In a multiple claims action, the Federal District Court
expressly directed that judgment be entered for the defendant on
two, but less than all, of the claims presented. The court also
expressly determined that there was no just reason for delay in
making the entry. On appeal from that judgment, the Court of
Appeals upheld its jurisdiction and denied a motion to dismiss,
relying upon 28 U.S.C. § 1291 and Rule 54(b) of the Federal Rules
of Civil Procedure, as amended in 1946.
Held: the appellate jurisdiction of the Court of
Appeals is sustained, and its judgment denying the motion to
dismiss the appeal for lack of appellate jurisdiction is affirmed.
Pp.
351 U. S.
428-438.
(a) Rule 54(b), as amended, does not relax the finality required
of each decision, as an individual claim, to render it appealable,
but does provide a practical means of permitting an appeal to be
taken from one or more final decisions on individual claims, in
multiple claims actions, without waiting for final decisions to be
rendered on all the claims in the case. Pp.
351 U. S.
434-435.
(b) The application of the amended rule is limited expressly to
multiple claims actions in which "one or more but less than all" of
the multiple claims have been finally decided and are found
otherwise to be ready for appeal. P.
351 U. S.
435.
(c) The amended rule requires that for "one or more but less
than all" multiple claims to become appealable, the District Court
must make both "an express determination that there is no just
reason for delay" and "an express direction for the entry of
judgment." Pp.
351 U. S.
435-436.
(d) In this case, each of the claims dismissed was a "claim for
relief" within the meaning of Rule 54(b), and the dismissal of each
constituted a "final decision" on the individual claim. P.
351 U. S.
436.
(e) The claims adjudged by the District Court could properly be
decided independently of the claims which the court did not
adjudge. P.
351 U. S.
436.
(f) Amended Rule 54(b) does not constitute an unauthorized
extension of 28 U.S.C. § 1291, since the District Court cannot,
in
Page 351 U. S. 428
the exercise of its discretion, treat as "final" that which is
not "final" within the meaning of § 1291. Pp.
351 U. S.
436-437.
(g) In the exercise of its discretion under amended Rule 54(b),
the District Court may release for appeal final decisions upon one
or more, but less than all, claims in multiple claims actions, and
any abuse of that discretion is reviewable by the Court of Appeals.
P.
351 U. S.
437.
(h) Rule 54(b), as amended, does not supersede any statute
controlling appellate jurisdiction, and it scrupulously recognizes
the statutory requirement of a "final decision" under § 1291 as a
basic requirement for an appeal to the Court of Appeals. P.
351 U. S.
438.
(i) Rule 54(b), as amended, is valid in both its "affirmative"
and "negative" aspects. The rule is not rendered invalid because,
though its "affirmative" operation, a final decision may be
released for appeal to the Court of Appeals at a time when, under
prior law, it would not have been appealable. P.
351 U. S.
438.
218 F.2d 295 affirmed.
MR. JUSTICE BURTON delivered the opinion of the Court.
This action, presenting multiple claims for relief, was brought
by Mackey and another in the United States District Court for the
Northern District of Illinois, Eastern Division, in 1953. The court
expressly directed that judgment be entered for the defendant,
Sears, Roebuck & Co., on two, but less than all, of the claims
presented. It also expressly determined that there was no just
reason for delay in making the entry. After Mackey's notice of
appeal from that judgment to the Court of Appeals for the Seventh
Circuit, Sears, Roebuck & Co. moved to dismiss the appeal for
lack of appellate jurisdiction. The Court of Appeals upheld its
jurisdiction and denied the
Page 351 U. S. 429
motion, relying upon 28 U.S.C. § 1291 and Rule 54(b) of the
Federal Rules of Civil Procedure, as amended in 1946. Because of
the importance of the issue in determining appellate jurisdiction
and because of a conflict of judicial views on the subject,
[
Footnote 1] we granted
certiorari. 348 U.S. 970. For the reasons hereafter stated, we
sustain the Court of Appeals and its appellate jurisdiction.
Although we are here concerned with the present appealability of
the judgment of the District Court, and not with its merits, we
must examine the claims stated in the complaint so as to consider
adequately the issue of appealability.
The complaint contains six counts. We disregard the fifth
because it has been abandoned, and the sixth because it duplicates
others. The claims stated in Counts I and II are material, and have
been dismissed without leave to amend. The claim contained in Count
III and that in amended Court IV are at issue on the answers filed
by Sears, Roebuck & Co. The appeal before us is from a
Page 351 U. S. 430
judgment striking out Counts I and II without disturbing Counts
III and IV, and the question presented is whether such a judgment
is presently appealable when the District Court, pursuant to
amended Rule 54(b), has made "an express determination that there
is no just reason for delay" and has given "an express direction
for the entry of judgment."
In Count I, Mackey, a citizen of Illinois, and Time Saver Tools,
Inc., and Illinois corporation owned by Mackey, are the original
plaintiffs and the respondents here. Sears, Roebuck & Co., a
New York corporation doing business in Illinois, is the original
defendant and the petitioner here. Mackey charges Sears with
conduct violating the Sherman Antitrust Act in a manner prejudicial
to three of Mackey's commercial ventures causing him $190,000
damages, for which he seeks $570,000 as treble damages. His first
charge is unlawful destruction by Sears, since 1949, of the market
for nursery lamps manufactured by General Metalcraft Company, a
corporation wholly owned by Mackey. Mackey claims that this caused
him a loss of $150,000. His second charge is unlawful interference
by Sears, in 1952, with Mackey's contract to sell, on commission,
certain tools and other products of the Vascoloy-Ramet Corporation,
causing Mackey to lose $15,000. His third charge is unlawful
destruction by Sears, in 1952, of the market for a new type of
carbide-tipped lathe bit and for other articles manufactured by
Time Saver Tools, Inc., resulting in a loss to Mackey of $25,000.
Mackey combines such charges with allegations that Sears has used
its great size to monopolize commerce and restrain competition in
these fields. He asks for damages and equitable relief.
In Count II, Mackey claims federal jurisdiction by virtue of
diversity of citizenship. He incorporates the allegations of Count
I as to the Metalcraft transactions, and asks for $250,000 damages
for Sears' wilful destruction
Page 351 U. S. 431
of the business of Metalcraft, plus $50,000 for Mackey's loss on
obligations guaranteed by him.
In Count III, Mackey seeks $75,000 in a common law proceeding
against Sears for unlawfully inducing a breach of his Vascoloy
commission contract.
In Count IV, Time Saver seeks $200,000 in a common law
proceeding against Sears for unlawfully destroying Time Saver's
business by unfair competition and patent infringement.
The jurisdiction of the Court of Appeals to entertain Mackey's
appeal from the District Court's judgment depends upon 28 U.S.C. §
1291, which provides that "The courts of appeals shall have
jurisdiction of appeals from
all final decisions of the
district courts of the United States. . . ." (Emphasis
supplied.)
If Mackey's complaint had contained only Count I, there is no
doubt that a judgment striking out that count and thus dismissing,
in its entirety, the claim there stated would be both a final and
an appealable decision within the meaning of § 1291. Similarly, if
his complaint had contained Counts I, II, III and IV, there is no
doubt that a judgment striking out all four would be a final and
appealable decision under § 1291. The controversy before us arises
solely because, in this multiple claims action, the District Court
has dismissed the claims stated in Counts I and II, but has left
unadjudicated those stated in Counts III and IV. [
Footnote 2]
Before the adoption of the Federal Rules of Civil Procedure in
1939, such a situation was generally regarded as leaving the
appellate court without jurisdiction of an attempted appeal. It was
thought that, although the judgment was a final decision on the
respective claims in Counts I and II, it obviously was not a final
decision of
Page 351 U. S. 432
the whole case, and there was no authority for treating anything
less than the whole case as a judicial unit for purposes of appeal.
[
Footnote 3] This construction
of the judicial unit was developed from the common law, which had
dealt with litigation generally less complicated than much of that
of today. [
Footnote 4]
With the Federal Rules of Civil Procedure, there came an
increased opportunity for the liberal joinder of claims in multiple
claims actions. This, in turn, demonstrated a need for relaxing the
restrictions upon what should be treated as a judicial unit for
purposes of appellate jurisdiction. Sound judicial administration
did not require relaxation of the standard of finality in the
disposition of the individual adjudicated claims for the purpose of
their appealability. It did, however, demonstrate that, at least in
multiple claims actions, some final decisions, on less than all of
the claims, should be appealable without waiting for a final
decision on all of the claims. Largely to
Page 351 U. S. 433
meet this need, in 1939, Rule 54(b) was promulgated in its
original form through joint action of Congress and this Court.
[
Footnote 5] It read as
follows:
"(b) JUDGMENT AT VARIOUS STAGES. When more than one claim for
relief is presented in an action, the court at any stage, upon a
determination of the issues material to a particular claim and all
counterclaims arising out of the transaction or occurrence which is
the subject matter of the claim, may enter a judgment disposing of
such claim. The judgment shall terminate the action with respect to
the claim so disposed of, and the action shall proceed as to the
remaining claims. In case a separate judgment is so entered, the
court, by order, may stay its enforcement until the entering of a
subsequent judgment or judgments, and may prescribe such conditions
as are necessary to secure the benefit thereof to the party in
whose favor the judgment is entered."
It gave limited relief. The courts interpreted it as not
relaxing the requirement of a "final decision" on each individual
claim as the basis for an appeal, but as authorizing
Page 351 U. S. 434
a limited relaxation of the former general practice that, in
multiple claims actions, all the claims had to be finally decided
before an appeal could be entertained from a final decision upon
any of them. [
Footnote 6] Thus,
original Rule 54(d) modified the single judicial unit theory but
left unimpaired the statutory concept of finality prescribed by §
1291. However, it was soon found to be inherently difficult to
determine by any automatic standard of unity which of several
multiple claims were sufficiently separable from others to qualify
for this relaxation of the unitary principle in favor of their
appealability. The result was that the jurisdictional time for
taking an appeal from a final decision on less than all of the
claims in a multiple claims action in some instances expired
earlier than was foreseen by the losing party. It thus became
prudent to take immediate appeals in all cases of doubtful
appealability, and the volume of appellate proceedings was
undesirably increased.
Largely to overcome this difficulty, Rule 54(b) was amended, in
1946, to take effect in 1948. [
Footnote 7] Since then, it has read as follows:
"(b) JUDGMENT UPON MULTIPLE CLAIMS.
When more than one claim
for relief is presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party claim,
the court may
direct the entry of a final judgment upon one or more but less than
all of the claims only upon an express determination
Page 351 U. S. 435
that there is no just reason for delay and upon an express
direction for the entry of judgment. In the absence of such
determination and direction, any order or other form of decision,
however designated, which adjudicates less than all the claims
shall not terminate the action as to any of the claims, and the
order or other form of decision is subject to revision at any time
before the entry of judgment adjudicating all the claims."
(Emphasis supplied.)
In this form, it does not relax the finality required of each
decision, as an individual claim, to render it appealable, but it
does provide a practical means of permitting an appeal to be taken
from one or more final decisions on individual claims, in multiple
claims actions, without waiting for final decisions to be rendered
on all the claims in the case. The amended rule does not apply to a
single claim action, nor to a multiple claims action in which all
of the claims have been finally decided. It is limited expressly to
multiple claims actions in which "one or more but less than all" of
the multiple claims have been finally decided and are found
otherwise to be ready for appeal.
To meet the demonstrated need for flexibility, the District
Court is used as a "dispatcher." It is permitted to determine, in
the first instance, the appropriate
time when each "final
decision" upon "one or more but less than all" of the claims
in a multiple claims action is ready for appeal. This arrangement
already has lent welcome certainty to the appellate procedure. Its
"negative effect" has met with uniform approval. The effect so
referred to is the rule's specific requirement that, for "one or
more but less than all" multiple claims to become appealable, the
District Court must make both "an express determination that there
is no just reason for delay" and "an express direction for the
entry of judgment." A party adversely affected by a final decision
thus knows that
Page 351 U. S. 436
his time for appeal will not run against him until this
certification has been made. [
Footnote 8]
In the instant case, the District Court made this certification,
but Sears, Roebuck & Co. nevertheless moved to dismiss the
appeal for lack of appellate jurisdiction under § 1291. The grounds
for such a motion ordinarily might be (1) that the judgment of the
District Court was not a decision upon a "claim for relief", (2)
that the decision was not a "final decision" in the sense of an
ultimate disposition of an individual claim entered in the course
of a multiple claims action, or (3) that the District Court abused
its discretion in certifying the order.
In the case before us, there is no doubt that each of the claims
dismissed is a "claim for relief" within the meaning of Rule 54(b),
or that their dismissal constitutes a "final decision" on
individual claims. Also, it cannot well be argued that the claims
stated in Counts I and II are so inherently inseparable from, or
closely related to, those stated in Counts III and IV that the
District Court has abused its discretion in certifying that there
exists no just reason for delay. They certainly
can be
decided independently of each other.
Petitioner contends that amended Rule 54(b) attempts to make an
unauthorized extension of § 1291. We disagree. It could readily be
argued here that the claims stated in Counts I and II are
sufficiently independent of those stated in Counts III and IV to
satisfy the requirements of Rule 54(b) even in its original form.
If that were so, the decision dismissing them would also be
appealable under the amended rule. It is nowhere contended today
that a decision that would have been appealable under the original
rule is not also appealable under the amended rule, provided the
District Court makes the required certification.
Page 351 U. S. 437
While it thus might be possible to hold that, in this case, the
Court of Appeals had jurisdiction under original Rule 54(b), there
at least would be room for argument on the issue of whether the
decided claims were separate and independent from those still
pending in the District Court. [
Footnote 9] Thus, the instant case affords an excellent
illustration of the value of the amended rule which was designed to
overcome that difficulty. Assuming that the requirements of the
original rule are not met in this case, we nevertheless are enabled
to recognize the present appellate jurisdiction of the Court of
Appeals under the amended rule. The District Court cannot, in the
exercise of its discretion, treat as "final" that which is not
"final" within the meaning of § 1291. But the District Court may,
by the exercise of its discretion in the interest of sound judicial
administration, release for appeal final decisions upon one or
more, but less than all, claims in multiple claims actions. The
timing of such a release is, with good reason, vested by the rule
primarily in the discretion of the District Court as the one most
likely to be familiar with the case and with any justifiable
reasons for delay. With equally good reason, any abuse of that
discretion remains reviewable by the Court of Appeals.
Rule 54(b), in its original form, thus may be said to have
modified the single judicial unit practice which had been developed
by court decisions. The validity of that rule is no longer
questioned. In fact, it was applied by this Court in
Reeves v.
Beardall, 316 U. S. 283,
without its validity's being questioned.
Page 351 U. S. 438
Rule 54(b), in its amended form, is a comparable exercise of the
rulemaking authority of this Court. It does not supersede any
statute controlling appellate jurisdiction. It scrupulously
recognizes the statutory requirement of a "final decision" under §
1291 as a basic requirement for an appeal to the Court of Appeals.
It merely administers that requirement in a practical manner in
multiple claims actions, and does so by rule, instead of by
judicial decision. By its negative effect, it operates to restrict
in a valid manner the number of appeals in multiple claims
actions.
We reach a like conclusion as to the validity of the amended
rule where the District Court acts affirmatively, and thus assists
in properly timing the release of final decisions in multiple
claims actions. The amended rule adapts the single judicial unit
theory so that it better meets the current needs of judicial
administration. Just as Rule 54(b), in its original form, resulted
in the release of some decisions on claims in multiple claims
actions before they otherwise would have been released, [
Footnote 10] so amended Rule 54(b)
now makes possible the release of more of such decisions subject to
judicial supervision. The amended rule preserves the historic
federal policy against piecemeal appeals in many cases more
effectively than did the original rule. [
Footnote 11]
Accordingly, the appellate jurisdiction of the Court of Appeals
is sustained, [
Footnote 12]
and its judgment denying the motion to dismiss the appeal for lack
of appellate jurisdiction is
Affirmed.
Page 351 U. S. 439
[
Footnote 1]
For decisions directly or impliedly sustaining the validity of
amended Rule 54(b) as applied in the instant case,
see Rieser
v. Baltimore & O. R. Co., 224 F.2d 198, and cases cited at
203, note 7;
United Artists Corp. v. Masterpiece Productions,
Inc., 221 F.2d 213;
Clarksville v. United States, 198
F.2d 238;
Boston Medical Supply Co. v. Lea & Febiger,
195 F.2d 853;
Bendix Aviation Corp. v. Glass, 195 F.2d
267;
Lopinsky v. Hertz Drive-Ur-Self Systems, Inc., 194
F.2d 422, concurring opinion of Judge Clark at 424-430;
Pabellon v. Grace Line, Inc., 191 F.2d 169.
See 6
Moore's Federal Practice (2d ed. 1953) 220-230, and Note, 62 Yale
L.J. 263.
Contra: see Rieser v. Baltimore & O. R. Co., supra,
concurring opinion of Judge Frank, 224 F.2d at 205-208;
Bendix
Aviation Corp. v. Glass, supra, concurring opinion of Judge
Hastie, 195 F.2d at 277-282;
Pabellon v. Grace Line, Inc.,
supra, concurring opinion of Judge Frank, 191 F.2d at 176-181;
Flegenheimer v. General Mills, Inc., 191 F.2d 237.
See
also Gold Seal Co. v. Weeks, 93 U.S.App.D.C. 249, 209 F.2d
802.
[
Footnote 2]
Sears also contends that the Court of Appeals misconstrued
amended Rule 54(b).
See Flegenheimer v. General Mills, Inc.,
supra. The meaning of that rule is considered hereafter.
[
Footnote 3]
At common law, a writ of error did not lie to review a judgment
that failed to adjudicate every cause of action asserted in the
controversy.
See Holcombe v.
McKusick, 20 How. 552;
United
States v. Girault, 11 How. 22;
Metcalfe's
Case, 11 Co.Rep. 38a, 77 Eng.Rep. 1193. The rule generally
followed in the federal courts was that, in a case involving a
single plaintiff and a single defendant, a judgment was not
appealable if it disposed of some, but less than all, of the claims
presented.
See Collins v. Miller, 252 U.
S. 364;
Sheppy v. Stevens, 200 F. 946. In cases
involving multiple parties where the alleged liability was joint, a
judgment was not appealable unless it terminated the action as to
all the defendants.
See Hohorst v. Hamburg-American Packet
Co., 148 U. S. 262. But
if, in a multiple party case, a judgment finally disposed of a
claim that was recognized to be separate and distinct from the
others, that judgment, under some circumstances, was appealable.
See Republic of China v. American Express Co., 190 F.2d
334.
[
Footnote 4]
The appellate jurisdiction of the United States Courts of
Appeals, with exceptions not directly pertinent here, is still
largely restricted to the review of cases appealed under 28 U.S.C.
§ 1291.
But see 47 U. S.
Conrad, 6 How. 201;
Cohen v. Beneficial Industrial Loan
Corp., 337 U. S. 541; 28
U.S.C. §§ 1292, 1651.
[
Footnote 5]
The Supreme Court's authority to promulgate the Federal Rules of
Civil Procedure is derived from the Enabling Act, now appearing as
28 U.S.C. § 2072. It authorizes this Court to promulgate rules
governing
"the forms of process, writs, pleadings, and motions, and the
practice and procedure of the district courts of the United States
. . . in civil actions."
It provides that such rules "shall not abridge, enlarge or
modify any substantive right. . . ." And, by reason of Article I, §
8, of the Constitution, it has been held repeatedly that only
Congress may define the jurisdiction of the lower federal courts.
See Sibbach v. Wilson & Co., 312 U. S.
1;
Baltimore Contractors, Inc. v. Bodinger,
348 U. S. 176; and
Fed.Rules Civ.Proc., rule 82.
"Such rules shall not take effect until they have been reported
to Congress by the Chief Justice at or after the beginning of a
regular session thereof but not later than the first day of May,
and until the expiration of ninety days after the have been thus
reported."
28 U.S.C. § 2072.
[
Footnote 6]
See Pabellon v. Grace Line, Inc., supra, 191 F.2d at
174.
[
Footnote 7]
". . . situations arose where district courts made a piecemeal
disposition of an action and entered what the parties thought
amounted to a judgment, although a trial remained to be had on
other claims similar or identical with those disposed of. In the
interim, the parties did not know their ultimate rights, and
accordingly took an appeal, thus putting the finality of the
partial judgment in question."
Report of Advisory Committee on Proposed Amendments to Rules of
Civil Procedure 70-71 (June 1946).
[
Footnote 8]
For favorable comment on this aspect of the rule,
see
Dickinson v. Petroleum Conversion Corp., 338 U.
S. 507,
338 U. S.
511-512.
[
Footnote 9]
In the instant case, the claim dismissed by striking out Count I
is based on the Sherman Act, while Counts III and IV do not rely
on, or even refer to, that Act. They are largely predicated on
common law rights. The basis of liability in Count I is independent
of that on which the claims in Counts III and IV depend. But the
claim in Count I does rest in part on some of the facts that are
involved in Counts III and IV. The claim stated in Count II is
clearly independent of those in Counts III and IV.
[
Footnote 10]
See Collins v. Metro-Goldwyn Pictures Corp., 106 F.2d
83, cited in
Reeves v. Beardall, 316 U.
S. 283.
[
Footnote 11]
See Cobbledick v. United States, 309 U.
S. 323.
[
Footnote 12]
Mackey also argues that the Court of Appeals has jurisdiction
under 28 U.S.C. § 1292(1). In view of our disposition of this case,
we do not reach that contention.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN joins,
concurring in No. 34 and dissenting in No. 76.
The result in these two litigations, of course, has significance
for the parties. That is, however, of relative insignificance
compared to the directions which judges in the district courts and
courts of appeals will draw from the Court's opinions. For me, what
is said has not a little kinship with the pronouncements of the
Delphic oracle.
The opinion in
Cold Metal Process Co. v. United Engineering
& Foundry Co., post, p.
351 U. S. 445,
declares that 28 U.S.C. § 1291 remains unimpaired, but surely that
section does not remain what it was before these opinions were
written. Rule 54(b) is apparently the transforming cause. The Court
could have said that Rule 54(b), promulgated under congressional
authority and having the force of statute, has qualified 28 U.S.C.
§ 1291. It does not say so. The Court could have said that it
rejects the reasoning of the decisions in which this Court, for
over a century, has interpreted § 1291 as expressing a hostility
toward piecemeal appeals. It does not say so. The Court could have
said that Rule 54(b)'s requirement of a certificate from a district
judge means that the district judges alone determine the content of
finality. The Court does not say that, either.
The Court does indicate that what has been the core of the
doctrine of finality as applied to multiple claims litigation --
that only that part of a litigation which is separate from, and
independent of, the remainder of the litigation can be appealed
before the completion of the entire litigation -- is no longer to
be applied as a standard, or at least as an exclusive standard, for
deciding what is final for purposes of § 1291. The Court does not,
however, indicate what standards the district courts and the courts
of appeals are now to apply in determining when a decision is
final. It leaves this problem in the first
Page 351 U. S. 440
instance to the district courts, subject to review by the courts
of appeals for an abuse of discretion. In other instances where a
district court's ruling can be upset only for an abuse of its
discretion, the scope of review is necessarily narrow. Here, in
regard to the present problem, what is to come under review is a
newly modified requirement of finality. But the requirement
continues to be based upon a statute,
viz., 28 U.S.C. §
1291, and that statute defines and constricts the jurisdiction of
the courts of appeals. Therefore, the issue of compliance with this
congressional command would, I should suppose, cast upon the courts
of appeals a duty of independent judgment broader than is implied
by the usual flavor of the phrase "abuse of discretion."
For me, the propositions emerging from analysis of the
relationship of Rule 54(b) to 28 U.S.C. § 1291 are clear.
1. 28 U.S.C. § 1291 is left intact by Rule 54(b). It could not
be otherwise with due regard for the congressional policy embodied
in that section and in view of what the Advisory Committee on the
Rules said in its Note to amended Rule 54(b):
"The historic rule in the federal courts has always prohibited
piecemeal disposal of litigation, and permitted appeals only from
final judgments except in those special instances covered by
statute. . . . Rule 54(b) was originally adopted in view of the
wide scope and possible content of the newly created 'civil action'
in order to avoid the possible injustice of a delay in judgment of
a distinctly separate claim to await adjudication of the entire
case. It was not designed to overturn the settled federal rule
stated above. . . ."
"
* * * *"
". . . After extended consideration, it [the Committee]
concluded that a retention of the older federal
Page 351 U. S. 441
rule was desirable, and that this rule needed only the exercise
of a discretionary power to afford a remedy in the infrequent harsh
case to provide a simple, definite, workable rule. This is afforded
by amended Rule 54(b). It reestablishes an ancient policy with
clarity and precision. . . ."
Report of Advisory Committee on Proposed Amendments to Rules of
Civil Procedure 70-72.
2. 28 U.S.C. § 1291 is not a technical rule in a game. It
expresses not only a deeply rooted, but a wisely sanctioned,
principle against piecemeal appeals governing litigation in the
federal courts.
See Cobbledick v. United States,
309 U. S. 323;
Radio Station WOW v. Johnson, 326 U.
S. 120,
326 U. S.
123-127. The great importance of this characteristic
feature of the federal judicial system -- its importance in
administering justice -- is made luminously manifest by considering
the evils where, as in New York, piecemeal reviews are allowed.
3. While the principle against piecemeal appeals has been
compendiously and therefore, at times, loosely phrased as implying
that the whole of a litigation, no matter what its nature, must be
completed before any appeal is allowed,
see Collins v.
Miller, 252 U. S. 364,
252 U. S. 370,
the underlying rationale of the principle has been respected when
not susceptible of this mechanical way of putting it. What have
been called exceptions are not exceptions at all in the sense of
inroads on the principle. They have not qualified the core -- that
is, that there should be no premature, intermediate appeal.
Thus, the Court has permitted appeal before completion of the
whole litigation when failure to do so would preclude any effective
review or would result in irreparable injury.
See Forgay v.
Conrad, 6 How. 201;
Cohen v. Beneficial
Industrial Loan Corp., 337 U. S. 541,
337 U. S.
545-547;
Swift & Co. v. Compania Columbiana Del
Caribe, 339 U. S. 684,
339 U. S.
688-689. A
Page 351 U. S. 442
second situation in which the Court has found that an appeal
before termination of the entire litigation did not conflict with
the congressional policy against piecemeal appeals is that in which
a party to the completed portion of the litigation has no interest
in the rest of the proceedings, and to make him await their outcome
would merely cause unfairness.
See Williams v. Morgan,
111 U. S. 684,
111 U. S. 699;
United States v. River Rouge Imp. Co., 269 U.
S. 411,
269 U. S.
413-414.
4. The expansion by the Federal Rules of the allowable content
of a proceeding and the range of a litigation inevitably enlarged
the occasions for severing one aspect or portion of a litigation
from what remains under the traditional test of a "final decision."
On the basis of prior cases, we held that it was not a departure
from the policy against piecemeal appeals to permit an appeal with
respect to that part of a multiple claims litigation based on a set
of facts separate and independent from the facts on which the
remainder of the litigation was based.
Reeves v. Beardall,
316 U. S. 283. The
Note of the Advisory Committee, quoted
supra, demonstrates
that the amended Rule 54(b) was designed in accordance with the
historic policy against premature appeal and with the decisions of
this Court allowing appeal from a "judgment of a distinctly
separate claim." What the Rule did introduce, however, was a
discretionary power in the district judge to control appealability
by preventing a party from even attempting to appeal a severable
part of a litigation unless the district judge has expressly
certified that there is no just reason for delay and has expressly
directed entry of judgment on that phase of the litigation. This
provision was directed to the kind of difficulty encountered in
Dickinson v. Petroleum Conversion Corp., 338 U.
S. 507, in ascertaining whether the district judge is in
fact finished with a separable part of the litigation.
Page 351 U. S. 443
The Court casually disregards this long history of § 1291 and
the bearing of Rule 54(b) to it by rejecting the "separate and
independent" test as the basis for determining the finality of a
part of a multiple claims litigation. The Court says that its
decision "does not impair the statutory concept of finality
embraced in § 1291." The Court may not do so in words, for it pays
lip-service to § 1291. But that section's function as a brake
against piecemeal appeals in future multiple claims litigation is
greatly impaired. Encouragement is abundantly given to parties to
seek such appeals.
The principles which this Court has heretofore enunciated over a
long course of decisions under § 1291 furnish ready guides for
deciding the appealability of the certified parts of the litigation
in the two cases now before the Court. Count II in
Sears,
Roebuck and Co. v. Mackey is appealable, since the
transactions and occurrences involved in it do not involve any of
those embraced in Counts III and IV. Count I involves at least two
transactions which are also the subject matter of Counts III and
IV, but is appealable under § 1292(1) as an interlocutory order
denying an injunction. In
Cold Metal Process Co. v. United
Engineering & Foundry Co., post, p.
351 U. S. 445, the
counterclaim, even if not compulsory, is based in substantial part
on the transactions involved in the main litigation, and hence not
appealable.
5. Of course, as the Court's opinion appears to recognize, that
crucial principle of the doctrine of finality that the court of
appeals has no jurisdiction unless there is a "final decision"
cannot be left to the district court. It is one thing for a
district court to determine whether it is or is not through with a
portion of a litigation. It is quite another thing for it to
determine whether the requirements of § 1291 are satisfied so as to
give jurisdiction to the court of appeals. A district court can no
more confer
Page 351 U. S. 444
jurisdiction on a court of appeals outside the limits of 28
U.S.C. § 1291 than a state supreme court can confer jurisdiction on
this Court beyond the bounds of 28 U.S.C. § 1257. In a particular
litigation, the opinion of the district judge may properly be
deemed a valuable guide. But flexibility would be a strange name
for authority in the district court to command the court of appeals
to exercise jurisdiction.
6. In summary, then, the Court rightly states, even if it does
not hold, that § 1291 is unimpaired by Rule 54(b). Section 1291 is
what a long course of decision has construed it to be. The unifying
principle of decisions for over a century is observance of
hostility in the federal judicial system to piecemeal appellate
review (with a few strictly defined exceptions not here relevant,
see 28 U.S.C. § 1292) of one litigation, no matter how
many phases or parts there may be to a single judicial proceeding,
so long as no part has become separated from, and independent of,
the others. This rooted principle against piecemeal appeals of an
organic whole -- the core of § 1291 -- is not left unimpaired when
its enforcement is committed without guidance to the individualized
notions about finality of some two hundred and fifty district
judges, themselves accountable to the discordant views of eleven
essentially independent courts of appeals. Allowing such leeway to
the district courts and courts of appeals is not flexibility, but
anarchy.