Power, Protocol, and Practicality: Communications from the District Court during an Appeal

INTRODUCTION I. COMMUNICATIVE RULINGS A. Incidental Communications 1. Gatekeeping Decisions 2. Other Ancillary Rulings B. Intentional Communications C. Invited Communications 1. Extraordinary Writs 2. Limited Remands D. Assessing Communicative Rulings II. INDICATIVE RULINGS A. Current Practice B. The Proposed New Rules C. Assessing Indicative Rulings CONCLUSION INTRODUCTION It is a commonplace that when a litigant files a notice of appeal from the judgment of a district court, authority over the matters encompassed within the appeal passes from that court to the court of appeals. (1) As the Supreme Court stated in Griggs v. Provident Consumer Discount Co., (2) "a federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously." (3) Thus, "[t]he filing of a notice of appeal is an event of jurisdictional significance--it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." (4) But, as the Supreme Court has suggested in other contexts, (5) describing this transfer in jurisdictional terms may cause confusion. In particular, the term "jurisdiction" might suggest that the vesting of appellate control over the appeal entirely deprives the district court of the ability to communicate any views that bear upon the merits of the appeal. (6) This Article takes issue with that absolutist view. It is true that control passes from the trial court with the filing of a valid notice of appeal, and that the trial court generally must not act with respect to the subject matter of the appeal except to facilitate the appeal's progress. But that does not mean that the district court's views on the case are invariably set in amber as of the filing of the notice of appeal. In this Article, I survey the opportunities for the district court to communicate to the court of appeals its views on matters touching the merits of the appeal, even after the notice is filed. Part I.A observes that a number of matters, ancillary to the appeal, that are entrusted to the district court may permit or require the district judge to reflect on the merits of the appeal. Part I.B notes that, even apart from such ancillary rulings, the district court may sometimes add to its prior statements on the merits of the case even after the filing of the notice of appeal. And Part I.C discusses instances in which the court of appeals may invite or direct such augmentation. The activities canvassed in Part I may provide opportunities for the district court to opine on merits-related issues while the appeal is pending, but--except in rare instances at the margins--they do not permit the district court to alter the judgment that is under review, because it is well established that such an alteration lies beyond the power of the lower court during the appeal. Part II describes a mechanism by which the district court can nonetheless express its view on a request for such relief: when asked for relief that it lacks power to grant because of the appeal, the district court may indicate its view that the request has merit. That "indicative ruling" can then be communicated to the court of appeals, which can decide whether to remand for the purpose of permitting the district court to grant the motion. As this summary suggests, the interaction between the trial and appellate court, during an appeal, can be much more dynamic than a bald quotation of the Griggs rule might suggest. The boundaries of the trial court's authority are, of course, set by the Griggs rule; the lower court must not take actions that would impinge on the appellate court's control over the judgment that is under review. The nuances of those boundaries, though, are influenced by practical considerations--such as efficiency and fairness to litigants--as well as by concerns stemming from notions of the appropriate judicial role. …