Tim Hootman
Texas Appellate Attorney
2402 Pease Street
Houston, Texas 77003

Tel: 713.247.9548
Cell: 713.366.6229

State Seal of Texas

Texas Courts Online


Federal Appeals

The unique technicalities of a federal Court of Appeals case.

If your appeal is a “federal case” you should ask the following questions to determine how the unique technicalities of federal procedure affect your case and the arguments that your lawyer should be making. 

Which federal Court of Appeals will hear my case? 

Although there are twelve federal Courts of Appeals in America, most Texas federal appeals (but not all) go to the U.S. Fifth Circuit Court of Appeals in New Orleans. No matter which court your case ends up in, the procedures are similar (with important exceptions) because all of the federal Courts of Appeals are all regulated by the Federal Rules of Appellate Procedure. A map of the federal Court of Appeals system shows that the U.S. Fifth Circuit Court of Appeals covers Texas, Louisiana, and Mississippi—for that reason most Texas federal appeals go to New Orleans (see map). However, it is definitely possible for a Texas case to end up in one of the other U.S. Circuit Courts of Appeals.

Why is my appeal even in federal court? 

Often a case should not be in federal court in the first place. This means that on appeal the argument should be made that because the trial court did not have jurisdiction in the first place, the entire case should be dismissed even if you lost at trial. The subject of federal trial court jurisdiction can get amazingly complex, but the following are the basics surrounding these important types of issues:

1.   The “Case and Controversy Requirement.  Article III of the federal constitution gives the federal courts power to rule only over “cases” and “controversies” of specific types, which means that matters that are not a “case” or “controversy” cannot be ruled on by the federal courts no matter what—there is no jurisdiction. If a federal trial court rules when there is no “case” or “controversy” as those terms are defined by the federal appellate decisions, the case should be reversed on appeal on purely technical grounds. The Case and Controversy Requirement is highly procedural and has been subdivided by the appellate opinions into various other categories known as the “Finality Doctrine,” the “Advisory Opinion Prohibition,” the “Standing Doctrine,” the “Ripeness and Mootness Doctrines”, etc. All of these categories make up important bodies of procedural law that can directly impact whether you win your federal appeal, if properly argued.

2.  “Diversity jurisdiction” refers to a dispute between parties with “diversity of citizenship.”  Diversity jurisdiction refers to parties from different states.  A hot area for appellate review is the “Fraudulent Joinder Doctrine,” which prevents parties from improperly joining other parties to create federal jurisdiction. Just because the party suing you claims “diversity” does not mean there is in fact diversity. This distinction can make the difference of winning and losing your appeal. 

3.  “Exclusive jurisdiction”.  In most cases federal jurisdiction is not exclusive; state courts generally have concurrent authority with federal courts.  Federal jurisdiction is exclusive however in some federal criminal cases, antitrust, bankruptcy, copyright, suits against the United States, and some admiralty matters. Thus, most cases do not necessarily need to be filed in federal court, because state court also has jurisdiction.  This point can be important regarding how your federal appeal is argued. 

4.  “Personal jurisdiction”.  The due process clause of the federal constitution, as interpreted by the appellate courts, provides that a court may not exercise jurisdiction over a person or business unless there is “personal jurisdiction”.  This means that you must have significant contacts with the jurisdiction where you have been sued before you can be forced to answer in that particular court.  This is a majorly important battleground for many appeals, especially if you are from Texas and have been sued in another state or federal court. 

5.  “Abstention doctrine.”  Often while a legal issue is pending in state court a federal court will be asked to decide the same or similar question.  Under the useful abstention doctrine, federal Courts of Appeals will sometimes refrain from ruling on the issue to allow the state courts more time to resolve the issue.  This doctrine can sometimes be useful to convince a federal Court of Appeals to avoid ruling on a particular case.  Obviously, such a result can be very beneficial.  There are many variants of the abstention doctrine that you might be able to use on your federal appeal.  Of course, these arguments have to be properly developed in your federal appeal to be taken advantage of.

There is a blizzard of other jurisdictional and “justiciability” rules, doctrines, and principles that can come into play in your federal appeals, such as “ancillary jurisdiction,” “concurrent jurisdiction,” “consent jurisdiction,” “continuing jurisdiction,” “subject-matter jurisdiction,” “original jurisdiction,” “pendent jurisdiction,” “supplemental jurisdiction,” “universal jurisdiction,” “exhaustion requirement,” “forum non conveniens,” to name a few.  All of these specialty areas of the law can be very useful in arguing your federal appeal. But again, the courts not apply these rules to a case unless they are properly argued on appeal.

When and how does my federal case get sent to the federal Court of Appeals? 

The short answer is that a federal Court of Appeals acquires jurisdiction when a notice of appeal is filed in the federal trial court. The problem, however, is that federal law regarding notices of appeal is fraught with technical traps that can derail your attempted appeal.  The notice must be timely, but filing deadlines vary depending on what happened in the trial court and what is being appealed.  Sometimes the notice may be filed regarding “interlocutory” orders but generally only regarding “final” orders.  On the other hand, the “finality” of a particular order is not always clear and therefore subject to debate on appeal.  The strange wording of Rule 4—the rule regulating the form of a federal notice of appeal—requires that some cases require multiple notices of appeal depending on what is being taken up for review.  All of these hyper-technical rules regarding the federal notice of appeal can make or break your federal appeal.

What law applies to my federal appeal? 

The procedural law applicable to a case pending in a federal Court of Appeals starts with the Federal Rules of Appellate Procedure.  The substantive law applied to a federal appeal can be federal substantive law, Texas substantive law, or the substantive law of another jurisdiction, such as California or Mexico, or Missouri or Canada.  This is seems illogical, but is definitely the case.  The determination of which substantive law applies can dictate the outcome of your federal appeal, and therefore this oddity of federal appellate law, which can be surprisingly complex (it’s called the Erie Doctrine) is of crucial importance to winning your appeal in federal court. 

If my trial lawyer did something wrong in the trial court can it be fixed in a federal Court of Appeals? 

The short answer is yes, sometimes under the useful federal appellate Doctrine of Plain Error.  As discussed on the Civil Appeals page of this website, a trial lawyer must raise a specific and timely objection to a particular event that is occurring in the trial court to be able to raise the complaint on appeal.  This raise-it-or-lose-it rule is especially harsh in Texas Courts of Appeals, although there are sometimes ways around it.  In the federal Courts of Appeals the Doctrine of Plain Error is a possible way out of the thorny situation of your trial lawyer not properly preserving error in the trial court.  Like most federal rules, the Doctrine of Plain Error is wildly complex and varies dramatically depending on exactly what happened in the trial court.  But, luckily, if your case is in a federal Court of Appeals and your trial lawyer dropped the ball, the doctrine of plain error may save your case, if it is properly utilized on appeal.

Let’s summarize. 

Your Texas case can end up in any of eleven federal or fifty state appellate court systems.  (That in itself is amazing!)  And your Texas case can be processed through the federal procedural law or through the procedural law of another state, but with the substantive law of any wide range of possible jurisdiction, such as the federal statutory or common law, or the law of one of the states if not Texas, or the law of a foreign nation.  (That is even more amazing!)  Even if your case takes the “easy” route of remaining in Texas, and Texas state or local federal procedural and substantive laws apply, the process is nevertheless daunting.  The upside to this blizzard of confusion is that the complexity can actually help you win your case if you know how to use the rules and procedure to your advantage.  Hootman has helped many clients with routine federal appeals and with more complex trans-jurisdictional conflicts of law problems; he can help you too.

Contact appellate lawyer Tim Hootman to handle your federal appeal at 713.247.9548 or 713.366.6229 (cell) or send him an email(thootman2000@yahoo.com).


Copyright © Timothy A. Hootman. 
All Rights Reserved.
Website Maintained by
Dan Cutts