Appealability and review - Final judgment rule

Learning Outcomes

This article explains appealability and review in federal civil procedure, including:

• Defining the federal final judgment rule and what constitutes a “final decision” in typical MBE-style fact patterns.
• Distinguishing true final judgments from interlocutory orders such as discovery rulings, partial summary judgments, and orders granting new trials.
• Identifying the principal statutory and judge-made exceptions to the final judgment rule, including § 1292(a), § 1292(b), and the collateral order doctrine.
• Explaining when orders involving injunctions, receiverships, and class certification are immediately appealable and when appellate review remains discretionary.
• Describing how multi-claim and multi-party litigation affects finality and how Rule 54(b) certification can create appealable partial judgments.
• Clarifying the timing requirements for filing a notice of appeal, including how post-trial motions toll or reset the appellate deadline.
• Setting out the distinct standards of appellate review for questions of law, findings of fact, mixed questions, and discretionary trial-court rulings.
• Demonstrating how harmless error and plain error analysis influence whether identified mistakes on appeal result in reversal, remand, or affirmance.
• Reinforcing exam-oriented strategies for spotting appealability issues quickly and eliminating distractor answers on multiple-choice questions.

MBE Syllabus

For the MBE, you are required to understand appealability and review, with a focus on the following syllabus points:

• The final judgment rule and what counts as a “final decision” in federal court.
• The difference between final and interlocutory orders and why it matters for appealability.
• Statutory and common-law exceptions to the final judgment rule (e.g., injunctions, collateral orders, certified questions).
• How multi-claim and multi-party litigation affects finality and Rule 54(b) certification.
• Standards of review for questions of law, questions of fact, mixed questions, and discretionary rulings.
• The basic timing rules for filing a notice of appeal and the effect of post-trial motions.

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.

1. Which of the following is generally required before a federal appellate court may review a district court decision?
   1. The district court has entered a final judgment resolving all claims as to all parties.
   2. The district court has denied a motion to dismiss.
   3. The district court has certified a controlling question of law.
   4. The district court has issued a scheduling order.
2. Which of the following is an exception to the final judgment rule allowing immediate appeal?
   1. An order granting a preliminary injunction.
   2. An order denying a motion for summary judgment.
   3. An order setting a trial date.
   4. An order overruling an evidentiary objection.
3. If a district court enters judgment on fewer than all claims or parties in a multi-claim case, when is that judgment immediately appealable?
   1. Only if the court expressly directs entry of final judgment and finds no just reason for delay.
   2. Always, regardless of the court’s findings.
   3. Only after all claims are resolved.
   4. Never.

Introduction

Appeals in federal court are tightly controlled. The basic rule is that a party may appeal only from a final judgment that ends the litigation in the district court. Understanding what counts as “final,” and spotting the narrow categories of immediately appealable interlocutory orders, is a frequent source of MBE traps.

Key Term: Final Judgment Rule
The principle that an appeal may be taken only from a district court decision that resolves all claims as to all parties, unless an exception applies.

Key Term: Final Decision
A court order or judgment that ends the litigation on the merits in the district court, leaving nothing for the court to do except execute the judgment.

Federal courts of appeals derive their jurisdiction over civil appeals primarily from 28 U.S.C. § 1291, which gives them power to review “final decisions” of the district courts. Most MBE questions on appealability are really asking whether § 1291 is satisfied or whether an exception applies.

The Final Judgment Rule

A decision is final when it disposes of all claims by all parties, such that the only remaining task for the district court is to enforce the judgment (for example, issue writs of execution).

Common final orders include:

• A judgment after a jury verdict resolving all claims.
• A summary judgment that resolves all remaining claims as to all parties.
• A dismissal with prejudice of the entire action.
• A default judgment against the only defendant, fixing both liability and damages.

By contrast, the following are not final:

• Orders denying motions to dismiss under Rule 12(b).
• Orders denying motions for summary judgment.
• Orders granting a new trial.
• Liability-only judgments where damages remain to be determined.

On the MBE, an order is not final merely because the judge uses the word “judgment.” Ask whether anything substantial still remains to be done in the district court.

Key Term: Interlocutory Order
An order issued during litigation that does not resolve all claims or parties and is generally not immediately appealable, unless an exception applies.

What Counts as a Final Decision

Several recurring fact patterns test whether a decision is final:

• Partial resolution of issues within a claim: An order deciding liability but leaving damages to be calculated is typically not final.
• Grant of a new trial: This vacates the prior judgment and restarts the case; there is no final decision to appeal.
• Post-trial motions pending: A timely renewed motion for judgment as a matter of law, motion for new trial, or motion to alter or amend the judgment means the judgment is not yet final for purposes of appeal; the 30-day appeal clock does not start until those motions are resolved.

Key Term: Interlocutory Appeal
An appeal taken before final judgment, permitted only when a specific statutory or judge-made exception applies.

Interlocutory Orders and Exceptions

Most interlocutory orders are not appealable. Discovery orders, scheduling orders, denials of motions to dismiss, and denials of summary judgment must ordinarily wait for final judgment before they can be reviewed.

However, there are important exceptions that you must recognize on the MBE.

1. Statutory interlocutory appeals as of right

Under 28 U.S.C. § 1292(a), certain orders are immediately appealable:

• Orders granting, continuing, modifying, refusing, or dissolving an injunction.
• Orders appointing a receiver, or refusing to wind up or modify a receivership.
• Certain orders affecting the possession of property (e.g., orders dissolving writs of attachment).

A temporary restraining order (TRO) is generally not an immediately appealable injunction, unless it functions as a preliminary injunction (for example, it is extended in time and after a full adversary hearing).

Key Term: Interlocutory Order
An order that does not end the litigation and usually cannot be appealed immediately, except where a statute or doctrine (such as § 1292 or the collateral order doctrine) permits it.

2. Interlocutory Appeals Act (certified questions)

Under 28 U.S.C. § 1292(b), an otherwise non-appealable order can be reviewed if:

• The district judge certifies that:
  • The order involves a controlling question of law,
  • There is substantial ground for difference of opinion, and
  • An immediate appeal may materially advance the ultimate termination of the litigation; and
• The court of appeals, in its discretion, agrees to hear the appeal.

Certification by the district court does not by itself make the order appealable. The court of appeals must also grant permission. Many MBE distractors ignore this second step.

3. Collateral order doctrine

Some orders are treated as “effectively final” even though the main case continues. Under the collateral order doctrine:

Key Term: Collateral Order Doctrine
A narrow exception permitting immediate appeal of certain orders that conclusively decide important issues separate from the merits and that would be effectively unreviewable after final judgment.

An order is appealable under this doctrine if it:

• Conclusively determines the disputed question,
• Resolves an important issue completely separate from the merits, and
• Would be effectively unreviewable on appeal from a final judgment.

Classic examples include:

• Denial of qualified immunity or Eleventh Amendment immunity (where the claimed immunity is from being sued at all, not merely from liability).
• Denial of a motion to dismiss on double jeopardy grounds in a criminal case.

An order imposing sanctions on counsel, by contrast, is usually not appealable under this doctrine; sanctions can be reviewed after final judgment.

4. Class certification orders

A district court’s order granting or denying certification of a class action is appealable with permission from the court of appeals. Under Federal Rule of Civil Procedure 23(f):

• Either side may seek permission to appeal within 14 days of the certification order.
• The court of appeals has complete discretion to accept or decline the appeal.

5. Extraordinary writs (mandamus and prohibition)

When no ordinary appeal is available, a party may request an appellate writ:

• Mandamus: orders a lower court to take a particular action.
• Prohibition: orders a lower court to refrain from a particular action.

These writs are available only in exceptional cases involving a clear abuse of power where post-judgment appeal would be inadequate. They are not substitutes for ordinary appeals.

Exam Tip: On the MBE, if a party seeks immediate review of a routine interlocutory ruling (e.g., a discovery order or denial of a motion in limine), the correct answer is almost always that the order is not immediately appealable and must await final judgment.

Multi-Claim and Multi-Party Litigation

Multi-claim, multi-party cases create subtle finality issues. Federal Rule of Civil Procedure 54(b) addresses this situation.

If a case involves multiple claims or multiple parties, and the district court resolves fewer than all claims or fewer than all parties, the order is not final and not ordinarily appealable.

The district court can, however, create a final, appealable judgment on some claims or parties by entering a Rule 54(b) certification.

Key Term: Rule 54(b) Certification
A district court’s express direction for entry of final judgment as to fewer than all claims or parties, coupled with a finding that there is no just reason for delay, making that judgment immediately appealable.

To certify a partial judgment under Rule 54(b), the court must:

• Fully resolve at least one entire claim or all claims against a particular party, and
• Expressly determine that there is “no just reason for delay,” and
• Direct entry of judgment on that claim or as to that party.

If any of these elements is missing, the order remains interlocutory and can be revised by the trial court at any time before final judgment.

Exam Warning

Orders granting summary judgment on fewer than all claims, without an express Rule 54(b) determination and direction for entry of judgment, are not final. An appeal filed from such an order is premature.

Standards of Appellate Review

Once an appeal is properly before the court of appeals, the next question is: how closely will the appellate court scrutinize the district court’s rulings? The answer depends on the type of issue.

Key Term: De Novo Review
The appellate court reviews legal questions anew, giving no deference to the trial court’s conclusions.

Key Term: Clearly Erroneous Standard
The appellate court will not overturn a trial judge’s factual findings unless, after reviewing the entire record, it is left with a definite and firm conviction that a mistake has been made.

Key Term: Abuse of Discretion
The appellate court will reverse only if the trial court’s decision was arbitrary, unreasonable, based on an incorrect legal standard, or outside the range of permissible choices.

1. Questions of law

Questions of law—such as interpretation of statutes, application of legal standards, and grants of summary judgment—are reviewed de novo. The appellate court owes no deference to the district judge’s legal conclusions.

2. Findings of fact

• In bench trials, the judge’s findings of fact are reviewed under the clearly erroneous standard.
• In jury trials, the jury’s factual findings are accorded even greater deference; the question is whether a reasonable jury could have reached that verdict based on the evidence.

3. Discretionary decisions

Rulings committed to the trial court’s discretion—such as evidentiary rulings, discovery sanctions, decisions whether to grant a new trial, and certain scheduling decisions—are reviewed for abuse of discretion.

The appellate court does not ask whether it would have made the same decision, but whether the decision was within the range of permissible options.

4. Harmless and plain error

Even if an error occurred, not every error justifies reversal.

Key Term: Harmless Error
An error that does not affect a party’s substantial rights; such an error does not warrant reversal of the judgment.

Key Term: Plain Error
An obvious and clear error that affects substantial rights and seriously affects the fairness or integrity of proceedings, reviewable on appeal even without a timely objection.

On appeal:

• If the appellant preserved the error (for example, by a timely objection), reversal is required only if the error was not harmless.
• If there was no objection, the appellate court applies the stricter plain-error standard and rarely reverses unless the error is glaring and outcome-affecting.

Timing of Appeals and the Effect of Post-Trial Motions

For a typical civil case:

• A notice of appeal must be filed in the district court within 30 days after entry of judgment (60 days if the United States is a party).
• Timely post-trial motions—such as:
  • a renewed motion for judgment as a matter of law,
  • a motion for new trial, or
  • a motion to alter or amend the judgment under Rule 59—
    suspend the running of the 30-day appeal period. A new 30-day period begins when the court enters its order resolving those motions.

A motion for relief from judgment under Rule 60 does not generally toll the time to appeal the original judgment (though the denial of a Rule 60 motion can itself be appealed, subject to its own 30-day period).

Key Term: Final Decision
For timing purposes, a decision becomes final—and the appeal clock begins—when the district court has resolved all claims and all timely post-trial motions that affect the judgment.

Worked Example 1.1

A plaintiff sues two defendants in federal court on two claims. The court grants summary judgment to one defendant on one claim but leaves the other claims pending. The plaintiff wants to appeal immediately. Can the plaintiff do so?

Answer:
No, unless the court expressly directs entry of final judgment as to the resolved claim and finds no just reason for delay under Rule 54(b). Without that express certification and direction, the order is interlocutory and not immediately appealable. The appeal must wait until all claims and all parties are resolved.

Worked Example 1.2

A district court grants a preliminary injunction preventing a company from enforcing a non-compete agreement. The company wants to appeal immediately. Is this order appealable?

Answer:
Yes. Orders granting or denying injunctions fall within 28 U.S.C. § 1292(a)(1), a statutory exception to the final judgment rule. They are immediately appealable as of right, even though the rest of the case remains pending.

Worked Example 1.3

A defendant in a federal civil rights action moves for summary judgment based on qualified immunity, arguing that she is immune from suit. The district court denies the motion, holding that factual disputes require a trial. The defendant seeks immediate appeal. Is this proper?

Answer:
Often yes, under the collateral order doctrine. A denial of qualified immunity is immediately appealable if it turns on a legal question (for example, whether the right was clearly established), because immunity is meant to protect the defendant from the burdens of trial. However, if the denial is based purely on disputed facts (for example, conflicting testimony about what happened), interlocutory appeal may not be permitted. On the MBE, assume a legal immunity question is immediately appealable unless the facts emphasize pure factual disputes.

Worked Example 1.4

A plaintiff obtains a jury verdict and final judgment for $500,000. Within 28 days, the defendant files a motion for new trial under Rule 59, which the court denies. The defendant files a notice of appeal 20 days after the denial. Is the appeal timely?

Answer:
Yes. The timely Rule 59 motion tolled the 30-day period to appeal. A new 30-day period began when the court denied the motion, and the notice of appeal filed 20 days after that denial is timely.

Worked Example 1.5

In a bench trial, the judge finds for the defendant and issues written findings of fact and conclusions of law. On appeal, the plaintiff argues that the judge misinterpreted the statute and clearly erred in finding that the defendant acted reasonably. What standards of review apply?

Answer:
The statutory interpretation is reviewed de novo (no deference). The factual finding that the defendant acted reasonably is reviewed under the clearly erroneous standard. The appellate court may reverse the legal conclusion even while deferring to the factual findings unless they are clearly erroneous.

Exam Warning

Orders denying motions to dismiss or for summary judgment—even if they could end the case—are not final and not immediately appealable. Do not confuse these with appealable orders such as injunctions or properly certified Rule 54(b) judgments.

Revision Tip

When faced with an appealability question:

• First ask: does the order end the case as to all claims and all parties, with nothing left but execution?
• If not, look for an explicit Rule 54(b) certification or a recognized exception (injunction, collateral order, certified question, class certification, or extraordinary writ).

Key Point Checklist

This article has covered the following key knowledge points:

• The final judgment rule limits appeals to decisions that fully resolve all claims as to all parties, subject to narrow exceptions.
• A final decision is one that leaves nothing for the district court to do but execute the judgment; partial dispositions are not final absent Rule 54(b) certification.
• Most interlocutory orders (e.g., denials of motions to dismiss or for summary judgment, discovery orders) are not immediately appealable.
• Statutory exceptions under § 1292(a) allow immediate appeals from orders dealing with injunctions, receiverships, and certain property orders.
• The Interlocutory Appeals Act (§ 1292(b)) permits discretionary appeals of certified controlling legal questions when the court of appeals agrees.
• The collateral order doctrine allows immediate appeal of a small category of important orders (e.g., denials of immunity) that are separate from the merits and effectively unreviewable later.
• In multi-claim or multi-party cases, partial judgments are appealable only if the district court issues a proper Rule 54(b) certification.
• The notice of appeal must be filed within 30 days (or 60 days if the United States is a party), and certain timely post-trial motions toll that period.
• Appellate courts review questions of law de novo, findings of fact for clear error (or under a highly deferential jury standard), and discretionary rulings for abuse of discretion.
• Even when an error is found, reversal requires more than a harmless error; plain error review applies when an issue was not preserved below.

Key Terms and Concepts

• Final Judgment Rule
• Final Decision
• Interlocutory Order
• Interlocutory Appeal
• Collateral Order Doctrine
• Rule 54(b) Certification
• De Novo Review
• Clearly Erroneous Standard
• Abuse of Discretion
• Harmless Error
• Plain Error