Handbook III.C: Appeals from the District Court by Permission

(See Fed. R. App. P. 5; D.C. Cir. Rules 5, 25(c)(3), 32(d)(3).)

1. How Taken

Currently, discretionary appeals from interlocutory decisions of the district court are authorized in two instances, under 28 U.S.C. § 1292(b) and Federal Rule of Civil Procedure 23(f). See 28 U.S.C. § 1292(e). Under either provision, interlocutory appeals from the district court are taken by filing with the Clerk of this Court a petition for permission to appeal, served on all parties to the action in the district court, and accompanied by a certificate of parties and amici curiae as described in Circuit Rule 28(a)(1)(A), and any disclosure statement required by Federal Rule of Appellate Procedure 26.1 and Circuit Rule 26.1. See D.C. Cir. Rule 5(a). The petition is limited to 5,200 words if produced using a computer and 20 pages if handwritten or typewritten. The petition must state the facts necessary to understand the question presented, the question itself, the relief sought, and the reasons why the appeal should be allowed and is authorized by a statute or rule. The petition must include a copy of the order complained of and any related opinion or memorandum, as well as any required order stating the district court’s permission to appeal or finding that the necessary conditions to appeal are met. The petition may be filed either electronically or in paper form. See D.C. Cir. Rule 25(c)(3). In addition to the electronic filing or the original in paper form, 4 paper copies of the petition must also be filed. See D.C. Cir. Rules 5(c), 32(d)(3).

Because the petition is not itself an appeal, but rather a request to the Court asking that docketing of the appeal be allowed, a docketing fee is not required unless the Court grants the petition.

The adverse party may respond to the petition within 10 days. A response may not exceed 5,200 words if produced using a computer and 20 pages if handwritten or typewritten. Any reply, limited to 2,600 words if produced using a computer and 10 pages if handwritten or typewritten, is due within 7 days thereafter. See D.C. Cir. Rule 5(b). There is no oral argument on the application unless the Court so orders. The Court refers these petitions to a special panel for disposition as soon as the matter has been fully briefed.

If the Court grants permission to appeal, a notice of appeal is unnecessary. This Court enters an order granting permission to appeal, and transmits a certified copy of it to the Clerk of the district court. This certified copy serves as a notice of appeal. The appellant must pay the docketing fee to the Clerk of the district court within 14 days after entry of the order granting permission to appeal. Once the Clerk is notified by the district court that the fee has been paid, the appeal will be docketed and the case transmitted to the Legal Division for screening.

2. Timing

The petition for permission to appeal under 28 U.S.C. § 1292(b) must be filed within 10 days after the entry of the interlocutory order containing the statement prescribed in the statute, or within 10 days after the entry of an order amending the prior interlocutory order to include the district judge's statement required by that section. The petition for permission to appeal under Federal Rule of Civil Procedure 23(f) must be filed within 14 days after entry of the order granting or denying class action certification.