Appellate Dispositions and Next Steps - The Writ

You and your client have been waiting for months, if not years, for an appellate decision. But sometimes when that decision issues, it leaves you scratching your head as to what happens next. Is the holding unclear? Did the Court overlook a material fact or misapprehend an aspect of the law? Does the manner in which the case was decided set the stage for further extensive proceedings to discern its consequences?

Seldom does an appellate decision simply bring a case with a long history to a close. And, sometimes, it provokes more wide-reaching litigation than you had ever imagined. The first thing to do upon receiving an appellate disposition should be to determine whether further proceedings in the appellate courts are warranted.

The Practical Effect of the Disposition

Except as otherwise limited by statute or rule, the appellate courts may affirm, reverse, remand, vacate, dismiss, grant or deny a petition, or render some combination of these dispositions. It is important to read the decision carefully and think through how it will play out with the facts as they exist at the time the decision issues. Circumstances often change while appeals are pending, and the posture of the parties’ conflict may be different from when the notice of appeal was filed.

For example, in a dispute over a development permit, were other entitlements approved or denied that altered the project that could be built? In a workers’ compensation matter, have there been new injuries and claims? Where a money judgment is at issue, has the judgment-debtor become judgment proof? Most often, these changed circumstances will arise when no stay has issued to maintain the status quo pending appeal. Alternatively, the client may simply have developed new priorities. Such practical needs should guide your legal strategy for how to proceed.

Seeking Rehearing

If your client receives an unfavorable ruling from the Supreme Court or the Court of Appeals, you may want to seek rehearing. Unless the time is shortened or enlarged by the court, a petition for rehearing must be filed within 18 days of the appellate court’s decision.

A petition for rehearing is not simply a motion for reconsideration. Rehearing is only appropriate when: (1) the appellate court has overlooked or misapprehended a material fact in the record or a material question of law in the case; (2) the appellate court has overlooked, misapplied or failed to consider a statute, procedural rule, regulation or decision directly controlling a dispositive issue in the case; or (3) as required to promote substantial justice. NRAP 40(c).

Because petitions for rehearing are decided by the same panel who rendered the disposition, generally, they are summarily denied. For that reason, consider whether you can truly meet the rehearing standard before undertaking the expense and delay associated with a petition for rehearing. In addition to the limited chance for success, the appellate court may impose sanctions for a frivolous petition for rehearing. NRAP 40(g).

Denial of a petition for rehearing still leaves a last resort. If the decision was issued by the Court of Appeals, you may petition for review by the Supreme Court. If the decision was issued by a panel of the Supreme Court, you can petition for en banc reconsideration.

En Banc Reconsideration

A petition for en banc reconsideration must be filed within 10 days after the panel denies rehearing. NRAP 40A(b). Ordinarily, en banc reconsideration will only occur when (1) reconsideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) the proceeding involves a substantial precedential, constitutional or public policy issue. NRAP  40A(a).

For example, en banc reconsideration was appropriate where a panel’s decision overlooked a defendant’s request for a special jury instruction, and the instruction was clearly warranted based on Supreme Court precedent. See Martinez v. State, No. 47293, 2008 WL 6102006, at *1 (Nev. July 9, 2008) (unpublished disposition). Likewise, a permissive inference arising from lost evidence was a substantial precedential issue warranting reconsideration. Bass-Davis v. Davis, 122 Nev. 442, 444–45, 134 P.3d 103, 104–05 (2006). Notwithstanding these types of circumstances, en banc reconsideration is disfavored. NRAP  40A(a).

The key with a petition for en banc reconsideration is to apply the standard set forth in the rule; do not reargue matters presented in the briefs or raise new points for the first time. If there was a dissenting opinion by a panel member, emphasize the points that sow the most uncertainty regarding the majority opinion. Caution is advised, however, because an attorney who files a frivolous petition for rehearing is subject to sanctions.

Petition for Supreme Court Review

A petition for review must be filed within 18 days of the Court of Appeals’ decision. A party may not file a petition for review in the Supreme Court while a petition for rehearing is pending in the Court of Appeals. NRAP 40B(c). Supreme Court review is not a matter of right but of judicial discretion. In deciding whether to hear the matter, the Supreme Court will consider whether the question presented is one of first impression of general statewide significance; whether the decision of the Court of Appeals conflicts with a prior decision of the Court of Appeals, the Nevada Supreme Court, or the U.S. Supreme Court; or whether the case involves fundamental issues of statewide public importance. NRAP 40B(a).

Conclusion

“It ain’t over ‘til it’s over” is an apt saying for an appellate decision. When waiting for the disposition to issue, think through the possible scenarios, discuss them with your client and be prepared to take the next steps.