June 28, 2012 Articles

The Future of Discretionary Interlocutory Review

It is time to revisit the rigidity of the final-order doctrine.

By Pierre H. Bergeron and Bruce A. Khula

Appellate courts, like their trial counterparts, are overworked and overburdened. Therefore, any effort to convince them to entertain additional discretionary interlocutory appeals would likely be greeted with skepticism. But is it time to revisit the rigidity of the final-order doctrine, which has been engrained into our heads since law school? The answer is yes. Nearly every case settles now. Only a small fraction go to trial. So what drives the settlement? Generally speaking, the trial court’s interlocutory rulings do. Forever insulating these rulings from appellate scrutiny, except in the context of a trial,  has a radical impact on the settlement calculus. A single errant ruling swings the settlement pendulum millions of dollars in one direction or the other. With that in mind, appellate courts should become less rigid in their discretionary interlocutory appeals. As a result, litigation would become more efficient.

The general rule for litigation in federal courts is that “a party is entitled to a single appeal, to be deferred until final judgment has been entered.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994) (citation omitted). As the U.S. Supreme Court opined, this final-judgment rule is supposed to promote “‘efficient judicial administration’” and preserve “the prerogatives of district court judges, who play a ‘special role’ in managing ongoing litigation.” Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 605 (2009) (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)).

Congress has long recognized, however, that interlocutory review has a role to play in federal litigation. See Alexandra B. Hess, Stephanie L. Parker & Tala K. Toufanian, “Permissive Interlocutory Appeals at the Court of Appeals for the Federal Circuit: Fifteen Years in Review (1995–2010),” 60 Am. U. L. Rev. 757, 759–64 (2010–2011) (providing a historical accounting of Congress’s role in providing for interlocutory review in federal courts). Section 1292 of title 28 of the U.S. Code expressly carves out circumstances in which litigants can obtain interlocutory review in federal courts—automatically in very select circumstances and on a discretionary basis in most others. According to 28 U.S.C. § 1292(a), a few highly specific rulings—such as injunctions, the appointment of receivers, and certain admiralty orders—are considered by their very nature to justify immediate appellate review. In addition, according to 28 U.S.C. § 1292(b), a district court can give its blessing for other rulings involving a “controlling question of law” to be taken up for immediate review. And the appellate court can, at its discretion, undertake interlocutory examination of their merits.

Premium Content For:
  • Litigation Section
Join - Now