Here is a typical scenario. You appeal your case to a federal or state appellate court. The briefing is done and dusted. The case is argued. Everyone is patiently waiting for the appellate court’s decision. Then — voila — the e-filing notice of the court’s decision arrives in your email inbox. You won!
After sharing the good news with your client, you gleefully march over to the local courthouse the next day, wonderful appellate opinion in hand, and ask the trial court to carry out the appellate court’s directives. Sounds good, right?
Wrong. It is a common misconception—particularly among those who infrequently practice in the appellate courts — that an appellate court’s decision is immediately enforceable. I have seen practitioners and even trial judges and state agency officials slip up because they fail to understand this.
In fairness, appellate court terminology can easily confuse the uninitiated. These courts write decisions ending with “affirmed,” “reversed,” “vacated,” “remanded” and “jurisdiction relinquished.” To the untrained eye, this suggests the appellate court has passed the jurisdictional baton back to the trial court. Not so. As Pennsylvania’s Superior Court has explained, appellate decisions “are not necessarily the final word on appeal.” The concept “jurisdiction relinquished” is really just shorthand for “jurisdiction relinquished, if and when remand becomes appropriate by an operation of law.”
In federal court, jurisdiction follows the mandate, which is issued under Federal Rule of Appellate Procedure 41. The court of appeals does not issue that until seven days after the time to move for appellate rehearing expires or seven days after rehearing is denied. The losing party also can ask the court of appeals to stay the mandate while the party petitions the U.S. Supreme Court for a writ of certiorari. During these steps, and until the mandate is issued, the district court generally cannot act.
In state court, using Pennsylvania as an example, a trial court may not implement an appellate decision until formal “remand of the record” under Pennsylvania Rule of Appellate Procedure 2591. Once that happens, the trial court is to “proceed in accordance with the judgment or other order of the appellate court.” As Pennsylvania’s Commonwealth Court has described it, this rule means a trial court is authorized “to proceed with the appellate court’s directives only after remand of the record.” As in federal court, the state court remand may be delayed while the losing party seeks further consideration from the intermediate appellate court or discretionary review by the state’s highest court or the U.S. Supreme Court.
This rule of appellate jurisdiction is iron-clad. In a recent (albeit extreme) case, the Superior Court found a trial court order invalid because the Superior Court’s own remand was premature. The losing party timely petitioned for discretionary review by the Pennsylvania Supreme Court. That should have prevented the Superior Court from issuing the remand—but did not. The Superior Court found a later-issued trial court order was invalid because of the premature and thus invalid Superior Court remand.
Like every rule, there are exceptions. A litigant also can obtain temporary or emergency relief if a trial court needs to act while appellate proceedings are ongoing or before the appellate court’s remand.
In the end, however, it remains that an appellate court’s statement of disposition in its decision is not a present sense direction. It is a statement of future operation, after the mandate or remand. So, in this rare situation, a court actually does not mean what it says… at least not yet.
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