Under Seal, Plaintiff-appellee, v. Under Seal, Defendant-appellant.under Seal, Plaintiff-appellee, v. Under Seal, Defendant-appellant, 326 F.3d 479 (4th Cir. 2003)

Appellants, two corporations who participate in the National Flood Insurance Program ("NFIP"), object to a district court order unsealing a False Claims Act ("FCA") complaint brought against them by the government as intervenor in a previously sealed complaint brought under the FCA's qui tam provision. Finding no error in the district court's exercise of discretion in unsealing the record, we affirm.

In 2000, an unidentified party filed a qui tam action, as relator, under the FCA against the appellants for allegedly wrongful insurance payments they made under the NFIP. The action was filed under seal, pursuant to the terms of the FCA's qui tam provision, which reads as follows:

(1) A person may bring a civil action for a violation of section 3729 for the person and for the United States Government....

(2) A copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the Government... The complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court so orders....

(3) The Government may, for good cause shown, move the court for extensions of the time during which the complaint remains under seal under paragraph (2)....

(4) Before the expiration of the 60-day period or any extensions obtained under paragraph (3), the Government shall —

(A) proceed with the action ...; or

(B) notify the court that it declines to take over the action

....

....

31 U.S.C. § 3730(b). The relator's action lay fallow as the government extended its investigative period. Then, on January 8, 2002, the government notified appellants that it would intervene in the suit and proceed against them.

Before the government filed an intervening complaint, the appellants moved to compel the government to arbitrate the controversy with them, as required by the Subsidy Arrangement that governs participation in the NFIP. See 42 C.F.R. Ch. 1, Pt. 62, App. A (2001). Shortly thereafter, the government filed its intervening complaint with the district court, along with a motion to unseal the action. On June 3, 2002, the court issued an order (1) compelling arbitration, (2) staying the government's complaint, and (3) unsealing the action.

The court stayed the effect of its unsealing order for ten days in order to allow appellants to take an appeal to this court. Appellants did appeal, and a motions panel of this court stayed the unsealing order pending our disposition.

As an initial matter, there is a significant question as to whether we have jurisdiction to hear this appeal. The government contends that the appeal is interlocutory, and therefore foreclosed from our review by 28 U.S.C. § 1291 (providing the court of appeals with jurisdiction to hear appeals only "from [] final decisions of the district courts"). Appellants, on the other hand, argue that the district court's order is a collateral order, reviewable under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). The binding effect of our precedent compels us to conclude that the district court's order unsealing the record is appealable.

Our analysis of the collateral order doctrine begins with the twist, uncommon in this circuit, that our precedent sets forth two different standards for determining whether a district court order qualifies as a collateral order.

The parties approach the collateral order analysis principally via our decision in James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993). Citing James, along with Taylor v. Nelson, 788 F.2d 220, 224 (4th Cir. 1986), they both proceed on the assumption that the district court's order unsealing the record must meet four criteria to qualify for Cohen collateral appealability. They say the order must (1) conclusively determine the question, (2) resolve an important question independent of the merits, (3) be effectively unreviewable on appeal from final judgment, and (4) present a serious and unsettled question on appeal. Elsewhere in our precedent, however, this last factor, the fourth "factor," is not applied, and the first three factors are alone determinative of appealability. See, e.g., Hopkins v. Prince George's County, 309 F.3d 224 (4th Cir. 2002).

Cohen v. Beneficial Industrial Loan Corp. first laid the framework for the collateral order doctrine. There, the Supreme Court held collateral orders appealable because they:

finally determine claims of right separable from, and collateral to, rights asserted in the action, [are] too important to be denied review and [are] too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. 337 U.S. at 546. Since Cohen, the Court has described and/or applied the collateral order analysis at least twenty-nine times in majority opinions. In every one of those instances, save one, the Court either identified or both identified and applied the three factors recited in Cohen.¹  And, in numerous of those cases the Court explicitly denominated its test as a three-factor, three pronged, or three part test.²  The twenty-eight uniform opinions — identifying the collateral order test as having three factors—sandwich the lone opinion, Nixon v. Fitzgerald, in which the Court asserted that the test includes the fourth "factor."³  On the few other occasions on which the Supreme Court has noted the "serious and unsettled" factor in its opinions, the Court has noted the "factor" as a circuit rule. That is, the Court there has noted that a particular circuit has applied the fourth "factor," not that the "factor" is required by Supreme Court precedent. See, e.g., Gulfstream Aerospace Corp., 485 U.S. at 291, 108 S. Ct. 1133 (Scalia, J., concurring) ("I note that today's result could also be reached by application of the rule adopted by the First Circuit, that to come within the Cohen exception the issue on appeal must involve an important and unsettled question of controlling law ..." (emphasis added)); McDonald v. Smith, 472 U.S. 479, 482 n. 3, 105 S. Ct. 2787, 86 L. Ed. 2d 384 (1985) (noting our circuit's application of the fourth "factor").⁴ 

Because the Court's most recent pronouncement and virtually all of its other opinions establish that the collateral order test is a three factor test, we now understand the Supreme Court's collateral order test to be such, and, by implication, we conclude that the fourth "factor" is not part of the test. See Cunningham v. Hamilton County, 527 U.S. 198, 202, 119 S. Ct. 1915, 144 L. Ed. 2d 184 (1999) (" [T]he collateral order doctrine [ ] provides that certain orders may be appealed, notwithstanding the absence of final judgment,... when they are [1] conclusive, ... [2] resolve important questions separate from the merits, and [3] are effectively unreviewable on appeal from the final judgment in the underlying action." (citing Swint v. Chambers County Comm'n, 514 U.S. 35, 115 S. Ct. 1203, 131 L. Ed. 2d 60 (1995) (citing Cohen))).

In determining that the Supreme Court's collateral order test is a three factor test we are not only consistent with the Court's most recent pronouncement, but also with the overwhelming majority of all its pronouncements on the subject. Furthermore, our conclusion in this regard is consistent with the Court's earliest pronouncement on the matter, see Swift & Co. Packers, and with its seminal pronouncement in Abney v. United States, 431 U.S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977), in which it first adopted the term "collateral order," see id. at 657, 97 S. Ct. 2034.

In Abney, the Court made abundantly clear through its detailed analysis that under Cohen's holding only three factors govern the determination of whether a court order is an appealable collateral order:

[In Cohen], the Court identified several factors which, in its view, rendered the District Court's order a "final decision" within the statute's meaning. First, the District Court's order had fully disposed of the question of the state security statute's applicability in federal court; in no sense, did it leave the matter "open, unfinished or inconclusive." Second, the decision was not simply a "step toward final disposition of the merits of the case (which would) be merged in final judgment"; rather, it resolved an issue completely collateral to the cause of action asserted. Finally, the decision had involved an important right which would be "lost, probably irreparably," if review had to await final judgment; hence, to be effective, appellate review in that special limited setting had to be immediate.

Abney, 431 U.S. at 658, 97 S. Ct. 2034 (emphasis added) (citations omitted). The Abney Court did not so much as mention Cohen's note that the issue there presented a "serious and unsettled question."

Our circuit began applying the fourth "factor" in Bever v. Gilbertson, 724 F.2d 1083, 1085 (4th Cir. 1984) (citing Cohen) (abrogated on different grounds by Young v. Lynch, 846 F.2d 960 (4th Cir. 1988)). There, we noted that Cohen described the order being reviewed as "present [ing] a serious and unsettled question." Since Bever, we have, in fourteen instances, treated that notation as a fourth element to the collateral order analysis, see, e.g., Taylor v. Nelson, 788 F.2d 220, 224 (4th Cir. 1986) (citing Bever). Those fourteen instances compare with one-thousand-plus cases over the same period of time in which we did not apply that fourth "factor" when applying Cohen's collateral order doctrine. From In re: Investigation, 563 F.2d 652 (4th Cir. 1977), to Miller v. Simmons, 814 F.2d 962 (4th Cir. 1987), to Hopkins v. Prince George's County, 309 F.3d 224 (4th Cir. 2002), we have at all other times hewed to the Supreme Court's prescribed analysis, applying Cohen's three factors.

As a panel of the full court, we cannot overrule prior decisions of the court, panel or en banc, and we are bound to apply principles decided by prior decisions of the court to the questions we address. But here, where we confront two different rules governing the same question, we are left no option but to choose from between our differing precedents. We would rather not hold this judicial license. However, until such time as the en banc court addresses itself to the jurisprudential dilemma presented by these different precedents, such is the only course available to us.

Sitting en banc in Jenkins v. Medford, 119 F.3d 1156 (4th Cir. 1997), we applied the Cohen collateral appealability test without any reference to the fourth "factor." And we have never otherwise applied the fourth "factor" while sitting en banc. Though Jenkins did not claim to overrule Bever, and though after Jenkins a panel again reinserted the fourth "factor" into our Cohen doctrine, see Eagle Energy, Inc. v. Secretary of Labor, 240 F.3d 319 (4th Cir. 2001), we believe that Jenkins, along with the numerous similar panel applications of Cohen, is grounds for concluding that our circuit's preference in practice is to hew strictly to Cohen's three factor test. To the extent that any thought has even been given to the issue, this preference may be attributable to the twin facts that, to do otherwise, would not only conflict necessarily with Supreme Court authority but also lead to doctrinally indefensible results. As to the first of these putative reasons, imposition of an additional element conflicts necessarily with the Supreme Court's standard, since the elements of its collateral order test establish a minimum threshold for our jurisdiction. And as to the second reason, by way of example, if one may not immediately appeal unless the issue is unsettled, then he would be foreclosed from interlocutory review of an order which, under established precedent, would clearly be violative of the Double Jeopardy Clause. For these reasons, we choose not to apply the fourth "factor" here, a decision that, happily, keeps us as true as possible to our prior circuit practice.

The government pitched its argument against appealability of the unsealing order solely on the contention that the order did not satisfy the fourth "factor." It conceded (insofar as one can "concede" a jurisdictional issue) that the "other" three Cohen appealability factors were met. Obviously, the government's position takes on significance in light of our conclusion that the fourth "factor" is not applicable. But, irrespective of whether we would agree with the government's assessment of the three factors, our decision in James v. Jacobson, 6 F.3d at 237, compels the conclusion that the order in question here is a collateral order. See id. (holding that a district court order denying anonymity to the parties is a collateral order).

In James, the subject of the district court's order was a matter of discretion, involving the court's interest in trial management. And it involved a determination as to whether the rights of public access to trial proceedings were outweighed by the parties' privacy rights. Here, in identical fashion, the subject of the court's order is a matter of discretion, founded on the court's interest in trial management. And it equally involves a determination of whether rights of public access are outweighed by the parties' privacy rights. Furthermore, in both cases the privacy concern of the objecting parties is that the court's order will result in their being publicly identified with the action. On these similarities, we cannot avoid the conclusion that James applies, nor can we but hold that the order in this case is likewise appealable.⁵ 

Turning to the merits, we review the district court's order to unseal the record for an abuse of discretion. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 598-99, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978) (concluding that decisions as to court record access are best left to the trial court's discretion since that court can best evaluate whether one of the three established exceptions to the presumption of public access — (1) where disclosure may be used to gratify private spite or promote public scandal, (2) where disclosed records may serve as reservoirs of libelous statements for press consumption, or (3) where disclosure might reveal trade secrets — creates a countervailing privacy right that supports sealing in light of the particular facts and circumstances of the case).

Appellants argue that the combined effect of the FCA's initial sealing of qui tam actions and the Subsidy Agreement's commitment of government suits against NFIP insurers to private arbitration, governed by the Federal Arbitration Act ("FAA"), work to create a substantial privacy interest for them that overcomes the public's right to access court documents. They also argue that to rule otherwise would be to "reward the government's improper conduct," Appellant's Br. at 10, which conduct they contend entails "prematurely seek [ing] to make its case public in contravention of the private arbitration protocol of the Subsidy Arrangement of the NFIP," id. at 10.

In response, the government first argues, quite correctly, that the presumption in favor of public disclosure of court records can only be overcome by a significant countervailing interest. See Rushford v. New Yorker, 846 F.2d 249, 253 (4th Cir. 1988). Secondly, it rightly points out that there is no bar on litigants filing pleadings in cases where arbitration is required, whether that filing is to challenge the scope of arbitration, preserve an action before a statute of limitations runs, or for another reason. See, e.g., Long v. Silver, 248 F.3d 309 (4th Cir. 2001) (determining applicability of arbitration provision to non-signatory, and collecting cases of court consideration of arbitration related issues). Lastly, the government correctly notes that the FCA's purpose in initially sealing qui tam suits does not extend to the sealing appellants seek. See Lujan v. Hughes Aircraft Co., 67 F.3d 242 (9th Cir. 1995) (explaining that purpose of § 3730(b) (2)'s sealing provision is to allow the government to study and evaluate, out of public view, the relator's information for possible intervention or overlapping criminal investigation). We add that neither the Subsidy Agreement nor the FAA requires that the parties maintain secrecy during arbitration. They only deny the public any right to access arbitration records. Where a party, of its own accord, places information in a public domain, it offends neither the regulatory nor the statutory regime.

These points, taken together, confirm that appellants have no privacy rights in the contents of the court record. Since the purpose of the FCA does not support continued sealing, and only justifies sealing in order that the government may investigate, appellants' reliance on that Act is misplaced. And, appellants cannot rely on either the Subsidy Arrangement or the FAA, as neither prohibits the government from placing its complaint against appellants in the public domain. Since appellants lack privacy rights to this information, and since there is no bar to filing court pleadings in connection with an arbitrated matter, the government's conduct cannot be characterized as "improper."

Unable to demonstrate any relevant privacy right, appellants fail to satisfy Rushford's high standard and to overcome the public's right to access court documents. The district court's discretionary order unsealing the record is therefore not an abuse of discretion.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED

DIANA GRIBBON MOTZ, concurring:

I concur in the judgment and in much of the majority's rationale. I write separately in an effort to reconcile some of the collateral order precedent on the "serious and unsettled question" factor and more fully explain why I believe this factor is not a collateral order requirement.

At the outset, it seems only fair to note that the conflict within the precedent of this circuit noted by the majority, ante at 481-482 and 483-484, undoubtedly stems from the disarray in Supreme Court precedent. Since establishing the collateral order doctrine more than fifty years ago in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949), the high court has not hewed to an entirely consistent approach.

In Cohen itself the Court stated the rationale for the collateral order doctrine as follows:

[When a final judgment on the merits is issued] it will be too late effectively to review the present order and the rights conferred by the statute, if it is applicable, will have been lost, probably irreparably .... This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred.... We hold this order appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it. But we do not mean that every order fixing security is subject to appeal. Here it is the right to security that presents a serious and unsettled question. If the right were admitted or clear and the order involved only an exercise of discretion ... appealability would present a different question.

337 U.S. at 546-47, 69 S. Ct. 1221 (emphasis added). Thus, in the Court's seminal explication of the collateral order doctrine, it clearly attached some importance to the fact that the order before it "present [ed] a serious and unsettled question." Id.

Additionally, in four subsequent cases, the Court has mentioned the "serious and unsettled question" factor in discussing the collateral order doctrine. See Brady v. Maryland, 373 U.S. 83, 85 n. 1, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (stating as the very first factor, in explaining its rationale for finding the order before it appealable, that "the right to a trial on the issue of guilt ... presents a serious and unsettled question" (internal quotation marks and citation omitted)); Nixon v. Fitzgerald, 457 U.S. 731, 742, 102 S. Ct. 2690, 73 L. Ed. 2d 349 (1982) (stating that " [a]s an additional requirement, Cohen established that a collateral appeal of an interlocutory order must `presen [t] a serious and unsettled question'"); McDonald v. Smith, 472 U.S. 479, 482 n. 3, 105 S. Ct. 2787, 86 L. Ed. 2d 384 (1985) (noting without disapproval, in a case arising from the denial of a motion on the pleadings, that the Fourth Circuit had "accepted jurisdiction under the `collateral order' doctrine," " [b]ecause petitioner raised a `serious and unsettled question'"); Hohn v. United States, 524 U.S. 236, 246-47, 118 S. Ct. 1969, 141 L. Ed. 2d 242 (1998) (describing without disapproval, the District of Columbia Circuit's summary dismissal of the interlocutory appeal in Nixon v. Fitzgerald for failure of the order "to satisfy th [e] threshold requirement" of presenting a "`serious and unsettled question' of law sufficient to bring the case within the collateral order doctrine"); see also Gulfstream Aerospace Corp. v. Mayacamas, 485 U.S. 271, 292, 108 S. Ct. 1133, 99 L. Ed. 2d 296 (1988) (Scalia, J., concurring) (noting "some support" in Supreme Court precedent for viewing "serious and unsettled question" as a factor under collateral order doctrine).

Given these cases, it is hardly surprising that several courts of appeals, including ours, have on occasion concluded that whether an interlocutory order involved a "serious and unsettled question" was relevant in determining whether it was immediately appealable as a collateral order. See, e.g., Chaves v. M/V Medina Star, 47 F.3d 153, 155 (5th Cir. 1995); Banque Nordeurope S.A. v. Banker, 970 F.2d 1129, 1131 (2d Cir. 1992); Jim Walter Res., Inc. v. Fed. Mine Safety & Health Review Com'n., 920 F.2d 738, 744-45 n. 3 (11th Cir. 1990); see also ante at 481-482 and 483-484.

But the Supreme Court has never held an interlocutory order not to qualify as an immediately appealable collateral order because it did not involve a "serious and unsettled question." Furthermore, in the years that followed Cohen, the Court has considered the collateral order doctrine on "many occasions," Gulfstream, 485 U.S. at 276, 108 S. Ct. 1133, and the few cases mentioning a "serious and unsettled question" factor are mere drops in this sea of collateral order jurisprudence.

Very frequently the Court has applied the abbreviated, three-factor test (containing no mention of the "serious and unsettled question" factor), which it originally set forth in Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S. Ct. 2454, 57 L. Ed. 2d 351 (1978):

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.

See also Johnson v. Jones, 515 U.S. 304, 310-11, 115 S. Ct. 2151, 132 L. Ed. 2d 238 (1995) (quoting test with bracketed numbers indicating the three-factors, and noting that the Court "restated" the Cohen test in Coopers & Lybrand); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-45, 113 S. Ct. 684, 121 L. Ed. 2d 605 (1992) (quoting test, inserting bracketed numbers, and stating that "to come within" the Cohen rule an order must meet these factors); Midland Asphalt Corp. v. United States, 489 U.S. 794, 799, 109 S. Ct. 1494, 103 L. Ed. 2d 879 (1989) (quoting test and stating that " [t]o fall within the limited class of final collateral orders, an order" must meet these requirements); Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 498, 109 S. Ct. 1976, 104 L. Ed. 2d 548 (1988) (quoting test and noting that the Court has "held that to fall within the Cohen exception an order must satisfy at least [these] three conditions"); Van Cauwenberghe v. Biard, 486 U.S. 517, 522, 108 S. Ct. 1945, 100 L. Ed. 2d 517 (1988) (quoting test and noting that " [t]he Court refined the `collateral order' doctrine of Cohen in Coopers & Lybrand"); Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 431, 105 S. Ct. 2757, 86 L. Ed. 2d 340 (1985) (quoting test and noting "an order must at a minimum satisfy [these] three conditions"); Flanagan v. United States, 465 U.S. 259, 265, 104 S. Ct. 1051, 79 L. Ed. 2d 288 (1984) (same); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 375, 101 S. Ct. 669, 66 L. Ed. 2d 571 (1981) (quoting test and stating that Coopers & Lybrand had "recently defined this limited class of final `collateral orders' in these terms"); Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 11, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983) (quoting test and stating it "summarize [s]" " [t]he factors required").

In addition, as the majority demonstrates, ante at 481-482, even when the Court has not phrased the test in precisely this way, it has almost always applied a similar test that includes no "serious and unsettled question" factor. See, e.g., Abney v. United States, 431 U.S. 651, 658, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977). And often the Court has expressly denominated the governing test as a three-factor or three-pronged test. See ante at 481-482. But see Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974) (characterizing Cohen as holding an "order appealable on two grounds": " [f]irst [the order] settled conclusively [a] claim" and " [s]econd, ... it concerned a collateral matter that would not be reviewed effectively on appeal from the final judgment" (emphasis added)); Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S. Ct. 1712, 135 L. Ed. 2d 1 (1996) (stating four requirements: collateral orders must [1] "conclusively determine a disputed question, that is [2] completely separate from the merits of the action, [3] effectively unreviewable on appeal from a final judgment, and [4] too important to be denied review." (internal quotation marks and citations omitted)).¹ 

Moreover, mandating proof that an order involves a "serious and unsettled question" would seem to present new complications in the already murky and often criticized collateral order jurisprudence. See, e.g., 15A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Proc. § 3911.5 at 432, 438 (2d ed.1991) (noting " [t]he ambiguity of the Supreme Court's approach over time," on this issue and that " [t]he status of the serious and unsettled question aspect of collateral order doctrine thus remains uncertain"); Lloyd C. Anderson, The Collateral Order Doctrine: A New `Serbonian Boy' and Four Proposals, 46 Drake L.Rev. 539 (1998). For example, it is unclear whether a question would have to be "serious" to the parties, or to society in general, or to the development of the law, or that seriousness should be determined in some other way. Precisely when a question no longer remains "unsettled" is also unclear. Generally, we regard a published Court of Appeals opinion as settling a question within the circuit. See, e.g., Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271 n. 2 (4th Cir. 2002) (" [A] panel of this court cannot overrule, explicitly or implicitly, the precedent set by a prior panel of this court...." (internal quotation marks and citation omitted)). But in Nixon, the District of Columbia Circuit had previously issued a published opinion on point but the Supreme Court found the question "unsettled" because the Supreme Court itself had "never so held." Nixon, 457 U.S. at 742, 102 S. Ct. 2690. Given these uncertainties, I think it unlikely that the Supreme Court intended, without greater explanation, to impose this factor as a collateral order requirement.

For all of these reasons, I agree that the "Supreme Court's collateral order test" does not contain a fourth factor requiring the interlocutory order to involve "a serious and unsettled question." See ante at 483. It seems to me that when discussing the "serious and unsettled" factor initially in Cohen itself, the Court was simply describing several features of the interlocutory order before it, which persuaded the Court that the order was immediately appealable. Thus, the Cohen Court noted the "serious and unsettled question" in an effort to provide a full rationale for its holding, not as part of a multi-factor "test." In Brady, 373 U.S. at 85 n. 1, 83 S. Ct. 1194, the Court similarly found that the order before it included a "serious and unsettled question," without stating this as a collateral order requirement.

Nor did the Court in McDonald, 472 U.S. at 482 n. 3, 105 S. Ct. 2787, suggest that the "serious and unsettled question" constituted a necessary ingredient for a collateral order. The McDonald Court did not explain its own rationale for entertaining a case arising from a trial court's denial of a judgment on the pleadings, but merely noted that the court of appeals had "accepted jurisdiction under the `collateral order' doctrine" on the theory that the "petitioner raised a `serious and unsettled question.'" Id.

In Nixon, 457 U.S. at 742, 102 S. Ct. 2690, however, the Court did characterize the "serious and unsettled" factor as "an additional requirement," which "Cohen established." And in Hohn, 524 U.S. at 246-47, 118 S. Ct. 1969, the Court recently repeated Nixon's characterization without disapproval. These cases do give me pause. However, the context of the Nixon Court's statement and the rationale for its holding on this issue seem to me to render it questionable to rely on this characterization as signaling establishment of a fourth factor.

In Nixon, 457 U.S. at 741, 102 S. Ct. 2690, the Supreme Court was reviewing an unpublished appellate order, apparently without a stated rationale, "dismiss [ing] summarily" the district court's denial of immunity to a former president and his aides. The Nixon Court thus surmised that the "Court of Appeals appears to have reasoned that petitioner's appeal lay outside the Cohen doctrine because it raised no `serious and unsettled question'" since " [t]his argument was pressed by the respondent" on the basis of an earlier holding in a similar case by the Court of Appeals. Id. at 742-43, 102 S. Ct. 2690. If we are correct as to the limits of the collateral order test, the Nixon Court could have summarily rejected this view. But, facing an appellate order issued without explanation, on a question of great public interest, it is hardly surprising that the Supreme Court instead determined to meet the issue head on. Moreover, the case with which the Nixon Court could dispose of the "serious and unsettled question" argument perhaps contributed to its decision to follow this direct approach. Obviously, the Court found the argument meritless, quickly concluding that notwithstanding the court of appeals' earlier decision, the immunity question was unsettled because the Supreme Court itself had not resolved it. Id. at 743, 102 S. Ct. 2690.

Given this context and holding, I believe the fairest way to read Nixon is as a discussion of the "serious and unsettled question" which assumes, but does not decide, that it is a collateral order requirement. Moreover, in view of the extensive Supreme Court collateral order precedent post-dating Nixon, which I discuss above, I am satisfied that even if the Supreme Court in Nixon did intend to establish a fourth factor, it subsequently changed course.²