Reise v. Board of Regents of the University of Wisconsin
957 F.2d 293 (1992)
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Rule of Law:
An order compelling a party to undergo a mental or physical examination under Federal Rule of Civil Procedure 35 is not an appealable "final decision" under the collateral order doctrine and must await appeal until after a final judgment has been rendered in the case.
Facts:
- E.H. Reise, a top graduate of the University of Wisconsin Law School, applied for a faculty position at the same institution.
- The Law School did not hire Reise.
- Reise believed the decision was discriminatory, based on his race and sex (white male), alleging the school favored other candidates.
- As a result of not being hired, Reise claimed to have suffered significant mental anguish, emotional distress, and illness.
Procedural Posture:
- E.H. Reise filed a lawsuit against the University of Wisconsin Law School in federal district court, alleging employment discrimination.
- Reise sought $4 million in compensatory damages for mental and emotional distress.
- The Law School filed a motion to compel Reise to submit to a mental examination under Federal Rule of Civil Procedure 35.
- The district court granted the motion and ordered Reise to undergo the examination.
- Reise filed an interlocutory appeal to the U.S. Court of Appeals for the Seventh Circuit to reverse the district court's order compelling the examination.
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Issue:
Is a district court's order compelling a plaintiff to submit to a mental examination under Federal Rule of Civil Procedure 35 an immediately appealable final decision under the collateral order doctrine?
Opinions:
Majority - Easterbrook, Circuit Judge.
No. An order compelling a plaintiff to undergo a mental examination under Rule 35 is not an immediately appealable final decision. Such discovery orders are considered interlocutory and non-appealable until after a final judgment. The court rejected the Fifth Circuit's reasoning in Acosta v. Tenneco Oil Co., stating that allowing appeals for such orders would make nearly every discovery order appealable, creating unacceptable delays and costs. The court reasoned that an order for a medical examination is not 'effectively unreviewable' on appeal from a final judgment, which is a key requirement of the collateral order doctrine established in Cohen v. Beneficial Industrial Loan Corp. A party who objects to the order can preserve the issue for appeal by refusing to comply, accepting a resulting sanction under Rule 37 (such as having the claim for emotional damages dismissed), and then challenging both the sanction and the underlying discovery order after the trial concludes. This process ensures that only parties with substantial objections will risk sanctions, thus filtering out weak claims and preventing the judicial system from being overwhelmed by interlocutory appeals.
Analysis:
This decision solidifies a circuit split with the Fifth Circuit regarding the immediate appealability of Rule 35 examination orders. It reinforces the Seventh Circuit's strict adherence to the final judgment rule, prioritizing judicial efficiency and discouraging interlocutory appeals of discovery matters. The court's prescribed method for challenging the order—refusal, sanction, and post-judgment appeal—places a strategic burden on the objecting party, forcing them to weigh the strength of their legal position against the risk of sanctions. This serves as a powerful tool to prevent parties from using appeals as a tactic to delay litigation.
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