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Article: June 2014 Appellate Practice Update

June 01, 2014
Business Litigation Reports

Comparison of Circuits’ Local Rules. While the Federal Rules of Appellate Procedure (“FRAP”) set high-level ground rules for appellate practice in the federal courts of appeals, practice in those courts is in fact far from uniform. Changes in FRAP govern all federal appeals; for example, recent amendments to FRAP streamlined the required sections of an appellate brief by eliminating the requirement that an appellate brief include separate sections on the case’s procedural history and its facts. But much like local rules of civil procedure in federal district courts, each circuit has promulgated its own set of Local Rules, which substantially modify or even replace the standard FRAP according to each circuit’s unique preferences. We discuss here those differences for three parts of an appeal that an appellant will almost certainly encounter: the notice of appeal and the docketing statement, the briefing schedule, and the contents of the appendix.

The best place to begin is at the beginning, when a lawyer seeks to initiate an appeal. FRAP suggests that this is a straightforward process: the appellant must file a notice of appeal with three pieces of information—the party taking the appeal, the judgment or order being appealed, and the name of the court to which the appeal is taken (FRAP 3(c)(1))—plus a short docketing statement naming the parties the lawyer represents (FRAP 12(b)). Some circuits require little more than that: the Ninth Circuit, for example, also requires the parties to fill out the Ninth Circuit Mediation Questionnaire, which is used by the Ninth Circuit’s Mediation Office. 9th Cir. R. 3-4(a). Other circuits require much more. The Federal Circuit, for example, requires the appellant to file its corporate disclosure information within 14 days of docketing, as well as to list the names of every lawyer who has appeared on behalf of the appellant, both in the Federal Circuit and the court or agency below. Fed. Cir. R. 47.4(a)(4). The D.C. Circuit requires that the appellant list all relevant statutes at issue, and, months before the briefs are due, provide a preliminary statement of the issues that will be raised. D.C. Cir. R. 12; D.C. Internal Operating Procedures IV.A.3. The Seventh Circuit focuses on its jurisdiction, requiring an appellant to lay out in detail why the appellant believes the Seventh Circuit has the power to hear the case. 7th Cir. R. 3(c)(1), 28(a). But perhaps no circuit asks more of appellants at the very outset of the appeal than the Second Circuit, which asks for all of the above, as well as the issues to be raised and the applicable appellate standard of review for each proposed issue, within 14 days of the appeal being docketed. 2d Cir. R. 12(b)(1); 2d Cir. Civil Appeal Pre-Argument Statement.

Once the appeal is docketed, the next question is almost always “how long do I have to write this brief?” Again, the FRAP appears simple. Once the district court files the record with the court of appeals (within 14 days after the notice of appeal is filed (FRAP 10(b)(1)), the appellant has 40 days to file its opening brief, the appellee has 30 days to answer, and the appellant has 14 days to reply, although the reply must be filed within 7 days of the case’s oral argument date. FRAP 31(a)(1). But the Local Rules again contain substantial deviations, both in how long a party has to prepare its brief and how those deadlines are even established. The Seventh Circuit follows FRAP, except that the appellant’s 40 days are measured from when the appeal is docketed, not when the record is received. 7th Cir. R. 31(a). The Second Circuit, in contrast to its demanding requirements for the notice of appeal and docketing statement, is the most flexible to the parties, allowing the appellant to choose its own due date so long as it is within 91 days of when the record is complete, with the appellee getting similar flexibility. 2d Cir. R. 30(a)(1)(A), (B). The Federal Circuit gives the appellant 60 days for its opening brief, but gives the appellee only 40 days for its answering brief. Fed. Cir. R. 30(a)(1)(A), (a)(2). Both the D.C. Circuit and the Ninth Circuit take the question out of the parties’ hands entirely, informing them via a scheduling order when the briefs will be due. 9th Cir. R. 31-2.1(a); D.C. Cir. R. 31(a). The Ninth Circuit, moreover, offers a near-automatic 30-day extension for each brief that may be obtained by selecting an option on the Ninth Circuit’s CM/ECF system without even filing a form or written motion.

It is the third topic that most reveals the vast differences in the circuits’ Local Rules—the procedures for filing appendices to the briefs. FRAP is quite general: while it prohibits the inclusion in an appendix of any memo of law (FRAP 30(a)(2)), it requires just the relevant docket entries, the relevant portions of the pleadings, the order or decision at issue, and other parts of the record to which the parties wish to direct the court’s attention (FRAP 30(a)(1)). Parties can also use the “deferred appendix” method if so desired, in which the appendix is not submitted until the briefing is complete. FRAP 30(c). But the circuit courts have their own views on what should be submitted, and how. The Second Circuit strongly encourages joint appendices filed by all parties, but also requests that the parties assemble a “special appendix” that contains only the orders or opinions being appealed and the text and citations of any significant rule of law at issue. 2d Cir. R. 32.1(c). The Ninth Circuit, by contrast, does away with joint appendices altogether, and instead uses an “Excerpts of Record” (“ER”) system in which each party files its own ER or supplemental or further ER along with each brief it submits (9th Cir. R. 30-1.4, 30-1.7, 30-18), and encourages the parties to organize their ERs in reverse chronological order except for the decision at issue, which comes first (9th Cir. R. 30-1.6(a)). The Federal Circuit takes a third route, strongly preferring the deferred appendix method that includes only the portions of the record cited in the briefs. Fed. Cir. 30(a)(2)(B). And unless the appellee is the United States, the deferred appendix is the only chance a party will get to have a document from the record included in the appendix, because in the Federal Circuit only the United States can move to file a supplemental appendix. Fed. Cir. R. 30(f).

Thus, no matter what circuit an appeal arises in, the best advice is to always read the Local Rules in addition to FRAP. And if you happen to be an appellant or an appellee with procedural issues, do not forget that you can always ask the circuit’s clerk’s office. Those offices have knowledgeable staff who are often able to save you a significant amount of time and stress.