Appellate Practice & Procedure - K. Todd Butler

• Jurisdiction: United States,Federal
• Publication year: 2002
• Citation: Vol. 53 No. 4

Appellate Practice & Procedure by K. Todd Butler^*

This Article reviews the appellate procedural issues that the United States Court of Appeals for the Eleventh Circuit addressed in the cases it decided in the year 2001. Most of the 2001 Eleventh Circuit cases are included, but many are necessarily omitted. Just as the greatest substance of appellate procedure should emphasize the standards of review that the appellate court applies in reviewing the judgments of trial courts, the greatest substance of this Article concentrates on the standards of review that the Eleventh Circuit applied in 2001 and the circumstances to which it applied them. An appellate court should not allow itself to be used by litigants as a forum for retrying the unfavorable result of a trial. Appellate courts can avoid such abuse of the appellate process through strict adherence to the rules and established precedent governing appellate procedure. If they do so, appellate courts will support the legitimacy of the justice system by serving as a mechanism of review and a bulwark against the arbitrariness that would otherwise threaten to unravel the fabric of our justice system. If appellate courts retry cases, rather than review trial proceedings and judgments under established standards, they run the risk of introducing an arbitrary nature into the justice system.

Though the weight of its attention to the appellate process was concentrated on its standards of review, the 2001 Eleventh Circuit cases also afford the practitioner a degree of guidance in navigating the maze of the appellate process. This was particularly noticeable in the 2001 Eleventh Circuit holdings relating to jurisdiction.

I. The Doctrine of Mootness and Appellate Jurisdiction

In Al Najjar v. Ashcroft (Al Najjar III),¹ the court held per curiam that it was deprived of jurisdiction by its decision in the related case of Al Najjar v. Ashcroft (Al Najjar II).² Mootness is a jurisdictional issue and an appeal of moot issues must be dismissed. In Al Najjar II, the United States Attorney General appealed the district court's order in Al Najjar v. Reno (Al Najjar If that the government could not hold Al Najjar for alleged association with a terrorist organization during the pendency of his appeal from the Board of Immigration Appeals ("BIA") order affirming Al Najjar's deportation.⁴ In Al Najjar III, the Eleventh Circuit affirmed the BIA, which constituted a final order of deportation and gave the Attorney General authority to hold Al Najjar without bond during the execution of the deportation order.⁵

The '"case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.'"⁶ In BellSouth Telecommunications, Inc. v. Town of Palm Beach,⁷ the Eleventh Circuit noted that if statutory law upon which the district court based its decision changes after the district court's entry of its order and prior to the apppellate court's decision, then the appellate court must conduct its review based upon the new law rather than the law relied on by the district court.⁸ This could have the effect of rendering the matter in controversy moot, though the court noted in BellSouth a live controversy remained.⁹ Postjudgment alterations of a statute do not necessarily strip federal courts of jurisdiction and may remove only portions of the question before the court from its jurisdiction, leaving other issues undisturbed.¹⁰

In Dow Jones & Co. v. Kaye,¹¹ the Eleventh Circuit addressed issues collateral to a state court proceeding in which the trial court entered a gag order after learning that defendants, tobacco companies, were planning press conferences and had already issued press releases regarding a highly publicized products liability trial.¹² After the state appellate court sustained the gag order, Dow Jones and several other media entities filed suit against the judge in the federal district court. The district court enjoined the state trial court judge from enforcing the order, and the judge appealed to the Eleventh Circuit.¹³ Prior to the Eleventh Circuit's decision, the trial in Kaye ended with a $145 billion punitive damages verdict against the tobacco companies.¹⁴ The court held that the issues on appeal were moot because with the appeal from the state trial court to the state appellate court, the state court judge lost jurisdiction to enforce the gag order.¹⁵ Further, the court stated that it would not regard the moot issue as likely to recur because the court would not consider it reasonable to expect the state court judge's decisions in the case to be reversed or remanded.¹⁶ In response to the tobacco companies' request that the court dismiss the appeal and leave the district court's injunction intact, the court quoted its decision in Bekier v. Bekier¹⁷ where it stated that "'[w]here a case becomes moot after the district court enters judgment but before the appellate court has issued a decision, the appellate court must dismiss the appeal, vacate the district court's judgment, and remand with instructions to dismiss as moot.'"¹⁸

II. Notice of Appeal and Appellate Jurisdiction

Generally, when a party files a notice of appeal, the district court loses jurisdiction over those matters that are contained in the notice of appeal.¹⁹ The notice of appeal must be filed within thirty days of the district court's entry of a final judgment.²⁰ "The notice of appeal must: (A) specify the party or parties taking the appeal . . .; (B) designate the judgment, order, or part thereof being appealed; and (C) name the court to which the appeal is taken."²¹ A document must be liberally construed, and at least when a document is filed by a pro se litigant, the court will determine whether the document is the functional equivalent of a notice of appeal.²²

In Rinaldo the Eleventh Circuit also addressed the question of a party's intent to appeal.²³ The United States Supreme Court has stated that the notice of appeal must specifically state the party's intent to appeal because the notice's purpose is to ensure that the other parties and the courts are given sufficient notice of the appeal.²⁴ The touchstone of the intent prong, however, is the objective notice that a filing affords other parties and the courts, not the subjective motivation of the party filing the document.²⁵ Thus a pro se plaintiff's motion for extension of time to file a notice of appeal that was filed within thirty days of the district court's entry of judgment was itself sufficient notice of appeal, even though the district court denied the motion.²⁶ In denying the motion, the court stated, '"Plaintiff . . . gives this court notice that he intends to appeal the jury's award of damages [of $10] to him and all pretrial orders entered against him and/or in favor of the defendants to the United States Court of Appeals for the Eleventh Circuit.'"²⁷

While the notice of appeal is understood as the point at which the trial court's jurisdiction ceases and the appellate court's jurisdiction begins, the notice of appeal does not deprive the district court of all possible jurisdiction over the case. The district court may retain jurisdiction over collateral matters that do not affect the questions presented to the appellate court.²⁸ Matters that are being considered by the appellate court, however, may not be the subject of a district court order. For example, when the existence of a class is an issue raised in the appeal due to the district court's failure to certify the class, the district court may not enter an order certifying the class after the notice of appeal has been filed.²⁹ An order granting or denying class certification is not a final order, and any time prior to entry of a final order in a case, the district court may review its certification order.³⁰

In Shin v. Cobb County Board of Education,³¹ the Eleventh Circuit considered a question of first impression regarding whether a motion for reconsideration tolled the time for giving notice of appeal pursuant to Rule 5,³² under which the court of appeals grants permissive appeals.³³ Rule 4 specifically states the types of motions that will toll the time for filing a notice of appeal,³⁴ but Rule 5 contains no similar provisions. The court held that because appellate review under Rule 23(f)³⁵ and Rule 5 of a district court's order on class certification should be an avenue of last resort, a motion for reconsideration of the district court's order on class certification should toll the time within which to file a permissive appeal pursuant to Rule 23(f).³⁶ Tolling the time requirement gives the district court ample time to review its order, heading off unnecessary appeals.

The Eleventh Circuit stated in Wooden v. Board of Regents of University System of Georgia³⁷ that if a number of plaintiffs join suit against a common defendant, each plaintiff must file a notice of appeal within the requisite period of time.³⁸ If a party files a motion for reconsideration of the district court's decision within ten days of the district court's entry of judgment, the time for filing a notice of appeal, for that party, is extended thirty days beyond the date of the district court's denial of the motion.³⁹ The extension is granted regardless of whether the party's motion for reconsideration is specifically designated a motion pursuant to Rule 59, or whether the substantive effect of the motion is that of a motion for reconsideration under Rule 59.⁴⁰ The time period for filing the notice of appeal is tolled, however, only for the party or parties who join in the motion for reconsideration.⁴¹ Parties who do not join in the motion for reconsideration remain bound by Rule 4(a)(1).

III. Interlocutory Appeals and Appellate Jurisdiction

In Carringer v. Tessmer,⁴² plaintiff-appellant Carringer filed an interlocutory appeal of the district court's order dismissing her wrongful death claim for lack of standing. The district court did not address

Carringer's claims...