Appellate Practice and Procedure - K. Todd Butler

• Publication year: 2004

Appellate Practice & Procedureby K. Todd Butler^*

I. Introduction

This Article reviews cases decided in 2003 by the United States Court of Appeals for the Eleventh Circuit that have the greatest bearing on issues of federal appellate procedure for attorneys practicing in the Eleventh Circuit. Topics reviewed include parties' designation of matters appealed in the Notice of Appeal; parties' actions taken during or prior to trial to preserve issues for appeal; the interlocutory jurisdiction of appellate courts; the lack of appellate jurisdiction resulting from the mootness of issues appealed; and the invited error and judicial estoppel rules.

II. Notice of Appeal

An appeal of right is initiated when the appellant files a Notice of Appeal with the clerk of the district court that rendered the decision and from which appeal is sought pursuant to Rule 3 of the Federal Rules of Appellate Procedure.¹ The "[N]otice of [A]ppeal deprives the district court of jurisdiction over all issues" that are subject to the appeal as noticed pursuant to Rule 3.² Lacking jurisdiction, the district court may take no further action on the case, other than action in furtherance of the appeal or action with respect to matters collateral to the appeal.³ In Mahone v. Ray,⁴ the Eleventh Circuit held that after the filing of a Notice of Appeal, the district court retains jurisdiction to deny motions made pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.⁵ However, the district court does not have jurisdiction to enter an order granting the same motion; the district court can only indicate to the appellate court that it believes the arguments raised are meritorious.⁶ Rule 3 provides additional instructions regarding Notices of Appeal, including instructions on matters of content, service, and payment of fees.⁷ For example, an appellant must "designate the judgment, order, or part thereof being appealed" in the Notice of Appeal.⁸ In Whetstone Candy Co. v. Kraft Foods, Inc.,⁹ plaintiff-appellant's notice of appeal designated the district court's summary judgment as the judgment from which it was appealing, but it did not designate an order dismissing a co-defendant for lack of personal jurisdiction.¹⁰ By specifically including the summary judgment in the Notice of Appeal and failing to list the dismissal of a co-defendant, the appellant effectively deprived the appellate court of jurisdiction over the co-defendant dismissal issue.¹¹ Note, however, if the Notice of Appeal clearly shows that appellant's "overriding intent" was to effectuate an appeal of a judgment, order, or any part of the judgment or order, technical failure to make designations in the notice will not defeat the appeal.¹²

III. Preservation of Issues for Appeal

In Burke v. Ruttenberg,¹³ the State of Wisconsin Investment Board ("SWIB") appealed an order of the District Court for the Northern District of Alabama allocating attorney fees in a securities class action suit. In an effort to reduce the amount of attorney fees, SWIB argued on appeal that, because it was the party with the greatest financial interest in the relief sought and because it otherwise satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure,¹⁴ it should have been appointed lead plaintiff.¹⁵ The district court had appointed a committee of lead plaintiffs, in which SWIB participated, to direct the litigation. SWIB wanted its contract with its own attorneys to govern the allocation of attorney fees because then SWIB could force a reduction in the amount of attorney fees accordingly. SWIB attempted to force the reduction after it consented to the settlement obtained by the attorneys for the lead plaintiffs' committee.¹⁶ The Eleventh Circuit held that by consenting to the settlement, SWIB failed to adequately preserve any right to appeal the settlement.¹⁷ However, the Eleventh Circuit remanded the case to the district court because a district court order allocating attorney fees among counsel for lead plaintiff's committees in securities class action lawsuits should contain findings of fact and the court's rationale for the allocation.¹⁸

When district courts deny qualified immunity to government officials in cases arising out of official action or inaction in performing discretionary duties, government officials are entitled to immediate interlocutory review under 28 U.S.C. Sec. 1291.¹⁹ Nevertheless, the government official can waive the affirmative defense of qualified immunity by failing to properly preserve it for appeal or by waiving it at trial.²⁰ In Bogle v. McLure,²¹ defendants tried to establish the defense of qualified immunity, which "offers complete protection for government officials sued in their individual capacity if their conduct 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'"²² Defendants argued that reasonable public officials in their positions would not have known that the actions forming the basis of the 42 U.S.C. Sec. 1983²³ action against them violated the clearly established constitutional rights of plaintiffs.²⁴ The Eleventh Circuit denied this argument because defendants waived the right to appeal the district court's refusal to grant them qualified immunity.²⁵ In fact, defendants stipulated at trial that they "never argued that [they] didn't know that transferring people based on their race is against the law," and they knew "absolutely" that "it was a violation of federal law to transfer people on the basis of their race."²⁶ By stipulating that they knew that their conduct would constitute a violation of plaintiff's constitutional rights, defendants waived the right to appeal.²⁷

Failure to object to the district court's procedure for enforcing an injunction will be deemed a waiver of an appeal based on the defective procedure because the objection is necessary to preserve the issue for appeal.²⁸ However, a party that undertakes to comply with an injunction, and does not specifically object to entry of the injunction, does not necessarily waive its right to appeal.²⁹ In Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr, S.A. ,³⁰ defendant-appellant did not object to the prohibitory portion of an injunction, stating instead that it had "no problem with [it]" because it was not engaging in the activity the injunction prohibited.³¹ Plaintiff-appellee argued the appeal was mooted by appellant's consent to the injunction,³² but the Eleventh Circuit held appellant's consent was substantively a denial of wrongdoing.³³ Appellant's affirmative denial that it was engaging in the enjoined activity preserved the issue for appeal, even though appellant had offered no opposition to the district court's injunctive order.³⁴

Similar to Bogle,³⁵ the Eleventh Circuit's holding in Russell v. North Broward Hospital,³⁶ stands for the proposition that on appeal, a party may not argue a case to the appellate court different from the one argued to the district court.³⁷ In Russell plaintiff had been disciplined for unscheduled absences on three occasions over the course of two and one-half years prior to suffering an on-the-job injury on May 31, 2000. At least some of plaintiff's absences prior to her injury appear to have been related to bouts of depression and migraine headaches. Because of the injury, plaintiff missed approximately thirty hours of work from May31, 2000 to June 9, 2000. On June 12, 2000, plaintiff was terminated for excessive absenteeism. At trial plaintiff attempted to prove, under the Family and Medical Leave Act ("FMLA"),³⁸ that she was terminated in retaliation for exercising an alleged right to be absent from work that accrued to her after her injury.³⁹ Plaintiff also alleged that defendant retaliated against her for filing a claim under the Florida Workers Compensation Act, and she amended her complaint to allege a claim under 42 U.S.C. Sec. 1983.⁴⁰ The jury returned a verdict for the employer based in part on the trial court's instruction that under 29 U.S.C. Sec.2611(11) and 29 C.F.R. Sec. 825.114,⁴¹ a serious medical condition warranting excused absence under FMLA required "three consecutive calendar days, 72 hours or more" of incapacity.⁴² The district court denied plaintiff's motion for judgment as a matter of law or, in the alternative, for a new trial.⁴³ on appeal plaintiff argued that if the discipline she received prior to her injury contributed to defendant's decision to terminate her, the reprimands and suspension were nevertheless illegally imposed on her for exercising her FMLA rights.⁴⁴ Plaintiff's argument on appeal would have effectively changed the entire posture of the case.⁴⁵ Under FMLA an employee may have either an "interference" claim or a "retaliation" claim.⁴⁶ Plaintiff originally had alleged a retaliation claim, which is more difficult to prove because retaliation claims require an employee-plaintiff to show state of mind or that the employer was "motivated by an impermissible retaliatory or discriminatory animus."⁴⁷ Interference claims are easier to establish because they require a plaintiff to show only that she was entitled to and denied a benefit.⁴⁸ Though plaintiff's trial counsel suggested that the FMLA claim had ties to the employer's progressive discipline policy, counsel nevertheless acknowledged on the record that no FMLA claim was being asserted for the discipline imposed for illness-related absences prior to the May 31, 2000 injury.⁴⁹ Accordingly, the appellate court refused to hear plaintiff's argument.⁵⁰

Bogle and Russell both stand for the general rule that "'a federal appellate court does not consider an issue not passed upon below.'"⁵¹ However, courts have held that when an issue was not brought to the attention of the trial court, the appellate court may nevertheless review the issue if the proper resolution of the case is beyond any doubt⁵² or if injustice might otherwise result.⁵³

IV. Interlocutory Jurisdiction

In 2003...