3.3 PREREQUISITES TO APPEAL
3.301 Appeals by Right. All final decisions of United States district courts may be appealed as a matter of right to a United States Court of Appeals. 25 The appeal generally must be from a formal judgment, not an opinion or order. The judgment "must be set out in a separate document." 26
Appealable orders include interlocutory orders granting, continuing, modifying, refusing, dissolving, or refusing to dissolve or modify injunctions, 27 certain interlocutory orders involving receiverships, 28 and certain interlocutory orders involving admiralty cases. 29
Simply put, all "final" orders may be appealed, and interlocutory orders may not (except those permitted by 28 U.S.C. § 1292(a)). 30 While a final decree is one that leaves nothing to do, and an interlocutory decree is one that is not final, it can be difficult to tell the difference between the two. 31 Federal courts have developed a complex body of precedent permitting appeals from otherwise nonfinal orders under the "collateral order doctrine." 32 The case law in this area is constantly in flux and one must examine it before assuming that an order is not "final" and hence unappealable.
3.302 Appeals by Permission. There are a variety of provisions for appeals by permission rather than by right. These include interlocutory appeals under 28 U.S.C. § 1292(b) and appeals from orders on class certification under Federal Rule of Civil Procedure 23. The Court of Appeals has the discretion to permit an appeal in a civil action of any order not otherwise appealable under 28 U.S.C. § 1292(b) if the trial court has certified in its order that:
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| 1. | The order involves a controlling question of law; | |
| 2. | There are substantial grounds for difference of opinion; | |
| 3. | An immediate appeal from the order may materially advance the ultimate termination of litigation; and | |
| 4. | The application is made to the Court of Appeals within 10 days after the entry of the order. |
These findings are jurisdictional and must be set forth by the district court. If that certification is given, however, the application for appeal "shall not stay proceedings in the district court" unless the trial court or the Court of Appeals orders a stay. 33 Not surprisingly, trial courts are traditionally loath to certify to an appellate court, at the very least, "that there are substantial grounds for difference of opinion." This is an often sought and seldom granted application.
The...
