Appellate Law, 0521 COBJ, Vol. 50, No. 5 Pg. 30

AuthorBY MARCY G. GLENN
PositionVol. 50, 5 [Page 30]

50 Colo.Law. 30

APPELLATE LAW

No. Vol. 50, No. 5 [Page 30]

Colorado Lawyer

May, 2021

Civil Interlocutory

Appeals in Federal Court

BY MARCY G. GLENN

This article discusses jurisdictional bases for federal interlocutory appeals in civil matters and procedures relevant to those appeals. It focuses on US

Supreme Court and Tenth Circuit Court of Appeals case law.

The jurisdiction of federal courts of appeals is generally limited to the review of final judgments.1 Yet various statutes, rules, and jurisprudential doctrines either require or permit those courts to hear appeals from non-final, or interlocutory, district court orders. This article presents the most significant jurisdictional bases for federal interlocutory appeals in civil cases and discusses procedures relevant to those appeals. It focuses on U.S. Supreme Court and Tenth Circuit Court of Appeals case law applying relevant statutes, rules, and doctrines.2

Interlocutory Appeals as of Right

Appeals as of right are appeals that the federal courts of appeals must resolve if they are timely filed and comply with other jurisdictional requirements.

Appeals from Interlocutory Orders on Injunctions under 28 U.S.C. § 1292(a)(1)

The dominant category of federal interlocutory appeals as of right is from interlocutory orders "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions," pursuant to 28 U.S.C. § 1292(a)(1). As a general rule, § 1292(a)(1) "should be narrowly construed to 'ensure that appeal as of right under § 1292(a)(1) will be available only in [limited] circumstances.'"3 The Tenth Circuit, like other courts of appeals, looks to "the actual, practical effect of an order" before exercising jurisdiction under § 1292(a) (1), "consider[ing] the substance rather than the form of the motion and caption of the order."4 These general interpretive rules have generated abundant authority, often conflicting, as to whether particular appeals fall within the scope of § 1292(a)(1). With that caveat, Supreme Court and Tenth Circuit cases have held:

■ Absent "extraordinary circumstances," § 1292(a)(1) does not apply to orders granting or denying temporary restraining orders (TROs).[5]

■ However, TROs that remain in effect more than 10 days may be treated as preliminary injunctions.[6] And TROs will be treated as appealable injunctions where they effectively resolve the dispute.7 Also, the Tenth Circuit will review orders denying TROs "when an appellant will suffer irreparable harm absent immediate review."[8]

■ Section 1292(a)(1) applies to permanent injunctions that are not otherwise appealable as final orders.9

■ Orders modifying injunctions are appealable, but orders merely clarifying or interpreting injunctions are not.[10]

■ Section 1292(a)(1) has been extended to orders not expressly styled as injunctions but having the practical effect of injunctions, but only if such orders have "'serious, perhaps irreparable, consequence"' and "can be 'effectually challenged' only by immediate appeal."[11]

■ Section 1292(a)(1) does not apply to orders relating to the conduct or progress of cases, even if they have injunctive effect.12 Under this principle, for example, the Tenth Circuit has held that a stay order in a civil forfeiture proceeding "relate[d] only to the internal progress of the forfeiture litigation" and, therefore, could not be challenged in an interlocutory appeal under § 1292(a)(1).13

■ If the court of appeals has jurisdiction over an interlocutory appeal related to an injunction order, it may—but is not required to—consider other issues interrelated with the injunction under its discretionary pendent appellate jurisdiction.14 Relevant factors include (1) "whether the otherwise nonappealable issue is sufficiently developed, both factually and legally, for [its] review," (2) "whether review of the appealable issue involves consideration of factors closely related or relevant to the otherwise nonappealable issue," and (3) "whether judicial economy will be better served by resolving the otherwise nonappealable issue, notwithstanding the federal policy against piecemeal appeals[.]"15

Appeals from Interlocutory Receivership Orders under 28 U.S.C. § 1292(a)(2)

Title 28 U.S.C. § 1292(a)(2) authorizes appeals as of right from interlocutory orders related to receiverships, but "[c]ourts narrowly construe § 1292(a)(2) 'to permit appeals only from the three discrete categories of receivership orders specified in the statute, namely [1] orders appointing a receiver, [2] orders refusing to wind up a receivership, and [3] orders refusing to take steps to accomplish the purposes of winding up a receivership.'"16 The statute permits immediate review of the conduct of appointed receivers only "when there has been a complete failure to act in furtherance of the receivership," but does not vest the court of appeals with jurisdiction to undertake "ongoing supervision of every action a receiver might be ordered to take."17

Appeals from Interlocutory Orders in Admiralty Cases under 28 USC§ 1292(a)(3)

Given the geographic location of the Tenth Circuit, it's unsurprising that the court has apparently issued only one published decision applying 28 U.S.C. § 1292(a)(3), which authorizes appeals as of right from interlocutory decrees determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed."18 That case, In re Aramark Sports & Entertainment Services, LLC,19 however, makes clear that, in contrast to the narrow jurisdictional grants under 28 U.S.C. § 1292(a)(1) and (2), appellate jurisdiction over admiralty orders is broadly construed. "[T]o allow ship owners to seek an appeal to halt litigation at an early stage, in the hope of eliminating the need for further proceedings[,]" "all that is required is that a right or liability of a party have been determined[ ]" in an admiralty case.20

Appeals as of Right under Other Statutes

Various other federal statutes provide for appeals as of right from specifically defined interlocutory orders. For example, without waiting for a final judgment, a party may appeal under the Federal Arbitration Act from an order denying a motion to stay proceedings, denying a motion to compel arbitration, confirming or denying confirmation of an arbitration award, or modifying, correcting, or vacating an award;21 the Federal Deposit Insurance Corporation may appeal from orders remanding cases removed to federal court;22 and a party may appeal an order remanding a removed case where a federal officer or agency is sued or certain claims are made under the federal civil rights laws.23

A Variation on Interlocutory Appeals as of Right: The Collateral Order Doctrine

Appeals from collateral orders "feel" like interlocutory appeals, because they generally challenge a discrete order while the remainder of the case continues in the district court. In fact, they are more properly viewed as a subset of appeals from final judgments, with jurisdiction arising under 28 U.S.C. § 1291 (permitting "appeals from all final decisions of the district courts"), rather than pursuant to a statute or rule providing for interlocutory appeals.

As the Supreme Court first recognized in Cohen v. Beneficial Industrial Loan Corp., collateral orders "finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated."24

To constitute a collateral order, a district court decision must (1) "conclusively determine the disputed question," (2) "resolve an important issue completely separate from the merits of the action," and (3) "be effectively unreviewable on appeal from a final judgment."25

The most common immediately appealable collateral orders are those that deny motions to dismiss based on claimed immunity from suit—including based on Eleventh Amendment immunity,26 qualified immunity,[27] absolute immunity,28 and tribal immunity.[29] Among other collateral orders recognized by the Supreme Court or the Tenth Circuit are orders remanding a case to state court based on abstention;30 requiring the plaintiffs to post a substantial bond, under a state statute, to proceed with a shareholder derivative action filed in federal court;31 and imposing on the defendants 90% of the costs of providing notice to class members in a class action.32

Procedural Requirements

The procedural requirements for interlocutory appeals as of right, including under the collateral order doctrine, are the same as for traditional appeals from final judgments as set forth in the Federal Rules of Appellate Procedure (FRAP) and the Tenth Circuit Rules. Accordingly, the notice of appeal must be filed with in the governing time period for appeals from final judgments,33 and the rules related to briefing, appendices, and oral argument apply.[34]

Practice Tips

Practitioners filing interlocutory appeals as a matter of right should consider the following:

■ Parties often have considerable leeway in how they characterize their requested relief. A litigant anticipating a potential interlocutory appeal under § 1292(a)(1) (concerning interlocutory orders on injunctions) should structure the relief sought as injunctive in nature if the facts and the law support that characterization.

■ The fact that a party has a right to file an interlocutory appeal does not necessarily mean that it should do so. A party is not required to seek permission to take an interlocutory appeal to avoid waiving whatever ultimate appeal right the party may have.35 Some cases may present...

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