Presenting a live 90-minute webinar with interactive Q&A
Federal Appellate Petitions and Motions:
Filing and Response Strategies
Making or Opposing Requests for Permission to Appeal,
Mandamus Orders, and Other Procedural or Substantive Relief
TUESDAY, FEBRUARY 7, 2017
1pm Eastern
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12pm Central | 11am Mountain
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10am Pacific
Today’s faculty features:
Chad Clamage, Attorney, Mayer Brown, Chicago
Hans J. Germann, Partner, Mayer Brown, Chicago
Stephen J. Kane, Partner, Mayer Brown, Chicago
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Federal Appellate Petitions and
Motions
Making or Opposing Requests for Permission to Appeal,
Mandamus Orders, and Other Procedural or Substantive Relief
Steve Kane
[email protected]
Hans Germann
February 2017
[email protected]
Chad Clamage
[email protected]
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Appellate Motions — General Principles
• Motion practice in federal appellate courts encompasses an
enormous array of requests for substantive and procedural
relief.
• The Federal Rules of Appellate Procedure govern motion
practice. Rule 27 is the starting point.
• Local Rules and Operating Procedures supplement and
sometimes supersede the federal rules.
• Always review current rules before filing motion papers.
Treatises can provide guidance, too.
• Call the Clerk’s office if you are unsure about how to proceed.
6
Form and Content of Motion Papers
• Motion papers should be concise and straight-forward,
without unnecessary formality and repetition.
• A notice of motion, proposed order, or separate legal
memorandum is not allowed. A cover is not required, but a
caption and title are.
• Many motions require certain attachments (disclosure
statement, ruling appealed, affidavit).
• Responses may request affirmative relief.
• 5,200 words for motion and response; 2,600 words for reply;
14-point font.
7
Timing and Filing of Motion Papers
• No general deadline for motions, but certain motions do have
timing requirements (intervention, amicus, enlargement, and
extension). Eleventh-hour motions disfavored.
• Responses due 10 days after service.
• Replies due 7 days after service.
• Electronic filing is mandatory. Exceptions vary by circuit but
usually include sealed matter and case opening petitions.
• Paper copies of electronically filed motions should not be filed.
• Consult local rules.
8
Consent to Motions
• Some circuits require that a movant contact other parties
before making the motion and inform the court whether the
other parties oppose the motion.
• Even if not required, seeking consent is advisable any time you
believe the other parties might agree.
• Consent sometimes will entitle the movant to the requested
relief, as with a motion to file an amicus brief.
• Consent should be noted in the title and body of the motion.
9
Decisions on Motions
• Some procedural motions can be decided by clerk’s office
personnel, but the specific motions vary by circuit.
• Other procedural motions are decided by a single motions
judge.
• Substantive motions ordinarily are decided by three-judge
motions panels.
• Oral argument on motions virtually never happens.
• A losing party can seek reconsideration of a ruling on a nondispositive motion and rehearing under Rules 35 and 40 for
rulings on dispositive motions.
10
Stay Motions
• Motion To Stay Judgment in Civil Case (Rule 8)
– Motion almost always must be pursued in district court under Fed. R. Civ. P. 62
first. Attach district court decision.
– Security for money judgment must be supplied unless movant shows an
obvious ability to pay or a true inability to obtain full security.
– Stays of injunctive relief require weighing of likelihood of success, injury to
each party, and public interest.
• Motion to Stay Judgment in Criminal Case: Governed by Rules 8(c)
and 9(b) and Fed. R. Crim. P. 38. Standards depend on consequence
sought to be stayed.
• Motion to Stay in Habeas Case: Governed by Rule 23. Presumption
favors release upon grant of writ but favors detention upon denial of
writ.
11
Timing of Decision Motions
• Motion for Expedited Review: The movant must show “good cause”
for expedited briefing or argument, such as irreparable harm or
looming mootness. Many circuits have local rules on the subject.
• Motion to Stay Appeal: Parties exploring settlement can ask to stay
an appeal. Sometimes, courts require assurances that settlement is
likely. Courts with settlement offices allow settlement attorneys to
enter stays.
• Motion to Certify State Law Questions: When an unsettled question
of state law is outcome determinative, a party often can ask the
circuit court to certify the question to the state’s highest court.
– Nearly all states allow certification, but they limit which courts may certify.
– Motion usually is made with or in a party’s brief and will be decided after
briefing.
– Consult relevant state statutes or rules and any circuit rules.
12
Participation Motions
• Motion to Withdraw as Counsel: An attorney who has appeared
must obtain permission from the court to withdraw. Required
showing depends on whether case is civil or criminal, whether there
is replacement counsel, and whether frivolousness is the reason.
• Motion to Substitute Party (Rule 43): If a party dies, the decedent’s
personal representative may move to substitute the representative
or another party may suggest death on the record. Other reasons
for a motion to substitute include incompetency or a transfer of
interest. Automatic substitution for public officials.
• Motion to File Amicus Brief (Rule 29): Private litigants may file an
amicus brief only with consent from all parties or with permission
from the court. To obtain permission, a prospective amicus must
submit a motion, with the proposed brief, within seven days after
the brief of the party that the amicus supports. Rule 29(b) now
governs amicus filings regarding rehearing petitions.
13
Record Motions
• Motion to Supplement the Record (Rule 10): Parties may correct
omissions or misstatements in the record on appeal.
– With rare exceptions, motion may not be used to introduce new material not
presented in the district court
– Joint stipulation or contested motion.
• Motion to Seal: To keep confidential information from becoming
publicly available, a party must move to seal anything containing
that information.
– Some courts maintain any sealing allowed by the district court; other courts
will unseal all record materials unless a party promptly moves to seal.
– Mere confidentiality may not suffice. Trade secrets, minor identities, national
security information, and privileged material. Details are necessary.
– Public versions of briefs and appendices are often required.
14
Briefing Motions
• Motion for Extension of Time (Rule 26(b)):
– The rules of each circuit vary greatly on receptiveness, method, and
requirements, so consult the local rules as soon as possible.
– Most circuits require the motion to be made at least 7 days before the due
date and require the movant to obtain the position of every other party. Even
if not required, doing both things is advisable because an extension motion
does not automatically stay the due date.
• Motion for Overlength Brief: Motions to obtain more pages or
words are discouraged by most courts and are rarely granted. By
local rule or custom, every court will require compelling reasons.
• Motion to Strike Brief: Courts will grant motions to strike only upon
egregious and prejudicial rule violations. The usual relief is leave to
file a compliant brief. Some courts dislike motions to strike and will
sanction those who file them when the problem can be addressed in
the regular course of briefing.
15
Motions for Summary Dispositions
• Motion for Voluntary Dismissal (Rule 42): The clerk can dismiss an
appeal if the parties sign a dismissal agreement specifying payment
of costs, or an appellant can file a motion to dismiss on agreed terms
or terms set by the court. In criminal appeals, courts have various
requirements to ensure client consent.
• Motion to Dismiss for Lack of Jurisdiction: Dismissal on jurisdictional
grounds can be sought at any time, but the best practice is to do so
upon docketing of the appeal.
• Motion for Affirmance or Reversal: Motions for a summary decision
on the merits are seldom granted. Courts typically view them as a
disruption of orderly briefing. They are best used when a new
development resolves the appeal. The courts that have rules on the
subject differ on the proper timing.
16
Oral Argument Motions
• Motion to Postpone Argument (Rule 34(b)):
– Courts require compelling reasons to postpone an argument.
– Postponement should be sought as soon as possible.
– Motions to postpone will sometimes result in a ruling that the court will
decide the case on the briefs.
– The best practice is to send a letter to the court before argument is set.
• Motion for Longer Argument (Rule 34(b)): Courts generally do not
grant requests for longer arguments, but most courts are flexible
enough at oral argument to allow more time to cases that warrant it.
• Motion for Divided Argument: Some courts require leave of the
court to divide one “side’s” argument among multiple lawyers, while
others leave it to the parties. Most courts will allow only two
lawyers to argue per side. The lawyers decide on the precise division
of time. Divided argument should be avoided, if possible.
17
Post-Decision Motions
• Motion to Extend Time to File Rehearing Petition: All courts, except
the Ninth Circuit, require extremely compelling reasons to extend
the period for filing a rehearing petition.
• Motion to Stay the Mandate (Rule 41(d)):
– Absent a stay or other court order, the mandate issues 7 days after the period
for filing a rehearing petition expires or a timely rehearing petition is denied,
whichever is later.
– A motion to stay must show that a certiorari petition to the Supreme Court
would present a substantial question and that there is good cause for a stay.
– In civil cases, that means a reasonable probability that the Supreme Court will
grant certiorari, a reasonable possibility that the Supreme Court will reverse
the court of appeals, and a likelihood of irreparable injury absent a stay.
– To keep stay in place beyond 90 days, the movant must give the court of
appeals written notice that petition was filed.
– If denied, the motion may be renewed with the Circuit Justice.
18
Interlocutory Appeals — General Principles
• Final Judgment Rule. To prevent piecemeal appeals, a party
ordinarily may appeal only a final decision that disposes of an
entire controversy. 28 U.S.C. § 1291.
• Exceptions to Final Judgment Rule. Several vehicles exist to
appeal certain interlocutory orders:
– Orders that satisfy 28 U.S.C. § 1292(b)
– The “extraordinary writ” of mandamus
– Class certification orders under Fed. R. Civ. P. 23(f)
19
Section 1292(b) Appeals: An Overview
• Section 1292(b) permits review of interlocutory orders if:
– The district court finds that the order (1) presents a “controlling
question of law” as to which (2) “substantial ground for difference of
opinion” exists, and (3) an immediate appeal “may materially advance
the ultimate termination of the litigation.”
– The court of appeal exercises its “discretion” to permit the appeal.
• There is no firm deadline by which parties must seek certification in
district court. Generally, motions should be made promptly. The
district court must issue a certification order, but appellate courts
are sometimes lenient as to the form of the order.
• Petitions for permission to appeal must be filed within 10 days of the
district court’s Section 1292(b) order.
• Section 1292(b) appeals do not automatically stay district court
proceedings.
20
Section 1292(b) Appeals: Controlling Questions of Law
• A question of law concerns “the meaning of a statutory or constitutional
provision, regulation, or common law doctrine.” Ahrenholz v. Bd. of Trs.,
219 F.3d 674, 675 (7th Cir. 2000); e.g., In re Text Messaging Antitrust Litig.,
630 F.3d 622, 624-25 (7th Cir. 2010) (granting Section 1292(b) review to
determine whether complaint violated Twombly).
• Questions that require the court of appeal to study the record, resolve
factual disputes, or review discretionary decisions generally are not
reviewable. E.g., Mamani v. Berzain, 825 F.3d 1304, 1312-13 (11th Cir.
2016) (order denying motion to dismiss applied “settled law” to “scores of
factual allegations”); Casey v. Long Island R.R. Co., 406 F.3d 142, 146 (2d Cir.
2005) (“excessiveness of the jury’s award does not present a question of
law”); McFarlin v. Conseco Servs., 381 F.3d 1251, 1260 (11th Cir. 2004)
(order denying summary judgment merely applied “the facts to the terms
of the contract”); In re City of Memphis, 293 F.3d 345, 351 (6th Cir. 2002)
(evidentiary ruling was discretionary and therefore not a pure legal issue).
21
Section 1292(b) Appeals: Substantial Ground for
Difference of Opinion
• “To determine if a ‘substantial ground for difference of opinion’ exists
under § 1292(b), courts must examine to what extent the controlling law is
unclear.” Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010).
• Citing conflicting decisions on the same question is the best way to satisfy
this criterion. Difficult questions of first impression also may suffice. E.g.,
Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011)
(granting review despite absence of conflicting authority because “fairminded jurists might reach contradictory conclusions”).
• However, conflicting non-binding precedent may not be enough if the
district court is convinced it was correct or if circuit precedent suggests that
affirmance is likely. E.g., In re Miedzianowski, 735 F.3d 383, 384 (6th Cir.
2013) (no substantial ground for difference of opinion despite contrary
decisions from other circuits because Sixth Circuit had resolved issue).
22
Section 1292(b): Material Advancement of the
Litigation
• The final Section 1292(b) criterion requires “that resolution of a controlling
legal question would serve to avoid a trial or otherwise substantially
shorten the litigation.” McFarlin, 381 F.3d at 1259.
• If resolution of the certified question would not dispose of the entire case,
that weighs against Section 1292(b) review. E.g., McFarlin, 381 F.3d at 1262
(“Resolution of one claim out of seven would do too little, if anything, to
‘materially advance the ultimate termination of the litigation’”).
• Review may nevertheless be appropriate if it could narrow the issues in
dispute. E.g., Sterk v. Redbox Automated Retail, 672 F.3d 535, 536 (7th Cir.
2012) (resolution of whether statute authorized damages suits would
materially advance litigation even though plaintiffs alleged alternative basis
for relief because certified question involved plaintiffs’ “main” theory and
“uncertainty” about its resolution “may delay settlement”); Reese, 643 F.3d
at 688 (rejecting argument that Section 1292(b) review was unwarranted
because it would not resolve all claims).
23
Section 1292(b): Procedural Requirements
• FRAP 5(b) identifies the required contents of a Section 1292(b) petition and
answer. Local rules may modify those requirements.
• Petitioners may raise at least some issues beyond those certified by the
district court. The “appellate court may address any issue fairly included
within the certified order because ‘it is the order that is appealable, and
not the controlling question identified by the district court.’” Yamaha
Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1996).
• Circuit splits exist as to whether respondents seeking to raise additional
issues on an interlocutory appeal must file a cross-petition under FRAP
5(b)(2) and whether an untimely cross-petition precludes jurisdiction.
Munroe v. Cont’l W. Ins. Co., 735 F.3d 783, 789 (8th Cir. 2013) (citing cases).
• Even if the motions panel grants review, the appellee may argue that
review was improvidently granted. E.g., Couch, 611 F.3d at 632 (rejecting
motions panel’s grant of Section 1292(b) petition); Mamani, 825 F.3d at
1312-13 (same, in part).
24
Mandamus Petitions — General Principles
• The common purpose of a mandamus petition is to seek
interlocutory review of a district court decision that is not subject to
direct, immediate appeal.
• The court of appeals’ authority to issue a writ of mandamus stems
from the All Writs Act, 28 U.S.C. § 1651, permitting the courts to
“issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.”
• Rule 21 of the Federal Rules of Appellate Procedure governs the
procedural requirements for a petition for a writ of mandamus.
• As always, review the current rules before filing, and check the local
rules and operating procedures.
25
General Substantive Requirements for Mandamus
• “[T]he extraordinary writ of mandamus is reserved for extraordinary
situations in which the early intervention of an appellate court is
necessary.” SEC v. Stewart, 476 F.2d 755 (2d Cir. 1973).
• There is a general presumption against the grant of mandamus relief,
since it would thwart the policy against piecemeal appeals. See Parr
v. United States, 351 U.S. 513 (1956).
• A petitioner generally must show that its right to relief is “clear and
indisputable,” and that no other adequate means to attain the relief
exist. See, e.g., Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33 (1980).
• For example, an appeal may be an inadequate remedy if petitioner
will be damaged or prejudiced in a way not correctable on appeal.
26
Mandamus – Common Examples
• The traditional use of mandamus is “to confine an inferior
court to a lawful exercise of its prescribed jurisdiction.” Roche
v. Evaporated Milk Ass’n, 319 U.S.21 (1943).
• For example, in United States v. Boe, 543 F.2d 151 (C.C.P.A.
1976), a writ was issued prohibiting the Customs Court from
asserting jurisdiction over an action.
• However, courts do not limit mandamus relief to matters
technically involving "jurisdiction." See Will v. United States,
389 U.S. 90 (1967).
• Mandamus petitions have been successfully used in a wide
variety of other circumstances.
27
Mandamus – Common Examples
• Review of orders transferring a case (see, e.g., Ukiah Adventist Hosp.
v. FTC, 981 F.2d 543 (D.C. Cir. 1992)), or refusing to transfer a case
(see, e.g., General Tire & Rubber Co. v. Watkins, 373 F.2d 361 (4th Cir.
1967)).
• Discovery orders involving claims of privilege. See, e.g., In re
Remington Arms Co., 952 F.2d 1029 (8th Cir. 1991) (reviewing denial
of motion for protective order claiming trade secrets); Diversified
Indus. v. Meredith, 572 F.2d 596 (8th Cir. 1977) (attorney-client
privilege).
• To compel the district court to comply with a prior order of the
appellate court. See, e.g., General Atomic Co. v. Felter, 436 U.S. 493
(1978); Citibank, N.A. v. Fullam, 580 F.2d 82 (3d Cir. 1978).
28
Mandamus – Common Examples
• Certain class-related orders: While decisions granting or
denying certification of a class are subject to the permissive
appeal rule (Fed. R. Civ. P. 23(f)), related orders may be subject
to review by mandamus. Examples include orders regarding
notice to the class (see, e.g., Chicken Delight, Inc. v. Harris, 412
F.2d 830 (9th Cir. 1969)), appointing class counsel (see Cohen v.
U.S. Dist. Court, 586 F.3d 703 (9th Cir. 2009)), and appointing a
lead plaintiff (see, e.g., In re Cavanaugh, 306 F.3d 726 (9th Cir.
2002).
• Restraints on speech imposed by the district court (gag orders).
See, e.g., Rodgers v. U.S. Steel Corp., 536 F.2d 1001 (3d Cir.
1976); In re Halkin, 598 F.2d 176 (D.C. Cir. 1979).
29
Procedural Requirements – Rule 21
R. 21 (a): Mandamus or Prohibition to a Court: Petition, Filing, Service, and
Docketing.
(1) A party petitioning for a writ of mandamus or prohibition directed to a
court must file a petition with the circuit clerk with proof of service on all
parties to the proceeding in the trial court. The party must also provide a
copy to the trial-court judge. All parties to the proceeding in the trial court
other than the petitioner are respondents for all purposes.
(2) (A) The petition must be titled “In re [name of petitioner].”
(B) The petition must state: (i) the relief sought; (ii) the issues
presented; (iii) the facts necessary to understand the issue presented by
the petition; and (iv) the reasons why the writ should issue.
(C) The petition must include a copy of any order or opinion or parts of
the record that may be essential to understand the matters set forth in the
petition.
(3) Upon receiving the prescribed docket fee, the clerk must docket the
petition and submit it to the court.
30
Procedural Requirements – Rule 21
R. 21(b): Denial; Order Directing Answer; Briefs; Precedence.
(1) The court may deny the petition without an answer. Otherwise, it must
order the respondent, if any, to answer within a fixed time.
(2) The clerk must serve the order to respond on all persons directed to
respond.
(3) Two or more respondents may answer jointly.
(4) The court of appeals may invite or order the trial-court judge to address
the petition or may invite an amicus curiae to do so. The trial-court judge
may request permission to address the petition but may not do so unless
invited or ordered to do so by the court of appeals.
(5) If briefing or oral argument is required, the clerk must advise the parties,
and when appropriate, the trial-court judge or amicus curiae.
(6) The proceeding must be given preference over ordinary civil cases.
(7) The circuit clerk must send a copy of the final disposition to the trial-court
judge.
31
Procedural Requirements – Rule 21
Rule 21(c): Other Extraordinary Writs.
An application for an extraordinary writ other than one
provided for in Rule 21(a) must be made by filing a petition
with the circuit clerk with proof of service on the respondents.
Proceedings on the application must conform, so far as is
practicable, to the procedures prescribed in Rule 21(a) and (b).
32
Procedural Requirements – Rule 21
R. 21(d): Form of Papers; Number of Copies.
All papers must conform to Rule 32(c)(2). An original and 3 copies must be
filed unless the court requires the filing of a different number by local rule or by
order in a particular case. Except by the court’s permission, and excluding the
accompanying documents required by Rule 21(a)(2)(C):
(1) a paper produced using a computer must not exceed 7,800 words; and
(2) a handwritten or typewritten paper must not exceed 30 pages.
R. 32(c)(2) (Form of Other Papers):
Any other paper . . . must be reproduced in the manner prescribed by Rule
32(a), with the following exceptions:
(A) A cover is not necessary if the caption and signature page of the paper
together contain the information required by Rule 32(a)(2). If a cover is used, it
must be white.
(B) Rule 32(a)(7) [regarding length of briefs] does not apply.
33
Seeking Mandamus
• The rule does not establish any time limit for filing a petition.
• The procedural requirements, and the requirement regarding
provision of record materials, should be followed closely. See In re
Dow Corning Corp., 261 F.3d 280 (2d Cir. 2001) (record was too
sparse to permit court to evaluate several important issues); US v.
Davis, 953 F.3d 1482 (10th Cir. 1992) (request denied without
prejudice to properly file and serve petition).
• Do not name the trial court judge as a respondent.
• Include in the certificate of service a statement that a copy was
provided to the trial court judge (by fax, mail, hand delivery, etc. to
chambers).
• For corporate party, include a Rule 26.1 disclosure statement
(required upon filing of the principal brief, motion, response,
petition, or answer, whichever occurs first).
34
Opposing Mandamus
• Rule 21 contemplates that the court will determine whether it wants
a response.
• Some local rules expressly prohibit a response without leave of
court. E.g., Ninth Circuit Rule 21-4 (“No answer to such a petition
may be filed unless ordered by the Court. Except in emergency
cases, the Court will not grant a petition without a response.”).
• “Counter-claims,” if any, cannot be raised in a response, but must be
raised through a cross-petition. See, e.g., Cohen, 586 F.3d 703.
35
Rule 23(f): An Overview
• Before Rule 23(f), interlocutory review of class-certification
orders was rarely available. Because certified class actions
rarely proceed to judgment, most class-certification orders
escaped appellate review.
• In 1998, Rule 23(f) was added to “permit an appeal from an
order granting or denying class certification.”
• Unlike Section 1292(b), Rule 23(f) does not require district
court approval.
• Petitioners must seek review within 14 days after entry of the
district court’s order.
36
Rule 23(f): Standards for Granting Review
• The advisory committee gave appellate courts “unfettered
discretion whether to permit the appeal, akin to the discretion
exercised by the Supreme Court in acting on a petition for
certiorari.” Fed. R. Civ. P. 23, 1998 Adv. Comm. Notes.
“Permission is most likely to be granted when the certification
decision turns on a novel or unsettled question of law, or
when, as a practical matter, the decision on certification is
likely dispositive of the litigation.” Id.
• Building upon the advisory committee note, most circuits have
announced standards governing the exercise of discretion
under Rule 23(f). While similar, the circuits’ approaches
contain “subtle differences.” In re Lorazepam & Clorazepate
Antitrust Litig., 289 F.3d 98, 105 (D.C. Cir. 2002).
37
Rule 23(f): Death Knell
• Every circuit that has adopted guidelines for Rule 23(f) appeals has held that
review may be appropriate when a class-certification order sounds the “death
knell” for the litigation. E.g., Chamberlan v. Ford Motor Co., 402 F.3d 952, 959
(9th Cir. 2005); Blair v. Equifax Check Servs., 181 F.3d 832, 834 (7th Cir. 1999).
• The death knell factor may be satisfied when class certification is denied and
“the representative plaintiff’s claim is too small to justify the expense of
litigation.” Blair, 181 F.3d at 834.
• Conversely, an order certifying a class may justify review “when the stakes are
large and the risk of a settlement or other disposition that does not reflect the
merits of the claim is substantial.” Id. at 835; see Arnold Chapman & Paldo Sign
& Display Co. v. Wagener Equities, Inc., 747 F.3d 489, 491 (7th Cir. 2014)
(denying review where “defendants haven’t told us what their assets are”).
• In either death-knell scenario, petitioner “must demonstrate that the district
court’s ruling” is “questionable” because “if the ruling is impervious to revision
there’s no point to an interlocutory appeal.” Blair, 181 F.3d at 834.
38
Rule 23(f): Development of the Law
• Circuits also agree that review may be appropriate to “facilitate the
development of the law” if “fundamental issues about class actions” are
“poorly developed.” Blair, 181 F.3d at 835. “Law may develop through
affirmances as well as through reversals,” so “it is less important to show
that the district judge’s decision is shaky” under this factor. Id.
• Some circuits have restricted development-of-the-law appeals to decisions
that are “likely to evade end-of-the-case review.” Lorazepam & Clorazepate
Antitrust Litig., 289 F.3d at 105.
• Amicus briefs may be helpful in showing that a class-certification order is
sufficiently important beyond the parties’ dispute so as to warrant review
under this factor.
• Demonstrating a conflict among district courts in the circuit also may be
helpful, because a conflict shows that the legal question is important,
recurring, and unsettled. E.g., Allen v. Int’l Truck & Engine Corp., 358 F.3d
469, 471 (7th Cir. 2004).
39
Rule 23(f): Manifest Error
• Some circuits have held that review may be appropriate if the classcertification order is “manifestly erroneous.” Chamberlan, 402 F.3d at
959.
• Petitioners face a “high bar,” however, in seeking Rule 23(f) review
based on an alleged manifest error. In re Johnson, 760 F.3d 66, 72 (D.C.
Cir. 2014) (“we have never before granted Rule 23(f) review on the basis
of a manifest error”). Compare EQT Prod. Co. v. Adair, 764 F.3d 347,
357 (4th Cir. 2014) (granting Rule 23(f) review because “class
certification in this case was manifestly improper”).
• Some circuits have cited the correctness of the district court’s order not
as an independent variable, but rather as part of a “sliding scale”
approach under which the “stronger the showing of an abuse of
discretion, the more this factor weighs in favor of interlocutory review.”
Prado-Steiman v. Bush, 221 F.3d 1266, 1275 n.10 (11th Cir. 2000).
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Rule 23(f): Special Circumstances
• “Each circuit … has reserved some leeway in its standards”
governing Rule 23(f) review. Lorazepam & Clorazepate
Antitrust Litig., 289 F.3d at 106; accord In re Delta Air Lines,
310 F.3d 953, 959 (6th Cir. 2002) (“we eschew any hard-andfast test in favor of a broad discretion to evaluate relevant
factors that weigh in favor of or against an interlocutory
appeal”).
• “Our authority to accept Rule 23(f) petitions is highly
discretionary,” so “there may well be special circumstances
that lead us to grant or deny a Rule 23(f) petition even where
some or all of the relevant factors point to a different result.”
Prado-Steiman, 221 F.3d at 1276.
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Rule 23(f): Procedural Requirements
• FRAP 5(b) governs the content of Rule 23(f) petitions and answers.
• Petitioners must seek review within 14 days of the district court’s order:
– A motion for reconsideration filed within 14 days of the class-certification
order postpones Rule 23(f)’s time limit until the motion is decided. E.g.,
Gutierrez v. Johnson & Johnson, 523 F.3d 187, 192-93 (3d Cir. 2008).
– “An order that leaves class-action status unchanged from what was
determined by a prior order is not an order ‘granting or denying class-action
certification”’ under Rule 23(f)). Fleischman v. Albany Med. Ctr., 639 F.3d 28,
31-32 (2d Cir. 2011).
– The Seventh Circuit granted Rule 23(f) review of an order denying an
amended motion for class certification, even though that order left
unchanged the prior denial of class certification, based on an alleged change
in the law. McReynolds v. Merrill Lynch, 672 F.3d 4 82, 486 (7th Cir. 2012).
The Seventh Circuit has since rejected McReynolds, holding that “we will
allow an appeal only when the district court has issued an order ‘materially
altering a previous order granting or denying class certification.’” Phillips v.
Sheriff of Cook Cnty., 828 F.3d 541, 559 (7th Cir. 2016).
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Rule 23(f): Procedural Requirements
• A Rule 23(f) petition does not stay district-court proceedings. A stay
should be sought first in the district court and then, if denied, in the
court of appeal.
• Although Rule 23(f) appeals are limited to class-certification issues,
courts have reviewed issues that are relevant to both class
certification and the merits of the case. E.g., Regents of Univ. of Cal.
v. Credit Suisse First Boston, 482 F.3d 372 (5th Cir. 2007).
• A circuit split exists as to whether Rule 23(f) permits review of orders
striking class allegations on the pleadings. Compare Scott v. Family
Dollar Stores, Inc., 733 F.3d 105, 111 n.2 (4th Cir. 2013) with In re
Ingram Barge Co., 517 F.3d 246, 247 (5th Cir. 2008).
• Beware the possibility that the appellate court will resolve the
appeal based solely on the petition and answer.
43