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A pair of June decisions illustrate a long-abiding split among the circuits-and sometimes within individual circuits-over how much leeway to give litigants who file a notice of appeal prematurely. On June 2, the 8th U.S. Circuit Court of Appeals held that it had no jurisdiction to hear arms dealer C. Frank Miller’s allegation that manufacturer Special Weapons had breached an exclusive distributorship contract. Miller v. Special Weapons LLC, No. 03-3322. Miller had tripped up by filing a notice of appeal after summary judgment against him, but before a Special Weapons counterclaim had been disposed of. Despite the fact that the lower court finalized the trial proceedings (by denying the counterclaim) well before the 8th Circuit took up the case, the three-member panel ruled that 28 U.S.C. 1291, which conditions appellate jurisdiction on the finality of the judgment below, had not been satisfied. On June 16, in a case with a procedural history identical in all relevant respects, the 4th Circuit reaffirmed “the doctrine of cumulative finality,” which it had adhered to since 1992. Roberts v. Goodwill Industries, No. 03-2199. The court wrote, “Although [plaintiff Vickie L. McIver] Roberts’s appeal of the district court’s order denying her motion for appointment of counsel was interlocutory when filed . . . the district court’s entry of judgment prior to our consideration of the appeal confers jurisdiction upon this court.” Internal dissent A 1986 annotation, When Will Premature Notice of Appeal Be Retroactively Validated in Federal Civil Case?, 76 A.L.R. Fed. 199, counted cases from the 2d, 3d, 5th, 6th, 7th, 9th and 11th circuits recognizing a rule of cumulative finality, going back at least as far as 1966. In Miller, the 8th Circuit attempted to distinguish some of those cases, arguing that courts had been motivated by special circumstances such as the presence of a pro se litigant. Even so, the court acknowledged that not all of the contrary rulings could be explained away. But it did not acknowledge what may be a division within its own ranks. A 1975 8th Circuit case, Merchants & Planters Bank v. Smith, 516 F.2d 355, relies on cumulative finality. In fact, the 4th Circuit counted that case as precedent when it adopted the doctrine in 1992. The Miller court wrote, “no Eighth Circuit case of which we are aware has ever adopted this approach.” The 5th Circuit would also seem to be conflicted. A 1973 decision recognized the doctrine, a 1998 decision repudiated it and a 2002 decision, Macklin v. City of New Orleans, 293 F.3d 237 (with citations to the earlier cases), treated it as an open question. The Miller court justified its hard line by asserting, “The final judgment rule is designed to insure that the scarce resources of litigants and the courts are not wasted in interlocutory appeals that impede the flow of litigation.” Courts in favor of the doctrine have a “no harm done” attitude, often noting that a premature notice of appeal causes no prejudice to opposing parties as long as a case comes to resolution before the appellate court has weighed in. Some courts have even given premature filers until after oral argument to close out the lower court proceedings. In the case at hand, Miller could have preserved his appeal by renewing it after all lower court matters had been decided, something he neglected to do, according to court records. Young’s e-mail address is [email protected].

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