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- Not every lower-court decision is immediately appealable
- What an appellate decision can do
- Judgment, opinion, and mandate are different documents
- A panel decision may be followed by rehearing
- The mandate determines when the appellate judgment takes effect
- Most appeal decisions end federal appellate review
- Sources
Key Facts
- Federal level: Federal courts of appeals generally review final district-court decisions under 28 U.S.C. § 1291, while § 1292 identifies specified interlocutory decisions that may be reviewed earlier.
- Federal level: An appellate court may affirm, modify, vacate, set aside, reverse, or remand under 28 U.S.C. § 2106.
- Federal level: Federal Rule of Appellate Procedure 36 governs entry of the appellate judgment and notice to the parties.
- Federal level: Rule 40 permits panel rehearing, rehearing en banc, or both, subject to its standards and timing provisions.
- Federal level: The mandate under Rule 41 formally carries the appellate judgment and any directions back into effect.
“Appeal decision” can refer to two different moments. First, a party may ask whether a lower-court decision can be appealed now. Later, after review, the phrase may refer to the judgment and opinion issued by the court of appeals.
Keeping those moments separate helps explain jurisdiction, deadlines, the possible appellate outcomes, and what happens after the panel rules.
Not every lower-court decision is immediately appealable
Under 28 U.S.C. § 1291, federal courts of appeals generally have jurisdiction over final decisions of U.S. district courts.
Section 1292 identifies specified interlocutory decisions that may be reviewed before final judgment. It includes certain injunction and receivership orders and a discretionary certification route for a controlling legal question that satisfies the statutory conditions.
Federal Rule of Appellate Procedure 3 requires an appeal as of right to begin with a notice of appeal filed in the district court. Rule 4 supplies the governing time periods and explains how listed post-judgment motions affect the appeal clock.
What an appellate decision can do
Section 2106 states the reviewing court’s principal powers. A court of appellate jurisdiction may affirm, modify, vacate, set aside, or reverse a judgment, decree, or order lawfully before it.
The same statute authorizes remand. On remand, the appellate court may direct an appropriate judgment or order, or require further proceedings that are just under the circumstances.
Judgment, opinion, and mandate are different documents
Federal Rule of Appellate Procedure 36 provides that a judgment is entered when it is noted on the docket. The circuit clerk must prepare, sign, and enter the judgment after receiving the court’s opinion, or as the court instructs if judgment is rendered without an opinion.
Rule 36 recognizes that a judgment can be rendered without an opinion.
Rule 41 defines the mandate to include a certified copy of the judgment, a copy of the opinion if any, and directions about costs unless the court directs a formal mandate. The mandate is effective when issued.
A panel decision may be followed by rehearing
Current Rule 40 allows a party to seek panel rehearing, rehearing en banc, or both. A panel-rehearing petition must identify with particularity a point of law or fact allegedly overlooked or misapprehended.
Rehearing en banc is not favored. Rule 40 ordinarily reserves it for identified conflicts in precedent or questions of exceptional importance.
Unless an order or local rule changes the period, Rule 40 generally sets 14 days after judgment for a rehearing petition and provides a 45-day civil period for the listed cases involving the United States or specified federal parties.
The mandate determines when the appellate judgment takes effect
Rule 41 provides that the mandate normally issues seven days after the rehearing period expires or seven days after entry of an order denying a timely rehearing petition or motion to stay, whichever is later. The court may shorten or extend that time by order.
A party may move to stay the mandate pending a petition for Supreme Court certiorari. Rule 41 requires the motion to show that the petition would present a substantial question and that good cause supports a stay.
Most appeal decisions end federal appellate review
The Administrative Office of the U.S. Courts explains that most court-of-appeals decisions are final. A case may instead return to the trial court, undergo rehearing, or become the subject of a certiorari petition asking the Supreme Court for review.
Higher-court review can change the governing legal framework beyond one dispute, as illustrated by this discussion of juvenile life-without-parole limits.
