I. What to Appeal?

• Library: Practicing before the U.S. Court of Appeals for the 4th Circuit: A Guide from Start to Finish (2021 Ed.)

I. What to Appeal?

Many lawyers in district court will ask (or be asked) the threshold question: can we appeal the decision? The answer depends on the type of ruling. The Court of Appeals has jurisdiction to hear appeals involving "final decisions" under 28 U.S.C. § 1291, a limited set of non-final decisions specified in 28 U.S.C. § 1292, and a "small class" of non-final orders known as collateral orders.¹ South Carolina practitioners should be aware that, while there are some similarities with state court practice, the grounds for appealing rulings in federal court can be different from what is permitted in state court.² Counsel should consult the federal rules and decisions for specifics on what is appealable in federal court.

Final decisions are those that end litigation on the merits and leave nothing for the trial court to do but execute the judgment.³ The Fourth Circuit has referred to this "finality requirement" as a "historic characteristic of federal appellate procedure, that advances the important interest of avoiding piecemeal review of ongoing district court proceedings."⁴ Piecemeal review "would not only delay the ultimate resolution of disputes by spawning multiple appeals, it would also undermine the independence of the district judge in conducting court proceedings."⁵ "The rule against appeal of interlocutory rulings...both avoids the enfeebling [of] judicial administration that comes with undue delay, and preserves the primacy of the district court as the arbiter of the proceedings before it."⁶

Apart from these "final" decisions, there are specific types of non-final decisions listed in 28 U.S.C. § 1292 that are immediately appealable. Section 1292(a) lists these as:

(1) Interlocutory orders...granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court;
(2) Interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property;
(3) Interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.⁷

Although the court narrowly construes these exceptions, it will look to the substance of a district court's order, not just the labels ascribed to it. Speaking about the exception for injunctions, for example, the court explained:

To determine whether an order amounts to an injunction, we first look at the practical effect of the order rather than the label ascribed to it. Under the general definition, an injunction is a court order commanding or preventing an action. Most court orders are injunctions at some level of generality, but Congress did not envision that every interlocutory order restraining a party's actions could be appealed under § 1292(a)(1). Like the collateral order doctrine, § 1292(a)(1) was intended to carve out only a limited exception to the final-judgment rule and, therefore, a litigant must also show more than that the order has a practical effect of an injunction to immediately appeal an interlocutory order. An appealable order is one that (1) may have a serious, perhaps irreparable consequence and (2) can only be effectually challenged through immediate appeal.⁸

Nevertheless, and while diligent counsel will want to research the specific order at issue to see if any statutory exceptions might apply, appellate courts generally interpret these exceptions narrowly.⁹

The statute also allows a district court to certify for possible appeal a non-final decision that is not otherwise appealable under section 1292 if it involves "a controlling question of law as to which there is substantial ground for difference of opinion" such that "an immediate appeal from the order may materially advance the ultimate termination of the litigation."¹⁰ The district court has to certify these grounds in an order and the appealing party has ten days to file an application to appeal.¹¹ The ten-day timeframe is jurisdictional and cannot be enlarged by the Court of Appeals.¹² Furthermore, even if a timely petition to appeal is filed, the Court of Appeals has discretion to decline the appeal. Proceedings in district court are not stayed unless the district court or Court of Appeals orders a stay.¹³ A party may not immediately appeal the district court's denial of a motion to certify under § 1292(b).¹⁴

Outside of the express language of the statute, the Supreme Court has also authorized the appeal of non-final "collateral orders," which are a "small class" of orders that "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."¹⁵

[T]he collateral order doctrine allows immediate appeals of otherwise interlocutory orders that conclusively "resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action." If the order fails to satisfy any one of these requirements, it is not an immediately appealable collateral order.¹⁶

An order is "effectively unreviewable" on appeal after final judgment "where denial of immediate review would render impossible any review whatsoever," such that "the order at issue involves an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial."¹⁷

Given the nature of the standard, counsel should research carefully whether a particular order is "collateral." A common example of a collateral order is a legal ruling denying qualified immunity.¹⁸ Note, however, that fact-related determinations in the context of qualified immunity are not immediately appealable.¹⁹

Although by no means exhaustive, below are examples of orders that the Fourth Circuit has considered immediately appealable or not immediately appealable. Counsel should carefully check the state of the law and analyze the specifics of each case, as the law is subject to interpretation and change:

• Motions to Dismiss - An order granting a motion to dismiss is an appealable final decision, but an order denying a motion to dismiss ordinarily is not immediately appealable; however, in some cases, denial of a motion to dismiss is appealable, such as where the court denies a defense of qualified immunity.²⁰ Note, however, that an order dismissing a complaint without prejudice may not be appealable, depending on the circumstances.²¹
• Motions for Summary Judgment - an order granting a motion for summary judgment is an appealable final decision, but an order denying a motion for summary judgment ordinarily is not immediately appealable; however, in some cases, denial of summary judgment is appealable, such as where the court denies a defense of qualified immunity.²² A partial grant of summary judgment is not generally appealable.²³
• Multiple Claims and/or Multiple Parties - In a case involving multiple claims or multiple parties, the district court can enter final judgment on fewer than all the claims or as to fewer than all the parties and allow an appeal to

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