Appeals and Review Flashcards
An interlocutory order is
an order that is provisional, interim, temporary, or non-final (e.g., TROs). Also includes grants of partial summary judgment.
Although most interlocutory orders are NOT immediately appealable, certain equitable orders are immediately reviewable as a matter of right, including:
An order granting, modifying, refusing, or dissolving an injunction (applies to both permanent and temporary injunctions); COMMONLY TESTED
An order appointing or refusing to appoint a receiver;
AND
A decree determining the rights and liabilities of the parties to admiralty cases
in which appeals from final decrees are allowed.
*Also, look for dist court to say “no just reason for delay”, then can appeal
The doctrine of collateral order allows
a party to appea rulings if the ruling decides a claim or issue:
That is separable from and collateral to the merits of the case;
Involves a serious and unsettled legal question;
AND
Would be effectively unreviewable if the court waited until final judgment to hear the claim or issue.
Note: if able to appeal in this circumstance, must do so WITHIN 10 DAYS AFTER ENTRY OF THE ORDER BEING APPEALED.
Rationale: the idea is that some orders are “offshoots” on the main litigation, but for practical reasons we allow an immediate appeal from that collateral order even though no final judgment has been rendered in the rest of the case.
When are you most likely to see the collateral order doctrine?
GRANTS AND DENIALS OF IMMUNITY, esp when D asserting governmental immunity
where the defendant asserts a claim of immunity (and the claim is that D is not only immune from liability but immune from even having to stand trial). If the claim of immunity is granted, there is no need for the collateral order doctrine, since an appealable final judgment ending the action will be entered anyway. But if the court denies the claim of immunity, that denial order is generally treated as the type of collateral order from which an immediate appeal is allowed — otherwise, D will have to stand trial, negating a major purpose of the immunity.
Most commonly, you’ll see the immunity issue where a government official asserts a claim of “governmental immunity,” and attempts to make an immediate appeal when the court rules that the immunity doesn’t apply.
Example: P is arrested by D, a police officer, but the arrest is eventually ruled invalid. P brings a federal suit against D for civil damages based on a federal statute allowing suit against one who violates another’s constitutional rights “under color of law.” D asserts that under the federal case law, she is entitled to qualified immunity for the arrest here; if the immunity applies, both parties agree that D would not have to stand trial, and the case will be dismissed on summary judgment. The court rules that under the particular circumstances here, D is not eligible for the qualified immunity. D may take an immediate appeal of this ruling, even though no final judgment has been rendered in the case.
Under mandamus review, a court of appeals can
immediately review an order that is an abuse of judicial authority (e.g., orders beyond the trial court’s jurisdiction, orders that violate a mandatory duty of the trial court, etc.).
Does mandamus review extend to all orders that constitute an error of law?
No, mandamus review does NOT extend to all orders that constitute an error of law. Just when there is an abuse of judicial authority.
An order granting partial summary judgment is
not final, and thus it is not appealable.
If district court has issued order with express determination that it preasented “no just reason for delay,” then may appeal, but otherwise, must be FINAL for appellate court to have juris to appeal.
If other party seeking discovery of A-C privileged material, and court compels discovery, what is best strategy to secure immediate appellate review of the order compelling discovery?
Refuse to comply with the disclosure order, face contempt sanctions, and then seek appeal of that order
Supreme court has recognized this as means of review for consequential A-C privilege rulings.
A-C rulings are not eligible for collateral order doctrine (which is applied when order is too important to be denied review and too independent of the cause itself to force delay of appeal)
Alternatively, can try to convince trial judge that the order may materially advance the ultimate termination of the litigation, but this is not an appeal as of right, and will be a high bar to cross. Also, must do this alternative within 10 days of the entry of the contested order.
What can district court put in their order that may give Jx to ct of appeals to go ahead and hear an otherwise non-appealable order?
a statement that the order involves a “controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation,”
OR
“no just reason for delay”
in these situations, if appealed WITHIN 10 DAYS of order, appeals ct can use its discretion to hear the appeal.
Time limit for renewed JMOL
28 days after judgment entered on jury’s verdict (must have also done JMOL before case went to the jury)
Final Judgment Rule
Unless the case fits within one of the special
“interlocutory appeal allowed” scenarios above, no appeal may be taken except from a “final decision” by the district court. This
principle is known as the “final judgment rule.”
As to final judgment Rule, usually obvious but watch out for multi-claim or multi-party scenarios: the case involves multiple parties and/or multiple claims, and fewer than all of the claim/party combinations have been finally determined. Appealability in this type of situation is governed by FRCP 54(b), which provides more-or-less as follows:
“Default rule”: The “default rule” is that any order or decision by the court that adjudicates fewer than all of the claims by and against all of the parties is not deemed final. So if the judge disposes of fewer than all the claims as to fewer than all the parties, and makes no special determination about appealability, no part of the case may be appealed yet.
○ Judge’s power to specify otherwise: However, Rule 54(b) gives the trial court discretion to “direct entry of a final judgment” on fewer than all of the claims and/or parties in the case, so long as the court “expressly determines that there is no reason for delay.” If the court goes through this two-step process, then that partial judgment (i.e., the final judgment as to that particular combination of claims and/or parties) is immediately appealable even though the rest of the case remains pending before the trial court.
Example: P joins two doctors who treated her, D1 and D2, as co-defendants in a federal diversity suit, making a separate malpractice claim against each. After discovery, D1 and D2 make separate motions for summary judgment. The trial judge grants summary judgment in favor of D1, but denies summary judgment as to the claim against D2. If the judge’s order(s) and decision(s) are silent about appealability, the above “default r u le ” a p p lie s , s o t h a t a s lo n g a s t h e P - v s . - D 2 r e m a in s unresolved, P cannot appeal the grant of summary judgment in favor of D1, and D2 cannot appeal the denial of summary judgment as to the claim against him.
But now, suppose that the trial judge concludes that there is no good reason to prevent P from taking an immediate appeal of the grant of summary judgment in favor of D1 while the claim against D2 awaits trial. If the judge not only directs the entry of “final judgment” in favor of D1, but “expressly determines” (e.g., in a written decision) that there is no reason to make P wait to appeal this final judgment, P may take an immediate appeal as to that judgment.
If the issue is an issue of law (including an issue of how to apply the law to particular facts), the appellate court will conduct a review under what standard?
“de novo review.” That is, the appeals court will analyze the issue from scratch, without giving any deference to the trial court’s analysis.
SUMMARY JUDGMENT = QUESTION OF LAW
Example: In a medical malpractice case based on diversity, the trial judge grants D’s motion for summary judgment after discovery; the judge so rules after concluding that P has failed to show, through affidavits, deposition transcripts, or documents, evidence that would be sufficient to allow a reasonable jury to find that D was negligent in treating P. P appeals the grant of summary judgment.
The Court of Appeals will conduct a “de novo” review of all evidentiary items that the trial judge had before her when she granted the summary judgment and of the trial judge’s reasoning regarding the legal sufficiency of that evidence. Because the availability of summary judgment is essentially a question of law — to be decided “on the papers,” after making all reasonable inferences in favor of the non-movant — the appeals court is in as good a position to analyze that question as the trial court was, so there is no need for the appeals court to give meaningful deference to the trial court’s analysis.
What standard is used for judicial findings of fact (nonjury trial)?
“Findings of fact, whether based on oral or other evidence (e.g., documentary evidence), must not be set aside UNLESS CLEARLY ERRONEOUS, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.”
Example: After a bench trial on P’s diversity claim against D for medical malpractice, the trial judge makes various factual f in d in gs , in c lu d in g t h a t D ‘ s t r e a t m e n t o f P ‘ s c o n d it io n conformed to reasonable medical standards. Based on these findings, the judge renders a verdict in favor of D. P appeals, asserting that the trial court’s finding of no negligence is against the clear weight of the evidence.
The appeals court will not reverse this no-negligence finding unless the court is convinced that the finding is “clearly erroneous.” So even if the appeals judges believe that they would probably have decided the case differently had they tried the case, that fact will not be enough to cause them to reverse. As the concept is often put, the reviewing court will not reverse unless, after it reviews the entirety of the evidence, the court “is left with the definite and firm conclusion that a mistake has been committed.”
Standard of review for decisions entrusted to the trial court’s discretion
ABUSE OF DISCRETION
will basically have to be an IRRATIONAL decision
Certain decisions are committed to the trial court’s “discretion.” The appeals court will not reverse such discretionary decisions unless the court believes that the trial court has “abused” its discretion. Of the three standards of review that we’re examining here, this “abuse of discretion” is the least favorable to the appellant, and the one that gives the greatest deference to the trial court. Only if the reviewing court believes that the decision was essentially IRRATIONAL will the court find an abuse of discretion. The abuse-of-discretion standard is generally used, for instance, for reviewing the trial court’s decisions on whether to admit evidence, in those situations in which the relevant rule of evidence puts the admissibility issue within the trial court’s discretion.
Example: In a federal case tried before a jury, W, a key witness testifying on behalf of D, gives testimony favorable to D’s position. P’s lawyer seeks to impeach W’s credibility by asking W on cross, “Isn’t it true that 10 years ago, you pled guilty to filing a false tax return?” (This is in fact true.) Assume that under the relevant Federal Rule of Evidence provision, the trial judge has discretion to exclude this type of impeachment evidence if the judge believes that the probative value of the evidence is substantially outweighed by the likelihood that it will cause unfair prejudice. The trial judge sustains D’s lawyer’s objection on this ground, so that P is unable to impeach W by use of the conviction. P loses, and claims on appeal that the evidentiary ruling was error. Since the relevant rule of evidence placed the decision on admissibility within the trial judge’s discretion, the appeals court will review the ruling under the abuse-of-discretion standard. So unless the appeals court believes that the decision was irrational (a very unlikely conclusion, given the age of the evidence and its limited probative value here), the court will not find error.
