Appellate Review

Question 1

What is appellate review?

Answer 1

Consider how the availability of appellat review affects other aspects of the judicial proceeding, such as discovery, case management, and sanctions.

Question 2

What are the two types of appellate review?

Answer 2

1. Final Judgment Reviews: where the case goes all the way and the final judgment is reviewed
2. Interlocutory Appeal: A decision, in the middle of the case, gets reviewed, and then sent back to the court to continue

Question 3

What is the principle of finality?

Answer 3

“Final Judgment Rule”: Appeals may only be taken from a “final decision” of the district court

Question 4

What is the final decisions of district courts?

28 U.S.C. § 1291

Answer 4

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

Question 5

What are interlocutory decisions?

28 U.S.C. §1292

Answer 5

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

Question 6

What happens if the district court makes an order not appealable?

28 U.S.C. § 1292(b)

Answer 6

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

Question 7

What is the New York Approach?

N.Y.C. P.L.R. 5701

Answer 7

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.

Question 8

What is a judgment on multiple claims or involving multiple parties?

FRCP 54(b)

Answer 8

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

Question 9

What is Judgment on Multiple claims or involving multiple parties essentially saying?

FRCP 54(b)

Answer 9

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.”

Question 10

When is there an exception to an appeal?

Answer 10

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)

Question 11

Is a discovery order compelling a defendant to disclose info immediately appealable?

Mohawk Industries v. Carpenter, 558 U.S. 100

Answer 11

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”

Question 12

Can a denial of class certification be appealable?

FRCP 23(f)

Answer 12

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).

Question 13

What is the appealability over divesture situations?

Brown Shoe Co. v. United States, 370 U.S. 294

Answer 13

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

Question 14

Is a denial of protective order immediately appealable?

United States v. Copar Pumice Co., Inc. 714 F.3d 1197

Answer 14

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”

Question 15

What are essentially the exceptions to the Final Rule?

Answer 15

There needs to be a final rule before an appeal, however, there are exceptions: (1) Collateral orders; (2) pragmatic finality; and (3) mandamus

Question 16

Apart from collateral order appeals, what are some avenues that a litigant has for appeals?

Answer 16

(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

Question 17

What is a mandamus?

28 U.S.C. § 1651(a)

Answer 17

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

Question 18

What is the rule on Physical and Mental Examinations?

FRCP 35(a)

Answer 18

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

Question 19

What are many of the Supreme Court’s decisions regarding mandamus concerning?

Answer 19

Many of the Supreme Court’s decisions regarding mandamus concern discovery disputes

Question 20

What is the Supreme Court’s three-part test for issuance of the writ of mandamus?

Answer 20

(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

Question 21

What is a discretonary appeal?

28 U.S.C. § 1292(b)

Answer 21

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

Question 22

What rules can the Supreme Court prescribe in accordance with § 2072?

28 U.S.C. § 1292(e)

Answer 22

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

Question 23

What is the precedent to the limitations on certifications?

28 U.S.C §1292(b)

Answer 23

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

Question 24

What are the allowances on issuances of injunctions?

28 U.S.C. §1292(a)(1)

Answer 24

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

Question 25

What are the allowances with Preliminary injunctions? ## Footnote FRCP 65(a)

Answer 25

This has an immediate effect; must have hearing quickly but can also be immediately appealable ## Footnote Before case has been decided prelim injunctions can be ordered

Question 26

Can a defendant obtain immediate relief from an injunction? ## Footnote Smith v. Vulcan Iron Works, 165 U.S. 518

Answer 26

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

Question 27

What is the Rule for Entering Judgment? ## Footnote FRCP 58

Answer 27

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 ## Footnote 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

Question 28

What is an Appeal as of Right-How Taken? ## Footnote Federal Rules of Appellate Procedure 3

Answer 28

An appeal may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4 ## Footnote The steps the party has to do to file an appeal; must furnish the clerk with enough copies

Question 29

What is an Appeal in a Civil Case? ## Footnote Federal Rules of Appellate Procedure 4

Answer 29

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 ## Footnote When appeals may be taken

Question 29

What is an Appeal by Permission? ## Footnote Federal Rules of Appellate Procedure 5

Answer 29

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 ## Footnote Court of Appeals grants permission

Question 30

Under the appellate rule, what must a notice of appeal include?

Answer 30

The notice of appeal must include notice, and must include all named parties in the case

Question 31

When can a notice of appeal come from a nonfinal decision? ## Footnote FRCP 4(a)(2)

Answer 31

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 ## Footnote 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"

Question 32

What was amended to allow an appeal? ## Footnote Rule 4(a)(4)

Answer 32

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 ## Footnote Budjnich v. Becton Dickinson & Co., 486 U.S. 196

Question 33

When can an extended filing period for an appeal occur? ## Footnote Appellate Rule 4(a)(5)

Answer 33

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 ## Footnote The Supreme Court found that the grant of extension of time is limited by the time periods set out in statute

Question 34

What are the well-defined limits on the scope of appellate review?

Answer 34

(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

Question 35

What are the Findings and Conclusions by the Court; Judgement on Partial Findings? ## Footnote FRCP 52

Answer 35

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 ## Footnote 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

Question 36

What occurs in a New Trial, Altering, or Amending a Judgment? ## Footnote FRCP 59

Answer 36

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 ## Footnote 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

Question 37

What is the 7th Amendment in the U.S. Constitution? ## Footnote 7th Amendment

Answer 37

Protects the right for citizens to have a jury trial in federal court with civil cases where the claim exceeds a certain dollar value