Appellate Practice and Procedure - William M. Droze and Suzanne F. Sturdivant

• Publication year: 2001

Appellate Practice and Procedureby William M. Droze^* and Suzanne F. Sturdivant^**

I. Introduction

In 2000 the United States Court of Appeals for the Eleventh Circuit was called upon to decide high profile and difficult issues. It helped determine the fate of young Elian Gonzalez¹ and the course of President Bush and former Vice President Al Gore's legal battles for the presidency.² Yet some of these decisions—and many others—turned on less sensational procedural questions. This Article examines the role that procedural issues have played in the court's recent opinions. It is intended to help practitioners gauge trends in the court's approach to interlocutory matters; timeliness of notice of appeal and presentation of argument; the doctrines of standing, ripeness, and mootness; and standards of review on appeal.

II. Procedural Issues in the Election Cases

In the late fall of 2000, the Eleventh Circuit Court of Appeals faced some complex procedural issues when it heard appeals from several of the cases that arose from disputed presidential election results in Florida. In Siegel v. Lepore,³ the court considered under what circum- stances it could not review a final judgment of a state court and when it should abstain from cases involving state law issues. Then presidential candidate George W. Bush, vice presidential candidate Dick Cheney, and several Florida voters asked the court to enjoin local authorities in four Florida counties from manually recounting presidential ballots cast on November 7, 2000. Among other things, plaintiffs claimed that the manual recounts violated their rights under the Due Process and Equal Protection clauses of the Fourteenth Amendment.⁴ The district court had refused to halt the recounts, and the Eleventh Circuit Court of Appeals affirmed.⁵

The court began by considering whether it had subject matter jurisdiction, noting that the Rooker-Feldman doctrine prevented all federal courts except the United States Supreme Court from reviewing "the final judgments of state courts."⁶ The court stated this doctrine also applied to claims that are "inextricably intertwined with a state court judgment."⁷ Although plaintiffs sought review of the federal district court's refusal to grant an injunction, their constitutional claims were apparently "inextricably intertwined" with the Florida Supreme Court's decision requiring Florida Secretary of State Katherine Harris to accept late results of manual recounts.⁸ Ordinarily, this could have weakened the court's ability to assert subject matter jurisdiction over plaintiffs' constitutional claims. However, because the United States Supreme Court had vacated the Florida Supreme Court's decision by the time the Eleventh Circuit Court of Appeals decided Siegel, the court found it "unclear . . . that any final judgments giving rise to Rooker-Feldman concerns . . . exist[ed]."⁹

The court then addressed whether the mootness doctrine defeated its subject matter jurisdiction over plaintiffs' claims.¹⁰ Defendants, members of several Florida counties' canvassing boards, argued that plaintiffs' claims were moot because the counties already had completed the manual recounts and certified the results with the state Elections Canvassing Commission.¹¹ At the time, however, then Vice PresidentAl Gore had filed suit in several Florida state courts to contest election results.¹² Because the Florida courts had not resolved those suits at the time the court of appeals reviewed this case, the "ever-shifting circumstances" surrounding plaintiffs' claims ensured that the court was addressing a "live" controversy.¹³ The court, therefore, found that the issue was not moot.¹⁴

Siegel also presented the court of appeals with abstention issues.¹⁵ Defendants argued that even if the court had subject matter jurisdiction over plaintiffs' claims, it should have abstained from hearing the case under the Burford doctrine.¹⁶ The Burford doctrine gives federal courts the discretion to dismiss a case (1) if the matter "presents difficult questions of state law bearing on policy problems of substantial public import" and (2) if resolving the case in federal court would "disrupt state efforts to establish a coherent policy."¹⁷ The court stated that this doctrine should be applied as '"an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.'"¹⁸

The court also noted that the doctrine "protect[s] complex state administrative processes from undue federal interference."¹⁹ It found, however, that plaintiffs' appeal did not impair defendants' ability to conduct elections and resolve related disputes because plaintiffs challenged only "discrete practices" sanctioned by a specific statute—not the entire election process.²⁰ Moreover, the court stated that the case did not undermine Florida's ability to achieve uniform results throughout the disputed counties because defendants were actually challenging the alleged absence of "strict and uniform standards for . . . conducting . . . recounts."²¹

The court also considered whether it should abstain under the Pullman doctrine, which allows a federal court to defer to a state court's resolution of state law issues.²² Under this doctrine, a federal court may abstain if (1) the case presents an "unsettled question of state law" and (2) the state law question is dispositive or would "materially alter" any constitutional questions presented.²³ The court noted that the doctrine helped avoid conflict between federal and state functions, kept the federal government from interfering with important state functions, and prevented premature decisions on constitutional questions.²⁴ Although the court stated that the Pullman doctrine represented defendants' "most persuasive justification" for abstention, it nevertheless found that abstention was "particularly inappropriate" in a case that alleged a constitutional violation of plaintiffs' voting rights.²⁵ Thus the court refused to abstain and considered the appeal.²⁶

III. Appellate Treatment of Interlocutory Matters

Federal courts of appeals have jurisdiction to review cases after district courts issue final decisions.²⁷ In some cases they may also have jurisdiction to hear interlocutory appeals, which are those filed before the lower court renders final judgment. This jurisdiction originates from several sources. First, 28 U.S.C. Sec. 1292(a)(1) gives federal courts of appeals jurisdiction to hear appeals from "[i]nterlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court."²⁸ In 2000, however, the Eleventh Circuit Court of Appeals did not hear an interlocutory appeal based on jurisdiction under this statute.²⁹

The court did review an appeal brought under 28 U.S.C. Sec. 1292(a)(3), which gives federal courts of appeals jurisdiction over challenges to "[i]nterlocutory decrees of such district court or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed."³⁰ In Beluga Holding,Ltd. v. Commerce Capital Corp.³¹ the Eleventh Circuit Court of Appeals noted that other courts have interpreted this provision narrowly, and it ultimately found that it lacked jurisdiction to review the district court's decision.³² The court noted that the case began as a suit in admiralty because it involved an action to foreclose on a ship's mortgage.³³ Appellant, however, asked the court to review the district court's decision to grant summary judgment on a related claim for conversion of stock certificates.³⁴ Thus, even though one of appellant's claims was "cognizable in admiralty," the court found that it did not have jurisdiction under 28 U.S.C. Sec. 1292(a)(3) because the order that appellant appealed actually resolved a related nonadmiralty claim.³⁵

Under certain circumstances, a federal court of appeals may review an order even if it does not fall within the classes defined in Section 1292(a).³⁶ Section 1292(b) gives a court of appeals discretion to review an order that otherwise would not be appealable when a district judge determines that it "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation."³⁷ When the district court certifies the matter for appeal, the appellant must appeal within ten days.³⁸ The appeal does not stay the district court proceedings unless the district court or court of appeals so orders.³⁹ With little explanation, the Eleventh Circuit Court of Appeals found that it had jurisdiction over appeals under 28 U.S.C. Sec. 1292(b) at least twice in 2000.⁴⁰

Under the collateral order doctrine, a federal appeals court may review a district court's order even if (1) the order is not final, (2) it does not fall within the class of orders listed under 28 U.S.C. Sec. 1292(a), or (3) it has not been certified for appeal by a district court under 28 U.S.C. Sec. 1292(b).⁴¹ The Supreme Court recognized this doctrine in Cohen v.Beneficial Life Industrial Loan Corp.⁴² and the Eleventh Circuit Court of Appeals applied it several times in 2000.⁴³ Under Cohen a court of appeals may review orders that "(1) finally determine claims entirely collateral to and separable from the substance of other claims in the action, (2) require review because they present significant, unsettled questions, and (3) cannot be reviewed effectively once the case is finally decided."⁴⁴ In Crawford & Co. v. Apfel,⁴⁵ an employer and its insurance carrier repeatedly sought to intervene in an employee's social security disability case. The district court ultimately found that the corporations were proper parties.⁴⁶ On appeal the court of appeals found that the issue...