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A Primer on the Finality of Decisions for Appeal

By Brian C. Walsh


Yogi Berra was too young to be included in the list of notable baseball players at the beginning of Justice Blackmun’s opinion upholding Major League Baseball’s antitrust exemption in Flood v. Kuhn, 407 U.S. 258 (1972). But more than four decades later, Chief Justice Roberts featured one of Berra’s most famous sayings while addressing the finality of an order of a bankruptcy court: “It ain’t over till it’s over.” Bullard v. Blue Hills Bank, 135 S. Ct. 1686, 1693 (2015).

A general principle of appellate practice is that an appellant may appeal only from a final judgment or decision. But it is not always easy to determine whether a particular adjudication is “final” for purposes of appeal. The subject is further complicated by statutory and case law exceptions that authorize interlocutory appeals when a case has not been finally resolved. In some circumstances, a party has a right to pursue an interlocutory appeal, but in other situations, the trial judge or the appellate court has discretion to permit or deny an appeal.

This article collects and organizes the main strands of the law of finality and appealability, including some recent developments in the Supreme Court, with a focus on appeals of decisions of the federal district courts to the courts of appeals. Many of these principles also apply to appeals in the state courts, but as is true of all things, there can be considerable variation among the federal and state systems. A litigant pursuing an appeal in state court, or one hoping to have an appeal dismissed for lack of appellate jurisdiction, will want to pay close attention to the particular principles in the applicable jurisdiction.

The basic statute governing appellate jurisdiction in the federal courts authorizes appeals “from all final decisions of the district courts.” 28 U.S.C. § 1291. A final decision normally takes the form of a judgment or a decree that concludes a case by resolving all claims and counterclaims asserted by all parties. The courts often describe a final decision as one that ends the litigation on the merits and leaves nothing for the district court to do but to execute the judgment. This characterization is not fully accurate, as the many exceptions discussed here demonstrate, but it can be a useful guide in many situations. For example, the Supreme Court held earlier this year that plaintiffs in a multidistrict litigation may appeal from the dismissal of their complaint even though other cases consolidated with it remain pending. See Gelboim v. Bank of Am. Corp., 135 S. Ct. 897, 905–06 (2015). The Court reached this conclusion by recognizing that a multidistrict litigation case ordinarily remains distinct even when it is consolidated with other cases, so that dismissal of all claims in one case ends that case and permits an appeal.

Reasons for Restricting Appeals

Courts have identified a number of reasons for restricting appeals to final decisions. These include deference to district judges and their management of cases as well as preventing the strategic use of interlocutory appeals to disrupt a case or harass an opponent. There also is the practical consideration that an interlocutory appeal requires the appellate court to devote time and resources to resolve a question that may turn out to be moot or unimportant if the parties settle or if final judgment is entered in favor of the party aggrieved by the district court’s interlocutory ruling. In many respects, the exceptions to the final decision rule reflect determinations by Congress or the courts that these justifications are less important than immediate review of a particular type of case or issue.

In general, when a district court issues a final decision, the losing party may appeal not only that decision but also earlier rulings that were interlocutory when they were rendered. From the very beginning of a case (for example, denial of a motion to dismiss based on jurisdictional grounds), to events during trial (for example, granting or denying objections to admission of evidence or objections to jury instructions), to the moments just before entry of judgment (for example, the judge’s decision to give an Allen charge to the jury), interlocutory rulings effectively stack up until the court disposes of the last outstanding issues.

The interlocutory decisions then merge into the final judgment. All of them become appealable if error was properly preserved, unless they have become moot in the interim. An important exception is an order denying a motion for summary judgment, which is not appealable when it is entered or at the conclusion of the case. If the losing party contends that the evidence was insufficient to support a claim, that party must preserve the issue by addressing with a motion the proof presented at trial, and then appeal if the motion is denied. The proof marshaled at the summary judgment stage is effectively irrelevant.

The existence of a judgment or decree does not necessarily mean that an appeal is permissible or appropriate without further action. An appeal generally involves a challenge to a judicial action or omission. For example, if you believe that the evidence was insufficient to support the jury’s verdict in a civil case, your complaint is not really about the jury; it is about the judge’s failure to grant judgment as a matter of law in your client’s favor. If you appeal without first making and then renewing a motion for judgment as a matter of law under Federal Rule of Civil Procedure 50, the court of appeals will be powerless to rule in your favor.

Similarly, if you believe that a new trial is appropriate because the jury was swayed by passion or prejudice, because the court improperly instructed the jury, or because the verdict was against the weight of the evidence, you will have to request that new trial specifically from the district court under Federal Rule of Civil Procedure 59 before you request it from the court of appeals. And if the trial court makes an error in documenting the judgment, you first must move to have the district court alter or amend the judgment under Rule 59(e). You preserve error for appeal by making the appropriate motions in the trial court and getting a judicial ruling on those motions, and that ruling is then subject to appellate review. Under Federal Rule of Appellate Procedure 4, the time to appeal the judgment runs from the date of the disposition of a timely filed post-trial motion, so that a single appeal may cover the judgment, earlier interlocutory decisions, and a later decision on a post-trial motion.

On the other hand, the possibility of further proceedings in the district court does not necessarily mean that the losing party can wait to appeal the judgment or decision. For example, an application for costs or attorney fees is considered sufficiently distinct from the merits of a case that it does not extend the time for the losing party to appeal the decision on the merits. The Supreme Court reaffirmed this principle in a recent case, holding that it does not matter whether the right to attorney fees is statutory or contractual and ordering the dismissal of an appeal commenced only after the fee proceedings concluded. Ray Haluch Gravel Co. v. Cent. Pension Fund, 134 S. Ct. 773, 777 (2014). But the district court has discretion under Federal Rule of Civil Procedure 58(e) to delay an appeal if resolving issues of costs and fees first would be beneficial.

Also, in particular substantive areas of the law, a judgment entered on the fundamental issues in dispute may be appealable even though ancillary matters remain to be litigated. Examples of secondary issues that will not preclude an immediate appeal of the primary ruling include the details of a divestiture ordered in an antitrust action and an accounting in an action for patent infringement. See 28 U.S.C. § 1292(c)(2).

Immediate Appeals of Non-Final Decisions
Congress has authorized immediate appeals of several types of non-final decisions by statute. Probably the most commonly employed is 28 U.S.C. § 1292(a)(1), which permits appeals of interlocutory orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.” Note that an appeal lies whether a preliminary injunction is granted or denied, so both sides have a shot at immediate review in the higher court. The statute also may apply to a temporary restraining order, which generally is not appealable but may be treated as an appealable preliminary injunction if the district court extends it beyond the time limit specified in the rules.

Other provisions of section 1292(a) permit immediate appeals of certain orders involving receiverships and admiralty matters. The appeal provisions in the Federal Arbitration Act generally permit review of interlocutory decisions hostile to arbitration while barring review of pro-arbitration decisions. See 9 U.S.C. § 16. And in a criminal case, the government has the right to appeal a pretrial order suppressing or excluding evidence or ordering the return of property if the U.S. attorney certifies that the evidence is substantial and that the appeal is not taken for the purpose of delay. See 18 U.S.C. § 3731.

All of these statutes authorizing interlocutory review reflect practical realities. Many cases are effectively won or lost at the preliminary injunction stage because it may be impossible for the parties to reopen a shuttered business or otherwise restore the pre-litigation status quo after a full litigation of the merits. Arbitration does not serve as an effective alternative to litigation if parties must litigate through trial before vindicating their rights to arbitration. And the government has no realistic remedy if the improper exclusion of evidence results in an acquittal of a defendant at trial because the Double Jeopardy Clause bars the government from appealing or charging the defendant again.

Neither the district court nor the court of appeals has discretion to refuse an appeal under the statutes discussed above. By contrast, most other interlocutory orders are appealable only with leave of both the trial court and the appellate court. Under 28 U.S.C. § 1292(b), the district court may certify that an interlocutory order in a civil case “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” The court of appeals “may thereupon, it its discretion, permit an appeal to be taken from such order.”

Appeals under section 1292(b) are rare because they are largely inconsistent with the normal division of labor between the trial and appellate courts. Obtaining interlocutory review under section 1292(b) may require convincing the court of appeals that it is possible to decide the controlling legal question without delving deeply into the parties’ factual dispute and that a decision of that question will streamline litigation in other cases pending throughout the circuit.

A more recent statute, 28 U.S.C. § 1453(c), permits a party to seek an appeal of an order remanding a class action to state court. An appeal under section 1453(c) does not require certification by the district court, but the court of appeals may deny the appellant leave to appeal. To minimize the potential for disruption if the court of appeals orders the case returned to federal court, the statute provides that if the court accepts the appeal, it must decide the issues within 70 days, unless the parties agree to a longer extension.

Congress has empowered the Supreme Court to enact rules authorizing interlocutory appeals and determining which decisions qualify as final. See 28 U.S.C. §§ 1292(e), 2072(c). The Supreme Court has not used this authority often, but two rules of procedure permit interlocutory appeals in some situations. Under Federal Rule of Civil Procedure 54(b), if a case involves more than one “claim for relief,” a district court “may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.” The court of appeals does not have complete discretion to reject a Rule 54(b) appeal, but it may dismiss if it disagrees with the district court’s efforts to distinguish one claim from another or the court’s conclusions that the issues decided are final and that there is no just reason for delay. Federal Rule of Civil Procedure 23(f), enacted in 1998, also authorizes the court of appeals to “permit an appeal from an order granting or denying class-action certification.” The court of appeals has full discretion to permit or deny an appeal under Rule 23(f).

The enactment of Rule 23(f) partially overruled the Supreme Court’s decision in Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), in which putative representatives of a class argued that a district court’s order denying class certification was appealable as of right. Their argument, which was unsuccessful, was based on the earlier decision of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), which established what is known as the “collateral order” exception to the final judgment rule. To fit within the exception, an order “must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand, 437 U.S. at 468. In civil cases involving private parties, the category of appealable collateral orders is, as the Supreme Court said in Cohen, a “small class.” Cohen, 337 U.S. at 546.

The most high-profile Supreme Court case in recent years to test the boundaries of the collateral order exception involved a district court’s determination that a party had waived the attorney-client privilege and was required to disclose information to the opposing party. Although many lawyers would agree that such an order presents an issue of exceptional importance as to which an appeal should not be delayed—at least if it involves their own advice—the Supreme Court unanimously rejected the appellant’s argument and concluded that the order could be reviewed effectively after a judgment. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 109 (2009).

Interlocutory review of collateral orders is much more common in cases involving public entities and officials. An order denying a public official’s claim of absolute immunity from suit is immediately appealable, as is a state’s claim of immunity under the Eleventh Amendment. When a public officer asserts qualified immunity in a civil case, the analysis is more complicated. If an order denying qualified immunity turns on a question of law—particularly whether a set of agreed-upon or alleged facts would represent a violation of clearly established law—the order is immediately appealable. By contrast, if the decision is fact-bound, turning on the parties’ disagreement about what actually happened, the case must proceed to trial.

Conceptually related to the immunity cases is the right of a criminal defendant to appeal the denial of a motion to dismiss on the basis of double jeopardy; in such a case, the defendant asserts a constitutional right not to be tried at all. The Supreme Court has recognized, however, that a good lawyer can characterize a statute of limitations and many other defenses as a right not to be subjected to a trial, so it has described the consideration justifying an immediate appeal as “avoidance of a trial that would imperil a substantial public interest.” Will v. Hallock, 546 U.S. 345, 353 (2006).

If a trial court’s decision is not final and is not appealable under an exception to the final decision rule, it may be possible to obtain review of a trial court’s decision by means of an application for a writ of mandamus or prohibition. A detailed discussion of these writs is beyond the scope of this article, but in the federal courts, they generally are limited to confining a district court to the lawful exercise of its jurisdiction or to requiring the performance of a mandatory obligation. The Supreme Court has expressed the view that extraordinary writs may not be used to thwart the policy against piecemeal appeals. However, some state courts issue extraordinary writs more readily.

Another possibility, depending on the jurisdiction, may be to seek substantive relief in the appellate court directly, rather than by an appeal or an application for a supervisory writ. For example, the Supreme Court has the power to issue a writ of habeas corpus on an application filed directly with the Court. Although a direct habeas application is not a high-percentage strategy in the federal system, it may be a worthwhile effort in a state court. In fact, seeking relief directly in an appellate court may be the only way to invoke that court’s assistance in certain categories of cases or procedural situations.

Various Types of Appealable Orders
An early Supreme Court case serves as a useful tool to help synthesize the various types of appealable orders. In Forgay v. Conrad, 47 U.S. (6 How.) 201 (1848), a federal circuit court handling a bankruptcy case concluded that deeds made by the bankrupt were fraudulent, declared the deeds void, directed the recipients of the transfers to deliver the property to the bankruptcy assignee, and authorized the assignee to execute on those aspects of the decree. But the court also directed a special master to make an accounting of the rents and profits of the property while it had been in the hands of the defendants. The Supreme Court recognized that the continued proceedings before the special master meant that the decree was not a final decision, but the Court concluded that the defendants were permitted to appeal anyway because of the irreparable injury they would suffer if the property were sold and distributed to the bankrupt’s creditors while the defendants were required to wait for the report of the special master to be prepared and approved.

The Court described the principle as follows:

    [W]hen the decree decides the right to the property in contest, and directs it to be delivered up by the defendant to the complainant, or directs it to be sold, or directs the defendant to pay a certain sum of money to the complainant, and the complainant is entitled to have such decree carried immediately into execution, the decree must be regarded as a final one to that extent.

Id. at 204.

The Court also took care to distinguish orders directing property to be paid into court, held by a receiver, or placed into trust. Because these types of orders are designed to preserve the property until the parties’ rights can be determined, they are not appealable. Id. at 204–05.

The order in Forgay resembles a preliminary injunction in some respects. It also has much in common with collateral orders under the Cohen doctrine, except that the Forgay order arguably was not really separate from the merits of the dispute. And it is possible to think of the remaining special master proceedings in Forgay as comparable to an application for attorney fees, a post-judgment issue that does not delay the deadline to appeal the judgment resolving the main dispute.

Courts and commentators are not certain whether Forgay represents a distinct type of appealable interlocutory order or whether it is a precursor to or a variation of the collateral order doctrine. If cases like Forgay had arisen frequently since 1848, this jurisprudential puzzle might have a simple answer. But the Supreme Court in Forgay chastised the trial court for permitting the problem to occur, and courts generally have heeded the instruction that they should “in framing their interlocutory orders, and in carrying them into execution . . . abstain from changing unnecessarily the possession of property, or compelling the payment of money by an interlocutory order.” Id. at 205.

The Supreme Court has not issued a similar instruction that district courts should refrain from making errors or otherwise disappointing the expectations of litigants. Any such instruction, of course, would be hopelessly ineffective. As a result, there will always be appeals. And the law of finality and appealability will continue to develop to keep pace with the complexities of litigation and the creativity of attorneys.

Keywords: appeal, appealability, finality, appellate practice

Brian C. Walsh is a partner with Bryan Cave LLP in St. Louis, MO, and Atlanta, GA.

This article was adapted from the original version, which was published in the Fall 2015 issue of LITIGATION.

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