Chapter 17 THE FINAL JUDGMENT RULE IN THE FOURTH CIRCUIT

JurisdictionMaryland

Chapter 17 THE FINAL JUDGMENT RULE IN THE FOURTH CIRCUIT

Michele J. McDonald and Joseph Dudek1

The jurisdiction of the U.S. Court of Appeals for the Fourth Circuit is ordinarily limited to "final decisions of the district courts." 28 U.S.C. § 1291. This chapter addresses when a trial-court order is "final" under this statute, colloquially the federal "final judgment rule" and the narrow exceptions to that rule.

I. GENERAL PRINCIPLES

The final judgment rule starts with some basic principles that unified the en banc Fourth Circuit in Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022). A "final decision" is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment."2 In other words, a "final decision is one by which a district court dissociates itself from a case."3

Classic examples of final decisions include jury verdicts or orders granting summary judgment and resolving the entire case. To be similarly final, an order dismissing the action must not grant leave to amend.4 A final decision becomes appealable once it has been embodied in a "judgment" under Fed. R. Civ. P. 54(a) and entered on the docket under Fed. R. Civ. P. 58. And these judgments remain final even if there are collateral issues left for the trial court to resolve, like an award of fees and costs.5

This general rule is not just an interpretation of the words of the finality statute; it is "critical for 'preserv[ing] the proper balance between trial and appellate courts,' by minimizing piecemeal appeals, and for promoting 'efficient administration of justice.'"6 To maintain this balance, appellate courts "routinely require litigants to wait until after final judgment to vindicate valuable rights, including rights central to our adversarial system."7

Under this framework, federal courts disfavor "interlocutory appeals"—appeals from rulings other than final judgments resolving the entire case. These interlocutory appeals risk harassment and delay that would upset the efficient administration of justice.8

Although exceptions to the final judgment rule are disfavored, they exist. Congress and the courts have crafted limited and narrow exceptions to the final judgment rule through statutes, rules, and case law. These exceptions authorize the immediate review of:

• "collateral orders," which are entirely separate from the merits and effectively unreviewable on appeal from a final judgment, Mohawk, 558 U.S. at 104-07; Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949));

• interlocutory orders that involve a "controlling question of law as to which there is a substantial ground for difference of opinion," for which "an immediate appeal may materially advance the ultimate termination of the litigation" (28 U.S.C. § 1292(b));

• orders that dispose of one or more, but fewer than all, of the "claims" in a case, as well as orders that dispose of all claims against one or more, but fewer than all, of the parties (Fed. R. Civ. P. 54(b));

• orders granting or denying class certification (Fed. R. Civ. P. 23(f));

• interlocutory orders concerning injunctions, receiverships, and certain admiralty proceedings (28 U.S.C. § 1292(a)(1)-(3)); and

• certain interlocutory orders through the "drastic and extraordinary remedy" of a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651, Cheney v. U.S. Dist. Court for the District of Columbia, 542 U.S. 367, 379 (2004) (quoting Ex parte Fahey, 332 U.S. 258, 259-60 (1947)).

II. THE COLLATERAL ORDER DOCTRINE

Some trial-court orders that do not resolve the entire case are nonetheless "too important to be denied review and too independent" of the underlying merits to wait until full resolution of the merits.9 These "collateral orders" are appealable as final decisions if they "[1] conclusively determine the disputed question, [2] resolve an import ant issue completely separate from the merits of the action, and [3] [are] effectively unreviewable on appeal from a final judgment."10 "This is not a balancing test; to fall within the collateral order doctrine, a trial court order must satisfy each condition."11 The doctrine is "is best understood not as an exception to the 'final decision' rule laid down by Congress in § 1291, but as a 'practical construction' of it."12 ,13

A. Orders Appealable Under the Collateral Order Doctrine

The Supreme Court has permitted appeals under the collateral order doctrine in certain classes of cases that consistently satisfy the doctrine's three criteria.

1. Bonds, bail and double jeopardy

In Cohen, the Court permitted an appeal from a ruling that excused a derivative-suit plaintiff from having to post a bond to compensate the defense in case she failed to prove her claims.14 The Court l ater extended the doctrine to an order denying a motion to reduce bail,15 and an order denying a pretrial motion to dismiss on double jeopardy grounds.16

2. Absolute and qualified immunity

A government official who moves to dismiss or terminate litigation based on their absolute immunity from suit may appeal denial of their motion. Nixon v. Fitzgerald, 457 U.S. 731 (1982); Nero v. Mosby, 890 F.3d 106, 117 (4th Cir. 2018).The same is true for a government official or employee asserting qualified immunity. Plumhoff v. Rickard, 572 U.S. 765 (2014); Ashcroft v. Iqbal, 556 U.S. 662, 671-72 (2009); Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 806 n.11 (1982).

These immunity claims are "conceptually distinct from the merits of the . . . claim," at least when they "turns on an issue of law." Iqbal, 556 U.S. at 672 (quoting Mitchell, 472 U.S. at 527-28).17 ,18 These immunity defenses raise "a limited 'entitlement not to stand trial or face the other burdens of litigation.' "19

For similar reasons, the collateral order doctrine has allowed appeals from orders rejecting the Attorney General's certification that employee was acting within scope of his employment for purposes of the Westfall Act, Osborn v. Haley, 549 U.S. 225, 238 (2007), and rejecting a claim of absolute immunity from suit for libel under the First Amendment's freedom to petition government for a redress of grievances, McDonald v. Smith, 472 U.S. 479, 482 n.3 (1985).

3. State, county, and municipal government immunity

Just as federal officials asserting immunity from suit may immediately appeal an unfavorable ruling, so too may state officials. State sovereign immunity, sometimes called "Eleventh Amendment immunity," an immunity from suit consistent with the sovereignty retained by the states under the Constitution.20 These appeals "ensur[e] that the States' dignitary interests can be fully vindicated."21

In the Fourth Circuit, this rule extends to counties' and municipalities' immunity claims, because these immunity claims derive from state sovereign immunity.22 But it does not extend to military contractors' invocation of law-of-war defenses, which are liability defenses, not immunities from suit.23

And this governmental immunity rule is a one-way ratchet. When a trial court dismisses some but not all claims based on qualified immunity, the dismissal order is not immediately appealable.24

4. Orders applying abstention doctrines

When a federal trial court abstains from resolving claim pending the outcome of state-court litigation, the abstention decision is immediately appealable.25 These abstention decisions are effectively unreviewable in a later appeal, because once the state court decides the substantive issues in the case, that decision is issue-preclusive or claim-preclusive in federal court.26

5. Additional otherwise unreviewable orders

A criminal defendant may immediately appeal an order permitting the government to force him to take anti-psychotic medications so that he would be competent to stand trial.27 This order is effectively unreviewable on appeal from a final judgment, because by the time of trial, the defendant cannot undo the harm of forced medication, even if he were acquitted.28

B. Nonappealable Orders Under the Collateral Order Doctrine

Many, many orders are not appealable under the collateral order doctrine; the doctrine is a narrow exception that should "never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered."29 This section recounts six categories of trial-court orders that have failed the collateral order test.

1. Restrictions on the "right to be tried" analysis

A criminal defendant who moves to dismiss the indictment for violations of the right to a speedy trial is not entitled to immediately appeal an unfavorable ruling.30 Such a ruling is not final; the question of prejudicial delay is enmeshed with the merits of the case (and thus not "collateral"); and a court could not fully evaluate the extent of any prejudice until after the trial had concluded.31 "[T]he fact that this Court has held dismissal of the indictment to be the proper remedy when the Sixth Amendment right to a speedy trial has been violated . . . does not mean that a defendant enjoys a 'right not to be tried' which must be safeguarded by interlocutory appellate review."32

Appellants who try to blur this line between dismissal rights and non-trial rights will face a skeptical court. "[T]he jurisdiction of the courts of appeals should not, and cannot, depend on a party's agility in so characterizing the right asserted."33 Many appellate rulings "are only imperfectly reparable by the appellate reversal" of a final judgment, but if immediate appellate review were available in every case of that nature, "Congress's final decision rule would end up a pretty puny one."34 Furthermore, "virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a 'right not to stand trial,'" but if a party could obtain immediate appellate review whenever a court denied a dispositive motion, it would not only disrupt the...

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