WILL et al. v. HALLOCK et al.

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Syllabus
WILL et al. v. HALLOCK et al.
certiorari to the united states court of appeals for
the second circuit
No. 04–1332. Argued November 28, 2005—Decided January 18, 2006
In a warranted search of Susan and Richard Hallocks’ residence, Customs
Service agents seized computer equipment, software, and disk drives.
No criminal charges were ever brought, but the equipment was re
turned damaged, with all of the stored data lost, forcing Susan to close
her computer software business. She sued the United States under the
Federal Tort Claims Act, invoking the waiver of sovereign immunity, 28
U. S. C. § 1346, and alleging negligence by the customs agents in execut
ing the search. While that suit was pending, Susan also filed this action
against the individual agents under Bivens v. Six Unknown Fed. Nar
cotics Agents, 403 U. S. 388, alleging that the damage they caused to
her computers deprived her of property in violation of the Fifth Amend
ment’s Due Process Clause. After the District Court dismissed the
first suit on the ground that the agents’ activities fell within an excep
tion to the Tort Claims Act’s waiver of sovereign immunity, § 2680(e),
the agents moved for judgment in the Bivens action. They relied on
the Tort Claims Act’s judgment bar, § 2676, which provides that “the
judgment in an action under [§] 1346(b) . . . constitute[s] a complete bar
to any action . . . against the employee of the government whose act or
omission gave rise to the claim.” The District Court denied the motion,
holding that dismissal of the Tort Claims Act suit against the Govern
ment failed to raise the Act’s judgment bar. The Second Circuit af
firmed, after first ruling in favor of jurisdiction under the collateral
order doctrine. Under this doctrine, appellate authority to review “all
final decisions of the district courts,” § 1291, includes jurisdiction over
“a narrow class of decisions that do not terminate the litigation,” but
are sufficiently important and collateral to the merits that they should
“nonetheless be treated as ‘final,’ ” Digital Equipment Corp. v. Desktop
Direct, Inc., 511 U. S. 863, 867.
Held: A refusal to apply the Federal Tort Claims Act’s judgment bar is
not open to collateral appeal. Pp. 350–355.
(a) Three conditions are required for collateral appeal: the order must
“ ‘[1] conclusively determine the disputed question, [2] resolve an impor
tant issue completely separate from the merits . . . , and [3] be effectively
unreviewable on appeal from a final judgment.’ ” Puerto Rico Aqueduct
and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 144. Those

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346 WILL v. HALLOCK
Syllabus
conditions are “stringent.” Digital Equipment, supra, at 868. Unless
they are kept so, the underlying doctrine will overpower the substantial
finality interests § 1291 is meant to further. Pp. 349–350.
(b) Among the “small class” of orders this Court has held to be collat
erally appealable are those rejecting absolute immunity, Nixon v. Fitz
gerald, 457 U. S. 731, 742, qualified immunity, Mitchell v. Forsyth, 472
U. S. 511, 530, and a State’s Eleventh Amendment immunity claim,
Puerto Rico Aqueduct, supra, at 144–145. In each of these cases, the
collaterally appealing party was vindicating or claiming a right to avoid
trial, in satisfaction of the third condition: unless the order to stand
trial was immediately appealable the right would be effectively lost.
However, to accept the generalization that any order denying a claim of
right to prevail without trial satisfies the third condition would leave
§ 1291’s final order requirement in tatters. See Digital Equipment,
supra, at 872–873. Pp. 350–351.
(c) Thus, only some orders denying an asserted right to avoid the
burdens of trial qualify as orders that cannot be reviewed “effectively”
after a conventional final judgment. The further characteristic that
merits collateral appealability is “a judgment about the value of the
interests that would be lost through rigorous application of the final
judgment requirement.” Digital Equipment, supra, at 878–879. In
each case finding appealability, some particular value of a high order
was marshaled in support of the interest in avoiding trial, e. g., honoring
the separation of powers, Nixon, supra, at 749, 758, preserving the effi
ciency of government and the initiative of its officials, Mitchell, supra, at
526, and respecting a State’s dignitary interests, Puerto Rico Aqueduct,
supra, at 146. It is not mere avoidance of a trial, but avoidance of
a trial that would imperil a substantial public interest that counts.
Coopers & Lybrand v. Livesay, 437 U. S. 463, 468. Pp. 351–353.
(d) The customs agents’ claim here does not serve a weighty public
objective. This case must be distinguished from qualified immunity
cases. The nub of such immunity is the need to induce government
officials to show reasonable initiative when the relevant law is not
“clearly established,” Harlow v. Fitzgerald, 457 U. S. 800, 817; a quick
resolution of a qualified immunity claim is essential. There is, however,
no such public interest at stake simply because the judgment bar is said
to be applicable. It is the avoidance of litigation for its own sake that
supports the bar, and if simply abbreviating litigation troublesome to
Government employees were important enough, § 1291 would fade out
whenever the Government or an official lost in an early round. Another
difference between qualified immunity and the judgment bar lies in the
bar’s essential procedural element. While a qualified immunity claim
is timely from the moment an official is served with a complaint, the

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judgment bar can be raised only after a case under the Tort Claims Act
has been resolved in the Government’s favor. The closer analogy to the
judgment bar is the defense of res judicata. Both are grounded in the
perceived need to avoid duplicative litigation, not in a policy of freeing
a defendant from any liability. But this rule of respecting a prior judg
ment by giving a defense against relitigation has not been thought to
protect values so important that only immediate appeal can effectively
vindicate them. See Digital Equipment, supra, at 873. Pp. 353–355.
387 F. 3d 147, vacated and remanded.
Souter, J., delivered the opinion for a unanimous Court.
Douglas Hallward-Driemeier argued the cause for peti
tioners. With him on the brief were Solicitor General
Clement, Assistant Attorney General Keisler, Deputy Solic
itor General Kneedler, and Barbara L. Herwig.
Allison M. Zieve argued the cause for respondents. With
her on the brief were Brian Wolfman and Scott L. Nelson.
Justice Souter delivered the opinion of the Court.
The authority of the Courts of Appeals to review “all final
decisions of the district courts,” 28 U. S. C. § 1291, includes
appellate jurisdiction over “a narrow class of decisions that
do not terminate the litigation,” but are sufficiently impor
tant and collateral to the merits that they should “nonethe
less be treated as final,” Digital Equipment Corp. v. Desktop
Direct, Inc., 511 U. S. 863, 867 (1994) (internal quotation
marks omitted). The issue here is whether a refusal to
apply the judgment bar of the Federal Tort Claims Act is
open to collateral appeal. We hold it is not.
I
The complaint alleges that Susan Hallock owned a com
puter software business that she and her husband, Richard,
operated from home. After information about Richard Hal
lock’s credit card was stolen and used to pay the subscription
fee for a child pornography Web site, agents of the United
States Customs Service, investigating the Web site, traced

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the payment to Richard Hallock’s card and got a warrant
to search the Hallocks’ residence. With that authority, they
seized the Hallocks’ computer equipment, software, and disk
drives. No criminal charges were ever brought, but the
Government’s actions produced a different disaster. When
the computer equipment was returned, several of the disk
drives were damaged, all of the stored data (including trade
secrets and account files) were lost, and the Hallocks were
forced out of business.
In July 2002, Susan Hallock and her company brought an
action against the United States under the Federal Tort
Claims Act, invoking the waiver of sovereign immunity, 28
U. S. C. § 1346, and alleging negligence by the customs
agents in executing the search. The merits of the claim
were never addressed, for the District Court granted the
Government’s motion to dismiss, holding that the agents’ ac
tivities occurred in the course of detaining goods and thus
fell within an exception to the Act’s waiver of sovereign im
munity, § 2680(e). Hallock v. United States, 253 F. Supp. 2d
361 (NDNY 2003).
While the suit against the Government was still pending,
Susan Hallock filed this action against the individual agents
under Bivens v. Six Unknown Fed. Narcotics Agents, 403
U. S. 388 (1971), alleging in her complaint that the agents had
damaged her computers and thus deprived her of property
including business income in violation of the Due Process
Clause of the Fifth Amendment. After the District Court
dismissed the first suit against the Government, the agents
moved for judgment in the Bivens action, citing the judg
ment bar of the Tort Claims Act, that “the judgment in an
action under [§] 1346(b) of this title shall constitute a com
plete bar to any action by the claimant, by reason of the same
subject matter, against the employee of the government
whose act or omission gave rise to the claim.” § 2676.
The District Court denied the motion, holding that dis
missal of the action against the Government under the Tort

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Claims Act was solely on a procedural ground, and thus failed
to raise the judgment bar. Hallock v. Bonner, 281 F. Supp.
2d 425, 427 (NDNY 2003). The Court of Appeals for the
Second Circuit affirmed, after first finding jurisdiction under
the collateral order doctrine. Hallock v. Bonner, 387 F. 3d
147 (2004). We granted certiorari to consider the judgment
bar, 545 U. S. 1103 (2005), but now vacate for want of appel
late jurisdiction on the part of the Court of Appeals.
II
The collateral order doctrine, identified with Cohen v. Ben
eficial Industrial Loan Corp., 337 U. S. 541 (1949), is “best
understood not as an exception to the ‘final decision’ rule laid
down by Congress in § 1291, but as a ‘practical construction’
of it.” Digital Equipment, supra, at 867 (quoting Cohen,
supra, at 546). Whereas 28 U. S. C. § 1291 “gives courts of
appeals jurisdiction over ‘all final decisions’ of district
courts” that are not directly appealable to us, Behrens v. Pel
letier, 516 U. S. 299, 305 (1996), the collateral order doctrine
accommodates a “small class” of rulings, not concluding the
litigation, but conclusively resolving “claims of right separa
ble from, and collateral to, rights asserted in the action,”
ibid. (internal quotation marks omitted). The claims are
“too important to be denied review and too independent of
the cause itself to require that appellate consideration be de
ferred until the whole case is adjudicated.” Cohen, supra,
at 546.
The requirements for collateral order appeal have been
distilled down to three conditions: that an order “ ‘[1] conclu
sively determine the disputed question, [2] resolve an impor
tant issue completely separate from the merits of the action,
and [3] be effectively unreviewable on appeal from a final
judgment.’ ” Puerto Rico Aqueduct and Sewer Authority
v. Metcalf & Eddy, Inc., 506 U. S. 139, 144 (1993) (quoting
Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978)).
The conditions are “stringent,” Digital Equipment, supra,

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at 868 (citing Midland Asphalt Corp. v. United States, 489
U. S. 794, 799 (1989)), and unless they are kept so, the under
lying doctrine will overpower the substantial finality inter
ests § 1291 is meant to further: judicial efficiency, for exam
ple, and the “sensible policy ‘of avoid[ing] the obstruction to
just claims that would come from permitting the harassment
and cost of a succession of separate appeals from the various
rulings to which a litigation may give rise.’ ” Firestone
Tire & Rubber Co. v. Risjord, 449 U. S. 368, 374 (1981) (quot
ing Cobbledick v. United States, 309 U. S. 323, 325 (1940)).
Accordingly, we have not mentioned applying the col
lateral order doctrine recently without emphasizing its mod
est scope. See, e. g., Digital Equipment, 511 U. S., at 868
(“[T]he ‘narrow’ exception should stay that way and never
be allowed to swallow the general rule that a party is enti
tled to a single appeal, to be deferred until final judgment
has been entered . . . ” (citation omitted)). And we have
meant what we have said; although the Court has been asked
many times to expand the “small class” of collaterally appeal
able orders, we have instead kept it narrow and selective in
its membership.
A
Prior cases mark the line between rulings within the class
and those outside. On the immediately appealable side are
orders rejecting absolute immunity, Nixon v. Fitzgerald, 457
U. S. 731, 742 (1982), and qualified immunity, Mitchell v. For
syth, 472 U. S. 511, 530 (1985). A State has the benefit of the
doctrine to appeal a decision denying its claim to Eleventh
Amendment immunity, Puerto Rico Aqueduct, supra, at
144–145, and a criminal defendant may collaterally appeal an
adverse ruling on a defense of double jeopardy, Abney v.
United States, 431 U. S. 651, 660 (1977).
The examples admittedly raise the lawyer’s temptation to
generalize. In each case, the collaterally appealing party
was vindicating or claiming a right to avoid trial, in satisfac
tion of the third condition: unless the order to stand trial was

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immediately appealable, the right would be effectively lost.
Those seeking immediate appeal therefore naturally argue
that any order denying a claim of right to prevail without
trial satisfies the third condition. But this generalization is
too easy to be sound and, if accepted, would leave the final
order requirement of § 1291 in tatters. We faced this pros
pect in Digital Equipment, supra, an appeal from an order
rescinding a settlement agreement. Petitioner asserted a
“ ‘right not to stand trial’ requiring protection by way of im
mediate appeal,” analogizing the rescission to a denial of im
munity. Id., at 869. We said no, however, lest “every right
that could be enforced appropriately by pretrial dismissal
[be] loosely . . . described as conferring a ‘right not to stand
trial.’ ” Id., at 873. Otherwise, “almost every pretrial or
trial order might be called ‘effectively unreviewable’ in the
sense that relief from error can never extend to rewriting
history.” Id., at 872.
“Allowing immediate appeals to vindicate every such
right would move § 1291 aside for claims that the district
court lacks personal jurisdiction, that the statute of limi
tations has run, that the movant has been denied his
Sixth Amendment right to a speedy trial, that an action
is barred on claim preclusion principles, that no material
fact is in dispute and the moving party is entitled to
judgment as a matter of law, or merely that the com
plaint fails to state a claim. Such motions can be made
in virtually every case.” Id., at 873 (citations omitted).
B
Since only some orders denying an asserted right to avoid
the burdens of trial qualify, then, as orders that cannot be
reviewed “effectively” after a conventional final judgment,
the cases have to be combed for some further characteris
tic that merits appealability under Cohen; and as Digital
Equipment explained, that something further boils down to
“a judgment about the value of the interests that would be

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lost through rigorous application of a final judgment require
ment.” 511 U. S., at 878–879 (citing Van Cauwenberghe v.
Biard, 486 U. S. 517, 524 (1988)). See also Lauro Lines s.r.l.
v. Chasser, 490 U. S. 495, 502 (1989) (Scalia, J., concurring)
(“The importance of the right asserted has always been a
significant part of our collateral order doctrine”).
Thus, in Nixon, supra, we stressed the “compelling public
ends,” id., at 758, “rooted in . . . the separation of powers,”
id., at 749, that would be compromised by failing to allow
immediate appeal of a denial of absolute Presidential immu
nity, id., at 743, 752, n. 32. In explaining collateral order
treatment when a qualified immunity claim was at issue in
Mitchell, supra, we spoke of the threatened disruption of
governmental functions, and fear of inhibiting able people
from exercising discretion in public service if a full trial were
threatened whenever they acted reasonably in the face of
law that is not “clearly established.” Id., at 526. Puerto
Rico Aqueduct, 506 U. S. 139, explained the immediate ap
pealability of an order denying a claim of Eleventh Amend
ment immunity by adverting not only to the burdens of liti
gation but to the need to ensure vindication of a State’s
dignitary interests. Id., at 146. And although the double
jeopardy claim given Cohen treatment in Abney, supra, did
not implicate a right to be free of all proceedings whatsoever
(since prior jeopardy is essential to the defense), we de
scribed the enormous prosecutorial power of the Govern
ment to subject an individual “to embarrassment, expense
and ordeal . . . compelling him to live in a continuing state
of anxiety,” id., at 661–662 (internal quotation marks omit
ted); the only way to alleviate these consequences of the Gov
ernment’s superior position was by collateral order appeal.
In each case, some particular value of a high order was
marshaled in support of the interest in avoiding trial: honor
ing the separation of powers, preserving the efficiency of
government and the initiative of its officials, respecting a
State’s dignitary interests, and mitigating the government’s

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advantage over the individual. That is, it is not mere avoid
ance of a trial, but avoidance of a trial that would imperil a
substantial public interest, that counts when asking whether
an order is “effectively” unreviewable if review is to be left
until later. Coopers & Lybrand, 437 U. S., at 468 (internal
quotation marks omitted).
C
Does the claim of the customs agents in this case serve
such a weighty public objective that the judgment bar should
be treated as an immunity demanding the protection of a
collateral order appeal? One can argue, of course, that if
the Bivens action goes to trial the efficiency of Government
will be compromised and the officials burdened and dis
tracted, as in the qualified immunity case: if qualified immu
nity gets Cohen treatment, so should the judgment bar to
further litigation in the aftermath of the Government’s suc
cess under the Tort Claims Act. But the cases are different.
Qualified immunity is not the law simply to save trouble for
the Government and its employees; it is recognized because
the burden of trial is unjustified in the face of a colorable
claim that the law on point was not clear when the official
took action, and the action was reasonable in light of the law
as it was. The nub of qualified immunity is the need to in
duce officials to show reasonable initiative when the relevant
law is not “clearly established,” Harlow v. Fitzgerald, 457
U. S. 800, 818 (1982); cf. Saucier v. Katz, 533 U. S. 194, 202
(2001); a quick resolution of a qualified immunity claim is
essential.
There is, however, no such public interest at stake simply
because the judgment bar is said to be applicable. It is
not the preservation of initiative but the avoidance of liti
gation for its own sake that supports the judgment bar, and
if simply abbreviating litigation troublesome to Government
employees were important enough for Cohen treatment,
collateral order appeal would be a matter of right whenever
the Government lost a motion to dismiss under the Tort

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Claims Act, or a federal officer lost one on a Bivens action,
or a state official was in that position in a case under
42 U. S. C. § 1983, or Ex parte Young, 209 U. S. 123 (1908).
In effect, 28 U. S. C. § 1291 would fade out whenever the Gov
ernment or an official lost an early round that could have
ended the fight.
Another difference between qualified immunity and the
judgment bar lies in the bar’s essential procedural element.
While a qualified immunity claim is timely from the moment
an official is served with a complaint, the judgment bar can
be raised only after a case under the Tort Claims Act has
been resolved in the Government’s favor. If a Bivens action
alone is brought, there will be no possibility of a judgment
bar, nor will there be so long as a Bivens action against offi
cials and a Tort Claims Act against the Government are
pending simultaneously (as they were for a time here). In
the present case, if Susan Hallock had brought her Bivens
action and no other, the agents could not possibly have in
voked the judgment bar in claiming a right to be free of
trial. The closer analogy to the judgment bar, then, is not
immunity but the defense of claim preclusion, or res judicata.
Although the statutory judgment bar is arguably broader
than traditional res judicata, it functions in much the same
way, with both rules depending on a prior judgment as a
condition precedent* and neither reflecting a policy that a
defendant should be scot free of any liability. The concern
behind both rules is a different one, of avoiding duplicative
litigation, “multiple suits on identical entitlements or obliga
tions between the same parties.” 18 C. Wright, A. Miller, &
*The right to be free of double jeopardy is subject to an analogous condi
tion, that jeopardy have attached in a prior proceeding, Monge v. Califor
nia, 524 U. S. 721, 728 (1998), a characteristic that distinguishes the Fifth
Amendment right from other immunities mentioned above. But, as we
explained, double jeopardy deserves immunity treatment under § 1291
owing to the enormous advantage of a Government prosecutor who
chooses to go repeatedly against an individual.

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E. Cooper, Federal Practice and Procedure § 4402, p. 9 (2d
ed. 2002) (internal quotation marks omitted). But this rule
of respecting a prior judgment by giving a defense against
relitigation has not been thought to protect values so great
that only immediate appeal can effectively vindicate them.
As we indicated in Digital Equipment, in the usual case,
absent particular reasons for discretionary appeal by leave
of the trial court, a defense of claim preclusion is fairly subor
dinated to the general policy of deferring appellate review
to the moment of final judgment. 511 U. S., at 873.
The judgment bar at issue in this case has no claim to
greater importance than the typical defense of claim preclu
sion; and we hold true to form in deciding what Digital
Equipment implied, that an order rejecting the defense of
judgment bar under 28 U. S. C. § 2676 cries for no immediate
appeal of right as a collateral order.
We vacate the judgment of the Court of Appeals and re
mand the case with instructions to dismiss the appeal for
lack of jurisdiction.
It is so ordered.