When Is an Interlocutory Order a Judgment?

In Ueckert v. Guerra, the Fifth Circuit held that an appeal from the denial of qualified immunity was untimely, as it came 412 days after the district court’s bench ruling. In the course of doing so, the court explained that the defendant had 180 days to appeal this denial. That’s because the district court never set out its denial of immunity in a separate document. That denial was appealable and thus a judgment under Federal Rule of Civil Procedure 54(a). And most judgments must be set out in a separate document before the appeal clock begins running. Otherwise, the appeal clock begins running 150 days after the judgment. That’s what happened in Ueckert—the appeal clock began running 150 days after the immunity denial, at which point the defendant had 30 days to appeal.

As Ueckert explains, many (if not most) appealable interlocutory orders are not set out in a separate document. So treating appealable interlocutory orders as judgments gives litigants an immense—and, in the Fifth Circuit’s view, unreasonable—time to appeal interlocutory orders. The Rules Committee is aware of this problem. Yet it apparently hopes that courts will overlook it. The Fifth Circuit refused to do so. That means district courts can prevent these extended appeal windows only via “time-wasting paper-pushing, entering separate ‘judgments’ containing their holdings on every interlocutory motion that might be susceptible to appeal.” The Fifth Circuit accordingly called for the Rules Committee to take a look at the time for appealing interlocutory orders.

The Ueckert Litigation

Ueckert was a civil-rights action. The plaintiff alleged that he was fired from his city engineering job for refusing to falsely certify to the truth of some documents. At summary judgment, one of the plaintiff’s supervisors sought qualified immunity. The district court denied that motion from the bench, and a minute entry on the docket reflected that oral decision. But no written document memorializing the decision was ever entered on the docket.

Fast forward over a year. The judge notified the parties that jury selection would begin in several months. Within 30 days of that notice, the supervisor filed a notice of appeal.

The Untimely Appeal

The Fifth Circuit dismissed the appeal as untimely. Federal Rule of Appellate Procedure 4(a)(1) says that the appeal clock starts with the “entry of the judgment or order appealed from.” Rule 4(a)(7) then adds that for most judgments and orders, entry occurs when either the judgment or order is set forth on a separate document or 150 days run from the judgment or order, whichever comes first. So when it comes to appealable interlocutory orders, the appeal clock begins either with the entry of the order in a separate document or 150 days after the district court’s decision.

In Ueckert, the denial of qualified immunity was immediately appealable. But the district court never entered a separate document setting out the immunity denial. The time to appeal accordingly began running 150 days after the denial, and the supervisor had 30 days to appeal after that time. The appeal—which came 412 days after the immunity denial—was thus late.

The Definition of a Judgment

The Fifth Circuit went on to discuss the awkward way that the procedural rules treat appealable interlocutory orders.

The rules are written with an eye towards conventional final judgments—orders that mark the end of district court proceedings. Entry of that judgment on the docket is an important point, as several important deadlines—including the appeal deadline—are calculated from that time. Federal Rule of Civil Procedure 58(c) accordingly specifies when a judgment is deemed entered. In most cases, the judgment is entered either when the district court sets out the judgment in a separate document or 150 days after the judgment, whichever comes first.

District courts are pretty good about setting out final judgments in separate documents. So the appeal clock normally begins when everybody expects. But these rules don’t apply only to final judgments. They apply to judgments generally. And Federal Rule of Civil Procedure 54(a) defines a judgment (as used in the civil rules) to include “any order from which an appeal lies.” That means Rule 58’s separate-document and order-entry requirements apply to appealable interlocutory orders. Rule 4(a) reflects this treatment, with its provisions on the appeal clock mirroring Rule 58(c)’s provisions on the entry of a judgment.

Ueckert illustrates the consequences of treating appealable interlocutory orders as “judgments.” Most interlocutory orders are not set out in a separate document. So for most appealable interlocutory orders, the appeal deadline starts 150 days after the order. That gives litigants 180 days to appeal most interlocutory orders.

This extended appeal period, the Fifth Circuit said, is far too long. And it’s not intentional; the rulemakers apparently hoped that the courts would “pragmatic[ally] disregard” Rule 58 when it comes to appealable interlocutory orders. But courts haven’t done so. And under the current rules, the only way to avoid a long appeal window is for district courts to “engage[] in time-wasting paper-pushing, entering separate ‘judgments’ containing their holdings on every interlocutory motion that might be susceptible to appeal.” The Fifth Circuit ended the opinion with a suggestion that rulemakers take a second look at these rules.

Ueckert v. Guerra, 2022 WL 2300431 (5th Cir. June 27, 2022), available at the Fifth Circuit and Westlaw.