IOP § III(A): Preliminary Consideration

Counsel must work with the clerk’s office throughout the appellate process and must comply with the Federal Rules of Appellate Procedure and the Eighth Circuit Rules. Most procedures prescribed by the rules are not absolutely inflexible. In procedural matters the court’s primary interest is efficient and expeditious case processing. To that end, the court is willing to accommodate reasonable alternatives to procedures set forth in the rules. See FRAP 2.

To invoke the court’s appellate jurisdiction, a party must file with the district court a timely notice of appeal from a final decision or other appealable order. See FRAP 3, 4.

Before filing a notice of appeal, counsel should consider the following questions.

(1) Is there subject matter jurisdiction in the case?

(2) Has the district court fully resolved all issues in the case? If not, is the order appropriate for the interlocutory appeal process under 28 U.S.C. § 1292(b), or has the district court entered an order under Fed. R. Civ. P. 54(b)?

(3) Is there a pending motion listed in FRAP 4(a)(4) that would render the filing of a notice of appeal premature?

(4) Is the appeal timely?

(5) Have the points of error been properly preserved?

(6) Does the proposed appeal have real merit, or is it frivolous?

(7) Is counsel appealing from an appropriate “final order”? See 28 U.S.C. § 1291; Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).

Certain interlocutory or nonfinal orders are reviewable, some as a matter of right and some as a matter of judicial discretion. 28 U.S.C. § 1292. Interlocutory orders reviewable as a matter of right include orders granting, continuing, modifying, dissolving, or denying injunctions, and certain orders in receivership, bankruptcy, admiralty, and patent proceedings. See 28 U.S.C. §1292(a). Interlocutory orders not otherwise appealable may be reviewed at the discretion of the court of appeals if the trial court certifies the order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b); FRAP 5. Petitions for appeals by permission and answers to the petitions are limited to 5,200 words if computer generated or 20 pages is handwritten or typewritten. See FRAP 5(c).

The court may also entertain original proceedings under the All Writs Act, 28 U.S.C. § 1651. See FRAP 21. These proceedings include petitions for writs of mandamus and prohibition.

Counsel should ensure any judgment or order is set forth on a separate document as Fed. R. Civ. R. 58 requires.