Appellate Practice and Procedure - William M. Droze

• Publication year: 1998

Appellate Practice and Procedureby William M. Droze^*

I. Introduction

An appellate court is often characterized by the opinions that it writes. Though an appellate opinion represents a written expression and extension of the judicial personality, it is necessarily dictated in part by the facts of the case. As a result, a court's application of appellate procedure may serve as a better crucible for assembling a judicial portrait and undertaking to study trends and direction.

This Article examines recent appellate cases with a view towards understanding appellate direction as well as assisting the practitioner with an overview of appellate procedure in action. The Eleventh Circuit's emphasis on professionalism and on active management of its docket during 1997 is beneficial to both practitioners and parties. Taken in totality, the cases that follow plot a course towards increased accountability that translates into efficient and effective appellate decisionmaking. The phrase "sound judicial administration" appears frequently in 1997 cases, reflecting the court's insistence that litigants and lower courts ease the burden on appellate dockets.

II. Trends Towards Professionalism and Active Docket Management

The court of appeals used Chudasama v. Mazda Motor Corp.¹ to deliver a reminder to the district courts that they must take an active role in managing cases on their dockets.² Chudasama related to a discovery dispute when the district court entered a default judgment against a defendant-manufacturer for failing to comply with a discovery order.³ In reversing the district court, the court was openly critical of the failure of the district court to supervise discovery as well as its apparent abdication to plaintiff's counsel of the responsibility of preparing sensitive, dispositive orders.⁴ Further, according to the opinion, a district court's failure to consider and rule on significant pretrial motions prior to issuing dispositive orders can constitute an abuse of discretion.⁵ While empathizing with the plight of the district courts following the imposition of strict case management deadlines,⁶ the court of appeals nonetheless expressed the view that critical pretrial motions cannot be deferred until a final pretrial conference unless absolutely necessary.⁷ Though framed as a direction to the district courts, the decision in Chudasama stands testament to the manner in which like cases will be treated in future appeals should a docket be ineffectively or improperly managed below.

Punctuating its commitment to aggressive docket management, the court of appeals in Fabric v. Provident Life & Accident Insurance Co.⁸ exercised its power to order summary judgment on appeal even though the beneficiary of that judgment did not assert a motion in the district court.⁹ Characterizing the insurance contract dispute case as a "slam dunk," the court noted that the power of an appellate court to award summary judgment even when not sought below has been widely recognized.¹⁰ For relief to be granted, all facts bearing on the issue decided must be before the court and must demonstrate that the nonmovant is entitled to judgment as a matter of law.¹¹ Given the court's express recognition that awarding summary judgment to a nonmovant is an accepted method of expediting litigation,¹² practitio- ners may wish to consider seeking that relief to avoid further proceedings in the district court after remand.

The court of appeals did not limit its guidance to the district courts in the past year. In Johnson v. City of Fort Lauderdale,¹³ the court emphasized attorneys' obligations under the Federal Rules of Appellate Procedure¹⁴ in the context of a qualified immunity appeal.¹⁵ Counsel for both parties were taken to task for failing to submit an adequate statement of relevant facts with corresponding record cites.¹⁶ The court further noted a violation of Eleventh Circuit Rule 28-2(I)(ii),¹⁷ which contemplates that a proper statement of facts reflects a high standard of professionalism, lists both favorable and unfavorable facts, and identifies all inferences drawn from the facts.¹⁸ The court cautioned that these requirements are not to be taken lightly, especially because the court of appeals is not required to cull an appellate record in search of facts not included in the statement of facts.¹⁹ That the court prominently placed this discussion at the forefront of the opinion and devoted time to its discussion should serve as a reminder to future practitioners before the court that the high standard set in the court rules is not merely directory.

An example of the consequences of failing to abide by the federal rules is found in Adler v. Duval County School Board,²⁰ a case relating to a challenge to a school district's policy of allowing prayer at a graduation ceremony.²¹ After finding that appellants' injunctive relief claims were moot given their graduation from high school, the court of appeals held that their damages claim had been waived due to their failure to appropriately address that claim by appellate brief.²² The court found appellants had failed to include the damages claim within their statement of issues presented for review and had omitted a demand that the court of appeals instruct the district court on remand to award monetary relief or hold proceedings thereon.²³ Construing this inatten-tiveness to the rules as a "glaring omission,"²⁴ the court plainly intends to hold litigants to the requirements of the rules when necessary to assure a fully developed record and a complete and concise argument of the issues to be decided upon appeal.

In Schlumberger Technologies, Inc. v. Wiley,²⁵ the court of appeals examined circuit law relative to the decision of a district court not to permit an attorney to practice in a pro hac vice capacity.²⁶ Noting some confusion regarding the relevant standard of review, the court indicated that it would review factual findings for clear error and the district court's application of the rules of professional conduct de novo.²⁷ The court of appeals vacated the lower court order and held that binding circuit precedent requires a showing of unethical conduct sufficient to justify disbarment of a lawyer in order to justify denial of admission pro hacvice.²⁸ In furtherance of its accountability posture through 1997, the court of appeals insisted that the district courts rest disqualification decisions on the violation of specific rules of professional conduct, not upon a subjective opinion that may vary from court to court.²⁹

III. Appellate Treatment of Interlocutory Matters

During 1997 the court of appeals had numerous opportunities to consider interlocutory matters. Appellate practice and procedure is implicit in interlocutory matters, perhaps more than in final matters, given that litigants bear the additional burden of assuring that a case is subject to immediate appeal. Often, failure to meet appropriate time deadlines or to demonstrate a case appropriate for interlocutory treatment will prove as fatal to the appeal as would untimely filing of a notice of appeal.³⁰

Section 1292(a)(1) of Title 28 of the U.S. Code confers upon courts of appeals jurisdiction to consider interlocutory appeals from decisions of the district courts granting, refusing, or dissolving injunctions.³¹ In undertaking review of such appeals, this circuit has adopted the view that the reviewing court delve no further into the merits than necessary to resolve the appeal.³² Courts have elected this approach not due to jurisdictional strictures but rather as an accommodation to sound judicial administration.³³ That approach did not change during 1997.

The court of appeals addressed the application of 28 U.S.C. Sec. 1292-(a)(1) in the bankruptcy context in In re Culton.³⁴ In Culton the district court ordered the bankruptcy court to undertake a further proceeding rendering the order appealed from interlocutory.³⁵ Alternatively, the parties argued that the appeal should be treated as one under 28 U.S.C. Sec. 1292(a)(1) because the district court order had the effect of nullifying a discharge of the debtor that could be considered to have injunctive effect.³⁶ Under Carson v. American Brands, Inc.,³⁷ an interlocutory order with injunctive effect that causes serious or irreparable consequences and can only be effectively challenged by immediate appeal may be appealed under section 1292(a)(1).³⁸ The court found that Culton did not meet the Carson test because all that occurred was the institution or reinstatement of a proceeding to revoke a discharge, and the court dismissed the appeal.³⁹

Certification of an order as final under rule 54(b) of the Federal Rules of Civil Procedure ("Rule 54(b)")⁴⁰ is another method by which an interlocutory decision may reach an appellate court. Evaluating this process in Ebrahimi v. City of Huntsville Board of Education,⁴¹ the court of appeals reiterated that a district court's Rule 54(b) certification is not conclusive on the appellate court.⁴² The court also noted that it will evaluate the certification in the interest of sound judicial administration but will not overturn the certification unless it was clearly unreasonable.⁴³ The court found the certification unreasonable in Ebrahimi and found no deference due the district court when it failed to clearly and cogently articulate the factual and legal reasons warranting certification.⁴⁴ The court of appeals criticized the district court for not undertaking to narrow and define the issues prior to certification and emphasized that sound judicial administration is not furthered when a three-judge panel must familiarize itself with a record that could have been evaluated by a single judge intimately familiar with the whole case.⁴⁵ The better practice, according to the per curiam opinion, was to certify questions warranting appeal under 28 U.S.C. Sec. 1292(b),⁴⁶ furnishing the appellate court with the opportunity to protect its docket and choose...