Firstier Mortgage Company v. Investors Mortgage Insurance Company/Concurrence Kennedy

Justice KENNEDY, concurring.

I concur in the Court's opinion. The Court determines that the announcement by the trial court, though not necessarily a final decision within the meaning of 28 U.S.C. § 1291, had sufficient attributes of finality to be a "decision" under the saving provision of Rule 4(a)(2) of the Federal Rules of Appellate Procedure. It is appropriate to talk in terms of finality in the case before us because "the bench ruling did announce a decision purporting to dispose of all of FirsTier's claims." Ante, at 277. I would add, however, that the saving provision of Rule 4(a)(2) applies as well to the announcement of an "order," and that some orders are appealable even though they do not possess attributes of finality. See 28 U.S.C. § 1292(a). In such cases, operation of the saving provision would not be controlled by whether or not the trial court's announcement was in the nature of a final judgment.