- P v. D for negligence. District Court dismisses suit with prejudice.
Discussion: This is an example of an order that is a final judgment immediately appealable under 28 U.S.C. § 1291. The order “end[ed] the litigation on the merits and leaves nothing for the [trial] court to do but execute the judgment.” This is a garden-variety application of the “final judgment rule.”
- P v. D for negligence. A few months after filing her answer, D seeks leave to amend. The District Court grants leave. P is upset.
Discussion: This is an example of an order that is interlocutory, i.e., that is not final. Most orders made by a court are interlocutory. An order made by a court is not appealable unless it is final, or falls within one of the exceptions that permits immediate appeal of interlocutory orders.
- P v. D for negligence, battery, intentional infliction of emotional distress, and breach of warranty, all arising from the same injury. District Court dismisses breach of warranty claim with prejudice. P decides to take a voluntary dismissal of the remaining claims.
Discussion: The appealing party must be appealing from an action for which they are an aggrieved party. Here, P is aggrieved by the dismissal of its breach of warranty claim. P has taken a voluntary dismissal of the remaining claims. How? Assume that P moves to voluntarily dismiss the claims and the District Court grants the motion. Such a dismissal is without prejudice unless otherwise specified in the order. See FRCP 41(a)(2). That would mean that P might be able to later re-assert its voluntarily dismissed claims. So is this order of dismissal (dismissing the breach of warranty claim with prejudice but the other claims without prejudice) final? Courts are split. Some would treat an order like this as non-final because P could reassert his other claims later. Other courts would treat such an order as final.
- P v. D for breach of contract and unrelated tort claim. Court dismisses contract claim with prejudice.
Discussion: The order is not final in the sense that the case is over – here, the tort claim remains to be adjudicated. However, FRCP 54(b) permits the District Court to “direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” This requires that there be multiple claims or multiple parties. Here, one of the multiple claims was dismissed, and the District Court may direct the entry of final judgment as to that claim. The order being appealed must still be for something that would be final it if was a separate suit. Here, it is because a merits dismissal of a suit for breach of contract alone would be appealable under 1291.
- P v. D for civil rights claim. D asserts qualified immunity as a complete defense. The District Court holds that qualified immunity is inappropriate and denies D’s motion. No facts are in dispute.
Discussion: Again, this is not an order that is final in the sense that the case is over – here, the case will continue. Nor does 54(b) apply because no claim or party was finally decided. However, in the Cohen case, the Supreme Court created the “collateral order doctrine,” which treats certain “collateral” orders as final for purposes of section 1291. The test has been enunciated in varying ways; one way is that the order being appealed must be a (1) finally decided (2) collateral issue (3) that is important (4) and effectively unreviewable if the aggrieved party must wait for final judgment in order to appeal. Here’s a formulation from the Coopers case: “[T]he 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.” Although the collateral order doctrine has been interpreted narrowly, one major area where it has been often used is to permit immediate appeals of orders denying application of a “qualified immunity defense” by state actors sued for civil rights violations under 42 U.S.C. § 1983. Here, the order denying dismissal on the basis of qualified immunity is immediately appealable under the collateral order doctrine. The question of qualified immunity was finally decided. It is collateral to the merits of P’s civil rights claim because it determines immunity, which serves as a defense even if P’s civil rights were violated. Finally, qualified immunity is an entitlement not to stand trial under certain circumstances and would effectively be lost if D must wait until the case was over to appeal. Note: I would emphasize that in many other contexts, the collateral order doctrine has been much more narrowly interpreted.
- Same as number 5 but the material facts relevant to the qualified immunity defense are in dispute.
Discussion: The use of the collateral order doctrine in the context of qualified immunity has been held inapplicable where there is a dispute over the facts. See Johnson v. Jones (U.S. 1995).
- P v. D for copyright infringement. P seeks preliminary injunction, permanent injunction, and monetary damages. The District Court grants P a preliminary injunction. Meanwhile, the case continues.
Discussion: The order is not final in the general sense because the litigation will continue. FRCP 54(b) doesn’t apply because no claim or party has been finally decided. The collateral order doctrine doesn’t apply because the order granting a preliminary injunction is not collateral to the merits of the case (indeed, to get a preliminary injunction P has to show – among other things – that it is likely to succeed in its copyright claim on the merits). The order is therefore interlocutory. Nonetheless, 28 U.S.C. § 1292(a)(1) permits immediate appeals of “[i]nterlocutory orders of the district courts of the United States, . . . or of the judges thereof, 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.” Other parts of 1292(a) permit immediate review of things like orders appointing receivers and certain decrees in admiralty cases. See 28 U.S.C. § 1292(a)(2), (3).
- P v. D1 (police officer) and D2 (store owner) for violation of P’s civil rights under 42 U.S.C. 1983. D2 argues that she is not a “state actor” and therefore can’t be sued under section 1983. The District Court denies D2’s motion to dismiss but is concerned that the Court of Appeals might later disagree.
Discussion: Not a final judgment in the general sense, or under 54(b), or under the collateral order doctrine (case not over, no claim or party resolved, and not a collateral order because the “state actor” is part of the merits of P’s claim). This might nonetheless be immediately appealed under 28 U.S.C. § 1292(b), which permits a district judge to certify an order for immediate appeal. “When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.” The Court of Appeals has discretion on whether to permit appeal. You’ll study the “state actor” doctrine in constitutional law. However, depending on the facts of the case, the standard of 1292(b) might be met.
- P v. D for negligence. The District Court orders D to dye his hair green and eat live cockroaches before the jury. D would prefer not to do this.
Discussion: This leaves the last of the bases we discussed, which is a petition for a writ of mandamus (or prohibition) under the All Writs Act, 28 U.S.C. § 1651. Mandamus means that the court is mandated to do something, prohibition means that it is prohibited from doing something. Nonetheless, today the more common term is mandamus. It is usually said that a writ of mandamus is within the discretion of the Court being petitioned (here, the Court of Appeals) and that the writ should not be granted unless the petitioner (here D) can show a clear and indisputable right to relief. Here, the district judge is acting in a grossly inappropriate manner by ordering D to dye his hair and eat cockroaches before the jury. The judicial power, however broad, does not go this far. The petition should be granted.
Sidebar: Sometimes appellate courts will issue writs of “supervisory” mandamus over District Courts, such as where the petition raises an important question of law of first impression, the answer to which would have a substantial impact on the administration of the district courts. Some appellate courts will permit supervisory mandamus upon a showing of ordinary (as opposed to clear) error. That fact pattern is not present in this particular hypo.
Posted Apr. 17, 2015