Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-1995

Bryant v Sylvester
Precedential or Non-Precedential:

Docket 94-1635




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       UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT

                ___________

                No. 94-1635
                ___________


ANDRE M. BRYANT; FATHERS' AND CHILDREN'S
EQUALITY, INC.

                     Appellees,

               vs.

ESTHER R. SYLVESTER, HONORABLE,
Administrative Judge-Family Division in her
official and individual capacity; NANCY
SOBOLEVITCH, ESQUIRE, Court Administrator in
her official and individual capacity; GEOFF
GALLAS, Executive Court Administrator in his
official and individual capacity; MATTHEW
TIERNEY, Court Administrator-Family Division
in his official and individual capacity;
JOSEPH DI PRIMIO, ESQUIRE, Court
Administrator in his official and individual
capacity; ANDREA HOFFMAN-JELIN, ESQUIRE,
Director of Children and Youth Services in
her official and individual capacity

                     Appellants.


                ___________


APPEALS FROM THE UNITED STATES DISTRICT COURT
   FOR THE EASTERN DISTRICT OF PENNSYLVANIA

        (D.C. Civil No. 94-cv-01990)

                ___________


          ARGUED DECEMBER 7, 1994

        OPINION VACATED JUNE 1, 1995

     SUBMITTED PURSUANT TO LAR 34.1(a)
                 ON PANEL REHEARING JUNE 5, 1995

      BEFORE:   STAPLETON, ROTH and LEWIS, Circuit Judges.

                     (Filed      June 8 , 1995)

                              ___________


David M. Donaldson                          Arlin M. Adams, Esq.
Howard M. Holmes                            Michael J. Barry, Esq.
Supreme Court of Pennsylvania               Schnader, Harrison &
Administrative Office of PA Courts          Lewis Ste 3600
1515 Market Street, Suite 1414              1600 Market St.
Philadelphia, PA 19102                      Philadelphia, PA 19103

          Attorneys for Appellants


Ronald K. M. Williams
Northwest Legal Center
Post Office Box 43175
Philadelphia, PA 19129

          Attorney for Appellees


                              ___________

                        OPINION OF THE COURT
                            ___________



LEWIS, Circuit Judge.
          This case raises an issue of apparent first impression:

whether an order denying the Rooker-Feldman defense is final as a

collateral order.   We conclude that an order denying the Rooker-

Feldman defense is not final as a collateral order and is not

immediately appealable under the collateral order doctrine.     We

will therefore dismiss this appeal for lack of appellate

jurisdiction.

                                  I.
          The Family Court Division of the Court of Common Pleas

of Philadelphia County operates a nursery at the Family Court

Building in Philadelphia.   In operating this nursery, the Family

Court provides an area for supervised visitation in cases in

which supervised visitation has been ordered by the Family Court.

In early November of 1993, the Honorable Esther Sylvester,

Administrative Judge of the Family Court Division of the

Philadelphia Court of Common Pleas, and a defendant in this case,

approved the closing of the Family Court nursery on two dates:

December 26, 1993 and January 2, 1994.   The plaintiffs, Andre

Bryant, a non-custodial parent restricted, by court order, to

visitation in the Family Court-operated nursery, and Fathers' and

Children's Equality, Inc., a non-profit Pennsylvania corporation

"chartered to insure the continual access of children to their

non-custodial parents and extended family members," Plaintiffs'

brief at 3, sought in Pennsylvania Commonwealth Court to enjoin

the defendants from closing the nursery on these days.    The

matter was transferred on jurisdictional grounds to the

Pennsylvania Supreme Court where the plaintiffs' request for a

preliminary injunction was denied without hearing.   No appeal to

the United States Supreme Court was sought.

          In early March of 1994, Judge Sylvester again

authorized the closing of the Family Court nursery, this time on

April 3, 1994.   Soon after the authorization of this additional

nursery closing, the plaintiffs filed this class action lawsuit

in which they claim that by closing the nursery, the defendants

violated their rights under the First and Fourteenth Amendments.
In lieu of filing an answer, the defendants moved to dismiss

under Fed. R. Civ. P. 12(b)(1) and (6).   The defendants

contended, inter alia, that judicial immunity and the Rooker-

Feldman doctrine required dismissal of the plaintiffs' complaint.

The district court denied the defendants' motion to dismiss and

ordered that discovery proceed.   This appeal followed.1
1
 .    The question of the applicability of judicial immunity is
not before us, as that issue, though argued in the defendants'
brief, was waived at oral argument, during which the following
exchange took place:

The Court:     You are not appealing from the
               denial of your motion insofar as it
               related and relied on judicial
               immunity?

Answer:        No, your honor, it is purely the
               Rooker-Feldman and the qualified
               immunity which applies to all the
               defendants . . . .

                             . . . .

The Court:     Let me make sure I understand you.
               I understood you in response to my
               question on direct to say that the
               issue of whether your motion was
               wrongfully denied insofar as it
               relied on judicial immunity was not
               before us, you were not pressing
               that argument . . . you wrote a
               section in your brief on it, but
               you are not --

Answer:        I am not pressing the judicial
               immunity argument . . . .

The Court:     You are not just talking about your
               argument this morning, your oral
               argument, you are saying we do not
               have to address those issues
               because your clients are no longer
               relying on them?
                               II.

          Ordinarily, we review only "final" decisions of the

district court under 28 U.S.C. § 1291.2   Federal Ins. Co. v.

Richard I. Rubin & Co., Inc., 

, 1279 (3d Cir. 1993).

A decision is final only when there is a "`decision by the
(..continued)
Answer:        I do not press the judicial
               immunity argument, your honor.

      Nor is the issue of qualified immunity before us, the
defendants arguments to the contrary notwithstanding. Having
found that the defendants did not assert qualified immunity, the
district court did not consider the applicability of the
qualified immunity defense. In this appeal, the defendants
contend, with apparent support in the trial record, that they did
in fact argue qualified immunity in the district court. However,
the defendants did not assert qualified immunity in their motion
to dismiss, nor did they argue qualified immunity in their brief
in support of the motion. In a brief styled "Memorandum in
Opposition to Plaintiffs' Motion to Amend Complaint and in
Further Support of Defendants' Motion to Dismiss or, in the
Alternative, for Summary Judgment," which the defendants filed
some six days prior to the district court's denial of their
motion to dismiss, the defendants for the first time argued
qualified immunity. Under these circumstances, the district
court properly refrained from considering the issue of qualified
immunity. Had the district court considered qualified immunity,
the plaintiffs would have been prejudiced by not having had an
opportunity to respond to the defendants' arguments regarding the
applicability of qualified immunity prior to the district court's
ruling on the defendants' motion. And because the district court
did not err in refusing to consider qualified immunity, we lack
jurisdiction to hear the defendants' appeal to the degree it
raises the issue of qualified immunity. See Kulwicki v. Dawson,

, 1460 (3d Cir. 1992) ("[o]ur jurisdiction to hear
immunity appeals is limited only where the district court does
not address the immunity question below, or where the court does
not base its decision on immunity per se").
2
.     28 U.S.C. § 1291 provides:

          The courts of appeals . . . shall have
          jurisdiction of appeals from all final
          decisions of the district courts of the
          United States . . . .
district court that ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.'"   

internal quotation marks omitted).   According to

the defendants, however, we have appellate jurisdiction over this

appeal pursuant to 28 U.S.C. § 1291.    The defendants contend the

district court's order denying the defendants' motion to dismiss

is appealable under the "collateral order" doctrine first

articulated in Cohen v. Beneficial Indus. Loan Corp., 

(1949).   In Cohen, the Supreme Court held that a "small

class" of collateral orders are final and appealable under 28

U.S.C. § 1291 even though they do not terminate the underlying

litigation.   

.   For an order to come within

Cohen's collateral order rule, it must satisfy three tests:

first, the order must "conclusively determine" the disputed

question; second, it must "resolve an important issue completely

separate" from the merits of the action; and third, it must be

"effectively unreviewable" on appeal from a final judgment.

Coopers & Lybrand v. Livesay, 

, 468-69 (1978).      If

the order at issue fails to satisfy any one of these

requirements, it is not an appealable collateral order.   See
Gulfstream Aerospace Corp. v. Mayacamas Corp., 

, 276

(1988); Communication Workers v. American Tel. & Tel., 

, 205 (3d Cir. 1991).

          The Supreme Court has repeatedly referred to the

collateral order doctrine as a "narrow exception" to the final
judgment rule,3 see, e.g., Richardson-Merrell, Inc. v. Koller,

, 430 (1985) (citation omitted), and we have,

accordingly, construed the doctrine narrowly "`lest the exception

swallow up the salutary general rule' that only final orders may

be appealed."   Yakowicz v. Pennsylvania, 

, 783 n.10

(3d Cir. 1982) (citation omitted); see Transtech Industries, Inc.

v. A & Z Septic Clean, 

, 57 (3d Cir. 1993) ("We have

followed the Supreme Court's admonition and `have consistently

construed the Cohen exception narrowly rather than expansively.'"

(citations omitted)).   Strict construction of the collateral

order doctrine is designed to further the long-standing

Congressional policy against piecemeal appeals which underlies

the final judgment rule.   See Lusardi v. Xerox Corp., 

 .    Recently, the Supreme Court observed that the collateral
order doctrine is best understood not as an exception to the
"final decision" rule laid down by Congress in 28 U.S.C. § 1291,
"but as a `practical construction' of it." Digital Equipment
Corporation v. Desktop Direct, Inc., 

, 1995
(1994).

          We have repeatedly held that the statute
          entitles a party to appeal not only from a
          district court decision that "ends the
          litigation on the merits and leaves nothing
          more for the court to do but execute the
          judgment," but also from a narrow class of
          decisions that do not terminate the
          litigation, but must, in the interest of
          "achieving a healthy legal system,"
          nonetheless be treated as "final."

174, 177 (3d Cir. 1984).4    To guard against the temptation of

expanding the doctrine's reach, the Supreme Court has instructed

that the issue of the immediate appealability of orders that do

not terminate litigation is to be determined for the entire

category to which the order belongs, "without regard to the

chance that the litigation at hand might be speeded, or a

`particular injustice' averted, by a prompt appellate court

decision."    Digital Equipment Corporation v. Desktop Direct,

Inc., 

, 1996 (1994) (citation omitted).

             Before determining whether the district court's order

denying the defendants' Rooker-Feldman defense qualifies as a

collateral order, a word or two is in order concerning Rooker-

Feldman.   The Rooker-Feldman doctrine provides that federal

district courts lack subject matter jurisdiction to sit in direct

review of state court adjudications or to hear constitutional


4
 .    We have stated that the final judgment rule serves a number
of salutary purposes:

             It is intended to ensure efficient
             administration of scarse judicial resources.
             It facilitates maintenance of "the
             appropriate relationship between [trial and
             appellate] courts." In addition, in cases
             where the litigants may have unequal economic
             resources, it protects the judicial process
             and its participants from the delay which can
             prove advantageous to a well-financed
             litigant, and fatal to the less well-endowed.



Lusardi v. Xerox Corp., 

, 177 (3d Cir. 1984)
(citations omitted); see also Firestone Tire & Rubber Co. v.
Risjord, 

, 374 (1981).
claims that are "inextricably intertwined" with the state court's

decision.   District of Columbia Court of Appeals v. Feldman, 

, 482 n.16 (1983).    See also Rooker v. Fidelity Trust

Co., 

(1923) ("Under the legislation of Congress, no

court of the United States other than this Court could entertain

a proceeding to reverse or modify" a state court judgment.).

This limitation upon federal district court subject matter

jurisdiction is usually said to derive from 28 U.S.C. § 1257,

which provides that "[f]inal judgments or decrees rendered by the

highest court of a state in which a decision could be had, may be

reviewed by the Supreme Court . . . ."    See, e.g., Valenti v.

Mitchell, 

, 296 (3d Cir. 1992).    In addition to this

formal statutory basis for the Rooker-Feldman doctrine, we have

identified other justifications for the rule:
          As with Younger abstention, which requires
          federal courts to abstain when there is a
          pending state court proceeding, part of the
          justification for Rooker-Feldman is respect
          for state courts. Just as federal district
          courts should presume that pending state
          court proceedings can correctly resolve
          federal questions, they should also presume
          that completed state court proceedings have
          correctly resolved these questions.

                 A second justification for Rooker-
            Feldman stems from its similarity to claim
            preclusion. Like claim preclusion, Rooker-
            Feldman is partly concerned with finality,
            with ensuring that litigants do not take
            multiple bites from the same apple. Once
            litigants' claims have been adjudicated in
            the state court system, they should not also
            have access to the entire federal court
            system.
Guarino v. Larsen, 

, 1157 (3d Cir. 1993) (citations

omitted).   With this sketch of the Rooker-Feldman doctrine's

contours in mind, we turn now to evaluate the immediate

appealability of the district court's order denying the

defendants their Rooker-Feldman defense.

                                 III.

            A decision denying a motion to dismiss for lack of

subject matter jurisdiction is considered to fall outside the

Cohen exception to the final decision rule.    See Transtech

Industries, Inc. v. A & Z Septic Clean, 

, 58 (3d Cir.

1992); United States v. Layton, 

, 683 (9th Cir. 1981)

(holding that challenges to subject matter jurisdiction generally

fail the third prong of the Cohen test); Moore's Federal Practice

¶ 110.10 p. 74 (citing cases).    Likewise, decisions denying

assertions of res judicata are considered to be beyond the

collateral order exception.    See Digital Equipment 

; Transtech 

.    Because

the Rooker-Feldman doctrine has a close affinity both with

notions of subject matter jurisdiction and claim preclusion, we

might be tempted to resolve the issue of the immediate

appealability of Rooker-Feldman denials by way of analogy to
these categories of claims.    However, underlying the Rooker-

Feldman doctrine are concerns rooted in federalism and comity,

concerns not necessarily present within the concepts of claim

preclusion and subject matter jurisdiction.    Therefore, we will

address the immediate appealability of the denial of a Rooker-
Feldman defense with explicit reference to the issue of respect

for state courts that underlies the Rooker-Feldman doctrine.

          Because we conclude that the third requirement -- that

the order be "effectively unreviewable" on appeal from a final

judgment -- is not met in this case, we need not discuss the

first and second prerequisites for the collateral order doctrine

to determine the immediate appealability of a denial of a Rooker-

Feldman defense.   See Communication 

n.6

("Since we find that the district court's order does not satisfy

the third prong of Cohen, we do not consider whether the first

and second prongs of Cohen are satisfied.").    The Supreme Court

has explained that, as a general rule, an order is "effectively

unreviewable" only where "the order at issue involves `an

asserted right the legal and practical value of which would be

destroyed if it were not vindicated before trial.'"     Lauro Lines

S.R.L. v. Chasser, 

, 499-500 (1989) (citation

omitted); accord Zosky v. Boyer, 

, 561 (3d Cir. 1988)

(to be appealable under the collateral order doctrine, an order

must be such that "review [of the order] postponed will, in

effect, be review denied").

          The Court's most recent discussion of the collateral

order doctrine appears in Digital Equipment Corporation, decided
less than a year ago.   In that case, Desktop Direct, Inc.

("Desktop") sued Digital Equipment Corporation ("Digital") for

unlawful use of the "Desktop Direct" name.     Digital Equipment

.   Soon after the filing of the

complaint, the parties reached a settlement agreement.    Pursuant
to the agreement, Digital agreed to pay Desktop a sum of money

for the right to use the "Desktop Direct" trade name and

corresponding trademark, and for waiver of all damages and

dismissal of the trademark infringement suit brought by Desktop

against Digital.       

settlement agreement,

Desktop filed a notice of dismissal in the district court.

Several months later, however, Desktop moved to vacate the

dismissal and rescind the settlement agreement on the ground that

Digital had misrepresented material facts during the settlement

negotiations.    

court granted this motion.

Digital then appealed.        The Court of Appeals for the Tenth

Circuit dismissed Digital's appeal for lack of appellate

jurisdiction, holding that the order of the district court was

not appealable under section 1291 because it neither ended the

litigation nor fell within the collateral order exception to the

final judgment rule.         

Court granted certiorari

to consider whether an order denying effect to a private

settlement agreement comes within the ambit of the collateral

order rule.     

course of its analysis of this question,

analysis which led to an affirmance of the Tenth Circuit's

dismissal of Digital's appeal, the Court rejected Digital's

argument that the identification of some interest or right that

would be "irretrievably lost" per se satisfies the third Cohen
requirement:
          [T]he strong bias of § 1291 against piecemeal
          appeals almost never operates without some
          cost. A fully litigated case can no more be
           untried than the law's proverbial bell can be
           unrung, and almost every pretrial or trial
           order might be called `effectively
           unreviewable' in the sense that relief from
           error can never extend to rewriting history.
           Thus, erroneous evidentiary rulings, grants
           or denials of attorney disqualification, and
           restrictions on the rights of intervening
           parties may burden litigants in ways that are
           only imperfectly reparable by appellate
           reversal of a final district court judgment
           . . . . But if immediate appellate review
           were available every such time, Congress's
           final decision rule would end up a pretty
           puny one, and so the mere identification of
           some interest that would be "irretrievably
           lost" has never sufficed to meet the third
           Cohen requirement.


Digital Equipment 

(citations

omitted) (emphasis supplied).

           The Court also rejected Digital Equipment's contention

that a party's ability to characterize the right allegedly denied

as a "right not to stand trial" is both sufficient and necessary

for a finding that the order appealed from is a collateral order.

This contention, the Court explained, "is neither an accurate

distillation of our case law nor an appealing prospect for adding

to it."    

further explained that limiting the

collateral order analysis to a focus upon whether the interest

asserted could be called a "right not to stand trial" is

inadequate to protect against "the urge to push the § 1291

limits."   

after all, acknowledged that
           virtually every right that could be enforced
           appropriately by pretrial dismissal might
           loosely be described as conferring a "right
           not to stand trial." Allowing immediate
           appeals to vindicate every such right would
           move § 1291 aside for claims that the
          district court lacks personal jurisdiction,
          that the statute of limitations has run, that
          the movant has been denied his [or her] Sixth
          Amendment right to speedy trial, that an
          action is barred on claim preclusion
          principles, that no material fact is in
          dispute and the moving party is entitled to
          judgment as a matter of law, or merely that
          the complaint fails to state a claim. Such
          motions can be made in virtually every case,
          and it would be no consolation that the
          party's meritless summary judgment motion or
          res judicata claim was rejected on immediate
          appeal; the damage to the efficient and
          congressionally mandated allocation of
          judicial responsibility would be done, and
          any improper purpose the appellant might have
          had in saddling its opponent with cost and
          delay would be accomplished. Thus, precisely
          because candor forces us to acknowledge that
          there is no single "obviously correct way to
          characterize" an asserted right, we have held
          that § 1291 requires courts of appeals to
          view claims of a "right not to be tried" with
          skepticism, if not a jaundiced eye.

(citations omitted).

          In the wake of Digital Equipment Corporation, 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.

See Digital Equipment 

.    Following

Digital Equipment Corporation, the analysis required under the

third prong of the Cohen test does not entail so much the

characterization of the right denied as it does inquiry into the

relative value or importance of the interests "that would be

[forever] lost through rigorous application of a final judgment

requirement.   

          The defendants contend that the interests in federalism

and comity sought to be protected by Rooker-Feldman would be

irreparably harmed by the very fact of federal judicial inquiry

into the state court decision at issue.   "Once a state

adjudication is subjected to discovery, inquiry, review, trial,

etc., the integrity of the decision, as protected from federal

court review by Rooker-Feldman is gone forever."   Defendants'

Reply at 6.   According to the defendants, Rooker-Feldman is the

"equitable corollary to judicial immunity":
          [I]t is the immunity state decisions enjoy
          from federal district court review. Akin to
          Eleventh Amendment, absolute, or qualified
          immunity, Rooker-Feldman is of no practical
          value after final judgment and appeal, i.e.,
          after federal review of a state court
          adjudication takes place. Any benefit to
          state courts conferred by Rooker-Feldman "is
          for the most part lost as litigation proceeds
          past motion practice." Quite simply, the
          very fact of a federal court inquiry, without
          immediate appeal, into a state court
          adjudication . . . renders Rooker-Feldman
          worthless.


Defendants' Reply at 7-8.

          We disagree with the defendants' contention that

Rooker-Feldman is of no practical value if its ultimate

vindication must await the entry of final judgment following

district court review of the state court adjudication at issue.

The Rooker-Feldman doctrine's value as a protector of state

courts is not irreparably undermined by district court review of

state court adjudications; so long as district court review of a

state court adjudication is followed by the proper application of

the doctrine at the court of appeals level, the interests that
Rooker-Feldman seeks to further will be secured.   To understand

why this is so, one need only compare Rooker-Feldman to the types

of claims already deemed to fall within the ambit of the

collateral order doctrine.

          The purpose of the classic immunities -- Eleventh

Amendment, absolute and qualified immunity -- all considered to

fall within the collateral order doctrine, is to prevent the

holder of the immunity from being dragged into federal district

court to answer to civil suits for damages.   See Mitchell v.

Forsyth, 

, 526 (1985) (stating that qualified

immunity is an immunity from suit rather than a mere defense to

liability; "and like an absolute immunity, it is effectively lost

if a case is erroneously permitted to go to trial"); Puerto Rico

Aqueduct & Sewer Authority v. Metcalf & Eddy, 

, 689

(1993) ("`the very object and purpose of 11th Amendment [are] to

prevent the indignity of subjecting a State to the coercive

process of judicial tribunals at the instance of private

parties'" (citation omitted)); Nixon v. Fitzgerald, 

(1982) (the essence of absolute immunity is the possessor's

entitlement not to have to answer for his or her conduct in a

civil damages action).   It is easy to see how this purpose would

be effectively thwarted were an order denying qualified immunity,

for example, not held to be immediately appealable.   Were such an

order not immediately appealable, the qualified immunity holder

would be forced to endure the burden of a trial -- the very

"harm" the immunity is supposed to immunize the holder against --

before being permitted to seek the vindication of the immunity
right.    Simply put, the immunity holder would obtain absolutely

nothing of value from the ultimate vindication of the immunity

interest following a trial in the district court.5

           Indeed, a finding that the failure to allow immediate

appeal would lead to the infliction of some irreparable harm on

an actual person or entity represents a common thread running

through the cases in which we have found that the order in

question constitutes a collateral order.    In Praxis Properties v.

Colonial Sav. Bank, 

(3d Cir. 1991), for example, a

case in which we found an order denying Resolution Trust

Corporation ("RTC") a stay under the stay provision of the

Financial Institutions Reform, Recovery, and Enforcement Act of

1989, 12 U.S.C. § 1812(d)(12)6 to be a collateral order, we

stated:

5
 .    Precisely the same can be said, and has been said by the
Supreme Court, with respect to orders denying the protection of
the Speech or Debate Clause, as well as orders denying the right
not to stand trial on double jeopardy grounds. See Helstoski v.
Meanor, 

(1979) (holding that an order denying the
protection of the Speech or Debate Clause is immediately
appealable); Abney v. United States, 

(1977) (holding
that an order denying the right not to stand trial on double
jeopardy grounds is immediately appealable).
6
.     12 U.S.C. § 1821(d)(12) provides:

            After the appointment of a conservator or
            receiver for an insured depository
            institution, the conservator or receiver may
            request a stay for a period not to exceed --

                 (i) 45 days, in the case of any
            conservator; and

                 (ii) 90 days, in the case of any
            receiver,
             Congress afforded RTC this right to a stay
             under § 1821(d)(12) because it realized that
             upon RTC's appointment as receiver or
             conservator for a failed thrift, RTC is
             likely to find the thrift in a state of
             profound disarray and may require some
             breathing room to orient itself and determine
             how best to proceed with pending litigation.
             If the district court denies a proper request
             for a stay under § 1821(d)(12), RTC's
             statutory right to a short litigation cease-
             fire, like a government official's right to
             qualified immunity, is "irretrievably lost"
             absent immediate appeal.

   Similarly, in Federal Ins. Co. v. Richard I. Rubin &

Co., Inc., 

(3d Cir. 1993), a case in which we

extended the collateral order doctrine to a claim for immunity

from suit conferred by the Foreign Sovereign Immunities Act

("FSIA"), 28 U.S.C. §§ 1602-1611, we stated:
          [P]roviding review only after a trial [of the
          order denying the FSIA defense] would destroy
          the "legal and practical value" of their
          sovereign immunity defense. At the post-
          trial stage of the proceeding, the Dutch
          parent corporations will have been forced to
          endure the very burden they are arguing they
          should not be subjected to in the first place
          -- a trial on the merits.

    See also In re School Asbestos Litigation, 

(3d Cir. 1988) (holding that an order denying a party the

right to engage in public communications with persons and in fora

unrelated to the litigation was immediately appealable because

"`the loss of First Amendment freedoms, for even minimal periods

of time, unquestionably constitutes irreparable injury.'"

(..continued)
          in any judicial action or proceeding to which
          such institution is or becomes a party.
(citation omitted)).   In each of these cases, crucial to our

conclusion that the order in question constituted an immediately

appealable collateral order was the fact that failure to afford

immediate appeal would have rendered the right asserted worthless

to the actual entity holding the right.    The same simply cannot

be said in the context of Rooker-Feldman.

           One of the interests that the Rooker-Feldman doctrine

seeks to promote is respect for state courts.    

.   To further this interest, the Rooker-Feldman doctrine

precludes federal district court review of state court

adjudications.   See 

protection that

Rooker-Feldman affords attaches not to the state courts

themselves, but rather to their adjudications.    Unlike people,

states and state entities -- the direct recipients and

beneficiaries of the classic immunities, for example --

adjudications do not suffer irreparably by being haled into

federal district court for review.    Indeed, once a court of

appeals rules that under Rooker-Feldman, the district court

lacked subject matter jurisdiction to review the state court

adjudication, it is, both as a practical as well as a legal

matter, as if the state court adjudication had never been

reviewed by a federal district court in the first place.    So long

as the state court adjudication's Rooker-Feldman-derived
"immunity" is acknowledged and vindicated by the court of appeals

following the entry of a final judgment, the interest in
respecting state courts by holding their adjudications beyond

federal district court scrutiny is adequately protected.7

          By concluding that the denial of a Rooker-Feldman

defense does not give rise to an immediately appealable

collateral order, we do not gainsay the importance of the

interests in federalism and comity that the Rooker-Feldman

doctrine seeks to protect.    We simply believe that these

interests are not irreparably harmed through rigorous application

of the final judgment rule.    We note that in other contexts these

same interests have been understood to be adequately vindicable

on appeal following the entry of final judgment.    See Coleman by

Lee v. Stanziani, 

(3d Cir. 1984) (holding that the

denial of a motion to dismiss asserting Younger v. Harris

abstention grounds satisfies none of the Cohen requirements).

                         IV.    CONCLUSION

          Having concluded that an order denying the Rooker-

Feldman defense is not immediately appealable under the

collateral order rule, we will dismiss for lack of appellate




7
 .    We say that the Rooker-Feldman interests are adequately
vindicable on appeal from a final judgment because we recognize,
as has the Supreme Court, that section 1291 never operates
without some cost. Digital Equipment 

. Litigants are always burdened in ways that are "only
imperfectly reparable by appellate reversal of a final district
court judgment." 

defendants' appeal from the district court's

order denying their Rooker-Feldman defense.
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