second circuit court of appeals: practice …...• notice of appeal: the initiating document for...

SECOND CIRCUIT COURT OF APPEALS: PRACTICE AND PROCEDURE

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Tab

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on

ten

ts Basic Terms

Jurisdiction

Admission to the court

Preliminary Forms

Briefing Schedules

Format of Briefs

The Appendix

Oral Argument

Motions

Petitions

Civil v. Criminal Appeals


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Basic Terms


• Appellant: party seeking relief from the order or judgment of the lower court

• Appellee: party opposing relief from the order or judgment of the lower court

• Notice of Appeal: the initiating document for most appeals and proceedings in the Second Circuit, filed in the trial court

• CM/ECF: electronic system used for filing most documents in the Second Circuit

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Jurisdiction


• Second Circuit handles appeals from:• Civil cases, including bankruptcy matters• Criminal cases• Agency cases

• Cases must stem from:• Northern District of New York• Southern District of New York• Western District of New York• Eastern District of New York• District of Vermont• District of Connecticut

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Jurisdiction


• Notice of Appeal must be filed within 30 days of order or judgment being appealed

• Under FRAP 4(a):• If after the decision or order is announced but before it is entered,

is treated as filed on the day of entry. • If after the entry of judgment but before the last of certain motions,

is treated as filed when the order determining the last of the motions is entered.

• Only the district court can extend the time to file a notice of appeal. [FRAP 4(a)(5) and 4(a)(6)]

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Jurisdiction


• Cases not appealable as of right require a petition for leave to appeal

• Requirements in FRAP 5• Petition for leave to appeal• Opposition within 10 days• 5,200 word limit


Admission to the CourtRegular Admission

•Forms

• Attorney Admission Application

• Attorney Admission Oath

• Sponsor’s Motion for Admission

•Fee

• $221 for new admission

• $25 for renewal

•Must renew every 5 years

• If lapsed for one month, considered “inactive”

• If “inactive” for 12 months, must reapply

Pro Hac Vice Admission

•No fee

•Forms

• Motion for Pro Hac Vice Admission

•Must be:

• Member of bar of district court within the circuit,

• Representing a party in forma pauperis, or

• Demonstrating exceptional circumstances

•Good for one case

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Preliminary Forms – Acknowledgment and Notice of Appearance

•By lead counsel for each party

•Within 14 days of docketing

•Opportunity to change caption

•Related Cases

•Contact Information

•Certification of Admission

•Second page – Addendum A with additional contact information as necessary


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Preliminary Forms – Form C(Civil Pre-Argument Statement)

•Overview of the case

•Within 14 days of Notice of Appeal

•Complete both sides of form plus addenda

• Addendum A – brief description of nature of case and result below with Notice of Appeal, lower court docket sheet, and orders/opinions being appealed

• Addendum B – list of issues presented with standards of review

•Filing fee of $505 and Form D due at same time


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Preliminary Forms – Form D(Civil Appeal Transcript Information)

•Indicates status of transcript

• Ordering a transcript

• Not ordering a transcript

• Copy is already available

• No transcribed proceedings

• Other (specify)

•Within 14 days of notice of appeal

•Triggers “ready date”


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Preliminary Forms – Form B(Criminal Appeal Transcript Information)

•Indicates status of transcript

• Ordering a transcript

• Not ordering a transcript

• Daily copy available

• U.S. Atty. placed order

• Other (specify)

•Within 14 days of notice of appeal

•Triggers “ready date”


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Briefing Schedules


• Appellant’s opening• Scheduling notification filed within 14 days of “ready date”• Asks for due date within 91 days of “ready date”• Failure to do so leads to order granting only 40 days

• Appellee’s opening• Scheduling notification filed within 14 days of appellant’s brief• Asks for due date within 91 days of appellant’s brief• Failure to do so gives appellee only 30 days

• Appellant’s reply• 14 days from last appellee brief


• XAC – Expedited Appeal Calendar• For “threshold dismissals”

• Lack of subject matter jurisdiction under 12(b)(1)

• Failure to state a claim under 12(b)(6) • Filing a frivolous claim

• Appellant given 35 days for opening brief• Appellee given 35 days for opening brief

• If appellant files early, this date is moved up• Appellant given 14 days for reply brief• May make a motion to be removed from XAC

Briefing Schedules


• Required elements (FRAP 28 and Local Rule 28.1)• Cover

• Docket number must be at least 1” high• Must use official caption from PACER

• Corporate disclosure statement (in some cases)• Table of Contents• Table of Authorities• **Jurisdictional Statement• **Statement of Issues Presented for Review• **Statement of the Case

• Not “Statement of Facts”• Identify facts, procedural history, and rulings on review• Must begin with description of judge issuing ruling and disposition below, with citation if reported

• Summary of the Argument• Argument broken into points, with **standards of review• **Conclusion with relief sought• Certificate of Compliance

Format of Briefs


• Length:• Principal/opening briefs: 14,000 words• Reply/amicus briefs: 7,000 words• Third brief on cross-appeal:16,500 words

• If over 30 pages for opening or 15 pages for reply, must have certificate of compliance

• Margins: 1” minimum• Spacing: Double, except footnotes, headings, and block quotes• Font size: 14 point proportional or 12 point monospaced

• Times New Roman is a common proportional font.• Courier New is a common monospaced font.

Format of Briefs


• Cover colors• Blue – Appellant’s brief• Red – Appellee’s brief• Gray – Appellant’s reply• Green – Intervenor or Amicus• Tan – Supplemental

• Official filing is ECF. Six paper copies are filed on the same date or within 3 days.

Format of Briefs


The Appendix• Joint Appendix

• Does not need to include the entire record • Required elements:

• Docket list from trial court• Order, decision, and/or judgment being appealed• Notice of appeal

• Optional elements:• Those parts of the record that the parties wish to bring before the court’s attention

• Procedure• Appellant designates content• Appellant gives appellee 14 days to make further designations• Appellant files the appendix with opening brief

• Costs borne by the appellant• Dispute mechanism


The Appendix

• Appendix v. Joint Appendix• Court prefers and presumes “Joint Appendix” • Will accept “Appendix”• If appellant fails to file rule-compliant “Joint Appendix,”

appellee may file “Appellee’s Supplemental Appendix” as of right with appellee’s brief• Otherwise, appellee needs leave of court to file

further appendix


The Appendix

• Special Appendix• Where appendix or joint appendix exceeds 300 pages, a Special Appendix

is required• Considered part of the joint appendix or appendix, though paginated separately• May be bound with the brief or as stand-alone volume• Contents:

• Order, decision and/or judgment being appealed• Significant rule of law with citations

• Statute, constitutional provision, treaty, ordinance, regulation, rule, or sentencing guideline


The Appendix

• Deferred Appendix• By agreement of the parties or order• Timing• Advantages• Disadvantages


The Appendix

• Format• Cover• Index• Pagination• No more than 300 pages per volume

• Official filing is ECF. Six paper copies are filed on the same date or within 3 days

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Oral Argument• Request form must be completed by

each party• Due 14 days after last appellee’s brief

• Usually due same day as reply brief

• Calendar dates at least 4 months after fully briefed (some variation)

• Proposed week posted on docket, and then if no one objects, date is set.• No automatic notice – must watch docket

• Almost every case with counsel is granted argument


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•All motions require T-1080 plus supporting papers/necessary exhibits

• Must notify opposing counsel or advise if not possible

• 5,200 word limit for motion or response; 2,600 word limit for reply

•Response due within 10 days, reply due within 7 days

•3 paper copies only if motion exceeds 50 pages

•Motions decided on the papers unless oral argument requested and granted by court

•No filing fee


Motions


Common Motions•Motion for Oversized Brief• Strongly disfavored

• Must be made at least 14 days prior to deadline

•Motion to Extend/Enlarge Time• Strongly disfavored

• Motion does not toll existing deadlines

• Must be made at least 14 days prior to deadline

• Requires “extraordinary circumstances”

•Motion to Reinstate Appeal• Within 14 days of dismissal order

• Must attach appellant’s brief – thus, need appendix as well


Petitions

•Common Petitions• Petition for Panel Rehearing and/or Rehearing En Banc (FRAP 35 and 40 and

LR 35.1 and 40.1)

• No more than 3,900 words

• Only attach the summary order from which seeking relief – no further exhibits

• You may seek panel rehearing or rehearing en banc or both in the alternative, but only one petition

• No response unless requested by court

• If panel rehearing only, 3 paper copies if exceeds 50 pages

• If en banc or combined, 15 paper copies if exceeds 50 pages

• No filing fee


Petitions•Common Petitions•Extraordinary Writs (Mandamus or Prohibition)• Must serve copy on trial judge

• Court may decide without a response, or order response from other parties and/or trial judge

• 7,800 word limit

• $500 filing fee

• 3 paper copies if exceeds 50 pages


Civil v. Criminal Appeals• In criminal cases, Notice of Appeal must be with 14 days of later of

(1) order or judgment being appealed or (2) government’s notice of appeal

• Criminal cases use Form B instead of Form D (and Form C is not required)

• Many criminal cases are assigned cases through (CJA) – Criminal Justice Act; Court will pay printing costs for these cases

• In criminal cases regarding sentencing guidelines, a copy of the presentencing report must be submitted in hard copy, sealed in an envelope

Thank You


Jacquelyn Mouquin | Senior Appellate Counsel [email protected] | D: 212.213.4796

mailto:[email protected]

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