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Appellate Litigation

What Are the Requirements to Appeal an Interlocutory Summary Judgment Ruling in Federal Court?

April 24, 2020

Summary judgment allows a litigant to ask the court to find that no “genuine issues of material fact” exist regarding some or all of the claims in the case, and that they are therefore entitled to “judgment as a matter of law” on those claims. A defendant may use summary judgment to have some or all of the plaintiff’s causes of action dismissed, while a plaintiff might move for summary judgment to obtain a favorable ruling on their claims. In either case, the party that does not prevail might want to appeal the decision. The Federal Rules of Appellate Procedure (FRAP) establish the steps for filing an appeal in a federal Circuit Court of Appeals, with some help from the U.S. Code, the Federal Rules of Civil Procedure (FRCP), and caselaw.

You can read about the standard of review for a summary judgment motion here.

When Can a Party Appeal a Summary Judgment Order?

As a general rule, orders issued by a court while a case is still pending—known as interlocutory orders—are not subject to appeal before the trial court enters a final judgment. This affects an appeal of a summary judgment order when the order does not dispose of any part of a lawsuit.

An order that grants summary judgment typically disposes of some or all causes of action in a case. This could be a ruling in a plaintiff’s favor, granting them judgment before trial on their claims, or it could be a ruling for a defendant, disposing of the plaintiff’s claims. Is it a “final” judgment, though?

Final Summary Judgment Orders

If the summary judgment order disposes of all the claims in the lawsuit, it is a final judgment, according to FRCP 54(b), and therefore it is not interlocutory. Under FRAP 3 and 4, it can be appealed “as of right.”

Interlocutory Summary Judgment Orders

If a summary judgment order disposes of only some of the causes of action but leaves others, under FRCP 54(b), it is not a final order. An order denying a motion for summary judgment also allows the case to proceed to trial. These orders are interlocutory, and therefore they are not usually subject to appeal, but there are exceptions.

Appealing an Interlocutory Summary Judgment Ruling Before Trial

A federal court of appeals may hear an appeal of an interlocutory order under 28 U.S.C. § 1292(b) and FRAP 5, but the standard is difficult to meet. It requires permission from both the district court and the court of appeals.

Permission from the District Court

Section 1292(b) requires the district court judge to certify that an interlocutory order can be appealed. The statute requires the judge to certify three elements:

  1. The order “involves a controlling question of law”;
  2. That question has “substantial ground for difference of opinion”; and
  3. Allowing “an immediate appeal...may materially advance the ultimate termination of the litigation.”

The U.S. Supreme Court has provided additional guidance. The “collateral order doctrine” allows appeals of interlocutory orders when they “fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action.” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949). The court later expressed this as a three-part test in Digital Equipment Corp. v. Desktop Direct, Inc., 511 US 863, 867 (1994):

  1. The order must be “conclusive”;
  2. The order must “resolve important questions completely separate from the merits”; and
  3. The order “would render such important questions effectively unreviewable” if an appeal is delayed until after a final trial.

The district court has total discretion over whether to issue such a certification.

Permission from the Court of Appeals

After obtaining the above certification from a district court judge, the party seeking to appeal must file a petition for permission with the appellate court. Under FRAP 5(b), this petition should:

  • Identify the question presented, any facts necessary to understand the question, and the relief sought;
  • Explain why the court should grant permission to appeal; and
  • Provide a copy of the order being appealed and the district court judge’s certification.

Section 1292(b) requires filing within 10 days of the order. This means that the party who wants to appeal must obtain the district court judge’s certification and file the petition in a very short h4 of time.

Appealing an Interlocutory Summary Judgment Ruling After Trial

Summary judgment orders usually cannot be appealed after a trial has taken place. The Ninth Circuit Court of Appeals called it a “pointless academic exercise” to review factual summary judgment issues after a trial in Banuelos v. Construction Laborers' Trust Funds for So. Calif., 382 F.3d 897, 902 (9th Cir. 2004).

If a party raises the same issues that it brought up in summary judgment in a motion for judgment as a matter of law under FRCP 50, an appellate court will review them. Additionally, the Ninth Circuit held in Banuelos that an appellate court could review a summary judgment order after trial, even without a Rule 50 motion, if the district court’s order was based on a “purely legal” argument.

Interlocutory appeals of class-certification decisions have their own standard, Rule 23(f), which you can read about here.

You can read here why you may want to hire a separate appellate attorney.

If you would like to speak with someone at Bona Law about your appeal, please contact us via email or call us at 858-964-4589.