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

• Jurisdiction: United States,Federal
• Publication year: 2008
• Citation: Vol. 59 No. 4

Appellate Practice and Procedureby Robert G. Boliek, Jr.^*

If there is a single watchword for the Eleventh Circuit's decisions in 2007 in the arena of appellate practice and procedure, it is "jurisdiction." The requirement of a "final decision" received particular attention, as did the requirements for perfection of certain interlocutory appeals. The Eleventh Circuit also recognized an additional limitation on its jurisdiction over remand orders in removal cases. Accordingly, the first section of this Article will discuss cases that addressed questions of the Eleventh Circuit's appellate jurisdiction, followed by a section describing two notable cases that addressed the preservation and presentation of error. The final section discusses an interesting new chapter, revealed by recent cases, in the story of the Eleventh Circuit's application of the "prior panel precedent" rule.

I. Appellate Jurisdiction

A. Appeals from a Final Decision

It is axiomatic that the exercise of appellate jurisdiction generally requires a "final decision" of the district court.¹ "Normally, an order by the district court is not considered 'final' and appealable unless it 'ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment.'"² However, in certain circumstances, the appellate courts do have jurisdiction over appeals of decisions that do not actually end the litigation. In 2007 the United States Court of Appeals for the Eleventh Circuit had occasion to address its jurisdiction over a number of these appeals.

1. The Collateral Order Doctrine. Of particular interest is

McMahon v. Presidential Airways, Inc.,³ in which the Eleventh Circuit extensively discussed the "collateral order doctrine."⁴ "The collateral order doctrine—a 'practical construction' of the final decision rule—permits appeals from 'a small category of decisions that, although they do not end the litigation, must nonetheless be considered final.'"⁵

McMahon arose out of an aircraft accident involving a private air carrier under contract with the Pentagon to transport soldiers in and around Afghanistan. One of the carrier's planes crashed, killing three soldiers. Their survivors sued the carrier and affiliated entities for wrongful death. The carrier sought to dismiss the lawsuit, argu-ing—among other theories—that it was entitled to derivative immunity under the Feres doctrine.⁶

On appeal, after noting that "[t]he district court's pretrial denial of derivative Feres immunity does not qualify as a final judgment under the normal rule,"⁷ the Eleventh Circuit nonetheless held that it had jurisdiction under the collateral order doctrine.⁸ Under this doctrine, "[a]n interim decision is appealable as a collateral order only if it '(1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment.'"⁹

The Eleventh Circuit addressed the third requirement first, holding that the denial of the carrier's substantial claim of Feres immunity was "effectively unreviewable on appeal," because Feres immunity—like certain other immunities, such as Eleventh Amendment¹⁰ immunity, presidential immunity from civil damages, and the qualified immunity of federal officers—is "a true immunity from suit: i.e., an immunity that not only insulates the party from liability, but also prevents the party from being exposed to discovery and/or trial."¹¹ As a consequence, "[b]ecause immunity from suit entails a right to be free from the burdens of litigation, an erroneous denial cannot be redressed through review of the final judgment, and therefore must be reviewed on interlocutory appeal."¹² The Eleventh Circuit also explained that "[a] substantial claim to immunity from suit, not immunity itself, is the basis for a collateral order appeal."¹³ Thus, even an unsettled claim of immunity can implicate the "right to be free from the burdens of litigation" for purposes of determining whether a collateral order is "effectively unreviewable on appeal," so long as the claim of the immunity is a "substantial" one.¹⁴

In reaching this conclusion, the Eleventh Circuit cautioned that "a party must do much more than allege a 'right not to stand trial' in order to bring a collateral order appeal," given that "[t]he Supreme Court has observed that 'virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a right not to stand trial.'"¹⁵ Thus, "to prevent the erosion of the final judgment rule, 'it is not the mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is effectively unreviewable if review is to be left until later.'"¹⁶ On this point, the Eleventh Circuit held that the carrier's claim—that allowing the suit to proceed would threaten interference with sensitive military judgments—established a sufficiently "substantial public interest" for purposes of the collateral order doctrine, given that such interference implicated the doctrine of the separation of powers.¹⁷

Having resolved the question of whether the collateral order was "effectively unreviewable on appeal," the Eleventh Circuit readily concluded that the other two requirements of the collateral order doctrine were met.¹⁸ As to the first requirement—that the order conclusively determine the disputed question—the Eleventh Circuit held that "[e]ven if the district court reconsidered its decision after the motion to dismiss but prior to trial, its decision for the time being is 'conclusive' because it threatens to expose the contractor to arguably harmful discovery in the interim."¹⁹ The carrier likewise met the second requirement—that the order embrace an "important" issue separate from the merits of the action—because "[a]voiding judicial interference with sensitive military judgments is clearly an 'important' interest" and because the legal test for application of the Feres immunity "does not significantly overlap with the merits of the tort suit."²⁰

In comparison, Romero v. Drummond Co.²¹ involved far less challenging questions for an appellant asserting the collateral order doctrine. In Romero the plaintiffs alleged that a coal company and a number of its executives had "hired Colombian paramilitaries to kill and torture union members" at the company's mine in Colombia.²² The Eleventh Circuit was presented with two consolidated appeals arising from the district court's sealing of various documents related to the case.²³ As described by the Eleventh Circuit, "[t]he underlying complaint contains sordid allegations of intrigue, corruption, and assassination in Colombia, 'where the awful is ordinary.'"²⁴ The procedural history with respect to the sealing of the documents is complex, reflecting in part the district court's on-going concerns that any allegations and evidence presented prior to trial not interfere with any legitimate foreign policy interests of the United States.²⁵

One of the appeals involved an entry of a judgment of criminal contempt against counsel for the plaintiffs, whom the district court felt violated an order not to disclose the sealed documents.²⁶ As the Eleventh Circuit noted, "[u]nlike civil contempt, an order of criminal contempt is a final decision that is immediately appealable," and thus the appeal of the judgment of contempt did not present a jurisdictional issue.²⁷

The other appeal, however, required the Eleventh Circuit to address the collateral order doctrine.²⁸ This appeal was taken by a freelance journalist who had intervened in the district court to seek disclosure of certain sealed documents, arguing the common law right of access to judicial proceedings. The journalist challenged both the district court's decision to seal the documents in the first place as well as the denial of the journalist's motion to unseal them.²⁹ Given the ancillary nature of the journalist's interest with respect to the underlying merits of the case, it is not surprising that the Eleventh Circuit summarily held that "[t]hese orders are appealable as collateral to the underlying action because they conclusively determine a disputed question, resolve an important issue, and are effectively unreviewable on appeal from a final judgment."³⁰

McMahon and Romero thus present two extremes in the spectrum of factual situations in which the collateral order doctrine might be invoked: at one extreme is an appeal by a party seeking pretrial review of a dispositive defense; at the other extreme is an appeal by a stranger to the underlying dispute seeking review of an order affecting an important right that would not be resolved by a final judgment on the merits. In this respect, McMahon probably approaches the outer limit of the exercise of appellate jurisdiction under the collateral order doctrine. In the absence of the Eleventh Circuit's recognition of the potential "substantial public interest" at stake—the threatened "interference with sensitive military judgments"³¹ —it is hard to see how the air carrier in McMahon could have successfully invoked the collateral order doctrine.³²

Indeed, the Eleventh Circuit rejected the carrier's claim to derivative Feres immunity on the merits, in part because the Eleventh Circuit ultimately held that "Feres immunity is an inappropriate vehicle for a 'sensitive military judgments' immunity for private contractor agents."³³ Thus, while the carrier's claim of immunity was "substantial" enough for the Eleventh Circuit to take jurisdiction over the appeal under the collateral order doctrine, it was not substantial enough to carry the day.³⁴ As the Eleventh Circuit noted, "the natural result of our disposition is that an interlocutory appeal by a private military contractor asserting derivative Feres immunity will, in the future, be unnecessary because the claim to immunity based on...