Appellate Advocacy
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Class notes
COURTS/APPEALS STRUCTURE (Part I):
1. Federal Courts
Article III vs. Article I: Courts may be created under and judicial officers appointed and function under either of two articles of the Constitution. Article III is the judicial power article and carries with it Constitutional limitations (subject matter as well as case and controversy requirements) as well as Constitutional protections (judges are appointed for life and their pay cannot be reduced). Article I is the legislative power article and does not carry the Article III limitations or the Article III benefits. Judges do not have life tenure, can be fired, can have their pay reduced; no case and controversy limitation.
Federal courts are courts of limited jurisdiction. Where the judicial power is being exercised, there must be an actual case or controversy and cases are limited to the categories provided by law (federal question, diversity, etc.; NO family cases, etc.). See Article III, sec 2.
a. Trial courts:
91 United States District Courts(within states, D.C. and Puerto Rico)
DOWNLOAD HANDOUT District Court directory
(right-click on filename and choose "Save ... As" from menu)
(requires Adobe Acrobat Reader)
DOWNLOAD HANDOUT DNJ Vicinages
Three types of judicial officers in US District Courts:
- US District Judges - chosen by President with the advice and consent of Senate (28 USC 133). These judges are Article III judges.
- magistrate judges serve as adjunct judicial officers, chosen by majority vote of district judges for eight-year terms (28 USC 631 et seq.).
- bankruptcy courts are created as adjuncts to (i.e., within) the District Courts; judges initially appointed by President with the advice and consent of Senate but only for a 14-year term (i.e. not Article III lifetime tenure); 1984 statute revised this so that judges are now appointed by Circuit Courts for all districts within the Circuit. -- still 14-yr term -- see 28 USC 151 et seq.
Three territorial courts - called United States District Courts -- (Guam [48 USC 1424], Virgin Islands [48 USC 1611], No. Mariana Islands [48 USC 1821], used to be one for the Panama Canal Zone) -- In most instances, these courts function as U.S. district courts, but they were not created under Article III of the Constitution (judicial power) and perhaps not even under Article I (legislative power). There has been an argument that they are actually created under Article IV, sec. 3 (“The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States). The judges of the territorial courts are appointed by the President with the advice and consent of the Senate for terms of 10 years.
Special trial courts:
- Court of Federal Claims - has jurisdiction over all non-tort cases of claims against US and all cases arising from contracts, express or implied, with US and its agencies; excl jurisd to grant declaratory judgments in such cases. Judges are appointed by the President with the advice and consent of the Senate but the court is expressly designated Article I court --28 USC 171 & et seq.
NOTE: Either house of Congress may refer a claim to chief judge where there's no legal remedy, asking for recommendation as to whether there's an equitable basis on which Congress itself should compensate claimant. This is essentially the only advisory opinion permitted in federal system and it’s in part because this is an Article I court
- Court of International Trade (previously called U.S. Customs Court) -- has exclusively statutory jurisdiction over such matters as tariff protests, customs broker’s licenses, rulings as to importation of goods, dumping of goods, etc., usually under binational or international agreements. Judges are appointed by the President with the advice and consent of the Senate & court is expressly designated as Article III court (28 USC 251 & et seq).
- Three-Judge District Courts - narrow and specialized trial jurisdiction created by statute (e.g. internet decency statutes) or in any case brought to challenge the apportionment of Congressional seats or a statewide legislative body (28 USC 2284). Where such a case is brought, the district judge to whom the case is assigned sits with two other judges designated by Chief Judge of Circuit.
- Foreign Intelligence Surveillance Court - Under the Patriot Act, the government can seek approval for special national security wiretaps from any one of a panel of 11 district judges from seven circuits chosen by the Chief Justice to pass on such applications.
b. Appeals courts:
13 United States Circuit Courts (1st-11th, D.C., Federal) -- geographic EXCEPT for Federal Circuit, which has very specific appeals jurisdiction set out in Title 28 of the US Code. Generally speaking, it includes all cases from the Court of Federal Claims, all cases from the Court of International Trade, a variety of copyright and trademark cases, a variety of customs and tariff cases, appeals from the Merit Systems Protection Board and the like. NOTE: All judges of all circuit courts are Article III judges -- 28 USC 44.
DOWNLOAD HANDOUT District/Circuit Court map
Special appeals courts:
- Court of Appeals for the Armed Forces -- entirely separate from usual federal court structure, only hears cases under Uniform Code of Military Justice within military jurisdiction - Created by statute, judges must be civilians appointed by president withadvice and consent of Senate; court is created expressly as an Article I court & judges named for 15-year terms (10 USC 941, 942 & et seq)
- US Tax Court - Article I court established to review only cases where Commissioner of IRS has determined there is a deficiency in income, estate and gift taxes & deficiency notice has been sent (cases can be taken to Tax Court or District Court at taxpayer option: to Tax Court as appeal of Commissioner´s judgment without paying tax assessment; to District Court as suit for refund after paying tax assessment) - statute expressly notes it´s Article I (26 USC 7441), appointed by president withadvice and consent of Senatefor 15-year terms (26 USC 7443)
- Court of Veterans Appeals - Article I court created in 1988 -- exclusive jurisdiction over decisions of Board of Veterans' Appeals on all types of veterans' and survivors' benefits, mainly disability benefits, and also loan eligibility and educational benefits. Decisions appealed to Court of Appeals for the Federal Circuit.
- Foreign Intelligence Surveillance Court of Review - (50 USC 1803) In the event that a wiretap request is rejected by the Foreign Intelligence Surveillance Court, the government can appeal to a special review panel consisting of three judges selected by the Chief Justice.
SUPREME COURT - Supreme Court has appellate jurisdiction over state and federal courts, plus limited original jurisdiction (constitution and statute track and jurisdiction is over ambassadors, consuls & other foreign officials, between US and State, between State & citizens of 2d State or foreign nationals -- cf. Article III, sec. 2 & 28 USC 1251) - Jurisdiction is both original and exclusive in cases between two or more states; jurisdiction is original but not exclusive in other categories per 28 USC 1251. Supreme Court may also hear a certified question from a Circuit Court; if it chooses to do so, it may on its own motion or the motion of any party choose to take the entire matter in controversy.
c. Administrative:
Federal administrative agencies also produce decisions requiring review on appeal. Review of decisions by Federal administrative agencies usually are heard by the appeals board within the agency (if there is one) or the agency itself. Once there is "final agency action" appeals can usually be taken to the appropriate United States Court of Appeals under 28 USC 1296.
However, Congress has provided that appeals from some agencies may be taken to the appropriate United States District Court (example: denial of social security and SSI disability benefits).
Overview of Appeals Structure
- (magistrate to) district to circuit (as of right) to Supreme (by certiorari)
- bankruptcy to district (right) to circuit (as of right) to Supreme (certiorari)
- tax court to circuit (as of right) to Supreme (certiorari)
- Court of Federal Claims to Federal Circuit (as of right) to Supreme (certiorari)
- Court of International Trade to Federal Circuit (as of right) to Supreme (certiorari)
- three-judge district court to Supreme (as of right, few cases any more)
- Administrative - agency to circuit (as of right) to Supreme (certiorari)
DOWNLOAD HANDOUT Federal Appeals Flow Chart
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