Appellate Practice


 * This article is part of a series on Litigation

Introduction
A requester who is unhappy with the outcome of proceedings in district court may wish to seek an appeal.

What decisions can be appealed?
The majority of FOIA cases are decided by summary judgment, and decisions granting a motion for summary judgment usually are immediately appealable. However, this is not ordinarily the case re: other orders that may be issued during a FOIA lawsuit. For example:
 * District court's denial of a motion for summary judgment is not a final and appealable order
 * Partial grant of summary judgment is not a final and appealable order
 * District court's order that a Vaughn Index be filed
 * The grant of an "Open America" stay of proceedings is not a decision that is immediately appealable
 * An "interim" award of attorney fees is not appealable until the conclusion of the district court proceedings in the case
 * A district court's determination with respect to a FOIA plaintiff's fee category likewise is not subject to immediate appeal

Note that where there is a final order requiring that an agency disclose the relevant records, courts typically grant the government's request for a stay pending appeal because release of the information would disrupt the status quo and cause irreparable harm by mooting the issue on appeal.

Appellate standard of review

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The following Circuits adopt a pure de novo standard of review (that is to say, they consider the case afresh, with no regard to the factual or legal conclusions previously reached by the district court):
 * First
 * Second
 * Sixth
 * Eighth
 * Ninth
 * Tenth
 * DC.

The remainder of U.S. Circuits use a two-step test, whereby the appeal court first determines whether adequate factual basis exists to support district court's decisions, and if so, then reviews district court's conclusions of fact for clear error and its legal rulings de novo.

Other issues on appeal

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