Appellate Review Flashcards
Chapter 14
What is appellate review?
Consider how the availability of appellat review affects other aspects of the judicial proceeding, such as discovery, case management, and sanctions.
What are the two types of appellate review?
- Final Judgment Reviews: where the case goes all the way and the final judgment is reviewed
- Interlocutory Appeal: A decision, in the middle of the case, gets reviewed, and then sent back to the court to continue
What is the principle of finality?
“Final Judgment Rule”: Appeals may only be taken from a “final decision” of the district court
What is the final decisions of district courts?
28 U.S.C. § 1291
The courts of appeals have jurisdiction over appeals from all final decisions of the district courts . . . except where a direct review may be had in the Supreme Court
The final judgment is what marks the end of the case in the trial court
What are interlocutory decisions?
28 U.S.C. §1292
Explains that the Court of Appeals have jurisdiction over certain interlocutory decisons: (1) interlocutory orders of the district courts; (2) interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes; and (3) interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed
What happens if the district court makes an order not appealable?
28 U.S.C. § 1292(b)
If such order involves a controlling question of law where there is substantial ground for difference of opinion, the court shall state that this order is immediately appealable, and the Court of Appeal, in their discretion, can take the appeals case
What is the New York Approach?
N.Y.C. P.L.R. 5701
New York allows appeals, on every decision the court makes, to the state’s intermediate appellate court, even when no final judgment has been made.
What is a judgment on multiple claims or involving multiple parties?
FRCP 54(b)
When more than one claim for relief is presented, the court may direct entry of final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for the delay
Otherwise, any order that adjudicates less than all the claims, does not end the action and may be revised at any time before the entry of judgment
What is Judgment on Multiple claims or involving multiple parties essentially saying?
FRCP 54(b)
Rule 54(b) provides a means to permit an appeal from one or more final decisions on individual claims, without waiting for final decisions to be rendered on ALL claims in the case
Claims that were dismissed is a “final judgment.”
When is there an exception to an appeal?
Appeal gives the power of review and as long as the matter remains open, unfinished, or inconclusive, there may be no intrusion by appeal
A collateral order was a final decision on the security bond. (Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541)
Is a discovery order compelling a defendant to disclose info immediately appealable?
Mohawk Industries v. Carpenter, 558 U.S. 100
Discovery order compelling a defendant to disclose info it claimed was attorney-client privilege did not qualify for immediate appeal under the collateral order doctrine as the litigants could be sufficiently protected by post-judgment appeal
Decisions Involving “Collateral Orders”
Can a denial of class certification be appealable?
FRCP 23(f)
A court of appeas may permit an appeal from an order granting or denying class action certification under this rule, but not from an order under Rule 23(e)(1).
What is the appealability over divesture situations?
Brown Shoe Co. v. United States, 370 U.S. 294
District court directed defendant in violation of antitrust laws to divestiture of its subsidiary but reserved its ruling on a specific plan to divestiture. The Supreme Court ruled the divestiture decree was sufficiently final even without the plan being yet formuated . . . because if appealed and overturned, the divestiture could be hard to undo
Is a denial of protective order immediately appealable?
United States v. Copar Pumice Co., Inc. 714 F.3d 1197
Defendants sought to appeal the denial of a protective order for documents from law firms that had provided legal advice about mining. The Tenth Circuit held that an interlocutory appeal was not available under the collateral order doctrine. Overall the discovery decision was not immediately appeallable .
Decisions Based on “Pragmatic Finality”
What are essentially the exceptions to the Final Rule?
There needs to be a final rule before an appeal, however, there are exceptions: (1) Collateral orders; (2) pragmatic finality; and (3) mandamus
Apart from collateral order appeals, what are some avenues that a litigant has for appeals?
(1) The party could ask the district court to certify an appeal under 28 U.S.C. § 1292;
(2) the party could petition the court of appeals for a writ of mandamus;
(3) Under pragmatic doctrine, a court may assume jurisdiction where the danger of injustice by delaying appellate review outweighs the inconvenience and costs of piecemeal review
What is a mandamus?
28 U.S.C. § 1651(a)
The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law
What is the rule on Physical and Mental Examinations?
FRCP 35(a)
A litigant must ask the court for approval before asking an opposing party to submit to a mental and physical examination
This writ is not supposed to be used as a substitute for appeal but is appropriately used when there is “usuprtion of judicial power” or a clear abuse of discretion
What are many of the Supreme Court’s decisions regarding mandamus concerning?
Many of the Supreme Court’s decisions regarding mandamus concern discovery disputes
What is the Supreme Court’s three-part test for issuance of the writ of mandamus?
(1) There must be “no other adequate means” to attach relief sought;
(2) the movant bears the burden of showing that the right to relief is “clear and indisputable”; and
(3) The issuing court in its discretion “must be satisfied that the writ is appropriate under the circumstances
Mandamus relief is used sparingly
What is a discretonary appeal?
28 U.S.C. § 1292(b)
A district court will grant an order for certification to appeal; then the Court of Appeal will decide to take it or not
The court will consider factors to determine whether there is “no just reason for delay” for the issuance of a Federal Rule 54(b) certificate
What rules can the Supreme Court prescribe in accordance with § 2072?
28 U.S.C. § 1292(e)
The Supreme Court may prescribe rules in accordance with §2072 of this title, to provide for an appeal of an interlocutory decision to the courts of appeals that is not otherwise provided
The Court has only used this once
What is the precedent to the limitations on certifications?
28 U.S.C §1292(b)
This rule is limited to the order certified by the district court, it “is not tied to the particular question formulated by the district court.” The appellate court may address any issues fairly included within the certified order because it is the order and not the controlling question that is appelable
What are the allowances on issuances of injunctions?
28 U.S.C. §1292(a)(1)
Interlocutory orders of the district courts . . . or the judges thereof, granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court
What are the allowances with Preliminary injunctions?
FRCP 65(a)
This has an immediate effect; must have hearing quickly but can also be immediately appealable
Before case has been decided prelim injunctions can be ordered
Can a defendant obtain immediate relief from an injunction?
Smith v. Vulcan Iron Works, 165 U.S. 518
A defendant can obtain immediate relief from an injunction, and save both parties from the expense of further litigation, should the appellate court rule that the plainitff was not entitled to an injunction
What is the Rule for Entering Judgment?
FRCP 58
Describes how the trial court needs to enter judgment; every judgment and amended judgment must be set out in a separate document, but a seperate document is not required for an order disposing of a motion.
58(b) states how the court can enter judgment
Needs to be entered before it can be appealed. This rule was amended to clarify when a judgment is considered entered and thus the time for appeal begins to run
What is an Appeal as of Right-How Taken?
Federal Rules of Appellate Procedure 3
An appeal may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4
The steps the party has to do to file an appeal; must furnish the clerk with enough copies
What is an Appeal in a Civil Case?
Federal Rules of Appellate Procedure 4
The notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from
When appeals may be taken
What is an Appeal by Permission?
Federal Rules of Appellate Procedure 5
To request permission when an appeal is within the court of appeals’ discretion, a court party must file a petition within the circuit clerk and serve it on all other parties to the district court actions
Court of Appeals grants permission
Under the appellate rule, what must a notice of appeal include?
The notice of appeal must include notice, and must include all named parties in the case
When can a notice of appeal come from a nonfinal decision?
FRCP 4(a)(2)
Rule 4(a)(2) permits a notice of appeal from a nonfinal decision to operate as a notice of appeal from the final judgment only when a district court announces a decision that would be appealable if immediately followed by the entry of judgment
Does not permit a premature notice of appeal from a “clearly interlocutory decision-such as a discovery ruling or a sanction order under Rule 11”
What was amended to allow an appeal?
Rule 4(a)(4)
Rules 4(a)(4) was amended to allow an appeal to be entered and finality to be determined before any status of attorney’s fee provision is determined
Budjnich v. Becton Dickinson & Co., 486 U.S. 196
When can an extended filing period for an appeal occur?
Appellate Rule 4(a)(5)
This rule permits the district court to extend the filing period upon finding of excusable neglect or good cause. There are four factors: (1) the party’s good faith; (2) the absence of any danger of prejudice to the opposing party; (3) the length of the filing delay and its effect on the proceeding; and (4) the reason for the delay
The Supreme Court found that the grant of extension of time is limited by the time periods set out in statute
What are the well-defined limits on the scope of appellate review?
(1) the alleged errors must appear in the trial court record;
(2) an aggrieved party must have objected promptly to the trial court regarding rulings or events that the judge could have corrected or ameliorated;
(3) it must not constitute a “harmless error” because it must have affected substantial rights (See Federal Rule 61);
(4) an alleged error must be presented to the appellate court in appellant’s brief and the relevant portions of the trial court record must be brought to the appellate court’s attention; and
(5) even when the issues have been preserved properly in the trial court and presented to the appellate court for reivew, an appellate court generally will not entertain an appeal by the party who, at least ostensibly, won below
What are the Findings and Conclusions by the Court; Judgement on Partial Findings?
FRCP 52
In actions tried on the facts without a jury or with an advisory jury, the court must find the facts specially and state its conclusions of law seperately. The findings and conclusions may be stated on the record after the close of evidence
FIndings “whether basedon oral or other evidence,” are not to be set aside unless they are found by the reviewing court to be clearly erroenous
What occurs in a New Trial, Altering, or Amending a Judgment?
FRCP 59
The court may, on motion, grant a new trial on all or some issues to any party, as follows:
(1) After a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court;
(2) After a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court
The appellate court applies an abuse of discretion standard in reviewing the district court’s denial for a Rule 59(a) motion for a new trial; whether a jury award is excessive is a question of law
What is the 7th Amendment in the U.S. Constitution?
7th Amendment
Protects the right for citizens to have a jury trial in federal court with civil cases where the claim exceeds a certain dollar value
