In this section of the newsletter, we answer common questions about appellate practice, procedure, and strategy. If you have a question you would like Reed Smith’s Appellate Group to answer in a future edition of Appellate Review, send it to Donna Doblick.

Affirmance on Different Grounds (Federal Court)

Q: I just won summary judgment in a federal district court. I wish, though, that the district judge had based his ruling on one of our other arguments, because I fear the Court of Appeals will see holes in the ruling that the district court overlooked. Can I ask the Court of Appeals to affirm on alternative grounds instead?

A: Quite possibly, but it will depend on which circuit you’re in, whether you presented those alternative grounds to the district court, and whether the alternative arguments present pure questions of law.

There are limits on the courts’ willingness to affirm on alternative grounds. The federal courts of appeals generally will refuse to affirm on the basis of an argument the litigant never made to the trial court. This rule both prevents an appellant from being unfairly caught by surprise on appeal and protects the respective roles of the trial court and the reviewing court. Some circuits, like the Third, are willing to affirm based on an alternative argument not addressed by the district court, but only if the factual record is fully developed and the argument presents a pure question of law.

Waiver of Issues Not Raised Post-Trial (Federal Court)

Q: A jury handed me a nice win last week, and I just received the defendant’s post-trial Rule 50(b) motion. I was surprised to see that it omitted several arguments, including one of the arguments he had raised in his Rule 50(a) motion. Is this fatal? Should I point out what I think are the deficiencies in his motion or just lie low?

A: Fed. R. Civ. P. 50 is a thicket. You need to play close attention to the cases applying it or you may find yourself in the unenviable position of fending off a “waiver” argument in the court of appeals.

A few years ago, the U.S. Supreme Court held that a defendant’s failure to file a Rule 50(b) motion challenging the sufficiency of the evidence at trial deprives the court of appeals of jurisdiction to consider the argument. Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006). So, if your opponent failed to include a sufficiency of the evidence argument in his Rule 50(b) motion, you can probably rest comfortably in the knowledge that he will not be able to resurrect such an argument on appeal. Once you are outside of Unitherm, however, there is less clarity on whether the failure to parse the argument results in a waiver. Several courts have held, for example, that Unitherm’s “no jurisdiction” principle does not extend to legal or evidentiary errors. Still other problems can arise where the arguments raised in the Rule 50(b) motion arguably go beyond those raised in the Rule 50(a) motion. A thicket indeed!

Appeal of Remand Orders

Q: We were shocked when a federal district court sua sponte remanded a case to state court, claiming lack of jurisdiction. The court was plainly wrong, as the complaint establishes complete diversity of citizenship and more than $75,000 in controversy. Even opposing counsel agrees that the court erred. Can we ask the Court of Appeals to vacate the remand order?  

A: No. A remand order is not reviewable – by appeal or otherwise – unless one of a few exceptions applies.

28 U.S. § 1447(d) provides that remand orders are not generally reviewable on appeal. The Supreme Court has held that § 1447(d) must be read in conjunction with § 1447(c), meaning (among other things) that remands for lack of subject matter jurisdiction are not reviewable. If, however, a “defect in removal procedure” occurred, the remand order can be reviewed on appeal. Here, no such “defect” occurred. The district court was entitled to remand the case sua sponte, especially if it believed its subject matter jurisdiction was in question. Although the district court was wrong (and probably should have allowed you to amend your complaint if it perceived shortcomings in your jurisdictional allegations), its failure to do so does not render its remand order appealable. Like it or not, you are now litigating your case in state court.

Class Actions, Interlocutory Appeal of Certification Order (California, Illinois, Pennsylvania)

Q: We represent a defendant in state court, where the judge just certified a plaintiff class. I know we could try to take an interlocutory appeal of that class certification order if we were in federal court. Is there a similar mechanism in state court?

A: State court procedures vary widely. For example, it would be very difficult to do this if you’re litigating in Pennsylvania, and relatively difficult to do if you’re litigating in California. Illinois does have a counterpart somewhat similar to Fed. R. Civ. P. 23(f), however.

Fed. R. Civ. P. 23(f) authorizes federal appellate courts to hear immediate appeals from grants or denials of class certification. Pennsylvania does not have a counterpart to Rule 23(f). You might try, however, asking the court to certify the class certification order for discretionary appellate review. You will need to convince both the trial court and the superior court that the 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 matter. In other words, it’s not enough to show that the lower court abused its discretion. Be forewarned, however, that there aren’t many reported instances of the Pennsylvania Superior Court reviewing class certification orders on an interlocutory basis.

In California, parties may seek review of a class certification order by petition for writ of mandate. Although such review is discretionary, the recognized importance of class certification orders prompts appellate courts to review them more frequently than other orders, although review remains the exception and not the rule. Generally, a showing of clear error, along with a novel or important wrinkle, are the factors most likely to persuade a reviewing court to exercise its discretion to conduct writ review.

The practice in Illinois is more analogous to the practice under the Federal Rules. Under Illinois Supreme Court Rule 306(a)(8), you can seek leave from the Illinois Appellate Court to take an appeal by permission from a class certification order. You must file your petition within 30 days of entry of the certification order, along with a supporting record on appeal. But beware that there is case law for the proposition that motions for reconsideration of orders that are subject to Rule 306 generally do not toll the time to take an appeal. So, if you plan to seek leave to appeal the class certification order, do not file a motion for reconsideration; otherwise, you risk losing your ability to take an interlocutory appeal by permission once 30 days expires. The appellate court likely will rule on the petition relatively quickly. And if the petition is granted, matters in the circuit court are stayed pending appeal.

Declaratory Judgment Actions, Appeal of (Pennsylvania)

Q: I represent a plaintiff in a commercial dispute in the Pennsylvania Common Pleas Court. The defendant counterclaimed, seeking a declaratory judgment that the contract at issue is void as contrary to public policy. Unfortunately, the court just ruled in the defendant’s favor on the counterclaim. Our unjust enrichment claim is scheduled to go to trial next month. I don’t need to appeal the declaratory judgment order now, do I?  

A: Don’t be so sure. Pennsylvania Rule of Appellate Procedure 341 governs final appealable orders. Rule 341(b)(1) provides that a final order is one that “disposes of all claims and of all parties.” Plainly, the court’s order does not satisfy that requirement. However, Rule 341(b)(2) provides that an order also is final and appealable if it “is expressly defined as a final order by statute.” Pennsylvania’s Declaratory Judgment Act, 42 Pa. C.S.A. § 7532, provides that a declaration of rights shall have the “force and effect of a final judgment.” This language has led the Supreme Court to write in one recent opinion that an order granting (or denying) a declaratory judgment is final and appealable immediately, irrespective of whether other claims remain in the case. Nationwide Ins. Co. v. Wickett, 563 Pa. 595, 763 A.2d 813 (2000).

The Supreme Court recently has recently narrowed Wickett, and the superior court has in many instances also been reluctant to conclude that a litigant must appeal from an interlocutory order in a situation like yours.

You should recognize, however, that the cases are not uniform in this regard. In short, it is imperative that you dig deep into the case law and compare the procedural posture of your case with recent cases from the appellate courts in Pennsylvania. Why? If you guess wrong and fail to appeal an order that was final and appealable under Pa. R. App. P. 341, you have waived the right to appeal that order when the case is over.

Interlocutory Appellate Review (Pennsylvania)

Q: I have an interlocutory order in a state court in Pennsylvania that I know I can’t appeal as a matter of right. What are my options?

A: There are a number of potential ways to get an interlocutory order to the Superior Court (or the Commonwealth Court) before final judgment, namely, an interlocutory appeal by permission, a petition for review, a petition for writ of mandamus, a petition for writ of prohibition, and a King’s Bench petition. Click here for a chart that shows the standards for each approach, ranked in order of difficulty. Pre- and Post-Judgment Interest (Federal Court)

Q: A federal court of appeals just issued a remand order in which it instructed the district court to recalculate the damages that were awarded against our client and amend the judgment accordingly. The plaintiff contends that pre-judgment interest should run through the entry of the second (post-remand) judgment. I disagree. Who’s right?

A: The answer depends on why and to what extent the court of appeals disturbed the original judgment. And, as a purely practical matter, you may want to run some numbers before staking out a position.

If the court of appeals sets aside a judgment as not supported by the evidence, as lacking a legal basis, or as requiring further factual development (for example), then the relevant judgment for purposes of determining when pre-judgment interest ends (and post-judgment interest begins) is the second (post-remand) judgment. However, if the first judgment was set aside for some less fundamental error, the first judgment should be the line of demarcation.

Before deciding which position to advocate, consider the following: Pre-judgment interest in diversity cases typically is calculated at a rate determined by state law (frequently, by statute). In federal question cases, the court may apply some other rate (e.g., the IRS underpayment rate when calculating pre-judgment interest in a securities fraud case). Post-judgment interest on a federal judgment, on the other hand, is calculated at the one-year constant maturity Treasury yield for the week preceding the date of the judgment. 28 U.S.C. § 1961. This means that the rate you’d use to calculate post-judgment interest will vary depending on which judgment date the court selects. The difference in the rate could be vast, especially if a significant period of time has elapsed between the two judgments, and if the economy has been volatile during that period.

Extension of Time To File a Notice of Appeal (Federal Court)

Q: On the last day to file a notice of appeal from a federal court judgment, my opponent e filed a document that is clearly defective. The on-line docket reflects that the clerk of the district court gave him a week to fix his mistakes and file a proper notice of appeal. Can the court do this?

A: No. Although a litigant can petition the Court of Appeals for additional time to file a notice of appeal, the 30-day deadline (which is jurisdictional) cannot be extended by the district court.

A recent Fifth Circuit case is illustrative. There, 26 days after entry of a final judgment, the losing litigant mistakenly e-filed a document that purported to be a notice of appeal, but actually was a request for oral argument. The clerk’s office gave the litigant five days to e-file a corrected notice of appeal, which she did. Citing the jurisdictional nature of the 30-day deadline, the Fifth Circuit concluded that the second notice of appeal (filed on the 31st day) was untimely, and dismissed the appeal.

Rule 54(b) Appeals (Federal Court)

Q: I represent one of several defendants in a complex case. The district court directed the entry of a final judgment against my client (on Count I) and set the case for trial against the other defendants (on Count II). Because the court certified that there was “no just reason for delay,” I took an appeal pursuant to Fed. R. Civ. P. 54(b). The plaintiff just filed a motion seeking to quash my appeal. Should I be worried?

A: Let’s just say you’ll need to draft a persuasive brief in opposition to the motion to quash.

Rule 54(b) allows a district court to direct the entry of a final judgment as to fewer than all claims or parties if it “expressly determines that there is no just reason for delay.” The Court of Appeals can and will, however, review that determination, and will quash the appeal if it determines that the purpose of Rule 54(b) is not satisfied. Recently, for example, the Eighth Circuit sua sponte quashed two Rule 54(b) appeals within a month. The court made clear that, even if early appellate intervention might be “helpful” to the district court and the litigants, it will not assume jurisdiction over a Rule 54(b) appeal absent a showing that an immediate appeal will alleviate some danger, hardship, or injustice. There’s similar authority in (for example) the Third and Seventh Circuits, both of which are receptive to arguments that a Rule 54(b) certification was improvidently granted.

Amicus Brief in Support of Petition for Rehearing (Federal Court)

Q: I’ve been approached to submit an amicus curiae brief in support of a petition that a federal court of appeals rehear a case en banc. Will the court even accept an amicus brief in that context? If so, when should I file it?  

A: Yes, the federal courts of appeals will consider amicus briefs in support of a petition for rehearing (or a petition for rehearing en banc). To be safe, you should file your brief the same day as the petition.

Federal Rule of Appellate Procedure 29(c) requires an amicus to file its brief seven calendar days after the principal brief of the party whose position the amicus supports is filed. However, as the Seventh Circuit recently pointed out, a petition for rehearing is not a “brief,” and thus is not covered by Rule 29(c). Moreover, courts generally rule on petitions for rehearing within several weeks of their filing – meaning it is quite likely that an amicus brief filed on Rule 29(c)’s schedule likely would arrive too “late” to be considered by the court. Thus, as Chief Judge Easterbrook advised (in denying a would-be amicus leave to file a brief in support of a petition for rehearing): “Someone who wants to file as amicus curiae in support of a petition for rehearing, or rehearing en banc, must use the same schedule as the petitioner. A potential amicus who needs extra time should ask the litigant to seek an extension from the court and defer filing the petition.” Fry v. Exelon Corp. Cash Balance Pension Plan, 576 F.3d 723, 725 (7th Cir. 2009). Although no other court has weighed in on this issue (at least not in a reported decision), you’d be well-served to follow the Fry rule regardless of which circuit you’re in.

Citation of Unpublished Opinions (Federal Court)

Q: We seem to be seeing more and more opinions coming out of the U.S. Court of Appeals that are marked “non-precedential” or “not for publication.” Wasn’t this a subject of debate among the courts and the Rules Committee recently? With what result?

A: The federal courts of appeals may no longer prohibit litigants from citing to unpublished opinions issued on or after January 1, 2007. If the opinion is not available in a “publicly accessible electronic database,” you need to file a copy of the opinion along with your brief. Fed. R. App. P. 32.1(a).

You should be aware, however, that every court of appeals has slightly different local rules implementing Rule 32.1(a). The courts differ as to whether litigants are permitted to cite unpublished opinions that were issued before January 1, 2007, and as to whether unpublished opinions have any precedential value. Click here to see a chart summarizing the pertinent local rules.