Appeals

Question 1

Appeals

Answer 1

Appellate courts are responsible for reviewing decisions made in the lower court to determine if an error was made, and if so, whether the error justifies reversal of the decision.

An appeal isn’t tantamount to a “retrial.” There is no calling of witnesses or submission of new evidence – rather, the appellate court relies on the “paper record” (the trial transcript and exhibits) from the lower court to determine whether reversal is warranted.

• The limitation of the appellate court to the paper record – with no chance to actually see and hear witnesses – influences the standard of review that is applied to different types of decisions, as noted below.

Procedure in federal appellate courts is governed by the Federal Rules of Appellate Procedure, rather than the FRCP. Like the FRCP, these rules are enacted pursuant to the Rules Enabling Act. In addition to the FRAP, there are statutes (discussed below) governing the circumstances under which cases can be appealed.

Question 2

Appeals from Final Decisions: 28 USC §1291.

Answer 2

This statute provides for the availability of appeal “as a matter of right” from “final decisions” of the district courts.

• “As a matter of right” means that the appellate court has no discretion with respect to whether or not it accepts the case for review. It must accept the case … by may still ultimately deny review on any of the bases mentioned below.
• The term “final decision” is interpreted narrowly. In most circumstances, “final decision” means the final judgment in the action.
• This gives rise to what has been called the “final judgment rule” – under most circumstances, litigants must wait until final judgment in the trial court before they can appeal decisions of the trial judge that were made during the course of the litigation.
• A “final judgment” is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.

Question 3

A narrow exception to the “final judgment rule” – the “collateral order doctrine”.

Answer 3

• The Supreme Court has held that certain mid-litigation decisions that are NOT final judgments can nevertheless be appealed immediately as “final decisions” – without waiting for final judgment in the case – if they are “collateral orders” that meet the following criteria:
• The decision sought to be appealed from is conclusive of the issue presented.
• The decision resolves an issue that is completely separate from the merits.
• The decision resolves an important and unsettled question of controlling law; and
• The decision involves a right that is incapable of vindication on appeal from final judgment.
• In other words, if the party has to wait until final judgment to appeal the decision, relief will no longer be possible.
• Example:Nixon v Fitzgerald – President Nixon was allowed to immediately appeal an order denying his motion to dismiss on grounds of absolute immunity, because immunity is supposed to protect you from having to go through the litigation, not just from the verdict.

Question 4

Another exception to the “final judgment rule”: FRCP 54(b) ​

Answer 4

• Allows the trial court to “direct entry of final judgment as to one or more but fewer than all, claims or parties … if the court expressly determines that there is no just cause for delay.”
• Example:Summary judgment is granted to the defendant as to only one plaintiff’s claims (P1), in a case with multiple plaintiffs. P1 is therefore dismissed from the lawsuit. The case will go on as to the other plaintiffs and the defendant, but there is no logical reason to deny P1 the opportunity to immediately appeal the dismissal of his claims. The trial court judge’s decision is certainly final as to him.
• Courts interpret 54(b) to apply only to trial court decisions that, standing alone, would have satisfied the finality requirement – where there is no logical reason to make the party wait to appeal because the dismissed claims are separate and distinct from the rest of the case.

Question 5

Interlocutory Appeals: 28 USC §1292

Answer 5

• An “interlocutory order” is an order or decision that is not final – i.e., it does not dispose of the litigation, does not satisfy the requirements of the collateral order doctrine or FRCP 54(b), and occurs before final judgment.
• Examples: Discovery orders, orders denying summary judgment or motions to dismiss, evidentiary rulings.

The statute has two sections addressing the appealability of such orders prior to final judgment:

• §1292(a): Interlocutory orders concerning injunctions, receivership, and admiralty are appealable as a matter of right, not as a matter of discretion. This section is construed narrowly.
• §1292(b): Interlocutory orders not falling under 1292(a) are immediately appealable IF AND ONLY IF:
  1. The district court certifies the decision or order for appeal. The district court may do so if it has determined that:
• The order involves a controlling question of law as to which there is substantial ground for difference of opinion; and
• “Controlling question” means one that is important to the ultimate resolution of the case.
• Immediate appeal from the order may materially advance the ultimate termination of the litigation.
  1. Upon certification for appeal by the District Court, the Court of Appeals has the discretion to permit the appeal to be taken – not required to permit it.
• Interlocutory certification is used sparingly and only in exceptional circumstances, where the appeal presents one or more difficult and pivotal questions of law not settled by controlling authority.
• Relatively few case are certified by district judges, and fewer than half of those are accepted by the Courts of Appeals.

Question 6

Mandamus

Answer 6

• Mandamus is not technically an appeal at all, but an independent proceeding against the district court judge to require him to do his duty.
• A person seeking writ of mandamus must allege that the district court judge has either abused his discretion or refused to do his duty.
• It is to be invoked in only extraordinary situations.
• The petitioner must show that trial court’s decision created a risk of irreparable harm for which there is no other adequate remedy.
• Mandamus is not issued to correct ordinary errors – the petitioner must show that the district court decision was clearly beyond the judge’s discretion or jurisdiction.
• May also be issued to guide the lower courts on a recurring and important question of case management – an “advisory” or “supervisory” mandamus.
• Examples – A writ of mandamus may be issued:
• Where trial judge has denied a jury trial.
• Where judge ordered disclosure of privileged information.
• Where judge refused to recuse herself on nonfrivolous grounds of conflict or bias.

Question 7

“three Ps” necessary for appellate review – for an error of the trial court to be reviewable on appeal, it must ordinarily have been prejudicial, preserved below, and presented above.

Prejudicial:

Answer 7

• Prejudicial: The mere fact that the trial court committed an error does NOT mean that the appellate court will reverse the trial court’s decision.
• The error must have resulted in HARM to the appellant. The appealing party must have been aggrieved by the erroneous decision. This is referred to as the “harmless error” rule.
• 28 USC 2111: Forbids federal courts from reversing for errors or defects that do not affect the substantial rights of the parties.
• “[T]he court shall give judgment … without regard to errors or defects which do not affect the substantial rights of the parties.”*
• A variation on “harmless error” rule is the doctrine of mootness.
• Can’t appeal from a judgment when circumstances have changed in such a way that relief is no longer possible.
• Example: Student was denied admission to university. He filed suit alleging race discrimination and seeking specific relief (i.e., wants court to order university to admit). Student loses the lawsuit – court enters judgment in university’s favor. Student plans to appeal, but just prior to appealing, the university admits Student upon the Student’s reapplication. Even though the judgment in Student’s lawsuit is appealable under 28 USC 1291 as a final judgment, the appellate court will decline to hear the case because the judgment is moot, since Student has now obtained the relief he was seeking.
• Exception to the mootness doctrine: “Capable of repetition, yet evading review.” Roe v. Wade

Question 8

Preserved Below: The Doctrine of Waiver

Answer 8

• Under most circumstances, for an issue to be appealable, it must first have been raised in the trial court. The litigant seeking appeal must have asserted a timely objection to the ruling at the trial court level.
• This goes to judicial economy – a party must give the trial court a chance to fix its error before taking it to the appellate court.
• With limited exception, an appellant cannot make an argument on appeal that was not made in the court below. Same applies to cross-appeals.
• Exceptions – all narrowly interpreted. The appellate court may accept an appeal of an issue not raised below if:
• The issue involves a pure question of law and if refusal to hear it would result in a miscarriage of justice.
• Example – where a change in the law creates a basis for appeal that did not exist when the issue arose in the trial court.
• The appellant had no opportunity to raise objection below.
• The issue presents a question of general impact or great public concern, or where proper resolution of the issue is beyond any doubt.
• “Plain error doctrine”: The appellate court may hear an appeal of an issue not raised below where the alleged error seriously affected the fairness or integrity of judicial proceedings in the trial court.
• Example: Appellant (who was the losing defendant below) argues that the lawyer for plaintiff repeatedly (and without objection from defendant) used racial slurs and stereotypes in reference to the defendant, thereby prejudicing the jury.
• Note: Although the LITIGANT must assert an argument below in order to have the right to make the argument in the appellate court, nothing prevents the APPELLATE COURT from deciding an issue based on a rationale NOT raised below.

Question 9

Presented above:

Answer 9

To have an issue considered on appeal, one must preserve it in a notice of appeal AND address it in one’s brief on appeal.

Question 10

Standards of review on appeal:

Answer 10

Appellate courts employ different standards of review depending on the nature of the issue before them to decide. These standards of review are listed below, in order from the least deferential to the trial court decision, to the most deferential.

1. De novo (“plenary” or “independent”) standard:
   * When applying this standard, the appellate court gives NO deference to the trial court in reviewing that court’s decision. It reviews the issue anew, using its independent judgment.
   * This standard of review is applied to pure questions of law. It is also applied to “mixed Qs of law and fact” – where the facts and the law are undisputed, but it is uncertain what the outcome should be when the undisputed law is applied to the undisputed facts.
2. Clearly erroneous standard (defined in FRCP 52(a) )
   * Per FRCP 52(a), findings of fact by the judge (as made during a bench trial), whether based on oral or documentary evidence, may be overturned on appeal only if it is clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.
   * “A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”
   * If district court’s decision is plausible in light of the evidence viewed in its entirety, the appellate court cannot reverse. Where there are two permissible views of the evidence, district court’s choice between them cannot be clearly erroneous.
3. Abuse of discretion standard:
   * District court will be reversed only if the appellate court concludes that it has made either an error of law or a clear error of judgment.
   * This is a highly deferential standard of review, giving due regard to trial court’s closeness to the case.
   * This standard applies to decisions of the district court directed to the management of the litigation before it – where the exercise of judgment is very fact-specific to the case.
   * Example – discovery decisions, evidentiary rulings, decisions regarding sanctions, joinder decisions, decisions to bifurcate case and have separate trials.
4. Substantial evidence standard:
   * This is the most deferential standard, and applies to findings of fact by the jury.
   * Factual finding cannot be overturned on appeal unless no rational fact-finder could have reached the same decision.
   * Under this standard, the appellate court cannot re-weigh the evidence. The court must assess the evidence in a light most favorable to the jury’s findings.