Concept
Section 1291 and Appellate Jurisdiction
Final decision under § 1291
Final Decisions Under Section 1291
Section 1291 and Appellate Jurisdiction
Almost every ordinary appeal from a federal trial court rests on one sentence of one statute. Section 1291 of Title 28 gives the courts of appeals jurisdiction over appeals from "all final decisions" of the district courts.1 Those two words, "final decisions," generate most of the law in this chapter. Congress defines the appellate jurisdiction of the federal courts, so a court of appeals can hear an appeal only when a statute gives it the power, and in the ordinary case § 1291 does.2 A losing litigant therefore faces a threshold question before asking whether the judge erred: is this ruling a final decision? If it is not, the court of appeals has nothing to review yet, however plain the error. A final decision "generally" is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment."3 The next section takes up that definition. This section places § 1291 on the larger map of review.
The statute limits its own grant in two ways. First, it excludes the Federal Circuit, whose jurisdiction is confined to what §§ 1292(c) and (d) and 1295 describe, so the regional circuits' power over final decisions is not that court's source of authority.4 Second, the words "except where a direct review may be had in the Supreme Court" remove from the courts of appeals any decision that Congress has sent straight to the Supreme Court.5
The direct-review exception has concrete content. When a three-judge district court is convened under 28 U.S.C. § 2284, its decisions "granting or denying . . . an interlocutory or permanent injunction" go directly to the Supreme Court under 28 U.S.C. § 1253, and many redistricting challenges travel that route.6 A party who loses such a ruling cannot take it to a court of appeals under § 1291, because the statute's own exception removes the case from that court. Congress may also create a direct appeal in a single statute, even when only one judge sits.7 The Flag Protection Act of 1989, passed after Texas v. Johnson, is the example. Two one-judge district courts struck the Act down in March 1990, the Supreme Court noted probable jurisdiction on March 30, and it decided United States v. Eichman on June 11, 1990, with no court of appeals ruling in between.8
That scene is the ordinary case, and on an exam it is the default: a final decision of a federal district court goes to a federal court of appeals under § 1291, and the Supreme Court route appears only when the facts mention a three-judge court or a statute providing direct appeal.9 The two routes also give the litigant different amounts of control. A party holding a final judgment has an automatic right to appeal to the court of appeals, while review in the Supreme Court is almost entirely discretionary.10 Certiorari, the petition by which a party asks the Supreme Court to take a case, succeeds only if at least four Justices agree to hear it.11 That difference explains why finality carries so much weight. Section 1291 opens the one level of review a litigant can demand, so every dispute over whether an order is final is a dispute over when that guaranteed review begins.
Because finality is a statutory limit on the court's power, it works as a precondition to review. It applies unless the decision falls into one of the exceptional categories that allow immediate appeal.12 Parties cannot supply a power that the statute withholds, so a court of appeals tests the order before it against § 1291 and the recognized exceptions to finality before it looks at the merits, even when no one objects.13 In re Recticel Foam Corp. shows the inquiry at work. Codefendant Recticel Foam Corp. sought an immediate appeal from an order requiring the defendants to share the expense of reproducing videotapes.14 The First Circuit stopped short of the merits. The order was not final under § 1291, fell within no recognized exception to the finality principle, and did not justify the rarely used writ of mandamus.15 Misjudging finality is costly. A premature appeal is dismissed, and a party who misjudges when final judgment was entered can forfeit appeal altogether, because the strict time limits for appeal run from that judgment.16