Appeal Now or Later? A Look at Federal Rule of Civil Procedure 54(b)

In the federal court system, the general rule is that orders entered during the course of a pending case are not appealable until the entire case has been resolved. This principle is commonly known as the "final judgment rule," which provides that earlier rulings that were interlocutory when entered can be appealed at the conclusion of the case if they remain relevant at that point.

Federal Rule of Civil Procedure 54(b) is one of several established exceptions to the final judgment rule. What Rule 54(b) provides is that if a case involves separate claims for relief or multiple parties, a federal district court can certify as final an order disposing of at least one claim as to at least one party even if other claims remain against that party or against other parties in the case.

The Federal Rules of Civil Procedure allow for the joinder of unrelated claims against the same party in the same lawsuit, and therefore it is possible that one claim that is resolved early in the case will have little or nothing in common with the other claims that remain in the case. Most federal appellate courts have construed Rule 54(b) to require that a claim certified as final under that rule not arise from the same set of facts as the claims that remain in the case.

Whether to certify as final under Rule 54(b) an order that resolves fewer than all claims as to fewer than all parties is initially within the discretion of the federal district court. An order so certified is then immediately appealable as a final order, and no permission needs to be obtained from the federal appellate court for the appeal to proceed. Moreover, if an order is properly certified as final under Rule 54(b) and then the losing party fails to appeal within the time provided from that order's date of entry, that party will have forfeited its right to appeal. Once an order is properly certified as final under Rule 54(b), the losing party no longer has the option of waiting until the final conclusion of the case to appeal from that ruling.

Although a federal appellate court's permission is not required to take an appeal from an order certified as final under Rule 54(b), one occasionally encounters federal appellate rulings that reject as improper a federal district court's Rule 54(b) certification because the claim certified as having given rise to a final order is not sufficiently separate from the claims that remain pending on the merits in the district court. In such an instance, the appellate court can overturn the district court's Rule 54(b) certification, thereby requiring the party seeking appellate review to await the final resolution of the entire case before obtaining such review.

Ordinarily, a Rule 54(b) certification is sought by the party against whom the claim was decided. Thus, it is typically the party that wants immediate appellate review that is asking for the order to be certified as a final order, and upon achieving the certification the losing party immediately pursues the appeal that it was seeking to obtain. Yet it is at least theoretically possible for the party that was on the winning side of an otherwise interlocutory ruling to ask a federal district court to certify the decision as final under Rule 54(b). By obtaining that certification, the prevailing party would put the losing party in the position of pursuing an immediate appeal or waiving its ability to appeal.

I don't think that I've ever seen an instance where the prevailing party obtained the entry of a Rule 54(b) order in its favor, only to see the losing party then refuse to appeal in the belief that the trial court had erroneously entered the Rule 54(b) certification because the certified claim was not distinct enough from the claims still pending in the trial court. That would be a very risky strategy for the party on the losing end of a decision certified as final under Rule 54(b), but presumably if the losing party appealed from the final judgment at the end of the case, a federal appellate court could conclude that an earlier Rule 54(b) certification had been erroneously issued and therefore did not preclude the losing party from awaiting an actual final judgment in the entire case before appealing.

Frequently, parties wish to appeal from adverse rulings before the entire case has concluded, and Rule 54(b) provides a useful means of doing so where the adverse ruling decides a distinct claim that is sufficiently unrelated to the claims that remain pending in the case. But just as a properly entered Rule 54(b) order can provide a much-needed shortcut to appellate review, an improperly entered Rule 54(b) order may require the parties to waste time and incur large expenses pursuing an appeal that a federal appellate court may ultimately decide is not yet ready to be decided in the absence of a final judgment in the entire case.

By Howard J. Bashman

Special to Law.com