6.7 Appellate Practice

Updated 2013 by Gill Deford, 2015 by Jeffrey S. Gutman

Appellate practice raises some questions similar to those presented in the district court, but it also introduces new issues and procedures. Note that it contains argument both over whether the lower court’s order was appealable and substantive argument on the merits.

6.7.A. Issues and Procedures

Concerns about whether to appeal often mirror the questions raised when litigation is first contemplated, while the process of appealing differs greatly from district court litigation. This section focuses primarily on the procedural aspects of an appeal, with some attention paid to the internal inquiry regarding the strategy of appealing. The substantive aspects of brief writing and oral argument are not discussed.1

For the most part, the process of taking an appeal is thoroughly set forth in the Federal Rules of Appellate Procedure, in the local rules which each circuit issues in conjunction with the federal rules, and in the internal operating procedures or other explanatory manuals and handbooks which the circuits also often publish. While this section cites some circuit rules as examples, practitioners should not assume that their circuit has a comparable rule. Because failure to comply with the circuit rules can result in dismissal of the appeal, practitioners are urged to review their circuit’s local rules carefully before embarking on an appeal.2

6.7.B. The Right to Appeal

The basic rule is that “[t]he courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts ....”3 The Supreme Court interprets this “to mean that an appeal ordinarily will not lie until after final judgment has been entered in a case.”4 This final judgment rule provides that “a decision is not final, ordinarily, unless it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.”5 In practice, whether a judgment is indeed final is not always intuitive and should be researched. For example, the Supreme Court has ruled that a judgment is final even though a request for attorney fees is still pending.6 When a matter remains pending despite the entry of a judgment, research the finality issue carefully and quickly.

In the vast majority of cases, the appellant did not prevail below and has standing to challenge that adverse decision.  However, the Supreme Court has concluded that prevailing parties may, under certain circumstances, possess the "personal stake" needed for Article III standing to appeal.7 In Camreta v. Greene, the Supreme Court recently held that a state social worker had standing to challenge a lower court decision that his interviewing a minor without a warrant, exigent circumstance or parental consent violated the Constitution, but they were immune because the law was insufficiently clear to put them on notice of the illegality of their conduct.8 The constitutional decision, if unchallenged, would require the social workers in the future either to modify their practice or to risk liability, thereby establishing a prospective stake in the outcome of the appeal.

Federal Rule of Civil Procedure 54(b) sets forth the final judgment rule in multi-claim and multiparty cases. Under that rule, the court may “direct entry of a final judgment” on fewer than all the claims or as to fewer than all the parties “if the court expressly determines that there is no just reason for delay.” The rule speaks to the disposition of claims, rather than of legal theories or requests for relief.9 As a result, if particular claims are dismissed in a multi-claim or multiparty case, consider whether to seek a Rule 54(b) order.10

Statutory and common-law exceptions to the final judgment rule allow interlocutory appeals in specific instances. For legal aid attorneys, the most important exception permits appeals from “[i]nterlocutory orders of the district courts . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions . . . .”11 Thus, any action that a district court takes, or declines to take, involving a request for or implementation of a preliminary or permanent injunction arguably establishes an automatic right to appeal, but this exception to the final judgment rule is narrow and strictly construed.12

Two other important provisions govern interlocutory appeals, but their applicability rests entirely in the courts’ discretion. First, upon the district judge’s written statement that an otherwise unappealable order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation,” a request to appeal may be made to the court of appeals within ten days of the entry of the order.13 The court of appeals then finally decides whether to allow the appeal.14 Both courts act within their discretion in making the determination.15

Second, the Federal Rules of Civil Procedure vest in the courts of appeals the discretion to allow an appeal from an order granting or denying a motion for class certification if the request is made within ten days of the order’s entry.16 The courts of appeals have established a variety of standards for exercising this discretion. These standards include whether the decision below was manifestly in error, whether there is a need to clarify a fundamental issue of law which otherwise might not be considered, and whether the ruling on class certification might represent a death knell for either party independent of the merits.17 They all agree that the right to appeal should be granted only sparingly. The rule also expressly states that allowance of the appeal does not act to stay proceedings below.18

In addition, the “collateral order doctrine,” a common-law doctrine, interprets “final decision” to include some orders that do not end the litigation. To be appealable, an order within this “small category” must be “conclusive, . . . resolve important questions separate from the merits, and . . . [be] effectively unreviewable on appeal from the final judgment in the underlying action.”19 The standard is extremely difficult to meet; a practitioner contemplating this approach should do considerable research on the intricacies of the doctrine.

6.7.C. Whether to Appeal

Deciding whether to appeal an adverse decision involves balancing a host of potentially competing factors. Obviously, the clients’ needs and desires are at the top of the list.

Another crucial consideration is the likelihood of success. This requires a careful review of the merits of the issue, the strength of the district judge’s findings and the validity of her conclusions, the standard of review to be applied, and the composition and reputation of the particular court of appeals. For instance, while an adverse decision on a close legal question subject to de novo review on appeal might be appropriate for an appeal, the denial of a preliminary injunction because the plaintiffs had not demonstrated irreparable harm would require the more demanding showing that the district court had abused its discretion, rendering the appeal considerably more problematic. And, of course, attorneys should be especially careful not to file a frivolous appeal, because the courts of appeals can impose sanctions.20

Furthermore, practitioners should familiarize themselves with the federal appellate court that would hear the appeal. This involves knowing the backgrounds, reputations, and experience of both active and senior judges and of calculating what the chances are for a “good” or “bad” panel.21 Information about the court’s membership should be part of the decision making in every instance.22

At the same time, the possibility of success on the appeal has to be balanced against the impact of appealing or not appealing. For instance, if the district court rules adversely on the merits while certifying a class, certification may counsel in favor of an appeal as there may be little to lose. The more common concern, however, arises when the plaintiffs’ loss at the district court level affects only themselves, while an unsuccessful appeal would have a far broader impact as it would create binding precedent in the circuit. This is of particular importance when other public interest advocates in the circuit have filed or are about to file litigation on the same issue that may have a better chance of success in the district court.

Several other factors worthy of consideration include:

  • Are there non-substantive aspects of the decision that favor or disfavor an appeal (e.g., a good ruling on standing or mootness that might be threatened by a cross-appeal if the adverse decision on the merits is appealed)?

  • Might an appeal result in a split of authority in the circuits, thereby increasing the risk of the issue going to the Supreme Court?

  • Does the practitioner’s office have the time, resources, and skills to devote to an appeal? and

  • Is the decision to be appealed from likely to be published (and therefore more likely to have an impact in some way)?

With at least one significant difference, the decision to appeal is similar to the decision to bring the litigation in the first place. While a decision not to bring the litigation can be changed (subject to the statute of limitations), the decision not to appeal concludes that issue for those plaintiffs. Taking that step is sometimes difficult, but cutting losses to prevent a worse result is often the smartest move a practitioner may make.

6.7.D. How to Initiate an Appeal

The first step in an appeal is filing a notice of appeal. This is a one-sentence statement indicating who is appealing, from which order or judgment (including the date) the appeal is taken, and to which court.23 When you represent more than one party, you need not name all the plaintiffs who are appealing.24 Nevertheless, the safer approach is to specify all of them.25 The notice has the district court caption and is filed in the district court. The clerk then serves copies on the other parties’ counsel.26 If the appeal is from a final judgment, but the intention is to appeal orders issued during the course of the litigation, you need not specify each order to be appealed; the judgment encompasses all the orders entered.

Since the filing of the notice of appeal is jurisdictional, timely filing is critical.27 In civil cases not involving the federal government, the notice must be filed within 30 days after entry of the judgment or order from which a party is appealing.28 A notice of appeal should be filed within 30 days of entry of a final judgment or order even if there remains undecided a claim for attorney fees asserted to be authorized by statute or contract.29 But,“[w]hen the United States or its officer or agency is a party,” the time period for filing the notice is 60 days after entry of judgment for “any party.”30 A notice of appeal filed before the entry of judgment or order appealed from, but after it has been announced, is treated as being filed on the date of that entry.31 Similarly, a notice of appeal filed after a judgment is announced or entered, but before disposition of a Rule 59(e) motion for reconsideration, or other such post-judgment motions, is effective when the motion is resolved.32 The filing of a timely notice of appeal by any party extends the time for another party to file a cross-appeal to the later of 14 days from the date that the first notice of appeal was filed or to the deadline that was originally applicable.33

A party may request that the district court extend the time to file the notice of appeal by filing a motion within thirty days after the deadline for filing a notice of appeal.34 The decision to extend the time for appeal lies within the district court’s discretion.35 The party making the request must show “excusable neglect or good cause,” regardless of whether the motion is filed during the original time to appeal or within the thirty days thereafter.36

At or shortly after the filing of the notice of appeal, the docketing fee must be paid to the district court clerk,37 who transfers payment to the court of appeals. The fee for filing an appeal is $455.38 To appeal in forma pauperis, a party must first file a motion with the district court.39 If that motion is granted, the party may proceed without paying fees.40 But if the motion is denied by the district court, the party may then file a motion with the court of appeals.41 A party that had been allowed to proceed in forma pauperis in the district court is entitled automatically to proceed in forma pauperis in the court of appeals, unless the district court determines to the contrary.42

After the notice of appeal and the docketing fee are received by the clerk of the court of appeals, the clerk usually issues a standard order directing the parties to take certain actions within set time frames. Without an order stating otherwise, however, counsel for the appellant will have fourteen days to order a transcript of relevant court proceedings from the court reporter (or to certify that no transcript will be ordered).43 The details of how to proceed from that point on are either in an order issued from the court of appeals’ clerk’s office, or in the local circuit rules that supplement the Federal Rules of Appellate Procedure and that describe the somewhat different procedures between the circuits. Although Federal Rule of Appellate Procedure 31(a)(1) sets out the timing of the filing of the briefs, the court clerks usually issue orders establishing the briefing schedule. In an effort to avoid the oft-endless round of requests for extensions, the Second Circuit has implemented a novel procedure whereby the appellant and the appellee each choose the date for filing their briefs within a 91-day window,44 but the court has made clear that, under that system, extensions will only rarely be granted and the appellant's failure to file on time may well result in dismissal of the appeal.45 Furthermore, while the federal rules set out the standards for determining whether oral argument will be held,46 the appellate courts take different practical approaches to the issue. The First Circuit suggests that counsel include a statement in the brief regarding their position on the need for oral argument,47 while the Second Circuit, which presumes that there will be oral argument, notifies counsel if it tentatively decides not to hold oral argument and provides an opportunity to explain why it should be held.48

Attorneys should review their circuit’s local rules to determine their obligations for this and other facets of the appeal.

6.7.E. Motion Practice in the Courts of Appeals

Most appeals are resolved after full briefing and oral argument, with each court having different policies and procedures for those activities. The content and form of the briefs and of the appendix to the briefs are set out in detail in Federal Rules of Appellate Procedure 28, 30, and 32, and local rules of court. Because local practice often differs on these important aspects of appellate practice, they are not discussed here.49 Counsel must thoroughly familiarize themselves with these practices. In addition to entertaining plenary briefing and argument, the appellate courts also consider numerous motions, which can be either procedural or substantive and which, in some instances, are dispositive. A brief discussion of some of the more important motions follows.

To obtain a stay or injunction pending appeal, a party must normally first move for that relief in the district court, but, when that is “impracticable,” the motion may be made originally in the court of appeals.50 The Supreme Court has recently held that that the standard is the same as for a preliminary injunction, and and noted that the "first two factors of the traditional standard are the most critical."51 Opposing a stay (in either court) can make the difference between immediate relief for the plaintiffs and a one- to two-year wait while the appeal winds its way through the system and the lower court proceeds to the merits. If the stay is granted, however, consideration should be given to moving for an expedited appeal, which would speed up the appellate process, at least through the point of oral argument. Similarly, although obtaining an injunction pending appeal is particularly difficult, combining it with a motion for an expedited appeal is probably a good tactic because the court may be willing to take that action in lieu of the more extreme one of issuing an injunction pending appeal.52

Another motion to consider is one for summary disposition, that is, for affirmance or reversal without plenary review. This is especially useful if the court entertains it before full briefing and views the procedure positively.53 Although the standard is invariably strict and such a motion is rarely granted (especially summary reversal), summary disposition has the advantage of resolving the appeal quickly and with considerably less work and expense.54 Also, because the motion is based on a strict standard, which may not require a careful inquiry into the merits and usually does not result in more than a pro forma, unpublished disposition stating that the standard has not been met, there is little risk involved.55 Losing the motion should not have any impact on the ultimate outcome. If a reasonable chance of success is seen, a motion for summary disposition has the additional advantage of having two bites at the apple. Needless to say, however, practitioners should not abuse this approach but reserve it for the truly deserving case.

6.7.F. Post-Decision Options

First, the losing party can seek review by the panel that ruled against it. A petition for panel rehearing requires a statement of “each point of law or fact that the petitioner believes that the court has overlooked or misapprehended ….”56 In effect, a petition for panel rehearing is a contention that the court simply misunderstood some critical legal or factual aspect of the case. Although these are only rarely granted, and are discouraged by some circuits with sanctions attached to frivolous petitions,57 this is the most likely avenue for converting a loss into victory.Granting the petition can result in a revised disposition, reargument, or “any other appropriate order.”58

Instead of, or in addition to a petition for panel rehearing, the losing party may request rehearing en banc (sometimes spelled in banc), which is intended to secure the uniformity of circuit decisions or which “involves a question of exceptional importance.”59 The rule expressly states that rehearing en banc is “not favored.”60 Some circuits virtually never grant rehearings en banc, while it occurs with some regularity for others. Even in those circuits where rehearings are occasionally granted, however, as a statistical matter, a rehearing en banc request is highly unlikely to be successful.61

The petitions for rehearing and for rehearing en banc may be filed in one document. Each is due 14 days after entry of judgment, except that the time is extended to 45 days in a civil case in which the United States is a party.62 The page limitation for each is 15 pages, and that number is not increased by filing both types of petition (either as one document or as two).63 For both types of petition, no response should be filed unless the court so requests.64

A losing party also has the right to petition for a writ of certiorari in the United States Supreme Court.65 This right may be exercised with or without a petition for rehearing and/or rehearing en banc having been filed. The petition for certiorari must be filed within 90 days after entry of the judgment in the court of appeals or denial of the petition for rehearing in that court.66 The brief in opposition, which is not mandatory, must be filed within 30 days after the case is put on the Supreme Court’s docket.67 Jurisdictional challenges to the petition must be included in the brief in opposition rather than filed as a separate motion to dismiss.68 Legal aid attorneys contemplating filing a petition for certiorari should discuss this matter with as many other seasoned practitioners as possible so that they, and their clients, are fully informed, from a variety of perspectives, as to whether filing such a petition is appropriate under the circumstances.


Updated 2013 by Gill Deford, 2015 by Jeffrey S. Gutman