Finality and its Three Exceptions

A recent decision from the 11th Circuit Court of Appeals gives occasion to review the finality rule and its three exceptions. The 11th Circuit Court of Appeals decision in In re Donald J. Donovan, 532 F. 3rd 1134 (11th Cir. 2008) dealt with an appeal of the Bankruptcy Court's denial of an unsecured creditor's motion to dismiss a chapter 7 case as being "abusive".  The Circuit Court held that it lacked jurisdiction to hear the appeal as the order denying the motion to dismiss was not a "final" order and no exception applied.

Finality

The Court also reviewed the general requirement that an order must be "final" in order to be appealed. In general, to be "final"  under 28 U.S.C. §158(d) and §1291, an order must "end the litigation on the merits, leaving nothing to be done but execute the judgment."  The Court explained that in the bankruptcy context, the finality requirement is applied to "discrete controversies within the administration of the estate."

Three Exceptions

In prior cases, the 11th Circuit explained that there are three exceptions to the "finality" requirement as follows:

1. collateral order doctrine
2. doctrine of practical finality
3. intermediate resolution of issues fundamental to the merits of the case

The Court in Donovan explained that in a bankruptcy context "finality" is given a more "flexible interpretation" as bankruptcy is an "aggregation of controversies and suits".  It gave the example that it is "generally the particular adversary proceeding or controversy that must have have been finally resolved rather than the entire bankruptcy litigation."

1. Collateral Order Doctrine

The 11th Circuit explained in the case of In re F.D.R. Hickory House, Inc., 60 F. 3rd 724 (11th Cir. 1995) explained that the collateral order doctrine applies to orders that  (1) finally determine a claim separate and independent from the other claims in the action, (2) cannot be reviewed after the final judgment because by then effective review will be precluded and that the rights conferred will be lost and (3) are too important to be denied review because they present a significant and unresolved question of law.

2. Practical Finality

The "practical finality" rule, which is referred to as the Fogay-Conrad rule, permits a circuit court to review an interlocutory order that

decides the right to the property in contest, and directs it to be delivered up by the defendant to the complainant, or directs it to be sold, or directs the defendant to pay a certain sum of money to the complainant, and the complainant is entitled to have such decree carried immediately into execution

in Walker, the 11th Circuit explained that this  exception is applied "where practical considerations require it" and that "judicial economy" would be "turned on its head" if the appellate court could not review the case.

3. Fundamental Issues

"Fundamental Issues" is the third exception to the finality rule. The 11th Circuit explains that this exception is the “most extreme” exception to the final judgment rule, applicable “even [to] an order of marginal finality [is] if the question presented is fundamental to further conduct of the case.”

Further References

Further material is available in this article in the Florida Bar Journal, an article on practice tips,  a blog post on Weil Gotshal's "Bankruptcy Blog", and an article "Bankruptcy Appeals - Useful Reminders."