4.12 THE COLLATERAL ORDER DOCTRINE
4.1201 Source. In Cohen v. Beneficial Industrial Loan Corp. 104 the Supreme Court interpreted 28 U.S.C. § 1291, the statute that confers appellate jurisdiction over final orders, to permit an appeal, during the course of ongoing litigation in the district court, from the district court's final determination of matters completely separate from the merits of the ongoing action. This "collateral order doctrine" offers, in a very limited category of situations, an additional potential avenue for early appellate review.
4.1202 Fourth Circuit Precedent. In Cobra Natural Resources, LLC v. Federal Mine Safety & Health Review Commission, 105 the majority and dissenting opinions discussed the doctrine in detail. Ruling that the court lacked jurisdiction over an appeal from an order temporarily reinstating a whistleblower during proceedings on alleged mine safety violations, the majority summarized the doctrine as follows:
The collateral order doctrine was first identified in 1949 in Cohen v. Beneficial Industrial Loan Corp., where the Supreme Court recognized a "small class [of decisions] which finally determine claims of right separable from, and collateral
[Page 249]
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 until the whole case is adjudicated." [citation omitted] The Cohen approach, limiting collateral order review only to certain exceptional cases, retains its validity today. Distilling Cohen and its progeny, the Court requires that an appealable collateral order must "[1] conclusively determine the disputed question, [2] resolve...
