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

• Publication year: 2009

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

One lasting impression of the United States Court of Appeals for the Eleventh Circuit's decisions during 2008 in the area of appellate practice and procedure will likely be the number of cases of first impression for the circuit, especially in regard to appellate jurisdiction. Accordingly, this Article will first discuss cases that addressed the Eleventh Circuit's appellate jurisdiction, followed by the cautionary tale of a case that illuminates the importance of knowing exactly when a judgment is deemed to be been entered for purposes of pursuing an appeal. The Article will conclude with a brief discussion of the standard of review that the Eleventh Circuit now applies to federal sentences in the wake of the United States Supreme Court's decision in Gall v. United States.¹

I. Appellate Jurisdiction

As the Eleventh Circuit recently noted, "[F]or this Court to exercise jurisdiction over an appeal, our jurisdiction must be both (1) authorized by statute and (2) within constitutional limits."² In 2008 the Eleventh Circuit had occasion to address both the statutory and constitutional aspects of appellate jurisdiction.

A. Appeals from a Final Decision

1. The Collateral Order Doctrine. The logic of appellate jurisdiction requires beginning with the "final," because the exercise of jurisdiction by a federal appellate court generally requires a "final decision" of the district court.³ "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.'"⁴ However, "[t]he 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 As the Eleventh Circuit explained in Carpenter v. Mohawk Industries, Inc.,⁶ the doctrine had its origin with the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corp.¹ "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."⁸

Carpenter, a case of first impression for the circuit, presented the appeal of an order requiring the production of documents claimed to be protected by the attorney-client privilege.⁹ After noting the uncontro-versial proposition that "discovery orders are normally not immediately appealable,"¹⁰ the Eleventh Circuit acknowledged that "[t]his circuit has 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"¹¹ as well as the existence of a split in the circuits on the matter.¹²

The Eleventh Circuit "conclude[d] that the challenged discovery order [was] not an appealable collateral order under Cohen,"¹³ holding that it did "not find that a discovery order . . . implicating] the attorney-client privilege [was] effectively unreviewable on appeal from a final judgment."¹⁴ In so holding, the Eleventh Circuit relied on its previous precedent denying application of the doctrine to an appeal involving an order requiring disclosure of materials implicating the accountant-client privilege¹⁵ 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."¹⁶ Instead, the Eleventh Circuit held that a petition for a writ of mandamus was the appropriate remedy for the prejudgment review ofdiscovery orders, including those implicating privileges.¹⁷

The Supreme Court has, however, granted a writ a certiorari in Carpenter;¹⁸ accordingly, the Eleventh Circuit apparently will not have the last word on this issue, and it will be interesting to see if the Supreme Court agrees with the Eleventh Circuit when it resolves the split in the circuits on this question.

In United States v. Snipes,¹⁹ which was also a case of first impression for the circuit,²⁰ the Eleventh Circuit held that an order denying a change of venue in a criminal case was not an appealable collateral order either.²¹ As with the order at issue in Carpenter, the Eleventh

Circuit concluded that "an order pertaining to venue is effectively reviewable after entry of judgment."²² Although the Eleventh Circuit did not explicitly hold, as it had in Carpenter, that mandamus was the appropriate remedy for review of the order in question prior to judgment, such a reading is consistent with the mandate in Snipes.²³

2. Finality in Bankruptcy Appeals. Bankruptcy presents another area in which the jurisdictional requirement of finality is given a "practical construction." In particular, "[fjinality is given a more flexible interpretation . . . because bankruptcy is an aggregation ofcontroversies and suits."²⁴ Thus, the Eleventh Circuit recognizes that "'[i]t is generally the particular adversary proceeding or controversy that must have been finally resolved rather than the entire bankruptcy litiga- tion.'"²⁵

Applying these principles in In re Donovan,²⁶ a case of first impression for the circuit,²⁷ the Eleventh Circuit held that an order denying a motion to dismiss a Chapter 7 bankruptcy case as abusive was not a final decision for purposes of appellate jurisdiction.²⁸ As the Eleventh Circuit explained, "the same concepts of finality apply in bankruptcy as in any other case, but they are applied to the discrete controversies within the administration of the estate; 'the separate dispute being assessed must have been finally resolved and leave nothing more for the bankruptcy court to do.'"²⁹ Thus, denial of the motion to dismiss was not a final order because the bankruptcy court "did not conclusively resolve the bankruptcy case as a whole, nor did the court resolve any adversary proceeding or claim."³⁰

However, in In re Walker,³¹ the Eleventh Circuit also recognized that bankruptcy cases sometimes require an even broader notion of the concept of finality than that applied in Donovan.³² In Walker the

Eleventh Circuit addressed the question of whether an order removing a bankruptcy trustee was a "final" order for purposes of the exercise of appellate jurisdiction, also an issue of first impression for the circuit.³³ After noting that a split in the circuits existed as to the issue, the Eleventh Circuit found the Third Circuit's approach to the issue to be persuasive, in particular its recognition that "the purpose of the finality requirement is judicial economy but that judicial efficiency would be 'turned on its head' if the court were to delay reviewing the trustee appointment until after the entire bankruptcy proceeding concluded."³⁴ Specifically, "[i]t would 'strain[] credulity to suggest that a reviewing court would jettison years of bankruptcy infighting, compromise[;] and final determinations solely for the purpose of reversing' on the issue of the identity of the trustee."³⁵ Thus, in at least some bankruptcy cases, "the finality requirement is met where practical considerations require it,"³⁶ even in the apparent absence of the final resolution of a particular claim.

B. Interlocutory Appeals

While "[i]n general, the final judgment rule permits an appeal to the circuit court only from a final judgment"—including judgments or decisions considered "final" like decisions appealable under the collateral order doctrine—appeals of interlocutory decisions "are permissible . . . in certain limited situations."³⁷ A familiar example would be an appeal from orders relating to injunctive relief authorized by 28 U.S.C. Sec. 1292(a)(1).³⁸

In Sierra Club v. Van Antwerp,³⁹ the Eleventh Circuit explained that "substance should control over form" in assessing whether an "injunction" is at issue for the purposes of section 1292(a)(1).⁴⁰ Thus, when the district court's "commands [are] of such specificity and breadth that no litigant would dare violate them" and "the district court could have initiated contempt proceedings" in the face of any such violation, the Eleventh Circuit may find that injunctive relief was in effect granted even in the face of a district court's express declaration to the con-trary.⁴¹ As the Eleventh Circuit more colorfully put it, in such cases "'we adhere to the time-tested adage: if it walks like a duck, quacks like a duck, and looks like a duck, then it's a duck.'"⁴²

In the context of disputes covered by arbitration agreements, section 16 of the Federal Arbitration Act (FAA)⁴³ "governs the appealability of interlocutory orders regarding arbitration."⁴⁴ In Advanced Bodycare Solutions, LLC v. Thione International, Inc.,⁴⁵ a case of apparent first impression,⁴⁶ the Eleventh Circuit held that "because the mediation process does not purport to adjudicate or resolve a case in any way, it is not 'arbitration' within the meaning of the FAA."⁴⁷ As such, "FAA remedies, including mandatory stays and motions to compel, are not appropriately invoked to compel mediation."⁴⁸ Accordingly, in the Eleventh Circuit, appellate jurisdiction over interlocutory orders involving agreements to mediate will presumably have to be premised on grounds other than those conferred by section 16 of the FAA in the future.⁴⁹

C. Constitutional Limitations on Appellate Jurisdiction

1. Adversity. The fact that a statute confers appellate jurisdiction over the appeal of a particular decision—whether that decision is final or interlocutory—does not end the jurisdictional inquiry. This is because, as noted above, the appellate court's jurisdiction must also be "within constitutional limits,"⁵⁰ including the question of whether the appealing party is sufficiently "adverse" with respect to the decision to be reviewed so that the appeal constitutes an actual "case or controversy" under Article III of the...