Appellate Jurisdiction of a Non-Final Order: Denial of Eleventh Amendment Immunity

Everyone knows the general rule that an appeal lies only from a final judgment. But there are rare exceptions. State of Alaska v. EEOC, case no. 07-70174 (9th Cir. Nov. 8, 2007) illustrates one of them.

Plaintiffs were political appointees in the Alaska Governor’s Office who, after their discharge, filed claims with the EEOC against the Governor’s Office alleging various forms of harassment and/or discrimination. The Governor’s Office moved for summary judgment on Eleventh Amendment immunity. The Administrative Law Judge felt he lacked jurisdiction to decide the Eleventh Amendment issue and certified the question to the EEOC. The EEOC, holding that “an agency will not rule on the constitutionality of the statute that it is assigned to administer,” remanded back to the ALJ.

The Governor’s Office appealed from the remand order. The Ninth holds that it has jurisdiction to consider the appeal, even though the remand order is not a final judgment, because an “order denying a state’s claim to Eleventh Amendment immunity is an appealable collateral order.”

By the way, plaintiffs lose despite a federal statute purporting to abrogate state immunity from claims by persons holding government positions similar to those held by plaintiffs. The Ninth finds that the legislation does not meet the requirements for validity set by the Supreme Court because there are no findings of discrimination in such positions that required a remedy.

The merits earn three opinions from a three-judge panel, one in dissent.

UPDATE (11/9/07): Professor Martin gives a nice run-down of the merits and predicts the case is headed not only for en banc review but likely to the Supreme Court. Read why at California Appelate Report.