Civil Rule 54(b): Seventy-Five and Ready for Retirement

Abstract:     
As we commemorate the diamond anniversary of the Federal Rules of Civil Procedure, this article takes a critical look at one of the failed rules: Rule 54(b). Although many commentators have noted difficulties with Rule 54(b), this is the first to describe them comprehensively, analyze their root causes, and offer a workable alternative.

When an order resolves a discrete claim in a multi-claim action, Rule 54(b) permits a district court to sever the order for immediate appeal by finding “no just reason for delay.” The rule was designed to ease the hardship on litigants who would otherwise have to await the conclusion of the entire case to appeal an adverse ruling.

But the rule has spawned seventy-five years of chaos. Courts struggle to evaluate whether an order fully adjudicates a discrete and severable claim. They struggle to evaluate what “no just reason for delay” really means. At the heart of the problem lies a power clash; Rule 54(b) puts the district court in charge of deciding when an appellate court is required to hear an appeal. Not surprisingly, appellate courts often resist. And they often question Rule 54(b) certifications only after full briefing and oral argument.

It is time to end the struggle. And a better solution exists. This article advocates the repeal of Rule 54(b) and, in its place, a resort to a discretionary-appeal system to permit trial courts to certify certain orders for immediate appeal and to permit appellate courts to decide whether to hear them.

Number of Pages in PDF File: 58

Keywords: FRCP, Federal Rules of Civil Procedure, federal courts, Rule 54, multi-claim litigation, multi-party litigation, interlocutory appeals, appellate jurisdiction

JEL Classification: K41, K40

working papers series