Also known as: pendency of appeal · pending appeal
Written by attorneys — see sources below.
A period during which an appeal from a judgment or order remains unresolved. During this period the trial court retains limited authority to act on the judgment but may not alter its substance without appellate leave. The pendency does not destroy the judgment's finality for most purposes but suspends enforcement of certain consequences until the appeal concludes.
After Pablo Perez is convicted of felony fraud following a jury trial, the prosecutor offers the judgment to prove an essential fact in a later civil case against him. While the criminal appeal remains pending, the court admits the conviction because the pendency of the appeal does not affect admissibility under the rule.
A trial court enters a decree dissolving the marriage of Priscilla Parks and Philip Powell after finding the marriage irretrievably broken. Priscilla immediately appeals only the property division. While the appeal is pending, Philip remarries because the pendency does not delay finality of the dissolution provision itself.
After the district court orders the Vice President to produce documents, the government files both a mandamus petition and a notice of appeal. While the appeal is pending, the court of appeals must address whether the mandamus petition is barred by laches because the pendency of the appeal does not automatically toll the time for seeking extraordinary relief.
In January 2001, shortly after assuming office, President George W. Bush issued a memorandum establishing the National Energy Policy Development Group. The Group was directed to develop a national energy policy designed to help promote dependable, affordable, and environmentally sound production and distribution of energy. The President assigned agency heads and assistants, all federal employees, to serve as members of the committee. He authorized the Vice President, as chairman, to invite other officers of the Federal Government to participate as appropriate. Five months later the NEPDG issued a final report and, according to the Government, terminated all operations. Following publication of the report, Judicial Watch, Inc., and the Sierra Club filed separate actions in the United States District Court for the District of Columbia that were later consolidated. The plaintiffs alleged that the NEPDG had failed to comply with the procedural and disclosure requirements of the Federal Advisory Committee Act. Non-federal employees including private lobbyists regularly attended and fully participated in non-public meetings. Respondents contend that the regular participation of the non-Government individuals made them de facto members of the committee. The suits named Vice President Cheney, the NEPDG, government officials who served on the committee, and the alleged de facto members as defendants. The suit seeks declaratory relief and an injunction requiring them to produce all materials allegedly subject to FACA's requirements. The District Court granted the motion to dismiss in part and denied it in part. It dismissed respondents' claims against the non-Government defendants. Because the NEPDG had been dissolved, it could not be sued as a defendant, and the claims against it were dismissed as well. The District Court held that FACA's substantive requirements could be enforced against the Vice President and other Government participants on the NEPDG under the Mandamus Act and against the agency defendants under the Administrative Procedure Act. The court allowed respondents to conduct a tightly reined discovery to ascertain the NEPDG's structure and membership. The District Court denied in part the motion to dismiss and ordered respondents to submit a discovery plan. Petitioners including the Vice President sought a writ of mandamus in the Court of Appeals for the District of Columbia Circuit to vacate the discovery orders, direct the District Court to rule on the basis of the administrative record, and dismiss the Vice President from the suit. A divided panel of the Court of Appeals dismissed the petition for a writ of mandamus and the Vice President's attempted interlocutory appeal. The Supreme Court granted certiorari.
View caseA grand jury subpoenas bank records from a witness who refuses on Fifth Amendment grounds. While his appeal of the resulting contempt order is pending, the government seeks a consent form. The district court may still address the consent issue because the pendency of the appeal does not strip the trial court of authority to consider related enforcement steps.
In 1984 a federal grand jury in the Southern District of Texas began investigating petitioner John Doe for possible federal offenses arising from suspected fraudulent manipulation of oil cargoes and receipt of unreported income. Doe appeared before the grand jury pursuant to a subpoena that directed him to produce records of transactions in accounts at three named banks in the Cayman Islands and Bermuda. He produced some bank records and testified that no additional records responsive to the subpoena were in his possession or control. When questioned about the existence or location of additional records, Doe invoked the Fifth Amendment privilege against self-incrimination. The United States branches of the three foreign banks were also served with subpoenas commanding them to produce records of accounts over which Doe had signatory authority. Citing their governments' bank-secrecy laws that prohibit disclosure of account records without the customer's consent, the banks refused to comply. The Government then filed a motion in the United States District Court for the Southern District of Texas. It sought an order directing Doe to sign twelve forms consenting to disclosure of any bank records relating to twelve foreign bank accounts over which the Government knew or suspected that Doe had control. The District Court denied the motion. It reasoned that by signing the consent forms Doe would necessarily be admitting the existence of the accounts and that he exercised signatory authority over them. The Government sought reconsideration and submitted a revised proposed consent directive that applied to any and all accounts over which Doe had a right of withdrawal without acknowledging the existence of any such account. The District Court denied this motion as well. It concluded that execution of the proposed form would admit signatory authority over speculative accounts. The Court of Appeals for the Fifth Circuit reversed in an unpublished per curiam opinion, holding that Doe could not assert his Fifth Amendment privilege because the form did not have testimonial significance. On remand the District Court ordered petitioner to execute the consent directive. He refused, and the District Court found him in civil contempt and ordered that he be confined until he complied, staying imposition of the sanction pending appeal. The Fifth Circuit affirmed the contempt order in an unpublished per curiam opinion. The Supreme Court granted certiorari to resolve a conflict among the Courts of Appeals as to whether the compelled execution of a consent form directing the disclosure of foreign bank records is inconsistent with the Fifth Amendment.
View caseNo. The trial court may correct clerical mistakes even while an appeal is pending, but it must first obtain leave from the appellate court once the appeal has been docketed.
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The defendant may file the motion in the district court within three years of the verdict. The district court may consider the motion but cannot grant a new trial until the appellate court remands the case.
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No. A conviction that otherwise satisfies the evidence rule remains admissible even if an appeal is pending. Evidence of the pendency itself is also admissible.
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Yes. An appeal that does not challenge the finding that the marriage is irretrievably broken does not delay the finality of the dissolution provision, so either party may remarry during the pendency of the appeal.
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…with the order. The court sentenced him to 18 months' imprisonment or until he complied with the order, but stayed the sentence pending appeal. A divided panel of the Court of Appeals for the Eleventh Circuit reversed. 812 F.2d 1404 (1987) (table). The court held that the consent directive was a "testimonial communication"…