The Federal Courts of Appeals

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

What are the federal courts of appeals, and which one hears my case?

There are 13 U.S. Courts of Appeals: eleven numbered circuits, the D.C. Circuit, and the Federal Circuit. Twelve of them are regional — they hear appeals from the district courts within their geography, including all federal criminal appeals. The thirteenth, the Federal Circuit, hears appeals defined by subject matter and has no general criminal docket. Your circuit is determined by the district court where your case was decided.

Key takeaways on the federal courts of appeals

• The courts of appeals are created by 28 U.S.C. § 41, which lists the circuits and the states in each.
• Their jurisdiction over final district court decisions comes from 28 U.S.C. § 1291.
• Appeals are ordinarily heard by three-judge panels — 28 U.S.C. § 46(b).
• En banc rehearing is now governed by Fed. R. App. P. 40, not Rule 35 — the 2024 amendment transferred Rule 35 into Rule 40. Most competing pages still cite Rule 35.
• Unpublished opinions may be cited in federal court under Fed. R. App. P. 32.1, but citable is not the same as precedential.
• Circuit law binds the district courts within that circuit — which is why the same legal question can have different answers in different parts of the country.

Find your circuit

Your appeal goes to the court of appeals for the circuit containing the district court where your case was decided. This table is the fastest way to that answer, and each circuit links to a guide to practice in that court.

Circuit	States and territories	Circuit guide
First	Maine, Massachusetts, New Hampshire, Rhode Island, Puerto Rico	First Circuit
Second	Connecticut, New York, Vermont	Second Circuit
Third	Delaware, New Jersey, Pennsylvania, Virgin Islands	Third Circuit
Fourth	Maryland, North Carolina, South Carolina, Virginia, West Virginia	Fourth Circuit
Fifth	Louisiana, Mississippi, Texas	Fifth Circuit
Sixth	Kentucky, Michigan, Ohio, Tennessee	Sixth Circuit
Seventh	Illinois, Indiana, Wisconsin	Seventh Circuit
Eighth	Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota	Eighth Circuit
Ninth	Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, Northern Mariana Islands	Ninth Circuit
Tenth	Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming	Tenth Circuit
Eleventh	Alabama, Florida, Georgia	Eleventh Circuit
D.C.	District of Columbia	D.C. Circuit
Federal	Nationwide, by subject matter — patents, international trade, federal claims, veterans’ benefits, MSPB. No general criminal docket.	—

The structure comes from 28 U.S.C. § 41, which defines the circuits and their composition, and 28 U.S.C. § 43, which establishes each circuit as a court of record.

The Federal Circuit is the one that trips people up. It is a court of appeals, and it is the thirteenth, but its jurisdiction is defined by subject matter rather than geography. As the Administrative Office describes it, “[t]he jurisdiction of the U.S. Court of Appeals for the Federal Circuit is defined by subject matter rather than by geographic boundaries,” covering “appeals involving customs and patents; rulings by the U.S. Court of Federal Claims, U.S. Court of International Trade, and U.S. Court of Appeals for Veterans Claims; and decisions by several federal administrative bodies” (Judicial Business 2025). It does not hear ordinary federal criminal appeals, which is why the AO’s appellate statistical tables carry the standing note: “This table does not include data for the U.S. Court of Appeals for the Federal Circuit.”

So: thirteen courts of appeals, twelve of which will ever hear a federal criminal appeal. Any page telling you your criminal appeal goes to “one of the thirteen circuits” is off by one.

How a federal appeal is heard: the three-judge panel

Appeals are decided by panels, not by the full court. 28 U.S.C. § 46(b) provides for the hearing and determination of cases by panels ordinarily consisting of three judges.

The statute is specific about composition. Section 46(b) provides that “the court may authorize the hearing and determination of cases and controversies by separate panels, each consisting of three judges, at least a majority of whom shall be judges of that court, unless such judges cannot sit because recused or disqualified, or unless the chief judge of that court certifies that there is an emergency.”

And § 46(c) sets the default and its exception: “Cases and controversies shall be heard and determined by a court or panel of not more than three judges (except that the United States Court of Appeals for the Federal Circuit may sit in panels of more than three judges if its rules so provide), unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service.”

The statute also addresses senior judges and en banc: a senior circuit judge is eligible to participate in an in banc court “reviewing a decision of a panel of which such judge was a member,” and to continue participating in a case heard en banc while that judge was in regular active service.

A few practical consequences follow.

Panel composition is not announced far in advance. Most circuits do not disclose the panel until shortly before argument, or with the decision if the case is submitted on the briefs. This is deliberate — it prevents parties from tailoring arguments to particular judges.

Panels can include visiting and senior judges. A panel may include senior circuit judges, judges from other circuits sitting by designation, and district judges sitting by designation.

A panel’s published decision binds the circuit. Once a panel issues a published opinion, it is the law of that circuit and binds later panels and every district court within the circuit — until the full court sitting en banc, or the Supreme Court, says otherwise.

That last point is what gives the next section its importance.

En banc: Rule 40, not Rule 35

This is where nearly every competing page is out of date.

Until the 2024 amendment, en banc practice lived in Fed. R. App. P. 35 and panel rehearing in Rule 40. That is no longer the structure. LII’s Rule 35 page now reads, in its entirety: “Rule 35. (Transferred to Rule 40).” The Committee Note explains: “the amendment addresses panel rehearing and rehearing en banc together in a single rule, consolidating what had been separate, overlapping, and duplicative provisions of Rule 35 (hearing and rehearing en banc) and Rule 40 (panel rehearing). The contents of Rule 35 are transferred to Rule 40, which is expanded to address both panel rehearing and en banc determination.”

If a page, brief, or treatise cites Rule 35(a) for the en banc standard, it is stale.

What Rule 40 now provides:

En banc is disfavored, expressly. Rule 40(a): “Panel rehearing is the ordinary means of reconsidering a panel decision; rehearing en banc is not favored.”

Who decides. Rule 40(c): “a majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be reheard en banc,” and “[u]nless a judge calls for a vote, a vote need not be taken.”

The four grounds. Rule 40(b)(2) requires a petition for rehearing en banc to begin with a statement that: the panel decision conflicts with a decision of the same court and full-court consideration is necessary “to secure or maintain uniformity of the court’s decisions”; or conflicts with a Supreme Court decision; or conflicts “with an authoritative decision of another United States court of appeals”; or “the proceeding involves one or more questions of exceptional importance.”

The deadline in a criminal case is 14 days. Rule 40(d)(1). The 45-day variant applies only in civil cases with a federal party — a point the 1994 Committee Note makes explicitly: “It has no effect upon the time for filing in criminal cases.”

The full treatment is at petition for rehearing.

Where the courts of appeals sit in the system

Level	Court	What it does	Number
Trial	U.S. District Courts	Try cases, impose sentences, make the record	94 districts
Intermediate appellate	U.S. Courts of Appeals	Review district court decisions for legal error; three-judge panels; en banc by the full court	13 (12 regional)
Supreme	Supreme Court of the United States	Discretionary review by certiorari	1

The middle row is where nearly every federal criminal appeal begins and ends. Review above it is discretionary and rare: under Supreme Court Rule 10, “[r]eview on a writ of certiorari is not a matter of right, but of judicial discretion,” granted “only for compelling reasons.” In October Term 2022 there were 4,882 cases on the Supreme Court’s docket and 61 total cases granted plenary review (AO Table A-1). See certiorari petition.

For practical purposes, the court of appeals is the last court that will look closely at your case.

Published, unpublished, and what “precedential” means

This distinction confuses more people than any other feature of appellate practice, partly because two different things are being described.

Citable. Fed. R. App. P. 32.1(a) provides that a court may not prohibit or restrict the citation of federal judicial opinions designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like, if issued on or after January 1, 2007. Rule 32.1(b) adds that if the opinion is not available in a publicly accessible database, the party citing it must file and serve a copy.

Precedential. That is a separate question, governed by each circuit’s own rules. An unpublished disposition is generally not binding on later panels, even though it may be cited. It shows how a court has applied a rule; it does not fix the rule.

	Published opinion	Unpublished opinion or order
May be cited?	Yes	Yes, if issued on or after January 1, 2007 — Rule 32.1(a)
Binds later panels?	Yes	Generally no
Binds district courts in the circuit?	Yes	Generally no
Persuasive value	High	Varies; useful for showing application
Typical use	The governing authority	Illustration of how the standard plays out

The practical significance for a defendant is expectation-setting. A large share of federal appeals are resolved by unpublished disposition, often short. Receiving one is not a signal that the court disregarded the case; it is the ordinary output of a system deciding tens of thousands of appeals a year.

Scale: what these courts actually handle

Numbers help explain both the pace and the format of decisions. All figures below are from the Administrative Office’s Judicial Business 2025, for fiscal year 2025.

Measure	FY2025	Note
Appeals filed in the 12 regional circuits	41,824	Up 5.1% from FY2024
Appeals terminated	40,411	Up 0.8%
Appeals pending	33,748	Up 5.6%
Authorized judgeships	167	Unchanged since at least FY2021
Filings per three-judge panel	751	AO’s own workload measure
Criminal appeals filed	9,392	Down 6.7%; 22% of total filings
Civil appeals filed	22,812	55% of total filings
Prisoner petitions	8,430	88% filed pro se
Administrative agency appeals	5,611	80% were BIA immigration appeals
Pro se filings	20,878	50% of all new filings

Two of those rows deserve emphasis.

Half of all federal appellate filings are pro se. Twenty thousand people a year are appealing without a lawyer. That is the population the Anders framework, the prisoner mailbox rule, and the courts’ screening procedures are built around.

167 authorized judgeships handle 40,000 appeals. That arithmetic — roughly 751 filings per three-judge panel — is the reason most appeals are decided on the briefs without argument, and why unpublished dispositions are the norm rather than the exception.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: Understanding the volume changes how a brief should be written. A panel carrying that caseload is not going to hunt for your best argument. The issue that will win has to be identifiable in the statement of the issues, framed under the correct standard of review, and supported by record citations the reader can follow without reconstructing the case. Briefs that bury the winner among six weaker issues are relying on attention that does not exist.

Why the circuit matters: circuit splits

Because each circuit’s published decisions bind only that circuit, the same federal statute can mean different things in different parts of the country. That is a circuit split, and it has direct consequences for a defendant.

It determines whether your argument is available at all. An argument foreclosed by published precedent in the Fifth Circuit may be settled in your favor in the Ninth. Identical conduct, identical statute, different outcomes — determined by where the case was charged.

It shapes what counsel should argue and how. Where circuit precedent forecloses an argument, the realistic path is to preserve it for further review rather than to expect the panel to disregard binding authority. A preserved-but-foreclosed issue is exactly the kind of claim that supports a rehearing petition and then a certiorari petition — because Supreme Court Rule 10 identifies as a compelling reason for review that “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.”

It creates the strongest en banc argument. Rule 40(b)(2)(A) and (C) make conflict with the court’s own decisions, or with “an authoritative decision of another United States court of appeals,” express grounds for rehearing en banc.

Splits get resolved, and retroactivity then matters. When the Supreme Court settles a split, the question for someone already convicted becomes whether the new decision applies retroactively on collateral review. That is a § 2255 question. See retroactive Supreme Court decisions.

The practical instruction is simple: the law that governs your appeal is your circuit’s law. A general statement of federal law that is not tied to your circuit may be describing an argument you cannot make.

What the court of appeals does and does not do

A recurring source of disappointment is a mismatch between what people expect a court of appeals to do and what it is institutionally for.

The court of appeals does	The court of appeals does not
Read the record made in the district court	Hear witnesses or take new evidence
Decide whether the district court made a legal error	Decide whether the jury reached the right verdict
Apply a standard of review calibrated to each issue	Substitute its own judgment for the trial judge’s on discretionary calls
Correct errors that affected the outcome	Correct errors that did not — harmless error is disregarded
Affirm, reverse, vacate, or remand under 28 U.S.C. § 2106	Order release as a routine remedy
Bind the district courts of its circuit through published opinions	Bind courts in other circuits
Decide most cases on the briefs	Grant oral argument in most cases

The second column is not a list of the court’s failings. It is the design. An appellate court that retried cases would duplicate the district court and provide no additional accuracy; the value of appellate review comes from its narrowness and from the fact that a different set of judges applies settled law to a fixed record.

For what a court of appeals can order when it does find error, see what happens after an appeal is granted; for the standards it applies, standard of review appeal.

How long a case spends in the court of appeals

Timing varies substantially by circuit, and the Administrative Office publishes the figures. For appeals terminated on the merits in the 12-month period ending September 30, 2025, the median time from filing of the notice of appeal to the last opinion or final order was 10.2 months across 18,608 appeals (AO Table B-4A).

The per-circuit spread is wide:

Circuit	Median months, notice of appeal to final order	Appeals terminated on the merits
All circuits	10.2	18,608
Eighth	5.3	1,635
Fifth	8.9	2,616
Third	9.5	1,190
Sixth	9.5	1,690
Fourth	9.7	2,024
Eleventh	10.4	1,925
Tenth	10.8	880
D.C.	11.0	461
Seventh	11.0	897
Ninth	12.0	3,344
Second	12.6	1,501
First	15.2	445

Source: AO Table B-4A, all appeals terminated on the merits, 12 months ending September 30, 2025. These are all-case medians, not criminal-only.

Nearly five months separate the fastest circuit from the median, and roughly ten months separate the fastest from the slowest. Where a case was charged therefore affects not only what law applies but how long the appeal takes. See how long does an appeal take.

Local rules: the part that catches people out

Each circuit supplements the Federal Rules of Appellate Procedure with its own local rules, and those rules control real things: how many copies must be filed, whether a paper appendix is required, the form of the certificate of compliance, deadlines for docketing statements, and whether the court has a mediation or settlement program for civil appeals.

For a criminal appellant the recurring items are:

• Transcript ordering procedures, which differ in form and in who must be served
• Briefing extensions, and whether the court grants them by motion or by clerk order
• Oral argument requests, and whether a party must affirmatively state a position on argument
• Appendix requirements, including whether excerpts of record are used instead
• Sealing procedures, which matter in cases involving cooperation or sensitive material

These vary enough that they are the first thing counsel should check on taking on an appeal in an unfamiliar circuit, and they are covered in each circuit guide above.

Why work with Elizabeth Franklin-Best, P.C.

Elizabeth Franklin-Best, P.C. is a boutique federal criminal appellate and post-conviction firm founded in 2019, with a national practice run on an intentionally small caseload. Elizabeth Franklin-Best is admitted to the U.S. Supreme Court and twelve of the thirteen U.S. Courts of Appeals — every regional circuit (1st–11th) plus the D.C. Circuit — and has appeared pro hac vice in federal courts from Montana to Florida. She has handled more than 330 federal proceedings, over 100 of them appeals, with sixteen published decisions as counsel of record, and is recognized by Best Lawyers in America 2026 for Appellate Practice and by Chambers USA 2026 for white-collar litigation.

She is not admitted to the Federal Circuit, which has no general criminal docket — the twelve regional circuits are where federal criminal appeals are heard.

Practice differs enough between circuits that local knowledge is not a courtesy detail. Briefing conventions, the appetite for oral argument, the share of dispositions that are published, and the governing precedent on any given issue all vary, and a brief written without regard to the receiving court’s law and habits is a brief written for the wrong audience.

Talk to a federal appeals attorney

If you are not certain which circuit will hear your appeal, the district court that entered the judgment answers the question, and the table above completes it.

Schedule a consultation · Phone: (843) 620-1100 · Columbia office: 3710 Landmark Dr #113, Columbia, SC 29204

Elizabeth Franklin-Best, P.C. represents clients in federal courts nationwide as a federal appeals lawyer. Consultations are confidential.

Frequently Asked Questions About the Courts of Appeals

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026