Sixth Circuit Appeals Attorneys

Q: What is the deadline to file a notice of appeal in the Sixth Circuit?

In civil cases, the notice of appeal must be filed within 30 days of the entry of the judgment or order being appealed. Fed. R. App. P. 4(a)(1)(A). Where the United States or a federal agency is a party, the deadline extends to 60 days. Fed. R. App. P. 4(a)(1)(B).

The 30-day deadline can be extended if a timely post-judgment motion is filed under Fed. R. Civ. P. 50(b), 52(b), 54, 59, or 60 — in which case the time to appeal runs from the entry of the order disposing of the last such motion. Fed. R. App. P. 4(a)(4). A Rule 60(b) motion filed more than 28 days after judgment does not toll the appeal deadline.

The district court may extend the time to file upon a showing of excusable neglect or good cause, but only if the motion is filed within 30 days after the original deadline expires. Fed. R. App. P. 4(a)(5). The Sixth Circuit strictly enforces appellate deadlines — missing the notice of appeal deadline is jurisdictional and typically fatal.

Q: When is a federal court decision appealable to the Sixth Circuit?

Federal courts of appeals can only hear an appeal when a statute confers jurisdiction over the type of order being challenged. Most Sixth Circuit appeals fall into one of the categories described below.

Final orders and judgments. The default rule is that a federal court of appeals has jurisdiction only over “final decisions” of the district court. 28 U.S.C. § 1291. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Rowland v. S. Health Partners, Inc., 4 F.4th 422, 428 (6th Cir. 2021) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). A magistrate judge’s report and recommendation is not, by itself, a final and appealable order, but rather, becomes appealable only once the district judge enters judgment on it. 28 U.S.C. § 636(b). Where the parties have consented to a magistrate judge’s jurisdiction under 28 U.S.C. § 636(c)(3), however, the magistrate judge’s final judgment is directly appealable to the court of appeals in the same manner as any other district court judgment. Bankruptcy appeals follow a separate but parallel track: a final order of a bankruptcy court that has been appealed to and fully resolved by a district court is appealable to the court of appeals under 28 U.S.C. § 158.

Cases involving multiple claims or parties. In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not final and appealable unless the district court “expressly determines that there is no just reason for delay” in accordance with Fed. R. Civ. P. 54(b). Page Plus of Atlanta, Inc. v. Owl Wireless, LLC, 733 F.3d 658, 658 (6th Cir. 2013); see also Rowland, 4 F.4th at 426-29 (rejecting an attempt to manufacture finality by voluntarily dismissing remaining claims to circumvent Rule 54(b)). A judgment resolving all issues except for matters collateral to the merits (such as attorney fees and costs) is treated as final and is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201-03, 108 S. Ct. 1717, 1721-22, 100 L. Ed. 2d 178 (1988).

Interlocutory appeals as of right under § 1292(a). Some non-final orders are appealable as a matter of right. Under 28 U.S.C. § 1292(a), a party may take an immediate appeal from orders granting, continuing, modifying, refusing, or dissolving an injunction, or refusing to dissolve or modify an existing one; from orders appointing a receiver or refusing to wind up an existing receivership; and from orders determining the rights and liabilities of parties in admiralty cases. As a general matter, however, the statute does not authorize an interlocutory appeal from the grant or denial of a temporary restraining order. Ne. Ohio Coal. for the Homeless v. Blackwell, 467 F.3d 999, 1005-06 (6th Cir. 2006).

Permissive interlocutory appeals under § 1292(b). Where an order is not otherwise appealable, the district court may certify it for interlocutory review under 28 U.S.C. § 1292(b). The certification must come from the district court before a party may petition the court of appeals for permission to appeal under Fed. R. App. P. 5. If the district court refuses to certify the question, that refusal is not itself appealable. The Sixth Circuit has emphasized that interlocutory appeals under § 1292(b) are “granted sparingly and only in exceptional cases.” In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002).

Judicially created exceptions to the finality rule. A narrow set of orders fall outside §§ 1291 and 1292 but have nonetheless been deemed appealable through judicially created doctrines. The most significant is the collateral-order doctrine, which permits immediate appeal of a small class of orders that conclusively determine a disputed question, resolve an important issue completely separate from the merits, and would be effectively unreviewable on appeal from a final judgment. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949); SEC v. Basic Energy & Affiliated Res., Inc., 273 F.3d 657, 665-67 (6th Cir. 2001). A separate, narrower doctrine sometimes referred to as pragmatic finality may apply where the practical effect of an order makes immediate review necessary. Gillespie v. United States Steel Corp., 379 U.S. 148, 157 (1964).

Q: What are the formatting requirements for a Sixth Circuit brief?

The Sixth Circuit’s brief formatting requirements are set out in Fed. R. App. P. 32 and supplemented by 6th Cir. R. 32. Key requirements include:

• Word limits: Opening and response briefs are limited to 13,000 words; reply briefs to 6,500 words. Certificates of compliance are required.
• Font and margins: 14-point proportional typeface (e.g., Times New Roman or Century) or 12-point monospaced; 1-inch margins on all sides.
• Required components: Table of contents, table of authorities, jurisdictional statement, statement of issues, statement of the case, summary of argument, argument, conclusion, and certificate of service.
• Electronic filing: All briefs must generally be filed through the Sixth Circuit’s CM/ECF system.

Q: How does oral argument work at the Sixth Circuit, and how do you request it?

Oral argument in the Sixth Circuit is not automatic. Under 6th Cir. R. 34 and FRAP 34, the Court may decide a case without oral argument if the panel unanimously agrees that argument is unnecessary. Parties may request oral argument by including a statement in their brief, not exceeding one page, explaining why the court should hear oral argument.

Argument is scheduled after briefing is complete. Each side is allotted 15 minutes for argument, though additional time may be requested. 6 Cir. R. 34(f)(1)-(2). The appellant may reserve time for rebuttal. Panels are disclosed in advance of argument. The Sixth Circuit’s bench is active — thorough preparation, including mooting, is essential.

Q: What is the standard for en banc review in the Sixth Circuit, and how does the process work?

En banc review is available but rarely granted. Note first that in 2024, FRAP 35 was superseded by FRAP 40, which now governs both panel rehearing and en banc determination.

Under FRAP 40(b)(2), a petition for rehearing en banc must begin with a statement that one of four criteria is met: (A) the panel decision conflicts with a decision of the Sixth Circuit itself (with citation), and full-court consideration is necessary to secure or maintain uniformity; (B) the panel decision conflicts with a decision of the United States Supreme Court (with citation); (C) the panel decision conflicts with an authoritative decision of another U.S. court of appeals (with citation); or (D) the proceeding involves one or more questions of exceptional importance, each concisely stated.

Filing deadline: A petition for panel rehearing or rehearing en banc must be filed within 14 days after judgment is entered, or, if the panel later amends its decision, within 14 days of the amended decision. FRAP 40(d)(1). The deadline extends to 45 days only in civil cases where the United States, a U.S. agency, or a U.S. officer or employee sued in an official or individual capacity in connection with federal duties is a party. FRAP 40(d)(1)(A)-(D). The court will grant a motion to extend this deadline only for the most compelling reasons. 6 Cir. R. 40(c).

Word limit: The petition must not exceed 3,900 words if computer-produced, or 15 pages if handwritten or typewritten. FRAP 40(d)(3). A single document may contain both a petition for panel rehearing and a petition for rehearing en banc.

Cover requirement: Under 6 Cir. R. 40(a), if the petition includes a request for rehearing en banc, it must state that plainly on the cover and in the title. A petition that does not plainly request en banc rehearing will be presumed to seek only panel rehearing and will not be circulated to the en banc court.

Process: The petition is first treated as a petition for panel rehearing — the original panel has 14 days to submit comments to the clerk. If the panel does not substantially modify its decision, the clerk circulates the petition and panel comments to the en banc court. Any active judge or panel member may then request a poll within 14 days of circulation. If a poll is requested, 14 days are allowed for voting. A majority of active, non-disqualified circuit judges must vote in favor for en banc rehearing to be granted. 6 Cir. I.O.P. 40(b)(4)-(5).

The Sixth Circuit’s IOP make clear that a petition for rehearing en banc is an extraordinary request and that counsel fully discharges their duty without filing one unless the rigid standards of FRAP 40(b)(2) are met. Errors in the application of correct precedent to the facts, or challenges to factual determinations, are matters for panel rehearing — not en banc review. 6 Cir. I.O.P. 40(b)(1).

If en banc rehearing is granted, the previous opinion and judgment are vacated, the mandate is stayed, and the case is restored on the docket as a pending appeal. 6 Cir. R. 40(d).

Q: How does the Sixth Circuit handle stays pending appeal?

A party seeking to stay a district court judgment or injunction pending appeal must typically first seek relief from the district court. If that is denied or impracticable, the movant may file an emergency motion for stay with the Sixth Circuit under Fed. R. App. P. 8.

The Sixth Circuit applies a four-factor test for stays pending appeal that is similar to the test for preliminary injunctive relief: (1) likelihood of success on the merits; (2) irreparable injury to the movant absent the stay; (3) substantial harm to third parties if the stay is granted; and (4) the public interest. Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).

Emergency motions are handled on an expedited basis. The Sixth Circuit’s practice is to require the movant to notify opposing counsel before filing, and the Court will typically seek a response before ruling. For truly urgent matters, a single circuit judge has authority to grant a temporary stay pending full consideration.