Obtaining Review of Interlocutory Orders
OBTAINING REVIEW OF INTERLOCUTORY ORDERS
Laurie Webb Daniel
Holland & Knight LLP
TABLE OF CONTENTS
I. IS THE RULING AN INTERLOCUTORY ORDER?
II. DOES A STATUTORY EXCEPTION TO THE FINAL JUDGMENT RULE APPLY?
III. CAN YOU INVOKE THE COLLATERAL ORDER DOCTRINE?
IV. DOES THE CASE SATISFY THE CRITERIA FOR AN APPEAL BY PERMISSION?
V. WOULD A MANDAMUS PETITION BE APPROPRIATE?
Appendix A: Application for Certificate of Immediate Review
Appendix B: Petition for Review of Interlocutory Order
Appendix C: Notice of Appeal
The final judgment rule applies in both state and federal court. Meant to promote judicial economy and thwart delay tactics, the general rule conditions appellate jurisdiction upon entry of a final judgment. A judgment is considered "final" if it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." A ruling that leaves any pending claim or central relief is non-final or "interlocutory."
Because there is no easily identifiable pattern applicable to the cases that have been exempted from the final judgment rule, determining whether an interlocutory order is appealable can be something of a metaphysical exercise. Fortunately, however, some guidelines are available. While not a catalog of every exception to the final judgment rule, this paper presents a framework for analyzing the appealability of an order and the various statutory and common law avenues for seeking interlocutory review.
If final judgment has been entered, a party can obtain appellate review as a matter of right by filing a notice of appeal in compliance with the applicable rules and statutes. If the order or judgment is not final, appellate review is not available unless the case fits within one of the statutory or common law exceptions to the final judgment rule discussed below, or is one of those rare cases meriting appeal by special permission. The first step in the analysis, therefore, is to determine whether the court has entered a final judgment or only an interlocutory ruling.
As mentioned above, a final judgment is an appropriately docketed ruling that effectively terminates litigation on the merits. In contrast, a liability judgment that does not resolve damages issues is not final and ordinarily is not appealable. A sampling of other non-final orders that are not directly appealable includes orders denying summary judgment; ruling on discovery disputes; disqualifying counsel; granting a new trial; dismissing with leave to amend or dismissing some but not all claims or defendants; transferring the case to another venue; compelling arbitration; opening a default; or awarding sanctions pursuant to the Federal Rules of Civil Procedure.
Dismissals without prejudice require a closer look to determine appealability issues. The Eleventh Circuit has held that parties cannot create a final, appealable judgment by dismissing without prejudice claims remaining after a grant of partial summary judgment. On the other hand, if the partial dismissal without prejudice occurred prior to entry of summary judgment on the remaining claims, the summary judgment ruling is a final, appealable order in the Eleventh Circuit.
If you decide that the order is interlocutory, the next step is to see whether it is covered by a statutory exception to the final judgment rule.
Several statutes allow direct appeals as a matter of right from certain types of non-final orders. In federal court, 28 U.S.C. § 1292(a) grants appellate jurisdiction for appeals from orders involving injunctions, receivers, and admiralty decrees despite their interlocutory nature:
[T]he courts of appeals shall have jurisdiction of appeals from:
(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 . . . determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.
Although 28 U.S.C. § 1447(d) expressly prohibits appeals from most remand orders, it allows direct appeals from remand orders in certain civil rights cases covered by 28 U.S.C. § 1443. In addition, in Quackenbush v. Allstate, the Supreme Court held that the § 1447 prohibition does not apply to remands that are not based on a lack of subject matter jurisdiction or a defect in the removal procedure specified in § 1447, such as an order based on the abstention doctrine. The Eleventh Circuit has applied Quackenbush to hold that parties can directly appeal a remand order that is not based on a lack of subject matter jurisdiction or a defect in the removal procedure because such an order effectively terminates the litigation in federal court. A recent First Circuit decision cited Eleventh Circuit precedent in support of its holding that a remand based on a forum selection clause was directly appealable because it was not based on subject matter or procedural deficiencies.
Because the federal arbitration statute embraces a policy that encourages arbitration, it permits appeals of interlocutory orders that interfere with arbitration while at the same time prohibits appeals of orders that advance the arbitration process. Thus, under 9 U.S.C. § 16, a party can directly appeal orders refusing to stay actions pending arbitration; denying petitions to order arbitration; or confirming, denying or vacating an arbitration award or partial award. On the other hand, an order compelling arbitration will not be directly appealable.
Georgia law similarly has several statutory exceptions to the final judgment rule. Like 28 U.S.C. § 1292(b), O.C.G.A. § 5-6-34 grants direct appeals from orders granting or refusing applications for receivers or interlocutory injunctions. In addition, under this statute a party can directly appeal judgments or orders (1) in contempt cases; (2) involving discharge in bail trover; (3) directing an accounting; (4) granting or refusing attachment against fraudulent debtors; (5) granting or refusing mandamus or any other extraordinary relief; (6) addressing applications for dissolution of corporations; and (7) sustaining motions to dismiss a caveat to the probate of a will.
Georgia has another statutory exception to the final judgment rule not found in federal practice. In Georgia, the grant of a partial summary judgment is directly appealable under O.C.G.A. § 9-11-56(h):
(h) Appeal. An order granting summary judgment on any issue or as to any party shall be subject to review by appeal. An order denying summary judgment shall be subject to review by direct appeal in accordance with subsection (b) of Code Section 5-6-34 [upon certificate granting immediate review].
If you want to appeal an order granting partial summary judgment in state court, therefore, it is important to comply with the filing requirements for a direct appeal and to avoid wasting time and effort on an application seeking permission to file an interlocutory appeal.
III. CAN YOU INVOKE THE COLLATERAL ORDER DOCTRINE?
Some orders that do not terminate the litigation nonetheless are considered final for purposes of invoking jurisdiction under 28 U.S.C. § 1291 under the "collateral order" doctrine, which originated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). This doctrine covers 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 cause is adjudicated." The collateral order doctrine also exists in Georgia as an exception to the final judgment rule in our state court system.
To obtain review under the collateral order doctrine you must pass a four step test:
- There must be a judgment that "conclusively determines" a disputed question.
- The issue must be "completely separate from the merits" of the action.
- The order must be "effectively unreviewable" if it waits for the litigation to terminate.
- The issue must be "too important to deny review."
It is a rare case that satisfies the requirements for review under the collateral order doctrine, and the Supreme Court "has expressly rejected efforts to reduce the finality requirement of 28 U.S.C. § 1291 to a case-by-case appealability determination." If you do not have clear precedent on point supporting a direct appeal under the collateral order doctrine, it is advisable to pursue alternative avenues for seeking review, such as an appeal by permission, in addition to filing a notice of appeal even if you believe the order falls under the collateral order doctrine.
Nonetheless, there are a number of identifiable categories of cases that do qualify for direct review as final, appealable collateral orders. For example, orders rejecting a public official's motion to dismiss or for summary judgment based on qualified immunity are appealable under this doctrine, unless there is a fact question regarding whether the official was a policy maker. Claims of sovereign immunity under the Eleventh Amendment also fall under the collateral order doctrine.
Although most discovery orders are not immediately appealable, an order holding a nonparty witness in civil contempt for failing to obey a discovery order is appealable. An order denying non-party discovery that is issued from a different district outside the circuit of the pending action also is appealable under the collateral order doctrine. And, a discovery order "directed to a person who has custody of materials as to which another person may claim a privilege of non-disclosure" is immediately appealable, as are orders compelling witnesses to turn over documents to the IRS or the EEOC.
Appealability under the collateral order doctrine is not always a two way street with respect to certain types of orders. For example, an order granting a stay under the abstention doctrine is an appealable collateral order, but an order refusing to stay or dismiss under the abstention doctrine is not. An order denying a motion to intervene as a matter of right is an appealable collateral order, although an order granting intervention is not.
Rule 54(b) of the Federal Rules and its state counterpart found at O.C.G.A. § 9-11-54(b) allow trial courts to "direct entry of a final judgment as to one or more but fewer than all of the claims or parties" if "there is no just reason for delay."
Similarly amorphous authorizations for appeals of interlocutory orders by permission are found at 28 U.S.C. § 1292(b) and O.C.G.A. § 5-6-34, which allow a trial court to certify for review a particularly important order if an immediate appeal would significantly advance the litigation.
Rule 23 of the Federal Rules of Civil Procedure allows parties to petition for an appeal of orders granting or denying class certification by submitting an application directly to the court of appeals without having to obtain an order from the trial court authorizing the appeal.
Therefore, if your case is not does not fall within one of the statutory or common law exceptions that grants direct review of an order that does not terminate the action, ask yourself whether the order fits any of the following criteria:
(1) Does the ruling dispose of a severable claim?
(2) Does the order involve an important question of developing law that will control the litigation?
(3) Does the order grant or deny class certification?
Rule 54(b) is particularly useful in complex litigation. In analyzing whether you are likely to obtain immediate review through Rule 54(b), keep in mind that this rule is meant for orders that resolve an entire claim or similarly severable partial determination. Thus, to fit within this rule, the action must involve multiple parties or multiple claims, the issue sought to be reviewed must be final and separable, and there must be no good reason for delaying the appeal of the issue. In sum, the ruling should be able to qualify as a final judgment under 28 U.S.C. § 1291 if the claim had been brought as a separate action. Further, even after a trial court directs entry of a final judgment, appellate review under Rule 54(b) still is subject to the agreement of the court of appeals that the order satisfies the criteria of Rule 54(b).
If your order cannot meet the finality or severability prerequisites for review under Rule 54(b), you can still seek review under 28 U.S.C. § 1292(b) or O.C.G.A. § 5-6-34(b) if it involves an important, controlling issue. As with Rule 54(b), this procedure requires an initial order from the trial court determining that an appeal is warranted, and is subject to the further discretion of the appellate court. While the Eleventh Circuit sparingly accepts appeals under 28 U.S.C. § 1292(b), and usually reserves type of appellate jurisdiction for developing issues of law, the Georgia Court of Appeals appears receptive to properly certified interlocutory appeals that present an issue that will terminate the action as a matter of law, even if the issue is not particularly novel. A copy of a successful application for immediate review to the Georgia Court of Appeals is contained in the Appendix to this paper.
Because of the high standards required for review under § 1292(b), a party seeking immediate appeal under this provision should present detailed findings showing how each of the statutory requirements are met, and should submit a proposed order with the detailed findings to make sure that the order certifying appellate review contains the findings necessary to satisfy the statute. Once the order certifying an immediate appeal has been entered, the party has ten days within which to apply to the appellate court for immediate review. If the appellate court grants permission to appeal, a notice of appeal should be filed within the statutory time limit. Significantly, because this avenue for review allows an appeal of an order and not a "question," the scope of review may be as broad as the order.
The right to seek interlocutory review of orders granting or denying class certification is fairly new because Rule 23(f) was enacted in 1998. The Seventh Circuit was the first court to interpret the rule and determine that a ruling appealable under this Rule should be the equivalent of the "death knell." Other courts, including the Eleventh Circuit, have followed the Seventh Circuit's lead in establishing standards for determining the appealability of orders under Rule 23(f).
V. WOULD A MANDAMUS PETITION BE APPROPRIATE?
A petition for a writ of mandamus is an extraordinary procedure for obtaining appellate relief from an interlocutory order that is not appealable by other means. It should be reserved for those cases where postponement of review would be the equivalent of denial of review. One example of an appropriate mandamus petition is when a district court has compelled a party or witness either to disclose privileged information or to suffer contempt. Another is where a district court has grossly disregarded its duty to rule on pending motions or manage litigation.
One court has instructed that a writ of mandamus may be appropriate in a civil case where:
- There is no adequate remedy by appeal or otherwise.
- The petitioner will be damaged in a way not correctable on direct appeal.
- The order sought to be reviewed is erroneous as a matter of law.
- The issue is likely to recur.
- The order raises an issue that is important or of first impression.
Not every condition need be present in order to merit review by writ of mandamus; however, the more that you can point to, the better. If you are unsure whether you have a right to a direct appeal or whether your only means of review is through mandamus proceeding, it is advisable to pursue both courses. The appellate court will shed light on the appropriate procedure and you will not have waived any rights.
Although as a general rule interlocutory orders are not immediately appealable, there are a number of possible courses for seeking review of orders that have a significant impact on the litigation. If in doubt about the correct procedure to follow, do not hesitate to combine approaches if you think that your case fits more than one exception to the final judgment rule. It is advisable, however, to begin with the statutory provisions and common law doctrines that afford a direct appeal as a matter of right. Moreover, in general, it is a good idea to frame your issue as a challenge to an erroneous ruling of law that is important to similarly situated litigants. If you do so, you just might be surprised at how many times you can obtain interlocutory review.
 See 28 U.S.C. § 1291; O.C.G.A. § 5-6-34.
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 Swint v. City of Woodley, 5 F.3d 1435 (11th Cir. 1993).
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 State Treasurer of State of Michigan v. Barry, 168 F.3d 8 (11th Cir. 1999).
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 Florida Polk County v. Prison Health Circuit, 170 F.3d 1081 (11th Cir. 1999).
 Autoridad de Energia Electria de Puerto Rico v. Ericsson Inc., 201 F.3d 15 (1st 2000).
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 See also Crolley v. Haygood Contracting, Inc., 207 Ga. App. 434, 429 S.E.2d 93 (1993).
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 Patterson v. State, 248 Ga. 875, 876, 287 S.E.2d 7, 8 (1982).
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 Moses H. Con Mem. Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983).
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 Curtiss-Wright Corp v. General Electric Co., 446 U.S. 1, 3 (1980).
 Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 571, 583 n. 21 (1980)
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 Blair v. Equifax Check Services, Inc., 181 F.3d 832 (7th Cir. 1999).
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 Kerr v. United States District Court, 426 U.S. 394 (1976).
 In re Fink, 876 F.2d 84 (11th Cir. 1989).
 Chudasama v. Mazda Motor Corp., 123 F.3d 1353,1366 (11th Cir. 1997).
 Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir. 1997). See also In re United States, 903 F.2d 88 (2d Cir. 1990).