

rule laid down by Congress in §1291, but as a ‘practical

construction’ of it.” Digital Equipment, supra, at 867

(quoting Cohen, supra, at 546). Whereas 28 U. S. C. §1291

“gives courts of appeals jurisdiction over ‘all final deci-

sions’ of district courts” that are not directly appealable to

us, Behrens v. Pelletier, 516 U. S. 299, 305 (1996), the

collateral order doctrine accommodates a “small class” of

rulings, not concluding the litigation, but conclusively

resolving “claims of right separable from, and collateral to,

rights asserted in the action,” ibid. (internal quotation

marks omitted). The claims are “too important to be

denied review and too independent of the cause itself to

require that appellate consideration be deferred until the

whole case is adjudicated.” Cohen, supra, at 546.

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.’ ” Puerto Rico Aqueduct and Sewer

Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 144

(1993) (quoting Coopers & Lybrand v. Livesay, 437 U. S.

463, 468 (1978)). The conditions are “stringent,” Digital

4 WILL v. HALLOCK

Opinion of the Court

Equipment, supra, at 868 (citing Midland Asphalt Corp. v.

United States, 489 U. S. 794, 799 (1989)), and unless they

are kept so, the underlying doctrine will overpower the

substantial finality interests §1291 is meant to further:

judicial efficiency, for example, and the “sensible policy ‘of

avoid[ing] 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.’ ” Firestone Tire & Rubber Co. v.

Risjord, 449 U. S. 368, 374 (1981) (quoting Cobbledick v.

United States, 309 U. S. 323, 325 (1940)).

Accordingly, we have not mentioned applying the collat-

eral order doctrine recently without emphasizing its mod-

est scope. See, e.g., Digital Equipment, 511 U. S., at 868

(“[T]he ‘narrow’ exception should stay that way and never

be allowed to swallow the general rule that a party is

entitled to a single appeal, to be deferred until final judg-

ment has been entered . . . ” (citation omitted)). And we

have meant what we have said; although the Court has

been asked many times to expand the “small class” of

collaterally appealable orders, we have instead kept it

narrow and selective in its membership.

A

Prior cases mark the line between rulings within the

class and those outside. On the immediately appealable

side are orders rejecting absolute immunity, Nixon v.

Fitzgerald, 457 U. S. 731, 742 (1982), and qualified immu-

nity, Mitchell v. Forsyth, 472 U. S. 511, 530 (1985). A

State has the benefit of the doctrine to appeal a decision

denying its claim to Eleventh Amendment immunity,

Puerto Rico Aqueduct, supra, at 144–145, and a criminal

defendant may collaterally appeal an adverse ruling on a

defense of double jeopardy, Abney v. United States, 431

U. S. 651, 660 (1977).

The examples admittedly raise the lawyer’s temptation

Cite as: 546 U. S. ____ (2006) 5

Opinion of the Court

to generalize. In each case, the collaterally appealing

party was vindicating or claiming a right to avoid trial, in

satisfaction of the third condition: unless the order to

stand trial was immediately appealable, the right would

be effectively lost. Those seeking immediate appeal there-

fore naturally argue that any order denying a claim of

right to prevail without trial satisfies the third condition.

But this generalization is too easy to be sound and, if

accepted, would leave the final order requirement of §1291

in tatters. We faced this prospect in Digital Equipment,

supra, an appeal from an order rescinding a settlement

agreement. Petitioner asserted a “ ‘right not to stand trial’

requiring protection by way of immediate appeal,” analo-

gizing the rescission to a denial of immunity. Id., at 869.

We said no, however, lest “every right that could be en-

forced appropriately by pretrial dismissal [be] loosely . . .

described as conferring a ‘right not to stand trial.’ ” Id., at

873. Otherwise, “almost every pretrial or trial order might

be called ‘effectively unreviewable’ in the sense that relief

from error can never extend to rewriting history.” Id., at

872.

“Allowing immediate appeals to vindicate every such

right would move §1291 aside for claims that the dis-

trict court lacks personal jurisdiction, that the statute

of limitations has run, that the movant has been de-

nied his Sixth Amendment right to a speedy trial, that

an action is barred on claim preclusion principles,

that no material fact is in dispute and the moving

party is entitled to judgment as a matter of law, or

merely that the complaint fails to state a claim. Such

motions can be made in virtually every case.” Id., at

873 (citations omitted).

B

Since only some orders denying an asserted right to

avoid the burdens of trial qualify, then, as orders that

6 WILL v. HALLOCK

Opinion of the Court

cannot be reviewed “effectively” after a conventional final

judgment, the cases have to be combed for some further

characteristic that merits appealability under Cohen; and

as Digital Equipment explained, that something further

boils down to “a judgment about the value of the interests

that would be lost through rigorous application of a final

judgment requirement.” 511 U. S., at 878–879 (citing Van

Cauwenberghe v. Biard, 486 U. S. 517, 524 (1988)). See

also Lauro Lines s.r.l. v. Chasser, 490 U. S. 495, 502 (1989)

(“The importance of the right asserted has always been a

significant part of our collateral order doctrine” (SCALIA,

J., concurring)).

Thus, in Nixon, supra, we stressed the “compelling

public ends,” id., at 758, “rooted in . . . the separation of

powers,” id., at 749, that would be compromised by failing

to allow immediate appeal of a denial of absolute Presi-

dential immunity, id., at 743, 752, n. 32. In explaining

collateral order treatment when a qualified immunity

claim was at issue in Mitchell, supra, we spoke of the

threatened disruption of governmental functions, and fear

of inhibiting able people from exercising discretion in

public service if a full trial were threatened whenever they

acted reasonably in the face of law that is not “clearly

established.” Id., at 526. Puerto Rico Aqueduct, 506 U. S.

139, explained the immediate appealability of an order

denying a claim of Eleventh Amendment immunity by

adverting not only to the burdens of litigation but to the

need to ensure vindication of a State’s dignitary interests.

Id., at 146. And although the double jeopardy claim given

Cohen treatment in Abney, supra, did not implicate a right

to be free of all proceedings whatsoever (since prior jeop-

ardy is essential to the defense), we described the enor-

mous prosecutorial power of the Government to subject an

individual “to embarrassment, expense and ordeal . . .

compelling him to live in a continuing state of anxiety,”

id., at 661–662 (internal quotation marks omitted); the

Cite as: 546 U. S. ____ (2006) 7

Opinion of the Court

only way to alleviate these consequences of the Govern-

ment’s superior position was by collateral order appeal.

In each case, some particular value of a high order was

marshaled in support of the interest in avoiding trial:

honoring the separation of powers, preserving the effi-

ciency of government and the initiative of its officials,

respecting a State’s dignitary interests, and mitigating the

government’s advantage over the individual. That is, it is

not mere avoidance of a trial, but avoidance of a trial that

would imperil a substantial public interest, that counts

when asking whether an order is “effectively” unreview-

able if review is to be left until later. Coopers & Lybrand,

437 U. S., at 468.

C

Does the claim of the customs agents in this case serve

such a weighty public objective that the judgment bar

should be treated as an immunity demanding the protec-

tion of a collateral order appeal? One can argue, of course,

that if the Bivens action goes to trial the efficiency of

Government will be compromised and the officials bur-

dened and distracted, as in the qualified immunity case: if

qualified immunity gets Cohen treatment, so should the

judgment bar to further litigation in the aftermath of the

Government’s success under the Tort Claims Act. But the

cases are different. Qualified immunity is not the law

simply to save trouble for the Government and its employ-

ees; it is recognized because the burden of trial is unjusti-

fied in the face of a colorable claim that the law on point

was not clear when the official took action, and the action

was reasonable in light of the law as it was. The nub of

qualified immunity is the need to induce officials to show

reasonable initiative when the relevant law is not “clearly

established,” Harlow v. Fitzgerald, 457 U. S. 800, 818

(1982); see also Saucier v. Katz, 533 U. S. 194, 202 (2001); a

quick resolution of a qualified immunity claim is essential.

8 WILL v. HALLOCK

Opinion of the Court

There is, however, no such public interest at stake

simply because the judgment bar is said to be applicable.

It is not the preservation of initiative but the avoidance of

litigation for its own sake that supports the judgment bar,

and if simply abbreviating litigation troublesome to Gov-

ernment employees were important enough for Cohen

treatment, collateral order appeal would be a matter of

right whenever the government lost a motion to dismiss

under the Tort Claims Act, or a federal officer lost one on a

Bivens action, or a state official was in that position in a

case under 42 U. S. C. §1983, or Ex parte Young, 209 U. S.

123 (1908). In effect, 28 U. S. C. §1291 would fade out

whenever the government or an official lost an early round

that could have ended the fight.

Another difference between qualified immunity and the

judgment bar lies in the bar’s essential procedural ele-

ment. While a qualified immunity claim is timely from

the moment an official is served with a complaint, the

judgment bar can be raised only after a case under the

Tort Claims Act has been resolved in the Government’s

favor. If a Bivens action alone is brought, there will be no

possibility of a judgment bar, nor will there be so long as a

Bivens action against officials and a Tort Claims Act

against the Government are pending simultaneously (as

they were for a time here). In the present case, if Susan

Hallock had brought her Bivens action and no other, the

agents could not possibly have invoked the judgment bar

in claiming a right to be free of trial. The closer analogy to

the judgment bar, then, is not immunity but the defense of

claim preclusion, or res judicata.

Although the statutory judgment bar is arguably

broader than traditional res judicata, it functions in much

the same way, with both rules depending on a prior judg-

ment as a condition precedent* and neither reflecting a

——————

* The right to be free of double jeopardy is subject to an analogous

Cite as: 546 U. S. ____ (2006) 9

Opinion of the Court

policy that a defendant should be scot free of any liability.

The concern behind both rules is a different one, of avoid-

ing duplicative litigation, “multiple suits on identical

entitlements or obligations between the same parties.” 18

C. Wright, A. Miller, & E. Cooper, Federal Practice and

Procedure §4402, p. 9 (2d ed. 2002) (internal quotation

marks omitted). But this rule of respecting a prior judg-

ment by giving a defense against relitigation has not been

thought to protect values so great that only immediate

appeal can effectively vindicate them. As we indicated in

Digital Equipment, in the usual case, absent particular

reasons for discretionary appeal by leave of the trial court,

a defense of claim preclusion is fairly subordinated to the

general policy of deferring appellate review to the moment

of final judgment. 511 U. S., at 873.

The judgment bar at issue in this case has no claim to

greater importance than the typical defense of claim pre-

clusion; and we hold true to form in deciding what Digital

Equipment implied, that an order rejecting the defense of

judgment bar under 28 U. S. C. §2676 cries for no immedi-

ate appeal of right as a collateral order.

We vacate the judgment of the Court of Appeals and

remand with instructions to dismiss the appeal for lack of

jurisdiction.

——————

condition, that jeopardy have attached in a prior proceeding, Monge v.

California, 524 U. S. 721, 728 (1998), a characteristic that distinguishes

the Fifth Amendment right from other immunities mentioned above.

But, as we explained, double jeopardy deserves immunity treatment

under §1291 owing to the enormous advantage of a government prose

-

cutor who chooses to go repeatedly against an individual.