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Seventh Circuit Rules
Federal Rule of Appellate Procedure 1:
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.
(c) Title. These rules are to be known as the Federal Rules of Appellate Procedure.
CIRCUIT
RULE 1. Scope of Rules
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.
Federal Rule of Appellate Procedure 2:
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).
CIRCUIT
RULE 2. Suspension of Circuit Rules
In the interest of expediting decision or for other good cause, the court may suspend the requirements of these Circuit Rules.
Federal
Rule of Appellate Procedure 3:
RULE 3. Appeal as of
Right--How Taken
(a)
Filing the Notice of Appeal.
(1) An
appeal permitted by law as of right from a district court to a court of
appeals may be taken only by filing a notice of appeal with the district
clerk within the time allowed by Rule 4. At the time of filing, the appellant must furnish the
clerk with enough copies of the notice to enable the clerk to comply with
Rule 3(d).
(2) An
appellant's failure to take any step other than the timely filing of a
notice of appeal does not affect the validity of the appeal, but is ground
only for the court of appeals to act as it considers appropriate, including
dismissing the appeal.
(3) An
appeal from a judgment by a magistrate judge in a civil case is taken
in the same way as an appeal from any other district court judgment.
(4) An
appeal by permission under 28 U.S.C. § 1292(b) or an appeal in a bankruptcy
case may be taken only in the manner prescribed by Rules 5 and 6, respectively.
(b)
Joint or Consolidated Appeals.
(1) When
two or more parties are entitled to appeal from a district court judgment
or order, and their interests make joinder practicable, they may file
a joint notice of appeal. They may then proceed on appeal as a single
appellant.
(2) When the parties have filed separate timely notices of appeal, the appeals may be joined or consolidated by the court of appeals.
(c)
Contents of the Notice of Appeal.
(1) The
notice of appeal must:
(A) specify
the party or parties taking the appeal by naming each one in the caption
or body of the notice, but an attorney representing more than one party
may describe those parties with such terms as "all plaintiffs," "the defendants,"
"the plaintiffs A, B, et al.," or "all defendants except X";
(B) designate
the judgment, order, or part thereof being appealed; and
(C) name the court to which the appeal is taken.
(2) A pro
se notice of appeal is considered filed on behalf of the signer and the
signer's spouse and minor children (if they are parties), unless the notice
clearly indicates otherwise.
(3) In
a class action, whether or not the class has been certified, the notice
of appeal is sufficient if it names one person qualified to bring the
appeal as representative of the class.
(4) An
appeal must not be dismissed for informality of form or title of the notice
of appeal, or for failure to name a party whose intent to appeal is otherwise
clear from the notice.
(5) Form 1 in the Appendix of Forms is a suggested form of a notice
of appeal.
(d)
Serving the Notice of Appeal.
(1) The
district clerk must serve notice of the filing of a notice of appeal by
mailing a copy to each party's counsel of record-excluding the appellant's
or, if a party is proceeding pro se, to the party's last known address.
When a defendant in a criminal case appeals, the clerk must also serve
a copy of the notice of appeal on the defendant, either by personal service
or by mail addressed to the defendant. The clerk must promptly send a
copy of the notice of appeal and of the docket entries-and any later docket
entries-to the clerk of the court of appeals named in the notice. The
district clerk must note, on each copy, the date when the notice of appeal
was filed.
(2) If
an inmate confined in an institution files a notice of appeal in the manner
provided by Rule 4(c), the district clerk must also note the date when
the clerk docketed the notice.
(3) The
district clerk's failure to serve notice does not affect the validity
of the appeal. The clerk must note on the docket the names of the parties
to whom the clerk mails copies, with the date of mailing. Service is sufficient
despite the death of a party or the party's counsel.
(e) Payment of Fees. Upon filing a notice of appeal, the appellant must pay the district clerk all required fees. The district clerk receives the appellate docket fee on behalf of the court of appeals.
CIRCUIT
RULE 3. Notice of Appeal, Docketing Fee, Docketing Statement, and Designation
of Counsel of Record
(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 appeal.
(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.
Federal Rule of Appellate Procedure 4:
RULE 4. Appeal as of Right--When Taken
(1) Time for Filing a Notice of Appeal.
(A) In a civil case, except as provided in Rules
4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3
must be filed with the district clerk within 30 days after the judgment
or order appealed from is entered.
(B) When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered.
(C) An appeal from an order granting or denying
an application for a writ of error coram nobis is an appeal in a civil
case for purposes of Rule 4(a).
(2) Filing Before Entry of Judgment. A notice
of appeal filed after the court announces a decision or order-but before
the entry of the judgment or order-is treated as filed on the date of
and after the entry.
(3) Multiple Appeals. If one party timely
files a notice of appeal, any other party may file a notice of appeal
within 14 days after the date when the first notice was filed, or within
the time otherwise prescribed by this Rule 4(a), whichever period ends
later.
(4) Effect of a Motion on a Notice of Appeal.
(A) If a party timely files in the district court
any of the following motions under the Federal Rules of Civil Procedure,
the time to file an appeal runs for all parties from the entry of the
order disposing of the last such remaining motion:
(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;
(iii) for attorney's fees under Rule 54 if the district court extends the time to appeal under Rule 58;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is
filed no later than 10 days after the judgment is entered.
(B)(i) If a party files a notice of appeal after
the court announces or enters a judgment-but before it disposes of any
motion listed in Rule 4(a)(4)(A)-the notice becomes effective to appeal
a judgment or order, in whole or in part, when the order disposing of
the last such remaining motion is entered.
(ii) A party intending to challenge an order disposing of any motion
listed in Rule 4(a)(4)(A), or a judgment altered or amended upon such
a motion, must file a notice of appeal, or an amended notice of appeal-in
compliance with Rule 3(c)-within the time prescribed by this Rule measured
from the entry of the order disposing of the last such remaining motion.
(iii) No additional fee is required to file an amended notice.
(5) Motion for Extension of Time.
(A) The district court may extend the time to file
a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed
by this Rule 4(a) expires; and
(ii) regardless of whether its motion is filed before or during the 30
days after the time prescribed by this Rule 4(a) expires, that party shows
excusable neglect or good cause.
(B) A motion filed before the expiration of the
time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court
requires otherwise. If the motion is filed after the expiration of the
prescribed time, notice must be given to the other parties in accordance
with local rules.
(C) No extension under this Rule 4(a)(5) may exceed
30 days after the prescribed time or 10 days after the date when the order
granting the motion is entered, whichever is later.
(6) Reopening the Time to File an Appeal.
The district court may reopen the time to file an appeal for a period
of 14 days after the date when its order to reopen is entered, but only
if all the following conditions are satisfied:
(A) the 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 entry;
(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
(C) the court finds that no party would be prejudiced.
(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
(ii) if Federal Rule of Civil Procedure 58(a)(1) does not require a separate
document, when the judgement or order is entered in the civil docket under
Federal Rule of Civil Procedure 79(a) and when the earlier of these events
occurs:
• the judgement or order is set forth on a separate document, or
• 150 days have run from entry of the judgement or order in the civil
docket under Federal Rule of Civil Procedure 79(a).
(B) A failure to set forth a judgement or order on a separate document
when required by Federal Rule of Civil Procedure 58(a)(1) does not affect
the validity of an appeal from that judgement or order.
(b) Appeal in a Criminal Case.
(1) Time for Filing a Notice of Appeal.
(A) In a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days after the later of:
(i) the entry of either the judgment or the order being appealed; or
(ii) the filing of the government's notice of appeal.
(B) When the government is entitled to appeal, its notice of appeal must be filed in the district court within 30 days after the later of:
(i) the entry of the judgment or order being appealed; or
(ii) the filing of a notice of appeal by any defendant.
(2) Filing Before Entry of Judgment. A notice
of appeal filed after the court announces a decision, sentence, or order-but
before the entry of the judgment or order-is treated as filed on the date
of and after the entry.
(3) Effect of a Motion on a Notice of Appeal.
(A) If a defendant timely makes any of the following
motions under the Federal Rules of Criminal Procedure, the notice of appeal
from a judgment of conviction must be filed within 10 days after the entry
of the order disposing of the last such remaining motion, or within 10
days after the entry of the judgment of conviction, whichever period ends
later. This provision applies to a timely motion:
(i) for judgment of acquittal under Rule 29;
(ii) for a new trial under Rule 33, but if based on newly discovered
evidence, only if the motion is made no later than 10 days after the entry
of the judgment; or
(iii) for arrest of judgment under Rule 34.
(B) A notice of appeal filed after the court announces
a decision, sentence, or order-but before it disposes of any of the motions
referred to in Rule 4(b)(3)(A)-becomes effective upon the later of the
following:
(i) the entry of the order disposing of the last such remaining motion;
or
(ii) the entry of the judgment of conviction.
(C) A valid notice of appeal is effective-without
amendment-to appeal from an order disposing of any of the motions referred
to in Rule 4(b)(3)(A).
(4) Motion for Extension of Time. Upon a
finding of excusable neglect or good cause, the district court may-before
or after the time has expired, with or without motion and notice-extend
the time to file a notice of appeal for a period not to exceed 30 days
from the expiration of the time otherwise prescribed by this Rule 4(b).
(5) Jurisdiction. The filing of a notice
of appeal under this Rule 4(b) does not divest a district court of jurisdiction
to correct a sentence under Federal Rule of Criminal Procedure 35(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.
(6) Entry Defined. A judgment or order is
entered for purposes of this Rule 4(b) when it is entered on the criminal
docket.
(c) Appeal by an Inmate Confined in an Institution.
(1) If an inmate confined in an institution files
a notice of appeal in either a civil or a criminal case, the notice is
timely if it is deposited in the institution's internal mail system on
or before the last day for filing. If an institution has a system designed
for legal mail, the inmate must use that system to receive the benefit
of this rule. Timely filing may be shown by a declaration in compliance
with 28 U.S.C. § 1746 or by a notarized statement, either of which must
set forth the date of deposit and state that first-class postage has been
prepaid.
(2) If an inmate files the first notice of appeal
in a civil case under this Rule 4(c), the 14-day period provided in Rule
4(a)(3) for another party to file a notice of appeal runs from the date
when the district court dockets the first notice.
(3) When a defendant in a criminal case files a notice
of appeal under this Rule 4(c), the 30-day period for the government to
file its notice of appeal runs from the entry of the judgment or order
appealed from or from the district court's docketing of the defendant's
notice of appeal, whichever is later.
(d) Mistaken Filing in the Court of Appeals. If a notice of appeal in either a civil or a criminal case is mistakenly filed in the court of appeals, the clerk of that court must note on the notice the date when it was received and send it to the district clerk. The notice is then considered filed in the district court on the date so noted.
Federal Rule of Appellate Procedure 5:
RULE 5. Appeal by Permission
(a) Petition for Permission to Appeal.
(1) To request permission to appeal when an appeal
is within the court of appeals' discretion, a party must file a petition
for permission to appeal. The petition must be filed with the circuit
clerk with proof of service on all other parties to the district-court
action.
(2) The petition must be filed within the time specified
by the statute or rule authorizing the appeal or, if no such time is specified,
within the time provided by Rule 4(a) for filing a notice of appeal.
(3) If a party cannot petition for appeal unless
the district court first enters an order granting permission to do so
or stating that the necessary conditions are met, the district court may
amend its order, either on its own or in response to a party's motion,
to include the required permission or statement. In that event, the time
to petition runs from entry of the amended order.
(b) Contents of the Petition; Answer or Cross-Petition;
Oral Argument.
(1) The petition must include the following:
(A) the facts necessary to understand the question presented;
(D) the reasons why the appeal should be allowed and is authorized by a statute or rule; and
(i) the order, decree, or judgment complained of and any related opinion or memorandum, and
(ii) any order stating the district court's permission to appeal or finding
that the necessary conditions are met.
(2) A party may file an answer in opposition or a
cross-petition within 7 days after the petition is served.
(3) The petition and answer will be submitted without
oral argument unless the court of appeals orders otherwise.
(c) Form of Papers; Number of Copies.
All papers must conform to Rule 32(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
case.
(d) Grant of Permission; Fees; Cost Bond;
Filing the Record.
(1) Within 10 days after the entry of the order granting
permission to appeal, the appellant must:
(A) pay the district clerk all required fees; and
(B) file a cost bond if required under Rule 7.
(2) A notice of appeal need not be filed. The date
when the order granting permission to appeal is entered serves as the
date of the notice of appeal for calculating time under these rules.
(3) The district clerk must notify the circuit clerk once the petitioner has paid the fees. Upon receiving this notice, the circuit clerk must enter the appeal on the docket. The record must be forwarded and filed in accordance with Rules 11 and 12(c).
Federal Rule of Appellate Procedure 6:
RULE 6. Appeal in a Bankruptcy Case from a Final Judgment, Order,
or Decree of a District Court or a Bankruptcy Appellate Panel.
(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
rules.
(b) Appeal From a Judgment, Order, or Decree
of a District Court or Bankruptcy Appellate Panel Exercising
Appellate Jurisdiction in a Bankruptcy Case.
(1) Applicability of Other Rules. These
rules apply to an appeal to a court of appeals under 28 U.S.C. § 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:
(A) Rules 4(a)(4), 4(b), 9, 10, 11, 12(b), 13-20,
22-23, and 24(b) do not apply;
(B) the reference in Rule 3(c) to "Form 1 in the Appendix of Forms" must be read
as a reference to Form 5; and
(C) when the appeal is from a bankruptcy appellate
panel, the term "district court," as used in any applicable rule, means
"appellate panel."
(2) Additional Rules. In addition to the
rules made applicable by Rule 6(b)(1), the following rules apply:
(i) If a timely motion for rehearing under Bankruptcy Rule 8015 is filed,
the time to appeal for all parties runs from the entry of the order disposing
of the motion. A notice of appeal filed after the district court or bankruptcy
appellate panel announces or enters a judgment, order, or decree-but before
disposition of the motion for rehearing-becomes effective when the order
disposing of the motion for rehearing is entered.
(ii) Appellate review of the order disposing of the motion requires the
party, in compliance with Rules 3(c) and 6(b)(1)(B), to amend a previously
filed notice of appeal. A party intending to challenge an altered or amended
judgment, order, or decree must file a notice of appeal or amended notice
of appeal within the time prescribed by Rule 4-excluding Rules 4(a)(4)
and 4(b)-measured from the entry of the order disposing of the motion.
(iii) No additional fee is required to file an amended notice.
(i) Within 10 days after filing the notice of appeal, the appellant must
file with the clerk possessing the record assembled in accordance with
Bankruptcy Rule 8006-and serve on the appellee-a statement of the issues
to be presented on appeal and a designation of the record to be certified
and sent to the circuit clerk.
(ii) An appellee who believes that other parts of the record are necessary
must, within 10 days after being served with the appellant's designation,
file with the clerk and serve on the appellant a designation of additional
parts to be included.
(iii) The record on appeal consists of:
• the redesignated record as provided above;
• the proceedings in the district court or bankruptcy appellate panel; and
• a certified copy of the docket entries prepared by the clerk under
Rule 3(d).
(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.
Federal Rule of Appellate Procedures 7:
RULE 7. Bond for Costs on Appeal in a Civil Case
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.
Federal Rule of Appellate Procedure 8:
RULE 8. Stay or Injunction Pending Appeal
(1) Initial Motion in the District Court.
A party must ordinarily move first in the district court for the following
relief:
(A) a stay of the judgment or order of a district
court pending appeal;
(B) approval of a supersedeas bond; or
(C) an order suspending, modifying, restoring, or
granting an injunction while an appeal is pending.
(2) Motion in the Court of Appeals; Conditions
on Relief. A motion for the relief mentioned in Rule 8(a)(1) may be made
to the court of appeals or to one of its judges.
(i) show that moving first in the district court would be impracticable; or
(ii) state that, a motion having been made, the district court denied
the motion or failed to afford the relief requested and state any reasons
given by the district court for its action.
(B) The motion must also include:
(i) the reasons for granting the relief requested and the facts relied on;
(ii) originals or copies of affidavits or other sworn statements supporting facts subject to dispute; and
(iii) relevant parts of the record.
(C) The moving party must give reasonable notice
of the motion to all parties.
(D) A motion under this Rule 8(a)(2) must be filed
with the circuit clerk and normally will be considered by a panel of the
court. But in an exceptional case in which time requirements make that
procedure impracticable, the motion may be made to and considered by a
single judge.
(E) The court may condition relief on a party's
filing a bond or other appropriate security in the district court.
(b) Proceeding Against a Surety.
If a party gives security in the form of a bond or stipulation or other
undertaking with one or more sureties, each surety submits to the jurisdiction
of the district court and irrevocably appoints the district clerk as the
surety's agent on whom any papers affecting the surety's liability on
the bond or undertaking may be served. On motion, a surety's liability
may be enforced in the district court without the necessity of an independent
action. The motion and any notice that the district court prescribes may
be served on the district clerk, who must promptly mail a copy to each
surety whose address is known.
(c) Stay in a Criminal Case. Rule 38 of the Federal Rules of Criminal Procedure governs a stay in a criminal case.
CIRCUIT
RULE 8. Motions for Stays and Injunctions
Pending Appeal
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.
Federal Rule of Appellate Procedure 9:
Rule 9. Release in a Criminal Case
(a) Release Before Judgment of Conviction.
(1) The district court must state in writing, or
orally on the record, the reasons for an order regarding the release or
detention of a defendant in a criminal case. A party appealing from the
order must file with the court of appeals a copy of the district court's
order and the court's statement of reasons as soon as practicable after
filing the notice of appeal. An appellant who questions the factual basis
for the district court's order must file a transcript of the release proceedings
or an explanation of why a transcript was not obtained.
(2) After reasonable notice to the appellee, the
court of appeals must promptly determine the appeal on the basis of the
papers, affidavits, and parts of the record that the parties present or
the court requires. Unless the court so orders, briefs need not be filed.
(3) The court of appeals or one of its judges may
order the defendant's release pending the disposition of the appeal.
(b) Release After Judgment of Conviction.
A party entitled to do so may obtain review of a district-court order
regarding release after a judgment of conviction by filing a notice of
appeal from that order in the district court, or by filing a motion in
the court of appeals if the party has already filed a notice of appeal
from the judgment of conviction. Both the order and the review are subject
to Rule 9(a). The papers filed by the party seeking review must include
a copy of the judgment of conviction.
(c) Criteria for Release. The court must make its decision regarding release in accordance with the applicable provisions of 18 U.S.C. §§ 3142, 3143, and 3145(c).
CIRCUIT
RULE 9. Motions Concerning Custody Pending Trial or Appeal
(a)
All requests for release from custody pending trial shall be by motion.
The defendant shall file a notice of appeal followed by a motion.
(b)
All requests to reverse orders granting bail or enlargement pending trial
or appeal shall be by motion. The government shall file a notice of appeal
followed by a motion.
(c)
All requests for release from custody after sentencing and pending the
disposition of the appeal shall be by motion in the main case. There is
no need for a separate notice of appeal.
(d) Any motion filed under this rule shall be accompanied by a memorandum of law.
Federal Rule of Appellate Procedure 10:
RULE 10. The Record on Appeal
(a) Composition of the Record on Appeal.
The following items constitute the record on appeal:
(1) the original papers and exhibits filed in the
district court;
(2) the transcript of proceedings, if any; and
(3) a certified copy of the docket entries prepared
by the district clerk.
(b) The Transcript of Proceedings.
(1) Appellant's Duty to Order. Within 10
days after filing the notice of appeal or entry of an order disposing
of the last timely remaining motion of a type specified in Rule 4(a)(4)(A), whichever is later, the appellant must do
either of the following:
(A) order from the reporter a transcript of such
parts of the proceedings not already on file as the appellant considers
necessary, subject to a local rule of the court of appeals and with the
following qualifications:
(i) the order must be in writing;
(ii) if the cost of the transcript is to be paid by the United States under the Criminal Justice Act, the order must so state; and
(iii) the appellant must, within the same period, file a copy of the
order with the district clerk; or
(B) file a certificate stating that no transcript
will be ordered.
(2) Unsupported Finding or Conclusion.
If the appellant intends to urge on appeal that a finding or conclusion
is unsupported by the evidence or is contrary to the evidence, the appellant
must include in the record a transcript of all evidence relevant to that
finding or conclusion.
(3) Partial Transcript. Unless the entire
transcript is ordered:
(A) the appellant must-within the 10 days provided
in Rule 10(b)(1)-file a statement of the issues that the appellant intends
to present on the appeal and must serve on the appellee a copy of both
the order or certificate and the statement;
(B) if the appellee considers it necessary to have
a transcript of other parts of the proceedings, the appellee must, within
10 days after the service of the order or certificate and the statement
of the issues, file and serve on the appellant a designation of additional
parts to be ordered; and
(C) unless within 10 days after service of that
designation the appellant has ordered all such parts, and has so notified
the appellee, the appellee may within the following 10 days either order
the parts or move in the district court for an order requiring the appellant
to do so.
(4) Payment. At the time of ordering,
a party must make satisfactory arrangements with the reporter for paying
the cost of the transcript.
(c) Statement of the Evidence When the Proceedings
Were Not Recorded or When a Transcript Is Unavailable.
If the transcript of a hearing or trial is unavailable, the appellant
may prepare a statement of the evidence or proceedings from the best available
means, including the appellant's recollection. The statement must be served
on the appellee, who may serve objections or proposed amendments within
10 days after being served. The statement and any objections or proposed
amendments must then be submitted to the district court for settlement
and approval. As settled and approved, the statement must be included
by the district clerk in the record on appeal.
(d) Agreed Statement as the Record on Appeal.
In place of the record on appeal as defined in Rule 10(a), the parties
may prepare, sign, and submit to the district court a statement of the
case showing how the issues presented by the appeal arose and were decided
in the district court. The statement must set forth only those facts averred
and proved or sought to be proved that are essential to the 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 30.
(e) Correction or Modification of the Record.
(1) If any difference arises about whether the record
truly discloses what occurred in the district court, the difference must
be submitted to and settled by that court and the record conformed accordingly.
(2) If anything material to either party is omitted
from or misstated in the record by error or accident, the omission or
misstatement may be corrected and a supplemental record may be certified
and forwarded:
(A) on stipulation of the parties;
(B) by the district court before or after the record
has been forwarded; or
(3) All other questions as to the form and content of the record must be presented to the court of appeals.
CIRCUIT
RULE 10. Preparation of Record in District Court Appeals
(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 this court:
briefs and memoranda,
notices of filings,
subpoenas,
summonses,
motions to extend time,
affidavits and admissions of service and mailing,
notices of settings,
depositions and
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) and 11(b), Fed. R. App. P.
(d)
Ordering Transcripts in Criminal Cases.
(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 transcript.
(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 appeal.
(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 following information:
(1)
An alphabetical list of witnesses, giving the pages on which the direct
and each other examination of each witness begins.
(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.
(3)
A list of other significant portions of the trial such as opening statements,
arguments to the jury, and instructions, with a reference to the page
where each begins.
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.
Federal Rule of Appellate Procedure 11:
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.
(b) Duties of Reporter and District Clerk.
(1) Reporter's Duty to Prepare and File a Transcript.
The reporter must prepare and file a transcript as follows:
(A) Upon receiving an order for a transcript, the
reporter must enter at the foot of the order the date of its receipt and
the expected completion date and send a copy, so endorsed, to the circuit
clerk.
(B) If the transcript cannot be completed within
30 days of the 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.
(C) When a transcript is complete, the reporter
must file it with the district clerk and notify the circuit clerk of the
filing.
(D) If the reporter fails to file the transcript
on time, the circuit clerk must notify the district judge and do whatever
else the court of appeals directs.
(2) District Clerk's Duty to Forward. When
the record is complete, the district clerk must number the documents constituting
the record and send them promptly to the circuit clerk together with a
list of the documents correspondingly numbered and reasonably identified.
Unless directed to do so by a party or the circuit clerk, the district
clerk will not send to the court of appeals documents of unusual bulk
or weight, physical exhibits other than documents, or other parts of the
record designated for omission by local rule of the court of appeals.
If the exhibits are unusually bulky or heavy, a party must arrange with
the clerks in advance for their transportation and receipt.
(c) Retaining the Record Temporarily in the
District Court for Use in Preparing the Appeal. The parties may
stipulate, or the district court on motion may order, that the district
clerk retain the record temporarily for the parties to use in preparing
the papers on appeal. In that event the district clerk must certify to
the circuit clerk that the record on appeal is complete. Upon receipt
of the appellee's brief, or earlier if the court orders or the parties
agree, the appellant must request the district clerk to forward the record.
(e) Retaining the Record by Court Order.
(1) The court of appeals may, by order or local
rule, provide that a certified copy of the docket entries be forwarded
instead of the entire record. But a party may at any time during the appeal
request that designated parts of the record be forwarded.
(2) The district court may order the record or some
part of it retained if the court needs it while the appeal is pending,
subject, however, to call by the court of appeals.
(3) If part or all of the record is ordered retained,
the district clerk must send to the court of appeals a copy of the order
and the docket entries together with the parts of the original record
allowed by the district court and copies of any parts of the record designated
by the parties.
(f) Retaining Parts of the Record in the
District Court by Stipulation of the Parties. The
parties may agree by written stipulation filed in the district court that
designated parts of the record be retained in the district court subject
to call by the court of appeals or request by a party. The parts of the
record so designated remain a part of the record on appeal.
(g) Record for a Preliminary Motion in the
Court of Appeals. If, before the record is forwarded, a party
makes any of the following motions in the court of appeals:
• for dismissal;
• for release;
• for a stay pending appeal;
• for additional security on the bond on appeal or on a supersedeas bond; or
• for any other intermediate order, the district clerk must send the court of appeals any parts of the record designated by any party.
CIRCUIT RULE 11. Record
on Appeal
(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 district court.
(1)
Requests for Extension to be Addressed to Court of Appeals. All requests
for extension of time for filing the record or parts thereof shall be
addressed to the court of appeals.
(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.
Federal Rule of Appellate Procedure 12:
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.
CIRCUIT RULE 12. Docketing the Appeal
(a)
Docketing. The clerk will notify counsel and parties acting pro
se of the date the appeal is docketed.
(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."
Federal Rule of Appellate Procedure 13:
RULE 13. Review of a Decision of the Tax Court
(a) How Obtained; Time for Filing Notice
of Appeal.
(1) Review of a decision of the United States Tax
Court is commenced by filing a notice of appeal with the Tax Court clerk
within 90 days after the entry of the Tax Court's decision. At the time
of filing, the appellant must furnish the clerk with enough copies of
the notice to enable the clerk to comply with Rule 3(d). If one party
files a timely notice of appeal, any other party may file a notice of
appeal within 120 days after the Tax Court's decision is entered.
(2) If, under Tax Court rules, a party makes a timely
motion to vacate or revise the Tax Court's decision, the time to file
a notice of appeal runs from the entry of the order disposing of the motion
or from the entry of a new decision, whichever is later.
(b) Notice of Appeal; How Filed.
The notice of appeal may be filed either at the Tax Court clerk's office
in the District of Columbia or by mail addressed to the clerk. If sent
by mail the notice is considered filed on the postmark date, subject to
§ 7502 of the Internal Revenue Code, as amended, and the applicable regulations.
(c) Contents of the Notice of Appeal; Service;
Effect of Filing and Service. Rule 3 prescribes the contents of a notice of appeal, the manner
of service, and the effect of its filing and service. Form 2 in the Appendix of Forms is a suggested form of a notice
of appeal.
(d) The Record on Appeal; Forwarding; Filing.
(1) An appeal from the Tax Court is governed by
the parts of Rules 10, 11,
and 12 regarding the record on appeal from a district
court, the time and manner of forwarding and filing, and the docketing
in the court of appeals. References in those rules and in Rule
3 to the district court and district clerk are to be read as referring
to the Tax Court and its clerk.
(2) If an appeal from a Tax Court decision is taken to more than one court of appeals, the original record must be sent to the court named in the first notice of appeal filed. In an appeal to any other court of appeals, the appellant must apply to that other court to make provision for the record.
Federal Rule of Appellate Procedure 14:
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.
Federal Rule of Appellate Procedure 15:
RULE 15. Review or Enforcement of an Agency Order--How Obtained;
Intervention
(a) Petition for Review; Joint Petition.
(1) Review of an agency order is commenced by filing,
within the time prescribed by law, a petition for review with the clerk
of a court of appeals authorized to review the agency order. If their
interests make joinder practicable, two or more persons may join in a
petition to the same court to review the same order.
(A) name each party seeking review either in the
caption or the body of the petition-using such terms as "et al.," "petitioners,"
or "respondents" does not effectively name the parties;
(B) name the agency as a respondent (even though
not named in the petition, the United States is a respondent if required
by statute); and
(C) specify the order or part thereof to be reviewed.
(3) Form 3 in the Appendix of Forms is a suggested form of a petition
for review.
(4) In this rule "agency" includes an agency, board,
commission, or officer; "petition for review" includes a petition to enjoin,
suspend, modify, or otherwise review, or a notice of appeal, whichever
form is indicated by the applicable statute.
(b) Application or Cross-Application to Enforce
an Order; Answer; Default.
(1) An application to enforce an agency order must
be filed with the clerk of a court of appeals authorized to enforce the
order. If a petition is filed to review an agency order that the court
may enforce, a party opposing the petition may file a cross-application
for enforcement.
(2) Within 20 days after the application for enforcement
is filed, the respondent must serve on the applicant an answer to the
application and file it with the clerk. If the respondent fails to answer
in time, the court will enter judgment for the relief requested.
(3) The application must contain a concise statement
of the proceedings in which the order was entered, the facts upon which
venue is based, and the relief requested.
(c) Service of the Petition or Application.
The circuit clerk must serve a copy of the petition for review, or an
application or cross-application to enforce an agency order, on each respondent
as prescribed by Rule 3(d), unless a different manner of service is prescribed
by statute. At the time of filing, the petitioner must:
(1) serve, or have served, a copy on each party
admitted to participate in the agency proceedings, except for the respondents;
(2) file with the clerk a list of those so served;
and
(3) give the clerk enough copies of the petition
or application to serve each respondent.
(d) Intervention. Unless a statute
provides another method, a person who wants to intervene in a proceeding
under this rule must file a motion for leave to intervene with the circuit
clerk and serve a copy on all parties. The motion-or other notice of intervention
authorized by statute-must be filed within 30 days after the petition
for review is filed and must contain a concise statement of the interest
of the moving party and the grounds for intervention.
(e) Payment of Fees. When filing any separate or joint petition for review in a court of appeals, the petitioner must pay the circuit clerk all required fees.
Federal Rule of Appellate Procedure 15.1:
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.
Federal Rule of Appellate Procedure 16:
RULE 16. The Record on Review or Enforcement
(a) Composition of the Record. The
record on review or enforcement of an agency order consists of:
(2) any findings or report on which it is based;
and
(3) the pleadings, evidence, and other parts of
the proceedings before the agency.
(b) Omissions From or Misstatements in the Record. The parties may at any time, by stipulation, supply any omission from the record or correct a misstatement, or the court may so direct. If necessary, the court may direct that a supplemental record be prepared and filed.
Federal Rule of Appellate Procedure 17:
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.
(A) the original or a certified copy of the entire
record or parts designated by the parties; or
(B) a certified list adequately describing all
documents, transcripts of testimony, exhibits, and other material constituting
the record, or describing those parts designated by the parties.
(2) The parties may stipulate in writing that no
record or certified list be filed. The date when the stipulation is filed
with the circuit clerk is treated as the date when the record is filed.
(3) The agency must retain any portion of the record not filed with the clerk. All parts of the record retained by the agency are a part of the record on review for all purposes and, if the court or a party so requests, must be sent to the court regardless of any prior stipulation.
Federal Rule of Appellate Procedure 18:
RULE 18. Stay Pending Review
(1) Initial Motion Before the Agency. A
petitioner must ordinarily move first before the agency for a stay pending
review of its decision or order.
(2) Motion in the Court of Appeals. A motion
for a stay may be made to the court of appeals or one of its judges.
(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.