Appellate Practice and Procedure - K. Todd Butler

• Jurisdiction: United States,Federal
• Publication year: 2005
• Citation: Vol. 56 No. 4

Appellate Practice and Procedureby K. Todd Butler^*

This Article reviews federal appellate procedure developments in the Eleventh Circuit during the 2004 calendar year. As is the case each year, perhaps the most important procedural matter the Eleventh Circuit Court of Appeals considered was its own federal subject matter jurisdiction and that of the district courts in the Eleventh Circuit. If a matter is within the subject matter jurisdiction of the federal courts, or the federal appellate jurisdiction of the Eleventh Circuit, then the final order rule, along with the exceptions to the final order rule, dominate the consideration of whether a decision is subject to review. The applicability of the final order rule and its exceptions is discussed in this Article, along with questions pertaining to the proper preservation of matters in the district court for appeal and the presentation of those matters on appeal. Furthermore, this Article addresses the court's decision in Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A.,¹ which affords an opportunity to discuss some of the technical requirements for briefs filed in the Eleventh Circuit.

I. Federal Appellate Subject Matter Jurisdiction

The Eleventh Circuit, a United States federal court, is a court of limited jurisdiction that is at all times obligated to examine and challenge its own jurisdiction or the jurisdiction of district courts in actions it reviews.² The question of standing, for example, is a threshold question with respect to the power of the court to adjudicate the case and can be raised on appeal regardless of whether it was raisedin the district court.³ In each case the Eleventh Circuit decides, the court must conclude that it has subject matter jurisdiction over the questions presented on appeal. There are several examples of the Eleventh Circuit's review of its subject matter jurisdiction in 2004 that bear discussion. One such example is Rolling Greens MHP, L.P v. Comcast SCH Holdings L.L.C.,⁴ a case in which the court raised the issue of subject matter jurisdiction sua sponte.⁵ Other examples include Versa Products, Inc. v. Home Depot, Inc.⁶ and Chuang v. United States Attorney General⁷ in which the Eleventh Circuit addressed the role of statutes in determinations of federal appellate jurisdiction.⁸

In Rolling Greens, a case ostensibly before the court pursuant to diversity jurisdiction, the Eleventh Circuit noted that no allegations or findings in the record existed to indicate that the partners in plaintiff limited partnership were completely diverse from the members of defendant limited liability company.⁹ The facts stated in the parties' filings were sufficient only to determine that the two parties were legal entities organized under the laws of two different states.¹⁰ The court held that federal diversity jurisdiction requires that each partner of a party limited partnership be diverse from each member of a party limited liability company.¹¹ The Eleventh Circuit then remanded the case to the trial court for the limited purpose of determining diversity of citizenship in accord with the Eleventh Circuit's holding.¹²

Under Article III of the United States Constitution,¹³ a federal court has jurisdiction only to the extent that the United States Congress, which has the power to create jurisdiction, has in fact created jurisdiction by statute.¹⁴ In 2004 the Eleventh Circuit heard two cases in which a statute restricted opportunities for parties to appeal.¹⁵ In Versa Products, Inc., the court addressed the jurisdictional limitations created by 28 U.S.C. Sec. 1294.¹⁶ Section 1294 provides that, with theexception of the District Courts of the Canal Zone, the Virgin Islands, and Guam, an appeal from the decision of a district court must be taken to the court of appeals for the circuit where the district court is located.¹⁷ The court in Versa Products, Inc. held that under Sec. 1294, the Eleventh Circuit lacked jurisdiction to review an order of the United States District Court for the Eastern District of Missouri transferring a case to the United States District Court for the Northern District of Georgia because the Eastern District of Missouri is located in the Eighth Circuit rather than the Eleventh Circuit.¹⁸ For practical purposes, the decision in Versa Products, Inc. creates a bar on appeals of orders of district courts ouside the Eleventh Circuit to district courts inside the Eleventh Circuit.¹⁹ In Roofing & Sheet Metal Services, Inc. v. La Quinta Motor Inns, Inc.,²⁰ the Eleventh Circuit proposed that a party might preserve the right to appeal through the extraordinary writ of mandamus.²¹

In Chuang, the second case in which the Eleventh Circuit addressed statutory restrictions on appeals, the court held it retained jurisdiction to review the constitutionality of statutes restricting jurisdiction.²² Federal statute 8 U.S.C. Sec. 1252²³ denies any court jurisdiction to review a final order deporting an alien who has been convicted of committing an "aggravated felony."²⁴ In Chuang the court's jurisdiction was limited to reviewing whether a crime the petitioner had been convicted of fell within the statutory definition of "aggravated felony."²⁵ Nevertheless, the court had jurisdiction to review the constitutionality of the statute as applied to petitioner's circumstances.²⁶ Petitioner argued that by being denied the benefit of a waiver as a deportable alien, as opposed to an excludable alien who has the benefit of the waiver, he was denied his right to equal protection of the laws guaranteed by the Fifth Amendment of the United States Constitution.²⁷ The Eleventh Circuit,thus, had jurisdiction to consider his argument.²⁸ The court agreed with petitioner.²⁹

II. Decisions Subject to Appellate Review

In 2004 the Eleventh Circuit may have weakened the plaintiff's role as master of the case with its decisions in Versa Products, Inc. v. Home Depot, Inc.³⁰ and Ortega Trujillo v. Banco Central Del Ecuador.³¹ One of a plaintiff's greatest assets has long been the ability to dismiss a case within the statute of limitations without prejudice and file it again with a more precise set of pleadings or in a more appropriate venue.³² This asset was diluted with the adoption of Federal Rule of Civil Procedure 41(a)(2).³³ The Rule provides that if the defendant has answered or filed a motion for summary judgment, or unless the parties stipulate to dismissal, "an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper."³⁴ In both Versa Products, Inc. and Ortega Trujillo, the district court imposed terms and conditions requiring the plaintiffs to pay the defendants' attorney fees and litigation expenses prior to re-filing their claims.³⁵ These conditions acted as a practical bar to subsequent filings if the cases were voluntarily dismissed. Nevertheless, regardless of whether such terms and conditions practically barred subsequent filing, the Eleventh Circuit stated that the terms and conditions were not a legal bar.³⁶ Thus, an order conditioning voluntary dismissal without prejudice on payment of attorney fees and litigation expenses is not a final order subject to review.³⁷

Federal statute 23 U.S.C. Sec. 1291³⁸ provides, in general, only final decisions or orders are subject to appellate review.³⁹ In 2004 the Eleventh Circuit repeated the definition of "final" for the purpose of appeal: "'A final decision is one which ends the litigation on the meritsand leaves nothing for the court to do but execute the judgment.'"⁴⁰ Nevertheless, exceptions to the final order rule exist, one of which is provided at 28 U.S.C. Sec. 1292.⁴¹ Except for matters that must be appealed to the Court of Appeals for the Federal Circuit,⁴² courts of appeal have jurisdiction over "[i]nterlocutory orders of the district courts of the United States ... or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions . . . ."⁴³ Temporary restraining orders are not within the scope of the code section,⁴⁴ but the name a district court gives an order does not determine whether it is a preliminary or permanent injunction that may be appealed or a temporary restraining order that may not be appealed.⁴⁵ In AT&T Broadband v. Tech Communications, Inc.,⁴⁶ the Eleventh Circuit stated that an order designated as a "temporary restraining order" would be treated as a preliminary or permanent injunction, and would be subject to appeal, if three conditions were met: "(1) the duration of the relief sought or granted exceeds that allowed by a [temporary restraining order] (ten days), (2) the notice and hearing sought or afforded suggest that the relief sought was a preliminary injunction, and (3) the requested relief seeks to change the status quo."⁴⁷

Federal statute 28 U.S.C. Sec. 1291⁴⁸ contemplates final orders subject to appeal, but there are other orders, which are not strictly within the scope of Sec. 1291, that may also be appealed. The policy underlying appellate jurisdiction to review these orders is essentially the same as the policy underlying the distinction between interlocutory injunctions that are subject to review and temporary restraining orders that are not. As the Supreme Court stated in Cohen v. Beneficial Industrial Loan Corp.,⁴⁹ there exists a "small class [of decisions] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until thewhole case is adjudicated."⁵⁰ This is, of course, an application of 28 U.S.C. Sec. 1291 that demonstrates the Supreme Court's historical willingness to follow a practical application of the statute—a pragmatic interpretation directed at a result that works in the interest of justice, rather than a...