When seeking appellate review in the Sixth Circuit, make sure the district court does its homework first

07/24/2014

Ordinarily, a party can appeal a federal district court’s decision only once the district court issues a final order — that is, an order disposing of all the claims against all of the parties. But parties sometimes want to appeal non-final or “interlocutory” orders. A plaintiff may seek interlocutory review, for example, when a district court dismisses some defendants before trial but leaves claims pending against other defendants. In that case, the plaintiff may argue that waiting for a final judgment creates the risk of having multiple trials on the same claims.

Congress anticipated that these scenarios might arise and created a mechanism for plaintiffs to seek interlocutory review when there are multiple claims or multiple defendants. Federal Rule of Civil Procedure 54(b) allows district courts to certify a non-final order for appellate review—but “only if the court expressly determines that there is no just reason for delay.”

What form does this determination have to take? That’s the question the United States Court of Appeals for the Sixth Circuit addressed in Elk Glenn v. Kentucky Farm Bureau Mutual Insurance –and its decision might be surprising.

In Elk Glenn, the district court determined that there was no just reason to delay appellate review of an interlocutory order dismissing one party. But the court didn’t say why. It made no findings and offered no rationale for its decision.

This didn’t sit well with the Sixth Circuit. The Sixth Circuit held that the district court hadn’t properly certified the decision for appellate review because the court failed to explain its decision. And instead of remanding the matter for the district court to fix the record, the Sixth Circuit issued a published decision dismissing the matter entirely.

The rule in the Sixth Circuit, therefore, is this: if a district court certifies an interlocutory order for review under Rule 54, it must make express findings or the Sixth Circuit may dismiss the appeal.

In a separate concurrence, Judge Sutton agreed that this result was required by the Sixth Circuit’s previous decisions. But he argued that the Sixth Circuit’s rule doesn’t square very well with the Federal Rules of Civil Procedure. In his view, Rule 54 requires nothing beyond the kind of summary determination that the district court offered in Elk Glenn. He also lamented the docket-clogging litigation that the Sixth Circuit’s rule creates.

For now, however, an attorney seeking interlocutory review should ensure that the district court’s order is thorough and that it includes an explanation of the district court’s rationale.


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