Summary. The week after an adverse ruling, item by item.

Phase 1 — Is it appealable as of right?

  • Injunction granted, denied, modified, dissolved, or refused modification — 28 U.S.C. § 1292(a)(1)
  • An order with the practical effect of one, with serious consequence and no other route
  • Denial of qualified, absolute, or Eleventh Amendment immunity on LEGAL grounds — not where a factual dispute precluded resolution
  • Refusal to compel arbitration, or denial of a stay — 9 U.S.C. § 16
  • Receivership order — § 1292(a)(2)
  • Admiralty decree determining rights and liabilities — § 1292(a)(3)
  • Criminal contempt, or civil contempt against a non-party
  • Order refusing to enforce foreign sovereign immunity

If yes: file the notice of appeal within the ordinary period. Stop analyzing.

Phase 2 — Calendar today

Route Deadline
Appeal as of right Ordinary notice-of-appeal period
§ 1292(b) petition for permission 10 days from entry of the certified order — JURISDICTIONAL
Rule 23(f) petition 14 days from the certification order — STRICT
Mandamus No fixed deadline; delay defeats it
Rule 54(b) request No deadline; ask while the reasoning is fresh
  • All deadlines in the calendar, with reminders, the day the ruling issues
  • Appellate counsel retained if mandamus or Rule 23(f) is in play

Phase 3 — Triage

All three must be yes:

  • Dispositive or nearly so — changes the outcome, the exposure by an order of magnitude, or whether the case proceeds
  • Legally wrong on a question with a real answer — not a discretionary ruling, not an application of law to fact
  • Otherwise years before review

Any no: preserve the objection and move on.

Phase 4 — Rule 54(b), if a claim or party is resolved

  • At least one claim or party completely resolved
  • The resolved portion is separable — the appellate court will not consider the same facts twice
  • Request an express determination that there is no just reason for delay, with reasoning
  • Boilerplate findings get appeals dismissed — ask the court to explain
  • Note: this is the easiest route, because the judge is not asked to doubt her ruling

Phase 5 — § 1292(b) certification

Ask honestly:

  • Pure question of law the appellate court could decide without the record?
  • Controlling — reversal terminates the action or materially alters its course?
  • Substantial ground for difference of opinion — a real split among circuits or districts, or no controlling authority? (Your disagreement is not a ground.)
  • Materially advance termination — substantial litigation remaining?

Drafting the motion:

  • Four pages
  • Do not argue the merits — ask the judge to agree the question is hard, not that she erred
  • State expressly that you are not seeking reconsideration
  • Document the split with citations — this section decides the motion
  • Quantify what remains: months of discovery, experts, trial length
  • Ask the other side to join or not oppose
  • Request a stay in the same motion

Then:

  • Petition for permission filed in the court of appeals within 10 days
  • Petition opens with the question in one sentence
  • Establishes the split specifically
  • Argues the merits only briefly — length suggests the question is not close
  • Attaches the certified order and reasoning

Phase 6 — Rule 23(f), for class certification

  • 14 days. Calendar backward: draft by day 8, client review day 10, file day 12.
  • Lead with the death knell — state the exposure and the financial position; do not overstate
  • Identify the unsettled question, with the split
  • Identify the gap in the order — an argument or record it did not engage
  • Do not add unrelated grievances
  • Do not attempt voluntary dismissal to manufacture finality — Microsoft Corp. v. Baker, 582 U.S. 23 (2017) forecloses it
  • Move for a stay immediately if permission is granted

Phase 7 — Mandamus

  • Is the harm genuinely irreversible? (Disclosure of privilege, transfer to a different-law forum, failure to recuse — yes. Adverse evidentiary ruling — no.)
  • Is the error clear and indisputable?
  • Is there no other adequate means?
  • Does it fall in a category that works: venue and transfer; usurpation of power; disregard of rules or mandate; recusal; separation of powers; exceptional privilege rulings?
  • Petition is complete on filing — the court may deny without a response
  • Opens with the error stated concretely
  • Addresses the Cheney elements in order, "no other adequate means" first
  • Explains irreversibility in detail
  • Narrow — one clear error, not a course of conduct
  • Record attached; the panel will not order it
  • Stay sought separately and simultaneously
  • Respectful about the district judge, who is the nominal respondent

Phase 8 — Restructure to a final judgment

  • Is a stipulated judgment available on the affected claims?
  • Recites that it is made solely in light of the court's ruling
  • States the party does not concede the ruling is correct and expressly preserves all arguments
  • Produces a genuinely final judgment — no claims or counterclaims left pending, or addressed by dismissal with tolling
  • Concedes no more than the ruling requires (conceding too much waives the appeal; too little defeats finality)

Phase 9 — The stay

  • Nothing stays automatically except an appeal from denial of a motion to compel arbitration — Coinbase, Inc. v. Bielski, 599 U.S. 736 (2023)
  • Move in the district court first
  • Four factors addressed: likelihood of success; irreparable injury; harm to others; public interest
  • Consider a partial stay — easier to obtain and often sufficient
  • If denied below, move in the court of appeals

Phase 10 — Emergency relief

  • Sought below first, or explain why impracticable
  • Call the clerk — every circuit has an emergency procedure and a duty judge
  • Notify opposing counsel — required
  • Request a temporary administrative stay alongside the substantive motion
  • Ten pages, not forty
  • Attach the order, the relevant filings, and a declaration establishing timing
  • Lead with the concrete, dated, irreversible consequence
  • Confirm with the client that the harm genuinely cannot be absorbed

Phase 11 — If review is unavailable, preserve

  • Obtain a written order with reasoning; move for clarification if the basis is unstated
  • Objection preserved — interlocutory review does not excuse ordinary preservation
  • Objection renewed at summary judgment, in limine, at trial, post-trial
  • Offers of proof for excluded evidence
  • Record built while the case is live
  • Do not brief unappealable issues alongside an appealable one — Swint limits pendent jurisdiction

Phase 12 — Consider certifying a state law question

  • Is the governing state law genuinely unsettled — no high court decision, or conflicting intermediate authority?
  • Is the question outcome-determinative?
  • Is it likely to recur?
  • Does the state permit certification, and from which courts?
  • Is there time? Adds 6–18 months
  • Understand: the answer binds, including if it is worse than the federal prediction

Phase 13 — The client conversation

  • Cost of seeking review, by route
  • Probability of obtaining review — most attempts fail at the threshold
  • Probability of reversal if reviewed
  • Change in exposure if reversed
  • Delay in months, and whether it helps or hurts
  • The non-monetary cost: the district judge knows you sought review, and an affirmance makes the ruling law of the case with appellate approval

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