316
Breyer, J., dissenting
See id., at 526-527. Post-trial appellate review would come too late to avoid that harm. Ibid. And, the legal issue (where purely legal, see Johnson, supra, at 313-318) would often prove "separate" enough from the more basic substantive issues in the case to avoid significant duplication of appellate court time and effort. See 472 U. S., at 527-529; but see id., at 545-550 (Brennan, J., dissenting). Hence, the "collateral order" doctrine's basic rationale supported inter-locutory appeal.
That same rationale, however, does not support two pre-trial interlocutory appeals, the first from a denial of a motion to dismiss a complaint, the second from a later, postappeal, denial of a motion for summary judgment. Consider the "separability" requirement. Both orders satisfy the literal terms of that requirement because the qualified immunity issues they resolve are both "separate," in equal measure, from the merits of the plaintiff's claim. See ante, at 309- 310, n. 3. But the reasoned principles and purposes underlying the "separability" requirement are not served by a rule that permits both orders to be appealed because the issues they raise are not normally "separate" one from the other. Rather, they will often involve quite similar issues, likely presented to different appellate court panels, thereby risking the very duplication and waste of appellate resources that the courts intended the "separability" requirement to avoid. See 15A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3911, pp. 333-334 (2d ed. 1992) (hereinafter Wright & Miller).
Similarly, given the law's promise of one pretrial interlocu-tory appeal, a litigant's need for a second is much less pressing. The single interlocutory appeal can avoid much of, though not all of, the harm that Mitchell found. And, the remaining harm, as I shall next discuss, is not of a kind that the law considers important enough to justify an interlocu-tory appeal.
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