Learning Outcomes
After reading this article, you will understand when federal appellate courts may hear appeals before final judgment, including the final judgment rule, exceptions for interlocutory orders such as injunctions, and the collateral order doctrine. You will be able to identify which trial court decisions are immediately appealable and apply these principles to MBE-style questions.
MBE Syllabus
For MBE, you are required to understand the rules governing appellate review in federal civil cases, especially the availability of interlocutory review. This includes:
- Recognizing the final judgment rule and its application.
- Identifying exceptions allowing interlocutory appeals, including orders regarding injunctions and the collateral order doctrine.
- Understanding the process for appealing multi-claim or multi-party cases.
- Knowing when and how a district court can certify an interlocutory appeal.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following is immediately appealable as of right in federal court?
- Denial of a motion to dismiss for lack of subject matter jurisdiction.
- Grant or denial of a preliminary injunction.
- Denial of a motion for summary judgment.
- Grant of a motion to compel discovery.
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Under the collateral order doctrine, an interlocutory appeal may be allowed if:
- The order is related to the merits of the case.
- The order conclusively determines an important issue, separate from the merits, and would be unreviewable after final judgment.
- The order is a discovery sanction.
- The order denies a motion for a new trial.
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A district court enters summary judgment on one of several claims in a multi-claim case, but does not expressly direct entry of final judgment or make any findings about delay. Is this order immediately appealable?
- Yes, always.
- Yes, if the losing party requests certification.
- No, unless the court expressly directs entry of final judgment and finds no just reason for delay.
- No, unless all parties consent.
Introduction
Federal appellate courts generally may review only final decisions of district courts. However, there are important exceptions allowing for interlocutory review—appeals before final judgment. Understanding when an order is immediately appealable is essential for MBE success.
The Final Judgment Rule
The default rule is that only final decisions—those that end the litigation on the merits—are appealable as of right. This is known as the final judgment rule.
Key Term: Final Judgment Rule The principle that federal appellate courts may only review decisions that dispose of all claims as to all parties, leaving nothing for the trial court to do except execute the judgment.
Exceptions: Interlocutory Appeals
Certain non-final orders are immediately appealable by statute or doctrine. The most frequently tested exceptions are:
Orders Regarding Injunctions
Orders granting, denying, continuing, modifying, or dissolving preliminary or permanent injunctions are immediately appealable as of right under 28 U.S.C. § 1292(a)(1).
Key Term: Interlocutory Appeal An appeal taken before final judgment, permitted by statute or doctrine for certain types of trial court orders.
Collateral Order Doctrine
Some orders, though not final, are immediately appealable if they:
- Conclusively determine a disputed question,
- Resolve an important issue completely separate from the merits,
- Would be effectively unreviewable after final judgment.
This is known as the collateral order doctrine.
Key Term: Collateral Order Doctrine A judicially created doctrine allowing immediate appeal of certain trial court orders that are separate from the merits and would evade review if not appealed immediately.
Certification for Interlocutory Appeal
A district court may certify an order for immediate appeal if it involves a controlling question of law with substantial ground for difference of opinion and an immediate appeal may materially advance the litigation. The court of appeals must also agree to hear the appeal (28 U.S.C. § 1292(b)).
Multi-Claim and Multi-Party Cases
If a case involves multiple claims or parties, an order resolving fewer than all claims or parties is not final unless the district court expressly directs entry of final judgment and finds no just reason for delay (FRCP 54(b)). Without this, the order is not immediately appealable.
Worked Example 1.1
A district court grants a preliminary injunction preventing a company from using a trademark during litigation. The company wants to appeal immediately. Is this order appealable as of right?
Answer: Yes. Orders granting or denying injunctions are immediately appealable under 28 U.S.C. § 1292(a)(1).
Worked Example 1.2
A district court denies a motion to dismiss based on qualified immunity in a civil rights case. The defendant wants to appeal before trial. Is this order appealable?
Answer: Yes, under the collateral order doctrine. Denials of qualified immunity are immediately appealable because immunity is meant to protect against trial itself, not just liability.
Worked Example 1.3
A district court grants summary judgment on one claim in a three-claim case but does not direct entry of final judgment or make findings about delay. Can the losing party appeal now?
Answer: No. Without an express direction and a finding of no just reason for delay under FRCP 54(b), the order is not final and not immediately appealable.
Exam Warning
Orders denying motions to dismiss or for summary judgment are generally not immediately appealable. Do not confuse these with orders regarding injunctions or collateral orders.
Revision Tip
Always check if the order fits a statutory exception or the collateral order doctrine before concluding it is immediately appealable.
Key Point Checklist
This article has covered the following key knowledge points:
- The final judgment rule limits appeals to decisions ending the case on the merits.
- Immediate appeal is allowed for orders granting or denying injunctions.
- The collateral order doctrine permits appeal of certain important, separable orders.
- Multi-claim orders are not appealable unless the court directs entry of final judgment and finds no just reason for delay.
- Certification for interlocutory appeal requires both district court and appellate court approval.
Key Terms and Concepts
- Final Judgment Rule
- Interlocutory Appeal
- Collateral Order Doctrine
