RULE 1. Scope of Rules; Title
(1) These rules govern
procedure in the United States courts of appeals.
(2) When these rules provide
for filing a motion or other document in the district court, the procedure
must comply with the practice of the district court.
These rules govern procedure in the United States Court of Appeals for the Seventh Circuit. They are to be known as the Circuit Rules of the United States Court of Appeals for the Seventh Circuit.
RULE 2. Suspension of Rules
On its own or a party's motion, a court of appeals may-to expedite its decision or for other good cause-suspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b).
In the interest of expediting decision or for other good cause, the court may suspend the requirements of these Circuit Rules.
RULE 3. Appeal as of
appeal permitted by law as of right from a district court to a court of
appeals may be taken only by filing a notice of appeal with the district
clerk within the time allowed by Rule 4. At
the time of filing, the appellant must furnish the clerk with enough
copies of the notice to enable the clerk to comply with Rule
appellant's failure to take any step other than the timely filing of a
notice of appeal does not affect the validity of the appeal, but is ground
only for the court of appeals to act as it considers appropriate,
including dismissing the appeal.
two or more parties are entitled to appeal from a district court judgment
or order, and their interests make joinder practicable, they may file a
joint notice of appeal. They may then proceed on appeal as a single
specify the party or parties taking the appeal by naming each one in the
caption or body of the notice, but an attorney representing more than one
party may describe those parties with such terms as "all plaintiffs," "the
defendants," "the plaintiffs A, B, et al.," or "all defendants except
(5) Form 1 in the
Appendix of Forms is a suggested form of a notice of
district clerk must serve notice of the filing of a notice of appeal by
mailing a copy to each party's counsel of record-excluding the appellant's
or, if a party is proceeding pro se, to the party's last known address.
When a defendant in a criminal case appeals, the clerk must also serve a
copy of the notice of appeal on the defendant, either by personal service
or by mail addressed to the defendant. The clerk must promptly send a copy
of the notice of appeal and of the docket entries-and any later docket
entries-to the clerk of the court of appeals named in the notice. The
district clerk must note, on each copy, the date when the notice of appeal
(2) If an
inmate confined in an institution files a notice of appeal in the manner
provided by Rule 4(c),
the district clerk must also note the date when the clerk docketed the
district clerk's failure to serve notice does not affect the validity of
the appeal. The clerk must note on the docket the names of the parties to
whom the clerk mails copies, with the date of mailing. Service is
sufficient despite the death of a party or the party's
(e) Payment of Fees. Upon filing a notice of appeal, the appellant must pay the district clerk all required fees. The district clerk receives the appellate docket fee on behalf of the court of appeals.
(a) Forwarding Copy of Notice of Appeal. When the
clerk of the district court sends to the clerk of this court a copy of the
notice of appeal, the district court clerk shall include any docketing
statement. In civil cases the clerk of the district court shall include
the judgments or orders under review, any transcribed oral statement of
reasons, opinion, memorandum of decision, findings of fact, and
conclusions of law. The clerk of the district court shall also complete
and include the Seventh Circuit Appeal Information Sheet in the form
prescribed by this court.
(b) Dismissal of Appeal for Failure to Pay Docketing
Fee. If a proceeding is docketed without prepayment of the docketing
fee, the appellant shall pay the fee within 14 days after docketing. If
the appellant fails to do so, the clerk is authorized to dismiss the
(c)(1) Docketing Statement. The
appellant must serve on all parties a docketing statement and file it with
the clerk of the district court at the time of the filing of the notice of
appeal or with the clerk of this court within seven days of filing the
notice of appeal. The docketing statement must comply with the
requirements of Circuit Rule
28(a). If there have been prior or related appellate proceedings in
the case, or if the party believes that the earlier appellate proceedings
are sufficiently related to the new appeal, the statement must identify
these proceedings by caption and number. The statement also must describe
any prior litigation in the district court that, although not appealed,
(a) arises out of the same criminal conviction, or (b) has been designated
by the district court as satisfying the criteria of 28 U.S.C. §1915(g). If
any of the parties to the litigation appears in an official capacity, the
statement must identify the current occupant of the office. The docketing
statement in a collateral attack on a criminal conviction must identify
the prisoner's current place of confinement and its current warden; if the
prisoner has been released, the statement must describe the nature of any
ongoing custody (such as supervised release) and identify the custodian.
If the docketing statement is not complete and correct, the appellee must
provide a complete one to the court of appeals clerk within 14 days after
the date of the filing of the appellant's docketing statement.
(2) Failure to file the docketing statement within 14 days
of the filing of the notice of appeal will lead to the imposition of a
$100 fine on counsel. Failure to file the statement within 28 days of the
filing of the notice of appeal will be treated as abandonment of the
appeal, and the appeal will be dismissed. When the appeal is docketed, the
court will remind the litigants of these provisions.
(d) Counsel of Record. The attorney whose name appears on the docketing statement or other document first filed by that party in this court will be deemed counsel of record, and a separate notice of appearance need not be filed. If the name of more than one attorney is shown, the attorney who is counsel of record must be clearly identified. (There can be only one counsel of record.) If no attorney is so identified, the court will treat the first listed as counsel of record. The court will send documents only to the counsel of record for each party, who is responsible for transmitting them to other lawyers for the same party. The docketing statement or other document must provide the post office address and telephone number of counsel of record. The names of other members of the Bar of this Court and, if desired, their post office addresses, may be added but counsel of record must be clearly identified. An attorney representing a party who will not be filing a document shall enter a separate notice of appearance as counsel of record indicating the name of the party represented. Counsel of record may not withdraw, without consent of the court, unless another counsel of record is simultaneously substituted.
RULE 4. Appeal as of Right--When Taken
(A) In a civil case, except as provided in Rules
4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3
must be filed with the district clerk within 30 days after the judgment or
order appealed from is entered.
(2) Filing Before Entry of Judgment. A
notice of appeal filed after the court announces a decision or order-but
before the entry of the judgment or order-is treated as filed on the date
of and after the entry.
(3) Multiple Appeals. If one party timely
files a notice of appeal, any other party may file a notice of appeal
within 14 days after the date when the first notice was filed, or within
the time otherwise prescribed by this Rule 4(a), whichever period ends
(A) If a party timely files in the district court
any of the following motions under the Federal Rules of Civil Procedure,
the time to file an appeal runs for all parties from the entry of the
order disposing of the last such remaining motion:
(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(B)(i) If a party files a notice of appeal after
the court announces or enters a judgment-but before it disposes of any
motion listed in Rule 4(a)(4)(A)-the notice becomes effective to appeal a
judgment or order, in whole or in part, when the order disposing of the
last such remaining motion is entered.
(ii) A party intending to challenge an order disposing of any motion
listed in Rule 4(a)(4)(A), or a judgment altered or amended upon such a
motion, must file a notice of appeal, or an amended notice of appeal-in
compliance with Rule 3(c)-within the time prescribed by this Rule measured
from the entry of the order disposing of the last such remaining
(iii) No additional fee is required to file an amended notice.
(i) a party so moves no later than 30 days after the time prescribed by
this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or during the 30
days after the time prescribed by this Rule 4(a) expires, that party shows
excusable neglect or good cause.
(B) A motion filed before the expiration of the
time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court
requires otherwise. If the motion is filed after the expiration of the
prescribed time, notice must be given to the other parties in accordance
with local rules.
(6) Reopening the Time to File an Appeal.
The district court may reopen the time to file an appeal for a period of
14 days after the date when its order to reopen is entered, but only if
all the following conditions are satisfied:
(A) the court finds that the moving party did not
receive notice under Federal Rule of Appellate Procedure 77(d) of the
entry of the judgment or order sought to be appealed within 21 days after
(B) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice under Federal Rule of Appellate Procedure 77(d) of the entry, whichever is earlier; and
(A) A judgment or order is entered for purposes of this Rule 4(a):
(i) if Federal Rule of Civil Procedure 58(a)(1) requires a separate
document, when the judgement or order is entered in the civil docket under
Federal Rule of Civil Procedure 79(a); or
(i) the entry of either the judgment or the order being appealed; or
(ii) the filing of the government's notice of appeal.
(i) the entry of the judgment or order being appealed; or
(ii) the filing of a notice of appeal by any defendant.
(2) Filing Before Entry of Judgment. A
notice of appeal filed after the court announces a decision, sentence, or
order-but before the entry of the judgment or order-is treated as filed on
the date of and after the entry.
(A) If a defendant timely makes any of the
following motions under the Federal Rules of Criminal Procedure, the
notice of appeal from a judgment of conviction must be filed within 10
days after the entry of the order disposing of the last such remaining
motion, or within 10 days after the entry of the judgment of conviction,
whichever period ends later. This provision applies to a timely
(i) for judgment of acquittal under Rule 29;
(ii) for a new trial under Rule 33, but if based on newly discovered
evidence, only if the motion is made no later than 10 days after the entry
of the judgment; or
(iii) for arrest of judgment under Rule 34.
(B) A notice of appeal filed after the court
announces a decision, sentence, or order-but before it disposes of any of
the motions referred to in Rule 4(b)(3)(A)-becomes effective upon the
later of the following:
(i) the entry of the order disposing of the last such remaining motion;
(ii) the entry of the judgment of conviction.
(4) Motion for Extension of Time. Upon a
finding of excusable neglect or good cause, the district court may-before
or after the time has expired, with or without motion and notice-extend
the time to file a notice of appeal for a period not to exceed 30 days
from the expiration of the time otherwise prescribed by this Rule
(5) Jurisdiction. The filing of a notice
of appeal under this Rule 4(b) does not divest a district court of
jurisdiction to correct a sentence under Federal Rule of Criminal
Procedure 35(c), nor does the filing of a motion under 35(c) affect the
validity of a notice of appeal filed before entry of the order disposing
of the motion.
(1) If an inmate confined in an institution files a
notice of appeal in either a civil or a criminal case, the notice is
timely if it is deposited in the institution's internal mail system on or
before the last day for filing. If an institution has a system designed
for legal mail, the inmate must use that system to receive the benefit of
this rule. Timely filing may be shown by a declaration in compliance with
28 U.S.C. § 1746 or by a notarized statement, either of which must set
forth the date of deposit and state that first-class postage has been
(2) If an inmate files the first notice of appeal
in a civil case under this Rule 4(c), the 14-day period provided in Rule
4(a)(3) for another party to file a notice of appeal runs from the date
when the district court dockets the first notice.
(3) When a defendant in a criminal case files a
notice of appeal under this Rule 4(c), the 30-day period for the
government to file its notice of appeal runs from the entry of the
judgment or order appealed from or from the district court's docketing of
the defendant's notice of appeal, whichever is later.
(d) Mistaken Filing in the Court of Appeals. If a notice of appeal in either a civil or a criminal case is mistakenly filed in the court of appeals, the clerk of that court must note on the notice the date when it was received and send it to the district clerk. The notice is then considered filed in the district court on the date so noted.
RULE 5. Appeal by Permission
(1) To request permission to appeal when an appeal
is within the court of appeals' discretion, a party must file a petition
for permission to appeal. The petition must be filed with the circuit
clerk with proof of service on all other parties to the district-court
(2) The petition must be filed within the time
specified by the statute or rule authorizing the appeal or, if no such
time is specified, within the time provided by Rule 4(a) for filing a
notice of appeal.
(3) If a party cannot petition for appeal unless
the district court first enters an order granting permission to do so or
stating that the necessary conditions are met, the district court may
amend its order, either on its own or in response to a party's motion, to
include the required permission or statement. In that event, the time to
petition runs from entry of the amended order.
(i) the order, decree, or judgment complained of and any related opinion or memorandum, and
(ii) any order stating the district court's permission to appeal or
finding that the necessary conditions are met.
(c) Form of Papers; Number of
Copies. All papers must conform to Rule
32(a)(1). Except by the court’s permission, a paper must not exceed 20
pages, exclusive of the disclosure statement, the proof of service, and
the accompanying documents required by Rule
5(b)(1)(E). An original and 3 copies must be filed unless the court
requires a different number by local rule or by order in a particular
(B) file a cost bond if required under Rule
(3) The district clerk must notify the circuit clerk once the petitioner has paid the fees. Upon receiving this notice, the circuit clerk must enter the appeal on the docket. The record must be forwarded and filed in accordance with Rules 11 and 12(c).
RULE 6. Appeal in a Bankruptcy Case from a Final Judgment,
Order, or Decree of a District Court or a Bankruptcy Appellate
(a) Appeal From a Judgment, Order, or Decree
of a District Court Exercising Original Jurisdiction in a
Bankruptcy Case. An appeal to a court of appeals from a final
judgment, order, or decree of a district court exercising jurisdiction
under 28 U.S.C. § 1334 is taken as any other civil appeal under these
(1) Applicability of Other Rules. These
rules apply to an appeal to a court of appeals under 28 U.S.C. § 158(d)
from a final judgment, order, or decree of a district court or bankruptcy
appellate panel exercising appellate jurisdiction under 28 U.S.C. § 158(a)
or (b). But there are 3 exceptions:
(i) If a timely motion for rehearing under Bankruptcy Rule 8015 is
filed, the time to appeal for all parties runs from the entry of the order
disposing of the motion. A notice of appeal filed after the district court
or bankruptcy appellate panel announces or enters a judgment, order, or
decree-but before disposition of the motion for rehearing-becomes
effective when the order disposing of the motion for rehearing is
(ii) Appellate review of the order disposing of the motion requires the
party, in compliance with Rules 3(c) and 6(b)(1)(B), to amend a previously
filed notice of appeal. A party intending to challenge an altered or
amended judgment, order, or decree must file a notice of appeal or amended
notice of appeal within the time prescribed by Rule 4-excluding Rules
4(a)(4) and 4(b)-measured from the entry of the order disposing of the
(iii) No additional fee is required to file an amended notice.
(i) Within 10 days after filing the notice of appeal, the appellant
must file with the clerk possessing the record assembled in accordance
with Bankruptcy Rule 8006-and serve on the appellee-a statement of the
issues to be presented on appeal and a designation of the record to be
certified and sent to the circuit clerk.
(ii) An appellee who believes that other parts of the record are
necessary must, within 10 days after being served with the appellant's
designation, file with the clerk and serve on the appellant a designation
of additional parts to be included.
(iii) The record on appeal consists of:
• the redesignated record as provided above;
• the proceedings in the district court or bankruptcy appellate panel; and
• a certified copy of the docket entries prepared by the clerk under Rule
(i) When the record is complete, the district clerk or bankruptcy
appellate panel clerk must number the documents constituting the record
and send them promptly to the circuit clerk together with a list of the
documents correspondingly numbered and reasonably identified. Unless
directed to do so by a party or the circuit clerk, the clerk will not send
to the court of appeals documents of unusual bulk or weight, physical
exhibits other than documents, or other parts of the record designated for
omission by local rule of the court of appeals. If the exhibits are
unusually bulky or heavy, a party must arrange with the clerks in advance
for their transportation and receipt.
(ii) All parties must do whatever else is necessary to enable the clerk
to assemble and forward the record. The court of appeals may provide by
rule or order that a certified copy of the docket entries be sent in place
of the redesignated record, but any party may request at any time during
the pendency of the appeal that the redesignated record be sent.
(D) Filing the Record. Upon receiving the record-or a certified copy of the docket entries sent in place of the redesignated record-the circuit clerk must file it and immediately notify all parties of the filing date.
RULE 7. Bond for Costs on Appeal in a Civil
In a civil case, the district court may require an appellant to file a bond or provide other security in any form and amount necessary to ensure payment of costs on appeal. Rule 8(b) applies to a surety on a bond given under this rule.
RULE 8. Stay or Injunction Pending Appeal
(i) show that moving first in the district court would be impracticable; or
(ii) state that, a motion having been made, the district court denied
the motion or failed to afford the relief requested and state any reasons
given by the district court for its action.
(i) the reasons for granting the relief requested and the facts relied on;
(ii) originals or copies of affidavits or other sworn statements supporting facts subject to dispute; and
(iii) relevant parts of the record.
(D) A motion under this Rule 8(a)(2) must be filed
with the circuit clerk and normally will be considered by a panel of the
court. But in an exceptional case in which time requirements make that
procedure impracticable, the motion may be made to and considered by a
(b) Proceeding Against a Surety. If
a party gives security in the form of a bond or stipulation or other
undertaking with one or more sureties, each surety submits to the
jurisdiction of the district court and irrevocably appoints the district
clerk as the surety's agent on whom any papers affecting the surety's
liability on the bond or undertaking may be served. On motion, a surety's
liability may be enforced in the district court without the necessity of
an independent action. The motion and any notice that the district court
prescribes may be served on the district clerk, who must promptly mail a
copy to each surety whose address is known.
Counsel's obligation under Fed. R. App. P. 8(a) to provide this court with the reasons the district judge gave for denying relief includes an obligation to supply any statement of reasons by a magistrate judge or bankruptcy judge. Filing with the motion a copy of the order or memorandum of decision in which the reasons were stated, or if they were stated orally in open court, a copy of the transcript of proceedings is preferred; but, in an emergency, if such a copy is not available, counsel's statement of the reasons given by the district or bankruptcy court will suffice.
Rule 9. Release in a Criminal Case
(1) The district court must state in writing, or
orally on the record, the reasons for an order regarding the release or
detention of a defendant in a criminal case. A party appealing from the
order must file with the court of appeals a copy of the district court's
order and the court's statement of reasons as soon as practicable after
filing the notice of appeal. An appellant who questions the factual basis
for the district court's order must file a transcript of the release
proceedings or an explanation of why a transcript was not
(2) After reasonable notice to the appellee, the
court of appeals must promptly determine the appeal on the basis of the
papers, affidavits, and parts of the record that the parties present or
the court requires. Unless the court so orders, briefs need not be
(b) Release After Judgment of
Conviction. A party entitled to do so may obtain review of a
district-court order regarding release after a judgment of conviction by
filing a notice of appeal from that order in the district court, or by
filing a motion in the court of appeals if the party has already filed a
notice of appeal from the judgment of conviction. Both the order and the
review are subject to Rule 9(a). The papers filed by the party seeking
review must include a copy of the judgment of conviction.
RULE 10. The Record on Appeal
(1) Appellant's Duty to Order. Within 10
days after filing the notice of appeal or entry of an order disposing of
the last timely remaining motion of a type specified in Rule
4(a)(4)(A), whichever is later, the appellant must do either of the
(A) order from the reporter a transcript of such
parts of the proceedings not already on file as the appellant considers
necessary, subject to a local rule of the court of appeals and with the
(i) the order must be in writing;
(ii) if the cost of the transcript is to be paid by the United States under the Criminal Justice Act, the order must so state; and
(iii) the appellant must, within the same period, file a copy of the
order with the district clerk; or
(2) Unsupported Finding or Conclusion. If
the appellant intends to urge on appeal that a finding or conclusion is
unsupported by the evidence or is contrary to the evidence, the appellant
must include in the record a transcript of all evidence relevant to that
finding or conclusion.
(A) the appellant must-within the 10 days
provided in Rule 10(b)(1)-file a statement of the issues that the
appellant intends to present on the appeal and must serve on the appellee
a copy of both the order or certificate and the statement;
(B) if the appellee considers it necessary to
have a transcript of other parts of the proceedings, the appellee must,
within 10 days after the service of the order or certificate and the
statement of the issues, file and serve on the appellant a designation of
additional parts to be ordered; and
(C) unless within 10 days after service of that
designation the appellant has ordered all such parts, and has so notified
the appellee, the appellee may within the following 10 days either order
the parts or move in the district court for an order requiring the
appellant to do so.
(c) Statement of the Evidence When the
Proceedings Were Not Recorded or When a Transcript Is
Unavailable. If the transcript of a hearing or trial is
unavailable, the appellant may prepare a statement of the evidence or
proceedings from the best available means, including the appellant's
recollection. The statement must be served on the appellee, who may serve
objections or proposed amendments within 10 days after being served. The
statement and any objections or proposed amendments must then be submitted
to the district court for settlement and approval. As settled and
approved, the statement must be included by the district clerk in the
record on appeal.
(d) Agreed Statement as the Record on
Appeal. In place of the record on appeal as defined in Rule
10(a), the parties may prepare, sign, and submit to the district court a
statement of the case showing how the issues presented by the appeal arose
and were decided in the district court. The statement must set forth only
those facts averred and proved or sought to be proved that are essential
to the court's resolution of the issues. If the statement is truthful,
it-together with any additions that the district court may consider
necessary to a full presentation of the issues on appeal-must be approved
by the district court and must then be certified to the court of appeals
as the record on appeal. The district clerk must then send it to the
circuit clerk within the time provided by Rule 11. A copy of the agreed
statement may be filed in place of the appendix required by Rule
(1) If any difference arises about whether the
record truly discloses what occurred in the district court, the difference
must be submitted to and settled by that court and the record conformed
(2) If anything material to either party is
omitted from or misstated in the record by error or accident, the omission
or misstatement may be corrected and a supplemental record may be
certified and forwarded:
(a) Record Preparation Duties. The clerk of the
district court shall prepare within 14 days of filing the notice of appeal
the original papers, transcripts filed in the district court, and exhibits
received or offered in evidence (with the exceptions listed below). The
transcript of a deposition is "filed" within the meaning of this rule, and
an exhibit is "received or offered," to the extent that it is tendered to
the district court in support of a brief or motion, whether or not the
rules of the district court treat deposition transcripts or exhibits as
part of the record. These materials may be designated as part of the
record on appeal without the need for a motion under Fed. R. App. P.
10(e). Counsel must ensure that exhibits and transcripts to be included in
the record which are not in the possession of the district court clerk are
furnished to the clerk within ten days after the filing of the notice of
appeal. The following items will not be included in a record unless
specifically requested by a party by item and date of filing within ten
days after the notice of appeal is filed or unless specifically ordered by
briefs and memoranda,
notices of filings,
motions to extend time,
affidavits and admissions of service and mailing,
notices of settings,
notices, and jury lists.
(b) Correction or Modification of Record. A motion
to correct or modify the record pursuant to Rule 10(e),
Fed. R. App. P., or a motion to strike matter from the record on the
ground that it is not properly a part thereof shall be presented first to
the district court. That court's order ruling on the motion will be
transmitted to this court as part of the record.
(c) Order or Certification with Regard to
Transcript. Counsel and court reporters are to utilize the form
prescribed by this court when ordering transcripts or certifying that none
will be ordered. For specific requirements, see Rules 10(b)
Fed. R. App. P.
(1) Transcripts in Criminal Justice Act Cases. At
the time of the return of a verdict of guilty or, in the case of a bench
trial, an adjudication of guilt in a criminal case in which the defendant
is represented by counsel appointed under the Criminal Justice Act
(C.J.A.), counsel for the defendant shall request a transcript of
testimony and other relevant proceedings by completing a C.J.A. Form No.
24 and giving it to the district judge. If the district judge believes an
appeal is probable, the judge shall order transcribed so much of the
proceedings as the judge believes necessary for an appeal. The transcript
shall be filed with the clerk of the district court within 40 days after
the return of a verdict of guilty or, in the case of a bench trial, the
adjudication of guilt or within seven days after sentencing, whichever
occurs later. If the district judge decides not to order the transcript at
that time, the judge shall retain the C.J.A. Form No. 24 without ruling.
If a notice of appeal is filed later, appointed counsel or counsel for a
defendant allowed after trial to proceed on appeal in forma pauperis shall
immediately notify the district judge of the filing of a notice of appeal
and file or renew the request made on C.J.A. Form No. 24 for a free
(2) Transcripts in Other Criminal Cases. Within
10 days after filing the notice of appeal in other criminal cases, the
appellant or appellant's counsel shall deposit with the court reporter the
estimated cost of the transcript ordered pursuant to Rule 10(b),
Fed. R. App. P., unless the district court orders that the transcript
be paid for by the United States. A non-indigent appellant must pay a pro
rata share of the cost of a transcript prepared at the request of an
indigent co-defendant under the Criminal Justice Act unless the district
court determines that fairness requires a different division of the cost.
Failure to comply with this paragraph will be cause for dismissal of the
(e) Indexing of Transcript. The transcript of
proceedings to be transmitted to this court as part of the record on
appeal (and any copies prepared for the use of the court or counsel in the
case on appeal) shall be bound by the reporter in a volume or volumes,
with the pages consecutively numbered throughout all volumes. The
transcript of proceedings, or the first volume thereof, shall contain a
suitable index, which shall refer to the number of the volume as well as
the page, shall be cumulative for all volumes, and shall include the
(2) A list of exhibits by number, with a brief description
of each exhibit indicating the nature of its contents, and with a
reference to the pages of the transcript where each exhibit has been
identified, offered, and received or rejected.
When the record
includes transcripts of more than one trial or other distinct proceeding,
and it would be cumbersome to apply this paragraph to all the transcripts
taken together as one, the rule may be applied separately to each
transcript of one trial or other distinct proceeding.
(f) Presentence Reports. The presentence report is
part of the record on appeal in every criminal case. The district court
should transmit this report under seal, unless it has already been placed
in the public record in the district court. If the report is transmitted
under seal, the report may not be included in the appendix to the brief or
the separate appendix under Fed. R. App. P.
30 and Circuit Rule
30. Counsel of record may review the presentence report at the clerk's
office but may not review the probation officer's written comments and any
other portion submitted in camera to the trial judge.
(g) Effect of Omissions from the Record on Appeal. When a party's argument is countered by a contention of waiver for failure to raise the point in the trial court or before an agency, the party opposing the waiver contention must give the record cite where the point was asserted and also ensure that the record before the court of appeals contains the relevant document or transcript.
RULE 11. Forwarding the Record
(a) Appellant's Duty. An appellant
filing a notice of appeal must comply with Rule 10(b)
and must do whatever else is necessary to enable the clerk to assemble and
forward the record. If there are multiple appeals from a judgment or
order, the clerk must forward a single record.
(A) Upon receiving an order for a transcript, the
reporter must enter at the foot of the order the date of its receipt and
the expected completion date and send a copy, so endorsed, to the circuit
(B) If the transcript cannot be completed within
30 days of the reporter's receipt of the order, the reporter may request
the circuit clerk to grant additional time to complete it. The clerk must
note on the docket the action taken and notify the parties.
(2) District Clerk's Duty to Forward.
When the record is complete, the district clerk must number the documents
constituting the record and send them promptly to the circuit clerk
together with a list of the documents correspondingly numbered and
reasonably identified. Unless directed to do so by a party or the circuit
clerk, the district clerk will not send to the court of appeals documents
of unusual bulk or weight, physical exhibits other than documents, or
other parts of the record designated for omission by local rule of the
court of appeals. If the exhibits are unusually bulky or heavy, a party
must arrange with the clerks in advance for their transportation and
(c) Retaining the Record Temporarily in the
District Court for Use in Preparing the Appeal. The parties may
stipulate, or the district court on motion may order, that the district
clerk retain the record temporarily for the parties to use in preparing
the papers on appeal. In that event the district clerk must certify to the
circuit clerk that the record on appeal is complete. Upon receipt of the
appellee's brief, or earlier if the court orders or the parties agree, the
appellant must request the district clerk to forward the record.
(1) The court of appeals may, by order or local
rule, provide that a certified copy of the docket entries be forwarded
instead of the entire record. But a party may at any time during the
appeal request that designated parts of the record be forwarded.
(3) If part or all of the record is ordered
retained, the district clerk must send to the court of appeals a copy of
the order and the docket entries together with the parts of the original
record allowed by the district court and copies of any parts of the record
designated by the parties.
(f) Retaining Parts of the Record in the
District Court by Stipulation of the Parties.
The parties may agree by written stipulation filed in the
district court that designated parts of the record be retained in the
district court subject to call by the court of appeals or request by a
party. The parts of the record so designated remain a part of the record
• for dismissal;
• for release;
• for a stay pending appeal;
• for additional security on the bond on appeal or on a supersedeas bond; or
• for any other intermediate order, the district clerk must send the court of appeals any parts of the record designated by any party.
(a) Record Transmission. Appellate records from
the Eastern Division of the Northern District of Illinois are to be
transmitted to the court of appeals when prepared. Prepared appellate
records from all other courts in the circuit are to be temporarily
retained by the district court clerk's office pursuant to Rule 11(c), Fed. R. App. P.
Rule 11(c) certification is not required. After the appeal is ready
for scheduling for oral argument or submission, the clerk of the court of
appeals will notify the district court clerk to transmit the record to the
court of appeals. The parties may agree or the court of appeals may order
that the record be sent to the clerk of the court of appeals at an earlier
time. But in no event shall the clerk of the district court transmit bulky
items, currency, securities, liquids, drugs, weapons, or similar items
without a specific order of this court.
(b) Transcript and Other Supplemental
Transmissions. When trial or hearing transcripts, or other parts of
the record, are filed with the clerk of the district court (or exhibits
that have been retained in the district court for use in preparation of
the transcript are returned to the clerk) after initial transmission of
the record, they shall be immediately transmitted to this court and filed
as a supplemental record without the requirement of this court's order.
This immediate transmission meets the requirements of Rule 11(b),
Fed. R. App. P., that the court reporter notify the clerk of the court
of appeals that the transcript has been filed with the clerk of the
(2) Extension of Time for Preparation of
Transcript. Any request by a court reporter for an extension of time
longer than 30 days from the date the transcript was first ordered must be
filed with the clerk of this court on a form prescribed by the court. The
request must include the date the transcript was ordered, the reasons for
both that request, and any previous requests for extensions of time, and a
certificate that all parties or their counsel have been sent a copy of the
request. If the request is for an extension of time longer than 60 days
from the date the transcript was first ordered, it must include a
statement from the district judge who tried the case or the chief judge of
the district court that the request has been brought to that judge's
attention and that steps are being taken to insure that all ordered
transcripts will be promptly prepared.
(d) Withdrawal of Record. During the time allowed for the preparation and filing of a brief, an attorney for a party or a party acting pro se may withdraw the record upon giving a receipt to the clerk who has physical custody of the record. Once a panel of judges is assigned, a record may not be withdrawn without an order of the court. Original exhibits may not be withdrawn but may be examined only in the clerk's office. The party who has withdrawn the record may not file a brief or petition for rehearing until the record has been returned to the clerk's office from which it was withdrawn. Except as provided above, the record shall not be taken from a clerk's office without leave of this court on written motion. Failure of a party to return the record to the clerk may be treated as contempt of this court. When the party withdrawing the record is incarcerated, the clerk who has physical custody of the record, on order of this court, will send the record to the warden of the institution with the request that the record be made available to the party under supervised conditions and be returned to the respective clerk before a specified date.
RULE 12. Docketing the Appeal; Filing a
Representation Statement; Filing the Record
(a) Docketing the Appeal. Upon
receiving the copy of the notice of appeal and the docket entries from the
district clerk under Rule 3(d),
the circuit clerk must docket the appeal under the title of the
district-court action and must identify the appellant, adding the
appellant's name if necessary.
(b) Filing a Representation
Statement. Unless the court of appeals designates another time,
the attorney who filed the notice of appeal must, within 10 days after
filing the notice, file a statement with the circuit clerk naming the
parties that the attorney represents on appeal.
(c) Filing the Record, Partial Record, or Certificate. Upon receiving the record, partial record, or district clerk's certificate as provided in Rule 11, the circuit clerk must file it and immediately notify all parties of the filing date.
(b) Caption. The parties on appeal shall be designated in the title of the cause in court as they appeared in the district court, with the addition of identification of appellant and appellee, for example, John Smith, Plaintiff-Appellee v. William Jones, Defendant-Appellant. Actions seeking habeas corpus shall be designated "Petitioner v. Custodian" and not "United States ex rel. Petitioner v. Custodian."
RULE 13. Review of a Decision of the Tax Court
(1) Review of a decision of the United States Tax
Court is commenced by filing a notice of appeal with the Tax Court clerk
within 90 days after the entry of the Tax Court's decision. At the time of
filing, the appellant must furnish the clerk with enough copies of the
notice to enable the clerk to comply with Rule 3(d). If one party files a
timely notice of appeal, any other party may file a notice of appeal
within 120 days after the Tax Court's decision is entered.
(2) If, under Tax Court rules, a party makes a
timely motion to vacate or revise the Tax Court's decision, the time to
file a notice of appeal runs from the entry of the order disposing of the
motion or from the entry of a new decision, whichever is later.
(b) Notice of Appeal; How Filed.
The notice of appeal may be filed either at the Tax Court clerk's office
in the District of Columbia or by mail addressed to the clerk. If sent by
mail the notice is considered filed on the postmark date, subject to §
7502 of the Internal Revenue Code, as amended, and the applicable
(c) Contents of the Notice of Appeal;
Service; Effect of Filing and Service. Rule 3
prescribes the contents of a notice of appeal, the manner of service, and
the effect of its filing and service. Form 2 in the
Appendix of Forms is a suggested form of a notice of appeal.
(1) An appeal from the Tax Court is governed by
the parts of Rules 10, 11, and 12 regarding
the record on appeal from a district court, the time and manner of
forwarding and filing, and the docketing in the court of appeals.
References in those rules and in Rule 3 to the
district court and district clerk are to be read as referring to the Tax
Court and its clerk.
(2) If an appeal from a Tax Court decision is taken to more than one court of appeals, the original record must be sent to the court named in the first notice of appeal filed. In an appeal to any other court of appeals, the appellant must apply to that other court to make provision for the record.
RULE 14. Applicability of Other Rules to the Review of a Tax Court Decision
All provisions of these rules, except Rules 4-9, 15-20, and 22-23, apply to the review of a Tax Court decision.
RULE 15. Review or Enforcement of an Agency Order--How
(1) Review of an agency order is commenced by
filing, within the time prescribed by law, a petition for review with the
clerk of a court of appeals authorized to review the agency order. If
their interests make joinder practicable, two or more persons may join in
a petition to the same court to review the same order.
(3) Form 3 in the
Appendix of Forms is a suggested form of a petition for review.
(4) In this rule "agency" includes an agency,
board, commission, or officer; "petition for review" includes a petition
to enjoin, suspend, modify, or otherwise review, or a notice of appeal,
whichever form is indicated by the applicable statute.
(1) An application to enforce an agency order must
be filed with the clerk of a court of appeals authorized to enforce the
order. If a petition is filed to review an agency order that the court may
enforce, a party opposing the petition may file a cross-application for
(2) Within 20 days after the application for
enforcement is filed, the respondent must serve on the applicant an answer
to the application and file it with the clerk. If the respondent fails to
answer in time, the court will enter judgment for the relief
(c) Service of the Petition or
Application. The circuit clerk must serve a copy of the petition
for review, or an application or cross-application to enforce an agency
order, on each respondent as prescribed by Rule 3(d),
unless a different manner of service is prescribed by statute. At the time
of filing, the petitioner must:
(d) Intervention. Unless a statute
provides another method, a person who wants to intervene in a proceeding
under this rule must file a motion for leave to intervene with the circuit
clerk and serve a copy on all parties. The motion-or other notice of
intervention authorized by statute-must be filed within 30 days after the
petition for review is filed and must contain a concise statement of the
interest of the moving party and the grounds for intervention.
RULE 15.1. Briefs and Oral Argument in a National Labor
Relations Board Proceeding
In either an enforcement or a review proceeding, a party adverse to the National Labor Relations Board proceeds first on briefing and at oral argument, unless the court orders otherwise.
RULE 16. The Record on Review or Enforcement
(b) Omissions From or Misstatements in the Record. The parties may at any time, by stipulation, supply any omission from the record or correct a misstatement, or the court may so direct. If necessary, the court may direct that a supplemental record be prepared and filed.
RULE 17. Filing the Record
(a) Agency to File; Time for Filing; Notice
of Filing. The agency must file the record with the circuit clerk
within 40 days after being served with a petition for review, unless the
statute authorizing review provides otherwise, or within 40 days after it
files an application for enforcement unless the respondent fails to answer
or the court orders otherwise. The court may shorten or extend the time to
file the record. The clerk must notify all parties of the date when the
record is filed.
(3) The agency must retain any portion of the record not filed with the clerk. All parts of the record retained by the agency are a part of the record on review for all purposes and, if the court or a party so requests, must be sent to the court regardless of any prior stipulation.
RULE 18. Stay Pending Review
(i) show that moving first before the agency would be impracticable; or
(ii) state that, a motion having been made, the agency denied the
motion or failed to afford the relief requested and state any reasons
given by the agency for its action.
(i) the reasons for granting the relief requested and the facts relied on;
(ii) originals or copies of affidavits or other sworn statements supporting facts subject to dispute; and
(iii) relevant parts of the record.
(D) The motion must be filed with the circuit
clerk and normally will be considered by a panel of the court. But in an
exceptional case in which time requirements make that procedure
impracticable, the motion may be made to and considered by a single
RULE 19. Settlement of a Judgment Enforcing an Agency Order in
When the court files an opinion directing entry of judgment enforcing the agency's order in part, the agency must within 14 days file with the clerk and serve on each other party a proposed judgment conforming to the opinion. A party who disagrees with the agency's proposed judgment must within 7 days file with the clerk and serve the agency with a proposed judgment that the party believes conforms to the opinion. The court will settle the judgment and direct entry without further hearing or argument.
RULE 20. Applicability of Rules to the Review or Enforcement of
an Agency Order
All provisions of these rules, except Rules 3-14 and 22-23, apply to the review or enforcement of an agency order. In these rules, "appellant" includes a petitioner or applicant, and "appellee" includes a respondent.
RULE 21. Writs of Mandamus and Prohibition, and Other
(1) A party petitioning for a writ of mandamus or
prohibition directed to a court must file a petition with the circuit
clerk with proof of service on all parties to the proceeding in the trial
court. The party must also provide a copy to the trial-court judge. All
parties to the proceeding in the trial court other than the petitioner are
respondents for all purposes.
(i) the relief sought;
(ii) the issues presented;
(iii) the facts necessary to understand the issue presented by the petition; and
(iv) the reasons why the writ should issue.
(4) The court of appeals may invite or order the
trial-court judge to address the petition or may invite an amicus curiae
to do so. The trial-court judge may request permission to address the
petition but may not do so unless invited or ordered to do so by the court
(c) Other Extraordinary Writs. An
application for an extraordinary writ other than one provided for in Rule 21(a)
must be made by filing a petition with the circuit clerk with proof of
service on the respondents. Proceedings on the application must conform,
so far as is practicable, to the procedures prescribed in Rule 21(a) and
(d) Form of Papers; Number of
Copies. All papers must conform to Rule
32(c)(2). Except by the court's permission, a paper must not exceed 30
pages, exclusive of the disclosure statement, the proof of service, and
the accompanying documents required by Rule 21(a)(2)(C). An original and 3
copies must be filed unless the court requires the filing of a different
number by local rule or by order in a particular case.
RULE 22. Habeas Corpus and Section 2255
(a) Application for the Original
Writ. An application for a writ of habeas corpus must be made to
the appropriate district court. If made to a circuit judge, the
application must be transferred to the appropriate district court. If a
district court denies an application made or transferred to it, renewal of
the application before a circuit judge is not permitted. The applicant
may, under 28 U.S.C. § 2253, appeal to the court of appeals from the
district court's order denying the application.
(1) In a habeas corpus proceeding in which the
detention complained of arises from process issued by a state court, or in
a 28 U.S.C. § 2255 proceeding, the applicant cannot take an appeal unless
a circuit justice or a circuit or district judge issues a certificate of
appealability under 28 U.S.C. § 2253(c). If an applicant files a notice of
appeal, the district judge who rendered the judgment must either issue a
certificate of appealability or state why a certificate should not issue.
The district clerk must send the certificate or statement to the court of
appeals with the notice of appeal and the file of the district-court
proceedings. If the district judge has denied the certificate, the
applicant may request a circuit judge to issue the certificate.
(2) A request addressed to the court of appeals
may be considered by a circuit judge or judges, as the court prescribes.
If no express request for a certificate is filed, the notice of appeal
constitutes a request addressed to the judges of the court of
(2) Cases within the scope of this rule will be assigned
to a panel as soon as the appeal is docketed. The panel to which a case is
assigned will handle all substantial matters pertaining to the case,
including certificates of appealability, stays of execution, consideration
of the merits, second or successive petitions, remands from the Supreme
Court of the United States, and associated procedural matters. If a judge
on the panel is unavailable to participate, another judge may be
(3) Pursuant to 18 U.S.C. §3006A, and 21 U.S.C. §848(q),
28 U.S.C. §2254(h), and 28 U.S.C. §2255 ¶5, appellate counsel shall be
appointed for any person under a sentence of death who is financially
unable to obtain representation, requests that counsel be appointed, and
does not already have counsel appointed by a state under 28 U.S.C.
(1) The district court clerk must notify the clerk of this
court by telephone immediately upon the filing of a notice of appeal of a
case within the scope of this rule. In all cases within the scope of this
rule, the district court clerk must immediately transmit the record to the
court of appeals. A supplemental record may be sent later if items are not
(2) Upon receipt of the record from the district court
clerk, or any petition, application or motion invoking the jurisdiction of
this court, the clerk of this court shall docket the appeal. The panel
will be immediately notified.
(3) Upon filing a notice of appeal, the appellant shall
immediately transmit to the court four copies of, or a citation to, each
state or federal court opinion, memorandum decision, order, transcript of
oral statement of reasons, or judgment involving an issue to be presented
on appeal to this court. If a document or transcript is needed and is not
immediately available, appellant shall submit an affidavit as to the
decision and reasons given by the court. Appellant shall file the document
or transcript as soon as it is available.
(A) On direct appeal in a federal criminal prosecution,
the appellant shall serve and file a brief within 63 days after the date
on which the appeal is docketed. The appellee shall serve and file a brief
within 49 days after service of the brief by the appellant. The appellant
may serve and file a reply brief within 21 days after service of the brief
by the appellee.
(B) In all other cases within the scope of this rule the
appellant will have 28 days from the date on which the notice of appeal is
filed to file and serve a brief. The appellee then will have 21 days from
the service of the brief to file and serve a brief. Within seven days
after service of the appellee's brief, appellant may file and serve a
(2) If an issue is raised that was not presented at a
prior stage of the litigation (for example, in the district court, the
appropriate state court, or this court on a prior appeal), the party
raising the issue must state why the issue was not raised and why relief
should nonetheless be granted.
(1) The court will hear oral argument in every direct
appeal in a federal criminal prosecution and in every appeal from the
decision concerning an initial petition under 28 U.S.C. §2254 in a state
case. In any other case, a request for oral argument will be evaluated
under the standards of Fed. R. App. P.
(3) The merits of an appeal may be decided summarily if
the panel decides that an appeal is frivolous. In such a case, the panel
may issue a single opinion deciding both the merits of the appeal and the
motion for a stay of execution.
(1) The panel's decision shall be made without undue
delay. In cases to which 28 U.S.C. §2266 applies, the panel's decision
will be issued no later than 120 days after the date the reply brief was
(2) In cases in which an execution date has been set and
not stayed, the panel will release the decision with dispatch to allow the
losing party time to ask for rehearing or consideration by the Supreme
(1) Any active judge of the court may, within 14 days
after filing of the opinion, notify the panel and the clerk to hold
issuance of the mandate and poll the court for en banc consideration. If
the mandate has already issued, it may be recalled by the panel or by the
en banc court. All judges are to vote within 10 days after the request for
the vote on en banc consideration. A judge unable by reason of illness or
absence to act within the time allowed by this rule may extend the time to
act for a reasonable period upon written notice to the other judges.
Unless within 30 days after the petition for rehearing, or the answer to
the petition (if one has been requested), is filed, a majority of the
panel, or of the judges in active service, has voted to grant rehearing or
rehearing en banc, the court will enter an order denying the
(g) Second or Successive Petitions or Appeals. A
second or successive petition or appeal will be assigned to the panel that
handled the first appeal, motion for stay of execution, application for
certificate of appealability or other prayer for relief. A motion for
leave to commence a second or successive case is governed by Circuit Rule
22.2 and likewise will be assigned to the original panel.
(1) A stay of execution is granted automatically (A) on
direct appeal in a federal criminal prosecution by Fed. R. Crim. P. 38(a),
and (B) in some state cases by 28 U.S.C. §2262(a). A stay of execution is
forbidden in some state cases by 28 U.S.C. §2262(b) and (c). All requests
with respect to stays of execution over which the court possesses
discretion, or in which any party contends that §2262 or Rule 38(a) has
not been followed, must be made by motion under this rule.
(2) An appellant may not file a motion to stay execution
or to vacate a stay of execution unless there is an appeal accompanied by
a certificate of appealability or four copies of a request that this court
issue a certificate of appealability together with a copy of the district
judge's statement as to why the certificate should not issue. The request
for a certificate of appealability and the motion to stay execution shall
be decided together.
(3) The movant shall file four copies of the motion and
shall immediately notify opposing counsel by telephone. If the following
documents have not yet been filed with this court as part of the record, a
copy of each shall be filed with each copy of the motion:
(i) certificate of appealability;
(ii) the complaint, petition or motion seeking relief in the district court and the response thereto;
(iii) the district court decision on the merits;
(iv) the motion in the district court to stay execution or vacate stay of execution and the response thereto; and
district court decision on the motion to stay execution or vacate stay of
If any required
document cannot be filed, the movant shall state the reason for the
(4) If an issue is raised that was not presented at a
prior stage of the litigation (for example, in the district court, the
appropriate state court, or this court on a prior appeal), the party
raising the issue must state why the issue was not raised and why relief
should nonetheless be granted.
(6) Parties shall endeavor to file motions with the clerk
during normal business hours. Parties having emergency motions during
nonbusiness hours shall call the clerk's telephone number for recorded
instructions. The clerk shall promptly notify, by telephone, the
designated representatives of the appropriate governmental body or counsel
for petitioner of any such motions or other communications received by the
clerk during nonbusiness hours. Each side must keep the clerk informed of
the home and office telephone number of one attorney who will serve as
List of Cases. The clerk shall maintain a list by jurisdiction of
cases within the scope of this rule.
(j) Notification of State Supreme Court Clerk. The clerk shall send to the state supreme court a copy of the final decision in any habeas corpus case within the scope of this rule.
(a) A request under 28 U.S.C. §2244(b) or the final
paragraph of 28 U.S.C. §2255 for leave to file a second or successive
petition must include the following information and attachments, in this
(1) A disclosure statement, if required by Circuit Rule
(2) A short narrative statement of all claims the
person wishes to present for decision. This statement must disclose
whether any of these claims has been presented previously to any state or
federal court and, if it was, how each court to which it was presented
resolved it. If the claim has not previously been presented to a federal
court, the applicant must state either:
(B) That the factual predicate for the claim could
not have been discovered previously through the exercise of due diligence
and that the facts, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and convincing evidence
that no reasonable fact-finder would have found the applicant guilty of
the crime, had there been no constitutional error.
(3) A short narrative statement explaining how the
person proposes to establish the requirements mentioned above. An
applicant who relies on a new rule of constitutional law must identify the
new rule, the case that establishes that rule, and the decision of the
Supreme Court that holds this new rule applicable to cases on collateral
(b) A copy of the application, together with all
attachments, must be served on the attorney for the appropriate government
agency at the same time as the application is filed with the court. The
application must include a certificate stating who was served, by what
means, and when. If the application is made by a prisoner who is not
represented by counsel, ling and service may be made under the terms of Fed. R. App. P.
(c) Except in capital cases in which execution is
imminent, the attorney for the custodian (in state cases) or the United
States Attorney (in federal cases) may file a response within 14 days.
When an execution is imminent, the court will not wait for a response. A
response must include copies of any petitions or opinions that the
applicant omitted from the papers.
(As amended Dec. 1, 2001.)
RULE 23. Custody or Release of a Prisoner in a Habeas Corpus
(a) Transfer of Custody Pending
Review. Pending review of a decision in a habeas corpus
proceeding commenced before a court, justice, or judge of the United
States for the release of a prisoner, the person having custody of the
prisoner must not transfer custody to another unless a transfer is
directed in accordance with this rule. When, upon application, a custodian
shows the need for a transfer, the court, justice, or judge rendering the
decision under review may authorize the transfer and substitute the
successor custodian as a party.
(b) Detention or Release Pending Review of
Decision Not to Release. While a decision not to release a
prisoner is under review, the court or judge rendering the decision, or
the court of appeals, or the Supreme Court, or a judge or justice of
either court, may order that the prisoner be:
(c) Release Pending Review of Decision
Ordering Release. While a decision ordering the release of a
prisoner is under review, the prisoner must-unless the court or judge
rendering the decision, or the court of appeals, or the Supreme Court, or
a judge or justice of either court orders otherwise-be released on
personal recognizance, with or without surety.
(d) Modification of the Initial Order on Custody. An initial order governing the prisoner's custody or release, including any recognizance or surety, continues in effect pending review unless for special reasons shown to the court of appeals or the Supreme Court, or to a judge or justice of either court, the order is modified or an independent order regarding custody, release, or surety is issued.
RULE 24. Proceeding In Forma Pauperis
(1) Motion in the District Court. Except
as stated in Rule
24(a)(3), a party to a district-court action who desires to appeal in
forma pauperis must file a motion in the district court. The party must
attach an affidavit that:
(A) shows in the detail prescribed by Form 4 of the
Appendix of Forms, the party's inability to pay or to give security for
fees and costs;
(2) Action on the Motion. If the district
court grants the motion, the party may proceed on appeal without prepaying
or giving security for fees and costs, unless a statute provides
otherwise. If the district court denies the motion, it must state its
reasons in writing.
(3) Prior Approval. A party who was
permitted to proceed in forma pauperis in the district-court action, or
who was determined to be financially unable to obtain an adequate defense
in a criminal case, may proceed on appeal in forma pauperis without
further authorization, unless:
(5) Motion in the Court of Appeals. A
party may file a motion to proceed on appeal in forma pauperis in the
court of appeals within 30 days after service of the notice prescribed in
24(a)(4). The motion must include a copy of the affidavit filed in the
district court and the district court's statement of reasons for its
action. If no affidavit was filed in the district court, the party must
include the affidavit prescribed by Rule
(b) Leave to Proceed In Forma Pauperis on
Appeal or Review of an Administrative-Agency
Proceeding. When an appeal or review of a proceeding before an
administrative agency, board, commission, or officer (including for the
purpose of this rule the United States Tax Court) proceeds directly in a
court of appeals, a party may file in the court of appeals a motion for
leave to proceed on appeal in forma pauperis with an affidavit prescribed
by Rule 24(a)(1).
RULE 25. Filing and Service
(i) mailed to the clerk by First-Class Mail, or other class of mail that is at least as expeditious, postage prepaid; or
(ii) dispatched to a third-party commercial carrier for delivery to the
clerk within 3 calendar days.
(C) Inmate Filing. A paper filed by an
inmate confined in an institution is timely if deposited in the
institution's internal mailing system on or before the last day for
filing. If an institution has a system designed for legal mail, the inmate
must use that system to receive the benefit of this rule. Timely filing
may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a
notarized statement, either of which must set forth the date of deposit
and state that first-class postage has been prepaid.
(D) Electronic Filing. A court of
appeals may by local rule permit papers to be filed, signed, or verified
by electronic means that are consistent with technical standards, if any,
that the Judicial Conference of the United States establishes. A paper
filed by electronic means in compliance with a local rule constitutes a
written paper for the purpose of applying these rules.
(3) Filing a Motion with a Judge. If a
motion requests relief that may be granted by a single judge, the judge
may permit the motion to be filed with the judge; the judge must note the
filing date on the motion and give it to the clerk.
(4) Clerk's Refusal of Documents. The
clerk must not refuse to accept for filing any paper presented for that
purpose solely because it is not presented in proper form as required by
these rules or by any local rule or practice.
(b) Service of All Papers
Required. Unless a rule requires service by the clerk, a party
must, at or before the time of filing a paper, serve a copy on the other
parties to the appeal or review. Service on a party represented by counsel
must be made on the party's counsel.
(A) personal, including delivery to a responsible person at the office of counsel;
(B) by mail:
(C) by third-party commercial carrier for delivery within 3 calendar days; or
(D) by electronic means, if the party being served consents in writing.
(3) When reasonable considering such factors as the immediacy of the releaf sought, distance, and cost, service on a party must be by a manner at least as expeditious as the manner used to file the paper with the court.
(4) Service by mail or by commercial carrier is complete on mailing or
delivery to the carrier. Service by electronic means is complete on
transmission , unless the party making service is notified that the paper
was not received by the party served.
(i) the date and manner of service;
(ii) the names of the persons served; and
(iii) their mail or electronic addresses, facsimile numbers, or the addresses of the places of delivery, as appropriate for the manner of service.
(2) When a brief or appendix is filed by mailing
or dispatch in accordance with Rule
25(a)(2)(B), the proof of service must also state the date and manner
by which the document was mailed or dispatched to the clerk.
RULE 26. Computing and Extending Time
(3) Include the last day of the period unless it
is a Saturday, Sunday, legal holiday, or-if the act to be done is filing a
paper in court-a day on which the weather or other conditions make the
clerk's office inaccessible.
(4) As used in this rule, "legal holiday" means
New Year's Day, Martin Luther King, Jr.'s Birthday, Washington’s Birthday,
Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day,
Thanksgiving Day, Christmas Day, and any other day declared a holiday by
the President, Congress, or the state in which is located either the
district court that rendered the challenged judgment or order, or the
circuit clerk's principal office.
(b) Extending Time. For good
cause, the court may extend the time prescribed by these rules or by its
order to perform any act, or may permit an act to be done after that time
expires. But the court may not extend the time to file:
(1) a notice of appeal (except as authorized in Rule 4) or a
petition for permission to appeal; or
(2) a notice of appeal from or a petition to
enjoin, set aside, suspend, modify, enforce, or otherwise review an order
of an administrative agency, board, commission, or officer of the United
States, unless specifically authorized by law.
(c) Additional Time after Service. When a party is required or permitted to act within a prescribed period after a paper is served on that party, 3 calendar days are added to the prescribed period unless the paper is delivered on the date of service stated in the proof of service. For purposes of the Rule 26(c), a paper that is served electronically is not treated as delivered on the date of service stated in the proof of service.
time to file briefs are not favored. A request for an extension of time
shall be in the form of a motion supported by affidavit. The date the
brief is due shall be stated in the motion. The affidavit must disclose
facts which establish to the satisfaction of the court that with due
diligence, and giving priority to the preparation of the brief, it will
not be possible to file the brief on time.
In addition, if
the time for filing the brief has been previously extended, the affidavit
shall set forth the filing date of any prior motions and the court's
ruling thereon. All factual statements required by this rule shall be set
forth with specificity. Generalities, such as that the purpose of the
motion is not for delay, or that counsel is too busy will not be
may merit consideration are:
in other litigation, provided such litigation is identified by caption,
number, and court, and there is set forth (a) a description of action
taken on a request for continuance or deferment of other litigation; (b)
an explanation of the reasons why other litigation should receive priority
over the case in which the petition is filed; and (c) other relevant
circumstances including why other associated counsel cannot either prepare
the brief for filing or, in the alternative, relieve the movant's counsel
of the other litigation claimed as a ground for extension.
(2) The matter
under appeal is so complex that an adequate brief cannot reasonably be
prepared by the date the brief is due, provided that the complexity is
factually demonstrated in the affidavit.
hardship to counsel will result unless an extension is granted, in which
event the nature of the hardship must be set forth in detail.
shall be filed at least five days before the brief is due, unless it is
made to appear in the motion that the facts which are the basis of the
motion did not exist earlier or were not, or with due diligence could not
have been, known earlier to the movant's counsel. Notice of the fact that
an extension will be sought must be given to the opposing counsel together
with a copy of the motion prior to the filing thereof.
In criminal cases, or in other cases in which a party may be in custody (including military service), a statement must be set forth in the affidavit as to the custodial status of the party, including the conditions of the party's bail, if any.
RULE 26.1 Corporate Disclosure Statement
(a) Who Must File. Any nongovernmental corporate party to a proceeding in a court of appeals must file a statement identifying all its parent corporations and listing any publicly held company that owns 10% or more of the party's stock or states that there is no such corporation.
(b) Time for Filing; Supplemental
Filing. A party must file the statement with the principal brief
or upon filing a motion, response, petition, or answer in the court of
appeals, whichever occurs first, unless a local rule requires earlier
filing. Even if the statement has already been filed, the party's
principal brief must include the statement before the table of contents. A
party must supplement its statement whenever the information that must be
disclosed under Rule 26.1(a) changes.
(c) Number of Copies. If the Rule 26.1 statement is filed before the principal brief, or if a supplemental statement is filed, the party must file an original and 3 copies unless the court requires a different number by local rule or by order in a particular case.
(a) Who Must File. Every attorney for a
non-governmental party or amicus curiae, and every private attorney
representing a governmental party, must file a statement under this rule.
A party or amicus required to file a corporate disclosure statement under
Fed. R. App. P. 26.1 may combine the information required by subsection
(b) of this rule with the statement required by the national
(b) Contents of Statement. The statement must
disclose the names of all law firms whose partners or associates have
appeared for the party or amicus in the case (including proceedings in the
district court or before an administrative agency) or are expected to
appear in this court. If any litigant is using a pseudonym, the statement
must disclose the litigant's true name. A disclosure required by the
preceding sentence will be kept under seal.
(c) Time for Filing. The statement under this
rule and Fed. R. App. P. 26.1 must be filed no later than 21 days after
docketing the appeal, with a party's first motion or response to an
adversary's motion, or when directed by the court, whichever time is
earliest. A disclosure statement also must accompany any petition for
permission to appeal under Fed. R. App. P.
5 and must be included with each party's brief. See Fed. R. App.
P. 28(a)(1), (b).
(d) Duty to Update. Counsel must file updated
disclosure statements under this rule and Fed. R. App.
P. 26.1 within 14 days of any change in the information required to be
(As amended Dec. 1, 2001.)
RULE 27. Motions
(i) Any affidavit or other paper necessary to support a motion must be served and filed with the motion.
(ii) An affidavit must contain only factual information, not legal argument.
(iii) A motion seeking substantive relief must include a copy of the
trial court's opinion or agency's decision as a separate exhibit.
(i) A separate brief supporting or responding to a motion must not be filed.
(ii) A notice of motion is not required.
(iii) A proposed order is not required.
Time to File. Any party may file a response to a motion; Rule
27(a)(2) governs its contents. The response must be filed within 8 days
after service of the motion unless the court shortens or extends the time.
A motion authorized by Rules 8, 9, 18, or 41 may be
granted before the 8-day period runs only if the court gives reasonable
notice to the parties that it intends to act sooner.
(B) Request for Affirmative Relief. A
response may include a motion for affirmative relief. The time to respond
to the new motion, and to reply to that response, are governed by Rule
27(a)(3)(A) and (a)(4). The title of the response must alert the court to
the request for relief.
(b) Disposition of a Motion for a
Procedural Order. The court may act on a motion for a procedural
order-including a motion under Rule
26(b)--at any time without awaiting a response, and may, by rule or by
order in a particular case, authorize its clerk to act on specified types
of procedural motions. A party adversely affected by the court's, or the
clerk's, action may file a motion to reconsider, vacate, or modify that
action. Timely opposition filed after the motion is granted in whole or in
part does not constitute a request to reconsider, vacate, or modify the
disposition; a motion requesting that relief must be filed.
(c) Power of a Single Judge to Entertain a Motion. A circuit judge may act alone on any motion, but may not dismiss or otherwise determine an appeal or other proceeding. A court of appeals may provide by rule or by order in a particular case that only the court may act on any motion or class of motions. The court may review the action of a single judge.
(A) Reproduction. A motion, response, or
reply may be reproduced by any process that yields a clear black image on
light paper. The paper must be opaque and unglazed. Only one side of the
paper may be used.
(B) Cover. A cover is not required but
there must be a caption that includes the case number, the name of the
court, the title of the case, and a brief descriptive title indicating the
purpose of the motion and identifying the party or parties for whom it is
(D) Paper Size, Line Spacing, and
Margins. The document must be on 8 ½ by 11 inch paper. The text must
be double-spaced, but quotations more than two lines long may be indented
and single-spaced. Headings and footnotes may be single-spaced. Margins
must be at least one inch on all four sides. Page numbers may be placed in
the margins, but no text may appear there.
(2) Page Limits. A motion or a response
to a motion must not exceed 20 pages, exclusive of the corporate
disclosure statement and accompanying documents authorized by Rule
27(a)(2)(B), unless the court permits or directs otherwise. A reply to a
response must not exceed 10 pages.
RULE 28. Briefs
(1) a corporate disclosure statement if required by Rule 26.1;
(11) the certificate of compliance, if required
(b) Appellee's Brief. The
appellee's brief must conform to the requirements of Rule
28(a)(1)-(9) and (11), except that none of the following need appear
unless the appellee is dissatisfied with the appellant's
(c) Reply Brief. The appellant may file a brief
in reply to the appellee's brief. Unless the court permits, no further
briefs may be filed. A reply brief must contain a table of contents, with
page references, and a table of authorities-cases (alphabetically
arranged), statutes, and other authorities with references to the pages of
the reply brief where they are cited.
(d) References to Parties. In
briefs and at oral argument, counsel should minimize use of the terms
"appellant" and "appellee." To make briefs clear, counsel should use the
parties' actual names or the designations used in the lower court or
agency proceeding, or such descriptive terms as "the employee," "the
injured person," "the taxpayer," "the ship," "the stevedore."
(e) References to the Record. References to the parts of the record contained in the appendix filed with the appellant's brief must be to the pages of the appendix. If the appendix is prepared after the briefs are filed, a party referring to the record must follow one of the methods detailed in Rule 30(c). If the original record is used under Rule 30(f) and is not consecutively paginated, or if the brief refers to an unreproduced part of the record, any reference must be to the page of the original document. For example:• Answer p. 7;
• Motion for Judgment p. 2;
• Transcript p.
Only clear abbreviations may
be used. A party referring to evidence whose admissibility is in
controversy must cite the pages of the appendix or of the transcript at
which the evidence was identified, offered, and received or
(f) Reproduction of Statutes, Rules, Regulations,
etc. If the court's determination of the issues presented
requires the study of statutes, rules, regulations, etc., the relevant
parts must be set out in the brief or in an addendum at the end, or may be
supplied to the court in pamphlet form.
(i) Briefs in a Case Involving Multiple Appellants or
Appellees. In a case involving more than one appellant or
appellee, including consolidated cases, any number of appellants or
appellees may join in a brief, and any party may adopt by reference a part
of another's brief. Parties may also join in reply briefs.
(j) Citation of Supplemental Authorities. If pertinent and significant authorities come to a party's attention after the party's brief has been filed- or after oral argument but before decision-a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.
conform to Fed. R. App. P. 28 and the additional provisions in Circuit Rules
12(b), 30 and 52. The
following requirements supplement those in the corresponding provisions of
Fed. R. App. P. 28:
(1) The statement concerning the district court's
jurisdiction shall identify the provision of the constitution or federal
statute involved if jurisdiction is based on the existence of a federal
question. If jurisdiction depends on diversity of citizenship, the
statement shall identify the jurisdictional amount and the citizenship of
each party to the litigation. If any party is a corporation, the statement
shall identify both the state of incorporation and the state in which the
corporation has its principal place of business. If any party is an
unincorporated association or partnership the statement shall identify the
citizenship of all members. The statement shall supply similar details
concerning the invocation of supplemental jurisdiction or other sources of
(i) The date of entry of the judgment or decree sought to be reviewed.
(ii) The filing date of any motion for a new trial or alteration of the judgment or any other motion claimed to toll the time within which to appeal.
(iii) The disposition of such a motion and the date of its entry.
(iv) The filing date of the notice of appeal (together with information about an extension of time if one was granted).
(v) If the case
is a direct appeal from the decision of a magistrate judge, the dates on
which each party consented in writing to the entry of final judgment by
the magistrate judge.
(3) If the appeal is from an order other than a final
judgment which adjudicates all of the claims with respect to all parties,
counsel shall provide the information necessary to enable the court to
determine whether the order is immediately appealable. Elaboration will be
necessary in the following cases although the list is illustrative rather
(i) If any
claims or parties remain for disposition in the district court, identify
the nature of these claims and the ground on which an appeal may be taken
in advance of the final judgment. If there has been a certificate under
Fed. R. Civ. P. 54(b) or if this is an appeal by permission under 28
U.S.C. § 1292(b), give the particulars and describe the relation between
the claims or parties subject to the appeal and the claims or parties
remaining in the district court.
(ii) If the
ground of jurisdiction is the "collateral order doctrine," describe how
the order meets each of the criteria of that doctrine: finality,
separability from the merits of the underlying action, and practical
unreviewability on appeal from a final judgment. Cite pertinent cases
establishing the appealability of orders of the character
(iii) If the
order sought to be reviewed remands a case to a bankruptcy judge or
administrative agency, explain what needs to be done on remand and why the
order is nonetheless "final."
some issues or parties remain before the district court, give enough
information to enable the court to determine whether the order is
appealable. Appeals from orders granting or staying arbitration or
abstaining from decision as well as appeals from the grant or denial of
injunctions require careful exposition of jurisdictional
(b) Appellee's Jurisdictional Statement. The appellee's brief shall state explicitly whether or not the jurisdictional summary in the appellant's brief is complete and correct. If it is not, the appellee shall provide a complete jurisdictional summary.
(c) Statement of the Facts. The statement of the
facts required by Fed. R. App. P. 28(a)(7) shall be a fair summary without
argument or comment. No fact shall be stated in this part of the brief
unless it is supported by a reference to the page or pages of the record
or the appendix where that fact appears.
(a) If a cross-appeal is filed, the
clerk will designate which party will file the opening brief, and will set
a briefing schedule. The adverse party may file a combined responsive
brief and opening brief in its own appeal. This brief may not exceed the
page limitation for principal briefs. The party that filed the opening
brief may file a combined responsive brief to the cross-appeal and reply
brief in its own appeal. This brief may not exceed the page limitation for
(b) The court will entertain motions
for realignment of the briefing schedule and enlargement of the number of
pages when the norm established by this rule proves inappropriate. Because
it is improper to take a cross-appeal in order to advance additional
arguments in support of a judgment, the court will not grant motions under
this subsection by cross-appellants that do not seek to enlarge their
rights under the judgment.
(2) Captions of Briefs in Multiple Appeals. When
two or more parties file cross-appeals or other separate but related
appeals, the briefs shall bear the appellate case numbers and captions of
all related appeals.
(f) Citation to the United States Reports. Citation to the opinions of the Supreme Court of the United States must include the Volume and page of the United States Reports, once the citation is available.
RULE 28.1. Cross-Appeals
Applicability. This rule applies to a case in which a
cross-appeal is filed. Rules 28(a)-(c), 31(a)(1), 32(a)(2), and
32(a)(7)(A)-(B) do not apply to such a case, except as otherwise provided
in this rule.
(b) Designation of
Appellant. The party who files a notice of appeal first is the
appellant for the purposes of this rule and Rules 30 and 34. If notices
are filed on the same day, the plaintiff in the proceeding below is the
appellant. These designations may be modified by the parties’ agreement or
by court order.
(2) Appellee’s Principal
and Response Brief.The appellee must file a principal brief in the
cross-appeal and must, in the same brief, respond to the principal brief
in the appeal. That appellee’s brief must comply with Rule 28(a), except
that the brief need not include a statement of the case or a statement of
the facts unless the appellee is dissatisfied with the appellant’s
(3) Appellant’s Response
and Reply Brief. The appellant must file a brief that responds to the
principal brief in the cross-appeal and may, in the same brief, reply to
the response in the appeal. That brief must comply with Rule 28(a)(2)-(9)
and (11), except that none of the following need appear unless the
appellant is dissatisfied with the appellee’s statement in the
(4) Appellee’s Reply
Brief. The appellee may file a brief in reply to the response in the
cross appeal. That brief must comply with Rule 28(b)(2)-(3) and (11) and
must be limited to issues presented by the cross-appeal.
(d) Cover. Except for
filing by unrepresented parties, the cover of the appellant’s brief must
be blue; the appellee’s principal and response brief, red; the appellant’s
response and reply brief, yellow; the appellee’s reply brief, grey; an
intervenor’s or amicus curiae’s brief, green; and any supplemental brief,
tan. The front cover of a brief must contain the information required by
(3) Certificate of
Compliance. A brief submitted under Rule 28.1(e)(2) must comply
(f) Time to Serve
and File a Brief. Briefs must be served and filed as
RULE 29. Brief of an Amicus Curiae
(a) When Permitted. The United
States or its officer or agency, or a State, Territory, Commonwealth, or
the District of Columbia may file an amicus-curiae brief without the
consent of the parties or leave of court. Any other amicus curiae may file
a brief only by leave of court or if the brief states that all parties
have consented to its filing.
(c) Contents and Form. An amicus
brief must comply with Rule 32. In
addition to the requirements of Rule 32, the cover must identify the party
or parties supported and indicate whether the brief supports affirmance or
reversal. If an amicus curiae is a corporation, the brief must include a
disclosure statement like that required of parties by Rule
26.1. An amicus brief need not comply with Rule 28, but must include
(5) a certificate of compliance, if required by Rule
(d) Length. Except by the court's
permission, an amicus brief may be no more than one-half the maximum
length authorized by these rules for a party's principal brief. If the
court grants a party permission to file a longer brief, that extension
does not affect the length of an amicus brief.
(e) Time for Filing. An amicus
curiae must file its brief, accompanied by a motion for filing when
necessary, no later than 7 days after the principal brief of the party
being supported is filed. An amicus curiae that does not support either
party must file its brief no later than 7 days after the appellant's or
petitioner's principal brief is filed. A court may grant leave for later
filing, specifying the time within which an opposing party may
RULE 30. Appendix to the Briefs
(2) Excluded Material. Memoranda of law
in the district court should not be included in the appendix unless they
have independent relevance. Parts of the record may be relied on by the
court or the parties even though not included in the appendix.
(3) Time to File; Number of Copies.
Unless filing is deferred under Rule 30(c), the appellant must file 10
copies of the appendix with the brief and must serve one copy on counsel
for each party separately represented. An unrepresented party proceeding
in forma pauperis must file 4 legible copies with the clerk, and one copy
must be served on counsel for each separately represented party. The court
may by local rule or by order in a particular case require the filing or
service of a different number.
(1) Determining the Contents of the
Appendix. The parties are encouraged to agree on the contents of the
appendix. In the absence of an agreement, the appellant must, within 10
days after the record is filed, serve on the appellee a designation of the
parts of the record the appellant intends to include in the appendix and a
statement of the issues the appellant intends to present for review. The
appellee may, within 10 days after receiving the designation, serve on the
appellant a designation of additional parts to which it wishes to direct
the court's attention. The appellant must include the designated parts in
the appendix. The parties must not engage in unnecessary designation of
parts of the record, because the entire record is available to the court.
This paragraph applies also to a cross-appellant and a
(2) Costs of Appendix. Unless the parties
agree otherwise, the appellant must pay the cost of the appendix. If the
appellant considers parts of the record designated by the appellee to be
unnecessary, the appellant may advise the appellee, who must then advance
the cost of including those parts. The cost of the appendix is a taxable
cost. But if any party causes unnecessary parts of the record to be
included in the appendix, the court may impose the cost of those parts on
that party. Each circuit must, by local rule, provide for sanctions
against attorneys who unreasonably and vexatiously increase litigation
costs by including unnecessary material in the appendix.
(1) Deferral Until After Briefs Are
Filed. The court may provide by rule for classes of cases or by order
in a particular case that preparation of the appendix may be deferred
until after the briefs have been filed and that the appendix may be filed
21 days after the appellee's brief is served. Even though the filing of
the appendix may be deferred, Rule 30(b) applies; except that a party must
designate the parts of the record it wants included in the appendix when
it serves its brief, and need not include a statement of the issues
(A) If the deferred appendix is used, the parties
may cite in their briefs the pertinent pages of the record. When the
appendix is prepared, the record pages cited in the briefs must be
indicated by inserting record page numbers, in brackets, at places in the
appendix where those pages of the record appear.
(B) A party who wants to refer directly to pages
of the appendix may serve and file copies of the brief within the time
required by Rule 31(a),
containing appropriate references to pertinent pages of the record. In
that event, within 14 days after the appendix is filed, the party must
serve and file copies of the brief, containing references to the pages of
the appendix in place of or in addition to the references to the pertinent
pages of the record. Except for the correction of typographical errors, no
other changes may be made to the brief.
(d) Format of the Appendix. The
appendix must begin with a table of contents identifying the page at which
each part begins. The relevant docket entries must follow the table of
contents. Other parts of the record must follow chronologically. When
pages from the transcript of proceedings are placed in the appendix, the
transcript page numbers must be shown in brackets immediately before the
included pages. Omissions in the text of papers or of the transcript must
be indicated by asterisks. Immaterial formal matters (captions,
subscriptions, acknowledgments, etc.) should be omitted.
(e) Reproduction of Exhibits.
Exhibits designated for inclusion in the appendix may be reproduced in a
separate volume, or volumes, suitably indexed. Four copies must be filed
with the appendix, and one copy must be served on counsel for each
separately represented party. If a transcript of a proceeding before an
administrative agency, board, commission, or officer was used in a
district-court action and has been designated for inclusion in the
appendix, the transcript must be placed in the appendix as an
(f) Appeal on the Original Record Without an Appendix. The court may, either by rule for all cases or classes of cases or by order in a particular case, dispense with the appendix and permit an appeal to proceed on the original record with any copies of the record, or relevant parts, that the court may order the parties to file.
(a) Contents. The appellant shall submit, bound
with the main brief, an appendix containing the judgment or order under
review and any opinion, memorandum of decision, findings of fact and
conclusions of law, or oral statement of reasons delivered by the trial
court or administrative agency upon the rendering of that judgment,
decree, or order.
(1) Copies of any other opinions, orders, or oral rulings
in the case that address the issues sought to be raised. If the
appellant's brief challenges any oral ruling, the portion of the
transcript containing the judge's rationale for that ruling must be
included in the appendix.
(3) Copies of all opinions, orders, findings of fact and
conclusions of law rendered in the case by administrative agencies
(including their administrative law judges and adjudicative officers such
as administrative appeals judges, immigration judges, members of boards
and commissions, and others who serve functionally similar roles). This
requirement applies whether the original review of the administrative
decision is in this court or was conducted by the district
(4) If this is a collateral attack on a criminal
conviction, then the appendix also must include copies of all opinions by
any federal court or state appellate court previously rendered in the
criminal prosecution, any appeal, and any earlier collateral
(6) Any other short excerpts from the record, such as
essential portions of the pleading or charge, disputed provisions of a
contract, pertinent pictures, or brief portions of the transcript, that
are important to a consideration of the issues raised on
(d) Statement that All Required Materials are in
Appendix. The appendix to each appellant's brief shall contain a
statement that all of the materials required by parts (a) and (b) of this
rule are included. If there are no materials within the scope of parts (a)
and (b) of this rule, counsel shall so certify.
(e) Stipulated Joint Appendix and Supplemental
Appendices. The parties may file a stipulated joint appendix. A
supplemental appendix, containing material not included in an appendix
previously filed, may be filed with the appellee's brief. An appendix
should not be lengthy, and costs for a lengthy appendix will not be
(f) Indexing of Appendix. If a party elects to file an appendix containing portions of the transcript of proceedings, it shall contain an index of the portions of the transcript contained therein in the form and detail described in Circuit Rule 10(e) as well as a complete table of contents.
RULE 31. Serving and Filing Briefs
(1) The appellant must serve and file a brief
within 40 days after the record is filed. The appellee must serve and file
a brief within 30 days after the appellant's brief is served. The
appellant may serve and file a reply brief within 14 days after service of
the appellee's brief but a reply brief must be filed at least 3 days
before argument, unless the court, for good cause, allows a later
(2) A court of appeals that routinely considers cases on the merits promptly after the briefs are filed may shorten the time to serve and file briefs, either by local rule or by order in a particular case.
(b) Number of Copies. Twenty-five copies of each
brief must be filed with the clerk and 2 copies must be served on each
unrepresented party and on counsel for each separately represented party.
An unrepresented party proceeding in forma pauperis must file 4 legible
copies with the clerk, and one copy must be served on each unrepresented
party and on counsel for each separately represented party. The court may
by local rule or by order in a particular case require the filing or
service of a different number.
(c) Consequence of Failure to File. If an appellant fails to file a brief within the time provided by this rule, or within an extended time, an appellee may move to dismiss the appeal. An appellee who fails to file a brief will not be heard at oral argument unless the court grants permission.
(a) Time for Filing Briefs. Except in agency
cases, the time for filing briefs shall run from the date the appeal is
docketed, regardless of the completeness of the record at the time of
docketing, unless the court orders otherwise.
(b) Number of Briefs Required. The clerk of this
court is authorized to accept 15 copies of briefs as substantial
compliance with Rule 31(b),
Fed. R. App. P. Appointed counsel shall also file 15
(1) All Criminal Cases in Which the Defendant Has
Counsel and Civil Cases With Court-Appointed Counsel. The clerk shall
enter an order directing counsel to show cause within 14 days why
disciplinary action should not be taken. The court will then take
(d) Failure of Appellee to File Brief. When an
appellee's brief is not filed on time, the clerk shall enter an order
requiring the appellee to show cause within 14 days why the case should
not be treated as ready for oral argument or submission and the appellee
denied oral argument. The court will then take appropriate
(1) A digital version of each brief (including the
appendix required by Circuit Rule
30(a) to (c)) must be
furnished to the court at the time the paper brief is filed, unless
counsel certifies that the material is not available electronically. The
full contents of the brief (from cover through conclusion) must be
furnished even if digital versions of some materials in the Rule 30
appendix are not available.
(2) The digital version must be furnished on floppy disk,
on CD-ROM, or via the Internet. Detailed instructions appear on the
court's web page . The label of a disk, if one is used, must show the case
name, docket number, and party on whose behalf the brief is
(3) The electronic version must be in Portable Document
Format (also known as PDF or Acrobat format). This format must be
generated by printing to PDF from the original word processing file, so
that the text of the digital brief may be searched and copied: PDF images
created by scanning paper documents do not comply with this
(As amended Dec. 1, 2001.)
RULE 32. Form of Briefs, Appendices, and Other
(2) Cover. Except for filings by unrepresented parties, the cover of the appellant's brief must be blue; the appellee's, red; an intervenor's or amicus curiae's, green; any reply brief, gray; and any supplemental brief, tan. The front cover of a brief must contain:
(C) the title of the case (see Rule 12(a));
(4) Paper Size, Line Spacing, and
Margins. The brief must be on 8 ½ by 11 inch paper. The text must be
double-spaced, but quotations more than two lines long may be indented and
single-spaced. Headings and footnotes may be single- spaced. Margins must
be at least one inch on all four sides. Page numbers may be placed in the
margins, but no text may appear there.
(i) A principal brief is acceptable if:
• it contains no more than 14,000 words; or
• it uses a monospaced face and contains no more than 1,300 lines of
(ii) A reply brief is acceptable if it contains no more than half of
the type volume specified in Rule 32(a)(7)(B)(i).
(iii) Headings, footnotes, and quotations count toward the word and
line limitations. The corporate disclosure statement, table of contents,
table of citations, statement with respect to oral argument, any addendum
containing statutes, rules or regulations, and any certificates of counsel
do not count toward the limitation.
(i) A brief submitted under Rule 28.1(e)(2) or 32(a)(7)(B) must include
a certificate by the attorney, or an unrepresented party, that the brief
complies with the type-volume limitation. The person preparing the
certificate may rely on the word or line count of the word-processing
system used to prepare the brief. The certificate must state
6 in the appendix of forms is a suggested form of a certificate of
compliance. Use of Form 6 must be regarded as sufficient to meet the
requirements of Rule 28.1(e)(3) or 32(a)(7)(C)(i).
(1) Motion. The form of a motion is
governed by Rule
(2) Other Papers. Any other paper,
including a petition for panel rehearing and a petition for hearing or
rehearing en banc, and any response to such a petition, must be reproduced
in the manner prescribed by Rule 32(a), with the following
(e) Local Variation. Every court of appeals must
accept documents that comply with the form requirements of this rule. By
local rule or order in a particular case a court of appeals may accept
documents that do not meet all of the form requirements of this
(a) A brief need not comply with the portion of Fed. R.
App. P. 32(a)(3) requiring it to "lie reasonably flat when open." A
brief's binding is acceptable if it is secure and does not obscure the
(b) A brief need not comply with the 14-point-type
requirement in Fed. R. App. P. 32(a)(5)(A). A brief is acceptable if
proportionally spaced type is 12 points or larger in the body of the
brief, and 11 points or larger in footnotes.
(As amended Dec. 1, 2001.)
RULE 33. Appeal Conferences
The court may direct the attorneys-and, when appropriate, the parties-to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement. A judge or other person designated by the court may preside over the conference, which may be conducted in person or by telephone. Before a settlement conference, the attorneys must consult with their clients and obtain as much authority as feasible to settle the case. The court may, as a result of the conference, enter an order controlling the course of the proceedings or implementing any settlement agreement.
At the conference the court may, among other things, examine its jurisdiction, simplify and define issues, consolidate cases, establish the briefing schedule, set limitations on the length of briefs, and explore the possibility of settlement.
RULE 34. Oral Argument
(2) Standards. Oral argument must be
allowed in every case unless a panel of three judges who have examined the
briefs and record unanimously agrees that oral argument is unnecessary for
any of the following reasons:
(b) Notice of Argument;
Postponement. The clerk must advise all parties whether oral
argument will be scheduled, and, if so, the date, time, and place for it,
and the time allowed for each side. A motion to postpone the argument or
to allow longer argument must be filed reasonably in advance of the
(d) Cross-Appeals and Separate
Appeals. If there is a cross-appeal, Rule
28.1(b) determines which party is the appellant and which is the
appellee for purposes of oral argument. Unless the court directs
otherwise, a cross-appeal or separate appeal must be argued when the
initial appeal is argued. Separate parties should avoid duplicative
(e) Nonappearance of a Party. If
the appellee fails to appear for argument, the court must hear appellant's
argument. If the appellant fails to appear for argument, the court may
hear the appellee's argument. If neither party appears, the case will be
decided on the briefs, unless the court orders otherwise.
(g) Use of Physical Exhibits at Argument; Removal. Counsel intending to use physical exhibits other than documents at the argument must arrange to place them in the courtroom on the day of the argument before the court convenes. After the argument, counsel must remove the exhibits from the courtroom, unless the court directs otherwise. The clerk may destroy or dispose of the exhibits if counsel does not reclaim them within a reasonable time after the clerk gives notice to remove them.
(1) The calendar for a particular day will generally
consist of three appeals scheduled for oral argument at 9:30 a.m., one
appeal scheduled for oral argument at 10:30 a.m., and two appeals
scheduled for oral argument at 2:00 p.m. The amount of time allotted for
oral argument will be set based on the nature of the case. The clerk will
notify counsel of the allocation approximately 21 days before the
argument. The types of cases listed below are to be given priority, though
the sequence of listing here is not intended to indicate relative priority
among the types of cases.
(i) Appeal from
an order of confinement after refusal of an immunized witness to testify
before the grand jury. (These appeals must be decided within 30 days.) 28
U.S.C. § 1826.
Appeals. Rule 45(b),
Fed. R. App. P.
from orders refusing or imposing conditions of release, which will be
heard without the necessity of briefs. Rule 9, Fed. R.
involving issues of public importance.
corpus and 28 U.S.C. § 2255 appeals.
from the granting, denying, or modifying of injunctions.
other action if good cause therefore is shown. For purposes of this
subsection, 'good cause' is shown if a right under the Constitution of the
United States or a Federal Statute (including rights under section 552 of
Title 5) would be maintained in a factual context that indicates that a
request for expedited consideration has merit." 28 U.S.C. §
(2) Consideration will be given to requests addressed to
the clerk by out-of-town counsel to schedule more than one appeal for oral
argument the same day in order to minimize travel time and
(3) Requests by counsel, made in advance of the scheduling
of an appeal for oral argument, that the court avoid scheduling the oral
argument for a particular day or week will be respected, if
(4) Once an appeal has been scheduled for oral argument,
the court will not ordinarily reschedule it. Requests under subparagraphs
(2) and (3) of this paragraph should therefore be made as early as
possible. Counsel should have in mind that, when practicable, criminal
appeals are scheduled for oral argument shortly after the appellant's
brief is filed and civil appeals shortly after the appellee's brief is
(c) Divided Argument Not Favored. Divided
arguments on behalf of a single party or multiple parties with the same
interests are not favored by the court. When such arguments are
nevertheless divided or when more than one counsel argues on the same side
for parties with differing interests, the time allowed shall be
apportioned between such counsel in their own discretion. If counsel are
unable to agree, the court will allocate the time.
(e) Waiver or Postponement. Any request for waiver
or postponement of a scheduled oral argument must be made by formal
motion, with proof of service on all other counsel or parties.
Postponements will be granted only in extraordinary
(f) Statement Concerning Oral Argument. A party
may include, as part of a principal brief, a short statement explaining
why oral argument is (or is not) appropriate under the criteria of Fed. R. App. P.
(g) Citation of Authorities at Oral Argument.
Counsel may not cite or discuss a case at oral argument unless the case
has been cited in one of the briefs or drawn to the attention of the court
and opposing counsel by a filing under Fed R. App. P.
28(j). The filing may be made on the day of oral argument, if
absolutely necessary, but should be made sooner.
(h) Argument by Law Student. The court may permit
a law student to present oral argument under supervision of a member of
this court's bar, with the client's written approval, if the
representation is part of a program of an accredited law school. The
supervising attorney's motion must be filed at least 14 days before the
date on which argument is to be held and must state the reasons why
presentation of argument by a law student is appropriate.
(As amended Dec. 1, 2001.)
RULE 35. En Banc Determination
(a) When Hearing or Rehearing En Banc May
Be Ordered. A majority of the circuit judges who are in regular
active service and who are not disqualified may order that an appeal or
other proceeding be heard or reheard by the court of appeals en banc. An
en banc hearing or rehearing is not favored and ordinarily will not be
(A) the panel decision conflicts with a decision
of the United States Supreme Court or of the court to which the petition
is addressed (with citation to the conflicting case or cases) and
consideration by the full court is therefore necessary to secure and
maintain uniformity of the court's decisions; or
(B) the proceeding involves one or more questions
of exceptional importance, each of which must be concisely stated; for
example, a petition may assert that a proceeding presents a question of
exceptional importance if it involves an issue on which the panel decision
conflicts with the authoritative decisions of other United States Courts
of Appeals that have addressed the issue.
(2) Except by the court's permission, a petition
for an en banc hearing or rehearing must not exceed 15 pages, excluding
material not counted under Rule
(3) For purposes of the page limit in Rule
35(b)(2), if a party files both a petition for panel rehearing and a
petition for rehearing en banc, they are considered a single document even
if they are filed separately, unless separate filing is required by local
(c) Time for Petition for Hearing or
Rehearing En Banc. A petition that an appeal be heard initially
en banc must be filed by the date when the appellee's brief is due. A
petition for a rehearing en banc must be filed within the time prescribed
40 for filing a petition for rehearing.
Every petition for rehearing en banc, and every brief of an amicus curiae supporting or opposing a petition for rehearing en banc, must include a statement providing the information required by Fed. R. App. P. 26.1 and Circuit Rule 26.1 as of the date the petition is filed.
RULE 36. Entry of Judgment; Notice
(b) Notice. On the date when judgment is entered, the clerk must serve on all parties a copy of the opinion-or the judgment, if no opinion was written-and a notice of the date when the judgment was entered.
Whenever a case tried in a district court is remanded by this court for a new trial, it shall be reassigned by the district court for trial before a judge other than the judge who heard the prior trial unless the remand order directs or all parties request that the same judge retry the case. In appeals which are not subject to this rule by its terms, this court may nevertheless direct in its opinion or order that this rule shall apply on remand.
RULE 37. Interest on Judgments
(a) When the Court Affirms. Unless
the law provides otherwise, if a money judgment in a civil case is
affirmed, whatever interest is allowed by law is payable from the date
when the district court's judgment was entered.
(b) When the Court Reverses. If the court modifies or reverses a judgment with a direction that a money judgment be entered in the district court, the mandate must contain instructions about the allowance of interest.
RULE 38. Frivolous Appeals--Damages and Costs
If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.
RULE 39. Costs
(b) Costs For and Against the United
States. Costs for or against the United States, its agency, or
officer will be assessed under Rule 39(a)
only if authorized by law.
(c) Costs of Copies. Each court of
appeals must, by local rule, fix the maximum rate for taxing the cost of
producing necessary copies of a brief or appendix, or copies of records
authorized by Rule 30(f).
The rate must not exceed that generally charged for such work in the area
where the clerk's office is located and should encourage economical
methods of copying.
(3) The clerk must prepare and certify an itemized
statement of costs for insertion in the mandate, but issuance of the
mandate must not be delayed for taxing costs. If the mandate issues before
costs are finally determined, the district clerk must-upon the circuit
clerk's request-add the statement of costs, or any amendment of it, to the
The cost of printing or otherwise producing copies of briefs and appendices shall not exceed the maximum rate per page as established by the clerk of the court of appeals. If a commercial printing process has been used, a copy of the bill must be attached to the itemized and verified bill of costs filed and served by the party.
RULE 40. Petition for Panel Rehearing
(1) Time. Unless the time is shortened or
extended by order or local rule, a petition for panel rehearing may be
filed within 14 days after entry of judgment. But in a civil case, if the
United States or its officer or agency is a party, the time within which
any party may seek rehearing is 45 days after entry of judgment, unless an
order shortens or extends the time.
(2) Contents. The petition must state
with particularity each point of law or fact that the petitioner believes
the court has overlooked or misapprehended and must argue in support of
the petition. Oral argument is not permitted.
(b) Form of Petition; Length. The petition must comply in form with Rule 32. Copies must be served and filed as Rule 31 prescribes. Unless the court permits or a local rule provides otherwise, a petition for panel rehearing must not exceed 15 pages.
(a) Table of Contents. The petition for rehearing
shall include a table of contents with page references and a table of
cases (alphabetically arranged), statutes and other authorities cited,
with reference to the pages of the brief where they are cited.
(c) Time for Filing After Decision in Agency Case.
The date on which this court enters a final order or files a dispositive
opinion is the date of the "entry of judgment" for the purpose of
commencing the period for filing a petition for rehearing in accordance
with Fed. R. App. P. 40, notwithstanding the fact that a formal detailed
judgment is entered at a later date.
(e) Rehearing Sua Sponte before Decision. A
proposed opinion approved by a panel of this court adopting a position
which would overrule a prior decision of this court or create a conflict
between or among circuits shall not be published unless it is first
circulated among the active members of this court and a majority of them
do not vote to rehear en banc the issue of whether the position should be
adopted. In the discretion of the panel, a proposed opinion which would
establish a new rule or procedure may be similarly circulated before it is
issued. When the position is adopted by the panel after compliance with
this procedure, the opinion, when published, shall contain a footnote
worded, depending on the circumstances, in substance as
This opinion has been circulated among all judges of this court in regular active service. (No judge favored, or, A majority did not favor) a rehearing en banc on the question of (e.g., overruling Doe v. Roe.)
RULE 41. Mandate; Contents; Issuance and Effective Date;
(b) When Issued. The court's
mandate must issue 7 calendar days after the time to file a petition for
rehearing expires, or 7 calendar days after entry of an order denying a
timely petition for panel rehearing, rehearing en banc, or motion for stay
of mandate, whichever is later. The court may shorten or extend the
(1) On Petition for Rehearing or Motion.
The timely filing of a petition for panel rehearing, petition for
rehearing en banc, or motion for stay of mandate, stays the mandate until
disposition of the petition or motion, unless the court orders
(A) A party may move to stay the mandate pending
the filing of a petition for a writ of certiorari in the Supreme Court.
The motion must be served on all parties and must show that the certiorari
petition would present a substantial question and that there is good cause
for a stay.
(B) The stay must not exceed 90 days, unless the
period is extended for good cause or unless the party who obtained the
stay files a petition for the writ and so notifies the circuit clerk in
writing within the period of the stay. In that case, the stay continues
until the Supreme Court's final disposition.
The mandate will issue immediately when an appeal is dismissed (1) voluntarily, (2) for failure to pay the docket fee, (3) for failure to file the docketing statement under Circuit Rule 3(c), or (4) for failure by the appellant to file a brief.
RULE 42. Voluntary Dismissal
(a) Dismissal in the District
Court. Before an appeal has been docketed by the circuit clerk,
the district court may dismiss the appeal on the filing of a stipulation
signed by all parties or on the appellant's motion with notice to all
(b) Dismissal in the Court of Appeals. The circuit clerk may dismiss a docketed appeal if the parties file a signed dismissal agreement specifying how costs are to be paid and pay any fees that are due. But no mandate or other process may issue without a court order. An appeal may be dismissed on the appellant's motion on terms agreed to by the parties or fixed by the court.
RULE 43. Substitution of Parties
(1) After Notice of Appeal Is Filed. If a
party dies after a notice of appeal has been filed or while a proceeding
is pending in the court of appeals, the decedent's personal representative
may be substituted as a party on motion filed with the circuit clerk by
the representative or by any party. A party's motion must be served on the
representative in accordance with Rule 25. If
the decedent has no representative, any party may suggest the death on the
record, and the court of appeals may then direct appropriate
(2) Before Notice of Appeal Is Filed-Potential
Appellant. If a party entitled to appeal dies before filing a notice
of appeal, the decedent's personal representative-or, if there is no
personal representative, the decedent's attorney of record-may file a
notice of appeal within the time prescribed by these rules. After the
notice of appeal is filed, substitution must be in accordance with Rule
(3) Before Notice of Appeal Is Filed-Potential
Appellee. If a party against whom an appeal may be taken dies after
entry of a judgment or order in the district court, but before a notice of
appeal is filed, an appellant may proceed as if the death had not
occurred. After the notice of appeal is filed, substitution must be in
accordance with Rule 43(a)(1).
(1) Identification of Party. A public
officer who is a party to an appeal or other proceeding in an official
capacity may be described as a party by the public officer's official
title rather than by name. But the court may require the public officer's
name to be added.
(2) Automatic Substitution of Officeholder. When a public officer who is a party to an appeal or other proceeding in an official capacity dies, resigns, or otherwise ceases to hold office, the action does not abate. The public officer's successor is automatically substituted as a party. Proceedings following the substitution are to be in the name of the substituted party, but any misnomer that does not affect the substantial rights of the parties may be disregarded. An order of substitution may be entered at any time, but failure to enter an order does not affect the substitution.
Whenever any of the parties to the litigation appears in an official capacity and there is a change in the occupant of the office after the filing of the Rule 3(c)(1) docketing statement, the official-capacity litigant (other than a member of the Cabinet) must notify the court of the identity of the new occupant of the office. Similarly, in collateral attacks on confinement, the parties must notify the court of any change in custodian or custodial status.
RULE 44. Case Involving a Constitutional Question Where United
States is Not a Party
(a) If a party questions the constitutionality of an Act of Congress in a proceeding in which the United States or its agency, officer, or employee is not a party in an official capacity, the questioning party must give written notice to the circuit clerk immediately upon the filing of the record or as soon as the question is raised in the court of appeals. The clerk must then certify that fact to the Attorney General.
(b) If a party questions the constitutionality of a statute of a State in a proceeding in which that State or its agency, officer, or employee is not a party in an official capacity, the questioning party must give written notice to the circuit clerk immediately upon the filing of the record or as soon as the question is raised in the court of appeals. The clerk must then certify that fact to the attorney general of the State.
RULE 45. Clerk's Duties
(1) Qualifications. The circuit clerk
must take the oath and post any bond required by law. Neither the clerk
nor any deputy clerk may practice as an attorney or counselor in any court
while in office.
(2) When Court Is Open. The court of
appeals is always open for filing any paper, issuing and returning
process, making a motion, and entering an order. The clerk's office with
the clerk or a deputy in attendance must be open during business hours on
all days except Saturdays, Sundays, and legal holidays. A court may
provide by local rule or by order that the clerk's office be open for
specified hours on Saturdays or on legal holidays other than New Year's
Day, Martin Luther King, Jr.'s Birthday, Washington’s Birthday, Memorial
Day, Independence Day, Labor Day, Columbus Day, Veterans' Day,
Thanksgiving Day, and Christmas Day.
(1) The Docket. The circuit clerk must
maintain a docket and an index of all docketed cases in the manner
prescribed by the Director of the Administrative Office of the United
States Courts. The clerk must record all papers filed with the clerk and
all process, orders, and judgments.
(2) Calendar. Under the court's
direction, the clerk must prepare a calendar of cases awaiting argument.
In placing cases on the calendar for argument, the clerk must give
preference to appeals in criminal cases and to other proceedings and
appeals entitled to preference by law.
(3) Other Records. The clerk must keep
other books and records required by the Director of the Administrative
Office of the United States Courts, with the approval of the Judicial
Conference of the United States, or by the court.
(c) Notice of an Order or
Judgment. Upon the entry of an order or judgment, the circuit
clerk must immediately serve a notice of entry on each party, with a copy
of any opinion, and must note the date of service on the docket. Service
on a party represented by counsel must be made on counsel.
(d) Custody of Records and Papers. The circuit clerk has custody of the court's records and papers. Unless the court orders or instructs otherwise, the clerk must not permit an original record or paper to be taken from the clerk's office. Upon disposition of the case, original papers constituting the record on appeal or review must be returned to the court or agency from which they were received. The clerk must preserve a copy of any brief, appendix, or other paper that has been filed.
RULE 45. Fees
(1) For docketing a case on appeal or review, or docketing
any other proceeding, $100. A separate fee shall be paid by each party
filing a notice of appeal in the district court, but parties filing a
joint notice of appeal in the district court are required to pay only one
fee. A docketing fee shall not be charged for the docketing of an
application for the allowance of an interlocutory appeal under 28 U.S.C. §
1292(b), unless the appeal is allowed.
(i) A copy of
the opinion furnished to each party of record in the case, and
(ii) Copies of
opinions furnished those appearing upon a "Public Interest List"
established by order of the court in the interest of providing proper and
adequate media of dissemination to the general public.
(b) Fees To Be Paid in Advance. The clerk shall not be required to docket any proceeding or perform any other service until all fees due to the clerk have been paid, except at the direction of a judge of this court or at the instance of a party who is entitled to proceed without prepayment of fees.
RULE 46. Attorneys
(1) Eligibility. An attorney is eligible
for admission to the bar of a court of appeals if that attorney is of good
moral and professional character and is admitted to practice before the
Supreme Court of the United States, the highest court of a state, another
United States court of appeals, or a United States district court
(including the district courts for Guam, the Northern Mariana Islands, and
the Virgin Islands).
(2) Application. An applicant must file
an application for admission, on a form approved by the court that
contains the applicant's personal statement showing eligibility for
membership. The applicant must subscribe to the following oath or
Admission Procedures. On written or oral motion of a member of
the court's bar, the court will act on the application. An applicant may
be admitted by oral motion in open court. But, unless the court orders
otherwise, an applicant need not appear before the court to be admitted.
Upon admission, an applicant must pay the clerk the fee prescribed by
local rule or court order.
(c) Discipline. A court of appeals may discipline an attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with any court rule. First, however, the court must afford the attorney reasonable notice, an opportunity to show cause to the contrary, and, if requested, a hearing.
(a) Admission. The lead attorney for all parties
represented by counsel in this court must be admitted to practice in this
court. Counsel have thirty days from docketing of the matter in this court
to comply. In addition, any attorney who orally argues an appeal must be
admitted to practice in this court. An applicant for admission to the bar
of this court shall file with the clerk an application on the form
furnished by the clerk. The oath or affirmation thereon may be taken
before any officer authorized by federal or state law to administer an
oath. When an appropriate application and motion have been filed and fee
tendered, if a fee be required, the clerk shall present the papers to an
active or senior circuit judge for action in chambers unless the applicant
requests admission in open court. If admission is in open court, the
applicant must appear in person and the sponsor shall make an oral motion
in support of the written application. If admission is in chambers, the
applicant and sponsor need not appear.
(b) Admission Fees. The prescribed fee for
admission is $15.00, except that attorneys who have been appointed by the
district court or this court to represent a party on appeal in forma
pauperis, law clerks to judges of this court or the district courts, and
attorneys employed by the United States or any agency thereof need not pay
the fee. The clerk shall receive the fee as trustee of the lawyers fund
and shall deposit it in a bank designated by the court. Payments from the
fund shall be made for the purchase of law books, for library
conveniences, or other court purposes, by checks duly signed by the clerk
as trustee and countersigned by two judges of this court.
(c) Government Attorneys. Attorneys for any
federal, state or local government office or agency may appear before this
court in connection with their official duties without being formally
admitted to practice before the court.
(d) Striking a Name from the Roll of Attorneys. Whenever it is shown to this court that any members of its bar have been disbarred or suspended from practice, or their names have been stricken from the roll of attorneys, in any state, or the District of Columbia, they will be forthwith suspended from practice before this court. They will thereupon be afforded the opportunity to show cause, within 30 days, why their names should not be stricken from the roll of attorneys admitted to practice before this court. Upon the attorney's response to the rule to show cause, or upon the expiration of the 30 days if no response is made, this court will enter an appropriate order.
RULE 47. Local Rules by Courts of Appeals
(1) Each court of appeals acting by a majority of
its judges in regular active service may, after giving appropriate public
notice and opportunity for comment, make and amend rules governing its
practice. A generally applicable direction to parties or lawyers regarding
practice before a court must be in a local rule rather than an internal
operating procedure or standing order. A local rule must be consistent
with-but not duplicative of-Acts of Congress and rules adopted under 28
U.S.C. § 2072 and must conform to any uniform numbering system prescribed
by the Judicial Conference of the United States. Each circuit clerk must
send the Administrative Office of the United States Courts a copy of each
local rule and internal operating procedure when it is promulgated or
(b) Procedure When There Is No Controlling Law. A court of appeals may regulate practice in a particular case in any manner consistent with federal law, these rules, and local rules of the circuit. No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local circuit rules unless the alleged violator has been furnished in the particular case with actual notice of the requirement.
The court shall
appoint an Advisory Committee to provide a forum for continuing study of
the procedures of the court and to serve as a conduit between members of
the bar who have suggestions for change and the court, which retains
ultimate responsibility for effectuating change. The committee shall
consist of one district judge, one law school professor, and two attorneys
from each state of the circuit, Illinois, Indiana, and Wisconsin, and, as
ex officio members, the President and First Vice-President of the
Seventh Circuit Bar Association, the Circuit Executive, the Senior Staff
Attorney, and the Clerk of this court. The district judges, attorneys, and
law school professors on the committee shall serve three-year terms with
the appointments being staggered.
The court shall appoint a chairman from the membership of the committee to serve for a two-year term. The advisory committee shall promulgate its own rules, and call its own meetings. The advisory committee shall arrange for notice of proposed rule changes and shall consider comments received. From time to time, as it deems necessary or advisable, it shall make recommendations to the circuit council or to the court. Suggestions for consideration by the advisory committee may be filed with the clerk of this court.
RULE 48. Masters
(a) Appointment; Powers. A court
of appeals may appoint a special master to hold hearings, if necessary,
and to recommend factual findings and disposition in matters ancillary to
proceedings in the court. Unless the order referring a matter to a master
specifies or limits the master's powers, those powers include, but are not
limited to, the following:
Whenever a district court resolves any claim or counterclaim on the merits, terminates the litigation in its court (as by remanding or transferring the case, or denying leave to proceed in forma pauperis with or without prejudice), or enters an interlocutory order that may be appealed to the court of appeals, the judge shall give his or her reasons, either orally on the record or by written statement. The court urges the parties to bring to this court's attention as soon as possible any failure to comply with this rule.
in a criminal case, whether retained or appointed by the district court,
is responsible for the continued representation of the client desiring to
appeal unless specifically relieved by the court of appeals upon a motion
to withdraw. Such relief shall be freely granted. If trial counsel was
appointed by the district court and a notice of appeal has been filed,
trial counsel will be appointed as appellate counsel without further proof
of the client's eligibility for appointed counsel. If the client was not
found to be eligible for Criminal Justice Act representation in the
district court but appears to qualify on appeal, trial counsel must
immediately assist the client in filing in the district court a motion to
proceed as one who is financially unable to obtain an adequate defense in
a criminal case. This motion must be accompanied by an affidavit
containing substantially the same information as contained in Form 4 of the
Appendix to the Federal Rules of Appellate Procedure. If the motion is
granted, the court of appeals will appoint trial counsel as appellate
counsel unless the district court informs the court of appeals that new
counsel should be appointed. If the motion is denied by the district
court, trial counsel may file a similar motion in the court of appeals.
Counsel may have additional duties under Part V of the Circuit's Plan
implementing the Criminal Justice Act of 1964.
(b) Withdrawal of Court-Appointed Counsel in a Criminal
Case. When representing a convicted person in a proceeding to review
the conviction, court-appointed counsel who files a brief characterizing
an appeal as frivolous and moves to withdraw (see Anders v.
California, 386 U.S. 738 (1967); United States v. Edwards,
777 F.2d 364 (7th Cir. 1985)) shall file with the brief a proof of service
which also indicates the current address of the client. Except as provided
in paragraph (g) of this
rule, the clerk shall then send to the client by certified mail, return
receipt requested, a copy of the brief and motion, with a notice in
substantially the form set out in Appendix I to these rules. The same
procedures shall be followed by court-appointed counsel and the clerk when
a motion to dismiss the appeal has been filed by the appellee and the
appellant's counsel believes that any argument that could be made in
opposition to the motion would be frivolous.
Any motion to
withdraw for good cause (other than the frivolousness of an appeal) must
be filed in the court of appeals within 10 days of the notice of appeal.
The court of appeals will make all appellate appointments.
(d) Notice of Motion to Dismiss Pro Se Appeal.
When a convicted person appears pro se in a proceeding to review
the conviction, and the government moves to dismiss the appeal for a
reason other than failure to file a brief on time, the clerk shall, unless
paragraph (e) of this rule applies, send to the convicted person by
certified mail, return receipt requested, a copy of the motion with a
notice in substantially the form set out in Appendix
II to these rules.
(f) Voluntary Waiver of Appeal. Notwithstanding
the preceding paragraphs, if the convicted person consents to dismissal of
the appeal after consultation with appellate counsel, the appeal may be
dismissed upon the filing of a motion accompanied by an executed
acknowledgment and consent in substantially the form set out in Appendix
III to these rules. See Rule 42(b),
Fed. R. App. P.
(g) Incompetent Appellant. If, in a case in which paragraph (a) or (b) of this rule would otherwise be applicable, the convicted person has been found incompetent or there is reason to believe that person is incompetent, the motion shall so state and the matter shall be referred directly to the court by the clerk for such action as law and justice may require.
(a) When the rules of the highest court of a state provide
for certification to that court by a federal court of questions arising
under the laws of that state which will control the outcome of a case
pending in the federal court, this court, sua sponte or on motion of a
party, may certify such a question to the state court in accordance with
the rules of that court, and may stay the case in this court to await the
state court's decision of the question certified. The certification will
be made after the briefs are filed in this court. A motion for
certification shall be included in the moving party's brief.
(b) If the state court decides the certified issue, then within 21 days after the issuance of its opinion the parties must file in this court statements of their positions about what action this court should take to complete the resolution of the appeal.
the opinion as a slip opinion;
Distributing the printed slip opinion to all federal judges within the
circuit, legal publishing companies, libraries and other regular
subscribers, interested United States attorneys, departments and agencies,
and the news media; and
citation as precedent.
(i) Shall be
typewritten and reproduced by copying machine;
(ii) Shall be
distributed only to the circuit judges, counsel for the parties in the
case, the lower court judge or agency in the case, and the news media, and
shall be available to the public on the same basis as any other pleading
in the case;
(iii) Shall be
available for listing periodically in the Federal Reporter showing only
title, docket number, date, district or agency appealed from with citation
of prior opinion (if reported), and the judgment or operative words of the
order, such as "affirmed," "enforced," "reversed," "reversed and
remanded," and so forth;
(iv) Except to
support a claim of res judicata, collateral estoppel or law of the case,
shall not be cited or used as precedent
opinion will be filed when the decision
a new, or changes an existing rule of law;
an issue of continuing public interest;
criticizes or questions existing law;
constitutes a significant and non-duplicative contribution to legal
(v) reverses a
judgment or denies enforcement of an order when the lower court or agency
has published an opinion supporting the judgment or order; or
pursuant to an order of remand from the Supreme Court and is not rendered
merely in ministerial obedience to specific directions of that
decision does not satisfy the criteria for publication, as stated above,
it will be filed as an unpublished order. The order will ordinarily
contain reasons for the judgment, but may not do so if the court has
announced its decision and reasons from the bench. A statement of facts
may be omitted from the order or may not be complete or
(2) The requirement of a majority represents the policy of
this circuit. Notwithstanding the right of a single federal judge to make
an opinion available for publication, it is expected that a single judge
will ordinarily respect and abide by the opinion of the majority in
determining whether to publish.
(3) Any person may request by motion that a decision by
unpublished order be issued as a published opinion. The request should
state the reasons why the publication would be consistent with the
guidelines for method of disposition set forth in this rule.
CIRCUIT RULE 54. Remands from Supreme
When the Supreme Court remands a case to this court for further proceedings, counsel for the parties shall, within 21 days after the issuance of a certified copy of the Supreme Court's judgment pursuant to its Rule 45.3, file statements of their positions as to the action which ought to be taken by this court on remand.
The taking of photographs in, or radio or television broadcasting from the courtroom or any other place on the 27th floor or judges' chambers or corridors adjacent thereto on the 26th floor of the Federal Courthouse located at 219 South Dearborn Street, Chicago, Illinois, without permission of the court, is prohibited.
(a) Opportunity to State Objections and their
Rationale. Whenever a rule of court requires concrete proposals or
objections and reasons in order to preserve a claim for appeal (e.g., Fed.
R. Civ. P. 51, Fed. R. Crim. P. 30, Fed R. Evid. 103(a)), the judge must
ensure that parties have an adequate opportunity to put their proposals,
objections, and reasons on the record. When the judge entertains proposals
or objections off the record (for example, a sidebar conference or a jury
instruction conference in chambers), as soon as practicable the judge must
offer an opportunity to summarize on the record the proposal or objection
discussed, and the reasons for the proposal or objection. The judge then
must state the ruling made.
(b) Waiver. Parties offered an opportunity to make a record under part (a) of this rule must use it in order to preserve a position for appeal. No proposal, objection, or reason may be urged as a ground of appeal unless placed on the record. A lawyer who believes that he or she has not been given an adequate opportunity to make a record under this rule must so state on the record. This rule does not alter any obligation imposed by any other rule to make concrete proposals or to state objections and reasons in order to preserve a claim for appeal.
A party who during the pendency of an appeal has filed a motion under Fed. R. Civ. P. 60(a) or 60(b), Fed. R. Crim. P. 35(b), or any other rule that permits the modification of a final judgment, should request the district court to indicate whether it is inclined to grant the motion. If the district court so indicates, this court will remand the case for the purpose of modifying the judgment. Any party dissatisfied with the judgment as modified must file a fresh notice of appeal.
(a) Purpose of the Conference. Each year the Chief
Judge shall call a circuit judicial conference in accordance with 28
U.S.C. § 333 for the purpose of considering the business of courts and
advising means of improving the administration of justice within the
circuit. The Chief Judge shall designate the location of the conference
and either preside at it or designate officers of the Seventh Circuit Bar
Association, or others, to preside.
(b) Members of the Conference. Each active
Circuit, District, Bankruptcy, and Magistrate Judge of the Circuit shall
be a member of the conference. The following shall be members of the
conference and are encouraged to attend: (1) Senior Circuit, District and
Bankruptcy Judges; (2) Circuit Executive, Deputy Circuit Executive, Senior
Staff Attorney for the Seventh Circuit, staff attorneys and law clerks to
all Circuit, District, Bankruptcy, and Magistrate Judges; (3) Clerks of
the Court of Appeals, District Courts and Bankruptcy Courts in the
Circuit; (4) United States Attorneys in the Circuit and their legal
staffs; (5) Federal Defenders in the Circuit and their legal staffs; (6)
Members of the Seventh Circuit Bar Association; (7) Special guests invited
by the Chief Judge or by the President of the Seventh Circuit Bar
Association with the approval of the Chief Judge; (8) United States
Trustees in the Circuit and their legal staffs.
(c) Planning of the Conference. The Judicial
Conference shall be planned by a committee composed of eight persons, four
judges appointed annually by the Chief Judge from the active judges in the
Circuit and four members of the Seventh Circuit Bar Association appointed
annually by the President of the Bar Association. The Chief Judge, after
consultation with the President of the Bar Association, shall designate
one of the members to chair the committee.
(d) Executive Session. All or part of one day of
the conference shall be designated by the Chief Judge as an executive
session to be attended only by active Circuit, District and Bankruptcy
Judges, Magistrate Judges and other court personnel.
FOR THE SEVENTH CIRCUIT
These are procedures for the court's internal operations. The court may dispense with their use in particular cases. Litigants acquire no rights under these procedures.
(b) Selection of Judges to Determine Motions. The responsibility to handle motions shall be rotated among the judges. If a single judge to whom a motion is presented orders a response, the motion and response will ordinarily be presented to the same judge for ruling.
The following actions by the court shall be handled similarly to the stated procedures for routine or nonroutine motions:
(a) Except to the extent required by law, the court does not distinguish between judges in regular active service and senior judges with respect to title, precedence, and eligibility to participate in the court's decisions.
(b) Judges hold precedence in this sequence for the purpose of presiding at a session of the court: (1) Circuit Justice; (2) the Chief Judge of the circuit; (3) the judge of this circuit in regular active service with the greatest seniority according to the terms of 28 U.S.C. § 45(b). Every panel includes at least one circuit judge in regular active service, so no further provision for the selection of a presiding judge is necessary.
(d) Clerk's office personnel will ensure that all orders and opinions comply with this rule. The Clerk's office also will ensure that the description of the panel is consistent and conforms to the appropriate model: "X, Chief Judge, and Y and Z, Circuit Judges"; "X, Y, and Z, Circuit Judges"; "X and Y, Circuit Judges, and Z, District Judge."
(b) The Clerk's office will provide each writing judge with page proofs of the opinion. Each judge will review the proofs promptly. If within three business days the Clerk's office has not received a response, the Clerk will call to inquire about the status of the opinion.
(c) The Clerk's office will release the opinion immediately after receipt of the printed copies, unless the writing judge has asked the clerk to delay release to permit the judge to check the corrected proofs against the printed opinion.
(a) Request for Answer and Subsequent Request for Vote. If a petition for rehearing en banc is filed, a request for an answer (which may be made by any Seventh Circuit judge in regular active service or by any member of the panel that rendered the decision sought to be reheard) must be made within 10 days after the distribution of the en banc petition. If an answer is requested, the clerk shall notify the prevailing party that an answer be filed within 14 days from the date of the court's request. Within 10 days of the distribution of the answer, any judge entitled to request an answer, may request a vote on the petition for rehearing en banc.
(b) Request for Vote When No Answer Requested. Ordinarily an answer will be requested prior to a request for a vote. A request for a vote on the petition (which may be made by any judge entitled to request an answer) must be made within 10 days from the distribution of the petition. If a vote is so requested, the clerk shall notify the prevailing party that an answer to the petition is due within 14 days.
(c) Notification to File Answer. The judge who requests an answer pursuant to paragraph (a) or who requests a vote pursuant to paragraph (b) shall be responsible for having the clerk notify the prevailing party to file an answer to the petition.
(e) Preparation of Order. After the vote is completed, the authoring judge, or the presiding judge of the panel if the author is a visiting judge, will prepare and send to the clerk an appropriate order. Minority positions will be noted in the denial of a petition for rehearing en banc or the denial of a petition for rehearing unless the judges in the minority request otherwise. Minority positions will not be noted in orders granting a rehearing or rehearing en banc unless so requested by the minority judge. An order granting rehearing en banc should specifically state that the original panel's decision is thereby vacated.
(h) Distribution of Petitions. Petitions for rehearing that do not suggest rehearing en banc are distributed only to the panel. Petitions for rehearing en banc are distributed to all judges entitled to vote on the petition.
(a) Remands from the Supreme Court. A case remanded by the Supreme Court to this court for further proceedings will ordinarily be reassigned to the same panel that heard the case previously. If a member of that panel was a visiting judge and it is inconvenient for the visitor to participate further, that judge may be replaced by designation or by lot, as the chief judge directs.
(b) Successive Appeals. Briefs in a subsequent appeal in a case in which the court has heard an earlier appeal will be sent to the panel that heard the prior appeal. That panel will decide the successive appeal on the merits unless there is no overlap in the issues presented. When the subsequent appeal presents different issues but involves the same essential facts as the earlier appeal, the panel will decide the subsequent appeal unless it concludes that considerations of judicial economy do not support retaining the case. If the panel elects not to decide the new appeal, it will return the case for reassignment at random. If the original panel retains the successive appeal, it will notify the circuit executive whether oral argument is necessary. If oral argument is scheduled, any visiting judge will be replaced by a member of this court designated by lot. Cases that have been heard by the court en banc are outside the scope of this procedure, and successive appeals will be assigned at random unless the en banc court directs otherwise.
(c) Successive Collateral Attacks. An application for leave to file a second or successive petition under 28 U.S.C. §2254 or §2255 (see also 28 U.S.C. §2244(b) and Circuit Rule 22.2) will be assigned to the panel that heard the prior appeal. If there was no appeal in the prior case, the application will be assigned to the current motions panel.
(d) Certain Cases before Motion Panels. When a motion panel decides that a motion or petition should be set for oral argument or the appeal expedited, it may recommend to the chief judge that the matter be assigned for argument and decision to the same panel. In the absence of such a recommendation, the matter will ordinarily be assigned in the same manner as other appeals.
(a) Dismissal for Failure to Prosecute. Statutes and rules of court call for the parties to take specified steps at particular times, and the court treats failure to take some of these steps as failure to prosecute, leading to dismissal. Failure to pay the docket fee, failure to file the docketing statement required by Circuit Rule 3(c), and failure by the appellant or petitioner to file a brief, amount to abandonment of the appeal.
(1) Seven days after the docket fee, docketing statement, or brief is due, the Clerk will send a notice, by certified mail, reminding the party of the obligation. The notice will inform the party about the consequence of continued delay in satisfying the obligation.
(2) If the party or counsel does not respond within 21 days of the date of the notice, the Clerk will enter an order dismissing the appeal for want of prosecution. In a criminal appeal with appointed counsel, however, the Clerk will not dismiss the appeal but will instead discharge the lawyer and appoint new counsel. When counsel is discharged under this procedure, the Clerk also will enter an order requiring the lawyer to show cause why abandonment of the client should not lead to disbarment.
(3) If the party responds within 21 days but does not comply with the obligation, or if the Clerk has not received a receipt showing delivery of the notice, a staff attorney will present the papers to the motions panel for decision.
(b) Removal from the List of Attorneys Authorized to Practice. States within the jurisdiction of this circuit send the court lists of attorneys who have been suspended from practice, disbarred, or resigned to prevent consideration of a pending ethical complaint. As a rule, these attorneys have had ample opportunity to contest that adverse action and do not oppose parallel action by other jurisdictions, leading to routine handling in this court.
(1) Promptly after learning that a member of this court's bar has been suspended for a year or more, has been disbarred, or has resigned from the bar of a jurisdiction in which the attorney is authorized to practice, the Clerk will send a notice, by certified mail, directing the lawyer to explain within 30 days why this court should not strike him from the roll of attorneys authorized to practice.
(2) If the lawyer does not respond within 30 days, or if the lawyer consents to the proposed disposition, the Clerk will enter an order removing the lawyer from the roll of attorneys authorized to practice in this court.
(3) If the lawyer responds within 30 days but does not consent to the proposed disposition, or if within that time the Clerk has not received a receipt showing delivery of the notice, a staff attorney will present the papers to the motions panel for decision.
(c) Review of the Clerk's Action. A petition for rehearing contesting the entry of a routine order under this operating procedure will be treated as a motion and referred to the motions panel. An order by the motions panel permitting the appeal to continue has the effect of reinstating the appeal, and the Clerk will reset the briefing schedule accordingly.
When multiple parties to the same case have taken appeals, the court's senior staff attorney will review the docketing statements filed under Circuit Rule 3 and issue a scheduling order governing the filing of briefs.
When multiple appellants have the same or a closely related interest in the appeal, the senior staff attorney ordinarily will provide for the filing of a joint opening brief, with provision in appropriate cases for separate individual briefs to present points that do not concern all appellants. When the parties have filed cross appeals, the scheduling order usually will call on the party principally aggrieved by the judgment to file the opening brief. For example, when the judgment holds the defendant liable and the plaintiff's cross appeal concerns the amount of damages or an award of attorney's fees, the defendant normally will file the opening brief.
Expeditious preparation and release of opinions and orders is important not only to litigants ("Justice delayed is justice denied") but also to the operation of the court. Delay in the preparation of or response to opinions means that other judges must re-read the briefs and re-study the record in order to act conscientiously on their colleagues' drafts. Dispatch in circulating drafts and responding to a colleague's circulations therefore reduces duplicative work and improves the quality of justice. With these considerations in mind, the court establishes the following presumptive times for action, anticipating that in most cases judges will take less time but understanding that circumstances may make it imprudent to adhere to these norms mechanically. Every judge should, and may, take the time required for adequate study and reflection.
(a) Requirement of Judicial Approval. Except to the extent portions of the record are required to be sealed by statute (e.g., 18 U.S.C. §3509(d)) or a rule of procedure (e.g., Fed. R. Crim. P. 6(e), Circuit Rule 26.1(b)), every document filed in or by this court (whether or not the document was sealed in the district court) is in the public record unless a judge of this court orders it to be sealed.
FOR THE SEV ENTH CIRCUIT TO
Pursuant to the approval of the Judicial Council of the Seventh Circuit, the United States Court of Appeals for the Seventh Circuit adopts the following Plan for furnishing representation for persons financially unable to obtain adequate representation in the cases and situations defined in the Criminal Justice Act of 1964, as amended, 18 U.S.C. § 3006A ("Act"), and 21 U.S.C. § 848(q), and the Guidelines for the Administration of the Criminal Justice Act, Volume VII, Guide to Judiciary Policies and Procedures ("CJA Guidelines"). This Plan supplements the plans heretofore adopted by the several United States District Courts within the Seventh Circuit and approved in final form by the Judicial Council of the Seventh Circuit.
Representation shall include
counsel and investigative, expert, and other services necessary for an
STATEMENT OF POLICY
The Judicial Council recognizes that the successful operation of this plan will require the active and continual cooperation of members of the bar, appropriate bar associations and legal aid agencies. In particular, it is expected that the advice and assistance of the Seventh Circuit Bar Association will contribute greatly to the successful working of this Plan.
The judges, circuit executive, clerk, all federal public defender organizations and community defender organizations, and private attorneys appointed under the CJA should comply with the CJA Guidelines approved by the Judicial Conference of the United States and/or its Committee on Defender Services and with the Plan.
The payment of compensation to counsel under the Act, in most cases, probably will be something less than compensatory. Service of counsel by appointment under the Act will continue to require a substantial measure of dedication and public service. The responsibility of members of the bar to accept appointments and to serve in these cases is the same as it traditionally has been in the past and is in no way lessened by the passage of the Act. We have complete confidence in the professional integrity of the bar to fulfill this responsibility.
In the administration of this Plan, the Court will be particularly careful to safeguard against the opportunity for any charges of fiscal laxity, favoritism or other abuse which may cast a shadow on the general judicial system. The public funds involved will be expended with characteristic judicial responsibility.
It is deemed advisable at all times to coordinate efficiently the operation of this Plan with the several state courts to the end that there be a proper cooperation between the federal and state judicial systems.
The Court will welcome any proper and approved plan of cooperation whereby the services of advanced law school students may be made available to provide legal research assistance to appointed counsel, thereby to furnish such assistance to appointed counsel who may find it helpful and to broaden the interest and capabilities of law school students in the field of criminal law.
Finally, and most important, the Plan shall be administered so that those accused of crime will not, because they are financially unable to pay for adequate representation, be deprived of any element of representation necessary to enable them to have a fair opportunity to be heard on appeal in this Court.
PREPARATION OF PANEL OF ATTORNEYS
1. The Clerk of this Court, under the direction and supervision and with approval of the Court, shall forthwith prepare and maintain a panel of practicing attorneys, or attorneys from a bar association, legal aid agency, or defender organization furnishing representation pursuant to the Plan, in areas of the principal places of holding district court within the Seventh Circuit, who are deemed competent to provide adequate representation on appeal for persons qualifying under the Act. The Clerk of this Court shall reexamine the panel of attorneys annually to assure that it is kept current at all times.
2. Attorneys for the panel shall be selected without regard to race, color, creed, or membership in any organized bar association.
3. The Clerk shall solicit the assistance of the Seventh Circuit Bar Association, law schools, and any other appropriate bar association, in the preparation and maintenance of the panel of attorneys.
4. Additions to and removals from the panel of attorneys may be made at any time by the Court or any active member thereof.
5. The clerk of court shall provide each appointed attorney a copy of this Plan upon the attorney's first appointment under the CJA or designation as a member of the panel and shall also make available to them a current copy of the Guidelines.
DETERMINATION OF NEED FOR APPOINTMENT OF COUNSEL
1. In all cases where the defendant was found by the district court to be financially unable to obtain adequate representation, the Court may accept this finding and appoint an attorney without further proof. But see Fed. R. App. P. 24(a).
2. At any time before or after the appointment of counsel, the Court may examine or reexamine the financial status of the defendant. If the Court finds upon such inquiry that the defendant is financially able to employ counsel or make partial payment for his representation, then the Court may make an order appropriate under the circumstances denying or terminating such appointment pursuant to subsection (c) of the Act, or requiring such partial payment to be made pursuant to subsection (f) of the Act, as the interests of justice may dictate.
3. In determining the need for appointment of counsel under the Act, the Courts shall not be governed by a requirement of indigence on the part of the defendant, but rather by his financial inability to employ counsel, in harmony with Congressional intent in formulating this program of assistance to those found to be in need within the spirit and purpose of the Act.
APPOINTMENT OF COUNSEL
1. Counsel furnishing representation under the Plan shall be selected from a panel of attorneys designated or approved by the Court, or from a bar association, legal aid agency, or defender organization furnishing representation pursuant to the Plan. When the Court determines that the appointment of an attorney who is not a member of the panel is in the interest of justice, judicial economy, or continuity of representation, or there is some other exceptional circumstance warranting his or her appointment, the attorney may be admitted to the panel and appointed to represent the individual. Agreeable with the directives of the Judicial Conference of the United States, at least 25% of all such appointments shall be assigned to members of the private bar. Such order of appointment of counsel may be entered by the current motion judge or by any active member of the Court.
2. In all cases on appeal where the defendant was represented in the district court by court appointed counsel, such counsel shall continue to represent the defendant on appeal, unless and until relieved by order of this Court. The Court may, in appropriate cases, designate such counsel to continue on appeal.
3. At the time such appeals are docketed in this Court, the Clerk shall notify defendant's court appointed trial counsel that he shall continue such representation of defendant in this Court unless and until relieved by order of this Court, and shall request such trial counsel to advise the Court whether he desires to continue such representation throughout the appeal.
4. In appeals under the Act involving more than one defendant, if the Court finds the need, because of conflicting interests of certain defendants or where circumstances otherwise warrant, separate counsel may be appointed for any one or more of the defendants as may be required for their adequate representation.
5. The Court may, in its discretion, at any stage of the proceedings on appeal, substitute one appointed attorney for another.
6. If, at any stage of the proceedings on appeal, the Court finds the defendant is financially unable to pay counsel whom he has retained, the Court may appoint counsel as provided in subsection (b) of the Act and authorize payment as provided in subsection (d) of the Act and the CJA Guidelines, pursuant to subsection (c) of the Act.
7. More than one attorney may be appointed in any case determined by the Court to be extremely difficult. In a capital case, at least two attorneys should be appointed. Except as provided by section 848(q)(7) of title 21, U.S.C., at least one attorney appointed in a capital case shall meet the experience qualifications required by section 848(q)(6) of title 21, U.S.C. Pursuant to section 848(q)(7), the presiding judicial officer, for good cause, may appoint an attorney who may not qualify under section 848(q)(6), but who has the background, knowledge, and experience necessary to represent the defendant properly in a capital case, giving due consideration to the seriousness of the possible penalty and to the unique and complex nature of the litigation.
8. The selection of counsel to represent any person under the Act shall remain the sole and exclusive responsibility of the Court.
DUTIES OF APPOINTED COUNSEL
1. The services to be rendered a defendant by counsel appointed under the Act shall be reasonably commensurate with those rendered if counsel were privately employed, having regard for the circumstances of each case and as the interests of justice may require.
2. If, at any stage of the proceedings on appeal, appointed counsel obtains information that a client is financially able to make payment, in whole or in part, for legal or other services in connection with his or her representation, and the source of the attorney's information is not protected as a privileged communication, counsel shall advise the Court.
3. After an adverse decision on appeal by this Court, appointed counsel shall advise the defendant in writing of his right to seek review of such decision by the Supreme Court of the United States. If, after consultation (by correspondence, or otherwise), the represented person requests it and there are reasonable grounds for counsel properly to do so, the appointed attorney must prepare and file a petition for writ of certiorari and other necessary and appropriate documents and must continue to represent the defendant until relieved by the Supreme Court. Counsel who conclude that reasonable grounds for filing a petition for writ of certiorari do not exist must promptly inform the defendant, who may by motion request this Court to direct counsel to seek certiorari.
4. Attorneys appointed pursuant to any provisions of the Act shall conform to the highest standards of professional conduct, including but not limited to the provisions of the American Bar Association's Model Rules of Professional Conduct.
5. Appointed appellate attorneys have a duty to continue to represent their clients after remand to the district court. An attorney appointed for the appeal who is unable to continue at the trial level should move in the district court for withdrawal and appointment of trial counsel.
6. Attorneys appointed in a federal death penalty case, unless replaced by similarly qualified counsel upon the attorney's own motion or upon motion of the defendant, shall represent the defendant throughout every stage of the available judicial proceedings, including all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in proceedings for executive or other clemency as may be available to the defendant.
PAYMENT OF CLAIMS FOR COMPENSATION AND EXPENSES
1. An attorney, bar association, legal aid agency, or community defender organization appointed by the Court pursuant to the Plan shall be compensated for their services and reimbursed for their expenses reasonably incurred within the limitations and subject to the conditions of subsection (d) of the Act.
2. The hourly rates of compensation fixed by the Act are designated and intended to be maximum rates only and shall be treated as such.
3. No appointed representative under the Plan shall accept a payment from or on behalf of the person represented in this Court without prior authorization by a United States circuit judge on the form provided for such purpose. All such authorized payments shall be received subject to the directions contained in such order and pursuant to the provisions of subsection (f) of the Act.
4. Each appointed representative under the Plan shall be entitled to reimbursement for expenses reasonably incurred for travel and out-of-pocket expenditures. Travel by privately owned automobile should be claimed at the rate per mile set forth in the Travel and Transportation regulations, Volume I, Guide to Judiciary Policies and Procedures, plus parking fees and tolls. Transportation other than by privately owned automobile should be claimed on an actual cost basis. Per diem in lieu of subsistence is not allowable. Meals and lodging expenses, which are reasonably incurred based upon the prevailing limitations placed upon travel and subsistence expenses of federal judiciary employees in accordance with existing travel regulations, as well as telephone toll calls, telegrams and copying (except printing), are reimbursable. Non-reimbursable items include general office overhead, personal items for the person represented, filing fees, and printing. (A person represented under the Act is not required to pay filing fees.)
5. An appointed attorney or other authorized legal entity shall not incur any expense subject to claim for reimbursement in excess of $300 except for necessary travel and maintenance to and from this Court for hearing on oral argument, without prior Court approval. In the event it is deemed necessary to provide an appendix of the record on appeal of more than 50 pages, they shall first petition the Court for authority to incur such expense and obtain approval therefor.
6. All claims for compensation and reimbursement for expenses reasonably incurred shall be itemized and prepared on prescribed forms and filed with the Clerk of this Court. All such claims should be filed promptly and in any event not more than 30 days after the conclusion of such services.
7. A panel of judges hearing an appeal, or any active member of the Court if designated by such panel, shall, in each instance, fix the compensation and allow the reimbursement for expenses to be paid to the appointed representative as provided in the Act. After such approval, the Clerk of this Court shall forthwith forward such claims to the Director of the Administrative Office of the United States Courts for payment.
8. Counsel's time and expenses involved in the preparation of a petition for a writ of certiorari shall be considered as applicable to the case before this Court, and should be vouchered as such.
1. The United States Court of Appeals shall submit a report of the appointment of counsel to the Administrative Office of the United States Courts in such form and at such times as the Judicial Conference of the United States may direct, and otherwise comply with such rules, regulations, and guidelines governing the operation of Plans formulated by the Judicial Conference of the United States, pursuant to subsection (h) of the Act.
2. Where standard forms have been prescribed and distributed by the Director of the Administrative Office of the United States Courts, such forms shall be used, where applicable, in all proceedings under this Plan.
3. Amendments to the Plan may be made from time to time by the Judicial Council of this circuit, and such amendments shall be forwarded immediately to the Administrative Office of the United States Courts.
This Plan shall become effective January 1, 1991.
Approved and adopted by the Seventh Circuit Judicial Council on December 3, 1990. As amended January 1, 1996.
A lawyer's conduct should be characterized at all times by personal courtesy and professional integrity in the fullest sense of those terms. In fulfilling our duty to represent a client vigorously as lawyers, we will be mindful of our obligations to the administration of justice, which is a truth-seeking process designed to resolve human and societal problems in a rational, peaceful, and efficient manner.
A judge's conduct should be characterized at all times by courtesy and patience toward all participants. As judges we owe to all participants in a legal proceeding respect, diligence, punctuality, and protection against unjust and improper criticism or attack.
Conduct that may be characterized as uncivil, abrasive, abusive, hostile, or obstructive impedes the fundamental goal of resolving disputes rationally, peacefully, and efficiently. Such conduct tends to delay and often to deny justice.
The following standards are designed to encourage us, judges and lawyers, to meet our obligations to each other, to litigants and to the system of justice, and thereby achieve the twin goals of civility and professionalism, both of which are hallmarks of a learned profession dedicated to public service.
We expect judges and lawyers will make a mutual and firm commitment to these standards. Voluntary adherence is expected as part of a commitment by all participants to improve the administration of justice throughout this Circuit.
These standards shall not be used as a basis for litigation or for sanctions or penalties. Nothing in these standards supersedes or detracts from existing disciplinary codes or alters existing standards of conduct against which lawyer negligence may be determined.
These standards should be reviewed and followed by all judges and lawyers participating in any proceeding, in this Circuit. Copies may be made available to clients to reinforce our obligation to maintain and foster these standards.
1. We will practice our profession with a continuing awareness that our role is to advance the legitimate interests of our clients. In our dealings with others we will not reflect the ill feelings of our clients. We will treat all other counsel, parties, and witnesses in a civil and courteous manner, not only in court, but also in all other written and oral communications.
2. We will not, even when called upon by a client to do so, abuse or indulge in offensive conduct directed to other counsel, parties, or witnesses. We will abstain from disparaging personal remarks or acrimony toward other counsel, parties, or witnesses. We will treat adverse witnesses and parties with fair consideration.
3. We will not encourage or knowingly authorize any person under our control to engage in conduct that would be improper if we were to engage in such conduct.
4. We will not, absent good cause, attribute bad motives or improper conduct to other counsel or bring the profession into disrepute by unfounded accusations of impropriety.
5. We will not seek court sanctions without first conducting a reasonable investigation and unless fully justified by the circumstances and necessary to protect our client's lawful interests.
6. We will adhere to all express promises and to agreements with other counsel, whether oral or in writing, and will adhere in good faith to all agreements implied by the circumstances or local customs.
7. When we reach an oral understanding on a proposed agreement or a stipulation and decide to commit it to writing, the drafter will endeavor in good faith to state the oral understanding accurately and completely. The drafter will provide the opportunity for review of the writing to other counsel. As drafts are exchanged between or among counsel, changes from prior drafts will be identified in the draft or otherwise explicitly brought to the attention of other counsel. We will not include in a draft matters to which there has been no agreement without explicitly advising other counsel in writing of the addition.
8. We will endeavor to confer early with other counsel to assess settlement possibilities. We will not falsely hold out the possibility of settlement as a means to adjourn discovery or to delay trial.
9. In civil actions, we will stipulate to relevant matters if they are undisputed and if no good faith advocacy basis exists for not stipulating.
10. We will not use any form of discovery or discovery scheduling as a means of harassment.
11. We will make good faith efforts to resolve by agreement our objections to matters contained in pleadings and discovery requests and objections.
12. We will not time the filing or service of motions or pleadings in any way that unfairly limits another party's opportunity to respond.
13. We will not request an extension of time solely for the purpose of unjustified delay or to obtain a tactical advantage.
14. We will consult other counsel regarding scheduling matters in a good faith effort to avoid scheduling conflicts.
15. We will endeavor to accommodate previously scheduled dates for hearings, depositions, meetings, conferences, vacations, seminars, or other functions that produce good faith calendar conflicts on the part of other counsel. If we have been given an accommodation because of a calendar conflict, we will notify those who have accommodated us as soon as the conflict has been removed.
16. We will notify other counsel and, if appropriate, the court or other persons, at the earliest possible time when hearings, depositions, meetings, or conferences are to be canceled or postponed. Early notice avoids unnecessary travel and expense of counsel and may enable the court to use the previously reserved time for other matters.
17. We will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided our clients' legitimate rights will not be materially or adversely affected.
18. We will not cause any default or dismissal to be entered without first notifying opposing counsel, when we know his or her identity.
19. We will take depositions only when actually needed to ascertain facts or information or to perpetuate testimony. We will not take depositions for the purposes of harassment or to increase litigation expenses.
20. We will not engage in any conduct during a deposition that would not be appropriate in the presence of a judge.
21. We will not obstruct questioning during a deposition or object to deposition questions unless necessary under the applicable rules to preserve an objection or privilege for resolution by the court.
22. During depositions we will ask only those questions we reasonably believe are necessary for the prosecution or defense of an action.
23. We will carefully craft document production requests so they are limited to those documents we reasonably believe are necessary for the prosecution or defense of an action. We will not design production requests to place an undue burden or expense on a party.
24. We will respond to document requests reasonably and not strain to interpret the request in an artificially restrictive manner to avoid disclosure of relevant and non-privileged documents. We will not produce documents in a manner designed to hide or obscure the existence of particular documents.
25. We will carefully craft interrogatories so they are limited to those matters we reasonably believe are necessary for the prosecution or defense of an action, and we will not design them to place an expense or undue burden or expense on a party.
26. We will respond to interrogatories reasonably and will not strain to interpret them in an artificially restrictive manner to avoid disclosure of relevant and non-privileged information.
27. We will base our discovery objections on a good faith belief in their merit and will not object solely for the purpose of withholding or delaying the disclosure of relevant information.
28. When a draft order is to be prepared by counsel to reflect a court ruling, we will draft an order that accurately and completely reflects the court's ruling. We will promptly prepare and submit a proposed order to other counsel and attempt to reconcile any differences before the draft order is presented to the court.
29. We will not ascribe a position to another counsel that counsel has not taken or otherwise seek to create an unjustified inference based on counsel's statements or conduct.
30. Unless specifically permitted or invited by the court, we will not send copies of correspondence between counsel to the court.
1.We will speak and write civilly and respectfully in all communications with the court.
2. We will be punctual and prepared for all court appearances so that all hearings, conferences, and trials may commence on time; if delayed, we will notify the court and counsel, if possible.
3. We will be considerate of the time constraints and pressures on the court and court staff inherent in their efforts to administer justice.
4. We will not engage in any conduct that brings disorder or disruption to the courtroom. We will advise our clients and witnesses appearing in court of the proper conduct expected and required there and, to the best of our ability, prevent our clients and witnesses from creating disorder or disruption.
5. We will not knowingly misrepresent, mischaracterize, misquote, or miscite facts or authorities in any oral or written communication to the court.
6. We will not write letters to the court in connection with a pending action, unless invited or permitted by the court.
7. Before dates for hearings or trials are set, or if that is not feasible, immediately after such date has been set, we will attempt to verify the availability of necessary participants and witnesses so we can promptly notify the court of any likely problems.
8. We will act and speak civilly to court marshals, clerks, court reporters, secretaries, and law clerks with an awareness that they, too, are an integral part of the judicial system.
1. We will be courteous, respectful, and civil to lawyers, parties, and witnesses. We will maintain control of the proceedings, recognizing that judges have both the obligation and the authority to insure that all litigation proceedings are conducted in a civil manner.
2. We will not employ hostile, demeaning, or humiliating words in opinions or in written or oral communications with lawyers, parties, or witnesses.
3. We will be punctual in convening all hearings, meetings, and conferences; if delayed, we will notify counsel, if possible.
4. In scheduling all hearings, meetings and conferences we will be considerate of time schedules of lawyers, parties, and witnesses.
5. We will make all reasonable efforts to decide promptly all matters presented to us for decision.
6. We will give the issues in controversy deliberate, impartial, and studied analysis and consideration.
7. While endeavoring to resolve disputes efficiently, we will be considerate of the time constraints and pressures imposed on lawyers by the exigencies of litigation practice.
8. We recognize that a lawyer has a right and a duty to present a cause fully and properly, and that a litigant has a right to a fair and impartial hearing. Within the practical limits of time, we will allow lawyers to present proper arguments and to make a complete and accurate record.
9. We will not impugn the integrity or professionalism of any lawyer on the basis of the clients whom or the causes which a lawyer represents.
10. We will do our best to insure that court personnel act civilly toward lawyers, parties, and witnesses.
11. We will not adopt procedures that needlessly increase litigation expense.
12. We will bring to lawyers' attention uncivil conduct which we observe.