The Scope of Appellate Jurisdiction: Pendent Appellate Jurisdiction Before and After Swint

154 Pages Posted: 5 May 2011

See all articles by Joan E. Steinman

Joan E. Steinman

Chicago-Kent College of Law - Illinois Institute of Technology

Date Written: May 3, 2011


Federal courts of appeals usually review district court orders only after the entry of final judgment. There are, however, a number of statutory exceptions to the final judgment rule and judicially crafted doctrines that permit appellate review before final judgment. Whenever litigants take an authorized appeal, one of the questions the court of appeals has to confront is the scope of its jurisdiction. If an appeal is taken from a final judgment, it is well-established that the court’s jurisdiction encompasses all of the lower court rulings that led up to and are “merged” in that judgment. When an appeal is taken before final judgment, the scope of jurisdiction is more controversial. To varying degrees, in each of the several contexts of pre-final judgment appeals, all of the federal courts of appeals have exercised what they call “pendent appellate jurisdiction” to allow review of some trial court rulings that fall outside the narrowly construed literal terms of the statutory and common law authorizations of interlocutory appeals. Nonetheless, in March, 1995, the United States Supreme Court sharply limited the use of pendent appellate jurisdiction, at least in the context of “collateral order” appeals, and potentially in the context of other interlocutory appeals as well.

Section I of this Article defines pendent appellate jurisdiction and discusses Swint v. Chambers County Commission, the 1995 case in which the Court cast doubt upon the propriety of pendent appellate jurisdiction, although indicating in dicta a circumscribed version of the doctrine that might be acceptable. Section II evaluates Swint, comparing its approach to that which the Court has taken to the district courts’ exercise of supplemental subject-matter jurisdiction. It explains why the Court’s opinion in Swint casts doubt upon the exercise of pendent appellate jurisdiction, not only in the context of collateral order appeals, but also when appellate review is available in advance of final judgment under the statutory authority provided in 28 U.S.C. §§ 1292(a) and (b), in § 1651 governing mandamus, and elsewhere. Section II then explains the position in which the Swint approach leaves Congress, the Court as promulgator of federal Rules, and the federal appellate courts as potential elaborators of the doctrine of pendent appellate jurisdiction. In particular, Section II considers whether control of the pendent appellate jurisdiction doctrine properly is within the lower courts’ interpretive and common law-making authority, or whether the existence and scope of pendent appellate jurisdiction are matters that properly lie exclusively with the legislature and with the Supreme Court, as Congress’s delegated Rule maker. The Article takes issue with the Court’s view that pendent appellate jurisdiction (or at least any but a narrowly limited form of such jurisdiction) may exist only if expressly authorized by Congress or by Rule. In doing so, the Article questions the Court’s conclusion that the statutory scheme governing appeals precludes the federal courts from using adjudication to add to the occasions on which they may afford interlocutory review. More importantly and more conservatively, it argues that pendent appellate jurisdiction doctrine constitutes interpretation – of §§ 1291, 1292 and other authorizations of pre-judgment appeals – that establishes the scope of appellate jurisdiction when there is a statutorily authorized interlocutory appeal. The Article argues further that Congress, in conferring rule making authority to provide for appeal of new categories of interlocutory orders constituting new occasions for appeal, did not intend to curtail such interpretation of statutory jurisdictional grants. Thus, pendent appellate jurisdiction should not be threatened even if that rule making authority is construed to preclude pure common law creation of new occasions for immediate appeal of interlocutory orders.

Section III begins and ends with an examination of the Supreme Court’s and the intermediate appellate courts’ decisions (other than Swint) concerning pendent appellate jurisdiction in the context of collateral order appeals. Section III also discusses the law of pendent appellate jurisdiction that has developed in connection with 28 U.S.C. § 1292(a), 28 U.S.C. § 1292(b), mandamus, Federal Rule of Civil Procedure 54(b), interlocutory orders entered after final judgment, and the jurisdiction of the United States Supreme Court.

This survey demonstrates that pendent appellate jurisdiction upon interlocutory appeal has an exceedingly long history, has long been synonymous with determining the scope of jurisdiction that is statutorily or otherwise authorized, has enjoyed widespread use – including use by the Supreme Court – and that the conditions of its exercise are highly consistent across statutory authorizations for interlocutory appeal, mandamus, and the appeal of “collateral orders.” It also shows that both the utility and the pre-Swint acceptance of pendent appellate jurisdiction reached beyond “inextricably intertwined” issues, and beyond what is necessary to ensure meaningful review. The Article considers whether and how differences in the jurisdictional bases of interlocutory appeals bear upon the propriety and scope of exercises of pendent appellate jurisdiction. It argues however that, at a fundamental level, the use of pendent appellate jurisdiction in the context of collateral order appeals should not be distinguished from kindred determinations of the scope of appellate review in other appellate jurisdictional contexts.

Finally, Section IV explains why Rule promulgation would not be the best way to define the circumstances in which pendent appellate jurisdiction may be exercised. Consensus concerning the circumstances under which the courts have power to exercise pendent appellate jurisdiction, and concerning the factors that should guide their exercises of discretion to decide (or not to decide) particular issues on a pendent basis, would be useful, however. Part IV thus sets forth pertinent considerations and proposes both a test for power and a non-exhaustive list of guidelines, standards and factors to govern when federal courts of appeals should review orders pursuant to pendent appellate jurisdiction. The proposal may be viewed as a recommendation as to how the doctrine should be elaborated, to the extent that its contours are left to the courts to define in their adjudicatory capacity. In view of the Supreme Court’s professed view that rule making is the only proper means to define when an interlocutory order is appealable, it also may be viewed as a recommendation as to what the “rules” should be, to the extent that they are left to rule makers to determine.

Keywords: Appellate Jurisdiction, Pendent Appellate Jurisdiction, Swint, Final Judgment Rule

JEL Classification: K10

Suggested Citation

Steinman, Joan E., The Scope of Appellate Jurisdiction: Pendent Appellate Jurisdiction Before and After Swint (May 3, 2011). Hastings Law Journal, Vol. 49, p. 1337, 1998, Available at SSRN:

Joan E. Steinman (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

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