Appellate Practice and Procedure - William M. Droze and Andrea L. Siedlecki

• Publication year: 1999

Appellate Practice and Procedureby William M. Droze*and

Andrea L. Siedlecki**

I. Introduction

Appellate practice and procedure often dictates the resolution of cases presented for review. Although procedural rules are not implemented in a vacuum, and the particular facts and legal questions raised by each case necessarily determine their application, an analysis of appellate practice provides a valuable tool in assessing judicial trends by portraying the judicial character in a manner that transcends the peculiar circumstances of a given case.

An evaluation of recent appellate practice reveals an increased emphasis on judicial economy and efficiency. During 1998, the Eleventh Circuit appeared aware of the necessity of providing practitioners, parties, and lower courts with guidance regarding appellate practice and procedure. This awareness translated into enhanced efforts to provide detailed and thorough analyses of the relevant rules and their peculiar nuances. This trend should educate current and prospective participants in the judicial process and promote effective and efficient judicial administration by providing advance notice regarding the impact of procedural rules.

II. Trends Towards Judicial Economy, Efficiency, and Education

Throughout 1998 the court of appeals emphasized the importance of complying with procedural rules. The court accordingly refrained from exercising its discretion to consider certain appeals when the failure to adhere to procedural rules frustrated the goals sought to be fostered. In United States v. Salisbury,¹ for example, the court rejected the Government's petition for interlocutory review, pursuant to 18 U.S.C. Sec. 3731, of a district court order suppressing evidence in a criminal case on the ground of a filing irregularity.² Although the court retained discretion to consider the Government's petition even though the Government failed to comply with statutorily prescribed certification requirements,³ the court emphasized that the certification requirement is not a "mere formality," but serves the vital purpose of ensuring that the Government prudently evaluates a case before filing an appeal.⁴ The court accordingly dismissed the appeal because the Government neglected to certify the propriety of the appeal until a month after fifing its notice, and the court determined that permitting the Government to file its representation after initiating the appeal would defeat the purpose of the certification requirement.⁵ This case is significant given the procedural leniency typically afforded governmental litigants.

Although the Eleventh Circuit sought to promote compliance with appellate procedure, the court remained willing to excuse noncompliance when competing concerns overrode the importance of enforcing procedural rules. In re Russell Reed⁶ illustrates the court's attempt to balance diverse goals. The court generally refrains from addressing issues raised for the first time on appeal, yet may exercise its discretion to consider these issues when pure questions of law are presented or when necessary to avoid injustice.⁷ The court in In re Russell Reed evaluated appellant's allegations, raised for the first time on appeal, that the district court violated appellant's procedural due process rights and Federal Rule of Criminal Procedure 42(b) by failing to appoint an independent prosecutor to pursue criminal contempt proceedings and by neglecting to afford proper notice and a reasonable time to prepare for those proceedings.⁸ Although the court considered the novel arguments, it rejected appellant's contentions and determined that appellant had expressly waived any right to have an independent prosecutor appointed⁹ and had constructively waived any right to challenge the sufficiency of the notice provided by failing to raise the objection before the district court.¹⁰ By exercising its discretion to consider issues raised for the first time on appeal, the court exhibited its desire to promote sound judicial administration by resolving claims expeditiously and efficiently. In holding that appellant waived certain objections by neglecting to timely assert them before the district court, the court demonstrated its commitment to enforcing procedural rules and the critical importance of complying with such rules.

The court of appeals also sought to facilitate adherence to procedural rules by providing guidance to various judicial players. In Beck v. Prupis,¹¹ the court educated practitioners, parties, and lower courts by clarifying standing requirements for federal civil Racketeer Influenced and Corrupt Organization Act ("RICO") claims.¹² The district court determined that plaintiff's injuries derived from his status as a creditor and stockholder, and the court deemed these injuries too remote to provide plaintiff with RICO standing.¹³ The Eleventh Circuit disagreed, emphasizing that while a creditor or a stockholder lacks RICO standing when his claim derives exclusively from racketeering acts targeted at a corporation, a creditor or stockholder retains standing when he seeks redress for racketeering acts aimed at him.¹⁴ The Eleventh Circuit concluded that plaintiff retained standing to prosecute his claim, but upheld the district court's grant of summary judgment because plaintiff failed to proffer sufficient evidence to create a genuine issue of material fact.¹⁵ By refining the district court's rationale, the court increased the likelihood that the district court will properly resolve similar issues raised in the future, reduced the likelihood that the appellate court will have to revisit these types of issues, and ultimately expedited the fair and efficient resolution of litigants' claims.

The Eleventh Circuit provided additional guidance in Jews for Jesus, Inc. v. Hillsborough County Aviation Authority.¹⁶ The appellate court affirmed the district court's dismissal of the case as moot because defendant had revoked the literature distribution policies challenged as unconstitutional during the pendency of the lawsuit.¹⁷ The court explained that a claim becomes moot when events subsequent to the commencement of suit preclude the court from providing meaningful relief.¹⁸ The court emphasized that although the mere voluntary cessation of a challenged activity does not necessarily render a controversy moot, if there exists no reasonable expectation that the defendant will resume the controverted activity subsequent to the lawsuit's dismissal, the court lacks jurisdiction to resolve the dispute.¹⁹ In Jews for Jesus, Inc., the court disregarded as insignificant the possibility that defendant would resume the purportedly unconstitutional activity or subject plaintiff to the same unlawful action again.²⁰ The court rejected the "capable of repetition yet evading review" doctrine as a way to render the claim justiciable because the court found no reasonable expectation that the challenged activity would recur.²¹ The court advised in dicta, however, that should defendant subsequently reinstate the challenged policies or adopt comparable ones, plaintiff would retain a viable cause of action.²² Defendant could not render this action moot merely by revoking the challenged activity, moreover, because the repeated vacillation would create a reasonable expectation that the controverted conduct would persist.²³ The court's detailed analysis educates various judicial participants and arguably mitigates waste of finite judicial resources by deterring prospective litigants from raising similarly moot claims and by enabling the lower courts to resolve these claims expeditiously.

The Eleventh Circuit's opinion in Johnson Enterprises of Jacksonville, Inc. v. FPL Group, Inc.²⁴ illustrates the increased emphasis on promoting efficiency and economy. The court relied on the particular facts of the case to sharply criticize a "broader phenomenon" labeled "shotgun pleading."²⁵ The court described the phenomenon as follows: a complaint commences the action with a long list of general allegations most of which are immaterial to the claims for relief; the complainant incorporates by reference the general allegations into each count of the complaint; and the defendant replies with an answer that responds to each and every statement contained in the complaint.²⁶ The Eleventh Circuit condemned trial courts' tolerance of such shotgun pleadings and concomitant failure to aggressively dictate a narrowing of issues to the extent practicable in the preliminary stages of litigation, reasoning that, "if the trial judge does not [at this point] quickly demand repleader, all is lost—extended and largely aimless discovery will commence, and the trial court will soon be drowned in an uncharted sea of depositions, interrogatories, and affidavits."²⁷ A "massive waste of judicial and private resources" results from this abdication of the trial court's "duty" to define and delimit the controverted issues, "litigants suffer, and society loses confidence in the court[s'] ability to administer justice."²⁸ By explicitly delegating responsibility to trial courts to define and narrow disputes, the Eleventh Circuit used Johnson Enterprises of Jacksonville, Inc., as a forum to curb perceived abuses, foster expeditious resolution of claims, and to reduce unnecessary burdens on limited judicial resources.

III. Appellate Treatment of Interlocutory Matters

Although appellate courts generally review final judgments only, they may exercise interlocutory jurisdiction in prescribed circumstances. Appellants who seek interlocutory review bear the burden of demonstrating that the issues presented are subject to immediate review. The failure to satisfy this burden may prove as fatal as neglecting to file a notice of appeal or fifing this notice in an untimely fashion.²⁹

There are several avenues available for litigants to obtain appellate interlocutory review. First, appellate courts retain jurisdiction to evaluate interlocutory appeals from...