Shea T. Burns-vidlak, a Minor, by His Mother and Next Friendhoney Burns; George Cohn, Plaintiffs-appellees, v. Susan Chandler, in Her Official Capacity As the Director Ofthe Department of Human Services of the State Ofhawaii; the State of Hawaii,defendants-appellants, 165 F.3d 1257 (9th Cir. 1999)

Susan Chandler, in her official capacity as the director of the Department of Human Services of the State of Hawaii, and the State of Hawaii [collectively hereinafter "the State"] appeal the denial of their motion for partial summary judgment on the question whether punitive damages are available against a state under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 (1994) [hereinafter "Title II"], and section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (1994) [hereinafter "Section 504"]. We dismiss this appeal for lack of subject matter jurisdiction.

* This suit involves a challenge under Title II and Section 504 to Hawaii's QUEST¹  health care program. Burns-Vidlak claims that the categorical exclusion of blind and disabled persons from participation in the QUEST program prior to April 1, 1996 constituted unlawful discrimination in violation of Title II and Section 504. Burns-Vidlak originally filed this action solely against Susan Chandler, in her official capacity as the director of Hawaii's Department of Human Services. See Burns-Vidlak, 939 F. Supp. at 766. The district court granted partial summary judgment in favor of Burns-Vidlak, holding, as a matter of law, that Hawaii's exclusion of blind and disabled individuals from the QUEST program violated Title II and Section 504. See id. at 771-73. The court further held, and Hawaii conceded, that monetary damages are available to compensate injuries caused by Hawaii's violation of Title II and Section 504. See id. at 773, 770.

The district court subsequently allowed Burns-Vidlak to amend his complaint to add the State of Hawaii as a defendant and to seek punitive damages against both defendants. The State then moved for partial summary judgment, claiming that the Eleventh Amendment²  shields it from exposure to punitive damages under Title II and Section 504. The district court denied the State's motion and the present appeal followed.

II

In general, only final judgments of a district court may be reviewed on appeal.³  See Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S. Ct. 1494, 103 L. Ed. 2d 879 (1989). A district court's decision in a civil case is final if it " 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " California v. Campbell, 138 F.3d 772, 776 (9th Cir. 1998) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S. Ct. 631, 89 L. Ed. 911 (1945)). As the State acknowledges, the district court's order denying its motion for partial summary judgment is not a "final decision" under 28 U.S.C. § 1291. Accordingly, the State urges the panel to ground its subject matter jurisdiction in the collateral order doctrine as articulated in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949).

The Cohen collateral order doctrine is "a narrow exception to the normal application of the final judgment rule," Midland, 489 U.S. at 798, 109 S. Ct. 1494, which "recognizes that a limited class of prejudgment orders is sufficiently important and sufficiently separate from the underlying dispute that immediate appeal should be available," Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 375, 107 S. Ct. 1177, 94 L. Ed. 2d 389 (1987). The collateral order doctrine permits an appeal from a non-final judgment provided three criteria are satisfied: the "order must (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." Midland, 489 U.S. at 799, 109 S. Ct. 1494 (internal quotation marks omitted). The State bears the burden of demonstrating that all three requirements are fulfilled. See Stringfellow, 480 U.S. at 375, 107 S. Ct. 1177.

The Supreme Court has emphasized that the conditions for collateral order appeal are to be stringently applied to ensure that this narrow exception "never be allowed to swallow the general rule" requiring a judgment to be final prior to appeal. Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S. Ct. 1992, 128 L. Ed. 2d 842 (1994). We therefore determine the applicability of the collateral order doctrine "without regard to the chance that the litigation at hand might be speeded, or a particular injustice averted, by a prompt appellate court decision." Id. (internal citation and quotation marks omitted).

We find it unnecessary to address the first two criteria of the Cohen test because we conclude that the State has failed to satisfy the third criterion. The State claims that, in light of Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1993), the district court's determination that punitive damages are available against the State under Title II and Section 504 is effectively unreviewable on appeal. The State is mistaken.

In Metcalf & Eddy, the Supreme Court held that states may invoke the Cohen collateral order doctrine to appeal immediately a district court order denying a claim of Eleventh Amendment immunity from suit in federal court. Id. at 141, 113 S. Ct. 684. The Court grounded its holding in the recognition that the Eleventh Amendment "confers an immunity from suit [in federal court]"⁴  and that this protection would be " 'effectively lost if a case is erroneously permitted to go to trial.' "⁵  Id. at 144, 113 S. Ct. 684 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985)). Put differently, a district court's denial of a state's entitlement to Eleventh Amendment immunity is "effectively unreviewable on appeal from a final judgment," Midland, 489 U.S. at 799, 109 S. Ct. 1494 (internal quotation marks omitted), since the harm to the state's "dignitary interests" in not being haled into another sovereign's court in the first instance cannot be undone, Metcalf & Eddy, 506 U.S. at 146, 113 S. Ct. 684.

In the instant case, the State is not claiming sovereign immunity from suit in federal court.⁶  In fact, the state concedes that it is subject to suit, and answerable in money damages, in federal court on the appellees' Title II and Section 504 claims. See Burns-Vidlak v. Chandler, 939 F. Supp. 765, 770 (D. Haw. 1996). Rather, the State invokes the Eleventh Amendment merely as a defense to liability for punitive damages under Title II and Section 504. But a "defense to the payment of money ... is far removed from the kind [ ] of immunit [y] from the judicial process involved in Metcalf & Eddy ...." Pullman Constr. Indus., Inc. v. United States, 23 F.3d 1166, 1169 (7th Cir. 1994). "The foundation for the interlocutory appeal authorized by [Metcalf & Eddy ] is the existence of a right not to be a litigant.... Once the [state] defendants concede that the litigation is proper, they undermine any claim of entitlement to an interlocutory appeal." Mercer v. Magnant, 40 F.3d 893, 896-97 (7th Cir. 1994).

Indeed, the Supreme Court has made it clear that a potentially "erroneous ruling on liability may be reviewed effectively on appeal from final judgment."⁷  Swint v. Chambers County Commission, 514 U.S. 35, 43, 115 S. Ct. 1203, 131 L. Ed. 2d 60 (1995). Thus, the State has failed to satisfy the third criterion of the Cohen test, rendering the district court's order denying the State's motion for partial summary judgment an unappealable collateral order. APPEAL DISMISSED.