Part two of 2 of the Federal Rules of Appellate Procedure. */
FRAP 25
FILING AND SERVICE
(a) Filing. Papers required or permitted to be filed in
a court of appeals shall be filed with the clerk. Filing may be
accomplished by mail addressed to the clerk, but filing shall not
be timely unless the papers are received by the clerk within the
time fixed for filing, except that briefs and appendices shall be
deemed filed on the day of mailing if the most expeditious form
of delivery by mail, excepting special delivery, is utilized. If
a motion requests relief which may be granted by a single judge,
the judge may permit the motion to be filed with the judge, in
which event the judge shall note thereon the date of filing and
shall thereafter transmit it to the clerk. A court of appeals
may, by local rule, permit papers to be filed by facsimile or
other electronic means, provided such means are authorized by and
consistent with standards established by the Judicial Conference
of the United States.
(b) Service of all papers required. Copies of all papers
filed by any party and not required by these rules to be served
by the clerk shall, at or before the time of filing, be served by
a party or person acting for that party on all other parties to
the appeal or review. Service on a party represented by counsel
shall be made on counsel.
(c) Manner of service. Service may be personal or by
mail. Personal service includes delivery of the copy to a clerk
or other responsible person at the office of counsel. Service by
mail is complete on mailing.
(d) Proof of service. Papers presented for filing shall
contain an acknowledgment of service by the person served or
proof of service in the form of a statement of the date and
manner of service and of the names of the person served,
certified by the person who made service. Proof of service may
appear on or be affixed to the papers filed. The clerk may
permit papers to be filed without acknowledgment or proof of
service but shall require such to be filed promptly thereafter.
(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 30, 1991, eff.
Dec. 1, 1991.)
FRAP 26
COMPUTATION AND EXTENSION OF TIME
(a) Computation of time. In computing any period of time
prescribed or allowed by these rules, by an order of court, or by
any applicable statute, the day of the act, event, or default
from which the designated period of time begins to run shall not
be included. The last day of the period so computed shall be
included, unless it is a Saturday, a Sunday, or a legal holiday,
or when the act to be done is the filing of a paper in court, a
day on which weather or other conditions have made the office of
the clerk of the court inaccessible, in which event the period
runs until the end of the next day which is not one of the
aforementioned days. When the period of time prescribed or
allowed is less than 7 days, intermediate Saturdays, Sundays, and
legal holidays shall be excluded in the computation. As used in
this rule "legal holiday" includes New Year's Day, Birthday of
Martin Luther King, Jr., Washington's Birthday, Memorial Day,
Independence Day, Labor Day, Columbus Day, Veterans Day,
Thanksgiving Day, Christmas Day, and any other day appointed as a
holiday by the President or the Congress of the United States.
It shall also include a day appointed as a holiday by the state
wherein the district court which rendered the judgment or order
which is or may be appealed from is situated, or by the state
wherein the principal office of the clerk of the court of appeals
in which the appeal is pending is located.
(b) Enlargement of time. The court for good cause shown
may upon motion enlarge the time prescribed by these rules or by
its order for doing any act, or may permit an act to be done
after the expiration of such time; but the court may not enlarge
the time for filing a notice of appeal, a petition for allowance,
or a petition for permission to appeal. Nor may the court
enlarge the time prescribed by law for filing a petition to
enjoin, set aside, suspend, modify, enforce or otherwise review,
or a notice of appeal from, an order of an administrative agency,
board, commission or officer of the United States, except as
specifically authorized by law.
(c) Additional time after service by mail. Whenever a
party is required or permitted to do an act within a prescribed
period after service of a paper upon that party and the paper is
served by mail, 3 days shall be added to the prescribed period.
Updated January 1, 1993
(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.)
FRAP 26.1
CORPORATE DISCLOSURE STATEMENT
Any non-governmental corporate party to a civil or
bankruptcy case or agency review proceeding and any non-
governmental corporate defendant in a criminal case shall file a
statement identifying all parent companies, subsidiaries (except
wholly-owned subsidiaries), and affiliates that have issued
shares to the public. The statement shall be filed with a
party's principal brief or upon filing a motion, response,
petition, or answer in the court of appeals, whichever first
occurs, unless a local rule requires earlier filing. The
statement shall be included in front of the table of contents in
a party's principal brief even if the statement was previously
filed.
FRAP 27
MOTIONS
(a) Content of motions; response. Unless another form is
elsewhere prescribed by these rules, an application for an order
or other relief shall be made by filing a motion for such order
or relief with proof of service on all other parties. The motion
shall contain or be accompanied by any matter required by a
specific provision of these rules governing such a motion, shall
state with particularity the grounds on which it is based, and
shall set forth the order or relief sought. If a motion is
supported by briefs, affidavits or other papers, they shall be
served and filed with the motion. Any party may file a response
in opposition to a motion other than one for a procedural order
[for which see subdivision (b)] within 7 days after service of
the motion, but motions authorized by Rules 8, 9, 18 and 41 may
be acted upon after reasonable notice, and the court may shorten
or extend the time for responding to any motion.
(b) Determination of motions for procedural orders.
Notwithstanding the provisions of (a) of this Rule 27 as to
motions generally, motions for procedural orders, including any
motion under Rule 26(b), may be acted upon at any time, without
awaiting a response thereto, and pursuant to rule or order of the
court, motions for specified types of procedural orders may be
disposed of by the clerk. Any party adversely affected by such
action may by application to the court request consideration,
vacation or modification of such action.
(c) Power of a single judge to entertain motions. In
addition to the authority expressly conferred by these rules or
by law, a single judge of a court of appeals may entertain and
may grant or deny any request for relief which under these rules
may properly be sought by motion, except that a single judge may
not dismiss or otherwise determine an appeal or other proceeding,
and except that a court of appeals may provide by order or rule
that any motion or class of motions must be acted upon by the
court. The action of a single judge may be reviewed by the
court.
(d) Form of papers; number of copies. All papers
relating to motions may be typewritten. Three copies shall be
filed with the original, but the court may require that
additional copies be furnished.
FRAP 28
BRIEFS
(a) Brief of the appellant. The brief of the appellant
shall contain under appropriate headings and in the order here
indicated:
(1) A table of contents, with page references, and a
table of cases (alphabetically arranged), statutes and other
authorities cited, with references to the pages of the brief
where they are cited.
(2) A statement of subject matter and appellate
jurisdiction. The statement shall include: (i) a statement of
the basis for subject matter jurisdiction in the district court
or agency, with citation to applicable statutory provisions and
with reference to the relevant facts to establish such
jurisdiction; (ii) a statement of the basis for jurisdiction in
the court of appeals, with citation to applicable statutory
provisions and with reference to the relevant facts to establish
such jurisdiction; the statement shall include relevant filing
dates establishing the timeliness of the appeal or petition for
review and (a) shall state that the appeal is from a final order
or a final judgment that disposes of all claims with respect to
all parties or, if not, (b) shall include information
establishing that the court of appeals has jurisdiction on some
other basis.
(3) A statement of the issues presented for review.
(4) A statement of the case. The statement shall first
indicate briefly the nature of the case, the course of
proceedings, and its disposition in the court below. There shall
follow a statement of the facts relevant to the issues presented
for review, with appropriate references to the record (see
subdivision (e)).
(5) An argument. The argument may be preceded by a
summary. The argument shall contain the contentions of the
appellant with respect to the issues presented, and the reasons
therefor, with citations to the authorities, statutes and parts
of the record relied on.
(6) A short conclusion stating the precise relief sought.
(b) Brief of the appellee. The brief of the appellee
shall conform to the requirements of subdivision (a)(1)-(5),
except that a statement of jurisdiction, of the issues, or of the
case need not be made unless the appellee is dissatisfied with
the statement of the appellant.
(c) Reply brief. The appellant may file a brief in reply
to the brief of the appellee, and if the appellee has cross-
appealed, the appellee may file a brief in reply to the response
of the appellant to the issues presented by the cross appeal. No
further briefs may be filed except with leave of court. All
reply briefs shall contain a table of contents, with page
references, and a table of cases (alphabetically arranged),
statutes and other authorities cited, with references to the
pages of the reply brief where they are cited.
(d) References in briefs to parties. Counsel will be
expected in their briefs and oral arguments to keep to a minimum
references to parties by such designations as "appellant" and
"appellee." It promotes clarity to use the designations used in
the lower court or in the agency proceedings, or the actual names
of parties, or descriptive terms such as "the employee," "the
injured person," "the taxpayer," "the ship," "the stevedore,"
etc.
(e) References in briefs to the record. References in
the briefs to parts of the record reproduced in the appendix
filed with the brief of the appellant (see Rule 30(a)) shall be
to the pages of the appendix at which those parts appear. If the
appendix is prepared after the briefs are filed, references in
the briefs to the record shall be made by one of the methods
allowed by Rule 30(c). If the record is reproduced in accordance
with the provisions of Rule 30(f), or if references are made in
the briefs to parts of the record not reproduced, the references
shall be to the pages of the parts of the record involved; e.g.,
Answer p. 7, Motion for Judgment p. 2, Transcript p. 231.
Intelligible abbreviations may be used. If reference is made to
evidence the admissibility of which is in controversy, reference
shall be made to 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 determination of the issues presented requires the study of
statutes, rules, regulations, etc. or relevant parts thereof,
they shall be reproduced in the brief or in an addendum at the
end, or they may be supplied to the court in pamphlet form.
(g) Length of briefs. Except by permission of the court,
or as specified by local rule of the court of appeals, principal
briefs shall not exceed 50 pages, and reply briefs shall not
exceed 25 pages, exclusive of pages containing the table of
contents, tables of citations and any addendum containing
statutes, rules, regulations, etc.
(h) Briefs in cases involving cross appeals. If a cross
appeal is filed, the party who first files a notice of appeal, or
in the event that the notices are filed on the same day, the
plaintiff in the proceeding below, shall be deemed the appellant
for the purposes of this rule and Rules 30 and 31, unless the
parties otherwise agree or the court otherwise orders. The brief
of the appellee shall conform to the requirements of subdivision
(a)(1)-(6) of this rule with respect to the appellee's cross
appeal as well as respond to the brief of the appellant except
that a statement of the case need not be made unless the appellee
is dissatisfied with the statement of the appellant.
(i) Briefs in cases involving multiple appellants or
appellees. In cases involving more than 1 appellant or appellee,
including cases consolidated for purposes of the appeal, any
number of either may join in a single brief, and any appellant or
appellee may adopt by reference any part of the brief of another.
Parties may similarly join in reply briefs.
(j) Citation of supplemental authorities. When pertinent
and significant authorities come to the attention of a party
after the party's brief has been filed, or after oral argument
but before decision, a party may promptly advise the clerk of the
court, by letter, with a copy to all counsel, setting forth the
citations. There shall be a reference either to the page of
the brief or to a point argued orally to which the citations
pertain, but the letter shall without argument state the reasons
for the supplemental citations. Any response shall be made
promptly and shall be similarly limited.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986, Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991,
eff. Dec. 1, 1991.)
FRAP 29
BRIEF OF AN AMICUS CURIAE
A brief of an amicus curiae may be filed only if
accompanied by written consent of all parties, or by leave of
court granted on motion or at the request of the court, except
that consent or leave shall not be required when the brief is
presented by the United States or an officer or agency thereof,
or by a State, Territory or Commonwealth. The brief may be
conditionally filed with the motion for leave. A motion for
leave shall identify the interest of the applicant and shall
state the reasons why a brief of an amicus curiae is desirable.
Save as all parties otherwise consent, any amicus curiae shall
file its brief within the time allowed the party whose position
as to affirmance or reversal the amicus brief will support unless
the court for cause shown shall grant leave for later filing, in
which event it shall specify within what period an opposing party
may answer. A motion of an amicus curiae to participate in the
oral argument will be granted only for extraordinary reasons.
FRAP 31
FILING AND SERVICE OF BRIEFS
(a) Time for serving and filing briefs. The appellant
shall serve and file a brief within 40 days after the date on
which the record is filed. The appellee shall serve and file a
brief within 30 days after service of the brief of the appellant.
The appellant may serve and file a reply brief within 14 days
after service of the brief of the appellee, but, except for good
cause shown, a reply brief must be filed at least 3 days before
argument. If a court of appeals is prepared to consider cases on
the merits promptly after briefs are filed, and its practice is
to do so, it may shorten the periods prescribed above for serving
and filing briefs, either by rule for all cases or for classes of
cases, or by order for specific cases.
(b) Number of copies to be filed and served. Twenty-five
copies of each brief shall be filed with the clerk, unless the
court by order in a particular case shall direct a lesser number,
and 2 copies shall be served on counsel for each party separately
represented. If a party is allowed to file typewritten ribbon
and carbon copies of the brief, the original and 3 legible copies
shall be filed with the clerk, and 1 copy shall be served on
counsel for each party separately represented.
(c) Consequence of failure to file briefs. If an
appellant fails to file a brief within the time provided by this
rule, or within the time as extended, an appellee may move for
dismissal of the appeal. If an appellee fails to file a brief,
the appellee will not be heard at oral argument except by
permission of the court.
(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 10, 1986, eff.
July 1, 1986.)
FRAP 32
FORM OF BRIEFS, THE APPENDIX AND OTHER PAPERS
(a) Form of briefs and the appendix. Briefs and
appendices may be produced by standard typographic printing or by
any duplicating or copying process which produces a clear black
image on white paper. Carbon copies of briefs and appendices may
not be submitted without permission of the court, except in
behalf of parties allowed to proceed in forma pauperis. All
printed matter must appear in at least 11 point type on opaque,
unglazed paper. Briefs and appendices produced by the standard
typographic process shall be bound in volumes having pages 6 1/8
by 9 1/4 inches and type matter 4 1/6 by 7 1/6 inches. Those
produced by any other process shall be bound in volumes having
pages not exceeding 8 by 11 inches and type matter not exceeding
6 by 9 inches, with double spacing between each line of text. In
patent cases the pages of briefs and appendices may be of such
size as is necessary to utilize copies of patent documents.
Copies of the reporter's transcript and other papers reproduced
in a manner authorized by this rule may be inserted in the
appendix; such pages may be informally renumbered if necessary.
If briefs are produced by commercial printing or
duplicating firms, or, if produced otherwise and the covers to be
described are available, the cover of the brief of the appellant
should be blue; that of the appellee, red; that of an intervenor
or amicus curiae, green; that of any reply brief, gray. The
cover of the appendix, if separately printed, should be white.
The front covers of the briefs and of appendices, if separately
printed, shall contain: (1) the name of the court and the number
of the case; (2) the title of the case (see Rule 12(a)); (3) the
nature of the proceeding in the court (e.g., Appeal; Petition for
Review) and the name of the court, agency, or board below; (4)
the title of the document (e.g., Brief for Appellant, Appendix);
and (5) the names and addresses of counsel representing the party
on whose behalf the document is filed.
(b) Form of other papers. Petitions for rehearing shall
be produced in a manner prescribed by subdivision (a). Motions
and other papers may be produced in like manner, or they may be
typewritten upon opaque, unglazed paper 8 by 11 inches in size.
Lines of typewritten text shall be double spaced. Consecutive
sheets shall be attached at the left margin. Carbon copies may
be used for filing and service if they are legible.
A motion or other paper addressed to the court shall
contain a caption setting forth the name of the court, the title
of the case, the file number, and a brief descriptive title
indicating the purpose of the paper.
FRAP 33
PREHEARING CONFERENCE
The court may direct the attorneys for the parties to
appear before the court or a judge thereof for a prehearing
conference to consider the simplification of the issues and such
other matters as may aid in the disposition of the proceeding by
the court. The court or judge shall make an order which recites
the action taken at the conference and the agreements made by the
parties as to any of the matters considered and which limits the
issues to those not disposed of by admissions or agreements of
counsel, and such order when entered controls the subsequent
course of the proceeding, unless modified to prevent manifest
injustice.
FRAP 34
ORAL ARGUMENT
(a) In general; local rule. Oral argument shall be
allowed in all cases unless pursuant to local rule a panel of 3
judges, after examination of the briefs and record, shall be
unanimously of the opinion that oral argument is not needed. Any
such local rule shall provide any party with an opportunity to
file a statement setting forth the reasons why oral argument
should be heard. A general statement of the criteria employed in
the administration of such local rule shall be published in or
with the rule and such criteria shall conform substantially to
the following minimum standard:
Oral argument will be allowed unless
(1) the appeal is frivolous; or
(2) the dispositive issue or set of issues has been
recently authoritatively decided; or
(3) 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 shall
advise all parties whether oral argument is to be heard, and if
so, of the time and place therefor, and the time to be allowed
each side. A request for postponement of the argument or for
allowance of additional time must be made by motion filed
reasonably in advance of the date fixed for hearing.
(c) Order and content of argument. The appellant is
entitled to open and conclude the argument. The opening argument
shall include a fair statement of the case. Counsel will not be
permitted to read at length from briefs, records or authorities.
(d) Cross and separate appeals. A cross or separate
appeal shall be argued with the initial appeal at a single
argument, unless the court otherwise directs. If a case involves
a cross appeal, the party who first files a notice of appeal, or
in the event that the notices are filed on the same day the
plaintiff in the proceeding below, shall be deemed the appellant
for the purpose of this rule unless the parties otherwise agree
or the court otherwise directs. If separate appellants support
the same argument, care shall be taken to avoid duplication of
argument.
(e) Non-appearance of parties. If the appellee fails to
appear to present argument, the court will hear argument on
behalf of the appellant, if present. If the appellant fails to
appear, the court may hear argument on behalf of the appellee, if
present. If neither party appears, the case will be decided on
the briefs unless the court shall otherwise order.
(f) Submission on briefs. By agreement of the parties, a
case may be submitted for decision on the briefs, but the court
may direct that the case be argued.
(g) Use of physical exhibits at argument; removal. If
physical exhibits other than documents are to be used at the
argument, counsel shall arrange to have them placed in the court
room before the court convenes on the date of the argument.
After the argument counsel shall cause the exhibits to be removed
from the court room unless the court otherwise directs. If
exhibits are not reclaimed by counsel within a reasonable time
after notice is given by the clerk, they shall be destroyed or
otherwise disposed of as the clerk shall think best.
(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986; Apr. 30, 1991, eff. Dec.1, 1991.)
FRAP 35
DETERMINATION OF CAUSES BY THE COURT IN BANC
(a) When hearing or rehearing in banc will 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 in banc. Such a hearing or
rehearing is not favored and ordinarily will not be ordered
except (1) when consideration by the full court is necessary to
secure or maintain uniformity of its decisions, or (2) when the
proceeding involves a question of exceptional importance.
(b) Suggestion of a party for hearing or rehearing in
banc. A party may suggest the appropriateness of a hearing or
rehearing in banc. No response shall be filed unless the court
shall so order. The clerk shall transmit any such suggestion to
the members of the panel and the judges of the court who are in
regular active service but a vote need not be taken to determine
whether the cause shall be heard or reheard in banc unless a
judge in regular active service or a judge who was a member of
the panel that rendered a decision sought to be reheard requests
a vote on such a suggestion made by a party.
(c) Time for suggestion of a party for hearing or
rehearing in banc; suggestion does not stay mandate. If a party
desires to suggest that an appeal be heard initially in banc, the
suggestion must be made by the date on which the appellee's brief
is filed. A suggestion for a rehearing in banc must be made
within the time prescribed by Rule 40 for filing a petition for
rehearing, whether the suggestion is made in such petition or
otherwise. The pendency of such a suggestion whether or not
included in a petition for rehearing shall not affect the
finality of the judgment of the court of appeals or stay the
issuance of the mandate.
(As amended Apr. 1, 1979, eff. Aug. 1, 1979.)
FRAP 36
ENTRY OF JUDGMENT
The notation of a judgment on the docket constitutes
entry of the judgment. The clerk shall prepare, sign and enter
the judgment following receipt of the opinion of the court unless
the opinion directs settlement of the form of the judgment, in
which event the clerk shall prepare, sign and enter the judgment
following final settlement by the court. If a judgment is
rendered without an opinion, the clerk shall prepare, sign and
enter the judgment following instruction from the court. The
clerk shall, on the date judgment is entered, mail to all parties
a copy of the opinion, if any, or of the judgment if no opinion
was written, and notice of the date of entry of the judgment.
FRAP 37
INTEREST ON JUDGMENTS
Unless otherwise provided by law, if a judgment for money
in a civil case is affirmed, whatever interest is allowed by law
shall be payable from the date the judgment was entered in the
district court. If a judgment is modified or reversed with a
direction that a judgment for money be entered in the district
court, the mandate shall contain instructions with respect to
allowance of interest.
FRAP 38
DAMAGES FOR DELAY
If a court of appeals shall determine that an appeal is
frivolous, it may award just damages and single or double costs
to the appellee.
FRAP 39
COSTS
(a) To whom allowed. Except as otherwise provided by
law, if an appeal is dismissed, costs shall be taxed against the
appellant unless otherwise agreed by the parties or ordered by
the court; if a judgment is affirmed, costs shall be taxed
against the appellant unless otherwise ordered; if a judgment is
reversed, costs shall be taxed against the appellee unless
otherwise ordered; if a judgment is affirmed or reversed in part,
or is vacated, costs shall be allowed only as ordered by the
court.
(b) Costs for and against the United States. In cases
involving the United States or an agency or officer thereof, if
an award of costs against the United State is authorized by law,
costs shall be awarded in accordance with the provisions of
subdivision (a); otherwise, costs shall not be awarded for or
against the United States.
(c) Costs of briefs, appendices, and copies of records.
By local rule the court of appeals shall fix the maximum rate at
which the cost of printing or otherwise producing necessary
copies of briefs, appendices, and copies of records authorized by
Rule 30(f) shall be taxable. Such rate shall not be higher than
that generally charged for such work in the area where the
clerk's office is located and shall encourage the use of
economical methods of printing and copying.
(d) Bill of costs; objections; costs to be inserted in
mandate or added later. A party who desires such costs to be
taxed shall state them in an itemized and verified bill of costs
which the party shall file with the clerk, with proof of service,
within 14 days after the entry of judgment. Objections to the
bill of costs must be filed within 10 days of service on the
party against whom costs are to be taxed unless the time is
extended by the court. The clerk shall prepare and certify an
itemized statement of costs taxed in the court of appeals for
insertion in the mandate, but the issuance of the mandate shall
not be delayed for taxation of costs and if the mandate has been
issued before final determination of costs, the statement, or any
amendment thereof, shall be added to the mandate upon request by
the clerk of the court of appeals to the clerk of the district
court.
(e) Costs on appeal taxable in the district courts.
Costs incurred in the preparation and transmission of the record,
the cost of the reporter's transcript, if necessary for the
determination of the appeal, the premiums paid for cost of
supersedeas bonds or other bonds to preserve rights pending
appeal, and the fee for filing the notice of appeal shall be
taxed in the district court as costs of the appeal in favor of
the party entitled to costs under this rule.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986.)
FRAP 40
PETITION FOR REHEARING
(a) Time for filing; content; answer; action by court if
granted. A petition for rehearing may be filed within 14 days
after entry of judgment unless the time is shortened or enlarged
by order or by local rule. The petition shall state with
particularity the points of law or fact which in the opinion of
the petitioner the court has overlooked or misapprehended and
shall contain such argument in support of the petition as the
petitioner desires to present. Oral argument in support of the
petition will not be permitted. No answer to a petition for
rehearing will be received unless requested by the court, but a
petition for rehearing will ordinarily not be granted in the
absence of such a request. If a petition for rehearing is
granted the court may make a final disposition of the cause
without reargument or may restore it to the calendar for
reargument or resubmission or may make such other orders as are
deemed appropriate under the circumstances of the particular
case.
(b) Form of petition; length. The petition shall be in a
form prescribed by Rule 32(a), and copies shall be served and
filed as prescribed by Rule 31(b) for the service and filing of
briefs. Except by permission of the court, or as specified by
local rule of the court of appeals, a petition for rehearing
shall not exceed 15 pages.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979.)
FRAP 42
VOLUNTARY DISMISSAL
(a) Dismissal in the district court. If an appeal has
not been docketed, the appeal may be dismissed by the district
court upon the filing in that court of a stipulation for
dismissal signed by all the parties, or upon motion and notice by
the appellant.
(b) Dismissal in the court of appeals. If the parties
to an appeal or other proceeding shall sign and file with the
clerk of the court of appeals an agreement that the proceeding be
dismissed, specifying the terms as to payment of costs, and shall
pay whatever fees are due, the clerk shall enter the case
dismissed, but no mandate or other process shall issue without an
order of the court. An appeal may be dismissed on motion of the
appellant upon such terms as may be agreed upon by the parties or
fixed by the court.
FRAP 43
SUBSTITUTION OF PARTIES
(a) Death of a party. If a party dies after a notice of
appeal is filed or while a proceeding is otherwise pending in the
court of appeals, the personal representative of the deceased
party may be substituted as a party on motion filed by the
representative or by any party with the clerk of the court of
appeals. The motion of a party shall be served upon the
representative in accordance with the provisions of Rule 25. If
the deceased party has no representative, any party may suggest
the death on the record and proceedings shall then be had as the
court of appeals may direct. 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 death had not occurred. After the
notice of appeal is filed substitution shall be effected in the
court of appeals in accordance with this subdivision. If a party
entitled to appeal shall die before filing a notice of appeal,
the notice of appeal may be filed by that party's personal
representative, or, if there is no personal representative by
that party's attorney of record within the time prescribed by
these rules. After the notice of appeal is filed substitution
shall be effected in the court of appeals in accordance with this
subdivision.
(b) Substitution for other causes. If substitution of a
party in the court of appeals is necessary for any reason other
than death, substitution shall be effected in accordance with the
procedure prescribed in subdivision (a).
(c) Public officers; death or separation from office.
(1) When a public officer is party to an appeal or other
proceeding in the court of appeals in an official capacity and
during its pendency dies, resigns or otherwise ceases to hold
office, the action does not abate and the public officer's
successor is automatically substituted as a party. Proceedings
following the substitution shall be in the name of the
substituted party, but any misnomer not affecting the substantial
rights of the parties shall be disregarded. An order of
substitution may be entered at any time, but the omission to
enter such an order shall not affect the substitution.
(2) When a public officer is a party to an appeal or
other proceeding in an official capacity that public officer 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.
(As amended Mar. 10, 1986, eff. July 1, 1986.)
FRAP 44
CASES INVOLVING CONSTITUTIONAL QUESTIONS
WHERE UNITED STATES IS NOT A PARTY
It shall be the duty of a party who draws in question the
constitutionality of any Act of Congress in any proceeding in a
court of appeals to which the United States, or any agency
thereof, or any officer or employee thereof, as such officer or
employee, is not a party, upon the filing of the record, or as
soon thereafter as the question is raised in the court of
appeals, to give immediate notice in writing to the court of the
existence of said question. The clerk shall thereupon certify
such fact to the Attorney General.
FRAP 45
DUTIES OF CLERKS
(a) General provisions. The clerk of a court of appeals
shall take the oath and give the bond required by law. Neither
the clerk nor any deputy clerk shall practice as an attorney or
counselor in any court while continuing in office. The court of
appeals shall be deemed always open for the purpose of filing any
proper paper, of issuing and returning process and of making
motions and orders. The office of the clerk with the clerk or a
deputy in attendance shall be open during business hours on all
days except Saturdays, Sundays, and legal holidays, but a court
may provide by local rule or order that the office of its clerk
shall be open for specified hours on Saturdays or on particular
legal holidays other than New Year's Day, Birthday of Martin
Luther King, Jr., Washington's Birthday, Memorial Day,
Independence Day, Labor Day, Columbus Day, Veterans Day,
Thanksgiving Day, and Christmas Day.
(b) The docket; calendar; other records required. The
clerk shall maintain a docket in such form as may be prescribed
by the Director of the Administrative Office of the United States
Courts. The clerk shall enter a record of all papers filed with
the clerk and all process, orders and judgments. An index of
cases contained in the docket shall be maintained as prescribed
by the Director of the Administrative Office of the United States
Courts.
The clerk shall prepare, under the direction of the
court, a calendar of cases awaiting argument. In placing cases
on the calendar for argument, the clerk shall give preference to
appeals in criminal cases and to appeals and other proceedings
entitled to preference by law.
The clerk shall keep such other books and records as may
be required from time to time by the Director of the
Administrative Office of the United States Courts with the
approval of the Judicial Conference of the United States, or as
may be required by the court.
(c) Notice of orders or judgments. Immediately upon the
entry of an order or judgment the clerk shall serve a notice of
entry by mail upon each party to the proceeding together with a
copy of any opinion respecting the order or judgment, and shall
make a note in the docket of the mailing. Service on a party
represented by counsel shall be made on counsel.
(d) Custody of records and papers. The clerk shall have
custody of the records and papers of the court. The clerk shall
not permit any original record or paper to be taken from the
clerk's custody except as authorized by the orders or
instructions of the court. Original papers transmitted as the
record on appeal or review shall upon disposition of the case be
returned to the court or agency from which they were received.
The clerk shall preserve copies of briefs and appendices and
other printed papers filed.
(As amended Mar. 1, 1971, eff. July 1, 1971; Mar. 10, 1986, eff.
July 1, 1986.)
FRAP 46
ATTORNEYS
(a) Admission to the bar of a court of appeals;
eligibility; procedure for admission. An attorney who has been
admitted to practice before the Supreme Court of the United
States, or the highest court of a state, or another United States
court of appeals, or a United States district court (including
the district courts for the Canal Zone, Guam and the Virgin
Islands), and who is of good moral and professional character, is
eligible for admission to the bar of a court of appeals.
An applicant shall file with the clerk of the court of
appeals, on a form approved by the court and furnished by the
clerk, an application for admission containing the applicant's
personal statement showing eligibility for membership. At the
foot of the application the applicant shall take and subscribe to
the following oath or affirmation:
I, , do solemnly swear (or affirm) that I will demean
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.
Thereafter, upon written or oral motion of a member of
the bar of the court, the court will act upon the application.
An applicant may be admitted by oral motion in open court, but it
is not necessary that the applicant appear before the court for
the purpose of being admitted, unless the court shall otherwise
order. An applicant shall upon admission pay to the clerk the
fee prescribed by rule or order of the court.
(b) Suspension or disbarment. When it is shown to the
court that any member of its bar has been suspended or disbarred
from practice in any other court of record, or has been guilty of
conduct unbecoming a member of the bar of the court, the member
will be subject to suspension or disbarment by the court. The
member shall be afforded an opportunity to show good cause,
within such time as the court shall prescribe, why the member
should not be suspended or disbarred. Upon the member's response
to the rule to show cause, and after hearing, if requested, or
upon expiration of the time prescribed for a response if no
response is made, the court shall enter an appropriate
order.
(c) Disciplinary power of the court over attorneys. A
court of appeals may, after reasonable notice and an opportunity
to show cause to the contrary, and after hearing, if requested,
take any appropriate disciplinary action against any attorney who
practices before it for conduct unbecoming a member of the bar or
for failure to comply with these rules or any rule of the court.
(As amended Mar. 10, 1986, eff. July 1, 1986.)
FRAP 48
TITLE
These rules may be known and cited as the Federal Rules
of Appellate Procedure.
APPENDIX OF FORMS
Form 1. Notice of Appeal to a Court of Appeals From a Judgment or
Order of a District Court
United States District Court for the
District of
File Number
A.B., Plaintiff
vs.
Notice of Appeal
C.D., Defendant
Notice is hereby given that C.D., defendant above named,
hereby appeals to the United States Court of Appeals for the
Circuit (from the final judgment)(from the order (describing it))
entered in this action on the day of , 19 .
(s)
(Address)
Attorney for C.D.
Updated January 1, 1993
Form 2. Notice of Appeal to a Court of
Appeals From a Decision of the Tax Court
TAX COURT OF THE UNITED STATES
Washington, D.C.
A.B., Petitioner
vs.
Docket No.
Commissioner of Internal Revenue,
Respondent.
Notice of Appeal
Notice is hereby given that A.B. hereby appeals 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)
(Address)
Counsel for A.B.
Form 3. Petition for Review of Order of an Agency, Board,
Commission or Officer
United States Court of Appeals for the
Circuit
A.B., Petitioner
vs.
Petition for Review
XYZ Commission, Respondent
A.B. hereby petitions the court for review of the Order
of the XYZ Commission (describe the order) entered on
, 19 .
Attorney for Petitioner
Address:
Form 4. Affidavit to Accompany Motion for
Leave to Appeal in Forma Pauperis
United States District Court for the
District of
United States of America
vs.
No.
A.B.
Affidavit in Support of Motion to Proceed on
Appeal in Forma Pauperis
I, , being first duly sworn, depose and say that I am
the in the above-entitled case; that in support of my motion to
proceed on appeal without being required to prepay fees, costs or
give security therefor, I state that because of my poverty I am
unable to pay the costs of said proceeding or to give security
therefor; that I believe I am entitled to redress; and that the
issues which I desire to present on appeal are the following:
I further swear that the responses which I have made to
the questions and instructions below relating to my ability to
pay the cost of prosecuting the appeal are true.
1. Are you presently employed?
a. If the answer is yes, state the amount of your salary or wages
per month and give the name and address of your employer.
b. If the answer is no, state the date of your last employment
and the amount of the salary and wages per month which you
received.
2. Have you received within the past twelve months any income
from a business, profession or other form of self-employment, or
in the form of rent payments, interest, dividends, or other
source?
a. If the answer is yes, describe each source of income, and
state the amount received from each during the past twelve
months.
Form 4. Continued
3. Do you own any cash or checking or savings account?
a. If the answer is yes, state the total value of the items
owned.
4. Do you own any real estate, stocks, bonds, notes, automobiles,
or other valuable property (excluding ordinary household
furnishings and clothing)?
a. If the answer is yes, describe the property and state its
approximate value.
5. List the persons who are dependent upon you for support and
state your relationship to those persons.
I understand that a false statement or answer to any questions in
this affidavit will subject me to penalties for perjury.
_______________________________________
SUBSCRIBED AND SWORN TO before me this day of
19 .
Let the applicant proceed without prepayment of costs or fees or
the necessity of giving security therefor.
_______________________________________
District Judge
Form 5. Notice of Appeal to a Court of Appeals
from a Judgment or Order of a District Court or
a Bankruptcy Appellate Panel
United States District Court for the
_____________________________________
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 or 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: _________________________
__________________________________
(As added Apr. 25, 1989, eff. Dec. 1, 1989.)
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