August 13, 2020 Practice Points

Taking an Immediate Appeal in the Time of COVID-19

Attorneys who are continuing to adapt to this “new normal” would be wise to keep Rule 54(b) in mind as a way to keep the judicial process moving.

By Paige Tungate

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Although the pandemic caused by COVID-19 has sidelined the U.S. Women’s National Team (USWNT) from competing on the field, the USWNT has been squaring off against their employer, the U.S. Soccer Federation (USSF), in the courtroom. The USWNT sued the USSF asserting pay-discrimination claims and discriminatory-working-condition claims due to the perception that the USSF gives preferential treatment to the men’s team.

A jury trial setting scheduled for September 15, 2020 was recently continued for a third time to January 26, 2021 due to the pandemic and California’s stay-at-home orders. The court explained that due to the pandemic, jurors are unable to travel and safely convene. However, the September date could remain, but only if both sides agreed to a bench trial. This sort of tentative scheduling and cessation of many normal court functions is a consequence that many attorneys have likely experienced since the onset of the pandemic.

The USWNT lawsuit provides a good illustration of how Federal Rule of Civil Procedure 54(b) can be used by appellants—particularly when a trial setting regarding remaining claims is uncertain. After the court’s dismissal of their pay-discrimination claims on summary judgment, the USWNT filed an unopposed motion for entry of a final judgment pursuant to Rule 54(b).

Rule 54(b) allows the court to “direct entry of a final judgment as to one or more, but fewer than all, claims only if the court determines there is no just reason for delay.” See Fed. R. Civ. P. 54(b). Rule 54(b) was intended to relieve any burden felt by litigants who received an unsatisfactory ruling by allowing the immediate appeal despite the pendency of remaining claims.

For would-be appellants wishing to fast track the appellate process of at least one claim in a multi-claim lawsuit, Rule 54(b) provides an avenue for doing so, as long as two key parts are satisfied. First, the appealed claim must be a final judgment. The U.S. Supreme Court in Curtiss-Wright Corp. v. Gen. Elec. Co. stated that a final judgment meant “an ultimate disposition of an individual claim entered in the course of a multiple claims action.” Curtiss-Wright Corp. v. Gen. Elec. Co, 446 U.S. 1, 7 (1980).

The second key to a Rule 54(b) certification is that there must be “no just reason for delay” in appealing a final judgment from a multiple-claim suit. Fed. R. Civ. P. 54(b). In Curtiss, the Supreme Court found that in analyzing what constitutes “no just reason for delay,” a court should consider whether there are “judicial administrative interests as well as the equities involved.” Curtiss, 446 U.S. at 8. In their motion, the USWNT argued that there was no just reason for delay because the dismissed pay-discrimination claims did not relate to the remaining claims that pertain to working conditions. The USWNT also maintained that the uncertainty of any trial date due to the pandemic would mean that without a Rule 54(b) certification, the USWNT would potentially have to wait until the remaining claims are adjudicated before appealing, which could be as late as 2021 due to the ongoing scheduling issues caused by the pandemic.

Courts also consider whether the claims to be reviewed are “separable” from the other remaining claims that have not resulted in a final judgment. Id. The claims must also be such that “no other appellate court would have to decide the same issues more than once” in the event of subsequent appeals. Id. The USWNT made the decision to only seek the appeal of their dismissed pay-discrimination claims and not the other dismissed claim that related to field conditions, because the court did not dismiss the USWNT’s other working-condition claim. The working-conditions claims are too intertwined to be separable.

 Ultimately, the court denied the USWNT’s request, concluding that an immediate appeal would not promote judicial administrative interests because it would not prevent the possibility of multiple trials or successive appeals.

During this unprecedented modern time, when the normal functions of the court system have been drastically impacted, a Rule 54(b) request for an immediate appeal can have the effect of conserving judicial resources and providing finality to claims that otherwise would be left in abeyance and a state of uncertainty pending the adjudication of remaining claims that could be delayed due to the pandemic, while also potentially aiding in the resolution of the other pending claims through the promotion of settlement. Attorneys who are continuing to adapt to this “new normal” would be wise to keep Rule 54(b) in mind as a way to keep the judicial process moving.

Paige Tungate is an attorney with Downey Law Group LLC in St. Louis, Missouri.

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