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Federal Rules of
Appellate Procedure
Rule 1. Scope of
Rules; Title
(a) Scope of
Rules.
(1)
These rules govern procedure in the United States courts of appeals.
(2)
When these rules provide for filing a motion or other document in the
district court, the procedure must comply with the practice of the
district court.
[Text of
paragraph (b) effective until December 1, 2010, absent contrary
Congressional action.]
(b) [Abrogated]
[Text of
paragraph (b) effective December 1, 2010, absent contrary Congressional
action.]
(b)
Definition. In these rules, “state”
includes the District of Columbia and any United States commonwealth or
territory.
(c) Title.
These rules are to be known as the Federal Rules of Appellate Procedure.
Rule 2. Suspension of Rules
On its own or a party's
motion, a court of appeals may--to expedite its decision or for other
good cause--suspend any provision of these rules in a particular case
and order proceedings as it directs, except as otherwise provided in
Rule 26(b).
Rule 3. Appeal as of Right--How Taken
(a) Filing the
Notice of Appeal.
(1)
An appeal permitted by law as of right from a district court to a court
of appeals may be taken only by filing a notice of appeal with the
district clerk within the time allowed by Rule 4. At the time of filing,
the appellant must furnish the clerk with enough copies of the notice to
enable the clerk to comply with Rule 3(d).
(2)
An appellant's failure to take any step other than the timely filing of
a notice of appeal does not affect the validity of the appeal, but is
ground only for the court of appeals to act as it considers appropriate,
including dismissing the appeal.
(3)
An appeal from a judgment by a magistrate judge in a civil case is taken
in the same way as an appeal from any other district court judgment.
(4)
An appeal by permission under 28 U.S.C. § 1292(b) or an appeal in a
bankruptcy case may be taken only in the manner prescribed by Rules 5
and 6, respectively.
(b) Joint or
Consolidated Appeals.
(1)
When two or more parties are entitled to appeal from a district-court
judgment or order, and their interests make joinder practicable, they
may file a joint notice of appeal. They may then proceed on appeal as a
single appellant.
(2)
When the parties have filed separate timely notices of appeal, the
appeals may be joined or consolidated by the court of appeals.
(c) Contents of
the Notice of Appeal.
(1)
The notice of appeal must:
(A)
specify the party or parties taking the appeal by naming each one in the
caption or body of the notice, but an attorney representing more than
one party may describe those parties with such terms as “all
plaintiffs,” “the defendants,” “the plaintiffs A, B, et al.,” or “all
defendants except X”;
(B)
designate the judgment, order, or part thereof being appealed; and
(C)
name the court to which the appeal is taken.
(2)
A pro se notice of appeal is considered filed on behalf of the signer
and the signer's spouse and minor children (if they are parties), unless
the notice clearly indicates otherwise.
(3)
In a class action, whether or not the class has been certified, the
notice of appeal is sufficient if it names one person qualified to bring
the appeal as representative of the class.
(4)
An appeal must not be dismissed for informality of form or title of the
notice of appeal, or for failure to name a party whose intent to appeal
is otherwise clear from the notice.
(5)
Form 1 in the Appendix of Forms is a suggested form of a notice of
appeal.
(d) Serving the
Notice of Appeal.
(1)
The district clerk must serve notice of the filing of a notice of appeal
by mailing a copy to each party's counsel of record--excluding the
appellant's--or, if a party is proceeding pro se, to the party's last
known address. When a defendant in a criminal case appeals, the clerk
must also serve a copy of the notice of appeal on the defendant, either
by personal service or by mail addressed to the defendant. The clerk
must promptly send a copy of the notice of appeal and of the docket
entries--and any later docket entries--to the clerk of the court of
appeals named in the notice. The district clerk must note, on each copy,
the date when the notice of appeal was filed.
(2)
If an inmate confined in an institution files a notice of appeal in the
manner provided by Rule 4(c), the district clerk must also note the date
when the clerk docketed the notice.
(3)
The district clerk's failure to serve notice does not affect the
validity of the appeal. The clerk must note on the docket the names of
the parties to whom the clerk mails copies, with the date of mailing.
Service is sufficient despite the death of a party or the party's
counsel.
(e) Payment
of Fees. Upon filing a notice of appeal,
the appellant must pay the district clerk all required fees. The
district clerk receives the appellate docket fee on behalf of the court
of appeals.
Rule 4. Appeal as of Right--When Taken
[Text of
paragraph (a) effective until December 1, 2010, absent contrary
Congressional action.]
(a) Appeal in a
Civil Case.
(1) Time for
Filing a Notice of Appeal.
(A)
In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and
4(c), the notice of appeal required by Rule 3 must be filed with the
district clerk within 30 days after the judgment or order appealed from
is entered.
(B)
When the United States or its officer or agency is a party, the notice
of appeal may be filed by any party within 60 days after the judgment or
order appealed from is entered.
(C)
An appeal from an order granting or denying an application for a writ of
error coram nobis is an appeal in a civil case for purposes of Rule
4(a).
(2) Filing
Before Entry of Judgment. A notice of
appeal filed after the court announces a decision or order--but before
the entry of the judgment or order--is treated as filed on the date of
and after the entry
(3) Multiple
Appeals. If one party timely files a
notice of appeal, any other party may file a notice of appeal within 14
days after the date when the first notice was filed, or within the time
otherwise prescribed by this Rule 4(a), whichever period ends later.
(4) Effect
of a Motion on a Notice of Appeal.
(A)
If a party timely files in the district court any of the following
motions under the Federal Rules of Civil Procedure, the time to file an
appeal runs for all parties from the entry of the order disposing of the
last such remaining motion:
(i)
for judgment under Rule 50(b);
(ii)
to amend or make additional factual findings under Rule 52(b), whether
or not granting the motion would alter the judgment;
(iii)
for attorney's fees under Rule 54 if the district court extends the time
to appeal under Rule 58;
(iv)
to alter or amend the judgment under Rule 59;
(v)
for a new trial under Rule 59; or
(vi)
for relief under Rule 60 if the motion is filed no later than 28 days
after the judgment is entered.
(B)(i)
If a party files a notice of appeal after the court announces or enters
a judgment--but before it disposes of any motion listed in Rule
4(a)(4)(A)--the notice becomes effective to appeal a judgment or order,
in whole or in part, when the order disposing of the last such remaining
motion is entered.
(ii)
A party intending to challenge an order disposing of any motion listed
in Rule 4(a)(4)(A), or a judgment's alteration or amendment upon such a
motion, must file a notice of appeal, or an amended notice of appeal--in
compliance with Rule 3(c)--within the time prescribed by this Rule
measured from the entry of the order disposing of the last such
remaining motion.
(iii)
No additional fee is required to file an amended notice.
(5) Motion
for Extension of Time.
(A)
The district court may extend the time to file a notice of appeal if:
(i)
a party so moves no later than 30 days after the time prescribed by this
Rule 4(a) expires; and
(ii)
regardless of whether its motion is filed before or during the 30 days
after the time prescribed by this Rule 4(a) expires, that party shows
excusable neglect or good cause.
(B)
A motion filed before the expiration of the time prescribed in Rule
4(a)(1) or (3) may be ex parte unless the court requires otherwise. If
the motion is filed after the expiration of the prescribed time, notice
must be given to the other parties in accordance with local rules.
(C)
No extension under this Rule 4(a)(5) may exceed 30 days after the
prescribed time or 14 days after the date when the order granting the
motion is entered, whichever is later.
(6)
Reopening the Time to File an Appeal. The
district court may reopen the time to file an appeal for a period of 14
days after the date when its order to reopen is entered, but only if all
the following conditions are satisfied:
(A)
the court finds that the moving party did not receive notice under
Federal Rule of Civil Procedure 77(d) of the entry of the judgment or
order sought to be appealed within 21 days after entry;
(B)
the motion is filed within 180 days after the judgment or order is
entered or within 14 days after the moving party receives notice under
Federal Rule of Civil Procedure 77(d) of the entry, whichever is
earlier; and
(C)
the court finds that no party would be prejudiced.
(7) Entry
Defined.
(A)
A judgment or order is entered for purposes of this Rule 4(a):
(i)
if Federal Rule of Civil Procedure 58(a)(1) does not require a separate
document, when the judgment or order is entered in the civil docket
under Federal Rule of Civil Procedure 79(a); or
(ii)
if Federal Rule of Civil Procedure 58(a)(1) requires a separate
document, when the judgment or order is entered in the civil docket
under Federal Rule of Civil Procedure 79(a) and when the earlier of
these events occurs:
•
the judgment or order is set forth on a separate document, or
•
150 days have run from entry of the judgment or order in the civil
docket under Federal Rule of Civil Procedure 79(a).
(B)
A failure to set forth a judgment or order on a separate document when
required by Federal Rule of Civil Procedure 58(a)(1) does not affect the
validity of an appeal from that judgment or order.
[Text of
paragraph (a) effective December 1, 2010, absent contrary Congressional
action.]
(a) Appeal in a
Civil Case.
(1) Time for
Filing a Notice of Appeal.
(A)
In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and
4(c), the notice of appeal required by Rule 3 must be filed with the
district clerk within 30 days after the judgment or order appealed from
is entered.
(B)
When the United States or its officer or agency is a party, the notice
of appeal may be filed by any party within 60 days after the judgment or
order appealed from is entered.
(C)
An appeal from an order granting or denying an application for a writ of
error coram nobis is an appeal in a civil case for purposes of Rule
4(a).
(2) Filing
Before Entry of Judgment. A notice of
appeal filed after the court announces a decision or order--but before
the entry of the judgment or order--is treated as filed on the date of
and after the entry.
(3) Multiple
Appeals. If one party timely files a
notice of appeal, any other party may file a notice of appeal within 14
days after the date when the first notice was filed, or within the time
otherwise prescribed by this Rule 4(a), whichever period ends later.
(4) Effect
of a Motion on a Notice of Appeal.
(A)
If a party timely files in the district court any of the following
motions under the Federal Rules of Civil Procedure, the time to file an
appeal runs for all parties from the entry of the order disposing of the
last such remaining motion:
(i)
for judgment under Rule 50(b);
(ii)
to amend or make additional factual findings under Rule 52(b), whether
or not granting the motion would alter the judgment;
(iii)
for attorney's fees under Rule 54 if the district court extends the time
to appeal under Rule 58;
(iv)
to alter or amend the judgment under Rule 59;
(v)
for a new trial under Rule 59; or
(vi)
for relief under Rule 60 if the motion is filed no later than 28 days
after the judgment is entered.
(B)(i)
If a party files a notice of appeal after the court announces or enters
a judgment--but before it disposes of any motion listed in Rule
4(a)(4)(A)--the notice becomes effective to appeal a judgment or order,
in whole or in part, when the order disposing of the last such remaining
motion is entered.
(ii)
A party intending to challenge an order disposing of any motion listed
in Rule 4(a)(4)(A), or a judgment's alteration or amendment upon such a
motion, must file a notice of appeal, or an amended notice of appeal--in
compliance with Rule 3(c)--within the time prescribed by this Rule
measured from the entry of the order disposing of the last such
remaining motion.
(iii)
No additional fee is required to file an amended notice.
(5) Motion
for Extension of Time.
(A)
The district court may extend the time to file a notice of appeal if:
(i)
a party so moves no later than 30 days after the time prescribed by this
Rule 4(a) expires; and
(ii)
regardless of whether its motion is filed before or during the 30 days
after the time prescribed by this Rule 4(a) expires, that party shows
excusable neglect or good cause.
(B)
A motion filed before the expiration of the time prescribed in Rule
4(a)(1) or (3) may be ex parte unless the court requires otherwise. If
the motion is filed after the expiration of the prescribed time, notice
must be given to the other parties in accordance with local rules.
(C)
No extension under this Rule 4(a)(5) may exceed 30 days after the
prescribed time or 14 days after the date when the order granting the
motion is entered, whichever is later.
(6)
Reopening the Time to File an Appeal. The
district court may reopen the time to file an appeal for a period of 14
days after the date when its order to reopen is entered, but only if all
the following conditions are satisfied:
(A)
the court finds that the moving party did not receive notice under
Federal Rule of Civil Procedure 77(d) of the entry of the judgment or
order sought to be appealed within 21 days after entry;
(B)
the motion is filed within 180 days after the judgment or order is
entered or within 14 days after the moving party receives notice under
Federal Rule of Civil Procedure 77(d) of the entry, whichever is
earlier; and
(C)
the court finds that no party would be prejudiced.
(7) Entry
Defined.
(A)
A judgment or order is entered for purposes of this Rule 4(a):
(i)
if Federal Rule of Civil Procedure 58(a) does not require a separate
document, when the judgment or order is entered in the civil docket
under Federal Rule of Civil Procedure 79(a); or
(ii)
if Federal Rule of Civil Procedure 58(a) requires a separate document,
when the judgment or order is entered in the civil docket under Federal
Rule of Civil Procedure 79(a) and when the earlier of these events
occurs:
• the judgment or order is
set forth on a separate document, or
• 150 days have run from
entry of the judgment or order in the civil docket under Federal Rule of
Civil Procedure 79(a).
(B)
A failure to set forth a judgment or order on a separate document when
required by Federal Rule of Civil Procedure 58(a) does not affect the
validity of an appeal from that judgment or order.
(b) Appeal in a
Criminal Case.
(1) Time for
Filing a Notice of Appeal.
(A)
In a criminal case, a defendant's notice of appeal must be filed in the
district court within 14 days after the later of:
(i)
the entry of either the judgment or the order being appealed; or
(ii)
the filing of the government's notice of appeal.
(B)
When the government is entitled to appeal, its notice of appeal must be
filed in the district court within 30 days after the later of:
(i)
the entry of the judgment or order being appealed; or
(ii)
the filing of a notice of appeal by any defendant.
(2) Filing
Before Entry of Judgment. A notice of
appeal filed after the court announces a decision, sentence, or
order--but before the entry of the judgment or order--is treated as
filed on the date of and after the entry.
(3) Effect
of a Motion on a Notice of Appeal.
(A)
If a defendant timely makes any of the following motions under the
Federal Rules of Criminal Procedure, the notice of appeal from a
judgment of conviction must be filed within 14 days after the entry of
the order disposing of the last such remaining motion, or within 14 days
after the entry of the judgment of conviction, whichever period ends
later. This provision applies to a timely motion:
(i)
for judgment of acquittal under Rule 29;
(ii)
for a new trial under Rule 33, but if based on newly discovered
evidence, only if the motion is made no later than 14 days after the
entry of the judgment; or
(iii)
for arrest of judgment under Rule 34.
(B)
A notice of appeal filed after the court announces a decision, sentence,
or order--but before it disposes of any of the motions referred to in
Rule 4(b)(3)(A)--becomes effective upon the later of the following:
(i)
the entry of the order disposing of the last such remaining motion; or
(ii)
the entry of the judgment of conviction.
(C)
A valid notice of appeal is effective--without amendment--to appeal from
an order disposing of any of the motions referred to in Rule 4(b)(3)(A).
(4) Motion
for Extension of Time. Upon a finding of
excusable neglect or good cause, the district court may--before or after
the time has expired, with or without motion and notice--extend the time
to file a notice of appeal for a period not to exceed 30 days from the
expiration of the time otherwise prescribed by this Rule 4(b).
(5)
Jurisdiction. The filing of a notice of
appeal under this Rule 4(b) does not divest a district court of
jurisdiction to correct a sentence under Federal Rule of Criminal
Procedure 35(a), nor does the filing of a motion under 35(a) affect the
validity of a notice of appeal filed before entry of the order disposing
of the motion. The filing of a motion under Federal Rule of Criminal
Procedure 35(a) does not suspend the time for filing a notice of appeal
from a judgment of conviction.
(6) Entry
Defined. A judgment or order is entered
for purposes of this Rule 4(b) when it is entered on the criminal
docket.
(c) Appeal by an
Inmate Confined in an Institution.
(1)
If an inmate confined in an institution files a notice of appeal in
either a civil or a criminal case, the notice is timely if it is
deposited in the institution's internal mail system on or before the
last day for filing. If an institution has a system designed for legal
mail, the inmate must use that system to receive the benefit of this
rule. Timely filing may be shown by a declaration in compliance with 28
U.S.C. § 1746 or by a notarized statement, either of which must set
forth the date of deposit and state that first-class postage has been
prepaid.
(2)
If an inmate files the first notice of appeal in a civil case under this
Rule 4(c), the 14-day period provided in Rule 4(a)(3) for another party
to file a notice of appeal runs from the date when the district court
dockets the first notice.
(3)
When a defendant in a criminal case files a notice of appeal under this
Rule 4(c), the 30-day period for the government to file its notice of
appeal runs from the entry of the judgment or order appealed from or
from the district court's docketing of the defendant's notice of appeal,
whichever is later.
(d) Mistaken
Filing in the Court of Appeals. If a
notice of appeal in either a civil or a criminal case is mistakenly
filed in the court of appeals, the clerk of that court must note on the
notice the date when it was received and send it to the district clerk.
The notice is then considered filed in the district court on the date so
noted.
Rule 5. Appeal by Permission
(a) Petition for
Permission to Appeal.
(1)
To request permission to appeal when an appeal is within the court of
appeals' discretion, a party must file a petition for permission to
appeal. The petition must be filed with the circuit clerk with proof of
service on all other parties to the district-court action.
(2)
The petition must be filed within the time specified by the statute or
rule authorizing the appeal or, if no such time is specified, within the
time provided by Rule 4(a) for filing a notice of appeal.
(3)
If a party cannot petition for appeal unless the district court first
enters an order granting permission to do so or stating that the
necessary conditions are met, the district court may amend its order,
either on its own or in response to a party's motion, to include the
required permission or statement. In that event, the time to petition
runs from entry of the amended order.
(b) Contents of
the Petition; Answer or Cross-Petition; Oral Argument.
(1)
The petition must include the following:
(A)
the facts necessary to understand the question presented;
(B)
the question itself;
(C)
the relief sought;
(D)
the reasons why the appeal should be allowed and is authorized by a
statute or rule; and
(E)
an attached copy of:
(i)
the order, decree, or judgment complained of and any related opinion or
memorandum, and
(ii)
any order stating the district court's permission to appeal or finding
that the necessary conditions are met.
(2)
A party may file an answer in opposition or a cross-petition within 10
days after the petition is served.
(3)
The petition and answer will be submitted without oral argument unless
the court of appeals orders otherwise.
(c) Form of
Papers; Number of Copies. All papers must
conform to Rule 32(c)(2). Except by the court's permission, a paper must
not exceed 20 pages, exclusive of the disclosure statement, the proof of
service, and the accompanying documents required by Rule 5(b)(1)(E). An
original and 3 copies must be filed unless the court requires a
different number by local rule or by order in a particular case.
(d) Grant of
Permission; Fees; Cost Bond; Filing the Record.
(1)
Within 14 days after the entry of the order granting permission to
appeal, the appellant must:
(A)
pay the district clerk all required fees; and
(B)
file a cost bond if required under Rule 7.
(2)
A notice of appeal need not be filed. The date when the order granting
permission to appeal is entered serves as the date of the notice of
appeal for calculating time under these rules.
(3)
The district clerk must notify the circuit clerk once the petitioner has
paid the fees. Upon receiving this notice, the circuit clerk must enter
the appeal on the docket. The record must be forwarded and filed in
accordance with Rules 11 and 12(c).
Rule 6. Appeal in a Bankruptcy Case From a
Final Judgment, Order, or Decree of a District Court or Bankruptcy
Appellate Panel
(a) Appeal
From a Judgment, Order, or Decree of a District Court Exercising
Original Jurisdiction in a Bankruptcy Case.
An appeal to a court of appeals from a final judgment, order, or decree
of a district court exercising jurisdiction under 28 U.S.C. § 1334 is
taken as any other civil appeal under these rules.
(b) Appeal From a
Judgment, Order, or Decree of a District Court or Bankruptcy Appellate
Panel Exercising Appellate Jurisdiction in a Bankruptcy Case.
(1)
Applicability of Other Rules. These rules
apply to an appeal to a court of appeals under 28 U.S.C. § 158(d) from a
final judgment, order, or decree of a district court or bankruptcy
appellate panel exercising appellate jurisdiction under 28 U.S.C. §
158(a) or (b). But there are 3 exceptions:
(A)
Rules 4(a)(4), 4(b), 9, 10, 11, 12(b), 13-20, 22-23, and 24(b) do not
apply;
(B)
the reference in Rule 3(c) to “Form 1 in the Appendix of Forms” must be
read as a reference to Form 5; and
(C)
when the appeal is from a bankruptcy appellate panel, the term “district
court,” as used in any applicable rule, means “appellate panel.”
(2)
Additional Rules. In addition to the
rules made applicable by Rule 6(b)(1), the following rules apply:
(A) Motion
for rehearing.
(i)
If a timely motion for rehearing under Bankruptcy Rule 8015 is filed,
the time to appeal for all parties runs from the entry of the order
disposing of the motion. A notice of appeal filed after the district
court or bankruptcy appellate panel announces or enters a judgment,
order, or decree--but before disposition of the motion for
rehearing--becomes effective when the order disposing of the motion for
rehearing is entered.
(ii)
Appellate review of the order disposing of the motion requires the
party, in compliance with Rules 3(c) and 6(b)(1)(B), to amend a
previously filed notice of appeal. A party intending to challenge an
altered or amended judgment, order, or decree must file a notice of
appeal or amended notice of appeal within the time prescribed by Rule
4--excluding Rules 4(a)(4) and 4(b)--measured from the entry of the
order disposing of the motion.
(iii)
No additional fee is required to file an amended notice.
(B) The
record on appeal.
(i)
Within 14 days after filing the notice of appeal, the appellant must
file with the clerk possessing the record assembled in accordance with
Bankruptcy Rule 8006--and serve on the appellee--a statement of the
issues to be presented on appeal and a designation of the record to be
certified and sent to the circuit clerk.
(ii)
An appellee who believes that other parts of the record are necessary
must, within 14 days after being served with the appellant's
designation, file with the clerk and serve on the appellant a
designation of additional parts to be included.
(iii)
The record on appeal consists of:
• the redesignated record
as provided above;
• the proceedings in the
district court or bankruptcy appellate panel; and
• a certified copy of the
docket entries prepared by the clerk under Rule 3(d).
(C)
Forwarding the record.
(i)
When the record is complete, the district clerk or bankruptcy appellate
panel clerk must number the documents constituting the record and send
them promptly to the circuit clerk together with a list of the documents
correspondingly numbered and reasonably identified. Unless directed to
do so by a party or the circuit clerk, the clerk will not send to the
court of appeals documents of unusual bulk or weight, physical exhibits
other than documents, or other parts of the record designated for
omission by local rule of the court of appeals. If the exhibits are
unusually bulky or heavy, a party must arrange with the clerks in
advance for their transportation and receipt.
(ii)
All parties must do whatever else is necessary to enable the clerk to
assemble and forward the record. The court of appeals may provide by
rule or order that a certified copy of the docket entries be sent in
place of the redesignated record, but any party may request at any time
during the pendency of the appeal that the redesignated record be sent.
(D) Filing
the record. Upon receiving the record--or
a certified copy of the docket entries sent in place of the redesignated
record--the circuit clerk must file it and immediately notify all
parties of the filing date.
Rule 7. Bond for Costs on Appeal in a
Civil Case
In a civil case, the
district court may require an appellant to file a bond or provide other
security in any form and amount necessary to ensure payment of costs on
appeal. Rule 8(b) applies to a surety on a bond given under this rule.
Rule 8. Stay or Injunction Pending Appeal
(a) Motion for
Stay.
(1) Initial
Motion in the District Court. A party
must ordinarily move first in the district court for the following
relief:
(A)
a stay of the judgment or order of a district court pending appeal;
(B)
approval of a supersedeas bond; or
(C)
an order suspending, modifying, restoring, or granting an injunction
while an appeal is pending.
(2) Motion
in the Court of Appeals; Conditions on Relief.
A motion for the relief mentioned in Rule 8(a)(1) may be made to the
court of appeals or to one of its judges.
(A)
The motion must:
(i)
show that moving first in the district court would be impracticable; or
(ii)
state that, a motion having been made, the district court denied the
motion or failed to afford the relief requested and state any reasons
given by the district court for its action.
(B)
The motion must also include:
(i)
the reasons for granting the relief requested and the facts relied on;
(ii)
originals or copies of affidavits or other sworn statements supporting
facts subject to dispute; and
(iii)
relevant parts of the record.
(C)
The moving party must give reasonable notice of the motion to all
parties.
(D)
A motion under this Rule 8(a)(2) must be filed with the circuit clerk
and normally will be considered by a panel of the court. But in an
exceptional case in which time requirements make that procedure
impracticable, the motion may be made to and considered by a single
judge.
(E)
The court may condition relief on a party's filing a bond or other
appropriate security in the district court.
(b)
Proceeding Against a Surety. If a party
gives security in the form of a bond or stipulation or other undertaking
with one or more sureties, each surety submits to the jurisdiction of
the district court and irrevocably appoints the district clerk as the
surety's agent on whom any papers affecting the surety's liability on
the bond or undertaking may be served. On motion, a surety's liability
may be enforced in the district court without the necessity of an
independent action. The motion and any notice that the district court
prescribes may be served on the district clerk, who must promptly mail a
copy to each surety whose address is known.
(c) Stay in
a Criminal Case. Rule 38 of the Federal
Rules of Criminal Procedure governs a stay in a criminal case.
Rule 9. Release in a Criminal Case
(a) Release Before
Judgment of Conviction.
(1)
The district court must state in writing, or orally on the record, the
reasons for an order regarding the release or detention of a defendant
in a criminal case. A party appealing from the order must file with the
court of appeals a copy of the district court's order and the court's
statement of reasons as soon as practicable after filing the notice of
appeal. An appellant who questions the factual basis for the district
court's order must file a transcript of the release proceedings or an
explanation of why a transcript was not obtained.
(2)
After reasonable notice to the appellee, the court of appeals must
promptly determine the appeal on the basis of the papers, affidavits,
and parts of the record that the parties present or the court requires.
Unless the court so orders, briefs need not be filed.
(3)
The court of appeals or one of its judges may order the defendant's
release pending the disposition of the appeal.
(b) Release
After Judgment of Conviction. A party
entitled to do so may obtain review of a district-court order regarding
release after a judgment of conviction by filing a notice of appeal from
that order in the district court, or by filing a motion in the court of
appeals if the party has already filed a notice of appeal from the
judgment of conviction. Both the order and the review are subject to
Rule 9(a). The papers filed by the party seeking review must include a
copy of the judgment of conviction.
(c) Criteria
for Release. The court must make its
decision regarding release in accordance with the applicable provisions
of 18 U.S.C. §§ 3142, 3143, and 3145(c).
Rule 10. The Record on Appeal
(a)
Composition of the Record on Appeal. The
following items constitute the record on appeal:
(1)
the original papers and exhibits filed in the district court;
(2)
the transcript of proceedings, if any; and
(3)
a certified copy of the docket entries prepared by the district clerk.
(b) The Transcript
of Proceedings.
(1)
Appellant's Duty to Order. Within 14 days
after filing the notice of appeal or entry of an order disposing of the
last timely remaining motion of a type specified in Rule 4(a)(4)(A),
whichever is later, the appellant must do either of the following:
(A)
order from the reporter a transcript of such parts of the proceedings
not already on file as the appellant considers necessary, subject to a
local rule of the court of appeals and with the following
qualifications:
(i)
the order must be in writing;
(ii)
if the cost of the transcript is to be paid by the United States under
the Criminal Justice Act, the order must so state; and
(iii)
the appellant must, within the same period, file a copy of the order
with the district clerk; or
(B)
file a certificate stating that no transcript will be ordered.
(2)
Unsupported Finding or Conclusion. If the
appellant intends to urge on appeal that a finding or conclusion is
unsupported by the evidence or is contrary to the evidence, the
appellant must include in the record a transcript of all evidence
relevant to that finding or conclusion.
(3) Partial
Transcript. Unless the entire transcript
is ordered:
(A)
the appellant must--within the 14 days provided in Rule 10(b)(1)--file a
statement of the issues that the appellant intends to present on the
appeal and must serve on the appellee a copy of both the order or
certificate and the statement;
(B)
if the appellee considers it necessary to have a transcript of other
parts of the proceedings, the appellee must, within 14 days after the
service of the order or certificate and the statement of the issues,
file and serve on the appellant a designation of additional parts to be
ordered; and
(C)
unless within 14 days after service of that designation the appellant
has ordered all such parts, and has so notified the appellee, the
appellee may within the following 14 days either order the parts or move
in the district court for an order requiring the appellant to do so.
(4) Payment.
At the time of ordering, a party must make satisfactory arrangements
with the reporter for paying the cost of the transcript.
(c)
Statement of the Evidence When the Proceedings Were Not Recorded or When
a Transcript Is Unavailable. If the
transcript of a hearing or trial is unavailable, the appellant may
prepare a statement of the evidence or proceedings from the best
available means, including the appellant's recollection. The statement
must be served on the appellee, who may serve objections or proposed
amendments within 14 days after being served. The statement and any
objections or proposed amendments must then be submitted to the district
court for settlement and approval. As settled and approved, the
statement must be included by the district clerk in the record on
appeal.
(d) Agreed
Statement as the Record on Appeal. In
place of the record on appeal as defined in Rule 10(a), the parties may
prepare, sign, and submit to the district court a statement of the case
showing how the issues presented by the appeal arose and were decided in
the district court. The statement must set forth only those facts
averred and proved or sought to be proved that are essential to the
court's resolution of the issues. If the statement is truthful,
it--together with any additions that the district court may consider
necessary to a full presentation of the issues on appeal--must be
approved by the district court and must then be certified to the court
of appeals as the record on appeal. The district clerk must then send it
to the circuit clerk within the time provided by Rule 11. A copy of the
agreed statement may be filed in place of the appendix required by Rule
30.
(e) Correction or
Modification of the Record.
(1)
If any difference arises about whether the record truly discloses what
occurred in the district court, the difference must be submitted to and
settled by that court and the record conformed accordingly.
(2)
If anything material to either party is omitted from or misstated in the
record by error or accident, the omission or misstatement may be
corrected and a supplemental record may be certified and forwarded:
(A)
on stipulation of the parties;
(B)
by the district court before or after the record has been forwarded; or
(C)
by the court of appeals.
(3)
All other questions as to the form and content of the record must be
presented to the court of appeals.
Rule 11. Forwarding the Record
(a)
Appellant's Duty. An appellant filing a
notice of appeal must comply with Rule 10(b) and must do whatever else
is necessary to enable the clerk to assemble and forward the record. If
there are multiple appeals from a judgment or order, the clerk must
forward a single record.
(b) Duties of
Reporter and District Clerk.
(1)
Reporter's Duty to Prepare and File a Transcript.
The reporter must prepare and file a transcript as follows:
(A)
Upon receiving an order for a transcript, the reporter must enter at the
foot of the order the date of its receipt and the expected completion
date and send a copy, so endorsed, to the circuit clerk.
(B)
If the transcript cannot be completed within 30 days of the reporter's
receipt of the order, the reporter may request the circuit clerk to
grant additional time to complete it. The clerk must note on the docket
the action taken and notify the parties.
(C)
When a transcript is complete, the reporter must file it with the
district clerk and notify the circuit clerk of the filing.
(D)
If the reporter fails to file the transcript on time, the circuit clerk
must notify the district judge and do whatever else the court of appeals
directs.
(2) District
Clerk's Duty to Forward. When the record
is complete, the district clerk must number the documents constituting
the record and send them promptly to the circuit clerk together with a
list of the documents correspondingly numbered and reasonably
identified. Unless directed to do so by a party or the circuit clerk,
the district clerk will not send to the court of appeals documents of
unusual bulk or weight, physical exhibits other than documents, or other
parts of the record designated for omission by local rule of the court
of appeals. If the exhibits are unusually bulky or heavy, a party must
arrange with the clerks in advance for their transportation and receipt.
(c)
Retaining the Record Temporarily in the District Court for Use in
Preparing the Appeal. The parties may
stipulate, or the district court on motion may order, that the district
clerk retain the record temporarily for the parties to use in preparing
the papers on appeal. In that event the district clerk must certify to
the circuit clerk that the record on appeal is complete. Upon receipt of
the appellee's brief, or earlier if the court orders or the parties
agree, the appellant must request the district clerk to forward the
record.
(d) [Abrogated.]
(e) Retaining the
Record by Court Order.
(1)
The court of appeals may, by order or local rule, provide that a
certified copy of the docket entries be forwarded instead of the entire
record. But a party may at any time during the appeal request that
designated parts of the record be forwarded.
(2)
The district court may order the record or some part of it retained if
the court needs it while the appeal is pending, subject, however, to
call by the court of appeals.
(3)
If part or all of the record is ordered retained, the district clerk
must send to the court of appeals a copy of the order and the docket
entries together with the parts of the original record allowed by the
district court and copies of any parts of the record designated by the
parties.
(f)
Retaining Parts of the Record in the District Court by Stipulation of
the Parties. The parties may agree by
written stipulation filed in the district court that designated parts of
the record be retained in the district court subject to call by the
court of appeals or request by a party. The parts of the record so
designated remain a part of the record on appeal.
(g) Record
for a Preliminary Motion in the Court of Appeals.
If, before the record is forwarded, a party makes any of the following
motions in the court of appeals:
• for dismissal;
• for release;
• for a stay pending
appeal;
• for additional security
on the bond on appeal or on a supersedeas bond; or
• for any other
intermediate order--
the district clerk must
send the court of appeals any parts of the record designated by any
party.
Rule 12. Docketing the Appeal; Filing a
Representation Statement; Filing the Record
(a)
Docketing the Appeal. Upon receiving the
copy of the notice of appeal and the docket entries from the district
clerk under Rule 3(d), the circuit clerk must docket the appeal under
the title of the district-court action and must identify the appellant,
adding the appellant's name if necessary.
(b) Filing a
Representation Statement. Unless the
court of appeals designates another time, the attorney who filed the
notice of appeal must, within 14 days after filing the notice, file a
statement with the circuit clerk naming the parties that the attorney
represents on appeal.
(c) Filing
the Record, Partial Record, or Certificate.
Upon receiving the record, partial record, or district clerk's
certificate as provided in Rule 11, the circuit clerk must file it and
immediately notify all parties of the filing date.
Rule 12.1. Remand After an Indicative
Ruling by the District Court on a Motion for Relief That Is Barred by a
Pending Appeal
(a) Notice
to the Court of Appeals. If a timely
motion is made in the district court for relief that it lacks authority
to grant because of an appeal that has been docketed and is pending, the
movant must promptly notify the circuit clerk if the district court
states either that it would grant the motion or that the motion raises a
substantial issue.
(b) Remand
After an Indicative Ruling. If the
district court states that it would grant the motion or that the motion
raises a substantial issue, the court of appeals may remand for further
proceedings but retains jurisdiction unless it expressly dismisses the
appeal. If the court of appeals remands but retains jurisdiction, the
parties must promptly notify the circuit clerk when the district court
has decided the motion on remand.
Rule 13. Review of a Decision of the Tax
Court
(a) How Obtained;
Time for Filing Notice of Appeal.
(1)
Review of a decision of the United States Tax Court is commenced by
filing a notice of appeal with the Tax Court clerk within 90 days after
the entry of the Tax Court's decision. At the time of filing, the
appellant must furnish the clerk with enough copies of the notice to
enable the clerk to comply with Rule 3(d). If one party files a timely
notice of appeal, any other party may file a notice of appeal within 120
days after the Tax Court's decision is entered.
(2)
If, under Tax Court rules, a party makes a timely motion to vacate or
revise the Tax Court's decision, the time to file a notice of appeal
runs from the entry of the order disposing of the motion or from the
entry of a new decision, whichever is later.
(b) Notice
of Appeal; How Filed. The notice of
appeal may be filed either at the Tax Court clerk's office in the
District of Columbia or by mail addressed to the clerk. If sent by mail
the notice is considered filed on the postmark date, subject to § 7502
of the Internal Revenue Code, as amended, and the applicable
regulations.
(c) Contents
of the Notice of Appeal; Service; Effect of Filing and Service.
Rule 3 prescribes the contents of a notice of appeal, the manner of
service, and the effect of its filing and service. Form 2 in the
Appendix of Forms is a suggested form of a notice of appeal.
(d) The Record on
Appeal; Forwarding; Filing.
(1)
An appeal from the Tax Court is governed by the parts of Rules 10, 11,
and 12 regarding the record on appeal from a district court, the time
and manner of forwarding and filing, and the docketing in the court of
appeals. References in those rules and in Rule 3 to the district court
and district clerk are to be read as referring to the Tax Court and its
clerk.
(2)
If an appeal from a Tax Court decision is taken to more than one court
of appeals, the original record must be sent to the court named in the
first notice of appeal filed. In an appeal to any other court of
appeals, the appellant must apply to that other court to make provision
for the record.
Rule 14.
Applicability of Other Rules to the Review of a Tax Court Decision
All provisions of these
rules, except Rules 4-9, 15-20, and 22-23, apply to the review of a Tax
Court decision.
Rule 15. Review or Enforcement of an
Agency Order--How Obtained; Intervention
(a) Petition for
Review; Joint Petition.
(1)
Review of an agency order is commenced by filing, within the time
prescribed by law, a petition for review with the clerk of a court of
appeals authorized to review the agency order. If their interests make
joinder practicable, two or more persons may join in a petition to the
same court to review the same order.
(2)
The petition must:
(A)
name each party seeking review either in the caption or the body of the
petition--using such terms as “et al.,” “petitioners,” or “respondents”
does not effectively name the parties;
(B)
name the agency as a respondent (even though not named in the petition,
the United States is a respondent if required by statute); and
(C)
specify the order or part thereof to be reviewed.
(3)
Form 3 in the Appendix of Forms is a suggested form of a petition for
review.
(4)
In this rule “agency” includes an agency, board, commission, or officer;
“petition for review” includes a petition to enjoin, suspend, modify, or
otherwise review, or a notice of appeal, whichever form is indicated by
the applicable statute.
(b) Application or
Cross-Application to Enforce an Order; Answer; Default
(1)
An application to enforce an agency order must be filed with the clerk
of a court of appeals authorized to enforce the order. If a petition is
filed to review an agency order that the court may enforce, a party
opposing the petition may file a cross-application for enforcement.
(2)
Within 21 days after the application for enforcement is filed, the
respondent must serve on the applicant an answer to the application and
file it with the clerk. If the respondent fails to answer in time, the
court will enter judgment for the relief requested.
(3)
The application must contain a concise statement of the proceedings in
which the order was entered, the facts upon which venue is based, and
the relief requested.
(c) Service
of the Petition or Application. The
circuit clerk must serve a copy of the petition for review, or an
application or cross-application to enforce an agency order, on each
respondent as prescribed by Rule 3(d), unless a different manner of
service is prescribed by statute. At the time of filing, the petitioner
must:
(1)
serve, or have served, a copy on each party admitted to participate in
the agency proceedings, except for the respondents;
(2)
file with the clerk a list of those so served; and
(3)
give the clerk enough copies of the petition or application to serve
each respondent.
(d)
Intervention. Unless a statute provides
another method, a person who wants to intervene in a proceeding under
this rule must file a motion for leave to intervene with the circuit
clerk and serve a copy on all parties. The motion--or other notice of
intervention authorized by statute--must be filed within 30 days after
the petition for review is filed and must contain a concise statement of
the interest of the moving party and the grounds for intervention.
(e) Payment
of Fees. When filing any separate or
joint petition for review in a court of appeals, the petitioner must pay
the circuit clerk all required fees.
Rule 15.1. Briefs and Oral Argument in a
National Labor Relations Board Proceeding
In either an enforcement
or a review proceeding, a party adverse to the National Labor Relations
Board proceeds first on briefing and at oral argument, unless the court
orders otherwise.
Rule 16. The Record on Review or
Enforcement
(a)
Composition of the Record. The record on
review or enforcement of an agency order consists of:
(1)
the order involved;
(2)
any findings or report on which it is based; and
(3)
the pleadings, evidence, and other parts of the proceedings before the
agency.
(b)
Omissions From or Misstatements in the Record.
The parties may at any time, by stipulation, supply any omission from
the record or correct a misstatement, or the court may so direct. If
necessary, the court may direct that a supplemental record be prepared
and filed.
Rule 17. Filing the Record
(a) Agency
to File; Time for Filing; Notice of Filing.
The agency must file the record with the circuit clerk within 40 days
after being served with a petition for review, unless the statute
authorizing review provides otherwise, or within 40 days after it files
an application for enforcement unless the respondent fails to answer or
the court orders otherwise. The court may shorten or extend the time to
file the record. The clerk must notify all parties of the date when the
record is filed.
(b) Filing--What
Constitutes.
(1)
The agency must file:
(A)
the original or a certified copy of the entire record or parts
designated by the parties; or
(B)
a certified list adequately describing all documents, transcripts of
testimony, exhibits, and other material constituting the record, or
describing those parts designated by the parties.
(2)
The parties may stipulate in writing that no record or certified list be
filed. The date when the stipulation is filed with the circuit clerk is
treated as the date when the record is filed.
(3)
The agency must retain any portion of the record not filed with the
clerk. All parts of the record retained by the agency are a part of the
record on review for all purposes and, if the court or a party so
requests, must be sent to the court regardless of any prior stipulation.
Rule 18. Stay Pending Review
(a) Motion for a
Stay.
(1) Initial
Motion Before the Agency. A petitioner
must ordinarily move first before the agency for a stay pending review
of its decision or order.
(2) Motion
in the Court of Appeals. A motion for a
stay may be made to the court of appeals or one of its judges.
(A)
The motion must:
(i)
show that moving first before the agency would be impracticable; or
(ii)
state that, a motion having been made, the agency denied the motion or
failed to afford the relief requested and state any reasons given by the
agency for its action.
(B)
The motion must also include:
(i)
the reasons for granting the relief requested and the facts relied on;
(ii)
originals or copies of affidavits or other sworn statements supporting
facts subject to dispute; and
(iii)
relevant parts of the record.
(C)
The moving party must give reasonable notice of the motion to all
parties.
(D)
The motion must be filed with the circuit clerk and normally will be
considered by a panel of the court. But in an exceptional case in which
time requirements make that procedure impracticable, the motion may be
made to and considered by a single judge.
(b) Bond.
The court may condition relief on the filing of a bond or other
appropriate security.
Rule 19. Settlement of a Judgment
Enforcing an Agency Order in Part
When the court files an
opinion directing entry of judgment enforcing the agency's order in
part, the agency must within 14 days file with the clerk and serve on
each other party a proposed judgment conforming to the opinion. A party
who disagrees with the agency's proposed judgment must within 10 days
file with the clerk and serve the agency with a proposed judgment that
the party believes conforms to the opinion. The court will settle the
judgment and direct entry without further hearing or argument.
Rule 20. Applicability of Rules to the
Review or Enforcement of an Agency Order
All provisions of these
rules, except Rules 3-14 and 22-23, apply to the review or enforcement
of an agency order. In these rules, “appellant” includes a petitioner or
applicant, and “appellee” includes a respondent.
Rule 21. Writs of Mandamus and
Prohibition, and Other Extraordinary Writs
(a) Mandamus or
Prohibition to a Court: Petition, Filing, Service, and Docketing.
(1)
A party petitioning for a writ of mandamus or prohibition directed to a
court must file a petition with the circuit clerk with proof of service
on all parties to the proceeding in the trial court. The party must also
provide a copy to the trial-court judge. All parties to the proceeding
in the trial court other than the petitioner are respondents for all
purposes.
(2)(A)
The petition must be titled “In re [name of petitioner].”
(B)
The petition must state:
(i)
the relief sought;
(ii)
the issues presented;
(iii)
the facts necessary to understand the issue presented by the petition;
and
(iv)
the reasons why the writ should issue.
(C)
The petition must include a copy of any order or opinion or parts of the
record that may be essential to understand the matters set forth in the
petition.
(3)
Upon receiving the prescribed docket fee, the clerk must docket the
petition and submit it to the court.
(b) Denial; Order
Directing Answer; Briefs; Precedence.
(1)
The court may deny the petition without an answer. Otherwise, it must
order the respondent, if any, to answer within a fixed time.
(2)
The clerk must serve the order to respond on all persons directed to
respond.
(3)
Two or more respondents may answer jointly.
(4)
The court of appeals may invite or order the trial-court judge to
address the petition or may invite an amicus curiae to do so. The
trial-court judge may request permission to address the petition but may
not do so unless invited or ordered to do so by the court of appeals.
(5)
If briefing or oral argument is required, the clerk must advise the
parties, and when appropriate, the trial-court judge or amicus curiae.
(6)
The proceeding must be given preference over ordinary civil cases.
(7)
The circuit clerk must send a copy of the final disposition to the
trial-court judge.
(c) Other
Extraordinary Writs. An application for
an extraordinary writ other than one provided for in Rule 21(a) must be
made by filing a petition with the circuit clerk with proof of service
on the respondents. Proceedings on the application must conform, so far
as is practicable, to the procedures prescribed in Rule 21(a) and (b).
(d) Form of
Papers; Number of Copies. All papers must
conform to Rule 32(c)(2). Except by the court's permission, a paper must
not exceed 30 pages, exclusive of the disclosure statement, the proof of
service, and the accompanying documents required by Rule 21(a)(2)(C). An
original and 3 copies must be filed unless the court requires the filing
of a different number by local rule or by order in a particular case.
Rule 22. Habeas Corpus and Section 2255
Proceedings
(a)
Application for the Original Writ. An
application for a writ of habeas corpus must be made to the appropriate
district court. If made to a circuit judge, the application must be
transferred to the appropriate district court. If a district court
denies an application made or transferred to it, renewal of the
application before a circuit judge is not permitted. The applicant may,
under 28 U.S.C. § 2253, appeal to the court of appeals from the district
court's order denying the application.
(b) Certificate of
Appealability.
(1)
Each circuit must, by local rule, provide for sanctions against
attorneys who unreasonably and vexatiously increase litigation costs by
including unnecessary material in the appendix. n a habeas corpus
proceeding in which the detention complained of arises from process
issued by a state court, or in a 28 U.S.C. § 2255 proceeding, the
applicant cannot take an appeal unless a circuit justice or a circuit or
district judge issues a certificate of appealability under 28 U.S.C. §
2253(c). If an applicant files a notice of appeal, the district clerk
must send to the court of appeals the certificate (if any) and the
statement described in Rule 11(a) of the Rules Governing Proceedings
Under 28 U.S.C. § 2254 or § 2255 (if any), along with the notice of
appeal and the file of the district-court proceedings. If the district
judge has denied the certificate, the applicant may request a circuit
judge to issue it.
(2)
A request addressed to the court of appeals may be considered by a
circuit judge or judges, as the court prescribes. If no express request
for a certificate is filed, the notice of appeal constitutes a request
addressed to the judges of the court of appeals.
(3)
A certificate of appealability is not required when a state or its
representative or the United States or its representative appeals.
Rule 23. Custody or Release of a Prisoner
in a Habeas Corpus Proceeding
(a) Transfer
of Custody Pending Review. Pending review
of a decision in a habeas corpus proceeding commenced before a court,
justice, or judge of the United States for the release of a prisoner,
the person having custody of the prisoner must not transfer custody to
another unless a transfer is directed in accordance with this rule.
When, upon application, a custodian shows the need for a transfer, the
court, justice, or judge rendering the decision under review may
authorize the transfer and substitute the successor custodian as a
party.
(b)
Detention or Release Pending Review of Decision Not to Release.
While a decision not to release a prisoner is under review, the court or
judge rendering the decision, or the court of appeals, or the Supreme
Court, or a judge or justice of either court, may order that the
prisoner be:
(1)
detained in the custody from which release is sought;
(2)
detained in other appropriate custody; or
(3)
released on personal recognizance, with or without surety.
(c) Release
Pending Review of Decision Ordering Release.
While a decision ordering the release of a prisoner is under review, the
prisoner must--unless the court or judge rendering the decision, or the
court of appeals, or the Supreme Court, or a judge or justice of either
court orders otherwise--be released on personal recognizance, with or
without surety.
(d)
Modification of the Initial Order on Custody.
An initial order governing the prisoner's custody or release, including
any recognizance or surety, continues in effect pending review unless
for special reasons shown to the court of appeals or the Supreme Court,
or to a judge or justice of either court, the order is modified or an
independent order regarding custody, release, or surety is issued.
Rule 24. Proceeding in Forma Pauperis
(a) Leave to
Proceed in Forma Pauperis.
(1) Motion
in the District Court. Except as stated
in Rule 24(a)(3), a party to a district-court action who desires to
appeal in forma pauperis must file a motion in the district court. The
party must attach an affidavit that:
(A)
shows in the detail prescribed by Form 4 of the Appendix of Forms the
party's inability to pay or to give security for fees and costs;
(B)
claims an entitlement to redress; and
(C)
states the issues that the party intends to present on appeal.
(2) Action
on the Motion. If the district court
grants the motion, the party may proceed on appeal without prepaying or
giving security for fees and costs, unless a statute provides otherwise.
If the district court denies the motion, it must state its reasons in
writing.
(3) Prior
Approval. A party who was permitted to
proceed in forma pauperis in the district-court action, or who was
determined to be financially unable to obtain an adequate defense in a
criminal case, may proceed on appeal in forma pauperis without further
authorization, unless:
(A)
the district court--before or after the notice of appeal is
filed--certifies that the appeal is not taken in good faith or finds
that the party is not otherwise entitled to proceed in forma pauperis
and states in writing its reasons for the certification or finding; or
(B)
a statute provides otherwise.
(4) Notice
of District Court's Denial. The district
clerk must immediately notify the parties and the court of appeals when
the district court does any of the following:
(A)
denies a motion to proceed on appeal in forma pauperis;
(B)
certifies that the appeal is not taken in good faith; or
(C)
finds that the party is not otherwise entitled to proceed in forma
pauperis.
(5) Motion
in the Court of Appeals. A party may file
a motion to proceed on appeal in forma pauperis in the court of appeals
within 30 days after service of the notice prescribed in Rule 24(a)(4).
The motion must include a copy of the affidavit filed in the district
court and the district court's statement of reasons for its action. If
no affidavit was filed in the district court, the party must include the
affidavit prescribed by Rule 24(a)(1).
(b) Leave to
Proceed in Forma Pauperis on Appeal or Review of an
Administrative-Agency Proceeding. When an
appeal or review of a proceeding before an administrative agency, board,
commission, or officer (including for the purpose of this rule the
United States Tax Court) proceeds directly in a court of appeals, a
party may file in the court of appeals a motion for leave to proceed on
appeal in forma pauperis with an affidavit prescribed by Rule 24(a)(1).
(c) Leave to
Use Original Record. A party allowed to
proceed on appeal in forma pauperis may request that the appeal be heard
on the original record without reproducing any part.
Rule 25. Filing and Service
(a) Filing.
(1) Filing
with the Clerk. A paper required or
permitted to be filed in a court of appeals must be filed with the
clerk.
(2) Filing:
Method and Timeliness.
(A) In
general. Filing may be accomplished by
mail addressed to the clerk, but filing is not timely unless the clerk
receives the papers within the time fixed for filing.
(B) A brief
or appendix. A brief or appendix is
timely filed, however, if on or before the last day for filing, it is:
(i)
mailed to the clerk by First-Class Mail, or other class of mail that is
at least as expeditious, postage prepaid; or
(ii)
dispatched to a third-party commercial carrier for delivery to the clerk
within 3 days.
(C) Inmate
filing. A paper filed by an inmate
confined in an institution is timely if deposited in the institution's
internal mailing system on or before the last day for filing. If an
institution has a system designed for legal mail, the inmate must use
that system to receive the benefit of this rule. Timely filing may be
shown by a declaration in compliance with 28 U.S.C. § 1746 or by a
notarized statement, either of which must set forth the date of deposit
and state that first-class postage has been prepaid.
(D)
Electronic filing. A court of appeals may
by local rule permit or require papers to be filed, signed, or verified
by electronic means that are consistent with technical standards, if
any, that the Judicial Conference of the United States establishes. A
local rule may require filing by electronic means only if reasonable
exceptions are allowed. A paper filed by electronic means in compliance
with a local rule constitutes a written paper for the purpose of
applying these rules.
(3) Filing a
Motion with a Judge. If a motion requests
relief that may be granted by a single judge, the judge may permit the
motion to be filed with the judge; the judge must note the filing date
on the motion and give it to the clerk.
(4) Clerk's
Refusal of Documents. The clerk must not
refuse to accept for filing any paper presented for that purpose solely
because it is not presented in proper form as required by these rules or
by any local rule or practice.
(5) Privacy
Protection. An appeal in a case whose
privacy protection was governed by Federal Rule of Bankruptcy Procedure
9037, Federal Rule of Civil Procedure 5.2, or Federal Rule of Criminal
Procedure 49.1 is governed by the same rule on appeal. In all other
proceedings, privacy protection is governed by Federal Rule of Civil
Procedure 5.2, except that Federal Rule of Criminal Procedure 49.1
governs when an extraordinary writ is sought in a criminal case.
(b) Service
of All Papers Required. Unless a rule
requires service by the clerk, a party must, at or before the time of
filing a paper, serve a copy on the other parties to the appeal or
review. Service on a party represented by counsel must be made on the
party's counsel.
(c) Manner of
Service.
(1)
Service may be any of the following:
(A)
personal, including delivery to a responsible person at the office of
counsel;
(B)
by mail;
(C)
by third-party commercial carrier for delivery within 3 days; or
(D)
by electronic means, if the party being served consents in writing.
(2)
If authorized by local rule, a party may use the court's transmission
equipment to make electronic service under Rule 25(c)(1)(D).
(3)
When reasonable considering such factors as the immediacy of the relief
sought, distance, and cost, service on a party must be by a manner at
least as expeditious as the manner used to file the paper with the
court.
(4)
Service by mail or by commercial carrier is complete on mailing or
delivery to the carrier. Service by electronic means is complete on
transmission, unless the party making service is notified that the paper
was not received by the party served.
(d) Proof of
Service.
(1)
A paper presented for filing must contain either of the following:
(A)
an acknowledgment of service by the person served; or
(B)
proof of service consisting of a statement by the person who made
service certifying:
(i)
the date and manner of service;
(ii)
the names of the persons served; and
(iii)
their mail or electronic addresses, facsimile numbers, or the addresses
of the places of delivery, as appropriate for the manner of service.
(2)
When a brief or appendix is filed by mailing or dispatch in accordance
with Rule 25(a)(2)(B), the proof of service must also state the date and
manner by which the document was mailed or dispatched to the clerk.
(3)
Proof of service may appear on or be affixed to the papers filed.
(e) Number
of Copies. When these rules require the
filing or furnishing of a number of copies, a court may require a
different number by local rule or by order in a particular case.
Rule 26. Computing and Extending Time
(a)
Computing Time. The following rules apply
in computing any time period specified in these rules, in any local rule
or court order, or in any statute that does not specify a method of
computing time.
(1) Period
Stated in Days or a Longer Unit. When the
period is stated in days or a longer unit of time:
(A)
exclude the day of the event that triggers the period;
(B)
count every day, including intermediate Saturdays, Sundays, and legal
holidays; and
(C)
include the last day of the period, but if the last day is a Saturday,
Sunday, or legal holiday, the period continues to run until the end of
the next day that is not a Saturday, Sunday, or legal holiday.
(2) Period
Stated in Hours. When the period is
stated in hours:
(A)
begin counting immediately on the occurrence of the event that triggers
the period;
(B)
count every hour, including hours during intermediate Saturdays,
Sundays, and legal holidays; and
(C)
if the period would end on a Saturday, Sunday, or legal holiday, the
period continues to run until the same time on the next day that is not
a Saturday, Sunday, or legal holiday.
(3)
Inaccessibility of the Clerk's Office.
Unless the court orders otherwise, if the clerk's office is
inaccessible:
(A)
on the last day for filing under Rule 26(a)(1), then the time for filing
is extended to the first accessible day that is not a Saturday, Sunday,
or legal holiday; or
(B)
during the last hour for filing under Rule 26(a)(2), then the time for
filing is extended to the same time on the first accessible day that is
not a Saturday, Sunday, or legal holiday.
(4) “Last
Day” Defined. Unless a different time is
set by a statute, local rule, or court order, the last day ends:
(A)
for electronic filing in the district court, at midnight in the court's
time zone;
(B)
for electronic filing in the court of appeals, at midnight in the time
zone of the circuit clerk's principal office;
(C)
for filing under Rules 4(c)(1), 25(a)(2)(B), and 25(a)(2)(C)--and filing
by mail under Rule 13(b)--at the latest time for the method chosen for
delivery to the post office, third-party commercial carrier, or prison
mailing system; and
(D)
for filing by other means, when the clerk's office is scheduled to
close.
(5) “Next
Day” Defined. The “next day” is
determined by continuing to count forward when the period is measured
after an event and backward when measured before an event.
(6) “Legal
Holiday” Defined. “Legal holiday” means:
(A)
the day set aside by statute for observing New Year's Day, Martin Luther
King Jr.'s Birthday, Washington's Birthday, Memorial Day, Independence
Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, or
Christmas Day;
(B)
any day declared a holiday by the President or Congress; and
(C)
for periods that are measured after an event, any other day declared a
holiday by the state where either of the following is located: the
district court that rendered the challenged judgment or order, or the
circuit clerk's principal office.
(b)
Extending Time. For good cause, the court
may extend the time prescribed by these rules or by its order to perform
any act, or may permit an act to be done after that time expires. But
the court may not extend the time to file:
(1)
a notice of appeal (except as authorized in Rule 4) or a petition for
permission to appeal; or
(2)
a notice of appeal from or a petition to enjoin, set aside, suspend,
modify, enforce, or otherwise review an order of an administrative
agency, board, commission, or officer of the United States, unless
specifically authorized by law.
(c)
Additional Time after Service. When a
party may or must act within a specified time after service, 3 days are
added after the period would otherwise expire under Rule 26(a), unless
the paper is delivered on the date of service stated in the proof of
service. For purposes of this Rule 26(c), a paper that is served
electronically is not treated as delivered on the date of service stated
in the proof of service.
Rule 26.1. Corporate Disclosure Statement
(a) Who Must
File. Any nongovernmental corporate party
to a proceeding in a court of appeals must file a statement that
identifies any parent corporation and any publicly held corporation that
owns 10% or more of its stock or states that there is no such
corporation.
(b) Time for
Filing; Supplemental Filing. A party must
file the Rule 26.1(a) statement with the principal brief or upon filing
a motion, response, petition, or answer in the court of appeals,
whichever occurs first, unless a local rule requires earlier filing.
Even if the statement has already been filed, the party's principal
brief must include the statement before the table of contents. A party
must supplement its statement whenever the information that must be
disclosed under Rule 26.1(a) changes.
(c) Number
of Copies. If the Rule 26.1(a) statement
is filed before the principal brief, or if a supplemental statement is
filed, the party must file an original and 3 copies unless the court
requires a different number by local rule or by order in a particular
case.
Rule 27. Motions
(a) In General.
(1)
Application for Relief. An application
for an order or other relief is made by motion unless these rules
prescribe another form. A motion must be in writing unless the court
permits otherwise.
(2) Contents
of a Motion.
(A) Grounds
and relief sought. A motion must state
with particularity the grounds for the motion, the relief sought, and
the legal argument necessary to support it.
(B)
Accompanying documents.
(i)
Any affidavit or other paper necessary to support a motion must be
served and filed with the motion.
(ii)
An affidavit must contain only factual information, not legal argument.
(iii)
A motion seeking substantive relief must include a copy of the trial
court's opinion or agency's decision as a separate exhibit.
(C)
Documents barred or not required.
(i)
A separate brief supporting or responding to a motion must not be filed.
(ii)
A notice of motion is not required.
(iii)
A proposed order is not required.
(3)
Response.
(A) Time to
file. Any party may file a response to a
motion; Rule 27(a)(2) governs its contents. The response must be filed
within 10 days after service of the motion unless the court shortens or
extends the time. A motion authorized by Rules 8, 9, 18, or 41 may be
granted before the 10-day period runs only if the court gives reasonable
notice to the parties that it intends to act sooner.
(B) Request
for affirmative relief. A response may
include a motion for affirmative relief. The time to respond to the new
motion, and to reply to that response, are governed by Rule 27(a)(3)(A)
and (a)(4). The title of the response must alert the court to the
request for relief.
(4) Reply to
Response. Any reply to a response must be
filed within 7 days after service of the response. A reply must not
present matters that do not relate to the response.
(b)
Disposition of a Motion for a Procedural Order.
The court may act on a motion for a procedural order--including a motion
under Rule 26(b)--at any time without awaiting a response, and may, by
rule or by order in a particular case, authorize its clerk to act on
specified types of procedural motions. A party adversely affected by the
court's, or the clerk's, action may file a motion to reconsider, vacate,
or modify that action. Timely opposition filed after the motion is
granted in whole or in part does not constitute a request to reconsider,
vacate, or modify the disposition; a motion requesting that relief must
be filed.
(c) Power of
a Single Judge to Entertain a Motion. A
circuit judge may act alone on any motion, but may not dismiss or
otherwise determine an appeal or other proceeding. A court of appeals
may provide by rule or by order in a particular case that only the court
may act on any motion or class of motions. The court may review the
action of a single judge.
(d) Form of
Papers; Page Limits; and Number of Copies.
(1) Format.
(A)
Reproduction. A motion, response, or
reply may be reproduced by any process that yields a clear black image
on light paper. The paper must be opaque and unglazed. Only one side of
the paper may be used.
(B) Cover.
A cover is not required, but there must be a caption that includes the
case number, the name of the court, the title of the case, and a brief
descriptive title indicating the purpose of the motion and identifying
the party or parties for whom it is filed. If a cover is used, it must
be white.
(C) Binding.
The document must be bound in any manner that is secure, does not
obscure the text, and permits the document to lie reasonably flat when
open.
(D) Paper
size, line spacing, and margins. The
document must be on 8 1/2 by 11 inch paper. The text must be
double-spaced, but quotations more than two lines long may be indented
and single-spaced. Headings and footnotes may be single-spaced. Margins
must be at least one inch on all four sides. Page numbers may be placed
in the margins, but no text may appear there.
(E) Typeface
and type styles. The document must comply
with the typeface requirements of Rule 32(a)(5) and the type-style
requirements of Rule 32(a)(6).
(2) Page
Limits. A motion or a response to a
motion must not exceed 20 pages, exclusive of the corporate disclosure
statement and accompanying documents authorized by Rule 27(a)(2)(B),
unless the court permits or directs otherwise. A reply to a response
must not exceed 10 pages.
(3) Number
of Copies. An original and 3 copies must
be filed unless the court requires a different number by local rule or
by order in a particular case.
(e) Oral
Argument. A motion will be decided
without oral argument unless the court orders otherwise.
Rule 28. Briefs
(a)
Appellant's Brief. The appellant's brief
must contain, under appropriate headings and in the order indicated:
(1)
a corporate disclosure statement if required by Rule 26.1;
(2)
a table of contents, with page references;
(3)
a table of authorities--cases (alphabetically arranged), statutes, and
other authorities--with references to the pages of the brief where they
are cited;
(4)
a jurisdictional statement, including:
(A)
the basis for the district court's or agency's subject-matter
jurisdiction, with citations to applicable statutory provisions and
stating relevant facts establishing jurisdiction;
(B)
the basis for the court of appeals' jurisdiction, with citations to
applicable statutory provisions and stating relevant facts establishing
jurisdiction;
(C)
the filing dates establishing the timeliness of the appeal or petition
for review; and
(D)
an assertion that the appeal is from a final order or judgment that
disposes of all parties' claims, or information establishing the court
of appeals' jurisdiction on some other basis;
(5)
a statement of the issues presented for review;
(6)
a statement of the case briefly indicating the nature of the case, the
course of proceedings, and the disposition below;
(7)
a statement of facts relevant to the issues submitted for review with
appropriate references to the record (see Rule 28(e));
(8)
a summary of the argument, which must contain a succinct, clear, and
accurate statement of the arguments made in the body of the brief, and
which must not merely repeat the argument headings;
(9)
the argument, which must contain:
(A)
appellant's contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies; and
(B)
for each issue, a concise statement of the applicable standard of review
(which may appear in the discussion of the issue or under a separate
heading placed before the discussion of the issues);
(10)
a short conclusion stating the precise relief sought; and
(11)
the certificate of compliance, if required by Rule 32(a)(7).
(b)
Appellee's Brief. The appellee's brief
must conform to the requirements of Rule 28(a)(1)-(9) and (11), except
that none of the following need appear unless the appellee is
dissatisfied with the appellant's statement:
(1)
the jurisdictional statement;
(2)
the statement of the issues;
(3)
the statement of the case;
(4)
the statement of the facts; and
(5)
the statement of the standard of review.
(c) Reply
Brief. The appellant may file a brief in
reply to the appellee's brief. Unless the court permits, no further
briefs may be filed. A reply brief must contain a table of contents,
with page references, and a table of authorities--cases (alphabetically
arranged), statutes, and other authorities--with references to the pages
of the reply brief where they are cited.
(d)
References to Parties. In briefs and at
oral argument, counsel should minimize use of the terms “appellant” and
“appellee.” To make briefs clear, counsel should use the parties' actual
names or the designations used in the lower court or agency proceeding,
or such descriptive terms as “the employee,” “the injured person,” “the
taxpayer,” “the ship,” “the stevedore.”
(e)
References to the Record. References to
the parts of the record contained in the appendix filed with the
appellant's brief must be to the pages of the appendix. If the appendix
is prepared after the briefs are filed, a party referring to the record
must follow one of the methods detailed in Rule 30(c). If the original
record is used under Rule 30(f) and is not consecutively paginated, or
if the brief refers to an unreproduced part of the record, any reference
must be to the page of the original document. For example:
• Answer p. 7;
• Motion for Judgment p.
2;
• Transcript p. 231.
Only clear abbreviations
may be used. A party referring to evidence whose admissibility is in
controversy must cite the pages of the appendix or of the transcript at
which the evidence was identified, offered, and received or rejected.
(f)
Reproduction of Statutes, Rules, Regulations, etc.
If the court's determination of the issues presented requires the study
of statutes, rules, regulations, etc., the relevant parts must be set
out in the brief or in an addendum at the end, or may be supplied to the
court in pamphlet form.
(g) [Reserved]
(h) [Deleted]
(i) Briefs
in a Case Involving Multiple Appellants or Appellees.
In a case involving more than one appellant or appellee, including
consolidated cases, any number of appellants or appellees may join in a
brief, and any party may adopt by reference a part of another's brief.
Parties may also join in reply briefs.
(j) Citation
of Supplemental Authorities. If pertinent
and significant authorities come to a party's attention after the
party's brief has been filed--or after oral argument but before
decision--a party may promptly advise the circuit clerk by letter, with
a copy to all other parties, setting forth the citations. The letter
must state the reasons for the supplemental citations, referring either
to the page of the brief or to a point argued orally. The body of the
letter must not exceed 350 words. Any response must be made promptly and
must be similarly limited.
Rule 28.1. Cross-Appeals
(a)
Applicability. This rule applies to a
case in which a cross-appeal is filed. Rules 28(a)-(c), 31(a)(1),
32(a)(2), and 32(a)(7)(A)-(B) do not apply to such a case, except as
otherwise provided in this rule.
(b)
Designation of Appellant. The party who
files a notice of appeal first is the appellant for the purposes of this
rule and Rules 30 and 34. If notices are filed on the same day, the
plaintiff in the proceeding below is the appellant. These designations
may be modified by the parties' agreement or by court order.
(c) Briefs.
In a case involving a cross-appeal:
(1)
Appellant's Principal Brief. The
appellant must file a principal brief in the appeal. That brief must
comply with Rule 28(a).
(2)
Appellee's Principal and Response Brief.
The appellee must file a principal brief in the cross-appeal and must,
in the same brief, respond to the principal brief in the appeal. That
appellee's brief must comply with Rule 28(a), except that the brief need
not include a statement of the case or a statement of the facts unless
the appellee is dissatisfied with the appellant's statement.
(3)
Appellant's Response and Reply Brief. The
appellant must file a brief that responds to the principal brief in the
cross-appeal and may, in the same brief, reply to the response in the
appeal. That brief must comply with Rule 28(a)(2)-(9) and (11), except
that none of the following need appear unless the appellant is
dissatisfied with the appellee's statement in the cross-appeal:
(A)
the jurisdictional statement;
(B)
the statement of the issues;
(C)
the statement of the case;
(D)
the statement of the facts; and
(E)
the statement of the standard of review.
(4)
Appellee's Reply Brief. The appellee may
file a brief in reply to the response in the cross-appeal. That brief
must comply with Rule 28(a)(2)-(3) and (11) and must be limited to the
issues presented by the cross-appeal.
(5) No
Further Briefs. Unless the court permits,
no further briefs may be filed in a case involving a cross-appeal
(d) Cover.
Except for filings by unrepresented parties, the cover of the
appellant's principal brief must be blue; the appellee's principal and
response brief, red; the appellant's response and reply brief, yellow;
the appellee's reply brief, gray; an intervenor's or amicus curiae's
brief, green; and any supplemental brief, tan. The front cover of a
brief must contain the information required by Rule 32(a)(2).
(e) Length.
(1) Page
Limitation. Unless it complies with Rule
28.1(e)(2) and (3), the appellant's principal brief must not exceed 30
pages; the appellee's principal and response brief, 35 pages; the
appellant's response and reply brief, 30 pages; and the appellee's reply
brief, 15 pages.
(2)
Type-Volume Limitation.
(A)
The appellant's principal brief or the
appellant's response and reply brief is acceptable if:
(i)
it contains no more than 14,000 words; or
(ii)
it uses a monospaced face and contains no more
than 1,300 lines of text.
(B)
The appellee's principal and response brief is
acceptable if:
(i)
it contains no more than 16,500 words; or
(ii)
it uses a monospaced face and contains no more
than 1,500 lines of text.
(C)
The appellee's reply brief is acceptable if it
contains no more than half of the type volume specified in Rule
28.1(e)(2)(A).
(3)
Certificate of Compliance. A brief
submitted under Rule 28.1(e)(2) must comply with Rule 32(a)(7)(C).
(f) Time to
Serve and File a Brief. Briefs must be
served and filed as follows:
(1)
the appellant's principal brief, within 40 days
after the record is filed;
(2)
the appellee's principal and response brief,
within 30 days after the appellant's principal brief is served;
(3)
the appellant's response and reply brief, within
30 days after the appellee's principal and response brief is served; and
(4)
the appellee's reply brief, within 14 days after the appellant's
response and reply brief is served, but at least 7 days before argument
unless the court, for good cause, allows a later filing.
Rule 29. Brief of an Amicus Curiae
[Text of
paragraph (a) effective until December 1, 2010, absent contrary
Congressional action.]
(a) When
Permitted. The United States or its
officer or agency, or a State, Territory, Commonwealth, or the District
of Columbia may file an amicus-curiae brief without the consent of the
parties or leave of court. Any other amicus curiae may file a brief only
by leave of court or if the brief states that all parties have consented
to its filing.
[Text of
paragraph (a) effective December 1, 2010, absent contrary Congressional
action.]
(a) When
Permitted. The United States or its
officer or agency or a state may file an amicus-curiae brief without the
consent of the parties or leave of court. Any other amicus curiae may
file a brief only by leave of court or if the brief states that all
parties have consented to its filing.
(b) Motion
for Leave to File. The motion must be
accompanied by the proposed brief and state:
(1)
the movant's interest; and
(2)
the reason why an amicus brief is desirable and why the matters asserted
are relevant to the disposition of the case.
[Text of
paragraph (c) effective until December 1, 2010, absent contrary
Congressional action.]
(c) Contents
and Form. An amicus brief must comply
with Rule 32. In addition to the requirements of Rule 32, the cover must
identify the party or parties supported and indicate whether the brief
supports affirmance or reversal. If an amicus curiae is a corporation,
the brief must include a disclosure statement like that required of
parties by Rule 26.1. An amicus brief need not comply with Rule 28, but
must include the following:
(1)
a table of contents, with page references;
(2)
a table of authorities--cases (alphabetically arranged), statutes and
other authorities--with references to the pages of the brief where they
are cited;
(3)
a concise statement of the identity of the amicus curiae, its interest
in the case, and the source of its authority to file;
(4)
an argument, which may be preceded by a summary and which need not
include a statement of the applicable standard of review; and
(5)
a certificate of compliance, if required by Rule 32(a)(7).
[Text of
paragraph (c) effective December 1, 2010, absent contrary Congressional
action.]
(c) Contents
and Form. An amicus brief must comply
with Rule 32. In addition to the requirements of Rule 32, the cover must
identify the party or parties supported and indicate whether the brief
supports affirmance or reversal. An amicus brief need not comply with
Rule 28, but must include the following:
(1)
if the amicus curiae is a corporation, a disclosure statement like that
required of parties by Rule 26.1;
(2)
a table of contents, with page references;
(3)
a table of authorities--cases (alphabetically arranged), statutes, and
other authorities--with references to the pages of the brief where they
are cited;
(4)
a concise statement of the identity of the amicus curiae, its interest
in the case, and the source of its authority to file;
(5)
unless the amicus curiae is one listed in the first sentence of Rule
29(a), a statement that indicates whether:
(A)
a party's counsel authored the brief in whole or in part;
(B)
a party or a party's counsel contributed money that was intended to fund
preparing or submitting the brief; and
(C)
a person--other than the amicus curiae, its members, or its
counsel--contributed money that was intended to fund preparing or
submitting the brief and, if so, identifies each such person;
(6)
an argument, which may be preceded by a summary and which need not
include a statement of the applicable standard of review; and
(7)
a certificate of compliance, if required by Rule 32(a)(7).
(d) Length.
Except by the court's permission, an amicus brief may be no more than
one-half the maximum length authorized by these rules for a party's
principal brief. If the court grants a party permission to file a longer
brief, that extension does not affect the length of an amicus brief.
(e) Time for
Filing. An amicus curiae must file its
brief, accompanied by a motion for filing when necessary, no later than
7 days after the principal brief of the party being supported is filed.
An amicus curiae that does not support either party must file its brief
no later than 7 days after the appellant's or petitioner's principal
brief is filed. A court may grant leave for later filing, specifying the
time within which an opposing party may answer.
(f) Reply
Brief. Except by the court's permission,
an amicus curiae may not file a reply brief.
(g) Oral
Argument. An amicus curiae may
participate in oral argument only with the court's permission.
Rule 30. Appendix to the Briefs
(a) Appellant's
Responsibility.
(1) Contents
of the Appendix. The appellant must
prepare and file an appendix to the briefs containing:
(A)
the relevant docket entries in the proceeding below;
(B)
the relevant portions of the pleadings, charge, findings, or opinion;
(C)
the judgment, order, or decision in question; and
(D)
other parts of the record to which the parties wish to direct the
court's attention.
(2) Excluded
Material. Memoranda of law in the
district court should not be included in the appendix unless they have
independent relevance. Parts of the record may be relied on by the court
or the parties even though not included in the appendix.
(3) Time to
File; Number of Copies. Unless filing is
deferred under Rule 30(c), the appellant must file 10 copies of the
appendix with the brief and must serve one copy on counsel for each
party separately represented. An unrepresented party proceeding in forma
pauperis must file 4 legible copies with the clerk, and one copy must be
served on counsel for each separately represented party. The court may
by local rule or by order in a particular case require the filing or
service of a different number.
(b) All Parties'
Responsibilities.
(1)
Determining the Contents of the Appendix.
The parties are encouraged to agree on the contents of the appendix. In
the absence of an agreement, the appellant must, within 14 days after
the record is filed, serve on the appellee a designation of the parts of
the record the appellant intends to include in the appendix and a
statement of the issues the appellant intends to present for review. The
appellee may, within 14 days after receiving the designation, serve on
the appellant a designation of additional parts to which it wishes to
direct the court's attention. The appellant must include the designated
parts in the appendix. The parties must not engage in unnecessary
designation of parts of the record, because the entire record is
available to the court. This paragraph applies also to a cross-appellant
and a cross-appellee.
(2) Costs of
Appendix. Unless the parties agree
otherwise, the appellant must pay the cost of the appendix. If the
appellant considers parts of the record designated by the appellee to be
unnecessary, the appellant may advise the appellee, who must then
advance the cost of including those parts. The cost of the appendix is a
taxable cost. But if any party causes unnecessary parts of the record to
be included in the appendix, the court may impose the cost of those
parts on that party. Each circuit must, by local rule, provide for
sanctions against attorneys who unreasonably and vexatiously increase
litigation costs by including unnecessary material in the appendix.
(c) Deferred
Appendix.
(1) Deferral
Until After Briefs Are Filed. The court
may provide by rule for classes of cases or by order in a particular
case that preparation of the appendix may be deferred until after the
briefs have been filed and that the appendix may be filed 21 days after
the appellee's brief is served. Even though the filing of the appendix
may be deferred, Rule 30(b) applies; except that a party must designate
the parts of the record it wants included in the appendix when it serves
its brief, and need not include a statement of the issues presented.
(2)
References to the Record.
(A)
If the deferred appendix is used, the parties may cite in their briefs
the pertinent pages of the record. When the appendix is prepared, the
record pages cited in the briefs must be indicated by inserting record
page numbers, in brackets, at places in the appendix where those pages
of the record appear.
(B)
A party who wants to refer directly to pages of the appendix may serve
and file copies of the brief within the time required by Rule 31(a),
containing appropriate references to pertinent pages of the record. In
that event, within 14 days after the appendix is filed, the party must
serve and file copies of the brief, containing references to the pages
of the appendix in place of or in addition to the references to the
pertinent pages of the record. Except for the correction of
typographical errors, no other changes may be made to the brief.
(d) Format
of the Appendix. The appendix must begin
with a table of contents identifying the page at which each part begins.
The relevant docket entries must follow the table of contents. Other
parts of the record must follow chronologically. When pages from the
transcript of proceedings are placed in the appendix, the transcript
page numbers must be shown in brackets immediately before the included
pages. Omissions in the text of papers or of the transcript must be
indicated by asterisks. Immaterial formal matters (captions,
subscriptions, acknowledgments, etc.) should be omitted.
(e)
Reproduction of Exhibits. Exhibits
designated for inclusion in the appendix may be reproduced in a separate
volume, or volumes, suitably indexed. Four copies must be filed with the
appendix, and one copy must be served on counsel for each separately
represented party. If a transcript of a proceeding before an
administrative agency, board, commission, or officer was used in a
district-court action and has been designated for inclusion in the
appendix, the transcript must be placed in the appendix as an exhibit.
(f) Appeal
on the Original Record Without an Appendix.
The court may, either by rule for all cases or classes of cases or by
order in a particular case, dispense with the appendix and permit an
appeal to proceed on the original record with any copies of the record,
or relevant parts, that the court may order the parties to file.
Rule 31. Serving and Filing Briefs
(a) Time to Serve
and File a Brief.
(1)
The appellant must serve and file a brief within 40 days after the
record is filed. The appellee must serve and file a brief within 30 days
after the appellant's brief is served. The appellant may serve and file
a reply brief within 14 days after service of the appellee's brief but a
reply brief must be filed at least 7 days before argument, unless the
court, for good cause, allows a later filing.
(2)
A court of appeals that routinely considers cases on the merits promptly
after the briefs are filed may shorten the time to serve and file
briefs, either by local rule or by order in a particular case.
(b) Number
of Copies. Twenty-five copies of each
brief must be filed with the clerk and 2 copies must be served on each
unrepresented party and on counsel for each separately represented
party. An unrepresented party proceeding in forma pauperis must file 4
legible copies with the clerk, and one copy must be served on each
unrepresented party and on counsel for each separately represented
party. The court may by local rule or by order in a particular case
require the filing or service of a different number.
(c)
Consequence of Failure to File. If an
appellant fails to file a brief within the time provided by this rule,
or within an extended time, an appellee may move to dismiss the appeal.
An appellee who fails to file a brief will not be heard at oral argument
unless the court grants permission.
Rule 32. Form of Briefs, Appendices, and
Other Papers
(a) Form of a
Brief.
(1)
Reproduction.
(A)
A brief may be reproduced by any process that yields a clear black image
on light paper. The paper must be opaque and unglazed. Only one side of
the paper may be used.
(B)
Text must be reproduced with a clarity that equals or exceeds the output
of a laser printer.
(C)
Photographs, illustrations, and tables may be reproduced by any method
that results in a good copy of the original; a glossy finish is
acceptable if the original is glossy.
(2) Cover.
Except for filings by unrepresented parties, the cover of the
appellant's brief must be blue; the appellee's, red; an intervenor's or
amicus curiae's, green; any reply brief, gray; and any supplemental
brief, tan. The front cover of a brief must contain:
(A)
the number of the case centered at the top;
(B)
the name of the court;
(C)
the title of the case (see Rule 12(a));
(D)
the nature of the proceeding (e.g., Appeal, Petition for Review) and the
name of the court, agency, or board below;
(E)
the title of the brief, identifying the party or parties for whom the
brief is filed; and
(F)
the name, office address, and telephone number of counsel representing
the party for whom the brief is filed.
(3) Binding.
The brief must be bound in any manner that is secure, does not obscure
the text, and permits the brief to lie reasonably flat when open
(4) Paper
Size, Line Spacing, and Margins. The
brief must be on 8 1/2 by 11 inch paper. The text must be double-spaced,
but quotations more than two lines long may be indented and
single-spaced. Headings and footnotes may be single-spaced. Margins must
be at least one inch on all four sides. Page numbers may be placed in
the margins, but no text may appear there.
(5)
Typeface. Either a proportionally spaced
or a monospaced face may be used.
(A)
A proportionally spaced face must include serifs, but sans-serif type
may be used in headings and captions. A proportionally spaced face must
be 14-point or larger.
(B)
A monospaced face may not contain more than 10 1/2 characters per inch.
(6) Type
Styles. A brief must be set in a plain,
roman style, although italics or boldface may be used for emphasis. Case
names must be italicized or underlined.
(7) Length.
(A) Page
limitation. A principal brief may not
exceed 30 pages, or a reply brief 15 pages, unless it complies with Rule
32(a)(7)(B) and (C).
(B)
Type-volume limitation.
(i)
A principal brief is acceptable if:
• it contains no more than
14,000 words; or
• it uses a monospaced
face and contains no more than 1,300 lines of text.
(ii)
A reply brief is acceptable if it contains no more than half of the type
volume specified in Rule 32(a)(7)(B)(i).
(iii)
Headings, footnotes, and quotations count toward the word and line
limitations. The corporate disclosure statement, table of contents,
table of citations, statement with respect to oral argument, any
addendum containing statutes, rules or regulations, and any certificates
of counsel do not count toward the limitation.
(C)
Certificate of compliance.
(i)
A brief submitted under Rules 28.1(e)(2) or
32(a)(7)(B) must include a certificate by the attorney, or an
unrepresented party, that the brief complies with the type-volume
limitation. The person preparing the certificate may rely on the word or
line count of the word-processing system used to prepare the brief. The
certificate must state either:
• the number of words in
the brief; or
• the number of lines of
monospaced type in the brief.
(ii)
Form 6 in the Appendix of Forms is a suggested
form of a certificate of compliance. Use of Form 6 must be regarded as
sufficient to meet the requirements of Rules 28.1(e)(3) and 32(a)(7)(C)(i).
(b) Form of
an Appendix. An appendix must comply with
Rule 32(a)(1), (2), (3), and (4), with the following exceptions:
(1)
The cover of a separately bound appendix must be white.
(2)
An appendix may include a legible photocopy of any document found in the
record or of a printed judicial or agency decision.
(3)
When necessary to facilitate inclusion of odd-sized documents such as
technical drawings, an appendix may be a size other than 8 1/2 by 11
inches, and need not lie reasonably flat when opened.
(c) Form of Other
Papers.
(1) Motion.
The form of a motion is governed by Rule 27(d).
(2) Other
Papers. Any other paper, including a
petition for panel rehearing and a petition for hearing or rehearing en
banc, and any response to such a petition, must be reproduced in the
manner prescribed by Rule 32(a), with the following exceptions:
(A)
A cover is not necessary if the caption and signature page of the paper
together contain the information required by Rule 32(a)(2). If a cover
is used, it must be white.
(B)
Rule 32(a)(7) does not apply.
(d)
Signature. Every brief, motion, or other
paper filed with the court must be signed by the party filing the paper
or, if the party is represented, by one of the party's attorneys.
(e) Local
Variation. Every court of appeals must
accept documents that comply with the form requirements of this rule. By
local rule or order in a particular case a court of appeals may accept
documents that do not meet all of the form requirements of this rule.
Rule 32.1. Citing Judicial Dispositions
(a) Citation
Permitted. A court may not prohibit or
restrict the citation of federal judicial opinions, orders, judgments,
or other written dispositions that have been:
(i)
designated as “unpublished,” “not for publication,” “non-precedential,”
“not precedent,” or the like; and
(ii)
issued on or after January 1, 2007.
(b) Copies
Required. If a party cites a federal
judicial opinion, order, judgment, or other written disposition that is
not available in a publicly accessible electronic database, the party
must file and serve a copy of that opinion, order, judgment, or
disposition with the brief or other paper in which it is cited.
Rule 33. Appeal Conferences
The court may direct the
attorneys--and, when appropriate, the parties--to participate in one or
more conferences to address any matter that may aid in disposing of the
proceedings, including simplifying the issues and discussing settlement.
A judge or other person designated by the court may preside over the
conference, which may be conducted in person or by telephone. Before a
settlement conference, the attorneys must consult with their clients and
obtain as much authority as feasible to settle the case. The court may,
as a result of the conference, enter an order controlling the course of
the proceedings or implementing any settlement agreement.
Rule 34. Oral Argument
(a) In General.
(1) Party's
Statement. Any party may file, or a court
may require by local rule, a statement explaining why oral argument
should, or need not, be permitted.
(2)
Standards. Oral argument must be allowed
in every case unless a panel of three judges who have examined the
briefs and record unanimously agrees that oral argument is unnecessary
for any of the following reasons:
(A)
the appeal is frivolous;
(B)
the dispositive issue or issues have been authoritatively decided; or
(C)
the facts and legal arguments are adequately presented in the briefs and
record, and the decisional process would not be significantly aided by
oral argument.
(b) Notice
of Argument; Postponement. The clerk must
advise all parties whether oral argument will be scheduled, and, if so,
the date, time, and place for it, and the time allowed for each side. A
motion to postpone the argument or to allow longer argument must be
filed reasonably in advance of the hearing date.
(c) Order
and Contents of Argument. The appellant
opens and concludes the argument. Counsel must not read at length from
briefs, records, or authorities.
(d)
Cross-Appeals and Separate Appeals. If
there is a cross-appeal, Rule 28.1(b) determines which party is the
appellant and which is the appellee for purposes of oral argument.
Unless the court directs otherwise, a cross-appeal or separate appeal
must be argued when the initial appeal is argued. Separate parties
should avoid duplicative argument.
(e)
Nonappearance of a Party. If the appellee
fails to appear for argument, the court must hear appellant's argument.
If the appellant fails to appear for argument, the court may hear the
appellee's argument. If neither party appears, the case will be decided
on the briefs, unless the court orders otherwise.
(f)
Submission on Briefs. The parties may
agree to submit a case for decision on the briefs, but the court may
direct that the case be argued.
(g) Use of
Physical Exhibits at Argument; Removal.
Counsel intending to use physical exhibits other than documents at the
argument must arrange to place them in the courtroom on the day of the
argument before the court convenes. After the argument, counsel must
remove the exhibits from the courtroom, unless the court directs
otherwise. The clerk may destroy or dispose of the exhibits if counsel
does not reclaim them within a reasonable time after the clerk gives
notice to remove them.
Rule 35. En Banc Determination
(a) When
Hearing or Rehearing En Banc May Be Ordered.
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
heard or reheard by the court of appeals en banc. An en banc hearing or
rehearing is not favored and ordinarily will not be ordered unless:
(1)
en banc consideration is necessary to secure or
maintain uniformity of the court's decisions; or
(2)
the proceeding involves a question of
exceptional importance.
(b) Petition
for Hearing or Rehearing En Banc. A party
may petition for a hearing or rehearing en banc.
(1)
The petition must begin with a statement that either:
(A)
the panel decision conflicts with a decision of the United States
Supreme Court or of the court to which the petition is addressed (with
citation to the conflicting case or cases) and consideration by the full
court is therefore necessary to secure and maintain uniformity of the
court's decisions; or
(B)
the proceeding involves one or more questions of exceptional importance,
each of which must be concisely stated; for example, a petition may
assert that a proceeding presents a question of exceptional importance
if it involves an issue on which the panel decision conflicts with the
authoritative decisions of other United States Courts of Appeals that
have addressed the issue.
(2)
Except by the court's permission, a petition for an en banc hearing or
rehearing must not exceed 15 pages, excluding material not counted under
Rule 32.
(3)
For purposes of the page limit in Rule 35(b)(2), if a party files both a
petition for panel rehearing and a petition for rehearing en banc, they
are considered a single document even if they are filed separately,
unless separate filing is required by local rule.
(c) Time for
Petition for Hearing or Rehearing En Banc.
A petition that an appeal be heard initially en banc must be filed by
the date when the appellee's brief is due. A petition for a rehearing en
banc must be filed within the time prescribed by Rule 40 for filing a
petition for rehearing.
(d) Number
of Copies. The number of copies to be
filed must be prescribed by local rule and may be altered by order in a
particular case.
(e)
Response. No response may be filed to a
petition for an en banc consideration unless the court orders a
response.
(f) Call for
a Vote. A vote need not be taken to
determine whether the case will be heard or reheard en banc unless a
judge calls for a vote.
Rule 36. Entry of Judgment; Notice
(a) Entry.
A judgment is entered when it is noted on the docket. The clerk must
prepare, sign, and enter the judgment:
(1)
after receiving the court's opinion--but if settlement of the judgment's
form is required, after final settlement; or
(2)
if a judgment is rendered without an opinion, as the court instructs.
(b) Notice.
On the date when judgment is entered, the clerk must serve on all
parties a copy of the opinion--or the judgment, if no opinion was
written--and a notice of the date when the judgment was entered.
Rule 37. Interest on Judgment
(a) When the
Court Affirms. Unless the law provides
otherwise, if a money judgment in a civil case is affirmed, whatever
interest is allowed by law is payable from the date when the district
court's judgment was entered.
(b) When the
Court Reverses. If the court modifies or
reverses a judgment with a direction that a money judgment be entered in
the district court, the mandate must contain instructions about the
allowance of interest.
Rule 38. Frivolous Appeal--Damages and
Costs
If a court of appeals
determines that an appeal is frivolous, it may, after a separately filed
motion or notice from the court and reasonable opportunity to respond,
award just damages and single or double costs to the appellee.
Rule 39. Costs
(a) Against
Whom Assessed. The following rules apply
unless the law provides or the court orders otherwise:
(1)
if an appeal is dismissed, costs are taxed against the appellant, unless
the parties agree otherwise;
(2)
if a judgment is affirmed, costs are taxed against the appellant;
(3)
if a judgment is reversed, costs are taxed against the appellee;
(4)
if a judgment is affirmed in part, reversed in part, modified, or
vacated, costs are taxed only as the court orders.
(b) Costs
For and Against the United States. Costs
for or against the United States, its agency, or officer will be
assessed under Rule 39(a) only if authorized by law.
(c) Costs of
Copies. Each court of appeals must, by
local rule, fix the maximum rate for taxing the cost of producing
necessary copies of a brief or appendix, or copies of records authorized
by Rule 30(f). The rate must not exceed that generally charged for such
work in the area where the clerk's office is located and should
encourage economical methods of copying.
(d) Bill of Costs:
Objections; Insertion in Mandate.
(1)
A party who wants costs taxed must--within 14 days after entry of
judgment--file with the circuit clerk, with proof of service, an
itemized and verified bill of costs.
(2)
Objections must be filed within 14 days after service of the bill of
costs, unless the court extends the time.
(3)
The clerk must prepare and certify an itemized statement of costs for
insertion in the mandate, but issuance of the mandate must not be
delayed for taxing costs. If the mandate issues before costs are finally
determined, the district clerk must--upon the circuit clerk's
request--add the statement of costs, or any amendment of it, to the
mandate.
(e) Costs on
Appeal Taxable in the District Court. The
following costs on appeal are taxable in the district court for the
benefit of the party entitled to costs under this rule:
(1)
the preparation and transmission of the record;
(2)
the reporter's transcript, if needed to determine the appeal;
(3)
premiums paid for a supersedeas bond or other bond to preserve rights
pending appeal; and
(4)
the fee for filing the notice of appeal.
Rule 40. Petition for Panel Rehearing
(a) Time to File;
Contents; Answer; Action by the Court if Granted.
(1) Time.
Unless the time is shortened or extended by order or local rule, a
petition for panel rehearing may be filed within 14 days after entry of
judgment. But in a civil case, if the United States or its officer or
agency is a party, the time within which any party may seek rehearing is
45 days after entry of judgment, unless an order shortens or extends the
time.
(2)
Contents. The petition must state with
particularity each point of law or fact that the petitioner believes the
court has overlooked or misapprehended and must argue in support of the
petition. Oral argument is not permitted.
(3) Answer.
Unless the court requests, no answer to a petition for panel rehearing
is permitted. But ordinarily rehearing will not be granted in the
absence of such a request.
(4) Action
by the Court. If a petition for panel
rehearing is granted, the court may do any of the following:
(A)
make a final disposition of the case without reargument;
(B)
restore the case to the calendar for reargument or resubmission; or
(C)
issue any other appropriate order.
(b) Form of
Petition; Length. The petition must
comply in form with Rule 32. Copies must be served and filed as Rule 31
prescribes. Unless the court permits or a local rule provides otherwise,
a petition for panel rehearing must not exceed 15 pages.
Rule 41. Mandate: Contents; Issuance and
Effective Date; Stay
(a)
Contents. Unless the court directs that a
formal mandate issue, the mandate consists of a certified copy of the
judgment, a copy of the court's opinion, if any, and any direction about
costs.
(b) When
Issued. The court's mandate must issue 7
days after the time to file a petition for rehearing expires, or 7 days
after entry of an order denying a timely petition for panel rehearing,
petition for rehearing en banc, or motion for stay of mandate, whichever
is later. The court may shorten or extend the time.
(c)
Effective Date. The mandate is effective
when issued.
(d) Staying the
Mandate.
(1) On
Petition for Rehearing or Motion. The
timely filing of a petition for panel rehearing, petition for rehearing
en banc, or motion for stay of mandate, stays the mandate until
disposition of the petition or motion, unless the court orders
otherwise.
(2) Pending
Petition for Certiorari.
(A)
A party may move to stay the mandate pending the filing of a petition
for a writ of certiorari in the Supreme Court. The motion must be served
on all parties and must show that the certiorari petition would present
a substantial question and that there is good cause for a stay.
(B)
The stay must not exceed 90 days, unless the period is extended for good
cause or unless the party who obtained the stay files a petition for the
writ and so notifies the circuit clerk in writing within the period of
the stay. In that case, the stay continues until the Supreme Court's
final disposition.
(C)
The court may require a bond or other security as a condition to
granting or continuing a stay of the mandate.
(D)
The court of appeals must issue the mandate immediately when a copy of a
Supreme Court order denying the petition for writ of certiorari is
filed.
Rule 42.
Voluntary Dismissal
(a)
Dismissal in the District Court. Before
an appeal has been docketed by the circuit clerk, the district court may
dismiss the appeal on the filing of a stipulation signed by all parties
or on the appellant's motion with notice to all parties.
(b)
Dismissal in the Court of Appeals. The
circuit clerk may dismiss a docketed appeal if the parties file a signed
dismissal agreement specifying how costs are to be paid and pay any fees
that are due. But no mandate or other process may issue without a court
order. An appeal may be dismissed on the appellant's motion on terms
agreed to by the parties or fixed by the court.
Rule 43. Substitution of Parties
(a) Death of a
Party.
(1) After
Notice of Appeal Is Filed. If a party
dies after a notice of appeal has been filed or while a proceeding is
pending in the court of appeals, the decedent's personal representative
may be substituted as a party on motion filed with the circuit clerk by
the representative or by any party. A party's motion must be served on
the representative in accordance with Rule 25. If the decedent has no
representative, any party may suggest the death on the record, and the
court of appeals may then direct appropriate proceedings.
(2) Before
Notice of Appeal Is Filed--Potential Appellant.
If a party entitled to appeal dies before filing a notice of appeal, the
decedent's personal representative--or, if there is no personal
representative, the decedent's attorney of record--may file a notice of
appeal within the time prescribed by these rules. After the notice of
appeal is filed, substitution must be in accordance with Rule 43(a)(1).
(3) Before
Notice of Appeal Is Filed--Potential Appellee.
If a party against whom an appeal may be taken dies after entry of a
judgment or order in the district court, but before a notice of appeal
is filed, an appellant may proceed as if the death had not occurred.
After the notice of appeal is filed, substitution must be in accordance
with Rule 43(a)(1).
(b)
Substitution for a Reason Other Than Death.
If a party needs to be substituted for any reason other than death, the
procedure prescribed in Rule 43(a) applies.
(c) Public
Officer: Identification; Substitution.
(1)
Identification of Party. A public officer
who is a party to an appeal or other proceeding in an official capacity
may be described as a party by the public officer's official title
rather than by name. But the court may require the public officer's name
to be added.
(2)
Automatic Substitution of Officeholder.
When a public officer who is a party to an appeal or other proceeding in
an official capacity dies, resigns, or otherwise ceases to hold office,
the action does not abate. The public officer's successor is
automatically substituted as a party. Proceedings following the
substitution are to be in the name of the substituted party, but any
misnomer that does not affect the substantial rights of the parties may
be disregarded. An order of substitution may be entered at any time, but
failure to enter an order does not affect the substitution.
Rule 44. Case Involving a Constitutional
Question When the United States or the Relevant State is Not a Party
(a)
Constitutional Challenge to Federal Statute.
If a party questions the constitutionality of an Act of Congress in a
proceeding in which the United States or its agency, officer, or
employee is not a party in an official capacity, the questioning party
must give written notice to the circuit clerk immediately upon the
filing of the record or as soon as the question is raised in the court
of appeals. The clerk must then certify that fact to the Attorney
General.
(b)
Constitutional Challenge to State Statute.
If a party questions the constitutionality of a statute of a State in a
proceeding in which that State or its agency, officer, or employee is
not a party in an official capacity, the questioning party must give
written notice to the circuit clerk immediately upon the filing of the
record or as soon as the question is raised in the court of appeals. The
clerk must then certify that fact to the attorney general of the State.
Rule 45. Clerk's Duties
(a) General
Provisions.
(1)
Qualifications. The circuit clerk must
take the oath and post any bond required by law. Neither the clerk nor
any deputy clerk may practice as an attorney or counselor in any court
while in office.
(2)
When Court Is Open. The court of appeals is always open
for filing any paper, issuing and returning process, making a motion,
and entering an order. The clerk's office with the clerk or a deputy in
attendance must be open during business hours on all days except
Saturdays, Sundays, and legal holidays. A court may provide by local
rule or by order that the clerk's office be open for specified hours on
Saturdays or on legal holidays other than New Year's Day, Martin Luther
King, Jr.'s Birthday, Washington's Birthday, Memorial Day, Independence
Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, and
Christmas Day.
(b) Records.
(1) The
Docket. The circuit clerk must maintain a
docket and an index of all docketed cases in the manner prescribed by
the Director of the Administrative Office of the United States Courts.
The clerk must record all papers filed with the clerk and all process,
orders, and judgments.
(2)
Calendar. Under the court's direction,
the clerk must prepare a calendar of cases awaiting argument. In placing
cases on the calendar for argument, the clerk must give preference to
appeals in criminal cases and to other proceedings and appeals entitled
to preference by law.
(3) Other
Records. The clerk must keep other books
and records required by the Director of the Administrative Office of the
United States Courts, with the approval of the Judicial Conference of
the United States, or by the court.
(c) Notice
of an Order or Judgment. Upon the entry
of an order or judgment, the circuit clerk must immediately serve a
notice of entry on each party, with a copy of any opinion, and must note
the date of service on the docket. Service on a party represented by
counsel must be made on counsel.
(d) Custody
of Records and Papers. The circuit clerk
has custody of the court's records and papers. Unless the court orders
or instructs otherwise, the clerk must not permit an original record or
paper to be taken from the clerk's office. Upon disposition of the case,
original papers constituting the record on appeal or review must be
returned to the court or agency from which they were received. The clerk
must preserve a copy of any brief, appendix, or other paper that has
been filed.
Rule 46. Attorneys
(a) Admission to
the Bar.
(1)
Eligibility. An attorney is eligible for
admission to the bar of a court of appeals if that attorney is of good
moral and professional character and is admitted to practice before the
Supreme Court of the United States, the highest court of a state,
another United States court of appeals, or a United States district
court (including the district courts for Guam, the Northern Mariana
Islands, and the Virgin Islands).
(2)
Application. An applicant must file an
application for admission, on a form approved by the court that contains
the applicant's personal statement showing eligibility for membership.
The applicant must subscribe to the following oath or affirmation:
“I, ________________, do
solemnly swear [or affirm] that I will conduct myself as an attorney and
counselor of this court, uprightly and according to law; and that I will
support the Constitution of the United States.”
(3)
Admission Procedures. On written or oral
motion of a member of the court's bar, the court will act on the
application. An applicant may be admitted by oral motion in open court.
But, unless the court orders otherwise, an applicant need not appear
before the court to be admitted. Upon admission, an applicant must pay
the clerk the fee prescribed by local rule or court order.
(b) Suspension or
Disbarment.
(1)
Standard. A member of the court's bar is
subject to suspension or disbarment by the court if the member:
(A)
has been suspended or disbarred from practice in any other court; or
(B)
is guilty of conduct unbecoming a member of the court's bar.
(2)
Procedure. The member must be given an
opportunity to show good cause, within the time prescribed by the court,
why the member should not be suspended or disbarred.
(3) Order.
The court must enter an appropriate order after the member responds and
a hearing is held, if requested, or after the time prescribed for a
response expires, if no response is made.
(c)
Discipline. A court of appeals may
discipline an attorney who practices before it for conduct unbecoming a
member of the bar or for failure to comply with any court rule. First,
however, the court must afford the attorney reasonable notice, an
opportunity to show cause to the contrary, and, if requested, a hearing.
Rule 47. Local Rules by Courts of Appeals
(a) Local Rules.
(1)
Each court of appeals acting by a majority of its judges in regular
active service may, after giving appropriate public notice and
opportunity for comment, make and amend rules governing its practice. A
generally applicable direction to parties or lawyers regarding practice
before a court must be in a local rule rather than an internal operating
procedure or standing order. A local rule must be consistent with--but
not duplicative of--Acts of Congress and rules adopted under 28 U.S.C. §
2072 and must conform to any uniform numbering system prescribed by the
Judicial Conference of the United States. Each circuit clerk must send
the Administrative Office of the United States Courts a copy of each
local rule and internal operating procedure when it is promulgated or
amended.
(2)
A local rule imposing a requirement of form must not be enforced in a
manner that causes a party to lose rights because of a nonwillful
failure to comply with the requirement.
(b)
Procedure When There Is No Controlling Law.
A court of appeals may regulate practice in a particular case in any
manner consistent with federal law, these rules, and local rules of the
circuit. No sanction or other disadvantage may be imposed for
noncompliance with any requirement not in federal law, federal rules, or
the local circuit rules unless the alleged violator has been furnished
in the particular case with actual notice of the requirement.
Rule 48. Masters
(a)
Appointment; Powers. A court of appeals
may appoint a special master to hold hearings, if necessary, and to
recommend factual findings and disposition in matters ancillary to
proceedings in the court. Unless the order referring a matter to a
master specifies or limits the master's powers, those powers include,
but are not limited to, the following:
(1)
regulating all aspects of a hearing;
(2)
taking all appropriate action for the efficient performance of the
master's duties under the order;
(3)
requiring the production of evidence on all matters embraced in the
reference; and
(4)
administering oaths and examining witnesses and parties.
(b)
Compensation. If the master is not a
judge or court employee, the court must determine the master's
compensation and whether the cost is to be charged to any party.
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