Paul Ferrer—Senior Attorney, National Legal Research Group
A question that has long vexed both litigants and courts alike is what constitutes a “final decision” triggering the right to file an appeal under 28 U.S.C. § 1291, which confers jurisdiction on the federal circuit courts of appeals over “appeals from all final decisions of the district courts of the United States.” In a civil case (except where the United States is a party), the notice of appeal from a “final decision” must be filed “within 30 days after entry of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A). Many an appeal has been lost just by failing to timely file the notice of appeal.
Making a determination as to when an appeal must be filed to comply with the 30-day time limit is supposed to be relatively easy in light of the procedures specified in Federal Rule of Civil Procedure 58. Rule 58 requires that every judgment generally “must be set out in a separate document.” Fed. R. Civ. P. 58(a). If a separate document is required by Rule 58(a), then judgment is “entered,” and the time to appeal starts running, when the judgment is entered in the civil docket and the earlier of one of these two events occurs: (1) the judgment is, in fact, set out in a separate document, or (2) 150 days have run from the entry of the judgment in the civil docket. Fed. R. Civ. P. 58(c)(2). The second alternative deals with those situations in which the district court, despite the requirements of Rule 58(a), does not set the judgment out in a separate document.
Despite Rule 58, questions still arise as to what constitutes a “final decision”—that is, “one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment”—for purposes of filing an appeal. Britt v. Dejoy, 45 F.4th 790, 792 (4th Cir. 2022) (en banc) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). The Britt case dealt with the specific situation of determining finality when the district court dismisses a complaint without prejudice but remains silent as to the possibility of amending the complaint. The Fourth Circuit had previously winnowed through such cases individually, scrutinizing the district court’s order in each “to discern whether the district court was truly finished with the case or whether there was more to do.” Id. at 794. But the case-by-case method led to inconsistency, which could cost litigants their opportunity to appeal.
The Fourth Circuit, sitting en banc in Britt, thus decided to jettison the case-by-case approach in favor of the bright-line rule already used in the D.C. Circuit and the Sixth Circuit. As formulated by the Fourth Circuit, this rule is that “when a district court dismisses a complaint or all claims without providing leave to amend, we need not evaluate the grounds for dismissal or do anything more—the order dismissing the complaint is final and appealable,” even if the dismissal is “without prejudice.” Id. at 796. Since such a dismissal is final and appealable, the time to appeal begins to run upon “entry” of the judgment. Id. at 794.
Despite its adoption of the bright-line rule, the Fourth Circuit recognized that even this rule might create new sources of confusion. Most confusion could be relieved if the district court would simply enter a final judgment on a separate document as required by Rule 58, but the problems arise when the district court, not all that uncommonly, fails to do so. In that situation, ideally, the plaintiff would specifically request that the district court enter a final judgment on a separate document, thereby alleviating any confusion over when the time to appeal starts running. See Fed. R. Civ. P. 58(d) (“A party may request that judgment be set out in a separate document as required by Rule 58(a).”). In fact, the Fourth Circuit specified in Britt that the plaintiff “must obtain an additional, final decision from the district court finalizing its judgment before she may appeal” when the district court has dismissed the complaint but granted leave to amend either within a specified number of days or without specifying a particular deadline, but the plaintiff chooses to stand on her complaint rather than seek to amend. 45 F.4th at 797. The Fourth Circuit acknowledged that this creates an additional step for litigants seeking to appeal, but found that it was the best and clearest way to ensure finality. Id. at 798.