Federal Appeal Rules Flashcards
Are federal appeals a statutory or constitutional right?
Statutory; courts of appeal only have jurisdiction as conferred by statute.
(Florida is different in that the Constitution, Article 5 Section 4 allows the FL. SC. to adopt rules for appeals).
What is the common exception to the mootness doctrine?
When the issue is capable of repetition yet evading review.
(Or, if there are collateral consequences or only a part of the appeal is moot).
Should note: U.S. Constitution requires “case and controversy” so mootness is strongly enforced.
What is the original jurisdiction of SCOTUS?
Exclusive:
All controversies between two or more states
Non-exclusive:
(i) actions to which ambassadors or other public officials of foreign states are parties
(ii) actions between the U.S. and a state
(iii) actions by a state against the citizens of another state
What is the certiorari jurisdiction of SCOTUS?
(1) Decisions of U.S. Court of Appeals (doesn’t need to be a final decision)
(2) Decisions by the highest court of a state (this includes Florida’s DCAs if there’s no Fla. SC. available)
(3) U.S. Court of Appeal for Armed Forces
What is the appeals-as-of-right jurisdiction of SCOTUS?
(1) District Court orders granting/denying an interlocutory or permanent injunction in any civil action that’s required by Congress to be heard and determined by a district court of three judges.
(2) Any other instances in which “a direct appeal from a decision of a United States district court is authorized by law.”
Can SCOTUS take jurisdiction over a certified question from a U.S. Court of Appeal?
Yes, 28 U.S.C. § 1254(2).
“By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.”
But, SCOTUS has routinely shut down these requests by issuing per curiam dismissals.
What are the two requirements in federal court for an order to be considered final and appealable?
Separate judgment rule?
In multidistrict litigation, where several cases are being tried together but not truly consolidated for all purposes, when is an appealable order rendered?
When it disposes of all issues relating to even just one of the cases. (You basically don’t have to wait until all of the cases are resolved in order to appeal).
What is the collateral order doctrine?
An otherwise unappealable interlocutory order may be appealable as of right:
(a) conclusively determines the disputed question;
(b) resolves an important issue completely separate from the merits of the action;
(c) would be effectively unreviewable on appeal from a final judgment.
Just file your notice of appeal and say you’re filing it under the collateral order doctrine. This will proc a jurisdictional question asking you to explain how it applies.
Digital Equip. Cor. v. Desktop Direct (1994) limits use to constitutional rights.
Which statute confers the U.S. Courts of Appeal with jurisdiction over final orders?
28 U.S. Code § 1291.
How does the collateral order doctrine apply to an issue of immunity of public officials?
The doctrine allows for appeals of orders determining qualified or sovereign immunity unless the order was denied based on a genuine issue of material fact.
Exception to the exception: if the public official argues that the qualified immunity applies even under the plaintiff’s version of the facts.
Must be immunity from suit, not just liability.
What is the Doctrine of Practical Finality?
An otherwise unappealable interlocutory order may be appealable as of right:
If the order determines the immediate right to property that would otherwise cause irreparable harm if not reviewed until the end of the case.
(i.e. substantial Rule 11 monetary sanctions).
What is the Doctrine of Marginal Finality?
An otherwise unappealable interlocutory order may be appealable as of right:
The order must resolve an important issue fundamental to the ultimate resolution of the case.
(very limited application).
What interlocutory appeals are available to the Circuit Court of Appeals?
(1) orders dealing with injunctions;
(2) orders appointing receivers or dealing with receiverships ;
(3) orders terminating the rights and liabilities of parties to admiralty cases;
(4) orders prescribed for review by rules;
(5) orders concerning arbitration (orders denying and, orders granting AND dismissing the case where the point of litigation was to determine appraisal)
(6) decisions of the Tax Court;
(7) final decisions of district courts and bankruptcy appellate panels in bankruptcy appeals (bankruptcy court’s order must’ve been final and also the district court’s opinion… i.e., no remand for more action)
(8) orders of administrative agencies when authorized by law or the Hobbs Act.
What’s a withdrawal statute?
A law congress passes to try and restrict judicial review of administrative decisions.
When is a discretionary appeal to a circuit court authorized under 28 U.S.C. § 1292(b).?
Discretionary appeal is authorized when: (1) an order from a United States District Court involves a controlling question of law;
(2) as to which there is
substantial ground for difference of opinion;
(3) an immediate appeal from the order may materially advance the ultimate termination of the litigation;
and (4) the district court judge enters a written order certifying that these three conditions are present.
**Discretionary for both the district court (in its decision to certify) and the Circuit (in its decision to accept jurisdiction)
What is a discretionary appeal under Fed. R. Civ. P. 54(b)?
When a district court enters final judgment as a particular claim or party and EXPRESSLY determines that there is “no reason for delay” in the entry of such a final judgment.
The court of appeals can review whether the rule 54(b) certification was appropriate. This review involves
two prongs:
(i) whether the particular claim is genuinely final and separate from other pending claims; and
(ii) whether the determination that there is no just reason for delay was warranted.
The first prong is reviewed essentially de novo, while second prong is reviewed for an abuse of discretion.
Can class certification orders be appealed to the Circuit Courts?
Yes, may file a petition for permission to appeal orders granting/denying class action certification under Fed. R. Civ. P. 23(f) and CAFA.
Considerations:
(i) death knell for either party (given class size/etc.)
(ii) weakness in the class certification (likelihood that DC was wrong)?
(iii) is there a legal issue that’s important?
(iv) nature of litigation?
(v) whether future events will make immediate review more or less appropriate?
CAFA (Class Action Fairness Act) allows federal courts to review classes that were removed to federal court (to send them back, if appropriate)
What is pendent appellate jurisdiction?
Authority of the appellate court to review an otherwise unappealable order that is “inextricably intertwined” with appealable order if the former is necessary to ensure meaningful review of the latter.
What are the potential writs in federal appellate court?
(i) all writs;
(ii) writs of mandamus;
What is the standard for issuing a writ of mandamus?
Three conditions must be met:
(1) the petitioner demonstrates that it has no other adequate remedy;
(2) the petitioner shows that its right to the writ is clear and indisputable; and
(3) the issuing court, in the exercise of its discretion, is satisfied that the writ is appropriate under the circumstances.
7,800 words.
What is the standard for issuing a writ of prohibition?
Issued when necessary to preserve the status quo pending a current or potential appeal.
(Main use is in criminal cases to prevent double jeopardy violations).
What must a petition for a writ contain? (Contents)
(i) certificate of interested persons and corp. disclosure statement;
(ii) must provide a copy to district court judge;
(iii) cannot exceed 7,800 words.
Federal district courts can hear appeals from what type of cases?
(a) final judgments in bankruptcy courts (could resolve an adversary proceeding, turnover of assets, bankruptcy stay) (no BAPs in 11th Cir.);
(b) nonfinal orders if having to do with time periods for plans in Ch. 11 or Title 11 cases;
(c) magistrate R&R’s (not really appeals);
(d) administrative action when authorized by law.
Are unpublished decisions of the Eleventh Circuit binding precedent?
Unpublished decisions of the Eleventh Circuit are not binding precedent, but they can be cited as persuasive authority.
Which Circuit was the Eleventh Circuit previously a part of? How is the caselaw from that Circuit treated?
The Fifth Circuit.
All Fifth Circuit decisions issued prior to October 1, 1981, are binding precedent
in the Eleventh Circuit.
After Sept. 30th, only “en banc,” “Unit B,” or “Unit B en banc” are binding.
What’s the 11th Circuit’s local rule for authorizing a first extension on appeal?
Can call the clerk and receive up to 28 days.
When is the plain error standard of review used and what is the four-part test?
Used when alleged error was not preserved for appeal.
a) there was error in the DC’s determination;
b) error was plain and obvious;
c) error affected substantial rights in that it was prejudicial and not harmless;
d) error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.
Can an argument be preserved in the Initial Brief if it is not raised but a subsequent intervening case comes out after the Brief is filed?
Yes, in United States v. Durham, 795 F. 3d 1329, 1331 (11th Cir. 2015), the Eleventh loosened its harsh waiver rule with regards to an IB.
How does the two-issue rule differ in federal court from state court?
In federal court, a party may receive a new trial where they show error with one of the theories of liability, but not judgment as a matter of law.
In state court, 2 issue rule usually does not lead to reversal of any kind.
What happens if you appeal a dismiss that grants leave to amend without amending?
You waive your right to amend!
How are findings of fact reviewed on appeal?
Under the clearly erroneous standard.
Clear error exists when the appellate court is “left with a definite and firm conviction that a mistake has been committed.”
Different that competent, substantial evidence test because it can be reversed even with factual support.
Contents of a notice of appeal?
Rule 3, Fed. R. App. P.
Who is appealing/What is being appealed/Where will appeal be heard?
Although lenient, must include name of all orders that are being appealed.
Where do you file notice of appeal?
District court (or wherever the case is being litigated).
Must provide enough copies for the district court clerk to serve all parties and the court of appeals.
When is an order dismissing a complaint appealable?
An order dismissing a complaint is not final and appealable unless the order holds that it dismisses the entire action or that the complaint cannot be saved by amendment.
Plaintiff “has the choice of either pursuing a permissive right to amend … or of treating the order as a final [order] and filing for appeal.” Plaintiff can waive the right to later amend, treat the dismissal as final, and file a notice of appeal before the expiration of the amendment period.
When does the time for filing a notice of appeal begin to run?
Fed. R. App. P. 4(a)(1).
The time for filing a notice of appeal runs from the date of entry of judgment unless there’s no entry of judgment required.
Rule 58(a) of the Federal Rules of Civil Procedure requires the clerk of the district court to enter a separate document—the actual judgment—in many circumstances. If that happens, judgment is deemed entered when that separate document is filed OR 150 days have run from the entry in the civil docket (no separate doc.)
If no separate document is required, then time begins to run when judgment/order is entered in civil docket.
Which judgments must be entered as a separate document?
Rule 58(a) states that every judgment must be set out except:
i) Judgment under Rule 50(b) (judgment as a matter of law / JNOV)
ii) Amend/Make additional findings Rule 52(b) (following a bench trial… must be filed no later than 28 days AFTER entry of judgment)
iii) attorney’s fees under Rule 54
iv) new trial or to alter/amend Rule 59
v) for relief from judgment under Rule 60 (1.540 type of motion)
Which motions postpone entry of a judgment?
Listed in Rule 4 of Fed. R. App. P.
a) motion for judgment as a matter of law under Rule 50(b) (JNOV)
b) motion to amend/make additional findings under Rule 52(b)
c) motion for attorney’s fees under Rule 54
d) motion to alter/amend judgment under Rule 59
e) motion for relief from judgment under Rule 60, if the motion was filed within 28 days
Deadline for filing notice of appeal in civil cases?
30 days after entry of judgment.
If U.S. or officer/agent of U.S. is a party, then 60 days.
What’s the deadline for filing a cross-notice of appeal?
14 days are added to the 30. (Not called a cross-appeal, just a separate notice of appeal).
What happens if you file a premature notice of appeal?
Fed. R. App. P. 4.
Notice will sit and be considered filed when the judgment is entered.
Same if there’s a tolling motion pending; must file an amended notice if you want to challenge the post-trial ruling.
How does a party extend the time to appeal?
Fed. R. App. P. 4.
(a) The party files the motion no later than 30 days after the time to appeal has expired; and
(b) The moving party shows “excusable neglect or good cause.” (Miscalendering the date does not count).
The extension cannot exceed the later of:
(a) 30 days after the expiration of the original time to appeal; or
(b) 14 days after the date of the order granting the extension.
How does a party reopen the time to appeal?
Fed. R. App. P. 4.
The district court can reopen the time to appeal on motion if all of the following are shown:
(a) The moving party did not receive notice of entry of the order to be appealed within 21 days after its entry;
(b) The motion is filed no later than the earlier of: (i) fourteen days after receiving notice of entry of the order; or (ii) within 180 days of entry of the order if notice was never received; and
(c) No party would be prejudiced.
