Discretionary Further Review
There is no appeal as of right past the court of appeals. A petition asks a court that takes a small fraction of what is offered to it, and the reasons it takes cases have little to do with whether the decision below was correct.
The rule in short
Under 28 U.S.C. 1254 cases in the courts of appeals may be reviewed by writ of certiorari granted on the petition of any party, and under 28 U.S.C. 1257 final judgments of the highest court of a state may be reviewed where a federal question is presented. Review is discretionary. The considerations governing it include conflict among the courts of appeals, conflict with a state court of last resort, a departure from the accepted course of proceedings, and an important unsettled federal question.
A losing party in a court of appeals has no further appeal. What remains is a request that a higher court agree to hear the case, and agreement is entirely within that court's discretion. Understanding that the request is for permission rather than for a decision changes what a petition should say.
Where the authority to review comes from
Section 1254 of Title 28 provides that cases in the courts of appeals may be reviewed by writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after entry of judgment. Section 1257 provides for review of final judgments rendered by the highest court of a state in which a decision could be had, where the validity of a treaty or statute is drawn in question or a right is specially set up under federal law.
Both statutes describe a discretionary grant. Neither creates an entitlement, and the volume of petitions makes the practical odds very long. State systems are organized on similar lines: an intermediate appellate court hears appeals as of right, and the state's highest court takes cases selectively, though the labels and the criteria vary from state to state.
What persuades a court to take a case
The considerations are published, and they are institutional rather than corrective. The strongest is conflict: a court of appeals has decided an important matter in a way that conflicts with another court of appeals, or with a state court of last resort, on the same important matter. A conflict that is genuine, acknowledged and recurring is the most reliable ground there is.
Other grounds include a decision departing so far from the accepted and usual course of judicial proceedings as to call for supervision, and an important question of federal law that has not been settled but should be. Cases presenting a question the court has already indicated an interest in resolving also fare better than those raising a question nobody has noticed.
The rules also state what is disfavored. Review is rarely granted where the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law. That single sentence disposes of most petitions, because most petitions are complaints that the court below got it wrong.
The most common error in a first petition is writing a shorter version of the appellate brief. The audience is deciding whether to spend a slot on the question, not whether the petitioner should have won. That means the conflict must be demonstrated with citations showing courts reaching opposite results on the same question, the recurrence must be shown, and the case must be presented as a clean vehicle without procedural complications that would prevent a decision on the question.
Timing and the effect of rehearing
A petition is due within ninety days after entry of the judgment sought to be reviewed, and where a timely petition for rehearing was filed in the court below, the period runs from the denial of rehearing or from the subsequent entry of judgment. A Justice may extend the time for good cause, and the request must be made well before the period expires.
Because the deadline runs from denial of rehearing, the decision whether to seek panel rehearing or rehearing en banc affects the calendar as well as the merits. A party that intends to seek further review should also consider moving to stay the mandate, since the district court may otherwise proceed while the petition is pending.
| Stage | Who decides | Governing consideration | Effect of refusal |
|---|---|---|---|
| Appeal to a court of appeals | A three-judge panel | Correctness under the standard of review | Judgment affirmed |
| Panel rehearing | The same panel | A point overlooked or misapprehended | Opinion stands as written |
| Rehearing en banc | Active circuit judges | Uniformity or exceptional importance | Panel decision remains circuit law |
| Certiorari | The reviewing court, by discretion | Conflict or an unsettled federal question | No precedent and no view on the merits |
| State discretionary review | The state's highest court | Criteria set by state rule | Intermediate decision stands |
The document and how it is handled
A petition opens with the questions presented, set out on the first page before anything else. It then supplies the list of parties, the opinions below, the statement of jurisdiction, the constitutional and statutory provisions involved, a statement of the case, the reasons for granting the writ, and an appendix containing the decisions below.
The opposing party may file a brief in opposition, and the petitioner may reply. The papers are then distributed to the chambers for consideration at a conference. Where enough of the participating judges vote to hear the case, the petition is granted and the matter proceeds to full briefing on the merits and to argument.
A grant is not a decision. It converts the case into a new proceeding on the question presented, with fresh briefs, amicus participation, and an argument that will address consequences well beyond the parties. Many cases that are granted are then decided on grounds neither party emphasized in the petition.
Preserving the question long before the petition
A question that was not raised and decided below cannot ordinarily support review, so the groundwork is laid at trial and in the court of appeals. The record must contain the ruling, the argument must appear in the brief in the form required by the brief requirements and the argument section, and the point must not have been forfeited under the objection and offer of proof rules.
Finality also matters, since a decision that is not final in the relevant sense may not be reviewable at all, a problem described in the final judgment rule and the routes that bypass it. Administrative litigation has its own hierarchy of review, and the choices available after an agency decision are set out in the appeal and motion options following a denial.
Points to carry away
- Certiorari is discretionary and no party is entitled to it.
- Conflict among lower courts on the same important matter is the strongest ground.
- Misapplication of a properly stated rule is expressly a disfavored ground.
- The petition opens with the question presented, and the question frames the case.
- A petition is due within ninety days of the judgment or the denial of rehearing.
- Denial of review sets no precedent and expresses no view on the merits.
Questions readers ask
Does denial of a petition mean the decision below was correct?
No, and courts say so explicitly. A denial carries no implication about the merits and establishes no precedent. It may reflect the absence of a conflict, an unsuitable factual record, a procedural obstacle, the availability of a better case raising the same question, or simply the volume of petitions. Lower courts are not entitled to treat a denial as approval of the reasoning, and citing a denial as authority for a proposition is a recognized error in appellate briefing.
What makes a question presented effective?
Precision and self-containment. The question should be answerable, should not assume the answer, and should be intelligible to a reader who knows nothing about the case. A question loaded with adjectives about the wrongness of the decision reads as advocacy and tends to obscure the legal issue. Because the court grants review on the question rather than on the case, a question framed too broadly invites denial and one framed too narrowly may be granted and then decided in a way that helps nobody.
Can review be sought before the court of appeals has decided?
Yes, but almost never successfully. Section 1254(1) permits review of a case in a court of appeals before judgment as well as after it, and the rules describe the practice as reserved for cases of imperative public importance requiring immediate determination. Petitions before judgment have been granted where a decision of exceptional national consequence could not wait for ordinary appellate review. The ordinary course remains a decision from the panel, then the rehearing petitions, then the petition for review.
Sources
- Cornell Legal Information Institute — 28 U.S.C. 1254, Courts of Appeals CertiorariReview by writ of certiorari on the petition of any party, before or after judgment.
- Cornell Legal Information Institute — 28 U.S.C. 1257, State Courts CertiorariReview of final judgments of a state's highest court where a federal question is presented.
- Supreme Court of the United States — Rules and GuidanceThe court's own rules, including the considerations governing review and petition contents.
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 41, MandateStaying the mandate while a petition for further review is prepared and filed.
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 35, En Banc DeterminationThe intervening step that may resolve a conflict without further review.
- United States Courts — AppealsThe court system's description of review beyond the courts of appeals as discretionary.
Liberty Law Library is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Appellate Practice
The Record on Appeal and How Gaps Are Filled
Federal Rule of Appellate Procedure 10(a) defines the record on appeal as the original papers and exhibits filed in the district court, the transcript of proceedings, and a certified copy of the docket entries. Rule 10(b) requires the appellant to order a transcript or certify that none will be ordered, and to serve a statement of issues where only part is ordered. Rules 10(c) and 10(d) supply a prepared statement or an agreed statement where no transcript is available.
Rehearing and Rehearing En Banc
Federal Rule of Appellate Procedure 40 allows a petition for panel rehearing stating with particularity each point of law or fact the petitioner believes the court overlooked or misapprehended. Rule 35 governs rehearing en banc, which is not favored and is ordered only where necessary to secure or maintain uniformity of the court's decisions or where the proceeding involves a question of exceptional importance. Rule 41 controls when the mandate issues and how it may be stayed.
Brief Requirements and the Argument Section
Federal Rule of Appellate Procedure 28(a) lists what an appellant's brief must contain, including a corporate disclosure statement, tables, a jurisdictional statement, a statement of the issues, a statement of the case with record references, a summary of the argument, the argument itself with the standard of review for each issue, a conclusion, and the required certificates. Rule 32 governs form, typeface and the word limits, and requires a certificate of compliance.