Cite as: 516 U. S. 299 (1996)
Breyer, J., dissenting
III
Several important practical considerations also favor limiting the number of interlocutory qualified immunity appeals to one. The majority finds the necessary special harm in the fact that the qualified immunity doctrine protects public officials against discovery as well as trial; and it finds "separability" in the fact that a postdiscovery summary judgment motion likely asks a legal question that is conceptually distinct from the legal question posed by a prediscovery motion to dismiss a complaint. But, given this rationale, can one limit the number of appeals to just one or two? Would it not, in principle, justify several appeals where discovery, proceeding in stages, continuously turns up new facts, or where, after the close of the plaintiff's case, an immediate appeal would avoid the litigation burden of presenting an entire defense case.
Still, even two pretrial appeals risk what Justice Story called "very great delays, and oppressive expenses," Canter v. American Ins. Co., 3 Pet. 307, 318 (1830), which can "ossify civil rights litigation," Abel v. Miller, 904 F. 2d 394, 396 (CA7 1990) (Easterbrook, J.). The defendant in the present case, for example, so far has spent more than four years (of seven since the complaint's filing) fighting, through interlocutory appeal, a case that he might well have won more quickly and easily either in the trial court or on appeal from an initially adverse judgment on the merits. Cf. Pelletier v. Federal Home Loan Bank of San Francisco, 968 F. 2d 865, 872-873 (CA9 1992) (expressing doubt that plaintiff's complaint could survive a summary judgment motion). I concede that every added interlocutory appeal will serve the interests that underlie qualified immunity to some extent, for each will help a government defendant terminate meritless litigation. But each added appeal likely would serve those interests to an ever-diminishing degree while posing an ever-increasing threat to the appearance of evenhanded justice in civil rights cases. See Coopers & Lybrand v. Livesay, 437 U. S., at 476
321
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