Power, protocol, and practicality: Communications from the district court during an appeal

Notre Dame Law Review

Volumn 84, Issue 5, 2009, Pages 2053-2106

  Catherine, Struve ^a  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

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EID: 70349820980     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (336)

1. For an excellent discussion of the implications of this principle, see Allan Ides, The Authority of a Federal District Court to Proceed After a Notice of Appeal Has Been Filed, 143 F.R.D. 307 (1992)
2. Mark I. Levy, Divestingfurisdiction, Nat'l L.J., Sept. 22, 2008, at 14.
3. Many cases can be found which treat the filing of the notice as the relevant event. See, e.g., Fort Gratiot Sanitary Landfill, Inc. v. Mich. Dep't of Natural Res., 71 F.3d 1197, 203 (6th Cir. 1995)
4. Kusay v. United States, 62 F.3d 192, 193-94 (7th Cir. 1995) (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982))
5. Venen v. Sweet, 758 F.2d 117, 120 (3d Cir. 1985) (citing Griggs, 459 U.S. at 58). In the Fourth Circuit, this principle may be complicated by case law that might, under some rare circumstances, permit district court action on a Rule 60(b) motion after the filing of the notice of appeal but prior to the appeal's docketing.
6. See Williams v. McKen- zie, 576 F.2d 566, 570 (4th Cir. 1978) ("We hold that on the facts of this particular case, and especially since the appeal was not docketed in this court at the time the district judge reopened the habeas hearing for the taking of additional testimony, that the entertainment of the F.R.C.P. 60(b) (2) motion was appropriate.").
7. See generally 16A Charles Alan Wright et al., Federal Practice and Procedure § 3949.1, at 50-52 & nn.25-26 (4th ed. 2008) (discussing the transition of authority from the district court to the court of appeals). For simplicity's sake, this Article will treat the notice's filing as the operative event.
8. 459 U.S. 56 (1982).
9. Id. at 58.
10. Id.
11. See Kontrick v. Ryan, 540 U.S. 443, 454 (2004) (" 'Jurisdiction,' the Court has aptly observed, 'is a word of many, too many, meanings.' " (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 90 (1998))).
12. Thus, for example, Professor Bradley Scott Shannon commented as follows on proposed Civil Rule 62.1's formalization of the indicative-ruling procedure: I object to this (and any) rule that purports to authorize courts to decide matters (or indicate how they might decide matters) that are not currently before them. ⋯ Though discerning "jurisdiction" in this context (if this is indeed a jurisdictional matter) might, at times, be difficult, that is beside the point. Either a court has "jurisdiction" of a case or it does not, and if it does not, then deciding matters relating to that case is improper, certainly as a matter of established principles of American legal process, if not also as a matter of constitutional justiciability.
13. Letter from Professor Bradley Scott Shannon, Associate Professor of Law, Florida Coastal School of Law, to Peter G. McCabe, Secretary, Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (Feb. 14, 2008), available at http://www.uscourts.gov/rules/CV%20Comments%202007/07- CV-012.pdf. Proposed Civil Rule 62.1 is described in Part II.B below; justiciability objections to indicative rulings are discussed in Part II.C.
14. One topic not addressed in the text concerns interlocutory appeals from orders concerning preliminary injunctions. Such an interlocutory appeal does not prevent the district court from proceeding with the case pending disposition of the appeal, see 16 Charles Alan Wright et al., Federal Practice and Procedure § 3921.2, at 53 (2d ed. 1996), and the trial court may thus issue rulings as the case proceeds which shed light on issues relevant to the merits of the interlocutory appeal. Another example not discussed in the text concerns applications for attorney fees. The district court may rule upon such applications while an appeal from the judgment is pending, and the fee ruling may require or permit the judge to opine on the merits of the case.
15. The reader might at first glance wonder whether gatekeeping decisions come within the scope of this Article: if a ruling determines whether an appeal can be brought at all, does it count as a ruling that is made while the appeal is pending? But that question overlooks the fact that gatekeeping decisions may be made after the filing of a notice of appeal. Thus, to take one example, a certificate-of-appealability ruling can be made after a habeas petitioner files a notice of appeal.
16. For example, 28 U.S.C. § 2107(c) and Appellate Rule 4(a)(6) permit the district court to reopen the time to take a civil appeal if certain conditions are met. 28 U.S.C. § 2107(c) (2006)
17. Fed. R. App. P. 4(a)(6). The Ninth Circuit has held that in exercising its discretion whether to reopen the time to appeal, the district court may not consider the appeal's merits; otherwise, "[a] district court could effectively insulate its own ruling from appellate review every time the clerk failed to provide notice to the parties by denying the motion to reopen the time to appeal because, in its view, the appeal has no merit." Arai v. Am. Bryce Ranches Inc., 316 F.3d 1066, 1070 (9th Cir. 2003).
18. Section 2107(c) and Appellate Rule 4(a)(5) also permit the district court to grant a limited extension of the time to file a notice of appeal in a civil case if the would-be appellant shows "excusable neglect or good cause." 28 U.S.C. § 2107(c)
19. Fed. R. App. P. 4(a)(5). The factors that courts apply in weighing requests for such extensions typically do not include the merits of the appeal.
20. See, e.g., Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 395 (1993)) (stating a four-factor test for determining excusable neglect). The same is true of the analysis, under Appellate Rule 4(b) (4), of a request to extend the time to take a criminal appeal.
21. See Fed. R. App. P. 4(b) (4);
22. see also, e.g., United States v. Vogl, 374 F.3d 976, 981 (10th Cir. 2004) ("The four factors to be considered are: (1) the danger of unfair prejudice to the nonmoving party; (2) the length of the delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith.").
23. 28 U.S.C. § 1292(b) (2006).
24. 28 U.S.C. § 1291 grants the courts of appeals (other than the Federal Circuit) "jurisdiction of appeals from all final decisions of the district courts of the United States ⋯ except where a direct review may be had in the Supreme Court."
25. Id. § 1291. Ordinarily, this means that appellate review in the federal courts must await the end of the litigation. However, the "collateral order doctrine" provides that § 1291 may also be used to seek appellate review of "a narrow class of decisions that do not terminate the litigation, but must ⋯ nonetheless be treated as 'final'" in order to serve certain strong policy interests. Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994). To qualify for interlocutory review under the collateral order doctrine, the decision in question must be "conclusive," must "resolve important questions completely separate from the merits" of the case, and must present "important questions effectively unreviewable on appeal from final judgment in the underlying action."
26. Id.
27. The appealability, under the collateral order doctrine, of a denial of qualified immunity hinges upon the basis for the immunity ruling. "[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
28. The Court has since stressed the importance of "limiting interlocutory appeals of 'qualified immunity' matters to cases presenting more abstract issues of law," Johnson v. Jones, 515 U.S. 304, 317 (1995), and thus has concluded that "a portion of a district court's summary judgment order that, though entered in a 'qualified immunity' case, determines only a question of 'evidence sufficiency,' i.e., which facts a party may, or may not, be able to prove at trial ⋯ is not appealable" under the collateral order doctrine.
29. Id. at 313. The complexities that arise from this distinction are beyond the scope of this Article.
30. See Mitchell, 472 U.S. at 526 (declaring that qualified immunity "is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial")
31. Abney v. United States, 431 U.S. 651, 660 (1977) ("[T]he rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence.").
32. See, e.g., Stewart v. Donges, 915 F.2d 572, 576 (10th Cir. 1990) ("Because the district court is divested of jurisdiction to proceed to trial by the filing of a notice of interlocutory appeal raising a double jeopardy or qualified immunity issue, there is the risk that such interlocutory appeals will be subject to abuse.").
33. See, e.g., Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989) ("[A] district court may certify to the court of appeals that the appeal is frivolous and get on with the trial.")
34. United States v. Dunbar, 611 F.2d 985, 988 (5th Cir. 1980) (en banc) ("Henceforth, the district courts, in any denial of a double jeopardy motion, should make written findings determining whether the motion is frivolous or nonfrivolous. If the claim is found to be frivolous, the filing of a notice of appeal by the defendant shall not divest the district court of jurisdiction over the case.").
35. see also United States v. Montgomery, 262 F.3d 233, 240 (4th Cir. 2001) ("[A]ppellate courts, including this one, have developed a 'dual jurisdiction' rule, which allows a district court to proceed with trial while a defendant pursues an Abney double jeopardy appeal, where the district court has concluded that the appeal is frivolous.")
36. United States v. Powell, 24 F.3d 28, 31 (9th Cir. 1994) ("[A]n appeal from the denial of a motion seeking to establish a right not to be tried does not divest the district court of jurisdiction if the district court has found that motion to be frivolous."). The Supreme Court has noted the certification mechanism, with apparent approval, in discussing measures that can minimize the risk of delay from meritless qualified immunity appeals: In the present case ⋯ the District Court appropriately certified petitioner's immunity appeal as "frivolous" in light of the Court of Appeals' (unfortunately erroneous) one-appeal precedent. This practice, which has been embraced by several Circuits, enables the district court to retain jurisdiction pending summary disposition of the appeal, and thereby minimizes disruption of the ongoing proceedings.
37. Behrens v. Pelletier, 516 U.S. 299, 310-11 (1996).
38. See, e.g., McMath v. City of Gary, 976 F.2d 1026, 1030 (7th Cir. 1992) (warning that the right to an interlocutory appeal on a qualified immunity issue "would be eviscerated if district courts, cloaked with the authority of Apostol, could too easily certify even potentially meritorious appeals as frivolous")
39. Apostol, 870 F.2d at 1339 ("Such a power must be used with restraint, just as the power to dismiss a complaint for lack of jurisdiction because it is frivolous is anomalous and must be used with restraint.").
40. See, e.g., Apostol, 870 F.2d at 1339 ("A party aggrieved by a finding of frivolous- ness or forfeiture ⋯ may seek a stay from this court, for we have jurisdiction to determine our jurisdiction.")
41. Dunbar, 611 F.2d at 989 ("This Court is, of course, empowered to protect the defendant's double jeopardy rights by staying proceedings below pending appeal, or by issuing a writ of mandamus or prohibition." (citations omitted)).
42. See, e.g., Stewart, 915 F.2d at 577 (explaining that the certification requirement "provides valuable certainty and clarity by creating a bright jurisdictional line between the district court and the circuit court").
43. The Fourth Circuit has recognized an exception to the requirement of district court certification in a case where, by the time of trial, the court of appeals had dismissed the defendant's double jeopardy appeal as frivolous but the court of appeals' mandate had not yet issued. See Montgomery, 262 F.3d at 240.
44. See, e.g., Stewart, 915 F.2d at 577 (noting that courts have "emphasized the need for a clear and reasoned finding of frivolousness or forfeiture by the district court in order to prevent the automatic divestiture of jurisdiction")
45. Apostol, 870 F.2d at 1339 ("In the absence of the district court's reasoned finding of frivolousness or forfeiture ⋯ the trial is automatically put off.⋯.")
46. see also Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992) ("This court now adopts the rule set forth in LaMere in the context of interlocutory qualified immunity appeals. Should the district court find that the defendants' claim of qualified immunity is frivolous or has been waived, the district court may certify, in writing, that defendants have forfeited their right to pretrial appeal, and may proceed with trial.")
47. United States v. LaMere, 951 F.2d 1106, 1109 (9th Cir. 1991) ("[T]he district court set forth its findings in writing as required under the Dunbar rule." (citing Dunbar, 611 F.2d at 988))
48. United States v. Farmer, 923 F.2d 1557,1565 (11th Cir. 1991) ("If the district court makes written findings that a double jeopardy claim is frivolous or dilatory, then the interlocutory appeal does not divest the district court of jurisdiction, thus permitting the retrial to proceed.").
49. Dunbar, 611 F.2d at 989 ("The requirement of a written finding will enable this Court to review as expeditiously as possible a defendant's appeal and any request for relief from a district court's determination that an appeal is frivolous and does not deprive the court of jurisdiction to proceed.").
50. The Eighth Circuit has described the requisite procedure as follows: [W]e request a district court judge who denies a motion to dismiss based on double jeopardy to make a written finding of whether the motion is frivolous or nonfrivolous. If the motion is found to be frivolous, the filing of a notice of appeal will not divest the district court of jurisdiction. This court will then review the appeal on an expedited schedule. This court is already empowered to protect a defendant's rights by staying proceedings below pending disposal of an appeal. The written finding of lack of merit and the expedited review combined with existing power to issue stays should protect defendants' right not to be twice placed in jeopardy for the same crime.
51. United States v. Grabinski, 674 F.2d 677, 679-80 (8th Cir. 1982) (en banc) (per curiam). Without citing Grabinski, an Eighth Circuit panel more recently directed a different approach in the context of a qualified immunity appeal: Once a notice of appeal has been filed in a case in which there has been denial of a summary judgment motion raising the issue of qualified immunity, the district court should then stay its hand. Jurisdiction has been vested in the court of appeals and the district court should not act further. If the appeal is utterly lacking in merit and for the purpose of delay only, this court may take appropriate action.
52. Johnson v. Hay, 931 F.2d 456, 459 n.2 (8th Cir. 1991). 21 28 U.S.C. § 2255 (2006).
53. The government need not obtain a COA in order to appeal. See Fed. R. App. P. 22(b)(3)
54. 28 U.S.C. § 2253(c)(2) (2006).
55. Id. § 2253 (c)(3).
56. Id. § 2253(c)(1).
57. Rule 22(b)(1) provides in part that "the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability." Fed. R. App. P. 22(b)(1)
58. see also, e.g., United States v. Mitchell, 216 F.3d 1126, 1129 (D.C. Cir. 2000) ("[A] 11 the circuits addressing the issue have held that district court judges have the power to issue CO As.").
59. See, e.g., Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997) (remarking that Appellate Rule 22(b) "contemplates that the district court will make the first judgment whether a COA should issue and on which issues, and that the circuit court will be informed by the district court's determination in its own decisionmaking")
60. see also Mitchell, 216 F.3d at 1130 ("Rule 22(b) requires initial application in the district court for a COA before the court of appeals acts on a COA request.").
61. If the district judge denies the COA, the petitioner should seek a COA from a circuit judge. See Fed. R. App. P. 22(b)(1).
62. As of this writing, proposed amendments to Rule 11 governing §§ 2254 and 2255 cases (and conforming amendments to Appellate Rule 22) are on track to take effect on December 1, 2009, assuming that Congress takes no contrary action during the statutorily prescribed period. See Letter to Nancy Pelosi,Speaker of the House, United States House of Representatives, and Joe Biden, Vice President of the United States, from John Roberts, Chief Justice of the United States (March 26), transmitting amendments to the Federal Rules of Criminal Procedure). If they take effect, those amendments will require the district judge to rule on the COA at the same time that the judge denies the habeas petition
63. See Admin. Office of the U.S. Courts, Amendments to the Federal Rules of Criminal Procedure 33-34, 36-37 (2007), available at http://www.uscourts.gov/ rules/Supreme%20Court%202008/2008-CR-Clean-Rules.pdf. At present, however, that approach is not universal, and thus under current practice the district court's ruling on the COA may occur after the filing of the petitioner's notice of appeal.
64. See, e.g., Awon v. United States, 308 F.3d 133, 139 (1st Cir. 2002).
65. See Miller-El v. Cockrell, 537 U.S. 322, 337 (2003) ("[A] COA does not require a showing that the appeal will succeed.").
66. Slack v. McDaniel, 529 U.S. 473, 484 (2000). The standard's application to cases involving procedural bars is slighdy more complex: When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Id.
67. Thus, many cases can be found in which the court denies a COA but grants in forma pauperis status to the would-be appellant. See, e.g., Yang v. Archuleta, 525 F.3d 925, 927 (10th Cir. 2008) ("We grant Yang's request to proceed ifp, but deny a COA.").
68. See, e.g., Hooker v. Am. Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) ("If at least one issue or claim is found to be non-frivolous, leave to proceed in forma pauperis on appeal must be granted for the case as a whole.").
69. 28 U.S.C. § 1915(a)(3) (2006). If the appellant was given in forma pauperis status in the district court (or if the appellant is a criminal defendant who was found to be unable to obtain an adequate defense), then the appellant may automatically proceed in forma pauperis on appeal unless a statute provides otherwise or unless the district court, stating its reasons, certifies that the appeal is not in good faith or that the appellant is "not otherwise entitled to proceed" in forma pauperis. Fed. R. App. P. 24(a)(3).
70. See, e.g, Wooten v. D.C. Metro. Police Dep't., 129 F.3d 206, 208 (D.C. Cir. 1997) ("'In the absence of some evident improper motive, the applicant's good faith is established by the presentation of any issue that is not plainly frivolous.'" (quoting Ellis v. United States, 356 U.S. 674, 674 (1958) (per curiam))).
71. See Fed. R. App. P. 24(a) (2) (requiring a statement of reasons for any denial of leave to proceed in forma pauperis on appeal)
72. id. 24(a)(3)(A) (requiring a statement of reasons for certification that an appeal is not taken in good faith).
73. Although § 1915(a)(3) does not explicitly provide for appellate review of the district court's determination that the appeal is not in good faith, Appellate Rule 24(a) has (ever since its adoption) permitted such review. A number of cases uphold the court of appeals' ability to review the district court's determination that the appeal is not in good faith. See, e.g., Rolland v. Primesource Staffing, LLC, 497 F.3d 1077, 1078 (10th Cir. 2007) ("The palpable conflict between [§ 1915(a)(3) and Rule 24] is resolved in favor of the procedures dictated by Rule 24(a)(5), by virtue of the fact that its most recent reenactment postdates that of § 1915(a)(3).").
74. Fed. R. App. P. 7.
75. See Adsani v. Miller, 139 F.3d 67, 75 (2d Cir. 1998) ("The court has made a determination that this particular appellant poses a payment risk because she has no assets in the United States and has failed to post a supersedeas bond. The purpose of Rule 7 appears to be to protect the rights of appellees brought into appeals courts by such appellants ⋯").
76. In finding that the district court had not abused its discretion, the First Circuit reasoned as follows: [Although the district court did not expressly make a finding that the appeal on the merits was frivolous, we note that defendants' motion below requesting a bond sought 'security for the costs, including attorneys' fees, which may be awarded by the [court of appeals] to [defendants] pursuant to Fed.R.App.P. 38 and 39.' Thus, the district court's decision to set the amount at $5,000 implied a view that the appeal might be frivolous and that an award of sanctions against plaintiff on appeal was a real possibility.
77. Sckolnick v. Harlow, 820 F.2d 13, 15 (1st Cir. 1987) (third alteration in original) (quoting defendant's motion).
78. See Azizian v. Federated Dep't Stores, Inc., 499 F.3d 950, 961 (9th Cir. 2007) ("[T]he question of whether, or how, to deter frivolous appeals is best left to the courts of appeals, which may dispose of the appeal at the outset through a screening process, grant an appellee's motion to dismiss, or impose sanctions including attorney's fees under Rule 38.").
79. See id. at 958 ("We agree with the Second, Sixth, and Eleventh Circuits and hold that the term 'costs on appeal' in Rule 7 includes all expenses defined as 'costs' by an applicable fee-shifting statute, including attorney's fees." (citing Fed. R. App. P. 7))-
80. Adsani, 139 F.3d at 79.
81. Young v. New Process Steel, LP, 419 F.3d 1201, 1208 (11th Cir. 2005).
82. Id.
83. Stays in criminal cases are governed by Criminal Rule 38. See Fed. R. Crim. P. 38. Requests by convicted defendants for release pending appeal are discussed below. See infra notes 62-71 and accompanying text.
84. See Fed. R. App. P. 8(a)(1).
85. See id. 8(a)(1)(B) (stating that a request for approval of a supersedeas bond should ordinarily be made first to the district court);
86. Fed. R. Civ. P. 62(d) (stating that a stay of judgment may be obtained by supersedeas bond, and stay "takes effect when the court approves the bond"). Rule 62(d) excludes from its scope actions "described in Rule 62 (a) (1) or (2)," that is, " (1) an interlocutory or final judgment in an action for an injunction or a receivership; or (2) a judgment or order that directs an accounting in an action for patent infringement."
87. Id. 62(a), (d).
88. Rule 62(c) provides in part: "While an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party's rights." Id. 62(c);
89. see also Fed. R. App. P. 8(a)(1)(C) (providing that "[a] party must ordinarily move first in the district court" for an order "suspending" or "modifying" an injunction pending appeal).
90. The Supreme Court has stated: Different Rules of Procedure govern the power of district courts and courts of appeals to stay an order pending appeal. See Fed. Rule Civ. Proc. 62(c);
91. Fed. Rule App. Proc. 8(a), Under both Rules, however, the factors regulating the issuance of a stay are generally the same: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits
92. (2) whether the applicant will be irreparably injured absent a stay;
93. (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding;
94. and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
95. John Y. Gotanda, The Emerging Standards for Issuing Appellate Stays, 45 Baylor L. Rev. 809, 813 (1993).
96. See, e.g., Coal, to Defend Affirmative Action v. Granholm, 473 F.3d 237, 244 (6th Cir. 2006) ("All four factors are not prerequisites but are interconnected considerations that must be balanced together.").
97. See, e.g., Stormans Inc. v. Selecky, 526 F.3d 406, 408 (9th Cir. 2008) ("[T]o satisfy steps (1) and (2), we will accept proof either that the applicant has shown 'a strong likelihood of success on the merits [and] ⋯ a possibility of irreparable injury to the [applicant],' or 'that serious legal questions are raised and that the balance of hardships tips sharply in its favor.'" (alterations in original) (quoting Golden Gate Rest. Ass'n v. City of San Francisco, 512 F.3d 1112, 1115-16 (9th Cir. 2008)))
98. Humane Soc'y v. Gutierrez, 523 F.3d 990, 991 (9th Cir. 2008) ("[T]he issues of likelihood of success and irreparable injury represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." (citing Golden Gate Rest. Ass'n, 512 F.3d at 1115))
99. In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007) f[T]he degree to which a factor must be present varies with the strength of the other factors.")
100. FTC v. Mainstream Mktg. Servs., Inc., 345 F.3d 850, 852 (10th Cir. 2003) ("[W]here the moving party has established that the three 'harm' factors tip decidedly in its favor, the 'probability of success' requirement is somewhat relaxed." (citing Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246 (10th Cir. 2001)))
101. McCammon v. United States, 584 F. Supp. 2d 193, 197 (D.D.C. 2008) ("A party does not necessarily have to make a strong showing with respect to the first factor (likelihood of success on the merits) if a strong showing is made as to the second factor (likelihood of irreparable harm)."). The four-part test for stays of injunctions pending appeal is similar to the four- part test for preliminary injunctions. In the latter context, the Supreme Court recently rejected a variant of the sliding-scale approach under which "when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered based only on a 'possibility' of irreparable harm." Winter v. Natural Res. Defense Council, Inc., 129 S. Ct. 365, 375 (2008). The Court explained that the " 'possibility' standard is too lenient" because the preliminary-injunction test "requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction."
102. Id. The Court's elimination of this particular approach in the context of preliminary injunctions need not be seen as casting doubt on all the cases that apply a flexible standard under Rule 8 for stays of injunctions pending appeal. The two tests are not identical. Moreover, even if the Winter reasoning can be read to imply that courts should require a minimum showing of likelihood of harm in the Rule 8 context, that would not foreclose the use of a sliding-scale approach which permitted the likelihood-of-success showing to vary inversely to the harm showing (so long as the harm showing always met the required minimum).
103. The D.C. Circuit has stated: [A] court, when confronted with a case in which the other three factors strongly favor interim relief may exercise its discretion to grant a stay if the movant has made a substantial case on the merits. The court is not required to find that ultimate success by the movant is a mathematical probability, and indeed, as in this case, may grant a stay even though its own approach may be contrary to movant's view of the merits. Wash. Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977).
104. United States v. Philip Morris Inc., 314 F.3d 612, 617 (D.C. Cir. 2003).
105. Hinrichs v. Bosma, 440 F.3d 393, 396 (7th Cir. 2006).
106. Mainstream Mktg. Servs, 345 F.3d at 853 (quoting Pierce, 253 F.3d at 1246-47). Fed. R. App. P. 8(a)(2) (A)(ii)
107. This does not mean that the court of appeals will necessarily defer to the district court's decision on the stay. Compare Lightfoot v. Walker, 797 F.2d 505, 507 (7th Cir. 1986) (reasoning, in a case involving a request to stay an attorney fee award, that "if the basis of the application for such a stay lay in events occurring after the district court had denied a similar application, we would make an independent judgment," but that where "the application is in effect an appeal from the district judge's denial of the stay, we shall treat it as such and give the district judge's action the appropriate deference"), with Congregation Lubavitch v. City of Cincinnati, 923 F.2d 458, 460 (6th Cir. 1991) ("[W]e are not reviewing the district judge's grant of the injunction, and are therefore not bound to defer to his judgment. We are, however, bound to accept the district court's factual findings unless we find them to be 'clearly erroneous.'" (quoting Fed. R. Civ. P. 52(a)).
108. Under Appellate Rule 23(b) and (c), the question of release pending appeal from a habeas determination can be made by "the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court." Fed. R. App. P. 23(b),(c).
109. The Supreme Court has so held in the context of a determination concerning release under Rule 23(c): "[T]he general standards governing stays of civil judgments should also guide courts when they must decide whether to release a habeas petitioner pending the State's appeal." Hilton v. Braunskill, 481 U.S. 770, 776 (1987). Accordingly, the factors to be balanced are: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits.
110. (2) whether the applicant will be irreparably injured absent a stay;
111. (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding;
112. and (4) where the public interest lies.
113. Id. The Braunskill Court's reasoning seems equally applicable to the analysis of requests for release under Rule 23(b). 60 If the district court ordered the release of the habeas petitioner, then Rule 23(c) directs that the prisoner be released in the absence of a contrary order; in such instances, "[t]here is [a] presumption in favor of enlargement of the petitioner with or without surety, but it may be overcome if the traditional stay factors tip the balance against it."
114. Id. at 777. In contrast to Rule 23(c), Rule 23(b)-which governs the question of release pending appeal from a decision not to release the habeas petitioner-does not set a presumption in favor of release. See Fed. R. App. P. 23 (b), (c).
115. In the Rule 23(b) context, the Ninth Circuit denied bail pending review of the denial of federal prisoners' request for collateral relief on the ground that "appellants have not demonstrated their appeal is an extraordinary case involving 'special circumstances' or presents a 'high probability of success.' " United States v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1994) (citing Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989)). In the Rule 23(c) context, the Braunskill Court stressed the likely importance of the assessment of the appeal's merits: The balance may depend to a large extent upon determination of the State's prospects of success in its appeal. Where the State establishes that it has a strong likelihood of success on appeal, or where, failing that, it can nonetheless demonstrate a substantial case on the merits, continued custody is permissible if the second and fourth factors in the traditional stay analysis militate against release. Braunskill, 481 U.S. at 778.
116. Prior to its amendment in 1994, Rule 9(b) stated explicitly that "(Application for release after a judgment of conviction shall be made in the first instance in the district court." Fed. R. App. P. 9(b) (1988) (amended 1994 & 1998).
117. Though Rule 9(b) no longer contains this explicit directive, its reference to "review of a district- court order regarding release after a judgment of conviction" seems to contemplate a continuation of this practice. Fed. R. App. P. 9(b).
118. Section 3141(b) of title 18 states: A judicial officer of a court of original jurisdiction over an offense, or a judicial officer of a Federal appellate court, shall order that, pending imposition or execution of sentence, or pending appeal of conviction or sentence, a person be released or detained under this chapter." 18 U.S.C. § 3141(b) (2006).
119. The statute presumptively requires detention pending appeal for defendants convicted and sentenced to imprisonment for certain types of serious crime. See 28 U.S.C. § 3143(b) (2).
120. see id. § 3145(c) ("A person subject to detention pursuant to section 3143(a)(2) or (b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate.").
121. Id. § 3143(b)(1)(B).
122. United States v. Perholtz, 836 F.2d 554, 555 (D.C. Cir. 1987) (listing cases)
123. see also, e.g., United States v. Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991) ("In applying § 3143(b)(2) the court must make two inquiries after finding that the appeal is not taken for the purpose of delay. First, whether the question presented on appeal is a 'substantial' one. Second, if decided in favor of the accused, whether the substantial question is important enough to warrant reversal or a new trial on all counts for which the district court imprisoned the defendant.").
124. Perholtz, 836 F.2d at 556
125. see also United States v. Colon-Munoz, 292 F.3d 18, 20 (1st Cir. 2002) ("The 'likely to result' standard is applied flexibly-a question that can be regarded as 'close' will often suffice ⋯")
126. United States v. Marshall, 78 F.3d 365, 366 (8th Cir. 1996) ("We require a showing that the appeal presents 'a close question'-not 'simply that reasonable judges could differ'-on a question 'so integral to the merits of the conviction that it is more probable than not that reversal or a new trial will occur if the question is decided in the defendant's favor.' " (quoting United States v. Powell 761 F.2d 1227, 1234 (8th Cir. 1985)))
127. Steinhorn, 927 F.2d at 196 (adopting the Giancola test, which asks whether an issue presents "a 'close' question or one that very well could be decided the other way" (quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985)))
128. United States v. Clark, 917 F.2d 177, 180 (5th Cir. 1990) (agreeing that a substantial question is one that " 'could very well be decided the other way'" (quoting United States v. Valera-Elizondo, 761 F.2d 1020, 1024 (5th Cir. 1985)))
129. United States v. Shoffner, 791 F.2d 586, 589 (7th Cir. 1986) ("[W]e have adopted the formulation of the Eleventh Circuit in United States v. Giancola.⋯.
130. United States v. Smith, 793 F.2d 85, 89 (3d Cir. 1986)
131. United States v. Handy, 761 F.2d 1279, 1282-83 (9th Cir. 1985).
132. See, e.g., United States v. Eaken, 995 F.2d 740, 743 (7th Cir. 1993) (Easter- brook, J., dissenting) ("Even district judges who perceive a 'substantial question' lurking do not believe that the question is 'likely' to produce reversal-if they believed this, they would have acquitted the defendant.")
133. United States v. Bayko, 774 F.2d 516, 523 (1st Cir. 1985) (rejecting a "construction [of the statute] which would make bail contingent upon a finding by the district court that it is likely to be reversed")
134. United States v. Bilanzich, 771 F.2d 292, 299 (7th Cir. 1985) ("[Requiring district judges to determine the likelihood of their own error is repugnant, for in such a case the proper remedy would be to rectify the error on post-trial motions.").
135. Shoffner, 791 F.2d at 588 n.3.
136. Appellate Rule 9(b) (which governs requests for release after judgment of conviction) provides that the district court's order is "subject to Rule 9(a)." Fed. R. App. P. 9(b).
137. Appellate Rule 9(a) requires the district judge to "state in writing, or orally on the record, the reasons for an order regarding the release or detention of a defendant in a criminal case."
138. Id. 9(a).
139. See, e.g., United States v. DiSomma, 951 F.2d 494, 497 (2d Cir. 1991) (affirming an order granting release pending appeal, and stating that "[t]he trial judge reasonably concluded that an appellate court might find no basis from which to infer the necessary violence" and that "[g]iven the trial judge's close familiarity with the evidence presented in the case, her determination in regard to this matter should be upheld")
140. In re Smith, 823 F.2d 401, 401 (11th Cir. 1987) ("Rule 9(b) of the Federal Rules of Appellate Procedure commands that such reasons be specified in writing; moreover, of course, written explanations for denying release during appeal are helpful to this court in discharging our own responsibility under Rule 9(b).").
141. Under Appellate Rule 10(a), the record on appeal consists of "(1) the original papers and exhibits filed in the district court;
142. (2) the transcript of proceedings, if any;
143. and (3) a certified copy of the docket entries prepared by the district clerk." Fed. R. App. P. 10(a).
144. Appellate Rule 10 provides two additional mechanisms through which the district court can affect the contents of the record on appeal. See id. 10(c), (d). Though proceedings in open court generally must be recorded
145. see 28 U.S.C. § 753(b) (2006), the recording is sometimes lost through human or technical error. Rule 10(c) provides that if a hearing or trial transcript is thus unavailable, the appellant may prepare a statement of the proceedings, and the appellee may serve objections to the statement. Fed. R. App. P. 10(c). The district court then settles and approves the statement.
146. Id. The court of appeals is likely to give considerable deference to the district judge's rulings on the statement of the record under Rule 10(c). See, e.g., United States v. Keskey, 863 F.2d 474, 478 (7th Cir. 1988) ("We must accept the court's reconstruction of the record under Federal Rule of Appellate Procedure 10(c) unless it was intentionally falsified or plainly unreasonable."). Rule 10(d) permits the parties to prepare an agreed-upon statement-subject to the district court's approval-for use as the record on appeal. Fed. R. App. P. 10(d). This provision, however, seems rarely to be used.
147. Fed. R. App. P. 10(e)(1).
148. Id. 10(e)(2).
149. Id. 10(e)(3).
150. Fed. R. Civ. P. 60(a);
151. Fed. R. Crim. P. 36
152. Fed. R. App. P. 10(e)(2)(B).
153. Fed. R. Crv. P. 60(a). In holding that the district court had been entided to correct the record to reflect an event at the final pretrial conference which pertained to a jurisdictional issue, the court of appeals noted the possible tension between the two provisions: We believe that the district court was entitled to take the corrective action that it did take. If characterized as a correction of the record under Rule 10(e) of the Federal Rules of Appellate Procedure, the action could be taken without leave of this court. ⋯ If, on the other hand, the district court's action was taken under Rule 60(a) of the Federal Rules of Civil Procedure, the permission of this court is a necessary prerequisite because the case is in the court of appeals.
154. Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1014 n.9 (7th Cir. 2000). In any event, the court of appeals concluded that its "sua sponte order ⋯ inquiring about jurisdiction is sufficient authority for the district court to enter an order explaining the circumstances that cause the jurisdictional ambiguity." Id.
155. Cf. United States v. Eaken, 995 F.2d 740, 743 (7th Cir. 1993) (Easterbrook, J., dissenting) (noting that 18 U.S.C. § 3143(b)(l)(B)'s test for release pending appeal casts the district judge in a "self-critical role").
156. United States v. Martin, 520 F.3d 87, 88 (1st Cir. 2008).
157. 3d Cir. Local App. R. 3.1.
158. Civil Rule 59(e) provides that "[a] motion to alter or amend ajudgment must be filed no later than 10 days after the entry of the judgment." Fed. R. Crv. P. 59(e).
159. 3d Cir. Local App. R. 3.1 , committee comments. It is interesting to note that state courts in two of the states within the Third Circuit have rules that authorize the trial judge to provide an opinion after the filing of the notice of appeal. Pennsylvania Rule of Appellate Procedure 1925(a) provides in part: Upon receipt of the notice of appeal, the judge who entered the order giving rise to the notice of appeal, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief opinion of the reasons for the order, or for the rulings or other errors complained of, or shall specify in writing the place in the record where such reasons may be found.
160. Penn. R. App. P. 1925(a). New Jersey Rule 2:5-l(b) provides in part: In addition to the filing of the notice of appeal the appellant shall mail a copy thereof.⋯ to the trial judge ⋯ Within 15 days thereafter, the trial judge ⋯ may file and mail to the parties an amplification of a prior statement, opinion or memorandum made either in writing or orally and recorded pursuant to R. 1:2-2. If there is no such prior statement, opinion or memorandum, the trial judge ⋯ shall within such time file with the Clerk of the Appellate Division and mail to the parties a written opinion stating findings of fact and conclusions of law.
161. N.J. R. 2:5-1 (b), available at http://www.judiciary.state.nj.us/rules/ r2-5.htm.
162. See, e.g., In re Walker, 515 F.3d 1204, 1211 (11th Cir. 2008) ("[W]hen a trial court reduces its oral findings to writing and cites relevant case law, it does not lack jurisdiction to do so because the losing party filed a notice of appeal after the oral hearing but before the entry of the written order. Such a subsequent order aids appellate review." (citation omitted))
163. In re Mosley, 494 F.3d 1320, 1328 (11th Cir. 2007) ("[A] lower court has jurisdiction to reduce its oral findings to writing even if a party has filed a notice of appeal in the interim.")
164. In re Silberkraus, 336 F.3d 864, 869 (9th Cir. 2003) ("[T]he bankruptcy court retained jurisdiction to publish its written findings of fact and conclusions of law because they were consistent with the court's oral findings and because they aid us in our review of the court's decision." (footnote omitted)).
165. As Judge Posner has observed: "The losing party cannot make an informed judgment whether to appeal until he has the complete statement of the district judge's reasons. The practice therefore encourages the filing of protective notices of appeal designed to get the judge to state his reasons fully." In re Jones, 768 F.2d 923, 931 (7th Cir. 1985) (Posner, J., concurring).
166. Prior to a December 2008 amendment, the time limit was fifteen days. See 3d Cm. Local App. R. 3.1 committee comments.
167. In United States v. Scarfo, 263 F.3d 80 (3d Cir. 2001), the court of appeals considered the district court's March 2001 written order which "supplemented] its reasons for entering the December 6, 2000, gag order, as well as defin[ed] the exact parameters of the gag order." Id. at 89. Though the March 2001 order was written after the appellant had filed his main brief, the appellant's reply brief addressed the order and the court of appeals found that the appellant was not prejudiced. Id.
168. Similarly, in United States v. Bennett, 161 F.3d 171 (3d Cir. 1998), the court of appeals considered a written sentencing memorandum-filed some eight months after the sentencing at a point in time when the briefing on appeal was complete because the memorandum was a "helpful amplification" and the parties had been permitted to file supplemental briefs in response to the memorandum.
169. Id. at 186-87.
170. An example is provided by In re Jones, 768 F.2d 923. The district judge had affirmed the bankruptcy court in an oral opinion. After the trustee filed a notice of appeal from the district court judgment, the district court issued a written opinion. Id. at 925. Though the court of appeals noted "a danger ⋯ that in these circumstances the appellant will not have before him all the arguments later relied on in the written opinion," it found "no prejudice to the trustee" in this instance, because "the oral opinion clearly incorporated the bankruptcy court's two written opinions," and because the bankruptcy judge's "opinions seem to us to express the appellees' position more cogently than the district court's later written opinion."
171. Id. at 925 n.2. Accordingly, the court concluded, "if technically only the oral opinion and bankruptcy orders are before us because the district court lacked jurisdiction to enter its written opinion, we have an adequate basis for understanding the district court's reasoning and deciding this appeal." Id.
172. See, e.g., United States v. Martin, 520 F.3d 87, 98 n.9 (1st Cir. 2008) ("Many of us have been trial judges and we recognize the immense pressures on district courts and the understandable desire of busy trial judges not to invest time and effort in extravagant explanations that may prove to be unnecessary. But as we have noted above, the disadvantages of the practice are substantial.");
173. Aoude v. Mobil Oil Corp., 862 F.2d 890, 895 (1st Cir. 1988) ("We understand that overtaxed district courts, struggling with burgeoning case loads, are often unable to ignore their dockets and generate instant written opinions."). Judge Posner, criticizing a district judge's practice of deciding bankruptcy cases with an oral opinion (and not providing a written opinion unless an appeal was taken), conceded: [T]he practice has appeal as a time-saver-no mean consideration in an era of heavy judicial caseloads. Why bother to write an opinion if the case is not going to be appealed? The parties are entitled to a statement of the reasons for the judge's result, and they get it, but it is oral. Only if the case is appealed does the judge take the time necessary to prepare a written opinion. In re Jones, 768 F.2d at 930 (Posner, J., concurring).
174. In re Jones, 768 F.2d at 932. Judge Posner conceded that the court of appeals sometimes employs a similar practice, but he stressed that such instances are rare: "It is true that this court sometimes announces its decision before handing down its opinion. But we reserve the practice for cases that either are emergencies or are frivolous." Id.
175. Id. It is interesting to observe that similar questions surfaced in the debate over appellate courts' use of unpublished opinions. So, for example, Judge Posner has summarized and countered one of the arguments against unpublished appellate opinions: It has been argued that streamlining has produced a bifurcated system of federal appellate justice in which "interesting" cases receive the traditional kind of appellate review-involving oral argument, careful analysis of the issues by the judges themselves, and a published opinion-while "hopeless" or "routine" appeals are fobbed off on staff, and that this sort of case "tracking" is inconsistent with the ideals of equal justice. Descriptively this argument is pretty accurate, but normatively it is unconvincing. Equality in adjudication means treating like cases alike, not all cases alike. Richard A. Posner, The Federal Courts: Challenge and Reform 172 (1999) (footnotes omitted).
176. Martin, 520 F.3d at 97.
177. United States v. Bennett, 161 F.3d 171, 186 (3d Cir. 1998).
178. United States v. Pelullo, 14 F.3d 881, 906-07 (3d Cir. 1994).
179. See infra Part I.C.2 for a discussion of limited remands.
180. See Fed. R. App. P. 21 committee note ("In most instances, a writ of mandamus or prohibition is not actually directed to a judge in any more personal way than is an order reversing a court's judgment. Most often a petition for a writ of mandamus seeks review of the intrinsic merits of a judge's action and is in reality an adversary proceeding between the parties.").
181. See id.
182. Fed R. App. P. 21(a)(1). Of course, that arrangement may work best when at least one party to the proceeding below wishes to support the district court determination. An unusual sequence of events was presented in the death penalty case of Len Davis, a former New Orleans police officer convicted of capital crimes in connection with "the execution-style murder" of a woman who had filed a police brutality complaint against him.
183. See United States v. Causey, 185 F.3d 407, 411 (5th Cir. 1999) (providing facts and procedural history and, inter alia, remanding for resentencing of Davis).
184. After Davis asserted the right to represent himself in the penalty phase on remand and indicated his intent not to present traditional mitigation evidence (focusing instead on the strength of the evidence as to guilt), the district judge ordered "that the Constitution calls for Davis to be represented by counsel and that counsel shall determine how the penalty phase should be conducted." United States v. Davis, 150 F. Supp. 2d 918, 920-21 (E.D. La. 2001). Davis appealed this order and, alternatively, sought a writ of mandamus, arguing that he should be permitted to proceed pro se in the penalty phase; the government supported the mandamus request.
185. See United States v. Davis, No. 01-30656, 2001 WL 34712238, at *1 (5th Cir. July 17, 2001).
186. The Fifth Circuit panel majority, noting that the district judge "relies on its extensive Order and Reasons, Filing nothing further in this court," granted the writ on the ground that under Faretta v. California, 422 U.S. 806 (1975), "[i]f Davis made a knowing and intelligent waiver of his right to counsel, he is entided to represent himself." Davis, 2001 WL 34712238, at *1, *3. The panel majority concluded by directing that the writ is issued to remand this action for a sentencing hearing wherein Davis will be allowed to proceed pro se if he wishes to do so and knowingly and intelligently waives his right to counsel. The district court may of course appoint stand-by counsel for Davis if such is appropriate. Id. at *3.
187. Judge Dennis dissented on the merits and also objected that the panel majority should not have granted the writ "summarily without oral argument and without inviting an amicus curiae to advocate the interest of the people of the United States in the fair and efficient administration of justice in the imposition of federal capital punishment." Id. at *4 (Dennis, J., dissenting).
188. The Fifth Circuit docket reflects that the district judge then submitted a letter "requesting ⋯ reconsideration of [the] Court's opinion/order." Docket Entry, United States v. Davis, No. 01-30656 (5th Cir. July 31, 2001).
189. The judge's letter, reproduced as an appendix to a later ruling, indicates that she submitted the letter "in response to an invitation from the panel in the above case to request the Court to reconsider its recent ruling." United States v. Davis, 180 F. Supp. 2d 797, 808 (E.D. La. 2001) (reproducing the letter). The letter invoked "the reasons given in my original Order and Reasons and also the reasons given in the dissent by Judge Dennis," and offered some additional arguments as well. Id. at 808-11. The docket reflects that Judge Dennis dissented from at least some aspects of that order
190. Docket Entry, United States v. Davis, No. 01-30656 (5th Cir. Aug. 3, 2001). Later that month, in an opinion which referenced the earlier opinion and letter, the district court "appointed] independent counsel to investigate and present mitigation evidence at the penalty phase." Davis, Davis, 798t & n.l.
191. Once again, a divided panel granted the writ, with the panel majority reasoning that "the district court's decision to appoint an independent counsel violates Davis's Sixth Amendment right to self-representation." United States v. Davis, 285 F.3d 378, 381 (5th Cir. 2002).
192. The independent counsel continued to press a challenge, but her requests for panel rehearing and rehearing en banc were denied, as was her petition for certiorari. White v. United States, 537 U.S. 1066 (2002) (mem.) (denying certiorari).
193. It is unusual-indeed, it is not entirely clear that it is permissible-for a district judge to request rehearing after the court of appeals issues an extraordinary writ directed to the judge. See In re Boston's Children First, 244 F.3d 164, 171-72 (1st Cir. 2001) (stating that "the court received a petition for rehearing en banc from the district judge" and noting that "the basis for filing such a petition may be open to dispute, cf., Fed. R. App. P. 21(b)(4)"). But in the Davis proceedings, the district judge's request for reconsideration of the first mandamus writ might have been justified by the fact that the actual parties to the case were united in support of the issuance of the writ, which meant that at that stage of the proceedings only the district judge was in a position to request reconsideration. (The Fifth Circuit docket indicates that a codefendant asked leave to intervene for the purpose of requesting rehearing but that the request was denied.
194. See Docket Entry, United States v. Davis, No. 01-30656 (5th Cir. July 30, 2001). The district judge's letter also suggests that the judge's request for reconsideration might have resulted from an invitation by the court of appeals. Davis, 180 F. Supp. 2d at 808.
195. See Fed. R. App. P. 21(a)(1). The rule also requires the circuit clerk to send a copy of the petition's disposition to the district judge. See id. 21(b)(7).
196. Id. 21(b)(1).
197. Id. 21 committee note.
198. Id.
199. Id. 21(b)(4).
200. Id.
201. Id. committee note.
202. Id. 21(b)(4).
203. For example, in Akxanderv. Primerica Holdings, Inc., 10 F.3d 155 (3d Cir. 1993), the plaintiff class representatives sought a writ of mandamus requiring the district judge to disqualify himself from hearing the case. Id. at 157.
204. The district judge responded by sending a seven-page letter to the plaintiffs' counsel (with a copy to opposing counsel) listing asserted errors in the mandamus brief. See id. at 162. The court of appeals directed the reassignment of the case to another district judge, reasoning that the judge's "observations ⋯ throughout the conduct of these proceedings could well give rise to the questioning of his impartiality."Id. at 164.
205. The court of appeals' discussion makes clear that the judge's letter in response to the mandamus petition formed part of the basis for this conclusion: In the present case where Judge Lechner has authored six opinions, and where counsel for [the defendant] has responded eloquendy and vigorously to the allegations of the petition, we are fearful that Judge Lechner's letter response to the petition could be misinterpreted by a reasonable person, to say nothing of a disappointed litigant, as an attempt by Judge Lechner to align himself with [the defendant]. Id. at 165 (footnote omitted).
206. Of course, the response does not always steer the court of appeals away from issuing the writ. An interesting recent example was provided in connection with the massive tax fraud prosecution involving former employees and partners of KPMG. KPMG attempted to appeal the district court's rulings asserting ancillary jurisdiction over contract claims by defendants (seeking to compel KPMG to pay their legal fees) and denying KPMG's request to send those claims to arbitration. At oral argument, the court of appeals solicited the parties' input on whether it should treat KPMG's attempted appeal as a request for a writ of mandamus.
207. See Stein v. KPMG, LLP, 486 F.3d 753, 758 (2d Cir. 2007). KPMG responded in the affirmative, and the court of appeals invited the district judge to respond to KPMG's submission.
208. See Docket Entry, Stein v. KPMG, LLP, No. 06-4358 (2d Cir. Dec. 13, 2006). Judge Kaplan's resulting "Response to Rule 21(b)(4) Invitation," which was some 45 pages long, addressed in detail both the merits of the challenged decisions and also whether the case was an appropriate one for mandamus.
209. See Response to Rule 21 (b) (4) Invitation, Stein, 486 F.3d 753 (No. 06-4358), 2007 WL 1593793. At a number of points the Response addressed arguments made by KPMG in its submission to the court of appeals. See, e.g., id. at Part I.C.1-.3. Though Judge Kaplan concluded that the court of appeals should refuse to issue the writ-"either on the ground that (1) this is not an appropriate case in which to use mandamus to review the merits of the challenged order or, (2) on the merits"-he also stated that the district-court proceedings "would be facilitated by prompt review of the merits of the challenged order." Quoting the latter statement, the court of appeals issued a writ of mandamus and "vacate [d] the order of the district court asserting ancillary jurisdiction over the contract claim as beyond the district court's power." Stein, 486 F.3d at 756. Sometimes the situation that prompts a mandamus petition involves not a challenged ruling by the district court but rather a district court's failure to act. So, for example, in some instances a petitioner might seek a writ because the petitioner asserts that the district court has unduly delayed in issuing a ruling. In such instances, if the court of appeals agrees with the petitioner that the district court has delayed too long and the court of appeals therefore requests a response from the district court, the court of appeals' request is likely to prompt the district court to issue the requested ruling (thus mooting the need for any other response).
210. 258 F.3d 250 (4th Cir. 2001).
211. Id. at 252, 255.
212. See id. at 255. The notice of appeal was filed on the theory that the district judge's order counted as an injunction from which an appeal could be taken under 28 U.S.C. § 1292(a)(1). Id.
213. See id.
214. Cherrix v. Braxton, 131 F. Supp. 2d 756, 759 (E.D. Va. 2000)
215. See Cherrix v. Taylor, No. Civ.A. 00-CV-1377, 2001 WL 1797177 (E.D. Va. Jan. 09, 2001).
216. In re Braxton, 258 F.3d at 258.
217. Id. (quoting Cherrix, 131 F. Supp. 2d at 771).
218. See id. at 255 n.4.
219. Judge Traxler reasoned as follows: Were it not for the information in the Supplemental Order, however, I would hold that the January 9, 2001 Order, standing alone, was immediately appealable. Without clarification from the Supplemental Opinion, the January 9, 2001 Order, literally interpreted, required the Commonwealth to turn over the samples directly to the defendant for testing. This would have broken the chain of custody and created a situation, if only in testing, in which Cherrix could have contaminated and even destroyed the evidence. In my judgment, the dangers attendant to an apparendy uncontrolled release of the evidence would have fully warranted an interlocutory appeal ⋯ Id. at 263 (Traxler, J., concurring in the result).
220. Id.
221. Id.
222. See, e.g., United States v. Wooden, 230 F. App'x 243, 244 (4th Cir. 2007) (per curiam) ("[T]he only issue before the district court by reason of our limited remand was a determination of the date on which Wooden gave his notice of appeal to prison officials so that we could determine whether Wooden's appeal in No. 04-6793 was timely noted. ⋯ [T]he district court was without authority to act on Wooden's motions which involved aspects of the case involved in the appeal.").
223. For example, the Ninth Circuit has held as follows: [W]hen we are faced with an unpreserved Booker error that may have affected a defendant's substantial rights, and the record is insufficiendy clear to conduct a complete plain error analysis, a limited remand to the district court is appropriate for the purpose of ascertaining whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory. United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir. 2005) (en banc). Unlike some other circuits, the Ninth Circuit does not maintain the original appeal during the limited remand. Rather, if the district court adheres to the original sentence, the appellant must file a new notice of appeal: If the district court judge determines that the sentence imposed would not have differed materially had he been aware that the Guidelines were advisory, the district court judge should place on the record a decision not to resentence, with an appropriate explanation. A party wishing to appeal the order may File a notice of appeal as provided in [Fed. R. App. P.] 4(b).
224. Id. at 1085. However, the new appeal "will be subject to the usual procedure pertaining to comeback cases, as provided in General Order 3.7."
225. Id. at 1085 n.9. General Order 3.7 provides that in such instances the new appeal will ordinarily go to the original panel.
226. See U.S. Court of Appeals for the Ninth Circuit, General Orders 3.7 (2008).
227. See, e.g., In re Smith, 823 F.2d 401, 401-02 (11th Cir. 1987) ("Where the district court has not specified in writing its reasons for denying release in accordance with [Fed. R. App. P.] 9(b), a limited remand of the matter for an entry of an order in compliance with Rule 9(b) is appropriate.⋯ If release is still denied, the order and the government's response, if any, shall be filed with this court as a supplemental record; and the matter will then be ripe for decision."); United States v. Wong-Alvarez, 779 F.2d 583, 585 (11th Cir. 1985) ("[NJeither magistrate nor district court has stated in writing the reasons for requiring a bond with the types and amounts of surety described above, as commanded by [Fed. R. App. P.] 9 ⋯ We must remand the case for entry of such an order, which should be entered prompdy. The order may be filed as a supplemental record, and this case will then be ripe for review." (footnote omitted))
228. United States v. Hart, 779 F.2d 575, 577 (10th Cir. 1985) f[W]e partially remand this case to the district court for prompt consideration of appellant's application for release pending appeal. We imply no view on the merits of the application.").
229. See generally supra note 70 (discussing the fact that Rule 9 requires a statement of reasons from the district court).
230. See, e.g., Seeley v. Chase, 443 F.3d 1290, 1297 (10th Cir. 2006) ("Because we cannot review a district court's decision to admit Rule 415 evidence unless it makes a reasoned, recorded statement of its 403 decision, the case is REMANDED to the district court for an articulated analysis of its ruling under Rule 403. This court will retain jurisdiction of the appeal pending the district court's further rulings, which shall be certified to this court as a supplemental record. In the interim, the case is abated.");
231. United States v. Castro, 908 F.2d 85, 91 (6th Cir. 1990) ("This court must order a limited remand to the district court for the district court to make a finding on the admissibility of co-conspirator statements. ⋯ [The court] retains jurisdiction over this case pending the district court's finding.")
232. For example, in United States v. Samet, 11 F. App'x 21 (2d Cir. 2001), the defendant sought appellate review of the district court's pretrial detention order. Id. at 22.
233. The United States, for its part, asked the court of appeals: for a limited remand to allow the district court: (1) to consider the effect of Israel's statute permitting extradition of Israeli residents on its finding that Samet is a flight risk and that no reasonable conditions can be set to assure his presence at trial; and (2) to clarify its findings regarding the telephone service at Samet's residence. Id.
234. The court of appeals granted the limited remand, directing the district court to "consider the two issues raised by the Government and ⋯ clarify its bases for ordering Samet's pretrial detention." Id.
235. The Second Circuit docket indicates that the district court subsequendy entered an order stating: "The transcript of the hearing held on 6/13/01, at 10:00 AM, constitutes the decision of the Court responding to the two questions by the U.S. Court of Appeals for the Second Circuit on limited remand of the appeal by defendant of the court's order denying bail." Docket Entry, United States v. Samet, No. 01-1224 (2d Cir. Apr. 17, 2001). The docket indicates that briefing then resumed in the court of appeals, and that the district court's detention order was affirmed. See Docket Entry, United States v. Samet, No. 01-1224 (2d Cir. Apr. 25, 2001)
236. see also, e.g., Mun. Leasing Corp. v. Fulton County, 835 F.2d 786, 791 (11th Cir. 1988) ("We AFFIRM this case as specified in this opinion, except on the question of pre-bid improprieties we return this case on a LIMITED REMAND for supplemental findings and conclusions."), further decision after remand, 849 F.2d 516, 517 (11th Cir. 1988) (holding the district court's additional findings not clearly erroneous and affirming the judgment).
237. So, for example, in United States v. BDO Seidman, IJJ<, Nos. 02-3914, 02-3915, 2002 WL 32080709 (7th Cir. Dec. 18, 2002), the court of appeals remanded "for the limited purpose of permitting the district court to enter more extensive findings regarding those documents to which the proposed intervenor-appellants claim a privilege under 26 U.S.C. § 7525." Id. at *1.
238. The court of appeals directed the district court to inspect the relevant documents in camera and to "enter specific findings" concerning the circumstances surrounding each document, "including but not limited to" four questions listed in the remand order. Id.
239. This assignment was probably a heavy one. The Seventh Circuit docket reflects the receipt of a letter from the district judge concerning the court of appeals' order. See Docket Entry, United States v. BDO Seidman, LLP, No. 02-3914 (7th Cir. Jan. 17, 2003).
240. The Northern District of Illinois docket reflects the reassignment of the case to another district judge pursuant to 28 U.S.C. § 294(b). Docket Entry, United States v. BDO Seidman, LLP, No. 1:02- cu-04822 (N.D. 111. Jan. 9, 2003)
241. see also 28 U.S.C. § 294(b) (2006) (providing that a senior status judge "may continue to perform such judicial duties as he is willing and able to undertake"). The newly assigned district judge, on the limited remand, issued a memorandum opinion containing detailed findings based on a review of a subset of the relevant documents.
242. See United States v. BDO Seidman, LLP, No. 02 C 4822, 2003 WL 932365, at *l-*4 (N.D. 111. Feb. 5 2003). Having reviewed those supplemental findings, the court of appeals affirmed.
243. See United States v. BDO Seidman, LLP, 337 F.3d 802, 813 (7th Cir. 2003).
244. See, e.g. United States v. D.L. Kaufman, Inc., 175 F.3d 970, 973 (Fed. Cir. 1999) ("An appellate court should not be required to search the record in an attempt to ascertain the bases for the district court's action. We therefore conclude that the appropriate procedure in this case is partially to remand to the district court to clarify the bases for its decision. We shall retain jurisdiction of the appeal and dispose of it in light of what the district court states.").
245. See, e.g., United States v. Fox, 930 F.2d 820, 824 (10th Cir. 1991) ("The ambiguity in the judge's ruling is important because the question determines the scope of our review.⋯ Accordingly, the cause is partially remanded to the district court, and the district judge shall clarify whether, in sentencing the defendant, he declined to depart from the guidelines because he felt he had no authority to do so or whether it was because he simply exercised his discretion not to do so.⋯ This court retains jurisdiction of the appeal.").
246. 543 U.S. 220 (2005).
247. See id. at 233 ("If the Guidelines as currendy written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range."). In crafting a procedure for dealing with Booker issues, not all circuits have adopted the response discussed in the text. See, e.g., United States v. Milan, 398 F.3d 445, 454 (6th Cir. 2005) ("fW]e think it proper that the court of appeals itself review a claimed error for whether it is plain, or whether it is harmless, and remand for resentencing in appropriate cases.").
248. Frequendy does not mean always. See, e.g., United States v. Pittman, 411 F.3d 813, 818 (7th Cir. 2005) ("We can skip the limited remand if we are highly confident that the judge would have imposed a different sentence ⋯").
249. United States v. Paladino, 401 F.3d 471, 482 (7th Cir. 2005)
250. see also, e.g., United States v. Ngo, 406 F.3d 839, 844 (7th Cir. 2005) ("In some cases the record will provide assurances that the sentencing judge did not impose a longer sentence because of the guidelines. This is not such a case. Here, the district court sentenced Ngo to the lowest term available under the applicable guideline range and noted that his career offender status had 'greatly increased' his sentence." (citations omitted))
251. United States v. Henningsen, 402 F.3d 748, 751 (7th Cir. 2005) (following Paladino).
252. Paladino, 401 F.3d at 483-84 (citations omitted). Judges Ripple and Kanne dissented from the denial of rehearing en banc in Paladino, arguing, inter alia, that the limited remand procedure would not ensure that the district court appropriately reconsidered each sentence.
253. See id. at 486 (Ripple, J., dissenting from denial of reh'g en banc) ("In all too many instances, the process scripted by the panel will serve as an invitation for the district court to give only a superficial look at the earlier unconstitutionally-imposed sentence.") id. at 488
254. Kanne, J., dissenting from denial of reh'g en banc) ("It is hard to see how, without a hearing and briefing tantamount to resentencing by normal vacatur and remand procedures, a district court could ever give 'an appropriate explanation' for its decision not to resentence.").
255. See id. at 484 (majority opinion) ("[S]ince we retain jurisdiction throughout the limited remand, we shall vacate the sentence upon being notified by the judge that he would not have imposed it had he known that the guidelines were merely advisory.").
256. See United States v. Crosby, 397 F.3d 103, 120 (2d Cir. 2005) ("From whatever final decision the District Court makes, the jurisdiction of this Court to consider a subsequent appeal may be invoked by any party by notification to the Clerk within ten days of the District Court's decision, in which event the renewed appeal will be assigned to this panel." (citation omitted)), modification on other grounds recognized, United States v. Lake, 419 F.3d 111, 113 n.2 (2d Cir. 2005) {"Fagans thus abrogated the dictum in Crosby that had indicated that a Crosby remand would be appropriate for application of the harmless error doctrine as well as the plain error doctrine."). The Second Circuit's technique is discussed further in Part I.D, infra.
257. See supra note 123 (discussing United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir. 2005) (en banc)).
258. So, for example, a majority of the en banc Fourth Circuit has stated: Broadly speaking, district courts have subject-matter jurisdiction over the first round of litigation proceedings, and the courts of appeal have jurisdiction over the second round. In that sense, then, in the language of Kontrick, different "classes of cases" fall within the "adjudicatory authority" of district courts and appellate
259. Brickwood Contractors, Inc. v. Datanet Eng'g, Inc., 369 F.3d 385, 393 (4th Cir. 2004) (en banc) (citations omitted).
260. See, e.g., United States v. Powell, 24 F.3d 28, 31 (9th Cir. 1994) ("[T]he divestiture rule was created to prevent two courts from simultaneously considering the same issues in, or aspects of, a case. However, given the rule's purposes to avoid confusion or waste of time, 'the rule should not be employed to defeat its purpose or to induce needless paper shuffling.' " (quoting United States v. Claiborne, 727 F.2d 842, 850 (9th Cir. 1984))).
261. United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996) ("The divestiture of jurisdiction rule is, however, not a per se rule. It is a judicially crafted rule rooted in the interest of judicial economy ⋯ Hence, its application is guided by concerns of efficiency and is not automatic")
262. United States v. Tovar-Rico, 61 F.3d 1529, 1532 (11th Cir. 1995). A corollary of this principle is that if the court of appeals has not acquired jurisdiction-because the notice of appeal is ineffective-then the district court has not lost jurisdiction.
263. See, e.g., Estate of Conners v. O'Connor, 6 F.3d 656, 658 (9th Cir. 1993) ("This transfer of jurisdiction from the district court to the court of appeals is not effected ⋯ if a litigant files a notice of appeal from an unappealable order.").
264. See, e.g., United States v. Brooks, 145 F.3d 446, 456 (1st Cir. 1998) ("The black- letter rule that the filing of a notice of appeal transfers authority over the case from the trial court to the court of appeals derives from a desire to prevent clashes between institutions that occupy different tiers within the federal judicial system.").
265. See, e.g., United States v. Ledbetter, 882 F.2d 1345, 1347 (8th Cir. 1989) ("The [ Griggs] rule serves two important interests. First, it promotes judicial economy for it spares a trial court from considering and ruling on questions that possibly will be mooted by the decision of the court of appeals.
266. Second, it promotes fairness to the parties who might otherwise have to fight a confusing 'two front war' for no good reason, Shewchun v. United States, 797 F.2d 941, 943 (11th Cir. 1986), avoiding possible duplication and confusion by allocating control between forums.")
267. In re Jones, 768 F.2d 923, 931 (7th Cir. 1985) (Posner, J., concurring).
268. See, e.g., Sheet Metal Workers' Int'l. Ass'n Local 19 v. Herre Bros., 198 F.3d 391, 394 (3d Cir. 1999) ("Exceptions to the rule in Griggs allow the district court to retain jurisdiction to issue orders staying, modifying, or granting injunctive relief, to review applications for attorney's fees, to direct the filing of supersedeas bonds, to correct clerical mistakes, and to issue orders affecting the record on appeal and the granting or vacating of bail.").
269. This statement, of course, refers only to situations in which the notice of appeal has become effective. Where a timely tolling motion has suspended the effectiveness of a notice of appeal, the Griggs rule does not prevent the district court from ruling on the motion, because the appeal has not yet become effective. Apart from the caveat about tolling motions, the statement in the text is guarded because in rare instances the court of appeals may permit the district court to modify the judgment after the filing of the notice of appeal.
270. For example, in Dixon v. Edwards, 290 F.3d 699 (4th Cir. 2002), the court of appeals reviewed a permanent injunction entered by the district court.
271. Id. at 704. The defendants had filed a notice of appeal and they also had moved in the district court for a stay of the injunction pending appeal. Rather than grant a stay of the injunction, the district court made what the court of appeals termed a "limited modification of its injunction."
272. Id. at 709. The court of appeals noted the existence of the Griggs rule but held it inapplicable to the modification of the injunction because, it reasoned, the district court's action "'aided in this appeal by relieving us from considering the substance of an issue begotten merely from imprecise wording in the injunction.
273. Id. at 709 n.14 (quoting Lytle v. Griffith, 240 F.3d 404, 407 n.2 (4th Cir. 2001)). Cases such as Dixon, however, constitute a rare exception. The general and well- established rule is that "a district court may not interfere with [the court of appeals'] jurisdiction by amending a decision that is under appellate review." United States v. McHugh, 528 F.3d 538, 540 (7th Cir. 2008).
274. See supra Part I.C.2 (discussing how courts have used limited remands).
275. United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994) ("Precedent thus allows us to seek supplementation of the record while retaining jurisdiction, without a mandate issuing or the need for a new notice of appeal.").
276. Id.
277. Id.
278. 28 U.S.C. § 2107(a) states that: Except as otherwise specified in this section, no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree. 28 U.S.C. § 2107(a) (2006). In criminal cases, some government appeals are governed by 18 U.S.C. § 3731, which provides that the appeal "shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted." 18 U.S.C. § 3731 (2006). Section 3742 of title 18, which (as modified by Booker) governs review of criminal sentences, contemplates that the party seeking review "file a notice of appeal in the district court for review of [the] sentence." 18 U.S.C. § 3742 (2006).
279. Jacobson, 15 F.3d at 22.
280. 28 U.S.C. § 2106 (2006).
281. In re Jones, 768 F.2d 923, 932 (7th Cir. 1985) (Posner, J., concurring).
282. Hybritech Inc. v. Abbott Labs., 849 F.2d 1446,1450-51 (Fed. Cir. 1988);
283. see also id. at 1451 ("Where a district court wishes to delay entering its findings and conclusions upon which it intends any appeal to be based, the district court may exercise its authority under Rule 58 of the Federal Rules of Civil Procedure to hold up entry of judgment until after the formal findings and conclusions are prepared.").
284. See, e.g., United States v. Paladino, 401 F.3d 471, 484 (7th Cir. 2005) (contemplating that the district court will obtain input from counsel before deciding whether it would have imposed the same sentence with the knowledge that the Sentencing Guidelines are advisory).
285. FED. R. CIV. P. 60(b).
286. The indicative ruling mechanism in criminal cases is similar to that described in the text for civil cases. Criminal Rule 33(b)(1) provides that "[i]f an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case." FED. R. CRIM. P. 33(b) (1);
287. see also United States v. Cronic, 466 U.S. 648, 667 n.42 (1984) (approving the indicative ruling mechanism for Rule 33 motions).
288. For an example of a case concerning sentence reductions under Criminal Rule 35(b), see United States v. Bingham, 10 F.3d 404, 405 (7th Cir. 1993) ("Where a party moves for sentence reduction under Rule 35(b) during the pendency of an appeal, it must request that the district court certify its inclination to grant the motion. If the district court is inclined to resentence the defendant, it shall certify its intention to do so in writing. The government (or the parties jointly) may then request that we remand by way of a motion that includes a copy of the district court's certification order."). A sentence may be corrected under Criminal Rule 35(a) despite a pending appeal.
289. See FED. R. APP. P. 4(b)(5).
290. See, e.g., LSJ Inv. Co. v. O.L.D., Inc., 167 F.3d 320, 324 (6th Cir. 1999) ("Though [case law] allow[s] the court to entertain a motion for relief even while an appeal is pending, [it does] not require the court to do so. Once the defendants appealed, it was not erroneous for the district court to let the appeal take its course.").
291. But see Puerto Rico v. SS Zoe Colocotroni, 601 F.2d 39, 42 (1st Cir. 1979) ("The district court is directed to review [Rule 60(b)] motions expeditiously, within a few days of their filing, and quickly deny those which appear to be without merit, bearing in mind that any delay in ruling could delay the pending appeal.").
292. For the Ninth Circuit's contrary view, see infra note 172.
293. See, e.g., Mahone v. Ray, 326 F.3d 1176, 1180 (11th Cir. 2003) ("[D]istrict courts retain jurisdiction after the filing of a notice of appeal to entertain and deny a Rule 60(b) motion."); Hyle v. Doctor's Assocs., 198 F.3d 368, 372 n.2 (2d Cir. 1999) ("Like most circuits, we have recently recognized the power of a district court to deny a Rule 60(b) motion after the filing of a notice of appeal from the judgment sought to be modified." );
294. Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1407 n.3 (5th Cir. 1994) ("Our court recognizes, however, 'the power of the district court to consider on the merits and deny a 60(b) motion filed after a notice of appeal, because the district court's action is in furtherance of the appeal.'" (quoting Willie v. Cont'l Oil Co., 746 F.2d 1041, 1046 (5th Cir. 1984)));
295. Venen v. Sweet, 758 F.2d 117, 123 (3d Cir. 1985) (noting with approval that "[m]ost Courts of Appeals hold that while an appeal is pending, a district court, without permission of the appellate court, has the power both to entertain and to deny a Rule 60(b) motion");
296. Zoe Colocotroni, 601 F.2d at 42 ("[W]hen an appeal is pending from a final judgment, parties may file Rule 60(b) motions directly in the district court without seeking prior leave from us. The district court is directed to review any such motions expeditiously, within a few days of their filing, and quickly deny those which appear to be without merit.");
297. Pioneer Ins. Co. v. Gelt, 558 F.2d 1303, 1312 (8th Cir. 1977) ("[T]he better rule, and the one that we approve, is that in such a situation the district court has jurisdiction to consider the motion and if it finds the motion to be without merit to enter an order denying the motion, from which order an appeal may be taken.");
298. see also Kusay v. United States, 62 F.3d 192,195 (7th Cir. 1995) ("Many cases, including United States v. Cronic, say that a district court may deny, but not grant, a post-judgment motion while an appeal is pending. Cronic involved a motion for a new trial under [Fed. R. Crim. P.] 33, but the principle is general." (citation omitted)).
299. See, e.g., Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004) ("To seek Rule 60(b) relief during the pendency of an appeal, 'the proper procedure is to ask the district court whether it wishes to entertain the motion, or to grant it, and then move this court, if appropriate, for remand of the case.'" (quoting Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984)));
300. Mahone, 326 F.3d at 1180 ("[A] district court presented with a Rule 60(b) motion after a notice of appeal has been filed should consider the motion and assess its merits. It may then deny the motion or indicate its belief that the arguments raised are meritorious. If the district court selects the latter course, the movant may then petition the court of appeals to remand the matter so as to confer jurisdiction on the district court to grant the motion.");
301. Karaha Bodas Co. v. Perusahaan Perambangan Minyak Dan Gas Bumi Negara, No. 02-20042, 2003 WL 21027134, at & z.ast;4 (5th Cir. Mar. 5, 2003) (per curiam) ("If the district court is inclined to grant the motion, it should issue a short memorandum so stating. Appellant may then move this court for a limited remand so that the district court can grant the Rule 60(b) relief.");
302. Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 359 n.l (6th Cir. 2001) ("If the district judge believes there should be relief from the judgment, the district court is to indicate that it would grant the motion. The appellant should then make a motion in this court for a remand of the case so that the district court can grant relief.");
303. Fobian v. Storage Tech. Corp., 164 F.3d 887, 891 (4th Cir. 1999) ("The competing concerns arising when a district court is inclined to grant a Rule 60(b) motion during the pendency of an appeal can be reconciled by requiring the district court to indicate its inclination to grant the motion in writing; a litigant, armed with this positive signal from the district court, can then seek limited remand from the appellate court to permit the district court to grant the Rule 60(b) motion.");
304. Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992) ("[B]efore the district court may grant a rule 60(b) motion, this court must first give its consent so it can remand the case, thereby returning jurisdiction over the case to the district court.");
305. Winter v. Cerro Gordo County Conservation Bd., 925 F.2d 1069, 1073 (8th Cir. 1991) ("If the district court wishes to grant the Rule 60(b) motion, movant's counsel should request the court of appeals to remand the case so that a proper order may be entered.");
306. Smith v. Pollin, 194 F.2d 349, 350 (D.C. Cir. 1952) ("[W]hen an appellant in a civil case wishes to make a motion for a new trial on the ground of newly discovered evidence while his appeal is still pending, the proper procedure is for him to file his motion in the District Court. If that court indicates that it will grant the motion, the appellant should then make a motion in this court for a remand of the case in order that the District Court may grant the motion for new trial.").
307. The Supreme Court has explicitly approved the indicative-ruling procedure in the context of motions under Criminal Rule 33. See Cronic, 466 U.S. at 667 n.42 ("The District Court had jurisdiction to entertain the motion and either deny the motion on its merits, or certify its intention to grant the motion to the Court of Appeals, which could then entertain a motion to remand the case.").
308. See, e.g., U.S. COURT OF APPEALS FOR THE D.C. CIR., HANDBOOK OF PRACTICE AND INTERNAL PROCEDURES 31 (2005), available at http://www.cadc.uscourts.gov/ internet/home.nsf/Content/Court+Rules+and+Operating+Procedures (follow "Handbook" hyperlink).
309. See Advisory Committee on Civil Rules, Civil Rules Suggestion Docket (Historical), http://www.uscourts.gov/rules/Civil-Docket.pdf [hereinafter Civil Rules Suggestion Docket];
310. Advisory Committee on Appellate Rules, Table of Agenda Items (May 2008), available at http://www.uscourts.gov/rules/apdocket.pdf.
311. See U.S. Courts, Minutes of Spring 2000 Meeting of Advisory Committee on Appellate Rules 30-31 (Apr. 13, 2000), http://www.uscourts.gov/rules/Minutes/ app0400.pdf.
312. See U.S. Courts, Minutes of Spring 2001 Meeting of Advisory Committee on Appellate Rules 59 (Apr. 11, 2001), http://www.uscourts.gov/rules/Minutes0401. pdf.
313. See U.S. Courts, Minutes of Standing Committee on Rules of Practice and Procedure 14-18 (Jan. 11-12, 2007), http://www.uscourts.gov/rules/Minutes/ST01- 2007-min.pdf.
314. See U.S. Courts, Minutes of Spring 2007 Meeting of Advisory Committee Appellate Rules 18-23 (Apr. 26-27, 2007), http://www.uscourts.gov/rules/Minutes/ AP04-2007-min.pdf. The proposal of an Appellate Rules provision enabled the Civil Rules Committee to remove from the proposed Civil Rules provision language directed to the proceedings in the court of appeals.
315. FED. R. CIV. P. 62.1 (proposed 2007), available at http://www. supremecourtus.gov/orders/courtorders/frcv09.pdf.
316. FED. R. APP. P. 12.1 (proposed 2007), available at http://www. supremecourtus. gov/orders/courtorders/frap09.pdf.
317. The Ninth Circuit has held that the district court lacks authority to deny a Rule 60(b) motion during the pendency of an appeal. See Smith v. Lujan, 588 F.2d 1304, 1307 (9th Cir. 1979), superseded on other grounds as recognized in, Miller v. Marriott Int'l, Inc., 300 F.3d 1061, 1064 n.l (9th Cir. 2002).
318. If one is assessing the question of the district court's authority by analogy to some other types of jurisdictional questions, one might consider it odd that the scope of the district court's authority extends only to one possible resolution of the motion (denial) and not to another (grant). When one thinks, for example, of federal court subject-matter jurisdiction, the presence of jurisdiction does not ordinarily turn on the court's chosen disposition. However, analogies to federal court subject-matter jurisdiction are not entirely apt when the question concerns the division of authority between the appellate and trial court. Here, a better analogy would be to the "mandate rule," which requires the district court to comply, on remand, with the mandate of the court of appeals. On such a remand, it may well be that the district court's choice among various dispositions is circumscribed by the mandate of the higher court. Seen in that light, the constraints set by the Griggs rule do not appear surprising.
319. See, e.g., Karaha Bodas Co. v. Perusahaan Perambangan Minyak Dan Gas Bumi Negara, No. 02-20042, 2003 WL 21027134, at & z.ast;5 (5th Cir. Mar. 5, 2003) (per curiam) ("If the district court decides that the Rule 60(b) motion should be denied, the district court can do so without disturbing appellate jurisdiction over the underlying judgment....");
320. Lairsey v. Advance Abrasives Co., 542 F.2d 928, 930 (5th Cir. 1976) ("[T]his circuit, along with other circuits and the commentators, has expressly recognized power in the district court to consider on the merits, and deny, a 60(b) motion filed after a notice of appeal, because the court's action is in furtherance of the appeal.").
321. As the Fourth Circuit has observed: If a Rule 60(b) motion is frivolous, a district court can promptly deny it without disturbing appellate jurisdiction over the underlying judgment. Swift denial of a Rule 60(b) motion permits an appeal from that denial to be consolidated with the underlying appeal. Such a procedure preserves judicial resources and eliminates unnecessary expense and delay, and therefore is surely in "aid of the appeal." Fobian v. Storage Tech. Corp., 164 F.3d 887, 890 (4th Cir. 1999) (citations omitted).
322. See, e.g., Winter v. Cerro Gordo County Conservation Bd., 925 F.2d 1069, 1073 (8th Cir. 1991) ("[T]he district court [may] consider a Rule 60(b) modon, filed after a notice of appeal, on the merits and... deny it. A separate appeal can thereafter be taken....");
323. id. at 1073 n.7 ("When this occurs the appealing party should file a new appeal and notify this court of the ruling on the Rule 60(b) motion so that any new evidence can be considered along with the appeal on the merits.").
324. Civil Rule 60(c)(1) provides that "[a] motion under Rule 60(b) must be made within a reasonable time-and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding." FED. R. CIV. P. 60(c)(1). A Rule 60(b) modon brought after the disposition of an appeal might in appropriate circumstances be viewed as brought within a reasonable time; the fact that the appeal was pending during the time before the motion was made could help to establish reasonableness. But such an argument would not affect the one-year time limit for motions under Civil Rule 60(b)(1), (2), or (3).
325. See, e.g., Fobian, 164 F.3d at 890 ("[I]t would be both inefficient and unfortunate to require the district court to wait undl the underlying appeal is completed before giving any indicadon of its desire to grant a pending Rule 60(b) motion. Such a prohibition would likely render the initial appeal poindess in cases where the district court ultimately grants the motion following appeal.").
326. Id. at 891.
327. Courts have noted that the district judge may sometimes need portions of the record in order to inform his or her consideration of the motion. See, e.g., Puerto Rico v. SS Zoe Colocotroni, 601 F.2d 39, 42 n.3 (1st Cir. 1979) ("If the district court needs portions of the record to review the motion adequately which, because of the pending appeal, are here, it may request those portions...."). It seems likely that such logistical questions will eventually become simplified by the use of electronic records.
328. FED. R. CIV. P. 62.1 (proposed 2007), available at http://www.uscourts. gov/rules/Supreme%20Court%202008/2008-CV-Clean-Rules.pdf.
329. Fed. R. App. P. 12.1 (proposed 2007), available at http://www.uscourts. gov/rules/Supreme%20Court%202008/2008-AP-Clean-Rules.pdf.
330. See id.;
331. FED. R. CIV. P. 62.1 (proposed 2007).
332. It is ordinarily the case that an appeal from denial of a Rule 60(b) motion does not permit a full challenge to the underlying judgment. See Browder v. Dir., Dept. of Corr., 434 U.S. 257, 263 n.7 (1978) ("The Court of Appeals may review the [Rule 60 (b) ] ruling only for abuse of discretion... and an appeal from denial of Rule 60 (b) relief does not bring up the underlying judgment for review."). The Seventh Circuit has suggested, however, that the ordinary approach might not apply where an unconditional remand leads to injustice: Suppose that the district court, on remand, thinks better of its inclination to grant the Rule 60(b) motion, and denies it; is the plaintiff remitted to the limited appellate review conventionally accorded rulings on such modons? And what about the defendant in a case in which the Rule 60(b) motion is granted before he has had a chance to argue to the appellate court that the original judgment was correct-is he, too, remitted to the limited appellate review of such grants? Probably the answer to both questions is "no," the scope of review of Rule 60(b) orders is flexible and can be expanded where necessary to give each party a full review of the district court's original judgment.
333. Boyko v. Anderson, 185 F.3d 672, 674 (7th Cir. 1999). A different way to address such an injustice might be to conclude that such a situation-i.e., a situation in which a district judge indicates the intention to grant a Rule 60(b) motion if the court of appeals remands, and then (upon remand) changes course and denies the motion- constitutes one of the rare instances in which recall of the mandate might be justified. See generally 16 WRIGHT ET AL., supra note 7, & sect; 3938, at 725-26 (discussing recall of mandate)
334. FED. R. APP. P. 12.1 (proposed 2007).
335. FED. R. CIV. P. 11.
336. Appeals from denials of Rule 60(b) motions are conceptually distinct from appeals from the underlying judgment. Because appellate judges are accustomed to this distinction, it seems likely that they usually would avoid considering, in connection with the underlying-judgment appeal, matter that is properly only a part of the record on the Rule 60(b) appeal. But there may be instances when an appellate judge sees in the record on the Rule 60(b) appeal information that-though not justifying a conclusion that the denial of Rule 60(b) relief was an abuse of discretion-might lead the judge to conclude that the result below was unjust. In such an instance, if the two appeals are consolidated the judge's consideration of the Rule 60(b) appeal might lead him or her to take a particularly close look at the possible grounds for reversal on the appeal from the underlying judgment.