Sullivan v. Finkelstein/Concurrence Blackmun

by Harry Blackmun

Justice BLACKMUN, concurring in the judgment.

I am not convinced, as the other Members of the Court appear to be, that the order with which we are concerned is a final decision. It seems to me that the Court in its opinion expends its energy fending off respondent's arguments as to nonappealability, without itself demonstrating finality in a positive way.

I concur in the judgment, however. Although I think the order is not a final decision under 28 U.S.C. § 1291, it is immediately appealable under the collateral order doctrine enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). This is the view adopted by the great majority of the Courts of Appeals, and I am in agreement with their conclusions. See, e.g., Colon v. Secretary of HHS, 877 F.2d 148, 151-152 (CA1 1989); Doughty v. Bowen, 839 F.2d 644, 645-646 (CA10 1988); Huie v. Bowen, 788 F.2d 698, 701-703 (CA11 1986).

Notes