Appealability: final decisions, interlocutory orders, Rule 54(b), the collateral order doctrine, and review of findings

Black-letter propositions

1. 01

   The courts of appeals have jurisdiction of appeals from all final decisions of the district courts, under 28 U.S.C. section 1291.

2. 02

   An order that adjudicates fewer than all the claims or the rights of fewer than all the parties does not end the action and may be revised at any time before final judgment, unless the court directs entry of final judgment on some claims or parties under Rule 54(b).

3. 03

   Under Rule 54(b), the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if it expressly determines that there is no just reason for delay.

4. 04

   Section 1292(a)(1) allows an immediate appeal from orders of the district courts granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.

5. 05

   Under section 1292(b), a district judge who is of the opinion that a non-appealable order involves a controlling question of law as to which there is substantial ground for difference of opinion, and that an immediate appeal may materially advance the ultimate termination of the litigation, may so state in writing in the order, and the court of appeals may in its discretion permit an appeal if application is made within ten days after entry of the order.

6. 06

   Under the collateral order doctrine, a decision that finally determines claims of right separable from, and collateral to, the rights asserted in the action, and too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated, is appealable immediately.

7. 07

   In a civil case the notice of appeal must be filed within 30 days after entry of the judgment or order appealed from, or within 60 days if the United States, a federal agency or a federal officer or employee sued in an official capacity is a party.

8. 08

   A timely motion under Rule 50(b), Rule 52(b), Rule 59 (new trial or to alter or amend) or a Rule 60 motion filed within the Rule 59 time makes the time to appeal run for all parties from the order disposing of the last such motion.

9. 09

   In a case tried without a jury, findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the witnesses' credibility.

10. 10

    On a party's motion filed no later than 28 days after entry of judgment, the court may amend its findings, or make additional findings, and may amend the judgment accordingly.

Use this attack sequence under time

Common wrong turns

• A Rule 54(b) certification requires an express determination of no just reason for delay, and the label the court chooses is not enough.
• A section 1292(b) certification does not by itself authorize an appeal, because the court of appeals must also permit it.
• A motion that is late under the rules does not toll the time to appeal.

Worked example

A district court in a two-claim case grants summary judgment on one claim and sets the other for trial. The winning party wants to appeal now.

Practice this topic

The final-judgment rule and its statutory exceptions

Title 28 U.S.C. section 1291 gives the courts of appeals jurisdiction of appeals from all final decisions of the district courts. Under Federal Rule of Civil Procedure 54(b), an order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any claim or party and may be revised at any time, unless the court directs entry of a final judgment on one or more claims or as to some parties after expressly determining that there is no just reason for delay.

Section 1292(a)(1) allows appeal from interlocutory orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify them. Under section 1292(b), a district judge who states in writing in the order that it involves a controlling question of law with substantial ground for difference of opinion and that an immediate appeal may materially advance the termination of the litigation allows the court of appeals, in its discretion, to permit an appeal if application is made within ten days after entry of the order.

The collateral order doctrine

In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), the Supreme Court held that a decision falling in the small class that finally determines claims of right separable from, and collateral to, the rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated, is appealable. The Court described this as a practical, rather than a technical, construction of the final-decision statute.

Cornell's Wex describes the collateral order doctrine as an exception to the general rule against allowing interlocutory appeals, meaning appeals from temporary orders issued during the course of litigation.

Time to appeal and the standard of review

Federal Rule of Appellate Procedure 4(a)(1)(A) requires the notice of appeal in a civil case to be filed with the district clerk within 30 days after entry of the judgment or order appealed from, and Rule 4(a)(1)(B) allows any party 60 days if the United States, a United States agency, or an officer or employee sued in an official capacity is a party. Rule 4(a)(4)(A) makes the time to appeal run for all parties from the order disposing of the last of certain timely post-judgment motions, including motions under Rule 50(b), Rule 52(b), Rule 59, and Rule 60 if filed within the Rule 59 time.

Federal Rule of Civil Procedure 52(a)(6) provides that findings of fact in a bench trial must not be set aside unless clearly erroneous, and that the reviewing court must give due regard to the trial court's opportunity to judge witnesses' credibility. Rule 52(b) lets a party move no later than 28 days after entry of judgment to amend findings or make additional findings.

Frequently asked questions