Power, protocol, and practicality: communications from the district court during an appeal.

• Author: Struve, Catherine T.

INTRODUCTION I. COMMUNICATIVE RULINGS A. Incidental Communications 1. Gatekeeping Decisions 2. Other Ancillary Rulings B. Intentional Communications C. Invited Communications 1. Extraordinary Writs 2. Limited Remands D. Assessing Communicative Rulings II. INDICATIVE RULINGS A. Current Practice B. The Proposed New Rules C. Assessing Indicative Rulings CONCLUSION INTRODUCTION

It is a commonplace that when a litigant files a notice of appeal from the judgment of a district court, authority over the matters encompassed within the appeal passes from that court to the court of appeals. (1) As the Supreme Court stated in Griggs v. Provident Consumer Discount Co., (2) "a federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously." (3) Thus, "[t]he filing of a notice of appeal is an event of jurisdictional significance--it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." (4)

But, as the Supreme Court has suggested in other contexts, (5) describing this transfer in jurisdictional terms may cause confusion. In particular, the term "jurisdiction" might suggest that the vesting of appellate control over the appeal entirely deprives the district court of the ability to communicate any views that bear upon the merits of the appeal. (6) This Article takes issue with that absolutist view. It is true that control passes from the trial court with the filing of a valid notice of appeal, and that the trial court generally must not act with respect to the subject matter of the appeal except to facilitate the appeal's progress. But that does not mean that the district court's views on the case are invariably set in amber as of the filing of the notice of appeal.

In this Article, I survey the opportunities for the district court to communicate to the court of appeals its views on matters touching the merits of the appeal, even after the notice is filed. Part I.A observes that a number of matters, ancillary to the appeal, that are entrusted to the district court may permit or require the district judge to reflect on the merits of the appeal. Part I.B notes that, even apart from such ancillary rulings, the district court may sometimes add to its prior statements on the merits of the case even after the filing of the notice of appeal. And Part I.C discusses instances in which the court of appeals may invite or direct such augmentation. The activities canvassed in Part I may provide opportunities for the district court to opine on merits-related issues while the appeal is pending, but--except in rare instances at the margins--they do not permit the district court to alter the judgment that is under review, because it is well established that such an alteration lies beyond the power of the lower court during the appeal. Part II describes a mechanism by which the district court can nonetheless express its view on a request for such relief: when asked for relief that it lacks power to grant because of the appeal, the district court may indicate its view that the request has merit. That "indicative ruling" can then be communicated to the court of appeals, which can decide whether to remand for the purpose of permitting the district court to grant the motion.

As this summary suggests, the interaction between the trial and appellate court, during an appeal, can be much more dynamic than a bald quotation of the Griggs rule might suggest. The boundaries of the trial court's authority are, of course, set by the Griggs rule; the lower court must not take actions that would impinge on the appellate court's control over the judgment that is under review. The nuances of those boundaries, though, are influenced by practical considerations--such as efficiency and fairness to litigants--as well as by concerns stemming from notions of the appropriate judicial role.

1. COMMUNICATIVE RULINGS

   Parts I.A through I.C present a taxonomy of district court actions that--though they do not alter the judgment under review--provide an opportunity for the district judge to comment upon the merits of that judgment. (7) Part I.D then assesses factors that may influence the way in which such actions are viewed by the court of appeals.

   1. Incidental Communications

      The district court often serves a gatekeeping role with respect to appeals. Part I.A.1 observes that, in such a role, the district judge may issue rulings that incidentally provide the court of appeals with the trial court's views on aspects of the merits of the appeal. Likewise, as Part I.A.2 discusses, in the many instances in which litigants are directed first to seek rulings from the district court on matters ancillary to the appeal, the trial court's determination of those issues may further illuminate its views on the appeal's merit.

      1. Gatekeeping Decisions

         In a number of contexts, the district court has the task of making decisions that affect whether an appeal may proceed. (8) In some of those contexts, the district judge's ruling should be made independently of the judge's view of the merits of the proposed appeal. (9) But in other instances, the ruling may entail reasoning that reveals a view on the merits (even though the ruling itself concerns only a preliminary issue).

         Thus, for example, a district judge's certification under 28 U.S.C. [section] 1292 (b) that an interlocutory order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation" (10) may serve to flag the district judge's view that the ruling in question is a relatively close call.

         Conversely, there exists an interesting line of cases concerning the appealability, under the collateral order doctrine, (11) of orders denying claims of qualified immunity or double jeopardy. An order denying such a claim qualifies, at least in some instances, (12) as a final judgment under the collateral order doctrine because of the strong policies favoring immediate review: both of these defenses provide protection not only from liability but also from litigation, and thus interlocutory review is necessary in order to prevent the irreparable loss of the protection. (13) But some courts have noted that the availability of collateral order review creates the risk of abuse by defendants who seek to delay the trial court proceedings through the assertion, on interlocutory appeal, of a frivolous immunity or double jeopardy contention. (14) Accordingly, some circuits take the view that the district court may proceed with the action--despite the filing of an interlocutory appeal on qualified immunity or double jeopardy grounds--if the district court certifies that the appeal is frivolous. (15) Circuits recognizing this power in the district court stress that it must be employed cautiously, lest it deprive the defendant of the opportunity to take a meritorious appeal. (16) Those courts of appeals reserve to themselves the ultimate authority to decide the issue of frivolity: if the district judge certifies the appeal as frivolous, the defendant-appellant may ask the court of appeals to stay the trial court proceedings pending the appeal. (17) The requirement of a certification by the district court provides clarity on the jurisdictional question: absent the certification, the trial court ordinarily lacks authority to proceed to trial. (18) In addition, the requirement that the district court make a reasoned finding of frivolity (19) serves to ensure that the district court has considered the issue carefully and also helps to inform the court of appeals' consideration of the issue. (20)

         The district judge's gatekeeping role in habeas appeals is well known. A state prisoner seeking to appeal the denial of habeas relief (or a federal prisoner seeking to appeal the denial of relief under 28 U.S.C. [section] 2255) (21) must obtain a certificate of appealability (COA). (22) A COA may only be issued if "the applicant has made a substantial showing of the denial of a constitutional right," (23) and the judge issuing the COA must also "indicate which specific issue or issues satisfy [that] showing." (24) Though the statute speaks of a "circuit justice or judge" issuing the COA, (25) Appellate Rule 22 (b) (1) makes clear that the COA can be issued by a district judge, (26) and it is from the district court that the COA should ordinarily be sought in the first instance. (27) The standard for issuing a COA is, of course, distinct from the merits of the appeal itself (28): clearly, it would make no sense to require the petitioner to seek a COA from the district judge if the standard required a favorable ruling on the merits (on which the district judge has ruled against the petitioner). But the COA standard nonetheless relates to the merits, because the petitioner must show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner...." (29) A district judge's grant of a COA thus signals to the court of appeals that the district judge views the issues designated in the COA as at least debatable.

         The standard for granting a litigant leave to proceed in forma pauperis on appeal is more lenient than the standard for granting a COA (30): in addition to showing economic eligibility, the appellant must show that at least one of the issues to be presented on appeal is nonfrivolous. (31) Conversely, the relevant statute provides that "[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." (32) It is common for courts to apply an objective standard to both of these inquiries, treating one as the mirror image of the other. (33) The district court, when denying a request to proceed in forma pauperis on appeal or...