When can you get an appeal in the middle of a lawsuit?
In general, you can’t appeal a judicial decision until the decision is “final.” Ordinarily, that means the case must be over, i.e. the court has resolved all of the claims brought by any of the parties. The rule comes from a federal law that determines when an appeals court can get jurisdiction (28 U.S.C. § 1291).
But there are some grey areas in determining what a “final” decision is. For example, if there’s a huge “multi-district litigation,” a party might not have to wait until all the claims of all of the parties are final to appeal her own final decision (Gelboim v. Bank of Am. Corp. (2015)).
And then there are some specific case contexts that Congress has listed as exceptions to the “finality rule.” For example, when a party is denied class certification, it can appeal immediately. F.R.C.P. 23(f). Or when a party loses a request for temporary relief, a preliminary injunction, an immediate appeal is allowed. 28 U.S.C. § 1292(a)(1) (see (a)(2) and (a)(3) for other enumerated exceptions).
Generally speaking, however, a party has a steep hill to climb to get past the “finality rule.” This report discusses a few special procedural devices by which a party can attempt to get past the finality rule.
Why the finality rule?
Before we discuss how parties may get out of the “finality rule,” it’s useful to know why the rule exists in the first place.
As an ABA article describes, there are a few reasons. For one, appeals court don’t want to get in the way of how the lower courts (the district courts) manage their cases. The potential for an early appeal could lead to illicit strategizing on the parts of the parties (attempts to “disrupt a case or harass an opponent”). Further, because an appeal takes the time and money of an appeals court, it’s better to wait and see if the issue will indeed matter before the higher court spends its time on it.
When Congress established exceptions to the finality rule, it specified situations for which the above factors are less important than immediate review of the issues. Courts will consider the same factors when reviewing a party’s request to appeal in any of the following special circumstances.
What are they?
The discretionary interlocutory appeal
The word interlocutory comes from the Latin word for “interrupt.” One type of appeal that is allowed to “interrupt” a court case before it’s final is the discretionary interlocutory appeal.
By federal law, the trial court and the relevant court of appeals have discretion to allow an “interlocutory appeal” (28 U.S.C. § 1292(b)). Both of the courts must agree to allow it — and remember, the district court is the one that gave the order you want to appeal in the first place.
Because of the dual-discretionary aspect of this type of appeal and its additional requirements, it’s very rarely successful. In addition to getting both courts to agree, you have to argue that if the decision had gone the other way, it could end the litigation more quickly. Further, the decision also must have been a controlling question of legal interpretation (instead of a question of factual interpretation) for which there is a substantial ground for a difference of opinion.
A successful interlocutory appeal:
Sometimes jurisdictional decisions will fall into this type of appeal. The example in the infographic describes a case in which the FDIC sought to avoid litigation in federal court all together. In Marquis v. FDIC (1st Cir. 1992), the FDIC had taken over a lawsuit against a bank which had gone insolvent. Under federal law, the FDIC argued, the dispute should go through the administrative system instead of the federal courts. When the FDIC lost that ruling in the district court, it was able to get an interlocutory appeal under § 1292(b) to review the jurisdictional question. Because the issue could have put an end to the federal court case immediately, and it was a question of law that could have been interpreted the other way, both the trial court and the appeals court agreed to the immediate appeal.
A failed interlocutory appeal:
In Ahrenholz v. Board of Trustees of the University of Illinois (7th Cir. 2000), an employee sued his employer for retaliation. After the evidence had been presented at trial, the employer tried to get a “summary judgment.” That’s an argument saying that the case should be dismissed because the plaintiff has not presented enough evidence to make a legal claim good enough to be presented to the jury. The employer was denied the dismissal. The employer tried to get an immediate appeal, saying the case would be resolved more quickly if the decision turned out differently. But the appeals court said No. The summary judgment decision did not turn on a “controlling question of law” — an abstract legal issue. Instead, it was about applying the facts of the case to the law, which does not qualify for a § 1292(b) appeal.
The Collateral Order Doctrine
The “Collateral Order Doctrine” allows a different type of immediate appeal that is used more commonly. It’s where a party can try to get an immediate appeal if the order is separate from the rights asserted in the case. In other words, the order was “collateral to” the rest of the case, and the decision may be considered final even though the rest of the litigation is not final for purposes of appeal.
The Collateral Order Doctrine emerged from a Supreme Court case in 1949, Cohen v. Beneficial Industrial Loan Corp. In Cohen, a shareholder of a relatively small percentage of corporate interest had sued the corporation on behalf of all of the other shareholders. Sometime while the litigation was ongoing, New Jersey passed a law that said a plaintiff must pay the defendants’ expenses and attorney’s fees if the plaintiff ends up losing the case. The company that had been sued wanted assurance that the shareholder-plaintiff would be able to pay this, so the company requested that the court order the plaintiff to put up a $125,000 bond.
The district court refused to apply the new NJ law to the ongoing case. The corporation appealed and won. When the case came to the Supreme Court, the Justices had to determine first whether the order was suitable for an immediate appeal anyway, given that the litigation was not final. The Court said it was:
This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, 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.
The current statement of the Collateral Order Doctrine is that the 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 v. Livesay (1978).
A successful collateral order appeal:
When a state tries to assert immunity from litigation and is rejected, the immediate appeal may be recognized under the Collateral Order Doctrine.
For some background, the Constitution says that states generally can’t be sued in federal court. For example, if you get into a contract with a state government, and you believe the state breaks the contract, you can’t pull the state into a federal court litigation (i.e. you can’t sue the state in federal court). It violates the Constitutional concept of Federalism.
But suppose you sued the state anyway, and the district court did not grant the state immunity. In that situation, the state could pause the case and appeal right away. In Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., (1993), the Supreme Court agreed that the elements for a collateral order appeal were met.
A failed collateral order appeal:
In Mohawk Industries, Inc. v. Carpenter (2009), a party requested to keep information sealed under the attorney-client privilege. The court ordered the information revealed, rejecting the party’s request for confidentiality. The party sought to appeal under the Collateral Order Doctrine, but the Supreme Court rejected the appeal. The Court said that the question of privilege could be reviewed effectively at the end of the case:
In our estimation, postjudgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney-client privilege. Appellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence.
The ruling surprised some commentators who would have expected that a party should have a chance to be saved from having to reveal potentially privileged information. But the Supreme Court swept that concern into the regular batch of litigation concerns – issues which can be appealed later.
The writ of mandamus
The writ of mandamus is another exceptionally rare type of middle-of-the-game appeal. It’s basically a last resort by which a party can plead that a government official is abusing its discretion or carrying out extreme injustice. Someone can petition for a writ of mandamus against any “inferior government official,” which includes trial court judges. So while the most well known instance of a writ of mandamus (Marbury v. Madison) is not an appeal to a court decision, it may be used to get an immediate appeal.
The bar is high. A party must show:
there are no other adequate means of relief;
the right to relief is “clear and indisputable;” and
the writ is “otherwise appropriate” under the circumstances.
Parties may petition for a writ of mandamus when the rules to get a discretionary interlocutory appeal don’t apply. For example, a party might try it when it wants to appeal a decision that will not bring a speedier resolution of a case, or when the decision doesn’t involve a controlling question of law. In fact, a court may reject a party’s request for a writ of mandamus if the issue seems suitable to a discretionary interlocutory appeal and the party hasn’t tried it. The court may suspect the party of trying to avoid the dual-discretionary function of the interlocutory appeal. See How mandamus and interlocutory appeals interact (Aaron S. Bayer, National Law Journal, 2012).
The writ of mandamus is really meant for an “extraordinary” situation. Suppose a court simply refuses to honor a valid court order from another state. Or a judge interprets a law completely contrarily to any other court in the nation.
Here are some examples of attempts to use the writ of mandamus to get an immediate appeal.
Successful writ of mandamus:
In La Buy v. Howes Leather Co., (1957), a federal judge had faced two civil lawsuits that were taking a lot of time and seemed burdensome to the judge. Without getting permission of the parties, the judge just decided that he would delegate the pre-trial proceedings of those lawsuits to a magistrate judge (a lesser-qualified judge). The parties sought a writ of mandamus that the judge did not have the authority to delegate his tasks of trying the case. The appeals court and the Supreme Court agreed that the writ of mandamus was justified.
Another successful writ of mandamus
The large tech company Apple successfully argued for a writ of mandamus in In Re: Apple Inc., No. 14-143 (Fed. Cir. 2014). Apple had been sued in Texas and tried to get the case transferred to California. When the judge in Texas denied Apple’s request to transfer to the case, Apple sought a writ of mandamus for an immediate appeal. This is a circumstance in which a discretionary interlocutory appeal wouldn’t work because transferring the case wouldn’t necessarily make it end more quickly. Apple went with the writ of mandamus because it felt the Texas judge had made a “clear abuse of discretion” when it evaluated Apple’s transfer request. The Federal Circuit Court of Appeals agreed. In granting the writ of mandamus and Apple’s motion to transfer, the appeals court said the judge in Texas had failed to consider adequately the evidence and failed to give proper weight to the relevant legal factors.
Unsuccessful writ of mandamus
In Juliana v. United States, a major climate change litigation that is currently ongoing (set for trial October 29, 2018), the U.S. government tried to get a ruling appealed immediately by requesting a writ of mandamus and was denied. In fact, the government had already tried to get a discretionary interlocutory appeal which had been denied.
The Julianna plaintiffs sued the government by using the Constitution in novel ways to argue that the government’s failure to address climate change would affect their health and well-being in the future. The government felt the argument was BS and tried to get the case dismissed at the outset (a motion to dismiss). When the motion was denied, the government felt the court had abused its discretion so clearly in interpreting the Constitution that it requested a writ of mandamus (again, after being denied an interlocutory appeal). The 9th Circuit Court of Appeals rejected the petition for a writ of mandamus. The court reiterated that a writ of mandamus should only be used in “exceptional circumstances” and that the government’s requests for relief would be “better addressed through the ordinary course of litigation.”
A Primer on the Finality of Decisions for Appeal (Brian C. Walsh, American Bar Association, 2015)
Discretionary Interlocutory Appeals Under 28 U.S.C. 1292(b): A First Circuit Survey and Review (Tori Weigand, Roger Williams University Law Review)
How mandamus and interlocutory appeals interact (Aaron S. Bayer, National Law Journal, 2012)