DP Tool Club 8/CDASC08.ISO/VRAC/COURTRUL.ZIP/FRAP2C.ASC

Text File | 1993-08-30 | 16KB | 335 lines

#help.tut   PRESS ENTER FOR HELP
#frap.idx   Index to Federal Rules of Appellate Procedure
#frap1.sta FRAP 1-6
#frap1xa.sta FRAP 7-11
#frap1xb.sta FRAP 12-24
#frap2a.sta FRAP 25-28
#frap2b.sta FRAP 29-38
#frap2d.sta  FRAP 47-48; appendix of forms
FRAP 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 State 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 Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986.)


FRAP 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.  The petition shall state with
particularity the points of law or fact which in the opinion of
the petitioner the court has overlooked or misapprehended and
shall 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. 30, 1979, eff. Aug. 1, 1979.)
FRAP 41

ISSUANCE OF MANDATE; STAY OF MANDATE

 (a) Date of issuance. The mandate of the court shall issue 21
days after the entry of judgment unless the time is shortened or
enlarged by order. A certified copy of the judgment and a copy
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 shall 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 application for certiorari. A stay
of the mandate pending application to the Supreme Court for a
Write of Certiorari may be granted upon motion, reasonable notice
of which shall be given to all parties. The stay shall not exceed
30 days unless the period is extended for cause shown. If during
the period of the stay there is filed with the Clerk of the Court
of Appeals a notice from the Clerk of the Supreme Court that the
party who has obtained the stay has filed a petition for the writ
in that court, the stay shall continue until final disposition by
the Supreme Court. Upon the filing of a copy of an order of the
Supreme Court denying a petition for Writ of Certiorari, the
mandate shall issue immediately. A bond or other security may be
required as a condition to the grant or continuance of a stay of
the mandate.

FRAP 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.

FRAP 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 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.)

FRAP 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.


FRAP 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 Year's 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. 1, 1971, eff. July 1, 1971; Mar. 10, 1986, eff.
July 1, 1986.)


FRAP 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.)