Matching Orders to Routes

Matching Orders to Routes

An adverse ruling made before final judgment reaches the court of appeals only if some route covers it. A party who loses at trial generally has the right to appeal the judgment,¹ but a party who loses a pretrial ruling needs authority to appeal now, while the case remains pending. The first question is therefore whether a route names the order; how much the ruling hurts comes later, if at all. Section 1292(a)(1) shows what a named category looks like. It covers interlocutory orders that grant, continue, modify, refuse, or dissolve injunctions, and orders that refuse to dissolve or modify them.² An order that fits those words is appealable at once, and an order that does not must find a route that asks more of the appellant.

The routes in this chapter line up from the most automatic to the most extraordinary. Statutory categories cover kinds of order whose consequences arrive at once. The collateral order doctrine covers rights that would be lost if the appeal waited. Certification and Rule 23(f) petitions cover legal questions that a trial judge or an appellate court wants answered early, and mandamus and contempt serve as safety valves of last resort. Testing an order in that sequence tracks how much each route costs the system, and an exam answer should follow the same sequence.

Step one is the one students skip. A final decision ends the litigation on the merits and leaves nothing for the trial court to do but execute the judgment, and it is appealable under § 1291 with no exception at all.³ A partial dismissal fails that test. When MacArthur's intentional infliction claim was dismissed while other claims remained, she could not appeal under § 1291 without more; she could only save the claim up and assert it, perhaps alongside other claims of error, in her appeal from a final judgment on all the remaining claims.⁴ Every ruling below likewise leaves its case pending, which is why each must be matched to a route.

Suppose a court enjoins a bakery, before trial, from selling a disputed product line. Step two ends the inquiry. The order grants an injunction, so the bakery may appeal at once, and the rival that had lost the motion could have appealed just as promptly, because the statute reaches orders that refuse injunctions as well as orders that grant them. The same order in a patent suit remains an injunction order, and only the destination changes: § 1292(c)(1) sends an appeal from an order described in subsection (a) or (b) to the Federal Circuit in any case over which that court would have jurisdiction under § 1295.⁵ A patent judgment that decides liability and leaves only an accounting is a separate named category. The defendant may appeal it now, to the Federal Circuit, without waiting for the damages phase.⁶

Rulings that fit no named category go to step three, where the Cohen conditions apply. The third condition, effective unreviewability, does most of the sorting, and two cases mark its poles. In Nixon v. Fitzgerald, the President could appeal the denial of his motion to dismiss on absolute immunity even though the litigation would otherwise have continued, because absolute immunity spares a defendant not only from liability but from standing trial at all.⁷ A trial would destroy that right, and a later appeal could not restore it. Recticel sits at the other pole. That litigation involved about two thousand plaintiffs and two hundred defendants, and a case management order required the defendants to share the expense of reproducing certain videotapes.⁸ The order fits no statutory category, and it fails the third condition because money paid under it can be repaid if the order is overturned. A particular co-defendant might lack the funds to repay, but the analysis looks to the entire category to which the claim belongs, and in most cases parties can repay.⁹

A denial of a motion to dismiss for lack of personal jurisdiction lands on Recticel's side of the line. Whatever else may be said of it, a reversal of the final judgment can correct a jurisdictional error. The defendant loses no right by waiting and bears only the ordinary burden of litigating, so the order is not effectively unreviewable.¹⁰ The defendant's remaining option is step four, which depends on the district judge agreeing to certify the jurisdictional question as a controlling question of law.

Mandamus does not rescue the Recticel defendants either. The All Writs Act authorizes a petition for a writ directing the trial court to do its duty or abide by its jurisdiction, but the writ is extraordinary. It requires a showing of both a special risk of harm and a clear entitlement to relief, usually based on the trial court's usurpation or abdication of authority.¹¹ An allocation of discovery costs is routine case management, not usurpation.

An exam stem that lists an adverse order and asks whether the party may appeal now is asking you to climb this ladder one rung at a time. When no rung fits, the answer is that the party waits and raises the error on appeal from the final judgment. To preserve it for that appeal, she must have objected promptly and stated her grounds on the record.¹²