Electronic Bookshelf/Electronic Bookshelf.iso/govern/courts/frap1.asc

Text File | 1993-08-30 | 19.8 KB | 408 lines

#help.tut   PRESS ENTER FOR HELP
#frap.idx   Index to Federal Rules of Appellate Procedure
#frap1xa.sta FRAP 7-11
#frap1xb.sta FRAP 12-24
#frap2a.sta FRAP 25-28
#frap2b.sta FRAP 29-38
#frap2c.sta FRAP 39-46
#frap2d.sta  FRAP 47-48; appendix of forms
/* The Federal Rules of Appellate Procedure follow. */

Updated January 1, 1993
FRAP 1

SCOPE OF RULES

 (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.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff.
Dec. 1, 1989.)

Updated January 1, 1993

FRAP 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.

FRAP 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 shall
be taken by filing a notice of appeal with the clerk of the
district court within the time allowed by Rule 4. 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
shall be taken in the manner prescribed by Rule 5 and Rule 6
respectively.


 (b) Joint or consolidated appeals.  If 2 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.  The notice of
appeal shall specify the party or parties taking the appeal;
shall designate the judgment, order or part thereof appealed
from; and shall name the court to which the appeal is taken.
Form 1 in the Appendix of Forms is a suggested form of a notice
of appeal.  An appeal shall not be dismissed for informality of
form or title of the notice of appeal.

 (d) Service of 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 thereof to counsel of record of each
party other than the appellant, or, if a party is not represented
by counsel, to the last known address of that party; and the
clerk shall transmit forthwith a copy of the notice of appeal and
of the docket entries to the clerk of the court of appeals named
in the notice.  When an appeal is taken by a defendant in a
criminal case, the clerk 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 on which the notice of appeal was filed.  Failure
of the clerk to serve notice shall not affect the validity of the
appeal. Service shall be 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.

Updated January 1, 1993 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. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989.)

FRAP 4

APPEAL AS OF RIGHT-WHEN TAKEN

(a) Appeals in civil cases.

 (1) 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 shall 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 on
which it was received and transmit it to the clerk of the
district court and it shall be deemed filed in the district court
on the date so noted.

 (2) Except as provided in (a)(4) of this Rule 4, a notice
of appeal filed after the announcement of a decision or order but
before the entry of the judgment or order shall be treated as
filed after such entry and on the day thereof.

 (3) If a timely notice of appeal is filed by a party, any
other party may file a notice of appeal within 14 days after the
date on which the first notice of appeal was filed, or within the
time otherwise prescribed by this Rule 4(a), whichever period
last expires.

 (4) If a timely motion under the Federal Rules of Civil
Procedure is filed in the district court by any party:  (i) for
judgment under Rule 50(b); (ii) under Rule 52(b) to amend or make
additional findings of fact, whether or not an alteration of the
judgment would be required if the motion is granted; (iii) under
Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for
a new trial, the time for appeal for all parties shall run from
the entry of the order denying a new trial or granting or denying
any other such motion.  A notice of appeal filed before the
disposition of any of the above motions shall have no effect.  A
new notice of appeal must be filed within the prescribed time
measured from the entry of the order disposing of the motion as
provided above.  No additional fees shall be required for such
filing.

 (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
the Rule 4(a) when it is entered in compliance with Rules 58 and
79(a) of the Federal Rules of Civil Procedure.

 (b) Appeals in criminal cases.  In a criminal case the
notice of appeal by a defendant shall be filed in the district
court within 10 days after the entry of (i) the judgment or order
appealed from or (ii) 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 shall
be treated as filed after such entry and on the day thereof.  If
a timely motion in arrest of judgment or for a new trial on any
ground other than newly discovered evidence has been made, an
appeal from a judgment of conviction may be taken within 10 days
after the entry of an order denying the motion.  A motion for a
new trial based on the ground of newly discovered evidence will
similarly extend the time for appeal from a judgment of
conviction if the motion is made before or within 10 days after
entry of the judgment.  When an appeal by the government is
authorized by statute, the notice of appeal shall be filed in the
district court within 30 days after the entry of (i) the judgment
or order appealed from or (ii) a notice of appeal by any
defendant.  A judgment or order is entered within the meaning of
this subdivision when it is entered in 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.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Nov. 18, 1988, Apr.
30, 1991, eff. Dec. 1, 1991.)

FRAP 5

APPEALS 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 the 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.  Three copies shall be filed with the original, but
the court may require that additional copies be furnished.

 (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. 30, 1979, eff. Aug. 1, 1979.) Updated January 1,
1993

FRAP 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 pursuant to 28 U.S.C.  636(c)(4) to a judge of
the district court from a judgment entered upon direction of a
magistrate 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.  Three copies shall be filed with the original, but
the court may require that additional copies be furnished.

 (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 added Mar. 10, 1986, eff. July 1, 1986.) Updated January 1,
1993

FRAP 6

APPEALS IN BANKRUPTCY CASES FROM FINAL JUDGMENTS AND ORDERS OF
DISTRICT COURTS OR OF BANKRUPTCY APPELLATE PANELS

 (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 additional 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 motion for rehearing on time for appeal.
If a timely motion for rehearing under Bankruptcy Rule 8015 is
filed in the district court or the bankruptcy appellate panel,
the time for appeal to the court of appeals for all parties shall
run from the entry of the order denying the rehearing or the
entry of the subsequent judgment.

 (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 appeal 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 arrangement 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. 30, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff.
Dec. 1, 1989, Apr. 30, 1991, eff. Dec. 1, 1991.)

/* This rule presumably will be updated soon since there are no
more "Bankruptcy Applellate Panels." */