Over eighty years later the Court stated in dictum in McKane v. Durston that there is no constitutional protection for criminal appeals under the Fourteenth Amendment’s Due Process Clause. McKane v. Durston, 153 U.S. 684, 687 (1894). Much later, the Court announced that the right to appeal is “purely a creature of statute” and that a criminal defendant must claim statutory authority to exercise the right. Abney v. U.S., 431 U.S. 651, 656 (1977). Later Supreme Court decisions have agreed with McKane and Abney that a criminal defendant does not possess a general constitutional right to an appeal. See, e.g., Evitts v. Lucey, 469 U.S. 387, 409 (1985); Halbert v. Michigan, 545 U.S. 605, 610 (2005).
In criminal cases, most government appeals rely on 18 U.S.C. § 3731, which authorizes appeals from orders “dismissing an indictment or information,” “granting a new trial after verdict or judgment,” “suppressing or excluding evidence or requiring the return of seized property,” “granting release of a person charged with or convicted of an offense,” or “denying a motion for revocation of, or modification of the conditions or, a decision or order granting release.” The U.S. Court of Appeals for the Eleventh Circuit has elaborated that the right to appeal is a product of statute, not the Constitution. See, e.g., U.S. v. Holmes, 680 F.2d 1372, 1373–74 (11th Cir. 1982), rev’d on other grounds, Ortega-Rodriguez v. U.S., 507 U.S. 234 (1993). In the absence of statutory authorization for an appeal, the federal appellate court will lack jurisdiction to hear the appeal. See, e.g., Aguilera v. District Dir., 423 F. App’x 916, 919 (11th Cir. 2011). Similarly, because a federal appellate court’s jurisdiction to hear an appeal arises from congressional authorization, an appellate court lacks the power to extend filing deadlines unless authorized by Congress. See Bowles v. Russell, 551 U.S. 205, 205 (2007); see, e.g., Andrews v. Colo., 379 F. App’x 795, 797 (10th Cir. 2010) (recognizing the absence of a constitutional right to appeal); U.S. v. Eggert, 624 F.2d 973, 974 (10th Cir. 1980) (noting that the right of appeal is purely a creature of statute, and the appellant must come within the terms of a statute authorizing an appeal).
While the circuit courts of appeals have cited McKane with approval for the general rule that a criminal defendant lacks a constitutional right to appeal, some have attempted to qualify or extend McKane. See, e.g., Holton v. Ind. Horse Racing Comm’n, 398 F.3d 928, 929 (7th Cir. 2005); U.S. v. Brooks, 245 F.3d 291, 293 (3d Cir. 2001); Talamantes-Penalver v. I.N.S., 51 F.3d 133, 135 (8th Cir. 1995); U.S. v. Coke, 404 F.2d 836, 843 (1968).
That there are statutory limits on the right to appeal has also been applied in civil matters. For example, the Supreme Court has held that the Due Process Clause does not imply a right to appeal in civil actions as long as due process has been observed in the lower proceedings. Ohio ex rel. Bryant v. Akron Metro. Park Dist. for Summit County, 281 U.S. 74, 80 (1930). Instead, appeals as of right in civil cases can only arise as a product of applicable federal statutes. See Abney, 431 U.S. at 656. The Court has further explained that, because federal appellate courts are courts of limited jurisdiction, they lack the authority to extend time periods to appeal unless specifically authorized to do so by federal statute. See Bowles, 551 U.S. at 205 (stating that “[b]ecause Congress decides, within constitutional bounds, whether federal courts can hear cases at all, it can also determine when, and under what conditions, federal courts can hear them”).
Practitioners are reminded that, while there is a general statutory right to appeal final orders, certain kinds of decisions are not subject to appellate review because of statutory restrictions that Congress has imposed. If Congress decides to withdraw federal jurisdiction, the judicial inquiry is restricted to determining whether the action before the Court is within the class of controversies that Congress intended to remove from judicial review. See First Nat’l Bank of Scotia v. United States, 530 F. Supp. 162, 167 (D.D.C. 1982). Jurisdictional statutes are construed “with precision and fidelity to the terms by which Congress has expressed its wishes.” Palmore v. United States, 411 U.S. 389, 396 (1972); Henry v. Office of Thrift Supervision, 835 F. Supp. 583, 584 (D. Kan. 1993).
Reviewing jurisdictional authority turns on the plain language of the statutory text and federal courts are not free to fashion their own exceptions to a statute’s clear, preclusive language. If Congress has clearly divested federal courts of jurisdiction over the matter, the federal appellate court will not exercise jurisdiction.
For example, 28 U.S.C. § 1447(d) prohibits appellate review of an order remanding a case to the state court from which it was removed. This prohibition applies where a remand is based on lack of subject-matter jurisdiction and the removal procedures were followed correctly. Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 230 (2007); Foster v. Hill, 497 F.3d 695, 697 (7th Cir. 2007) (citing Powerex). Likewise, under Eighth Circuit case law, parties can still seek review of a remand order despite Section 1447(d) when another statute authorizes review. In re Resolution Trust Corp., 888 F.2d 57, 58–59 (8th Cir. 1989).
The Supreme Court has also observed that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (28 U.S.C. § 1252(a)(2)(B)(ii)) prohibits judicial review of certain discretionary decisions by the Attorney General, such as a decision to grant or deny a motion to reopen a case before the Board of Immigration Appeals. See 28 U.S.C. § 1252(a)(2)(B)(ii); Kucana v. Holder, 558 U.S. 233, 233 (2010) (holding the provisions stripping jurisdiction in 28 U.S.C. § 1252(a)(2)(B)(i) and (ii) did not apply to agency decisions made discretionary by regulation). In so concluding, the Court noted that there is a “presumption favoring judicial review of administrative action,” and that when a statute is reasonably susceptible to two different interpretations, the Court adopts the reading “that executive determinations generally are subject to judicial review.” See Kucana, 558 U.S. at 829–30.
Congress has also immunized other agency decisions from appellate review. For example, the “discretionary function” exception to the Federal Tort Claims Act (FTCA) exempts government employees acting with the proper due care who exercise or fail to exercise a discretionary function. See 28 U.S.C. § 2680(a). In United States v. S.A. Empresa de Viacao Aerea Rio Grandense, the Court held that the discretionary function exception extends to “all claims based upon the execution of a statute or regulation or the performance of a discretionary function.” See United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 809 (1984).
Federal appellate courts have tempered these jurisdiction-stripping statutory provisions by establishing various exceptions to them, and have explained how they function in each Circuit’s case law. The First Circuit has held, for example, in Montijo-Reyes v. United States, 436 F.3d 19 (1st Cir. 2006), that in considering how to apply the discretionary function to the FTCA, courts must ask first whether the conduct is discretionary, and second whether the exercise of discretion involves or is susceptible to policy-related judgments. See also Muniz-Rivera v. United States, 326 F.3d 8, 15 (1st Cir. 2003).
The Second Circuit has emphasized, however, that even erroneous remand orders issued under Section 1447(c) are unreviewable on appeal. See Price v. J & H Marsh & McLennan, Inc., 493 F.3d 55, 61 (2d Cir. 2007).
The Alternative Dispute Resolution Act of 1998 is another statutory example of a statute that contains a jurisdiction-limiting provision that, upon entry of judgment on an arbitration award under that act, “the judgment shall not be subject to review in any other court by appeal or otherwise.” 28 U.S.C. § 657.
Another example of a jurisdiction-limiting statute is the Immigration and Nationality Act (INA). The courts of appeal have determined that they lack jurisdiction to review a claim brought under the INA, 8 U.S.C. § 1154(a)(1)(I)(ii)(II), to compel the Citizenship and Immigration Services (CIS) to process diversity visa applications, and that they also lack jurisdiction to compel them by way of writs of mandamus. Perejoan-Palau v. U.S. Citizenship & Immigration Servs. (USCIS) of U.S. Dep’t of Homeland Sec., 684 F. Supp. 2d 225, 231 (D.P.R. 2010); Akins v. Saxbe, 380 F. Supp. 1210, 1217 (D. Me. 1974) (citing J.C. Penney Co. v. U.S. Treasury Dep’t, 439 F.2d 63, 68 (2d Cir. 1971)).
The Court has also concluded that the Financial Institutions Supervisory Act (FISA) bars judicial review of a pending administrative action that the Board of Governors of the Federal Reserve System brings against a bank holding company. Bd. of Governors of Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 43–44 (1991). The Court reasoned that FISA provided the holding company with meaningful and adequate opportunity for judicial review of the validity of challenged regulations if the Board found that it had violated regulations. Id. The Court of Appeals had found that Section 1818(i)(1) of the FISA precludes judicial review of many Board actions, but exercised jurisdiction in that litigation anyway based on its reading of Leedom v. Kyne, 358 U.S. 184 (1958). Kyne concerned an action challenging a National Labor Relations Board (NLRB) determination that a unit including both professional and nonprofessional employees was appropriate for collective-bargaining purposes. The Board determination directly conflicted with a provision of the National Labor Relations Act. Id. at 184. The Act, however, did not expressly authorize any judicial review. Id. The Court explained in MCorp Fin., Inc. that Kyne differed from FISA litigation in that, central to the Kyne decision was the fact that the Board’s interpretation of the Act would wholly deprive the union of a meaningful and adequate means of vindicating its statutory rights. 502 U.S. at 43–44. By contrast, FISA expressly provided MCorp with a meaningful and adequate opportunity for judicial review of the validity of the source of strength regulation. If and when the Board finds that MCorp has violated that regulation, MCorp would then have, in the Court of Appeals, an unquestioned right to review of both the regulation and its application. Id. A second difference in the FISA litigation from Kyne was the clarity of the congressional preclusion of review in FISA. Meanwhile, while the NLRB contended in Kyne that a statutory provision providing for judicial review implied, by its silence, a preclusion of review of the contested determination, Congress had spoken clearly and directly in FISA: “[N]o court shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of any [Board] notice or order under this section.” MCorp Fin., Inc., 502 U.S. at 43–44 (citing 12 U.S.C. § 1818(i)(1) (1988 ed. Supp. II)).
The Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) has also been construed to prevent a court of appeals from reviewing the Office of Thrift Supervision’s (OTS) jurisdiction in underlying permanent cease and desist proceedings. However, a court can address the claims of a holding company against whom the OTS has issued a cease and desist order regarding the OTS’s jurisdiction to issue the temporary order. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738 (D.C. Cir. 1995). The court did so by examining OTS jurisdiction in actions brought under both temporary and permanent cease and desist provisions of the FIRREA and concluded that the OTS’s authority to issue temporary orders explicitly depended upon its jurisdiction in permanent cease and desist proceedings. Id. at 739–40.
The point to this is that, even with final, seemingly appealable orders, there are numerous statutes that limit federal appeal jurisdiction, appellate courts will scrupulously adhere to those provisions limiting appellate jurisdiction, and counsel is urged to research them thoroughly before filing the notice of appeal. See, e.g., 28 U.S.C. § 1605A (providing that “appeals from orders not conclusively ending the litigation may only be taken pursuant to Section 1292(b) of this title”); 28 U.S.C. § 2253 (habeas corpus proceedings subject to special limits on appellate jurisdiction).
Keywords: litigation, appellate practice, right to appeal, statutory jurisdiction
Dorothy F. Easley is president of Easley Appellate Practice PLLC in Miami, Florida.