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Your First Federal Appeal: Some Considerations to Keep in Mind

Shaunta M Knibb


  • Think of the standard of review as a gatekeeper. Can you open the gate by characterizing your issue on appeal as one resounding in the law?
  • The court of appeals will reject an appeal if the issue on appeal was not preserved.
  • The timing of appeals is statutory.
  • Permissive interlocutory appeals may  provide a pathway to the court of appeals.
Your First Federal Appeal: Some Considerations to Keep in Mind
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It happens to most litigation attorneys—an adverse ruling or decision. Can you appeal it? Should you appeal? And, if so, when should you appeal? This article is not intended to be comprehensive, but I list below some guiding factors for you and your client.

The Standard of Review

Appellate courts often defer to the decisions of the U.S. district court, particularly where factual issues abound. A court of appeals will not substitute its judgment for those of the lower court in such instances unless there is an error of law. Think of the standard of review as a gatekeeper. Can you open the gate by characterizing your issue on appeal as one resounding in the law? If not, the chances of success on appeal may not be favorable to your client.

There are typically three standards of review: (1) clearly erroneous, (2) de novo, and (3) abuse of discretion. If your appeal is premised on issues of fact, including the review of findings of fact, your appeal will fall under the clearly erroneous standard. If the court exercised its discretion in how it ruled, your appeal will likely fall within the abuse of discretion standard. Neither of these standards is best for a successful appeal. De novo review of questions of law, however, allows the court of appeals to fully review what occurred below and to issue its own decision as if it were the trial court.

Waiver of the Right to Appeal

The court of appeals will reject an appeal if the issue on appeal was not preserved. The rule of thumb is that the lower court must have had an opportunity to address the issue before the court of appeals will review the decision. If there was no opposition brief or no objection at trial, for example, then the court of appeals will not step in to help after the fact. Review your record carefully to ensure that the issues you have identified for appeal were timely preserved.

Is It Time to Appeal?

The timing of appeals is statutory. Although there are exceptions, 28 U.S.C. § 1291 provides that the courts of appeals have jurisdiction over appeals from all final decisions of the district courts. Does your client have a final judgment? If not, your appeal may not be ripe. Are there any postjudgment motions pending? If so, the time to appeal may be delayed until the court rules on those motions. If the district court matter involves multiple parties, is the matter final as to your client? If so, consult FRCP Rule 54(b). It provides a process by which the district court can certify the decision as to your client as final.

If you have a final judgment in a civil matter, there are two possible timelines for appeal: 30 days or 60 days. Most often your appeal period will be 30 days, but if the government is a party, the appeal period is 60 days.

Interlocutory Appeals

If you do not have a final judgment, can you file an interlocutory appeal as a matter of right to challenge a court order under 28 U.S.C. § 1292(a)(1)? This statute allows appeals from any order granting, continuing, modifying, refusing, or dissolving an injunction, as well as orders refusing to grant or dissolve an injunction.

Permissive interlocutory appeals may also provide a pathway to the court of appeals. The criteria are set forth in 28 U.S.C. § 1292(b) and require that both the district court and court of appeals agree that appeal before a final judgment is appropriate. At the district court level, the court must certify that (1) its decision involves a controlling question of law, (2) substantial grounds exist for difference of opinion on the controlling question of law, and (3) the appeal may materially advance the ultimate termination of the case. At the court of appeals level, the court’s decision is discretionary, meaning that the court can grant or deny your motion for any reason.

Evaluate the Benefit of a Postjudgment Motion

If you are considering an appeal, a postjudgment motion is an opportunity for you to refine the record while also suspending the time in which to file an appeal. There are several motions to consider depending on your circumstances, including (1) a motion for judgment under FRCP 50(b), (2) a motion to amend or make additional findings of fact pursuant to FRCP 52(b), (3) a motion to amend the judgment under FRCP 59, (4) a motion for new trial under FRCP 59(b), and (5) a FRCP Rule 60 motion for relief. Keep in mind, however, that while these postjudgment motions delay the time in which to file an appeal, postjudgment interest will accrue from the date of the judgment even if you file a postjudgment motion.

Other Practical Considerations

Whether your client is an entity or individual, practical considerations should always be considered before filing an appeal. If the appeal is not successful, is your client subject to an attorney fees award? Will the appeal develop the law in a favorable way for your client, or would it be detrimental? Would closure for your client be more beneficial than an appeal? Is the appeal premised more on “principle” than on the merits? Have you advised the client on the pros and cons of an appeal, including the standard of review and that an appeal is not a “retrial” in most instances?

A party faced with an adverse final decision can appeal as a matter of right to the U.S. courts of appeals. There are many considerations that should be considered before that decision is made. Only a few are discussed here, but I hope they highlight the importance of understanding the laws and rules governing appeals and the importance of involving a practiced appellate attorney before proceeding. In many cases, associating an appellate attorney before the case is final in the district court can benefit your client. The appellate attorney can assist with postjudgment motions that should aid your client on appeal. At a minimum, a seasoned appellate attorney can assist in identifying issues that could be successful on appeal or, just as important, advising your client that an appeal is not prudent.