A Primer on the
Finality of Decisions
BRIAN C. WALSH
The author is a partner with Bryan Cave LLP, St. Louis and Atlanta.
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 develop-
ments 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.
The basic statute governing appellate jurisdiction in the federal courts authorizes appeals “from all final decisions of the
district courts.” 28 U.S.C. § 1291. A final decision normally takes
the form of a judgment or a decree that concludes a case by resolving all claims and counterclaims asserted by all parties. The
courts often describe a final decision as one that ends the litigation on the merits and leaves nothing for the district court to do
but to execute the judgment. This characterization is not fully
accurate, as the many exceptions discussed here demonstrate,
but it can be a useful guide in many situations. For example, the
Supreme Court held earlier this year that plaintiffs in a multidis-trict litigation may appeal from the dismissal of their complaint
even though other cases consolidated with it remain pending.
See Gelboim v. Bank of Am. Corp., 135 S. Ct. 897, 905–06 (2015).
The Court reached this conclusion by recognizing that a multi-district litigation case ordinarily remains distinct even when it
is consolidated with other cases, so that dismissal of all claims
in one case ends that case and permits an appeal.
Reasons for Restricting Appeals
Courts have identified a number of reasons for restricting appeals to final decisions. These include deference to district