8.03 Threshold Motions to Establish Or Defeat Appellate Jurisdiction

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§ 8.03 Threshold Motions to Establish or Defeat Appellate Jurisdiction

[1]—Motion Seeking Permission to Appeal

A party aggrieved by a trial court ruling may have no right to an immediate appeal because of the final judgment rule.[1] In such cases, a party must file a motion seeking permission to file an appeal. In federal practice such permissive appeals are governed by the certification process laid out in 28 United States Code Section 1292 (a) and (b).

Similarly, some high courts, including the Supreme Court of the United States and the New York Court of Appeals, exercise largely discretionary control over their dockets. In these courts, potential appellants typically must file a motion or petition requesting the court to accept the case for consideration. In the Supreme Court, the petition is known as petition for a writ of certiorari. In the New York court system, the equivalent petition is a motion for permission to appeal. The movant must demonstrate that the appeal raises important issues and is otherwise “certworthy” or “leaveworthy.”[2]

[2]—Motions to Dismiss

There are a variety of circumstances in which counsel may want to file a substantive or dispositive motion, which, by definition, may “dispose” of the appeal. As an initial matter, motions are generally shorter than appellate briefs and require less investment by the attorney and less involvement by the court. For example, if a motion to dismiss is granted, the appeal is terminated before either side invests time and energy in drafting appellate briefs—and saves the court from devoting substantial resources to evaluating and deciding the appeal.

Unlike the appeal on the merits, a motion typically is decided quickly. If the motion is referred to a motions panel, it may be adjudicated in a matter of a few weeks. Appeals, in contrast, can take much longer to be decided.[3] If the motion is referred to the merits panel, which commonly happens if the parties have already submitted briefs and those briefs have been forwarded to an assigned panel, the merits panels are often slower to adjudicate motions. But even in that case, the motion may still be adjudicated prior to oral argument. In some cases, motions are preliminarily denied subject to further consideration by the merits panel. In such circumstances, counsel will have an opportunity to present the substance of the argument to the merits panel at oral argument.

Finally, motions may be useful in educating the court about the case and particular concerns held by the parties. In a typical briefing schedule, the appellant can file two briefs (opening brief and response brief) and the appellee is permitted to file one opposition brief. Motion practice allows for additional communications with the court. But the value of such additional communications is necessarily discounted by the fact that few motions ever reach the merits panel deciding the case.

A motion to dismiss is most frequently made for lack of appellate jurisdiction, but such motions can also be based on procedural defects. If a motion to dismiss the appeal is granted, the lower court’s decision is left intact.

[a]—Lack of Jurisdiction

Appellate courts are courts of limited jurisdiction, and a lack of jurisdiction may be raised in a party’s brief or by motion to dismiss. Review the notice of appeal to determine if the court lacks jurisdiction because:

(1)the appellant seeks to appeal a non-appealable judgment;

(2)the notice of appeal is untimely;

(3)the notice of appeal is incomplete or unsigned;

(4)the appellant lacks standing to appeal;

(5)the appellant failed to exhaust administrative remedies; or

(6)the appeal is clearly frivolous.

If a lack of jurisdiction is apparent from a quick review of the notice of appeal, appellee’s counsel may wish to file a motion to dismiss. If, however, the jurisdictional challenge is complicated, it may be more efficient to raise the issue in the appellee’s brief. This is especially true if a decision on the motion requires a detailed examination of the record or the merits of the appeal. In that case, the appellate court will usually deny the motion or defer ruling until it has considered the appeal on the merits.

[b]—Mootness

In most instances, an appellate court will dismiss an appeal as moot when something has occurred that: (1) prevents the court from granting effective relief, or (2) renders a decision unnecessary.[4] However, despite mootness concerns, an appellate court may elect to retain jurisdiction where the challenged behavior is “capable of repetition, yet evading review,”[5] is of significant and broad “public interest,”[6] or material questions remain for the court’s resolution.[7]

[c]—Failure to Prosecute

An appellate court may dismiss an appeal if the appellant fails to prosecute the appeal. Most motions to dismiss for failing to prosecute are filed because the appellant failed to file their brief by the deadline,[8] but any failure to prosecute can lead to dismissal.[9]

However, courts rarely dismiss an appeal for one error; they are more likely to dismiss an appeal where a party continually disregards the procedures or the court’s directions. In addition, courts are usually lenient where delays or errors are caused by events beyond the party’s control. Nevertheless, parties may be subject to sanctions if their violations of the courts rules, procedures, and orders are willful and flagrant. Therefore, counsel should promptly notify the court—in advance of the filing date—if circumstances are going to prevent meeting the deadline.

[3]—Motions to Remand /Transfer to Other Courts

A party may be able to pre-empt an appellate court from adjudicating an appeal by moving to remand the entire case to the trial court, or transferring the entire case to another appellate court. A lesser version of the remand motion is a motion for partial remand by which the appellate court retains jurisdiction over the case but carves out a particular issue for the trial court to address. A lesser version of the transfer motion calls for a federal appellate court to retain jurisdiction over the case but certify a question of state law to the highest court of that state. Each of these motions is addressed in turn below.

[a]—Remand

A party may move to remand a case to the lower court. Such a motion may be appropriate where the lower court’s decision is inadequate to permit appellate review. For example, the parties and the appellate court may find the decision inadequate where the lower court dismissed (sua sponte) an action without offering any explanation regarding the lack of jurisdiction. Alternatively, counsel may wish to file a motion to remand if the applicable law has changed during the course of the appeal and the lower court, consequently, did not have the opportunity to apply the applicable law. Because appellate courts review lower court decisions, the appellate court may wish to provide the lower court an opportunity to apply the controlling statutes or case law; otherwise, the appellate court is applying the controlling law in the first instance.

If the appellate court grants the motion to remand, the appeal is terminated and the entire case returns to the lower court. (If counsel wishes to have the lower court address a particular issue yet still have the appellate court retain jurisdiction over the appeal, consider filing a motion for a limited remand.)

[b]—Limited Remand

Once a notice of appeal is filed, the lower court is divested of jurisdiction. A motion for a limited remand may be used to re-establish jurisdiction in the lower court for a particular purpose or limited period. For example, counsel might file a notice of appeal immediately after the lower court issues a final judgment, but upon reflection, decide a better course would be to ask the district court to consider a post-judgment motion. In that case, counsel may wish to file a motion for limited remand.

Note, however, that appellate courts rarely grant motions for a limited remand absent some suggestion from the lower court that it would be willing to consider the motion. Federal Rule of Civil Procedure 62.1 and Federal Rule of Appellate Procedure 12.1, both introduced in December 2009, provide the mechanism for this communication. Rule 62.1 allows a district court to issue “indicative rulings” when the court lacks jurisdiction over a case, and provide insight to the parties as to how the court would rule, if it had jurisdiction. Specifically, Rule 62.1 provides that the district court may: (i) defer consideration of the motion pending any eventual return of the mandate by the court of appeals; (ii) deny the motion; or (iii) “state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.”[10] If the district court indicates either that it would grant the motion or that the motion raises a “substantial issue,” the moving party must notify the court of appeals of the district court’s position.[11] Under Rule 12.1(b), the court of appeals has the power to remand to the district court for further proceedings, while retaining jurisdiction.

The clerk of the circuit court has the authority to grant a motion for a limited remand and may deny the motion if the moving party has failed to obtain an indicative ruling.[12]

[c]—Transfer Appellate Proceedings

If the appellate court lacks jurisdiction, it has the authority to transfer the action to another court or agency with jurisdiction.[13] A transfer may also be appropriate at the state level where: (1) a related matter is proceeding in another court; (2) a previous appeal in the same case was decided by another court; or (3) a recusal or disqualification situation exists.[14]

The federal circuit courts employ a three-part test to determine whether transfer is appropriate. First, the court looks to whether the transferee court had jurisdiction over the appeal on the date that the notice of appeal was filed.[15] Second, the court must decide whether it lacks jurisdiction.[16] Finally, the court must determine whether transferring the appeal would serve the “interests of justice.”[17]Moving to transfer venue may be preferable to a motion to dismiss because refiling the appeal in the proper forum could be “time-consuming and justice-defeating,”[18] and cause “unnecessary delay.”[19]

[d]—Certify Question to State High Court

States allow federal courts to refer (or certify) questions of state law to their respective courts of last resort. The Ninth Circuit may certify questions sua sponte or on a party’s motion to those states that entertain certified questions. The decision to grant certification “rests in the sound discretion of the federal courts.”[20] The Second Circuit and New York Court of Appeals have an unprecedented degree of cooperation in resolving certified questions regarding the interpretation of New York law. The New York Court of Appeals consistently accepts requests from the Second Circuit (issued pursuant to local circuit Rule 27.2) and regularly provides an answer to the certified questions within twelve months of accepting the case.[21] The New York Court of Appeals does so under authority provided by its Rule 500.27 (“Discretionary Proceedings to Review Certified Questions from Federal Courts and Other Courts of Last Resort”). Under Second Circuit Rule 27.2, a party may request the circuit court to certify a state law question to the New York Court of Appeals (or other state high court) by making a formal motion or simply including that request in a brief.

In considering whether certification is proper, appellate courts consider: (1) “the closeness of the question and the existence of sufficient sources of state law,” (2) the importance of the issue to the state, (3) possible delays to the action resulting from the certification, and (4) whether the issue can be framed “so as to produce a helpful response on the part of the state court.”[22] Federal appellate courts are more likely to certify a question where there is neither controlling state law nor a matter pending in a state court that is likely to address the issue and the answer will have a major impact on the appeal.[23]

When a federal appellate court certifies a question to a state supreme court, it usually publishes an order asking the state court to provide its view on the certified question. The appellate court is bound by the state supreme court’s answer in the same way that it is bound by state supreme court decisions interpreting state law.[24] If the state supreme court denies the certification request (which is rare), the federal appellate court must decide the issue based on its prediction of how the state supreme court would respond.[25]

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[1] See: Chapter 13, “Review by Courts of Last Resort,” at § 13.02[3]; Chapter 8, “The Record on Appeal,” at § 8.03[1].

[2] This topic is treated at length in Chapter 13 of this treatise.

[3] Many appellate courts decide cases within a year (or perhaps two) of the appeal being filed. For example, the federal circuit courts reported, for 2009, a median time between filing and disposition of 12.2 months. See “U.S. Court of Appeals—Judicial Caseload Profile”, pg. 2 available at (last visited June 7, 2011).

[4] See, e.g., Bernhardt v. County of Los Angeles, 279 F.3d 862, 871 (9th Cir. 2002) (“where the activities sought to be enjoined already have occurred, and the appellate courts cannot undo what has already been done, the action is moot, and must be dismissed”); see also:

Supreme Court: Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988).

State Courts:

California: Ebensteiner Co., Inc. v. Chadmar Group, 143 Cal. App.4th 1174, 1178-79, 49 Cal. Rptr.3d 825, 828 (Cal. App. Ct. 2006).

[5] Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978 140 L.Ed.2d 43 (1998).

[6] Edelstein v. City & County of San Francisco, 29 Cal.4th 164, 172, 56 P.3d 1029, 1033-34, 126 Cal. Rptr. 727, 733 (2002).

[7] See Eye Dog Foundation v. State Board of Guide Dogs for the Blind, 67 Cal.2d 536, 541, 432 P.2d 717, 721, 63 Cal. Rptr. 21, 25 (1967).

[8] SeeFed. R. App. P. 31(c).

[9] See, e.g., 9th Cir. R. 42-1 (“When an appellant fails to file a timely record, pay the docket fee, file a timely brief, or otherwise comply with rules requiring processing the appeal for hearing, an order may be entered by the clerk dismissing the appeal.”).

[10] Fed. R. Civ. P. 61.2(a).

[11] Fed. R. Civ. P. 61.2(b); Fed. R. App. P. 12.1(a).

[12] See 9th Cir. Gen. Ord., App. A.

[13] See28 U.S.C. § 1631.

[14]See, e.g., Cal. Cts. of App. Int. Op. Prac. & Pro., 4th App. Dist. Div. 1 § VI(C).

[15] See:

Second Circuit: Ruiz v. Mukasey, 552 F.3d 269, 273 (2d Cir. 2009).

Ninth Circuit: Cruz-Aguilera v. INS, 245 F.3d 1070, 1074 (9th Cir. 2001).

[16] See id.,245 F.3d at 1074.

[17]Id., 245 F.3d at 1074.

[18] Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962).

[19]Cruz-Aguilera v. INS, N.15 supra, 245 F.3d at 1074.

[20] Lehman Bros. v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974).

[21] See Amir-Mokri, et al., “Certification of Questions of State Law in the Second Circuit,” New York State Bar Association, Commercial and Federal Litigation Section, Appellate Practice Committee Report, at 5-6 (April 2007), available at (last visited June 7, 2011).

[22] Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 274-75 (5th Cir. 1976); see also:

Second Circuit: Penguin Group (USA) Inc. v. American Buddha, 609 F.3d 30, 41-42 (2d Cir. 2010).

Ninth Circuit: In re: Complaint of McLinn, 744 F.2d 677, 681 (9th Cir. 1984).

[23]See Complaint of McLinn, 744 F.2d 677, 681 (9th Cir. 1985).

[24] See Johnson v. Fankell, 520 U.S. 911, 916, 117 S.Ct. 1800, 138 L.Ed.2d 108 (1997).

[25] See: Marin Tugboat & Barge, Inc. v. Westport Petroleum, Inc., 271 F.3d 825, 829-30 (9th Cir. 2001); Pacheco v. United States, 220 F.3d 1126, 1131 (9th Cir. 2000).