Federal Circuit Civil Appeals Toolkit

Resources to assist attorneys in litigating an appeal to the US Court of Appeals for the Federal Circuit, including guidance on commencing the appeal, preparing the briefs and appendix, presenting oral argument to the court, petitioning for rehearing, and making motions.

Practical Law Litigation

When litigating a civil action in a federal trial court, a party generally has the right to appeal to a federal court of appeals (also known as a circuit court) from a final order or judgment that awards relief against the party or denies some of the relief it sought (28 U.S.C. §§ 1291 and 1295 and see Forney v. Apfel, 524 U.S. 266, 271 (1998) and PODS Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1366 (Fed. Cir. 2007)).

An aggrieved party normally also has the right to appeal from certain types of interlocutory (that is, non-final) orders, such as orders granting or denying injunctions ( www.practicallaw.com/4-502-4584) (28 U.S.C. § 1292(a) and (c)). If an order or judgment is not appealable as of right, an aggrieved party may often petition for permission to appeal (FRAP 5(a) and see 28 U.S.C. §§ 1292(b), (c), and (d), FRCP 23(f), and CIT Rule 23(f)).

The process for litigating an appeal differs from the process for litigating a case in a trial court. For example, there is no discovery ( www.practicallaw.com/8-107-6127) in the court of appeals. The parties are normally bound by the factual record they developed in the trial court. Motion practice is also less common in the courts of appeals than in the trial courts.

The focus of the appellate process is the submission of written briefs with arguments for reversing, vacating, or affirming the trial court's order or judgment. The circuit courts may also permit the parties to present oral argument to the panel of three judges that will decide the appeal. The Federal Rules of Appellate Procedure (FRAP) govern the appellate process but the local rules of each of the thirteen federal circuit courts may modify or add to the requirements of the FRAP.

The United States Court of Appeals for the Federal Circuit ( www.practicallaw.com/9-507-0272) hears appeals from the orders and judgments of every US district court and the district courts of Guam, the Northern Mariana Islands, and the US Virgin Islands in actions concerning particular subject matters. For example, the Federal Circuit has exclusive jurisdiction where a district court case meets any of these criteria:

  • A plaintiff's claim arose under federal patent ( www.practicallaw.com/0-502-3398) or plant variety protection law.

  • A compulsory counterclaim arose under federal patent or plant variety protection law, if the case was filed on or after September 16, 2011.

  • A plaintiff asserted a claim against the US that:

    • sought $10,000 or less; and

    • was not a tort or tax claim.

(28 U.S.C. §§ 1292(c), 1295(a)(1), (2), and (4)(C), and see Derosa v. J.P. Walsh & J.L. Marmo Enters., Inc., 471 F. App'x 902, 903 and n.1 (Fed. Cir. 2012) and Strable v. South Carolina, 313 F. App'x 308, 308 (Fed. Cir. 2008).)

The Federal Circuit also has exclusive jurisdiction to hear appeals from the US Court of International Trade and the US Court of Federal Claims (28 U.S.C. §§ 1292(c) and 1295(a)(3), (5)).

This Toolkit contains resources explaining the process for litigating appeals in the Federal Circuit including:

 

Practice Notes

 

Standard Documents

 

Checklists

 

Article

 
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