The Final Judgment Rule

Interlocutory Appeal Routes

The Final Judgment Rule

Section 1291 of Title 28 gives the courts of appeals jurisdiction over “all final decisions of the district courts of the United States,” except where direct review lies in the Supreme Court.¹ A decision is final only when it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.”² Once the trial court has resolved everything in dispute, only enforcement of the result remains, and the party who lost generally has a right to appeal the adverse judgment.³ Every route discussed in this chapter is measured against that line.

Everything short of that decision is interlocutory. An interlocutory order relates to some intermediate matter in the case, and most such orders are not appealable until the case is fully resolved.⁴ Some types, such as preliminary injunctions and class-certification orders, can be appealed at once by rule or statute, which is why the exceptions surveyed in this chapter matter.⁵

Suppose a plaintiff pleads five claims and the district court dismisses one of them while the other four go forward. The litigation has not ended on the merits, so the dismissal is not a final decision, and the plaintiff cannot appeal it yet. The plaintiff instead may “save it up” and assert it, perhaps alongside other claims of error, in an appeal from the eventual final judgment on the remaining claims.⁶ Saving an issue does not excuse the party from preserving it, since a party who hopes to raise an issue on appeal generally must object promptly to the trial court’s handling of it and state her grounds on the record.⁷

Deferral spares the system three costs. The first is interruption of the trial court. Suppose Penders’s motion to compel discovery from Desmond is denied because the documents are irrelevant. An immediate appeal might stop the case through a stay until the appeal is decided, and it would produce an appellate decision that Penders’s victory at trial would have made unnecessary.⁸ The second is a flood of appeals: allowing appeal too soon risks inundating the courts of appeals with appeals that would have been mooted had the trial court completed its work.⁹ The third is delay used as a weapon, because an appeal that holds up the trial to decide interlocutory matters can be used to harass the opposing party.¹⁰ The Supreme Court describes the underlying harm as “the debilitating effect on judicial administration caused by piecemeal appellate disposition of what is, in practical consequence, but a single controversy.”¹¹ The numbers point the same way. In 2019 the federal courts of appeals affirmed (in whole or in part) about 65 percent of appeals terminated on the merits and reversed only about 8.2 percent, which suggests that most interlocutory appeals would fare no better and that allowing more of them would not much improve judicial outcomes.¹²

The same design carries a price, because delay can let irreversible harm occur. Suppose the trial court refuses Penders’s motion for a preliminary injunction to stop Desmond from releasing wastewater that Penders says is ruining his crops. If no one reviews that denial until after trial and final judgment, Penders’s crops may be destroyed first.¹³ Section 1291 is plain enough in most cases, but whether a particular order is final may pose a close question.¹⁴ In Cohen, the Court allowed an immediate appeal from a ruling that was not “tentative, informal or incomplete” but settled conclusively the corporation’s claim that state law entitled it to require the shareholder to post security for costs. The ruling was no mere step toward final disposition of the merits; it concerned a collateral matter that could not be reviewed effectively on appeal from the final judgment.¹⁵

Courts have not let that reasoning spread freely. Interlocutory appeals are not favored, and the statutes allowing them must be strictly construed.¹⁶ Coopers & Lybrand v. Livesay rejected the death-knell doctrine, which had allowed immediate appeal from the refusal to certify a class action when the plaintiff’s personal stake was too small for him to continue the suit alone. The principle of irreparable harm that underlay Abney and Cohen seemed to apply there as well, yet the Court stressed that a loose construction of finality would undermine the limits Congress set on interlocutory review in § 1292(b).¹⁷

Special rules for multi-claim, multi-party cases may look like exceptions, but they are not. They identify the orders that finally determine the action as it pertains to a given party or claim, so they apply the final judgment rule in those contexts rather than depart from it.¹⁸ The true departures come next. This chapter takes up the statutory routes in § 1292 first,¹⁹ then the collateral order doctrine and its relatives, the route created by rulemaking, and finally mandamus and contempt. It closes by matching common adverse orders to the routes that can reach them.