APPELLATE REVIEW OF U.S. DISTRICT COURT ACTIONS

Formal Filings of Briefs and Informal Procedures for Pro Se

*Although most rules are the same contact the Appellate Court for Your District for a free copy of their Local Rules.
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I. OVERVIEW OF THE (Third) CIRCUIT COURT OF APPEALS

Appellate review of matters decided in the United States District Court for the Districts of New Jersey, Pennsylvania, Delaware and the Virgin Islands falls within the jurisdiction of the Third Circuit Court of Appeals. The Circuit * s caseload is currently handled by twelve active judges and five senior judges.  Generally, more than half of the appeals are civil appeals and over one-fourth come from New Jersey.

During the appellate process, all attorneys deal with members of the Office of the Clerk of the Court. The Clerk * s Office is responsible for the administrative aspects of appellate case management in the Court of Appeals. All correspondence with the Court must be directed to the Clerk, and all briefs and motions are filed with the Clerk. It is inappropriate for an attorney or litigant to attempt to contact a circuit judge directly concerning a pending case.

Pro se cases are reviewed and managed by the Office of the Senior Staff Attorney. Although much of the work of the staff attorneys involves cases in the criminal arena, such as pro se direct appeals and habeas corpus appeals, part of their work includes appeals in civil actions, such as pro se civil rights, labor, and general diversity appeals.

 

II. GOVERNING RULES

Litigation in the federal courts of appeals is governed, in the first instance, by the Federal Rules of Appellate Procedure (Fed. R. App. P.). Located in Title 28 of the United States Code, these rules address all phases of appellate practice, from proper service to the color of the covers for briefs. As of December 1, 1994, a number of the Federal Rules of Appellate Procedure were amended. Significant amendments are discussed below in connection with the respective rules. In addition, two new sections - Section XII, Appeal Conferences, and Section XIII, Masters - have been appended to this chapter.

It is important to remember that the computation of time for appellate filings is governed by the Federal Rules of Appellate Procedure and not by the Federal Rules of Civil Procedure (Fed. R. Civ. P.). Because the appellate rules are different, papers may be untimely filed if counsel erroneously follows the civil rules. For instance, Fed. R. App. P. 26(a) provides, in part, that "[when the period of time prescribed or allowed is less than 7 days , intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation." (Emphasis added.). In contrast, Fed. R. Civ. P. 6(a) provides, in part, that "when the period of time prescribed or allowed is less than 11 days , intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation." (Emphasis added.) Consequently, if the civil rules were applied to a 10-day appellate period, weekends would be excluded improperly and the filing would be late.

Pursuant to Fed. R. App. P. 47, the Third Circuit has promulgated its own local rules that supplement the Federal Rules of Appellate Procedure. These new Local Appellate Rules (3d Cir. LAR) took effect on July 1, 1993. These rules will be published in the 1994 United States Code Annotated (U.S.C.A.) pamphlet that supplements the Title 28 volume containing the appellate rules. They are currently available in Federal Local Court Rules (Lawyers Cooperative Publishing) (loose-leaf service), and they can be accessed on-line through computer research services. A copy of the rules can also be obtained through a written request to: Clerk, U.S. Court of Appeals for the Third Circuit, 21400 U.S. Courthouse, 601 Market Street, Philadelphia, Pa. 19106.

A third set of rules that affects appellate practice is the Internal Operating Procedures of the United States Court of Appeals for the Third Circuit (3d Cir. IOP). These rules are also published in the supplementary U.S.C.A. pamphlet as an Appendix to the Third Circuit Rules. Although the majority of the IOP * s govern only the practices of the circuit judges, rather than the actions of attorneys, these rules provide practitioners with much useful information concerning how appellate decisions are reached and rendered.

 

III. JURISDICTIONAL MATTERS

A. FINALITY

The jurisdiction of the United States Courts of Appeals is defined by statute and extends only to those matters authorized by Congress. Title 28, United States Code, 1291 grants the federal courts of appeals jurisdiction to review all final decisions of the district courts.

A final decision is one that terminates the litigation on the merits and leaves nothing to be done except enforcement of the judgment. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275 (1988); Caitlin v. United States, 324 U.S. 229, 233 (1945); Richerson v. Jones, 551 F.2d 918, 922 (3d Cir. 1977). It cannot be merely a provisional disposition of the issue, and it cannot be merely a step toward final disposition of the merits. Further, a final order is one that disposes of the entire controversy; that is, it resolves all claims with respect to all parties. Collins v. Miller, 252 U.S. 364, 370 (1920); Brooks v. Fitch, 642 F.2d 46 (3d Cir. 1981); In the Matter of Good Deal Supermarkets, Inc., 528 F.2d 710, 712 (3d Cir. 1975).

"The finality requirement of 28 U.S.C. 1291 embodies a strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals." United States v. Nixon, 418 U.S. 683, 690 (1974); see also Powers v.Southland Corp., 4 F.3d 223, 230 (3d Cir. 1993).

This policy is intended to discourage undue litigiousness and to prevent the obstruction that would result from permitting the harassment and cost of a succession of appeals. See Flanagan v. United States, 465 U.S. 259, 264 (1984). Otherwise non-appealable orders may become appealable where circumstances foreclose the possibility of piecemeal litigation. Bethel v. McAllister Bros., Inc., 81 F.3d 376, 381 (3d Cir. 1996). Examples of such circumstances are:

a) appeal of dismissal of a complaint where the plaintiff cannot cure the defect in the complaint, or elected to stand on the complaint, Welch v. Folsom, 925 F.2d 666, 668 (3d Cir. 1991):

b) appeal of dismissal of a complaint without prejudice where the statute of limitations has run, Umberhauer v. Woog, 969 F.2d 25, 30 n.6 (3d Cir. 1992);

c) appeal after the abandonment of other claims in litigation, so that there are no longer outstanding issues or parties remaining in the district court, Fassett v. Delta Kappa Epsilon, 807 F.2d 1150, 1156 (3d Cir. 1986), cert. denied, 481 U.S. 1070 (1987).

The rule of finality also emphasizes the deference that the appellate courts owe to the trial judge. See Firestone Tire and Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981). To permit piecemeal appeals during ongoing litigation would be to undermine the independence of the district judge and the role that the district judge plays in the judicial system. As a rule, the Third Circuit will not act as a "second-stage motion court," reviewing pretrial or other interlocutory orders of the district court. Borden Co. v. Salk, 410 F.2d 843, 846 (3d Cir. 1969); see also Capelan v. Lagged Group Inc., 785 F.2d 1108, 1116-17 (3d Cir. 1986), cert. denied, 484 U.S. 976 (1987).

The final judgment rule is jurisdictional in nature and must be strictly construed. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. at 376. However, in the "post-final judgment sphere" the Third Circuit has recognized the rule of "practical FINALITY." Isidore Paieworsky Assoc., Inc. v. Sharp Properties, Inc., 998 F.2d 145, 150 (3d Cir. 1993). Where a post-judgment order "is more than simply administrative in that it affects rights or creates liabilities not previously resolved by adjudication on the merits," that order may be appealable. Id. In such cases, it is appropriate that the requirement of finality be given a practical rather than a technical construction. Id. Thus, a post-judgment order that is based on an evaluation of the parties * interests and grants a writ of assistance to enforce a judgment may be an appealable final order. Id. at 151. In contrast, a standard post-judgment execution order would not be an appealable order. Id. at 150-51.

B. THE COLLATERAL ORDER DOCTRINE

The finality requirement is strictly enforced by the Supreme Court and the Courts of Appeals. However, 28 U.S.C. 1291 has been interpreted by the Supreme Court to permit an exception for matters classified as "collateral orders." In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), the Supreme Court carved out a small class of decisions for which appellate consideration need not be deferred. In general, those decisions involve matters severable from the merits of the main case and unable to be effectively reviewed if the appeal were delayed until the entry of the subsequent final order.

Three criteria must be met in order for the collateral order doctrine to apply. First, the order must conclusively determine the disputed question. Second, the order must resolve an important issue completely apart from the merits of the action. Third, the order must be effectively unreviewable on appeal from a final judgment. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978); Praxis Properties, Inc. v. Colonia Savings Bank, S.L.A., 947 F.2d

49, 54 (3d Cir. 1991); Smith v. BIC Corporation, 869 F.2d 194, 198 (3d Cu. 1989); Demenus v. Tinton 35 Inc., 873 F.2d 50, 52 (3d Cu. 1989). Where these criteria have been met, Cohen also permits an immediate appeal of interim orders that are not final under Fed. R. Civ. P. 54(b) (Judgments on Multiple Claims or Involving Multiple Parties) or certified under 28 U.S.C. 1292(b) (Permissive Interlocutory Appeals). See United States v. Bertoli, 994 F.2d 1002, 1010 n.6 (3d Cir. 1993).

The collateral order doctrine has been narrowly construed in both the Supreme Court and the Third Circuit. See, e.g., Coopers & Lybrand v. Livesay, 437 U.S. at 468; Powers v. Southland Corp., 4 F.3d 223, 231 (3d Cir. 1993); Yakowicz v. Pennsylvania, 683 F.2d 778, 783 n. 10 (3d Cir. 1982). The fact that an erroneous ruling may result in additional litigation expense is not sufficient to override the finality requirement. Lauro Lines S.R.L. v. Chaser, 490 U.S. 495, 499 (1989); Richardson-Merrell Inc. V. Koller, 472 U.S. 424 (1985).

Interlocutory review under the collateral order doctrine has been permitted in cases such as:

(a) claims of absolute immunity by government officials, Nixon v. Fitzgerald, 457 U.S. 731, 74243 (1982); Venen v. Sweet, 758 F.2d 117, 121 (3d Cir. 1985);

(b) claims of qualified immunity, Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985);

Capone v. Marinelli, 868 F.2d 102, 104 n.3 (3d Cir. 1989); Ryan v. Burlington County,

NJ, 860 F.2d 1199, 1203 (3d Cir. 1988), cert. denied, 490 U.S. 1020 (1989); Brown v.

United States, 851 F.2d 615, 618-19 (3d Cir. 1988);

(c) restraints on communications to the press, In re Application of Herald Co., 734 F.2d 93, 96 (2d Cir. 1984); United States v. Cianfrani, 573 F.2d 835, 845 (3d Cir. 1978), and

(d) Eleventh Amendment claims of sovereign immunity, Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 113 S.Ct. 684 (1993).

(e) Rule 11 sanctions imposed on attorney no longer participating in underlying litigation, Martin v. Brown, 63 F.3d 1252, 1258-62 (3d Cir. 1995).

Examples of interlocutory decisions that are not immediately appealable include:

(a) denial of recusal motions, In re Cement Antitrust Litigation, 673 F.2d 1020, 1022(9th Cir. 1982), aff * d sub. nom. Arizona v. Ash Grove Cement Co., 459 U.S. 1190 (1983); and

(b) discovery orders not affecting substantive rights, Capelan v. Lagged Group Inc. ,785 F.2d 1108, 1116 (3d Cir. 1986), cert. denied, 484 U.S. 976 (1987); Bordenv. SyIk, 410 F.2d 843, 845 (3d Cir. 1969); but cf. United States v. Sciarra, 851 F.2d 621, 627 (3d Cir. 1988) (review of discovery order issued to non-party witness); Smith v. BIC Corporation, 869 F.2d at 198-99 (denial of protective order for trade secrets appealable under collateral order doctrine).

The collateral order doctrine has been specifically held inapplicable to decisions regarding, for example:

(a) attorney disqualification motions, Richardson-Merrell Inc. v. Koller, 472 U.S. at 429-32; Firestone Tire & Rubber Company v. Risjord, 449 U.S. 368, 379 (1981);

(b) class action determinations, Coopers & Lybrand v. Livesay, 437 U.S. 463; Lusardi v. Lechner, 855 F.2d 1062, 1067-69 (3d Cir. 1988);

(c) claims of forum non conveniens, Van Cauwenberghe v. Biard, 486 U.S. 517, 527-30 (1988); and

(d) denials of enforcement of forum selection clauses, Lauro Lines S.R.L. v. Chasser, 490 U.S. 495 (1989).

The United States Supreme Court recently resolved a split in the circuits over whether orders that conflict with a claimed right to avoid trial, generally based upon a release or settlement agreement, are appealable under the collateral order doctrine. In Digital Equipment Corp. v. Desktop Direct, Inc., 114 S.Ct. 1992 (1994), the Court held that such orders do not come within the narrow ambit of the collateral order doctrine. This decision is consistent with prior Third Circuit precedent. See, e.g., Transtech Industries, Inc. v. A & Z Septic Clean, 5 F.3d 51, 58 (3d Cir. 1993)(rejecting use of collateral order doctrine to protect claimed right not to go to trial).

The relationship between the collateral order doctrine and the restriction of 28 U.S.C. 1447(d) has been addressed by both the Supreme Court and the Third Circuit. Where a district court acts pursuant to 28 U.S.C. 1447(c) and remands a case to the state court from which it was improperly removed, 28 U.S.C. 1447(d) provides that the order of remand is not reviewable on appeal or otherwise. However, m City of Waco v. United States Fidelity & Guaranty Co., 293 U.S. 140 (1934), the Supreme Court held that 28 U.S.C. 1447(d) does not bar appellate review of a collateral order that led to remand where the order "in logic and in fact" preceded the order of remand. The Third Circuit has construed the City of Waco rule to require that the collateral order be both logically precedent to, and separable from, the remand decision. See Powers v. Southland Corp., 4 F.3d 223 (3d Cir. 1993); see also Carr v. American Red Cross, 17 F.3d 671 (3d Cir. 1994).

C. CERTIFICATION PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 54(b )

In a case involving multiple claims for relief or multiple parties, the district court may

exercise its discretion to certify an order that resolves less than the entire controversy as final for purposes of appeal. Pursuant to Fed. R. Civ. P. 54(b), the district court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties "only upon an express determination that there is no just reason for delay . . . ." See also Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360, 364 (3d Cir. 1975). This permits an appeal as of right under 28 U.S.C. 1291. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427 (1956); see also Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 583 n.21 (1980); Gentry v. Resolution Trust Corp., 937 F.2d 899, 905 (3d Cir. 1991).

In the Third Circuit, the district court * s reasons for exercising its discretion to grant Rule 54(b) certification must be clearly articulated; it is not sufficient for the court to merely recite the formulaic language of Rule 54(b). See Anthuis v. Colt Industries Operating Corp., 971 F.2d 999, 1003 (3d Cir. 1992); Allis-Chalmers, 521 F.2d at 364. Without an explanation of the district court * s analysis, the reviewing court cannot determine whether certification was proper. An appeal pursuant to an unsupported Rule 54(b) certification will be dismissed by the court of appeals for lack of jurisdiction. See Cemar, Inc. v. Nissan Motor Corp. in U.S.A., 897 F.2d 120, 123 (3d Cir. 1990). Consequently, it is wise for a party seeking Rule 54(b) certification to marshall the factors that support the application and provide them to the district court as a basis for its order. See Anthuis, 971 F.2d at 1003-04.

In exercising its discretion under Rule 54(b), the district court will evaluate whether an order is separable from the rest of the action and whether the same issues might arise again in a subsequent appeal in the same case. Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 8 (1980). In order to be certified, the individual decision also must resolve conclusively the entire claim that will be appealed. Gentry v. Resolution Trust Corp., 937 F.2d at 905. If a party has presented a number of alternative legal theories to support a single recovery, there is only one claim and there can be no certification. American Motorists Insurance Company v. LevelorLorentzen Inc., 879 F.2d 1165, 1171 (3d Cir. 1989); see also Sussex Drug Products v. Kanasco, Ltd., 920 F.2d 1150, 1154 (3d Cir. 1990) (partial adjudication of single claim not appealable).

The district court should also consider judicial administrative interests when it evaluates whether a matter is ready for appeal. Gerardi v. Pellulo, 16 F.3d 1363, 1371-72 (3d Cir. 1994) (citing Curtiss-Wright Corp., 446 U.S. at 8). If future developments in the rest of the case may moot the need to resolve the certified claims, the certification may be an abuse of discretion. Id. at 1371.

The district court may act pursuant to Rule 54(b) either sua sponte or in response to a party * s request. However, a party has no right to Rule 54(b) certification. If a party files an appeal without proper Rule 54(b) certification, that appeal will be dismissed by the court of appeals without prejudice to the right of the appellant to apply to the district court for a Rule 54(b) determination. 3d Cir. IOP 16.4. However, if the district court refuses to issue a Rule

54(b) certification, there is no appellate jurisdiction. In the Matter of Good Deal Supermarkets, Inc., 528 F.2d 710, 712 (3d Cir. 1975); see also Gentry v. Resolution Trust Corp., 937 F.2d at 905 (proper certification is essential prerequisite for appellate jurisdiction).

It should be noted that there is a relationship between Rule 54(b) and Fed. R. App. P. 4(a)(4). Under Fed. R. App. P. 4(a)(4), even if a district court enters a final judgment as to all parties and all issues in a complex case, the filing of various timely motions to amend, alter, or otherwise affect the judgment will render the appeal dormant until the post-judgment motion is decided. A Rule 54(b) certification would then be required for any party to proceed with an appeal as to any portion of the judgment, prior to disposition of the pending motion.

D. INTERLOCUTORY APPEALS PURSUANT TO 28 U.S.C. ~ 1292(a )

Recognizing that there are policy reasons that necessitate the immediate appellate review of certain non-final orders, Congress has provided for interlocutory review of three specific types of case. Under 28 U.S.C. 1292(a), the courts of appeals are granted jurisdiction over:

(1) Interlocutory orders . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court;

(2) Interlocutory orders appointing receivers, or refusing to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property;

(3) Interlocutory decrees . .. determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed. 28 U.S.C. 1292(a).

Section 1292(a) is used most frequently in cases involving injunctions. For purposes of 1292(a)(1), the Third Circuit has defined an "injunction" as an order directed to a party, enforceable by contempt, and designed to accord or protect, in more than a temporary fashion, some or all of the substantive relief sought by a complaint. Casey v. Planned Parenthood of Southeastern Pennsylvania, 14 F.3d 848, 854 (3d Cir. 1994); see also United States v. Santtini, 963 F.2d 585, 590 (3d Cir. 1992); Cohen v. Board of Trustees, 867 F.2d 1455, 1465 n.9 (3d Cir. 1989) (in banc); American Motorists Inc. v. LevelorLorentzen, Inc., 879 F.2d 1165, 1172 (3d Cir. 1989). Orders granting or refusing preliminary relief are only appealable if they are based on the merits of the case. See Rodgers v. U.S. Steel Corp., 541 F.2d 365, 373 (3d Cir. 1976); see also Hershey Foods Corp. v. Hershey Creamery Co., 945 F.2d 1272 (3d Cir. 1991).

The Third Circuit has held that a litigant seeking to appeal a denial of injunctive relief must meet the requirements set forth in Carson v. American Brands, Inc., 450 U.S. 79 (1981). Carson held that:

[unless a litigant can show that an interlocutory order of the district court might have "a serious, perhaps irreparable, consequence," and that the order can be "effectively challenged" only by immediate appeal, the general congressional policy against piecemeal review will preclude interlocutory appeal.

450 U.S. at 84; see also Vuitton v. White, 945 F.2d 569, 574 (3d Cir. 1991); Ross v. Zavarella, 916 F.2d 898, 901-02 (3d Cir. 1990). However, the stringent Carson requirements have not been applied where an interlocutory order grants injunctive relief, because a grant of injunctive relief subjects the losing party to contempt and provides some or all of the relief sought by the claimant. Casey v. Planned Parenthood, 1994 WL 7675 at *4; Cohen v. Board of Trustees, 867 F.2d at 1467. Similarly, when a claim seeking injunctive relief is dismissed, even on jurisdictional grounds, the effect of the dismissal is to deny the ultimate equitable relief sought and the order is appealable under 1292(a)(1). Cohen v. Board of Trustees, 867 F.2d at 1464.

Orders concerning modifications of injunctions may only be reviewed for error concerning the modification, not for error concerning the underlying injunction. Franklin Tp. Sewerage Authority v. Middlesex County Utilities Authority, 787 F.2d 117, 120 (3d Cir.), cert. denied, 479 U.S. 828 (1986).

Section 1292(a)(1) does not explicitly provide for appeals from temporary restraining orders and, generally, the grant or refusal to grant a temporary restraining order is not appealable. See Vuitton v. White, 945 F.2d at 573. However, a court cannot "shield its orders from appellate review merely by designating them as temporary restraining orders, rather than as preliminary injunctions." Sampson v. Murray, 415 U.S. 61, 86-88 (1974). Moreover, if a temporary restraining order is extended beyond the time limit in Fed. R. Civ. P. 65(b), it will be deemed an appealable preliminary injunction. Id. at 86-87. Similarly, appeal of a temporary restraining order may be permitted where there is a sufficiently strong showing of potentially irreparable harm.

The scope of review pursuant to 1292(a)(1) is limited to the injunction issue itself and any otherwise nonappealable issue that is inextricably bound to the injunction issue. Tustin v. Heckler, 749 F.2d 1055, 1065-66 (3d Cir. 1984); Kershner v. Mazurkiewicz, 670 F.2d 440, 449 (3d Cir. 1982) (in banc); see also Casey v. Planned Parenthood, 14 F.3d at 855.

Appeals under 1292(a) are permissive, not mandatory. A party can choose not to pursue an interlocutory appeal pursuant to 1292(a) and instead appeal from the final judgment in the case. Victor Talking Machine Co. v. George, 105 F.2d 697, 699 (3d Cir.), cert. denied, 308 U.S. 611(1939); see also Drayer v. Krasner, 572 F.2d 348, 352-53 (2d Cir.), cert. denied, 436 U.S. 948 (1978).

E. PERMISSIVE INTERLOCUTORY APPEALS UNDER 28 U.S. ~ 1292(b )

Interlocutory appeals may also be pursued if a party can obtain the joint approval of both the district court and the court of appeals. Pursuant to 28 U.S.C. 1292(b), an appeal is permitted:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such 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, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order:

Provided, however , That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

Thus, appeals under 1292(b) require two steps: first, the district court certification of a controlling question of law, and, second, the appellate court * s acceptance of the appeal. Both steps are entirely discretionary. Moreover, the application of 1292(b) is limited to cases where "exceptional circumstances" justify a departure from the basic policy of postponing review until the entry of the final order. Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978).

The district court * s certification under 1292(b) has three components. First, its order must involve a controlling question of law. To be a controlling question, the issue must be one which, if erroneously decided, will result in reversible error on final appeal. Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir.) (in banc), cert. denied, 419 U.S. 885 (1974). The question cannot be collateral. Further it cannot be factual, rather than a question of law. Link v~ Mercedes-Benz of North America, Inc., 550 F.2d 860, 863 (3d Cir.) (in banc), cert. denied, 431 U.S. 933 (1977).

Second, there must be substantial ground for a difference of opinion concerning the resolution of the question presented for appeal. Katz v. Carte Blanche Corp., 496 F.2d at 754. The mere fact that the issue is one of first impression in the circuit or is one that other circuits have decided differently will not fulfill this requirement.

Third, an immediate appeal must materially advance the ultimate termination of litigation. Id. Generally, a single appeal at the end of the case is most likely to save both time and money for the courts and for the parties. However, several factors may indicate that an immediate appeal would be more efficient. One factor is whether an immediate appeal might end the litigation or avoid a trial. Another factor is whether immediate review might significantly shorten discovery or the length of a trial. However, the Third Circuit has held that orders granting class action certifications, which generally implicate issues of time and expense, should not be freely certified by the district court or entertained by the court of appeals absent unusual circumstances. Link v. Mercedes Benz, 550 F.2d at 862; see also Kramer v. Scientific Control Corp., 534 F.2d 1085, 1087 (3d Cir.) cert. denied, 429 U.S. 830 (1976).

Pursuant to 3d Cir. LAR 5.1, the district court is required to state concisely the "controlling question of law" in 1292(b) cases. Once the district court has certified its order, a party has 10 days in which to file a petition for permission to appeal with the Clerk of the Court of Appeals. Fed. R. App. P. 5(a). The ten-day period is jurisdictional and the Court of Appeals is not permitted to enlarge the time to file the petition. Fed. R. App. P. 26(b).

Pursuant to Fed. R. App. P. 5(b), the petition for permission to appeal must contain:

(1) a statement of facts necessary to an understanding of the controlling question of law;

(2) a statement of the question itself; and

(3) a statement of the reasons why a substantial basis exists for a difference of opinion on the issue and why an immediate appeal may materially advance the termination of the litigation.

These statements must be sufficient to persuade the court of appeals to exercise its discretion to permit the interlocutory appeal.

Under Fed. R. App. P. 5(b), any adverse party is entitled to file an answer in opposition within seven days of service. If the petition is granted, the appeal is docketed without the need for a further notice of appeal. Fed. R. App. P. 5(d).

The fact that a certification under 1292(b) is accepted by a circuit motion panel does not in any manner bind or restrict the merits panel that will ultimately rule on the appeal. 3d Cir. IOP 10.3.6. In fact, the merits panel may ultimately decide that the petition for 1292(b) review was improvidently granted and remand the case to the district court. See, e.g., Link v. Mercedes Benz, 550 F.2d at 862-65.

Once the Court of Appeals has obtained jurisdiction over an interlocutory order, it may reach any issue inherent in the order, whether or not that issue was the "controlling question of law" certified under 1292(b). Ivy Club v. Edwards, 943 F.2d 270, 275 (3d Cir. 1991), cert. denied, 112 S.Ct. 1282 (1992); see also Capelan v. Lagged Group Inc., 789 F.2d 181, 188 (3d Cir. 1986), cert. denied, 479 U.S. 1043 (1987); Struble v. New Jersey Brewery Employees * Welfare Trust Fund, 732 F.2d 325, 336 n. 10 (3d Cir. 1984).

F. EXTRAORDINARY WRIT REVIEW

Pursuant to 28 U.S.C. 1651(a): "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages or principles of law." Known as the "All Writs Act," 165 1(a) permits litigants to petition for relief such as writs of mandamus and prohibition.

The power conferred on the courts by 165 1(a) is discretionary, and will be exercised only in extraordinary cases. Kerr v. United States District Court, 426 U.S. 394, 402 (1976). Although the statute can be used to review interlocutory orders, it may not be abused in an attempt to evade the final judgment rule of 28 U.S.C. 1291(a) or as a substitute for appeal. See Roche v. Evaporated Milk Assoc., 319 U.S. 21, 320 (1943); In re School Asbestos Litigation, 977 F.2d 764, 772 (3d Cir. 1992).

Applications for writs of mandamus or prohibition are governed by Fed. R. App. P. 2 1(a). Petitions must be filed with the Clerk of the Court of Appeals with proof of service on the respondent judge and on all parties to the action in the trial court. Pursuant to a 1996 amendment of Rule 21, the district judge is no longer treated as a respondent to the petition; however, the petitioning party must also provide a copy of the petition to the trial court judge. Fed. R. App. P. 21(a). The petition itself must state:

(1) all facts necessary to an understanding of the issues presented;

(2) the issues presented;

(3) the relief sought, and

(4) the reasons why the writ should issue.

It must also include copies of the underlying order and opinion and those parts of the record that are essential to understanding the petition.

No response to the petition is required of the other parties unless specifically ordered by the court. Fed. R. App. P. 21(b). The court may deny the petition simply based on the moving papers. However, if the court does order a response, it will direct that an answer be filed by the respondents within a specified time.

The trial judge may not actively participate in the proceedings unless the Court of Appeals invites or orders the judge to respond. Fed. R. App. P. 21(b)(4). The trial judge may request permission to respond, but still may not respond unless the Court of Appeals invites or orders the response. Rule 21(b)(4) also permits the Court of Appeals to invite an amicus curiae to respond. This option avoids placing the trial judge in an adversarial position with a litigant.

The drastic remedy of a writ of mandamus or prohibition has traditionally been used in federal courts only to confine an inferior court to the lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it has a duty to do so. Will v. United States, 389 U.S. 90, 95 (1967). Thus, "[i]f there has been a judicial "usurpation of power" the invocation of this extraordinary remedy will be warranted." United States v. Santtini, 963 F.2d 585, 594 (3d Cir. 1992) (quoting Will v. United States, 389 U.S. at 95).

The party seeking mandamus has the burden of showing that its right to issuance of the writ is clear and indisputable. Kerr v. United States District Court, 426 U.S. at 403; Will v. United States, 389 U.S. at 96; Bankers Life and Casualty Co. v. Holland, 346 U.S. 379, 384 (1953); United States v. Bertoli, 994 F.2d 1002, 1014 (3d Cir. 1993); DeMasi v. Weiss, 669 F.2d 114, 117 (3d Cir. 1982). The Third Circuit has "consistently applied this stringent standard." In re Pasquariello, 16 F.3d 525, 529 (3d Cir. 1994). (writ of mandamus denied in absence of clear and indisputable right). Furthermore, mandamus should be sought only when the petitioner has no other adequate means to obtain the relief he desires. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980); Kerr v. United States District Court, 426 U.S. at 403; Lx Parte Fahey, 332 U.S. 258, 260 (1947); DeMasi v. Weiss, 669 F.2d at 117.

There are two reasons why the Supreme Court has instructed federal appellate courts to use their mandamus power sparingly. DeMasi v. Weiss, 669 F.2d at 117. First, a petition for mandamus makes a district court judge a litigant who must retain private counsel or leave his defense in the hands of a litigant before him. Id.; see also LaBuy v. Howes Leather Co., 352 U.S. 249, 258 (1957); Lx Pane Fahey, 332 U.S. at 259-60. Second, the use of peremptory writs could readily subvert the policies underlying the finality rule expressed in 28 U.S.C. 1291 and the carefully limited congressional scheme governing interlocutory appeals. Bauman

v. United States District Court, 557 F.2d 650, 653 (9th Cir. 1977); see also Citibank, N.A. v. Fullam, 580 F.2d 82, 86 (3d Cir. 1978).

Consequently, the writ may not be used as a substitute for appeal even though hardship may result in the form of delay, unnecessary trial, expense or inconvenience. Bauman v. United States District Court, 557 F.2d at 658. It is therefore axiomatic that, because appeal is usually the appropriate procedure for obtaining review, extraordinary writs do not reach matters of mere error. Will v. United States, 389 U.S. at 104; Parry. United States, 351 U.S. 513, 520 (1956). The power of mandamus is not used to control decisions of the trial court, even if erroneous, when those decisions are made within the court * s jurisdiction. Schlagenhauf v. Holder, 379 U.S. 104, 112 (1964); Western Electric Co. v. Stern, 544 F.2d 1196, 1198 (3d Cir. 1976), cert. denied, 444 U.S. 916 (1979); Rodgers v. United States Steel Corp., 508 F.2d 152, 161 (3d Cir.), cert. denied, 423 U.S. 832 (1975).

The decision to issue a writ of mandamus is largely committed to the discretion of the issuing court. Citibank, N.A. v. Fullam, 580 F.2d at 90. Even if a petitioner for mandamus meets the burden of establishing both a clear and indisputable right to relief and the absence of other adequate remedies, it is still within the discretion of the Court of Appeals to decline to issue the writ. Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 163 (3d Cir. 1993); DeMasi

v. Weiss, 669 F.2d at 117; see also Kerr v. United States, 426 U.S. at 403; LaBuy v. Howes Leather Co., 352 U.S. at 260; Roche v. Evaporated Milk Association, 319 U.S. at 25.

Often it cannot be reliably ascertained whether the Court of Appeals will determine that interlocutory review is available by appeal or whether, instead, it will decide that an extraordinary writ must be sought. Consequently, a litigant is well advised to seek relief on alternative bases, filing both a notice of appeal and a petition for mandamus or prohibition. See United States v. Santtini, 963 F.2d at 590; see also PAS v. Traveler * s Ins. Co., 7 F.3d 349, 352-53 (3d Cir. 1993).

The Third Circuit recently reaffirmed that "[m)andamus may properly be used as a means of immediate appellate review of orders compelling the disclosure of documents and information claimed to be protected from disclosure by privilege or other interests of confidentiality." Rlzone-Poulenc Rorer Inc. v. Home Indemnity Co., 32 F.3d 851 (3d Cir. 1994)(writ issued to protect attorney-client privilege and work product).

G. SPECIAL JURISDICTIONAL STATUTES

Attorneys who handle specialized areas of civil practice must familiarize themselves with the special jurisdictional statutes that govern those areas.

For example, 26 U.S.C. 7482 provides that the Court of Appeals has exclusive jurisdiction to review decisions of the Tax Court (except as provided in 28 U.S.C. 1254), in the same matter and to the same extent as decisions of the district court in civil actions tried without a jury. Special venue provisions relative to tax court appeals are also set forth in 26 U.S.C. 7482, and that section also specifies the appellate court * s power to affirm, modify or reverse tax court decisions.

The procedures for initiating an appeal from the tax court are outlined in Fed. R. App. P. 13. Another special jurisdictional statute is 28 U.S.C. 158, which governs bankruptcy appeals. Appeals in bankruptcy cases are further regulated by Fed. R. App. P. 6. Exclusive jurisdiction in the Federal Circuit over many different types of cases is provided by 28 U.S.C. 1295. Appeals from arbitrability determinations are largely governed by 9 U.S.C. 16. See also 9 U.S.C.A. 16, Practice Commentary at 270-75 (1994 Supp.).

H. REVIEW OF ADMINISTRATIVE AGENCY DECISIONS AND ORDERS

In some instances, Congress has determined that the decisions of federal administrative agencies will be reviewable by the federal courts of appeals. This authority is conferred by specific statutory provisions. Like district court decisions, administrative agency decisions must also be final before they can be reviewed in the court of appeals. Sometimes this requirement is expressly stated in the statute; in other cases, it is inferred. See Bell v. New Jersey, 461 U.S.  773, 777-79 (1983); Mathews v. Eldridge, 424 U.S. 319, 331 (1976); McKart v. United States, 395 U.S. 185 (1969).

A summary of some of the numerous statutes providing for court of appeals review of certain administrative agency decisions may be found in 16 C. Wright, A. Miller, E. Cooper & E. Gressman, FEDERAL PRACTICE AND PROCEDURE 3941.

I. APPEALS FROM MAGISTRATES * DECISIONS

Generally, a federal magistrate * s ruling will not be reviewed in the court of appeals until it is adopted by a district court judge. Then, technically, it is the district court judge * s order that is appealed.

An exception is the direct appeal from a judgment entered in a case handled by a federal magistrate judge, where the magistrate judge is exercising civil jurisdiction by consent of the parties. Currently, this is the only route for appeal available in such cases. See Fed. R. Civ. P. 73(c) and 28 U.S.C. 636(c). In October 1996, the alternative of electing to have the district court judge act as an appellate tribunal was eliminated. Appeals to the court of Appeals pursuant to 636(c) are taken in the same manner as appeals from their judgments of the district court. Fed. R. App. P. 3.1. See also L. Civ. R. 73.1(t).

 

IV. FILING THE NOTICE OF APPEAL

An appeal of right is initiated by filing a notice of appeal with the clerk of the district court. Fed. R. App. P. 3(a). "As a general rule, the timely filing of a notice of appeal is an event of jurisdictional significance, immediately conferring jurisdiction on a Court of Appeals and divesting a district court of its control over those aspects of the case involved in the appeal." Venen v. Sweet, 758 F.2d 117, 120 (3d Cir. 1985) (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982).

The notice of appeal must specify the parties who are appealing, the order appealed, and the court to which the appeal is taken. Fed. R. App. P. 3(c). The recent amendment to Rule 3(c) liberalized the rule * s approach to designating the party or parties appealing. In 1988, the Supreme Court had held that specification of the parties is a jurisdictional requirement and that "er al." is insufficient to add additional parties other than the specifically named party. See Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988). Rule 3(c) now provides that each appellant must be named either in the caption or the body of the notice of appeal, but permits an attorney representing more than one party to describe the parties by terms such as "all plaintiffs," "the defendants," or even "the plaintiffs A, B, et al." In the absence of contrary indication, pro se notices of appeal are deemed filed on behalf of not only the signer, but also the signer * s spouse and minor children, if they were parties in the underlying litigation. In addition, in an appeal in a class action, "it is sufficient for the notice to name one person qualified to bring the appeal as representative of the class." Fed. R. App. P. 3(c). Amended Rule 3(a) now provides that the party filing the notice of appeal must provide the district court with sufficient copies for service on all other parties.

Consistent with this more flexible approach, the rule also explicitly provides that "[a]n appeal will not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice." Id.

The time for filing the notice of appeal in civil cases is set forth in Fed. R. App. P. 4(a). Basically, the notice of appeal must be filed in the district court within 30 days after the entry of the judgment or order on the docket. However, if the United States, or one of its officers or agencies, is a party, the notice may be filed within 60 days. If a timely notice is filed by one party, any other party may file a notice of appeal within 14 days of date of the first filing or within the same time prescribed by the rule, whichever period last expires. Fed. R. App. P. 4(a)(3).

If a notice of appeal is filed prematurely - after the announcement of a decision or order, but before the entry of the judgment or order on the docket - the notice is treated as filed on the date of and after the entry on the docket. Fed. R. App. P. 4(a)(2). The Supreme Court has construed this rule as requiring that the announced decision be "appealable if immediately followed by the entry of judgment." FirsTier Mortgage Co. v. Investors Mortgage Insurance Co., 498 U.S. 269, 276 (1991). Conversely a notice of appeal filed after a ruling on a clearly interlocutory decision does not serve as a notice of appeal from the final judgment. Id.

The filing of certain specified post-trial motions delays the running of the period to file a notice of appeal until after the last such post-trial motion is decided. Fed. R. App. P. 4(a)(4). In a change from the prior practice, if a notice is filed prematurely, prior to disposition of all of those motions, it is ineffective only until the entry of the order disposing of the last specified motion; on the date that the order is entered disposing of that last motion, the notice of appeal takes effect. However, if the post-trial order alters the judgment and a party wishes to appeal the post-trial ruling, the party must file an amended notice of appeal.

The requirement of a timely notice of appeal is mandatory and jurisdictional. See Browder v. Director, Dept. of Corrections, 434 U.S. 257, 264 (1978). Further, the time cannot be extended by the Court of Appeals. Fed. R. App. P. 26(b). However, upon a showing of excusable neglect or good cause, the district court may extend the time for filing if a motion is filed not later than 30 days after the time prescribed by Fed. R. App. P. 4(a)(1). See Fed. R. App. P. 4(a)(5). The extension may not exceed 30 days past the prescribed time or 10 days past the entry of the order granting the motion, whichever occurs last. The grant of an extension is a matter of discretion.

The notice of appeal is not "filed" until it is received by the clerk of the district court. Deposit in the mail is not "filing"; however, a prisoner * s submission of a notice of appeal to prison officials was held to constitute filing in Houston v. Lack, 487 U.S. 266 (1988). If a notice is mistakenly filed in the Court of Appeals rather than the district court, it will be treated as filed in the district court on the date of noted receipt by the Clerk of the Court of Appeals. Fed. R. App. P. 4(a)(1). In addition, Fed. R. App. P. 4(a)(6) permits the district court to reopen the period to file a notice of appeal for a period of 14 days in the event that a party did not receive notice of the entry of the order within 21 days and if no party will be prejudiced.

V. TILE RECORD

The record on appeal is comprised of the original papers and exhibits filed in the district court, the transcript of proceedings, and a certified copy of the docket entries. Fed. R. App. P. 10(a). It is the responsibility of the appellant to order the transcription of any portions of the record that are pertinent to the issues on appeal. Fed. R. App. P. 10(b)(1). This must be done within 10 days of filing the notice of appeal. If the entire transcript is not ordered, the appellant is required to file a statement of the appellate issues within 10 days after filing the notice of appeal and to serve a copy of the statement on the appellee so that the appellee can designate additional parts to be included. Fed. R. App. P. 10(b)(3).

Pursuant to the authority of Fed. R. App. P. 11(e), the Third Circuit has provided that a certified copy of the docket entries in the district court shall be transmitted to the Clerk of the Court of Appeals in lieu of the entire record. See 3d Cir. LAR 11.2; Consequently, it is important to follow the requirements of Fed. R. App. P. 30(a) and 3d Cir. LAR 30.3 by including in the appendix those portions of the record that are relevant to the issues presented and at such length as is necessary to preserve context.

Fed. R. App. P. 10 also provides for augmentation or correction of the record in instances where a report was not made, the transcript is unavailable, or the record in some way omits or misstates what truly occurred in the district court. See Fed. R. App. P. 10(c) and (e).

 

VI. THE BRIEF AND APPENDIX

After docketing a notice of appeal, the Third Circuit Clerk always provides the parties with a comprehensive list of the requirements for filing a proper brief and appendix. Attention to this checklist will assure that a brief or appendix is not rejected for filing and can save substantial reprinting costs.

A. THE BRIEF

The form and contents of the brief are governed by Fed. R. App. P. 28, Fed. R. App. P. 32, and 3d Cir. LAR 28.1. Service and filing are covered by Fed. R. App. P. 31.

As recently amended, Fed. R. App. P. 28(a) requires the appellant * s brief to include:

(1) a table of contents, with page references, and a table of cases;

(2) a statement of subject matter and appellate jurisdiction;

(3) a statement of the issues presented for review;

(4) a statement of the case, including a statement of relevant facts;

                            (5) a summary of argument;

(6) an argument, including a statement of the standard of review applicable to each issue, and

(7) a short conclusion stating the precise relief sought.

The summary of argument is now required pursuant to an amendment effective December 1, 1994.

In addition to the contents required by Fed. R. App. P. 28(a), 3d Cir. IAR 28.1(a) imposes additional requirements on the appellant. This local rule specifically demands that the statement of the issues include a designation of the place in the record where each issue was preserved for an appeal, and it dictates that the standard of review be placed in this section of the brief. This rule also requires a statement of related cases and proceedings and directs that a copy of the order being appealed, and any relevant opinion or decision, be inserted at the end of the brief, rather than in the appendix.

It is also notable that 3d Cir. LAR 28.1(b) now explicitly expresses that "[t]he Court expects counsel to exercise appropriate professional behavior in all briefs and to refrain from making ad hominem attacks on opposing counsel or parties. * t

The appellee * s brief must include essentially the same contents as the appellant * s, although the appellee may choose to dispense with statements of jurisdiction, the issues, the case, the facts, or the standards of review. Fed. R. App. P. 28(b). However, as a matter of advocacy, commission of these items is seldom wise. Newly amended Rule 28(b) requires that the appellee * s brief also include a summary of argument.

Reply briefs need only include the table of contents, the table of authorities, and the argument. Fed. R. App. P. 28(c).

In a new provision, 3d Cir. LAR 28.3(b) now codifies the ethical obligation of each party to cite to all authority that is binding on the Court of Appeals, whether the authority supports or opposes the party * s proposition. Such authority would include pertinent decisions of the United States Supreme Court, published decisions of the Third Circuit, or - in diversity cases - decisions of the highest court of the applicable state.

It is important to remember that there are page limitations on the briefs. Principal briefs may not exceed 50 pages and reply briefs are limited to 25 pages. Fed. R. App. P. 28(g). Non-conforming briefs will be rejected by the Clerk. See 3d Cir. LAR Misc. 107.3. In exceptional cases where an extension of the page limit is necessary, for instance in complex cases with multiple parties, permission to enlarge the page limitation should be sought by motion well in advance of the expiration of the time for filing the brief. Amended Rule 28(g) now specifically provides that the proof of service is not counted within the page limitation.

Occasionally, additional significant authority comes to the attention of a party after the brief has been filed or after oral argument, but before the case is decided. In such cases, the party may advise the Clerk by letter, with service to all counsel. The letter should provide the relevant citation and indicate the issue or portion of the brief to which the citation pertains. The reason for the supplemental citation should be provided without argument. Fed. R. App. P. 28(j).

Generally, amicus briefs may be filed only if accompanied by written consent of all parties or by leave of the Court granted on motion or at the request of the Court. Fed. R. App. P. 29.

As provided by 3d Cir. LAR 31.1, ten copies of each brief must be filed with the Clerk and two copies must be served on counsel for each party.

B. THE APPENDIX

The form and contents of the appendix is governed by Fed. R. App. P. 30 and 3d Cir. [AR 30.3. It is the duty of the appellant to prepare and file the appendix. Fed. R. App. P. 30(a). However, the parties are encouraged to agree on the contents of the appendix. Fed. R. App. P. 30(b). In the absence of agreement, the appellant must serve the appellee with a designation of the issues and the portions of the record intended to be included in the appendix. The appellee can then designate any additional portions to be included.

The combined effect of Fed. R. App. p. 30(a) and 3d Cir. [AR 30.3 is to require that the appendix include all "relevant" portions of the record "at such length as may be necessary to preserve context." In addition, 3d Cir. LAR 30.3 explains that transcript portions are not considered relevant for the purposes of the appendix merely because they are referenced in the Statement of the Case or the Facts. They are included in the appendix only if necessary for an understanding of the issues raised on appeal. However, 3d Cir. LAR 30.3 also specifically requires that, in an appeal challenging the sufficiency of the evidence to support a verdict or other determination, the appendix must include "all of the evidence of record that supports the challenged determination."

The cost of the appendix is initially paid by the appellant, including the cost of including items designated by the appellee, unless the appellant advises the appellee that the items are unnecessary. In that case, the appellee must advance the cost of including such parts; however, a requirement of unnecessary payments by an adversary may be taxed as costs against either party. Fed. R. App. P. 30(b)

Unless the court orders otherwise, four copies of the appendix must be filed with the Clerk. 3d Cir. R. LAR 30.1. One copy of the appendix must be served on each party. Fed. R. App. P. 30(a).

 

VII. ORAL ARGUMENT

In the Third Circuit, the merits panel determines whether there will be oral argument and the amount of time allotted. 3d Cir. IOP 2.1. There will be oral argument if it is desired by at least one judge. 3d Cir. LAR 34.1(a); 3d Cir. IOP 2.1. Any party may file a statement with the Court setting forth the reasons why oral argument should be allowed. 3d Cir. [AR 34.1(b).

No later than 10 days prior to the argument, the Clerk advises counsel of the names of the members of the merits panel, whether the case will be orally argued and, if so, the amount of time allocated. 3d Cir. IOP 2.5. Most arguments are listed for between 10 to 20 minutes per side. Postponements of argument are rarely granted. Absent truly exceptional or extraordinary circumstances, requests for postponement are refused. 3d Cir. R. I~AR 34.1(a). The local rule on oral argument also now states that, in certain appeals, the Clerk will inform the parties of the particular issues that the merits panel wishes to have addressed at oral argument; however, as a practical matter, this rule is seldom utilized by the Court.

The Third Circuit panels are invariably well-prepared for the arguments they hear, and they are familiar with the facts, law and issues. Given the short period of time actually available to the address the court, counsel generally should refrain from lengthy factual recitations that repeat material contained in their briefs and limit their presentation of the facts to those most pertinent to the issues being argued.

It is wise to be prepared to present a succinct argument that focuses the court * s attention on the critical aspects of the party * s position; however, it is also important to be prepared for questions from the bench. When questions are asked, they should be answered promptly and the opportunity should be used to make a point favorable to the litigant * s position. The questions of the court reveal the court * s concerns and can guide counsel toward identifying and resolving those issues that may sway the outcome of the appeal.

The appellant argues first and has the option of reserving some of the allotted time for rebuttal argument. Fed. R. App. P. 34(c). Failure to reserve time for rebuttal usually will preclude an opportunity to respond; consequently, it is advisable for appellant * s counsel to reserve two or three minutes even if counsel is uncertain that the time will be needed. In the event that appellant * s counsel ultimately decides that a rebuttal argument is unlikely to further appellant * s position - and may actually provide an opportunity to lose ground - it is quite proper to state that, unless the court has further questions, appellant has nothing further to add.

 

VIII. MOTION PRACTICE

A. FILING AND SERVICE

The procedure for filing and serving motions is governed by Fed. R. App. P. 25, Fed.

R. App. P. 27, and 3d Cir. [AR 27.0. As set forth in Fed. R. App. P. 25(a), all papers are filed with the Third Circuit Clerk. Rule 25(a) has been amended to bar local court rules that would permit the clerk to refuse papers for filing. The clerk can require correction of papers that do comply with the rules; however, if the non-compliance is not corrected, the clerk must refer the matter to the court for further action. For instance, Rule 25(d), also newly amended, now requires that the certificate of service must state the addresses to which papers are mailed or delivered. However. if the certificate of service is missing or defective, the clerk is not permitted to refuse to accept the papers.

In recognition of technological advances, 3d Cir. LAR 25.1 addresses the issue of facsimile filing. The rule permits facsimile filing only with prior authorization by the Clerk, and is limited to emergency situations. If facsimile filing is used, the original signed documents still must be promptly filed. 3d Cir. LAR 25.1. In emergency situations, facsimile may also be used for service. 3d Cir. LAR 27.2

A 1996 amendment to Fed. R. App. P. 25(a) clarifies that the use of First Class mail is sufficient when filing may be performed using the "mailbox rule," which deems a brief or motion to be timely filed when deposited in the mails. Another amendment provides that filing is also timely accomplished by dispatching the brief or motion with a third party commercial carrier for delivery within three calendar days. Rule 26(c), concerning the computation and extension of time, has been amended to provide an additional three days for filing a response if service on that party was achieved by either mail or commercial delivery and the papers were not received on the date of service stated in the proof of service. The amendment also clarifies that the extension is "3 calendar days," so that - unlike the general provision in Rule 26(a) - intermediate Saturdays, Sundays and legal holidays are not excluded from the computation.

Motions must be served on all other parties, not just opposing parties, and any supporting papers should be filed and served with the motion. Fed. R. App. P. 25 and 27(a). There is a seven-day period for filing a response to the motion, and that period runs from the time of service. Fed. R. App. P. 27(a). A local rule provides that "[m]otions shall ordinarily be served on other parties by means equally expeditious to those used to file the motion with the Court." 3d Cir. LAR 27.2. This means that if overnight mail or another form of express delivery is used to file the motion with the Court, the other parties should be served in a way that assures that they will receive the papers at approximately the same time as the Court.

In a new provision, the Third Circuit local rules now require each uncontested motion to be certified as uncontested by counsel. 3d Cir. LAR 27.3. This certification permits the Court to rule on the motion immediately, without waiting the usual seven days for a response.

In the rare case where it is necessary to file papers under seal, permission should be sought in advance by a motion that explains why sealing is necessary. 3d Cir. LAR Misc. 106.1(a). Other parties have seven days to file objections. In a civil matter, where papers have been impounded in the district court, they will only remain under seal in the Court of Appeals for ten days after filing the notice of appeal. 3d Cir. LAR Misc. 106.1(c). To continue the impoundment, a party must promptly make a motion in the Third Circuit and set forth the reasons that justify continued sealing. Id.

The Court will also entertain motions to unseal papers. 3d Cir. LAR Misc. 106.1(d).

B. MOTIONS TO EXTEND TIME AND ENLARGE PAGE LIMIT

Two motions that are frequently filed in the Court of Appeals are the motion to extend the time to file a brief (Fed. R. App. P. 26(b)) and the motion to enlarge the page limit (Fed. R. App. P. 28(g)). Neither motion is favored in the Third Circuit and both must be supported by facts that illustrate that the request is necessary based upon unusual circumstances.

The Clerk will decide these procedural motions in the first instance. 3d Cir. LAR 27.6. Upon further application, the Clerk * s decision can be reviewed by a single judge or by a panel of the Court. Id.

 

 

C. MOTION TO EXPEDITE

A motion to expedite the appeal also may be made pursuant to 3d Cir. LAR 4.1. Such a motion is appropriate where the normal briefing and disposition schedule might adversely affect one of the parties. Normally, the motion to expedite must be filed within 14 days of the notice of appeal; however, it may also be filed within 14 days of a subsequent emergency.

When the Clerk grants a motion to expedite, the usual result is to advance the briefing schedule; however, the speed of disposition remains within the discretion of the merits panel.

                                                   D. MOTION FOR STAY

After a notice of appeal is filed, the district court * s judgment may still be enforced unless it is stayed. Consequently, parties frequently desire to stay the judgment or order of the district court pending appeal.

To prevail on a motion for a stay or injunction pending appeal, the movant must establish four factors. ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987). First, the movant must show a likelihood of success on the merits. Second, there must be a risk of irreparable injury if the stay is not granted. Third, there must be an absence of substantial harm to other interested parties. Finally, there also must be no harm to the public interest.

Pursuant to Fed. R. App. 8(a), motions for stay should first be made to the district court. See also Fed. R. Civ. P. 62. However, if that motion is denied, or if application to the district court is not practicable, a motion for relief may be made in the Court of Appeals. Injunctive relief may also be sought under Rule 8(a) under similar circumstances.

Ordinarily, the motion for stay will be considered by a motions panel; however, in an emergency, Rule 8(a) permits interim relief to be sought by an application to a single judge of the Court. See also 3d Cir. LAR 27.5; 3d Cir. IOP 10.5.2(a). Normally, the action of the single judge will then be reviewed by the panel. Fed. R. App. P. 27(c); 3d Cir. LAR 27.5; 3d Cir. IOP 10.5.1.

The motion for stay must include a copy of the judgment or order appealed from, and any pertinent opinion. 3d Cir. LAR 8.1 and 18.1. The Clerk * s Office requires any emergency motion to be accompanied by the notice of appeal, a copy of the order appealed from, and the district court docket entries.

Reasonable notice of a motion must be given to all parties. Fed. R. App. P. 8(a). When an emergency motion is presented, the movant may be directed by the Clerk to deliver copies of the papers to members of the motions panel by hand or facsimile transmission. 3d Cir. IOP 10.2.2; 3d Cir. LAR 25.1 and 27.2. Generally there is no oral argument on motions. 3d Cir. LAR 27.1.

In death penalty cases, stay proceedings are governed by 3d Cir. LAR Misc. 111.0 .

 

lIX. STANDARDS OF REVIEW

The Third Circuit has long recognized the importance of the standard of review in deciding appeals and previously had its own local rule requiring each brief to include a specific statement of the standards of review that govern each issue. However, in 1993, the Federal Rules of Appellate Procedure were amended to impose that requirement in all circuits. See Fed.

R. App. P. 28(a)(5). The Third Circuit additionally requires the standards of review for all issues to be located with the statement of issues at the beginning of the brief. 3d Cir. LAR 28.1(i); see also Fed. R. App. Proc. 28(a).

The standard of review establishes the degree of deference that the appellate court must accord to the order or decision of the district court that is subject to review. Frequently, the standard of review makes the difference between success or failure on appeal.

The three basic standards of review are: plenary, abuse of discretion and clearly erroneous. Issues of law are subject to plenary review. This means that the court will independently examine the issue and need not defer to the decision of the district court. Sometimes this standard is called "de novo." Examples of legal issues in civil cases subject to plenary review include: (a) summary judgment orders; (b) dismissals of complaints; (c) interpretation of statutes; and (d) directed verdicts.

The clearly erroneous standard is applied to issues of fact. See Fed. R. Civ. P. 52(a). "A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); see also Anderson v. City of Bessemer City, N. C., 470 U.S. 564, 573 (1985), cited in Oberti v. Board of Education, 995 F.2d 1204, 1219 (3d Cir. 1993). The clearly erroneous standard means that the court of appeals must defer to the district court * s finding unless it is truly unsupportable; the appellate court may not simply substitute its judgment for that of the district court even if it would have come to a different conclusion. See Citibank N.A. v. Wells Fargo Asia Ltd., 495 U.S. 660, 670-72 (1990); Oberti, 995 F.2d at 1219. Examples of factual issues reviewed under the clearly erroneous standard include: (a) findings of historical fact; (b) intent of the parties, and (c) credibility of witnesses.

The third standard of review is abuse of discretion. This standard accords the greatest deference to the district court. The appellate court will assess whether the district court considered the appropriate factors and gave them appropriate weight. United States v. Criden, 648 F.2d 814, 817 (3d Cir. 1981). Again, a decision reviewed for abuse of discretion will not be reversed merely because the Court of Appeals might have ruled differently had it been the original decision maker. The abuse of discretion standard has been applied to issues such as:

(a) admission of evidence; (b) discovery orders; (c) conduct of the trial, and (d) new trial motions.

Occasionally an issue is delineated as a "mixed question of law and fact." In such cases, the issues are separated into factual and legal components; the clearly erroneous standard is applied to the factual components and the plenary standard is applied to the legal components.

Hall v. Wilkerson, 926 F.2d 311, 314 (3d Cir. 1991); Ram Construction Co., Inc. v. American

States Ins. Co., 749 F.2d 1049, 1053 (3d Cir. 1984).

 

 

X. PETITIONS FOR PANEL REHEARING.

SUGGESTIONS FOR REHEARING IN BANC. AND PETITIONS FOR A WRIT OF CERTIORARI

After the Court of Appeals reaches its decision, a party who is dissatisfied with the result may choose to seek further review. The options are: a petition for panel rehearing, a suggestion for rehearing in banc, or a petition for a writ of certiorari.

A. PANEL REHEARING

Panel rehearing is sought pursuant to Fed. R. App. P. 40. It is appropriate where the panel may have overlooked an important point of law or fact. Fed. R. App. P. 40(a). However, it should not be used either simply to reargue the position previously presented or to present new facts or issues. In re Sugar Industry Antitrust Litigation, 579 F.2d 13, 19 (3d Cir. 1978) (opinion for petition for panel rehearing).

Generally, a petition for panel rehearing must be received by the court within 14 days of the entry of judgment; however, in all civil cases involving the United States or its agencies or officers, any party may seek rehearing within 45 days of the entry of judgment. Fed. R. App. P. 40(a). The petition is limited to 15 pages in length. Fed. R. App. P. 40(b). It must include a copy of the panel * s judgment, order and opinion if any, as to which rehearing is sought. 3d Cir. LAR 35.2. No answer to the petition will be received by the Court unless it is specifically ordered. Fed. R. App. P. 40(a); see also 3d Cir. IOP 8.2.

The filing of the petition acts to stay the mandate, which normally issues 7 days after the expiration of the time for filing a petition for rehearing. Fed. R. App. P. 4 1(a). If a petition for rehearing is denied, the mandate issues 7 days after the denial. Although Rule 4 1(a) does not specifically address the occasion when a petition is granted, presumably the mandate would issue 7 days after the expiration of the time for filing a petition for rehearing based upon the new judgment.

B. REHEARING IN BANC

A suggestion for rehearing in banc is usually filed in conjunction with the petition for panel rehearing. In the absence of specification, the Court assumes that both are requested. 3d Cir. IOP 9.5.1.

Rehearing in banc is appropriate where the panel decision is inconsistent with Third Circuit or Supreme Court precedent or involves a question of exceptional importance. Fed. R. App. P. 35(a); 3d Cir. LAR 35.1; 3d Cir. IOP 9.3.1. The suggestion for rehearing in banc must include a statement of counsel * s belief that the case meets the criterion for in banc consideration. 3d Cir. LAR 35.1. It must also include as an exhibit a copy of the panel * s judgment, order or opinion, as to which rehearing is sought. It also must be received by the court within the same period allotted by Rule 40(a) for filing a petition for panel rehearing. 3d Cir. LAR 35.2. Like the petition for rehearing, no response is permitted unless specifically ordered by the Court. Fed. R. App. P. 35(b).

Because of the Third Circuit policy of avoiding intra-circuit conflict of precedent, the holding of a panel in a reported decision is binding on other panels and in banc consideration

is required to overrule that precedent. 3d Cir. IOP 9.1. Conversely, if a subsequent panel has seemingly overruled the published opinion of a prior panel, that would be a sound basis for rehearing in banc. However, because of the circuit practice of circulating draft opinions to all active members of the court prior to publication, along with a request for notification if there is a desire for in banc consideration, the chances of later obtaining in banc review in the Third Circuit are very low. See 3d Cir. IOP 5.3.4.

The pendency of a suggestion for rehearing in banc will not stay the mandate. Fed. R. App. P. 35(c). Consequently, if for some reason a suggestion for in banc rehearing is at some point not coupled with a pending petition for panel rehearing, it will be necessary to move to stay the mandate if the party desires to avoid the immediate effect of the district court * s decision. However, the Court * s internal practice of deeming all suggestions for in banc rehearing as also requesting panel rehearing, generally protects parties against an interim issuance of the mandate. See 3d Cir. IOP 9.5.1.

C. PETITION FOR WRIT OF CERTIORARI

A petition for a writ of certiorari is appropriate in federal cases where:

(1) the law is clear in the Third Circuit and the decision is consistent with that law, but

there is a split of opinion in the circuits, Sup. Ct. R. 10.1(a), or

(2) the case involves an important question of federal law not yet addressed by the

Supreme Court or decided in conflict with applicable Supreme Court precedent. Sup.

Ct. R. 10.1(c).

The filing of a rehearing petition in the Court of Appeals is not a prerequisite to petitioning for a writ of certiorari.

The filing of a petition for a writ of certiorari will not stay the mandate in the Court of Appeals; however, the petitioner may move to stay the mandate pending application for certiorari. Fed. R. App. P. 41(b). If a petition is filed within the period of the stay, the stay is automatically extended through final disposition of the petition. The mandate will issue immediately upon the denial of the petition.

The adversary party may oppose the stay of the mandate. Generally, the stay will not be granted if the law is clearly against the petition or if it is unlikely that the petition will be granted. A stay may also be sought directly from the Circuit Justice of the Supreme Court. Sup. Ct. R. 23.2; 28 U.S.C. 2101(f).

In exceptional cases, the mandate may be recalled by the Court of Appeals, for instance, to prevent injustice or protect the integrity of the Court * s own processes. See, e.g., American Iron & Steel Institute v. E.P.A., 560 F.2d 589 (3d Cir. 1977), cert. denied, 435 U.S. 914 (1978). However, the Court * s inherent power to recall the mandate is sparingly exercised.

 

 

XI. DAMAGES AND COSTS

The award of damages and costs is governed by Fed. R. App. P. 38, Fed R. App. P. 39 and 3d Cir. LAR 39.0. Under Rule 38, if the court determines that an appeal is frivolous, it may award just damages and single or double costs to the appellee; however, it should be noted that a new amendment to the rule requires that such an award be preceded by a separately filed motion or notice from the court and a reasonable opportunity for the appellant to respond. It is not sufficient for the appellee simply to request damages or costs in the appellee * s brief.

Generally, if an appeal is dismissed, costs are taxed against the appellant; otherwise they are taxed against the losing party. Fed. R. App. P. 39(a). This can be varied by order of the court.

 

XII. APPEAL CONFERENCES

Revised Fed. R. App. P. 33 provides that the court may direct the attorneys, and in some cases also the parties, to attend conferences either before or after oral argument with a view toward simplifying the issues or even settling the case. The conference may be in person or by telephone. Prior to a conference concerning settlement, the attorneys must consult with their clients to obtain as much authority as feasible to settle the case. If a settlement is reached, Rule 33 also authorizes the court to enter an order implementing the settlement agreement.

 

XIII. MASTERS

Pursuant to new Fed. R. App. P. 48, the court of appeals is authorized to appoint a special master to hold hearings, as necessary, and make recommendations concerning factual findings and dispositions in matters ancillary to proceedings in the court. This rule is meant to aid the court concerning factual issues which may arise in the first instance in the court of appeals, such as applications for fees or Criminal Justice Act status.

 

END OF DOCUMENT


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