The Federal Rules of Appellate Procedure follow. */
Updated January 1, 1993
FRAP 1
SCOPE OF RULES
(a) Scope of rules. These rules govern procedure in
appeals to United States courts of appeals from the United States
district courts and the United States Tax Court; in appeals from
bankruptcy appellate panels; in proceedings in the courts of
appeals for review or enforcement of orders of administrative
agencies, boards, commissions and officers of the United States;
and in applications for writs or other relief which a court of
appeals or a judge thereof is competent to give. When these
rules provide for the making of a motion or application in the
district court, the procedure for making such motion or
application shall be in accordance with the practice of the
district court.
(b) Rules not to affect jurisdiction. These rules shall
not be construed to extend or limit the jurisdiction of the
courts of appeals as established by law.
In the interest of expediting decision, or for other good
cause shown, a court of appeals may, except as otherwise provided
in Rule 26(b), suspend the requirements or provisions of any of
these rules in a particular case on application of a party or on
its own motion and may order proceedings in accordance with its
direction.
FRAP 3
APPEAL AS OF RIGHT-HOW TAKEN
(a) Filing the notice of appeal. An appeal permitted by
law as of right from a district court to a court of appeals shall
be taken by filing a notice of appeal with the clerk of the
district court within the time allowed by Rule 4. 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, which may include dismissal of the appeal. Appeals
by permission under 28 U.S.C. 1292(b) and appeals in bankruptcy
shall be taken in the manner prescribed by Rule 5 and Rule 6
respectively.
(b) Joint or consolidated appeals. If 2 or more persons
are entitled to appeal from a judgment or order of a district
court and their interests are such as to make joinder
practicable, they may file a joint notice of appeal, or may join
in appeal after filing separate timely notices of appeal, and
they may thereafter proceed on appeal as a single appellant.
Appeals may be consolidated by order of the court of appeals upon
its own motion or upon motion of a party, or by stipulation of
the parties to the several appeals.
(c) Content of the notice of appeal. The notice of
appeal shall specify the party or parties taking the appeal;
shall designate the judgment, order or part thereof appealed
from; and shall name the court to which the appeal is taken.
Form 1 in the Appendix of Forms is a suggested form of a notice
of appeal. An appeal shall not be dismissed for informality of
form or title of the notice of appeal.
(d) Service of the notice of appeal. The clerk of the
district court shall serve notice of the filing of a notice of
appeal by mailing a copy thereof to counsel of record of each
party other than the appellant, or, if a party is not represented
by counsel, to the last known address of that party; and the
clerk shall transmit forthwith a copy of the notice of appeal and
of the docket entries to the clerk of the court of appeals named
in the notice. When an appeal is taken by a defendant in a
criminal case, the clerk shall also serve a copy of the notice of
appeal upon the defendant, either by personal service or by mail
addressed to the defendant. The clerk shall note on each copy
served the date on which the notice of appeal was filed. Failure
of the clerk to serve notice shall not affect the validity of the
appeal. Service shall be sufficient notwithstanding the death of
a party or the party's counsel. The clerk shall note in the
docket the names of the parties to whom the clerk mails copies,
with the date of mailing.
(e) Payment of fees. Upon the filing of any separate or
joint notice of appeal from the district court, the appellant
shall pay to the clerk of the district court such fees as are
established by statute, and also the docket fee.
Updated January 1, 1993 prescribed by the Judicial Conference of
the United States, the latter to be received by the clerk of the
district court on behalf of the court of appeals.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989.)
FRAP 4
APPEAL AS OF RIGHT-WHEN TAKEN
(a) Appeals in civil cases.
(1) In a civil case in which an appeal is permitted by
law as of right from a district court to a court of appeals the
notice of appeal required by Rule 3 shall be filed with the clerk
of the district court within 30 days after the date of entry of
the judgment or order appealed from; but if the United States or
an officer or agency thereof is a party, the notice of appeal may
be filed by any party within 60 days after such entry. If a
notice of appeal is mistakenly filed in the court of appeals, the
clerk of the court of appeals shall note thereon the date on
which it was received and transmit it to the clerk of the
district court and it shall be deemed filed in the district court
on the date so noted.
(2) Except as provided in (a)(4) of this Rule 4, a notice
of appeal filed after the announcement of a decision or order but
before the entry of the judgment or order shall be treated as
filed after such entry and on the day thereof.
(3) If a timely notice of appeal is filed by a party, any
other party may file a notice of appeal within 14 days after the
date on which the first notice of appeal was filed, or within the
time otherwise prescribed by this Rule 4(a), whichever period
last expires.
(4) If a timely motion under the Federal Rules of Civil
Procedure is filed in the district court by any party: (i) for
judgment under Rule 50(b); (ii) under Rule 52(b) to amend or make
additional findings of fact, whether or not an alteration of the
judgment would be required if the motion is granted; (iii) under
Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for
a new trial, the time for appeal for all parties shall run from
the entry of the order denying a new trial or granting or denying
any other such motion. A notice of appeal filed before the
disposition of any of the above motions shall have no effect. A
new notice of appeal must be filed within the prescribed time
measured from the entry of the order disposing of the motion as
provided above. No additional fees shall be required for such
filing.
(5) The district court, upon a showing of excusable
neglect or good cause, may extend the time for filing a notice of
appeal upon motion filed not later than 30 days after the
expiration of the time prescribed by this Rule 4(a). Any such
motion which is filed before expiration of the prescribed time
may be ex parte unless the court otherwise requires. Notice of
any such motion which is filed after expiration of the prescribed
time shall be given to the other parties in accordance with local
rules. No such extension shall exceed 30 days past such
prescribed time or 10 days from the date of entry of the order
granting the motion, whichever occurs later.
(6) The district court, if it finds (a) that a party
entitled to notice of the entry of a judgment or order did not
receive such notice from the clerk or any party within 21 days of
its entry and (b) that no party would be prejudiced, may upon
motion filed within 180 days of entry of the judgment or order or
within 7 days of receipt of such notice, whichever is earlier,
reopen the time for appeal for a period of 14 days from the date
of entry of the order reopening the time for appeal.
(7) A judgment or order is entered within the meaning of
the Rule 4(a) when it is entered in compliance with Rules 58 and
79(a) of the Federal Rules of Civil Procedure.
(b) Appeals in criminal cases. In a criminal case the
notice of appeal by a defendant shall be filed in the district
court within 10 days after the entry of (i) the judgment or order
appealed from or (ii) a notice of appeal by the Government. A
notice of appeal filed after the announcement of a decision,
sentence or order but before entry of the judgment or order shall
be treated as filed after such entry and on the day thereof. If
a timely motion in arrest of judgment or for a new trial on any
ground other than newly discovered evidence has been made, an
appeal from a judgment of conviction may be taken within 10 days
after the entry of an order denying the motion. A motion for a
new trial based on the ground of newly discovered evidence will
similarly extend the time for appeal from a judgment of
conviction if the motion is made before or within 10 days after
entry of the judgment. When an appeal by the government is
authorized by statute, the notice of appeal shall be filed in the
district court within 30 days after the entry of (i) the judgment
or order appealed from or (ii) a notice of appeal by any
defendant. A judgment or order is entered within the meaning of
this subdivision when it is entered in the criminal docket. Upon
a showing of excusable neglect the district court may, before or
after the time has expired, with or without motion and notice,
extend the time for filing a notice of appeal for a period not to
exceed 30 days from the expiration of the time otherwise
prescribed by this subdivision.
(a) Petition for permission to appeal. An appeal from an
interlocutory order containing the statement prescribed by 28
U.S.C. 1292(b) may be sought by filing a petition for permission
to appeal with the clerk of the court of appeals within 10 days
after the entry of such order in the district court with proof of
service on all other parties to the action in the district court.
An order may be amended to include the prescribed statement at
any time, and permission to appeal may be sought within 10 days
after entry of the order as amended.
(b) Content of the petition; answer. The petition shall
contain a statement of the facts necessary to an understanding of
the controlling question of law determined by the order of the
district court; a statement of the question itself; and a
statement of the reasons why a substantial basis exists for a
difference of opinion on the question and why an immediate appeal
may materially advance the termination of the litigation. The
petition shall include or have annexed thereto a copy of the
order from which appeal is sought and of any findings of fact,
conclusions of law and opinion relating thereto. Within 7 days
after service of the petition an adverse party may file an answer
in opposition. The application and answer shall be submitted
without oral argument unless otherwise ordered.
(c) Form of papers; number of copies. All papers may be
typewritten. Three copies shall be filed with the original, but
the court may require that additional copies be furnished.
(d) Grant of permission; cost bond; filing of record.
Within 10 days after the entry of an order granting permission to
appeal the appellant shall (1) pay to the clerk of the district
court the fees established by statute and the docket fee
prescribed by the Judicial Conference of the United States and
(2) file a bond for costs if required pursuant to Rule 7. The
clerk of the district court shall notify the clerk of the court
of appeals of the payment of the fees. Upon receipt of such
notice the clerk of the court of appeals shall enter the appeal
upon the docket. The record shall be transmitted and filed in
accordance with Rules 11 and 12(b). A notice of appeal need not
be filed.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979.) Updated January 1,
1993
FRAP 5.1
APPEALS BY PERMISSION UNDER 28 U.S.C. 636(c)(5)
(a) Petition for Leave to Appeal; Answer or Cross
Petition. An appeal from a district court judgment, entered
after an appeal pursuant to 28 U.S.C. 636(c)(4) to a judge of
the district court from a judgment entered upon direction of a
magistrate in a civil case, may be sought by filing a petition
for leave to appeal. An appeal on petition for leave to appeal
is not a matter of right, but its allowance is a matter of sound
judicial discretion. The petition shall be filed with the clerk
of the court of appeals within the time provided by Rule 4(a) for
filing a notice of appeal, with proof of service on all parties
to the action in the district court. A notice of appeal need not
be filed. Within 14 days after service of the petition, a party
may file an answer in opposition or a cross petition.
(b) Content of Petition; Answer. The petition for leave
to appeal shall contain a statement of the facts necessary to an
understanding of the questions to be presented by the appeal; a
statement of those questions and of the relief sought; a
statement of the reasons why in the opinion of the petitioner the
appeal should be allowed; and a copy of the order, decree or
judgment complained of and any opinion or memorandum relating
thereto. The petition and answer shall be submitted to a panel
of judges of the court of appeals without oral argument unless
otherwise ordered.
(c) Form of Papers; Number of Copies. All papers may be
typewritten. Three copies shall be filed with the original, but
the court may require that additional copies be furnished.
(d) Allowance of the Appeal; Fees; Cost Bond; Filing of
Record. Within 10 days after the entry of an order granting the
appeal, the appellant shall (1) pay to the clerk of the district
court the fees established by statute and the docket fee
prescribed by the Judicial Conference of the United States and
(2) file a bond for costs if required pursuant to Rule 7. The
clerk of the district court shall notify the clerk of the court
of appeals of the payment of the fees. Upon receipt of such
notice, the clerk of the court of appeals shall enter the appeal
upon the docket. The record shall be transmitted and filed in
accordance with Rules 11 and 12(b).
(As added Mar. 10, 1986, eff. July 1, 1986.) Updated January 1,
1993
FRAP 6
APPEALS IN BANKRUPTCY CASES FROM FINAL JUDGMENTS AND ORDERS OF
DISTRICT COURTS OR OF BANKRUPTCY APPELLATE PANELS
(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 pursuant to 28
U.S.C. 1334 shall be taken in identical fashion as appeals from
other judgments, orders or decrees of district courts in civil
actions.
(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. All provisions of these rules are applicable to an appeal
to a court of appeals pursuant to 28 U.S.C. 158(d) from a final
judgment, order or decree of a district court or bankruptcy
appellate panel exercising appellate jurisdiction pursuant to 28
U.S. C. 158(a) or (b), except that :
(i) Rules 3.1, 4(a)(4), 4(b), 5.1, 9, 10, 11, 12(b), 13-
20, 22-23, and 24(b) are not applicable;
(ii) the reference in Rule 3(c) to "Form 1 in the
Appendix of Forms" shall be read as a reference to Form 5; and
(iii) 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 additional to the rules made
applicable by subsection (b)(1) of this rule, the following rules
shall apply to an appeal to a court of appeals pursuant to 28
U.S.C. 158(d) from a final judgment, order or decree of a
district court or of a bankruptcy appellate panel exercising
appellate jurisdiction pursuant to 28 U.S.C. 158 (a) or (b):
(i) Effect of motion for rehearing on time for appeal.
If a timely motion for rehearing under Bankruptcy Rule 8015 is
filed in the district court or the bankruptcy appellate panel,
the time for appeal to the court of appeals for all parties shall
run from the entry of the order denying the rehearing or the
entry of the subsequent judgment.
(ii) The record on appeal. Within 10 days after filing
the notice of appeal, the appellant shall file with the clerk
possessed of the record assembled pursuant to 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 transmitted to the clerk of the court of appeals.
If the appellee deems other parts of the record necessary, the
appellee shall, within 10 days after service of the appellant's
designation, file with the clerk and serve on the appellant a
designation of additional parts to be included. The record,
redesignated as provided above, plus the proceedings in the
district court or bankruptcy appellate panel and a certified copy
of the docket entries prepared by the clerk pursuant to Rule 3(d)
shall constitute the record on appeal.
(iii) Transmission of the record. When the record is
complete for purpose of the appeal, the clerk of the district
court or the appellate panel, shall transmit it forthwith to the
clerk of the court of appeals. The clerk of the district court
or of the appellate panel shall number the documents comprising
the record and shall transmit with the record a list of documents
correspondingly numbered and identified with reasonable
definiteness. Documents of unusual bulk or weight, physical
exhibits other than documents, and such other parts of the record
as the court of appeal may designate by local rule, shall not be
transmitted by the clerk unless the clerk is directed to do so by
a party or by the clerk of the court of appeals. A party must
make advance arrangement with the clerk for the transportation
and receipt of exhibits of unusual bulk or weight. All parties
shall take any other action necessary to enable the clerk to
assemble and transmit the record. The court of appeals may
provide by rule or order that a certified copy of the docket
entries shall be transmitted in lieu of the redesignated record,
subject to the right of any party to request at any time during
the pendency of the appeal that the redesignated record be
transmitted.
(iv) Filing of the record. Upon receipt of the record,
the clerk of the court of appeals shall file it and shall
immediately give notice to all parties of the date on which it
was filed. Upon receipt of a certified copy of the docket
entries transmitted in lieu of the redesignated record pursuant
to rule or order, the clerk of the court of appeals shall file it
and shall immediately give notice to all parties of the date on
which it was filed.
/* This rule presumably will be updated soon since there are no
more "Bankruptcy Applellate Panels." */
FRAP 7
BOND FOR COSTS ON APPEAL IN CIVIL CASES
The district court may require an appellant to file a
bond or provide other security in such form and amount as it
finds necessary to ensure payment of costs on appeal in a civil
case. The provisions of Rule 8(b) apply to a surety upon a bond
given pursuant to this rule.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979.)
FRAP 8
STAY OR INJUNCTION PENDING APPEAL
(a) Stay must ordinarily be sought in the first instance
in district court; motion for stay in court of appeals.
Application for a stay of the judgment or order of a district
court pending appeal, or for approval of a supersedeas bond, or
for an order suspending, modifying, restoring or granting an
injunction during the pendency of an appeal must ordinarily be
made in the first instance in the district court. A motion for
such relief may be made to the court of appeals or to a judge
thereof, but the motion shall show that application to the
district court for the relief sought is not practicable, or that
the district court has denied an application or has failed to
afford the relief which the applicant requested, with the reasons
given by the district court for its action. The motion shall
also show the reasons for the relief requested and the facts
relied upon, and if the facts are subject to dispute the motion
shall be supported by affidavits or other sworn statements or
copies thereof. With the motion shall be filed such parts of the
record as are relevant. Reasonable notice of the motion shall be
given to all parties. The motion shall be filed with the clerk
and normally will be considered by a panel or division of the
court, but in exceptional cases where such procedure would be
impracticable due to the requirements of time, the application
may be made to and considered by a single judge of the court.
(b) Stay may be conditioned upon giving of bond;
proceedings against sureties. Relief available in the court of
appeals under this rule may be conditioned upon the filing of a
bond or other appropriate security in the district court. If
security is given 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
clerk of the district court as the surety's agent upon whom any
papers affecting the surety's liability on the bond or
undertaking may be served. A surety's liability may be enforced
on motion in the district court without the necessity of an
independent action. The motion and such notice of the motion as
the district court prescribes may be served on the clerk of the
district court, who shall forthwith mail copies to the sureties
if their addresses are known.
(c) Stays in criminal cases. Stays in criminal cases
shall be had in accordance with the provisions of Rule 38(a) of
the Federal Rules of Criminal Procedure.
(As amended Mar. 10, 1986, eff. July 1, 1986.)
FRAP 9
RELEASE IN CRIMINAL CASES
(a) Appeals from orders respecting release entered prior
to a judgment of conviction. An appeal authorized by law from an
order refusing or imposing conditions of release shall be
determined promptly. Upon entry of an order refusing or imposing
conditions of release, the district court shall state in writing
the reasons for the action taken. The appeal shall be heard
without the necessity of briefs after reasonable notice to the
appellee upon such papers, affidavits, and portions of the record
as the parties shall present. The court of appeals or a judge
thereof may order the release of the appellant pending the
appeal.
(b) Release pending appeal from a judgment of conviction.
Application for release after a judgment of conviction shall be
made in the first instance in the district court. If the
district court refuses release pending appeal, or imposes
conditions of release, the court shall state in writing the
reasons for the action taken. Thereafter, if an appeal is
pending, a motion for release, or for modification of the
conditions of release, pending review may be made to the court of
appeals or to a judge thereof. The motion shall be determined
promptly upon such papers, affidavits, and portions of the record
as the parties shall present and after reasonable notice to the
appellee. The court of appeals or a judge thereof may order the
release of the appellant pending disposition of the motion.
(c) Criteria for release. The decision as to release
pending appeal shall be made in accordance with Title 18, U.S.C.
3143. The burden of establishing that the defendant will not
flee or pose a danger to any other person or to the community 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 rests with the defendant.
(a) Composition of the record on appeal. The original papers and
exhibits filed in the district court, the transcript of
proceedings, if any, and a certified copy of the docket entries
prepared by the clerk of the district court shall constitute the
record on appeal in all cases.
(b) The transcript of proceedings; duty of appellant to
order; notice to appellee if partial transcript is ordered.
(1) Within 10 days after filing the notice of appeal the
appellant shall order from the reporter a transcript of such
parts of the proceedings not already on file as the appellant
deems necessary, subject to local rules of the courts of appeals.
The order shall be in writing and within the same period a copy
shall be filed with the clerk of the district court. If funding
is to come from the United States under the Criminal Justice Act,
the order shall so state. If no such parts of the proceedings
are to be ordered, within the same period the appellant shall
file a certificate to that effect.
(2) 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 shall include in the
record a transcript of all evidence relevant to such findings or
conclusion.
(3) Unless the entire transcript is to be included, the
appellant shall, within the 10 days time provided in (b)(1) of
this Rule 10, file a statement of the issues the appellant
intends to present on the appeal and shall serve on the appellee
a copy of the order or certificate and of the statement. If the
appellee deems a transcript or other parts of the proceedings to
be necessary, the appellee shall, within 10 days after the
service of the order or certificate and the statement of the
appellant, file and serve on the appellant a designation of
additional parts to be included. Unless within 10 days after
service of such designation the appellant has ordered 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) At the time of ordering, a party must make
satisfactory arrangements with the reporter for payment of the
cost of the transcript.
(c) Statement of the evidence or proceedings when no
report was made or when the transcript is unavailable. If no
report of the evidence or proceedings at a hearing or trial was
made, or if a transcript 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 shall be served on the appellee, who may serve
objections or proposed amendments thereto within 10 days after
service. Thereupon the statement and any objections or proposed
amendments shall be submitted to the district court for
settlement and approval and as settled and approved shall be
included by the clerk of the district court in the record on
appeal.
(d) Agreed statement as the record on appeal. In lieu
of the record on appeal as defined in subdivision (a) of this
rule, the parties may prepare and sign a statement of the case
showing how the issues presented by the appeal arose and were
decided in the district court and setting forth only so many of
the facts averred and proved or sought to be proved as are
essential to a decision of the issues presented. If the
statement conforms to the truth, it, together with such additions
as the court may consider necessary fully to present the issues
raised by the appeal, shall be approved by the district court and
shall then be certified to the court of appeals as the record on
appeal and transmitted thereto by the clerk of the district court
within the time provided by Rule 11. Copies of the agreed
statement may be filed as the appendix required by Rule 30.
(e) Correction or modification of the record. If any
difference arises as to whether the record truly discloses what
occurred in the district court, the difference shall be submitted
to and settled by that court and the record made to conform to
the truth. If anything material to either party is omitted from
the record by error or accident or is misstated therein, the
parties by stipulation, or the district court, either before or
after the record is transmitted to the court of appeals, or the
court of appeals, on proper suggestion or of its own initiative,
may direct that the omission or misstatement be corrected, and if
necessary that a supplemental record be certified and
transmitted. All other questions as to the form and content of
the record shall be presented to the court of appeals.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986, Apr. 30, 1991, eff. Dec. 1, 1991.)
FRAP 11
TRANSMISSION OF THE RECORD
(a) Duty of appellant. After filing the notice of appeal
the appellant, or in the event that more than 1 appeal is taken,
each appellant, shall comply with the provisions of Rule 10(b)
and shall take any other action necessary to enable the clerk to
assemble and transmit the record. A single record shall be
transmitted.
(b) Duty of reporter to prepare and file transcript;
notice to court of appeals; duty of clerk to transmit the record.
Upon receipt of an order for a transcript, the reporter shall
acknowledge at the foot of the order the fact that the reporter
has received it and the date on which the reporter expects to
have the transcript completed and shall transmit the order, so
endorsed, to the clerk of the court of appeals. If the
transcript cannot be completed within 30 days of receipt of the
order the reporter shall request an extension of time from the
clerk of the court of appeals and the action of the clerk of the
court of appeals shall be entered on the docket and the parties
notified. In the event of the failure of the reporter to file
the transcript within the time allowed, the clerk of the court of
appeals shall notify the district judge and take such other steps
as may be directed by the court of appeals. Upon completion of
the transcript the reporter shall file it with the clerk of the
district court and shall notify the clerk of the court of appeals
that the reporter has done so.
When the record is complete for purposes of the appeal,
the clerk of the district court shall transmit it forthwith to
the clerk of the court of appeals. The clerk of the district
court shall number the documents comprising the record and shall
transmit with the record a list of documents correspondingly
numbered and identified with reasonable definiteness. Documents
of unusual bulk or weight, physical exhibits other than
documents, and such other parts of the record as the court of
appeals may designate by local rule, shall not be transmitted by
the clerk unless the clerk is directed to do so by a party or by
the clerk of the court of appeals. A party must make advance
arrangements with the clerks for the transportation and receipt
of exhibits of unusual bulk or weight.
(c) Temporary retention of record in district court for
use in preparing appellate papers. Notwithstanding the
provisions of (a) and (b) of this Rule 11, the parties may
stipulate, or the district court on motion of any party may
order, that the clerk of the district court shall temporarily
retain the record for use by the parties in preparing appellate
papers. In that event the clerk of the district court shall
certify to the clerk of the court of appeals that the record,
including the transcript or parts thereof designated for
inclusion and all necessary exhibits, is complete for purposes of
the appeal. Upon receipt of the brief of the appellee, or at
such earlier time as the parties may agree or the court may
order, the appellant shall request the clerk of the district
court to transmit the record.
(d) [Extension of time for transmission of
the record; reduction of time] [Abrogated]
(e) Retention of the record in the district court by
order of court. The court of appeals may provide by rule or
order that a certified copy of the docket entries shall be
transmitted in lieu of the entire record, subject to the right of
any party to request at any time during the pendency of the
appeal that designated parts of the record be transmitted.
If the record or any part thereof is required in the
district court for use there pending the appeal, the district
court may make an order to that effect, and the clerk of the
district court shall retain the record or parts thereof subject
to the request of the court of appeals, and shall transmit a copy
of the order and of the docket entries together with such parts
of the original record as the district court shall allow and
copies of such parts as the parties may designate.
(f) Stipulation of parties that parts of the record be
retained in the district court. The parties may agree by written
stipulation filed in the district court that designated parts of
the record shall be retained in the district court unless
thereafter the court of appeals shall order or any party shall
request their transmittal. The parts thus designated shall
nevertheless be a part of the record on appeal for all purposes.
(g) Record for preliminary hearing in the court of
appeals. If prior to the time the record is transmitted a party
desires to make in the court of appeals a motion 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
intermediate order, the clerk of the district court at the
request of any party shall transmit to the court of appeals such
parts of the original record as any party shall designate.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986.)
FRAP 12
DOCKETING THE APPEAL; FILING OF THE RECORD
(a) Docketing the appeal. Upon receipt of the copy of
the notice of appeal and of the docket entries, transmitted by
the clerk of the district court pursuant to Rule 3(d), the clerk
of the court of appeals shall thereupon enter the appeal upon the
docket. An appeal shall be docketed under the title given to the
action in the district court, with the appellant identified as
such, but if such title does not contain the name of the
appellant, the appellant's name, identified as appellant, shall
be added to the title.
(b) Filing the record, partial record, or certificate.
Upon receipt of the record transmitted pursuant to Rule 11(b), or
the partial record transmitted pursuant to Rule 11(e), (f), or
(g), or the clerk's certificate under Rule 11(c), the clerk of
the court of appeals shall file it and shall immediately give
notice to all parties of the date on which it was filed.
(c) [Dismissal for failure of appellant to cause timely
transmission or to docket appeal] [Abrogated]
(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986.)
FRAP 14
APPLICABILITY OF OTHER RULES TO REVIEW
OF DECISIONS OF THE TAX COURT
All provisions of these rules are applicable to review of
a decision of the Tax Court, except that Rules 4-9, Rules 15-20,
and Rules 22 and 23 are not applicable.
FRAP 15
REVIEW OR ENFORCEMENT OF AGENCY ORDERS - HOW OBTAINED;
INTERVENTION
(a) Petition for review of order; joint petition.
Review of an order of an administrative agency, board, commission
or officer (hereinafter, the term "agency" shall include agency,
board, commission or officer) shall be obtained by filing with
the clerk of a court of appeals which is authorized to review
such order, within the time prescribed by law, a petition to
enjoin, set aside, suspend, modify or otherwise review, or a
notice of appeal, whichever form is indicated by the applicable
statute (hereinafter, the term "petition for review" shall
include a petition to enjoin, set aside, suspend, modify or
otherwise review, or a notice of appeal). The petition shall
specify the parties seeking review and shall designate the
respondent and the order or part thereof to be reviewed. Form 3
in the Appendix of Forms is a suggested form of a petition for
review. In each case the agency shall be named respondent. The
United States shall also be deemed a respondent if so required by
statute, even though not so designated in the petition. If two
or more persons are entitled to petition the same court for
review of the same order and their interests are such as to make
joinder practicable, they may file a joint petition for review
and may thereafter proceed as a single petitioner.
(b) Application for enforcement of order; answer;
default; cross- application for enforcement. An application for
enforcement of an order of an agency shall be filed with the
clerk of a court of appeals which is authorized to enforce the
order. The application shall contain a concise statement of the
proceedings in which the order was entered, the facts upon which
venue is based, and the relief prayed. Within 20 days after the
application is filed, the respondent shall serve on the
petitioner and file with the clerk an answer to the application.
If the respondent fails to file an answer within such time,
judgment will be awarded for the relief prayed. If a petition is
filed for review of an order which the court has jurisdiction to
enforce, the respondent may file a cross-application for
enforcement.
(c) Service of petition or application. A copy of a
petition for review or of an application or cross-application for
enforcement of an order shall be served by the clerk of the court
of appeals on each respondent in the manner prescribed by Rule
3(d), unless a different manner of service is prescribed by an
applicable statute. At the time of filing, the petitioner shall
furnish the clerk with a copy of the petition or application for
each respondent. At or before the time of filing a petition for
review, the petitioner shall serve a copy thereof on all parties
who shall have been admitted to participate in the proceedings
before the agency other than respondents to be served by the
clerk, and shall file with the clerk a list of those so served.
(d) Intervention. Unless an applicable statute provides
a different method of intervention, a person who desires to
intervene in a proceeding under this rule shall serve upon all
parties to the proceeding and file with the clerk of the court of
appeals a motion for leave to intervene. The motion shall
contain a concise statement of the interest of the moving party
and the grounds upon which intervention is sought. A motion for
leave to intervene or other notice of intervention authorized by
an applicable statute shall be filed within 30 days of the date
on which the petition for review is filed.
FRAP 15.1
BRIEFS AND ORAL ARGUMENT IN NATIONAL LABOR RELATIONS BOARD
PROCEEDINGS
Each party adverse to the National Labor Relations Board
in an enforcement or a review proceeding shall proceed first on
briefing and at oral argument unless the court orders otherwise.
(As added Mar. 10, 1986, eff. July 1, 1986.)
FRAP 16
THE RECORD ON REVIEW OR ENFORCEMENT
(a) Composition of the record. The order sought to be
reviewed or enforced, the findings or report on which it is
based, and the pleadings, evidence and proceedings before the
agency shall constitute the record on review in proceedings to
review or enforce the order of an agency.
(b) Omissions from or misstatements in the record. If
anything material to any party is omitted from the record or is
misstated therein, the parties may at any time supply the
omission or correct the misstatement by stipulation, or the court
may at any time direct that the omission or misstatement be
corrected and, if necessary, that a supplemental record be
prepared and filed.
FRAP 17
FILING OF THE RECORD
(a) Agency to file; time for filing; notice of filing.
The agency shall file the record with the clerk of the court of
appeals within 40 days after service upon it of the petition for
review unless a different time is provided by the statute
authorizing review. In enforcement proceedings the agency shall
file the record within 40 days after filing an application for
enforcement, but the record need not be filed unless the
respondent has filed an answer contesting enforcement of the
order, or unless the court otherwise orders. The court may
shorten or extend the time above prescribed. The clerk shall
give notice to all parties of the date on which the record is
filed.
(b) Filing - What Constitutes. The agency may file the
entire record or such parts thereof as the parties may designate
by stipulation filed with the agency. The original papers in the
agency proceeding or certified copies thereof may be filed.
Instead of filing the record or designated parts thereof, the
agency may file a certified list of all documents, transcripts of
testimony, exhibits and other material comprising the record, or
a list of such parts thereof as the parties may designate,
adequately describing each, and the filing of the certified list
shall constitute filing of the record. The parties may stipulate
that neither the record nor a certified list be filed with the
court. The stipulation shall be filed with the clerk of the
court of appeals and the date of its filing shall be deemed the
date on which the record is filed. If a certified list is filed,
or if the parties designate only parts of the record for filing
or stipulate that neither the record nor a certified list be
filed, the agency shall retain the record or parts thereof. Upon
request of the court or the request of a party, the record or any
part thereof thus retained shall be transmitted to the court
notwithstanding any prior stipulation. All parts of the record
retained by the agency shall be a part of the record on review
for all purposes.
FRAP 18
STAY PENDING REVIEW
Application for a stay of a decision or order of an
agency pending direct review in the court of appeals shall
ordinarily be made in the first instance to the agency. A motion
for such relief may be made to the court of appeals or to a judge
thereof, but the motion shall show that application to the agency
for the relief sought is not practicable, or that application has
been made to the agency and denied, with the reasons given by it
for denial, or that the action of the agency did not afford the
relief which the applicant had requested. The motion shall also
show the reasons for the relief requested and the facts relied
upon, and if the facts are subject to dispute the motion shall be
supported by affidavits or other sworn statements or copies
thereof. With the motion shall be filed such parts of the record
as are relevant to the relief sought. Reasonable notice of the
motion shall be given to all parties to the proceeding in the
court of appeals. The court may condition relief under this rule
upon the filing of a bond or other appropriate security. The
motion shall be filed with the clerk and normally will be
considered by a panel or division of the court, but in
exceptional cases where such procedure would be impracticable due
to the requirements of time, the application may be made to and
considered by a single judge of the court.
When an opinion of the court is filed directing the entry
of a judgment enforcing in part the order of an agency, the
agency shall within 14 days thereafter serve upon the respondent
and file with the clerk a proposed judgment in conformity with
the opinion. If the respondent objects to the proposed judgment
as not in conformity with the opinion, the respondent shall
within 7 days thereafter serve upon the agency and file with the
clerk a proposed judgment which the respondent deems to be in
conformity with the opinion. The court will thereupon settle the
judgment and direct its entry without further hearing or
argument.
(As amended Mar. 10, 1986, eff. July 1, 1986.)
FRAP 20
APPLICABILITY OF OTHER RULES TO REVIEW OR ENFORCEMENT
OF AGENCY ORDERS
All provisions of these Rules are applicable to review or
enforcement of orders of agencies, except that Rules 3-14 and
Rules 22 and 23 are not applicable. As used in any applicable
rule, the term "appellant" includes a petitioner and the term
"appellee" includes a respondent in proceedings to review or
enforce agency orders.
FRAP 21
WRITS OF MANDAMUS AND PROHIBITION DIRECTED TO A JUDGE OR JUDGES
AND OTHER EXTRAORDINARY WRITS
(a) Mandamus or prohibition to a judge or judges;
petition for writ; service and filing. Application for a writ of
mandamus or of prohibition directed to a judge or judges shall be
made by filing a petition therefor with the clerk of the court of
appeals with proof of service on the respondent judge or judges
and on all parties to the action in the trial court. The
petition shall contain a statement of the facts necessary to an
understanding of the issues presented by the application; a
statement of the issues presented and of the relief sought; a
statement of the reasons why the writ should issue; and copies of
any order or opinion or parts of the record which may be
essential to an understanding of the matters set forth in the
petition. Upon receipt of the prescribed docket fee, the clerk
shall docket the petition and submit it to the court.
(b) Denial; order directing answer. If the court is of
the opinion that the writ should not be granted, it shall deny
the petition. Otherwise it shall order that an answer to the
petition be filed by the respondents within the time fixed by the
order. The order shall be served by the clerk on the judge or
judges named respondents and on all other parties to the action
in the trial court. All parties below other than the petitioner
shall also be deemed respondents for all purposes. Two or more
respondents may answer jointly. If the judge or judges named
respondents do not desire to appear in the proceeding, they may
so advise the clerk and all parties by letter, but the petition
shall not thereby be taken as admitted. The clerk shall advise
the parties of the dates on which briefs are to be filed, if
briefs are required, and of the date of oral argument. The
proceeding shall be given preference over ordinary civil cases.
(c) Other extraordinary writs. Application for
extraordinary writs other than those provided for in subdivisions
(a) and (b) of this rule shall be made by petition filed with the
clerk of the court of appeals with proof of service on the
parties named as respondents. Proceedings on such application
shall conform, so far as is practicable, to the procedure
prescribed in subdivisions (a) and (b) of this rule.
(d) Form of papers; number of copies. All papers may be
typewritten. Three copies shall be filed with the original, but
the court may direct that additional copies be furnished.
/* In the Federal Rules of Civil Procedure Writs of Mandamus and
other similar writs are abolished; they are however permitted in
appeals courts. */
FRAP 22
HABEAS CORPUS PROCEEDINGS
(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.
FRAP 23
CUSTODY OF PRISONERS IN HABEAS CORPUS PROCEEDINGS
(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, a person having custody of the prisoner shall not
transfer custody to another unless such transfer is directed in
accordance with the provisions of this rule. Upon application of
a custodian showing a need therefor, the court, justice or judge
rendering the decision may make an order authorizing transfer and
providing for the substitution of the successor custodian as a
party.
(b) Detention or release of prisoner pending review of
decision failing to release. Pending review of a decision
failing or refusing to release a prisoner in such a proceeding,
the prisoner may be detained in the custody from which release is
sought, or in other appropriate custody, or may be enlarged upon
the prisoner's recognizance, with or without surety, as may
appear fitting to the court or justice or judge rendering the
decision, or to the court of appeals or to the Supreme Court, or
to a judge or justice of either court.
(c) Release of prisoner pending review of decision
ordering release. Pending review of a decision ordering the
release of a prisoner in such a proceeding, the prisoner shall be
enlarged upon the prisoner's recognizance, with or without
surety, unless the court or justice or judge rendering the
decision, or the court of appeals or the Supreme Court, or a
judge or justice of either court shall otherwise order.
(d) Modification of initial order respecting custody. An
initial order respecting the custody or enlargement of the
prisoner and any recognizance or surety taken, shall govern
review in the court of appeals and in the Supreme Court unless
for special reasons shown to the court of appeals or to the
Supreme Court, or to a judge or justice of either court, the
order shall be modified, or an independent order respecting
custody, enlargement or surety shall be made.
FRAP 24
PROCEEDINGS IN FORMA PAUPERIS
(a) Leave to proceed on appeal in forma pauperis from
district court to court of appeals. A party to an action in a
district court who desires to proceed on appeal in forma pauperis
shall file in the district court a motion for leave so to
proceed, together with an affidavit, showing, in the detail
prescribed by Form 4 of the Appendix of Forms, the party's
inability to pay fees and costs or to give security therefor, the
party's belief that party is entitled to redress, and a statement
of the issues which that party intends to present on appeal. If
the motion is granted, the party may proceed without further
application to the court of appeals and without prepayment of
fees or costs in either court or the giving of security therefor.
If the motion is denied, the district court shall state in
writing the reasons for the denial.
Notwithstanding the provisions of the preceding
paragraph, a party who has been permitted to proceed in an action
in the district court in forma pauperis, or who has been
permitted to proceed there as one who is financially unable to
obtain adequate defense in a criminal case, may proceed on appeal
in forma pauperis without further authorization unless, before or
after the notice of appeal is filed, the district court shall
certify that the appeal is not taken in good faith or shall find
that the party is otherwise not entitled so to proceed, in which
event the district court shall state in writing the reasons for
such certification or finding.
If a motion for leave to proceed on appeal in forma
pauperis is denied by the district court, or if the district
court shall certify that the appeal is not taken in good faith or
shall find that the party is otherwise not entitled to proceed in
forma pauperis, the clerk shall forthwith serve notice of such
action. A motion for leave so to proceed may be filed in the
court of appeals within 30 days after service of notice of the
action of the district court. The motion shall be accompanied by
a copy of the affidavit filed in the district court, or by the
affidavit prescribed by the first paragraph of this subdivision
if no affidavit has been filed in the district court, and by a
copy of the statement of reasons given by the district court for
its action.
(b) Leave to proceed on appeal or review in forma
pauperis in administrative agency proceedings. A party to a
proceeding before an administrative agency, board, commission or
officer (including, for the purpose of this rule, the United
States Tax Court) who desires to proceed on appeal or review in a
court of appeals in forma pauperis, when such appeal or review
may be had directly in a court of appeals, shall file in the
court of appeals a motion for leave so to proceed, together with
the affidavit prescribed by the first paragraph of (a) of this
Rule 24.
(c) Form of briefs, appendices and other papers. Parties
allowed to proceed in forma pauperis may file briefs, appendices
and other papers in typewritten form, and may request that the
appeal be heard on the original record without the necessity of
reproducing parts thereof in any form.
(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986.)
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