Appeals - Final Judgment Rule Flashcards
What rules?
54(b)
28 USC sections 1291-1292
What are the steps for appeal?
- Final judgment: Have final judgment by R.58
- Record of notice: File for appeal in trial court within 30 days of entry of final judgment
- Appellate brief/record appendix: Appellant collects appendix and files with opening brief (appellee can supplement within 40 days after record of notice is filed)
- Reply brief: Appellant can file reply brief in 14 days after appellee’s brief is served
- Oral argument: Appellate court may set matter for oral argument
How often is appeal set for oral argument?
Rarely
When does a party have to file notice of appeal in trial court?
Within 30 days of entry of final judgment
When can appellee supplement record appendix?
Within 40 days after record of notice is filed
When can appellate file reply brief?
Within 14 days after appellee’s brief is served
What are the 3 P’s of reviewability?
- Prejudicial
- Preserved below
- Presented above
Prejudicial
Had serious effect on final judgment by R.61
How substantial must effect on final judgment be?
Substantial enough to affect rights of parties
Preserved below
Allows trial court first opportunity to deal with it and gives appellate court fuller record
What are the 4 exceptions to the “preserved below” requirement?
- New rule of law
- Plain error doctrine
- Had no opportunity to raise objection in trial court
- Significant question of general impact or public concern
Presented above
Appealed to appellate court
Do you include all arguments in appeal?
No, only strongest argument(s) that you want appellate court to consider
Can you include new issue in reply brief?
No
If not included in appellate brief, what happened to objections made in trial court?
Waived
What rule does finality principle come from?
28 USC 1291
What does 28 USC 1291 allow?
Appellate court to have jurisdiction to accept all final decisions of federal district courts
Final
- Ends litigation on merits
- Leave nothing left for court to do but execute judgment
When does appellate court lack jurisdiction?
If decision is not final
Purposes of final judgment rule
- Reduces congestion
- Avoids delay/disruption
- Avoids duplication
- Avoids added expense and delay of extra appeals
Finality rule exceptions
- 1291 collateral order doctrine
- 54(b) certification
- 1292(a) injunctive relief
- 1292(b) certified questions
What case is the collateral order doctrine based on?
Cohen
Judicial exception to finality rule
collateral order doctrine/Cohen
Interlocutory ruling
Ruling made during course of pretrial proceeding that does not completely resolve case
Collateral Order Doctrine Elements
- Separability
- Finality
- Urgency
- Importance
Separability
Capable of review without disrupting main trial
Finality
Complete resolution of issue below
Urgency
Right incapable of vindication on final appeal
Importance
Not just issue of fact, important and unsettled as of law
Legislation exception to finality rule
54(b) certification
What does 54(b) certification allow?
Allows court to direct final judgment as to one or more but fewer than all claims or parties
54(b) Certification Requirements
- District judge must have entered a discrete claim for relief and
- Specifically declared there is no reason to delay entry of judgment on that claim
When must a 54(b) certified issue be appealed? If not, what happens
- Within 30 days of certification
- If not, right to appeal is waived
What does 28 USC 1292(a) allow?
Denial of injunctions are immediately appealable
What does 28 USC 1292(b) allow?
Certified questions of law may be reviewed by appellate court
What are the 2-key requirements for discretionary review of certified questions?
- Trial judge must certify question
- Party who wants to appeal must apply to appellate court in 10 days
- Appellate court must accept certification
After trial judge certifies question, when must party apply to appellate court?
Within 10 days of trial judge certification of questions
What are the reasons a trial judge may certify a question?
- Controlling question of law
- Substantial ground for difference of opinion
- Immediately appeal may materially advance resolution of the case
Controlling
Disposition of issue/question would dispose of claim/defense
What are examples where there is substantial ground for difference of opinion?
- First impression
2. Trial judge changed her mind several times on issue
What are examples where immediate appeal may materially advance resolution of case?
- Issue is holding up discovery
2. Issue is likely to recur
