Appellate Practice and Procedure

• Publication year: 2006

Appellate Practice and Procedureby K. Todd Butler^*

This Article reviews federal appellate procedure decisions in the Eleventh Circuit during the 2005 calendar year. Questions considered this year include the following: statutory limitations on federal subject matter jurisdiction, general federal judicial jurisdiction, the appellate jurisdiction of federal circuit courts of appeal, and requirements for preservation of the record for appeal. This year, we again include a section on the standards of review that the Eleventh Circuit applies in reviewing the orders of federal district courts. The particular standards reviewed include the de novo, abuse of discretion, and clear error standards.

I. Statutory Limitations on Jurisdiction

Under Article III of the United States Constitution,¹ federal subject matter jurisdiction exists only if Congress creates jurisdiction.² it follows that Congress has the power to restrict federal judicial jurisdiction by statute. "[C]ourts ordinarily do not infer congressional intent to restrict their jurisdiction,"³ but federal courts may lack jurisdiction, even to review an administrative decision, where statutory language clearly and unequivocally shows congressional intent to foreclose judicial jurisdiction.⁴

This year, the Eleventh Circuit held that the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA)⁵ shows clear and unequivocal intent to foreclose federal judicial jurisdiction and the court declined to review a petitioner's appeal from the Board of Immigration Appeals.⁶ Likewise, in Sebastian-Soler v. U.S. Attorney General,⁷ the court declined to review an Immigration and Naturalization Service deportation order based on the strict limitation provided by 8 U.S.C. Sec. 1252(a)(2)(C).⁸ In Chuang v. U.S. Attorney General,⁹ decided by the Eleventh Circuit in 2004, this statute was held constitutional.¹⁰

II. General Federal Jurisdiction

Under 28 U.S.C. Sec. 1441,¹¹ a defendant can remove a case to federal court if the federal court would have had original jurisdiction of the subject matter and personal jurisdiction of the parties.¹² Original federal judicial jurisdiction is based on either federal constitutional, statutory subject matter, or diversity jurisdiction.¹³ Presumably under the McCarran-Ferguson Act,¹⁴ and unless the law of the respective state provided otherwise, federal diversity jurisdiction, and thus federal removal jurisdiction, is precluded if the subject matter of a lawsuit is limited strictly to the business of insurance.¹⁵ Thus, in Cotton v. Massachusetts Mutual Life Insurance Co.,¹⁶ subject matter jurisdiction would not have existed at the time of removal because the complaint was limited to matters involving the business of insurance; an order for dismissal or remand to the state court would have been proper.¹⁷ The district court would have had authority, and would have been obliged, to raise the question sua sponte.¹⁸ Likewise, the appellate court, or any court at any level, would have had jurisdiction to review the question.¹⁹ However, in Cotton, the Eleventh Circuit held that where the plaintiff amended the complaint to add a federal subject matter claim before the district court, or where anyone else raised the issue of improper removal, sufficient federal subject matter jurisdiction existed to dismiss.²⁰

Issues of standing also raise the question of federal jurisdiction because the case-or-controversy requirement of Article III, Section 2 of the Constitution requires that a party must have

(1) . . . suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury [must be] fairly traceable to the challenged action of the defendant; and (3) it [must be] likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.²¹

Even if these matters have not been considered at the trial court level, and even if the parties do not raise the issues, the court of appeals must raise them.²²

In SEC v. ETS Payphones, Inc.,²³ the Securities and Exchange Commission received an order freezing the assets of a company owned by a promoter.²⁴ The promoter lacked standing to appeal the freeze because the company was a nonparty and the promoter showed no obstacle preventing the company from asserting its rights.²⁵ Likewise, the case-or-controversy requirement negates federal jurisdiction if the issues are moot.²⁶ In the same case, where the company was no longer subject to an asset freeze, the court no longer had jurisdiction to consider the issue.²⁷

Similar to the issue of removal, the mootness rule is jurisdictional in nature.²⁸ It may, and where warranted it must, be raised by the appellate court sua sponte without regard to whether the district court considered the question, and without regard to whether the parties have briefed the issue.²⁹

III. Appellate Jurisdiction

Under 28 U.S.C. Sec. 1292(a)(1),³⁰ the federal appellate courts have jurisdiction over "interlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions."³¹ Furthermore, if an order bars a party from litigating in another forum, it is an injunction subject to interlocutory appeal.³² If a district court's order commands or prevents action, is enforceable by contempt, and has a direct or irreparable impact on the merits of a controversy, then the order is an injunction subject to interlocutory appeal.³³ In Alabama v. U.S. Army Corps ofEngineers,³⁴ the district court effectively entered an injunction when its order barred the Corps of Engineers from executing any further water supply contracts or agreements regarding water supply contracts, even though the order was couched in terms of barring participation in a separate case concerning similar matters.³⁵

As a general rule, a district court's order denying summary judgment is not subject to interlocutory review.³⁶ Where the motion for summary judgment seeks a determination that a defendant is entitled to qualified immunity, however, the district court's order denying immunity is subject to immediate interlocutory review.³⁷ If the interlocutory appeal of an order denying qualified immunity raises issues of both the sufficiency of the evidence and clearly established issues of law, as was the case in Cook v. Gwinnett County School District,³⁸ then the court of appeals has jurisdiction over both issues,³⁹ although the Eleventh Circuit typically accepts the district court's findings of fact and reviews only the questions of law.⁴⁰ The facts of the case are not established, however, by the appellate court's acceptance of a district court's finding of facts.⁴¹

IV. PRESERVATION OF THE RECORD

It is incumbent upon a party to perfect the record. A court of appeals will not consider issues that are not preserved for appeal. In London v. Fieldale Farms Corp.,⁴² the plaintiffs first argued on appeal that a defendant's predator intent could be inferred from the special circumstances of the case.⁴³ The Eleventh Circuit rejected the argument because it was...