Porter v. Zook – The Case of the Ambiguous Finality

The finality rule is among the most fundamental rules of appellate procedure, as every appellate lawyer knows (or certainly should know). With few exceptions, appellate courts have jurisdiction only to review final judgments or orders of trial courts and other tribunals. See, e.g., 28 U.S.C. §§ 1291, 1292; Va. Code §§ 8.01-670, 8.01-670.1.

In Porter v. Zook, 803 F.3d 694 (2015), the Fourth Circuit was forced to apply the finality rule of § 1291 and dismiss an appeal from what appeared to the District Court to be a final judgment in a habeas corpus appeal. Porter, the habeas petitioner, raised “a multitude of claims, some of which have multiple subparts,” and the Court of Appeals found it “easy to see how one ‘variation[]’ of a juror bias claim … could be overlooked.” But overlooked it was, and the appeal had to be dismissed without considering the merits.

To Porter, who is challenging a conviction of capital murder and a sentence of death, the resulting delay may be seen as a gift from above. To most litigants, however, a similar outcome is costly in terms of both money and time. What, then, is a lawyer facing an ambiguous potentially final decision to do?

First, recognize that the trial court does not have the last word on the subject. “Regardless of the label given a district court decision, if it appears from the record that the district court has not adjudicated all of the issues in a case, then there is no final order…. ‘[A] district court mislabeling a non-final judgment “final” does not make it so.’” The appellate court has the final word, of course; but counsel are responsible, to the courts as well as to their clients, for examining the pleadings and the record to assure that no appeal is taken before its time.

Second, if that examination discloses any unadjudicated claims, file an appropriate motion to reopen the mislabeled final judgment and render a decision on those claims. (Note that none of this applies to unadjudicated motions or defenses. A party who fails to obtain a ruling on a motion waives the right to raise that issue on appeal, but that does not undercut the finality of a judgment that resolves all claims asserted by all parties in the case.)

What to do, however, if no clear answer to the finality question emerges from a careful examination of the pleadings and the record? If the judgment genuinely is final, you must not allow the notice of appeal deadline to expire; but you do not want to waste resources pursuing an appeal that is doomed to dismissal.

Fortunately, the Federal and Virginia Rules provide at least a few roots of escape from the horns of this dilemma:

  • In a Virginia trial court, move promptly for an order suspending the putatively final judgment pending resolution of the finality predicament, and see that it is entered within 21 days after the date of the judgment. Otherwise, you will be forced to assume that the order is final and note an appeal. Rule 1:1.
  • Simultaneously (or promptly) file a motion (if necessary) or an agreed order that resolves the ambiguity.
  • If you are unable to obtain entry of a suspension order within 21 days after entry of the ambiguous order, then file a notice of appeal within the 30 days allowed by Rule 5:9. If the court later enters a second order that resolves the ambiguity, file another notice of appeal. The Supreme Court or Court of Appeals is likely to consolidate the two proceedings and dismiss one of them, but you will have a fairly high degree of assurance that one or the other is within its jurisdiction.
  • In an appropriate case, move for entry of a Partial Final Judgment order under Rule 5:8A and alternatively for amendment of the previous order to resolve all pending claims, identifying the perceived barriers to actual finality. In a federal court, file a similar motion under Fed.R.Civ.P. 54(b).
  • Consider other possible bases for appellate jurisdiction, under Code § 8.01-670.1 (appeal of interlocutory orders and decrees by permission before trial), § 8.01-670(A)(1) (appeal of “any judgment” in a controversy concerning the title to or boundaries of land and six other specified categories), or § 8.01-670(B) (certain interlocutory decrees or orders in cases on equitable claims, including those “[a]djudicating the principles of a cause”), or 28 U.S.C. § 1292(a) (injunctive orders, receivership orders, and certain orders in admiralty cases) or § 1292(b) (appeal of interlocutory orders by permission).