Basics of Federal Appellate Litigation

Matthew B Kaplan

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Appeals Lawyer

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In almost all cases a litigant has a right to appeal an adverse final decision entered against him, her or it in a federal district court, the trial level courts in the federal system, to a federal court of appeals. The Courts of Appeals

There are thirteen courts of appeals, which are also often referred to as “circuit courts." The First through Eleventh Circuit Courts and the Court of Appeals for the District of Columbia Circuit hear appeals from district courts within a specified geographic area known as a “circuit"—a useful map can be found at http://www.uscourts.gov/court_locator.aspx. The thirteenth court of appeals is the Court of Appeals for the Federal Circuit, which has nationwide appellate jurisdiction over cases dealing with a very limited range of subject matters, including intellectual property cases and certain claims against the government.

The number of judges assigned to each of the courts of appeals varies. The First Circuit, for example, which covers much of New England, currently has five judges and one judicial vacancy, while the Ninth Circuit, which is responsible for much of the western United States, has 25 judges and four judicial vacancies. Regardless of the number of judges on a particular court of appeals, however, appeals are almost always heard by panels of three randomly chosen judges.

A litigant who loses before a three judge panel can ask an “en banc" panel of that court to reconsider the panel’s decision or can appeal to the United States Supreme Court. As a practical matter, however, the three judge panels almost always have the final word on a particular case.

An en banc panel is comprised of all the active judges of the relevant court of appeals (and sometimes semi-retired “senior" judges), except in the Ninth Circuit which, because it has so many judges, has en banc panels composed of eleven randomly selected judges. But en banc rehearings are rarely allowed. One study found that en banc review was granted to only about 0.2% of the cases handled by the courts of appeals. The Second Circuit, which hears appeals from district courts in New York, Connecticut and New Hampshire, is especially stingy with en banc review—it has recently allowed such review in less than 0.03% of the cases it has handled.

Moreover, while Supreme Court review of a court of appeals decision is a theoretical possibility, the Supreme Court has discretion as to whether or not to hear such appeals and only rarely does so. While the courts of appeals hear a total of about 30,000 appeals each year, the Supreme Court annually hears only about 100 appeals from both the courts of appeals and state courts.

Appellate Procedure

With limited exceptions, in the federal system only “final" decisions are appealable. In other words, a litigant cannot appeal an unfavorable decision by a district court during the course of a lawsuit or a criminal case—for example, a refusal to dismiss a case or the admission of certain evidence during a trial—until the case has been finally decided by the district court and a judgment for or against all parties in the case has been entered. If the district court judge moves slowly, or if a case is especially complex, it can be years before a party who thinks that the district court has made a mistake may be able to ask a court of appeals to correct that mistake.

A party appealing to a court of appeals is normally limited to making arguments that it made unsuccessfully at the district court level. Absent unusual circumstances, an argument not raised at the district court level, no matter how meritorious, cannot be made to the court of appeals. Similarly, the court of appeals cannot take into account evidence that was not brought out at the district court level. If a court of appeals believes that a district court has made an error in interpreting the law it may reverse the district court’s decision. But it need not do so if it concludes that the district court’s erroneous legal ruling was “harmless error"—that it did not change the outcome of the case—or if there are other legal grounds on which to uphold the district court’s decision. Moreover, because the courts of appeal, unlike the district courts, do not hear evidence directly, they are very reluctant to reverse findings of facts, as opposed to rulings on the law, that have been made by a district court. Appeals before the federal courts of appeals are governed by the Federal Rules of Appellate Procedure. But each appellate court also has enacted its own set of local rules and there can be considerable divergence in the procedures of the different appellate courts. It is important to recognize that the courts of appeals only have jurisdiction over the federal courts within their circuit. Decisions by state courts cannot be appealed to the federal courts of appeals. The Supreme Court is the only federal court that can hear appeals from state courts, and it rarely does so.

Additional Resources

The Administrative Office of the United States Courts is the administrative arm of the federal judicial branch and has a basic explanation of the federal court system at http://www.uscourts.gov/FederalCourts.aspx

Background on the federal courts

Appeal Information Page at The Kaplan Law Firm

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