When is a Case “In” a Court of Appeals

28 USCS § 1254 provides that the U.S. Supreme Court can review cases in a courts of appeals by granting a petition of writ of certiorari when the case is finally adjudged, pending before the courts of appeals.  Congress has also provided that the courts of appeals can certify any question of law in a civil or criminal matter in which the Supreme Court’s instructions are required.[i]  The Supreme Court can provide binding instructions in such certified cases, or require the lower court to send up the entire records for reaching a decision in the issue.[ii]

Pursuant to the legislature’s intent, the U.S. Supreme Court reviews cases ‘in’ the court of appeals.  Primarily, when initiating a review before the Supreme Court the parties should complete all technical requirements in filing.[iii]  Then the Supreme Court checks whether the case was maintainable in the court of appeals.  If the court of appeals lacks jurisdiction federal statute prohibits review of the case by the Supreme Court.  Therefore, the Supreme Court can only review cases that are ‘in’ a courts of appeals.[iv]

Whether a case is ’in’ a court of appeal can be determined by stipulations such as:

  • locus standi of the appealing party in the court of appeal,
  • ripeness of the issue for review,[v]
  • finality of the district court order which was appealed to the court of appeals, or
  • procedural requirements in the court of appeals are met.

After determining whether a court of appeal had jurisdiction in the case, the Supreme Court can review a court of appeals’ decision to dismiss for lack of jurisdiction.[vi]

Federal statutes provide that, even if a court of appeals has given an order in a case, the Supreme Court has power to review cases in the courts of appeals because the case is not considered as removed from the court of appeals jurisdiction.

However, even if a case does not come under a court of appeals jurisdiction, the Supreme Court need not always dismiss the case because of lack of jurisdiction.  The Supreme Court can vacate or reverse the court of appeals’ decision and remand the case for fresh proceedings.

[i] Woolfson v. Doyle, 180 F. Supp. 86 (D.N.Y. 1960)

[ii] 28 USCS § 1254

[iii] Terry v. Chicago Title Ins. Co., 2007 DNH 25 (D.N.H. 2007)

[iv] Dibi v. Moyer, 801 F. Supp. 214 (E.D. Wis. 1992)

[v] Hoffer v. Am. Educ. Servs. (In re Hoffer), 383 B.R. 78 (Bankr. S.D. Ohio 2008)

[vi] Metric Constructors, Inc. v. United States, 44 Fed. Cl. 513 (Fed. Cl. 1999)


Inside When is a Case “In” a Court of Appeals