US (United States) Code. Title 28. Appendix 1

Codificación normativa de EEUU (Estados Unidos). Legislación federal estadounidense # Judicial personnel

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TITLE 28, APPENDIX - JUDICIAL PERSONNEL FINANCIAL DISCLOSURE

REQUIREMENTS 01/06/03

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TITLE 28 - APPENDIX

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Item Page

Judicial Personnel Financial Disclosure Requirements (Repealed) 579

Development of Mechanisms for Resolving Minor Disputes (Omitted) 580

Federal Rules of Appellate Procedure 581

Federal Rules of Civil Procedure 641

Federal Rules of Evidence 852

Rules of the Supreme Court of the United States 935

Rules of the United States Court of Federal Claims 955

Rules of the United States Court of International Trade 1025

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28 USC APPENDIX JUDICIAL PERSONNEL FINANCIAL

DISCLOSURE REQUIREMENTS 01/06/03

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TITLE 28 - APPENDIX

JUDICIAL PERSONNEL FINANCIAL DISCLOSURE REQUIREMENTS

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JUDICIAL PERSONNEL FINANCIAL DISCLOSURE REQUIREMENTS

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[Title III (Secs. 301-309) of Pub. L. 95-521, Oct. 26, 1978, 92

Stat. 1851-1861, as amended by Pub. L. 96-19, Secs. 2(a)(3),

(c)(3), 3(a)(3), (b), 4(c), 6, 7(a)-(c), (d)(2), (e), (f), 8(c),

9(c)(3), (d), (j), (p)-(r), June 13, 1979, 93 Stat. 37-43; Pub. L.

96-417, title VI, Sec. 601(9), Oct. 10, 1980, 94 Stat. 1744; Pub.

L. 96-579, Sec. 12(c), Dec. 23, 1980, 94 Stat. 3369; Pub. L.

97-164, title I, Sec. 163(a)(6), Apr. 2, 1982, 96 Stat. 49; Pub. L.

98-150, Sec. 10, Nov. 11, 1983, 97 Stat. 962; Pub. L. 99-514, Sec.

2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 99-573, Sec. 6, Oct. 28,

1986, 100 Stat. 3231; Pub. L. 101-237, title VI, Sec. 602(a)(1),

Dec. 18, 1989, 103 Stat. 2094, which related to judicial personnel

financial disclosure requirements, was repealed by Pub. L. 101-194,

title II, Sec. 201, Nov. 30, 1989, 103 Stat. 1724. See title I of

the Ethics in Government Act of 1978, Pub. L. 95-521, as amended,

relating to financial disclosure requirements of Federal personnel,

set out in the Appendix to Title 5, Government Organization and

Employees.]

EFFECTIVE DATE OF REPEAL

Repeal effective Jan. 1, 1991, see section 204 of Pub. L.

101-194, set out as an Effective Date of 1989 Amendment note under

section 101 of Pub. L. 95-521 in the Appendix to Title 5,

Government Organization and Employees.

Provisions of title III of Pub. L. 95-521, as in effect prior to

Nov. 30, 1989, effective until Jan. 1, 1991, as if Pub. L. 101-194

had not been enacted, and nothing in title II of Pub. L. 101-194 to

be construed to prevent prosecution of civil actions against

individuals for violations of title III of Pub. L. 95-521 before

Jan. 1, 1991, see section 3(10)(C), (D) of Pub. L. 101-280, set out

as an Effective Date of 1989 Amendment note under section 101 of

Pub. L. 95-521 in the Appendix to Title 5.

-End-

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28 USC APPENDIX DEVELOPMENT OF MECHANISMS FOR

RESOLVING MINOR DISPUTES 01/06/03

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TITLE 28 - APPENDIX

DEVELOPMENT OF MECHANISMS FOR RESOLVING MINOR DISPUTES

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DEVELOPMENT OF MECHANISMS FOR RESOLVING MINOR DISPUTES

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-COD-

CODIFICATION

Pub. L. 96-190, Feb. 12, 1980, 94 Stat. 17, known as the Dispute

Resolution Act, provided for the establishment and maintenance of

mechanisms for resolving minor disputes, established the Dispute

Resolution Resource Center and Dispute Resolution Advisory Board,

prescribed duties for the Center and Board, authorized

appropriations for the Center and Board of $1,000,000 for each of

the fiscal years 1980, 1981, 1982, 1983, and 1984, directed that

financial assistance to eligible applicants be in the form of

grants, prescribed conditions for such grants, authorized

appropriations for such grants of $10,000,000 for each of the

fiscal years 1981, 1982, 1983, and 1984, and required an annual

report by the Attorney General to the President and Congress

relating to the administration of Pub. L. 96-190.

-End-

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28 USC APPENDIX FEDERAL RULES OF APPELLATE

PROCEDURE 01/06/03

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TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

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FEDERAL RULES OF APPELLATE PROCEDURE

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(AS AMENDED TO JANUARY 6, 2003)

HISTORICAL NOTE

The Federal Rules of Appellate Procedure were adopted by order of

the Supreme Court on Dec. 4, 1967, transmitted to Congress by the

Chief Justice on Jan. 15, 1968, and became effective on July 1,

1968.

The Rules have been amended Mar. 30, 1970, eff. July 1, 1970;

Mar. 1, 1971, eff. July 1, 1971; Apr. 24, 1972, eff. Oct. 1, 1972;

Apr. 30, 1979, eff. Aug. 1, 1979; Oct. 12, 1984, Pub. L. 98-473,

title II, Sec. 210, 98 Stat 1987; Mar. 10, 1986, eff. July 1, 1986;

Nov. 18, 1988, Pub. L. 100-690, title VII, Sec. 7111, 102 Stat.

4419; 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. 27, 1995, eff. Dec. 1, 1995; Apr. 23, 1996, eff. Dec. 1,

1996; Apr. 24, 1996, Pub. L. 104-132, title I, Sec. 103, 110 Stat.

1218; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1,

2002.

TITLE I. APPLICABILITY OF RULES

Rule

1. Scope of Rules; Title.

2. Suspension of Rules.

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

3. Appeal as of Right - How Taken.

[3.1. Abrogated.]

4. Appeal as of Right - When Taken.

5. Appeal by Permission.

[5.1. Abrogated.]

6. Appeal in a Bankruptcy Case from a Final Judgment,

Order, or Decree of a District Court or Bankruptcy

Appellate Panel.

7. Bond for Costs on Appeal in a Civil Case.

8. Stay or Injunction Pending Appeal.

9. Release in a Criminal Case.

10. The Record on Appeal.

11. Forwarding the Record.

12. Docketing the Appeal; Filing a Representation

Statement; Filing the Record.

TITLE III. REVIEW OF A DECISION OF THE UNITED STATES TAX COURT

13. Review of a Decision of the Tax Court.

14. Applicability of Other Rules to the Review of a Tax

Court Decision.

TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE

AGENCY, BOARD, COMMISSION, OR OFFICER

15. Review or Enforcement of an Agency Order - How

Obtained; Intervention.

15.1. Briefs and Oral Argument in a National Labor Relations

Board Proceeding.

16. The Record on Review or Enforcement.

17. Filing the Record.

18. Stay Pending Review.

19. Settlement of a Judgment Enforcing an Agency Order in

Part.

20. Applicability of Rules to the Review or Enforcement of

an Agency Order.

TITLE V. EXTRAORDINARY WRITS

21. Writs of Mandamus and Prohibition, and Other

Extraordinary Writs.

TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS

22. Habeas Corpus and Section 2255 Proceedings.

23. Custody or Release of a Prisoner in a Habeas Corpus

Proceeding.

24. Proceeding in Forma Pauperis.

TITLE VII. GENERAL PROVISIONS

25. Filing and Service.

26. Computing and Extending Time.

26.1. Corporate Disclosure Statement.

27. Motions.

28. Briefs.

29. Brief of an Amicus Curiae.

30. Appendix to the Briefs.

31. Serving and Filing Briefs.

32. Form of Briefs, Appendices, and Other Papers.

33. Appeal Conferences.

34. Oral Argument.

35. En Banc Determination.

36. Entry of Judgment; Notice.

37. Interest on Judgment.

38. Frivolous Appeal - Damages and Costs.

39. Costs.

40. Petition for Panel Rehearing.

41. Mandate: Contents; Issuance and Effective Date; Stay.

42. Voluntary Dismissal.

43. Substitution of Parties.

44. Case Involving a Constitutional Question When the

United States or the Relevant State is Not a Party.

45. Clerk's Duties.

46. Attorneys.

47. Local Rules by Courts of Appeals.

48. Masters.

APPENDIX OF FORMS

Form

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

or Order of a District Court.

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

of the United States Tax Court.

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

Commission or Officer.

4. Affidavit to Accompany Motion for Leave to Appeal in

Forma Pauperis.

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

or Order of a District Court or a Bankruptcy

Appellate Panel.

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

EFFECTIVE DATE AND APPLICATION OF RULES

Section 2 of the Order of the Supreme Court, dated Dec. 4, 1967,

provided: "That the foregoing rules shall take effect on July 1,

1968, and shall govern all proceedings in appeals and petitions for

review or enforcement of orders thereafter brought in and in all

such proceedings then pending, except to the extent that in the

opinion of the court of appeals their application in a particular

proceeding then pending would not be feasible or would work

injustice, in which case the former procedure may be followed."

EFFECTIVE DATE OF 1970 AMENDMENT; TRANSMISSION TO CONGRESS

Sections 2 and 3 of the Order of the Supreme Court, dated Mar.

30, 1970, provided:

"2. That the foregoing amendments to the Federal Rules of

Appellate Procedure shall take effect on July 1, 1970, and shall

govern all proceedings in actions brought thereafter and also in

all further proceedings in actions then pending, except to the

extent that in the opinion of the court their application in a

particular action then pending would not be feasible or would work

injustice, in which event the former procedure applies.

"3. That the Chief Justice be, and he hereby is, authorized to

transmit to the Congress the foregoing amendments to existing

rules, in accordance with the provisions of Title 18, U.S.C. Sec.

3372, and Title 28, U.S.C. Secs. 2072 and 2075."

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28 USC APPENDIX TITLE I. APPLICABILITY OF RULES 01/06/03

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TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE I. APPLICABILITY OF RULES

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TITLE I. APPLICABILITY OF RULES

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28 USC APPENDIX Rule 1 01/06/03

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TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE I. APPLICABILITY OF RULES

-HEAD-

Rule 1. Scope of Rules; Title

-STATUTE-

(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) [Abrogated.]

(c) Title. These rules are to be known as the Federal Rules of

Appellate Procedure.

-SOURCE-

(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.)

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NOTES OF ADVISORY COMMITTEE ON RULES - 1967

These rules are drawn under the authority of 28 U.S.C. Sec. 2072,

as amended by the Act of November 6, 1966, 80 Stat. 1323 (1 U.S.

Code Cong. & Ad. News, p. 1546 (1966)) (Rules of Civil Procedure);

28 U.S.C. Sec. 2075 (Bankruptcy Rules); and 18 U.S.C. Secs. 3771

(Procedure to and including verdict) and 3772 (Procedure after

verdict). Those statutes combine to give to the Supreme Court power

to make rules of practice and procedure for all cases within the

jurisdiction of the courts of appeals. By the terms of the

statutes, after the rules have taken effect all laws in conflict

with them are of no further force or effect. Practice and procedure

in the eleven courts of appeals are now regulated by rules

promulgated by each court under the authority of 28 U.S.C. Sec.

2071. Rule 47 expressly authorizes the courts of appeals to make

rules of practice not inconsistent with these rules.

As indicated by the titles under which they are found, the

following rules are of special application: Rules 3 through 12

apply to appeals from judgments and orders of the district courts;

Rules 13 and 14 apply to appeals from decisions of the Tax Court

(Rule 13 establishes an appeal as the mode of review of decisions

of the Tax Court in place of the present petition for review);

Rules 15 through 20 apply to proceedings for review or enforcement

of orders of administrative agencies, boards, commissions and

officers. Rules 22 through 24 regulate habeas corpus proceedings

and appeals in forma pauperis. All other rules apply to all

proceedings in the courts of appeals.

NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT

The Federal Rules of Appellate Procedure were designed as an

integrated set of rules to be followed in appeals to the courts of

appeals, covering all steps in the appellate process, whether they

take place in the district court or in the court of appeals, and

with their adoption Rules 72-76 of the F.R.C.P. were abrogated. In

some instances, however, the F.R.A.P. provide that a motion or

application for relief may, or must, be made in the district court.

See Rules 4(a), 10(b), and 24. The proposed amendment would make it

clear that when this is so the motion or application is to be made

in the form and manner prescribed by the F.R.C.P. or F.R.Cr.P. and

local rules relating to the form and presentation of motions and is

not governed by Rule 27 of the F.R.A.P. See Rule 7(b) of the

F.R.C.P. and Rule 47 of the F.R.Cr.P.

NOTES OF ADVISORY COMMITTEE ON RULES - 1989 AMENDMENT

The amendment is technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT

Subdivision (c). A new subdivision is added to the rule. The text

of new subdivision (c) has been moved from Rule 48 to Rule 1 to

allow the addition of new rules at the end of the existing set of

appellate rules without burying the title provision among other

rules. In a similar fashion the Bankruptcy Rules combine the

provisions governing the scope of the rules and the title in the

first rule.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only. The

Advisory Committee recommends deleting the language in subdivision

(a) that describes the different types of proceedings that may be

brought in a court of appeals. The Advisory Committee believes that

the language is unnecessary and that its omission does not work any

substantive change.

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Subdivision (b). Two recent enactments make it likely that, in

the future, one or more of the Federal Rules of Appellate Procedure

("FRAP") will extend or limit the jurisdiction of the courts of

appeals. In 1990, Congress amended the Rules Enabling Act to give

the Supreme Court authority to use the federal rules of practice

and procedure to define when a ruling of a district court is final

for purposes of 28 U.S.C. Sec. 1291. See 28 U.S.C. Sec. 2072(c). In

1992, Congress amended 28 U.S.C. Sec. 1292 to give the Supreme

Court authority to use the federal rules of practice and procedure

to provide for appeals of interlocutory decisions that are not

already authorized by 28 U.S.C. Sec. 1292. See 28 U.S.C. Sec.

1292(e). Both Sec. 1291 and Sec. 1292 are unquestionably

jurisdictional statutes, and thus, as soon as FRAP is amended to

define finality for purposes of the former or to authorize

interlocutory appeals not provided for by the latter, FRAP will

"extend or limit the jurisdiction of the courts of appeals," and

subdivision (b) will become obsolete. For that reason, subdivision

(b) has been abrogated.

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment or to the Committee Note.

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28 USC APPENDIX Rule 2 01/06/03

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TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE I. APPLICABILITY OF RULES

-HEAD-

Rule 2. Suspension of Rules

-STATUTE-

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).

-SOURCE-

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

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NOTES OF ADVISORY COMMITTEE ON RULES - 1967

The primary purpose of this rule is to make clear the power of

the courts of appeals to expedite the determination of cases of

pressing concern to the public or to the litigants by prescribing a

time schedule other than that provided by the rules. The rule also

contains a general authorization to the courts to relieve litigants

of the consequences of default where manifest injustice would

otherwise result. Rule 26(b) prohibits a court of appeals from

extending the time for taking appeal or seeking review.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language of the rule is amended to make the rule more easily

understood. In addition to changes made to improve the

understanding, the Advisory Committee has changed language to make

style and terminology consistent throughout the appellate rules.

These changes are intended to be stylistic only.

-End-

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28 USC APPENDIX TITLE II. APPEAL FROM A JUDGMENT

OR ORDER OF A DISTRICT COURT 01/06/03

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TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-End-

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28 USC APPENDIX Rule 3 01/06/03

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TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-

Rule 3. Appeal as of Right - How Taken

-STATUTE-

(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.

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

General Note. Rule 3 and Rule 4 combine to require that a notice

of appeal be filed with the clerk of the district court within the

time prescribed for taking an appeal. Because the timely filing of

a notice of appeal is "mandatory and jurisdictional," United States

v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960),

compliance with the provisions of those rules is of the utmost

importance. But the proposed rules merely restate, in modified

form, provisions now found in the civil and criminal rules (FRCP

5(e), 73; FRCrP 37), and decisions under the present rules which

dispense with literal compliance in cases in which it cannot fairly

be exacted should control interpretation of these rules.

Illustrative decisions are: Fallen v. United States, 378 U.S. 139,

84 S.Ct. 1689, 12 L.Ed.2d 760 (1964) (notice of appeal by a

prisoner, in the form of a letter delivered, well within the time

fixed for appeal, to prison authorities for mailing to the clerk of

the district court held timely filed notwithstanding that it was

received by the clerk after expiration of the time for appeal; the

appellant "did all he could" to effect timely filing); Richey v.

Wilkins, 335 F.2d 1 (2d Cir. 1964) (notice filed in the court of

appeals by a prisoner without assistance of counsel held

sufficient); Halfen v. United States, 324 F.2d 52 (10th Cir. 1963)

(notice mailed to district judge in time to have been received by

him in normal course held sufficient); Riffle v. United States, 299

F.2d 802 (5th Cir. 1962) (letter of prisoner to judge of court of

appeals held sufficient). Earlier cases evidencing "a liberal view

of papers filed by indigent and incarcerated defendants" are listed

in Coppedge v. United States, 369 U.S. 438, 442, n. 5, 82 S.Ct.

917, 8 L.Ed.2d 21 (1962).

Subdivision (a). The substance of this subdivision is derived

from FRCP 73(a) and FRCrP 37(a)(1). The proposed rule follows those

rules in requiring nothing other than the filing of a notice of

appeal in the district court for the perfection of the appeal. The

petition for allowance (except for appeals governed by Rules 5 and

6), citations, assignments of error, summons and severance - all

specifically abolished by earlier modern rules - are assumed to be

sufficiently obsolete as no longer to require pointed abolition.

Subdivision (b). The first sentence is derived from FRCP 74. The

second sentence is added to encourage consolidation of appeals

whenever feasible.

Subdivision (c). This subdivision is identical with corresponding

provisions in FRCP 73(b) and FRCrP 37(a)(1).

Subdivision (d). This subdivision is derived from FRCP 73(b) and

FRCrP 37(a)(1). The duty of the clerk to forward a copy of the

notice of appeal and of the docket entries to the court of appeals

in a criminal case extended to habeas corpus and 28 U.S.C. Sec.

2255 proceedings.

NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT

Subdivision (c). The proposed amendment would add the last

sentence. Because of the fact that the timely filing of the notice

of appeal has been characterized as jurisdictional (See, e.g.,

Brainerd v. Beal (C.A. 7th, 1974) 498 F.2d 901, in which the filing

of a notice of appeal one day late was fatal), it is important that

the right to appeal not be lost by mistakes of mere form. In a

number of decided cases it has been held that so long as the

function of notice is met by the filing of a paper indicating an

intention to appeal, the substance of the rule has been complied

with. See, e.g., Cobb v. Lewis (C.A. 5th, 1974) 488 F.2d 41; Holley

v. Capps (C.A. 5th, 1972) 468 F.2d 1366. The proposed amendment

would give recognition to this practice.

When a notice of appeal is filed, the clerk should ascertain

whether any judgment designated therein has been entered in

compliance with Rules 58 and 79(a) of the F.R.C.P. See Note to Rule

4(a)(6), infra.

Subdivision (d). The proposed amendment would extend to civil

cases the present provision applicable to criminal cases, habeas

corpus cases, and proceedings under 28 U.S.C. Sec. 2255, requiring

the clerk of the district court to transmit to the clerk of the

court of appeals a copy of the notice of appeal and of the docket

entries, which should include reference to compliance with the

requirements for payment of fees. See Note to (e), infra.

This requirement is the initial step in proposed changes in the

rules to place in the court of appeals an increased practical

control over the early steps in the appeal.

Subdivision (e). Proposed new Rule 3(e) represents the second

step in shifting to the court of appeals the control of the early

stages of an appeal. See Note to Rule 3(d) above. Under the present

rules the payment of the fee prescribed by 28 U.S.C. 1917 is not

covered. Under the statute, however, this fee is paid to the clerk

of the district court at the time the notice of appeal is filed.

Under present Rule 12, the "docket fee" fixed by the Judicial

Conference of the United States under 28 U.S.C. Sec. 1913 must be

paid to the clerk of the court of appeals within the time fixed for

transmission of the record, ". . . and the clerk shall thereupon

enter the appeal upon the docket."

Under the proposed new Rule 3(e) both fees would be paid to the

clerk of the district court at the time the notice of appeal is

filed, the clerk of the district court receiving the docket fee on

behalf of the court of appeals.

In view of the provision in Rule 3(a) that "[f]ailure of an

appellant 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 such action as the court of appeals deems appropriate,

which may include dismissal of the appeal," the case law indicates

that the failure to prepay the statutory filing fee does not

constitute a jurisdictional defect. See Parissi v. Telechron, 349

U.S. 46 (1955); Gould v. Members of N. J. Division of Water Policy

& Supply, 555 F.2d 340 (3d Cir. 1977). Similarly, under present

Rule 12, failure to pay the docket fee within the time prescribed

may be excused by the court of appeals. See, e. g., Walker v.

Mathews, 546 F.2d 814 (9th Cir. 1976). Proposed new Rule 3(e)

adopts the view of these cases, requiring that both fees be paid at

the time the notice of appeal is filed, but subject to the

provisions of Rule 26(b) preserving the authority of the court of

appeals to permit late payment.

NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT

The amendments to Rule 3(d) are technical. No substantive change

is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1989 AMENDMENT

The amendment is technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Note to subdivision (c). The amendment is intended to reduce the

amount of satellite litigation spawned by the Supreme Court's

decision in Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988).

In Torres the Supreme Court held that the language in Rule 3(c)

requiring a notice of appeal to "specify the party or parties

taking the appeal" is a jurisdictional requirement and that naming

the first named party and adding "et al.," without any further

specificity is insufficient to identify the appellants. Since the

Torres decision, there has been a great deal of litigation

regarding whether a notice of appeal that contains some indication

of the appellants' identities but does not name the appellants is

sufficiently specific.

The amendment states a general rule that specifying the parties

should be done by naming them. Naming an appellant in an otherwise

timely and proper notice of appeal ensures that the appellant has

perfected an appeal. However, in order to prevent the loss of a

right to appeal through inadvertent omission of a party's name or

continued use of such terms as "et al.," which are sufficient in

all district court filings after the complaint, the amendment

allows an attorney representing more than one party the flexibility

to indicate which parties are appealing without naming them

individually. The test established by the rule for determining

whether such designations are sufficient is whether it is

objectively clear that a party intended to appeal. A notice of

appeal filed by a party proceeding pro se is filed on behalf of the

party signing the notice and the signer's spouse and minor

children, if they are parties, unless the notice clearly indicates

a contrary intent.

In class actions, naming each member of a class as an appellant

may be extraordinarily burdensome or even impossible. In class

actions if class certification has been denied, named plaintiffs

may appeal the order denying the class certification on their own

behalf and on behalf of putative class members, United States

Parole Comm'n v. Geraghty, 445 U.S. 388 (1980); or if the named

plaintiffs choose not to appeal the order denying the class

certification, putative class members may appeal, United Airlines,

Inc. v. McDonald, 432 U.S. 385 (1977). If no class has been

certified, naming each of the putative class members as an

appellant would often be impossible. Therefore the amendment

provides that in class actions, whether or not the class has been

certified, it is sufficient for the notice to name one person

qualified to bring the appeal as a representative of the class.

Finally, the rule makes it clear that dismissal of an appeal

should not occur when it is otherwise clear from the notice that

the party intended to appeal. If a court determines it is

objectively clear that a party intended to appeal, there are

neither administrative concerns nor fairness concerns that should

prevent the appeal from going forward.

Note to subdivision (d). The amendment requires the district

court clerk to send to the clerk of the court of appeals a copy of

every docket entry in a case after the filing of a notice of

appeal. This amendment accompanies the amendment to Rule 4(a)(4),

which provides that when one of the posttrial motions enumerated in

Rule 4(a)(4) is filed, a notice of appeal filed before the

disposition of the motion becomes effective upon disposition of the

motion. The court of appeals needs to be advised that the filing of

a posttrial motion has suspended a notice of appeal. The court of

appeals also needs to know when the district court has ruled on the

motion. Sending copies of all docket entries after the filing of a

notice of appeal should provide the courts of appeals with the

necessary information.

NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT

Subdivision (a). The amendment requires a party filing a notice

of appeal to provide the court with sufficient copies of the notice

for service on all other parties.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are generally intended to be stylistic only;

in this rule, however, substantive changes are made in subdivisions

(a), (b), and (d).

Subdivision (a). The provision in paragraph (a)(3) is transferred

from former Rule 3.1(b). The Federal Courts Improvement Act of

1996, Pub. L. No. 104-317, repealed paragraphs (4) and (5) of 28

U.S.C. Sec. 636(c). That statutory change made the continued

separate existence of Rule 3.1 unnecessary. New paragraph (a)(3) of

this rule simply makes it clear that an appeal from a judgment by a

magistrate judge is taken in identical fashion to any other appeal

from a district-court judgment.

Subdivision (b). A joint appeal is authorized only when two or

more persons may appeal from a single judgment or order. A joint

appeal is treated as a single appeal and the joint appellants file

a single brief. Under existing Rule 3(b) parties decide whether to

join their appeals. They may do so by filing a joint notice of

appeal or by joining their appeals after filing separate notices of

appeal.

In consolidated appeals the separate appeals do not merge into

one. The parties do not proceed as a single appellant. Under

existing Rule 3(b) it is unclear whether appeals may be

consolidated without court order if the parties stipulate to

consolidation. The language resolves that ambiguity by requiring

court action.

The language also requires court action to join appeals after

separate notices of appeal have been filed.

Subdivision (d). Paragraph (d)(2) has been amended to require

that when an inmate files a notice of appeal by depositing the

notice in the institution's internal mail system, the clerk must

note the docketing date - rather than the receipt date - on the

notice of appeal before serving copies of it. This change conforms

to a change in Rule 4(c). Rule 4(c) is amended to provide that when

an inmate files the first notice of appeal in a civil case by

depositing the notice in an institution's internal mail system, the

time for filing a cross-appeal runs from the date the district

court dockets the inmate's notice of appeal. Existing Rule 4(c)

says that in such a case the time for filing a cross-appeal runs

from the date the district court receives the inmate's notice of

appeal. A court may "receive" a paper when its mail is delivered to

it even if the mail is not processed for a day or two, making the

date of receipt uncertain. "Docketing" is an easily identified

event. The change is made to eliminate the uncertainty.

-End-

-CITE-

28 USC APPENDIX Rule 3.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-

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

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

-STATUTE-

-MISC1-

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The Federal Courts Improvement Act of 1996, Pub. L. No. 104-317,

repealed paragraphs (4) and (5) of 28 U.S.C. Sec. 636(c). That

statutory change means that when parties consent to trial before a

magistrate judge, appeal lies directly, and as a matter of right,

to the court of appeals under Sec. 636(c)(3). The parties may not

choose to appeal first to a district judge and thereafter seek

discretionary review in the court of appeals.

As a result of the statutory amendments, subdivision (a) of Rule

3.1 is no longer necessary. Since Rule 3.1 existed primarily

because of the provisions in subdivision (a), subdivision (b) has

been moved to Rule 3(a)(3) and Rule 3.1 has been abrogated.

-End-

-CITE-

28 USC APPENDIX Rule 4 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-

Rule 4. Appeal as of Right - When Taken

-STATUTE-

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules 4(a)(1)(B),

4(a)(4), and 4(c), the notice of appeal required by Rule 3 must

be filed with the district clerk within 30 days after the

judgment or order appealed from is entered.

(B) When the United States or its officer or agency is a

party, the notice of appeal may be filed by any party within 60

days after the judgment or order appealed from is entered.

(C) An appeal from an order granting or denying an

application for a writ of error coram nobis is an appeal in a

civil case for purposes of Rule 4(a).

(2) Filing Before Entry of Judgment. A notice of appeal filed

after the court announces a decision or order - but before the

entry of the judgment or order - is treated as filed on the date

of and after the entry.

(3) Multiple Appeals. If one party timely files a notice of

appeal, any other party may file a notice of appeal within 14

days after the date when the first notice was filed, or within

the time otherwise prescribed by this Rule 4(a), whichever period

ends later.

(4) Effect of a Motion on a Notice of Appeal.

(A) If a party timely files in the district court any of the

following motions under the Federal Rules of Civil Procedure,

the time to file an appeal runs for all parties from the entry

of the order disposing of the last such remaining motion:

(i) for judgment under Rule 50(b);

(ii) to amend or make additional factual findings under

Rule 52(b), whether or not granting the motion would alter

the judgment;

(iii) for attorney's fees under Rule 54 if the district

court extends the time to appeal under Rule 58;

(iv) to alter or amend the judgment under Rule 59;

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the motion is filed no

later than 10 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 altered or

amended 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 10 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 motion is filed within 180 days after the judgment or

order is entered or within 7 days after the moving party

receives notice of the entry, whichever is earlier;

(B) the court finds that the moving party was entitled to

notice of the entry of the judgment or order sought to be

appealed but did not receive the notice from the district court

or any party within 21 days after entry; and

(C) the court finds that no party would be prejudiced.

(7) Entry Defined.

(A) A judgment or order is entered for purposes of this Rule

4(a):

(i) if Federal Rule of Civil Procedure 58(a)(1) does not

require a separate document, when the judgment or order is

entered in the civil docket under Federal Rule of Civil

Procedure 79(a); or

(ii) if Federal Rule of Civil Procedure 58(a)(1) requires a

separate document, when the judgment or order is entered in

the civil docket under Federal Rule of Civil Procedure 79(a)

and when the earlier of these events occurs:

-- the judgment or order is set forth on a separate

document, or

-- 150 days have run from entry of the judgment or order

in the civil docket under Federal Rule of Civil Procedure

79(a).

(B) A failure to set forth a judgment or order on a separate

document when required by Federal Rule of Civil Procedure

58(a)(1) does not affect the validity of an appeal from that

judgment or order.

(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 10 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 10

days after the entry of the order disposing of the last such

remaining motion, or within 10 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

10 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.

-SOURCE-

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Nov. 18, 1988, Pub.

L. 100-690, title VII, Sec. 7111, 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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

Subdivision (a). This subdivision is derived from FRCP 73(a)

without any change of substance. The requirement that a request for

an extension of time for filing the notice of appeal made after

expiration of the time be made by motion and on notice codifies the

result reached under the present provisions of FRCP 73(a) and 6(b).

North Umberland Mining Co. v. Standard Accident Ins. Co., 193 F.2d

951 (9th Cir., 1952); Cohen v. Plateau Natural Gas Co., 303 F.2d

273 (10th Cir., 1962); Plant Economy, Inc. v. Mirror Insulation

Co., 308 F.2d 275 (3d Cir., 1962).

Since this subdivision governs appeals in all civil cases, it

supersedes the provisions of section 25 of the Bankruptcy Act (11

U.S.C. Sec. 48). Except in cases to which the United States or an

officer or agency thereof is a party, the change is a minor one,

since a successful litigant in a bankruptcy proceeding may, under

section 25, oblige an aggrieved party to appeal within 30 days

after entry of judgment - the time fixed by this subdivision in

cases involving private parties only - by serving him with notice

of entry on the day thereof, and by the terms of section 25 an

aggrieved party must in any event appeal within 40 days after entry

of judgment. No reason appears why the time for appeal in

bankruptcy should not be the same as that in civil cases generally.

Furthermore, section 25 is a potential trap for the uninitiated.

The time for appeal which it provides is not applicable to all

appeals which may fairly be termed appeals in bankruptcy. Section

25 governs only those cases referred to in section 24 as

"proceedings in bankruptcy" and "controversies arising in

proceedings in bankruptcy." Lowenstein v. Reikes, 54 F.2d 481 (2d

Cir., 1931), cert. den., 285 U.S. 539, 52 S.Ct. 311, 76 L.Ed. 932

(1932). The distinction between such cases and other cases which

arise out of bankruptcy is often difficult to determine. See 2

Moore's Collier on Bankruptcy ¶ 24.12 through ¶ 24.36

(1962). As a result it is not always clear whether an appeal is

governed by section 25 or by FRCP 73(a), which is applicable to

such appeals in bankruptcy as are not governed by section 25.

In view of the unification of the civil and admiralty procedure

accomplished by the amendments of the Federal Rules of Civil

Procedure effective July 1, 1966, this subdivision governs appeals

in those civil actions which involve admiralty or maritime claims

and which prior to that date were known as suits in admiralty.

The only other change possibly effected by this subdivision is in

the time for appeal from a decision of a district court on a

petition for impeachment of an award of a board of arbitration

under the Act of May 20, 1926, c. 347, Sec. 9 (44 Stat. 585), 45

U.S.C. Sec. 159. The act provides that a notice of appeal from such

a decision shall be filed within 10 days of the decision. This

singular provision was apparently repealed by the enactment in 1948

of 28 U.S.C. Sec. 2107, which fixed 30 days from the date of entry

of judgment as the time for appeal in all actions of a civil nature

except actions in admiralty or bankruptcy matters or those in which

the United States is a party. But it was not expressly repealed,

and its status is in doubt. See 7 Moore's Federal Practice ¶

73.09[2] (1966). The doubt should be resolved, and no reason

appears why appeals in such cases should not be taken within the

time provided for civil cases generally.

Subdivision (b). This subdivision is derived from FRCrP 37(a)(2)

without change of substance.

NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT

Subdivision (a)(1). The words "(including a civil action which

involves an admiralty or maritime claim and a proceeding in

bankruptcy or a controversy arising therein)," which appear in the

present rule are struck out as unnecessary and perhaps misleading

in suggesting that there may be other categories that are not

either civil or criminal within the meaning of Rule 4(a) and (b).

The phrases "within 30 days of such entry" and "within 60 days of

such entry" have been changed to read "after" instead of "or." The

change is for clarity only, since the word "of" in the present rule

appears to be used to mean "after." Since the proposed amended rule

deals directly with the premature filing of a notice of appeal, it

was thought useful to emphasize the fact that except as provided,

the period during which a notice of appeal may be filed is the 30

days, or 60 days as the case may be, following the entry of the

judgment or order appealed from. See Notes to Rule 4(a)(2) and (4),

below.

Subdivision (a)(2). The proposed amendment to Rule 4(a)(2) would

extend to civil cases the provisions of Rule 4(b), dealing with

criminal cases, designed to avoid the loss of the right to appeal

by filing the notice of appeal prematurely. Despite the absence of

such a provision in Rule 4(a) the courts of appeals quite generally

have held premature appeals effective. See, e. g., Matter of Grand

Jury Empanelled Jan. 21, 1975, 541 F.2d 373 (3d Cir. 1976); Hodge

v. Hodge, 507 F.2d 87 (3d Cir. 1976); Song Jook Suh v. Rosenberg,

437 F.2d 1098 (9th Cir. 1971); Ruby v. Secretary of the Navy, 365

F.2d 385 (9th Cir. 1966); Firchau v. Diamond Nat'l Corp., 345 F.2d

469 (9th Cir. 1965).

The proposed amended rule would recognize this practice but make

an exception in cases in which a post trial motion has destroyed

the finality of the judgment. See Note to Rule 4(a)(4) below.

Subdivision (a)(4). The proposed amendment would make it clear

that after the filing of the specified post trial motions, a notice

of appeal should await disposition of the motion. Since the

proposed amendments to Rules 3, 10, and 12 contemplate that

immediately upon the filing of the notice of appeal the fees will

be paid and the case docketed in the court of appeals, and the

steps toward its disposition set in motion, it would be undesirable

to proceed with the appeal while the district court has before it a

motion the granting of which would vacate or alter the judgment

appealed from. See, e. g., Kieth v. Newcourt, 530 F.2d 826 (8th

Cir. 1976). Under the present rule, since docketing may not take

place until the record is transmitted, premature filing is much

less likely to involve waste effort. See, e. g., Stokes v. Peyton's

Inc., 508 F.2d 1287 (5th Cir. 1975). Further, since a notice of

appeal filed before the disposition of a post trial motion, even if

it were treated as valid for purposes of jurisdiction, would not

embrace objections to the denial of the motion, it is obviously

preferable to postpone the notice of appeal until after the motion

is disposed of.

The present rule, since it provides for the "termination" of the

"running" of the appeal time, is ambiguous in its application to a

notice of appeal filed prior to a post trial motion filed within

the 10 day limit. The amendment would make it clear that in such

circumstances the appellant should not proceed with the appeal

during pendency of the motion but should file a new notice of

appeal after the motion is disposed of.

Subdivision (a)(5). Under the present rule it is provided that

upon a showing of excusable neglect the district court at any time

may extend the time for the filing of a notice of appeal for a

period not to exceed 30 days from the expiration of the time

otherwise prescribed by the rule, but that if the application is

made after the original time has run, the order may be made only on

motion with such notice as the court deems appropriate.

A literal reading of this provision would require that the

extension be ordered and the notice of appeal filed within the 30

day period, but despite the surface clarity of the rule, it has

produced considerable confusion. See the discussion by Judge

Friendly in In re Orbitek, 520 F.2d 358 (2d Cir. 1975). The

proposed amendment would make it clear that a motion to extend the

time must be filed no later than 30 days after the expiration of

the original appeal time, and that if the motion is timely filed

the district court may act upon the motion at a later date, and may

extend the time not in excess of 10 days measured from the date on

which the order granting the motion is entered.

Under the present rule there is a possible implication that prior

to the time the initial appeal time has run, the district court may

extend the time on the basis of an informal application. The

amendment would require that the application must be made by

motion, though the motion may be made ex parte. After the

expiration of the initial time a motion for the extension of the

time must be made in compliance with the F.R.C.P. and local rules

of the district court. See Note to proposed amended Rule 1, supra.

And see Rules 6(d), 7(b) of the F.R.C.P.

The proposed amended rule expands to some extent the standard for

the grant of an extension of time. The present rule requires a

"showing of excusable neglect." While this was an appropriate

standard in cases in which the motion is made after the time for

filing the notice of appeal has run, and remains so, it has never

fit exactly the situation in which the appellant seeks an extension

before the expiration of the initial time. In such a case "good

cause," which is the standard that is applied in the granting of

other extensions of time under Rule 26(b) seems to be more

appropriate.

Subdivision (a)(6). The proposed amendment would call attention

to the requirement of Rule 58 of the F.R.C.P. that the judgment

constitute a separate document. See United States v. Indrelunas,

411 U.S. 216 (1973). When a notice of appeal is filed, the clerk

should ascertain whether any judgment designated therein has been

entered in compliance with Rules 58 and 79(a) and if not, so advise

all parties and the district judge. While the requirement of Rule

48 is not jurisdictional (see Bankers Trust Co. v. Mallis, 431 U.S.

928 (1977)), compliance is important since the time for the filing

of a notice of appeal by other parties is measured by the time at

which the judgment is properly entered.

NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT

The amendment provides a limited opportunity for relief in

circumstances where the notice of entry of a judgment or order,

required to be mailed by the clerk of the district court pursuant

to Rule 77(d) of the Federal Rules of Civil Procedure, is either

not received by a party or is received so late as to impair the

opportunity to file a timely notice of appeal. The amendment adds a

new subdivision (6) allowing a district court to reopen for a brief

period the time for appeal upon a finding that notice of entry of a

judgment or order was not received from the clerk or a party within

21 days of its entry and that no party would be prejudiced. By

"prejudice" the Committee means some adverse consequence other than

the cost of having to oppose the appeal and encounter the risk of

reversal, consequences that are present in every appeal. Prejudice

might arise, for example, if the appellee had taken some action in

reliance on the expiration of the normal time period for filing a

notice of appeal.

Reopening may be ordered only upon a motion filed within 180 days

of the entry of a judgment or order or within 7 days of receipt of

notice of such entry, whichever is earlier. This provision

establishes an outer time limit of 180 days for a party who fails

to receive timely notice of entry of a judgment to seek additional

time to appeal and enables any winning party to shorten the 180-day

period by sending (and establishing proof of receipt of) its own

notice of entry of a judgment, as authorized by Fed. R. Civ. P.

77(d). Winning parties are encouraged to send their own notice in

order to lessen the chance that a judge will accept a claim of

non-receipt in the face of evidence that notices were sent by both

the clerk and the winning party. Receipt of a winning party's

notice will shorten only the time for reopening the time for appeal

under this subdivision, leaving the normal time periods for appeal

unaffected.

If the motion is granted, the district court may reopen the time

for filing a notice of appeal only for a period of 14 days from the

date of entry of the order reopening the time for appeal.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Note to Paragraph (a)(1). The amendment is intended to alert

readers to the fact that paragraph (a)(4) extends the time for

filing an appeal when certain posttrial motions are filed. The

Committee hopes that awareness of the provisions of paragraph

(a)(4) will prevent the filing of a notice of appeal when a

posttrial tolling motion is pending.

Note to Paragraph (a)(2). The amendment treats a notice of appeal

filed after the announcement of a decision or order, but before its

formal entry, as if the notice had been filed after entry. The

amendment deletes the language that made paragraph (a)(2)

inapplicable to a notice of appeal filed after announcement of the

disposition of a posttrial motion enumerated in paragraph (a)(4)

but before the entry of the order, see Acosta v. Louisiana Dep't of

Health & Human Resources, 478 U.S. 251 (1986) (per curiam); Alerte

v. McGinnis, 898 F.2d 69 (7th Cir. 1990). Because the amendment of

paragraph (a)(4) recognizes all notices of appeal filed after

announcement or entry of judgment - even those that are filed while

the posttrial motions enumerated in paragraph (a)(4) are pending -

the amendment of this paragraph is consistent with the amendment of

paragraph (a)(4).

Note to Paragraph (a)(3). The amendment is technical in nature;

no substantive change is intended.

Note to Paragraph (a)(4). The 1979 amendment of this paragraph

created a trap for an unsuspecting litigant who files a notice of

appeal before a posttrial motion, or while a posttrial motion is

pending. The 1979 amendment requires a party to file a new notice

of appeal after the motion's disposition. Unless a new notice is

filed, the court of appeals lacks jurisdiction to hear the appeal.

Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). Many

litigants, especially pro se litigants, fail to file the second

notice of appeal, and several courts have expressed dissatisfaction

with the rule. See, e.g., Averhart v. Arrendondo, 773 F.2d 919 (7th

Cir. 1985); Harcon Barge Co. v. D & G Boat Rentals, Inc., 746 F.2d

278 (5th Cir. 1984), cert. denied, 479 U.S. 930 (1986).

The amendment provides that a notice of appeal filed before the

disposition of a specified posttrial motion will become effective

upon disposition of the motion. A notice filed before the filing of

one of the specified motions or after the filing of a motion but

before disposition of the motion is, in effect, suspended until the

motion is disposed of, whereupon, the previously filed notice

effectively places jurisdiction in the court of appeals.

Because a notice of appeal will ripen into an effective appeal

upon disposition of a posttrial motion, in some instances there

will be an appeal from a judgment that has been altered

substantially because the motion was granted in whole or in part.

Many such appeals will be dismissed for want of prosecution when

the appellant fails to meet the briefing schedule. But, the

appellee may also move to strike the appeal. When responding to

such a motion, the appellant would have an opportunity to state

that, even though some relief sought in a posttrial motion was

granted, the appellant still plans to pursue the appeal. Because

the appellant's response would provide the appellee with sufficient

notice of the appellant's intentions, the Committee does not

believe that an additional notice of appeal is needed.

The amendment provides that a notice of appeal filed before the

disposition of a posttrial tolling motion is sufficient to bring

the underlying case, as well as any orders specified in the

original notice, to the court of appeals. If the judgment is

altered upon disposition of a posttrial motion, however, and if a

party wishes to appeal from the disposition of the motion, the

party must amend the notice to so indicate. When a party files an

amended notice, no additional fees are required because the notice

is an amendment of the original and not a new notice of appeal.

Paragraph (a)(4) is also amended to include, among motions that

extend the time for filing a notice of appeal, a Rule 60 motion

that is served within 10 days after entry of judgment. This

eliminates the difficulty of determining whether a posttrial motion

made within 10 days after entry of a judgment is a Rule 59(e)

motion, which tolls the time for filing an appeal, or a Rule 60

motion, which historically has not tolled the time. The amendment

comports with the practice in several circuits of treating all

motions to alter or amend judgments that are made within 10 days

after entry of judgment as Rule 59(e) motions for purposes of Rule

4(a)(4). See, e.g., Finch v. City of Vernon, 845 F.2d 256 (11th

Cir. 1988); Rados v. Celotex Corp., 809 F.2d 170 (2d Cir. 1986);

Skagerberg v. Oklahoma, 797 F.2d 881 (10th Cir. 1986). To conform

to a recent Supreme Court decision, however - Budinich v. Becton

Dickinson and Co., 486 U.S. 196 (1988) - the amendment excludes

motions for attorney's fees from the class of motions that extend

the filing time unless a district court, acting under Rule 58,

enters an order extending the time for appeal. This amendment is to

be read in conjunction with the amendment of Fed. R. Civ. P. 58.

Note to subdivision (b). The amendment grammatically restructures

the portion of this subdivision that lists the types of motions

that toll the time for filing an appeal. This restructuring is

intended to make the rule easier to read. No substantive change is

intended other than to add a motion for judgment of acquittal under

Criminal Rule 29 to the list of tolling motions. Such a motion is

the equivalent of a Fed. R. Civ. P. 50(b) motion for judgment

notwithstanding the verdict, which tolls the running of time for an

appeal in a civil case.

The proposed amendment also eliminates an ambiguity from the

third sentence of this subdivision. Prior to this amendment, the

third sentence provided that if one of the specified motions was

filed, the time for filing an appeal would run from the entry of an

order denying the motion. That sentence, like the parallel

provision in Rule 4(a)(4), was intended to toll the running of time

for appeal if one of the posttrial motions is timely filed. In a

criminal case, however, the time for filing the motions runs not

from entry of judgment (as it does in civil cases), but from the

verdict or finding of guilt. Thus, in a criminal case, a posttrial

motion may be disposed of more than 10 days before sentence is

imposed, i.e. before the entry of judgment. United States v.

Hashagen, 816 F.2d 899, 902 n.5 (3d Cir. 1987). To make it clear

that a notice of appeal need not be filed before entry of judgment,

the amendment states that an appeal may be taken within 10 days

after the entry of an order disposing of the motion, or within 10

days after the entry of judgment, whichever is later. The amendment

also changes the language in the third sentence providing that an

appeal may be taken within 10 days after the entry of an order

denying the motion; the amendment says instead that an appeal may

be taken within 10 days after the entry of an order disposing of

the last such motion outstanding. (Emphasis added) The change

recognizes that there may be multiple posttrial motions filed and

that, although one or more motions may be granted in whole or in

part, a defendant may still wish to pursue an appeal.

The amendment also states that a notice of appeal filed before

the disposition of any of the posttrial tolling motions becomes

effective upon disposition of the motions. In most circuits this

language simply restates the current practice. See United States v.

Cortes, 895 F.2d 1245 (9th Cir.), cert. denied, 495 U.S. 939

(1990). Two circuits, however, have questioned that practice in

light of the language of the rule, see United States v. Gargano,

826 F.2d 610 (7th Cir. 1987), and United States v. Jones, 669 F.2d

559 (8th Cir. 1982), and the Committee wishes to clarify the rule.

The amendment is consistent with the proposed amendment of Rule

4(a)(4).

Subdivision (b) is further amended in light of new Fed. R. Crim.

P. 35(c), which authorizes a sentencing court to correct any

arithmetical, technical, or other clear errors in sentencing within

7 days after imposing the sentence. The Committee believes that a

sentencing court should be able to act under Criminal Rule 35(c)

even if a notice of appeal has already been filed; and that a

notice of appeal should not be affected by the filing of a Rule

35(c) motion or by correction of a sentence under Rule 35(c).

Note to subdivision (c). In Houston v. Lack, 487 U.S. 266 (1988),

the Supreme Court held that a pro se prisoner's notice of appeal is

"filed" at the moment of delivery to prison authorities for

forwarding to the district court. The amendment reflects that

decision. The language of the amendment is similar to that in

Supreme Court Rule 29.2.

Permitting an inmate to file a notice of appeal by depositing it

in an institutional mail system requires adjustment of the rules

governing the filing of cross-appeals. In a civil case, the time

for filing a cross-appeal ordinarily runs from the date when the

first notice of appeal is filed. If an inmate's notice of appeal is

filed by depositing it in an institution's mail system, it is

possible that the notice of appeal will not arrive in the district

court until several days after the "filing" date and perhaps even

after the time for filing a cross-appeal has expired. To avoid that

problem, subdivision (c) provides that in a civil case when an

institutionalized person files a notice of appeal by depositing it

in the institution's mail system, the time for filing a

cross-appeal runs from the district court's receipt of the notice.

The amendment makes a parallel change regarding the time for the

government to appeal in a criminal case.

NOTES OF ADVISORY COMMITTEE ON RULES - 1995 AMENDMENT

Subdivision (a). Fed. R. Civ. P. 50, 52, and 59 were previously

inconsistent with respect to whether certain postjudgment motions

had to be filed or merely served no later than 10 days after entry

of judgment. As a consequence Rule 4(a)(4) spoke of making or

serving such motions rather than filing them. Civil Rules 50, 52,

and 59, are being revised to require filing before the end of the

10-day period. As a consequence, this rule is being amended to

provide that "filing" must occur within the 10 day period in order

to affect the finality of the judgment and extend the period for

filing a notice of appeal.

The Civil Rules require the filing of postjudgment motions "no

later than 10 days after entry of judgment" - rather than "within"

10 days - to include postjudgment motions that are filed before

actual entry of the judgment by the clerk. This rule is amended,

therefore, to use the same terminology.

The rule is further amended to clarify the fact that a party who

wants to obtain review of an alteration or amendment of a judgment

must file a notice of appeal or amend a previously filed notice to

indicate intent to appeal from the altered judgment.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only; in this

rule, however, substantive changes are made in paragraphs (a)(6)

and (b)(4), and in subdivision (c).

Subdivision (a), paragraph (1). Although the Advisory Committee

does not intend to make any substantive changes in this paragraph,

cross-references to Rules 4(a)(1)(B) and 4(c) have been added to

subparagraph (a)(1)(A).

Subdivision (a), paragraph (4). Item (vi) in subparagraph (A) of

Rule 4(a)(4) provides that filing a motion for relief under Fed. R.

Civ. P. 60 will extend the time for filing a notice of appeal if

the Rule 60 motion is filed no later than 10 days after judgment is

entered. Again, the Advisory Committee does not intend to make any

substantive change in this paragraph. But because Fed. R. Civ. P.

6(a) and Fed. R. App. P. 26(a) have different methods for computing

time, one might be uncertain whether the 10-day period referred to

in Rule 4(a)(4) is computed using Civil Rule 6(a) or Appellate Rule

26(a). Because the Rule 60 motion is filed in the district court,

and because Fed. R. App. P. 1(a)(2) says that when the appellate

rules provide for filing a motion in the district court, "the

procedure must comply with the practice of the district court," the

rule provides that the 10-day period is computed using Fed. R. Civ.

P. 6(a).

Subdivision (a), paragraph (6). Paragraph (6) permits a district

court to reopen the time for appeal if a party has not received

notice of the entry of judgment and no party would be prejudiced by

the reopening. Before reopening the time for appeal, the existing

rule requires the district court to find that the moving party was

entitled to notice of the entry of judgment and did not receive it

"from the clerk or any party within 21 days of its entry." The

Advisory Committee makes a substantive change. The finding must be

that the movant did not receive notice "from the district court or

any party within 21 days after entry." This change broadens the

type of notice that can preclude reopening the time for appeal. The

existing rule provides that only notice from a party or from the

clerk bars reopening. The new language precludes reopening if the

movant has received notice from "the court."

Subdivision (b). Two substantive changes are made in what will be

paragraph (b)(4). The current rule permits an extension of time to

file a notice of appeal if there is a "showing of excusable

neglect." First, the rule is amended to permit a court to extend

the time for "good cause" as well as for excusable neglect. Rule

4(a) permits extensions for both reasons in civil cases and the

Advisory Committee believes that "good cause" should be sufficient

in criminal cases as well. The amendment does not limit extensions

for good cause to instances in which the motion for extension of

time is filed before the original time has expired. The rule gives

the district court discretion to grant extensions for good cause

whenever the court believes it appropriate to do so provided that

the extended period does not exceed 30 days after the expiration of

the time otherwise prescribed by Rule 4(b). Second, paragraph

(b)(4) is amended to require only a "finding" of excusable neglect

or good cause and not a "showing" of them. Because the rule

authorizes the court to provide an extension without a motion, a

"showing" is obviously not required; a "finding" is sufficient.

Subdivision (c). Substantive amendments are made in this

subdivision. The current rule provides that if an inmate confined

in an institution files a notice of appeal by depositing it in the

institution's internal mail system, the notice is timely filed if

deposited on or before the last day for filing. Some institutions

have special internal mail systems for handling legal mail; such

systems often record the date of deposit of mail by an inmate, the

date of delivery of mail to an inmate, etc. The Advisory Committee

amends the rule to require an inmate to use the system designed for

legal mail, if there is one, in order to receive the benefit of

this subdivision.

When an inmate uses the filing method authorized by subdivision

(c), the current rule provides that the time for other parties to

appeal begins to run from the date the district court "receives"

the inmate's notice of appeal. The rule is amended so that the time

for other parties begins to run when the district court "dockets"

the inmate's appeal. A court may "receive" a paper when its mail is

delivered to it even if the mail is not processed for a day or two,

making the date of receipt uncertain. "Docketing" is an easily

identified event. The change eliminates uncertainty. Paragraph

(c)(3) is further amended to make it clear that the time for the

government to file its appeal runs from the later of the entry of

the judgment or order appealed from or the district court's

docketing of a defendant's notice filed under this paragraph (c).

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Subdivision (a)(1)(C). The federal courts of appeals have reached

conflicting conclusions about whether an appeal from an order

granting or denying an application for a writ of error coram nobis

is governed by the time limitations of Rule 4(a) (which apply in

civil cases) or by the time limitations of Rule 4(b) (which apply

in criminal cases).Compare United States v. Craig, 907 F.2d 653,

655-57, amended 919 F.2d 57 (7th Cir. 1990); United States v.

Cooper, 876 F.2d 1192, 1193-94 (5th Cir. 1989); and United States

v. Keogh, 391 F.2d 138, 140 (2d Cir. 1968) (applying the time

limitations of Rule 4(a)); with Yasui v. United States, 772 F.2d

1496, 1498-99 (9th Cir. 1985); and United States v. Mills, 430 F.2d

526, 527-28 (8th Cir. 1970) (applying the time limitations of Rule

4(b)). A new part (C) has been added to Rule 4(a)(1) to resolve

this conflict by providing that the time limitations of Rule 4(a)

will apply.

Subsequent to the enactment of Fed. R. Civ. P. 60(b) and 28

U.S.C. Sec. 2255, the Supreme Court has recognized the continued

availability of a writ of error coram nobis in at least one narrow

circumstance. In 1954, the Court permitted a litigant who had been

convicted of a crime, served his full sentence, and been released

from prison, but who was continuing to suffer a legal disability on

account of the conviction, to seek a writ of error coram nobis to

set aside the conviction. United States v. Morgan, 346 U.S. 502

(1954). As the Court recognized, in the Morgan situation an

application for a writ of error coram nobis "is of the same general

character as [a motion] under 28 U.S.C. Sec. 2255." Id. at 506 n.4.

Thus, it seems appropriate that the time limitations of Rule 4(a),

which apply when a district court grants or denies relief under 28

U.S.C. Sec. 2255, should also apply when a district court grants or

denies a writ of error coram nobis. In addition, the strong public

interest in the speedy resolution of criminal appeals that is

reflected in the shortened deadlines of Rule 4(b) is not present in

the Morgan situation, as the party seeking the writ of error coram

nobis has already served his or her full sentence.

Notwithstanding Morgan, it is not clear whether the Supreme Court

continues to believe that the writ of error coram nobis is

available in federal court. In civil cases, the writ has been

expressly abolished by Fed. R. Civ. P. 60(b). In criminal cases,

the Supreme Court has recently stated that it has become "

'difficult to conceive of a situation' " in which the writ " 'would

be necessary or appropriate.' " Carlisle v. United States, 517 U.S.

416, 429 (1996) (quoting United States v. Smith, 331 U.S. 469, 475

n.4 (1947)). The amendment to Rule 4(a)(1) is not intended to

express any view on this issue; rather, it is merely meant to

specify time limitations for appeals.

Rule 4(a)(1)(C) applies only to motions that are in substance,

and not merely in form, applications for writs of error coram

nobis. Litigants may bring and label as applications for a writ of

error coram nobis what are in reality motions for a new trial under

Fed. R. Crim. P. 33 or motions for correction or reduction of a

sentence under Fed. R. Crim. P. 35. In such cases, the time

limitations of Rule 4(b), and not those of Rule 4(a), should be

enforced.

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment or to the Committee Note.

Subdivision (a)(4)(A)(vi). Rule 4(a)(4)(A)(vi) has been amended

to remove a parenthetical that directed that the 10-day deadline be

"computed using Federal Rule of Civil Procedure 6(a)." That

parenthetical has become superfluous because Rule 26(a)(2) has been

amended to require that all deadlines under 11 days be calculated

as they are under Fed. R. Civ. P. 6(a).

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment or to the Committee Note.

Subdivision (a)(5)(A)(ii). Rule 4(a)(5)(A) permits the district

court to extend the time to file a notice of appeal if two

conditions are met. First, the party seeking the extension must

file its motion no later than 30 days after the expiration of the

time originally prescribed by Rule 4(a). Second, the party seeking

the extension must show either excusable neglect or good cause. The

text of Rule 4(a)(5)(A) does not distinguish between motions filed

prior to the expiration of the original deadline and those filed

after the expiration of the original deadline. Regardless of

whether the motion is filed before or during the 30 days after the

original deadline expires, the district court may grant an

extension if a party shows either excusable neglect or good cause.

Despite the text of Rule 4(a)(5)(A), most of the courts of

appeals have held that the good cause standard applies only to

motions brought prior to the expiration of the original deadline

and that the excusable neglect standard applies only to motions

brought during the 30 days following the expiration of the original

deadline. See Pontarelli v. Stone, 930 F.2d 104, 109-10 (1st Cir.

1991) (collecting cases from the Second, Fifth, Sixth, Seventh,

Eighth, Ninth, and Eleventh Circuits). These courts have relied

heavily upon the Advisory Committee Note to the 1979 amendment to

Rule 4(a)(5). But the Advisory Committee Note refers to a draft of

the 1979 amendment that was ultimately rejected. The rejected draft

directed that the good cause standard apply only to motions filed

prior to the expiration of the original deadline. Rule 4(a)(5), as

actually amended, did not. See 16A Charles Alan Wright, et al.,

Federal Practice and Procedure Sec. 3950.3, at 148-49 (2d ed.

1996).

The failure of the courts of appeals to apply Rule 4(a)(5)(A) as

written has also created tension between that rule and Rule

4(b)(4). As amended in 1998, Rule 4(b)(4) permits the district

court to extend the time for filing a notice of appeal in a

criminal case for an additional 30 days upon a finding of excusable

neglect or good cause. Both Rule 4(b)(4) and the Advisory Committee

Note to the 1998 amendment make it clear that an extension can be

granted for either excusable neglect or good cause, regardless of

whether a motion for an extension is filed before or during the 30

days following the expiration of the original deadline.

Rule 4(a)(5)(A)(ii) has been amended to correct this

misunderstanding and to bring the rule in harmony in this respect

with Rule 4(b)(4). A motion for an extension filed prior to the

expiration of the original deadline may be granted if the movant

shows either excusable neglect or good cause. Likewise, a motion

for an extension filed during the 30 days following the expiration

of the original deadline may be granted if the movant shows either

excusable neglect or good cause.

The good cause and excusable neglect standards have "different

domains." Lorenzen v. Employees Retirement Plan, 896 F.2d 228, 232

(7th Cir. 1990). They are not interchangeable, and one is not

inclusive of the other. The excusable neglect standard applies in

situations in which there is fault; in such situations, the need

for an extension is usually occasioned by something within the

control of the movant. The good cause standard applies in

situations in which there is no fault - excusable or otherwise. In

such situations, the need for an extension is usually occasioned by

something that is not within the control of the movant.

Thus, the good cause standard can apply to motions brought during

the 30 days following the expiration of the original deadline. If,

for example, the Postal Service fails to deliver a notice of

appeal, a movant might have good cause to seek a post-expiration

extension. It may be unfair to make such a movant prove that its

"neglect" was excusable, given that the movant may not have been

neglectful at all. Similarly, the excusable neglect standard can

apply to motions brought prior to the expiration of the original

deadline. For example, a movant may bring a pre-expiration motion

for an extension of time when an error committed by the movant

makes it unlikely that the movant will be able to meet the original

deadline.

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment. The stylistic changes to the

Committee Note suggested by Judge Newman were adopted. In addition,

two paragraphs were added at the end of the Committee Note to

clarify the difference between the good cause and excusable neglect

standards.

Subdivision (a)(7). Several circuit splits have arisen out of

uncertainties about how Rule 4(a)(7)'s definition of when a

judgment or order is "entered" interacts with the requirement in

Fed. R. Civ. P. 58 that, to be "effective," a judgment must be set

forth on a separate document. Rule 4(a)(7) and Fed. R. Civ. P. 58

have been amended to resolve those splits.

1. The first circuit split addressed by the amendments to Rule

4(a)(7) and Fed. R. Civ. P. 58 concerns the extent to which orders

that dispose of post-judgment motions must be set forth on separate

documents. Under Rule 4(a)(4)(A), the filing of certain

post-judgment motions tolls the time to appeal the underlying

judgment until the "entry" of the order disposing of the last such

remaining motion. Courts have disagreed about whether such an order

must be set forth on a separate document before it is treated as

"entered." This disagreement reflects a broader dispute among

courts about whether Rule 4(a)(7) independently imposes a separate

document requirement (a requirement that is distinct from the

separate document requirement that is imposed by the Federal Rules

of Civil Procedure ("FRCP")) or whether Rule 4(a)(7) instead

incorporates the separate document requirement as it exists in the

FRCP. Further complicating the matter, courts in the former "camp"

disagree among themselves about the scope of the separate document

requirement that they interpret Rule 4(a)(7) as imposing, and

courts in the latter "camp" disagree among themselves about the

scope of the separate document requirement imposed by the FRCP.

Rule 4(a)(7) has been amended to make clear that it simply

incorporates the separate document requirement as it exists in Fed.

R. Civ. P. 58. If Fed. R. Civ. P. 58 does not require that a

judgment or order be set forth on a separate document, then neither

does Rule 4(a)(7); the judgment or order will be deemed entered for

purposes of Rule 4(a) when it is entered in the civil docket. If

Fed. R. Civ. P. 58 requires that a judgment or order be set forth

on a separate document, then so does Rule 4(a)(7); the judgment or

order will not be deemed entered for purposes of Rule 4(a) until it

is so set forth and entered in the civil docket (with one important

exception, described below).

In conjunction with the amendment to Rule 4(a)(7), Fed. R. Civ.

P. 58 has been amended to provide that orders disposing of the

post-judgment motions listed in new Fed. R. Civ. P. 58(a)(1) (which

post-judgment motions include, but are not limited to, the

post-judgment motions that can toll the time to appeal under Rule

4(a)(4)(A)) do not have to be set forth on separate documents. See

Fed. R. Civ. P. 58(a)(1). Thus, such orders are entered for

purposes of Rule 4(a) when they are entered in the civil docket

pursuant to Fed. R. Civ. P. 79(a). See Rule 4(a)(7)(A)(1).

2. The second circuit split addressed by the amendments to Rule

4(a)(7) and Fed. R. Civ. P. 58 concerns the following question:

When a judgment or order is required to be set forth on a separate

document under Fed. R. Civ. P. 58 but is not, does the time to

appeal the judgment or order - or the time to bring post-judgment

motions, such as a motion for a new trial under Fed. R. Civ. P. 59

- ever begin to run? According to every circuit except the First

Circuit, the answer is "no." The First Circuit alone holds that

parties will be deemed to have waived their right to have a

judgment or order entered on a separate document three months after

the judgment or order is entered in the civil docket. See Fiore v.

Washington County Community Mental Health Ctr., 960 F.2d 229, 236

(1st Cir. 1992) (en banc). Other circuits have rejected this cap as

contrary to the relevant rules. See, e.g., United States v. Haynes,

158 F.3d 1327, 1331 (D.C. Cir. 1998); Hammack v. Baroid Corp., 142

F.3d 266, 269-70 (5th Cir. 1998); Rubin v. Schottenstein, Zox &

Dunn, 110 F.3d 1247, 1253 n.4 (6th Cir. 1997), vacated on other

grounds, 143 F.3d 263 (6th Cir. 1998) (en banc). However, no court

has questioned the wisdom of imposing such a cap as a matter of

policy.

Both Rule 4(a)(7)(A) and Fed. R. Civ. P. 58 have been amended to

impose such a cap. Under the amendments, a judgment or order is

generally treated as entered when it is entered in the civil docket

pursuant to Fed. R. Civ. P. 79(a). There is one exception: When

Fed. R. Civ. P. 58(a)(1) requires the judgment or order to be set

forth on a separate document, that judgment or order is not treated

as entered until it is set forth on a separate document (in

addition to being entered in the civil docket) or until the

expiration of 150 days after its entry in the civil docket,

whichever occurs first. This cap will ensure that parties will not

be given forever to appeal (or to bring a post-judgment motion)

when a court fails to set forth a judgment or order on a separate

document in violation of Fed. R. Civ. P. 58(a)(1).

3. The third circuit split - this split addressed only by the

amendment to Rule 4(a)(7) - concerns whether the appellant may

waive the separate document requirement over the objection of the

appellee. In Bankers Trust Co. v. Mallis, 435 U.S. 381, 387 (1978)

(per curiam), the Supreme Court held that the "parties to an appeal

may waive the separate-judgment requirement of Rule 58."

Specifically, the Supreme Court held that when a district court

enters an order and "clearly evidence[s] its intent that the . . .

order . . . represent[s] the final decision in the case," the order

is a "final decision" for purposes of 28 U.S.C. Sec. 1291, even if

the order has not been set forth on a separate document for

purposes of Fed. R. Civ. P. 58. Id. Thus, the parties can choose to

appeal without waiting for the order to be set forth on a separate

document.

Courts have disagreed about whether the consent of all parties is

necessary to waive the separate document requirement. Some circuits

permit appellees to object to attempted Mallis waivers and to force

appellants to return to the trial court, request that judgment be

set forth on a separate document, and appeal a second time. See,

e.g., Selletti v. Carey, 173 F.3d 104, 109-10 (2d Cir. 1999);

Williams v. Borg, 139 F.3d 737, 739-40 (9th Cir. 1998); Silver Star

Enters., Inc. v. M/V Saramacca, 19 F.3d 1008, 1013 (5th Cir. 1994).

Other courts disagree and permit Mallis waivers even if the

appellee objects. See, e.g., Haynes, 158 F.3d at 1331; Miller v.

Artistic Cleaners, 153 F.3d 781, 783-84 (7th Cir. 1998);

Alvord-Polk, Inc. v. F. Schumacher & Co., 37 F.3d 996, 1006 n.8 (3d

Cir. 1994).

New Rule 4(a)(7)(B) is intended both to codify the Supreme

Court's holding in Mallis and to make clear that the decision

whether to waive the requirement that the judgment or order be set

forth on a separate document is the appellant's alone. It is, after

all, the appellant who needs a clear signal as to when the time to

file a notice of appeal has begun to run. If the appellant chooses

to bring an appeal without waiting for the judgment or order to be

set forth on a separate document, then there is no reason why the

appellee should be able to object. All that would result from

honoring the appellee's objection would be delay.

4. The final circuit split addressed by the amendment to Rule

4(a)(7) concerns the question whether an appellant who chooses to

waive the separate document requirement must appeal within 30 days

(60 days if the government is a party) from the entry in the civil

docket of the judgment or order that should have been set forth on

a separate document but was not. In Townsend v. Lucas, 745 F.2d 933

(5th Cir. 1984), the district court dismissed a 28 U.S.C. Sec. 2254

action on May 6, 1983, but failed to set forth the judgment on a

separate document. The plaintiff appealed on January 10, 1984. The

Fifth Circuit dismissed the appeal, reasoning that, if the

plaintiff waived the separate document requirement, then his appeal

would be from the May 6 order, and if his appeal was from the May 6

order, then it was untimely under Rule 4(a)(1). The Fifth Circuit

stressed that the plaintiff could return to the district court,

move that the judgment be set forth on a separate document, and

appeal from that judgment within 30 days. Id. at 934. Several other

cases have embraced the Townsend approach. See, e.g., Armstrong v.

Ahitow, 36 F.3d 574, 575 (7th Cir. 1994) (per curiam); Hughes v.

Halifax County Sch. Bd., 823 F.2d 832, 835-36 (4th Cir. 1987);

Harris v. McCarthy, 790 F.2d 753, 756 n.1 (9th Cir. 1986).

Those cases are in the distinct minority. There are numerous

cases in which courts have heard appeals that were not filed within

30 days (60 days if the government was a party) from the judgment

or order that should have been set forth on a separate document but

was not. See, e.g., Haynes, 158 F.3d at 1330-31; Clough v. Rush,

959 F.2d 182, 186 (10th Cir. 1992); McCalden v. California Library

Ass'n, 955 F.2d 1214, 1218-19 (9th Cir. 1990). In the view of these

courts, the remand in Townsend was "precisely the purposeless

spinning of wheels abjured by the Court in the [Mallis] case." 15B

Charles Alan Wright et al., Federal Practice and Procedure Sec.

3915, at 259 n.8 (3d ed. 1992).

The Committee agrees with the majority of courts that have

rejected the Townsend approach. In drafting new Rule 4(a)(7)(B),

the Committee has been careful to avoid phrases such as "otherwise

timely appeal" that might imply an endorsement of Townsend.

Changes Made After Publication and Comments. No changes were made

to the text of proposed Rule 4(a)(7)(B) or to the third or fourth

numbered sections of the Committee Note, except that, in several

places, references to a judgment being "entered" on a separate

document were changed to references to a judgment being "set forth"

on a separate document. This was to maintain stylistic consistency.

The appellate rules and the civil rules consistently refer to

"entering" judgments on the civil docket and to "setting forth"

judgments on separate documents.

Two major changes were made to the text of proposed Rule

4(a)(7)(A) - one substantive and one stylistic. The substantive

change was to increase the "cap" from 60 days to 150 days. The

Appellate Rules Committee and the Civil Rules Committee had to

balance two concerns that are implicated whenever a court fails to

enter its final decision on a separate document. On the one hand,

potential appellants need a clear signal that the time to appeal

has begun to run, so that they do not unknowingly forfeit their

rights. On the other hand, the time to appeal cannot be allowed to

run forever. A party who receives no notice whatsoever of a

judgment has only 180 days to move to reopen the time to appeal

from that judgment. See Rule 4(a)(6)(A). It hardly seems fair to

give a party who does receive notice of a judgment an unlimited

amount of time to appeal, merely because that judgment was not set

forth on a separate piece of paper. Potential appellees and the

judicial system need some limit on the time within which appeals

can be brought.

The 150-day cap properly balances these two concerns. When an

order is not set forth on a separate document, what signals

litigants that the order is final and appealable is a lack of

further activity from the court. A 60-day period of inactivity is

not sufficiently rare to signal to litigants that the court has

entered its last order. By contrast, 150 days of inactivity is much

less common and thus more clearly signals to litigants that the

court is done with their case.

The major stylistic change to Rule 4(a)(7) requires some

explanation. In the published draft, proposed Rule 4(a)(7)(A)

provided that "[a] judgment or order is entered for purposes of

this Rule 4(a) when it is entered for purposes of Rule 58(b) of the

Federal Rules of Civil Procedure." In other words, Rule 4(a)(7)(A)

told readers to look to FRCP 58(b) to ascertain when a judgment is

entered for purposes of starting the running of time to appeal.

Sending appellate lawyers to the civil rules to discover when time

began to run for purposes of the appellate rules was itself

somewhat awkward, but it was made more confusing by the fact that,

when readers went to proposed FRCP 58(b), they found this

introductory clause: "Judgment is entered for purposes of Rules 50,

52, 54(d)(2)(B), 59, 60, and 62 when . . ."

This introductory clause was confusing for both appellate lawyers

and trial lawyers. It was confusing for appellate lawyers because

Rule 4(a)(7) informed them that FRCP 58(b) would tell them when the

time begins to run for purposes of the appellate rules, but when

they got to FRCP 58(b) they found a rule that, by its terms,

dictated only when the time begins to run for purposes of certain

civil rules. The introductory clause was confusing for trial

lawyers because FRCP 58(b) described when judgment is entered for

some purposes under the civil rules, but then was completely silent

about when judgment is entered for other purposes.

To avoid this confusion, the Civil Rules Committee, on the

recommendation of the Appellate Rules Committee, changed the

introductory clause in FRCP 58(b) to read simply: "Judgment is

entered for purposes of these Rules when . . . ." In addition, Rule

4(a)(7)(A) was redrafted [A redraft of Rule 4(a)(7) was faxed to

members of the Appellate Rules Committee two weeks after our

meeting in New Orleans. The Committee consented to the redraft

without objection.] so that the triggering events for the running

of the time to appeal (entry in the civil docket, and being set

forth on a separate document or passage of 150 days) were

incorporated directly into Rule 4(a)(7), rather than indirectly

through a reference to FRCP 58(b). This eliminates the need for

appellate lawyers to examine Rule 58(b) and any chance that Rule

58(b)'s introductory clause (even as modified) might confuse them.

We do not believe that republication of Rule 4(a)(7) or FRCP 58

is necessary. In substance, rewritten Rule 4(a)(7)(A) and FRCP

58(b) operate identically to the published versions, except that

the 60-day cap has been replaced with a 150-day cap - a change that

was suggested by some of the commentators and that makes the cap

more forgiving.

Subdivision (b)(5). Federal Rule of Criminal Procedure 35(a)

permits a district court, acting within 7 days after the imposition

of sentence, to correct an erroneous sentence in a criminal case.

Some courts have held that the filing of a motion for correction of

a sentence suspends the time for filing a notice of appeal from the

judgment of conviction. See, e.g., United States v. Carmouche, 138

F.3d 1014, 1016 (5th Cir. 1998) (per curiam); United States v.

Morillo, 8 F.3d 864, 869 (1st Cir. 1993). Those courts establish

conflicting timetables for appealing a judgment of conviction after

the filing of a motion to correct a sentence. In the First Circuit,

the time to appeal is suspended only for the period provided by

Fed. R. Crim. P. 35(a) for the district court to correct a

sentence; the time to appeal begins to run again once 7 days have

passed after sentencing, even if the motion is still pending. By

contrast, in the Fifth Circuit, the time to appeal does not begin

to run again until the district court actually issues an order

disposing of the motion.

Rule 4(b)(5) has been amended to eliminate the inconsistency

concerning the effect of a motion to correct a sentence on the time

for filing a notice of appeal. The amended rule makes clear that

the time to appeal continues to run, even if a motion to correct a

sentence is filed. The amendment is consistent with Rule

4(b)(3)(A), which lists the motions that toll the time to appeal,

and notably omits any mention of a Fed. R. Crim. P. 35(a) motion.

The amendment also should promote certainty and minimize the

likelihood of confusion concerning the time to appeal a judgment of

conviction.

If a district court corrects a sentence pursuant to Fed. R. Crim.

P. 35(a), the time for filing a notice of appeal of the corrected

sentence under Rule 4(b)(1) would begin to run when the court

enters a new judgment reflecting the corrected sentence.

Changes Made After Publication and Comments. The reference to

Federal Rule of Criminal Procedure 35(c) was changed to Rule 35(a)

to reflect the pending amendment of Rule 35. The proposed amendment

to Criminal Rule 35, if approved, will take effect at the same time

that the proposed amendment to Appellate Rule 4 will take effect,

if approved.

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Civil Procedure, referred to in subd.

(a)(4), (7), are set out in this Appendix.

The Federal Rules of Criminal Procedure, referred to in subd.

(b)(3), (5), are set out in the Appendix to Title 18, Crimes and

Criminal Procedure.

-MISC2-

AMENDMENT BY PUBLIC LAW

1988 - Subd. (b). Pub. L. 100-690 inserted "(i)" and "or (ii) a

notice of appeal by the Government" in first sentence, and "(i)"

and "or (ii) a notice of appeal by any defendant" in fifth

sentence.

-End-

-CITE-

28 USC APPENDIX Rule 5 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-

Rule 5. Appeal by Permission

-STATUTE-

(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 7 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 10 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).

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

This rule is derived in the main from Third Circuit Rule 11(2),

which is similar to the rule governing appeals under 28 U.S.C. Sec.

1292(b) in a majority of the circuits. The second sentence of

subdivision (a) resolves a conflict over the question of whether

the district court can amend an order by supplying the statement

required by Sec. 1292(b) at any time after entry of the order, with

the result that the time fixed by the statute commences to run on

the date of entry of the order as amended. Compare Milbert v. Bison

Laboratories, 260 F.2d 431 (3d Cir., 1958) with Sperry Rand

Corporation v. Bell Telephone Laboratories, 272 F.2d (2d Cir.,

1959), Hadjipateras v. Pacifica, S.A., 290 F.2d 697 (5th Cir.,

1961), and Houston Fearless Corporation v. Teter, 313 F.2d 91 (10th

Cir., 1962). The view taken by the Second, Fifth and Tenth Circuits

seems theoretically and practically sound, and the rule adopts it.

Although a majority of the circuits now require the filing of a

notice of appeal following the grant of permission to appeal,

filing of the notice serves no function other than to provide a

time from which the time for transmitting the record and docketing

the appeal begins to run.

NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT

The proposed amendment adapts to the practice in appeals from

interlocutory orders under 28 U.S.C. Sec. 1292(b) the provisions of

proposed Rule 3(e) above, requiring payment of all fees in the

district court upon the filing of the notice of appeal. See Note to

proposed amended Rule 3(e), supra.

NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT

Subdivision (c). The amendment makes it clear that a court may

require a different number of copies either by rule or by order in

an individual case. The number of copies of any document that a

court of appeals needs varies depending upon the way in which the

court conducts business. The internal operation of the courts of

appeals necessarily varies from circuit to circuit because of

differences in the number of judges, the geographic area included

within the circuit, and other such factors. Uniformity could be

achieved only by setting the number of copies artificially high so

that parties in all circuits file enough copies to satisfy the

needs of the court requiring the greatest number. Rather than do

that, the Committee decided to make it clear that local rules may

require a greater or lesser number of copies and that, if the

circumstances of a particular case indicate the need for a

different number of copies in that case, the court may so order.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

In 1992 Congress added subsection (e) to 28 U.S.C. Sec. 1292.

Subsection (e) says that the Supreme Court has power to prescribe

rules that "provide for an appeal of an interlocutory decision to

the courts of appeals that is not otherwise provided for" in

section 1292. The amendment of Rule 5 was prompted by the

possibility of new rules authorizing additional interlocutory

appeals. Rather than add a separate rule governing each such

appeal, the Committee believes it is preferable to amend Rule 5 so

that is will govern all such appeals.

In addition the Federal Courts Improvement Act of 1996, Pub. L.

104-317, abolished appeals by permission under 28 U.S.C. Sec.

636(c)(5), making Rule 5.1 obsolete.

This new Rule 5 is intended to govern all discretionary appeals

from district-court orders, judgments, or decrees. At this time

that includes interlocutory appeals under 28 U.S.C. Sec. 1292(b),

(c)(1), and (d)(1) & (2). If additional interlocutory appeals are

authorized under Sec. 1292(e), the new Rule is intended to govern

them if the appeals are discretionary.

Subdivision (a). Paragraph (a)(1) says that when granting an

appeal is within a court of appeals' discretion, a party may file a

petition for permission to appeal. The time for filing provision

states only that the petition must be filed within the time

provided in 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.

Section 1292(b), (c), and (d) provide that the petition must be

filed within 10 days after entry of the order containing the

statement prescribed in the statute. Existing Rule 5(a) provides

that if a district court amends an order to contain the prescribed

statement, the petition must be filed within 10 days after entry of

the amended order. The new rule similarly says that if a party

cannot petition without the district court's permission or

statement that necessary circumstances are present, the district

court may amend its order to include such a statement and the time

to petition runs from the entry of the amended order.

The provision that the Rule 4(a) time for filing a notice of

appeal should apply if the statute or rule is silent about the

filing time was drawn from existing Rule 5.1.

Subdivision (b). The changes made in the provisions in paragraph

(b)(1) are intended only to broaden them sufficiently to make them

appropriate for all discretionary appeals.

In paragraph (b)(2) a uniform time - 7 days - is established for

filing an answer in opposition or cross-petition. Seven days is the

time for responding under existing Rule 5 and is an appropriate

length of time when dealing with an interlocutory appeal. Although

existing Rule 5.1 provides 14 days for responding, the Committee

does not believe that the longer response time is necessary.

Subdivision (c). Subdivision (c) is substantively unchanged.

Subdivision (d). Paragraph (d)(2) is amended to state that "the

date when the order granting permission to appeal is entered serves

as the date of the notice of appeal" for purposes of calculating

time under the rules. That language simply clarifies existing

practice.

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Subdivision (c). A petition for permission to appeal, a

cross-petition for permission to appeal, and an answer to a

petition or cross-petition for permission to appeal are all "other

papers" for purposes of Rule 32(c)(2), and all of the requirements

of Rule 32(a) apply to those papers, except as provided in Rule

32(c)(2). During the 1998 restyling of the Federal Rules of

Appellate Procedure, Rule 5(c) was inadvertently changed to suggest

that only the requirements of Rule 32(a)(1) apply to such papers.

Rule 5(c) has been amended to correct that error.

Rule 5(c) has been further amended to limit the length of papers

filed under Rule 5.

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment or to the Committee Note.

-End-

-CITE-

28 USC APPENDIX Rule 5.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-

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

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

-STATUTE-

-MISC1-

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The Federal Courts Improvement Act of 1996, Pub. L. No. 104-317,

abolished appeals by permission under 28 U.S.C. Sec. 636(c)(5),

making Rule 5.1 obsolete. Rule 5.1 is, therefore, abrogated.

-End-

-CITE-

28 USC APPENDIX Rule 6 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-

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

or Decree of a District Court or Bankruptcy Appellate Panel

-STATUTE-

(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) 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 there are 3 exceptions:

(A) Rules 4(a)(4), 4(b), 9, 10, 11, 12(b), 13-20, 22-23, and

24(b) do not apply;

(B) the reference in Rule 3(c) to "Form 1 in the Appendix of

Forms" must be read as a reference to Form 5; and

(C) when the appeal is from a bankruptcy appellate panel, the

term "district court," as used in any applicable rule, means

"appellate panel."

(2) Additional Rules. In addition to the rules made applicable

by Rule 6(b)(1), the following rules apply:

(A) Motion for rehearing.

(i) If a timely motion for rehearing under Bankruptcy Rule

8015 is filed, the time to appeal for all parties runs from

the entry of the order disposing of the motion. A notice of

appeal filed after the district court or bankruptcy appellate

panel announces or enters a judgment, order, or decree - but

before disposition of the motion for rehearing - becomes

effective when the order disposing of the motion for

rehearing is entered.

(ii) Appellate review of the order disposing of the motion

requires the party, in compliance with Rules 3(c) and

6(b)(1)(B), to amend a previously filed notice of appeal. A

party intending to challenge an altered or amended judgment,

order, or decree must file a notice of appeal or amended

notice of appeal within the time prescribed by Rule 4 -

excluding Rules 4(a)(4) and 4(b) - measured from the entry of

the order disposing of the motion.

(iii) No additional fee is required to file an amended

notice.

(B) The record on appeal.

(i) Within 10 days after filing the notice of appeal, the

appellant must file with the clerk possessing the record

assembled in accordance with Bankruptcy Rule 8006 - and serve

on the appellee - a statement of the issues to be presented

on appeal and a designation of the record to be certified and

sent to the circuit clerk.

(ii) An appellee who believes that other parts of the

record are necessary must, within 10 days after being served

with the appellant's designation, file with the clerk and

serve on the appellant a designation of additional parts to

be included.

(iii) The record on appeal consists of:

-- the redesignated record as provided above;

-- the proceedings in the district court or bankruptcy

appellate panel; and

-- a certified copy of the docket entries prepared by the

clerk under Rule 3(d).

(C) Forwarding the record.

(i) When the record is complete, the district clerk or

bankruptcy appellate panel clerk must number the documents

constituting the record and send them promptly to the circuit

clerk together with a list of the documents correspondingly

numbered and reasonably identified. Unless directed to do so

by a party or the circuit clerk, the clerk will not send to

the court of appeals documents of unusual bulk or weight,

physical exhibits other than documents, or other parts of the

record designated for omission by local rule of the court of

appeals. If the exhibits are unusually bulky or heavy, a

party must arrange with the clerks in advance for their

transportation and receipt.

(ii) All parties must do whatever else is necessary to

enable the clerk to assemble and forward the record. The

court of appeals may provide by rule or order that a

certified copy of the docket entries be sent in place of the

redesignated record, but any party may request at any time

during the pendency of the appeal that the redesignated

record be sent.

(D) Filing the record. Upon receiving the record - or a

certified copy of the docket entries sent in place of the

redesignated record - the circuit clerk must file it and

immediately notify all parties of the filing date.

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

This rule is substantially a restatement of present procedure.

See D.C. Cir. Rule 34; 6th Cir. Rule 11; 7th Cir. Rule 10(d); 10th

Cir. Rule 13.

Present circuit rules commonly provide that the petition for

allowance of an appeal shall be filed within the time allowed by

Section 25 of the Bankruptcy Act for taking appeals of right. For

the reasons explained in the Note accompanying Rule 4, that rule

makes the time for appeal in bankruptcy cases the same as that

which obtains in other civil cases and thus supersedes Section 25.

Thus the present rule simply continues the former practice of

making the time for filing the petition in appeals by allowance the

same as that provided for filing the notice of appeal in appeals of

right.

NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT

The proposed amendment adapts to the practice in appeals by

allowance in bankruptcy proceedings the provisions of proposed Rule

3(e) above, requiring payment of all fees in the district court at

the time of the filing of the notice of appeal. See Note to Rule

3(e), supra.

NOTES OF ADVISORY COMMITTEE ON RULES - 1989 AMENDMENT

A new Rule 6 is proposed. The Bankruptcy Reform Act of 1978, Pub.

L. No. 95-598, 92 Stat. 2549, the Supreme Court decision in

Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458

U.S. 50 (1982), and the Bankruptcy Amendments and Federal Judgeship

Act of 1984, Pub. L. No. 98-353, 98 Stat. 333, have made the

existing Rule 6 obsolete.

Subdivision (a). Subdivision (a) provides that when a district

court exercises original jurisdiction in a bankruptcy matter,

rather than referring it to a bankruptcy judge for a final

determination, the appeal should be taken in identical fashion as

appeals from district court decisions in other civil actions. A

district court exercises original jurisdiction and this subdivision

applies when the district court enters a final order or judgment

upon consideration of a bankruptcy judge's proposed findings of

fact and conclusions of law in a non-core proceeding pursuant to 28

U.S.C. Sec. 157(c)(1) or when a district court withdraws a

proceeding pursuant to 28 U.S.C. Sec. 157(d). This subdivision is

included to avoid uncertainty arising from the question of whether

a bankruptcy case is a civil case. The rules refer at various

points to the procedure "in a civil case", see, e.g. Rule 4(a)(1).

Subdivision (a) makes it clear that such rules apply to an appeal

from a district court bankruptcy decision.

Subdivision (b). Subdivision (b) governs appeals that follow

intermediate review of a bankruptcy judge's decision by a district

court or a bankruptcy appellate panel.

Subdivision (b)(1). Subdivision (b)(1) provides for the general

applicability of the Federal Rules of Appellate Procedure, with

specified exceptions, to appeals covered by subdivision (b) and

makes necessary word adjustments.

Subdivision (b)(2). Paragraph (i) provides that the time for

filing a notice of appeal shall begin to run anew from the entry of

an order denying a rehearing or from the entry of a subsequent

judgment. The Committee deliberately omitted from the rule any

provision governing the validity of a notice of appeal filed prior

to the entry of an order denying a rehearing; the Committee

intended to leave undisturbed the current state of the law on that

issue. Paragraph (ii) calls for a redesignation of the appellate

record assembled in the bankruptcy court pursuant to Rule 8006 of

the Rules of Bankruptcy Procedure. After an intermediate appeal, a

party may well narrow the focus of its efforts on the second appeal

and a redesignation of the record may eliminate unnecessary

material. The proceedings during the first appeal are included to

cover the possibility that independent error in the intermediate

appeal, for example failure to follow appropriate procedures, may

be assigned in the court of appeals. Paragraph (iii) provides for

the transmission of the record and tracks the appropriate

subsections of Rule 11. Paragraph (iv) provides for the filing of

the record and notices to the parties. Paragraph (ii) and Paragraph

(iv) both refer to "a certified copy of the docket entries". The

"docket entries" referred to are the docket entries in the district

court or the bankruptcy appellate panel, not the entire docket in

the bankruptcy court.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Note to Subparagraph (b)(2)(i). The amendment accompanies

concurrent changes to Rule 4(a)(4). Although Rule 6 never included

language such as that being changed in Rule 4(a)(4), language that

made a notice of appeal void if it was filed before, or during the

pendency of, certain posttrial motions, courts have found that a

notice of appeal is premature if it is filed before the court

disposes of a motion for rehearing. See, e.g., In re X-Cel, Inc.,

823 F.2d 192 (7th Cir. 1987); In re Shah, 859 F.2d 1463 (10th Cir.

1988). The Committee wants to achieve the same result here as in

Rule 4, the elimination of a procedural trap.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

Subdivision (b). Language is added to Rule 6(b)(2)(A)(ii) to

conform with the corresponding provision in Rule 4(a)(4). The new

language is clarifying rather than substantive. The existing rule

states that a party intending to challenge an alteration or

amendment of a judgment must file an amended notice of appeal. Of

course if a party has not previously filed a notice of appeal, the

party would simply file a notice of appeal not an amended one. The

new language states that the party must file "a notice of appeal or

amended notice of appeal."

-REFTEXT-

REFERENCES IN TEXT

The Bankruptcy Rules, referred to in subd. (b)(2)(A)(i), (B)(i),

are set out in the Appendix to Title 11, Bankruptcy.

-End-

-CITE-

28 USC APPENDIX Rule 7 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-

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

-STATUTE-

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.

-SOURCE-

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

Dec. 1, 1998.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

This rule is derived from FRCP 73(c) without change in substance.

NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT

The amendment would eliminate the provision of the present rule

that requires the appellant to file a $250 bond for costs on appeal

at the time of filing his notice of appeal. The $250 provision was

carried forward in the F.R.App.P. from former Rule 73(c) of the

F.R.Civ.P., and the $250 figure has remained unchanged since the

adoption of that rule in 1937. Today it bears no relationship to

actual costs. The amended rule would leave the question of the need

for a bond for costs and its amount in the discretion of the court.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language of the rule is amended to make the rule more easily

understood. In addition to changes made to improve the

understanding, the Advisory Committee has changed language to make

style and terminology consistent throughout the appellate rules.

These changes are intended to be stylistic only.

-End-

-CITE-

28 USC APPENDIX Rule 8 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-

Rule 8. Stay or Injunction Pending Appeal

-STATUTE-

(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.

-SOURCE-

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

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

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

Subdivision (a). While the power of a court of appeals to stay

proceedings in the district court during the pendency of an appeal

is not explicitly conferred by statute, it exists by virtue of the

all writs statute, 28 U.S.C. Sec. 1651. Eastern Greyhound Lines v.

Fusco, 310 F.2d 632 (6th Cir., 1962); United States v. Lynd, 301

F.2d 818 (5th Cir., 1962); Public Utilities Commission of Dist. of

Col. v. Capital Transit Co., 94 U.S.App.D.C. 140, 214 F.2d 242

(1954). And the Supreme Court has termed the power "inherent" (In

re McKenzie, 180 U.S. 536, 551, 21 S.Ct. 468, 45 L.Ed. 657 (1901))

and "part of its (the court of appeals) traditional equipment for

the administration of justice." (Scripps-Howard Radio v. F.C.C.,

316 U.S. 4, 9-10, 62 S.Ct. 875, 86 L.Ed. 1229 (1942)). The power of

a single judge of the court of appeals to grant a stay pending

appeal was recognized in In re McKenzie, supra. Alexander v. United

States, 173 F.2d 865 (9th Cir., 1949) held that a single judge

could not stay the judgment of a district court, but it noted the

absence of a rule of court authorizing the practice. FRCP 62(g)

adverts to the grant of a stay by a single judge of the appellate

court. The requirement that application be first made to the

district court is the case law rule. Cumberland Tel. & Tel. Co. v.

Louisiana Public Service Commission, 260 U.S. 212, 219, 43 S.Ct.

75, 67 L.Ed. 217 (1922); United States v. El-O-Pathic Pharmacy, 192

F.2d 62 (9th Cir., 1951); United States v. Hansell, 109 F.2d 613

(2d Cir., 1940). The requirement is explicitly stated in FRCrP

38(c) and in the rules of the First, Third, Fourth and Tenth

Circuits. See also Supreme Court Rules 18 and 27.

The statement of the requirement in the proposed rule would work

a minor change in present practice. FRCP 73(e) requires that if a

bond for costs on appeal or a supersedeas bond is offered after the

appeal is docketed, leave to file the bond must be obtained from

the court of appeals. There appears to be no reason why matters

relating to supersedeas and cost bonds should not be initially

presented to the district court whenever they arise prior to the

disposition of the appeal. The requirement of FRCP 73(e) appears to

be a concession to the view that once an appeal is perfected, the

district court loses all power over its judgment. See In re Federal

Facilities Trust, 227 F.2d 651 (7th Cir., 1955) and cases - cited

at 654-655. No reason appears why all questions related to

supersedeas or the bond for costs on appeal should not be presented

in the first instance to the district court in the ordinary case.

Subdivision (b). The provisions respecting a surety upon a bond

or other undertaking are based upon FRCP 65.1.

NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT

The amendments to Rule 8(b) are technical. No substantive change

is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1995 AMENDMENT

Subdivision (c). The amendment conforms subdivision (c) to

previous amendments to Fed. R. Crim. P. 38. This amendment strikes

the reference to subdivision (a) of Fed. R. Crim. P. 38 so that

Fed. R. App. P. 8(c) refers instead to all of Criminal Rule 38.

When Rule 8(c) was adopted Fed. R. Crim. P. 38(a) included the

procedures for obtaining a stay of execution when the sentence in

question was death, imprisonment, a fine, or probation. Criminal

Rule 38 was later amended and now addresses those topics in

separate subdivisions. Subdivision 38(a) now addresses only stays

of death sentences. The proper cross reference is to all of

Criminal Rule 38.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

-REFTEXT-

REFERENCES IN TEXT

Rule 38 of the Federal Rules of Criminal Procedure, referred to

in subd. (c), are set out in the Appendix to Title 18, Crimes and

Criminal Procedure.

-End-

-CITE-

28 USC APPENDIX Rule 9 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-

Rule 9. Release in a Criminal Case

-STATUTE-

(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. Secs. 3142, 3143, and 3145(c).

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

Subdivision (a). The appealability of release orders entered

prior to a judgment of conviction is determined by the provisions

of 18 U.S.C. Sec. 3147, as qualified by 18 U.S.C. Sec. 3148, and by

the rule announced in Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96

L.Ed. 3 (1951), holding certain orders respecting release

appealable as final orders under 28 U.S.C. Sec. 1291. The language

of the rule, "(an)n appeal authorized by law from an order refusing

or imposing conditions of release," is intentionally broader than

that used in 18 U.S.C. Sec. 3147 in describing orders made

appealable by that section. The summary procedure ordained by the

rule is intended to apply to all appeals from orders respecting

release, and it would appear that at least some orders not made

appealable by 18 U.S.C. Sec. 3147 are nevertheless appealable under

the Stack v. Boyle rationale. See, for example, United States v.

Foster, 278 F.2d 567 (2d Cir., 1960), holding appealable an order

refusing to extend bail limits. Note also the provisions of 18

U.S.C. Sec. 3148, which after withdrawing from persons charged with

an offense punishable by death and from those who have been

convicted of an offense the right of appeal granted by 18 U.S.C.

Sec. 3147, expressly preserves "other rights to judicial review of

conditions of release or orders of detention."

The purpose of the subdivision is to insure the expeditious

determination of appeals respecting release orders, an expedition

commanded by 18 U.S.C. Sec. 3147 and by the Court in Stack v.

Boyle, supra. It permits such appeals to be heard on an informal

record without the necessity of briefs and on reasonable notice.

Equally important to the just and speedy disposition of these

appeals is the requirement that the district court state the

reasons for its decision. See Jones v. United States, 358 F.2d 543

(D.C. Cir., 1966); Rhodes v. United States, 275 F.2d 78 (4th Cir.,

1960); United States v. Williams, 253 F.2d 144 (7th Cir., 1958).

Subdivision (b). This subdivision regulates procedure for review

of an order respecting release at a time when the jurisdiction of

the court of appeals has already attached by virtue of an appeal

from the judgment of conviction. Notwithstanding the fact that

jurisdiction has passed to the court of appeals, both 18 U.S.C.

Sec. 3148 and FRCrP 38(c) contemplate that the initial

determination of whether a convicted defendant is to be released

pending the appeal is to be made by the district court. But at this

point there is obviously no need for a separate appeal from the

order of the district court respecting release. The court of

appeals or a judge thereof has power to effect release on motion as

an incident to the pending appeal. See FRCrP 38(c) and 46(a)(2).

But the motion is functionally identical with the appeal regulated

by subdivision (a) and requires the same speedy determination if

relief is to be effective. Hence the similarity of the procedure

outlined in the two subdivisions.

NOTES OF ADVISORY COMMITTEE ON RULES - 1972 AMENDMENT

Subdivision (c) is intended to bring the rule into conformity

with 18 U.S.C. Sec. 3148 and to allocate to the defendant the

burden of establishing that he will not flee and that he poses no

danger to any other person or to the community. The burden is

placed upon the defendant in the view that the fact of his

conviction justifies retention in custody in situations where doubt

exists as to whether he can be safely released pending disposition

of his appeal. Release pending appeal may also be denied if "it

appears that an appeal is frivolous or taken for delay." 18 U.S.C.

Sec. 3148. The burden of establishing the existence of these

criteria remains with the government.

NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT

Rule 9 has been entirely rewritten. The basic structure of the

rule has been retained. Subdivision (a) governs appeals from bail

decisions made before the judgment of conviction is entered at the

time of sentencing. Subdivision (b) governs review of bail

decisions made after sentencing and pending appeal.

Subdivision (a). The subdivision applies to appeals from "an

order regarding release or detention" of a criminal defendant

before judgment of conviction, i.e., before sentencing. See

Fed.R.Crim.P. 32. The old rule applied only to a defendant's appeal

from an order "refusing or imposing conditions of release." The new

broader language is needed because the government is now permitted

to appeal bail decisions in certain circumstances. 18 U.S.C. Secs.

3145 and 3731. For the same reason, the rule now requires a

district court to state reasons for its decision in all instances,

not only when it refuses release or imposes conditions on release.

The rule requires a party appealing from a district court's

decision to supply the court of appeals with a copy of the district

court's order and its statement of reasons. In addition, an

appellant who questions the factual basis for the district court's

decision must file a transcript of the release proceedings, if

possible. The rule also permits a court to require additional

papers. A court must act promptly to decide these appeals; lack of

pertinent information can cause delays. The old rule left the

determination of what should be filed entirely within the party's

discretion; it stated that the court of appeals would hear the

appeal "upon such papers, affidavits, and portions of the record as

the parties shall present."

Subdivision (b). This subdivision applies to review of a district

court's decision regarding release made after judgment of

conviction. As in subdivision (a), the language has been changed to

accommodate the government's ability to seek review.

The word "review" is used in this subdivision, rather than

"appeal" because review may be obtained, in some instances, upon

motion. Review may be obtained by motion if the party has already

filed a notice of appeal from the judgment of conviction. If the

party desiring review of the release decision has not filed such a

notice of appeal, review may be obtained only by filing a notice of

appeal from the order regarding release.

The requirements of subdivision (a) apply to both the order and

the review. That is, the district court must state its reasons for

the order. The party seeking review must supply the court of

appeals with the same information required by subdivision (a). In

addition, the party seeking review must also supply the court with

information about the conviction and the sentence.

Subdivision (c). This subdivision has been amended to include

references to the correct statutory provisions.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

AMENDMENT BY PUBLIC LAW

1984 - Subd. (c). Pub. L. 98-473 substituted "3143" for "3148"

and inserted "and that the appeal is not for purpose of delay and

raises a substantial question of law or fact likely to result in

reversal or in an order for a new trial" after "community".

-End-

-CITE-

28 USC APPENDIX Rule 10 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-

Rule 10. The Record on Appeal

-STATUTE-

(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 10 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 10 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 10 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 10 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 10 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 10 days after being served. The statement and any

objections or proposed amendments must then be submitted to the

district court for settlement and approval. As settled and

approved, the statement must be included by the district clerk in

the record on appeal.

(d) Agreed Statement as the Record on Appeal. In place of the

record on appeal as defined in Rule 10(a), the parties may prepare,

sign, and submit to the district court a statement of the case

showing how the issues presented by the appeal arose and were

decided in the district court. The statement must set forth only

those facts averred and proved or sought to be proved that are

essential to the courts resolution of the issues. If the statement

is truthful, it - together with any additions that the district

court may consider necessary to a full presentation of the issues

on appeal - must be approved by the district court and must then be

certified to the court of appeals as the record on appeal. The

district clerk must then send it to the circuit clerk within the

time provided by Rule 11. A copy of the agreed statement may be

filed in place of the appendix required by Rule 30.

(e) Correction or Modification of the Record.

(1) If any difference arises about whether the record truly

discloses what occurred in the district court, the difference

must be submitted to and settled by that court and the record

conformed accordingly.

(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.

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

This rule is derived from FRCP 75(a), (b), (c) and (d) and FRCP

76, without change in substance.

NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT

The proposed amendments to Rule 10(b) would require the appellant

to place with the reporter a written order for the transcript of

proceedings and file a copy with the clerk, and to indicate on the

order if the transcript is to be provided under the Criminal

Justice Act. If the appellant does not plan to order a transcript

of any of the proceedings, he must file a certificate to that

effect. These requirements make the appellant's steps in readying

the appeal a matter of record and give the district court notice of

requests for transcripts at the expense of the United States under

the Criminal Justice Act. They are also the third step in giving

the court of appeals some control over the production and

transmission of the record. See Note to Rules 3(d)(e) above and

Rule 11 below.

In the event the appellant orders no transcript, or orders a

transcript of less than all the proceedings, the procedure under

the proposed amended rule remains substantially as before. The

appellant must serve on the appellee a copy of his order or in the

event no order is placed, of the certificate to that effect, and a

statement of the issues he intends to present on appeal, and the

appellee may thereupon designate additional parts of the transcript

to be included, and upon appellant's refusal to order the

additional parts, may either order them himself or seek an order

requiring the appellant to order them. The only change proposed in

this procedure is to place a 10 day time limit on motions to

require the appellant to order the additional portions.

Rule 10(b) is made subject to local rules of the courts of

appeals in recognition of the practice in some circuits in some

classes of cases, e. g., appeals by indigents in criminal cases

after a short trial, of ordering immediate preparation of a

complete transcript, thus making compliance with the rule

unnecessary.

NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT

The amendments to Rules 10(b) and (c) are technical. No

substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

The amendment is technical and no substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1995 AMENDMENT

Subdivision (b)(1). The amendment conforms this rule to

amendments made in Rule 4(a)(4) in 1993. The amendments to Rule

4(a)(4) provide that certain postjudgment motions have the effect

of suspending a filed notice of appeal until the disposition of the

last of such motions. The purpose of this amendment is to suspend

the 10-day period for ordering a transcript if a timely

postjudgment motion is made and a notice of appeal is suspended

under Rule 4(a)(4). The 10-day period set forth in the first

sentence of this rule begins to run when the order disposing of the

last of such postjudgment motions outstanding is entered.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

-REFTEXT-

REFERENCES IN TEXT

The Criminal Justice Act, referred to in subd. (b)(1)(A)(ii),

probably means the Criminal Justice Act of 1964, Pub. L. 88-455,

Aug. 20, 1964, 78 Stat. 552, as amended, which enacted section

3006A of Title 18, Crimes and Criminal Procedure, and provisions

set out as notes under section 3006A of Title 18. For complete

classification of this Act to the Code, see Short Title note set

out under section 3006A of Title 18 and Tables.

-End-

-CITE-

28 USC APPENDIX Rule 11 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-

Rule 11. Forwarding the Record

-STATUTE-

(a) Appellant's Duty. An appellant filing a notice of appeal must

comply with Rule 10(b) and must do whatever else is necessary to

enable the clerk to assemble and forward the record. If there are

multiple appeals from a judgment or order, the clerk must forward a

single record.

(b) Duties of Reporter and District Clerk.

(1) Reporter's Duty to Prepare and File a Transcript. The

reporter must prepare and file a transcript as follows:

(A) Upon receiving an order for a transcript, the reporter

must enter at the foot of the order the date of its receipt and

the expected completion date and send a copy, so endorsed, to

the circuit clerk.

(B) If the transcript cannot be completed within 30 days of

the reporters receipt of the order, the reporter may request

the circuit clerk to grant additional time to complete it. The

clerk must note on the docket the action taken and notify the

parties.

(C) When a transcript is complete, the reporter must file it

with the district clerk and notify the circuit clerk of the

filing.

(D) If the reporter fails to file the transcript on time, the

circuit clerk must notify the district judge and do whatever

else the court of appeals directs.

(2) District Clerk's Duty to Forward. When the record is

complete, the district clerk must number the documents

constituting the record and send them promptly to the circuit

clerk together with a list of the documents correspondingly

numbered and reasonably identified. Unless directed to do so by a

party or the circuit clerk, the district clerk will not send to

the court of appeals documents of unusual bulk or weight,

physical exhibits other than documents, or other parts of the

record designated for omission by local rule of the court of

appeals. If the exhibits are unusually bulky or heavy, a party

must arrange with the clerks in advance for their transportation

and receipt.

(c) Retaining the Record Temporarily in the District Court for

Use in Preparing the Appeal. The parties may stipulate, or the

district court on motion may order, that the district clerk retain

the 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.

-SOURCE-

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

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

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

Subdivisions (a) and (b). These subdivisions are derived from

FRCP 73(g) and FRCP 75(e). FRCP 75(e) presently directs the clerk

of the district court to transmit the record within the time

allowed or fixed for its filing, which, under the provisions of

FRCP 73(g) is within 40 days from the date of filing the notice of

appeal, unless an extension is obtained from the district court.

The precise time at which the record must be transmitted thus

depends upon the time required for delivery of the record from the

district court to the court of appeals, since, to permit its timely

filing, it must reach the court of appeals before expiration of the

40-day period of an extension thereof. Subdivision (a) of this rule

provides that the record is to be transmitted within the 40-day

period, or any extension thereof; subdivision (b) provides that

transmission is effected when the clerk of the district court mails

or otherwise forwards the record to the clerk of the court of

appeals; Rule 12(b) directs the clerk of the court of appeals to

file the record upon its receipt following timely docketing and

transmittal. It can thus be determined with certainty precisely

when the clerk of the district court must forward the record to the

clerk of the court of appeals in order to effect timely filing: the

final day of the 40-day period or of any extension thereof.

Subdivision (c). This subdivision is derived from FRCP 75(e)

without change of substance.

Subdivision (d). This subdivision is derived from FRCP 73(g) and

FRCrP 39(c). Under present rules the district court is empowered to

extend the time for filing the record and docketing the appeal.

Since under the proposed rule timely transmission now insures

timely filing (see note to subdivisions (a) and (b) above) the

power of the district court is expressed in terms of its power to

extend the time for transmitting the record. Restriction of that

power to a period of 90 days after the filing of the notice of

appeal represents a change in the rule with respect to appeals in

criminal cases. FRCrP 39(c) now permits the district court to

extend the time for filing and docketing without restriction. No

good reason appears for a difference between the civil and criminal

rule in this regard, and subdivision (d) limits the power of the

district court to extend the time for transmitting the record in

all cases to 90 days from the date of filing the notice of appeal,

just as its power is now limited with respect to docketing and

filing in civil cases. Subdivision (d) makes explicit the power of

the court of appeals to permit the record to be filed at any time.

See Pyramid Motor Freight Corporation v. Ispass, 330, U.S. 695, 67

S.Ct. 954, 91 L.Ed. 1184 (1947).

Subdivisions (e), (f) and (g). These subdivisions are derived

from FRCP 75(f), (a) and (g), respectively, without change of

substance.

NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT

Under present Rule 11(a) it is provided that the record shall be

transmitted to the court of appeals within 40 days after the filing

of the notice of appeal. Under present Rule 11(d) the district

court, on request made during the initial time or any extension

thereof, and cause shown, may extend the time for the transmission

of the record to a point not more than 90 days after the filing of

the first notice of appeal. If the district court is without

authority to grant a request to extend the time, or denies a

request for extension, the appellant may make a motion for

extension of time in the court of appeals. Thus the duty to see

that the record is transmitted is placed on the appellant. Aside

from ordering the transcript within the time prescribed the

appellant has no control over the time at which the record is

transmitted, since all steps beyond this point are in the hands of

the reporter and the clerk. The proposed amendments recognize this

fact and place the duty directly on the reporter and the clerk.

After receiving the written order for the transcript (See Note to

Rule 10(b) above), the reporter must acknowledge its receipt,

indicate when he expects to have it completed, and mail the order

so endorsed to the clerk of the court of appeals. Requests for

extensions of time must be made by the reporter to the clerk of the

court of appeals and action on such requests is entered on the

docket. Thus from the point at which the transcript is ordered the

clerk of the court of appeals is made aware of any delays. If the

transcript is not filed on time, the clerk of the court of appeals

will notify the district judge.

Present Rule 11(b) provides that the record shall be transmitted

when it is "complete for the purposes of the appeal." The proposed

amended rule continues this requirement. The record is complete for

the purposes of the appeal when it contains the original papers on

file in the clerk's office, all necessary exhibits, and the

transcript, if one is to be included. Cf. present Rule 11(c). The

original papers will be in the custody of the clerk of the district

court at the time the notice of appeal is filed. See Rule 5(e) of

the F.R.C.P. The custody of exhibits is often the subject of local

rules. Some of them require that documentary exhibits must be

deposited with the clerk. See Local Rule 13 of the Eastern District

of Virginia. Others leave exhibits with counsel, subject to order

of the court. See Local Rule 33 of the Northern District of

Illinois. If under local rules the custody of exhibits is left with

counsel, the district court should make adequate provision for

their preservation during the time during which an appeal may be

taken, the prompt deposit with the clerk of such as under Rule

11(b) are to be transmitted to the court of appeals, and the

availability of others in the event that the court of appeals

should require their transmission. Cf. Local Rule 11 of the Second

Circuit.

Usually the record will be complete with the filing of the

transcript. While the proposed amendment requires transmission

"forthwith" when the record is complete, it was not designed to

preclude a local requirement by the court of appeals that the

original papers and exhibits be transmitted when complete without

awaiting the filing of the transcript.

The proposed amendments continue the provision in the present

rule that documents of unusual bulk or weight and physical exhibits

other than documents shall not be transmitted without direction by

the parties or by the court of appeals, and the requirement that

the parties make special arrangements for transmission and receipt

of exhibits of unusual bulk or weight. In addition, they give

recognition to local rules that make transmission of other record

items subject to order of the court of appeals. See Local Rule 4 of

the Seventh Circuit.

NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT

The amendments to Rule 11(b) are technical. No substantive change

is intended.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

-End-

-CITE-

28 USC APPENDIX Rule 12 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

-HEAD-

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

Filing the Record

-STATUTE-

(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 10 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.

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

Subdivision (a). All that is involved in the docketing of an

appeal is the payment of the docket fee. In practice, after the

clerk of the court of appeals receives the record from the clerk of

the district court he notifies the appellant of its receipt and

requests payment of the fee. Upon receipt of the fee, the clerk

enters the appeal upon the docket and files the record. The

appellant is allowed to pay the fee at any time within the time

allowed or fixed for transmission of the record and thereby to

discharge his responsibility for docketing. The final sentence is

added in the interest of facilitating future reference and citation

and location of cases in indexes. Compare 3d Cir. Rule 10(2); 4th

Cir. Rule 9(8); 6th Cir. Rule 14(1).

Subdivision (c). The rules of the circuits generally permit the

appellee to move for dismissal in the event the appellant fails to

effect timely filing of the record. See 1st Cir. Rule 21(3); 3d

Cir. Rule 21(4); 5th Cir. Rule 16(1); 8th Cir. Rule 7(d).

NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT

Subdivision (a). Under present Rule 12(a) the appellant must pay

the docket fee within the time fixed for the transmission of the

record, and upon timely payment of the fee, the appeal is docketed.

The proposed amendment takes the docketing out of the hands of the

appellant. The fee is paid at the time the notice of appeal is

filed and the appeal is entered on the docket upon receipt of a

copy of the notice of appeal and of the docket entries, which are

sent to the court of appeals under the provisions of Rule 3(d).

This is designed to give the court of appeals control of its docket

at the earliest possible time so that within the limits of its

facilities and personnel it can screen cases for appropriately

different treatment, expedite the proceedings through prehearing

conferences or otherwise, and in general plan more effectively for

the prompt disposition of cases.

Subdivision (b). The proposed amendment conforms the provision to

the changes in Rule 11.

NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT

The amendment to Rule 12(a) is technical. No substantive change

is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Note to new subdivision (b). This amendment is a companion to the

amendment of Rule 3(c). The Rule 3(c) amendment allows an attorney

who represents more than one party on appeal to "specify" the

appellants by general description rather than by naming them

individually. The requirement added here is that whenever an

attorney files a notice of appeal, the attorney must soon

thereafter file a statement indicating all parties represented on

the appeal by that attorney. Although the notice of appeal is the

jurisdictional document and it must clearly indicate who is

bringing the appeal, the representation statement will be helpful

especially to the court of appeals in identifying the individual

appellants.

The rule allows a court of appeals to require the filing of the

representation statement at some time other than specified in the

rule so that if a court of appeals requires a docketing statement

or appearance form the representation statement may be combined

with it.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language of the rule is amended to make the rule more easily

understood. In addition to changes made to improve the

understanding, the Advisory Committee has changed language to make

style and terminology consistent throughout the appellate rules.

These changes are intended to be stylistic only.

-End-

-CITE-

28 USC APPENDIX TITLE III. REVIEW OF A DECISION

OF THE UNITED STATES TAX COURT 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE III. REVIEW OF A DECISION OF THE UNITED STATES TAX COURT

-HEAD-

TITLE III. REVIEW OF A DECISION OF THE UNITED STATES TAX COURT

-End-

-CITE-

28 USC APPENDIX Rule 13 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE III. REVIEW OF A DECISION OF THE UNITED STATES TAX COURT

-HEAD-

Rule 13. Review of a Decision of the Tax Court

-STATUTE-

(a) How Obtained; Time for Filing Notice of Appeal.

(1) Review of a decision of the United States Tax Court is

commenced by filing a notice of appeal with the Tax Court clerk

within 90 days after the entry of the Tax Court's decision. At

the time of filing, the appellant must furnish the clerk with

enough copies of the notice to enable the clerk to comply with

Rule 3(d). If one party files a timely notice of appeal, any

other party may file a notice of appeal within 120 days after the

Tax Court's decision is entered.

(2) If, under Tax Court rules, a party makes a timely motion to

vacate or revise the Tax Court's decision, the time to file a

notice of appeal runs from the entry of the order disposing of

the motion or from the entry of a new decision, whichever is

later.

(b) Notice of Appeal; How Filed. The notice of appeal may be

filed either at the Tax Court clerk's office in the District of

Columbia or by mail addressed to the clerk. If sent by mail the

notice is considered filed on the postmark date, subject to Sec.

7502 of the Internal Revenue Code, as amended, and the applicable

regulations.

(c) Contents of the Notice of Appeal; Service; Effect of Filing

and Service. Rule 3 prescribes the contents of a notice of appeal,

the manner of service, and the effect of its filing and service.

Form 2 in the Appendix of Forms is a suggested form of a notice of

appeal.

(d) The Record on Appeal; Forwarding; Filing.

(1) An appeal from the Tax Court is governed by the parts of

Rules 10, 11, and 12 regarding the record on appeal from a

district court, the time and manner of forwarding and filing, and

the docketing in the court of appeals. References in those rules

and in Rule 3 to the district court and district clerk are to be

read as referring to the Tax Court and its clerk.

(2) If an appeal from a Tax Court decision is taken to more

than one court of appeals, the original record must be sent to

the court named in the first notice of appeal filed. In an appeal

to any other court of appeals, the appellant must apply to that

other court to make provision for the record.

-SOURCE-

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

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

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

Subdivision (a). This subdivision effects two changes in practice

respecting review of Tax Court decisions: (1) Section 7483 of the

Internal Revenue Code, 68A Stat. 891, 26 U.S.C. Sec. 7483, provides

that review of a Tax Court decision may be obtained by filing a

petition for review. The subdivision provides for review by the

filing of the simple and familiar notice of appeal used to obtain

review of district court judgments; (2) Section 7483, supra,

requires that a petition for review be filed within 3 months after

a decision is rendered, and provides that if a petition is so filed

by one party, any other party may file a petition for review within

4 months after the decision is rendered. In the interest of fixing

the time for review with precision, the proposed rule substitutes

"90 days" and "120 days" for the statutory "3 months" and "4

months", respectively. The power of the Court to regulate these

details of practice is clear. Title 28 U.S.C. Sec. 2072, as amended

by the Act of November 6, 1966, 80 Stat. 1323 (1 U.S. Code Cong. &

Ad. News, p. 1546 (1966)), authorizes the Court to regulate ". . .

practice and procedure in proceedings for the review by the courts

of appeals of decisions of the Tax Court of the United States. . .

."

The second paragraph states the settled teaching of the case law.

See Robert Louis Stevenson Apartments, Inc. v. C.I.R., 337 F.2d

681, 10 A.L.R.3d 112 (8th Cir., 1964); Denholm & McKay Co. v.

C.I.R., 132 F.2d 243 (1st Cir., 1942); Helvering v. Continental Oil

Co., 63 App.D.C. 5, 68 F.2d 750 (1934); Burnet v. Lexington Ice &

Coal Co., 62 F.2d 906 (4th Cir., 1933); Griffiths v. C.I.R., 50

F.2d 782 (7th Cir., 1931).

Subdivision (b). The subdivision incorporates the statutory

provision (Title 26, U.S.C. Sec. 7502) that timely mailing is to be

treated as timely filing. The statute contains special provisions

respecting other than ordinary mailing. If the notice of appeal is

sent by registered mail, registration is deemed prima facie

evidence that the notice was delivered to the clerk of the Tax

Court, and the date of registration is deemed the postmark date. If

the notice of appeal is sent by certified mail, the effect of

certification with respect to prima facie evidence of delivery and

the postmark date depends upon regulations of the Secretary of the

Treasury. The effect of a postmark made other than by the United

States Post Office likewise depends upon regulations of the

Secretary. Current regulations are found in 26 CFR Sec. 301.7502-1.

NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT

The proposed amendment reflects the change in the title of the

Tax Court to "United States Tax Court." See 26 U.S.C. Sec. 7441.

NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT

Subdivision (a). The amendment requires a party filing a notice

of appeal to provide the court with sufficient copies of the notice

for service on all other parties.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

-REFTEXT-

REFERENCES IN TEXT

Section 7502 of the Internal Revenue Code, referred to in subd.

(b), is classified to section 112 of Title 26, Internal Revenue

Code.

-End-

-CITE-

28 USC APPENDIX Rule 14 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE III. REVIEW OF A DECISION OF THE UNITED STATES TAX COURT

-HEAD-

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

Decision

-STATUTE-

All provisions of these rules, except Rules 4-9, 15-20, and

22-23, apply to the review of a Tax Court decision.

-SOURCE-

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

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

The proposed rule continues the present uniform practice of the

circuits of regulating review of decisions of the Tax Court by the

general rules applicable to appeals from judgments of the district

courts.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language of the rule is amended to make the rule more easily

understood. In addition to changes made to improve the

understanding, the Advisory Committee has changed language to make

style and terminology consistent throughout the appellate rules.

These changes are intended to be stylistic only.

-End-

-CITE-

28 USC APPENDIX TITLE IV. REVIEW OR ENFORCEMENT

OF AN ORDER OF AN ADMINISTRATIVE AGENCY,

BOARD, COMMISSION, OR OFFICER 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE

AGENCY, BOARD, COMMISSION, OR OFFICER

-HEAD-

TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE

AGENCY, BOARD, COMMISSION, OR OFFICER

-End-

-CITE-

28 USC APPENDIX Rule 15 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE

AGENCY, BOARD, COMMISSION, OR OFFICER

-HEAD-

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

Intervention

-STATUTE-

(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 20 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.

-SOURCE-

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

Dec. 1, 1998.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

General Note. The power of the Supreme Court to prescribe rules

of practice and procedure for the judicial review or enforcement of

orders of administrative agencies, boards, commissions, and

officers is conferred by 28 U.S.C. Sec. 2072, as amended by the Act

of November 6, 1966, Sec. 1, 80 Stat. 1323 (1 U.S. Code Cong. & Ad.

News, p. 1546 (1966)). Section 11 of the Hobbs Administrative

Orders Review Act of 1950, 64 Stat. 1132, reenacted as 28 U.S.C.

Sec. 2352 (28 U.S.C.A. Sec. 2352 (Suppl. 1966)), repealed by the

Act of November 6, 1966, Sec. 4, supra, directed the courts of

appeals to adopt and promulgate, subject to approval by the

Judicial Conference rules governing practice and procedure in

proceedings to review the orders of boards, commissions and

officers whose orders were made reviewable in the courts of appeals

by the Act. Thereafter, the Judicial Conference approved a uniform

rule, and that rule, with minor variations, is now in effect in all

circuits. Third Circuit Rule 18 is a typical circuit rule, and for

convenience it is referred to as the uniform rule in the notes

which accompany rules under this Title.

Subdivision (a). The uniform rule (see General Note above)

requires that the petition for review contain "a concise statement,

in barest outline, of the nature of the proceedings as to which

relief is sought, the facts upon which venue is based, the grounds

upon which relief is sought, and the relief prayed." That language

is derived from Section 4 of the Hobbs Administrative Orders Review

Act of 1950, 64 Stat. 1130, reenacted as 28 U.S.C. Sec. 2344 (28

U.S.C.A. Sec. 2344 (Suppl. 1966)). A few other statutes also

prescribe the content of the petition, but the great majority are

silent on the point. The proposed rule supersedes 28 U.S.C. Sec.

2344 and other statutory provisions prescribing the form of the

petition for review and permits review to be initiated by the

filing of a simple petition similar in form to the notice of appeal

used in appeals from judgments of district courts. The more

elaborate form of petition for review now required is rarely useful

either to the litigants or to the courts. There is no effective,

reasonable way of obliging petitioners to come to the real issues

before those issues are formulated in the briefs. Other provisions

of this subdivision are derived from sections 1 and 2 of the

uniform rule.

Subdivision (b). This subdivision is derived from sections 3, 4

and 5 of the uniform rule.

Subdivision (c). This subdivision is derived from section 1 of

the uniform rule.

Subdivision (d). This subdivision is based upon section 6 of the

uniform rule. Statutes occasionally permit intervention by the

filing of a notice of intention to intervene. The uniform rule does

not fix a time limit for intervention, and the only time limits

fixed by statute are the 30-day periods found in the Communications

Act Amendments, 1952, Sec. 402(e), 66 Stat. 719, 47 U.S.C. Sec.

402(e), and the Sugar Act of 1948, Sec. 205(d), 61 Stat. 927, 7

U.S.C. Sec. 1115(d).

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Subdivision (a). The amendment is a companion to the amendment of

Rule 3(c). Both Rule 3(c) and Rule 15(a) state that a notice of

appeal or petition for review must name the parties seeking

appellate review. Rule 3(c), however, provides an attorney who

represents more than one party on appeal the flexibility to

describe the parties in general terms rather than naming them

individually. Rule 15(a) does not allow that flexibility; each

petitioner must be named. A petition for review of an agency

decision is the first filing in any court and, therefore, is

analogous to a complaint in which all parties must be named.

Subdivision (e). The amendment adds subdivision (e). Subdivision

(e) parallels Rule 3(e) that requires the payment of fees when

filing a notice of appeal. The omission of such a requirement from

Rule 15 is an apparent oversight. Five circuits have local rules

requiring the payment of such fees, see, e.g., Fifth Cir. Loc. R.

15.1, and Fed. Cir. Loc. R. 15(a)(2).

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

-End-

-CITE-

28 USC APPENDIX Rule 15.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE

AGENCY, BOARD, COMMISSION, OR OFFICER

-HEAD-

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

Board Proceeding

-STATUTE-

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.

-SOURCE-

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

eff. Dec. 1, 1998.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1986

This rule simply confirms the existing practice in most circuits.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language of the rule is amended to make the rule more easily

understood. In addition to changes made to improve the

understanding, the Advisory Committee has changed language to make

style and terminology consistent throughout the appellate rules.

These changes are intended to be stylistic only.

-End-

-CITE-

28 USC APPENDIX Rule 16 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE

AGENCY, BOARD, COMMISSION, OR OFFICER

-HEAD-

Rule 16. The Record on Review or Enforcement

-STATUTE-

(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.

-SOURCE-

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

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

Subdivision (a) is based upon 28 U.S.C. Sec. 2112(b). There is no

distinction between the record compiled in the agency proceeding

and the record on review; they are one and the same. The record in

agency cases is thus the same as that in appeals from the district

court - the original papers, transcripts and exhibits in the

proceeding below. Subdivision (b) is based upon section 8 of the

uniform rule (see General Note following Rule 15).

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

-End-

-CITE-

28 USC APPENDIX Rule 17 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE

AGENCY, BOARD, COMMISSION, OR OFFICER

-HEAD-

Rule 17. Filing the Record

-STATUTE-

(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.

-SOURCE-

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

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

Subdivision (a). This subdivision is based upon section 7 of the

uniform rule (see General Note following Rule 15). That rule does

not prescribe a time for filing the record in enforcement cases.

Forty days are allowed in order to avoid useless preparation of the

record or certified list in cases where the application for

enforcement is not contested.

Subdivision (b). This subdivision is based upon 28 U.S.C. Sec.

2112 and section 7 of the uniform rule. It permits the agency to

file either the record itself or a certified list of its contents.

It also permits the parties to stipulate against transmission of

designated parts of the record without the fear that an inadvertent

stipulation may "diminish" the record. Finally, the parties may, in

cases where consultation of the record is unnecessary, stipulate

that neither the record nor a certified list of its contents be

filed.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only; a

substantive change is made, however, in subdivision (b).

Subdivision (b). The current rule provides that when a court of

appeals is asked to review or enforce an agency order, the agency

must file either "the entire record or such parts thereof as the

parties may designate by stipulation filed with the agency" or a

certified list describing the documents, transcripts, exhibits, and

other material constituting the record. If the agency is not filing

a certified list, the current rule requires the agency to file the

entire record unless the parties file a "stipulation" designating

only parts of the record. Such a "stipulation" presumably requires

agreement of the parties as to the parts to be filed. The amended

language in subparagraph (b)(1)(A) permits the agency to file the

entire record or "parts designated by the parties." The new

language permits the filing of less than the entire record even

when the parties do not agree as to which parts should be filed.

Each party can designate the parts that it wants filed; the agency

can then forward the parts designated by each party. In contrast,

paragraph (b)(2) continues to require stipulation, that is

agreement of the parties, that the agency need not file either the

record or a certified list.

-End-

-CITE-

28 USC APPENDIX Rule 18 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE

AGENCY, BOARD, COMMISSION, OR OFFICER

-HEAD-

Rule 18. Stay Pending Review

-STATUTE-

(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.

-SOURCE-

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

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

While this rule has no counterpart in present rules regulating

review of agency proceedings, it merely assimilates the procedure

for obtaining stays in agency proceedings with that for obtaining

stays in appeals from the district courts. The same considerations

which justify the requirement of an initial application to the

district court for a stay pending appeal support the requirement of

an initial application to the agency pending review. See Note

accompanying Rule 8. Title 5, U.S.C. Sec. 705 (5 U.S.C.A. Sec. 705

(1966 Pamphlet)) confers general authority on both agencies and

reviewing courts to stay agency action pending review. Many of the

statutes authorizing review of agency action by the courts of

appeals deal with the question of stays, and at least one, the Act

of June 15, 1936, 49 Stat. 1499 (7 U.S.C. Sec. 10a), prohibits a

stay pending review. The proposed rule in nowise affects such

statutory provisions respecting stays. By its terms, it simply

indicates the procedure to be followed when a stay is sought.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

-End-

-CITE-

28 USC APPENDIX Rule 19 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE

AGENCY, BOARD, COMMISSION, OR OFFICER

-HEAD-

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

-STATUTE-

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 7 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.

-SOURCE-

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

Dec. 1, 1998.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

This is section 12 of the uniform rule (see General Note

following Rule 15) with changes in phraseology.

NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT

The deletion of the words "in whole or" is designed to eliminate

delay in the issuance of a judgment when the court of appeals has

either enforced completely the order of an agency or denied

completely such enforcement. In such a clear-cut situation, it

serves no useful purpose to delay the issuance of the judgment

until a proposed judgment is submitted by the agency and reviewed

by the respondent. This change conforms the Rule to the existing

practice in most circuits. Other amendments are technical and no

substantive change is intended.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language of the rule is amended to make the rule more easily

understood. In addition to changes made to improve the

understanding, the Advisory Committee has changed language to make

style and terminology consistent throughout the appellate rules.

These changes are intended to be stylistic only.

-End-

-CITE-

28 USC APPENDIX Rule 20 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE

AGENCY, BOARD, COMMISSION, OR OFFICER

-HEAD-

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

Agency Order

-STATUTE-

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.

-SOURCE-

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

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

The proposed rule continues the present uniform practice of the

circuits of regulating agency review or enforcement proceedings by

the general rules applicable to appeals from judgments of the

district courts.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language of the rule is amended to make the rule more easily

understood. In addition to changes made to improve the

understanding, the Advisory Committee has changed language to make

style and terminology consistent throughout the appellate rules.

These changes are intended to be stylistic only.

-End-

-CITE-

28 USC APPENDIX TITLE V. EXTRAORDINARY WRITS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE V. EXTRAORDINARY WRITS

-HEAD-

TITLE V. EXTRAORDINARY WRITS

-End-

-CITE-

28 USC APPENDIX Rule 21 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE V. EXTRAORDINARY WRITS

-HEAD-

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

Writs

-STATUTE-

(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.

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

The authority of courts of appeals to issue extraordinary writs

is derived from 28 U.S.C. Sec. 1651. Subdivisions (a) and (b)

regulate in detail the procedure surrounding the writs most

commonly sought - mandamus or prohibition directed to a judge or

judges. Those subdivisions are based upon Supreme Court Rule 31,

with certain changes which reflect the uniform practice among the

circuits (Seventh Circuit Rule 19 is a typical circuit rule).

Subdivision (c) sets out a very general procedure to be followed in

applications for the variety of other writs which may be issued

under the authority of 28 U.S.C. Sec. 1651.

NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT

Subdivision (d). The amendment makes it clear that a court may

require a different number of copies either by rule or by order in

an individual case. The number of copies of any document that a

court of appeals needs varies depending upon the way in which the

court conducts business. The internal operation of the courts of

appeals necessarily varies from circuit to circuit because of

differences in the number of judges, the geographic area included

within the circuit, and other such factors. Uniformity could be

achieved only by setting the number of copies artificially high so

that parties in all circuits file enough copies to satisfy the

needs of the court requiring the greatest number. Rather than do

that, the Committee decided to make it clear that local rules may

require a greater or lesser number of copies and that, if the

circumstances of a particular case indicate the need for a

different number of copies in that case, the court may so order.

NOTES OF ADVISORY COMMITTEE ON RULES - 1996 AMENDMENT

In most instances, a writ of mandamus or prohibition is not

actually directed to a judge in any more personal way than is an

order reversing a court's judgment. Most often a petition for a

writ of mandamus seeks review of the intrinsic merits of a judge's

action and is in reality an adversary proceeding between the

parties. See, e.g., Walker v. Columbia Broadcasting System, Inc.,

443 F.2d 33 (7th Cir. 1971). In order to change the tone of the

rule and of mandamus proceedings generally, the rule is amended so

that the judge is not treated as a respondent. The caption and

subdivision (a) are amended by deleting the reference to the writs

as being "directed to a judge or judges."

Subdivision (a). Subdivision (a) applies to writs of mandamus or

prohibition directed to a court, but it is amended so that a

petition for a writ of mandamus or prohibition does not bear the

name of the judge. The amendments to subdivision (a) speak,

however, about mandamus or prohibition "directed to a court." This

language is inserted to distinguish subdivision (a) from

subdivision (c). Subdivision (c) governs all other extraordinary

writs, including a writ of mandamus or prohibition directed to an

administrative agency rather than to a court and a writ of habeas

corpus.

The amendments require the petitioner to provide a copy of the

petition to the trial court judge. This will alert the judge to the

filing of the petition. This is necessary because the trial court

judge is not treated as a respondent and, as a result, is not

served. A companion amendment is made in subdivision (b). It

requires the circuit clerk to send a copy of the disposition of the

petition to the trial court judge.

Subdivision (b). The amendment provides that even if relief is

requested of a particular judge, although the judge may request

permission to respond, the judge may not do so unless the court

invites or orders a response.

The court of appeals ordinarily will be adequately informed not

only by the opinions or statements made by the trial court judge

contemporaneously with the entry of the challenged order but also

by the arguments made on behalf of the party opposing the relief.

The latter does not create an attorney-client relationship between

the party's attorney and the judge whose action is challenged, nor

does it give rise to any right to compensation from the judge.

If the court of appeals desires to hear from the trial court

judge, however, the court may invite or order the judge to respond.

In some instances, especially those involving court administration

or the failure of a judge to act, it may be that no one other than

the judge can provide a thorough explanation of the matters at

issue. Because it is ordinarily undesirable to place the trial

court judge, even temporarily, in an adversarial posture with a

litigant, the rule permits a court of appeals to invite an amicus

curiae to provide a response to the petition. In those instances in

which the respondent does not oppose issuance of the writ or does

not have sufficient perspective on the issue to provide an adequate

response, participation of an amicus may avoid the need for the

trial judge to participate.

Subdivision (c). The changes are stylistic only. No substantive

changes are intended.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Subdivision (d). A petition for a writ of mandamus or

prohibition, an application for another extraordinary writ, and an

answer to such a petition or application are all "other papers" for

purposes of Rule 32(c)(2), and all of the requirements of Rule

32(a) apply to those papers, except as provided in Rule 32(c)(2).

During the 1998 restyling of the Federal Rules of Appellate

Procedure, Rule 21(d) was inadvertently changed to suggest that

only the requirements of Rule 32(a)(1) apply to such papers. Rule

21(d) has been amended to correct that error.

Rule 21(d) has been further amended to limit the length of papers

filed under Rule 21.

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment or to the Committee Note,

except that the page limit was increased from 20 pages to 30 pages.

The Committee was persuaded by some commentators that petitions for

extraordinary writs closely resemble principal briefs on the merits

and should be allotted more than 20 pages.

-End-

-CITE-

28 USC APPENDIX TITLE VI. HABEAS CORPUS;

PROCEEDINGS IN FORMA PAUPERIS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS

-HEAD-

TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS

-End-

-CITE-

28 USC APPENDIX Rule 22 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS

-HEAD-

Rule 22. Habeas Corpus and Section 2255 Proceedings

-STATUTE-

(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

judge who rendered the judgment must either issue a certificate

of appealability or state why a certificate should not issue. The

district clerk must send the certificate or statement to the

court of appeals 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

the certificate.

(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.

-SOURCE-

(As amended Pub. L. 104-132, title I, Sec. 103, Apr. 24, 1996, 110

Stat. 1218; Apr. 24, 1998, eff. Dec. 1, 1998.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

Subdivision (a). Title 28 U.S.C. Sec. 2241(a) authorizes circuit

judges to issue the writ of habeas corpus. Section 2241(b),

however, authorizes a circuit judge to decline to entertain an

application and to transfer it to the appropriate district court,

and this is the usual practice. The first two sentences merely make

present practice explicit. Title 28 U.S.C. Sec. 2253 seems clearly

to contemplate that once an application is presented to a district

judge and is denied by him, the remedy is an appeal from the order

of denial. But the language of 28 U.S.C. Sec. 2241 seems to

authorize a second original application to a circuit judge

following a denial by a district judge. In re Gersing, 79

U.S.App.D.C. 245, 145 F.2d 481 (D.C. Cir., 1944) and Chapman v.

Teets, 241 F.2d 186 (9th Cir., 1957) acknowledge the availability

of such a procedure. But the procedure is ordinarily a waste of

time for all involved, and the final sentence attempts to

discourage it.

A court of appeals has no jurisdiction as a court to grant an

original writ of habeas corpus, and courts of appeals have

dismissed applications addressed to them. Loum v. Alvis, 263 F.2d

836 (6th Cir., 1959); In re Berry, 221 F.2d 798 (9th Cir., 1955);

Posey v. Dowd, 134 F.2d 613 (7th Cir., 1943). The fairer and more

expeditious practice is for the court of appeals to regard an

application addressed to it as being addressed to one of its

members, and to transfer the application to the appropriate

district court in accordance with the provisions of this rule.

Perhaps such a disposition is required by the rationale of In re

Burwell, 350 U.S. 521, 76 S.Ct. 539, 100 L.Ed. 666 (1956).

Subdivision (b). Title 28 U.S.C. Sec. 2253 provides that an

appeal may not be taken in a habeas corpus proceeding where

confinement is under a judgment of a state court unless the judge

who rendered the order in the habeas corpus proceeding, or a

circuit justice or judge, issues a certificate of probable cause.

In the interest of insuring that the matter of the certificate will

not be overlooked and that, if the certificate is denied, the

reasons for denial in the first instance will be available on any

subsequent application, the proposed rule requires the district

judge to issue the certificate or to state reasons for its denial.

While 28 U.S.C. Sec. 2253 does not authorize the court of appeals

as a court to grant a certificate of probable cause, In re Burwell,

350 U.S. 521, 76 S.Ct. 539, 100 L.Ed. 666 (1956) makes it clear

that a court of appeals may not decline to consider a request for

the certificate addressed to it as a court but must regard the

request as made to the judges thereof. The fourth sentence

incorporates the Burwell rule.

Although 28 U.S.C. Sec. 2253 appears to require a certificate of

probable cause even when an appeal is taken by a state or its

representative, the legislative history strongly suggests that the

intention of Congress was to require a certificate only in the case

in which an appeal is taken by an applicant for the writ. See

United States ex rel. Tillery v. Cavell, 294 F.2d 12 (3d Cir.,

1960). Four of the five circuits which have ruled on the point have

so interpreted section 2253. United States ex rel. Tillery v.

Cavell, supra; Buder v. Bell, 306 F.2d 71 (6th Cir., 1962); United

States ex rel. Calhoun v. Pate, 341 F.2d 885 (7th Cir., 1965);

State of Texas v. Graves, 352 F.2d 514 (5th Cir., 1965). Cf. United

States ex rel. Carrol v. LaVallee, 342 F.2d 641 (2d Cir., 1965).

The final sentence makes it clear that a certificate of probable

cause is not required of a state or its representative.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only; in this

rule, however, substantive changes are made in paragraphs (b)(1)

and (b)(3).

Subdivision (b), paragraph (1). Two substantive changes are made

in this paragraph. First, the paragraph is made applicable to 28

U.S.C. Sec. 2255 proceedings. This brings the rule into conformity

with 28 U.S.C. Sec. 2253 as amended by the Anti-Terrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132. Second,

the rule states that a certificate of appealability may be issued

by "a circuit justice or a circuit or district judge." That

language adds a reference to the circuit justice which also brings

the rule into conformity with section 2253. The language continues

to state that in addition to the circuit justice, both a circuit

and a district judge may issue a certificate of appealability. The

language of section 2253 is ambiguous; it states that a certificate

of appealability may be issued by "a circuit justice or judge."

Since the enactment of the Anti-Terrorism and Effective Death

Penalty Act, three circuits have held that both district and

circuit judges, as well as the circuit justice, may issue a

certificate of appealability. Else v. Johnson, 104 F.3d 82 (5th

Cir. 1997); Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063

(6th Cir. 1997); and Hunter v. United States, 101 F.3d 1565 (11th

Cir. 1996). The approach taken by the rule is consistent with those

decisions.

Subdivision (b), paragraph (3). The Anti-Terrorism and Effective

Death Penalty Act of 1996, Pub. L. No. 104-132, amended 28 U.S.C.

Sec. 2253 to make it applicable to Sec. 2255 proceedings.

Accordingly, paragraph (3) is amended to provide that when the

United States or its representative appeals, a certificate of

appealability is not required.

AMENDMENT BY PUBLIC LAW

1996 - Pub. L. 104-132 inserted "and section 2255" after "corpus"

in catchline and amended text generally. Prior to amendment, text

read as follows:

"(a) Application for the original writ. - An application for a

writ of habeas corpus shall be made to the appropriate district

court. If application is made to a circuit judge, the application

will ordinarily be transferred to the appropriate district court.

If an application is made to or transferred to the district court

and denied, renewal of the application before a circuit judge is

not favored; the proper remedy is by appeal to the court of appeals

from the order of the district court denying the writ.

"(b) Necessity of certificate of probable cause for appeal. - In

a habeas corpus proceeding in which the detention complained of

arises out of process issued by a state court, an appeal by the

applicant for the writ may not proceed unless a district or a

circuit judge issues a certificate of probable cause. If an appeal

is taken by the applicant, the district judge who rendered the

judgment shall either issue a certificate of probable cause or

state the reasons why such a certificate should not issue. The

certificate or the statement shall be forwarded to the court of

appeals with the notice of appeal and the file of the proceedings

in the district court. If the district judge has denied the

certificate, the applicant for the writ may then request issuance

of the certificate by a circuit judge. If such a request is

addressed to the court of appeals, it shall be deemed addressed to

the judges thereof and shall be considered by a circuit judge or

judges as the court deems appropriate. If no express request for a

certificate is filed, the notice of appeal shall be deemed to

constitute a request addressed to the judges of the court of

appeals. If an appeal is taken by a state or its representative, a

certificate of probable cause is not required."

-End-

-CITE-

28 USC APPENDIX Rule 23 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS

-HEAD-

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

Proceeding

-STATUTE-

(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.

-SOURCE-

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

Dec. 1, 1998.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

The rule is the same as Supreme Court Rule 49, as amended on June

12, 1967, effective October 2, 1967.

NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT

The amendments to Rules 23(b) and (c) are technical. No

substantive change is intended.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

Subdivison (d). The current rule states that the initial order

governing custody or release "shall govern review" in the court of

appeals. The amended language says that the initial order generally

"continues in effect" pending review.

When Rule 23 was adopted it used the same language as Supreme

Court Rule 49, which then governed custody of prisoners in habeas

corpus proceedings. The "shall govern review" language was drawn

from the Supreme Court Rule. The Supreme Court has since amended

its rule, now Rule 36, to say that the initial order "shall

continue in effect" unless for reasons shown it is modified or a

new order is entered. Rule 23 is amended to similarly state that

the initial order "continues in effect." The new language is

clearer. It removes the possible implication that the initial order

created law of the case, a strange notion to attach to an order

regarding custody or release.

-End-

-CITE-

28 USC APPENDIX Rule 24 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS

-HEAD-

Rule 24. Proceeding in Forma Pauperis

-STATUTE-

(a) Leave to Proceed in Forma Pauperis.

(1) Motion in the District Court. Except as stated in Rule

24(a)(3), a party to a district-court action who desires to

appeal in forma pauperis must file a motion in the district

court. The party must attach an affidavit that:

(A) shows in the detail prescribed by Form 4 of the Appendix

of Forms the party's inability to pay or to give security for

fees and costs;

(B) claims an entitlement to redress; and

(C) states the issues that the party intends to present on

appeal.

(2) Action on the Motion. If the district court grants the

motion, the party may proceed on appeal without prepaying or

giving security for fees and costs, unless a statute provides

otherwise. If the district court denies the motion, it must state

its reasons in writing.

(3) Prior Approval. A party who was permitted to proceed in

forma pauperis in the district-court action, or who was

determined to be financially unable to obtain an adequate defense

in a criminal case, may proceed on appeal in forma pauperis

without further authorization, unless:

(A) the district court - before or after the notice of appeal

is filed - certifies that the appeal is not taken in good faith

or finds that the party is not otherwise entitled to proceed in

forma pauperis and states in writing its reasons for the

certification or finding; or

(B) a statute provides otherwise.

(4) Notice of District Court's Denial. The district clerk must

immediately notify the parties and the court of appeals when the

district court does any of the following:

(A) denies a motion to proceed on appeal in forma pauperis;

(B) certifies that the appeal is not taken in good faith; or

(C) finds that the party is not otherwise entitled to proceed

in forma pauperis.

(5) Motion in the Court of Appeals. A party may file a motion

to proceed on appeal in forma pauperis in the court of appeals

within 30 days after service of the notice prescribed in Rule

24(a)(4). The motion must include a copy of the affidavit filed

in the district court and the district court's statement of

reasons for its action. If no affidavit was filed in the district

court, the party must include the affidavit prescribed by Rule

24(a)(1).

(b) Leave to Proceed in Forma Pauperis on Appeal or Review of an

Administrative-Agency Proceeding. When an appeal or review of a

proceeding before an administrative agency, board, commission, or

officer (including for the purpose of this rule the United States

Tax Court) proceeds directly in a court of appeals, a party may

file in the court of appeals a motion for leave to proceed on

appeal in forma pauperis with an affidavit prescribed by Rule

24(a)(1).

(c) Leave to Use Original Record. A party allowed to proceed on

appeal in forma pauperis may request that the appeal be heard on

the original record without reproducing any part.

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

Subdivision (a). Authority to allow prosecution of an appeal in

forma pauperis is vested in "[a]ny court of the United States" by

28 U.S.C. Sec. 1915(a). The second paragraph of section 1915(a)

seems to contemplate initial application to the district court for

permission to proceed in forma pauperis, and although the circuit

rules are generally silent on the question, the case law requires

initial application to the district court. Hayes v. United States,

258 F.2d 400 (5th Cir., 1958), cert. den. 358 U.S. 856, 79 S.Ct.

87, 3 L.Ed.2d 89 (1958); Elkins v. United States, 250 F.2d 145 (9th

Cir., 1957) see 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960);

United States v. Farley, 238 F.2d 575 (2d Cir., 1956) see 354 U.S.

521, 77 S.Ct. 1371, 1 L.Ed.2d 1529 (1957). D.C. Cir. Rule 41(a)

requires initial application to the district court. The content of

the affidavit follows the language of the statute; the requirement

of a statement of the issues comprehends the statutory requirement

of a statement of "the nature of the . . . appeal. . . ." The

second sentence is in accord with the decision in McGann v. United

States, 362 U.S. 309, 80 S.Ct. 725, 4 L.Ed.2d 734 (1960). The

requirement contained in the third sentence has no counterpart in

present circuit rules, but it has been imposed by decision in at

least two circuits. Ragan v. Cox, 305 F.2d 58 (10th Cir., 1962);

United States ex rel. Breedlove v. Dowd, 269 F.2d 693 (7th Cir.,

1959).

The second paragraph permits one whose indigency has been

previously determined by the district court to proceed on appeal in

forma pauperis without the necessity of a redetermination of

indigency, while reserving to the district court its statutory

authority to certify that the appeal is not taken in good faith, 28

U.S.C. Sec. 1915(a), and permitting an inquiry into whether the

circumstances of the party who was originally entitled to proceed

in forma pauperis have changed during the course of the litigation.

Cf. Sixth Circuit Rule 26.

The final paragraph establishes a subsequent motion in the court

of appeals, rather than an appeal from the order of denial or from

the certification of lack of good faith, as the proper procedure

for calling in question the correctness of the action of the

district court. The simple and expeditious motion procedure seems

clearly preferable to an appeal. This paragraph applies only to

applications for leave to appeal in forma pauperis. The order of a

district court refusing leave to initiate an action in the district

court in forma pauperis is reviewable on appeal. See Roberts v.

United States District Court, 339 U.S. 844, 70 S.Ct. 954, 94 L.Ed.

1326 (1950).

Subdivision (b). Authority to allow prosecution in forma pauperis

is vested only in a "court of the United States" (see Note to

subdivision (a), above). Thus in proceedings brought directly in a

court of appeals to review decisions of agencies or of the Tax

Court, authority to proceed in forma pauperis should be sought in

the court of appeals. If initial review of agency action is had in

a district court, an application to appeal to a court of appeals in

forma pauperis from the judgment of the district court is governed

by the provisions of subdivision (a).

NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT

The proposed amendment reflects the change in the title of the

Tax Court to "United States Tax Court." See 26 U.S.C. Sec. 7441.

NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT

The amendments to Rule 24(a) are technical. No substantive change

is intended.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only. The

Advisory Committee deletes the language in subdivision (c)

authorizing a party proceeding in forma pauperis to file papers in

typewritten form because the authorization is unnecessary. The

rules permit all parties to file typewritten documents.

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Subdivision (a)(2). Section 804 of the Prison Litigation Reform

Act of 1995 ("PLRA") amended 28 U.S.C. Sec. 1915 to require that

prisoners who bring civil actions or appeals from civil actions

must "pay the full amount of a filing fee." 28 U.S.C. Sec.

1915(b)(1). Prisoners who are unable to pay the full amount of the

filing fee at the time that their actions or appeals are filed are

generally required to pay part of the fee and then to pay the

remainder of the fee in installments. 28 U.S.C. Sec. 1915(b). By

contrast, Rule 24(a)(2) has provided that, after the district court

grants a litigant's motion to proceed on appeal in forma pauperis,

the litigant may proceed "without prepaying or giving security for

fees and costs." Thus, the PLRA and Rule 24(a)(2) appear to be in

conflict.

Rule 24(a)(2) has been amended to resolve this conflict.

Recognizing that future legislation regarding prisoner litigation

is likely, the Committee has not attempted to incorporate into Rule

24 all of the requirements of the current version of 28 U.S.C. Sec.

1915. Rather, the Committee has amended Rule 24(a)(2) to clarify

that the rule is not meant to conflict with anything required by

the PLRA or any other statute.

Subdivision (a)(3). Rule 24(a)(3) has also been amended to

eliminate an apparent conflict with the PLRA. Rule 24(a)(3) has

provided that a party who was permitted to proceed in forma

pauperis in the district court may continue to proceed in forma

pauperis in the court of appeals without further authorization,

subject to certain conditions. The PLRA, by contrast, provides that

a prisoner who was permitted to proceed in forma pauperis in the

district court and who wishes to continue to proceed in forma

pauperis on appeal may not do so "automatically," but must seek

permission. See, e.g., Morgan v. Haro, 112 F.3d 788, 789 (5th Cir.

1997) ("A prisoner who seeks to proceed IFP on appeal must obtain

leave to so proceed despite proceeding IFP in the district

court.").

Rule 24(a)(3) has been amended to resolve this conflict. Again,

recognizing that future legislation regarding prisoner litigation

is likely, the Committee has not attempted to incorporate into Rule

24 all of the requirements of the current version of 28 U.S.C. Sec.

1915. Rather, the Committee has amended Rule 24(a)(3) to clarify

that the rule is not meant to conflict with anything required by

the PLRA or any other statute.

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment or to the Committee Note,

except that "a statute provides otherwise" was substituted in place

of "the law requires otherwise" in the text of the rule and

conforming changes (as well as a couple of minor stylistic changes)

were made to the Committee Note.

-End-

-CITE-

28 USC APPENDIX TITLE VII. GENERAL PROVISIONS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

TITLE VII. GENERAL PROVISIONS

-End-

-CITE-

28 USC APPENDIX Rule 25 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 25. Filing and Service

-STATUTE-

(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 calendar 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 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 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.

(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

calendar 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.

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

The rule that filing is not timely unless the papers filed are

received within the time allowed is the familiar one. Ward v.

Atlantic Coast Line R.R. Co., 265 F.2d 75 (5th Cir., 1959), rev'd

on other grounds 362 U.S. 396, 80 S.Ct. 789, 4 L.Ed.2d 820 (1960);

Kahler-Ellis Co. v. Ohio Turnpike Commission, 225 F.2d 922 (6th

Cir., 1955). An exception is made in the case of briefs and

appendices in order to afford the parties the maximum time for

their preparation. By the terms of the exception, air mail delivery

must be used whenever it is the most expeditious manner of

delivery.

A majority of the circuits now require service of all papers

filed with the clerk. The usual provision in present rules is for

service on "adverse" parties. In view of the extreme simplicity of

service by mail, there seems to be no reason why a party who files

a paper should not be required to serve all parties to the

proceeding in the court of appeals, whether or not they may be

deemed adverse. The common requirement of proof of service is

retained, but the rule permits it to be made by simple

certification, which may be endorsed on the copy which is filed.

NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT

The amendments to Rules 25(a) and (b) are technical. No

substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT

Subdivision (a). The amendment permits, but does not require,

courts of appeals to adopt local rules that allow filing of papers

by electronic means. However, courts of appeals cannot adopt such

local rules until the Judicial Conference of the United States

authorizes filing by facsimile or other electronic means.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

The amendment accompanies new subdivision (c) of Rule 4 and

extends the holding in Houston v. Lack, 487 U.S. 266 (1988), to all

papers filed in the courts of appeals by persons confined in

institutions.

NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT

Subdivision (a). Several circuits have local rules that authorize

the office of the clerk to refuse to accept for filing papers that

are not in the form required by these rules or by local rules. This

is not a suitable role for the office of the clerk and the practice

exposes litigants to the hazards of time bars; for these reasons,

such rules are proscribed by this rule. This provision is similar

to Fed.R.Civ.P. 5(e) and Fed.R.Bankr.P. 5005.

The Committee wishes to make it clear that the provision

prohibiting a clerk from refusing a document does not mean that a

clerk's office may no longer screen documents to determine whether

they comply with the rules. A court may delegate to the clerk

authority to inform a party about any noncompliance with the rules

and, if the party is willing to correct the document, to determine

a date by which the corrected document must be resubmitted. If a

party refuses to take the steps recommended by the clerk or if in

the clerk's judgment the party fails to correct the noncompliance,

the clerk must refer the matter to the court for a ruling.

Subdivision (d). Two changes have been made in this subdivision.

Subdivision (d) provides that a paper presented for filing must

contain proof of service.

The last sentence of subdivision (d) has been deleted as

unnecessary. That sentence stated that a clerk could permit papers

to be filed without acknowledgment or proof of service but must

require that it be filed promptly thereafter. In light of the

change made in subdivision (a) which states that a clerk may not

refuse to accept for filing a document because it is not in the

proper form, there is no further need for a provision stating that

a clerk may accept a paper lacking a proof of service. The clerk

must accept such a paper. That portion of the deleted sentence

stating that the clerk must require that proof of service be filed

promptly after the filing of the document if the proof is not filed

concurrently with the document is also unnecessary.

The second amendment requires that the certificate of service

must state the addresses to which the papers were mailed or at

which they were delivered. The Federal Circuit has a similar local

rule, Fed.Cir.R. 25.

Subdivision (e). Subdivision (e) is a new subdivision. It makes

it clear that whenever these rules require a party to file or

furnish a number of copies a court may require a different number

of copies either by rule or by order in an individual case. The

number of copies of any document that a court of appeals needs

varies depending upon the way in which the court conducts business.

The internal operation of the courts of appeals necessarily varies

from circuit to circuit because of differences in the number of

judges, the geographic area included within the circuit, and other

such factors. Uniformity could be achieved only by setting the

number of copies artificially high so that parties in all circuits

file enough copies to satisfy the needs of the court requiring the

greatest number. Rather than do that, the Committee decided to make

it clear that local rules may require a greater or lesser number of

copies and that, if the circumstances of a particular case indicate

the need for a different number of copies in that case, the court

may so order.

A party must consult local rules to determine whether the court

requires a different number than that specified in these national

rules. The Committee believes it would be helpful if each circuit

either: 1) included a chart at the beginning of its local rules

showing the number of copies of each document required to be filed

with the court along with citation to the controlling rule; or 2)

made available such a chart to each party upon commencement of an

appeal; or both. If a party fails to file the required number of

copies, the failure does not create a jurisdictional defect. Rule

3(a) states: "Failure of an appellant 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 such action as the

court of appeals deems appropriate. . . ."

NOTES OF ADVISORY COMMITTEE ON RULES - 1996 AMENDMENT

Subdivision (a). The amendment deletes the language requiring a

party to use "the most expeditious form of delivery by mail, except

special delivery" in order to file a brief using the mailbox rule.

That language was adopted before the Postal Service offered Express

Mail and other expedited delivery services. The amendment makes it

clear that it is sufficient to use First-Class Mail. Other equally

or more expeditious classes of mail service, such as Express Mail,

also may be used. In addition, the amendment permits the use of

commercial carriers. The use of private, overnight courier services

has become commonplace in law practice. Expedited services offered

by commercial carriers often provide faster delivery than

First-Class Mail; therefore, there should be no objection to the

use of commercial carriers as long as they are reliable. In order

to make use of the mailbox rule when using a commercial carrier,

the amendment requires that the filer employ a carrier who

undertakes to deliver the document in no more than three calendar

days. The three-calendar-day period coordinates with the three-day

extension provided by Rule 26(c).

Subdivision (c). The amendment permits service by commercial

carrier if the carrier is to deliver the paper to the party being

served within three days of the carrier's receipt of the paper. The

amendment also expresses a desire that when reasonable, service on

a party be accomplished by a manner as expeditious as the manner

used to file the paper with the court. When a brief or motion is

filed with the court by hand delivering the paper to the clerk's

office, or by overnight courier, the copies should be served on the

other parties by an equally expeditious manner - meaning either by

personal service, if distance permits, or by overnight courier, if

mail delivery to the party is not ordinarily accomplished

overnight. The reasonableness standard is included so that if a

paper is hand delivered to the clerk's office for filing but the

other parties must be served in a different city, state, or region,

personal service on them ordinarily will not be expected. If use of

an equally expeditious manner of service is not reasonable, use of

the next most expeditious manner may be. For example, if the paper

is filed by hand delivery to the clerk's office but the other

parties reside in distant cities, service on them need not be

personal but in most instances should be by overnight courier. Even

that may not be required, however, if the number of parties that

must be served would make the use of overnight service too costly.

A factor that bears upon the reasonableness of serving parties

expeditiously is the immediacy of the relief requested.

Subdivision (d). The amendment adds a requirement that when a

brief or appendix is filed by mail or commercial carrier, the

certificate of service state the date and manner by which the

document was mailed or dispatched to the clerk. Including that

information in the certificate of service avoids the necessity for

a separate certificate concerning the date and manner of filing.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only; a

substantive amendment is made, however, in subdivision (a).

Subdivision (a). The substantive amendment in this subdivision is

in subparagraph (a)(2)(C) and is a companion to an amendment in

Rule 4(c). Currently Rule 25(a)(2)(C) provides that if an inmate

confined in an institution files a document by depositing it in the

institution's internal mail system, the document is timely filed if

deposited on or before the last day for filing. Some institutions

have special internal mail systems for handling legal mail; such

systems often record the date of deposit of mail by an inmate, the

date of delivery of mail to an inmate, etc. The Advisory Committee

amends the rule to require an inmate to use the system designed for

legal mail, if there is one, in order to receive the benefit of

this subparagraph.

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Rule 25(a)(2)(D) presently authorizes the courts of appeals to

permit papers to be filed by electronic means. Rule 25 has been

amended in several respects to permit papers also to be served

electronically. In addition, Rule 25(c) has been reorganized and

subdivided to make it easier to understand.

Subdivision (c)(1)(D). New subdivision (c)(1)(D) has been added

to permit service to be made electronically, such as by e-mail or

fax. No party may be served electronically, either by the clerk or

by another party, unless the party has consented in writing to such

service.

A court of appeals may not, by local rule, forbid the use of

electronic service on a party that has consented to its use. At the

same time, courts have considerable discretion to use local rules

to regulate electronic service. Difficult and presently

unforeseeable questions are likely to arise as electronic service

becomes more common. Courts have the flexibility to use their local

rules to address those questions. For example, courts may use local

rules to set forth specific procedures that a party must follow

before the party will be deemed to have given written consent to

electronic service.

Parties also have the flexibility to define the terms of their

consent; a party's consent to electronic service does not have to

be "all-or-nothing." For example, a party may consent to service by

facsimile transmission, but not by electronic mail; or a party may

consent to electronic service only if "courtesy" copies of all

transmissions are mailed within 24 hours; or a party may consent to

electronic service of only documents that were created with Corel

WordPerfect.

Subdivision (c)(2). The courts of appeals are authorized under

Rule 25(a)(2)(D) to permit papers to be filed electronically.

Technological advances may someday make it possible for a court to

forward an electronically filed paper to all parties automatically

or semi-automatically. When such court-facilitated service becomes

possible, courts may decide to permit parties to use the courts'

transmission facilities to serve electronically filed papers on

other parties who have consented to such service. Court personnel

would use the court's computer system to forward the papers, but

the papers would be considered served by the filing parties, just

as papers that are carried from one address to another by the

United States Postal Service are considered served by the sending

parties. New subdivision (c)(2) has been added so that the courts

of appeals may use local rules to authorize such use of their

transmission facilities, as well as to address the many questions

that court-facilitated electronic service is likely to raise.

Subdivision (c)(4). The second sentence of new subdivision (c)(4)

has been added to provide that electronic service is complete upon

transmission. Transmission occurs when the sender performs the last

act that he or she must perform to transmit a paper electronically;

typically, it occurs when the sender hits the "send" or "transmit"

button on an electronic mail program. There is one exception to the

rule that electronic service is complete upon transmission: If the

sender is notified - by the sender's e-mail program or otherwise -

that the paper was not received, service is not complete, and the

sender must take additional steps to effect service. A paper has

been "received" by the party on which it has been served as long as

the party has the ability to retrieve it. A party cannot defeat

service by choosing not to access electronic mail on its server.

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment. A paragraph was added to the

Committee Note to clarify that consent to electronic service is not

an "all-or-nothing" matter.

Subdivision (d)(1)(B)(iii). Subdivision (d)(1)(B)(iii) has been

amended to require that, when a paper is served electronically, the

proof of service of that paper must include the electronic address

or facsimile number to which the paper was transmitted.

Changes Made After Publication and Comments. The text of the

proposed amendment was changed to refer to "electronic" addresses

(instead of to "e-mail" addresses), to include "facsimile numbers,"

and to add the concluding phrase "as appropriate for the manner of

service." Conforming changes were made to the Committee Note.

-End-

-CITE-

28 USC APPENDIX Rule 26 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 26. Computing and Extending Time

-STATUTE-

(a) Computing Time. The following rules apply in computing any

period of time specified in these rules or in any local rule, court

order, or applicable statute:

(1) Exclude the day of the act, event, or default that begins

the period.

(2) Exclude intermediate Saturdays, Sundays, and legal holidays

when the period is less than 11 days, unless stated in calendar

days.

(3) Include the last day of the period unless it is a Saturday,

Sunday, legal holiday, or - if the act to be done is filing a

paper in court - a day on which the weather or other conditions

make the clerk's office inaccessible.

(4) As used in this rule, "legal holiday" means New Year's Day,

Martin Luther King, Jr.'s Birthday, Presidents' Day, Memorial

Day, Independence Day, Labor Day, Columbus Day, Veterans' Day,

Thanksgiving Day, Christmas Day, and any other day declared a

holiday by the President, Congress, or the state in which is

located either 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 is required or

permitted to act within a prescribed period after a paper is served

on that party, 3 calendar days are added to the prescribed period

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.

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

The provisions of this rule are based upon FRCP 6(a), (b) and

(e). See also Supreme Court Rule 34 and FRCrP 45. Unlike FRCP 6(b),

this rule, read with Rule 27, requires that every request for

enlargement of time be made by motion, with proof of service on all

parties. This is the simplest, most convenient way of keeping all

parties advised of developments. By the terms of Rule 27(b) a

motion for enlargement of time under Rule 26(b) may be entertained

and acted upon immediately, subject to the right of any party to

seek reconsideration. Thus the requirement of motion and notice

will not delay the granting of relief of a kind which a court is

inclined to grant as of course. Specifically, if a court is of the

view that an extension of time sought before expiration of the

period originally prescribed or as extended by a previous order

ought to be granted in effect ex parte, as FRCP 6(b) permits, it

may grant motions seeking such relief without delay.

NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT

The amendment adds Columbus Day to the list of legal holidays to

conform the subdivision to the Act of June 28, 1968, 82 Stat. 250,

which constituted Columbus Day a legal holiday effective after

January 1, 1971.

The Act, which amended Title 5, U.S.C. Sec. 6103(a), changes the

day on which certain holidays are to be observed. Washington's

Birthday, Memorial Day and Veterans Day are to be observed on the

third Monday in February, the last Monday in May and the fourth

Monday in October, respectively, rather than, as heretofore, on

February 22, May 30, and November 11, respectively. Columbus Day is

to be observed on the second Monday in October. New Year's Day,

Independence Day, Thanksgiving Day and Christmas continue to be

observed on the traditional days.

NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT

The Birthday of Martin Luther King, Jr., is added to the list of

national holidays in Rule 26(a). The amendment to Rule 26(c) is

technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1989 AMENDMENT

The proposed amendment brings Rule 26(a) into conformity with the

provisions of Rule 6(a) of the Rules of Civil Procedure, Rule 45(a)

of the Rules of Criminal Procedure, and Rule 9006(a) of the Rules

of Bankruptcy Procedure which allow additional time for filing

whenever a clerk's office is inaccessible on the last day for

filing due to weather or other conditions.

NOTES OF ADVISORY COMMITTEE ON RULES - 1996 AMENDMENT

The amendment is a companion to the proposed amendments to Rule

25 that permit service on a party by commercial carrier. The

amendments to subdivision (c) of this rule make the three-day

extension applicable not only when service is accomplished by mail,

but whenever delivery to the party being served occurs later than

the date of service stated in the proof of service. When service is

by mail or commercial carrier, the proof of service recites the

date of mailing or delivery to the commercial carrier. If the party

being served receives the paper on a later date, the three-day

extension applies. If the party being served receives the paper on

the same date as the date of service recited in the proof of

service, the three-day extension is not available.

The amendment also states that the three-day extension is three

calendar days. Rule 26(a) states that when a period prescribed or

allowed by the rules is less than seven days, intermediate

Saturdays, Sundays, and legal holidays do not count. Whether the

three-day extension in Rule 26(c) is such a period, meaning that

three-days could actually be five or even six days, is unclear. The

D.C. Circuit recently held that the parallel three-day extension

provided in the Civil Rules is not such a period and that weekends

and legal holidays do count. CNPq v. Inter-Trade, 50 F.3d 56 (D.C.

Cir. 1995). The Committee believes that is the right result and

that the issue should be resolved. Providing that the extension is

three calendar days means that if a period would otherwise end on

Thursday but the three-day extension applies, the paper must be

filed on Monday. Friday, Saturday, and Sunday are the extension

days. Because the last day of the period as extended is Sunday, the

paper must be filed the next day, Monday.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only; two

substantive changes are made, however, in subdivision (a).

Subdivision (a). First, the amendments make the computation

method prescribed in this rule applicable to any time period

imposed by a local rule. This means that if a local rule

establishing a time limit is permitted, the national rule will

govern the computation of that period.

Second, paragraph (a)(2) includes language clarifying that

whenever the rules establish a time period in "calendar days,"

weekends and legal holidays are counted.

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Subdivision (a)(2). The Federal Rules of Civil Procedure and the

Federal Rules of Criminal Procedure compute time differently than

the Federal Rules of Appellate Procedure. Fed. R. Civ. P. 6(a) and

Fed. R. Crim. P. 45(a) provide that, in computing any period of

time, "[w]hen the period of time prescribed or allowed is less than

11 days, intermediate Saturdays, Sundays, and legal holidays shall

be excluded in the computation." By contrast, Rule 26(a)(2)

provides that, in computing any period of time, a litigant should

"[e]xclude intermediate Saturdays, Sundays, and legal holidays when

the period is less than 7 days, unless stated in calendar days."

Thus, deadlines of 7, 8, 9, and 10 days are calculated differently

under the rules of civil and criminal procedure than they are under

the rules of appellate procedure. This creates a trap for unwary

litigants. No good reason for this discrepancy is apparent, and

thus Rule 26(a)(2) has been amended so that, under all three sets

of rules, intermediate Saturdays, Sundays, and legal holidays will

be excluded when computing deadlines under 11 days but will be

counted when computing deadlines of 11 days and over.

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment or to the Committee Note.

Subdivision (c). Rule 26(c) has been amended to provide that when

a paper is served on a party by electronic means, and that party is

required or permitted to respond to that paper within a prescribed

period, 3 calendar days are added to the prescribed period.

Electronic service is usually instantaneous, but sometimes it is

not, because of technical problems. Also, if a paper is

electronically transmitted to a party on a Friday evening, the

party may not realize that he or she has been served until two or

three days later. Finally, extending the "3-day rule" to electronic

service will encourage parties to consent to such service under

Rule 25(c).

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment or to the Committee Note.

-End-

-CITE-

28 USC APPENDIX Rule 26.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 26.1. Corporate Disclosure Statement

-STATUTE-

(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.

-SOURCE-

(As added Apr. 25, 1989, eff. Dec. 1, 1989; and 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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1989

The purpose of this rule is to assist judges in making a

determination of whether they have any interests in any of a

party's related corporate entities that would disqualify the judges

from hearing the appeal. The committee believes that this rule

represents minimum disclosure requirements. If a Court of Appeals

wishes to require additional information, a court is free to do so

by local rule. However, the committee requests the courts to

consider the desirability of uniformity and the burden that varying

circuit rules creates on attorneys who practice in many circuits.

NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT

The amendment requires a party to file three copies of the

disclosure statement whenever the statement is filed before the

party's principal brief. Because the statement is included in each

copy of the party's brief, there is no need to require the filing

of additional copies at that time. A court of appeals may require

the filing of a different number of copies by local rule or by

order in a particular case.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only; a

substantive change is made, however, in subdivision (a).

Subdivison [sic] (a). The amendment deletes the requirement that

a corporate party identify subsidiaries and affiliates that have

issued shares to the public. Although several circuit rules require

identification of such entities, the Committee believes that such

disclosure is unnecessary.

A disclosure statement assists a judge in ascertaining whether or

not the judge has an interest that should cause the judge to recuse

himself or herself from the case. Given that purpose, disclosure of

entities that would not be adversely affected by a decision in the

case is unnecessary.

Disclosure of a party's parent corporation is necessary because a

judgment against a subsidiary can negatively impact the parent. A

judge who owns stock in the parent corporation, therefore, has an

interest in litigation involving the subsidiary. The rule requires

disclosure of all of a party's parent corporations meaning

grandparent and great grandparent corporations as well. For

example, if a party is a closely held corporation, the majority

shareholder of which is a corporation formed by a publicly traded

corporation for the purpose of acquiring and holding the shares of

the party, the publicly traded grandparent corporation should be

disclosed. Conversely, disclosure of a party's subsidiaries or

affiliated corporations is ordinarily unnecessary. For example, if

a party is a part owner of a corporation in which a judge owns

stock, the possibility is quite remote that the judge might be

biased by the fact that the judge and the litigant are co-owners of

a corporation.

The amendment, however, adds a requirement that the party lists

all its stockholders that are publicly held companies owning 10% or

more of the stock of the party. A judgment against a corporate

party can adversely affect the value of the company's stock and,

therefore, persons owning stock in the party have an interest in

the outcome of the litigation. A judge owning stock in a corporate

party ordinarily recuses himself or herself. The new requirement

takes the analysis one step further and assumes that if a judge

owns stock in a publicly held corporation which in turn owns 10% or

more of the stock in the party, the judge may have sufficient

interest in the litigation to require recusal. The 10% threshold

ensures that the corporation in which the judge may own stock is

itself sufficiently invested in the party that a judgment adverse

to the party could have an adverse impact upon the investing

corporation in which the judge may own stock. This requirement is

modeled on the Seventh Circuit's disclosure requirement.

Subdivision (b). The language requiring inclusion of the

disclosure statement in a party's principal brief is moved to this

subdivision because it deals with the time for filing the

statement.

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

a. Alternative One [At its June 7-8, 2001, meeting, the

Committee on Rules of Practice and Procedure voted to reject

Alternative One.]

Subdivision (a). Rule 26.1(a) presently requires nongovernmental

corporate parties to file a "corporate disclosure statement." In

that statement, a nongovernmental corporate party is required to

identify all of its parent corporations and all publicly held

corporations that own 10% or more of its stock. The corporate

disclosure statement is intended to assist judges in determining

whether they must recuse themselves by reason of "a financial

interest in the subject matter in controversy." Code of Judicial

Conduct, Canon 3C(1)(c) (1972).

Rule 26.1(a) has been amended to require that nongovernmental

corporate parties who currently do not have to file a corporate

disclosure statement - that is, nongovernmental corporate parties

who do not have any parent corporations and at least 10% of whose

stock is not owned by any publicly held corporation - inform the

court of that fact. At present, when a corporate disclosure

statement is not filed, courts do not know whether it has not been

filed because there was nothing to report or because of ignorance

of Rule 26.1(a).

Rule 26.1(a) does not require the disclosure of all information

that could conceivably be relevant to a judge who is trying to

decide whether he or she has a "financial interest" in a case.

Experience with divergent disclosure practices and improving

technology may provide the foundation for more comprehensive

disclosure requirements. The Judicial Conference, supported by the

committees that work regularly with the Code of Judicial Conduct

and by the Administrative Office of the United States Courts, is in

the best position to develop any additional requirements and to

adjust those requirements as technology and other developments

warrant. Thus, Rule 26.1(a) has been amended to authorize the

Judicial Conference to promulgate more detailed financial

disclosure requirements - requirements that might apply beyond

nongovernmental corporate parties.

As has been true in the past, Rule 26.1(a) does not forbid the

promulgation of local rules that require disclosures in addition to

those required by Rule 26.1(a) itself. However, along with the

authority provided to the Judicial Conference to require additional

disclosures is the authority to preempt any local rulemaking on the

topic of financial disclosure.

Subdivision (b). Rule 26.1(b) has been amended to require parties

to file supplemental disclosure statements whenever there is a

change in the information that Rule 26.1(a) requires the parties to

disclose. For example, if a publicly held corporation acquires 10%

or more of a party's stock after the party has filed its disclosure

statement, the party should file a supplemental statement

identifying that publicly held corporation.

Subdivision (c). Rule 26.1(c) has been amended to provide that a

party who is required to file a supplemental disclosure statement

must file an original and 3 copies, unless a local rule or an order

entered in a particular case provides otherwise.

b. Alternative Two [At its June 7-8, 2001, meeting, the

Committee on Rules of Practice and Procedure voted to approve

Alternative Two.]

Subdivision (a). Rule 26.1(a) requires nongovernmental corporate

parties to file a "corporate disclosure statement." In that

statement, a nongovernmental corporate party is required to

identify all of its parent corporations and all publicly held

corporations that own 10% or more of its stock. The corporate

disclosure statement is intended to assist judges in determining

whether they must recuse themselves by reason of "a financial

interest in the subject matter in controversy." Code of Judicial

Conduct, Canon 3C(1)(c) (1972).

Rule 26.1(a) has been amended to require that nongovernmental

corporate parties who have not been required to file a corporate

disclosure statement - that is, nongovernmental corporate parties

who do not have any parent corporations and at least 10% of whose

stock is not owned by any publicly held corporation - inform the

court of that fact. At present, when a corporate disclosure

statement is not filed, courts do not know whether it has not been

filed because there was nothing to report or because of ignorance

of Rule 26.1.

Subdivision (b). Rule 26.1(b) has been amended to require parties

to file supplemental disclosure statements whenever there is a

change in the information that Rule 26.1(a) requires the parties to

disclose. For example, if a publicly held corporation acquires 10%

or more of a party's stock after the party has filed its disclosure

statement, the party should file a supplemental statement

identifying that publicly held corporation.

Subdivision (c). Rule 26.1(c) has been amended to provide that a

party who is required to file a supplemental disclosure statement

must file an original and 3 copies, unless a local rule or an order

entered in a particular case provides otherwise.

Changes Made After Publication and Comments. The Committee is

submitting two versions of proposed Rule 26.1 for the consideration

of the Standing Committee.

The first version - "Alternative One" - is the same as the

version that was published, except that the rule has been amended

to refer to "any information that may be publicly designated by the

Judicial Conference" instead of to "any information that may be

required by the Judicial Conference." At its April meeting, the

Committee gave unconditional approval to all of "Alternative One,"

except the Judicial Conference provisions. The Committee

conditioned its approval of the Judicial Conference provisions on

the Standing Committee's assuring itself that lawyers would have

ready access to any standards promulgated by the Judicial

Conference and that the Judicial Conference provisions were

consistent with the Rules Enabling Act.

The second version - "Alternative Two" - is the same as the

version that was published, except that the Judicial Conference

provisions have been eliminated. The Civil Rules Committee met

several days after the Appellate Rules Committee and joined the

Bankruptcy Rules Committee in disapproving the Judicial Conference

provisions. Given the decreasing likelihood that the Judicial

Conference provisions will be approved by the Standing Committee, I

asked Prof. Schiltz to draft, and the Appellate Rules Committee to

approve, a version of Rule 26.1 that omitted those provisions.

"Alternative Two" was circulated to and approved by the Committee

in late April.

I should note that, at its April meeting, the Appellate Rules

Committee discussed the financial disclosure provision that was

approved by the Bankruptcy Rules Committee. That provision defines

the scope of the financial disclosure obligation much differently

than the provisions approved by the Appellate, Civil, and Criminal

Rules Committees, which are based on existing Rule 26.1. For

example, the bankruptcy provision requires disclosure when a party

"directly or indirectly" owns 10 percent or more of "any class" of

a publicly or privately held corporation's "equity interests."

Members of the Appellate Rules Committee expressed several concerns

about the provision approved by the Bankruptcy Rules Committee,

objecting both to its substance and to its ambiguity.

-End-

-CITE-

28 USC APPENDIX Rule 27 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 27. Motions

-STATUTE-

(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 8 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 8-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 5 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.

(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.

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

Subdivisions (a) and (b). Many motions seek relief of a sort

which is ordinarily unopposed or which is granted as of course. The

provision of subdivision (a) which permits any party to file a

response in opposition to a motion within 7 days after its service

upon him assumes that the motion is one of substance which ought

not be acted upon without affording affected parties an opportunity

to reply. A motion to dismiss or otherwise determine an appeal is

clearly such a motion. Motions authorized by Rules 8, 9, 18 and 41

are likewise motions of substance; but in the nature of the relief

sought, to afford an adversary an automatic delay of at least 7

days is undesirable, thus such motions may be acted upon after

notice which is reasonable under the circumstances.

The term "motions for procedural orders" is used in subdivision

(b) to describe motions which do not substantially affect the

rights of the parties or the ultimate disposition of the appeal. To

prevent delay in the disposition of such motions, subdivision (b)

provides that they may be acted upon immediately without awaiting a

response, subject to the right of any party who is adversely

affected by the action to seek reconsideration.

Subdivision (c). Within the general consideration of procedure on

motions is the problem of the power of a single circuit judge.

Certain powers are granted to a single judge of a court of appeals

by statute. Thus, under 28 U.S.C. Sec. 2101(f) a single judge may

stay execution and enforcement of a judgment to enable a party

aggrieved to obtain certiorari; under 28 U.S.C. Sec. 2251 a judge

before whom a habeas corpus proceeding involving a person detained

by state authority is pending may stay any proceeding against the

person; under 28 U.S.C. Sec. 2253 a single judge may issue a

certificate of probable cause. In addition, certain of these rules

expressly grant power to a single judge. See Rules 8, 9 and 18.

This subdivision empowers a single circuit judge to act upon

virtually all requests for intermediate relief which may be made

during the course of an appeal or other proceeding. By its terms he

may entertain and act upon any motion other than a motion to

dismiss or otherwise determine an appeal or other proceeding. But

the relief sought must be "relief which under these rules may

properly be sought by motion."

Examples of the power conferred on a single judge by this

subdivision are: to extend the time for transmitting the record or

docketing the appeal (Rules 11 and 12); to permit intervention in

agency cases (Rule 15), or substitution in any case (Rule 43); to

permit an appeal in forma pauperis (Rule 24); to enlarge any time

period fixed by the rules other than that for initiating a

proceeding in the court of appeals (Rule 26(b)); to permit the

filing of a brief by amicus curiae (Rule 29); to authorize the

filing of a deferred appendix (Rule 30(c)), or dispense with the

requirement of an appendix in a specific case (Rule 30(f)), or

permit carbon copies of briefs or appendices to be used (Rule

32(a)); to permit the filing of additional briefs (Rule 28(c)), or

the filing of briefs of extraordinary length (Rule 28(g)); to

postpone oral argument (Rule 34(a)), or grant additional time

therefor (Rule 34(b)).

Certain rules require that application for the relief or orders

which they authorize be made by petition. Since relief under those

rules may not properly be sought by motion, a single judge may not

entertain requests for such relief. Thus a single judge may not act

upon requests for permission to appeal (see Rules 5 and 6); or for

mandamus or other extraordinary writs (see Rule 21), other than for

stays or injunctions pendente lite, authority to grant which is

"expressly conferred by these rules" on a single judge under

certain circumstances (see Rules 8 and 18); or upon petitions for

rehearing (see Rule 40).

A court of appeals may by order or rule abridge the power of a

single judge if it is of the view that a motion or a class of

motions should be disposed of by a panel. Exercise of any power

granted a single judge is discretionary with the judge. The final

sentence in this subdivision makes the disposition of any matter by

a single judge subject to review by the court.

NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT

The proposed amendment would give sanction to local rules in a

number of circuits permitting the clerk to dispose of specified

types of procedural motions.

NOTES OF ADVISORY COMMITTEE ON RULES - 1989 AMENDMENT

The amendment is technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT

Subdivision (d). The amendment makes it clear that a court may

require a different number of copies either by rule or by order in

an individual case. The number of copies of any document that a

court of appeals needs varies depending upon the way in which the

court conducts business. The internal operation of the courts of

appeals necessarily varies from circuit to circuit because of

differences in the number of judges, the geographic area included

within the circuit, and other such factors. Uniformity could be

achieved only by setting the number of copies artificially high so

that parties in all circuits file enough copies to satisfy the

needs of the court requiring the greatest number. Rather than do

that, the Committee decided to make it clear that local rules may

require a greater or lesser number of copies and that, if the

circumstances of a particular case indicate the need for a

different number of copies in that case, the court may so order.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

In addition to amending Rule 27 to conform to uniform drafting

standards, several substantive amendments are made. The Advisory

Committee had been working on substantive amendments to Rule 27

just prior to completion of this larger project.

Subdivision (a). Paragraph (1) retains the language of the

existing rule indicating that an application for an order or other

relief is made by filing a motion unless another form is required

by some other provision in the rules.

Paragraph (1) also states that a motion must be in writing unless

the court permits otherwise. The writing requirement has been

implicit in the rule; the Advisory Committee decided to make it

explicit. There are, however, instances in which a court may permit

oral motions. Perhaps the most common such instance would be a

motion made during oral argument in the presence of opposing

counsel; for example, a request for permission to submit a

supplemental brief on an issue raised by the court for the first

time at oral argument. Rather than limit oral motions to those made

during oral argument or, conversely, assume the propriety of making

even extremely complex motions orally during argument, the Advisory

Committee decided that it is better to leave the determination of

the propriety of an oral motion to the court's discretion. The

provision does not disturb the practice in those circuits that

permit certain procedural motions, such as a motion for extension

of time for filing a brief, to be made by telephone and ruled upon

by the clerk.

Paragraph (2) outlines the contents of a motion. It begins with

the general requirement from the current rule that a motion must

state with particularity the grounds supporting it and the relief

requested. It adds a requirement that all legal arguments should be

presented in the body of the motion; a separate brief or memorandum

supporting or responding to a motion must not be filed. The Supreme

Court uses this single document approach. Sup. Ct. R. 21.1. In

furtherance of the requirement that all legal argument must be

contained in the body of the motion, paragraph (2) also states that

an affidavit that is attached to a motion should contain only

factual information and not legal argument.

Paragraph (2) further states that whenever a motion requests

substantive relief, a copy of the trial court's opinion or agency's

decision must be attached.

Although it is common to present a district court with a proposed

order along with the motion requesting relief, that is not the

practice in the courts of appeals. A proposed order is not required

and is not expected or desired. Nor is a notice of motion required.

Paragraph (3) retains the provisions of the current rule

concerning the filing of a response to a motion except that the

time for responding has been expanded to 10 days rather than 7

days. Because the time periods in the rule apply to a substantive

motion as well as a procedural motion, the longer time period may

help reduce the number of motions for extension of time, or at

least provide a more realistic time frame within which to make and

dispose of such a motion.

A party filing a response in opposition to a motion may also

request affirmative relief. It is the Advisory Committee's judgment

that it is permissible to combine the response and the new motion

in the same document. Indeed, because there may be substantial

overlap of arguments in the response and in the request for

affirmative relief, a combined document may be preferable. If a

request for relief is combined with a response, the caption of the

document must alert the court to the request for relief. The time

for a response to such a new request and for reply to that response

are governed by the general rules regulating responses and replies.

Paragraph (4) is new. Two circuits currently have rules

authorizing a reply. As a general matter, a reply should not

reargue propositions presented in the motion or present matters

that do not relate to the response. Sometimes matters relevant to

the motion arise after the motion is filed; treatment of such

matters in the reply is appropriate even though strictly speaking

it may not relate to the response.

Subdivision (b). The material in this subdivision remains

substantively unchanged except to clarify that one may file a

motion for reconsideration, etc., of a disposition by either the

court or the clerk. A new sentence is added indicating that if a

motion is granted in whole or in part before the filing of timely

opposition to the motion, the filing of the opposition is not

treated as a request for reconsideration, etc. A party wishing to

have the court reconsider, vacate, or modify the disposition must

file a new motion that addresses the order granting the motion.

Although the rule does not require a court to do so, it would be

helpful if, whenever a motion is disposed of before receipt of any

response from the opposing party, the ruling indicates that it was

issued without awaiting a response. Such a statement will aid the

opposing party in deciding whether to request reconsideration. The

opposing party may have mailed a response about the time of the

ruling and be uncertain whether the court has considered it.

Subdivision (c). The changes in this subdivision are stylistic

only. No substantive changes are intended.

Subdivision (d). This subdivision has been substantially revised.

The format requirements have been moved from Rule 32(b) to

paragraph (1) of this subdivision. No cover is required, but a

caption is needed as well as a descriptive title indicating the

purpose of the motion and identifying the party or parties for whom

it is filed. Spiral binding or secure stapling at the upper

left-hand corner satisfies the binding requirement. But they are

not intended to be the exclusive methods of binding.

Paragraph (2) establishes page limits; twenty pages for a motion

or a response, and ten pages for a reply. Three circuits have

established page limits by local rule. This rule does not establish

special page limits for those instances in which a party combines a

response to a motion with a new request for affirmative relief.

Because a combined document most often will be used when there is

substantial overlap in the argument in opposition to the motion and

in the argument for the affirmative relief, twenty pages may be

sufficient in most instances. If it is not, the party may request

additional pages. If ten pages is insufficient for the original

movant to both reply to the response, and respond to the new

request for affirmative relief, two separate documents may be used

or a request for additional pages may be made.

The changes in paragraph (4) ae stylistic only. No substantive

changes are intended.

Subdivision (e). This new provision makes it clear that there is

no right to oral argument on a motion. Seven circuits have local

rules stating that oral argument of motions will not be held unless

the court orders it.

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Subdivision (a)(3)(A). Subdivision (a)(3)(A) presently requires

that a response to a motion be filed within 10 days after service

of the motion. Intermediate Saturdays, Sundays, and legal holidays

are counted in computing that 10-day deadline, which means that,

except when the 10-day deadline ends on a weekend or legal holiday,

parties generally must respond to motions within 10 actual days.

Fed. R. App. P. 26(a)(2) has been amended to provide that, in

computing any period of time, a litigant should "[e]xclude

intermediate Saturdays, Sundays, and legal holidays when the period

is less than 11 days, unless stated in calendar days." This change

in the method of computing deadlines means that 10-day deadlines

(such as that in subdivision (a)(3)(A)) have been lengthened as a

practical matter. Under the new computation method, parties would

never have less than 14 actual days to respond to motions, and

legal holidays could extend that period to as much as 18 days.

Permitting parties to take two weeks or more to respond to

motions would introduce significant and unwarranted delay into

appellate proceedings. For that reason, the 10-day deadline in

subdivision (a)(3)(A) has been reduced to 8 days. This change will,

as a practical matter, ensure that every party will have at least

10 actual days - but, in the absence of a legal holiday, no more

than 12 actual days - to respond to motions. The court continues to

have discretion to shorten or extend that time in appropriate

cases.

Changes Made After Publication and Comments. In response to the

objections of commentators, the time to respond to a motion was

increased from the proposed 7 days to 8 days. No other changes were

made to the text of the proposed amendment or to the Committee

Note.

Subdivision (a)(4). Subdivision (a)(4) presently requires that a

reply to a response to a motion be filed within 7 days after

service of the response. Intermediate Saturdays, Sundays, and legal

holidays are counted in computing that 7-day deadline, which means

that, except when the 7-day deadline ends on a weekend or legal

holiday, parties generally must reply to responses to motions

within one week.

Fed. R. App. P. 26(a)(2) has been amended to provide that, in

computing any period of time, a litigant should "[e]xclude

intermediate Saturdays, Sundays, and legal holidays when the period

is less than 11 days, unless stated in calendar days." This change

in the method of computing deadlines means that 7-day deadlines

(such as that in subdivision (a)(4)) have been lengthened as a

practical matter. Under the new computation method, parties would

never have less than 9 actual days to reply to responses to

motions, and legal holidays could extend that period to as much as

13 days.

Permitting parties to take 9 or more days to reply to a response

to a motion would introduce significant and unwarranted delay into

appellate proceedings. For that reason, the 7-day deadline in

subdivision (a)(4) has been reduced to 5 days. This change will, as

a practical matter, ensure that every party will have 7 actual days

to file replies to responses to motions (in the absence of a legal

holiday).

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment or to the Committee Note.

Subdivision (d)(1)(B). A cover is not required on motions,

responses to motions, or replies to responses to motions. However,

Rule 27(d)(1)(B) has been amended to provide that if a cover is

nevertheless used on such a paper, the cover must be white. The

amendment is intended to promote uniformity in federal appellate

practice.

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment or to the Committee Note.

-End-

-CITE-

28 USC APPENDIX Rule 28 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 28. Briefs

-STATUTE-

(a) Appellant's Brief. The appellant's brief must contain, under

appropriate headings and in the order indicated:

(1) a corporate disclosure statement if required by Rule 26.1;

(2) a table of contents, with page references;

(3) a table of authorities - cases (alphabetically arranged),

statutes, and other authorities - with references to the pages of

the brief where they are cited;

(4) a jurisdictional statement, including:

(A) the basis for the district court's or agency's

subject-matter jurisdiction, with citations to applicable

statutory provisions and stating relevant facts establishing

jurisdiction;

(B) the basis for the court of appeals' jurisdiction, with

citations to applicable statutory provisions and stating

relevant facts establishing jurisdiction;

(C) the filing dates establishing the timeliness of the

appeal or petition for review; and

(D) an assertion that the appeal is from a final order or

judgment that disposes of all parties' claims, or information

establishing the court of appeals' jurisdiction on some other

basis;

(5) a statement of the issues presented for review;

(6) a statement of the case briefly indicating the nature of

the case, the course of proceedings, and the disposition below;

(7) a statement of facts relevant to the issues submitted for

review with appropriate references to the record (see Rule

28(e));

(8) a summary of the argument, which must contain a succinct,

clear, and accurate statement of the arguments made in the body

of the brief, and which must not merely repeat the argument

headings;

(9) the argument, which must contain:

(A) appellant's contentions and the reasons for them, with

citations to the authorities and parts of the record on which

the appellant relies; and

(B) for each issue, a concise statement of the applicable

standard of review (which may appear in the discussion of the

issue or under a separate heading placed before the discussion

of the issues);

(10) a short conclusion stating the precise relief sought; and

(11) the certificate of compliance, if required by Rule

32(a)(7).

(b) Appellee's Brief. The appellee's brief must conform to the

requirements of Rule 28(a)(1)-(9) and (11), except that none of the

following need appear unless the appellee is dissatisfied with the

appellant's statement:

(1) the jurisdictional statement;

(2) the statement of the issues;

(3) the statement of the case;

(4) the statement of the facts; and

(5) the statement of the standard of review.

(c) Reply Brief. The appellant may file a brief in reply to the

appellee's brief. An appellee who has cross-appealed may file a

brief in reply to the appellant's response to the issues presented

by the cross-appeal. 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) Briefs in a Case Involving a Cross-Appeal. If a cross-appeal

is filed, the party who files a notice of appeal first is the

appellant for the purposes of this rule and Rules 30, 31, 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 agreement of the parties or by court order. With

respect to appellee's cross-appeal and response to appellant's

brief, appellee's brief must conform to the requirements of Rule

28(a)(1)-(11). But an appellee who is satisfied with appellant's

statement need not include a statement of the case or of the facts.

(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.

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

This rule is based upon Supreme Court Rule 40. For variations in

present circuit rules on briefs see 2d Cir. Rule 17, 3d Cir. Rule

24, 5th Cir. Rule 24, and 7th Cir. Rule 17. All circuits now limit

the number of pages of briefs, a majority limiting the brief to 50

pages of standard typographic printing. Fifty pages of standard

typographic printing is the approximate equivalent of 70 pages of

typewritten text, given the page sizes required by Rule 32 and the

requirement set out there that text produced by a method other than

standard typographic must be double spaced.

NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT

The proposed amendment eliminates the distinction appearing in

the present rule between the permissible length in pages of printed

and typewritten briefs, investigation of the matter having

disclosed that the number of words on the printed page is little if

any larger than the number on a page typed in standard elite type.

The provision is made subject to local rule to permit the court

of appeals to require that typewritten briefs be typed in larger

type and permit a correspondingly larger number of pages.

Subdivision (j). Proposed new Rule 28(j) makes provision for

calling the court's attention to authorities that come to the

party's attention after the brief has been filed. It is patterned

after the practice under local rule in some of the circuits.

NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT

While Rule 28(g) can be read as requiring that tables of

authorities be included in a reply brief, such tables are often not

included. Their absence impedes efficient use of the reply brief to

ascertain the appellant's response to a particular argument of the

appellee or to the appellee's use of a particular authority. The

amendment to Rule 28(c) is intended to make it clear that such

tables are required in reply briefs.

The amendment to Rule 28(j) is technical. No substantive change

is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1989 AMENDMENT

The amendment provides that the corporate disclosure statement

required by new rule 26.1 shall be treated similarly to tables of

contents and tables of citations and shall not be counted for

purposes of the number of pages allowed in a brief.

NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT

Subdivision (a). The amendment adds a new subparagraph (2) that

requires an appellant to include a specific jurisdictional

statement in the appellant's brief to aid the court of appeals in

determining whether it has both federal subject matter and

appellate jurisdiction.

Subdivision (b). The amendment requires the appellee to include a

jurisdictional statement in the appellee's brief except that the

appellee need not include the statement if the appellee is

satisfied with the appellant's jurisdictional statement.

Subdivision (h). The amendment provides that when more than one

party appeals from a judgment or order, the party filing the first

appeal is normally treated as the appellant for purposes of this

rule and Rules 30 and 31. The party who first files an appeal

usually is the principal appellant and should be treated as such.

Parties who file a notice of appeal after the first notice often

bring protective appeals and they should be treated as cross

appellants. Local rules in the Fourth and Federal Circuits now take

that approach. If notices of appeal are filed on the same day, the

rule follows the old approach of treating the plaintiff below as

the appellant. For purposes of this rule, in criminal cases "the

plaintiff" means the United States. In those instances where the

designations provided by the rule are inappropriate, they may be

altered by agreement of the parties or by an order of the court.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Note to paragraph (a)(5). The amendment requires an appellant's

brief to state the standard of review applicable to each issue on

appeal. Five circuits currently require these statements.

Experience in those circuits indicates that requiring a statement

of the standard of review generally results in arguments that are

properly shaped in light of the standard.

NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT

Subdivision (a). The amendment adds a requirement that an

appellant's brief contain a summary of the argument. A number of

circuits have local rules requiring a summary and the courts report

that they find the summary useful. See, D.C. Cir. R. 11(a)(5); 5th

Cir. R. 28.2.2; 8th Cir. R. 28A(i)(6); 11th Cir. R. 28-2(i); and

Fed. Cir. R. 28.

Subdivision (b). The amendment adds a requirement that an

appellee's brief contain a summary of the argument.

Subdivision (g). The amendment adds proof of service to the list

of items in a brief that do not count for purposes of the page

limitation. The concurrent amendment to Rule 25(d) requires a

certificate of service to list the addresses to which a paper was

mailed or at which it was delivered. When a number of parties must

be served, the listing of addresses may run to several pages and

those pages should not count for purposes of the page limitation.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In additional to changes made to

improve the understanding, the Advisory Committee has changed

language to make style and terminology consistent throughout the

appellate rules. These changes are intended to be stylistic only.

Several substantive changes are made in this rule, however. Most

of them are necessary to conform Rule 28 with changes recommended

in Rule 32.

Subdivision (a). The current rule requires a brief to include a

statement of the case which includes a description of the nature of

the case, the course of proceedings, the disposition of the case -

all of which might be described as the procedural history - as well

as a statement of the facts. The amendments separate this into two

statements: one procedural, called the statement of the case; and

one factual, called the statement of the facts. The Advisory

Committee believes that the separation will be helpful to the

judges. The table of contents and table of authorities have also

been separated into two distinct items.

An additional amendment of subdivision (a) is made to conform it

with an amendment being made to Rule 32. Rule 32(a)(7) generally

requires a brief to include a certificate of compliance with

type-volume limitations contained in that rule. (No certificate is

required if a brief does not exceed 30 pages, or 15 pages for a

reply brief.) Rule 28(a) is amended to include that certificate in

the list of items that must be included in a brief whenever it is

required by Rule 32.

Subdivision (g). The amendments delete subdivision (g) that

limited a principal brief to 50 pages and a reply brief to 25

pages. The length limitations have been moved to Rule 32. Rule 32

deals generally with the format for a brief or appendix.

Subdivision (h). The amendment requires an appellee's brief to

comply with Rule 28(a)(1) through (11) with regard to a

cross-appeal. The addition of separate paragraphs requiring a

corporate disclosure statement, table of authorities, statement of

facts, and certificate of compliance increased the relevant

paragraphs of subdivision (a) from (7) to (11). The other changes

are stylistic; no substantive changes are intended.

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Subdivision (j). In the past, Rule 28(j) has required parties to

describe supplemental authorities "without argument." Enforcement

of this restriction has been lax, in part because of the difficulty

of distinguishing "state[ment] . . . [of] the reasons for the

supplemental citations," which is required, from "argument" about

the supplemental citations, which is forbidden.

As amended, Rule 28(j) continues to require parties to state the

reasons for supplemental citations, with reference to the part of a

brief or oral argument to which the supplemental citations pertain.

But Rule 28(j) no longer forbids "argument." Rather, Rule 28(j)

permits parties to decide for themselves what they wish to say

about supplemental authorities. The only restriction upon parties

is that the body of a Rule 28(j) letter - that is, the part of the

letter that begins with the first word after the salutation and

ends with the last word before the complimentary close - cannot

exceed 350 words. All words found in footnotes will count toward

the 350-word limit.

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment or to the Committee Note,

except that the word limit was increased from 250 to 350 in

response to the complaint of some commentators that parties would

have difficulty bringing multiple supplemental authorities to the

attention of the court in one 250-word letter.

-End-

-CITE-

28 USC APPENDIX Rule 29 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 29. Brief of an Amicus Curiae

-STATUTE-

(a) When Permitted. The United States or its officer or agency,

or a State, Territory, Commonwealth, or the District of Columbia

may file an amicus-curiae brief without the consent of the parties

or leave of court. Any other amicus curiae may file a brief only by

leave of court or if the brief states that all parties have

consented to its filing.

(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. If an amicus curiae is a

corporation, the brief must include a disclosure statement like

that required of parties by Rule 26.1. An amicus brief need not

comply with Rule 28, but must include the following:

(1) a table of contents, with page references;

(2) a table of authorities - cases (alphabetically arranged),

statutes and other authorities - with references to the pages of

the brief where they are cited;

(3) a concise statement of the identity of the amicus curiae,

its interest in the case, and the source of its authority to

file;

(4) an argument, which may be preceded by a summary and which

need not include a statement of the applicable standard of

review; and

(5) a certificate of compliance, if required by Rule 32(a)(7).

(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.

-SOURCE-

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

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

Only five circuits presently regulate the filing of the brief of

an amicus curiae. See D.C. Cir. Rule 18(j); 1st Cir. Rule 23(10);

6th Cir. Rule 17(4); 9th Cir. Rule 18(9); 10th Cir. Rule 20. This

rule follows the practice of a majority of circuits in requiring

leave of court to file an amicus brief except under the

circumstances stated therein. Compare Supreme Court Rule 42.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

Several substantive changes are made in this rule, however.

Subdivision (a). The major change in this subpart is that when a

brief is filed with the consent of all parties, it is no longer

necessary to obtain the parties' written consent and to file the

consents with the brief. It is sufficient to obtain the parties'

oral consent and to state in the brief that all parties have

consented. It is sometimes difficult to obtain all the written

consents by the filing deadline and it is not unusual for counsel

to represent that parties have consented; for example, in a motion

for extension of time to file a brief it is not unusual for the

movant to state that the other parties have been consulted and they

do not object to the extension. If a party's consent has been

misrepresented, the party will be able to take action before the

court considers the amicus brief.

The District of Columbia is added to the list of entities allowed

to file an amicus brief without consent of all parties. The other

changes in this material are stylistic.

Subdivision (b). The provision in the former rule, granting

permission to conditionally file the brief with the motion, is

changed to one requiring that the brief accompany the motion. Sup.

Ct. R. 37.4 requires that the proposed brief be presented with the

motion.

The former rule only required the motion to identify the

applicant's interest and to generally state the reasons why an

amicus brief is desirable. The amended rule additionally requires

that the motion state the relevance of the matters asserted to the

disposition of the case. As Sup. Ct. R. 37.1 states:

An amicus curiae brief which brings relevant matter to the

attention of the Court that has not already been brought to its

attention by the parties is of considerable help to the Court. An

amicus curiae brief which does not serve this purpose simply

burdens the staff and facilities of the Court and its filing is

not favored.

Because the relevance of the matters asserted by an amicus is

ordinarily the most compelling reason for granting leave to file,

the Committee believes that it is helpful to explicitly require

such a showing.

Subdivision (c). The provisions in this subdivision are entirely

new. Previously there was confusion as to whether an amicus brief

must include all of the items listed in Rule 28. Out of caution

practitioners in some circuits included all those items. Ordinarily

that is unnecessary.

The requirement that the cover identify the party supported and

indicate whether the amicus supports affirmance or reversal is an

administrative aid.

Paragraph (c)(3) requires an amicus to state the source of its

authority to file. The amicus simply must identify which of the

provisions in Rule 29(a) provides the basis for the amicus to file

its brief.

Subdivision (d). This new provision imposes a shorter page limit

for an amicus brief than for a party's brief. This is appropriate

for two reasons. First, an amicus may omit certain items that must

be included in a party's brief. Second, an amicus brief is

supplemental. It need not address all issues or all facets of a

case. It should treat only matter not adequately addressed by a

party.

Subdivision (e). The time limit for filing is changed. An amicus

brief must be filed no later than 7 days after the principal brief

of the party being supported is filed. Occasionally, an amicus

supports neither party; in such instances, the amendment provides

that the amicus brief must be filed no later than 7 days after the

appellant's or petitioner's principal brief is filed. Note that in

both instances the 7-day period runs from when a brief is filed.

The passive voice - "is filed" - is used deliberately. A party or

amicus can send its brief to a court for filing and, under Rule 25,

the brief is timely if mailed within the filing period. Although

the brief is timely if mailed within the filing period, it is not

"filed" until the court receives it and file stamps it. "Filing" is

done by the court, not by the party. It may be necessary for an

amicus to contact the court to ascertain the filing date.

The 7-day stagger was adopted because it is long enough to permit

an amicus to review the completed brief of the party being

supported and avoid repetitious argument. A 7-day period also is

short enough that no adjustment need be made in the opposing

party's briefing schedule. The opposing party will have sufficient

time to review arguments made by the amicus and address them in the

party's responsive pleading. The timetable for filing the parties'

briefs is unaffected by this change.

A court may grant permission to file an amicus brief in a context

in which the party does not file a "principal brief"; for example,

an amicus may be permitted to file in support of a party's petition

for rehearing. In such instances the court will establish the

filing time for the amicus.

The former rule's statement that a court may, for cause shown,

grant leave for later filing is unnecessary. Rule 26(b) grants

general authority to enlarge the time prescribed in these rules for

good cause shown. This new rule, however, states that when a court

grants permission for later filing, the court must specify the

period within which an opposing party may answer the arguments of

the amicus.

Subdivision (f). This subdivision generally prohibits the filing

a a reply brief by an amicus curiae. Sup. Ct. R. 37 and local rules

of the D.C., Ninth, and Federal Circuits state that an amicus may

not file a reply brief. The role of an amicus should not require

the use of a reply brief.

Subdivision (g). The language of this subdivision stating that an

amicus will be granted permission to participate in oral argument

"only for extraordinary reasons" has been deleted. The change is

made to reflect more accurately the current practice in which it is

not unusual for a court to permit an amicus to argue when a party

is willing to share its argument time with the amicus. The

Committee does not intend, however, to suggest that in other

instances an amicus will be permitted to argue absent extraordinary

circumstances.

-End-

-CITE-

28 USC APPENDIX Rule 30 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 30. Appendix to the Briefs

-STATUTE-

(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 10 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 10 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.

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

Subdivision (a). Only two circuits presently require a printed

record (5th Cir. Rule 23(a); 8th Cir. Rule 10 (in civil appeals

only)), and the rules and practice in those circuits combine to

make the difference between a printed record and the appendix,

which is now used in eight circuits and in the Supreme Court in

lieu of the printed record, largely nominal. The essential

characteristics of the appendix method are: (1) the entire record

may not be reproduced; (2) instead, the parties are to set out in

an appendix to the briefs those parts of the record which in their

judgment the judges must consult in order to determine the issues

presented by the appeal; (3) the appendix is not the record but

merely a selection therefrom for the convenience of the judges of

the court of appeals; the record is the actual trial court record,

and the record itself is always available to supply inadvertent

omissions from the appendix. These essentials are incorporated,

either by rule or by practice, in the circuits that continue to

require the printed record rather than the appendix. See 5th Cir.

Rule 23(a)(9) and 8th Cir. Rule 10(a)-(d).

Subdivision (b). Under the practice in six of the eight circuits

which now use the appendix method, unless the parties agree to use

a single appendix, the appellant files with his brief an appendix

containing the parts of the record which he deems it essential that

the court read in order to determine the questions presented. If

the appellee deems additional parts of the record necessary he must

include such parts as an appendix to his brief. The proposed rules

differ from that practice. By the new rule a single appendix is to

be filed. It is to be prepared by the appellant, who must include

therein those parts which he deems essential and those which the

appellee designates as essential.

Under the practice by which each party files his own appendix the

resulting reproduction of essential parts of the record is often

fragmentary; it is not infrequently necessary to piece several

appendices together to arrive at a usable reproduction. Too, there

seems to be a tendency on the part of some appellants to reproduce

less than what is necessary for a determination of the issues

presented (see Moran Towing Corp. v. M. A. Gammino Construction

Co., 363 F.2d 108 (1st Cir. 1966); Walters v. Shari Music

Publishing Corp., 298 F.2d 206 (2d Cir. 1962) and cases cited

therein; Morrison v. Texas Co., 289 F.2d 382 (7th Cir. 1961) and

cases cited therein), a tendency which is doubtless encouraged by

the requirement in present rules that the appellee reproduce in his

separately prepared appendix such necessary parts of the record as

are not included by the appellant.

Under the proposed rule responsibility for the preparation of the

appendix is placed on the appellant. If the appellee feels that the

appellant has omitted essential portions of the record, he may

require the appellant to include such portions in the appendix. The

appellant is protected against a demand that he reproduce parts

which he considers unnecessary by the provisions entitling him to

require the appellee to advance the costs of reproducing such parts

and authorizing denial of costs for matter unnecessarily

reproduced.

Subdivision (c). This subdivision permits the appellant to elect

to defer the production of the appendix to the briefs until the

briefs of both sides are written, and authorizes a court of appeals

to require such deferred filing by rule or order. The advantage of

this method of preparing the appendix is that it permits the

parties to determine what parts of the record need to be reproduced

in the light of the issues actually presented by the briefs. Often

neither side is in a position to say precisely what is needed until

the briefs are completed. Once the argument on both sides is known,

it should be possible to confine the matter reproduced in the

appendix to that which is essential to a determination of the

appeal or review. This method of preparing the appendix is

presently in use in the Tenth Circuit (Rule 17) and in other

circuits in review of agency proceedings, and it has proven its

value in reducing the volume required to be reproduced. When the

record is long, use of this method is likely to result in

substantial economy to the parties.

Subdivision (e). The purpose of this subdivision is to reduce the

cost of reproducing exhibits. While subdivision (a) requires that

10 copies of the appendix be filed, unless the court requires a

lesser number, subdivision (e) permits exhibits necessary for the

determination of an appeal to be bound separately, and requires

only 4 copies of such a separate volume or volumes to be filed and

a single copy to be served on counsel.

Subdivision (f). This subdivision authorizes a court of appeals

to dispense with the appendix method of reproducing parts of the

record and to hear appeals on the original record and such copies

of it as the court may require.

Since 1962 the Ninth Circuit has permitted all appeals to be

heard on the original record and a very limited number of copies.

Under the practice as adopted in 1962, any party to an appeal could

elect to have the appeal heard on the original record and two

copies thereof rather than on the printed record theretofore

required. The resulting substantial saving of printing costs led to

the election of the new practice in virtually all cases, and by

1967 the use of printed records had ceased. By a recent amendment,

the Ninth Circuit has abolished the printed record altogether. Its

rules now provide that all appeals are to be heard on the original

record, and it has reduced the number of copies required to two

sets of copies of the transmitted original papers (excluding copies

of exhibits, which need not be filed unless specifically ordered).

See 9 Cir. Rule 10, as amended June 2, 1967, effective September 1,

1967. The Eighth Circuit permits appeals in criminal cases and in

habeas corpus and 28 U.S.C. Sec. 2255 proceedings to be heard on

the original record and two copies thereof. See 8 Cir. Rule 8

(i)-(j). The Tenth Circuit permits appeals in all cases to be heard

on the original record and four copies thereof whenever the record

consists of two hundred pages or less. See 10 Cir. Rule 17(a). This

subdivision expressly authorizes the continuation of the practices

in the Eighth, Ninth and Tenth Circuits.

The judges of the Court of Appeals for the Ninth Circuit have

expressed complete satisfaction with the practice there in use and

have suggested that attention be called to the advantages which it

offers in terms of reducing cost.

NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT

Subdivision (a). The amendment of subdivision (a) is related to

the amendment of Rule 31(a), which authorizes a court of appeals to

shorten the time for filing briefs. By virtue of this amendment, if

the time for filing the brief of the appellant is shortened the

time for filing the appendix is likewise shortened.

Subdivision (c). As originally written, subdivision (c) permitted

the appellant to elect to defer filing of the appendix until 21

days after service of the brief of the appellee. As amended,

subdivision (c) requires that an order of court be obtained before

filing of the appendix can be deferred, unless a court permits

deferred filing by local rule. The amendment should not cause use

of the deferred appendix to be viewed with disfavor. In cases

involving lengthy records, permission to defer filing of the

appendix should be freely granted as an inducement to the parties

to include in the appendix only matter that the briefs show to be

necessary for consideration by the judges. But the Committee is

advised that appellants have elected to defer filing of the

appendix in cases involving brief records merely to obtain the 21

day delay. The subdivision is amended to prevent that practice.

NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT

Subdivision (a). During its study of the separate appendix [see

Report on the Advisory Committee on the Federal Appellate Rules on

the Operation of Rule 30, - FRD - (1985)], the Advisory

Committee found that this document was frequently encumbered with

memoranda submitted to the trial court. United States v. Noall, 587

F.2d 123, 125 n. 1 (2nd Cir. 1978). See generally Drewett v. Aetna

Cas. & Sur. Co., 539 F.2d 496, 500 (5th Cir. 1976); Volkswagenwerk

Aktiengesellschaft v. Church, 413 F.2d 1126, 1128 (9th Cir. 1969).

Inclusion of such material makes the appendix more bulky and

therefore less useful to the appellate panel. It also can increase

significantly the costs of litigation.

There are occasions when such trial court memoranda have

independent relevance in the appellate litigation. For instance,

there may be a dispute as to whether a particular point was raised

or whether a concession was made in the district court. In such

circumstances, it is appropriate to include pertinent sections of

such memoranda in the appendix.

Subdivision (b). The amendment to subdivision (b) is designed to

require the circuits, by local rule, to establish a procedural

mechanism for the imposition of sanctions against those attorneys

who conduct appellate litigation in bad faith. Both 28 U.S.C. Sec.

1927 and the inherent power of the court authorized such sanctions.

See Brennan v. Local 357, International Brotherhood of Teamsters,

709 F.2d 611 (9th Cir. 1983). See generally Roadway Express, Inc.

v. Piper, 447 U.S. 752 (1980). While considerations of uniformity

are important and doubtless will be taken into account by the

judges of the respective circuits, the Advisory Committee believes

that, at this time, the circuits need the flexibility to tailor

their approach to the conditions of local practice. The local rule

shall provide for notice and opportunity to respond before the

imposition of any sanction.

Technical amendments also are made to subdivisions (a), (b) and

(c) which are not intended to be substantive changes.

TAXATION OF FEES IN APPEALS IN WHICH THE REQUIREMENT OF AN APPENDIX

IS DISPENSED WITH

The Judicial Conference of the United States at its session on

October 28th and 29th approved the following resolution relating to

fees to be taxed in the courts of appeals as submitted by the

Judicial Council of the Ninth Circuit with the proviso that its

application to any court of appeals shall be at the election of

each such court:

For some time it has been the practice in the Ninth Circuit Court

of Appeals to dispense with an appendix in an appellate record and

to hear the appeal on the original record, with a number of copies

thereof being supplied (Rule 30f, Federal Rules of Appellate

Procedure). It has been the practice of the Court to tax a fee of

$5 in small records and $10 in large records for the time of the

clerk involved in preparing such appeals and by way of

reimbursement for postage expense. Judicial Conference approval

heretofore has not been secured and the Judicial Council of the

Ninth Circuit now seeks to fix a flat fee of $15 to be charged as

fees for costs to be charged by any court of appeals "in any appeal

in which the requirement of an appendix is dispensed with pursuant

to Rule 30f, Federal Rules of Appellate Procedure."

NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT

Subdivision (b). The amendment requires a cross appellant to

serve the appellant with a statement of the issues that the cross

appellant intends to pursue on appeal. No later than ten days after

the record is filed, the appellant and cross appellant must serve

each other with a statement of the issues each intends to present

for review and with a designation of the parts of the record that

each wants included in the appendix. Within the next ten days, both

the appellee and the cross appellee may designate additional

materials for inclusion in the appendix. The appellant must then

include in the appendix the parts thus designated for both the

appeal and any cross appeals. The Committee expects that

simultaneous compliance with this subdivision by an appellant and a

cross appellant will be feasible in most cases. If a cross

appellant cannot fairly be expected to comply until receipt of the

appellant's statement of issues, relief may be sought by motion in

the court of appeals.

NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT

Subdivision (a). The only substantive change is to allow a court

to require the filing of a greater number of copies of an appendix

as well as a lesser number.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

Subdivision (a). Paragraph (a)(3) is amended so that it is

consistent with Rule 31(b). An unrepresented party proceeding in

forma pauperis is only required to file 4 copies of the appendix

rather than 10.

Subdivision (c). When a deferred appendix is used, a brief must

make reference to the original record rather than to the appendix

because it does not exist when the briefs are prepared. Unless a

party later files an amended brief with direct references to the

pages of the appendix (as provided in subparagraph (c)(2)(B)), the

material in the appendix must indicate the pages of the original

record from which it was drawn so that a reader of the brief can

make meaningful use of the appendix. The instructions in the

current rule for cross-referencing the appendix materials to the

original record are unclear. The language in paragraph (c)(2) has

been amended to try to clarify the procedure.

Subdivision (d). In recognition of the fact that use of a typeset

appendix is exceedingly rare in the courts of appeals, the last

sentence - permitting a question and answer (as from a transcript)

to be in a single paragraph - has been omitted.

-End-

-CITE-

28 USC APPENDIX Rule 31 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 31. Serving and Filing Briefs

-STATUTE-

(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 3 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.

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

A majority of the circuits now require the brief of the appellant

to be filed within 30 days from the date on which the record is

filed. But in those circuits an exchange of designations is

unnecessary in the preparation of the appendix. The appellant files

with his brief an appendix containing the parts of the record which

he deems essential. If the appellee considers other parts

essential, he includes those parts in his own appendix. Since the

proposed rule requires the appellant to file with his brief an

appendix containing necessary parts of the record as designated by

both parties, the rule allows the appellant 40 days in order to

provide time for the exchange of designations respecting the

content of the appendix (see Rule 30(b)).

NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT

The time prescribed by Rule 31(a) for preparing briefs - 40 days

to the appellant, 30 days to the appellee - is well within the time

that must ordinarily elapse in most circuits before an appeal can

be reached for consideration. In those circuits, the time

prescribed by the Rule should not be disturbed. But if a court of

appeals maintains a current calendar, that is, if an appeal can be

heard as soon as the briefs have been filed, or if the practice of

the court permits the submission of appeals for preliminary

consideration as soon as the briefs have been filed, the court

should be free to prescribe shorter periods in the interest of

expediting decision.

NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT

The amendments to Rules 31(a) and (c) are technical. No

substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT

Subdivision (b). The amendment allows a court of appeals to

require the filing of a greater, as well as a lesser, number of

copies of briefs. The amendment also allows the required number to

be prescribed by local rule as well as by order in a particular

case.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only; a

substantive change is made, however, in subdivision (b).

Subdivision (a). Paragraph (a)(2) explicitly authorizes a court

of appeals to shorten a briefing schedule if the court routinely

considers cases on the merits promptly after the briefs are filed.

Extensions of the briefing schedule, by order, are permitted under

the general provisions of Rule 26(b).

Subdivision (b). The current rule says that a party who is

permitted to file "typewritten ribbon and carbon copies of the

brief" need only file an original and three copies of the brief.

The quoted language, in conjunction with current rule 24(c), means

that a party allowed to proceed in forma pauperis need not file 25

copies of the brief. Two changes are made in this subdivision.

First, it is anachronistic to refer to a party who is allowed to

file a typewritten brief as if that would distinguish the party

from all other parties; any party is permitted to file a

typewritten brief. The amended rule states directly that it applies

to a party permitted to proceed in forma pauperis. Second, the

amended rule does not generally permit parties who are represented

by counsel to file the lesser number of briefs. Inexpensive methods

of copying are generally available. Unless it would impose

hardship, in which case a motion to file a lesser number should be

filed, a represented party must file the usual number of briefs.

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Subdivision (b). In requiring that two copies of each brief "must

be served on counsel for each separately represented party," Rule

31(b) may be read to imply that copies of briefs need not be served

on unrepresented parties. The Rule has been amended to clarify that

briefs must be served on all parties, including those who are not

represented by counsel.

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment or to the Committee Note.

-End-

-CITE-

28 USC APPENDIX Rule 32 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

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

-STATUTE-

(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 Rule 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 Rule

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.

-SOURCE-

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

Dec. 1, 2002.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

Only two methods of printing are now generally recognized by the

circuits - standard typographic printing and the offset duplicating

process (multilith). A third, mimeographing, is permitted in the

Fifth Circuit. The District of Columbia, Ninth, and Tenth Circuits

permit records to be reproduced by copying processes. The Committee

feels that recent and impending advances in the arts of duplicating

and copying warrant experimentation with less costly forms of

reproduction than those now generally authorized. The proposed rule

permits, in effect, the use of any process other than the carbon

copy process which produces a clean, readable page. What

constitutes such is left in first instance to the parties and

ultimately to the court to determine. The final sentence of the

first paragraph of subdivision (a) is added to allow the use of

multilith, mimeograph, or other forms of copies of the reporter's

original transcript whenever such are available.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

In addition to amending Rule 32 to conform to uniform drafting

standards, several substantive amendments are made. The Advisory

Committee had been working on substantive amendments to Rule 32 for

some time prior to completion of this larger project.

Subdivison (a). Form of a Brief.

Paragraph (a)(1). Reproduction.

The rule permits the use of "light" paper, not just "white"

paper. Cream and buff colored paper, including recycled paper, are

acceptable. The rule permits printing on only one side of the

paper. Although some argue that paper could be saved by allowing

double-sided printing, others argue that in order to preserve

legibility a heavier weight paper would be needed, resulting in

little, if any, paper saving. In addition, the blank sides of a

brief are commonly used by judges and their clerks for making notes

about the case.

Because photocopying is inexpensive and widely available and

because use of carbon paper is now very rare, all references to the

use of carbon copies have been deleted.

The rule requires that the text be reproduced with a clarity that

equals or exceeds the output of a laser printer. That means that

the method used must have a print resolution of 300 dots per inch

(dpi) or more. This will ensure the legibility of the brief. A

brief produced by a typewriter or a daisy wheel printer, as well as

one produced by a laser printer, has a print resolution of 300 dpi

or more. But a brief produced by a dot-matrix printer, fax machine,

or portable printer that uses heat or dye transfer methods does

not. Some ink jet printers are 300 dpi or more, but some are 216

dpi and would not be sufficient.

Photographs, illustrations, and tables may be reproduced by any

method that results in a good copy.

Paragraph (a)(2). Cover.

The rule requires that the number of the case be centered at the

top of the front cover of a brief. This will aid in identification

of the brief. The idea was drawn from a local rule. The rule also

requires that the title of the brief identify the party or parties

on whose behalf the brief is filed. When there are multiple

appellants or appellees, the information is necessary to the court.

If, however, the brief is filed on behalf of all appellants or

appellees, it may so indicate. Further, it may be possible to

identify the class of parties on whose behalf the brief is filed.

Otherwise, it may be necessary to name each party. The rule also

requires that attorney's telephone numbers appear on the front

cover of a brief or appendix.

Paragraph (a)(3). Binding.

The rule requires a brief to be bound in any manner that is

secure, does not obscure the text, and that permits the brief to

lie reasonably flat when open. Many judges and most court employees

do much of their work at computer keyboards and a brief that lies

flat when open is significantly more convenient. One circuit

already has such a requirement and another states a preference for

it. While a spiral binding would comply with this requirement, it

is not intended to be the exclusive method of binding. Stapling a

brief at the upper left-hand corner also satisfies this requirement

as long as it is sufficiently secure.

Paragraph (a)(4). Paper Size, Line Spacing, and Margins.

The provisions for pamphlet-size briefs are deleted because their

use is so rare. If a circuit wishes to authorize their use, it has

authority to do so under subdivision (d) of this rule.

Paragraph (a)(5). Typeface.

This paragraph and the next one, governing type style, are new.

The existing rule simply states that a brief produced by the

standard typographic process must be printed in at least 11 point

type, or if produced in any other manner, the lines of text must be

double spaced. Today few briefs are produced by commercial printers

or by typewriters; most are produced on and printed by computer.

The availability of computer fonts in a variety of sizes and styles

has given rise to local rules limiting type styles. The Advisory

Committee believes that some standards are needed both to ensure

that all litigants have an equal opportunity to present their

material and to ensure that the briefs are easily legible.

With regard to typeface there are two options:

proportionally-spaced typeface or monospaced typeface.

A proportionally-spaced typeface gives a different amount of

horizontal space to characters depending upon the width of the

character. A capital "M" is given more horizontal space than a

lower case "i." The rule requires that a proportionally-spaced

typeface have serifs. Serifs are small horizontal or vertical

strokes at the ends of the lines that make up the letters and

numbers. Studies have shown that long passages of serif type are

easier to read and comprehend than long passages of sans-serif

type. The rule accordingly limits the principal sections of

submissions to serif type, although sans-serif type may be used in

headings and captions. This is the same approach magazines,

newspapers, and commercial printers take. Look at a professionally

printed brief; you will find sans-serif type confined to captions,

if it is used at all. The next line shows two characters enlarged

for detail. The first has serifs, the second does not.

Y ----- Y

So that the type is easily legible, the rule requires a minimum

type size of 14 points for proportionally-spaced typeface.

A monospaced typeface is one in which all characters have the

same advance width. That means that each character is given the

same horizontal space on the line. A wide letter such as a capital

"M" and a narrow letter such as a lower case "i" are given the same

space. Most typewriters produce mono-spaced type, and most

computers also can do so using fonts with names such as "Courier."

This sentence is in a proportionally spaced font; as you can see,

the m and i have different widths.

g077This sentence is in a monospaced font; as you can see, the m

and i have the same width.

The rule requires use of a monospaced typeface that produces no

more than 10 1/2 characters per inch. A standard typewriter with

pica type produces a monospaced typeface with 10 characters per

inch (cpi). That is the ideal monospaced typeface. The rule permits

up to 10 1/2 cpi because some computer software programs contain

monospaced fonts that purport to produce 10 cpi but that in fact

produce slightly more than 10 cpi. In order to avoid the need to

reprint a brief produced in good faith reliance upon such a

program, the rule permits a bit of leeway. A monospace typeface

with no more than 10 cpi is preferred.

Paragraph (a)(6). Type Styles.

The rule requires use of plain roman, that is not italic or

script, type. Italics and boldface may be used for emphasis.

Italicizing case names is preferred but underlining may be used.

Paragraph (a)(7). Type-Volume Limitation.

Subparagraph (a)(7)(A) contains a safe-harbor provision. A

principal brief that does not exceed 30 pages complies with the

type-volume limitation without further question or certification. A

reply brief that does not exceed 15 pages is similarly treated. The

current limit is 50 pages but that limit was established when most

briefs were produced on typewriters. The widespread use of personal

computers has made a multitude of printing options available to

practitioners. Use of a proportional typeface alone can greatly

increase the amount of material per page as compared with use of a

monospace typeface. Even though the rule requires use of 14-point

proportional type, there is great variation in the x-height of

different 14-point typefaces. Selection of a typeface with a small

x-height increases the amount of text per page. Computers also make

possible fine gradations in spacing between lines and tight

tracking between letters and words. All of this, and more, have

made the 50-page limit virtually meaningless. Establishing a

safe-harbor of 50 pages would permit a person who makes use of the

multitude of printing "tricks" available with most personal

computers to file a brief far longer than the "old" 50-page brief.

Therefore, as to those briefs not subject to any other volume

control than a page limit, a 30-page limit is imposed.

The limits in subparagraph (B) approximate the current 50-page

limit and compliance with them is easy even for a person without a

personal computer. The aim of these provisions is to create a level

playing field. The rule gives every party an equal opportunity to

make arguments, without permitting those with the best in-house

typesetting an opportunity to expand their submissions.

The length can be determined either by counting words or lines.

That is, the length of a brief is determined not by the number of

pages but by the number of words or lines in the brief. This gives

every party the same opportunity to present an argument without

regard to the typeface used and eliminates any incentive to use

footnotes or typographical "tricks" to squeeze more material onto a

page.

The word counting method can be used with any typeface.

A monospaced brief can meet the volume limitation by using the

word or a line count. If the line counting method is used, the

number of lines may not exceed 1,300 - 26 lines per page in a

50-page brief. The number of lines is easily counted manually. Line

counting is not sufficient if a proportionally spaced typeface is

used, because the amount of material per line can vary widely.

A brief using the type-volume limitations in subparagraph (B)

must include a certificate by the attorney, or party proceeding pro

se, that the brief complies with the limitation. The rule permits

the person preparing the certification to rely upon the word or

line count of the word-processing system used to prepare the brief.

Currently, Rule 28(g) governs the length of a brief. Rule 28(g)

begins with the words "[e]xcept by permission of the court,"

signaling that a party may file a motion to exceed the limits

established in the rule. The absence of similar language in Rule 32

does not mean that the Advisory Committee intends to prohibit

motions to deviate from the requirements of the rule. The Advisory

Committee does not believe that any such language is needed to

authorize such a motion.

Subdivision (b). Form of an Appendix.

The provisions governing the form of a brief generally apply to

an appendix. The rule recognizes, however, that an appendix is

usually produced by photocopying existing documents. The rule

requires that the photocopies be legible.

The rule permits inclusion not only of documents from the record

but also copies of a printed judicial or agency decision. If a

decision that is part of the record in the case has been published,

it is helpful to provide a copy of the published decision in place

of a copy of the decision from the record.

Subdivision (c). Form of Other Papers.

The old rule required a petition for rehearing to be produced in

the same manner as a brief or appendix. The new rule also requires

that a petition for rehearing en banc and a response to either a

petition for panel rehearing or a petition for rehearing en banc be

prepared in the same manner. But the length limitations of

paragraph (a)(7) do not apply to those documents and a cover is not

required if all the information needed by the court to properly

identify the document and the parties is included in the caption or

signature page.

Existing subdivision (b) states that other papers may be produced

in like manner, or "they may be typewritten upon opaque, unglazed

paper 8 1/2 by 11 inches in size." The quoted language is deleted

but that method of preparing documents is not eliminated because

(a)(5)(B) permits use of standard pica type. The only change is

that the new rule now specifies margins for typewritten documents.

Subdivision (d). Local Variation.

A brief that complies with the national rule should be acceptable

in every court. Local rules may move in one direction only; they

may authorize noncompliance with certain of the national norms. For

example, a court that wishes to do so may authorize printing of

briefs on both sides of the paper, or the use of smaller type size

or sans-serif proportional type. A local rule may not, however,

impose requirements that are not in the national rule.

-MISC2-

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Subdivision (a)(2). On occasion, a court may permit or order the

parties to file supplemental briefs addressing an issue that was

not addressed - or adequately addressed - in the principal briefs.

Rule 32(a)(2) has been amended to require that tan covers be used

on such supplemental briefs. The amendment is intended to promote

uniformity in federal appellate practice. At present, the local

rules of the circuit courts conflict. See, e.g., D.C. Cir. R. 28(g)

(requiring yellow covers on supplemental briefs); 11th Cir. R. 32,

I.O.P. 1 (requiring white covers on supplemental briefs).

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment or to the Committee Note.

Subdivision (a)(7)(C). If the principal brief of a party exceeds

30 pages, or if the reply brief of a party exceeds 15 pages, Rule

32(a)(7)(C) provides that the party or the party's attorney must

certify that the brief complies with the type-volume limitation of

Rule 32(a)(7)(B). Rule 32(a)(7)(C) has been amended to refer to

Form 6 (which has been added to the Appendix of Forms) and to

provide that a party or attorney who uses Form 6 has complied with

Rule 32(a)(7)(C). No court may provide to the contrary, in its

local rules or otherwise.

Form 6 requests not only the information mandated by Rule

32(a)(7)(C), but also information that will assist courts in

enforcing the typeface requirements of Rule 32(a)(5) and the type

style requirements of Rule 32(a)(6). Parties and attorneys are not

required to use Form 6, but they are encouraged to do so.

Subdivision (c)(2)(A). Under Rule 32(c)(2)(A), a cover is not

required on a petition for panel rehearing, petition for hearing or

rehearing en banc, answer to a petition for panel rehearing,

response to a petition for hearing or rehearing en banc, or any

other paper. Rule 32(d) makes it clear that no court can require

that a cover be used on any of these papers. However, nothing

prohibits a court from providing in its local rules that if a cover

on one of these papers is "voluntarily" used, it must be a

particular color. Several circuits have adopted such local rules.

See, e.g., Fed. Cir. R. 35(c) (requiring yellow covers on petitions

for hearing or rehearing en banc and brown covers on responses to

such petitions); Fed. Cir. R. 40(a) (requiring yellow covers on

petitions for panel rehearing and brown covers on answers to such

petitions); 7th Cir. R. 28 (requiring blue covers on petitions for

rehearing filed by appellants or answers to such petitions, and

requiring red covers on petitions for rehearing filed by appellees

or answers to such petitions); 9th Cir. R. 40-1 (requiring blue

covers on petitions for panel rehearing filed by appellants and red

covers on answers to such petitions, and requiring red covers on

petitions for panel rehearing filed by appellees and blue covers on

answers to such petitions); 11th Cir. R. 35-6 (requiring white

covers on petitions for hearing or rehearing en banc).

These conflicting local rules create a hardship for counsel who

practice in more than one circuit. For that reason, Rule

32(c)(2)(A) has been amended to provide that if a party chooses to

use a cover on a paper that is not required to have one, that cover

must be white. The amendment is intended to preempt all local

rulemaking on the subject of cover colors and thereby promote

uniformity in federal appellate practice.

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment or to the Committee Note.

Subdivisions (d) and (e). Former subdivision (d) has been

redesignated as subdivision (e), and a new subdivision (d) has been

added. The new subdivision (d) requires that every brief, motion,

or other paper filed with the court be signed by the attorney or

unrepresented party who files it, much as Fed. R. Civ. P. 11(a)

imposes a signature requirement on papers filed in district court.

Only the original copy of every paper must be signed. An appendix

filed with the court does not have to be signed at all.

By requiring a signature, subdivision (d) ensures that a readily

identifiable attorney or party takes responsibility for every

paper. The courts of appeals already have authority to sanction

attorneys and parties who file papers that contain misleading or

frivolous assertions, see, e.g., 28 U.S.C. Sec. 1912, Fed. R. App.

P. 38 & 46(b)(1)(B), and thus subdivision (d) has not been amended

to incorporate provisions similar to those found in Fed. R. Civ. P.

11(b) and 11(c).

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment. A line was added to the

Committee Note to clarify that only the original copy of a paper

needs to be signed.

-End-

-CITE-

28 USC APPENDIX Rule 33 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 33. Appeal Conferences

-STATUTE-

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.

-SOURCE-

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

Dec. 1, 1998.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

The uniform rule for review or enforcement of orders of

administrative agencies, boards, commissions or officers (see the

general note following Rule 15) authorizes a prehearing conference

in agency review proceedings. The same considerations which make a

prehearing conference desirable in such proceedings may be present

in certain cases on appeal from the district courts. The proposed

rule is based upon subdivision 11 of the present uniform rule for

review of agency orders.

NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT

Rule 33 has been entirely rewritten. The new rule makes several

changes.

The caption of the rule has been changed from "Prehearing

Conference" to "Appeal Conferences" to reflect the fact that

occasionally a conference is held after oral argument.

The rule permits the court to require the parties to attend the

conference in appropriate cases. The Committee does not contemplate

that attendance of the parties will become routine, but in certain

instances the parties' presence can be useful. The language of the

rule is broad enough to allow a court to determine that an

executive or employee (other than the general counsel) of a

corporation or government agency with authority regarding the

matter at issue, constitutes "the party."

The rule includes the possibility of settlement among the

possible conference topics.

The rule recognizes that conferences are often held by telephone.

The rule allows a judge or other person designated by the court

to preside over a conference. A number of local rules permit

persons other than judges to preside over conferences. 1st Cir. R.

47.5; 6th Cir. R. 18; 8th Cir. R. 33A; 9th Cir. R. 33-1; and 10th

Cir. R. 33.

The rule requires an attorney to consult with his or her client

before a settlement conference and obtain as much authority as

feasible to settle the case. An attorney can never settle a case

without his or her client's consent. Certain entities, especially

government entities, have particular difficulty obtaining authority

to settle a case. The rule requires counsel to obtain only as much

authority "as feasible."

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language of the rule is amended to make the rule more easily

understood. In addition to changes made to improve the

understanding, the Advisory Committee has changed language to make

style and terminology consistent throughout the appellate rules.

These changes are intended to be stylistic only.

-End-

-CITE-

28 USC APPENDIX Rule 34 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 34. Oral Argument

-STATUTE-

(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(h) 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.

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

A majority of circuits now limit oral argument to thirty minutes

for each side, with the provision that additional time may be made

available upon request. The Committee is of the view that thirty

minutes to each side is sufficient in most cases, but that where

additional time is necessary it should be freely granted on a

proper showing of cause therefor. It further feels that the matter

of time should be left ultimately to each court of appeals, subject

to the spirit of the rule that a reasonable time should be allowed

for argument. The term "side" is used to indicate that the time

allowed by the rule is afforded to opposing interests rather than

to individual parties. Thus if multiple appellants or appellees

have a common interest, they constitute only a single side. If

counsel for multiple parties who constitute a single side feel that

additional time is necessary, they may request it. In other

particulars this rule follows the usual practice among the

circuits. See 3d Cir. Rule 31; 6th Cir. Rule 20; 10th Cir. Rule 23.

NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT

The proposed amendment, patterned after the recommendations in

the Report of the Commission on Revision of the Federal Court

Appellate System, Structure and Internal Procedures:

Recommendations for Change, 1975, created by Public Law 489 of the

92nd Cong. 2nd Sess., 86 Stat. 807, sets forth general principles

and minimum standards to be observed in formulating any local rule.

NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT

The amendments to Rules 34(a) and (e) are technical. No

substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT

Subdivision (d). The amendment of subdivision (d) conforms this

rule with the amendment of Rule 28(h).

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

Subdivision (c). The amendment deletes the requirement that the

opening argument must include a fair statement of the case. The

Committee proposed the change because in some circuits the court

does not want appellants to give such statements. In those

circuits, the rule is not followed and is misleading. Nevertheless,

the Committee does not want the deletion of the requirement to

indicate disapproval of the practice. Those circuits that desire a

statement of the case may continue the practice.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language of the rule is amended to make the rule more easily

understood. In addition to changes made to improve the

understanding, the Advisory Committee has changed language to make

style and terminology consistent throughout the appellate rules.

These changes are intended to be stylistic only. Substantive

changes are made in subdivision (a).

Subdivision (a). Currently subdivision (a) says that oral

argument must be permitted unless, applying a local rule, a panel

of three judges unanimously agrees that oral argument is not

necessary. Rule 34 then outlines the criteria to be used to

determine whether oral argument is needed and requires any local

rule to "conform substantially" to the "minimum standard[s]"

established in the national rule. The amendments omit the local

rule requirement and make the criteria applicable by force of the

national rule. The local rule is an unnecessary instrument.

Paragraph (a)(2) states that one reason for deciding that oral

argument is unnecessary is that the dispositive issue has been

authoritatively decided. The amended language no longer states that

the issue must have been "recently" decided. The Advisory Committee

does not intend any substantive change, but thinks that the use of

"recently" may be misleading.

Subdivision (d). A cross-reference to Rule 28(h) has been

substituted for a reiteration of the provisions of Rule 28(h).

-End-

-CITE-

28 USC APPENDIX Rule 35 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 35. En Banc Determination

-STATUTE-

(a) When Hearing or Rehearing En Banc May Be Ordered. A majority

of the circuit judges who are in regular active service 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.

-SOURCE-

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

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

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

Statutory authority for in banc hearings is found in 28 U.S.C.

Sec. 46(c). The proposed rule is responsive to the Supreme Court's

view in Western Pacific Ry. Corp. v. Western Pacific Ry. Co., 345

U.S. 247, 73 S.Ct. 656, 97 L.Ed. 986 (1953), that litigants should

be free to suggest that a particular case is appropriate for

consideration by all the judges of a court of appeals. The rule is

addressed to the procedure whereby a party may suggest the

appropriateness of convening the court in banc. It does not affect

the power of a court of appeals to initiate in banc hearings sua

sponte.

The provision that a vote will not be taken as a result of the

suggestion of the party unless requested by a judge of the court in

regular active service or by a judge who was a member of the panel

that rendered a decision sought to be reheard is intended to make

it clear that a suggestion of a party as such does not require any

action by the court. See Western Pacific Ry. Corp. v. Western

Pacific Ry. Co., supra, 345 U.S. at 262, 73 S.Ct. 656. The rule

merely authorizes a suggestion, imposes a time limit on suggestions

for rehearings in banc, and provides that suggestions will be

directed to the judges of the court in regular active service.

In practice, the suggestion of a party that a case be reheard in

banc is frequently contained in a petition for rehearing, commonly

styled "petition for rehearing in banc." Such a petition is in fact

merely a petition for a rehearing, with a suggestion that the case

be reheard in banc. Since no response to the suggestion, as

distinguished from the petition for rehearing, is required, the

panel which heard the case may quite properly dispose of the

petition without reference to the suggestion. In such a case the

fact that no response has been made to the suggestion does not

affect the finality of the judgment or the issuance of the mandate,

and the final sentence of the rule expressly so provides.

NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT

Under the present rule there is no specific provision for a

response to a suggestion that an appeal be heard in banc. This has

led to some uncertainty as to whether such a response may be filed.

The proposed amendment would resolve this uncertainty.

While the present rule provides a time limit for suggestions for

rehearing in banc, it does not deal with the timing of a request

that the appeal be heard in banc initially. The proposed amendment

fills this gap as well, providing that the suggestion must be made

by the date of which the appellee's brief is filed.

Provision is made for circulating the suggestions to members of

the panel despite the fact that senior judges on the panel would

not be entitled to vote on whether a suggestion will be granted.

NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT

Subdivision (d). Subdivision (d) is added; it authorizes the

courts of appeals to prescribe the number of copies of suggestions

for hearing or rehearing in banc that must be filed. Because the

number of copies needed depends directly upon the number of judges

in the circuit, local rules are the best vehicle for setting the

required number of copies.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

Several substantive changes are made in this rule, however.

One of the purposes of the substantive amendments is to treat a

request for a rehearing en banc like a petition for panel rehearing

so that a request for a rehearing en banc will suspend the finality

of the court of appeals' judgment and delay the running of the

period for filing a petition for writ of certiorari. Companion

amendments are made to Rule 41.

Subdivision (a). The title of this subdivision is changed from

"when hearing or rehearing in banc will be ordered" to "When

Hearing or Rehearing En Banc May Be Ordered." The change emphasizes

the discretion a court has with regard to granting en banc review.

Subdivision (b). The term "petition" for rehearing en banc is

substituted for the term "suggestion" for rehearing en banc. The

terminology change reflects the Committee's intent to treat

similarly a petition for panel rehearing and a request for a

rehearing en banc. The terminology change also delays the running

of the time for filing a petition for a writ of certiorari because

Sup. Ct. R. 13.3 says:

if a petition for rehearing is timely filed in the lower court by

any party, the time to file the petition for a writ of certiorari

for all parties . . . runs from the date of the denial of the

petition for rehearing or, if the petition for rehearing is

granted, the subsequent entry of judgment.

The amendments also require each petition for en banc

consideration to begin with a statement concisely demonstrating

that the case meets the usual criteria for en banc consideration.

It is the Committee's hope that requiring such a statement will

cause the drafter of a petition to focus on the narrow grounds that

support en banc consideration and to realize that a petition should

not be filed unless the case meets those rigid standards.

Intercircuit conflict is cited as one reason for asserting that a

proceeding involves a question of "exceptional importance."

Intercircuit conflicts create problems. When the circuits construe

the same federal law differently, parties' rights and duties depend

upon where a case is litigated. Given the increase in the number of

cases decided by the federal courts and the limitation on the

number of cases the Supreme Court can hear, conflicts between the

circuits may remain unresolved by the Supreme Court for an extended

period of time. The existence of an intercircuit conflict often

generates additional litigation in the other circuits as well as in

the circuits that are already in conflict. Although an en banc

proceeding will not necessarily prevent intercircuit conflicts, an

en banc proceeding provides a safeguard against unnecessary

intercircuit conflicts.

Some circuits have had rules or internal operating procedures

that recognize a conflict with another circuit as a legitimate

basis for granting a rehearing en banc. An intercircuit conflict

may present a question of "exceptional importance" because of the

costs that intercircuit conflicts impose on the system as a whole,

in addition to the significance of the issues involved. It is not,

however, the Committee's intent to make the granting of a hearing

or rehearing en banc mandatory whenever there is an intercircuit

conflict.

The amendment states that "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 every other United States Court of

Appeals that has addressed the issue." [The Supreme Court revised

the proposed amendment to Rule 35(b)(1)(B) by deleting "every"

before "other United States Court of Appeals".] That language

contemplates two situations in which a rehearing en banc may be

appropriate. The first is when a panel decision creates a conflict.

A panel decision creates a conflict when it conflicts with the

decisions of all other circuits that have considered the issue. If

a panel decision simply joins one side of an already existing

conflict, a rehearing en banc may not be as important because it

cannot avoid the conflict. The second situation that may be a

strong candidate for a rehearing en banc is one in which the

circuit persists in a conflict created by a pre-existing decision

of the same circuit and no other circuits have joined on that side

of the conflict. The amendment states that the conflict must be

with an "authoritative" decision of another circuit.

"Authoritative" is used rather than "published" because in some

circuits unpublished opinions may be treated as authoritative.

Counsel are reminded that their duty is fully discharged without

filing a petition for rehearing en banc unless the case meets the

rigid standards of subdivision (a) of this rule and even then the

granting of a petition is entirely within the court's discretion.

Paragraph (2) of this subdivision establishes a maximum length

for a petition. Fifteen pages is the length currently used in

several circuits. Each request for en banc consideration must be

studied by every active judge of the court and is a serious call on

limited judicial resources. The extraordinary nature of the issue

or the threat to uniformity of the court's decision can be

established in most cases in less than fifteen pages. A court may

shorten the maximum length on a case by case basis but the rule

does not permit a circuit to shorten the length by local rule. The

Committee has retained page limits rather than using word or line

counts similar to those in amended Rule 32 because there has not

been a serious enough problem to justify importing the word and

line-count and typeface requirements that are applicable to briefs

into other contexts.

Paragraph (3), although similar to (2), is separate because it

deals with those instances in which a party files both a petition

for rehearing en banc under this rule and a petition for panel

rehearing under Rule 40.

To improve the clarity of the rule, the material dealing with

filing a response to a petition and with voting on a petition have

been moved to new subdivisions (e) and (f).

Subdivision (c). Two changes are made in this subdivision. First,

the sentence stating that a request for a rehearing en banc does

not affect the finality of the judgment or stay the issuance of the

mandate is deleted. Second, the language permitting a party to

include a request for rehearing en banc in a petition for panel

rehearing is deleted. The Committee believes that those circuits

that want to require two separate documents should have the option

to do so.

Subdivision (e). This is a new subdivision. The substance of the

subdivision, however, was drawn from former subdivision (b). The

only changes are stylistic; no substantive changes are intended.

Subdivision (f). This is a new subdivision. The substance of the

subdivision, however, was drawn from former subdivision (b).

Because of the discretionary nature of the en banc procedure, the

filing of a suggestion for rehearing en banc has not required a

vote; a vote is taken only when requested by a judge. It is not the

Committee's intent to change the discretionary nature of the

procedure or to require a vote on a petition for rehearing en banc.

The rule continues, therefore, to provide that a court is not

obligated to vote on such petitions. It is necessary, however, that

each court develop a procedure for disposing of such petitions

because they will suspend the finality of the court's judgment and

toll the time for filing a petition for certiorari.

Former subdivision (b) contained language directing the clerk to

distribute a "suggestion" to certain judges and indicating which

judges may call for a vote. New subdivision (f) does not address

those issues because they deal with internal court procedures.

-End-

-CITE-

28 USC APPENDIX Rule 36 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 36. Entry of Judgment; Notice

-STATUTE-

(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.

-SOURCE-

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

Dec. 1, 2002.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

This is the typical rule. See 1st Cir. Rule 29; 3rd Cir. Rule 32;

6th Cir. Rule 21. At present, uncertainty exists as to the date of

entry of judgment when the opinion directs subsequent settlement of

the precise terms of the judgment, a common practice in cases

involving enforcement of agency orders. See Stern and Gressman,

Supreme Court Practice, p. 203 (3d Ed., 1962). The principle of

finality suggests that in such cases entry of judgment should be

delayed until approval of the judgment in final form.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Subdivision (b). Subdivision (b) has been amended so that the

clerk may use electronic means to serve a copy of the opinion or

judgment or to serve notice of the date when judgment was entered

upon parties who have consented to such service.

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment or to the Committee Note.

-End-

-CITE-

28 USC APPENDIX Rule 37 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 37. Interest on Judgment

-STATUTE-

(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.

-SOURCE-

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

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

The first sentence makes it clear that if a money judgment is

affirmed in the court of appeals, the interest which attaches to

money judgments by force of law (see 28 U.S.C. Sec. 1961 and Sec.

2411) upon their initial entry is payable as if no appeal had been

taken, whether or not the mandate makes mention of interest. There

has been some confusion on this point. See Blair v. Durham, 139

F.2d 260 (6th Cir., 1943) and cases cited therein.

In reversing or modifying the judgment of the district court, the

court of appeals may direct the entry of a money judgment, as, for

example, when the court of appeals reverses a judgment

notwithstanding the verdict and directs entry of judgment on the

verdict. In such a case the question may arise as to whether

interest is to run from the date of entry of the judgment directed

by the court of appeals or from the date on which the judgment

would have been entered in the district court except for the

erroneous ruling corrected on appeal. In Briggs v. Pennsylvania R.

Co., 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948), the Court

held that where the mandate of the court of appeals directed entry

of judgment upon a verdict but made no mention of interest from the

date of the verdict to the date of the entry of the judgment

directed by the mandate, the district court was powerless to add

such interest. The second sentence of the proposed rule is a

reminder to the court, the clerk and counsel of the Briggs rule.

Since the rule directs that the matter of interest be disposed of

by the mandate, in cases where interest is simply overlooked, a

party who conceives himself entitled to interest from a date other

than the date of entry of judgment in accordance with the mandate

should be entitled to seek recall of the mandate for determination

of the question.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

-End-

-CITE-

28 USC APPENDIX Rule 38 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 38. Frivolous Appeal - Damages and Costs

-STATUTE-

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.

-SOURCE-

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

Dec. 1, 1998.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

Compare 28 U.S.C. Sec. 1912. While both the statute and the usual

rule on the subject by courts of appeals (Fourth Circuit Rule 20 is

a typical rule) speak of "damages for delay," the courts of appeals

quite properly allow damages, attorney's fees and other expenses

incurred by an appellee if the appeal is frivolous without

requiring a showing that the appeal resulted in delay. See

Dunscombe v. Sayle, 340 F.2d 311 (5th Cir., 1965), cert. den., 382

U.S. 814, 86 S.Ct. 32, 15 L.Ed.2d 62 (1965); Lowe v. Willacy, 239

F.2d 179 (9th Cir., 1956); Griffith Wellpoint Corp. v.

Munro-Langstroth, Inc., 269 F.2d 64 (1st Cir., 1959); Ginsburg v.

Stern, 295 F.2d 698 (3d Cir., 1961). The subjects of interest and

damages are separately regulated, contrary to the present practice

of combining the two (see Fourth Circuit Rule 20) to make it clear

that the awards are distinct and independent. Interest is provided

for by law; damages are awarded by the court in its discretion in

the case of a frivolous appeal as a matter of justice to the

appellee and as a penalty against the appellant.

NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT

The amendment requires that before a court of appeals may impose

sanctions, the person to be sanctioned must have notice and an

opportunity to respond. The amendment reflects the basic principle

enunciated in the Supreme Court's opinion in Roadway Express, Inc.

v. Piper, 447 U.S. 752, 767 (1980), that notice and opportunity to

respond must precede the imposition of sanctions. A separately

filed motion requesting sanctions constitutes notice. A statement

inserted in a party's brief that the party moves for sanctions is

not sufficient notice. Requests in briefs for sanctions have become

so commonplace that it is unrealistic to expect careful responses

to such requests without any indication that the court is actually

contemplating such measures. Only a motion, the purpose of which is

to request sanctions, is sufficient. If there is no such motion

filed, notice must come from the court. The form of notice from the

court and of the opportunity for comment purposely are left to the

court's discretion.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

Only the caption of this rule has been amended. The changes are

intended to be stylistic only.

-End-

-CITE-

28 USC APPENDIX Rule 39 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 39. Costs

-STATUTE-

(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 10 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.

-SOURCE-

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

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

-MISC1-

NOTES ON ADVISORY COMMITTEE ON RULES - 1967

Subdivision (a). Statutory authorization for taxation of costs is

found in 28 U.S.C. Sec. 1920. The provisions of this subdivision

follow the usual practice in the circuits. A few statutes contain

specific provisions in derogation of these general provisions. (See

28 U.S.C. Sec. 1928, which forbids the award of costs to a

successful plaintiff in a patent infringement action under the

circumstances described by the statute). These statutes are

controlling in cases to which they apply.

Subdivision (b). The rules of the courts of appeals at present

commonly deny costs to the United States except as allowance may be

directed by statute. Those rules were promulgated at a time when

the United States was generally invulnerable to an award of costs

against it, and they appear to be based on the view that if the

United States is not subject to costs if it loses, it ought not be

entitled to recover costs if it wins.

The number of cases affected by such rules has been greatly

reduced by the Act of July 18, 1966, 80 Stat. 308 (1 U.S. Code

Cong. & Ad. News, p. 349 (1966), 89th Cong., 2d Sess., which

amended 28 U.S.C. Sec. 2412, the former general bar to the award of

costs against the United States. Section 2412 as amended generally

places the United States on the same footing as private parties

with respect to the award of costs in civil cases. But the United

States continues to enjoy immunity from costs in certain cases. By

its terms amended section 2412 authorizes an award of costs against

the United States only in civil actions, and it excepts from its

general authorization of an award of costs against the United

States cases which are "otherwise specifically provided (for) by

statute." Furthermore, the Act of July 18, 1966, supra, provides

that the amendments of section 2412 which it effects shall apply

only to actions filed subsequent to the date of its enactment. The

second clause continues in effect, for these and all other cases in

which the United States enjoys immunity from costs, the presently

prevailing rule that the United States may recover costs as the

prevailing party only if it would have suffered them as the losing

party.

Subdivision (c). While only five circuits (D.C. Cir. Rule 20(d);

1st Cir. Rule 31(4); 3d Cir. Rule 35(4); 4th Cir. Rule 21(4); 9th

Cir. Rule 25, as amended June 2, 1967) presently tax the cost of

printing briefs, the proposed rule makes the cost taxable in

keeping with the principle of this rule that all cost items

expended in the prosecution of a proceeding should be borne by the

unsuccessful party.

Subdivision (e). The costs described in this subdivision are

costs of the appeal and, as such, are within the undertaking of the

appeal bond. They are made taxable in the district court for

general convenience. Taxation of the cost of the reporter's

transcript is specifically authorized by 28 U.S.C. Sec. 1920, but

in the absence of a rule some district courts have held themselves

without authority to tax the cost (Perlman v. Feldmann, 116 F.Supp.

102 (D.Conn., 1953); Firtag v. Gendleman, 152 F.Supp. 226 (D.D.C.,

1957); Todd Atlantic Shipyards Corps. v. The Southport, 100 F.Supp.

763 (E.D.S.C., 1951). Provision for taxation of the cost of

premiums paid for supersedeas bonds is common in the local rules of

district courts and the practice is established in the Second,

Seventh, and Ninth Circuits. Berner v. British Commonwealth Pacific

Air Lines, Ltd., 362 F.2d 799 (2d Cir. 1966); Land Oberoesterreich

v. Gude, 93 F.2d 292 (2d Cir., 1937); In re Northern Ind. Oil Co.,

192 F.2d 139 (7th Cir., 1951); Lunn v. F. W. Woolworth, 210 F.2d

159 (9th Cir., 1954).

NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT

Subdivision (c). The proposed amendment would permit variations

among the circuits in regulating the maximum rates taxable as costs

for printing or otherwise reproducing briefs, appendices, and

copies of records authorized by Rule 30(f). The present rule has

had a different effect in different circuits depending upon the

size of the circuit, the location of the clerk's office, and the

location of other cities. As a consequence there was a growing

sense that strict adherence to the rule produces some unfairness in

some of the circuits and the matter should be made subject to local

rule.

Subdivision (d). The present rule makes no provision for

objections to a bill of costs. The proposed amendment would allow

10 days for such objections. Cf. Rule 54(d) of the F.R.C.P. It

provides further that the mandate shall not be delayed for taxation

of costs.

NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT

The amendment to subdivision (c) is intended to increase the

degree of control exercised by the courts of appeals over rates for

printing and copying recoverable as costs. It further requires the

courts of appeals to encourage cost-consciousness by requiring

that, in fixing the rate, the court consider the most economical

methods of printing and copying.

The amendment to subdivision (d) is technical. No substantive

change is intended.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only. All

references to the cost of "printing" have been deleted from

subdivision (c) because commercial printing is so rarely used for

preparation of documents filed with a court of appeals.

-End-

-CITE-

28 USC APPENDIX Rule 40 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 40. Petition for Panel Rehearing

-STATUTE-

(a) Time to File; Contents; Answer; Action by the Court if

Granted.

(1) Time. Unless the time is shortened or extended by order or

local rule, a petition for panel rehearing may be filed within 14

days after entry of judgment. But in a civil case, if the United

States or its officer or agency is a party, the time within which

any party may seek rehearing is 45 days after entry of judgment,

unless an order shortens or extends the time.

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

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

overlooked or misapprehended and must argue in support of the

petition. Oral argument is not permitted.

(3) Answer. Unless the court requests, no answer to a petition

for panel rehearing is permitted. But ordinarily rehearing will

not be granted in the absence of such a request.

(4) Action by the Court. If a petition for panel rehearing is

granted, the court may do any of the following:

(A) make a final disposition of the case without reargument;

(B) restore the case to the calendar for reargument or

resubmission; or

(C) issue any other appropriate order.

(b) Form of Petition; Length. The petition must comply in form

with Rule 32. Copies must be served and filed as Rule 31

prescribes. Unless the court permits or a local rule provides

otherwise, a petition for panel rehearing must not exceed 15 pages.

-SOURCE-

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

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

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

This is the usual rule among the circuits, except that the

express prohibition against filing a reply to the petition is found

only in the rules of the Fourth, Sixth and Eighth Circuits (it is

also contained in Supreme Court Rule 58(3)). It is included to save

time and expense to the party victorious on appeal. In the very

rare instances in which a reply is useful, the court will ask for

it.

NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT

Subdivision (a). The Standing Committee added to the first

sentence of Rule 40(a) the words "or by local rule," to conform to

current practice in the circuits. The Standing Committee believes

the change noncontroversial.

Subdivision (b). The proposed amendment would eliminate the

distinction drawn in the present rule between printed briefs and

those duplicated from typewritten pages in fixing their maximum

length. See Note to Rule 28. Since petitions for rehearing must be

prepared in a short time, making typographic printing less likely,

the maximum number of pages is fixed at 15, the figure used in the

present rule for petitions duplicated by means other than

typographic printing.

NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT

Subdivision (a). The amendment lengthens the time for filing a

petition for rehearing from 14 to 45 days in civil cases involving

the United States or its agencies or officers. It has no effect

upon the time for filing in criminal cases. The amendment makes

nation-wide the current practice in the District of Columbia and

the Tenth Circuits, see D.C. Cir. R. 15(a), 10th Cir. R. 40.3. This

amendment, analogous to the provision in Rule 4(a) extending the

time for filing a notice of appeal in cases involving the United

States, recognizes that the Solicitor General needs time to conduct

a thorough review of the merits of a case before requesting a

rehearing. In a case in which a court of appeals believes it

necessary to restrict the time for filing a rehearing petition, the

amendment provides that the court may do so by order. Although the

first sentence of Rule 40 permits a court of appeals to shorten or

lengthen the usual 14 day filing period by order or by local rule,

the sentence governing appeals in civil cases involving the United

States purposely limits a court's power to alter the 45 day period

to orders in specific cases. If a court of appeals could adopt a

local rule shortening the time for filing a petition for rehearing

in all cases involving the United States, the purpose of the

amendment would be defeated.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

-End-

-CITE-

28 USC APPENDIX Rule 41 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

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

-STATUTE-

(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 calendar days

after the time to file a petition for rehearing expires, or 7

calendar 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.

-SOURCE-

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

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

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

The proposed rule follows the rule or practice in a majority of

circuits by which copies of the opinion and the judgment serve in

lieu of a formal mandate in the ordinary case. Compare Supreme

Court Rule 59. Although 28 U.S.C. Sec. 2101(c) permits a writ of

certiorari to be filed within 90 days after entry of judgment,

seven of the eight circuits which now regulate the matter of stays

pending application for certiorari limit the initial stay of the

mandate to the 30-day period provided in the proposed rule. Compare

D.C. Cir. Rule 27(e).

NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT

Subdivision (a). The amendment conforms Rule 41(a) to the

amendment made to Rule 40(a). The amendment keys the time for

issuance of the mandate to the expiration of the time for filing a

petition for rehearing, unless such a petition is filed in which

case the mandate issues 7 days after the entry of the order denying

the petition. Because the amendment to Rule 40(a) lengthens the

time for filing a petition for rehearing in civil cases involving

the United States from 14 to 45 days, the rule requiring the

mandate to issue 21 days after the entry of judgment would cause

the mandate to issue while the government is still considering

requesting a rehearing. Therefore, the amendment generally requires

the mandate to issue 7 days after the expiration of the time for

filing a petition for rehearing.

Subdivision (b). The amendment requires a party who files a

motion requesting a stay of mandate to file, at the same time,

proof of service on all other parties. The old rule required the

party to give notice to the other parties; the amendment merely

requires the party to provide the court with evidence of having

done so.

The amendment also states that the motion must show that a

petition for certiorari would present a substantial question and

that there is good cause for a stay. The amendment is intended to

alert the parties to the fact that a stay of mandate is not granted

automatically and to the type of showing that needs to be made. The

Supreme Court has established conditions that must be met before it

will stay a mandate. See Robert L. Stern et al., Supreme Court

Practice Sec. 17.19 (6th ed. 1986).

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

Several substantive changes are made in this rule, however.

Subdivision (b). The existing rule provides that the mandate

issues 7 days after the time to file a petition for panel rehearing

expires unless such a petition is timely filed. If the petition is

denied, the mandate issues 7 days after entry of the order denying

the petition. Those provisions are retained but the amendments

further provide that if a timely petition for rehearing en banc or

motion for stay of mandate is filed, the mandate does not issue

until 7 days after entry of an order denying the last of all such

requests. If a petition for rehearing or a petition for rehearing

en banc is granted, the court enters a new judgment after the

rehearing and the mandate issues within the normal time after entry

of that judgment.

Subdivision (c). Subdivision (c) is new. It provides that the

mandate is effective when the court issues it. A court of appeals'

judgment or order is not final until issuance of the mandate; at

that time the parties' obligations become fixed. This amendment is

intended to make it clear that the mandate is effective upon

issuance and that its effectiveness is not delayed until receipt of

the mandate by the trial court or agency, or until the trial court

or agency acts upon it. This amendment is consistent with the

current understanding. Unless the court orders that the mandate

issue earlier than provided in the rule, the parties can easily

calculate the anticipated date of issuance and verify issuance with

the clerk's office. In those instances in which the court orders

earlier issuance of the mandate, the entry of the order on the

docket alerts the parties to that fact.

Subdivision (d). Amended paragraph (1) provides that the filing

of a petition for panel rehearing, a petition for rehearing en banc

or a motion for a stay of mandate pending petition to the Supreme

Court for a writ of certiorari stays the issuance of the mandate

until the court disposes of the petition or motion. The provision

that a petition for rehearing en banc stays the mandate is a

companion to the amendment of Rule 35 that deletes the language

stating that a request for a rehearing en banc does not affect the

finality of the judgment or stay the issuance of the mandate. The

Committee's objective is to treat a request for a rehearing en banc

like a petition for panel rehearing so that a request for a

rehearing en banc will suspend the finality of the court of

appeals' judgment and delay the running of the period for filing a

petition for writ of certiorari. Because the filing of a petition

for rehearing en banc will stay the mandate, a court of appeals

will need to take final action on the petition but the procedure

for doing so is left to local practice.

Paragraph (1) also provides that the filing of a motion for a

stay of mandate pending petition to the Supreme Court for a writ of

certiorari stays the mandate until the court disposes of the

motion. If the court denies the motion, the court must issue the

mandate 7 days after entering the order denying the motion. If the

court grants the motion, the mandate is stayed according to the

terms of the order granting the stay. Delaying issuance of the

mandate eliminates the need to recall the mandate if the motion for

a stay is granted. If, however, the court believes that it would be

inappropriate to delay issuance of the mandate until disposition of

the motion for a stay, the court may order that the mandate issue

immediately.

Paragraph (2). The amendment changes the maximum period for a

stay of mandate, absent the court of appeals granting an extension

for cause, to 90 days. The presumptive 30-day period was adopted

when a party had to file a petition for a writ of certiorari in

criminal cases within 30 days after entry of judgment. Supreme

Court Rule 13.1 now provides that a party has 90 days after entry

of judgment by a court of appeals to file a petition for a writ of

certiorari whether the case is civil or criminal.

The amendment does not require a court of appeals to grant a stay

of mandate that is coextensive with the period granted for filing a

petition for a writ of certiorari. The granting of a stay and the

length of the stay remain within the discretion of the court of

appeals. The amendment means only that a 90-day stay may be granted

without a need to show cause for a stay longer than 30 days.

Subparagraph (C) is not new; it has been moved from the end of

the rule to this position.

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Subdivision (b). Subdivision (b) directs that the mandate of a

court must issue 7 days after the time to file a petition for

rehearing expires or 7 days after the court denies a timely

petition for panel rehearing, petition for rehearing en banc, or

motion for stay of mandate, whichever is later. Intermediate

Saturdays, Sundays, and legal holidays are counted in computing

that 7-day deadline, which means that, except when the 7-day

deadline ends on a weekend or legal holiday, the mandate issues

exactly one week after the triggering event.

Fed. R. App. P. 26(a)(2) has been amended to provide that, in

computing any period of time, one should "[e]xclude intermediate

Saturdays, Sundays, and legal holidays when the period is less than

11 days, unless stated in calendar days." This change in the method

of computing deadlines means that 7-day deadlines (such as that in

subdivision (b)) have been lengthened as a practical matter. Under

the new computation method, a mandate would never issue sooner than

9 actual days after a triggering event, and legal holidays could

extend that period to as much as 13 days.

Delaying mandates for 9 or more days would introduce significant

and unwarranted delay into appellate proceedings. For that reason,

subdivision (b) has been amended to require that mandates issue 7

calendar days after a triggering event.

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment or to the Committee Note.

-End-

-CITE-

28 USC APPENDIX Rule 42 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 42. Voluntary Dismissal

-STATUTE-

(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.

-SOURCE-

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

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

Subdivision (a). This subdivision is derived from FRCP 73(a)

without change of substance.

Subdivision (b). The first sentence is a common provision in

present circuit rules. The second sentence is added. Compare

Supreme Court Rule 60.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language of the rule is amended to make the rule more easily

understood. In addition to changes made to improve the

understanding, the Advisory Committee has changed language to make

style and terminology consistent throughout the appellate rules.

These changes are intended to be stylistic only.

-End-

-CITE-

28 USC APPENDIX Rule 43 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 43. Substitution of Parties

-STATUTE-

(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.

-SOURCE-

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

Dec. 1, 1998.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

Subdivision (a). The first three sentences described a procedure

similar to the rule on substitution in civil actions in the

district court. See FRCP 25(a). The fourth sentence expressly

authorizes an appeal to be taken against one who has died after the

entry of judgment. Compare FRCP 73(b), which impliedly authorizes

such an appeal.

The sixth sentence authorizes an attorney of record for the

deceased to take an appeal on behalf of successors in interest if

the deceased has no representative. At present, if a party entitled

to appeal dies before the notice of appeal is filed, the appeal can

presumably be taken only by his legal representative and must be

taken within the time ordinarily prescribed. 13 Cyclopedia of

Federal Procedure (3d Ed.) Sec. 63.21. The states commonly make

special provisions for the event of the death of a party entitled

to appeal, usually by extending the time otherwise prescribed.

Rules of Civil Procedure for Superior Courts of Arizona, Rule

73(t), 16 A.R.S.; New Jersey Rev. Rules 1:3-3; New York Civil

Practice Law and Rules, Sec. 1022; Wisconsin Statutes Ann.

274.01(2). The provision in the proposed rule is derived from

California Code of Civil Procedure, Sec. 941.

Subdivision (c). This subdivision is derived from FRCP 25(d) and

Supreme Court Rule 48, with appropriate changes.

NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT

The amendments to Rules 43(a) and (c) are technical. No

substantive change is intended.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

-End-

-CITE-

28 USC APPENDIX Rule 44 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 44. Case Involving a Constitutional Question When the United

States or the Relevant State is Not a Party

-STATUTE-

(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.

-SOURCE-

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

Dec. 1, 2002.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

This rule is now found in the rules of a majority of the

circuits. It is in response to the Act of August 24, 1937 (28

U.S.C. Sec. 2403), which requires all courts of the United States

to advise the Attorney General of the existence of an action or

proceeding of the kind described in the rule.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language of the rule is amended to make the rule more easily

understood. In addition to changes made to improve the

understanding, the Advisory Committee has changed language to make

style and terminology consistent throughout the appellate rules.

These changes are intended to be stylistic only.

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Rule 44 requires that a party who "questions the

constitutionality of an Act of Congress" in a proceeding in which

the United States is not a party must provide written notice of

that challenge to the clerk. Rule 44 is designed to implement 28

U.S.C. Sec. 2403(a), which states that: "In any action, suit or

proceeding in a court of the United States to which the United

States or any agency, officer or employee thereof is not a party,

wherein the constitutionality of any Act of Congress affecting the

public interest is drawn in question, the court shall certify such

fact to the Attorney General, and shall permit the United States to

intervene . . . for argument on the question of constitutionality."

The subsequent section of the statute - Sec. 2403(b) - contains

virtually identical language imposing upon the courts the duty to

notify the attorney general of a state of a constitutional

challenge to any statute of that state. But Sec. 2403(b), unlike

Sec. 2403(a), was not implemented in Rule 44.

Rule 44 has been amended to correct this omission. The text of

former Rule 44 regarding constitutional challenges to federal

statutes now appears as Rule 44(a), while new language regarding

constitutional challenges to state statutes now appears as Rule

44(b).

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment or to the Committee Note.

-End-

-CITE-

28 USC APPENDIX Rule 45 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 45. Clerk's Duties

-STATUTE-

(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, Presidents'

Day, 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.

-SOURCE-

(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.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

The duties imposed upon clerks of the courts of appeals by this

rule are those imposed by rule or practice in a majority of the

circuits. The second sentence of subdivision (a) authorizing the

closing of the clerk's office on Saturday and non-national legal

holidays follows a similar provision respecting the district court

clerk's office found in FRCP 77(c) and in FRCrP 56.

NOTES OF ADVISORY COMMITTEE ON RULES - 1971 AMENDMENT

The amendment adds Columbus Day to the list of legal holidays.

See the Note accompanying the amendment of Rule 26(a).

NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT

The amendment to Rule 45(b) permits the courts of appeals to

maintain computerized dockets. The Committee believes that the

Administrative Office of the United States Courts ought to have

maximum flexibility in prescribing the format of this docket in

order to ensure a smooth transition from manual to automated

systems and subsequent adaptation to technological improvements.

The amendments to Rules 45(a) and (d) are technical. No

substantive change is intended. The Birthday of Martin Luther King,

Jr. has been added to the list of national holidays.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Subdivision (c). Subdivision (c) has been amended so that the

clerk may use electronic means to serve notice of entry of an order

or judgment upon parties who have consented to such service.

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment or to the Committee Note.

-End-

-CITE-

28 USC APPENDIX Rule 46 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 46. Attorneys

-STATUTE-

(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.

-SOURCE-

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

Dec. 1, 1998.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

Subdivision (a). The basic requirement of membership in the bar

of the Supreme Court, or of the highest court of a state, or in

another court of appeals or a district court is found, with minor

variations, in the rules of ten circuits. The only other

requirement in those circuits is that the applicant be of good

moral and professional character. In the District of Columbia

Circuit applicants other than members of the District of Columbia

District bar or the Supreme Court bar must claim membership in the

bar of the highest court of a state, territory or possession for

three years prior to application for admission (D.C. Cir. Rule 7).

Members of the District of Columbia District bar and the Supreme

Court bar again excepted, applicants for admission to the District

of Columbia Circuit bar must meet precisely defined prelaw and law

school study requirements (D.C. Cir. Rule 7 1/2 ).

A few circuits now require that application for admission be made

by oral motion by a sponsor member in open court. The proposed rule

permits both the application and the motion by the sponsor member

to be in writing, and permits action on the motion without the

appearance of the applicant or the sponsor, unless the court

otherwise orders.

Subdivision (b). The provision respecting suspension or

disbarment is uniform. Third Circuit Rule 8(3) is typical.

Subdivision (c). At present only Fourth Circuit Rule 36 contains

an equivalent provision. The purpose of this provision is to make

explicit the power of a court of appeals to impose sanctions less

serious than suspension or disbarment for the breach of rules. It

also affords some measure of control over attorneys who are not

members of the bar of the court. Several circuits permit a

non-member attorney to file briefs and motions, membership being

required only at the time of oral argument. And several circuits

permit argument pro hac vice by non-member attorneys.

NOTES OF ADVISORY COMMITTEE ON RULES - 1986 AMENDMENT

The amendments to Rules 46(a) and (b) are technical. No

substantive change is intended.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

-End-

-CITE-

28 USC APPENDIX Rule 47 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 47. Local Rules by Courts of Appeals

-STATUTE-

(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.

-SOURCE-

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

Dec. 1, 1998.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

This rule continues the authority now vested in individual courts

of appeals by 28 U.S.C. Sec. 2071 to make rules consistent with

rules of practice and procedure promulgated by the Supreme Court.

NOTES OF ADVISORY COMMITTEE ON RULES - 1995 AMENDMENT

Subdivision (a). This rule is amended to require that a generally

applicable direction regarding practice before a court of appeals

must be in a local rule rather than an internal operating procedure

or some other general directive. It is the intent of this rule that

a local rule may not bar any practice that these rules explicitly

or implicitly permit. Subdivision (b) allows a court of appeals to

regulate practice in an individual case by entry of an order in the

case. The amendment also reflects the requirement that local rules

be consistent not only with the national rules but also with Acts

of Congress. The amendment also states that local rules should not

repeat national rules and Acts of Congress.

The amendment also requires that the numbering of local rules

conform with any uniform numbering system that may be prescribed by

the Judicial Conference. Lack of uniform numbering might create

unnecessary traps for counsel and litigants. A uniform numbering

system would make it easier for an increasingly national bar and

for litigants to locate a local rule that applies to a particular

procedural issue.

Paragraph (2) is new. Its aim is to protect against loss of

rights in the enforcement of local rules relating to matters of

form. The proscription of paragraph (2) is narrowly drawn -

covering only violations that are not willful and only those

involving local rules directed to matters of form. It does not

limit the court's power to impose substantive penalties upon a

party if it or its attorney stubbornly or repeatedly violates a

local rule, even one involving merely a matter of form. Nor does it

affect the court's power to enforce local rules that involve more

than mere matters of form.

Subdivision (b). This rule provides flexibility to the court in

regulating practice in a particular case when there is no

controlling law. Specifically, it permits the court to regulate

practice in any manner consistent with Acts of Congress, with rules

adopted under 28 U.S.C. Sec. 2072, and with the circuit's local

rules.

The amendment to this rule disapproves imposing any sanction or

other disadvantage on a person for noncompliance with such a

directive, unless the alleged violator has been furnished in a

particular case with actual notice of the requirement. There should

be no adverse consequence to a party or attorney for violating

special requirements relating to practice before a particular court

unless the party or attorney has actual notice of those

requirements.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language of the rule is amended to make the rule more easily

understood. In addition to changes made to improve the

understanding, the Advisory Committee has changed language to make

style and terminology consistent throughout the appellate rules.

These changes are intended to be stylistic only.

-End-

-CITE-

28 USC APPENDIX Rule 48 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE VII. GENERAL PROVISIONS

-HEAD-

Rule 48. Masters

-STATUTE-

(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.

-SOURCE-

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

Dec. 1, 1998.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT

The text of the existing Rule 48 concerning the title was moved

to Rule 1.

This new Rule 48 authorizes a court of appeals to appoint a

special master to make recommendations concerning ancillary

matters. The courts of appeals have long used masters in contempt

proceedings where the issue is compliance with an enforcement

order. See Polish National Alliance v. NLRB, 159 F.2d 38 (7th Cir.

1946), NLRB v. Arcade-Sunshine Co., 132 F.2d 8 (D.C. Cir. 1942);

NLRB v. Remington Rand, Inc., 130 F.2d 919 (2d Cir. 1942). There

are other instances when the question before a court of appeals

requires a factual determination. An application for fees or

eligibility for Criminal Justice Act status on appeal are examples.

Ordinarily when a factual issue is unresolved, a court of appeals

remands the case to the district court or agency that originally

heard the case. It is not the Committee's intent to alter that

practice. However, when factual issues arise in the first instance

in the court of appeals, such as fees for representation on appeal,

it would be useful to have authority to refer such determinations

to a master for a recommendation.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The language and organization of the rule are amended to make the

rule more easily understood. In addition to changes made to improve

the understanding, the Advisory Committee has changed language to

make style and terminology consistent throughout the appellate

rules. These changes are intended to be stylistic only.

-End-

-CITE-

28 USC APPENDIX APPENDIX OF FORMS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

APPENDIX OF FORMS

-HEAD-

APPENDIX OF FORMS

-End-

-CITE-

28 USC APPENDIX Form 1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

APPENDIX OF FORMS

-HEAD-

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

Order of a District Court

-STATUTE-

UNITED STATES DISTRICT COURT FOR THE ____ DISTRICT OF ______

FILE NUMBER ____

A.B., Plaintiff

v.

] 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 _________, 19_.

(s)____________

Attorney for ______

Address: ________

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

-SOURCE-

(As amended Apr. 22, 1993, eff. Dec. 1, 1993.)

-End-

-CITE-

28 USC APPENDIX Form 2 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

APPENDIX OF FORMS

-HEAD-

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

the United States Tax Court

-STATUTE-

UNITED STATES TAX COURT

WASHINGTON, D.C.

A.B., Petitioner

v.

Commissioner of

] Docket No.____

Internal Revenue,

Respondent

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

___________, 19_ (relating to __________).

(s)____________

Counsel for ______

Address: ________

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

-SOURCE-

(As amended Apr. 22, 1993, eff. Dec. 1, 1993.)

-End-

-CITE-

28 USC APPENDIX Form 3 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

APPENDIX OF FORMS

-HEAD-

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

Commission or Officer

-STATUTE-

UNITED STATES COURT OF APPEALS

FOR THE ____ CIRCUIT

A.B., Petitioner

v.

XYZ Commission,

] Petition for Review

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 _____, 19_.

(s)_____________,

Attorney for Petitioners

Address:_________

* See Rule 15.

-SOURCE-

(As amended Apr. 22, 1993, eff. Dec. 1, 1993.)

-End-

-CITE-

28 USC APPENDIX Form 4 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 4. Affidavit to Accompany Motion for Leave to Appeal in Forma

Pauperis

-STATUTE-

<p><img src="http://uscode.house.gov/images/code03/images/Apf4p1.gif" width=576 height=579 alt="Image of item"><p>

<p><img src="http://uscode.house.gov/images/code03/images/Apf4p2.gif" width=576 height=579 alt="Image of item"><p>

<p><img src="http://uscode.house.gov/images/code03/images/Apf4p3.gif" width=576 height=579 alt="Image of item"><p>

<p><img src="http://uscode.house.gov/images/code03/images/Apf4p4.gif" width=576 height=579 alt="Image of item"><p>

(AS AMENDED APR. 24, 1998, EFF. DEC. 1, 1998.)

-End-

-CITE-

28 USC APPENDIX Form 5 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

APPENDIX OF FORMS

-HEAD-

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

Order of a District Court or a Bankruptcy Appellate Panel

-STATUTE-

UNITED STATES DISTRICT COURT FOR THE ____

DISTRICT OF ______

<p><img src="http://uscode.house.gov/images/code03/images/28AApF5.gif" width=576 height=579 alt="Image of item"><p>

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 ______, 19__ [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: ___________

______________

-SOURCE-

(As added Apr. 25, 1989, eff. Dec. 1, 1989.)

-End-

-CITE-

28 USC APPENDIX Form 6 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF APPELLATE PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 6

-MISC1-

APPENDIX OF FORMS

<p><img src="http://uscode.house.gov/images/code03/images/28AAPF6.gif" width=576 height=579 alt="Image of item"><p>

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

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Changes Made After Publication and Comments. No changes were made

to the text of the proposed amendment or to the Committee Note.

-End-

-CITE-

28 USC APPENDIX - FEDERAL RULES OF CIVIL PROCEDURE 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

-HEAD-

FEDERAL RULES OF CIVIL PROCEDURE

-MISC1-

(AS AMENDED TO JANUARY 6, 2003)

HISTORICAL NOTE

The original Rules of Civil Procedure for the District Courts

were adopted by order of the Supreme Court on Dec. 20, 1937,

transmitted to Congress by the Attorney General on Jan. 3, 1938,

and became effective on Sept. 16, 1938.

The Rules have been amended Dec. 28, 1939, eff. Apr. 3, 1941;

Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20,

1949; Apr. 30, 1951, eff. Aug. 1, 1951; Apr. 17, 1961, eff. July

19, 1961; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff.

July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 30, 1970, eff.

July 1, 1970; Mar. 1, 1971, eff. July 1, 1971; Nov. 20, 1972, and

Dec. 18, 1972, eff. July 1, 1975; Apr. 29, 1980, eff. Aug. 1, 1980;

Oct. 21, 1980, Pub. L. 96-481, title II, Sec. 205(a), (b), 94 Stat.

2330; Jan. 12, 1983, Pub. L. 97-462, Secs. 2-4, 96 Stat. 2527-2530,

eff. Feb. 26, 1983; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 29,

1985, eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 25,

1988, eff. Aug. 1, 1988; Nov. 18, 1988, Pub. L. 100-690, title VII,

Secs. 7047(b), 7049, 7050, 102 Stat. 4401; Apr. 30, 1991, eff. Dec.

1, 1991; Dec. 9, 1991, Pub. L. 102-198, Sec. 11, 105 Stat. 1626;

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

Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 11, 1997, eff. Dec. 1, 1997;

Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 26, 1999, eff. Dec. 1, 1999;

Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 23, 2001, eff. Dec. 1, 2001;

Apr. 29, 2002, eff. Dec. 1, 2002.

-CROSS-

RULES OF THE SUPREME COURT OF THE UNITED STATES

Procedure in original actions in Supreme Court of the United

States, Federal Rules of Civil Procedure as guide, see rule 17,

this Appendix.

-MISC2-

I. SCOPE OF RULES - ONE FORM OF ACTION

Rule

1. Scope and Purpose of Rules.

2. One Form of Action.

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

3. Commencement of Action.

4. Summons.

(a) Form.

(b) Issuance.

(c) Service with Complaint; by Whom Made.

(d) Waiver of Service; Duty to Save Costs of

Service; Request to Waive.

(e) Service Upon Individuals Within a Judicial

District of the United States.

(f) Service Upon Individuals in a Foreign Country.

(g) Service Upon Infants and Incompetent Persons.

(h) Service Upon Corporations and Associations.

(i) Serving the United States, Its Agencies,

Corporations, Officers, or Employees.

(j) Service Upon Foreign, State, or Local

Governments.

(k) Territorial Limits of Effective Service.

(l) Proof of Service.

(m) Time Limit for Service.

(n) Seizure of Property; Service of Summons Not

Feasible.

4.1. Service of Other Process.

(a) Generally.

(b) Enforcement of Orders: Commitment for Civil

Contempt.

5. Serving and Filing Pleadings and Other Papers.

(a) Service: When Required.

(b) Making Service.

(c) Same: Numerous Defendants.

(d) Filing; Certificate of Service.

(e) Filing With the Court Defined.

6. Time.

(a) Computation.

(b) Enlargement.

[(c) Rescinded.]

(d) For Motions - Affidavits.

(e) Additional Time After Service Under Rule

5(b)(2)(B), (C), or (D).

III. PLEADINGS AND MOTIONS

7. Pleadings Allowed; Form of Motions.

(a) Pleadings.

(b) Motions and Other Papers.

(c) Demurrers, Pleas, etc., Abolished.

7.1. Disclosure Statement.

(a) Who Must File: Nongovernmental Corporate Party.

(b) Time for Filing; Supplemental Filing.

8. General Rules of Pleading.

(a) Claims for Relief.

(b) Defenses; Form of Denials.

(c) Affirmative Defenses.

(d) Effect of Failure To Deny.

(e) Pleading To Be Concise and Direct; Consistency.

(f) Construction of Pleadings.

9. Pleading Special Matters.

(a) Capacity.

(b) Fraud, Mistake, Condition of the Mind.

(c) Conditions Precedent.

(d) Official Document or Act.

(e) Judgment.

(f) Time and Place.

(g) Special Damage.

(h) Admiralty and Maritime Claims.

10. Form of Pleadings.

(a) Caption; Names of Parties.

(b) Paragraphs; Separate Statements.

(c) Adoption by Reference; Exhibits.

11. Signing of Pleadings, Motions, and Other Papers;

Representations to Court; Sanctions.

(a) Signature.

(b) Representations to Court.

(c) Sanctions.

(1) How Initiated.

(A) By Motion.

(B) On Court's Initiative.

(2) Nature of Sanction; Limitations.

(3) Order.

(d) Inapplicability to Discovery.

12. Defenses and Objections - When and How Presented - By

Pleading or Motion - Motion for Judgment on the

Pleadings.

(a) When Presented.

(b) How Presented.

(c) Motion for Judgment on the Pleadings.

(d) Preliminary Hearings.

(e) Motion for More Definite Statement.

(f) Motion To Strike.

(g) Consolidation of Defenses in Motion.

(h) Waiver or Preservation of Certain Defenses.

13. Counterclaim and Cross-Claim.

(a) Compulsory Counterclaims.

(b) Permissive Counterclaims.

(c) Counterclaim Exceeding Opposing Claim.

(d) Counterclaim Against the United States.

(e) Counterclaim Maturing or Acquired After

Pleading.

(f) Omitted Counterclaim.

(g) Cross-Claim Against Co-Party.

(h) Joinder of Additional Parties.

(i) Separate Trials; Separate Judgments.

14. Third-Party Practice.

(a) When Defendant May Bring in Third Party.

(b) When Plaintiff May Bring in Third Party.

(c) Admiralty and Maritime Claims.

15. Amended and Supplemental Pleadings.

(a) Amendments.

(b) Amendments To Conform to the Evidence.

(c) Relation Back of Amendments.

(d) Supplemental Pleadings.

16. Pretrial Conferences; Scheduling; Management.

(a) Pretrial Conferences; Objectives.

(b) Scheduling and Planning.

(c) Subjects for Consideration at Pretrial

Conferences.

(d) Final Pretrial Conference.

(e) Pretrial Orders.

(f) Sanctions.

IV. PARTIES

17. Parties Plaintiff and Defendant; Capacity.

(a) Real Party in Interest.

(b) Capacity To Sue or Be Sued.

(c) Infants or Incompetent Persons.

18. Joinder of Claims and Remedies.

(a) Joinder of Claims.

(b) Joinder of Remedies; Fraudulent Conveyances.

19. Joinder of Persons Needed for Just Adjudication.

(a) Persons To Be Joined if Feasible.

(b) Determination by Court Whenever Joinder Not

Feasible.

(c) Pleading Reasons for Nonjoinder.

(d) Exception of Class Actions.

20. Permissive Joinder of Parties.

(a) Permissive Joinder.

(b) Separate Trials.

21. Misjoinder and Non-Joinder of Parties.

22. Interpleader.

23. Class Actions.

(a) Prerequisites to a Class Action.

(b) Class Actions Maintainable.

(c) Determination by Order Whether Class Action To

Be Maintained; Notice; Judgment; Actions

Conducted Partially as Class Actions.

(d) Orders in Conduct of Actions.

(e) Dismissal or Compromise.

(f) Appeals.

23.1. Derivative Actions by Shareholders.

23.2. Actions Relating to Unincorporated Associations.

24. Intervention.

(a) Intervention of Right.

(b) Permissive Intervention.

(c) Procedure.

25. Substitution of Parties.

(a) Death.

(b) Incompetency.

(c) Transfer of Interest.

(d) Public Officers; Death or Separation From

Office.

V. DEPOSITIONS AND DISCOVERY

26. General Provisions Governing Discovery; Duty of

Disclosure.

(a) Required Disclosures; Methods to Discover

Additional Matter.

(1) Initial Disclosures.

(2) Disclosure of Expert Testimony.

(3) Pretrial Disclosures.

(4) Form of Disclosures.

(5) Methods to Discover Additional Matter.

(b) Discovery Scope and Limits.

(1) In General.

(2) Limitations.

(3) Trial Preparation: Materials.

(4) Trial Preparation: Experts.

(5) Claims of Privilege or Protection of Trial

Preparation Materials.

(c) Protective Orders.

(d) Timing and Sequence of Discovery.

(e) Supplementation of Disclosures and Responses.

(f) Conference of Parties; Planning for Discovery.

(g) Signing of Disclosures, Discovery Requests,

Responses, and Objections.

27. Depositions Before Action or Pending Appeal.

(a) Before Action.

(1) Petition.

(2) Notice and Service.

(3) Order and Examination.

(4) Use of Deposition.

(b) Pending Appeal.

(c) Perpetuation by Action.

28. Persons Before Whom Depositions May Be Taken.

(a) Within the United States.

(b) In Foreign Countries.

(c) Disqualification for Interest.

29. Stipulations Regarding Discovery Procedure.

30. Depositions Upon Oral Examination.

(a) When Depositions May Be Taken; When Leave

Required.

(b) Notice of Examination: General Requirements;

Method of Recording; Production of Documents

and Things; Deposition of Organization;

Deposition by Telephone.

(c) Examination and Cross-Examination; Record of

Examination; Oath; Objections.

(d) Schedule and Duration; Motion to Terminate or

Limit Examination.

(e) Review by Witness; Changes; Signing.

(f) Certification and Delivery by Officer;

Exhibits; Copies.

(g) Failure To Attend or To Serve Subpoena;

Expenses.

31. Depositions Upon Written Questions.

(a) Serving Questions; Notice.

(b) Officer To Take Responses and Prepare Record.

(c) Notice of Filing.

32. Use of Depositions in Court Proceedings.

(a) Use of Depositions.

(b) Objections to Admissibility.

(c) Form of Presentation.

(d) Effect of Errors and Irregularities in

Depositions.

(1) As to Notice.

(2) As to Disqualification of Officer.

(3) As to Taking of Deposition.

(4) As to Completion and Return of Deposition.

33. Interrogatories to Parties.

(a) Availability.

(b) Answers and Objections.

(c) Scope; Use at Trial.

(d) Option to Produce Business Records.

34. Production of Documents and Things and Entry Upon Land

for Inspection and Other Purposes.

(a) Scope.

(b) Procedure.

(c) Persons Not Parties.

35. Physical and Mental Examinations of Persons.

(a) Order for Examination.

(b) Report of Examiner.

36. Requests for Admission.

(a) Request for Admission.

(b) Effect of Admission.

37. Failure to Make Disclosure or Cooperate in Discovery;

Sanctions.

(a) Motion for Order Compelling Disclosure or

Discovery.

(1) Appropriate Court.

(2) Motion.

(3) Evasive or Incomplete Disclosure, Answer, or

Response.

(4) Expenses and Sanctions.

(b) Failure To Comply With Order.

(1) Sanctions by Court in District Where

Deposition Is Taken.

(2) Sanctions by Court in Which Action Is

Pending.

(c) Failure to Disclose; False or Misleading

Disclosure; Refusal to Admit.

(d) Failure of Party to Attend at Own Deposition or

Serve Answers to Interrogatories or Respond to

Request for Inspection.

[(e) Abrogated.]

[(f) Repealed.]

(g) Failure to Participate in the Framing of a

Discovery Plan.

VI. TRIALS

38. Jury Trial of Right.

(a) Right Preserved.

(b) Demand.

(c) Same: Specification of Issues.

(d) Waiver.

(e) Admiralty and Maritime Claims.

39. Trial by Jury or by the Court.

(a) By Jury.

(b) By the Court.

(c) Advisory Jury and Trial by Consent.

40. Assignment of Cases for Trial.

41. Dismissal of Actions.

(a) Voluntary Dismissal: Effect Thereof.

(1) By Plaintiff; by Stipulation.

(2) By Order of Court.

(b) Involuntary Dismissal: Effect Thereof.

(c) Dismissal of Counterclaim, Cross-Claim, or

Third-Party Claim.

(d) Costs of Previously-Dismissed Action.

42. Consolidation; Separate Trials.

(a) Consolidation.

(b) Separate Trials.

43. Taking of Testimony.

(a) Form.

[(b),(c) Abrogated.]

(d) Affirmation in Lieu of Oath.

(e) Evidence on Motions.

(f) Interpreters.

44. Proof of Official Record.

(a) Authentication.

(1) Domestic.

(2) Foreign.

(b) Lack of Record.

(c) Other Proof.

44.1. Determination of Foreign Law.

45. Subpoena.

(a) Form; Issuance.

(b) Service.

(c) Protection of Persons Subject to Subpoenas.

(d) Duties in Responding to Subpoena.

(e) Contempt.

46. Exceptions Unnecessary.

47. Selection of Jurors.

(a) Examination of Jurors.

(b) Peremptory Challenges.

(c) Excuse.

48. Number of Jurors - Participation in Verdict.

49. Special Verdicts and Interrogatories.

(a) Special Verdicts.

(b) General Verdict Accompanied by Answer to

Interrogatories.

50. Judgment as a Matter of Law in Jury Trials;

Alternative Motion for New Trial; Conditional

Rulings.

(a) Judgment as a Matter of Law.

(b) Renewing Motion for Judgment After Trial;

Alternative Motion for New Trial.

(c) Granting Renewed Motion for Judgment as a

Matter of Law; Conditional Rulings; New Trial

Motion.

(d) Same: Denial of Motion for Judgment as a Matter

of Law.

51. Instructions to Jury: Objection.

52. Findings by the Court; Judgment on Partial Findings.

(a) Effect.

(b) Amendment.

(c) Judgment on Partial Findings.

53. Masters.

(a) Appointment and Compensation.

(b) Reference.

(c) Powers.

(d) Proceedings.

(1) Meetings.

(2) Witnesses.

(3) Statement of Accounts.

(e) Report.

(1) Contents and Filing.

(2) In Non-Jury Actions.

(3) In Jury Actions.

(4) Stipulation as to Findings.

(5) Draft Report.

(f) Application to Magistrate Judge.

VII. JUDGMENT

54. Judgments; Costs.

(a) Definition; Form.

(b) Judgment Upon Multiple Claims or Involving

Multiple Parties.

(c) Demand for Judgment.

(d) Costs; Attorneys' Fees.

(1) Costs Other than Attorneys' Fees.

(2) Attorneys' Fees.

55. Default.

(a) Entry.

(b) Judgment.

(1) By the Clerk.

(2) By the Court.

(c) Setting Aside Default.

(d) Plaintiffs, Counterclaimants, Cross-Claimants.

(e) Judgment Against the United States.

56. Summary Judgment.

(a) For Claimant.

(b) For Defending Party.

(c) Motion and Proceedings Thereon.

(d) Case Not Fully Adjudicated on Motion.

(e) Form of Affidavits; Further Testimony; Defense

Required.

(f) When Affidavits Are Unavailable.

(g) Affidavits Made in Bad Faith.

57. Declaratory Judgments.

58. Entry of Judgment.

(a) Separate Document.

(b) Time of Entry.

(c) Cost or Fee Awards.

(d) Request for Entry.

59. New Trials; Amendment of Judgments.

(a) Grounds.

(b) Time for Motion.

(c) Time for Serving Affidavits.

(d) On Court's Initiative; Notice; Specifying

Grounds.

(e) Motion to Alter or Amend Judgment.

60. Relief From Judgment or Order.

(a) Clerical Mistakes.

(b) Mistakes; Inadvertence; Excusable Neglect;

Newly Discovered Evidence; Fraud, Etc.

61. Harmless Error.

62. Stay of Proceedings To Enforce a Judgment.

(a) Automatic Stay; Exceptions - Injunctions,

Receiverships, and Patent Accountings.

(b) Stay on Motion for New Trial or for Judgment.

(c) Injunction Pending Appeal.

(d) Stay Upon Appeal.

(e) Stay in Favor of the United States or Agency

Thereof.

(f) Stay According to State Law.

(g) Power of Appellate Court Not Limited.

(h) Stay of Judgment as to Multiple Claims or

Multiple Parties.

63. Inability of a Judge to Proceed.

VIII. PROVISIONAL AND FINAL REMEDIES

64. Seizure of Person or Property.

65. Injunctions.

(a) Preliminary Injunction.

(1) Notice.

(2) Consolidation of Hearing With Trial on

Merits.

(b) Temporary Restraining Order; Notice; Hearing;

Duration.

(c) Security.

(d) Form and Scope of Injunction or Restraining

Order.

(e) Employer and Employee; Interpleader;

Constitutional Cases.

(f) Copyright Impoundment.

65.1 Security: Proceedings Against Sureties.

66. Receivers Appointed by Federal Courts.

67. Deposit in Court.

68. Offer of Judgment.

69. Execution.

(a) In General.

(b) Against Certain Public Officers.

70. Judgment for Specific Acts; Vesting Title.

71. Process in Behalf of and Against Persons Not Parties.

IX. SPECIAL PROCEEDINGS

71A. Condemnation of Property.

(a) Applicability of Other Rules.

(b) Joinder of Properties.

(c) Complaint.

(1) Caption.

(2) Contents.

(3) Filing.

(d) Process.

(1) Notice; Delivery.

(2) Same; Form.

(3) Service of Notice.

(A) Personal Service.

(B) Service by Publication.

(4) Return; Amendment.

(e) Appearance or Answer.

(f) Amendment of Pleadings.

(g) Substitution of Parties.

(h) Trial.

(i) Dismissal of Action.

(1) As of Right.

(2) By Stipulation.

(3) By Order of the Court.

(4) Effect.

(j) Deposit and Its Distribution.

(k) Condemnation Under a State's Power of Eminent

Domain.

(l) Costs.

72. Magistrate Judges; Pretrial Orders.

(a) Nondispositive Matters.

(b) Dispositive Motions and Prisoner Petitions.

73. Magistrate Judges; Trial by Consent and Appeal.

(a) Powers; Procedure.

(b) Consent.

(c) Appeal.

[(d) Abrogated.]

[74 to 76. Abrogated.]

X. DISTRICT COURTS AND CLERKS

77. District Courts and Clerks.

(a) District Courts Always Open.

(b) Trials and Hearings; Orders in Chambers.

(c) Clerk's Office and Orders by Clerk.

(d) Notice of Orders or Judgments.

78. Motion Day.

79. Books and Records Kept by the Clerk and Entries

Therein.

(a) Civil Docket.

(b) Civil Judgments and Orders.

(c) Indices; Calendars.

(d) Other Books and Records of the Clerk.

80. Stenographer; Stenographic Report or Transcript as

Evidence.

[(a),(b) Abrogated.]

(c) Stenographic Report or Transcript as Evidence.

XI. GENERAL PROVISIONS

81. Applicability in General.

(a) Proceedings to Which the Rules Apply.

(b) Scire Facias and Mandamus.

(c) Removed Actions.

[(d) Abrogated.]

(e) Law Applicable.

(f) References to Officer of the United States.

82. Jurisdiction and Venue Unaffected.

83. Rules by District Courts; Judge's Directives.

(a) Local Rules.

(b) Procedures When There is No Controlling Law.

84. Forms.

85. Title.

86. Effective Date.

(a) [Effective Date of Original Rules.]

(b) Effective Date of Amendments.

(c) Effective Date of Amendments.

(d) Effective Date of Amendments.

(e) Effective Date of Amendments.