Appellate Practice and Procedure - Robert G. Boliek, Jr.

• Citation: Vol. 62 No. 4
• Publication year: 2011

Appellate Practice and Procedure

by Robert G. Boliek, Jr.*

In 2010 the United States Court of Appeals for the Eleventh Circuit addressed a number of cases of significance to appellate practitioners, including cases presenting issues of apparent first impression for the Eleventh Circuit on questions of mootness and justiciability as well as a number of such cases dealing with the preservation of error.¹ In addition, the Eleventh Circuit decided a number of interesting cases relating to interlocutory appeals of orders involving injunctive relief, to questions of the finality of judgments, and to the timeliness of the filing of a notice of appeal.

Perhaps the most interesting case from the standpoint of appellate practice and procedure, however, was Davis v. Terry,² which raised a question of apparent national first impression: Does a court of appeals have jurisdiction over the appeal ofa habeas petition that the Supreme Court ofthe United States has granted under its original jurisdiction to issue the writ?³ A close second is United States v. Irey,⁴ the first en banc decision of the Eleventh Circuit to reverse a sentence for substantive unreasonableness under the abuse of discretion standard of review articulated in Gall v. United States⁵ by the Supreme Court.⁶

Accordingly, this Article will first discuss Davis and the other cases of note that relate to the Eleventh Circuit's appellate jurisdiction before turning to cases that address various procedural issues such as the

* Attorney at Law, Birmingham, Alabama. Auburn University (B.A., 1980); University of Alabama (J.D., 1986; M.F.A., 1999). Member, Alabama State Bar.

1. For an analysis of Eleventh Circuit appellate practice and procedure during the prior survey period, see Robert G. Boliek, Jr., Appellate Practice and Procedure, 2009 Eleventh Circuit Survey, 61 Mercer L. Rev. 1017 (2010).

2. 625 F.3d 716 (11th Cir. 2010).

3. Id. at 719.

4. 612 F.3d 1160 (11th Cir. 2010) (en banc).

5. 552 U.S. 38 (2007).

6. Irey, 612 F.3d at 1165-66, 1180.

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preservation of error. The article will close with Irey's elaboration on the abuse of discretion standard of review for federal sentences.

I. Appellate Jurisdiction

A. Statutory Limitations on Appellate Jurisdiction

As the Eleventh Circuit has recently noted, "for this Court to exercise jurisdiction over an appeal, our jurisdiction must be both (1) authorized by statute and (2) within constitutional limits."⁷ In Davis v. Terry,⁸ the Supreme Court had previously exercised its original jurisdiction to issue a writ of habeas corpus,⁹ and the Eleventh Circuit was confronted with an issue of apparent national first impression: Whether the Eleventh Circuit had appellate jurisdiction over the United States District Court for the Southern District of Georgia's denial of habeas relief after the Supreme Court had transferred the petition to the district court for findings of fact on the petitioner's actual innocence claim.¹⁰ The Supreme Court had not invoked this procedure in nearly fifty years,¹¹ and as the district court noted, there was simply no legal authority explaining what avenue of appeal was available to the petitioner after it denied the writ, although the district court surmised that such an appeal would be directed to the Supreme Court.¹²

The Eleventh Circuit agreed with the district court, reasoning that, because the petitioner had already exhausted his other habeas remedies, the Supreme Court could have only issued the writ pursuant to its original habeas jurisdiction; therefore, any appeal of the district court's order had to be presented directly to the Supreme Court.¹³ In support of this holding, the Eleventh Circuit also noted that it would exceed its own jurisdiction under the relevant statutes governing habeas relief to conclude otherwise: "If this court . . . reviewed the district court's order

7. OFS Fitel, L.L.C. v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1355 (11th Cir. 2008) (citing Druhan v. Am. Mut. Life, 166 F.3d 1324, 1326 (11th Cir. 1999)).

8. 625 F.3d 716 (11th Cir. 2010).

9. In re Davis, 130 S. Ct. 1, 1 (2009).

10. Davis, 625 F.3d at 718-19.

11. In re Davis, 130 S. Ct. at 2 ("Today this Court takes the extraordinary step-one not taken in nearly 50 years-of instructing a district court to adjudicate a state prisoner's petition for an original writ of habeas corpus.") (Scalia, J., dissenting).

12. In re Davis, No. CV409-130, 2010 WL 3385081, at *1 n.1 (S.D. Ga. Aug. 24, 2010). The district court stated, "[fjunctionally, then, this Court is operating as a magistrate for the Supreme Court, which suggests appeal of this order would be directly to the Supreme Court. However, this Court has been unable to locate any legal precedent or legislative history on point." Id.

13. Davis, 625 F.3d at 719.

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at this juncture, . . . we would effectively be restoring his remedies in federal court, in complete contradiction to the express intent of Congress."¹⁴ Accordingly, the petitioner's appellate remedy was the contemporaneous appeal he had also filed directly to the Supreme Court, and the Eleventh Circuit therefore dismissed the petitioner's appeal and denied his request for a certificate of appealability.¹⁵

1. Appeals from "Final" Decisions. In Davis the Eleventh Circuit was confronted with an appeal that had a highly "unusual procedural posture";¹⁶ much more commonly, the question of whether the court's appellate jurisdiction is authorized by statute arises in cases when the court must decide whether, pursuant to 28 U.S.C. § 1291,¹⁷ the appeal taken is a final decision of a district court. Section 1291 is the "workhorse" jurisdictional statute for the courts of appeals that "generally vests courts of appeals with jurisdiction over appeals from 'final decisions' of the district courts."¹⁸ Usually, "[a] final decision is one that 'ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment.'"¹⁹

In keeping with the finality requirement of 28 U.S.C. § 1291, in Ryan v. Occidental Petroleum Corp.,²⁰ the former United States Court of

14. Id.

15. Id. at 718-19.

16. Id. at 717.

17. 28 U.S.C. § 1291 (2006).

18. W.R. Huff Asset Mgmt. Co. v. Kohlberg, Kravis, Roberts & Co., 566 F.3d 979, 984 (11th Cir. 2009) (quoting Cunningham v. Hamilton Cnty., 527 U.S. 198, 203 (1999)).

19. Carpenter v. Mohawk Indus., Inc., 541 F.3d 1048, 1052 (11th Cir. 2008) (quoting

McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1338 (11th Cir. 2007)), affd sub nom., Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599 (2009).

Notwithstanding this definition, a limited number of decisions are considered final for purposes of 28 U.S.C. § 1291 despite the fact that they do not end the litigation on the merits. These include collateral orders under the collateral order doctrine, see, e.g., Carpenter, 541 F.3d at 1052, and appeals from stay orders that put a litigant "effectively out of court," see, e.g., King v. Cessna Aircraft Co., 505 F.3d 1160, 1165 (11th Cir. 2007) (internal quotation marks omitted). In addition, in rare circumstances, a nonfinal order may also be reviewed in conjunction with other appealable orders under the doctrine of pendent appellate jurisdiction. See, e.g., McMahon v. Presidential Airways, Inc., 502 F.3d 1357 (11th Cir. 2007). In contrast to recent surveys, the Eleventh Circuit did not appear to break any new ground with respect to these doctrines during this particular survey period, although Thomas v. Blue Cross & Blue Shield Ass'n, 594 F.3d 814 (11th Cir. 2010), contains good discussions summarizing the court's approach to the collateral order doctrine and the doctrine of pendent appellate jurisdiction. See id. at 819-20; see also Thomas v. Blue Cross & Blue Shield Ass'n, 594 F.3d 823, 831 (11th Cir. 2010) (related case discussing the collateral order doctrine).

20. 577 F.2d 298 (5th Cir. 1978), overruled on other grounds by Curtiss-Wright Corp.

v. Gen. Elec. Co., 446 U.S. 1 (1980), as recognized in Bryant v. Rich, 237 F. App'x 429, 430

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Appeals for the Fifth Circuit²¹ held long ago that a party cannot be allowed to manufacture finality by voluntarily dismissing claims without prejudice in order to appeal an adverse judgment as to other claims.²² According to the former Fifth Circuit, such a rule would circumvent Rule 54(b) of the Federal Rules of Civil Procedure (F.R.C.P.) ²³ by allowing a party what was in essence a "piecemeal" appeal of some portion of his claims despite reserving the right to pursue the dismissed claims at some later date, thus undermining the interest in judicial economy that both the finality rule and Rule 54(b)'s certification requirements seek to protect.²⁴

In Equity Investment Partners, LP v. Lenz,²⁵ however, the Eleventh Circuit distinguished Ryan by holding that the court had jurisdiction over the appeal of a partial summary judgment entered against the plaintiff that was made final by the parties' stipulated voluntary dismissal without prejudice of a defendant's counterclaim and cross-claim.²⁶ The court did so on the basis that the voluntary dismissal in Lenz "was not an improper attempt... to manufacture a final judgment to pursue an immediate appeal; rather, it was prompted by the district court's refusal to permit [the defendantj to join an indispensable party."²⁷ Thus, Lenz suggests that, even when the party seeking the appeal participates in the voluntary dismissal, finality may not be destroyed under the Ryan rule when a party can point to a legitimate independent basis for the dismissal other than a desire to manufacture that finality.²⁸

2. Appeals of Interlocutory Decisions. While "[i]n general, the final judgment rule permits an appeal to the circuit court only from a final judgment," some statutes provide that appeals of interlocutory decisions "are permissible . . . in certain limited situations."²⁹ A familiar example would be an appeal from...