Electronic Bookshelf/Electronic Bookshelf.iso/govern/courts/frap2b.sta

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FRAP 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.


FRAP 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 shall be filed with the clerk, unless the
court by order in a particular case shall direct a lesser number,
and 2 copies shall be served on counsel for each party separately
represented.  If a party is allowed to file typewritten ribbon
and carbon copies of the brief, the original and 3 legible copies
shall be filed with the clerk, and 1 copy shall 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 Mar. 30, 1970, eff. July 1, 1970; Mar. 10, 1986, eff.
July 1, 1986.)


FRAP 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 by 11 inches and type matter not exceeding
6 by 9 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 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.


FRAP 33

PREHEARING CONFERENCE

 The court may direct the attorneys for the parties to
appear before the court or a judge thereof for a prehearing
conference to consider the simplification of the issues and such
other matters as may aid in the disposition of the proceeding by
the court.  The court or judge shall make an order which recites
the action taken at the conference and the agreements made by the
parties as to any of the matters considered and which limits the
issues to those not disposed of by admissions or agreements of
counsel, and such order when entered controls the subsequent
course of the proceeding, unless modified to prevent manifest
injustice.

FRAP 34

ORAL ARGUMENT

 (a) In general; local rule.  Oral argument shall be
allowed in all cases unless pursuant to local rule a panel of 3
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 standard:

 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.  The opening argument
shall include a fair statement of the case.  Counsel will not be
permitted to 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 court
room before the court convenes on the date of the argument.
After the argument counsel shall cause the exhibits to be removed
from the court room 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. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986; Apr. 30, 1991, eff. Dec.1, 1991.)

FRAP 35

DETERMINATION OF CAUSES BY THE COURT IN BANC

 (a)  When hearing or rehearing in 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 in 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 in
banc.  A party may suggest the appropriateness of a hearing or
rehearing in 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 in 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 in banc; suggestion does not stay mandate.  If a party
desires to suggest that an appeal be heard initially in banc, the
suggestion must be made by the date on which the appellee's brief
is filed.  A suggestion for a rehearing in 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.

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


FRAP 36

ENTRY OF JUDGMENT

 The notation of a judgment on 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.

FRAP 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.

FRAP 38

DAMAGES FOR DELAY

 If a court of appeals shall determine that an appeal is
frivolous, it may award just damages and single or double costs
to the appellee.