JUDGMENT OF USCA

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
JUDGMENT OF USCA

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
NO. 99-2064-E
JULY 28, 1999

MEREDITH T. RANEY, JR.,
Plaintiff, Counter-Defendant, Appellee

JOHN DOES I - X, JANE DOES II - X, et al.,
Counter-Defendants,

versus

AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation,
EDWARD W. WlNDLE, et al.,
Defendants - Third-Party Plaintiffs - Appellants,

SPHERE DRAKE INSURANCE COMPANY PLC, foreign business entity, WESTCO CLAIMS MANAGEMENT SERVICES, INC., foreign business entity,
Third-Party Defendants.

Appeal from the United States District Court for the
Middle District of Florida
Raney v. Aware Woman Center, DC DKT NO.: 97-1197-CV-ORL-19B

Before ANDERSON, Chief Judge, EDMONDSON and MARCUS, Circuit Judges.

BY THE COURT:

This appeal is DISMISSED for lack of jurisdiction. To be appealable, an order must either be final or fall into a specific class of interlocutory orders that are made appealable by statute or jurisprudential exception. See 28 U.S.C. § 1291, 1292; Atlantic Fed. Sav. & Loan Ass'n. v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371,375-76 (11th Cir. 1989). The collateral-order doctrine is one such exception. This rule, announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-547, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949), permits appellate review if an order (1) conclusively determined a disputed question, (2) resolved an important issue that was completely separate from the merits of the case, and (3) is effectively unreviewable on appeal from a final judgment. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978).

The burden is upon the appellant to make these showings, which in most cases should be evident from the record. See Kaufman v. Checkers Drive-In Restaurants, Inc. 122 F.3d 892, 894 (11th Cir. 1997). If any one criterion is not met, jurisdiction cannot be invoked under the collateral-order exception. Howard v. Parisian, Inc., 807 F.2d 1560, 1566 (11th Cir. 1987).

The December 18 order is not final because it did not resolve Raney's FACE claim, appellants' request for injunctive relief and damages under FACE, or the third party, claims. In re Smith, 735 F.2d 459, 461 (11th Cir. 1984)(holding that a denial of summary judgment is interlocutory in nature and is thus not appealable). The order cannot be appealed under Cohen because refusal to grant summary judgment based on Rooker-Feldman or Younger is not effectively unreviewable on appeal from a final judgment Cf. Bryant v. Sylvester, 57 F.3d 308, 312 (3rd Cir. 1995), vacated and remanded on other grounds, 516 U.S. 1105, 116 S.Ct. 899 (1996) (Rooker-Feldman); Gubitosi v. Kapica, 154 F.3d 30, 32 n.3 (2nd Cir. 1998)(same); Confederated Salish v. Simonich, 29 F.3d 1398, 1403 (9th Cir. 1994)(Younger).

Finally, although Appellants characterize the district court's order as one denying "immunity from suit," this is insufficient to bring the order within the scope of Cohen. See Digital Equipment Corporation v. Desktop Direct, Inc., 511 U.S. 863, 872, 114 S.Ct. 1992, 1998, 128 L.Ed.2d 842 (1994) (holding that a party's ability to characterize a district court's decision as denying an irreparable "right not to stand trial" of itself will not suffice to entitle that party to an immediate appeal of the decision.)