June 03, 2021 Articles

Five Motions to Consider in Your Next Federal Appeal

When executed strategically, any of these five motions can strengthen your case and increase your likelihood of success.

By Mary-Christine (M.C.) Sungaila and Lauren Jacobs
Think outside the box in terms of motions in your next federal court appeal.

Think outside the box in terms of motions in your next federal court appeal.

Pexels | Ekaterina Bolovtsova

Aside from motions to extend time or to file oversized briefs, motions on appeal in federal court are rarely filed. But that does not mean that they cannot be helpful.

We highlight five often-overlooked motions to consider in your next appeal. (We focus on the U.S. Court of Appeals for the Ninth Circuit, our home circuit, but these motions are widely available in other circuits too.)

Motion for Summary Disposition

A court of appeals may decide a case by summary disposition, short-circuiting the need for full briefing and oral argument, where (1) “it is manifest that the questions on which the decision in the appeal or petition for review depends are so insubstantial as not to justify further proceedings” or (2) clear error, recent legislation, or a court decision moots an issue or requires a remand. See Ninth Cir. R. 3-6; see also United States v. Hooton, 693 F.2d 857, 858 (9th Cir. 1982) (per curiam) (issued prior to the Ninth Circuit’s Rule 3-6 and quoting U.S. Supreme Court rule allowing for summary disposition if “it is manifest that the questions on which the decision of the case depends are so unsubstantial as not to need further argument” (quoting Sup. Ct. R. 16(1)(c))); Ben Feuer, Meritless Ninth Circuit Civil Appeal Getting You Down? Get It Decided—Summarily, Cal. App. L. Grp. 2 (Apr. 11, 2018).

Though such a motion may be filed before briefing is complete, consider filing it as an appellee before the opening brief when grounds for affirmance are clear and full briefing and argument appear unnecessary for the court to affirm. If the issue on which summary disposition is sought involves the court’s jurisdiction, a motion can be filed any time before the court issues an opinion in the case. Ninth Cir. R. 3-6.

Motion to Certify Questions to State Court

If your case pivots on a novel issue of state law that is not currently pending before the state’s highest court, consider asking the federal appellate court to certify the question to the corresponding state supreme court. See, e.g., Fields v. Legacy Health Sys., 413 F.3d 943, 958 (9th Cir. 2005); Delgado v. Rice, 236 F.3d 548, 549 (9th Cir. 2001) [login required]. All states in the Ninth Circuit allow federal courts to refer state law questions to their state supreme courts for resolution. Christopher A. Goelz et al., Rutter Group Practice Guide: Federal Ninth Circuit Civil Appellate Practice, at ch. 6-C, ¶ 6:390 (Westlaw database updated Apr. 2021). This will initiate a transfer of the issue to the state’s highest court (should it accept the circuit court of appeals’ invitation to decide the issue), and result in an ancillary proceeding before that court before the case returns to the federal circuit court for decision. Many state supreme courts welcome the opportunity to decide a novel issue of state law in the first instance rather than have a federal circuit court opine about how the supreme court might decide the issue.

The Ninth Circuit will also certify questions on its own motion. See Jason A. Cantone & Carly Giffin, Certification of Questions of State Law in the U.S. Courts of Appeals for the Third, Sixth, and Ninth Circuits (2010–2018), Fed. Jud. Ctr. 1, 1 (June 2020). While the court will certify questions on its own motion after oral argument, if you plan to file a motion, plan on doing it much earlier in the appeal. In Hinojos v. Kohl’s Corp., counsel moved to certify a state law claim to the California Supreme Court after it was clear at oral argument that he was likely to lose. 718 F.3d 1098, 1109 (9th Cir. 2013). The court denied the motion because it “strongly disfavor[s] a party that prevailed below requesting certification for the first time after it becomes apparent at oral argument that it is not likely to prevail in federal court.” Id.

Motion to Transmit Physical or Documentary Exhibits

If an exhibit is absent from the district court’s docket, consider filing a motion to transmit the exhibit. Ninth Cir. R. 27-14. This rule is most useful where you consider it helpful for the court to hear or see an original video or audio exhibit. The court will rule on the motion after the parties file their principal briefs so that it may consider the motion in context of the issues briefed. Id.

Motion for Publication of an Opinion

If you have lost an appeal and the opinion is unpublished, you might consider asking the court to publish it to enhance the likelihood of either en banc or U.S. Supreme Court review. If you won an appeal, however, carefully consider the pros and cons of seeking publication; it may be that you won through a judicial compromise that would only be possible in an unpublished disposition, not a published, precedential decision.

Parties and nonparties alike may request that an unpublished decision be published by submitting a letter “concisely” stating the reasons for publication within 60 days of the opinion. Ninth Cir. R. 36-4. However, the parties may object to a nonparty’s request for publication. Id.

Motion to Stay the Mandate

If you are seeking U.S. Supreme Court review, consider filing a motion to stay the mandate with the Ninth Circuit to prevent the court’s judgment from going into effect while the Supreme Court is deciding whether to hear the case. The motion must demonstrate that the certiorari petition “would present a substantial question and that there is good cause for a stay.” See Fed. R. App. P. 41(d)(1); see also Ninth Cir. R. 41-1. A stay cannot exceed 90 days, unless you show good cause to extend the stay, or notify the clerk that the time for filing the petition has been extended or the petition has been filed, in which case the stay will continue until the Supreme Court’s final disposition. Fed. R. App. P. 41(d).

Conclusion

Think outside the box in your next federal court appeal, and consider whether one of these motions might be appropriate. When executed strategically, any of these five motions can strengthen your case and increase your likelihood of success.

Mary-Christine (M.C.) Sungaila is a shareholder at Buchalter in Orange County, California. Lauren Jacobs is the firm’s inaugural Kaufman Appellate Fellow.


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