Federal Appeals and Writs

Federal Appellate Review

The United States Courts of Appeals review decisions arising from the federal courts and certain other proceedings within their jurisdiction. Federal appellate procedure is governed by the Federal Rules of Appellate Procedure together with the rules and procedures of the particular circuit.

As with California appellate practice, a federal appeal is generally not a new trial. The appellate court ordinarily reviews the record created below and considers the legal issues properly presented for appellate review.

The nature of that review depends upon the judgment or order being challenged, the issues preserved below, the applicable standard of review, and the record before the appellate court.

Final Judgments and Interlocutory Review

Federal appellate jurisdiction frequently turns on whether the district court has entered a final judgment or another order for which immediate appellate review is authorized.

Some rulings entered before final judgment may be subject to interlocutory appellate review under particular statutes, rules, or doctrines. Others ordinarily must await the conclusion of the district-court proceedings.

Determining whether appellate jurisdiction exists—and whether review is available immediately or only after final judgment—is therefore an important threshold question in federal appellate practice.

Federal appellate deadlines can also depend upon the nature of the proceeding, the parties involved, and post-judgment activity in the district court. Those deadlines should be evaluated based upon the particular case rather than assumed from general information.

Standards of Review and the Federal Record

Federal appellate courts apply different standards of review to different types of issues.

Questions of law may receive a different form of review from factual findings, evidentiary decisions, discretionary rulings, or other determinations made by the district court.

The applicable standard can materially affect which issues warrant appellate emphasis and how those issues should be framed.

The appellate record is equally important. Briefing must ordinarily work from the proceedings, evidence, rulings, and other materials properly contained in the record developed below.

For that reason, preservation and record development can matter well before an appeal is actually filed.

Appellate Strategy Before Judgment

Federal Extraordinary Writs

Federal appellate practice also includes petitions for extraordinary writs, including writs of mandamus and prohibition in appropriate circumstances.

Under Federal Rule of Appellate Procedure 21, a party seeking such relief files a petition in the Court of Appeals identifying the relief sought, the issues presented, the relevant facts, the reasons the writ should issue, and the portions of the record necessary to understand the matter. A federal appellate court may deny such a petition without first requiring an answer.

Extraordinary writ relief is not a substitute for an ordinary appeal. It generally requires consideration of why immediate appellate intervention is appropriate despite the ordinary progression of the underlying case.

Potential federal writ matters should therefore be evaluated in light of the procedural posture, availability of other appellate remedies, adequacy of the record, and the particular circumstances supporting extraordinary relief.

Civil and White-Collar Federal Appeals

Federal appellate issues can arise in both civil and white-collar criminal matters.

Civil appeals may involve complex business or financial disputes, federal statutory questions, constitutional issues, evidentiary rulings, jurisdictional questions, dispositive motions, or other federal litigation.

White-collar criminal appeals may involve convictions, sentencing, evidentiary issues, statutory interpretation, constitutional questions, restitution, forfeiture, or other issues arising from the federal criminal proceedings.

Mr. Ogden's background in appellate law, taxation, and complex financial matters may also be relevant where the federal appellate record involves sophisticated transactions, financial evidence, or technical statutory questions.

White-Collar Criminal Appeals

Federal Appeals From California

Federal cases arising in California are heard in one of four district courts — the Northern, Eastern, Central, and Southern Districts of California — and appeals from all four proceed to the United States Court of Appeals for the Ninth Circuit, which sits principally in San Francisco and Pasadena.

The notice of appeal is filed in the district court, and the appeal is then governed by the Federal Rules of Appellate Procedure and the Ninth Circuit Rules, including the court's electronic-filing requirements.

Federal appellate procedure is nevertheless distinct from California state appellate procedure. A matter arising in the same city may follow a very different appellate path depending upon whether the underlying case was litigated in state or federal court.

The Ninth Circuit and Federal Appeals From California

• United States Court of Appeals for the Ninth CircuitUnited States Court of Appeals for the Ninth Circuit ca9.uscourts.gov
• Federal Rules of Appellate ProcedureUnited States Courts uscourts.gov

Federal Appellate Strategy Before Judgment

Federal appellate considerations can arise before the district court enters judgment.

Significant dispositive motions, evidentiary rulings, jurisdictional determinations, jury instructions, post-trial motions, and other proceedings may affect the issues ultimately available for appellate review.

In appropriate cases, considering the appellate consequences of important district-court proceedings while the case remains pending may assist in identifying preservation issues and developing an adequate record.

This does not mean that every significant federal ruling is immediately appealable. Rather, trial-court strategy and appellate strategy can intersect before appellate jurisdiction is actually invoked.

Appellate Strategy Before Judgment

Further Review in the Supreme Court of the United States

After proceedings in a United States Court of Appeals, an appropriate matter may raise the question whether further review should be sought in the Supreme Court of the United States.

Supreme Court review is highly discretionary. The fact that a party received an unfavorable decision in a federal court of appeals does not by itself provide a realistic basis for Supreme Court review.

Evaluation of a potential petition for writ of certiorari requires consideration of the federal question presented, the procedural posture of the case, the decision below, and the broader significance of the issue.

U.S. Supreme Court Matters

Evaluating a Federal Appeal

A federal appellate evaluation may consider:

• Whether appellate jurisdiction exists
• Whether the judgment or order is presently reviewable
• Applicable appellate deadlines
• The effect of any post-judgment proceedings
• Issues preserved below
• The applicable standard of review
• The contents and adequacy of the record
• Whether legal error occurred
• Whether an identified error can support appellate relief
• Whether interlocutory or extraordinary review may be available
• The practical objectives of further appellate proceedings

Federal appellate rules and circuit-specific procedures can differ materially from California appellate practice. The particular court, judgment, procedural history, and issues presented should therefore be identified at the outset.