Emergency Appellate Motions Practice in the Fourth Circuit

By Steve Klepper (Twitter: @MDAppeal)

A federal district court’s order granting or denying an injunction, including a preliminary injunction, is immediately appealable under 28 U.S.C. § 1292(a)(1). The appellant may move under FRAP 8 for a stay or modification of the injunction pending appeal, if the district court issued one against the appellant, or for an injunction pending appeal, if the district court denied an injunction the appellant requested.

As fast as federal district judges typically hear requests for preliminary injunctions, the Fourth Circuit often acts even faster. After litigating emergency motions in the Fourth Circuit a few times, I thought I’d pass along some pointers.

What to Do Before the District Court Issues a Ruling

Line Up Some Fresh Legs and Fresh Eyes

By the time the trial judge rules grants or denies a preliminary injunction, you’re likely exhausted. You’ve lived and breathed the one case for weeks, sustained by adrenaline and maybe caffeine.

Now let me give you three sample schedules from Fourth Circuit emergency motions I’ve litigated:

1. Appeal filed Friday; motion to stay injunction filed at noon on Saturday; response filed at 4:00 p.m. on Sunday; reply filed at midnight; ruling Monday morning.
2. Appeal filed Wednesday; motion to stay injunction filed Friday at 5:30 p.m.; response filed Monday at 4:00 p.m.; ruling on Tuesday afternoon.
3. Appeal filed Thursday; motion for injunction pending appeal filed Friday at 11:00 a.m.; response filed Monday at 2:00 p.m.; reply filed Monday 5:00 p.m.; ruling on Wednesday afternoon.

It can feel like finishing a marathon and immediately competing in a 100-meter dash. Your submissions will go before a panel of three judges who, unlike you and your trial judge, know nothing about the case. It’s helpful, then, to designate an attorney, from inside or outside your firm, to focus on the appellate submissions, ready and waiting to go.

Let the Clerk’s Office Know That an Emergency Motion May Be Coming

The Fourth Circuit Clerk’s office, like other clerks for appellate courts, can move much more quickly when on notice that an emergency motion is coming. During my first round of emergency appellate motions in the D.C. Circuit in 2009, I worried that calling the Clerk’s office would have been an ex parte communication. The Clerk’s office told me after the fact that, although my client won, I should have called ahead. They can review and monitor the trial court docket, get a feel for the exigency of the issues, and work to line up a motions panel.

Get Everything You Can Ready to Go

There are a two essential items you can pre-draft: a notice of appeal, in case you’re the losing party; and the FRAP 26.1 disclosure form.

If there was an evidentiary hearing, for which the transcript may not be available by the time of the ruling, you should prepare “affidavits or other sworn statements supporting facts subject to dispute” under FRAP 8(a)(2)(B).

You can also begin working on your motion or opposition, with sections like the standard of review pre-drafted. The case law on appellate motions is not well-developed in the Fourth Circuit, which publishes opinions “only in cases that have been fully briefed and presented at oral argument” under Local Rule 36(a). It almost always decides motions in short per curiam orders that do not appear on Westlaw. As a result, even for the most basic propositions, you’ll need to cite Supreme Court opinions, in-chambers opinions by individual Justices, decisions from other Circuits, or treatises.

What to Do If You’re the Appellant

Ask the District Court for a Stay or Injunction Pending Appeal

Under FRAP 8 and Local Rule 8, the appellant must first seek the stay or injunction pending appeal from the district court or make a showing why it was not practicable to do so. When the appeal is from an injunction or an order denying an injunction, the vehicle for such a motion is FRCP 62(d).

File the Notice of Appeal

The Fourth Circuit has no jurisdiction without a notice of appeal. Get the notice of appeal on file with the district court as soon as you can.

Tell the Clerks’ Offices You Filed the Appeal and Intend to File Your Motion

Once you’ve filed your notice of appeal, call the district court clerk’s office to ask them to forward the notice of appeal to the Fourth Circuit, and call the Fourth Circuit clerk’s office to let them know by when you intend to file your motion.

File Your Disclosure Form

The Fourth Circuit cannot assign a motions panel without the disclosure forms necessary for the judges to determine if they have any disqualifying conflicts. Item 4 of the disclosure form gives you an opportunity identify all interested publicly traded corporations, even those affiliated with the other side.

Repress Your Drive for Perfection and Get the Motion on File

If you’re reading this post, you’re probably the kind of lawyer who wants to dot every “i” and cross every “t.” Your filings are polished.

If your client is facing a true emergency, you cannot let the perfect be the enemy of the filed. The court cannot take action without a motion on file, and the clock is ticking. The judges will understand if there are typos.

Here is a footnote I included in a successful emergency petition: “Counsel is drafting this petition in a span of hours, in light of the time demands. We apologize for any errors.” And, in an expedited appeal, I sought “leave to exceed the word limits by 1,000 words” because there was “not time enough for the careful wordsmithing that would be available in the ordinary case”; leave was granted.

File a Notice Regarding Your Intent to File a Reply

There is an ECF event entitled, “Notice that a reply will/will not be filed.” As soon as the opposition memorandum arrives, use that event to file a one-page notice advising whether you intend to file a reply and, if so, by when. Standing pat is a legitimate option, and a notice will let the judges know they can proceed to decide the motion. If you choose to file a reply, you’ll often be best off filing within a few hours, focusing only on a few key points in two or three pages.

What to Do If You’re the Appellee

Begin Work on Your Response Before the Motion Arrives

It probably is no mystery what your opponent’s motion will say, and so you should be already working on your opposition memorandum when the motion is filed.

File Your Disclosure Form

Even if you’re opposing relief and don’t believe there’s a real emergency, it’s a good idea to file your client’s disclosure form soon after the Fourth Circuit dockets the appeal. Helping the Court move quickly is a sign of confidence, and the judges will appreciate it.

Be Ready to File Your Opposition at Any Time

Under Local Rule 27(d), there is no specified time for filing a response to any motion. Instead, the Clerk will issue a notice specifying the deadline for filing a response.

Now let’s say that the movant files on Friday evening, and the Clerk doesn’t issue a notice requesting a response all weekend. Does that mean you should enjoy your weekend with your family? Sorry, the Court may expect you to be working on the opposition over the weekend. Do not be surprised if at 9:30 a.m. on Monday the Court requests a response by noon. (True story.)

Again: Don’t Let the Perfect Be the Enemy of the Filed

Whether you represent the appellant or appellee, your client’s interest typically is not for you to file the same polished product you would on a normal schedule, but to do your best advocacy on a tight schedule.