[House Prints 113-6]
[From the U.S. Government Publishing Office]
FEDERAL RULES
OF
APPELLATE PROCEDURE
____
WITH FORMS
____
DECEMBER 1, 2014
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Printed for the use
of
THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
113th Congress } {
COMMITTEE PRINT No. 6
2nd Session } {
__________________________________________________________________
FEDERAL RULES
OF
APPELLATE PROCEDURE
____
WITH FORMS
____
DECEMBER 1, 2014
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Printed for the use
of
THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2014
__________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800
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COMMITTEE ON THE JUDICIARY
One Hundred Thirteenth Congress
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina JERROLD NADLER, New York
LAMAR SMITH, Texas ROBERT C. ``BOBBY'' SCOTT,
STEVE CHABOT, Ohio Virginia
SPENCER BACHUS, Alabama ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON,
TRENT FRANKS, Arizona Jr., Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto
JIM JORDAN, Ohio Rico
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TOM MARINO, Pennsylvania LUIS V. GUTIERREZ, Illinois
TREY GOWDY, South Carolina KAREN BASS, California
RAUL LABRADOR, Idaho CEDRIC RICHMOND, Louisiana
BLAKE FARENTHOLD, Texas SUZAN DelBENE, Washington
GEORGE HOLDING, North Carolina JOE GARCIA, Florida
DOUG COLLINS, Georgia HAKEEM JEFFRIES, New York
RON DeSANTIS, Florida DAVID N. CICILLINE, Rhode
JASON T. SMITH, Missouri Island
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
(ii)
FOREWORD
This document contains the Federal Rules of Appellate Procedure
together with forms, as amended to December 1, 2014. 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, 2014.
(iii)
AUTHORITY FOR PROMULGATION OF RULES
TITLE 28, UNITED STATES CODE
Sec. 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, Sec. 401(a), Nov. 19, 1988, 102 Stat.
4648, eff. Dec. 1, 1988; amended Pub. L. 101-650, title III,
Sec. Sec. 315, 321, Dec. 1, 1990, 104 Stat. 5115, 5117.)
Sec. 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.
(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, Sec. 401(a), Nov. 19, 1988, 102 Stat.
4649, eff. Dec. 1, 1988; amended Pub. L. 103-394, title I, Sec. 104(e),
Oct. 22, 1994, 108 Stat. 4110.)
Sec. 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, Sec. 401(a), Nov. 19, 1988, 102 Stat.
4649, eff. Dec. 1, 1988.)
Sec. 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, Sec. 1, Oct. 3, 1964, 78 Stat. 1001; amended Pub.
L. 95-598, title II, Sec. 247, Nov. 6, 1978, 92 Stat. 2672; Pub. L. 103-
394, title I, Sec. 104(f), Oct. 22, 1994, 108 Stat. 4110; Pub. L. 109-8,
title XII, Sec. 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), 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, 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. 1119; Cong. Rec., vol. 156, pt. 6, p. 8139, 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.
Additional amendments were adopted by the Court by order dated April
16, 2013, transmitted to Congress by the Chief Justice on the same day
(569 U.S.----; Cong. Rec., vol. 159, p. H2652, Daily Issue, Ex. Comm.
1493; H. Doc. 113-27), and became effective December 1, 2013. The
amendments affected Rules 13, 14, 24, 28, and 28.1 and Form 4.
An additional amendment was adopted by the Court by order dated
April 25, 2014, transmitted to Congress by the Chief Justice on the same
day (572 U.S.----; Cong. Rec., vol. 160, p. H7933, Daily Issue, Ex.
Comm. 7577; H. Doc. 113-161), and became effective December 1, 2014. The
amendment affected Rule 6.
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 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.
CONTENTS
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.
Sec. 636(c)(5) (Abrogated).
Rule 6. Appeal in a Bankruptcy Case............................8
Rule 7. Bond for Costs on Appeal in a Civil Case..............10
Rule 8. Stay or Injunction Pending Appeal.....................10
Rule 9. Release in a Criminal Case............................11
Rule 10. The Record on Appeal.................................12
Rule 11. Forwarding the Record................................13
Rule 12. Docketing the Appeal; Filing a Representation
Statement; Filing the Record..................15
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. Appeals from the United States Tax Court:
Rule 13. Appeals from the Tax Court...........................16
Rule 14. Applicability of Other Rules to Appeals from the Tax
Court.........................................17
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..................................17
Rule 15.1. Briefs and Oral Argument in a National Labor
Relations Board Proceeding....................18
Rule 16. The Record on Review or Enforcement..................18
Rule 17. Filing the Record....................................18
Rule 18. Stay Pending Review..................................19
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...............................20
Title V. Extraordinary Writs:
Rule 21. Writs of Mandamus and Prohibition, and Other
Extraordinary Writs...........................20
Title VI. Habeas Corpus; Proceedings in Forma Pauperis:
Rule 22. Habeas Corpus and Section 2255 Proceedings...........21
Rule 23. Custody or Release of a Prisoner in a Habeas Corpus
Proceeding....................................22
Rule 24. Proceeding in Forma Pauperis.........................22
Title VII. General Provisions:
Rule 25. Filing and Service...................................23
Rule 26. Computing and Extending Time.........................25
Rule 26.1. Corporate Disclosure Statement.....................27
Rule 27. Motions..............................................27
Rule 28. Briefs...............................................29
Rule 28.1. Cross-Appeals......................................31
Title VII. General Provisions--Continued
Page
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.........36
Rule 32.1. Citing Judicial Dispositions.......................38
Rule 33. Appeal Conferences...................................38
Rule 34. Oral Argument........................................39
Rule 35. En Banc Determination................................39
Rule 36. Entry of Judgment; Notice............................40
Rule 37. Interest on Judgment.................................41
Rule 38. Frivolous Appeal--Damages and Costs..................41
Rule 39. Costs................................................41
Rule 40. Petition for Panel Rehearing.........................42
Rule 41. Mandate: Contents; Issuance and Effective Date; Stay.43
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.......................................45
Rule 46. Attorneys............................................46
Rule 47. Local Rules by Courts of Appeals.....................46
Rule 48. Masters..............................................47
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............ 57
Form 6. Certificate of Compliance With Rule 32(a)............. 58
FEDERAL RULES OF APPELLATE PROCEDURE
FEDERAL RULES OF APPELLATE PROCEDURE
Effective July 1, 1968, as amended to December 1, 2014
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.
---------------------------------------------------------------------------
\1\ So in original.
---------------------------------------------------------------------------
(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.
(4) An appeal by permission under 28 U.S.C. Sec. 1292(b) or
an appeal in a bankruptcy case may be taken only in the manner
prescribed by Rules 5 and 6, respectively.
(b) Joint or Consolidated Appeals.
(1) When two or more parties are entitled to appeal from a
district-court judgment or order, and their interests make
joinder practicable, they may file a joint notice of appeal.
They may then proceed on appeal as a single appellant.
(2) When the parties have filed separate timely notices of
appeal, the appeals may be joined or consolidated by the court
of appeals.
(c) Contents of the Notice of Appeal.
(1) The notice of appeal must:
(A) specify the party or parties taking the appeal
by naming each one in the caption or body of the notice,
but an attorney representing more than one party may
describe those parties with such terms as ``all
plaintiffs,'' ``the defendants,'' ``the plaintiffs A, B,
et al.,'' or ``all defendants except X'';
(B) designate the judgment, order, or part thereof
being appealed; and
(C) name the court to which the appeal is taken.
(2) A pro se notice of appeal is considered filed on behalf
of the signer and the signer's spouse and minor children (if
they are parties), unless the notice clearly indicates
otherwise.
(3) In a class action, whether or not the class has been
certified, the notice of appeal is sufficient if it names one
person qualified to bring the appeal as representative of the
class.
(4) An appeal must not be dismissed for informality of form
or title of the notice of appeal, or for failure to name a party
whose intent to appeal is otherwise clear from the notice.
(5) Form 1 in the Appendix of Forms is a suggested form of a
notice of appeal.
(d) Serving the Notice of Appeal.
(1) The district clerk must serve notice of the filing of a
notice of appeal by mailing a copy to each party's counsel of
record--excluding the appellant's--or, if a party is proceeding
pro se, to the party's last known address. When a defendant in a
criminal case appeals, the clerk must also serve a copy of the
notice of appeal on the defendant, either by personal service or
by mail addressed to the defendant. The clerk must promptly send
a copy of the notice of appeal and of the docket entries--and
any later docket entries--to the clerk of the court of appeals
named in the notice. The district clerk must note, on each copy,
the date when the notice of appeal was filed.
(2) If an inmate confined in an institution files a notice
of appeal in the manner provided by Rule 4(c), the district
clerk must also note the date when the clerk docketed the
notice.
(3) The district clerk's failure to serve notice does not
affect the validity of the appeal. The clerk must note on the
docket the names of the parties to whom the clerk mails copies,
with the date of mailing. Service is sufficient despite the
death of a party or the party's counsel.
(e) Payment of Fees. Upon filing a notice of appeal, the appellant
must pay the district clerk all required fees. The district clerk
receives the appellate docket fee on behalf of the court of appeals.
(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;
(iv) to alter or amend the judgment under
Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion
is filed no later than 28 days after the
judgment is entered.
(B)(i) If a party files a notice of appeal after the
court announces or enters a judgment--but before it
disposes of any motion listed in Rule 4(a)(4)(A)--the
notice becomes effective to appeal a judgment or order,
in whole or in part, when the order disposing of the
last such remaining motion is entered.
(ii) A party intending to challenge an order
disposing of any motion listed in Rule 4(a)(4)(A), or a
judgment's alteration or amendment upon such a motion,
must file a notice of appeal, or an amended notice of
appeal--in compliance with Rule 3(c)--within the time
prescribed by this Rule measured from the entry of the
order disposing of the last such remaining motion.
(iii) No additional fee is required to file an
amended notice.
(5) Motion for Extension of Time.
(A) The district court may extend the time to file a
notice of appeal if:
(i) a party so moves no later than 30 days
after the time prescribed by this Rule 4(a)
expires; and
(ii) regardless of whether its motion is
filed before or during the 30 days after the
time prescribed by this Rule 4(a) expires, that
party shows excusable neglect or good cause.
(B) A motion filed before the expiration of the time
prescribed in Rule 4(a)(1) or (3) may be ex parte unless
the court requires otherwise. If the motion is filed
after the expiration of the prescribed time, notice must
be given to the other parties in accordance with local
rules.
(C) No extension under this Rule 4(a)(5) may exceed
30 days after the prescribed time or 14 days after the
date when the order granting the motion is entered,
whichever is later.
(6) Reopening the Time to File an Appeal. The district court
may reopen the time to file an appeal for a period of 14 days
after the date when its order to reopen is entered, but only if
all the following conditions are satisfied:
(A) the court finds that the moving party did not
receive notice under Federal Rule of Civil Procedure
77(d) of the entry of the judgment or order sought to be
appealed within 21 days after entry;
(B) the motion is filed within 180 days after the
judgment or order is entered or within 14 days after the
moving party receives notice under Federal Rule of Civil
Procedure 77(d) of the entry, whichever is earlier; and
(C) the court finds that no party would be
prejudiced.
(7) Entry Defined.
(A) A judgment or order is entered for purposes of
this Rule 4(a):
(i) if Federal Rule of Civil Procedure 58(a)
does not require a separate document, when the
judgment or order is entered in the civil docket
under Federal Rule of Civil Procedure 79(a); or
(ii) if Federal Rule of Civil Procedure
58(a) requires a separate document, when the
judgment or order is entered in the civil docket
under Federal Rule of Civil Procedure 79(a) and
when the earlier of these events occurs:
the judgment or order is set forth on a separate document, or
150 days have run from entry of the judgment or order in the civil
docket under Federal Rule of Civil Procedure 79(a).
(B) A failure to set forth a judgment or order on a
separate document when required by Federal Rule of Civil
Procedure 58(a) does not affect the validity of an
appeal from that judgment or order.
(b) Appeal in a Criminal Case.
(1) Time for Filing a Notice of Appeal.
(A) In a criminal case, a defendant's notice of
appeal must be filed in the district court within 14
days after the later of:
(i) the entry of either the judgment or the
order being appealed; or
(ii) the filing of the government's notice
of appeal.
(B) When the government is entitled to appeal, its
notice of appeal must be filed in the district court
within 30 days after the later of:
(i) the entry of the judgment or order being
appealed; or
(ii) the filing of a notice of appeal by any
defendant.
(2) Filing Before Entry of Judgment. A notice of appeal
filed after the court announces a decision, sentence, or order--
but before the entry of the judgment or order--is treated as
filed on the date of and after the entry.
(3) Effect of a Motion on a Notice of Appeal.
(A) If a defendant timely makes any of the following
motions under the Federal Rules of Criminal Procedure,
the notice of appeal from a judgment of conviction must
be filed within 14 days after the entry of the order
disposing of the last such remaining motion, or within
14 days after the entry of the judgment of conviction,
whichever period ends later. This provision applies to a
timely motion:
(i) for judgment of acquittal under Rule 29;
(ii) for a new trial under Rule 33, but if
based on newly discovered evidence, only if the
motion is made no later than 14 days after the
entry of the judgment; or
(iii) for arrest of judgment under Rule 34.
(B) A notice of appeal filed after the court
announces a decision, sentence, or order--but before it
disposes of any of the motions referred to in Rule
4(b)(3)(A)--becomes effective upon the later of the
following:
(i) the entry of the order disposing of the
last such remaining motion; or
(ii) the entry of the judgment of
conviction.
(C) A valid notice of appeal is effective--without
amendment--to appeal from an order disposing of any of
the motions referred to in Rule 4(b)(3)(A).
(4) Motion for Extension of Time. Upon a finding of
excusable neglect or good cause, the district court may--before
or after the time has expired, with or without motion and
notice--extend the time to file a notice of appeal for a period
not to exceed 30 days from the expiration of the time otherwise
prescribed by this Rule 4(b).
(5) Jurisdiction. The filing of a notice of appeal under
this Rule 4(b) does not divest a district court of jurisdiction
to correct a sentence under Federal Rule of Criminal Procedure
35(a), nor does the filing of a motion under 35(a) affect the
validity of a notice of appeal filed before entry of the order
disposing of the motion. The filing of a motion under Federal
Rule of Criminal Procedure 35(a) does not suspend the time for
filing a notice of appeal from a judgment of conviction.
(6) Entry Defined. A judgment or order is entered for
purposes of this Rule 4(b) when it is entered on the criminal
docket.
(c) Appeal by an Inmate Confined in an Institution.
(1) If an inmate confined in an institution files a notice
of appeal in either a civil or a criminal case, the notice is
timely if it is deposited in the institution's internal mail
system on or before the last day for filing. If an institution
has a system designed for legal mail, the inmate must use that
system to receive the benefit of this rule. Timely filing may be
shown by a declaration in compliance with 28 U.S.C. Sec. 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, Sec. 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.)
Rule 5
. Appeal by Permission____________________________________________
(a) Petition for Permission to Appeal.
(1) To request permission to appeal when an appeal is within
the court of appeals' discretion, a party must file a petition
for permission to appeal. The petition must be filed with the
circuit clerk with proof of service on all other parties to the
district-court action.
(2) The petition must be filed within the time specified by
the statute or rule authorizing the appeal or, if no such time
is specified, within the time provided by Rule 4(a) for filing a
notice of appeal.
(3) If a party cannot petition for appeal unless the
district court first enters an order granting permission to do
so or stating that the necessary conditions are met, the
district court may amend its order, either on its own or in
response to a party's motion, to include the required permission
or statement. In that event, the time to petition runs from
entry of the amended order.
(b) Contents of the Petition; Answer or Cross-Petition; Oral
Argument.
(1) The petition must include the following:
(A) the facts necessary to understand the question
presented;
(B) the question itself;
(C) the relief sought;
(D) the reasons why the appeal should be allowed and
is authorized by a statute or rule; and
(E) an attached copy of:
(i) the order, decree, or judgment
complained of and any related opinion or
memorandum, and
(ii) any order stating the district court's
permission to appeal or finding that the
necessary conditions are met.
(2) A party may file an answer in opposition or a cross-
petition within 10 days after the petition is served.
(3) The petition and answer will be submitted without oral
argument unless the court of appeals orders otherwise.
(c) Form of Papers; Number of Copies. All papers must conform to
Rule 32(c)(2). Except by the court's permission, a paper must not exceed
20 pages, exclusive of the disclosure statement, the proof of service,
and the accompanying documents required by Rule 5(b)(1)(E). An original
and 3 copies must be filed unless the court requires a different number
by local rule or by order in a particular case.
(d) Grant of Permission; Fees; Cost Bond; Filing the Record.
(1) Within 14 days after the entry of the order granting
permission to appeal, the appellant must:
(A) pay the district clerk all required fees; and
(B) file a cost bond if required under Rule 7.
(2) A notice of appeal need not be filed. The date when the
order granting permission to appeal is entered serves as the
date of the notice of appeal for calculating time under these
rules.
(3) The district clerk must notify the circuit clerk once
the petitioner has paid the fees. Upon receiving this notice,
the circuit clerk must enter the appeal on the docket. The
record must be forwarded and filed in accordance with Rules 11
and 12(c).
(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
[Rule 5.1
. Appeal by Leave under 28 U.S.C. Sec. 636(c)(5)] (Abrogated Apr.
24, 1998, eff. Dec. 1, 1998)____________________________________________
Rule 6
. Appeal in a Bankruptcy Case_____________________________________
(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. Sec. 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. Sec. 158(d)(1) from
a final judgment, order, or decree of a district court or
bankruptcy appellate panel exercising appellate jurisdiction
under 28 U.S.C. Sec. 158(a) or (b), but with these
qualifications:
(A) Rules 4(a)(4), 4(b), 9, 10, 11, 12(c), 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;
(C) when the appeal is from a bankruptcy appellate
panel, ``district court,'' as used in any applicable
rule, means ``appellate panel''; and
(D) in Rule 12.1, ``district court'' includes a
bankruptcy court or bankruptcy 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 8022 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) If a party intends to challenge the
order disposing of the motion--or the alteration
or amendment of a judgment, order, or decree
upon the motion--then the party, in compliance
with Rules 3(c) and 6(b)(1)(B), must file a
notice of appeal or amended notice of appeal.
The notice or amended notice must be filed
within the time prescribed by Rule 4--excluding
Rules 4(a)(4) and 4(b)--measured from the entry
of the order disposing of the motion.
(iii) No additional fee is required to file
an amended notice.
(B) The Record on Appeal.
(i) Within 14 days after filing the notice
of appeal, the appellant must file with the
clerk possessing the record assembled in
accordance with Bankruptcy Rule 8009--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 made available 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) Making the Record Available.
(i) When the record is complete, the
district clerk or bankruptcy-appellate-panel
clerk must number the documents constituting the
record and promptly make it available to the
circuit clerk. If the clerk makes the record
available in paper form, the clerk will not send
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, unless directed to do
so by a party or the circuit clerk. If unusually
bulky or heavy exhibits are to be made available
in paper form, 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 the
record and make it available. When the record is
made available in paper form, the court of
appeals may provide by rule or order that a
certified copy of the docket entries be made
available 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 made available.
(D) Filing the Record. When the district clerk or
bankruptcy-appellate-panel clerk has made the record
available, the circuit clerk must note that fact on the
docket. The date noted on the docket serves as the
filing date of the record. The circuit clerk must
immediately notify all parties of the filing date.
(c) Direct Review by Permission Under 28 U.S.C. Sec. 158(d)(2).
(1) Applicability of Other Rules. These rules apply to a
direct appeal by permission under 28 U.S.C. Sec. 158(d)(2), but
with these qualifications:
(A) Rules 3-4, 5(a)(3), 6(a), 6(b), 8(a), 8(c), 9-
12, 13-20, 22-23, and 24(b) do not apply;
(B) as used in any applicable rule, ``district
court'' or ``district clerk'' includes--to the extent
appropriate--a bankruptcy court or bankruptcy appellate
panel or its clerk; and
(C) the reference to ``Rules 11 and 12(c)'' in Rule
5(d)(3) must be read as a reference to Rules 6(c)(2)(B)
and (C).
(2) Additional Rules. In addition, the following rules
apply:
(A) The Record on Appeal. Bankruptcy Rule 8009
governs the record on appeal.
(B) Making the Record Available. Bankruptcy Rule
8010 governs completing the record and making it
available.
(C) Stays Pending Appeal. Bankruptcy Rule 8007
applies to stays pending appeal.
(D) Duties of the Circuit Clerk. When the bankruptcy
clerk has made the record available, the circuit clerk
must note that fact on the docket. The date noted on the
docket serves as the filing date of the record. The
circuit clerk must immediately notify all parties of the
filing date.
(E) Filing a Representation Statement. Unless the
court of appeals designates another time, within 14 days
after entry of the order granting permission to appeal,
the attorney who sought permission must file a statement
with the circuit clerk naming the parties that the
attorney represents on appeal.
(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; Apr. 25, 2014, eff. Dec. 1, 2014.)
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
. 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 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.
Sec. Sec. 3142, 3143, and 3145(c).
(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Pub. L. 98-473, title II,
Sec. 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.
(2) Unsupported Finding or Conclusion. If the appellant
intends to urge on appeal that a finding or conclusion is
unsupported by the evidence or is contrary to the evidence, the
appellant must include in the record a transcript of all
evidence relevant to that finding or conclusion.
(3) Partial Transcript. Unless the entire transcript is
ordered:
(A) the appellant must--within the 14 days provided
in Rule 10(b)(1)--file a statement of the issues that
the appellant intends to present on the appeal and must
serve on the appellee a copy of both the order or
certificate and the statement;
(B) if the appellee considers it necessary to have a
transcript of other parts of the proceedings, the
appellee must, within 14 days after the service of the
order or certificate and the statement of the issues,
file and serve on the appellant a designation of
additional parts to be ordered; and
(C) unless within 14 days after service of that
designation the appellant has ordered all such parts,
and has so notified the appellee, the appellee may
within the following 14 days either order the parts or
move in the district court for an order requiring the
appellant to do so.
(4) Payment. At the time of ordering, a party must make
satisfactory arrangements with the reporter for paying the cost
of the transcript.
(c) Statement of the Evidence When the Proceedings Were Not Recorded
or When a Transcript Is Unavailable. If the transcript of a hearing or
trial is unavailable, the appellant may prepare a statement of the
evidence or proceedings from the best available means, including the
appellant's recollection. The statement must be served on the appellee,
who may serve objections or proposed amendments within 14 days after
being served. The statement and any objections or proposed amendments
must then be submitted to the district court for settlement and
approval. As settled and approved, the statement must be included by the
district clerk in the record on appeal.
(d) Agreed Statement as the Record on Appeal. In place of the record
on appeal as defined in Rule 10(a), the parties may prepare, sign, and
submit to the district court a statement of the case showing how the
issues presented by the appeal arose and were decided in the district
court. The statement must set forth only those facts averred and proved
or sought to be proved that are essential to the court's resolution of
the issues. If the statement is truthful, it--together with any
additions that the district court may consider necessary to a full
presentation of the issues on appeal--must be approved by the district
court and must then be certified to the court of appeals as the record
on appeal. The district clerk must then send it to the circuit clerk
within the time provided by Rule 11. A copy of the agreed statement may
be filed in place of the appendix required by Rule 30.
(e) Correction or Modification of the Record.
(1) If any difference arises about whether the record truly
discloses what occurred in the district court, the difference
must be submitted to and settled by that court and the record
conformed accordingly.
(2) If anything material to either party is omitted from or
misstated in the record by error or accident, the omission or
misstatement may be corrected and a supplemental record may be
certified and forwarded:
(A) on stipulation of the parties;
(B) by the district court before or after the record
has been forwarded; or
(C) by the court of appeals.
(3) All other questions as to the form and content of the
record must be presented to the court of appeals.
(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 reporter's receipt of the order, the
reporter may request the circuit clerk to grant
additional time to complete it. The clerk must note on
the docket the action taken and notify the parties.
(C) When a transcript is complete, the reporter must
file it with the district clerk and notify the circuit
clerk of the filing.
(D) If the reporter fails to file the transcript on
time, the circuit clerk must notify the district judge
and do whatever else the court of appeals directs.
(2) District Clerk's Duty to Forward. When the record is
complete, the district clerk must number the documents
constituting the record and send them promptly to the circuit
clerk together with a list of the documents correspondingly
numbered and reasonably identified. Unless directed to do so by
a party or the circuit clerk, the district clerk will not send
to the court of appeals documents of unusual bulk or weight,
physical exhibits other than documents, or other parts of the
record designated for omission by local rule of the court of
appeals. If the exhibits are unusually bulky or heavy, a party
must arrange with the clerks in advance for their transportation
and receipt.
(c) Retaining the Record Temporarily in the District Court for Use
in Preparing the Appeal. The parties may stipulate, or the district
court on motion may order, that the district clerk retain the record
temporarily for the parties to use in preparing the papers on appeal. In
that event the district clerk must certify to the circuit clerk that the
record on appeal is complete. Upon receipt of the appellee's brief, or
earlier if the court orders or the parties agree, the appellant must
request the district clerk to forward the record.
(d) [Abrogated.]
(e) Retaining the Record by Court Order.
(1) The court of appeals may, by order or local rule,
provide that a certified copy of the docket entries be forwarded
instead of the entire record. But a party may at any time during
the appeal request that designated parts of the record be
forwarded.
(2) The district court may order the record or some part of
it retained if the court needs it while the appeal is pending,
subject, however, to call by the court of appeals.
(3) If part or all of the record is ordered retained, the
district clerk must send to the court of appeals a copy of the
order and the docket entries together with the parts of the
original record allowed by the district court and copies of any
parts of the record designated by the parties.
(f) Retaining Parts of the Record in the District Court by
Stipulation of the Parties. The parties may agree by written stipulation
filed in the district court that designated parts of the record be
retained in the district court subject to call by the court of appeals
or request by a party. The parts of the record so designated remain a
part of the record on appeal.
(g) Record for a Preliminary Motion in the Court of Appeals. If,
before the record is forwarded, a party makes any of the following
motions in the court of appeals:
for dismissal;
for release;
for a stay pending appeal;
for additional security on the bond on appeal or on
a supersedeas bond; or
for any other intermediate order--
the district clerk must send the court of appeals any parts of the
record designated by any party.
(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.
(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. APPEALS FROM THE UNITED STATES TAX COURT
Rule 13
. Appeals from the Tax Court______________________________________
(a) Appeal as of Right.
(1) How Obtained; Time for Filing a Notice of Appeal.
(A) An appeal as of right from 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.
(B) 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.
(2) 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
Sec. 7502 of the Internal Revenue Code, as amended, and the
applicable regulations.
(3) 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.
(4) The Record on Appeal; Forwarding; Filing.
(A) Except as otherwise provided under Tax Court
rules for the transcript of proceedings, the appeal 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.
(B) If an appeal 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.
(b) Appeal by Permission. An appeal by permission is governed by
Rule 5.
(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec. 1,
1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 16, 2013, eff. Dec. 1,
2013.)
Rule 14
. Applicability of Other Rules to Appeals from the Tax Court______
All provisions of these rules, except Rules 4, 6-9, 15-20, and 22-
23, apply to appeals from the Tax Court. References in any applicable
rule (other than Rule 24(a)) to the district court and district clerk
are to be read as referring to the Tax Court and its clerk.
(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 16, 2013, eff. Dec.
1, 2013.)
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
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.
(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 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.
(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. Sec. 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. Sec. 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.
Sec. 2253(c). If an applicant files a notice of appeal, the
district clerk must send to the court of appeals the certificate
(if any) and the statement described in Rule 11(a) of the Rules
Governing Proceedings Under 28 U.S.C. Sec. 2254 or Sec. 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, Sec. 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
. 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 from the United
States Tax Court or on Appeal or Review of an Administrative-Agency
Proceeding. 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):
(1) in an appeal from the United States Tax Court; and
(2) when an appeal or review of a proceeding before an
administrative agency, board, commission, or officer proceeds
directly in the court of appeals.
(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.
(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; Apr. 16, 2013, eff. Dec. 1, 2013.)
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.
Sec. 1746 or by a notarized statement, either of which
must set forth the date of deposit and state that first-
class postage has been prepaid.
(D) Electronic filing. A court of appeals may by
local rule permit or require papers to be filed, signed,
or verified by electronic means that are consistent with
technical standards, if any, that the Judicial
Conference of the United States establishes. A local
rule may require filing by electronic means only if
reasonable exceptions are allowed. A paper filed by
electronic means in compliance with a local rule
constitutes a written paper for the purpose of applying
these rules.
(3) Filing a Motion with a Judge. If a motion requests
relief that may be granted by a single judge, the judge may
permit the motion to be filed with the judge; the judge must
note the filing date on the motion and give it to the clerk.
(4) Clerk's Refusal of Documents. The clerk must not refuse
to accept for filing any paper presented for that purpose solely
because it is not presented in proper form as required by these
rules or by any local rule or practice.
(5) Privacy Protection. An appeal in a case whose privacy
protection was governed by Federal Rule of Bankruptcy Procedure
9037, Federal Rule of Civil Procedure 5.2, or Federal Rule of
Criminal Procedure 49.1 is governed by the same rule on appeal.
In all other proceedings, privacy protection is governed by
Federal Rule of Civil Procedure 5.2, except that Federal Rule of
Criminal Procedure 49.1 governs when an extraordinary writ is
sought in a criminal case.
(b) Service of All Papers Required. Unless a rule requires service
by the clerk, a party must, at or before the time of filing a paper,
serve a copy on the other parties to the appeal or review. Service on a
party represented by counsel must be made on the party's counsel.
(c) Manner of Service.
(1) Service may be any of the following:
(A) personal, including delivery to a responsible
person at the office of counsel;
(B) by mail;
(C) by third-party commercial carrier for delivery
within 3 days; or
(D) by electronic means, if the party being served
consents in writing.
(2) If authorized by local rule, a party may use the court's
transmission equipment to make electronic service under Rule
25(c)(1)(D).
(3) When reasonable considering such factors as the
immediacy of the relief sought, distance, and cost, service on a
party must be by a manner at least as expeditious as the manner
used to file the paper with the court.
(4) Service by mail or by commercial carrier is complete on
mailing or delivery to the carrier. Service by electronic means
is complete on transmission, unless the party making service is
notified that the paper was not received by the party served.
(d) Proof of Service.
(1) A paper presented for filing must contain either of the
following:
(A) an acknowledgment of service by the person
served; or
(B) proof of service consisting of a statement by
the person who made service certifying:
(i) the date and manner of service;
(ii) the names of the persons served; and
(iii) their mail or electronic addresses,
facsimile numbers, or the addresses of the
places of delivery, as appropriate for the
manner of service.
(2) When a brief or appendix is filed by mailing or dispatch
in accordance with Rule 25(a)(2)(B), the proof of service must
also state the date and manner by which the document was mailed
or dispatched to the clerk.
(3) Proof of service may appear on or be affixed to the
papers filed.
(e) Number of Copies. When these rules require the filing or
furnishing of a number of copies, a court may require a different number
by local rule or by order in a particular case.
(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.
(1) Period Stated in Days or a Longer Unit. When the period
is stated in days or a longer unit of time:
(A) exclude the day of the event that triggers the
period;
(B) count every day, including intermediate
Saturdays, Sundays, and legal holidays; and
(C) include the last day of the period, but if the
last day is a Saturday, Sunday, or legal holiday, the
period continues to run until the end of the next day
that is not a Saturday, Sunday, or legal holiday.
(2) Period Stated in Hours. When the period is stated in
hours:
(A) begin counting immediately on the occurrence of
the event that triggers the period;
(B) count every hour, including hours during
intermediate Saturdays, Sundays, and legal holidays; and
(C) if the period would end on a Saturday, Sunday,
or legal holiday, the period continues to run until the
same time on the next day that is not a Saturday,
Sunday, or legal holiday.
(3) Inaccessibility of the Clerk's Office. Unless the court
orders otherwise, if the clerk's office is inaccessible:
(A) on the last day for filing under Rule 26(a)(1),
then the time for filing is extended to the first
accessible day that is not a Saturday, Sunday, or legal
holiday; or
(B) during the last hour for filing under Rule
26(a)(2), then the time for filing is extended to the
same time on the first accessible day that is not a
Saturday, Sunday, or legal holiday.
(4) ``Last Day'' Defined. Unless a different time is set by
a statute, local rule, or court order, the last day ends:
(A) for electronic filing in the district court, at
midnight in the court's time zone;
(B) for electronic filing in the court of appeals,
at midnight in the time zone of the circuit clerk's
principal office;
(C) for filing under Rules 4(c)(1), 25(a)(2)(B), and
25(a)(2)(C)--and filing by mail under Rule 13(b)--at the
latest time for the method chosen for delivery to the
post office, third-party commercial carrier, or prison
mailing system; and
(D) for filing by other means, when the clerk's
office is scheduled to close.
(5) ``Next Day'' Defined. The ``next day'' is determined by
continuing to count forward when the period is measured after an
event and backward when measured before an event.
(6) ``Legal Holiday'' Defined. ``Legal holiday'' means:
(A) the day set aside by statute for observing New
Year's Day, Martin Luther King Jr.'s Birthday,
Washington's Birthday, Memorial Day, Independence Day,
Labor Day, Columbus Day, Veterans' Day, Thanksgiving
Day, or Christmas Day;
(B) any day declared a holiday by the President or
Congress; and
(C) for periods that are measured after an event,
any other day declared a holiday by the state where
either of the following is located: the district court
that rendered the challenged judgment or order, or the
circuit clerk's principal office.
(b) Extending Time. For good cause, the court may extend the time
prescribed by these rules or by its order to perform any act, or may
permit an act to be done after that time expires. But the court may not
extend the time to file:
(1) a notice of appeal (except as authorized in Rule 4) or a
petition for permission to appeal; or
(2) a notice of appeal from or a petition to enjoin, set
aside, suspend, modify, enforce, or otherwise review an order of
an administrative agency, board, commission, or officer of the
United States, unless specifically authorized by law.
(c) Additional Time after Service. When a party may or must act
within a specified time after service, 3 days are added after the period
would otherwise expire under Rule 26(a), unless the paper is delivered
on the date of service stated in the proof of service. For purposes of
this Rule 26(c), a paper that is served electronically is not treated as
delivered on the date of service stated in the proof of service.
(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.
(2) Contents of a Motion.
(A) Grounds and relief sought. A motion must state
with particularity the grounds for the motion, the
relief sought, and the legal argument necessary to
support it.
(B) Accompanying documents.
(i) Any affidavit or other paper necessary
to support a motion must be served and filed
with the motion.
(ii) An affidavit must contain only factual
information, not legal argument.
(iii) A motion seeking substantive relief
must include a copy of the trial court's opinion
or agency's decision as a separate exhibit.
(C) Documents barred or not required.
(i) A separate brief supporting or
responding to a motion must not be filed.
(ii) A notice of motion is not required.
(iii) A proposed order is not required.
(3) Response.
(A) Time to file. Any party may file a response to a
motion; Rule 27(a)(2) governs its contents. The response
must be filed within 10 days after service of the motion
unless the court shortens or extends the time. A motion
authorized by Rules 8, 9, 18, or 41 may be granted
before the 10-day period runs only if the court gives
reasonable notice to the parties that it intends to act
sooner.
(B) Request for affirmative relief. A response may
include a motion for affirmative relief. The time to
respond to the new motion, and to reply to that
response, are governed by Rule 27(a)(3)(A) and (a)(4).
The title of the response must alert the court to the
request for relief.
(4) Reply to Response. Any reply to a response must be filed
within 7 days after service of the response. A reply must not
present matters that do not relate to the response.
(b) Disposition of a Motion for a Procedural Order. The court may
act on a motion for a procedural order--including a motion under Rule
26(b)--at any time without awaiting a response, and may, by rule or by
order in a particular case, authorize its clerk to act on specified
types of procedural motions. A party adversely affected by the court's,
or the clerk's, action may file a motion to reconsider, vacate, or
modify that action. Timely opposition filed after the motion is granted
in whole or in part does not constitute a request to reconsider, vacate,
or modify the disposition; a motion requesting that relief must be
filed.
(c) Power of a Single Judge to Entertain a Motion. A circuit judge
may act alone on any motion, but may not dismiss or otherwise determine
an appeal or other proceeding. A court of appeals may provide by rule or
by order in a particular case that only the court may act on any motion
or class of motions. The court may review the action of a single judge.
(d) Form of Papers; Page Limits; and Number of Copies.
(1) Format.
(A) Reproduction. A motion, response, or reply may
be reproduced by any process that yields a clear black
image on light paper. The paper must be opaque and
unglazed. Only one side of the paper may be used.
(B) Cover. A cover is not required, but there must
be a caption that includes the case number, the name of
the court, the title of the case, and a brief
descriptive title indicating the purpose of the motion
and identifying the party or parties for whom it is
filed. If a cover is used, it must be white.
(C) Binding. The document must be bound in any
manner that is secure, does not obscure the text, and
permits the document to lie reasonably flat when open.
(D) Paper size, line spacing, and margins. The
document must be on 8\1/2\ by 11 inch paper. The text
must be double-spaced, but quotations more than two
lines long may be indented and single-spaced. Headings
and footnotes may be single-spaced. Margins must be at
least one inch on all four sides. Page numbers may be
placed in the margins, but no text may appear there.
(E) Typeface and type styles. The document must
comply with the typeface requirements of Rule 32(a)(5)
and the type-style requirements of Rule 32(a)(6).
(2) Page Limits. A motion or a response to a motion must not
exceed 20 pages, exclusive of the corporate disclosure statement
and accompanying documents authorized by Rule 27(a)(2)(B),
unless the court permits or directs otherwise. A reply to a
response must not exceed 10 pages.
(3) Number of Copies. An original and 3 copies must be filed
unless the court requires a different number by local rule or by
order in a particular case.
(e) Oral Argument. A motion will be decided without oral argument
unless the court orders otherwise.
(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
(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 concise statement of the case setting out the facts
relevant to the issues submitted for review, describing the
relevant procedural history, and identifying the rulings
presented for review, with appropriate references to the record
(see Rule 28(e));
(7) 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;
(8) 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);
(9) a short conclusion stating the precise relief sought;
and
(10) 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)-(8) and (10), 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; and
(4) the statement of the standard of review.
(c) Reply Brief. The appellant may file a brief in reply to the
appellee's brief. Unless the court permits, no further briefs may be
filed. A reply brief must contain a table of contents, with page
references, and a table of authorities--cases (alphabetically arranged),
statutes, and other authorities--with references to the pages of the
reply brief where they are cited.
(d) References to Parties. In briefs and at oral argument, counsel
should minimize use of the terms ``appellant'' and ``appellee.'' To make
briefs clear, counsel should use the parties' actual names or the
designations used in the lower court or agency proceeding, or such
descriptive terms as ``the employee,'' ``the injured person,'' ``the
taxpayer,'' ``the ship,'' ``the stevedore.''
(e) References to the Record. References to the parts of the record
contained in the appendix filed with the appellant's brief must be to
the pages of the appendix. If the appendix is prepared after the briefs
are filed, a party referring to the record must follow one of the
methods detailed in Rule 30(c). If the original record is used under
Rule 30(f) and is not consecutively paginated, or if the brief refers to
an unreproduced part of the record, any reference must be to the page of
the original document. For example:
Answer p. 7;
Motion for Judgment p. 2;
Transcript p. 231.
Only clear abbreviations may be used. A party referring to evidence
whose admissibility is in controversy must cite the pages of the
appendix or of the transcript at which the evidence was identified,
offered, and received or rejected.
(f) Reproduction of Statutes, Rules, Regulations, etc. If the
court's determination of the issues presented requires the study of
statutes, rules, regulations, etc., the relevant parts must be set out
in the brief or in an addendum at the end, or may be supplied to the
court in pamphlet form.
(g) [Reserved]
(h) [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; Apr. 16, 2013, eff. Dec. 1,
2013.)
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 unless the
appellee is dissatisfied with the appellant's statement.
(3) Appellant's Response and Reply Brief. The appellant must
file a brief that responds to the principal brief in the cross-
appeal and may, in the same brief, reply to the response in the
appeal. That brief must comply with Rule 28(a)(2)-(8) and (10),
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; and
(D) 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 (10) 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
(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; Apr. 16, 2013, eff. Dec. 1, 2013.)
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
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 then advance the cost of including those
parts. The cost of the appendix is a taxable cost. But if any
party causes unnecessary parts of the record to be included in
the appendix, the court may impose the cost of those parts on
that party. Each circuit must, by local rule, provide for
sanctions against attorneys who unreasonably and vexatiously
increase litigation costs by including unnecessary material in
the appendix.
(c) Deferred Appendix.
(1) Deferral Until After Briefs Are Filed. The court may
provide by rule for classes of cases or by order in a particular
case that preparation of the appendix may be deferred until
after the briefs have been filed and that the appendix may be
filed 21 days after the appellee's brief is served. Even though
the filing of the appendix may be deferred, Rule 30(b) applies;
except that a party must designate the parts of the record it
wants included in the appendix when it serves its brief, and
need not include a statement of the issues presented.
(2) References to the Record.
(A) If the deferred appendix is used, the parties
may cite in their briefs the pertinent pages of the
record. When the appendix is prepared, the record pages
cited in the briefs must be indicated by inserting
record page numbers, in brackets, at places in the
appendix where those pages of the record appear.
(B) A party who wants to refer directly to pages of
the appendix may serve and file copies of the brief
within the time required by Rule 31(a), containing
appropriate references to pertinent pages of the record.
In that event, within 14 days after the appendix is
filed, the party must serve and file copies of the
brief, containing references to the pages of the
appendix in place of or in addition to the references to
the pertinent pages of the record. Except for the
correction of typographical errors, no other changes may
be made to the brief.
(d) Format of the Appendix. The appendix must begin with a table of
contents identifying the page at which each part begins. The relevant
docket entries must follow the table of contents. Other parts of the
record must follow chronologically. When pages from the transcript of
proceedings are placed in the appendix, the transcript page numbers must
be shown in brackets immediately before the included pages. Omissions in
the text of papers or of the transcript must be indicated by asterisks.
Immaterial formal matters (captions, subscriptions, acknowledgments,
etc.) should be omitted.
(e) Reproduction of Exhibits. Exhibits designated for inclusion in
the appendix may be reproduced in a separate volume, or volumes,
suitably indexed. Four copies must be filed with the appendix, and one
copy must be served on counsel for each separately represented party. If
a transcript of a proceeding before an administrative agency, board,
commission, or officer was used in a district-court action and has been
designated for inclusion in the appendix, the transcript must be placed
in the appendix as an exhibit.
(f) Appeal on the Original Record Without an Appendix. The court
may, either by rule for all cases or classes of cases or by order in a
particular case, dispense with the appendix and permit an appeal to
proceed on the original record with any copies of the record, or
relevant parts, that the court may order the parties to file.
(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 and any supplemental brief, tan. The front cover of a brief
must contain:
(A) the number of the case centered at the top;
(B) the name of the court;
(C) the title of the case (see Rule 12(a));
(D) the nature of the proceeding (e.g., Appeal,
Petition for Review) and the name of the court, agency,
or board below;
(E) the title of the brief, identifying the party or
parties for whom the brief is filed; and
(F) the name, office address, and telephone number
of counsel representing the party for whom the brief is
filed.
(3) Binding. The brief must be bound in any manner that is
secure, does not obscure the text, and permits the brief to lie
reasonably flat when open.
(4) Paper Size, Line Spacing, and Margins. The brief must be
on 8\1/2\ by 11 inch paper. The text must be double-spaced, but
quotations more than two lines long may be indented and single-
spaced. Headings and footnotes may be single-spaced. Margins
must be at least one inch on all four sides. Page numbers may be
placed in the margins, but no text may appear there.
(5) Typeface. Either a proportionally spaced or a monospaced
face may be used.
(A) A proportionally spaced face must include
serifs, but sans-serif type may be used in headings and
captions. A proportionally spaced face must be 14-point
or larger.
(B) A monospaced face may not contain more than
10\1/2\ characters per inch.
(6) Type Styles. A brief must be set in a plain, roman
style, although italics or boldface may be used for emphasis.
Case names must be italicized or underlined.
(7) Length.
(A) Page limitation. A principal brief may not
exceed 30 pages, or a reply brief 15 pages, unless it
complies with Rule 32(a)(7)(B) and (C).
(B) Type-volume limitation.
(i) A principal brief is acceptable if:
it contains no more than 14,000 words; or
it uses a monospaced face and contains no more than 1,300 lines of
text.
(ii) A reply brief is acceptable if it
contains no more than half of the type volume
specified in Rule 32(a)(7)(B)(i).
(iii) Headings, footnotes, and quotations
count toward the word and line limitations. The
corporate disclosure statement, table of
contents, table of citations, statement with
respect to oral argument, any addendum
containing statutes, rules or regulations, and
any certificates of counsel do not count toward
the limitation.
(C) Certificate of compliance.
(i) A brief submitted under Rules 28.1(e)(2)
or 32(a)(7)(B) must include a certificate by the
attorney, or an unrepresented party, that the
brief complies with the type-volume limitation.
The person preparing the certificate may rely on
the word or line count of the word-processing
system used to prepare the brief. The
certificate must state either:
the number of words in the brief; or
the number of lines of monospaced type in the brief.
(ii) Form 6 in the Appendix of Forms is a
suggested form of a certificate of compliance.
Use of Form 6 must be regarded as sufficient to
meet the requirements of Rules 28.1(e)(3) and
32(a)(7)(C)(i).
(b) Form of an Appendix. An appendix must comply with Rule 32(a)(1),
(2), (3), and (4), with the following exceptions:
(1) The cover of a separately bound appendix must be white.
(2) An appendix may include a legible photocopy of any
document found in the record or of a printed judicial or agency
decision.
(3) When necessary to facilitate inclusion of odd-sized
documents such as technical drawings, an appendix may be a size
other than 8\1/2\ by 11 inches, and need not lie reasonably flat
when opened.
(c) Form of Other Papers.
(1) Motion. The form of a motion is governed by Rule 27(d).
(2) Other Papers. Any other paper, including a petition for
panel rehearing and a petition for hearing or rehearing en banc,
and any response to such a petition, must be reproduced in the
manner prescribed by Rule 32(a), with the following exceptions:
(A) A cover is not necessary if the caption and
signature page of the paper together contain the
information required by Rule 32(a)(2). If a cover is
used, it must be white.
(B) Rule 32(a)(7) does not apply.
(d) Signature. Every brief, motion, or other paper filed with the
court must be signed by the party filing the paper or, if the party is
represented, by one of the party's attorneys.
(e) Local Variation. Every court of appeals must accept documents
that comply with the form requirements of this rule. By local rule or
order in a particular case a court of appeals may accept documents that
do not meet all of the form requirements of this rule.
(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.
(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.
(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.
(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.
(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 overlooked or misapprehended and must argue in support of
the petition. Oral argument is not permitted.
(3) Answer. Unless the court requests, no answer to a
petition for panel rehearing is permitted. But ordinarily
rehearing will not be granted in the absence of such a request.
(4) Action by the Court. If a petition for panel rehearing
is granted, the court may do any of the following:
(A) make a final disposition of the case without
reargument;
(B) restore the case to the calendar for reargument
or resubmission; or
(C) issue any other appropriate order.
(b) Form of Petition; Length. The petition must comply in form with
Rule 32. Copies must be served and filed as Rule 31 prescribes. Unless
the court permits or a local rule provides otherwise, a petition for
panel rehearing must not exceed 15 pages.
(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.)
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 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.
(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, ____________, do solemnly swear [or affirm] that I
will conduct myself as an attorney and counselor of this
court, uprightly and according to law; and that I will
support the Constitution of the United States.''
(3) Admission Procedures. On written or oral motion of a
member of the court's bar, the court will act on the
application. An applicant may be admitted by oral motion in open
court. But, unless the court orders otherwise, an applicant need
not appear before the court to be admitted. Upon admission, an
applicant must pay the clerk the fee prescribed by local rule or
court order.
(b) Suspension or Disbarment.
(1) Standard. A member of the court's bar is subject to
suspension or disbarment by the court if the member:
(A) has been suspended or disbarred from practice in
any other court; or
(B) is guilty of conduct unbecoming a member of the
court's bar.
(2) Procedure. The member must be given an opportunity to
show good cause, within the time prescribed by the court, why
the member should not be suspended or disbarred.
(3) Order. The court must enter an appropriate order after
the member responds and a hearing is held, if requested, or
after the time prescribed for a response expires, if no response
is made.
(c) Discipline. A court of appeals may discipline an attorney who
practices before it for conduct unbecoming a member of the bar or for
failure to comply with any court rule. First, however, the court must
afford the attorney reasonable notice, an opportunity to show cause to
the contrary, and, if requested, a hearing.
(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. Sec. 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;
(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.)
FEDERAL RULES OF APPELLATE PROCEDURE
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 _______________
District of ___________
File Number _________
A.B., Plaintiff
v.
<5-ln }>
Notice of Appeal
C.D., Defendant
Notice is hereby given that ___(here name all parties taking the
appeal)___, (plaintiffs) (defendants) in the above named case,* hereby
appeal to the United States Court of Appeals for the ___ Circuit (from
the final judgment) (from an order (describing it)) entered in this
action on the __ day of _______, 20_.
(s)____________
Attorney for ______
Address: ________
* 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 ___(here name all parties taking the
appeal) *___ hereby appeal to the United States Court of Appeals for the
___ Circuit from (that part of) the decision of this court entered in
the above captioned proceeding on the ____ day of ___________, 20_
(relating to __________).
(s)____________
Counsel for ______
Address: ________
* 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 3
. Petition for Review of Order of an Agency, Board, Commission or
Officer_________________________________________________________________
United States Court of Appeals for the _________ Circuit
A.B., Petitioner
v.
<5-ln }>
Petition for
Review
XYZ Commission, Respondent
___(here name all parties bringing the petition) *___ hereby
petition the court for review of the Order of the XYZ Commission
(describe the order) entered on _____, 20_.
(s)_____________,
Attorney for Petitioners
Address:_________
* See Rule 15.
(As amended Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff. Dec.
1, 2003.)
Form 4
. Affidavit Accompanying Motion for Permission to Appeal In Forma
Pauperis________________________________________________________________
(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 28, 2010, eff. Dec.
1, 2010; Apr. 16, 2013, eff. Dec. 1, 2013.)
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 ______
Circuit
________, the plaintiff [or defendant or other party] appeals to the
United States Court of Appeals for the ______ Circuit from the final
judgment [or order or decree] of the district court for the district of
______ [or bankruptcy appellate panel of the ______ circuit], entered in
this case on ______, 20__ [here describe the judgment, order, or decree]
______________________________
The parties to the judgment [or order or decree] appealed from and
the names and addresses of their respective attorneys are as follows:
Dated ____________
Signed ____________
Attorney for Appellant
Address: ___________
________________
(As added Apr. 25, 1989, eff. Dec. 1, 1989; amended Mar. 27, 2003, eff.
Dec. 1, 2003.)
Form 6
. Certificate of Compliance With Rule 32(a)_______________________
(As added Apr. 29, 2002, eff. Dec. 1, 2002.)