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

Publication year2010

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

The United States Court of Appeals for the Eleventh Circuit addressed a wide array of significant issues in the area of appellate practice and procedure in 2009.1 However, the most significant decision for the Eleventh Circuit in the area of appellate procedure came from the United States Supreme Court. In Mohawk Industries, Inc. v. Carpenter,2 the Supreme Court affirmed a 2008 Eleventh Circuit decision in which the court held that the collateral order doctrine does not allow for an immediate appeal of an order requiring the disclosure of evidence purportedly protected by the attorney-client privilege.3

Accordingly, this Article will first discuss Carpenter in the context of the Eleventh Circuit's appellate jurisdiction under the collateral order doctrine and then discuss other significant cases in which the Eleventh Circuit elaborated upon the question of its jurisdiction. This Article will then discuss cases in which the Eleventh Circuit addressed issues such as the timeliness of the filing of a notice of appeal in criminal cases, the preservation of error in cases referred to magistrate judges, and a number of cases deciding or elaborating upon the applicable standard of review.

I. Appellate Jurisdiction

As the Eleventh Circuit has recently noted, "for this Court to exercise jurisdiction over an appeal, our jurisdiction must be both (1) authorized by statute and (2) within constitutional limits."4 As a practical matter, the first requirement for the exercise of appellate jurisdiction ("authorized by statute") usually means that the decision from which the appeal is taken must be a "final" decision for purposes of 28 U.S.C. Sec. 1291.5 Section 1291 is the "workhorse" jurisdictional statute for the courts of appeals because it "'generally vests courts of appeals with jurisdiction over appeals from "final decisions" of the district courts.'"6

A. Appeals from "Final" Decisions

Usually, "[a] final decision is one that 'ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment.'"7 Notwithstanding this definition, a limited number of decisions are considered "final" for purposes of Sec. 1291 despite the fact that they do not end the litigation on the merits.8

1. The "Collateral Order" Doctrine

Among such "final" decisions are those that qualify as "collateral orders" under the "collateral order doctrine." The collateral order doctrine is "a 'practical construction' of the final decision rule [that] permits appeals from 'a small category of decisions that, although they do not end the litigation, must nonetheless be considered "final."'"9 The doctrine had its origin in the Supreme Court's decision in Cohen v.

Beneficial Industrial Loan Corp.10 "Under Cohen, an order is appealable 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."11

a. The Supreme Court's 2009 Decision in Mohawk Industries v. Carpenter. In 2008 the Eleventh Circuit decided Carpenter v. Mohawk Industries, Inc.,12 a case the Supreme Court would ultimately review.13 In Carpenter the Eleventh Circuit was presented with the appeal of an order requiring the production of documents claimed to be protected by the attorney-client privilege.14 After noting the uncontro-versial proposition that "discovery orders are normally not immediately appealable,"15 the Eleventh Circuit acknowledged that "[t]his circuit ha[d] not, however, directly addressed the question of whether a discovery order compelling the disclosure of information claimed to be protected by the attorney-client privilege can be appealed before final judgment under Cohen" as well as the existence of a split in the circuits on the matter.16

In addressing the third requirement of the Cohen test, the Eleventh Circuit "conclude[d] that the challenged discovery order [was] not an appealable collateral order under Cohen."17 The Eleventh Circuit explained that it did "not find that a discovery order . . . implicating] the attorney-client privilege [was] effectively unreviewable on appeal from a final judgment."18 In so holding, the Eleventh Circuit relied on its precedent denying application of the doctrine to an appeal involving an order requiring disclosure of material implicating the accountant-client privilege and the fact that "[the] Court ha[d] never exercised [its] jurisdiction under the collateral order doctrine to review any discovery order involving any privilege."19 Instead, the Eleventh

Circuit held that a petition for a writ of mandamus was the appropriate remedy for the prejudgment review of discovery orders, including those implicating privileges.20

In 2009 the Supreme Court resolved the circuit split by affirming the Eleventh Circuit's decision in Mohawk Industries, Inc. v. Carpenter,21 a case of historical, as well as procedural, interest because it was Justice Sotomayor's first opinion for the Court.22 In affirming the Eleventh Circuit, the Supreme Court limited its opinion to the question of whether an order of disclosure was "effectively unreviewable" under the third requirement of Cohen and in essence agreed with the Eleventh Circuit's analysis by holding that "[p]ostjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege."23 of particular interest was the Supreme Court's reiteration of the principle that "the class of collaterally appealable orders must remain 'narrow and selective in its membership'"24 to avoid potentially burdensome piecemeal appeals to the circuit courts.25 The Court recognized that "[t]his admonition has acquired special force in recent years with the enactment of legislation designating rulemaking, 'not expansion by court decision,' as the preferred means for determining whether and when prejudgment orders should be immediately appeal-able."26 Consequently, the Court concluded:

We expect that the combination of standard post judgment appeals, Sec. 1292(b) appeals, mandamus, and contempt appeals will continue to provide adequate protection to litigants ordered to disclose materials purportedly subject to the attorney-client privilege. Any further avenue for immediate appeal of such rulings should be furnished, if at all, through rulemaking, with the opportunity for full airing it provides.27

In short, the federal courts continue to receive appeals of previously unrecognized or novel collateral orders with little sympathy. As a result, their recognition will likely depend on the rulemaking process and not on litigation.

b. The Eleventh Circuit's Collateral Order Decisions. While a decision may sometimes be "effectively unreviewable on appeal" under Cohen's third requirement because it requires a party to face burdensome litigation it would not otherwise have to face, the Eleventh Circuit carefully adheres to the proposition that "to prevent the erosion of the final judgment rule, 'it is not 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.'"28 Although courts frequently address the question of whether a stay order is "final" for purposes of an appeal under the "effectively out of court" doctrine discussed below,29 the Eleventh Circuit analyzed the stay order issued in Miccosukee Tribe of Indians of Florida v. South Florida Water Management District30 under the collateral order doctrine as well. In Miccosukee Tribe, the United States District Court for the Southern District of Florida issued a stay order deferring decision until such time as the Eleventh Circuit decided an appeal in a related case.31 The Eleventh Circuit held that the stay was not appealable under the collateral order doctrine.32 Specifically, the Eleventh Circuit concluded that the "important issue[s]" of federalism or international comity are not implicated by such a stay33 (as would be the case with stays in favor of state or foreign court proceedings).34 Accordingly, the plaintiffs had no "substantial public interest" in asserting a right to simultaneously prosecute two federal lawsuits with common issues and could not justify an immediate appeal.35

Moreover, in W.R. Huff Asset Management Co. v. Kohlberg, Kravis, Roberts & Co.,36 the Eleventh Circuit recognized that an order of a federal district court may be "effectively reviewable" on appeal, even when that appeal will be in a state court.37 In particular, the court held that an order granting leave to amend a complaint substituting parties and resulting in the destruction of subject matter jurisdiction38 is not a collateral order because the order can be reviewed after remand in the state appellate courts,39 at least where the state courts would not be collaterally estopped from reaching the merits and are otherwise competent to apply the underlying federal law governing the case.40

2. Stay Orders

"The general rule is that a stay is not a final disposition, and thus not immediately appealable."41 An exception exists, however, "for stays that put a plaintiff 'effectively out of court,' and in applying that exception [the Eleventh Circuit] ha[s] held that a stay order that is immoderate and involves a protracted and indefinite period of delay is final and appealable under 28 U.S.C. Sec. 1291."42 As the Eleventh Circuit's decision in Miccosukee Tribe makes clear, however, the "effectively out of court" doctrine is unlikely to apply to a stay issued in favor of related proceedings in another federal forum.43

The Eleventh Circuit noted, "Because [the stay] does not require the federal court plaintiffs to await a decision from a non-federal court or other tribunal, they have not been put effectively out of court...

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