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June 19, 2018 Articles

Hall v. Hall or David v. Goliath?: Winning in the Supreme Court

Consolidation of multiple cases does not extinguish the cases' individual identities or merge them into a single case.

By Steven Finell – June 19, 2018

With Supreme Court practice dominated by a small number of High Court specialists, a victory by a lawyer arguing his or her first case in the Court is noteworthy. When a newcomer persuades the Court to grant certiorari in a civil action, and then persuades all nine justices to join in a single opinion that reverses the appeals court’s judgment, that is remarkable. When the newcomer is a solo practitioner from the Virgin Islands who faces off against one of the Court’s inner circle, a former acting solicitor general, and prevails through exemplary advocacy, that is a story that all appellate lawyers should hear.

That is the story of Hall v. Hall, 138 S. Ct. 1118 (2018), in which Andrew C. Simpson persuaded a unanimous Supreme Court to resolve an important question of federal appellate jurisdiction, one that had roiled the federal courts of appeals for decades: When a district court has consolidated civil actions under Fed. R. Civ. P. 42(a), is a final judgment in one of the actions appealable of right under 28 U.S.C. § 1291? Simpson then persuaded all nine justices that the answer is yes.

But this story doesn’t just start at the Supreme Court. The issue developed over 45 years, brewing in the circuit courts. This article traces the development of that jurisdictional issue—a history that is both interesting in its own right, and useful to understanding Simpson’s advocacy and arguments in the Supreme Court.

When Is a Federal District Court’s Judgment Appealable?
When a lawyer is consulted about an appeal, the first thing the lawyer must know is when the time to take an appeal will begin to run. The deadline for filing an appeal “should above all be clear.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202 (1988). Whatever the rule in a particular jurisdiction, it should not burden appellate courts or parties with collateral litigation over whether an appeal was timely.

Subject to a few exceptions, in civil actions the federal courts of appeals’ jurisdiction to entertain appeals of right from the district courts is limited to appeals from those courts’ “final decisions.” 28 U.S.C. § 1291 (in courts of appeals other than the Federal Circuit), § 1295(a)(1)–(2) (in the Federal Circuit). This so-called final judgment rule has exceptions for some types of non-final decisions that allow an immediate appeal of right. Common exceptions include orders concerning an injunction or appointment of a receiver; non-final decrees in admiralty cases that determine rights and liabilities are another exception. 28 U.S.C. § 1292(a).

Fed. R. App. P. 4(a)(1) provides that the time to file a notice of appeal in a civil action begins to run upon entry of final judgment. Common post-trial motions can affect the final judgment and thereby affect the issues that will be raised on appeal. Therefore, if made within the time prescribed by the applicable civil rule, the following motions toll commencement of the time to file a notice of appeal under Appellate Rule 4(a)(4):

  1. A post-trial renewed motion for judgment as a matter of law or alternative motion for a new trial under Fed. R. Civ. P. 50(b);
  2. A motion to amend or make additional findings of fact under Fed. R. Civ. P. 52(b);
  3. A motion for attorney fees under Fed. R. Civ. P. 54(d)(2);
  4. A motion for a new trial under Fed. R. Civ. P. 59(a);
  5. A motion to amend or alter a judgment under Fed. R. Civ. P. 59(e); and
  6. A motion for relief from a judgment under Fed. R. Civ. P. 60.

A motion for attorney fees postpones the running of the time to take an appeal only if the district court extends the time to appeal under Fed. R. Civ. P. 58(e). A motion under Fed. R. Civ. P. 60 does so only if made within 28 days after entry of judgment. The other four motions listed above, if timely made, postpone the running of the time to file a notice of appeal without qualification. The postponement continues until entry of the order deciding the last such motion.

When Is a Federal District Court’s Judgment in One of Several Consolidated Actions Appealable?

History of consolidation. Consolidation of actions is hardly a recent legal innovation. In English common law, Lord Chief Justice Mansfield (1705–1793) championed the practice of consolidating cases “to avoid the expense and delay attending the trial of a multiplicity of actions upon the same question. . . .”; that practice was early absorbed into common law in the United States. See Mutual Life Ins. Co. of New York v. Hillmon, 145 U.S. 285, 292–93 (1892).

Consolidation of cases entered federal statutory law with the Act of July 22, 1813, § 3, 3 Stat. 21, later codified as Rev. Stat. § 921 (1873), as follows:

When causes of a like nature or relative to the same question are pending before a court of the United States, or any Territory, the court may make such orders and rules concerning proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so.

This statute was re-codified verbatim as former 28 U.S.C. § 734.

Cases decided under this statute held that each of the consolidated actions retained its separate identity and that the parties retained all the procedural rights they had before consolidation. Hillmon, 145 U.S. at 292; Rich v. Lambert, 12 How. 347, 352–53 (1852) (trial court’s decree decided each individual case; consolidation did not affect right of appeal in each case). This interpretation of the consolidation statute remained constant. According to Johnson v. Manhattan R. Co., 289 U.S. 479, 496–97 (1933), “consolidation is permitted as a matter of convenience and economy in administration, but does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another.”

This statute continued to govern consolidation in federal courts until adoption of the inaugural Federal Rules of Civil Procedure, effective September 16, 1938. From then on, Civil Rule 42(a) governed consolidation of federal civil actions. Remarkably, since its enactment, Rule 42(a) has been amended only once, in 2007—and that was as part of the restyling of the Federal Rules of Civil Procedure, with no change to the rule’s substance. The current Rule 42(a) reads as follows:

Consolidation. If actions before the court involve a common question of law or fact, the court may:

(1) join for hearing or trial any or all matters at issue in the actions;
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or delay.

Yet even after Civil Rule 42(a) became effective, numerous federal courts have continued to rely upon the above-quoted language in Johnson v. Manhattan R. Co. concerning the meaning and effect of consolidation. E.g., Intown Prop. Mgmt., Inc. v. Wheaton Van Lines, Inc., 271 F.3d 164, 168 (4th Cir. 2001) (per Johnson, consolidation “does not merge the suits into a single cause, or change the rights of the parties”); Cella v. Togum Constructeur Ensemleier en Industrie Alimentaire, 173 F.3d 909, 912 (3d Cir. 1999) (“Johnson remains the ‘authoritative’ statement on the law of consolidation”).

Appeals from judgments in consolidated actions. The question of whether a final judgment in one of several actions consolidated under Civil Rule 42(a) is appealable of right has splintered the federal courts of appeals for decades. Two obvious, and opposite, answers to this question appear to offer bright-line rules:

  1. Consistent with decisions under the former federal statute that had governed consolidation since the War of 1812, consolidation does not extinguish the actions’ individual identities. Thus, a final judgment in one of the consolidated actions is immediately appealable of right.
  2. Inconsistent with decisions under the former federal statute, consolidation under Rule 42(a) is different: No judgment is final, for the purpose of an appeal, until all of the claims in all of the consolidated actions are decided. Thus, a final judgment in just one of the consolidated actions is never immediately appealable of right. This line, however, turns out not to be as bright as it appears at first glance.

The first cases to consider the question of appeals from actions consolidated under Rule 42(a) adopted the first bright-line rule, that a final judgment in any of the consolidated actions triggers the right to appeal that judgment. In re Massachusetts Helicopter Airlines, Inc., 469 F.2d 439, 441–42 (1st Cir. 1972), appears to be the first case to address this question. It held that consolidated actions continue to maintain their separate identity and that a final judgment in one of them is appealable of right, following Johnson v. Manhattan R. Co., supra, and quoting a pronouncement to the same effect in James William Moore, Federal Practice ¶ 42.02, at 42-21 to 42-22 (2d ed. 1971). The Sixth Circuit likewise held, upon the same grounds, that a final judgment in one of the consolidated actions triggers the right to appeal that judgment in State Mutual Life Assurance Co. of America v. Deer Creek Park, 612 F.2d 259, 267 (6th Cir. 1979), and again in Kraft, Inc. v. Local Union 327, Teamsters, 683 F.2d 131, 133 (6th Cir. 1982).

The next two circuits to address this question created a circuit split by rejecting the First and Sixth Circuits’ bright-line rule, holding instead that whether a final judgment in one of several actions consolidated under Rule 42(a) is appealable of right depends on the nature and extent of the consolidation. The Fifth Circuit, in Ringwald v. Harris, 675 F.2d 768, 771 (5th Cir. 1982), held that where “there is proper consolidation of causes that could have been filed as a single suit, and the consolidation is clearly for all purposes,” a final judgment that “disposes of all the claims and parties in one of the” consolidated actions is not appealable of right. The court added that the judgment would become appealable if the aggrieved party persuaded the district court, under Fed. R. Civ. P. 54(b), to “direct entry of a final judgment as to one or more, but fewer than all, claims or parties . . . if the court expressly determines that there is no just reason for delay” in entering a final judgment. This created a different circuit split with the First Circuit in Massachusetts Helicopter, 469 F.2d at 441, which correctly held that Rule 54(b), by its terms, applies only where “an action presents” multiple claims, not where consolidated actions present multiple claims.

The Seventh Circuit, in Ivanov-McPhee v. Washington National Insurance Co., 719 F.2d 927, 929–30 (7th Cir. 1983), followed and elaborated on Ringwald v. Harris: “[T]here are many different types of consolidation—of plaintiffs, of multiple defendants, of both plaintiffs and defendants, of claims—and the consolidation may be for more or less limited purposes.” 719 F.2d at 929. Ivanov-McPhee then quotes Wright & Miller’s treatise describing the second and third “of three different types of consolidation,”as follows:

(2) Where several actions are combined into one, lose their separate identity, and become a single action in which a single judgment is rendered. An illustration of this is the situation in which several actions are pending between the same parties stating claims that might have been originally set out as separate counts in one complaint.

(3) Where several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment. This type of consolidation does not merge the suits into a single action, or cause the parties to one action to be parties to another.

Id. (quoting 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2382, at 254 (1971)). In a marvel of understatement, Ivanov-McPhee continues, “It is not immediately clear which type of consolidation has occurred in the case at hand.” 719 F.2d at 929.

The Ninth Circuit split the circuits again by adopting the opposite bright-line rule—that a judgment in a group of consolidated actions that does not dispose of all the claims in all the actions is not a final judgment appealable of right—in Huene v. United States, 743 F.2d 703, 705 (9th Cir. 1984). Acknowledging the existing circuit split, Huene rejected the First and Sixth Circuits’ bright-line rule as “overly mechanical,” and rejected the Fifth and Seventh Circuits’ intermediate case-by-case approach as “leaving the finality of the judgment hazy and subject to varying interpretations.” 743 F.2d at 704. The Tenth Circuit, in Trinity Broadcasting Corp. v. Eller, 827 F.2d 673, 675 (10th Cir. 1987), cert. denied, 108 S. Ct. 2883 (1988), considered all of the courts of appeals’ conflicting decisions discussed above and chose to adopt the Ninth Circuit’s bright-line rule, primarily out of concern that the other approaches lead to piecemeal appeals, preferring to allow the district courts to act as appellate gatekeepers by exercising their discretion under Civil Rule 54(b).

In Hageman v. City Investing Co., 851 F.2d 69, 71 (2d Cir. 1988), the Second Circuit also recognized the existing circuit split. After considering all the prior circuit court rulings, Hageman created a new circuit split, holding that “when there is a judgment in a consolidated case that does not dispose of all claims which have been consolidated, there is a strong presumption that the judgment is not appealable” of right, but that in unspecified “highly unusual circumstances, a litigant may be able to overcome this presumption and convince us that we should consider the merits of the appeal immediately. . . .” Thus, the Second Circuit hoped to avoid the rigidity of a bright-line rule, but put its thumb on the scale strongly in favor of non-appealability, unless the district court entered a partial final judgment under Rule 54(b).

In Mendel v. Production Credit Ass'n of the Midlands, 862 F.2d 180 (8th Cir. 1988), the Eighth Circuit considered appealability where the district court had consolidated two actions. The Mendels filed a notice of appeal with the captions of both consolidated actions. The Eighth Circuit held that in one of the actions, the notice of appeal was filed before the disposition of a motion under Civil Rule 59, which “therefore had no effect,” citing Appellate Rule 4(a)(4) as then in force, 862 F.2d at 182. The Eighth Circuit explained that

if the two actions were really consolidated and merged into one, the notice of appeal would have no effect at all, and the entire appeal must be dismissed. We are satisfied, however, that technical consolidation into a single action did not occur, but rather an arrangement for joint proceedings and hearings, for convenience.

Therefore, the court held, the Mendels’ appeal in the other consolidated action survived.

The Third Circuit entered the fray in Bergman v. City of Atlantic City, 860 F.2d 560 (3d Cir. 1988). It recognized that its prior decision in Jones v. Den Norske Amerikalinje A/S, 451 F.2d 985, 986–87 (3d Cir. 1971), although cited by other circuits, did not actually decide the question because Jones was an admiralty case and appealable of right without a final judgment under 28 U.S.C. § 1292(a)(3). 860 F.2d at 563–64. It then recognized the multi-split among the seven circuits that had decided the question.The Third Circuit announced its decision to take a “case-by-case approach,” aligning itself with the Fifth and Seventh Circuits:

We therefore hold that where two or more actions are consolidated for all purposes of discovery and trial, a judgment in one of those actions is not appealable either until all of the consolidated actions have been resolved, or until the district court grants a motion for certification under Rule 54(b). To the extent that our adoption of the case-by-case approach will require individual examination of different types of consolidation orders in future cases, we do not announce any rule, but endorse consideration of the factors noted by the Court in Bogosian [v. Gulf Oil Corp., 561 F.2d 434 (3d Cir. 1977), cert. denied, 434 U.S. 1086 (1978)].

Id. at 567.

In Lewis Charters, Inc. v. Huckins Yacht Corp., 871 F.2d 1046 (11th Cir. 1989), the Eleventh Circuit adopted a case-by-case approach by holding that a district court’s judgment in one case was appealable of right because, id. at 1049,

the district court made clear that the consolidation of the two cases was not for all purposes. The suits were consolidated for limited purposes only, and each retained its separate identity. The parties stipulated that the first action would be tried by a jury; the district court would then decide the exoneration/limitation issue. The two actions were thus essentially severed and did not merge into a single cause.

The Fourth Circuit adopted a case-by-case approach in Eggers v. Clinchfield Coal Co., 11 F.3d 35 (4th Cir. 1993), and applied it to the related question of whether to grant to petitions for review of a decision of the Benefits Review Board that denied “Black Lung” benefits on a widow’s survivor’s claim under Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. § 901.

In Spraytex, Inc. v. DJS&T, 96 F.3d 1377, 1379 (Fed. Cir. 1996), the Federal Circuit considered “a question of first impression for this court, namely, whether a judgment that disposes of fewer than all actions consolidated by the district court into one case may be separately appealed” under the final judgment rule of 28 U.S.C. § 1295(a), which governs the Federal Circuit’s jurisdiction over appeals from district courts. The court examined the conflicting decisions of the other circuits. The court then observed that “we have to some degree treated actions consolidated by the district court as one case,” and discussed the circuit’s own precedents. The Federal Circuit concluded as follows, id. at 1382:

It is thus clear that our court has treated a consolidated case as one merged unit for certain jurisdictional purposes. We now extend this approach to join the Ninth and Tenth Circuits in adopting the rule that, absent Rule 54(b) certification, there may be no appeal of a judgment disposing of fewer than all aspects of a consolidated case.

Finally, after reviewing the multi-split decisions of the other circuits and the implications of its own prior decisions, the D.C. Circuit placed itself firmly in the case-by-case camp in United States ex rel. Hampton v. Columbia/HCA Healthcare Corp., 318 F.3d 214, 216–17 (D.C. Cir. 2003). “Although Hampton’s case and twenty-nine others were consolidated, they were consolidated only for pretrial proceedings” as multidistrict litigation (MDL) under 28 U.S.C. § 1407. “Despite the consolidation, Hampton’s action thus retained its separate status and the order dismissing it was a final judgment, appealable” of right “without the need for a Rule 54(b) certification.” Id. at 217.


  • No circuit has retreated from the rule that it initially announced.
  • While several circuits have adopted a case-by-case approach, each circuit’s version of that approach is different. Therefore, the splintering of the circuits is even greater than petitioners for certiorari dared to argue.
  • The one trait that case-by-case circuits share is their rejection of any bright-line rule, thus assuring continuing work for appellate lawyers who practice in those circuits.
  • With all the circuits accounted for, there was nowhere else to go—except up.

Hall v. Hall: The Supreme Court Finally Answers the Question
In 1990 and again in 2014, the Supreme Court granted certiorari to attempt to resolve the long-standing conflict among the federal circuits. But neither case proved a suitable vehicle—one was dismissed under Supreme Court Rule 46 when the parties settled, Erickson v. Maine Central Railroad Co., 498 U.S. 1018 (1990), and a second was resolved on narrower grounds limited to multidistrict transfers solely for pretrial proceedings— expressly leaving the issue of consolidation under Civil Rule 42(a) open, Gelboim v. Bank of Am. Corp., 135 S. Ct. 897, 904 n.4 (2015).

Then came Hall v. Hall.

The underlying actions. Hall v. Hall involves a dispute between Elsa Hall and her brother, Samuel Hall, over a family fortune, as manifested in two actions consolidated in the District Court of the Virgin Islands—one by Elsa against Samuel, the other by Samuel against Elsa. The district court tried the cases together before a jury. The jury rendered a verdict in favor of Samuel, on both his claims against Elsa and Elsa’s claims against him. The district court entered separate judgments in each of the consolidated actions: a final judgment dismissing Elsa’s action, and a final judgment awarding damages in Samuel’s action. After the judgments, the court granted Elsa’s motion to vacate the judgment on Samuel’s claims. Samuel’s action was then on track for retrial.

Elsa appealed the judgment that dismissed her action against Samuel. The Third Circuit dismissed Elsa’s appeal for want of jurisdiction. Applying the Third Circuit’s case-by-case precedents, the court of appeals analyzed the two actions, and their relationship to one another, in depth. It held that the consolidation of the two actions was for all purposes, although the consolidation order omitted this detail, and that the final judgment dismissing Elsa’s action was therefore not final as long as further proceedings remained in Samuel’s action. Hall v. Hall, 679 F. App’x 142 (3d Cir. 2017), rev’d, 138 S. Ct. 1118 (2018).

Andrew C. Simpson, with his office in St. Croix, has represented Elsa throughout the litigation. He continued to represent her in the effort to persuade the Supreme Court to overturn the Third Circuit’s judgment. That decision proved to be auspicious, despite a widely read Supreme Court commentator’s prediction that Simpson would be on the wrong side of a rout.

Certiorari. The journey to the Supreme Court usually begins with a petition for certiorari, and the petition begins with a statement of the question presented for review. By the high standards of Supreme Court practice, Simpson’s statement of the question stands out as a masterpiece:


The deadline for filing an appeal has “jurisdictional consequences” and “should above all be clear.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202 (1988). The deadline is measured from the entry of final judgment. 28 U.S.C. § 1291; Fed. R. App. P. 4. Despite the need for clarity, for at least forty-five years the courts of appeals have disagreed as to when their jurisdiction attaches if cases are consolidated and a final judgment is entered in only one of the cases.

The split and lack of clarity have widened with the passage of time—there are four different circuit rules for determining appellate jurisdiction in consolidated cases. This Court has twice set out to resolve the four-way split. The Court granted certiorari in Erickson v. Maine Central Railroad Co., 498 U.S. 807 (1990); but subsequently dismissed the petition. 498 U.S. 1018 (1990) (mem.). The Court again granted certiorari—and partially addressed the split—in Gelboim v. Bank of Am. Corp., 135 S. Ct. 897 (2015).

Gelboim held that for cases consolidated in multidistrict litigation, a final judgment in a single case triggers the “appeal-clock” for that case. But, by limiting its holding to multidistrict litigation, Gelboim left the split unresolved for cases consolidated in a single district under Fed. R. Civ. P. 42.

The question presented is:

Should the clarity Gelboim gave to multidistrict cases be extended to single district consolidated cases, so that the entry of a final judgment in only one case triggers the appeal-clock for that case?

Petition for Cert. at i.

Simpson knew that framing the question is crucially important in a cert petition, that it can make or break your chance of winning one of the Court’s shrinking number of oral argument slots. He says that he devoted more than 40 hours to drafting and refining the question. It shows.

By hitting the circuit split in the first two paragraphs of the question’s “preamble,” the overworked law clerk or impatient justice does not have to wait until page 8 to discover that this case has number one of the top five reasons for granting certiorari. The question is also styled a bit less formally, without being disrespectful, than typical appellate advocacy, and eschewed the traditional neutral statement of the question: Simpson’s question tells the Court precisely the rule that he will ask the Court to adopt.

The petition’s statement of the case is succinct, which is always a goal to strive for, but especially important in a case that turns on a pure question of law unrelated to the nature of the underlying action.

The Reasons for Granting the Petition led with the four-way circuit split and the differing standards that the circuits employ to determine a judgment’s finality in consolidated actions. In addition to discussing the circuit decisions that establish the split, Simpson points out the circuits’ repeated acknowledgments of the split and that the split has increased over time. If the circuits were resolving the split on their own, as sometimes occurs, that would be a reason for denying cert. Simpson next addresses the need for certainty about such an important question as when the appeal clock starts ticking, adding that, especially in the case-by-case circuits, the uncertainty forces premature “protective” appeals, wasting the time of the judges, court staff, and lawyers, in addition to clients’ money. Throughout the petition, and later in his merits briefs, Simpson aligns his arguments with the Court’s opinion in Gelboim.

Samuel’s lawyer in the district court and court of appeals continued to represent him in opposing certiorari. The opposition restated of the question presented as follows:

Should the Court grant certiorari to consider, absent certification pursuant to Federal Rule of Civil Procedure 54(b), whether cases scheduled and tried together should be appealable separately?

Opposition to Cert. at i.

The balance of the opposition was ineffective, and its arguments that the circuits were not split and that the question was unimportant were ludicrous. The opposition did not even mention Gelboim, the closest Supreme Court precedent to the case at hand.

Simpson roared back in his reply in support of certiorari. He attacked the opposition’s reframing of the question presented as using the fallacy of distraction. Like Gelboim, Simpson stressed the losing party’s right to appeal the defeat. As the Supreme Court explained in Gelboim, Elsa could not apply for district court relief under Rule 54(b) because the court had already dismissed her entire complaint.

Merits briefs. Simpson’s petition for certiorari and merits briefs demonstrate his understanding of the difference between advocating for review and advocating for a result. The transformation began with revising the merits brief’s preamble to the question presented—appropriately, the one-sentence question remained the same because that was the question upon which the Court granted certiorari. The brief’s preamble to the question, like the argument that followed, now focused on persuading the Supreme Court to adopt for Rule 42(a) consolidation the same judgment finality rule that Gelboim prescribed in multi-district litigation cases.

The Court’s adoption of the opposite bright-line rule for Rule 42(a)—that no judgment was final for an appeal of right until the district court enters final judgment in the last of the consolidated actions—would mark the death of Elsa’s appeal. So would application of any of the circuits’ varying versions of case-by-case analysis.

Many of Simpson’s arguments found their way into the Supreme Court’s opinion. Simpson’s main brief focused on the literal language of 28 U.S.C. § 1291 and the final judgment rule as the touchstone of federal appellate jurisdiction, which dates back to the Judiciary Act of September 24, 1789. Simpson traced the long history of the Supreme Court’s interpretation of judgment finality. He stressed both the inapplicability of Rule 54(b) to a case such as Elsa’s, in which the district court rendered a judgment that adjudicated all issues in the action and dismissed it, and the inadequacy of a Rule 54(b) motion as compared with an appeal of right. He traced the consistent jurisprudence before the enactment of Rule 42(a), that consolidation never completely merged the individual actions into a single case or extinguished their independent existence, coupled with the lack of any indication that enactment of Rule 42(a) was intended to alter this jurisprudence, coupled with other aspects of federal court jurisdiction and procedure that are inconsistent with the extinguishment of the individual actions upon consolidation under Rule 42(a). He pointed out how the advisory committee notes to the initial version of the Federal Rules of Civil Procedure announced where the new rules changed existing law, but made no such disclosure for Rule 42(a).

Unlike Elsa, Samuel brought in a star Supreme Court advocate, former Acting Solicitor General Neal Kumar Katyal, and his team at Hogan Lovells. Katyal was also in the bank’s phalanx of legal talent on the losing side of Gelboim v. Bank of America Corp., 135 S. Ct. at 901, although he did not argue in that case.

Katyal’s brief in Hall is superbly written, thorough, polished, and concise, albeit lengthy: 54 pages, slightly more than double the length of Simpson’s 25-page main brief. When a party needs more pages to uphold the decision below than the appellant or petitioner uses to reverse it, that does not bode well for affirmance.

Katyal argued creatively that, for the purpose of the finality requirement for appellate jurisdiction, 28 U.S.C. § 1291, the Supreme Court should treat actions that a district court consolidates for all purposes as though they were a single action with multiple claims. No reported decision had taken that position. He also argued that three discretionary remedies were available as “safety valves” whenever it would be unjust to require an appellant to wait until judgment is entered in all the consolidated actions: (1) Rule 54(b), which was adopted for precisely the purpose of allowing an appeal from a judgment on fewer than all of the claims; (2) certification of an interlocutory order under 28 U.S.C. § 1292(b); and (3) a writ of mandamus in the court of appeals. He sensibly distinguished Gelboim on the ground that an MDL transfer solely for pretrial proceedings is the weakest case for delaying an appeal from a dismissed action.

Simpson’s reply brief met Katyal’s arguments head-on. Simpson’s most telling argument explained that, unlike a single action, where the district court enters a judgment that completely decides one of the consolidated actions, there might be no event in the remaining actions that could trigger an appeal, let alone a timely appeal, from the earlier judgment. For example, suppose the remaining actions settle, as most actions do, and you found out about the settlement two years after the judgment against you in your action. How could you establish that your appeal from the judgment entered against you two years ago was timely? Suppose the remaining actions settle and you never found out, which is also possible if parties choose not to publicize their settlement?

Simpson pointed out that “rulings that terminate an action” are the “core application” of mandatory appellate jurisdiction under 28 U.S.C. § 1291, as the Court had reaffirmed in Gelboim, and that this had been so “[f]or at least 135 years.” Pet. Reply Br. at 3; see Gelboim, 135 S. Ct. at 902. As for the “safety valve” of Rule 54(b), it is inapplicable to judgments that dismiss an entire action, as Gelboim also reaffirmed, Pet. Reply Br. at 10; see Gelboim, 135 S. Ct. at 902–03. Simpson exercised sound strategic judgment in not addressing Katyal’s other two “safety valves”: 28 U.S.C. § 1292(b) is plainly inapplicable to a judgment that dismisses an entire action; a petition for mandamus is always a moon shot. Simpson argued that when Samuel applied for attorney fees, the court denied the motion because Samuel failed to move within 14 days after entry of final judgment, as Fed. R. Civ. P. 54(d)(2)(B)(1) requires. Hall v. Hall, 2016 WL 8650484, at *8–*9 (D.V.I. 2016). For this purpose, “judgment” means a judgment “from which an appeal lies.” Fed. R. Civ. P. 54(b). Thus, the district court understood that the judgment it entered was appealable.

Oral argument. During oral argument, the Justices actively cross-examined both lawyers with detailed, and informed, questions about the lawyers’ respective arguments in their briefs.

Justice Alito (who, while a judge on the Third Circuit, was chair of Advisory Committee on Appellate Rules) asked Simpson the most interesting question during the argument: How would you rewrite Rule 42(a) if you were writing on a clean slate? Simpson had thought about that question, for the first time, the night before the argument, so he was prepared: Extending the Gelboim rule to Rule 42(b) consolidations is the best solution because it is a “bright-line rule. You cannot be trapped. When you have a final judgment, you know you have to appeal.” Transcript of Oral Argument at 16. Referring to the opposite bright-line rule as the “the double final judgment rule,” he pointed out the problem that another final judgment might never be entered.

Katyal’s strategy for the argument, as well as his merits brief, was to consistently reframe the issue upon the premise that the district court had consolidated the two actions for all purposes, which made the two actions one. Katyal may have believed that this was his best, or only, way to win the case, and he may have been right. But the justices were not buying what he was selling. The justices, primed by Simpson’s briefs, continuously brought Katyal back to facts that were inconsistent with his position: that the district judge had denied Samuel’s motion for attorney fees as untimely; that the district court entered a separate final judgment in each action. Katyal also claimed that Simpson had waived the argument based on the denial of the attorney fee motion by failing to raise it until his reply brief; the justices were not buying that either.

The Supreme Court’s opinion. The Supreme Court’s opinion is largely, although not entirely, drawn from Simpson’s briefs. It owes somewhat less to the Court’s opinion in Gelboim than one might expect, given the relatedness of the issues and the identical result.

Written by Chief Justice Roberts with his distinctive flair, the opinion acknowledges the broad range of meanings of “consolidation” in varying contexts, 138 S. Ct. at 1124–25, but points to the consistent usage of the term, dating back centuries, when referring to consolidation of multiple cases: a joining, to varying degrees for varying purposes, that does not extinguish the cases’ individual identities or merge them into a single case.Civil Rule 42(a) was modeled on the federal consolidation statute, which itself dates back to 1813, and which was always construed consistently with this historical meaning of “consolidation.” In Johnson v. Manhattan R. Co., supra, the Supreme Court had reaffirmed that meaning just two years before the advisory committee began drafting the Federal Rules of Civil Procedure. Therefore, “consolidation” should have the same meaning under Rule 42(a). 138 S. Ct. at 1128–29. The Court then addressed, and rejected, Samuel’s argument that the text of Rule 42(a), as compared with the former federal statute, changed the meaning of “consolidation.”

The Court reaffirmed that district courts “enjoy substantial discretion in deciding whether and to what extent to consolidate cases” and may do so for “all purposes” when appropriate. “What our decision does mean is that constituent cases retain their separate identities at least to the extent that a final decision in one is immediately appealable by the losing party,” adding that the “final decision” rule “provides clear guidance to litigants”—a remarkable statement in view of the decades-old circuit split—and that “[c]reating exceptions to such a critical step in litigation should not be undertaken lightly”—without mentioning that eleven circuits had done precisely that.

During oral argument, several justices said that the Court granted certiorari because of the circuit split, mostly in response to Katyal’s argument that the split was largely illusory. Despite that, the Court’s opinion does not mention a circuit split, nor does it cite, let alone discuss, any of the two dozen or so court-of-appeals cases on the subject. The Court does not mention any of the alternate rulings that the Court might have made in answering the question presented. Instead, the Supreme Court overruled, sub silentio, court-of-appeals cases in eleven of the thirteen circuits dating back to 1982. That is another remarkable aspect of this remarkable case.

It remains to be seen what will happen in the eleven overruled circuits. Of special concern is what will happen in cases where, in reliance of their circuit’s law or the advice of a court clerk, a lawyer did not file a “premature” notice of appeal from an adverse final judgment in one of the consolidated actions, awaiting disposition of the other consolidated cases. Some lawyers filed “protective” notices of appeal. What happens to the rest of the lawyers and their clients? The Supreme Court’s opinion offers no guidance.


Steven Finell is an attorney practicing in Santa Rosa, California and New York, New York. He chairs the Appellate Rules and Statutes Subcommittee of the Litigation Section’s Appellate Practice Committee and is a past chair of the ABA Council of Appellate Lawyers Rules Committee.

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