Appellate Practice

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This article is part of a series on Litigation


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[1]
  • Partial grant of summary judgment is not a final and appealable order[2]
  • District court's order that a Vaughn Index be filed[3]
  • The grant of an "Open America" stay of proceedings is not a decision that is immediately appealable[4]
  • An "interim" award of attorney fees is not appealable until the conclusion of the district court proceedings in the case[5]
  • A district court's determination with respect to a FOIA plaintiff's fee category likewise is not subject to immediate appeal[6]

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.[7]

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):

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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See Also

External Links


  1. Citizens for Ethics and Resp. in Wash. v. DHS, 532 F.3d 860, 862-68 (D.C. Cir. 2008)
  2. Loomis v. DOE, No. 99-6084, 1999 WL 1012451, at *1 (2d Cir. Oct. 14, 1999)
  3. Hinton v. FBI, 844 F.2d 126, 129-33 (3d Cir. 1988)
  4. Summers v. DOJ, 925 F.2d 450, 453 (D.C. Cir. 1991); Al-Fayed v. CIA, No. 00-2092, slip op. at 4, n.2 (D.D.C. Jan. 16, 2001)
  5. Nat'l Ass'n of Criminal Def. Lawyers v. DOJ, 182 F.3d 981, 984-85 (D.C. Cir. 1999)
  6. Judicial Watch, Inc. v. DOJ, No. 01-5019, 2001 WL 800022, at *1 (D.C. Cir. June 13, 2001)
  7. See also HHS v. Alley, 129 S. Ct. 1667 (2009)
  8. Carpenter v. DOJ, 470 F.3d 434, 437 (1st Cir. 2006); Sephton v. FBI, 442 F.3d 27, 29 (1st Cir. 2006); Church of Scientology Int'l v. DOJ, 30 F.3d 224, 228 (1st Cir. 1994)
  9. Assoc. Press v. DOD, 554 F.3d 274, 283 (2d Cir. 2009); Nat'l Council of La Raza v. DOJ, 411 F.3d 350, 355 (2d Cir. 2005); Tigue v. DOJ, 312 F.3d 70, 75 (2d Cir. 2002); Perlman v. DOJ, 312 F.3d 100, 104 (2d Cir. 2002)
  10. CareToLive v. FDA, 631 F.3d 336, 340 (6th Cir. 2011); Joseph W. Diemert, Jr. & Assoc. Co. v. FAA, 218 F. App'x 479, 481 (6th Cir. 2007); Rugiero v. DOJ, 257 F.3d 534, 543 (6th Cir. 2001)
  11. Hulstein v. DEA, 671 F.3d 690, 694 (8th Cir. 2012); Cent. Platte Nat. Res. Dist. v. USDA, 643 F.3d 1142, 1146 (8th Cir. 2011); Mo. Coal. for the Env't Found. v. U.S. Army Corps of Eng'rs, 542 F.3d 1204, 1209 (8th Cir. 2008); Missouri v. Dep't of the Interior, 297 F.3d 745, 749 n.2 (8th Cir. 2002)
  12. Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987 (9th Cir. 2016)
  13. Hull v. IRS, No. 10-1410, 2011 WL 3835402 (10th Cir. Aug. 31, 2011); Watters v. Dep't of Justice, 576 F. App'x 718, 721 (10th Cir. 2014)
  14. Elec. Priv. Info. Ctr. v. NSA, 678 F.3d 926, 930 (D.C. Cir. 2012); ACLU v. DOJ, 655 F.3d 1, 5 (D.C. Cir. 2011; Consumers' Checkbook v. HHS, 554 F.3d 1046, 1049-50 (D.C. Cir. 2009); Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003)