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September 7, 2016

State vs. Federal Appeals: Practice Points for Appeals to the U.S. Court of Appeals for the Second Circuit

While the requirements to appeal a case to the Appellate Division are familiar, federal appellate procedure is seemingly more daunting. There are significant differences between state and federal appellate practice, particularly regarding appealability (or what may be appealed) and the procedure for instituting an appeal.

As a preliminary matter, the rules regarding appealability are far stricter in federal court. Whereas in state court final and interlocutory judgments are immediately appealable (see CPLR 5701), in federal practice appealability is normally limited to final orders and judgments of the District Courts. See 28 U.S.C. § 1291 (2016). One exception to the federal rule limiting appeals is in the case of an injunction. See id. § 1292. A non-final order may also be appealed when a District Court judge states in the order that the issue is a "controlling question of law as to which there is a substantial ground for difference of opinion," justifying an immediate appeal. Id. Even in this case, the Court of Appeals may hear the appeal at its discretion, provided the application is made within ten (10) days of the filing of the order. See id.

Like New York practice, the appellant must file a notice of appeal to initiate the appellate process. The notice of appeal must specify the party taking the appeal, designate the judgment or order being appealed, and name the court to which the appeal is taken. See FRAP 3. Similar to the requirement to file a notice of appeal in the court of original instance in New York, the notice of appeal must be filed with the District Court, not the Court of Appeals. The time period for filing is thirty (30) days after the judgment or order is entered. See FRAP 4. The time may be extended upon a showing of "excusable neglect or good cause." Id.

Appeals in the federal court system are expedited and require more work earlier on in the process than in state court. Within only fourteen (14) days of filing the notice of appeal in the District Court, the appellant must complete and file the Civil Appeal Pre-Argument Statement with the circuit clerk (this form is available on the U.S. Court of Appeals for the Second Circuit official website). The appellant must also contact the court reporter and order the transcript of the proceeding that gave rise to the appeal. See FRAP 10. Finally, the appellant must take every step to ensure that the district clerk is able to compile an index of the record on appeal and send it to the circuit clerk. All of these steps must be completed within fourteen (14) days of the filing of the notice of appeal.

After filing the notice of appeal, the appellant will receive a docketing notice from the circuit clerk. Within fourteen (14) days of receiving this notice, the appellant must file an acknowledgment and notice of appearance in the Court of Appeals. For those attorneys not admitted in the Second Circuit, a written pro hac vice motion must be filed with the circuit clerk before the notice of appearance is filed.

Each court has its separate requirements for the filing of and contents of appellate briefs, but it is important to note that in federal practice the appellant's brief must be filed within 91 days of the receipt of the transcript to complete the record on appeal.

Although navigating the federal appellate process can be challenging, the court clerk, along with regular federal practitioners are extremely valuable resources that may aid in navigating the federal appellate process.

If you require further information regarding the content of this Legal Alert, please contact either of the Co-Chairs of the Torts & Products Liability Defense Practice Area, Thomas J. Drury, at (716) 858-3845 or, or Matthew J. Larkin, at (315) 425-2805 or


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