Appellate Practice and Procedure - Lawrence A. Slovensky

• Publication year: 1997

Appellate Practice and Procedureby Lawrence A. Slovensky^*

I. Introduction

The United States Court of Appeals for the Eleventh Circuit decided several cases during 1996 which represented significant additions or modifications to the law governing appellate practice and procedure in this circuit. For example, the court attempted to clarify the circumstances in which interlocutory collateral orders involving the qualified immunity defense can be appealed, announced a new definition for "excusable neglect" in determining whether an untimely notice of appeal can be allowed, and analyzed the use of the harmless error rule in instructional omission cases. This Article will survey developments in appellate practice and procedure in the Court of Appeals for the Eleventh Circuit during 1996.

II. Appellate Jurisdiction—Appealability of Orders

One of the first decisions an appellate court makes in every appeal, explicitly or implicitly, is to determine whether the lower court order presented for review is "appealable." The Court of Appeals for the Eleventh Circuit recently noted that, "[a]s a court of limited jurisdiction, we are obliged to examine the basis for our jurisdiction, doing so on our own motion if necessary. Thus, before we may address the merits of this appeal, we must determine whether the district court's order is appealable."¹ The discussion below will highlight some of the cases decided by the Court of Appeals for the Eleventh Circuit during 1996 which address the appealability requirement.

A. Appeals from "Final Decisions" under 28 U.S.C. Sec. 1291

Under 28 U.S.C. Sec. 1291,² the courts of appeals have jurisdiction over appeals from "all final decisions of the district courts of the United States."³ As the United States Supreme Court has explained, "[t]he requirement of finality precludes consideration of decisions that are subject to revision, and even of 'fully consummated decisions [that] are but steps toward final judgment in which they will merge.'"⁴

The Court of Appeals for the Eleventh Circuit decided several cases during 1996 involving close questions of whether district court orders from which an appeal had been taken were "final decisions" for purposes of 28 U.S.C. Sec. 1291. In Grayson v. K Mart Corp.,⁵ for example, the court held that a district court order that dismissed plaintiffs' claims but which gave plaintiffs the right to refile their claims was not a final decision under Section 1291.⁶ Plaintiffs filed an age discrimination lawsuit but, after commencement of the lawsuit, became eligible to join in another pending class action lawsuit involving the same allegations against the same defendants.⁷ The district court dismissed without prejudice the pending lawsuit and provided that plaintiffs would be allowed to refile their lawsuits if plaintiffs were not allowed to join in the other pending lawsuit.⁸ In the consolidated appeal that ensued, the court of appeals held that the district court's order, while appearing in form to be an appealable final order of dismissal, was in reality a transfer order and was not appealable.⁹ Similarly, in Stillman v. Travelers Insurance Co.,¹⁰ the court of appeals held that a district court order which purported to enter a "final summary judgment," but which did not adjudicate some of the nonmovant defendant's defenses in an insurance coverage dispute, was not a final order under 28 U.S.C. Sec. 1291 and was not appealable.¹¹

In Jackson v. Chater,¹² the court of appeals held that the district court's order remanding a Social Security disability case to the Commis- sioner of Social Security under 42 U.S.C. Sec. 405(g) was a final order and could be appealed to the court of appeals.¹³ The court based its conclusion that the order was final, in part, on the fact that the district court's order of remand did not contemplate that the case would be returned to the district court.¹⁴

In In re Six,¹⁵ the court indicated that the finality requirement is more expansively interpreted in the bankruptcy setting. The district court in In re Six entered an order on appeal from the bankruptcy court denying a motion for summary judgment in an adversary proceeding involving a sizeable claim in the bankruptcy, along with an order in the main bankruptcy case disallowing that same claim.¹⁶ In the appeal to the Court of Appeals for the Eleventh Circuit, the court held that while the denial of the motion for partial summary judgment in the adversary proceeding was interlocutory and thus ordinarily nonappealable, the district court's order met the "more flexible standard of finality" in the bankruptcy setting because of the size of the claim at issue and the similarity between the interlocutory order in the adversary proceeding and the final order in the main bankruptcy case.¹⁷

The court also addressed its provisional jurisdiction under the Eleventh Circuit's "anomalous rule," which allows appeals from the denial of a motion to intervene despite the fact that such orders do not formally constitute final orders. In Grilli v. Metropolitan Life Insurance Co.,¹⁸ the court explained that under the anomalous rule, if the court of appeals concludes that the district court properly denied the motion to intervene, the court of appeals' jurisdiction "evaporates because the ruling is not a final order."¹⁹ If the motion to intervene should have been granted, however, the court of appeals retains jurisdiction to reverse the district court's order.²⁰ In Grilli, the court of appeals held that the district court had not abused its discretion in refusing to allow two individuals to intervene as additional named plaintiffs in a class-action lawsuit against a life insurance company.²¹

B. Appeals from Interlocutory Decisions Under 28 U.S.C. Sec. 1292

The courts of appeals have jurisdiction pursuant to 28 U.S.C. Sec. 1292²² to hear appeals from certain classes of nonfinal or interlocutory orders. For example, as the court noted in Isbrandtsen Marine Services, Inc. v. M/V Inagua Tania,²³ the court of appeals has jurisdiction under 28 U.S.C. Sec. 1292(a)(3) to hear an interlocutory appeal of a district court order in an admiralty case denying a motion to intervene in an in rem proceeding because the denial "determine[s] the rights and liabilities of the parties."²⁴ In Raven v. Oppenheimer & Co.,²⁵ the court heard an appeal of a district court's order reinstating a previously dismissed securities fraud lawsuit based on a change in the underlying law where the district court had certified, pursuant to 28 U.S.C. Sec. 1292(b), that the interlocutory order presented issues which justified interlocutory appellate review.²⁶ In Maynard v. Williams,²⁷ the court heard an appeal of an interlocutory decision enjoining a Florida state agency under 28 U.S.C. Sec. 1292(a)(1), which allows interlocutory appeals from orders "granting, continuing, modifying, refusing or dissolving injunctions."²⁸

C. Case Law Exceptions to the Requirement of Finality

The Court of Appeals for the Eleventh Circuit has recognized only limited case law exceptions²⁹ to the rule that it does not have jurisdiction to hear an appeal from an order which is not a final decision under 28 U.S.C. Sec. 1291, is not an interlocutory order from which an appeal lies under 28 U.S.C. Sec. 1292, and is not appealable under some other independent statute.³⁰ The case law exception which generated the most litigation in 1996 is the "collateral order doctrine." The collateral order doctrine arises from the 1949 United States Supreme Court decision in Cohen v. Beneficial Industrial Loan Corp.,³¹ in which the Supreme Court held that an exception to the finality doctrine exists for the "small class" of district court orders which are not final but can be appealed because they "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 the whole case is adjudicated."³²

The collateral order doctrine appears to be most widely used in connection with the interlocutory review of a denial of a motion for summary judgment by a government official seeking protection from suit under the qualified immunity doctrine. As the courts have explained, qualified immunity "protects government officials performing discretionary functions from civil liability if their conduct violates no 'clearly established statutory or constitutional rights of which a reasonable person would have known.'"³³

In Cottrell v. Caldwell,³⁴ the Court of Appeals for the Eleventh Circuit analyzed the current state of Eleventh Circuit law regarding situations in which the court of appeals has authority under the collateral order doctrine to review the denial of a motion for summary judgment based on the qualified immunity defense.³⁵ The court held that it has jurisdiction to review the denial of motions for summary judgment asserting qualified immunity defenses, but only in circumstances in which the denial was not based solely on factual disputes about the evidence supporting the qualified immunity defense.³⁶ As the court noted, the United States Supreme Court's 1995 decision in Johnson v. Jones³⁷ established that a district court order denying a motion for summary judgment based solely on factual disputes regarding whether the qualified immunity defense applies does not fit within the class of cases reviewable as collateral orders under prior Supreme Court case law.³⁸ The court in Cottrell noted that if the denial of the summary judgment motion was based even in part on a disputed issue of law, by contrast, review of the interlocutory order is appropriate under the collateral order doctrine.³⁹

In the vast majority of cases decided by the Court of Appeals for the Eleventh Circuit during 1996 involving denials of a motion for summary judgment on qualified immunity grounds, the court concluded that it had appellate jurisdiction...