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 regarding 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]
    • In the D.C.[2] and Ninth Circuit[3], an order requiring release of documents or order denying access to records is appealable.
  • Partial grant of summary judgment is not a final and appealable order[4]
  • District court's order that a Vaughn Index be filed[5]
  • The grant of an "Open America" stay of proceedings is not a decision that is immediately appealable[6]
  • An "interim" award of attorney fees is not appealable until the conclusion of the district court proceedings in the case[7]
  • A district court's determination with respect to a FOIA plaintiff's fee category likewise is not subject to immediate appeal[8]

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.[9]

Timing for Appeal

Typically, a Notice of Appeal must be filed with the District Court within 60 days after the entry of the Order or Judgment to be appealed from.[10] An appeal of an interlocutory nature would have to be filed prior to that. The Court of Appeals will then typically set a briefing schedule which includes an opening brief, answering brief, and reply brief.

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.

Issues raised for the first time on appeal

Generally, in FOIA cases the government "must assert all exemptions at the same time, in the original district court proceedings . . . [because] the delay caused by permitting the government to raise its FOIA exemption claims one at a time interferes both with the statutory goals of efficient, prompt, and full disclosure of information, and with interests of judicial finality and economy."[18] Courts, however, have recognized two exceptions to the so-called Maydak rule: The first is for "extraordinary circumstances where, from pure human error, the government failed to invoke the correct exemption and will have to release information compromising national security or sensitive, personal, private information unless the court allows it to make an untimely exemption claim.'[19]The second is "where a substantial change in the factual context of the case or an interim development in the applicable law forces the government to invoke an exemption after the original district court proceedings have concluded. "[20]

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. Green v. Department of Commerce, 618 F.2d 836, 841 (D.C. Cir. 1980).
  3. Theriault v. United States, 503 F.2d 390, 391 (9th Cir. 1974).
  4. Loomis v. DOE, No. 99-6084, 1999 WL 1012451, at *1 (2d Cir. Oct. 14, 1999)
  5. Hinton v. FBI, 844 F.2d 126, 129-33 (3d Cir. 1988)
  6. 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)
  7. Nat'l Ass'n of Criminal Def. Lawyers v. DOJ, 182 F.3d 981, 984-85 (D.C. Cir. 1999)
  8. Judicial Watch, Inc. v. DOJ, No. 01-5019, 2001 WL 800022, at *1 (D.C. Cir. June 13, 2001)
  9. See also HHS v. Alley, 129 S. Ct. 1667 (2009)
  10. Fed. R. App. Proc. 4.
  11. 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)
  12. 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)
  13. 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)
  14. 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)
  15. Animal Legal Def. Fund v. U.S. Food & Drug Admin., 836 F.3d 987 (9th Cir. 2016)
  16. 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)
  17. 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)
  18. Maydak v. U.S. Dep't of Justice", 218 F.3d 760, 764 (D.C. Cir. 2000).
  19. Maydak v. U.S. Dep't of Justice", 218 F.3d 760, 767 (D.C. Cir. 2000).
  20. Maydak v. U.S. Dep't of Justice", 218 F.3d 760, 767 (D.C. Cir. 2000).