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Article: July 2017: Appellate Practice Update

Business Litigation Reports

Obtaining Quick Appellate Relief from Federal Courts.
You’ve just lost in federal district court, but there’s good news: the court’s decision rested on what seems to be clear legal error, and you like your chances on appeal. In this case, however, winning eventually won’t be enough. The median federal civil appeal takes more than eleven months, a figure that pushes past two years in busy courts of appeals like the Ninth Circuit. Moreover, those are just averages; more complex matters may take substantially longer to resolve on appeal. If you can’t afford to comply with the district court’s judgment while the usual appellate process unfolds, what are your options?

While expediting your appeal or obtaining a stay pending appeal is always a challenge, any strategy will hinge on making an effective showing that the appeal will likely succeed on the merits. The first steps are before the district court. Under Federal Rule of Civil Procedure 62, a money judgment is automatically stayed for 14 days, a period you can move to extend while you pursue either a further motion before the district court, like a Rule 50 motion for judgment as a matter of law or a Rule 59 motion for new trial or to amend the judgment, or an appeal. If you are appealing an order involving a request for injunctive relief, Rule 62(c) permits the district court to suspend, modify, or grant an injunction while you take the case to the court of appeals. In deciding such a motion, the district court will address the same factors applicable to motions for preliminary injunction, including whether your appeal is likely to succeed on the merits. Because the district court judge whose opinion you are seeking to overturn is making the decision, it is unlikely he or she will be inclined to find that the appeal is likely to succeed on the merits—though that judge could be influenced to grant a stay upon a strong showing of likely irreparable harm absent a stay. You need to make this motion if at all practicable, as failure to do so may preclude other means of relief.

While you seek a stay from the district court, you should simultaneously prepare to seek further relief from the court of appeals. As with any other appeal, you will first file a notice of appeal with the district court clerk, who will promptly send a copy of that notice and the docket to the appellate court.

With the appeal docketed, you can seek from the court of appeals either a stay or injunction pending appeal, an expedited briefing schedule, or both. Under Federal Rule of Appellate Procedure 8, you can seek a stay pending appeal from the court of appeals if the district court denied or failed to act on your motion for the same relief below; seeking a stay from the court of appeals in the first instance is allowed only if moving in the district court would be impracticable. In seeking relief from the court of appeals, you should be sure to include a request for an interim stay or injunction, which a single judge may grant as an administrative matter in order to give a full three-judge motions panel an opportunity to rule on a full stay or injunction pending appeal.

Seeking a Rule 8 stay or injunction is not a step you should take lightly. In addition to the challenge of quickly pulling together a full brief setting out your entitlement to relief, your Rule 8 motion will also be considered under the demanding standard that district courts apply to motions for preliminary injunction—with most circuits undertaking an independent, de novo assessment of your entitlement to a stay or injunction. Although the courts of appeals have largely held that decisions by motions panels denying preliminary relief do not bind merits panels, to the extent such a decision assesses your appeal’s likelihood of success, it is persuasive authority and likely to color a subsequent full decision on the merits. You will thus have to consider the strength of your Rule 8 motion on each of the preliminary injunction factors to decide whether you want an appellate panel to consider the merits of your claim at this stage and under this standard.

Either alongside or in place of a motion for relief pending appeal, you can also seek to have the full merits of the appeal decided more quickly than normal by filing a motion to expedite. Federal Rule of Appellate Procedure 27, which governs federal appellate motion practice, provides that the court may act on motions at any time, even without awaiting a response, and that a single circuit judge can act alone to decide a non-dispositive motion. Most of the courts of appeals supplement Rule 27 with a specific Local Rule containing further circuit-specific rules for the service, formatting, and contents of emergency motions, including motions for expedited briefing schedules.

To strengthen your chances of getting a particularly swift appellate decision, you should submit your notice of appeal and opening merits brief earlier than the applicable deadlines. Indeed, if you file your opening brief at the same time you file a motion to expedite, your motion can simply request that the court issue a scheduling order for the opposition and reply briefs on dates you propose. Combining a full and forceful explanation of your entitlement to appellate relief can also strengthen your request that that relief not be delayed by the normal briefing and decision schedule. In fact, in one recent case, a Quinn Emanuel team that filed its merits brief alongside its motion to expedite not only earned our client an expedited schedule and quick ultimate decision, but in fact prompted the court to invite a Rule 8 motion for a stay during the course of that accelerated appeal.

A final option, rarely invoked and rarely granted, is to seek a summary disposition. Although not explicitly contemplated by the Federal Rules of Appellate Procedure, circuit courts’ broad authority to issue such rulings “as may be just under the circumstances” includes the power to summarily reverse a mistaken decision, particularly where an intervening and binding legal decision or enacted legislation resolves the issue being appealed.

At every stage of an expedited appeal, then, demonstrating that your appeal will ultimately succeed on the merits is key to convincing the courts to grant relief pending appeal and reach those merits quickly. By making the focus of every brief the fact that the district court erred, and acting with the urgency the situation requires, you can minimize the effects of a mistaken decision below and put yourself on the fast track to a favorable appellate outcome.