September 01, 2015

A Primer on the Finality of Decisions for Appeal

An examination of the main strands of the law of finality and appealability, including some recent Supreme Court developments.

Brian C. Walsh

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Yogi Berra was too young to be included in the list of notable baseball players at the beginning of Justice Blackmun’s opinion upholding Major League Baseball’s antitrust exemption in Flood v. Kuhn, 407 U.S. 258 (1972). But more than four decades later, Chief Justice Roberts featured one of Berra’s most famous sayings while addressing the finality of an order of a bankruptcy court: “It ain’t over till it’s over.” Bullard v. Blue Hills Bank, 135 S. Ct. 1686, 1693 (2015).

A general principle of appellate practice is that an appellant may appeal only from a final judgment or decision. But it is not always easy to determine whether a particular adjudication is “final” for purposes of appeal. The subject is further complicated by statutory and case law exceptions that authorize interlocutory appeals when a case has not been finally resolved. In some circumstances, a party has a right to pursue an interlocutory appeal, but in other situations, the trial judge or the appellate court has discretion to permit or deny an appeal.

This article collects and organizes the main strands of the law of finality and appealability, including some recent developments in the Supreme Court, with a focus on appeals of decisions of the federal district courts to the courts of appeals. Many of these principles also apply to appeals in the state courts, but as is true of all things, there can be considerable variation among the federal and state systems. A litigant pursuing an appeal in state court, or one hoping to have an appeal dismissed for lack of appellate jurisdiction, will want to pay close attention to the particular principles in the applicable jurisdiction.

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