appeals Flashcards
28 usc 1291
The courts of appeals shall have jurisdiction of appeals from all final decisions
of the district courts of the United States
Final Decisions – Terminates the litigation and leaves nothing for the trial court
to do but execute the judgment
* Parties generally cannot appeal nonfinal (interlocutory) orders, unless an
exception applies:
1. Statute or rule allowing appeal as a right;
2. Statute or rule providing for discretionary interlocutory appellate review
3. Common-law based exceptions
4. Extraordinary writs
Statute or rule allowing appeal as a right
8 U.S.C. 1292(a): Preliminary or permeant injunction
* Order granting, continuing, modifying, refusing, or dissolving or
refusing to dissolve injunction (but not TROs)
* Rule 54(b): Partial judgments
* Court may enter judgment as to one or more, but fewer than all claims
or parties
* If the court determines there is no just reason for delay
* Rule 23(f): Order granting or denying class certification
* If noticed within 14 days of the order.
* No automatic stay
discretionary interlocutory appeal
basically trial court sends It up and needs
Involves a controlling question of law;
* Substantial grounds for difference of opinion;
* AND Immediate appeal may materially advance the ultimate
termination of the litigation.
+ A party’s application to an appellate court challenging a non-final trial court order that decides an issue but does not result in final judgment.
common law exception 1; collateral order doctrine
As a general rule, only final judgements are appealable. Nonetheless, as noted in Cohen v. Beneficial Loan Co., some interlocutory decisions act as final judgments to certain rights. Therefore, interlocutory decisions are appealable under the collateral order doctrine if they fulfill three conditions:
The interlocutory decision conclusively determined the disputed question
The disputed question is important and entirely separable from the merits of the action
The interlocutory decision is effectively unappealable after a final judgment is handed dow
cle 2: don’t need to memorize
on final
final orders
Motion to intervene
* Denial of stay on equitable grounds
* Refusal to enforce forum selection clause
* Disclosure of documents over attorney-client privilege objection
* Denial of class certification (but still permitted under Rule 23(f))
* Venue; Supplemental Jurisdiction
* Multidistrict Litigation
Final Orders
* Order on attorney disqualification
* Discovery rulings*
* Contempt
* Press gag orders
* Pragmatic Finality Doctrine (delaying review outweights the
inconvenience and cost of piecemeal review)
extarnditnary writs could be taken interlocutory (not really important)
extraordinary writs
Writs of mandamus (could use when interlocutory doesn’t applY)(reserved for clear errors in which the moving party has no other adequate means to obtain relief.)
* Prohibition
* Certiorari(review)
* Quo warranto(election remedy)
Grounds and scope of an appeal
- A party can raise as many issues as it had in the same appeal (subject to the
Circuit Court’s briefing length limitations) - A party can only challenge adverse rulings on issues challenged on the
record
Standards of Review
Clearly erroneous – findings of fact
* Abuse of discretion – discretionary decisions
* De novo – mixed questions of law or fact & questions of law
denial of final judgment is only appealed unless/\
stay
basically stop enforcement
t does not automatically stay enforcement of the judgment. A party must
move for a stay, and is generally required to post a surety bond called a
supersedeas bond.
appellate practice
panel of judges
The losing party on appeal can petition for a rehearing en banc.
If the request is denied, or there is a rehearing that affirms the panel
decision, then the losing party can petition SCOTUS using a writ of certiorari
SCOTUS is not a court of last resort***, but rather resolves important
constitutional questions or resolves splits in the decisions of the Circuit
Courts
