Five Motions to Consider in Your Next Federal Appeal. When executed strategically, any of these five motions can strengthen your case and increase your likelihood of success

• Author: Mary-Christine (M.C.) Sungaila, Lauren Jacobs
• Pages: 1-3

Appellate Practice

Summer 2021, Vol. 40 No. 3

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ARTICLES

June 03, 2021

Five Motions to Consider in Your Next Federal

Appeal

When executed strategically, any of these five motions can

strengthen your case and increase your likelihood of success.

By Mary-Christine (M.C.) Sungaila and Lauren Jacobs

Aside from motions to extend time or to file oversized briefs, motions on appeal in federal

court are rarely filed. But that does not mean that they cannot be helpful.

We highlight five often-overlooked motions to consider in your next appeal. (We focus on

the U.S. Court of Appeals for the Ninth Circuit, our home circuit, but these motions are

widely available in other circuits too.)

Motion for Summary Disposition

A court of appeals may decide a case by summary disposition, short-circuiting the need for

full briefing and oral argument, where (1) “it is manifest that the questions on which the

decision in the appeal or petition for review depends are so insubstantial as not to justify

further proceedings” or (2) clear error, recent legislation, or a court decision moots an

issue or requires a remand. See Ninth Cir. R. 3-6; see also United States v. Hooton, 693 F.2d

857, 858 (9th Cir. 1982) (per curiam) (issued prior to the Ninth Circuit’s Rule 3-6 and

quoting U.S. Supreme Court rule allowing for summary disposition if “it is manifest that the

questions on which the decision of the case depends are so unsubstantial as not to need

further argument” (quoting Sup. Ct. R. 16(1)(c))); Ben Feuer, Meritless Ninth Circuit Civil

Appeal Getting You Down? Get It Decided—Summarily, Cal. App. L. Grp. 2 (Apr. 11, 2018).

Though such a motion may be filed before briefing is complete, consider filing it as an

appellee before the opening brief when grounds for affirmance are clear and full briefing

and argument appear unnecessary for the court to affirm. If the issue on which summary

disposition is sought involves the court’s jurisdiction, a motion can be filed any time before

the court issues an opinion in the case. Ninth Cir. R. 3-6.