The States Can Wait: The Immediate Appealability of Orders Denying Eleventh Amendment Immunity

Abstract

The Eleventh Amendment of the United States Constitution prohibits federal courts from taking jurisdiction over suits brought against a state by citizens of other states or of foreign nations.' According to the Supreme Court, the amendment embodies a broad constitutional principle of state sovereign immunity.2 The correct characterization of this immunity, however, remains unclear. Is it a right not to stand trial or is it merely a defense to liability? This question becomes important when a state tries to appeal immediately from a denial of a motion to dismiss on Eleventh Amendment immunity grounds. A state will seek immediate review of such an interlocutory order because a reversal would dispose of the case and save the cost of lengthy proceedings in the trial court. Unfortunately for states, federal law generally prohibits immediate appellate review of interlocutory orders.3 Because appeals from interlocutory orders can create piecemeal litigation, the Supreme Court has consistently held that the final judgment rule prohibits immediate review of an interlocutory order unless it is a order. Under the collateral order exception to the final judgment rule, a state may appeal immediately from a denial of a motion to dismiss on Eleventh Amendment immunity grounds only if the immunity gives the state a right not to stand trial. If it gives the state merely a defense to liability, the state must await final judgment before appealing.