Federal Rules of Appellate Procedure

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FEDERAL RULES OF APPELLATE PROCEDURE

WITH FORMS

112TH CONGRESS

 

” COMMITTEE PRINT ! No. 1

 

1st Session

 

DECEMBER 1, 2011

 

UNUMEPLURIBUS

Printed for the use

of

 

THE COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

 

 

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 2011

COMMITTEE ON THE JUDICIARY

 

ONE HUNDRED TWELFTH CONGRESS

LAMAR SMITH, Texas, Chairman

 

 

F. JAMES SENSENBRENNER, JR., Wisconsin

HOWARD COBLE, North Carolina

ELTON GALLEGLY, California

BOB GOODLATTE, Virginia

DANIEL E. LUNGREN, California

STEVE CHABOT, Ohio

DARRELL E. ISSA, California

MIKE PENCE, Indiana

J. RANDY FORBES, Virginia

STEVE KING, Iowa

TRENT FRANKS, Arizona

LOUIE GOHMERT, Texas

JIM JORDAN, Ohio

TED POE, Texas

JASON CHAFFETZ, Utah

TIM GRIFFIN, Arkansas

TOM MARINO, Pennsylvania

TREY GOWDY, South Carolina

DENNIS ROSS, Florida

SANDY ADAMS, Florida

BEN QUAYLE, Arizona

MARK AMODEI, Nevada

JOHN CONYERS, JR., Michigan

HOWARD L. BERMAN, California

JERROLD NADLER, New York

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia

MELVIN L. WATT, North Carolina

ZOE LOFGREN, California

SHEILA JACKSON LEE, Texas

MAXINE WATERS, California

STEVE COHEN, Tennessee

HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia

PEDRO R. PIERLUISI, Puerto Rico

MIKE QUIGLEY, Illinois

JUDY CHU, California

TED DEUTCH, Florida

LINDA T. SA´ NCHEZ, California

[Vacant]

 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel

PERRY APELBAUM, Minority Staff Director and Chief Counsel

 

 

(II)

 

 

FOREWORD

 

This document contains the Federal Rules of Appellate Procedure

together with forms, as amended to December 1, 2011. The

rules and forms have been promulgated and amended by the

United States Supreme Court pursuant to law, and further amended

by Acts of Congress. This document has been prepared by the

Committee in response to the need for an official up-to-date document

containing the latest amendments to the rules.

 

For the convenience of the user, where a rule has been amended

a reference to the date the amendment was promulgated and the

date the amendment became effective follows the text of the rule.

 

The Committee on Rules of Practice and Procedure and the Advisory

Committee on the Federal Rules of Appellate Procedure,

Judicial Conference of the United States, prepared notes explaining

the purpose and intent of the amendments to the rules. The

Committee Notes may be found in the Appendix to Title 28, United

States Code, following the particular rule to which they relate.

 

 

Chairman, Committee on the Judiciary.

 

DECEMBER 1, 2011.

 

(III)

 

 

AUTHORITY FOR PROMULGATION OF RULES

 

TITLE 28, UNITED STATES CODE

 

§ 2072. Rules of procedure and evidence; power to prescribe

 

(a) The Supreme Court shall have the power to prescribe general

rules of practice and procedure and rules of evidence for cases in

the United States district courts (including proceedings before

magistrate judges thereof) and courts of appeals.

(b) Such rules shall not abridge, enlarge or modify any substantive

right. All laws in conflict with such rules shall be of no

further force or effect after such rules have taken effect.

(c) Such rules may define when a ruling of a district court is

final for the purposes of appeal under section 1291 of this title.

(Added Pub. L. 100–702, title IV, §401(a), Nov. 19, 1988, 102 Stat. 4648,

eff. Dec. 1, 1988; amended Pub. L. 101–650, title III, §§315, 321, Dec.

1, 1990, 104 Stat. 5115, 5117.)

 

§ 2073. Rules of procedure and evidence; method of prescribing

 

(a)(1) The Judicial Conference shall prescribe and publish the

procedures for the consideration of proposed rules under this section.

 

 

(2) The Judicial Conference may authorize the appointment of

committees to assist the Conference by recommending rules to be

prescribed under sections 2072 and 2075 of this title. Each such

committee shall consist of members of the bench and the professional

bar, and trial and appellate judges.

(b) The Judicial Conference shall authorize the appointment of

a standing committee on rules of practice, procedure, and evidence

under subsection (a) of this section. Such standing committee

shall review each recommendation of any other committees so

appointed and recommend to the Judicial Conference rules of

practice, procedure, and evidence and such changes in rules proposed

by a committee appointed under subsection (a)(2) of this

section as may be necessary to maintain consistency and otherwise

promote the interest of justice.

(c)(1) Each meeting for the transaction of business under this

chapter by any committee appointed under this section shall be

open to the public, except when the committee so meeting, in

open session and with a majority present, determines that it is in

the public interest that all or part of the remainder of the meeting

on that day shall be closed to the public, and states the reason

for so closing the meeting. Minutes of each meeting for the transaction

of business under this chapter shall be maintained by the

committee and made available to the public, except that any portion

of such minutes, relating to a closed meeting and made available

to the public, may contain such deletions as may be necessary

to avoid frustrating the purposes of closing the meeting.

 

(V)

 

 

AUTHORITY FOR PROMULGATION OF RULES

 

(2) Any meeting for the transaction of business under this chapter,

by a committee appointed under this section, shall be preceded

by sufficient notice to enable all interested persons to attend.

(d) In making a recommendation under this section or under

section 2072 or 2075, the body making that recommendation shall

provide a proposed rule, an explanatory note on the rule, and a

written report explaining the body’s action, including any minority

or other separate views.

(e) Failure to comply with this section does not invalidate a rule

prescribed under section 2072 or 2075 of this title.

(Added Pub. L. 100–702, title IV, §401(a), Nov. 19, 1988, 102 Stat. 4649,

eff. Dec. 1, 1988; amended Pub. L. 103–394, title I, § 104(e), Oct. 22,

1994, 108 Stat. 4110.)

 

 

§ 2074. Rules of procedure and evidence; submission to Congress;

effective date

 

(a) The Supreme Court shall transmit to the Congress not later

than May 1 of the year in which a rule prescribed under section

2072 is to become effective a copy of the proposed rule. Such rule

shall take effect no earlier than December 1 of the year in which

such rule is so transmitted unless otherwise provided by law. The

Supreme Court may fix the extent such rule shall apply to proceedings

then pending, except that the Supreme Court shall not

require the application of such rule to further proceedings then

pending to the extent that, in the opinion of the court in which

such proceedings are pending, the application of such rule in such

proceedings would not be feasible or would work injustice, in

which event the former rule applies.

(b) Any such rule creating, abolishing, or modifying an evidentiary

privilege shall have no force or effect unless approved by

Act of Congress.

(Added Pub. L. 100–702, title IV, §401(a), Nov. 19, 1988, 102 Stat. 4649,

eff. Dec. 1, 1988.)

 

§ 2075. Bankruptcy rules

 

The Supreme Court shall have the power to prescribe by general

rules, the forms of process, writs, pleadings, and motions, and the

practice and procedure in cases under title 11.

 

Such rules shall not abridge, enlarge, or modify any substantive

right.

 

The Supreme Court shall transmit to Congress not later than

May 1 of the year in which a rule prescribed under this section is

to become effective a copy of the proposed rule. The rule shall

take effect no earlier than December 1 of the year in which it is

transmitted to Congress unless otherwise provided by law.

 

The bankruptcy rules promulgated under this section shall prescribe

a form for the statement required under section 707(b)(2)(C)

of title 11 and may provide general rules on the content of such

statement.

 

(Added Pub. L. 88–623, § 1, Oct. 3, 1964, 78 Stat. 1001; amended Pub.

 

L. 95–598, title II, §247, Nov. 6, 1978, 92 Stat. 2672; Pub. L. 103–394,

title I, § 104(f), Oct. 22, 1994, 108 Stat. 4110; Pub. L. 109–8, title XII,

§1232, Apr. 20, 2005, 119 Stat. 202.)

 

 

HISTORICAL NOTE

 

The Supreme Court prescribes Federal Rules of Appellate Procedure

pursuant to section 2072 of Title 28, United States Code, as

enacted by Title IV ‘‘Rules Enabling Act’’ of Pub. L. 100–702 (approved

Nov. 19, 1988, 102 Stat. 4648), effective December 1, 1988, and

section 2075 of Title 28. Pursuant to section 2074 of Title 28, the

Supreme Court transmits to Congress (not later than May 1 of the

year in which a rule prescribed under section 2072 is to become effective)

a copy of the proposed rule. The rule takes effect no earlier

than December 1 of the year in which the rule is transmitted

unless otherwise provided by law.

 

Prior to enactment of Pub. L. 100–702, the Supreme Court promulgated

Federal Rules of Appellate Procedure pursuant to section

3772 of Title 18 and sections 2072 and 2075 of Title 28 of the

United States Code. Pursuant to this authority the Rules of Appellate

Procedure were adopted by order of the Court on December

4, 1967, transmitted to Congress by the Chief Justice on January

15, 1968, and became effective on July 1, 1968 (389 U.S. 1063; Cong.

Rec., vol. 114, pt. 1, p. 113, Exec. Comm. 1361; H. Doc. 204, 90th

Cong.). Effective December 1, 1988, section 3772 of Title 18 and

former section 2072 of Title 28 were repealed and supplanted by

new sections 2072 and 2074 of Title 28, see first paragraph of Historical

Note above.

 

By the same order, the Court abrogated several rules relating to

appellate procedure formerly contained in the Rules of Criminal

Procedure for the District Courts and the Rules of Civil Procedure

for the District Courts.

 

Amendments were adopted by the Court by order dated March

30, 1970, transmitted to Congress by the Chief Justice on the same

day, and became effective July 1, 1970 (398 U.S. 971; Cong. Rec., vol.

116, pt. 7, p. 9861, Exec. Comm. 1838; H. Doc. 91–290). The amendments

affected Rules 30(a), (c) and 31(a).

 

Additional amendments were adopted by the Court by order

dated March 1, 1971, transmitted to Congress by the Chief Justice

on the same day, and became effective July 1, 1971 (401 U.S. 1029;

Cong. Rec., vol. 117, pt. 4, p. 4629, Exec. Comm. 341; H. Doc. 92–57).

The amendments affected Rules 26(a) and 45(a).

 

An additional amendment was adopted by the Court by order

dated April 24, 1972, transmitted to Congress by the Chief Justice

on the same day, and became effective October 1, 1972 (406 U.S.

1005; Cong. Rec., vol. 118, pt. 11, p. 14262, Exec. Comm. 1903; H. Doc.

92–285). The amendment affected Rule 9(c).

 

Additional amendments were adopted by the Court by order

dated April 30, 1979, transmitted to Congress by the Chief Justice

on the same day, and became effective August 1, 1979 (441 U.S. 969;

Cong. Rec., vol. 125, pt. 8, p. 9366, Exec. Comm. 1456; H. Doc. 96–112).

The amendments affected Rules 1(a), 3(c), (d), (e), 4(a), 5(d), 6(d),

 

(VII)

 

 

HISTORICAL NOTE

 

7, 10(b), 11(a), (b), (c), (d), 12, 13(a), 24(b), 27(b), 28(g), (j), 34(a), (b),

35(b), (c), 39(c), (d), and 40.

 

Section 210 of Public Law 98–473 (approved October 12, 1984, 98

Stat. 1987) amended Rule 9(c).

 

Additional amendments were adopted by the Court by order

dated March 10, 1986, transmitted to Congress by the Chief Justice

on the same day (475 U.S. 1153; Cong. Rec., vol. 132, pt. 3, p. 4267,

Exec. Comm. 2971; H. Doc. 99–179), and became effective July 1,

1986. The amendments included new Rules 3.1, 5.1, and 15.1, and affected

Rules 3(d), 8(b), 10(b), (c), 11(b), 12(a), 19, 23(b), (c), 24(a),

25(a), (b), 26(a), (c), 28(c), (j), 30(a), (b), (c), 31(a), (c), 34(a), (e), 39(c),

(d), 43(a), (c), 45(a), (b), (d), and 46(a), (b).

 

Section 7111 of Public Law 100–690 (approved November 18, 1988,

102 Stat. 4419) amended Rule 4(b).

 

Additional amendments were adopted by the Court by order

dated April 25, 1989, transmitted to Congress by the Chief Justice

on the same day (490 U.S. 1125; Cong. Rec., vol. 135, pt. 6, p. 7542,

Exec. Comm. 1058; H. Doc. 101–53), and became effective December

1, 1989. The amendments affected Rules 1(a), 3(a), 26(a), 27(a), and

28(g) and included new Rules 6 and 26.1 and a new Official Form

 

5.

Additional amendments were adopted by the Court by order

dated April 30, 1991, transmitted to Congress by the Chief Justice

on the same day (500 U.S. 1007; Cong. Rec., vol. 137, pt. 7, p. 9721,

Ex. Comm. 1192; H. Doc. 102–79), and became effective December 1,

1991. The amendments affected Rules 4(a), 6, 10(c), 25(a), 26(a), 26.1,

28(a), (b), (h), 30(b), and 34(d).

 

Additional amendments were adopted by the Court by order

dated April 22, 1993, transmitted to Congress by the Chief Justice

on the same day (507 U.S. 1059; Cong. Rec., vol. 139, pt. 6, p. 8127,

Ex. Comm. 1100; H. Doc. 103–72), and became effective December 1,

1993. The amendments affected Rules 3, 3.1, 4, 5.1, 6, 10, 12, 15, 25,

28, and 34, and Forms 1, 2, and 3.

 

Additional amendments were adopted by the Court by order

dated April 29, 1994, transmitted to Congress by the Chief Justice

on the same day (511 U.S. 1155; Cong. Rec., vol. 140, pt. 7, p. 8903,

Ex. Comm. 3082; H. Doc. 103–247), and became effective December

1, 1994. The amendments affected Rules 1, 3, 5, 5.1, 9, 13, 21, 25, 26.1,

27, 28, 30, 31, 33, 35, 38, 40, 41, and 48.

 

Additional amendments were adopted by the Court by order

dated April 27, 1995, transmitted to Congress by the Chief Justice

on the same day (514 U.S. 1137; Cong. Rec., vol. 141, pt. 8, p. 11745,

Ex. Comm. 809; H. Doc. 104–66), and became effective December 1,

1995. The amendments affected Rules 4, 8, 10, and 47.

 

Additional amendments were adopted by the Court by order

dated April 23, 1996, transmitted to Congress by the Chief Justice

on the same day (517 U.S. 1255; Cong. Rec., vol. 142, pt. 6, p. 8831,

Ex. Comm. 2489; H. Doc. 104–203), and became effective December

1, 1996. The amendments affected Rules 21, 25, and 26.

 

Section 103 of Public Law 104–132 (approved April 24, 1996, 110

Stat. 1218) amended Rule 22.

 

Additional amendments were adopted by the Court by order

dated April 24, 1998, transmitted to Congress by the Chief Justice

on the same day (523 U.S. 1147; Cong. Rec., vol. 144, pt. 6, p. 8652,

 

 

 

HISTORICAL NOTE

 

Ex. Comm. 9072; H. Doc. 105–269), and became effective December

1, 1998. The amendments affected Rules 1 to 48 and Form 4.

 

Additional amendments were adopted by the Court by order

dated April 29, 2002, transmitted to Congress by the Chief Justice

on the same day (535 U.S. 1123; Cong. Rec., vol. 148, pt. 5, p. 6813,

Ex. Comm. 6622; H. Doc. 107–206), and became effective December

1, 2002. The amendments affected Rules 1, 4, 5, 21, 24, 25, 26, 26.1,

27, 28, 31, 32, 36, 41, 44, and 45 and included a new Official Form 6.

 

Additional amendments were adopted by the Court by order

dated March 27, 2003, transmitted to Congress by the Chief Justice

on the same day (538 U.S. 1071; Cong. Rec., vol. 149, pt. 6, p. 7689,

Ex. Comm. 1496; H. Doc. 108–59), and became effective December 1,

2003. The amendments affected Forms 1, 2, 3, and 5.

 

Additional amendments were adopted by the Court by order

dated April 25, 2005, transmitted to Congress by the Chief Justice

on the same day (544 U.S. 1151; Cong. Rec., vol. 151, pt. 7, p. 8784,

Ex. Comm. 1907; H. Doc. 109–24), and became effective December 1,

2005. The amendments affected Rules 4, 26, 27, 28, 32, 34, 35, and 45,

and added new Rule 28.1.

 

Additional amendments were adopted by the Court by order

dated April 12, 2006, transmitted to Congress by the Chief Justice

on the same day (547 U.S. 1221; Cong. Rec., vol. 152, pt. 6, p. 7213,

Ex. Comm. 7318; H. Doc. 109–106), and became effective December

1, 2006. The amendments affected Rule 25 and added new Rule 32.1.

 

An additional amendment was adopted by the Court by order

dated April 30, 2007, transmitted to Congress by the Chief Justice

on the same day (550 U.S. 983; Cong. Rec., vol. 153, pt. 8, p. 10611,

Ex. Comm. 1374; H. Doc. 110–24), and became effective December 1,

2007. The amendment affected Rule 25.

 

Additional amendments were adopted by the Court by order

dated March 26, 2009, transmitted to Congress by the Chief Justice

on March 25, 2009 (556 U.S. 1291; Cong. Rec., vol. 155, pt. 8, p. 10210,

Ex. Comm. 1263; H. Doc. 111–28), and became effective December 1,

2009. The amendments affected Rules 4, 5, 6, 10, 12, 15, 19, 22, 25, 26,

27, 28.1, 30, 31, 39, and 41, and added new Rule 12.1.

 

Additional amendments were adopted by the Court by order

dated April 28, 2010, transmitted to Congress by the Chief Justice

on the same day (559 U.S.——; Cong. Rec., vol. 156, p. H3481, Daily

Issue, Ex. Comm. 7474; H. Doc. 111–112), and became effective December

1, 2010. The amendments affected Rules 1, 4, 29, and Form

 

4.

Additional amendments were adopted by the Court by order

dated April 26, 2011, transmitted to Congress by the Chief Justice

on the same day (563 U.S.——; Cong. Rec., vol. 157, p. H3407, Daily

Issue, Ex. Comm. 1663; H. Doc. 112–30), and became effective December

1, 2011. The amendments affected Rules 4 and 40.

 

Committee Notes

 

Committee Notes prepared by the Committee on Rules of Practice

and Procedure and the Advisory Committee on the Federal

Rules of Appellate Procedure, Judicial Conference of the United

States, explaining the purpose and intent of the amendments are

set out in the Appendix to Title 28, United States Code, following

 

 

 

HISTORICAL NOTE

 

the particular rule to which they relate. In addition, the rules and

amendments, together with Committee Notes, are set out in the

House documents listed above.

 

 

 

TABLE OF CONTENTS

 

Page

Foreword ……………………………………………………………………………………………….. III

Authority for promulgation of rules ………………………………………………………….. V

Historical note ……………………………………………………………………………………….. VII

 

RULES

 

Title I. Applicability of Rules:

Rule 1. Scope of Rules; Definition; Title ………………………………………………. 1

Rule 2. Suspension of Rules ………………………………………………………………… 1

Title II. Appeal From a Judgment or Order of a District Court:

Rule 3. Appeal as of Right—How Taken ………………………………………………… 1

Rule 3.1. Appeal from a Judgment of a Magistrate Judge in a Civil Case

(Abrogated).

Rule 4. Appeal as of Right—When Taken ………………………………………………. 3

Rule 5. Appeal by Permission ……………………………………………………………… 7

Rule 5.1. Appeal by Leave under 28 U.S.C. § 636(c)(5) (Abrogated).

Rule 6. Appeal in a Bankruptcy Case From a Final Judgment, Order, or

Decree of a District Court or Bankruptcy Appellate Panel ………….. 8

Rule 7. Bond for Costs on Appeal in a Civil Case ……………………………………. 9

Rule 8. Stay or Injunction Pending Appeal …………………………………………… 10

Rule 9. Release in a Criminal Case ………………………………………………………. 10

Rule 10. The Record on Appeal ……………………………………………………………. 11

Rule 11. Forwarding the Record …………………………………………………………… 13

Rule 12. Docketing the Appeal; Filing a Representation Statement; Filing

the Record ……………………………………………………………………………. 14

Rule 12.1. Remand After an Indicative Ruling by the District Court on a

Motion for Relief That Is Barred by a Pending Appeal ………………… 15

Title III. Review of a Decision of the United States Tax Court:

Rule 13. Review of a Decision of the Tax Court ……………………………………… 15

Rule 14. Applicability of Other Rules to the Review of a Tax Court Decision 16

Title IV. Review or Enforcement of an Order of an Administrative Agency,

Board, Commission, or Officer:

Rule 15. Review or Enforcement of an Agency Order—How Obtained;

Intervention ………………………………………………………………………….. 16

Rule 15.1. Briefs and Oral Argument in a National Labor Relations Board

Proceeding ……………………………………………………………………………. 17

Rule 16. The Record on Review or Enforcement …………………………………….. 17

Rule 17. Filing the Record ………………………………………………………………….. 18

Rule 18. Stay Pending Review …………………………………………………………….. 18

Rule 19. Settlement of a Judgment Enforcing an Agency Order in Part ……. 19

Rule 20. Applicability of Rules to the Review or Enforcement of an Agency

Order ……………………………………………………………………………………. 19

Title V. Extraordinary Writs:

Rule 21. Writs of Mandamus and Prohibition, and Other Extraordinary

Writs ……………………………………………………………………………………. 19

Title VI. Habeas Corpus; Proceedings in Forma Pauperis:

Rule 22. Habeas Corpus and Section 2255 Proceedings …………………………….. 20

Rule 23. Custody or Release of a Prisoner in a Habeas Corpus Proceeding …. 21

Rule 24. Proceeding in Forma Pauperis ………………………………………………… 22

Title VII. General Provisions:

Rule 25. Filing and Service …………………………………………………………………. 23

Rule 26. Computing and Extending Time ………………………………………………. 24

Rule 26.1. Corporate Disclosure Statement …………………………………………… 26

Rule 27. Motions ……………………………………………………………………………….. 26

Rule 28. Briefs …………………………………………………………………………………… 28

 

(XI)

 

 

 

XII CONTENTS

 

Title VII. General Provisions—Continued Page

Rule 28.1. Cross-Appeals ……………………………………………………………………… 30

Rule 29. Brief of an Amicus Curiae ………………………………………………………. 32

Rule 30. Appendix to the Briefs ……………………………………………………………. 33

Rule 31. Serving and Filing Briefs ……………………………………………………….. 35

Rule 32. Form of Briefs, Appendices, and Other Papers …………………………… 35

Rule 32.1. Citing Judicial Dispositions …………………………………………………. 37

Rule 33. Appeal Conferences ……………………………………………………………….. 38

Rule 34. Oral Argument ……………………………………………………………………… 38

Rule 35. En Banc Determination ………………………………………………………….. 39

Rule 36. Entry of Judgment; Notice ……………………………………………………… 40

Rule 37. Interest on Judgment …………………………………………………………….. 40

Rule 38. Frivolous Appeal—Damages and Costs ……………………………………… 40

Rule 39. Costs ……………………………………………………………………………………. 40

Rule 40. Petition for Panel Rehearing ………………………………………………….. 41

Rule 41. Mandate: Contents; Issuance and Effective Date; Stay ……………….. 42

Rule 42. Voluntary Dismissal ……………………………………………………………… 43

Rule 43. Substitution of Parties ………………………………………………………….. 43

Rule 44. Case Involving a Constitutional Question When the United States

or the Relevant State is Not a Party ………………………………………… 44

Rule 45. Clerk’s Duties ……………………………………………………………………….. 44

Rule 46. Attorneys …………………………………………………………………………….. 45

Rule 47. Local Rules by Courts of Appeals …………………………………………….. 46

Rule 48. Masters ………………………………………………………………………………… 46

 

 

FORMS

 

Form 1. Notice of Appeal to a Court of Appeals From a Judgment or Order of

a District Court ……………………………………………………………………… 49

Form 2. Notice of Appeal to a Court of Appeals From a Decision of the United

States Tax Court ……………………………………………………………………. 49

Form 3. Petition for Review of Order of an Agency, Board, Commission or

Officer …………………………………………………………………………………… 50

Form 4. Affidavit Accompanying Motion for Permission to Appeal In Forma

Pauperis ………………………………………………………………………………… 51

Form 5. Notice of Appeal to a Court of Appeals from a Judgment or Order of

a District Court or a Bankruptcy Appellate Panel ………………………. 55

Form 6. Certificate of Compliance With Rule 32(a) ……………………………………… 56

 

 

 

FEDERAL RULES OF APPELLATE PROCEDURE

 

Effective July 1, 1968, as amended to December 1, 2011

 

TITLE I. APPLICABILITY OF RULES

 

Rule 1. Scope of Rules; Definition; 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.

(b) Definition. In these rules, ‘state’ 1 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.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff. Dec.

1, 1989; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998;

Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 28, 2010, eff. Dec. 1, 2010.)

 

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).

 

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

 

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A

DISTRICT COURT

 

 

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.

1So in original.

 

(1)

 

 

Rule 3 FEDERAL RULES OF APPELLATE PROCEDURE

 

(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.

 

 

FEDERAL RULES OF APPELLATE PROCEDURE Rule 4

 

(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.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July

1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 22, 1993, eff. Dec. 1, 1993;

Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.)

 

[Rule 3.1. Appeal from a Judgment of a Magistrate Judge in a Civil

Case] (Abrogated Apr. 24, 1998, eff. Dec. 1, 1998)

 

Rule 4. Appeal as of Right—When Taken

 

(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

entry of the judgment or order appealed from.

(B) The notice of appeal may be filed by any party within

60 days after entry of the judgment or order appealed

from if one of the parties is:

(i) the United States;

(ii) a United States agency;

(iii) a United States officer or employee sued in an

official capacity; or

(iv) a current or former United States officer or employee

sued in an individual capacity for an act or

omission occurring in connection with duties performed

on the United States’ behalf—including all instances

in which the United States represents that person

when the judgment or order is entered or files the

appeal for that person.

(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;

 

 

Rule 4 FEDERAL RULES OF APPELLATE PROCEDURE

 

(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

 

 

FEDERAL RULES OF APPELLATE PROCEDURE Rule 4

 

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.

 

 

Rule 4 FEDERAL RULES OF APPELLATE PROCEDURE

 

(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.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Pub. L. 100–690, title

VII, § 7111, Nov. 18, 1988, 102 Stat. 4419; Apr. 30, 1991, eff. Dec. 1, 1991;

Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr.

24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005,

eff. Dec. 1, 2005; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 28, 2010, eff. Dec.

1, 2010; Apr. 26, 2011, eff. Dec. 1, 2011.)

 

 

 

FEDERAL RULES OF APPELLATE PROCEDURE Rule 5

 

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

 

 

Rule 5.1 FEDERAL RULES OF APPELLATE PROCEDURE

 

circuit clerk must enter the appeal on the docket. The record

must be forwarded and filed in accordance with Rules 11 and

12(c).

 

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec.

1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002;

Mar. 26, 2009, eff. Dec. 1, 2009.)

 

[Rule 5.1. Appeal by Leave under 28 U.S.C. § 636(c)(5)] (Abrogated

Apr. 24, 1998, eff. Dec. 1, 1998)

 

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.

 

 

FEDERAL RULES OF APPELLATE PROCEDURE Rule 7

 

(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.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff. Dec.

1, 1989; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993;

Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009.)

 

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.

 

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 24, 1998, eff. Dec.

1, 1998.)

 

 

 

Rule 8 FEDERAL RULES OF APPELLATE PROCEDURE 10

 

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.

(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 27, 1995, eff. Dec.

1, 1995; Apr. 24, 1998, eff. Dec. 1, 1998.)

 

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

 

 

11 FEDERAL RULES OF APPELLATE PROCEDURE Rule 10

 

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).

(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Pub. L. 98–473, title II,

§210, Oct. 12, 1984, 98 Stat. 1987; Apr. 29, 1994, eff. Dec. 1, 1994; Apr.

24, 1998, eff. Dec. 1, 1998.)

 

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.

 

 

Rule 10 FEDERAL RULES OF APPELLATE PROCEDURE 12

 

(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 courts 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.

 

 

13 FEDERAL RULES OF APPELLATE PROCEDURE Rule 11

 

(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.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July

1, 1986; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993;

Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 24, 1998, eff. Dec. 1, 1998; Mar.

26, 2009, eff. Dec. 1, 2009.)

 

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 reporters 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

 

 

Rule 12 FEDERAL RULES OF APPELLATE PROCEDURE 14

 

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.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July

1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998.)

 

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.

 

 

15 FEDERAL RULES OF APPELLATE PROCEDURE Rule 13

 

(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.

(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July

1, 1986; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998;

Mar. 26, 2009, eff. Dec. 1, 2009.)

 

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.

(As added Mar. 26, 2009, eff. Dec. 1, 2009.)

 

TITLE III. REVIEW OF A DECISION OF THE UNITED STATES

TAX COURT

 

 

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.

 

 

Rule 14 FEDERAL RULES OF APPELLATE PROCEDURE 16

 

(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.

(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec.

1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.)

 

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.

 

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

 

TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN

ADMINISTRATIVE AGENCY, BOARD, COMMISSION, OR OFFICER

 

 

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

 

 

17 FEDERAL RULES OF APPELLATE PROCEDURE Rule 16

 

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.

(As amended Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec.

1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009.)

 

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.

 

(As added Mar. 10, 1986, eff. July 1, 1986; amended Apr. 24, 1998, eff.

Dec. 1, 1998.)

 

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 FEDERAL RULES OF APPELLATE PROCEDURE 18

 

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

 

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.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

 

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

 

 

19 FEDERAL RULES OF APPELLATE PROCEDURE Rule 21

 

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.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

 

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.

 

(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec.

1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009.)

 

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.

 

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

 

TITLE V. EXTRAORDINARY WRITS

 

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.

 

 

Rule 22 FEDERAL RULES OF APPELLATE PROCEDURE 20

 

(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.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 23, 1996, eff. Dec.

1, 1996; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)

 

TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA

PAUPERIS

 

 

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) In 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

 

 

21 FEDERAL RULES OF APPELLATE PROCEDURE Rule 23

 

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.

(As amended Pub. L. 104–132, title I, §103, Apr. 24, 1996, 110 Stat.

1218; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec 1, 2009.)

 

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.

(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec.

1, 1998.)

 

 

 

Rule 24 FEDERAL RULES OF APPELLATE PROCEDURE 22

 

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.

 

 

23 FEDERAL RULES OF APPELLATE PROCEDURE Rule 25

 

(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July

1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)

 

TITLE VII. GENERAL PROVISIONS

 

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,

 

 

Rule 26 FEDERAL RULES OF APPELLATE PROCEDURE 24

 

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.

(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 30, 1991, eff. Dec.

1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994;

Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 24, 1998, eff. Dec. 1, 1998; Apr.

29, 2002, eff. Dec. 1, 2002; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007,

eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)

 

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.

 

 

25 FEDERAL RULES OF APPELLATE PROCEDURE Rule 26

 

(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

 

 

Rule 26.1 FEDERAL RULES OF APPELLATE PROCEDURE

 

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.

(As amended Mar. 1, 1971, eff. July 1, 1971; Mar. 10, 1986, eff. July

1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991, eff. Dec. 1, 1991;

Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 24, 1998, eff. Dec. 1, 1998; Apr.

29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Mar. 26, 2009,

eff. Dec. 1, 2009.)

 

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.

(As added Apr. 25, 1989, eff. Dec. 1, 1989; amended Apr. 30, 1991, eff.

Dec. 1, 1991; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec.

1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)

 

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.

 

 

27 FEDERAL RULES OF APPELLATE PROCEDURE Rule 27

 

(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.

 

 

Rule 28 FEDERAL RULES OF APPELLATE PROCEDURE 28

 

(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 81/2 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.

(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff. Dec.

1, 1989; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998;

Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Mar.

26, 2009, eff. Dec. 1, 2009.)

 

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

 

 

29 FEDERAL RULES OF APPELLATE PROCEDURE Rule 28

 

(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:

 

 

Rule 28.1 FEDERAL RULES OF APPELLATE PROCEDURE

 

• 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) [Reserved]

(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.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July

1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991, eff. Dec. 1, 1991;

Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994; Apr.

24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005,

eff. Dec. 1, 2005.)

 

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.

 

 

FEDERAL RULES OF APPELLATE PROCEDURE Rule 28.1

 

(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; and 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

 

 

Rule 29 FEDERAL RULES OF APPELLATE PROCEDURE 32

 

(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.

(As added Apr. 25, 2005, eff. Dec. 1, 2005; amended Mar. 26, 2009, eff.

Dec. 1, 2009.)

 

Rule 29. Brief of an Amicus Curiae

 

(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.

(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

 

 

33 FEDERAL RULES OF APPELLATE PROCEDURE Rule 30

 

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.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 28, 2010, eff. Dec.

1, 2010.)

 

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

 

 

Rule 30 FEDERAL RULES OF APPELLATE PROCEDURE 34

 

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 dis-

trict-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

 

 

35 FEDERAL RULES OF APPELLATE PROCEDURE Rule 32

 

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.

 

(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 10, 1986, eff. July

1, 1986; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 29, 1994, eff. Dec. 1, 1994;

Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009.)

 

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.

(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 10, 1986, eff. July

1, 1986; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998;

Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 26, 2009, eff. Dec. 1, 2009.)

 

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

 

 

Rule 32 FEDERAL RULES OF APPELLATE PROCEDURE 36

 

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 81/2 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 101/2

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

 

 

FEDERAL RULES OF APPELLATE PROCEDURE Rule 32.1

 

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 81/2 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.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec.

1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005.)

 

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 FEDERAL RULES OF APPELLATE PROCEDURE 38

 

(As added Apr. 12, 2006, eff. Dec. 1, 2006.)

 

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.

 

(As amended Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec.

1, 1998.)

 

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.

 

 

39 FEDERAL RULES OF APPELLATE PROCEDURE Rule 35

 

(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.

(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July

1, 1986; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993;

Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 25, 2005, eff. Dec. 1, 2005.)

 

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.

 

 

Rule 36 FEDERAL RULES OF APPELLATE PROCEDURE 40

 

(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.

(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec.

1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 25, 2005, eff. Dec. 1, 2005.)

 

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.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec.

1, 2002.)

 

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.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

 

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.

 

(As amended Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec.

1, 1998.)

 

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.

 

 

41 FEDERAL RULES OF APPELLATE PROCEDURE Rule 40

 

(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.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July

1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009.)

 

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, unless

an order shortens or extends the time, the petition may be

filed by any party within 45 days after entry of judgment if

one of the parties is:

(A) the United States;

(B) a United States agency;

(C) a United States officer or employee sued in an official

capacity; or

(D) a current or former United States officer or employee

sued in an individual capacity for an act or omission

occurring in connection with duties performed on the

United States’ behalf—including all instances in which the

United States represents that person when the court of appeals’

judgment is entered or files the petition for that

person.

(2) Contents. The petition must state with particularity each

point of law or fact that the petitioner believes the court has

 

 

Rule 41 FEDERAL RULES OF APPELLATE PROCEDURE 42

 

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 re-

submission; 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.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec.

1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 26, 2011, eff. Dec. 1, 2011.)

 

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.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec.

1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 26, 2009, eff. Dec. 1, 2009.)

 

 

 

43 FEDERAL RULES OF APPELLATE PROCEDURE Rule 43

 

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.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

 

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

 

 

Rule 44 FEDERAL RULES OF APPELLATE PROCEDURE 44

 

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.

 

(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec.

1, 1998.)

 

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.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec.

1, 2002.)

 

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.

 

 

45 FEDERAL RULES OF APPELLATE PROCEDURE Rule 46

 

(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.

(As amended Mar. 1, 1971, eff. July 1, 1971; Mar. 10, 1986, eff. July

1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002;

Apr. 25, 2005, eff. Dec. 1, 2005.)

 

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, llllllllllll, 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.

 

 

Rule 47 FEDERAL RULES OF APPELLATE PROCEDURE 46

 

(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.

(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec.

1, 1998.)

 

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.

(As amended Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 24, 1998, eff. Dec.

1, 1998.)

 

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;

 

 

47 FEDERAL RULES OF APPELLATE PROCEDURE Rule 48

 

(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.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec.

1, 1998.)

 

 

 

APPENDIX OF FORMS

 

Form 1. Notice of Appeal to a Court of Appeals From a Judgment

or Order of a District Court

 

United States District Court for the lllllllllllllll

District of lllllllllll

 

File Number lllllllll

 

A.B., Plaintiff

 

v. # Notice of Appeal

C.D., Defendant

Notice is hereby given that lll(here name all parties taking

the appeal)lll, (plaintiffs) (defendants) in the above named

case,* hereby appeal to the United States Court of Appeals for the

lllCircuit (from the final judgment) (from an order (describing

it)) entered in this action on the llday of lllllll, 20l.

(s)llllllllllll

Attorney for llllll Address: llllllll

 

* See Rule 3(c) for permissible ways of identifying appellants.

(As amended Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff. Dec.

1, 2003.)

 

Form 2. Notice of Appeal to a Court of Appeals From a Decision of

the United States Tax Court

 

UNITED STATES TAX COURT

Washington, D.C.

 

 

 

Notice of Appeal

 

Notice is hereby given that lll(here name all parties taking

the appeal)*lllhereby appeal to the United States Court of Appeals

for the lll Circuit from (that part of) the decision of this

court entered in the above captioned proceeding on the llll day of lllllllllll, 20l (relating to llllllllll).

 

(s)llllllllllll Counsel for llllll Address: llllllll

 

* See Rule 3(c) for permissible ways of identifying appellants.

(As amended Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff. Dec.

1, 2003.)

 

(49)

 

 

Form 3 FEDERAL RULES OF APPELLATE PROCEDURE 50

 

Form 3. Petition for Review of Order of an Agency, Board, Commission

or Officer

 

United States Court of Appeals for the lllllllllCircuit

 

A.B., Petitioner

 

v. # Petition for Review

XYZ Commission, Respondent

lll(here name all parties bringing the petition)*lll hereby

petition the court for review of the Order of the XYZ Commission

(describe the order) entered on lllll, 20l.

 

(s)lllllllllllll,

 

Attorney for Petitioners

Address:lllllllll

 

* See Rule 15.

(As amended Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff. Dec.

1, 2003.)

 

 

 

51 FEDERAL RULES OF APPELLATE PROCEDURE Form 4

 

Form 4. Affidavit Accompanying Motion for Permission to Appeal

In Forma Pauperis

 

 

 

 

Form 4 FEDERAL RULES OF APPELLATE PROCEDURE 52

 

 

 

 

53 FEDERAL RULES OF APPELLATE PROCEDURE Form 4

 

 

 

 

Form 4 FEDERAL RULES OF APPELLATE PROCEDURE 54

 

 

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 28, 2010, eff. Dec.

1, 2010.)

 

 

 

55 FEDERAL RULES OF APPELLATE PROCEDURE Form 5

 

Form 5. Notice of Appeal to a Court of Appeals from a Judgment

or Order of a District Court or a Bankruptcy Appellate Panel

 

 

Notice of Appeal to United States Court of Appeals for the

llllllCircuit

 

 

llllllll, the plaintiff [or defendant or other party] appeals

to the United States Court of Appeals for the llllll Circuit from the final judgment [or order or decree] of the district

court for the district of llllll [or bankruptcy appellate

panel of the llllll circuit], entered in this case on

llllll, 20ll [here describe the judgment, order, or decree]

 

llllllllllllllllllllllllllllll

 

The parties to the judgment [or order or decree] appealed from

and the names and addresses of their respective attorneys are as

follows:

 

Dated llllllllllll Signed llllllllllll

 

Attorney for Appellant

 

Address: lllllllllll

llllllllllllllll

 

(As added Apr. 25, 1989, eff. Dec. 1, 1989; amended Mar. 27, 2003, eff.

Dec. 1, 2003.)

 

 

 

Form 6 FEDERAL RULES OF APPELLATE PROCEDURE 56

Form 6. Certificate of Compliance With Rule 32(a)

 

 

(As added Apr. 29, 2002, eff. Dec. 1, 2002.)

 

Æ

 

 

 

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