Document Type

Amicus Brief

Publication Date



The burden on the thirteen Article III Courts of Appeals has increased significantly in recent years. Data maintained by the Administrative Office of the U.S. Courts demonstrate the increasing numerical caseload of the Article III courts of appeals over the last 5, 10, and 25 year periods, even as the number of congressionally authorized judgeships has remained almost static, and the real-dollar value of judicial budgets - including salaries - has decreased.

However, the data tell only part of the story. The same period has also witnessed a subtle but more profound change in the substantive nature of some classes of appellate review, especially as most of the circuit courts have come to serve as courts of first impression in immigration appeals - a body of cases comprising as much as 40% of some circuits annual dockets.

The pressures created by both the size and nature of contemporary appellate dockets are only heightened to the extent that the courts of appeals generally lack control over their jurisdiction, and are thus in danger of being overwhelmed. As a result, circuit courts have increasingly resorted to other, less obvious means for dealing with their overcrowded dockets, including an increase in the number of cases decided without oral argument, an increasing resort to staff attorneys and other court personnel for assistance in decision-making, and an increase in the number of unpublished dispositions - even in cases that appear to be creating new law.

The final judgment rule codified in 28 U.S.C. sec. 1291 has been an important bulwark against these added pressures. More than just a tool for increasing the efficiency of litigation, the final judgment rule serves as an important statutory barrier to what might otherwise be a deluge of interlocutory appeals.

Of course, both Congress and this Court have recognized the need for limiting exceptions to the final judgment rule. But this is not such a case. This Court has crafted the collateral order doctrine as a carefully circumscribed construction of sec. 1291. There are virtually no principled bases of distinction between the district court decision in this case and thousands of district court decisions every year in which the applicability of evidentiary privileges is rejected. Thus, application of the collateral order doctrine to this case risks converting the exception to the rule, thereby dramatically increasing the workload of already overburdened appellate courts while fundamentally inverting the institutional role of the trial and appellate courts in the federal judicial system.

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