Appellate Practice and Procedure - William M. Droze and Jeri N. Sute

• Publication year: 2000

Appellate Practice and Procedureby William M. Droze and Jeri N. Sute**

I. Introduction

Rules of practice and procedure in appellate courts, such as the United States Court of Appeals for the Eleventh Circuit, significantly impact cases brought before those courts comprising the circuit. From enforcement of procedural rules requiring the timely filing of a notice of appeal to application of justiciability doctrines to determine a party's standing to bring a claim, issues of practice and procedure commonly arise at the court of appeals.

This Article explores the application of practice and procedure by the Eleventh Circuit during 1999. The topics discussed include appellate culling of appealable issues; appellate treatment of interlocutory matters; timeliness of notice of appeal and presentation of argument; doctrines of standing, ripeness, justiciability, and mootness; and standards of review on appeal. This Article also identifies common themes or trends when apparent.

Technology has begun to intrude upon the application of practice rules within the Eleventh Circuit. In a 1999 case, the court grappled with the impact of emerging technology and its incorporation into appellate procedure. In Hollins v. Department of Corrections,¹ appellant filed a notice of appeal more than fourteen months after the district court's final order had been entered, well past the deadline for filing an appeal. The court faced the issue of whether the late filing was excused because of appellant's reliance on the Public Access to Court Electronic Records ("PACER") system's version of the docket sheet, which failed to show the district court's entry of the final order.² In finding that it was excused, the court stated,

Providing electronic access to court calendars, dockets and other essential information is a project of long standing in the federal courts. Services such as the PACER system, while still somewhat experimental, continue to receive strong endorsements and have generated ever increasing demand. . . both from within the legal community and from other interested parties. By allowing parties and their counsel to monitor the progress of their cases (and, in some jurisdictions, to file pleadings and other material) without traveling to court and placing demands upon the time of court personnel, systems such as PACER ease costs for both parties and the courts. But that and other benefits of such systems will arise only if parties actually can rely on electronically available court information. In this context, we conclude it was not unreasonable for Hollins [sic] counsel to rely on the PACER docket.³

This resolution appears to forecast the court's commitment to incorporating technology into the appellate arena while giving litigants some measure of assurance that reliance upon new technology will not prove fatal in instances when that technology fails.

II. Appellate Culling of Appealable Issues

Consideration of the many cases raising practice and procedure issues before the Eleventh Circuit in 1999 reveals several common themes. First, the court applied its rules of practice and procedure to dismiss appeals and issues not appropriate for appellate consideration at the time of their presentation to the court. The court did not, however, apply those rules at the cost of ensuring justice in cases before it. Additional support for this trend is seen in the court's continued emphasis on goals of judicial economy and efficiency. Finally, the court also provided thorough explanations for its decisions on issues of appellate practice and procedure, most likely with the aim of providing district courts with enough guidance to eliminate repeated appeals involving the same or similar issues.

Application of appellate practice and procedure rules by the Eleventh Circuit enabled the court to dispose of many cases and issues not appropriate for resolution by it. For example, in Woodard v. STP Corp.* the court refused to review the district court's order denying plaintiff's motion for remand on the basis that it did not have proper jurisdiction.⁵ The court found that although the district court's subsequent order granting plaintiff's motion for voluntary dismissal was a final judgment, the manner in which that judgment was obtained—pursuant to plaintiff's request—militated against its treatment as an appealable final judgment of the remand issue.⁶ Similarly, in State Treasurer of Michigan v. Barry,⁷ the court held that it lacked jurisdiction over the appeal.⁸ The district court's partial summary judgment order left plaintiff's claims and defendant's counterclaim pending.⁹ Furthermore, the parties were trying to create a final judgment as to the summary judgment for purposes of appeal by stipulating to dismissal, without prejudice, of the remaining claims.¹⁰ Finally, in Druhan v. American Mutual Life,¹¹ the court again declined to exercise jurisdiction over the appeal of an interlocutory order denying plaintiff's motion to remand and the subsequent final judgment granting plaintiff's request for voluntary dismissal with prejudice.¹² Plaintiff requested the dismissal with prejudice only as a means of establishing finality in the case such that she could immediately appeal the interlocutory order.¹ '' Thus, the court refused to consider the case because the district court's order denying remand was not among the orders from which an interlocutory appeal lies as a matter of right under 28 U.S.C. Sec. 1292(a)(1), and because plaintiff did not seek an appeal by certification pursuant to 28 U.S.C. Sec. 1292(b).¹⁴

In Dzikowski v. Boomer's Sports & Recreation Center, Inc. (In re Boca Arena, Inc.),¹⁵ the court refused to allow appellate review under Rule 54(b) of the Federal Rules of Civil Procedure because there was no Rule 54(b) certification.¹⁶ The court rejected appellant's argument that certification was not required because of the applicability of the

Bankruptcy Code.¹⁷ First, the court recognized that bankruptcy rules expressly provide that Rule 54(a)-(c) of the Federal Rules of Civil Procedure applies in adversarial proceedings in bankruptcy.¹⁸ Accordingly, the court reasoned, "a bankruptcy order that disposes of fewer than all claims or parties in an adversary proceeding is not immediately appealable unless the bankruptcy judge certifies the order for immediate review pursuant to Bankruptcy Rule 7054, which incorporates Fed. R. Civ. P. 54(b)."¹⁹ Next, the court rejected the bankruptcy trustee's argument that flexible concepts of finality in bankruptcy proceedings override the clear mandate of Rule 54(b) and allow such an appeal to proceed absent Rule 54(b) certification.²⁰ Preferring the bright-line rule established by Rule 54(b), the court dismissed the trustee's appeal because there was no Rule 54(b) certification.²¹ All these cases demonstrate the court's desire to promote judicial efficiency and avoid piecemeal appeals by looking behind the facade created by the parties in their attempts to prematurely appeal their cases to the Eleventh Circuit.²²

The court similarly scrutinized litigants attempting to appeal under the collateral order doctrine.²³ In Summit Medical Associates v. Pryor,²⁴ the court analyzed whether it could exercise appellate jurisdiction pursuant to the collateral order doctrine.²⁵ In finding that it did not have jurisdiction to review a denial of a motion to dismiss for want of standing, the court relied on the fact that appellant had failed to demonstrate the applicability of all three requirements for application of the collateral order doctrine.²⁵ In Citizens Concerned About Our Children v. School Board of Broward County, Florida,²⁷ the court was presented with the mirror image of the Summit issue—whether the grant of a dismissal for want of standing was reviewable.²⁸ As in Summit, the court in Citizens Concerned About Our Children found the order unreviewable under the collateral order doctrine.²⁹ In both cases the orders were reviewable on appeal from a final judgment; thus, they were not reviewable interlocutorily because the third requirement for application of the collateral order doctrine was not satisfied.³⁰

In 1999 the court also applied procedural rules regarding the timely filing of notices of appeal to dispose of cases not properly appealed. In Roberts v. Commissioner,³¹ the court refused to excuse an untimely notice of appeal and rejected the argument that the Bankruptcy Code extended the parties' time to appeal.³² As indicated above, however, the court did not sacrifice justice while applying practice and procedure rules. When justice so required, the court departed from strict adherence to those rules. For example, in Hollins v. Department of Corrections,³³ the court excused a party's untimely appeal because the lateness of the appeal resulted from a mistake in the district court computer docketing system.³⁴ Similarly, in Summit the court departed from its usual refusal to hear arguments raised for the first time on appeal to '"avoid a miscarriage of justice.'"³⁵ By departing from its general practices in both Hollins and Summit, the court demonstrated that it would not blindly apply its rules of practice and procedure, but would instead apply them with the goals of ensuring fairness and adjudicating the merits of disputes when possible.

When necessary, the court also gave district courts significant guidance on issues remanded to those courts. In McKinley v. Kaplan,³⁶ the court provided the district court with a discussion of the proper disposition of a motion to amend under Rule 15(a) of the Federal Rules of Civil Procedure, after deciding that the district court abused its discretion by not allowing plaintiff to amend her complaint.³⁷ Such thorough analysis in this case, as well as in others, helps guide district courts in the disposition of similar issues, thereby decreasing the likelihood that the Eleventh Circuit will see repeated appeals of the same issue. This, in turn, promotes judicial...