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.