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Appellate Jurisdiction in the Ninth Circuit

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Appellate Jurisdiction in the Ninth Circuit APPELLATE JURISDICTION IN THE NINTH CIRCUIT Written March 1999 Lisa B. Fitzgerald Office of Staff Attorneys United States Court of Appeals for the Ninth Circuit Updated 2012 Corrections and comments should be e-mailed to Jennifer Rich at [email protected] This outline is intended for use as a starting point for research. It is not intended to express the views or opinions of the Ninth Circuit, and it may not be cited to or by the courts of this circuit. Table of Contents I. INTRODUCTION ......................................................................................... 1 II. STATUTORY BASES FOR CIVIL APPEALS ......................................... 1 A. APPEALS FROM FINAL DECISIONS (28 U.S.C. § 1291) ............... 2 1. FINAL DECISIONS ................................................................... 2 a. Generally ........................................................................... 2 i. Need to Consider Finality ...................................... 3 ii. Policy Behind Final Judgment Rule ....................... 4 b. Determining Finality ......................................................... 4 i. District Court Intent ............................................... 5 ii. Adjudication of all Claims ..................................... 6 (a) Precise Damages Undetermined .................. 6 (b) Implicit Rejection of Claim or Motion ........ 6 (c) Apparent Attempt to Dispose of All Claims .......................................................... 7 (d) Discrepancy between Order and Judgment ...................................................... 7 (e) Scope of Underlying Action ........................ 8 (1) Consolidated Actions ......................... 8 (2) Actions to Enforce or Compel ........... 8 c. Manufacturing Finality ..................................................... 9 d. “Pragmatic” or “Practical” Finality Doctrine .................10 i. Parameters of Doctrine .........................................10 ii. Applications ..........................................................11 2. COLLATERAL ORDER DOCTRINE ....................................11 a. Generally .........................................................................11 b. Requirements of Collateral Order Doctrine ...................12 i c. Appealability of Specific Orders under Collateral Order Doctrine ..........................................................................13 i. Abstention Orders ................................................13 ii. Orders Denying Immunity ...................................14 iii. Disqualification of Counsel ..................................14 iv. Fed. R. Civ. P. 11 Sanctions .................................14 v. Other Orders .........................................................15 (a) Appealable Collateral Orders .....................15 (b) Orders Not Appealable as Collateral Orders .........................................................17 3. ORDERS CERTIFIED UNDER FED. R. CIV. P. 54(b) .........19 a. Generally .........................................................................19 i. District Court Determinations ..............................19 ii. Appellate Court Review .......................................20 b. Contents of Certification Order ......................................20 i. “No Just Reason for Delay” .................................20 ii. Reference to Fed. R. Civ. P. 54(b) .......................21 iii. “Specific Findings” Supporting Certification ......21 c. Propriety of Certification ................................................21 i. Appellate Review Required .................................21 ii. Standard of Review ..............................................21 iii. Scrutiny under Morrison-Knudsen .......................22 iv. Trend Toward Greater Deference to District Court .....................................................................22 (a) Orders Properly Certified under Fed. R. Civ. P. 54(b) ...............................................23 (b) Orders Not Properly Certified under Fed. R. Civ. P. 54(b) ..........................................25 ii d. Immediate Appeal from Fed. R. Civ. P. 54(b) Order Required ..........................................................................26 e. Denial of Rule 54(b) Certification ..................................26 B. APPEALS FROM INTERLOCUTORY DECISIONS (28 U.S.C. § 1292) .................................................................................................27 1. INTERLOCUTORY INJUNCTIVE ORDERS (28 U.S.C. § 1292(a)(1)) .............................................................................27 a. Generally .........................................................................27 b. Order Granting or Denying an Injunction ......................27 i. Explicit Grant or Denial or Injunction .................27 ii. Implicit Grant or Denial of Injunction .................28 (a) Practical Effect of Order ............................28 (b) Potential for Serious or Irreparable Harm ...........................................................29 (c) Effective Challenge Not Possible after Final Judgment ...........................................30 c. Orders Modifying, Continuing, or Dissolving Injunction ........................................................................30 i. Order Modifying Injunction .................................30 ii. Order Continuing Injunction ................................31 iii. Order Dissolving Injunction .................................31 iv. Order Denying Modification or Dissolution of Injunction ..............................................................32 d. Examples of Orders Appealable under 28 U.S.C. § 1292(a)(1) ....................................................................32 i. Order Granting Permanent Injunction ..................32 ii. Order Denying Entry of Consent Decree .............33 iii. Order Granting Injunction Despite Lack of Motion for Interim Relief .....................................33 iv. Order Requiring Submission of Remedial Plan ...33 iii v. Certain Orders Affecting Assets ..........................34 vi. Order Denying Relief in Mandamus Action ........34 vii. Order Staying Extradition ....................................34 viii. Order Denying Stay of Immigration Removal Order ...................................................................35 ix. Order Disapproving Class Settlement ..................35 e. Examples of Orders Not Appealable under 28 U.S.C. § 1292(a)(1) ....................................................................35 i. Order Denying Motion to Abstain .......................35 ii. Order Denying Motion for Stay ...........................36 iii. Order Granting England Reservation of Jurisdiction ...........................................................36 iv. Order Denying Motion to Quash ..........................36 v. Order Granting Conditional Permissive Intervention ..........................................................37 vi. Certain Orders Affecting Assets ..........................37 vii. Order Remanding to Federal Agency ..................37 viii. Order Denying Summary Judgment Due to Factual Disputes ...................................................38 ix. Order Denying Entry of Consent Decree Not Appealable by Party Against Whom Injunction Sought ...................................................................38 x. Case Management Order ......................................38 f. Temporary Restraining Order .........................................39 i. Order Tantamount to Denial of Preliminary Injunction ..............................................................39 ii. Orders Effectively Deciding Merits of Case ........40 g. Mootness .........................................................................41 2. INTERLOCUTORY RECEIVERSHIP ORDERS (28 U.S.C. § 1292(a)(2)) .............................................................................41 iv 3. INTERLOCUTORY ADMIRALTY ORDERS (§ 1292(a)(3)) ...................................................................................................42 a. Generally .........................................................................42 b. Appealable Admiralty Orders .........................................43 c. Nonappealable Admiralty Orders ...................................44 4. INTERLOCUTORY PERMISSIVE APPEALS (28 U.S.C. § 1292(b)) ..................................................................................44 a. Procedure for Appeal under 28 U.S.C. § 1292(b) ..........45 i. District Court Certification under § 1292(b) ........45 ii. Timely Petition from Order Certified under § 1292(b) ..............................................................45 iii. Appellate Court Permission to Appeal under § 1292(b) ..............................................................45 iv. Stay Pending Appeal from Certified Order ..........46 b. Standards for Evaluating § 1292(b) Certification Order ...............................................................................46 i. Order Raises Controlling Question of Law ..........46 ii. Difference of Opinion Exists as to Controlling Question ................................................................47 iii. Immediate Appeal Would Materially Advance Litigation ..............................................................47 c. Examples of Orders Reviewed under 28 U.S.C. § 1292(b) ........................................................................................48 d. Examples of Orders Not Reviewed under 28 U.S.C § 1292(b) .........................................................................49
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