The text of these rules and procedures are current as of December 1, 1997.

Title I. Applicability of Rules

Title II. Appeals from Judgments and Orders of District Courts

Title III. Review of Decisions of the United States Tax Court

Title IV. Review and Enforcement of Orders of Administrative Agencies, Boards, Commissions and Officers.

Title V. Extraordinary Writs.

Title VI. Habeas Corpus: Proceedings in Forma Pauperis

Title VII. General Provisions.

Seventh Circuit Operating Procedures .......................

Seventh Circuit Criminal Justice Act Plan ...................

Federal Rule of Appellate Procedure 1:

RULE 1. Scope of Rules and Title

(a) Scope of Rules. These rules govern procedure in appeals to United States courts of appeals from the United States district courts and the United States Tax Court; in appeals from bankruptcy appellate panels; in proceedings in the courts of appeals for review or enforcement of orders of administrative agencies, boards, commissions and officers of the United States; and in applications for writs or other relief which a court of appeals or a judge thereof is competent to give. When these rules provide for the making of a motion or application in the district court, the procedure for making such motion or application shall be in accordance with the practice of the district court.

(b) Rules Not to Affect Jurisdiction. These rules shall not be construed to extend or limit the jurisdiction of the courts of appeals as established by law.

(c) Title. These rules may be known and cited as the Federal Rules of Appellate Procedure.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994.)

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.

(As amended Dec. 1, 1997.)

Federal Rule of Appellate Procedure 2:

RULE 2. Suspension of Rules

In the interest of expediting decision, or for other good cause shown, a court of appeals may, except as otherwise provided in Rule 26(b), suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction.

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. An appeal permitted by law as of right from a district court to a court of appeals must be taken by filing a notice of appeal with the clerk of the district court within the time allowed by Rule 4. At the time of filing, the appellant must furnish the clerk with sufficient copies of the notice of appeal to enable the clerk to comply promptly with the requirements of subdivision (d) of this Rule 3. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal. Appeals by permission under 28 U.S.C. §1292(b) and appeals in bankruptcy must be taken in the manner prescribed by Rule 5 and Rule 6 respectively.

(b) Joint or Consolidated Appeals. If two or more persons are entitled to appeal from a judgment or order of a district court and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate timely notices of appeal, and they may thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of the court of appeals upon its own motion or upon motion of a party, or by stipulation of the parties to the several appeals.

(c) Content of the Notice of Appeal. A notice of appeal must specify the party or parties taking the appeal by naming each appellant in either the caption or the body of the notice of appeal. An attorney representing more than one party may fulfill this requirement by describing those parties with such terms as "all plaintiffs," "the defendants," "the plaintiffs A, B, et al.," or "all defendants except X." A notice of appeal filed pro se is filed on behalf of the party signing the notice and the signer's spouse and minor children, if they are parties, unless the notice of appeal clearly indicates a contrary intent. In a class action, whether or not the class has been certified, it is sufficient for the notice to name one person qualified to bring the appeal as representative of the class. A notice of appeal also must designate the judgment, order, or part thereof appealed from, and must name the court to which the appeal is taken. An appeal will 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. Form 1 in the Appendix of Forms is a suggested form for a notice of appeal.

(d) Serving the Notice of Appeal. The clerk of the district court shall serve notice of the filing of a notice of appeal by mailing a copy to each party's counsel of record (apart from the appellant's), or, if a party is not represented by counsel, to the party's last known address. The clerk of the district court shall forthwith send a copy of the notice and of the docket entries to the clerk of the court of appeals named in the notice. The clerk of the district court shall likewise send a copy of any later docket entry in the case to the clerk of the court of appeals. When a defendant appeals in a criminal case, the clerk of the district court shall also serve a copy of the notice of appeal upon the defendant, either by personal service or by mail addressed to the defendant. The clerk shall note on each copy served the date when the notice of appeal was filed and, if the notice of appeal was filed in the manner provided in Rule 4(c) by an inmate confined in an institution, the date when the clerk received the notice of appeal. The clerk's failure to serve notice does not affect the validity of the appeal. Service is sufficient notwithstanding the death of a party or the party's counsel. The clerk shall note in the docket the names of the parties to whom the clerk mails copies, with the date of mailing.

(e) Payment of Fees. Upon the filing of any separate or joint notice of appeal from the district court, the appellant shall pay to the clerk of the district court such fees as are established by statute, and also the docket fee prescribed by the Judicial Conference of the United States, the latter to be received by the clerk of the district court on behalf of the court of appeals.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994.)

CIRCUIT RULE 3. Notice of Appeal, Docket Fee, Docketing

Statement and Appearance

(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(b). 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.

(As amended Dec. 1, 1997.)

Federal Rule of Appellate Procedure 3.1:

RULE 3.1. Appeal from Judgments Entered by a Magistrate Judge in a Civil Case

When the parties consent to a trial before a magistrate judge under 28 U.S.C. § 636(c)(1), any appeal from the judgment must be heard by the court of appeals in accordance with 28 U.S.C. § 636(c)(3), unless the parties consent to an appeal on the record to a district judge and thereafter, by petition only, to the court of appeals, in accordance with 28 U.S.C. § 636(c)(4). An appeal under 28 U.S.C. § 636(c)(3) must be taken in identical fashion as an appeal from any other judgment of the district court.

(As amended Apr. 22, 1993, eff. December 1, 1993.)

Federal Rule of Appellate Procedure 4:

RULE 4. Appeal as of Right - When Taken

(a) Appeal in a Civil Case.

(1) Except as provided in paragraph (a)(4) of this Rule, in a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 must be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days after such entry. If a notice of appeal is mistakenly filed in the court of appeals, the clerk of the court of appeals shall note thereon the date when the clerk received the notice and send it to the clerk of the district court and the notice will be treated as filed in the district court on the date so noted.

(2) 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) 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 last expires.

(4) If any party files a timely motion of a type specified immediately below, the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding. This provision applies to a timely motion under the Federal Rules of Civil Procedure:

(A) for judgment under Rule 50(b);

(B) to amend or make additional findings of fact under Rule 52(b), whether or not granting the motion would alter the judgment;

(C) to alter or amend the judgment under Rule 59;

(D) for attorney's fees under Rule 54 if a district court under Rule 58 extends the time for appeal;

(E) for a new trial under Rule 59; or

(F) for relief under Rule 60 if the motion is filed no later than 10 days after the entry of judgment.

A notice of appeal filed after announcement or entry of the judgment but before disposition of any of the above motions is ineffective to appeal from the judgment or order, or part thereof, specified in the notice of appeal, until the date of the entry of the order disposing of the last such motion outstanding. Appellate review of an order disposing of any of the above motions requires the party, in compliance with Appellate Rule 3(c), to amend a previously filed notice of appeal. A party intending to challenge an alteration or amendment of the judgment shall file a notice, or amended notice, of appeal within the time prescribed by this Rule 4 measured from the entry of the order disposing of the last such motion outstanding. No additional fees will be required for filing an amended notice.

(5) The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a). Any such motion which is filed before expiration of the prescribed time may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to the other parties in accordance with local rules. No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later.

(6) The district court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.

(7) A judgment or order is entered within the meaning of this Rule 4(a) when it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure.

(b) Appeal in a Criminal Case. In a criminal case, a defendant shall file the notice of appeal in the district court within 10 days after the entry either of the judgment or order appealed from, or of a notice of appeal by the Government. A notice of appeal filed after the announcement of a decision, sentence, or order--but before entry of the judgment or order--is treated as filed on the date of and after the entry. If a defendant makes a timely motion specified immediately below, in accordance with the Federal Rules of Criminal Procedure, an appeal from a judgment of conviction must be taken within 10 days after the entry of the order disposing of the last such motion outstanding, or within 10 days after the entry of the judgment of conviction, whichever is later. This provision applies to a timely motion:

(1) for judgment of acquittal;

(2) for arrest of judgment;

(3) for a new trial on any ground other than newly discovered evidence; or

(4) for a new trial based on the ground of newly discovered evidence if the motion is made before or within 10 days after entry of the judgment.

A notice of appeal filed after the court announces a decision, sentence, or order but before it disposes of any of the above motions, is ineffective until the date of the entry of the order disposing of the last such motion outstanding, or until the date of the entry of the judgment of conviction, whichever is later. Notwithstanding the provisions of Rule 3(c), a valid notice of appeal is effective without amendment to appeal from an order disposing of any of the above motions. When an appeal by the government is authorized by statute, the notice of appeal must be filed in the district court within 30 days after (i) the entry of the judgment or order appealed from or (ii) the filing of a notice of appeal by any defendant.

A judgment or order is entered within the meaning of this subdivision when it is entered on the criminal docket. Upon a showing of excusable neglect, the district court may--before or after the time has expired, with or without motion and notice-- extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

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 Fed. R. Crim. P. 35(c), nor does the filing of a motion under Fed. R. Crim. P. 35(c) affect the validity of a notice of appeal filed before entry of the order disposing of the motion.

(c) Appeal by an Inmate Confined in an Institution. If an inmate confined in an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely filed if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a notarized statement or by a declaration (in compliance with 28 U.S.C. § 1746) setting forth the date of deposit and stating that first class postage has been prepaid. In a civil case in which the first notice of appeal is filed in the manner provided in this subdivision (c), the 14-day period provided in paragraph (a)(3) of this Rule 4 for another party to file a notice of appeal runs from the date when the district court receives the first notice of appeal. In a criminal case in which a defendant files a notice of appeal in the manner provided in this subdivision (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 receipt of the defendant's notice of appeal.

(As amended April 27, 1995, eff. Dec. 1, 1995).

CIRCUIT RULE 4. (Rescinded Dec. 1, 1997)

Federal Rule of Appellate Procedure 5:

RULE 5. Appeal by Permission Under 28 U.S.C. § 1292(b)

(a) Petition for Permission to Appeal. An appeal from an interlocutory order containing the statement prescribed by 28 U.S.C. § 1292(b) may be sought by filing a petition for permission to appeal with the clerk of the court of appeals within 10 days after the entry of such order in the district court with proof of service on all other parties to the action in the district court. An order may be amended to include the prescribed statement at any time, and permission to appeal may be sought within 10 days after entry of the order as amended.

(b) Content of Petition; Answer. The petition shall contain a statement of the facts necessary to an understanding of the controlling question of law determined by the order of the district court; a statement of the question itself; and a statement of the reasons why a substantial basis exists for a difference of opinion on the question and why an immediate appeal may materially advance the termination of the litigation. The petition shall include or have annexed thereto a copy of the order from which appeal is sought and of any findings of fact, conclusions of law and opinion relating thereto. Within 7 days after service of the petition an adverse party may file an answer in opposition. The application and answer shall be submitted without oral argument unless otherwise ordered.

(c) Form of Papers; Number of Copies. All papers may be typewritten. An original and three copies must be filed unless the court requires the filing of a different number by local rule or by order in a particular case.

(d) Grant of Permission; Cost Bond; Filing of Record. Within 10 days after the entry of an order granting permission to appeal the appellant shall (1) pay to the clerk of the district court the fees established by statute and the docket fee prescribed by the Judicial Conference of the United States and (2) file a bond for costs if required pursuant to Rule 7. The clerk of the district court shall notify the clerk of the court of appeals of the payment of the fees. Upon receipt of such notice the clerk of the court of appeals shall enter the appeal upon the docket. The record shall be transmitted and filed in accordance with Rules 11 and 12(b). A notice of appeal need not be filed.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994.)

Federal Rule of Appellate Procedure 5.1:

RULE 5.1. Appeals by Permission Under 28 U.S.C. § 636(c)(5)

(a) Petition for Leave to Appeal; Answer or Cross Petition. An appeal from a district court judgment, entered after an appeal under 28 U.S.C. § 636(c)(4) to a district judge from a judgment entered upon direction of a magistrate judge in a civil case, may be sought by filing a petition for leave to appeal. An appeal on petition for leave to appeal is not a matter of right, but its allowance is a matter of sound judicial discretion. The petition shall be filed with the clerk of the court of appeals within the time provided by Rule 4(a) for filing a notice of appeal, with proof of service on all parties to the action in the district court. A notice of appeal need not be filed. Within 14 days after service of the petition, a party may file an answer in opposition or a cross-petition.

(b) Content of Petition; Answer. The petition for leave to appeal shall contain a statement of the facts necessary to an understanding of the questions to be presented by the appeal; a statement of those questions and of the relief sought; a statement of the reasons why in the opinion of the petitioner the appeal should be allowed; and a copy of the order, decree or judgment complained of and any opinion or memorandum relating thereto. The petition and answer shall be submitted to a panel of judges of the court of appeals without oral argument unless otherwise ordered.

(c) Form of Papers; Number of Copies. All papers may be typewritten. An original and three copies must be filed unless the court requires the filing of a different number by local rule or by order in a particular case.

(d) Allowance of the Appeal; Fees; Cost Bond; Filing of Record. Within 10 days after the entry of an order granting the appeal, the appellant shall (1) pay to the clerk of the district court the fees established by statute and the docket fee prescribed by the Judicial Conference of the United States and (2) file a bond for costs if required pursuant to Rule 7. The clerk of the district court shall notify the clerk of the court of appeals of the payment of the fees. Upon receipt of such notice, the clerk of the court of appeals shall enter the appeal upon the docket. The record shall be transmitted and filed in accordance with Rules 11 and 12(b).

(As amended Apr. 29, 1994, eff. Dec. 1, 1994.)

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 of 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 pursuant to 28 U.S.C. § 1334 shall be taken in identical fashion as appeals from other judgments, orders or decrees of district courts in civil actions.

(b) Appeal From a Judgment, Order or Decree of a District Court or Bankruptcy Appellate Panel Exercising Appellate Jurisdiction in a Bankruptcy Case.

(1) Applicability of Other Rules. All provisions of these rules are applicable to an appeal to a court of appeals pursuant to 28 U.S.C. § 158(d) from a final judgment, order or decree of a district court or bankruptcy appellate panel exercising appellate jurisdiction pursuant to 28 U.S.C. § 158(a) or (b), except that:

(i) Rules 3.1, 4(a)(4), 4(b), 5.1, 9, 10, 11, 12(b), 13-20, 22-23, and 24(b) are not applicable;

(ii) the reference in Rule 3(c) to "Form 1 in the Appendix of Forms" shall be read as a reference to Form 5; and

(iii) when the appeal is from a bankruptcy appellate panel, the term "district court" as used in any applicable rule, means "appellate panel".

(2) Additional Rules. In addition to the rules made applicable by subsection (b)(1) of this rule, the following rules shall apply to an appeal to a court of appeals pursuant to 28 U.S.C. § 158(d) from a final judgment, order or decree of a district court or of a bankruptcy appellate panel exercising appellate jurisdiction pursuant to 28 U.S.C. § 158(a) or (b):

(i) Effect of a Motion for Rehearing on the Time for Appeal. If any party files a timely motion for rehearing under Bankruptcy Rule 8015 in the district court or the bankruptcy appellate panel, the time for appeal to the court of appeals for all parties runs from the entry of the order disposing of the motion. A notice of appeal filed after announcement or entry of the district court's or bankruptcy appellate panel's judgment, order, or decree, but before disposition of the motion for rehearing, is ineffective until the date of the entry of the order disposing of the motion for rehearing. Appellate review of the order disposing of the motion requires the party, in compliance with Appellate Rules 3(c) and 6(b)(1)(ii), to amend a previously filed notice of appeal. A party intending to challenge an alteration or amendment of the judgment, order, or decree shall file an amended notice of appeal within the time prescribed by Rule 4, excluding 4(a)(4) and 4(b), measured from the entry of the order disposing of the motion. No additional fees will be required for filing the amended notice.

(ii) The Record on Appeal. Within 10 days after filing the notice of appeal, the appellant shall file with the clerk possessed of the record assembled pursuant to Bankruptcy Rule 8006, and serve on the appellee, a statement of the issues to be presented on appeal and a designation of the record to be certified and transmitted to the clerk of the court of appeals. If the appellee deems other parts of the record necessary, the appellee shall, within 10 days after service of the appellant's designation, file with the clerk and serve on the appellant a designation of additional parts to be included. The record, redesignated as provided above, plus the proceedings in the district court or bankruptcy appellate panel and a certified copy of the docket entries prepared by the clerk pursuant to Rule 3(d) shall constitute the record on appeal.

(iii) Transmission of the Record. When the record is complete for purpose of the appeal, the clerk of the district court or the appellate panel, shall transmit it forthwith to the clerk of the court of appeals. The clerk of the district court or of the appellate panel shall number the documents comprising the record and shall transmit with the record a list of documents correspondingly numbered and identified with reasonable definiteness. Documents of unusual bulk or weight, physical exhibits other than documents, and such other parts of the record as the court of appeals may designate by local rule, shall not be transmitted by the clerk unless the clerk is directed to do so by a party or by the clerk of the court of appeals. A party must make advance arrangements with the clerk for the transportation and receipt of exhibits of unusual bulk or weight. All parties shall take any other action necessary to enable the clerk to assemble and transmit the record. The court of appeals may provide by rule or order that a certified copy of the docket entries shall be transmitted in lieu of the redesignated record, subject to the right of any party to request at any time during the pendency of the appeal that the redesignated record be transmitted.

(iv) Filing of the record. Upon receipt of the record, the clerk of the court of appeals shall file it and shall immediately give notice to all parties of the date on which it was filed. Upon receipt of a certified copy of the docket entries transmitted in lieu of the redesignated record pursuant to rule or order, the clerk of the court of appeals shall file it and shall immediately give notice to all parties of the date on which it was filed.

(As amended Apr. 22, 1993, eff. Dec. 1, 1993.)

Federal Rule of Appellate Procedures 7:

RULE 7. Bond for Costs on Appeal in Civil Cases

The district court may require an appellant to file a bond or provide other security in such form and amount as it finds necessary to ensure payment of costs on appeal in a civil case. The provisions of Rule 8(b) apply to a surety upon a bond given pursuant to this rule.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979.)

Federal Rule of Appellate Procedure 8:

RULE 8. Stay or Injunction Pending Appeal

(a) Stay Must Ordinarily Be Sought in the First Instance in District Court; Motion for Stay in Court of Appeals. Application for a stay of the judgment or order of a district court pending appeal, or for approval of a supersedeas bond, or for an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal must ordinarily be made in the first instance in the district court. A motion for such relief may be made to the court of appeals or to a judge thereof, but the motion shall show that application to the district court for the relief sought is not practicable, or that the district court has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given by the district court for its action. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant. Reasonable notice of the motion shall be given to all parties. The motion shall be filed with the clerk and normally will be considered by a panel or division of the court, but in exceptional cases where such procedure would be impracticable due to the requirements of time, the application may be made to and considered by a single judge of the court.

(b) Stay May Be Conditioned Upon Giving of Bond; Proceedings Against Sureties. Relief available in the court of appeals under this rule may be conditioned upon the filing of a bond or other appropriate security in the district court. If security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the district court and irrevocably appoints the clerk of the district court as the surety's agent upon whom any papers affecting the surety's liability on the bond or undertaking may be served. A surety's liability may be enforced on motion in the district court without the necessity of an independent action. The motion and such notice of the motion as the district court prescribes may be served on the clerk of the district court, who shall forthwith mail copies to the sureties if their addresses are known.

(c) Stay in a Criminal Cases. A stay in a criminal case shall be had in accordance with the provisions of Rule 38 of the Federal Rules of Criminal Procedure.

(As amended April 27, 1995, eff. Dec. 1, 1995).

CIRCUIT RULE 8. Motions for Stay and Injunction 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) Appeal from an Order Regarding Release Before Judgment of Conviction. The district court must state in writing, or orally on the record, the reasons for an order regarding release or detention of a defendant in a criminal case. A party appealing from the order, as soon as practicable after filing a notice of appeal with the district court, must file with the court of appeals a copy of the district court's order and its statement of reasons. An appellant who questions the factual basis for the district court's order must file a transcript of any release proceedings in the district court or an explanation of why a transcript has not been obtained. The appeal must be determined promptly. It must be heard, after reasonable notice to the appellee, upon such papers, affidavits, and portions of the record as the parties present or the court may require. Briefs need not be filed unless the court so orders. The court of appeals or a judge thereof may order the release of the defendant pending decision of the appeal.

(b) Review of an Order Regarding Release After Judgment of Conviction. A party entitled to do so may obtain review of a district court's order regarding release that is made after a judgment of conviction by filing a notice of appeal from that order with the district court, or by filing a motion with 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). In addition, the papers filed by the applicant for review must include a copy of the judgment of conviction.

(c) Criteria for Release. The decision regarding release must be made in accordance with applicable provisions of 18 U.S.C. §§ 3142, 3143, and 3145(c).

(As amended Apr. 29, 1994, eff. Dec. 1, 1994)

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.

(As amended Feb. 1, 1992.)

Federal Rule of Appellate Procedure 10:

RULE 10. The Record on Appeal

(a) Composition of the Record on Appeal. The record on appeal consists of the original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the district court.

(b) The Transcript of Proceedings; Duty of Appellant to Order; Notice to Appellee if Partial Transcript is Ordered.

(1) Within 10 days after filing the notice of appeal or entry of an order disposing of the last timely motion outstanding of a type specified in Rule 4(a)(4), whichever is later, the appellant shall order from the reporter a transcript of such parts of the proceedings not already on file as the appellant deems necessary, subject to local rules of the courts of appeals. The order shall be in writing and within the same period a copy shall be filed with the clerk of the district court. If funding is to come from the United States under the Criminal Justice Act, the order shall so state. If no such parts of the proceedings are to be ordered, within the same period the appellant shall file a certificate to that effect.

(2) If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion.

(3) Unless the entire transcript is to be included, the appellant shall, within the 10-day time provided in paragraph (b)(1) of this Rule 10, file a statement of the issues the appellant intends to present on the appeal, and shall serve on the appellee a copy of the order or certificate and of the statement. An appellee who believes that a transcript of other parts of the proceedings is necessary shall, within 10 days after the service of the order or certificate and the statement of the appellant, file and serve on the appellant a designation of additional parts to be included. Unless within 10 days after service of the designation the appellant has ordered such parts, and has so notified the appellee, the appellee may within the following 10 days either order the parts or move in the district court for an order requiring the appellant to do so.

(4) At the time of ordering, a party must make satisfactory arrangements with the reporter for payment of the cost of the transcript.

(c) Statement of the Evidence or Proceedings When No Report Was Made or When the Transcript is Unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments thereto within 10 days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the district court for settlement and approval and as settled and approved shall be included by the clerk of the district court in the record on appeal.

(d) Agreed Statement as the Record on Appeal. In lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the district court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such additions as the court may consider necessary fully to present the issues raised by the appeal, shall be approved by the district court and shall then be certified to the court of appeals as the record on appeal and transmitted thereto by the clerk of the district court within the time provided by Rule 11. Copies of the agreed statement may be filed as the appendix required by Rule 30.

(e) Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the district court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the district court either before or after the record is transmitted to the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the court of appeals.

(As amended Apr. 27, 1995, eff. Dec. 1, 1995.)

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.

(As amended Jan. 1, 1996.)

Federal Rule of Appellate Procedure 11:

RULE 11. Transmission of the Record

(a) Duty of Appellant. After filing the notice of appeal the appellant, or in the event that more than one appeal is taken, each appellant, shall comply with the provisions of Rule 10(b) and shall take any other action necessary to enable the clerk to assemble and transmit the record. A single record shall be transmitted.

(b) Duty of Reporter to Prepare and File Transcript; Notice to Court of Appeals; Duty of Clerk to Transmit the Record. Upon receipt of an order for a transcript, the reporter shall acknowledge at the foot of the order the fact that the reporter has received it and the date on which the reporter expects to have the transcript completed and shall transmit the order, so endorsed, to the clerk of the court of appeals. If the transcript cannot be completed within 30 days of receipt of the order the reporter shall request an extension of time from the clerk of the court of appeals and the action of the clerk of the court of appeals shall be entered on the docket and the parties notified. In the event of the failure of the reporter to file the transcript within the time allowed, the clerk of the court of appeals shall notify the district judge and take such other steps as may be directed by the court of appeals. Upon completion of the transcript the reporter shall file it with the clerk of the district court and shall notify the clerk of the court of appeals that the reporter has done so.

When the record is complete for purposes of the appeal, the clerk of the district court shall transmit it forthwith to the clerk of the court of appeals. The clerk of the district court shall number the documents comprising the record and shall transmit with the record a list of documents correspondingly numbered and identified with reasonable definiteness. Documents of unusual bulk or weight, physical exhibits other than documents, and such other parts of the record as the court of appeals may designate by local rule, shall not be transmitted by the clerk unless the clerk is directed to do so by a party or by the clerk of the court of appeals. A party must make advance arrangements with the clerks for the transportation and receipt of exhibits of unusual bulk or weight.

(c) Temporary Retention of Record in District Court for Use in Preparing Appellate Papers. Notwithstanding the provisions of (a) and (b) of this Rule 11, the parties may stipulate, or the district court on motion of any party may order, that the clerk of the district court shall temporarily retain the record for use by the parties in preparing appellate papers. In that event the clerk of the district court shall certify to the clerk of the court of appeals that the record, including the transcript or parts thereof designated for inclusion and all necessary exhibits, is complete for purposes of the appeal. Upon receipt of the brief of the appellee, or at such earlier time as the parties may agree or the court may order, the appellant shall request the clerk of the district court to transmit the record.

(d) [Abrogated.]

(e) Retention of the Record in the District Court by Order of Court. The court of appeals may provide by rule or order that a certified copy of the docket entries shall be transmitted in lieu of the entire record, subject to the right of any party to request at any time during the pendency of the appeal that designated parts of the record be transmitted.

If the record or any part thereof is required in the district court for use there pending the appeal, the district court may make an order to that effect, and the clerk of the district court shall retain the record or parts thereof subject to the request of the court of appeals, and shall transmit a copy of the order and of the docket entries together with such parts of the original record as the district court shall allow and copies of such parts as the parties may designate.

(f) Stipulation of Parties that Parts of the Record be Retained in the District Court. The parties may agree by written stipulation filed in the district court that designated parts of the record shall be retained in the district court unless thereafter the court of appeals shall order or any party shall request their transmittal. The parts thus designated shall nevertheless be a part of the record on appeal for all purposes.

(g) Record for Preliminary Hearing in the Court of Appeals. If prior to the time the record is transmitted a party desires to make in the court of appeals a motion for dismissal, for release, for a stay pending appeal, for additional security on the bond on appeal or on a supersedeas bond, or for any intermediate order, the clerk of the district court at the request of any party shall transmit to the court of appeals such parts of the original record as any party shall designate.

(As amended March 10, 1986, eff. July 1, 1986).

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.

(c) Extension of Time.

(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.

(As amended Feb. 1, 1992.)

Federal Rule of Appellate Procedure 12:

RULE 12. Docketing the Appeal; Filing a Representation Statement; Filing the Record

(a) Docketing the Appeal. Upon receipt of the copy of the notice of appeal and of the docket entries, transmitted by the clerk of the district court pursuant to Rule 3(d), the clerk of the court of appeals shall thereupon enter the appeal upon the docket. An appeal shall be docketed under the title given to the action in the district court, with the appellant identified as such, but if such title does not contain the name of the appellant, the appellant's name, identified as appellant, shall be added to the title.

(b) Filing a Representation Statement. Within 10 days after filing a notice of appeal, unless another time is designated by the court of appeals, the attorney who filed the notice of appeal shall file with the clerk of the court of appeals a statement naming each party represented on appeal by that attorney.

(c) Filing the Record, Partial Record, or Certificate. Upon receipt of the record transmitted pursuant to Rule 11(b), or the partial record transmitted pursuant to Rule 11(e), (f), or (g), or the clerk's certificate under Rule 11(c), the clerk of the court of appeals shall file it and shall immediately give notice to all parties of the date on which it was filed.

(As amended Apr. 22, 1993, eff. Dec. 1, 1993.)

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." .

(As amended Dec. 1, 1997.)

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. Review of a decision of the United States Tax Court must be obtained by filing a notice of appeal with the clerk of the Tax Court within 90 days after entry of the Tax Court's decision. At the time of filing the appellant must furnish the clerk with sufficient copies of the notice of appeal to enable the clerk to comply promptly with the requirements of Rule 3(d). If a timely notice of appeal is filed by one party, any other party may take an appeal by filing a notice of appeal within 120 days after entry of the Tax Court's decision.

The running of the time for appeal is terminated as to all parties by a timely motion to vacate or revise a decision made pursuant to the Rules of Practice of the Tax Court. The full time for appeal commences to run and is to be computed from the entry of an order disposing of such motion, or from the entry of decision, whichever is later.

(b) Notice of Appeal--How Filed. The notice of appeal may be filed by deposit in the office of the clerk of the Tax Court in the District of Columbia or by mail addressed to the clerk. If a notice is delivered to the clerk by mail and is received after expiration of the last day allowed for filing, the postmark date shall be deemed to be the date of delivery, subject to the provisions of §7502 of the Internal Revenue Code of 1954, as amended, and the regulations promulgated pursuant thereto.

(c) Content of the Notice of Appeal; Service of the Notice; Effect of Filing and Service of the Notice. The content of the notice of appeal, the manner of its service, and the effect of the filing of the notice and of its service shall be as prescribed by Rule 3. Form 2 in the Appendix of Forms is a suggested form of the notice of appeal.

(d) The Record on Appeal; Transmission of the Record; Filing of the Record. The provisions of Rules 10, 11, and 12 respecting the record and the time and manner of its transmission and filing and the docketing of the appeal in the court of appeals in cases on appeal from the district courts shall govern in cases on appeal from the Tax Court. Each reference in those rules and in Rule 3 to the district court and to the clerk of the district court shall be read as a reference to the Tax Court and to the clerk of the Tax Court respectively. If appeals are taken from a decision of the Tax Court to more than one court of appeals, the original record shall be transmitted to the court of appeals named in the first notice of appeal filed. Provision for the record in any other appeal shall be made upon appropriate application by the appellant to the court of appeals to which such other appeal is taken.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994.)

Federal Rule of Appellate Procedure 14:

RULE 14. Applicability of Other Rules to Review of Decisions of the Tax Court

All provisions of these rules are applicable to review of a decision of the Tax Court, except that Rules 4-9, Rules 15-20, and Rules 22 and 23 are not applicable.

Federal Rule of Appellate Procedure 15:

RULE 15. Review or Enforcement of Agency Orders--How Obtained; Intervention

(a) Petition for Review of Order; Joint Petition. Review of an order of an administrative agency, board, commission, or officer (hereinafter, the term "agency" will include agency, board, commission, or officer) must be obtained by filing with the clerk of a court of appeals that is authorized to review such order, within the time prescribed by law, a petition to enjoin, set aside, suspend, modify, or otherwise review, or a notice of appeal, whichever form is indicated by the applicable statute (hereinafter, the term "petition for review" will include a petition to enjoin, set aside, suspend, modify, or otherwise review, or a notice of appeal). The petition must name each party seeking review either in the caption or in the body of the petition. Use of terms such as "et al.," or "petitioners" or "respondents" is not effective to name the parties. The petition also must designate the respondent and the order or part thereof to be reviewed. Form 3 in the Appendix of Forms is a suggested form of a petition for review. In each case the agency must be named respondent. The United States will also be a respondent if required by statute, even though not designated in the petition. If two or more persons are entitled to petition the same court for review of the same order and their interests are such as to make joinder practicable, they may file a joint petition for review and may thereafter proceed as a single petitioner.

(b) Application for Enforcement of Order; Answer; Default; Cross-Application for Enforcement. An application for enforcement of an order of an agency shall be filed with the clerk of a court of appeals which is authorized to enforce the order. The application shall contain a concise statement of the proceedings in which the order was entered, the facts upon which venue is based, and the relief prayed. Within 20 days after the application is filed, the respondent shall serve on the petitioner and file with the clerk an answer to the application. If the respondent fails to file an answer within such time, judgment will be awarded for the relief prayed. If a petition is filed for review of an order which the court has jurisdiction to enforce, the respondent may file a cross-application for enforcement.

(c) Service of Petition or Application. A copy of a petition for review or of an application or cross-application for enforcement of an order shall be served by the clerk of the court of appeals on each respondent in the manner prescribed by Rule 3(d), unless a different manner of service is prescribed by an applicable statute. At the time of filing, the petitioner shall furnish the clerk with a copy of the petition or application for each respondent. At or before the time of filing a petition for review, the petitioner shall serve a copy thereof on all parties who shall have been admitted to participate in the proceedings before the agency other than respondents to be served by the clerk, and shall file with the clerk a list of those so served.

(d) Intervention. Unless an applicable statute provides a different method of intervention, a person who desires to intervene in a proceeding under this rule shall serve upon all parties to the proceeding and file with the clerk of the court of appeals a motion for leave to intervene. The motion shall contain a concise statement of the interest of the moving party and the grounds upon which intervention is sought. A motion for leave to intervene or other notice of intervention authorized by an applicable statute shall be filed within 30 days of the date on which the petition for review is filed.

(e) Payment of Fees. When filing any separate or joint petition for review in a court of appeals, the petitioner must pay the clerk of the court of appeals the fees established by statute, and also the docket fee prescribed by the Judicial Conference of the United States.

(As amended Apr. 22, 1993, eff. Dec. 1, 1993.)

Federal Rule of Appellate Procedure 15.1:

RULE 15.1. Briefs and Oral Argument in National Labor Relations

Board Proceedings

Each party adverse to the National Labor Relations Board in an enforcement or a review proceeding shall proceed first on briefing and at oral argument unless the court orders otherwise.

(Added March 10, 1986, eff. July 1, 1986.)

Federal Rule of Appellate Procedure 16:

RULE 16. The Record on Review or Enforcement

(a) Composition of the Record. The order sought to be reviewed or enforced, the findings or report on which it is based, and the pleadings, evidence and proceedings before the agency shall constitute the record on review in proceedings to review or enforce the order of an agency.

(b) Omissions From or Misstatements in the Record. If anything material to any party is omitted from the record or is misstated therein, the parties may at any time supply the omission or correct the misstatement by stipulation, or the court may at any time direct that the omission or misstatement be corrected and, if necessary, that a supplemental record be prepared and filed.

Federal Rule of Appellate Procedure 17:

RULE 17. Filing of the Record

(a) Agency to File; Time for Filing; Notice of Filing. The agency shall file the record with the clerk of the court of appeals within 40 days after service upon it of the petition for review unless a different time is provided by the statute authorizing review. In enforcement proceedings the agency shall file the record within 40 days after filing an application for enforcement, but the record need not be filed unless the respondent has filed an answer contesting enforcement of the order, or unless the court otherwise orders. The court may shorten or extend the time above prescribed. The clerk shall give notice to all parties of the date on which the record is filed.

(b) Filing--What Constitutes. The agency may file the entire record or such parts thereof as the parties may designate by stipulation filed with the agency. The original papers in the agency proceeding or certified copies thereof may be filed. Instead of filing the record or designated parts thereof, the agency may file a certified list of all documents, transcripts of testimony, exhibits and other material comprising the record, or a list of such parts thereof as the parties may designate, adequately describing each, and the filing of the certified list shall constitute filing of the record. The parties may stipulate that neither the record nor a certified list be filed with the court. The stipulation shall be filed with the clerk of the court of appeals and the date of its filing shall be deemed the date on which the record is filed. If a certified list is filed, or if the parties designate only parts of the record for filing or stipulate that neither the record nor a certified list be filed, the agency shall retain the record or parts thereof. Upon request of the court or the request of a party, the record or any part thereof thus retained shall be transmitted to the court notwithstanding any prior stipulation. All parts of the record retained by the agency shall be a part of the record on review for all purposes.

Federal Rule of Appellate Procedure 18:

RULE 18. Stay Pending Review

Application for a stay of a decision or order of an agency pending direct review in the court of appeals shall ordinarily be made in the first instance to the agency. A motion for such relief may be made to the court of appeals or to a judge thereof, but the motion shall show that application to the agency for the relief sought is not practicable, or that application has been made to the agency and denied, with the reasons given by it for denial, or that the action of the agency did not afford the relief which the applicant had requested. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant to the relief sought. Reasonable notice of the motion shall be given to all parties to the proceeding in the court of appeals. The court may condition relief under this rule upon the filing of a bond or other appropriate security. The motion shall be filed with the clerk and normally will be considered by a panel or division of the court, but in exceptional cases where such procedure would be impracticable due to the requirements of time, the application may be made to and considered by a single judge of the court.

Federal Rule of Appellate Procedure 19:

RULE 19. Settlement of Judgments Enforcing Orders

When an opinion of the court is filed directing the entry of a judgment enforcing in part the order of an agency, the agency shall within 14 days thereafter serve upon the respondent and file with the clerk a proposed judgment in conformity with the opinion. If the respondent objects to the proposed judgment as not in conformity with the opinion, the respondent shall within 7 days thereafter serve upon the agency and file with the clerk a proposed judgment which the respondent deems to be in conformity with the opinion. The court will thereupon settle the judgment and direct its entry without further hearing or argument.

(As amended March 10, 1986, eff. July 1, 1986.)

Federal Rule of Appellate Procedure 20:

RULE 20. Applicability of Other Rules to Review or Enforcement of

Agency Orders

All provisions of these rules are applicable to review or enforcement of orders of agencies, except that Rules 3-14 and Rules 22 and 23 are not applicable. As used in any applicable rule, the term "appellant" includes a petitioner and the term "appellee" includes a respondent in proceedings to review or enforce agency orders.

Federal Rule of Appellate Procedure 21:

RULE 21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs

(a) Mandamus or Prohibition to a Court: Petition, Filing, Service and Docketing.

(1) A party petitioning for a writ of mandamus or of prohibition directed to a court shall file a petition with the circuit clerk with proof of service on all parties to the proceeding in the trial court. The party shall 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.

(2)(A) The petition shall be titled "In re [name of petitioner]."

(B) The petition shall state:

(i) the relief sought;

(ii) the issues presented;

(iii) the facts necessary to understand the issues presented by the petition; and

(iv) the reasons why the writ should issue.

(C) The petition shall include copies of any order or opinion or parts of the record that may be essential to understand the matters set forth in the petition.

(3) When the clerk receives the prescribed docket fee, the clerk shall docket the petition and submit it to the court.

(b) Denial; Order Directing Answer; Briefs; Precedence.

(1) The court may deny the petition without an answer. Otherwise, it shall order the respondents, if any, to answer within a fixed time.

(2) The clerk shall serve the order to respond on all persons directed to respond.

(3) Two or more respondents may answer jointly.

(4) The court of appeals may invite or order the trial court judge to respond or may invite an amicus curiae to do so. The trial court judge may request permission to respond but may not respond unless invited or ordered to do so by the court of appeals.

(5) If briefing or oral argument is required, the clerk shall advise the parties, and when appropriate, the trial court judge or amicus curiae.

(6) The proceeding shall be given preference over ordinary civil cases.

(7) The circuit clerk shall send a copy of the final disposition to the trial court judge.

(c) Other Extraordinary Writs. Application for extraordinary writs other than those provided for in subdivisions (a) and (b) of this rule shall be made by filing a petition with the circuit clerk with proof of service on the respondents. Proceedings on such application shall conform, so far as is practicable, to the procedure prescribed in subdivisions (a) and (b) of this rule.

(d) Form of Papers; Number of Copies. All papers may be typewritten. An original and three copies must be filed unless the court requires the filing of a different number by local rule or by order in a particular case.

(As amended Apr. 23, 1996, eff. Dec. 1, 1996.)

Federal Rule of Appellate Procedure 22:

RULE 22. Habeas Corpus and Section 2255 Proceedings

(a) Application for the Original Writ. An application for a writ of habeas corpus shall be made to the appropriate district court. If application is made to a circuit judge, the application shall be transferred to the appropriate district court. If an application is made to or transferred to the district court and denied, renewal of the application before a circuit judge shall not be permitted. The applicant may, pursuant to section 2253 of title 28, United States Code, appeal to the appropriate court of appeals from the order of the district court denying the writ.

(b) Certificate of Appealability. In a habeas corpus proceeding in which the detention complained of arises out of process issued by a state court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of appealability pursuant to section 2253(c) of title 28, United States Code. If an appeal is taken by the applicant, the district judge who rendered the judgment shall either issue a certificate of appealability or state the reasons why such a certificate should not issue. The certificate or the statement shall be forwarded to the court of appeals with the notice of appeal and the file of the proceedings in the district court. If the district judge has denied the certificate, the applicant for the writ may then request issuance of the certificate by a circuit judge. If such a request is addressed to the court of appeals, it shall be deemed addressed to the judges thereof and shall be considered by a circuit judge or judges as the court deems appropriate. If no express request for a certificate is filed, the notice of appeal shall be deemed to constitute a request addressed to the judges of the court of appeals. If an appeal is taken by a state or its representative, a certificate of appealability is not required.

(As amended Pub. L. 104-132, Title I, § 103, April 24, 1996, 110 Stat. 1218.)

CIRCUIT RULE 22. Death Penalty Cases.

(a) Operation and Scope.

(1) These rule applies to all cases involving persons under sentence of capital punishment.

(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 substituted.

(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 petitioner 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. §2261.

(4) The panel to which a case is assigned may make changes in procedure and scheduling in any case when justice so requires.

(b) Notice of Appeals and Required Documents.

(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 currently available.

(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.

(c) Briefs.

(1) Unless the court sets another schedule, the following time limitations apply.

(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 file and serve 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 reply brief.

(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.

(d) Submission and Oral Argument.

(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. 34(a).

(2) Oral argument will be held expeditiously after the filing of the reply brief.

(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.

(e) Opinion or Order.

(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 filed.

(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 Court.

(f) Panel or En Banc Rehearing.

(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 petition.

(2) If the court decides to rehear an appeal en banc, the appeal will be scheduled for oral argument expeditiously and decided within the time allowed by 28 U.S.C. §2266(c).

(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.

(h) Stay of Execution.

(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 Fed. R. Crim. P. 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

(v) the district court decision on the motion to stay execution or vacate stay of execution.

If any required document cannot be filed, the movant shall state the reason for the omission.

(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.

(5) If the attorney for the government has no objection to the motion for stay, the court shall enter an order staying the execution.

(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 emergency representative.

(7) An order of the panel granting or denying a motion to issue or vacate a stay of execution shall set forth the reasons for its decision.

(i) Clerk's 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.

(As amended Jan. 1, 1997.)

Circuit Rule 22.1. Certificates of Appealability

(a) The procedures of Fed. R. App. P. 22(b) apply to requests for certificates of appealability in actions under 28 U.S.C. §2255.

(b) Every request for a certificate of appealability must be made initially to a judge of the district court. If the district judge does not issue a certificate, the person requesting this court to issue one must include, with the docketing statement under Circuit Rule 3(c), a copy of the district court's order denying the request, together with a statement of reasons why this court should issue the certificate. An appellant who does not articulate reasons why a certificate of appealability should issue does not forfeit his opportunity to appeal. The court treats the notice of appeal as implying a request for a certificate of appealability. When the time for filing the statement of reasons has passed, the papers will be distributed to a panel of the court for decision.

(c) A district judge who concludes that the amendments to 28 U.S.C. §2253(c) prevent that court from acting on the request for a certificate of appealability should nonetheless state how the judge would have ruled, were the court authorized to take dispositive action.

(Adopted May 30, 1996.)

Circuit Rule 22.2. Successive Petitions for Collateral Review

(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 order:

(1) 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:

(A) That the claim depends on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court; or

(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 factfinder would have found the applicant guilty of the crime, had there been no constitutional error.

(2) 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 review.

(3) Copies of all opinions rendered by any state or federal court previously rendered in the criminal prosecution, any appeal, and any collateral attack.

(4) Copies of all prior petitions or motions for collateral review.

(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. 4(c).

(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.

(d) The applicant may file a reply memorandum within 10 days of the response, after which the request will be submitted to a panel of the court for decision.

(e) An applicant's failure to supply the information and documents required by this rule will lead the court to dismiss the application, but without prejudice to its renewal in proper form.

(Adopted May 30, 1996.)

Federal Rule of Appellate Procedure 23:

RULE 23. Custody of Prisoners in Habeas Corpus Proceedings

(a) Transfer of Custody Pending Review. Pending review of a decision in a habeas corpus proceeding commenced before a court, justice or judge of the United States for the release of a prisoner, a person having custody of the prisoner shall not transfer custody to another unless such transfer is directed in accordance with the provisions of this rule. Upon application of a custodian showing a need therefor, the court, justice or judge rendering the decision may make an order authorizing transfer and providing for the substitution of the successor custodian as a party.

(b) Detention or Release of Prisoner Pending Review of Decision Failing to Release. Pending review of a decision failing or refusing to release a prisoner in such a proceeding, the prisoner may be detained in the custody from which release is sought, or in other appropriate custody, or may be enlarged upon the prisoner's recognizance, with or without surety, as may appear fitting to the court or justice or judge rendering the decision, or to the court of appeals or to the Supreme Court, or to a judge or justice of either court.

(c) Release of Prisoner Pending Review of Decision Ordering Release. Pending review of a decision ordering the release of a prisoner in such a proceeding, the prisoner shall be enlarged upon the prisoner's recognizance, with or without surety, unless the court or justice or judge rendering the decision, or the court of appeals or the Supreme Court, or a judge or justice of either court shall otherwise order.

(d) Modification of Initial Order Respecting Custody. An initial order respecting the custody or enlargement of the prisoner and any recognizance or surety taken, shall govern review in the court of appeals and in the Supreme Court unless for special reasons shown to the court of appeals or to the Supreme Court, or to a judge or justice of either court, the order shall be modified, or an independent order respecting custody, enlargement or surety shall be made.

(As amended March 10, 1986, eff. July 1, 1986.)

Federal Rule of Appellate Procedure 24:

RULE 24. Proceedings in Forma Pauperis

(a) Leave to Proceed on Appeal in Forma Pauperis from District Court to Court of Appeals. A party to an action in a district court who desires to proceed on appeal in forma pauperis shall file in the district court a motion for leave so to proceed, together with an affidavit, showing, in the detail prescribed by Form 4 of the Appendix of Forms, the party's inability to pay fees and costs or to give security therefor, the party's belief that that party is entitled to redress, and a statement of the issues which that party intends to present on appeal. If the motion is granted, the party may proceed without further application to the court of appeals and without prepayment of fees or costs in either court or the giving of security therefor. If the motion is denied, the district court shall state in writing the reasons for the denial.

Notwithstanding the provisions of the preceding paragraph, a party who has been permitted to proceed in an action in the district court in forma pauperis, or who has been permitted to proceed there as one who is financially unable to obtain adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization unless, before or after the notice of appeal is filed, the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed, in which event the district court shall state in writing the reasons for such certification or finding.

If a motion for leave to proceed on appeal in forma pauperis is denied by the district court, or if the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled to proceed in forma pauperis, the clerk shall forthwith serve notice of such action. A motion for leave so to proceed may be filed in the court of appeals within 30 days after service of notice of the action of the district court. The motion shall be accompanied by a copy of the affidavit filed in the district court, or by the affidavit prescribed by the first paragraph of this subdivision if no affidavit has been filed in the district court, and by a copy of the statement of reasons given by the district court for its action.

(b) Leave to Proceed on Appeal or Review in Forma Pauperis in Administrative Agency Proceedings. A party to a proceeding before an administrative agency, board, commission or officer (including, for the purpose of this rule, the United States Tax Court) who desires to proceed on appeal or review in a court of appeals in forma pauperis, when such appeal or review may be had directly in a court of appeals, shall file in the court of appeals a motion for leave so to proceed, together with the affidavit prescribed by the first paragraph of (a) of this Rule 24.

(c) Form of Briefs, Appendices and Other Papers. Parties allowed to proceed in forma pauperis may file briefs, appendices and other papers in typewritten form, and may request that the appeal be heard on the original record without the necessity of reproducing parts thereof in any form.

(As amended March 10, 1986, eff. July 1, 1986.)

Federal Rules of Appellate Procedure 25:

RULE 25. Filing, Proof of Filing, Service, and Proof of Service

(a) Filing.

(1) Filing with the Clerk. A paper required or permitted to be filed in a court of appeals shall be filed with the clerk.

(2) Filing: Method and Timeliness.

(A) In general. Filing may be accomplished by mail addressed to the clerk, but filing is not timely unless the clerk receives the papers within the time fixed for filing.

(B) A brief or appendix. A brief and appendix is timely filed, however, if on or before the last day for filing, it is:

(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 the clerk for delivery within three calendar days by a third party commercial carrier.

(C) Inmate filing. A paper filed by an inmate confined in an institution is timely filed if deposited in the institution's internal mail system on or before the last day for filing. Timely filing of papers by an inmate confined in an institution may be shown by a notarized statement or declaration (in compliance with 28 U.S.C. § 1746) setting forth the date of deposit and stating that first-class postage has been prepaid.

(D) 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 shall note the filing date on the motion and give it to the clerk.

(4) Clerk's refusal of Documents. The clerk shall 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 rules or practices.

(b) Service of All Papers Required. Copies of all papers filed by any party and not required by these rules to be served by the clerk shall, at or before the time for filing, be served by a party or person acting for that party on all other parties to the appeal or review. Service on a party represented by counsel shall be made on counsel.

(c) Manner of Service. Service may be personal, by mail, or by third party commercial carrier for delivery within 3 calendar days. When reasonable considering such factors as the immediacy of the relief sought, distance and cost, service on a party shall be by a manner at least as expeditious as the manner used to file the paper with the court. Personal service includes delivery of the copy to a responsible person at the office of counsel. Service by mail or commercial carrier is complete on mailing or delivery to the carrier.

(d) Proof of Service; Filing. A papers presented for filing shall contain an acknowledgment of service by the person served or proof of service in the form of a statement of the date and manner of service, of the names of the persons served, and of the addresses to which the papers were mailed or at which they were delivered, certified by the person who made service. Proof of service may appear on or be affixed to the papers filed. When a brief or appendix is filed by mailing or dispatch in accordance with Rule 25(a)(2)(B), the proof of service shall also state the date and manner by which the document was mailed or dispatched to the clerk.

(e) Number of Copies. Whenever these rules require the filing or furnishing of a number of copies, a court may require a different number by local rule or by order in a particular case.

(As amended Apr. 23, 1996, eff. Dec. 1, 1996.)

Federal Rules of Appellate Procedure 26:

RULE 26. Computation and Extension of Time

(a) Computation of Time. In computing any period of time prescribed or allowed by these rules, by an order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule "legal holiday" includes New Year's Day, Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States. It shall also include a day appointed as a holiday by the state wherein the district court which rendered the judgment or order which is or may be appealed from is situated, or by the state wherein the principal office of the clerk of the court of appeals in which the appeal is pending is located.

(b) Enlargement of Time. The court for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but the court may not enlarge the time for filing a notice of appeal, a petition for allowance, or a petition for permission to appeal. Nor may the court enlarge the time prescribed by law for filing a petition to enjoin, set aside, suspend, modify, enforce or otherwise review, or a notice of appeal from, an order of an administrative agency, board, commission or officer of the United States, except as specifically authorized by law.

(c) Additional Time After Service. When a party is required or permitted to act within a prescribed period after service of a paper upon 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.

(As amended Apr. 23, 1996, eff. Dec. 1, 1996.)

CIRCUIT RULE 26. Extensions of Time to File Briefs

Extensions of 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 sufficient.

Grounds that may merit consideration are:

(1) Engagement 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.

(3) Extreme hardship to counsel will result unless an extension is granted, in which event the nature of the hardship must be set forth in detail.

The motion 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.

Federal Rule of Appellate Procedure 26.1:

RULE 26.1 Corporate Disclosure Statement

Any non-governmental corporate party to a civil or bankruptcy case or agency review proceeding and any non-governmental corporate defendant in a criminal case must file a statement identifying all parent companies, subsidiaries (except wholly-owned subsidiaries), and affiliates that have issued shares to the public. The statement must be filed with a party's principal brief or upon filing a motion, response, petition, or answer in the court of appeals, whichever first occurs, unless a local rule requires earlier filing. Whenever the statement is filed before a party's principal brief, an original and three copies of the statement must be filed unless the court requires the filing of a different number by local rule or by order in a particular case. The statement must be included in front of the table of contents in a party's principal brief even if the statement was previously filed.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994.)

CIRCUIT RULE 26.1. Certificate of Interest

To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a governmental party, must furnish a certificate of interest stating the following information:

(1) The full name of every party or amicus the attorney represents in the case.

(2) If such a party or amicus is a corporation:

(i) its parent corporation, if any; and

(ii) a list of stockholders which are publicly held companies owning 10% or more of the stock in the party or amicus.

(3) The names of all law firms whose partners or associates have appeared for the party in the case or are expected to appear for the party in this court.

The certificate shall be filed with the appearance or upon the filing of a motion in this court, whichever occurs first. The attorney furnishing the certificate must file an amended certificate to reflect any material changes in the required information. The text of the certificate (i.e., caption omitted) shall also be included in front of the table of contents of the party's main brief. The certificate shall be in the following form:

The undersigned, counsel of record for [John Doe, plaintiff-appellant], furnishes the following list in compliance with Circuit Rule 26.1:

Attorney's Signature

Date

(Added Feb. 1, 1992.)

Federal Rule of Appellate Procedure 27:

RULE 27. Motions

(a) Content of Motions; Response. Unless another form is elsewhere prescribed by these rules, an application for an order or other relief shall be made by filing a motion for such order or relief with proof of service on all other parties. The motion shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion, shall state with particularity the grounds on which it is based, and shall set forth the order or relief sought. If a motion is supported by briefs, affidavits or other papers, they shall be served and filed with the motion. Any party may file a response in opposition to a motion other than one for a procedural order [for which see subdivision (b)] within 7 days after service of the motion, but motions authorized by Rules 8, 9, 18 and 41 may be acted upon after reasonable notice, and the court may shorten or extend the time for responding to any motion.

(b) Determination of Motions for Procedural Orders. Notwithstanding the provisions of (a) of this Rule 27 as to motions generally, motions for procedural orders, including any motion under Rule 26(b), may be acted upon at any time, without awaiting a response thereto, and pursuant to rule or order of the court, motions for specified types of procedural orders may be disposed of by the clerk. Any party adversely affected by such action may by application to the court request consideration, vacation or modification of such action.

(c) Power of a Single Judge to Entertain Motions. In addition to the authority expressly conferred by these rules or by law, a single judge of a court of appeals may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion, except that a single judge may not dismiss or otherwise determine an appeal or other proceeding, and except that a court of appeals may provide by order or rule that any motion or class of motions must be acted upon by the court. The action of a single judge may be reviewed by the court.

(d) Form of Papers; Number of Copies. All papers relating to a motion may be typewritten. An original and three copies must be filed unless the court requires the filing of a different number by local rule or by order in a particular case.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994.)

CIRCUIT RULE 27. Oral Argument on Motions

Oral argument will not be heard on any motion unless ordered by the court.

Federal Rule of Appellate Procedure 28:

RULE 28. Briefs

(a) Appellant's Brief. The brief of the appellant must contain, under appropriate headings and in the order here indicated:

(1) A table of contents, with page references, and a table of cases (alphabetically arranged), statutes and other authorities cited, with references to the pages of the brief where they are cited.

(2) A statement of subject matter and appellate jurisdiction. The statement shall include: (i) a statement of the basis for subject matter jurisdiction in the district court or agency, with citation to applicable statutory provisions and with reference to the relevant facts to establish such jurisdiction; (ii) a statement of the basis for jurisdiction in the court of appeals, with citation to applicable statutory provisions and with reference to the relevant facts to establish such jurisdiction; the statement shall include relevant filing dates establishing the timeliness of the appeal or petition for review and (a) shall state that the appeal is from a final order or a final judgment that disposes of all claims with respect to all parties or, if not, (b) shall include information establishing that the court of appeals has jurisdiction on some other basis.

(3) A statement of the issues presented for review.

(4) A statement of the case. The statement shall first indicate briefly the nature of the case, the course of proceedings, and its disposition in the court below. There shall follow a statement of the facts relevant to the issues presented for review, with appropriate references to the record (see subdivision (e)).

(5) A Summary of Argument. The summary should contain a succinct, clear, and accurate statement of the arguments made in the body of the brief. It should not be a mere repetition of the argument headings.

(6) An argument. The argument must contain the contentions of the appellant on the issues presented, and the reasons therefor, with citations to the authorities, statutes, and parts of the record relied on. The argument must also include for each issue a concise statement of the applicable standard of review; this statement may appear in the discussion of each issue or under a separate heading placed before the discussion of the issue.

(7) A short conclusion stating the precise relief sought.

(b) Appellee's Brief. The brief of the appellee must conform to the requirements of paragraphs (a)(1)-(6), except that none of the following need appear unless the appellee is dissatisfied with the statement of the appellant:

(1) the jurisdictional statement; (2) the statement of issues; (3) the statement of the case; (4) the statement of the standard of review.

(c) Reply Brief. The appellant may file a brief in reply to the brief of the appellee, and if the appellee has cross-appealed the appellee may file a brief in reply to the response of the appellant to the issues presented by the cross appeal. No further briefs may be filed except with leave of court. All reply briefs shall contain a table of contents, with page references, and a table of cases (alphabetically arranged), statutes and other authorities cited, with references to the pages of the reply brief where they are cited.

(d) References in Briefs to Parties. Counsel will be expected in their briefs and oral arguments to keep to a minimum references to parties by such designations as "appellant" and "appellee". It promotes clarity to use the designations used in the lower court or in the agency proceedings, or the actual names of parties, or descriptive terms such as "the employee," "the injured person," "the taxpayer," "the ship," "the stevedore," etc.

(e) References in Briefs to the Record. References in the briefs to parts of the record reproduced in the appendix filed with the brief of the appellant (see Rule 30(a)) shall be to the pages of the appendix at which those parts appear. If the appendix is prepared after the briefs are filed, references in the briefs to the record shall be made by one of the methods allowed by Rule 30(c). If the record is reproduced in accordance with the provisions of Rule 30(f), or if references are made in the briefs to parts of the record not reproduced, the references shall be to the pages of the parts of the record involved; e.g., Answer p. 7, Motion for Judgment p. 2, Transcript p. 231. Intelligible abbreviations may be used. If reference is made to evidence the admissibility of which is in controversy, reference shall be made to the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected.

(f) Reproduction of Statutes, Rules, Regulations, Etc. If determination of the issues presented requires the study of statutes, rules, regulations, etc. or relevant parts thereof, they shall be reproduced in the brief or in an addendum at the end, or they may be supplied to the court in pamphlet form.

(g) Length of Briefs. Except by permission of the court, or as specified by local rule of the court of appeals, principal briefs must not exceed 50 pages, and reply briefs must not exceed 25 pages, exclusive of pages containing the corporate disclosure statement, table of contents, tables of citations, proof of service, and any addendum containing statutes, rules, regulations, etc.

(h) Briefs in Cases Involving Cross Appeals. If a cross appeal is filed, the party who first files a notice of appeal, or in the event that the notices are filed on the same day, the plaintiff in the proceeding below shall be deemed the appellant for the purposes of this rule and Rules 30 and 31, unless the parties otherwise agree or the court otherwise orders. The brief of the appellee shall conform to the requirements of subdivision (a)(1)-(6) of this rule with respect to the appellee's cross appeal as well as respond to the brief of the appellant except that a statement of the case need not be made unless the appellee is dissatisfied with the statement of the appellant.

(i) Briefs in Cases Involving Multiple Appellants or Appellees. In cases involving more than one appellant or appellee, including cases consolidated for purposes of the appeal, any number of either may join in a single brief, and any appellant or appellee may adopt by reference any part of the brief of another. Parties may similarly join in reply briefs.

(j) Citation of Supplemental Authorities. When pertinent and significant authorities come to the attention of a party after the party's brief has been filed or after oral argument but before decision, a party may promptly advise the clerk of the court, by letter, with a copy to all counsel, setting forth the citations. There shall be a reference either to the page of the brief or to a point argued orally to which the citations pertain, but the letter shall without argument state the reasons for the

supplemental citations. Any response shall be made promptly and shall be similarly limited.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994.)

CIRCUIT RULE 28. Briefs

Briefs must 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:

(a)Appellant's Jurisdictional Statement. The jurisdictional statement in appellant's brief, see Fed. R. App. P. 28(a)(2), must contain the following details:

(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 jurisdiction.

(2) The statement concerning appellate jurisdiction shall identify the statutory provision believed to confer jurisdiction on this court and the following particulars:

(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 than exhaustive:

(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 involved.

(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."

(iv) Whenever 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 factors.

(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 Case. The statement of the case required by Fed. R. App. P. 28(a)(4) 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.

(d) Brief in Multiple Appeals.

(1) Order and Number of Briefs.

(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 reply briefs.

(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.

(e) Citation of Supplemental Authority. Counsel shall file the original letter and ten copies of supplemental authorities drawn to the court's attention under Fed. R. App. P. 28(j). The letter shall state in a single brief sentence the proposition the authority supports but shall contain no argument.

(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.

(As amended Dec. 1, 1997.)

Federal Rule of Appellate Procedure 29:

RULE 29. Brief of an Amicus Curiae

A brief of an amicus curiae may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion or at the request of the court, except that consent or leave shall not be required when the brief is presented by the United States or an officer or agency thereof, or by a State, Territory or Commonwealth. The brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable. Save as all parties otherwise consent, any amicus curiae shall file its brief within the time allowed the party whose position as to affirmance or reversal the amicus brief will support unless the court for cause shown shall grant leave for later filing, in which event it shall specify within what period an opposing party may answer. A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons.

CIRCUIT RULE 29. Brief of an Amicus Curiae

(a) Avoiding Unnecessary Repetition. Before completing the preparation of an amicus brief, counsel for an amicus curiae shall attempt to ascertain the arguments that will be made in the brief of any party whose position the amicus is supporting, with a view to avoiding any unnecessary repetition or restatement of those arguments in the amicus brief.

(b) Page Limitation. Except by permission of the court, an amicus brief shall not exceed 20 pages.

Federal Rule of Appellate Procedure 30:

RULE 30. Appendix to the Briefs

(a) Duty of Appellant to Prepare and File; Content of Appendix; Time for Filing; Number of Copies. The appellant must prepare and file an appendix to the briefs which must contain: (1) the relevant docket entries in the proceeding below; (2) any relevant portions of the pleadings, charge, findings or opinion; (3) the judgment, order or decision in question; and (4) any other parts of the record to which the parties wish to direct the particular attention of the court. Except where they have independent relevance, memoranda of law in the district court should not be included in the appendix. The fact that parts of the record are not included in the appendix shall not prevent the parties or the court from relying on such parts.

Unless filing is to be deferred pursuant to the provisions of subdivision (c) of this rule, the appellant must serve and file the appendix with the brief. Ten copies of the appendix must be filed with the clerk, and one copy must be served on counsel for each party separately represented, unless the court requires the filing or service of a different number by local rule or by order in a particular case.

(b) Determination of Contents of Appendix; Cost of Producing. The parties are encouraged to agree as to the contents of the appendix. In the absence of agreement, the appellant shall, not later than 10 days after the date on which the record is filed, serve on the appellee a designation of the parts of the record which the appellant intends to include in the appendix and a statement of the issues which the appellant intends to present for review. If the appellee deems it necessary to direct the particular attention of the court to parts of the record not designated by the appellant, the appellee shall, within 10 days after receipt of the designation, serve upon the appellant a designation of those parts. The appellant shall include in the appendix the parts thus designated with respect to the appeal and any cross appeal. In designating parts of the record for inclusion in the appendix, the parties shall have regard for the fact that the entire record is always available to the court for reference and examination and shall not engage in unnecessary designation. The provisions of this paragraph shall apply to cross appellants and cross appellees.

Unless the parties otherwise agree, the cost of producing the appendix shall initially be paid by the appellant, but if the appellant considers that parts of the record designated by the appellee for inclusion are unnecessary for the determination of the issues presented the appellant may so advise the appellee and the appellee shall advance the cost of including such parts. The cost of producing the appendix shall be taxed as costs in the case, but if either party shall cause matters to be included in the appendix unnecessarily the court may impose the cost of producing such parts on the party. Each circuit shall provide by local rule for the imposition of sanctions against attorneys who unreasonably and vexatiously increase the costs of litigation through the inclusion of unnecessary material in the appendix.

(c) Alternative Method of Designating Contents of the Appendix; How References to the Record May be Made in the Briefs When Alternative Method is Used. If the court shall so provide by rule for classes of cases or by order in specific cases, preparation of the appendix may be deferred until after the briefs have been filed, and the appendix may be filed 21 days after service of the brief of the appellee. If the preparation and filing of the appendix is thus deferred, the provisions of subdivision (b) of this Rule 30 shall apply, except that the designations referred to therein shall be made by each party at the time each brief is served, and a statement of the issues presented shall be unnecessary.

If the deferred appendix authorized by this subdivision is employed, references in the briefs to the record may be to the pages of the parts of the record involved, in which event the original paging of each part of the record shall be indicated in the appendix by placing in brackets the number of each page at the place in the appendix where that page begins. Or if a party desires to refer in a brief directly to pages of the appendix, that party may serve and file typewritten or page proof copies of the brief within the time required by Rule 31(a), with appropriate references to the pages of the parts of the record involved. In that event, within 14 days after the appendix is filed the party shall serve and file copies of the brief in the form prescribed by Rule 32(a) containing references to the pages of the appendix in place of or in addition to the initial references to the pages of the parts of the record involved. No other changes may be made in the brief as initially served and filed, except that typographical errors may be corrected.

(d) Arrangement of the Appendix. At the beginning of the appendix there shall be inserted a list of the parts of the record which it contains, in the order in which the parts are set out therein, with references to the pages of the appendix at which each part begins. The relevant docket entries shall be set out following the list of contents. Thereafter, other parts of the record shall be set out in chronological order. When matter contained in the reporter's transcript of proceedings is set out in the appendix, the page of the transcript at which such matter may be found shall be indicated in brackets immediately before the matter which is set out. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial formal matters (captions, subscriptions, acknowledgments, etc.) shall be omitted. A question and its answer may be contained in a single paragraph.

(e) Reproduction of Exhibits. Exhibits designated for inclusion in the appendix may be contained in a separate volume, or volumes, suitably indexed. Four copies thereof shall be filed with the appendix and one copy shall be served on counsel for each party separately represented. The transcript of a proceeding before an administrative agency, board, commission or officer used in an action in the district court shall be regarded as an exhibit for the purpose of this subdivision.

(f) Hearing of Appeals on the Original Record Without the Necessity of an Appendix. A court of appeals may by rule applicable to all cases, or to classes of cases, or by order in specific cases, dispense with the requirement of an appendix and permit appeals to be heard on the original record, with such copies of the record, or relevant parts thereof, as the court may require.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994).

CIRCUIT RULE 30. Appendices

(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.

(b) Additional Contents. The appellant shall also include in an appendix:

(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.

(2) Copies of any opinions or orders in the case rendered by magistrate judges or bankruptcy judges that address the issues sought to be raised.

(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 court.

(4) An order concerning a motion for new trial, alteration or amendment of the judgment, rehearing, and other relief sought under Rules 52(a) or 59, Fed. R. Civ. P.

(5) 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 appeal.

(6) The documents in (b) may also be placed in the appendix bound with the brief if these documents when added to the required appendix in (a) do not exceed fifty pages.

(c) Appendix to the brief of a Cross-Appellant. The brief of a cross-appellant must comply with this rule, but it need not include materials contained in the appendix of the appellant.

(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 awarded.

(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.

Federal Rule of Appellate Procedure 31:

RULE 31. Filing and Service of Briefs

(a) Time for Serving and Filing Briefs. The appellant shall serve and file a brief within 40 days after the date on which the record is filed. The appellee shall serve and file a brief within 30 days after service of the brief of the appellant. The appellant may serve and file a reply brief within 14 days after service of the brief of the appellee, but, except for good cause shown, a reply brief must be filed at least 3 days before argument. If a court of appeals is prepared to consider cases on the merits promptly after briefs are filed, and its practice is to do so, it may shorten the periods prescribed above for serving and filing briefs, either by rule for all cases or for classes of cases, or by order for specific cases.

(b) Number of Copies to be Filed and Served. Twenty-five copies of each brief must be filed with the clerk, and two copies must be served on counsel for each party separately represented unless the court requires the filing or service of a different number by local rule or by order in a particular case. If a party is allowed to file typewritten ribbon and carbon copies of the brief, the original and three legible copies must be filed with the clerk, and one copy must be served on counsel for each party separately represented.

(c) Consequence of Failure to File Briefs. If an appellant fails to file a brief within the time provided by this rule, or within the time as extended, an appellee may move for dismissal of the appeal. If an appellee fails to file a brief, the appellee will not be heard at oral argument except by permission of the court.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994.)

CIRCUIT RULE 31. Filing of Briefs and Failure to Timely File Briefs

(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 copies.

(c) Failure of Appellant to File Brief. When an appellant's original brief is not filed when it is due, the procedure shall be as follows:

(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 appropriate action.

(2) All Other Cases. The clerk shall enter an order directing counsel, or a pro se appellant, to show cause why the appeal should not be dismissed. The court will then take appropriate action.

(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 action.

(e) Digital Media. One copy of each brief must be filed on digital media. The disk must contain nothing more than the text of the brief, and the label of the disk must include the case name and docket number. One copy of the disk must be served on each party separately represented by counsel. Filing and service under this subsection are not required if counsel certifies that the text of the brief is not available on digital media.

(As amended Jan. 1, 1997.)

Federal Rule of Appellate Procedure 32:

RULE 32. Form of Briefs, the Appendix and Other Papers

(a) Form of Briefs and the Appendix. Briefs and appendices may be produced by standard typographic printing or by any duplicating or copying process which produces a clear black image on white paper. Carbon copies of briefs and appendices may not be submitted without permission of the court, except in behalf of parties allowed to proceed in forma pauperis. All printed matter must appear in at least 11 point type on opaque, unglazed paper. Briefs and appendices produced by the standard typographic process shall be bound in volumes having pages 6-1/8 by 9-1/4 inches and type matter 4-1/6 by 7-1/6 inches. Those produced by any other process shall be bound in volumes having pages not exceeding 8-1/2 by 11 inches and type matter not exceeding 6-1/2 by 9-1/2 inches, with double spacing between each line of text. In patent cases the pages of briefs and appendices may be of such size as is necessary to utilize copies of patent documents. Copies of the reporter's transcript and other papers reproduced in a manner authorized by this rule may be inserted in the appendix; such pages may be informally renumbered if necessary.

If briefs are produced by commercial printing or duplicating firms, or, if produced otherwise and the covers to be described are available, the cover of the brief of the appellant should be blue; that of the appellee, red; that of an intervenor or amicus curiae, green; that of any reply brief, gray. The cover of the appendix, if separately printed, should be white. The front covers of the briefs and of appendices, if separately printed, shall contain: (1) the name of the court and the number of the case; (2) the title of the case (see Rule 12(a)); (3) the nature of the proceeding in the court (e.g., Appeal; Petition for Review) and the name of the court, agency, or board below; (4) the title of the document (e.g., Brief for Appellant, Appendix); and (5) the names and addresses of counsel representing the party on whose behalf the document is filed.

(b) Form of Other Papers. Petitions for rehearing shall be produced in a manner prescribed by subdivision (a). Motions and other papers may be produced in like manner, or they may be typewritten upon opaque, unglazed paper 8-1/2 by 11 inches in size. Lines of typewritten text shall be double spaced. Consecutive sheets shall be attached at the left margin. Carbon copies may be used for filing and service if they are legible.

A motion or other paper addressed to the court shall contain a caption setting forth the name of the court, the title of the case, the file number, and a brief descriptive title indicating the purpose of the paper.

CIRCUIT RULE 32. Form of a Brief, an Appendix, and Other Papers

(a) Reproduction.

(1) Text must be reproduced with a clarity that equals or exceeds the output of a laser printer. The output of a dot-matrix printer or fax machine is not acceptable in either a brief or an appendix. Photo-reductions of original documents are not acceptable.

(2) Photographs, illustrations, and tables may be reproduced by any method that results in a good copy of the original; a glossy finish is acceptable if the original is glossy.

(b) Typeface. Either a proportionally spaced or monospaced face may be used.

(1) A proportionally spaced face must include serifs, but sans-serif type may be used in headings and captions. A proportionally spaced face must be 12-point or larger, in both body text and footnotes.

(2) A monospaced face may not contain more than 10 1/2 characters per inch.

(c) Type Style. A brief or motion must be set in a plain, roman style, although italics or boldface may be used for emphasis. Case names must be italicized or underlined.

(d) Length of a Brief.

(1) Page Limitation. A principal brief may not exceed 30 pages, or a reply brief 15 pages, unless it complies with Circuit Rule 32(d)(2) and (3).

(2) Type Volume Limitation.

(A) 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 text.

(B) A reply brief is acceptable if it contains no more than half the type volume specified in Circuit Rule 32(d)(2)(A).

(C) Headings, footnotes, and quotations count toward the word, character, 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 limitations.

(3) Certificate of Compliance. A brief submitted under Circuit Rule 32(d)(2) 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 either:

(i) the number of words in the brief; or

(ii) the number of lines of monospaced type in the brief.

(As amended Dec. 1, 1997.)

Federal Rule of Appellate Procedure 33:

RULE 33. Appeal Conferences

The court may direct the attorneys, and in appropriate cases the parties, to participate in one or more conferences to address any matter that may aid in the disposition of the proceedings, including the simplification of the issues and the possibility of settlement. A conference may be conducted in person or by telephone and be presided over by a judge or other person designated by the court for that purpose. Before a settlement conference, attorneys must consult with their clients and obtain as much authority as feasible to settle the case. As a result of a conference, the court may enter an order controlling the course of the proceedings or implementing any settlement agreement.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994.)

CIRCUIT RULE 33. Prehearing Conference

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.

(As amended Feb. 1, 1992.)

Federal Rule of Appellate Procedure 34:

RULE 34. Oral Argument

(a) In General; Local Rule. Oral argument shall be allowed in all cases unless pursuant to local rule a panel of three judges, after examination of the briefs and record, shall be unanimously of the opinion that oral argument is not needed. Any such local rule shall provide any party with an opportunity to file a statement setting forth the reasons why oral argument should be heard. A general statement of the criteria employed in the administration of such local rule shall be published in or with the rule and such criteria shall conform substantially to the following minimum standards:

Oral Argument will be allowed unless

(1) the appeal is frivolous; or

(2) the dispositive issue or set of issues has been recently authoritatively decided; or

(3) the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument.

(b) Notice of Argument; Postponement. The clerk shall advise all parties whether oral argument is to be heard, and if so, of the time and place therefor, and the time to be allowed each side. A request for postponement of the argument or for allowance of additional time must be made by motion filed reasonably in advance of the date fixed for hearing.

(c) Order and Content of Argument. The appellant is entitled to open and conclude the argument. Counsel may not read at length from briefs, records, or authorities.

(d) Cross and Separate Appeals. A cross or separate appeal shall be argued with the initial appeal at a single argument, unless the court otherwise directs. If a case involves a cross appeal, the party who first files a notice of appeal, or in the event that the notices are filed on the same day the plaintiff in the proceeding below, shall be deemed the appellant for the purpose of this rule unless the parties otherwise agree or the court otherwise directs. If separate appellants support the same argument, care shall be taken to avoid duplication of argument.

(e) Non-Appearance of Parties. If the appellee fails to appear to present argument, the court will hear argument on behalf of the appellant, if present. If the appellant fails to appear, the court may hear argument on behalf of the appellee, if present. If neither party appears, the case will be decided on the briefs unless the court shall otherwise order.

(f) Submission on Briefs. By agreement of the parties, a case may be submitted for decision on the briefs, but the court may direct that the case be argued.

(g) Use of Physical Exhibits at Argument; Removal. If physical exhibits other than documents are to be used at the argument, counsel shall arrange to have them placed in the courtroom before the court convenes on the date of the argument. After the argument counsel shall cause the exhibits to be removed from the courtroom unless the court otherwise directs. If exhibits are not reclaimed by counsel within a reasonable time after notice is given by the clerk, they shall be destroyed or otherwise disposed of as the clerk shall think best.

(As amended Apr. 22, 1993, eff. Dec. 1, 1993.)

CIRCUIT RULE 34. Oral Argument

(a) Notice to Clerk. The names of counsel intending to argue orally shall be furnished to the clerk not later than two days before the argument.

(b) Calendar.

(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.

(ii) Criminal Appeals. Rule 45(b), Fed. R. App. P.

(iii) Appeals from orders refusing or imposing conditions of release, which will be heard without the necessity of briefs. Rule 9, Fed. R. App. P.

(iv) Appeals involving issues of public importance.

(v) Habeas corpus and 28 U.S.C. § 2255 appeals.

(vi) Appeals from the granting, denying, or modifying of injunctions.

(vii) Petitions for writs of mandamus and prohibition and other extraordinary writs. Rule 21 (b) and (c), Fed. R. App. P.

(viii) "Any other action if good cause therefor 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. § 1657.

(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 expenses.

(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 possible.

(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 filed.

(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.

(d) Preparation. In preparing for oral arguments, counsel should be mindful that this court follows the practice of reading briefs prior to oral argument.

(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 circumstances.

(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. 34(a).

(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.

(As amended Dec. 1, 1997.)

Federal Rule of Appellate Procedure 35:

RULE 35. Determination of Causes by the Court En Banc

(a) When Hearing or Rehearing En Banc Will be Ordered. A majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. Such a hearing or rehearing is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance.

(b) Suggestion of a Party for Hearing or Rehearing En Banc. A party may suggest the appropriateness of a hearing or rehearing en banc. No response shall be filed unless the court shall so order. The clerk shall transmit any such suggestion to the members of the panel and the judges of the court who are in regular active service but a vote need not be taken to determine whether the cause shall be heard or reheard en banc unless a judge in regular active service or a judge who was a member of the panel that rendered a decision sought to be reheard requests a vote on such a suggestion made by a party.

(c) Time for Suggestion of a Party for Hearing or Rehearing En Banc; Suggestion Does Not Stay Mandate. If a party desires to suggest that an appeal be heard initially en banc, the suggestion must be made by the date on which the appellee's brief is filed. A suggestion for a rehearing en banc must be made within the time prescribed by Rule 40 for filing a petition for rehearing, whether the suggestion is made in such petition or otherwise. The pendency of such a suggestion whether or not included in a petition for rehearing shall not affect the finality of the judgment of the court of appeals or stay the issuance of the mandate.

(d) Number of Copies. The number of copies that must be filed may be prescribed by local rule and may be altered by order in a particular case.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994.)

Circuit Rule 35. Suggestions of Rehearing En Banc

(a) Certificate of Interest. Every suggestion of rehearing en banc must include a certificate of interest providing the information required by Fed. R. App. P. 26.1 and Circuit Rule 26.1, as of the date the suggestion is filed.

(b) Required Statement for Suggestion for Rehearing En Banc. Suggestions that an appeal be reheard en banc must state in a concise sentence at the beginning of the petition why the appeal is of exceptional importance or with what decision of the United States Supreme Court, this court, or other court of appeals the panel decision is claimed to be in conflict.

(c) Treatment of Ambiguous Documents. A document styled "Suggestion of Rehearing En Banc", "Petition for Rehearing En Banc", or any equivalent, will be treated as both a petition for rehearing by the panel and a suggestion of rehearing en banc.

(As amended January 1, 1996.)

Federal Rule of Appellate Procedure 36:

RULE 36. Entry of Judgment

The notation of a judgment in the docket constitutes entry of the judgment. The clerk shall prepare, sign and enter the judgment following receipt of the opinion of the court unless the opinion directs settlement of the form of the judgment, in which event the clerk shall prepare, sign and enter the judgment following final settlement by the court. If a judgment is rendered without an opinion, the clerk shall prepare, sign and enter the judgment following instruction from the court. The clerk shall, on the date judgment is entered, mail to all parties a copy of the opinion, if any, or of the judgment if no opinion was written, and notice of the date of entry of the judgment.

CIRCUIT RULE 36. Reassignment of Remanded Cases

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.

Federal Rule of Appellate Procedure 37:

RULE 37. Interest on Judgments

Unless otherwise provided by law, if a judgment for money in a civil case is affirmed, whatever interest is allowed by law shall be payable from the date the judgment was entered in the district court. If a judgment is modified or reversed with a direction that a judgment for money be entered in the district court, the mandate shall contain instructions with respect to allowance of interest.

Federal Rule of Appellate Procedure 38:

RULE 38. Damages and Costs for Frivolous Appeals

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.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994.)

CIRCUIT RULE 38 (Rescinded Dec. 1, 1997)

Federal Rule of Appellate Procedure 39:

RULE 39. Costs

(a) To Whom Allowed. Except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the court; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; if a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the court.

(b) Costs For and Against the United States. In cases involving the United States or an agency or officer thereof, if an award of costs against the United States is authorized by law, costs shall be awarded in accordance with the provisions of subdivision (a); otherwise, costs shall not be awarded for or against the United States.

(c) Costs of Briefs, Appendices, and Copies of Records. By local rule the court of appeals shall fix the maximum rate at which the cost of printing or otherwise producing necessary copies of briefs, appendices, and copies of records authorized by Rule 30(f) shall be taxable. Such rate shall not be higher than that generally charged for such work in the area where the clerk's office is located and shall encourage the use of economical methods of printing and copying.

(d) Bill of Costs; Objections; Costs to be Inserted in Mandate or Added Later. A party who desires such costs to be taxed shall state them in an itemized and verified bill of costs which the party shall file with the clerk, with proof of service, within 14 days after the entry of judgment. Objections to the bill of costs must be filed within 10 days of service on the party against whom costs are to be taxed unless the time is extended by the court. The clerk shall prepare and certify an itemized statement of costs taxed in the court of appeals for insertion in the mandate, but the issuance of the mandate shall not be delayed for taxation of costs and if the mandate has been issued before final determination of costs, the statement, or any amendment thereof, shall be added to the mandate upon request by the clerk of the court of appeals to the clerk of the district court.

(e) Costs on Appeal Taxable in the District Courts. Costs incurred in the preparation and transmission of the record, the cost of the reporter's transcript, if necessary for the determination of the appeal, the premiums paid for cost of supersedeas bonds or other bonds to preserve rights pending appeal, and the fee for filing the notice of appeal shall be taxed in the district court as costs of the appeal in favor of the party entitled to costs under this rule.

(As amended March 10, 1986, eff. July 1, 1986.)

CIRCUIT RULE 39. Costs of Printing Briefs and Appendices

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.

Federal Rule of Appellate Procedure 40:

RULE 40. Petition for Rehearing

(a) Time for Filing; Content; Answer; Action by Court if Granted. A petition for rehearing may be filed within 14 days after entry of judgment unless the time is shortened or enlarged by order or by local rule. However, in all civil cases in which the United States or an agency or an officer thereof is a party, the time within which any party may seek rehearing shall be 45 days after entry of judgment unless the time is shortened or enlarged by order. The petition must state with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended and must contain such argument in support of the petition as the petitioner desires to present. Oral argument in support of the petition will not be permitted. No answer to a petition for rehearing will be received unless requested by the court, but a petition for rehearing will ordinarily not be granted in the absence of such a request. If a petition for rehearing is granted the court may make a final disposition of the cause without reargument or may restore it to the calendar for reargument or resubmission or may make such other orders as are deemed appropriate under the circumstances of the particular case.

(b) Form of Petition; Length. The petition shall be in a form prescribed by Rule 32(a), and copies shall be served and filed as prescribed by Rule 31(b) for the service and filing of briefs. Except by permission of the court, or as specified by local rule of the court of appeals, a petition for rehearing shall not exceed 15 pages.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994.)

CIRCUIT RULE 40. Petitions for Rehearing

(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.

(b) Number of Copies. Fifteen copies of a petition for rehearing shall be filed, except that 30 shall be filed if the petitioner suggests rehearing en banc.

(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.

(d) Time for Filing after Decision from the Bench. The time limit for filing a petition for rehearing shall run from the date of this court's written order following a decision from the bench.

(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 in 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 follows:

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.)

(As amended January 1, 1997.)

Federal Rule of Appellate Procedure 41:

RULE 41. Issuance of Mandate; Stay of Mandate

(a) Date of Issuance. The mandate of the court must issue 7 days after the expiration of the time for filing a petition for rehearing unless such a petition is filed or the time is shortened or enlarged by order. A certified copy of the judgment and a copy of the opinion of the court, if any, and any direction as to costs shall constitute the mandate, unless the court directs that a formal mandate issue. The timely filing of a petition for rehearing will stay the mandate until disposition of the petition unless otherwise ordered by the court. If the petition is denied, the mandate must issue 7 days after entry of the order denying the petition unless the time is shortened or enlarged by order.

(b) Stay of Mandate Pending Petition for Certiorari. A party who files a motion requesting a stay of mandate pending petition to the Supreme Court for a writ of certiorari must file, at the same time, proof of service on all other parties. The motion must show that a petition for certiorari would present a substantial question and that there is good cause for a stay. The stay cannot exceed 30 days unless the period is extended for cause shown or unless during the period of the stay, a notice from the clerk of the Supreme Court is filed showing that the party who has obtained the stay has filed a petition for the writ, in which case the stay will continue until final disposition by the Supreme Court. The court of appeals must issue the mandate immediately when a copy of a Supreme Court order denying the petition for writ of certiorari is filed. The court may require a bond or other security as a condition to the grant or continuance of a stay of the mandate.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994.)

CIRCUIT RULE 41. Issuance and Stay of Mandate

(a) Immediate Issuance of Mandate After Certain Dispositions. 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.

(b) Mandate Ordinarily Will Not Be Stayed. In the absence of extraordinary need, the mandate will not be stayed at the request of a party, except upon a specific motion which includes:

(1) A certification of counsel that a petition for certiorari to the Supreme Court of the United States is being filed and is not merely for delay.

(2) A statement of the specific issues to be raised in the petition for certiorari.

(3) A substantial showing that the petition for certiorari which is being filed raises an important question meriting review by the Supreme Court.

(c) Time for Filing Motion to Stay. A motion to stay the mandate must be filed prior to the regularly scheduled date for issuance of the mandate.

(d) Stay of Execution of Judgment Enforcing Administrative Order Subject to Same Requirement as Stay of Mandate. Execution of a judgment enforcing an order of an administrative agency will be stayed only on the conditions provided in subparagraph (b) with respect to a mandate.

(e) Notice to Clerk of Filing Petition for Certiorari. An attorney filing a petition for certiorari or notice of appeal with the Supreme Court shall, on the date it is mailed or filed, notify the clerk of this court by telephone of the mailing or filing.

(As amended June 1, 1995.)

Federal Rule of Appellate Procedure 42:

RULE 42. Voluntary Dismissal

(a) Dismissal in the District Court. If an appeal has not been docketed, the appeal may be dismissed by the district court upon the filing in that court of a stipulation for dismissal signed by all the parties, or upon motion and notice by the appellant.

(b) Dismissal in the Court of Appeals. If the parties to an appeal or other proceeding shall sign and file with the clerk of the court of appeals an agreement that the proceeding be dismissed, specifying the terms as to payment of costs, and shall pay whatever fees are due, the clerk shall enter the case dismissed, but no mandate or other process shall issue without an order of the court. An appeal may be dismissed on motion of the appellant upon such terms as may be agreed upon by the parties or fixed by the court.

Federal Rule of Appellate Procedure 43:

RULE 43. Substitution of Parties

(a) Death of a Party. If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the court of appeals, the personal representative of the deceased party may be substituted as a party on motion filed by the representative or by any party with the clerk of the court of appeals. The motion of a party shall be served upon the representative in accordance with the provisions of Rule 25. If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the court of appeals may direct. If a party against whom an appeal may be taken dies after entry of a judgment or order in the district court but before a notice of appeal is filed, an appellant may proceed as if death had not occurred. After the notice of appeal is filed substitution shall be effected in the court of appeals in accordance with this subdivision. If a party entitled to appeal shall die before filing a notice of appeal, the notice of appeal may be filed by that party's personal representative, or, if there is no personal representative by that party's attorney of record within the time prescribed by these rules. After the notice of appeal is filed substitution shall be effected in the court of appeals in accordance with this subdivision.

(b) Substitution for Other Causes. If substitution of a party in the court of appeals is necessary for any reason other than death, substitution shall be effected in accordance with the procedure prescribed in subdivision (a).

(c) Public Officers; Death or Separation from Office.

(1) When a public officer is a party to an appeal or other proceeding in the court of appeals in an official capacity and during its pendency dies, resigns or otherwise ceases to hold office, the action does not abate and the public officer's successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.

(2) When a public officer is a party to an appeal or other proceeding in an official capacity that public officer may be described as a party by the public officer's official title rather than by name; but the court may require the public officer's name to be added.

(As amended Mar. 10, 1986, eff. July 1, 1986.)

CIRCUIT RULE 43. Change in Public Offices

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.

(Added June 1, 1995.)

Federal Rule of Appellate Procedure 44:

RULE 44. Cases Involving Constitutional Questions Where

United States is Not a Party

It shall be the duty of a party who draws in question the constitutionality of any Act of Congress in any proceeding in a court of appeals to which the United States, or any agency thereof; or any officer or employee thereof, as such officer or employee, is not a party, upon the filing of the record, or as soon thereafter as the question is raised in the court of appeals, to give immediate notice in writing to the court of the existence of said question. The clerk shall thereupon certify such fact to the Attorney General.

Federal Rule of Appellate Procedure 45:

RULE 45. Duties of Clerks

(a) General Provisions. The clerk of a court of appeals shall take the oath and give the bond required by law. Neither the clerk nor any deputy clerk shall practice as an attorney or counselor in any court while continuing in office. The court of appeals shall be deemed always open for the purpose of filing any proper paper, of issuing and returning process and of making motions and orders. The office of the clerk with the clerk or a deputy in attendance shall be open during business hours on all days except Saturdays, Sundays, and legal holidays, but a court may provide by local rule or order that the office of its clerk shall be open for specified hours on Saturdays or on particular legal holidays other than New Years Day, Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, and Christmas Day.

(b) The Docket; Calendar; Other Records Required. The clerk shall maintain a docket in such form as may be prescribed by the Director of the Administrative Office of the United States Courts. The clerk shall enter a record of all papers filed with the clerk and all process, orders and judgments. An index of cases contained in the docket shall be maintained as prescribed by the Director of the Administrative Office of the United States Courts.

The clerk shall prepare, under the direction of the court, a calendar of cases awaiting argument. In placing cases on the calendar for argument, the clerk shall give preference to appeals in criminal cases and to appeals and other proceedings entitled to preference by law.

The clerk shall keep such other books and records as may be required from time to time by the Director of the Administrative Office of the United States Courts with the approval of the Judicial Conference of the United States, or as may be required by the court.

(c) Notice of Orders or Judgments. Immediately upon the entry of an order or judgment the clerk shall serve a notice of entry by mail upon each party to the proceeding together with a copy of any opinion respecting the order or judgment, and shall make a note in the docket of the mailing. Service on a party represented by counsel shall be made on counsel.

(d) Custody of Records and Papers. The clerk shall have custody of the records and papers of the court. The clerk shall not permit any original record or paper to be taken from the clerk's custody except as authorized by the orders or instructions of the court. Original papers transmitted as the record on appeal or review shall upon disposition of the case be returned to the court or agency from which they were received. The clerk shall preserve copies of briefs and appendices and other printed papers filed.

(As amended Mar. 10, 1986, eff. July 1, 1986.)

CIRCUIT RULE 45. Fees

(a) Fees To Be Collected by the Clerk. The fees to be collected by the clerk are as follows:

(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.

(2) For every search of the records of the court and certifying the results of the same, $15.

(3) For certifying or exemplifying any document or paper, whether the certification or exemplification is made directly on the document, or by separate instrument, $5.

(4) For reproducing any record or paper, 50 cents per page. This fee does not include certification.

(5) For reproduction of magnetic tape audio recordings, either cassette or reel-to-reel, $15.

(6) For each printed copy of any opinion, including any separate and dissenting opinions in the case, regardless of whether the copy is certified, $2, but no charge shall be assessed for:

(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.

(7) For retrieval of a record from a Federal Records Center, National Archives, or other storage location removed from the place of business of the court, $25.

(8) For a check paid into the court which is returned for lack of funds, $25.

(9) No other fees for miscellaneous services than those prescribed by the Judicial Conference of the United States shall be charged or collected by any clerk of court.

(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.

Federal Rule of Appellate Procedure 46:

RULE 46. Attorneys

(a) Admission to the Bar of a Court of Appeals; Eligibility; Procedure for Admission. An attorney who has been admitted to practice before the Supreme Court of the United States, or the highest court of a state, or another United States court of appeals, or a United States district court (including the district courts for the Canal Zone, Guam and the Virgin Islands), and who is of good moral and professional character, is eligible for admission to the bar of a court of appeals.

An applicant shall file with the clerk of the court of appeals, on a form approved by the court and furnished by the clerk, an application for admission containing the applicant's personal statement showing eligibility for membership. At the foot of the application the applicant shall take and subscribe to the following oath or affirmation:

I, , do solemnly swear (or affirm) that I will demean myself as an attorney and counselor of this court, uprightly and according to law; and that I will support the Constitution of the United States.

Thereafter, upon written or oral motion of a member of the bar of the court, the court will act upon the application. An applicant may be admitted by oral motion in open court, but it is not necessary that the applicant appear before the court for the purpose of being admitted, unless the court shall otherwise order. An applicant shall upon admission pay to the clerk the fee prescribed by rule or order of the court.

(b) Suspension or Disbarment. When it is shown to the court that any member of its bar has been suspended or disbarred from practice in any other court of record, or has been guilty of conduct unbecoming a member of the bar of the court, the member will be subject to suspension or disbarment by the court. The member shall be afforded an opportunity to show good cause, within such time as the court shall prescribe, why the member should not be suspended or disbarred. Upon the member's response to the rule to show cause, and after hearing, if requested, or upon expiration of the time prescribed for a response if no response is made, the court shall enter an appropriate order.

(c) Disciplinary Power of the Court over Attorneys. A court of appeals may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing, if requested, take any appropriate disciplinary action against any attorney who practices before it for conduct unbecoming a member of the bar or

for failure to comply with these rules or any rule of the court.

(As amended Mar. 10, 1986, eff. July 1, 1986.)

CIRCUIT RULE 46. Attorneys

(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.

Federal Rule of Appellate Procedure 47:

RULE 47. Rules by Courts of Appeals

(a) Local Rules.

(1) Each court of appeals acting by of 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 a party or a lawyer regarding practice before a court shall be in a local rule rather than an internal operating procedure or standing order. A local rule shall be consistent with -- but not duplicative of -- Acts of Congress and rules adopted under 28 U.S.C. 2072 and shall conform to any uniform numbering system prescribed by the Judicial Conference of the United States. The clerk of each court of appeals shall send the Administrative Office of the United States Courts a copy of each local rule and internal operating procedure when it is promulgated or amended.

(2) A local rule imposing a requirement of form shall not be enforced in a manner that causes a party to lose rights because of a nonwillful failure to comply with the requirement

(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.

(As amended Apr. 27, 1995, eff. Dec. 1, 1995.)

CIRCUIT RULE 47. Advisory Committee

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.

(As amended Feb. 1, 1992.)

Federal Rule of Appellate Procedure 48:

RULE 48. Masters

A court of appeals may appoint a special master to hold hearings, if necessary, and to make recommendations as to factual findings and disposition in matters ancillary to proceedings in the court. Unless the order referring a matter to the master specifies or limits the master's powers, a master shall have power to regulate all proceedings in every hearing before the master and to do all acts and take all measures necessary or proper for the efficient performance of the master's duties under the order including, but not limited to, requiring the production of evidence upon all matters embraced in the reference and putting witnesses and parties on oath and examining them. If the master is not a judge or court employee, the court shall determine the master's compensation and whether the cost will be charged to any of the parties.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994.)

CIRCUIT RULE 50. Judges to Give Reasons when Dismissing

a Claim, Granting Summary Judgment, or Entering an Appealable Order

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.

(As amended June 1, 1995.)

CIRCUIT RULE 51. Summary Disposition of Certain Appeals by

Convicted Persons; Waiver of Appeal

(a) Duties of Criminal Trial Counsel

Trial counsel 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 for good cause. 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. The duties specified in this rule and Circuit Rule 51 concern only the conduct of counsel in this court; counsel 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.

(c) Time for Filing Motion to Withdraw in a Criminal Case

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.

(e) Dismissal if No Response. If no response to a notice under paragraph (a) or (b) of this rule is received within 30 days after the mailing, the appeal may be dismissed.

(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.

(As amended Dec. 1, 1997)

CIRCUIT RULE 52. Certification of Questions of State Law

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.

(a) Policy. It is the policy of the circuit to reduce the proliferation of published opinions.

(b) Publication. The court may dispose of an appeal by an order or by an opinion, which may be signed or per curiam. Orders shall not be published and opinions shall be published.

(1) "Published" or "publication" means:

(i) Printing the opinion as a slip opinion;

(ii) 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

(iii) Unlimited citation as precedent.

(2) Unpublished orders:

(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

(A) in any federal court within the circuit in any written document or in oral argument; or

(B) by any such court for any purpose.

(c) Guidelines for Method of Disposition.

(1) Published opinions.

A published opinion will be filed when the decision

(i) establishes a new, or changes an existing rule of law;

(ii) involves an issue of continuing public interest;

(iii) criticizes or questions existing law;

(iv) constitutes a significant and non-duplicative contribution to legal literature

(A) by a historical review of law,

(B) by describing legislative history, or

(C) by resolving or creating a conflict in the law;

(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

(vi) is pursuant to an order of remand from the Supreme Court and is not rendered merely in ministerial obedience to specific directions of that Court.

(2) Unpublished orders.

When the 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 detailed.

(d) Determination of Whether Disposition is to be by Order or Opinion.

(1) The determination to dispose of an appeal by unpublished order shall be made by a majority of the panel rendering the decision.

(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.

(e) Except to the purposes set forth in Circuit Rule 53(b)(2)(iv), no unpublished opinion or order of any court may be cited in the Seventh Circuit if citation is prohibited in the rendering court.

(As amended Jan. 1, 1997.)

CIRCUIT RULE 54. Remands from Supreme Court

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.

CIRCUIT RULE 55. Prohibition of Photographs and Broadcasts

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.

CIRCUIT RULE 56. Opportunity to Object and Make Proposals on the Record

(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.

(Added June 1, 1995.)

CIRCUIT RULE 57. Remands for Revision of Judgment

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.

(Added January 1, 1996.)

CIRCUIT RULE 60. Seventh Circuit Judicial Conference

(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 and Bankruptcy Judge of the Circuit shall be a member of the conference and shall attend unless excused by the Chief Judge. 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 and Bankruptcy Judges, and Magistrate Judges; (3) Clerks of the Court of Appeals, District Courts and Bankruptcy Courts in the Circuit; (4) United States Magistrate Judges in the Circuit; (5) United States Attorneys in the Circuit and their legal staffs; (6) Federal Defenders in the Circuit and their legal staffs; (7) Members of the Seventh Circuit Bar Association; (8) Special guests invited by the Chief Judge or by the President of the Seventh Circuit Bar Association with the approval of the Chief Judge; (9) 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.

(e) Record of the Conference. The Clerk of the Court of Appeals shall make and preserve a record of the proceedings at the Judicial Conference.

United States District Court for the ____________________ District of____________________

File Number _____________________

Notice is hereby given that ________________________________________________________________
____________________________(here name all parties taking the appeal)__________________________

(plaintiffs) (defendants) in the above named case,* hereby appeal to the United States Court of Appeals for the _______________Circuit (from the final judgment) (from an order (describing it)) entered in this action on the _____ day of ____________, 19___.

* See Rule 3(c) for permissible ways of identifying appellants.

Notice is hereby given that ________________________________________________________________
____________________________(here name all parties taking the appeal)*_________________________

hereby appeal to the United States Court of Appeals for the _______________ Circuit from (that part of)the decision of this court entered in the above captioned proceeding on the _____ day of ____________, 19___ (relating to _____________________________________).

* See Rule 3(c) for permissible ways of identifying appellants.

__________________________(here name all parties bringing the petition)*________________________
hereby petitions the court for review of the Order of the XYZ Commission (describe the order) entered on _____ day of ____________, 19___.

* See Rule 15.

I, ____________________ being first duly sworn, depose and say that I am the ________________________, in the above entitled case; that in support of my motion to proceed on appeal without being required to prepay fees, costs or give security therefor, I state that because of my poverty I am unable to pay the costs of said proceeding or to give security therefor; that I believe I am entitled to redress; and that the issues which I desire to present on appeal are the following:

I further swear that the responses which I have made to the questions and instructions below relating to my ability to pay the cost of prosecuting the appeal are true.

1. Are you presently employed?
   1. If the answer is yes, state the amount of your salary or wages per month and give the name and address of your employer.
   2. If the answer is no, state the date of your last employment and the amount of the salary and wages per month which you received.
      
      
2. Have you received within the past twelve months any income from a business, profession or other form of self-employment, or in the form of rent payments, interest, dividends, or other source?
   1. If the answer is yes, describe each source of income, and state the amount received from each during the past twelve months.
      
      
3. Do you own any cash or checking or savings account?
   1. If the answer is yes, state the total value of the items owned.
      
      
4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)?
   1. If the answer is yes, describe the property and state its approximate value.
      
      
5. List the persons who are dependent upon you for support and state your relationship to those persons.

I understand that a false statement or answer to any questions in this affidavit will subject me to penalties for perjury.

_________________________

SUBSCRIBED AND SWORN TO before me this _______________ day of _______________, 19 _____.

Let the applicant proceed without prepayment of costs or fees or the necessity of giving security therefor.

______________________________,

District Judge.

__________, the plaintiff [or defendant or other party] appeals to the United States Court of Appeals for the __________ Circuit from the final judgment [or order or decree] of the district court for the district of __________ [or bankruptcy appellate panel of the __________ circuit], entered in this case on __________, 19_____ [here describe the judgment, order, or decree]

______________________________________________________________________ The parties to the judgment [or order or decree] appealed from and the names and addresses of their respective attorneys are as follows:

Dated ____________________

Signed ____________________

Attorney for Appellant

Address ____________________

To:

(Name)

(Street Address or Prison Box)

(City, State, Zip Code)

You are the appellant in a case now pending in this court:

Case No.

Your attorney filed a brief on , 19 , stating a belief that your appeal is frivolous and requesting permission to withdraw from the case. Please be advised as follows:

(1) You have 30 days from the date this notice was mailed in which to raise any points that you choose which show why your conviction should be set aside.

(2) If you do not respond within the 30 days, the court may affirm or dismiss your appeal. An affirmance or dismissal would mean that your case would be finally decided against you.

(3) If you want to make a showing why the court should not affirm or dismiss your appeal and believe that there is a very good reason why you will not be able to file your objections with the court within the 30-day limit, you should immediately write to the court and ask for additional time up to 30 days. If additional time is granted, you must file your reasons why the court should not affirm or dismiss your appeal before your additional time expires.

(4) You do not have a right to another attorney unless this court finds that your showing requires that your case be further briefed or argued. If the court finds that your case should be further briefed or argued, an attorney will be appointed for you who will argue your appeal.

If you want to write to this court, you should address your letter to:

Clerk of the Court

United States Court of Appeals

219 South Dearborn Street

Chicago, Illinois 60604

Be sure, when writing, to show clearly the name and number of your case.

Notice mailed , 19

Deputy Clerk, U.S. Court of Appeals

Attorney for appellant

(Name)

(Street Address)

(City, State, Zip Code)

(Area Code and Telephone Number)

To:

(Name)

(Street Address or Prison Box)

(City, State, Zip Code)

You are the appellant in a case now pending in this court:

Case No.

A motion was filed by the opposing party on , 19, which asks the court to dismiss your appeal. You have 30 days in which to answer the motion. Please be advised as follows:

1) You have a right to answer. You can either agree to the requested dismissal or object to the motion.

2) If you object, you should explain your objections carefully and show why you contend the court should hear your case.

3) If you agree that your case should be dismissed, you should write the court immediately that you agree.

4) If you do not respond within 30 days after this notice was mailed, the court may affirm or dismiss your appeal. An affirmance or dismissal would mean that your case would be finally decided against you.

5) If you want to file objections and feel that there is a very good reason why you will not be able to file your objections with the court within the 30-day limit, you should immediately write to the court and ask for additional time up to 30 days. If additional time is granted, you must file your objections before your additional time expires.

6) If you are appealing from a conviction and upon receiving notice of motion for dismissal of your appeal you desire an attorney, you should immediately

(a) employ an attorney if you can afford one; or

(b) request this court to appoint an attorney for you if you cannot afford one.

The court will appoint an attorney if it concludes that your appeal is not frivolous.

If you want to write to this court, you should address your letter to:

Clerk of the Court

United States Court of Appeals

219 South Dearborn Street

Chicago, Illinois 60604

Be sure, when writing, to show clearly the name and number of your case.

Notice mailed , 19

Deputy Clerk, U.S. Court of Appeals

Attorney for appellant

(Name)

(Street Address)

(City, State, Zip Code)

(Area Code and Telephone Number)

Case No.

To: Clerk of the Court

United States Court of Appeals

219 South Dearborn Street

Chicago, Illinois 60604

I have been informed of my attorney's intention to move to dismiss my appeal.

I concur in my attorney's decision and hereby waive all rights to object or raise any points on appeal.

(Name)

(Street Address or Prison Box)

(City, State, Zip Code)

These are procedures for the court's internal operations. The court may dispense with their use in particular cases. Counsel and litigants acquire no rights under these procedures.

1. Motions ...................................................

(a) Number of Judges Necessary to Determine Motions........

(b) Selection of Judges to Determine Motions...............

(c) Motion Practice........................................

2. Titles and Precedence of Judges ...........................

3. Issuance of Opinions ......................................

4. [Rescinded October 22, 1996] ..............................

5. Hearings and Rehearings En banc ...........................

(a) Request for Answer and Subsequent Request for Vote ....

(b) Request for Vote When No Answer Requested..............

(c) Notification to File Answer............................

(d) Voting ................................................

(e) Preparation of Order ..................................

(f) Participants in Rehearings En banc ....................

(g) Similar Procedure for Hearings En banc ................

(h) Distribution of Petitions for Rehearing and

Suggestions for Rehearing En banc ...................

6. Panel Assignments in Certain Cases ........................

(a) Remands from the Supreme Court ........................

(b) Successive Appeals ....................................

(c) Successive Collateral Attacks

(d) Certain Cases Before Motion Panels ....................

7. Routine Action by the Clerk ...............................

(a) Dismissal for Failure to Prosecute .....................

(b) Removal from the List of Attorneys

Authorized to Practice ...............................

(c) Review of the Clerk's Action ..........................

8. Multiple Appeals ..........................................

9. Presumptive Times for Action ...............................

1. Motions

(a) Number of Judges Necessary to Determine Motions.

(1) Ordinary Practice. At least two judges shall act on requests for bail, denials of certificates of appealability, and denials of leave to proceed on appeal in forma pauperis. Ordinarily three judges shall act to dismiss or otherwise finally determine an appeal or other proceeding, unless the dismissal is by stipulation or is for procedural reasons. Three judges shall also act to deny a motion to expedite an appeal when the denial may result in the mooting of the appeal. All other motions shall be entertained by a single judge in accordance with the practice set forth in paragraph (c). In the interest of expediting a decision or for other good cause, a fewer number of judges than provided in these procedures may decide any motion.

(2) En Banc Requests. If en banc consideration of a motion is requested, no more than the normal number of judges required for such a motion need act on it. If en banc reconsideration of the decision on a motion is requested, the motion will be considered by the same judge or judges who acted on the motion originally and, if and to the extent necessary to constitute a panel of three, one or more members of the motions panel. A judge may request that any motion be considered by the court en banc.

(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.

(c) Motion Practice.

(1) Motions That May Require Immediate Action. A staff attorney will read upon filing the following motions (whether labeled emergency or not): (i) for bond; (ii) for injunction; (iii) for stay of injunction; (iv) for stay of an agency order; (v) to dismiss appeals not by agreement; (vi) for leave to appeal from an interlocutory order pursuant to 28 U.S.C. § 1292(b); (vii) to stay or recall the mandate; (viii) to supplement the record; and (ix) all other emergency motions. If the motion requires immediate action, it will be taken to the motions judge and, if necessary, a panel. If it does not require immediate action, the staff attorney will wait up to ten days for a response to be filed before taking the motion to the motions judge or panel.

(2) Routine Motions. Routine motions (see subparagraph (7)) will be given to court staff who will read the motion and any affidavit in support thereof as well as any response to the motion. The designated staff member is then authorized, acting pursuant to such general directions and criteria as the court prescribes, to prepare an order in the name of the court either granting or denying the motion or requesting a response to the motion. If the designated staff member has any questions about what action should be taken, the motions judge will be consulted. Once a panel has been assigned for the oral argument or submission of an appeal, or after an appeal has actually been orally argued or submitted for decision without oral argument, the court staff should consult the presiding judge on motions that would otherwise be considered routine.

(3) Nonroutine Motions. A staff attorney shall read each nonroutine motion (see subparagraph (7)) and then present it to the motions judge and, if necessary, the motions panel. The judge or panel will then advise the staff attorney as to the decision and direct that an order be prepared accordingly. The staff attorney will then prepare the order. If the order states detailed reasons for the decision, the staff attorney will take the original of the order to the motions judge or one of the judges on the motions panel to read and approve. The same procedure will be followed whenever a judge asks to see the prepared order before it is released.

(4) Duties of Clerk of Court. When an order is in final form and ready for release, copies of the order will be reproduced and mailed to counsel for the litigants and to any other persons who are affected by the order, such as the district court clerk, the district judge, the United States Marshal, et al. The clerk will make certain that the language of the order is technically proper.

(5) Automatic Reconsideration When Response Filed After Ruling. If a response to a motion is properly filed after the court has ruled on the motion adversely to the respondent, the motion and response will be reconsidered and a new order stating this fact and ruling on the motion shall be issued.

(6) Record Keeping. The clerk shall keep a record of all orders by date of entry and also place a copy of each order in the file folder of the appeal.

(7) Classification of Motions and Actions by Court. Motions and actions of the court are classified for purposes of this paragraph as follows:

TypeClassification

To extend time or to file instanter Routine

To consolidate appeals Routine

To hold briefing in abeyance Routine

To expedite or schedule briefing

(But see 1(a) supra.) Routine

To intervene as of right Routine

To withdraw exhibits for preparation

of a brief by counsel of record or party

appearing pro se prior to case being

scheduled for oral argument Routine

To listen to tapes of oral argument

under supervision of the clerk's office Routine

To withdraw as counsel in criminal

cases when other counsel has filed

or is simultaneously filing an appearance Routine

To withdraw as counsel in civil cases Routine

To correct error in the caption of a case Routine

To withdraw a previously filed motion

before the court has acted upon it Routine

To file a deferred appendix Routine

(generally denied)

To dismiss by agreement, except in cases

to which panels have already been assigned Routine

To supplement record

(if no objection) Routine

(with an item before district court) Routine

(with an item not clearly before district court) Routine

to deny

with

leave to

renew

after

moving

to correct

record in

district

court

pursuant

to Fed. R.

App. P.

10(e)

For leave to appeal in forma pauperis (if

denied without prejudice to renewal

after district court denial) Routine

(if denied for any other reason) Nonroutine

(if granted) Nonroutine

For leave to file brief amicus curiae Nonroutine

For leave to file oversized brief Nonroutine

To stay or recall mandate Nonroutine

For appointment of counsel Nonroutine

To postpone oral argument Nonroutine

For certificate of appealability

(if denied) Nonroutine

(if granted) Nonroutine

For leave to commence second or

successive collateral attack Nonroutine

To dismiss, not by agreement Nonroutine

For bond, injunction, or stay of injunction Nonroutine

To reconsider any order of court (other than

pursuant to subparagraph (5)) Nonroutine

For leave to appeal from interlocutory order,

pursuant to 28 U.S.C. § 1292(b) Nonroutine

All other motions Nonroutine

The following actions by the court shall be handled similarly to the stated procedures for routine or nonroutine motions:

Issuance of orders to show cause pursuant to

Circuit Rule 31(c) and (d) Routine

Discharge of rules to show cause under Fed. R. App.

P. 31 (c) and Circuit Rule 31 (c) and (d)

(granting discharge) Routine

(denying discharge) Nonroutine

Orders pursuant to Fed. R. App. P. 34 Nonroutine

(8) The clerk is authorized to reject repetitious motions to reconsider.

2. Titles and Precedence of Judges

(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.

(c) Subject to part (b) of this rule, judges have precedence and are listed on opinions in the following order: (1) Circuit Justice; (2) Chief Judge of the circuit; (3) Associate Justice (Retired); (4) Circuit Judges by seniority of commission (without distinction between judges of this and other circuits); (5) District Judges by seniority of commission.

(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."

3. Issuance of Opinions

(a) When an opinion is ready for release, the author will send the opinion (together with any concurring or dissenting opinions) to the printer immediately.

(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.

4. [Rescinded October 22, 1996.]

5. Hearings and Rehearings En Banc

(a) Request for Answer and Subsequent Request for Vote. If a suggestion 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 suggestion. 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 suggestion for a 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 suggestion for a rehearing en banc (which may be made by any judge entitled to request an answer) must be made within 10 days from the distribution of the suggestion. 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.

(d) Voting.

(1) Majority. A simple majority of the voting active judges is required to grant a rehearing en banc.

(2) Time for Voting. Judges are expected to vote within 10 days of the request for a vote or within 10 days of the filing of the answer pursuant to the request for a vote, whichever is later.

(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 suggestion 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.

(f) Participants in Rehearings En Banc. Only Seventh Circuit active judges and any Seventh Circuit senior judge who was a member of the original panel may participate in rehearings en banc.

(g) Similar Procedures for Hearings En Banc. Similar voting procedures and time limits shall apply for requests for hearings en banc except that a staff attorney may circulate such a request.

(h) Distribution of Petitions for Rehearing and Suggestions for Rehearing En Banc. Petitions for rehearing that do not suggest rehearing en banc are distributed only to the panel. Suggestions for rehearing en banc are distributed to all judges entitled to vote on the suggestion.

6. Panel Assignments in Certain Cases

(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.

7. Routine Action by the Clerk

(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 a 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.

8. Multiple Appeals

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.

9. Presumptive Times for Action

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) A judge assigned to write a draft after a case has been identified at conference as suitable for disposition by a brief unpublished order should circulate the draft to the other members of the panel within 21 days of the date the case was argued or submitted.

(b) A judge assigned to write a published opinion should circulate the draft to the other members of the panel within 90 days of the date the case was argued or submitted. When the case is unusually complex, extended research is required, or other special circumstances apply, however, the writing judge may extend this time to 180 days by giving appropriate notice to the other members of the panel.

(c) Responding to drafts circulated by other judges is the first order of business. Every judge should respond - by approval, memorandum suggesting changes, or notice that a separate opinion is under active consideration - within 10 days of the circulation of a draft.

(d) As a rule, writing separate concurring or dissenting opinions takes precedence over all business other than initial responses to newly circulated drafts. Separate opinions should be circulated to the panel within 28 days after the initial response described in part (c) of this procedure.

(e) Once the opinion has issued, judges should act promptly on any further motions. In particular, members of the panel should vote within 10 days on any petition for rehearing. Under Operating Procedure 5, judges have 10 days to request a response to a suggestion of rehearing en banc, and 10 days to call for a vote on the suggestion once the response has been received. Once a judge has called for a vote, all other judges should register their votes within 10 days. Once this time (including extensions described below) has passed, and sufficient votes have been received to grant or deny the petition for rehearing or suggestion of rehearing en banc, the court will enter an order to that effect without waiting for additional responses.

(f) Each judge should establish a tickler system designed to ensure adherence to these norms. When one chambers does not receive a draft, vote or response within the time presumptively established, secretaries or law clerks should inquire. This step not only catches communications lost in transmission but also serves as a backup reminder system.

(g) A judge who believes that additional time is required to permit full consideration should notify the other members of the panel to that effect. If the judge believes that more than 30 days (in the case of opinions) or 10 days (in the case of other actions), in addition to the time presumptively established by this procedure, is essential, the judge also should notify the chief judge of the delay and the reasons for it.

(h) The presiding judge of a panel should reassign the case if the judge initially assigned to draft the order or opinion has not circulated the draft within the time provided by parts (a) and (b) of this procedure, plus the extra time allowed by part (g), unless in consultation with the assigned author and the chief judge the presiding judge decides that reassignment would delay disposition still further.

(i) If two members of the panel have agreed on an opinion, and the third member does not respond within the time provided by part (c), or does not complete a separate opinion within the time presumptively established by parts (d) and (g), the writing judge should inquire of the third member whether a response is imminent. If further delay is anticipated, the majority should issue the opinion with a notation that the third judge reserves the right to file a separate opinion later.

(j) When the presumptive time for action established by this procedure is 10 days, the time may be extended on notice that a judge is unavailable to act on judicial business. The time specified by this notice is added to the time presumptively established by this procedure.

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 adequate defense.

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.

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.

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.

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.

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.

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.