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Appeals

Appeals. Civil Procedure – Mod 7 (Krieger) November 21, 2002. Appeals: The Key Questions. When can an appeal be taken? To what court can an appeal be taken? What issues can be reviewed? What is the scope or standard of review?.

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Appeals

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  1. Appeals Civil Procedure – Mod 7 (Krieger) November 21, 2002

  2. Appeals: The Key Questions • When can an appeal be taken? • To what court can an appeal be taken? • What issues can be reviewed? • What is the scope or standard of review?

  3. As a general rule, in the federal (and most state) system(s), a party to a civil action can appeal only from a final judgment entered under FRCP Rule 58, or its state equivalent. -- See 28 U.S.C. §1291. When Can an Appeal be Taken?The Final Judgment Rule

  4. Judgment on the Pleadings Judgment following successful Motion to Dismiss for Failure to State a claim, granted w/o leave to amend Judgment entered after successful Motion for Summary Judgment Judgment as a Matter of Law Judgment entered after successful Motion to Dismiss for Failure to Prosecute Order denying Motion to Dismiss for Failure to State a Claim Motions compelling or denying discovery Protective Orders Orders ruling evidence inadmissible or admissible Orders granting or denying class certification Examples of Final vs. Non-Final Orders Final Orders Non-Final Orders

  5. Exceptions to the Final Judgment Rule • The “Death Knell” Doctrine (now dead in federal court, but alive & kicking in some states) • Partial entry of judgment in multi-claim or multi-party actions [Rule 54(b)] • Statutory Interlocutory Appeals • Extraordinary Review (Mandamus) • Various minor judge-made exceptions

  6. Final J. Rule Exceptions:The Death Knell Doctrine The “Death Knell” Rule: An interlocutory order may be subject to immediate appeal if, as a practical matter, it has such tactical or economic significance that it is tantamount to a “death knell” for the case Example: An order denying class certification where individual recovery is too small to justify proceeding The death knell doctrine was rejected by the U.S. Supreme Court in Coopers & Lysand v. Livesay (1978).

  7. Appeals from Partial Judgments • Liberal joinder rules may result in cases ending in “chunks,” party-by-party or claim-by-claim. • Provision made in FRCP Rule 54(b) for partial entry of judgment on fewer than all claims or as to fewer than all parties. • These become “final judgments” for purposes of appeal. • Key question (sometimes): What is a “claim?” • Answer: Same as the res judicata test (which you will learn next week)

  8. Statutory Interlocutory Appeals: By Right (Examples) • Orders granting modifying, refusing, or otherwise affecting injunctions [28 USC §1292(a)(1)] • Orders appointing or refusing to dissolve receiverships, or directing sale or disposal of property [28 U.S.C. §1292(a)(2)] • Showing of immediate, irreparable harm required to obtain interlocutory review

  9. Discretionary Interlocutory Review by Statute Certification Under 28 U.S.C. §1292(b) • District Court certification that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and that immediate appeal may materially advance termination of the litigation; • Court of Appeal must agree to take review

  10. Extraordinary Review:The Writ of Mandamus • What is it: A writ ordering a trial court judge to issue an order or perform a duty • Although authorized by federal statute (All Writs Act, 28 U.S.C. §1651) rarely used in federal court • Much more commonly used in some state courts, including California (note Boler v. Superior Court) as a means of reviewing discovery and class certification orders

  11. Appeal to Where? Supreme Court: (Discretionary Review) First Level of Review: (Appeal as of Right) Trial Court

  12. Discretionary Review:Grounds for Certiorari • Inter-circuit conflicts • Conflicts between state supreme courts and circuit courts on federal questions • Interstate conflicts on federal questions • Importance of the issues involved

  13. Requirements for Obtaining Review • Prejudicial Effect of the order appealed from; • Preservation of the issue by objection or opposition in the trial court, unless the plain error rule applies; • Timely filing of a Notice of Appeal; • Designation of the precise issue(s) for review • Compliance w/ other appellate procedural requirements (i.e. posting of required bond, fees;designation of record; timely filing of briefs, etc.)

  14. Standards of Review The Standard of Review Substantial Evidence Arbitrary & Capricious De novo “Clearly Erroneous” Abuse of Discretion Discretionary Orders Q’s of Law; Mixed Qs of Fact and Law Judicial Findings Jury Findings Findings by Agencies The Type of Action Taken Below Appeals Court Expertise Trial Court or Agency Expertise

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