# United States Court of Appeals

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URL: https://www.frixlaw.com/law-library/documents/federal_court_rules%3Aca1%3A7f679b1641b0dd13

## Record

- **Collection:** Court rules
- **Document type:** Court rule

## Text

United States Court of Appeals
For the First Circuit

Rulebook

Federal Rules of Appellate Procedure
First Circuit Local Rules
First Circuit Internal Operating Procedures
Administrative Order Regarding
Case Management /Electronic Case Files System (CM/ECF)
Rules of Attorney Disciplinary Enforcement for the
Court of Appeals for the First Circuit
Rules For Judicial-Conduct and Judicial-Disability Proceedings
Effective with amendments through June 1, 2026
Maine

Massachusetts
Rhode Island

New Hampshire
Puerto Rico

Table of Contents
Table of Contents ........................................................................................................................................ 1
Judges of the Court ..................................................................................................................................... 4
Officers of the Court ................................................................................................................................... 4
Advisory Committee on Rules ................................................................................................................... 4
Court of Appeals Miscellaneous Fee Schedule ...................................................................................... 5
Notice to Litigants ....................................................................................................................................... 7
TITLE I. APPLICABILITY OF RULES .............................................................................................. 8
Rule 1. Scope of Rules; Definition; Title............................................................................................. 8
Rule 2.
Suspension of Rules .............................................................................................................. 8
TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT.................... 9
Rule 3. Appeal as of Right — How Taken ......................................................................................... 9
Local Rule 3.0. Docketing Statement Required; Dismissals for Want of Diligent Prosecution .... 11
Rule 3.1. Appeal from a Judgment of a Magistrate Judge in a Civil Case ........................................ 11
Rule 4. Appeal as of Right — When Taken ..................................................................................... 12
Rule 5. Appeal by Permission ........................................................................................................... 16
Rule 5.1 Appeal by Leave Under 28 U.S.C. § 636 (c)(5) ................................................................. 18
Rule 6. Appeal in a Bankruptcy Case or Proceeding ........................................................................ 18
Rule 7. Bond for Costs on Appeal in a Civil Case............................................................................ 22
Rule 8. Stay or Injunction Pending Appeal ...................................................................................... 22
Rule 9. Release in a Criminal Case ................................................................................................... 23
Local Rule 9.0. Recalcitrant Witnesses ...................................................................................... 24
Rule 10. The Record on Appeal ......................................................................................................... 24
Local Rule 10.0. Ordering Transcripts ......................................................................................... 26
Rule 11. Forwarding the Record ........................................................................................................ 27
Local Rule 11.0. Transmission of the Record, Sealed Documents ............................................. 28
Local Rule 12.0. Appearance, Withdrawal of Appearance ........................................................ 30
Rule 12.1. Remand After an Indicative Ruling by the District Court on a Motion for Relief That Is
Barred by a Pending Appeal ................................................................................................................. 30
TITLE III. APPEALS FROM THE UNITED STATES TAX COURT ........................................... 31
Rule 13. Appeals From the Tax Court ............................................................................................... 31
Rule 14. Applicability of Other Rules to Appeals from the Tax Court ............................................. 32
TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE
AGENCY, BOARD, COMMISSION, OR OFFICER ........................................................................... 32
Rule 15. Review or Enforcement of an Agency Order — How Obtained; Intervention ................... 32
Rule 15.1. Briefs and Oral Argument in a National Labor Relations Board Proceeding .................. 33
Rule 16. The Record on Review or Enforcement .............................................................................. 33
Rule 17. Filing the Record ................................................................................................................. 34
Rule 18. Stay Pending Review........................................................................................................... 34
Local Rule 18.0 Stay in Immigration Cases; Notification of Removal Date............................... 35
Rule 19. Settlement of a Judgment Enforcing an Agency Order in Part ........................................... 36
Rule 20. Applicability of Rules to the Review or Enforcement of an Agency Order ....................... 36
TITLE V. EXTRAORDINARY WRITS ............................................................................................. 36
Rule 21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs ................................ 36
TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS .................................. 38
Rule 22. Habeas Corpus and Section 2255 Proceedings ................................................................... 38
1

Local Rule 22.0. Habeas Corpus; Certificate of Appealability ...................................................... 39
Local Rule 22.1. Habeas Corpus; Successive Petitions .................................................................. 40
Rule 23. Custody or Release of a Prisoner in a Habeas Corpus Proceeding ..................................... 41
Rule 24. Proceeding in Forma Pauperis ............................................................................................. 41
TITLE VII. GENERAL PROVISIONS ............................................................................................... 43
Rule 25. Filing and Service ................................................................................................................ 43
Local Rule 25.0. Electronic Case Filing System and Facsimile ..................................................... 45
Rule 26. Computing and Extending Time ......................................................................................... 50
Rule 26.1. Disclosure Statement ........................................................................................................ 52
Rule 27. Motions ................................................................................................................................ 53
Local Rule 27.0. Motions.............................................................................................................. 55
Rule 28. Briefs ................................................................................................................................... 56
Local Rule 28.0. Addendum to Briefs Required................................................................................... 58
Local Rule 28.1. References in Briefs to Sealed Material .............................................................. 59
Rule 28.1. Cross-Appeals .................................................................................................................. 59
Rule 29. Brief of an Amicus Curiae................................................................................................... 61
Rule 30. Appendix to the Briefs ........................................................................................................ 63
Local Rule 30.0. Appendix to the Briefs ........................................................................................ 65
Rule 31. Serving and Filing Briefs .................................................................................................... 66
Local Rule 31.0. Filing Briefs......................................................................................................... 67
Rule 32. Form of Briefs, Appendices, and Other Papers ................................................................... 67
Local Rule 32.0. Computer Generated Disk Requirement for Documents Filed in Paper Form ... 70
Local Rule 32.2. Citation of State Decisions and Law Review Articles ........................................ 71
Local Rule 32.4. Motions for Leave to File Oversized Briefs ........................................................ 71
Rule 32.1. Citing Judicial Dispositions.............................................................................................. 71
Local Rule 32.1.0. Citation of Unpublished Dispositions .............................................................. 71
Rule 33. Appeal Conferences ............................................................................................................ 72
Local Rule 33.0. Civil Appeals Management Plan ......................................................................... 72
Rule 34. Oral Argument ..................................................................................................................... 73
Rule 35. (Transferred to Rule 40) ...................................................................................................... 76
Local Rule 35.0 (Transferred to Local Rule 40.0) .......................................................................... 76
Rule 36. Entry of Judgment; Notice .................................................................................................. 76
Local Rule 36.0. Opinions .......................................................................................................... 76
Rule 37. Interest on Judgment ........................................................................................................... 78
Rule 38. Frivolous Appeal—Damages and Costs.............................................................................. 78
Local Rule 38.0. Sanctions for Vexatious Litigation.................................................................. 78
Rule 39. Costs .................................................................................................................................... 78
Local Rule 39.0. Taxation of Reproduction Costs ...................................................................... 80
Local Rule 39.1. Fee Applications .............................................................................................. 80
Rule 40. Panel Rehearing; En Banc Determination ........................................................................... 81
Local Rule 40.0. Petition for Panel Rehearing; En Banc Determination.................................... 83
Rule 41. Mandate: Contents; Issuance and Effective Date; Stay ....................................................... 84
Local Rule 41.0. Stay of Mandate .............................................................................................. 85
Rule 42. Voluntary Dismissal ............................................................................................................ 85
Rule 43. Substitution of Parties ......................................................................................................... 86
Rule 44. Case Involving a Constitutional Question When the United States or the Relevant State is
Not a Party ............................................................................................................................................ 87
Rule 45. Clerk’s Duties ...................................................................................................................... 87
2

Local Rule 45.0. Defaults ........................................................................................................... 88
Local Rule 45.1. The Clerk ......................................................................................................... 89
Rule 46. Attorneys ............................................................................................................................. 89
Local Rule 46.0.
Attorneys ........................................................................................................ 90
Local Rule 46.5. Appointment of Counsel in Criminal Cases.................................................... 94
Rule 47. Local Rules by Courts of Appeals ....................................................................................... 97
Local Rule 47.0. Local Rules of the First Circuit ....................................................................... 98
Local Rule 47.1. Judicial Conference of the First Circuit .......................................................... 99
Rule 48. Masters ................................................................................................................................ 99
Local Rule 48.0. Capital Cases ................................................................................................. 100
Appendix of Forms ................................................................................................................................. 102
Form 1A. Notice of Appeal to a Court of Appeals From a Judgment of a District Court ......... 103
Form 1B. Notice of Appeal to a Court of Appeals From an Appealable Order of a District Court
104
Form 2. Notice of Appeal to a Court of Appeals From a Decision of the United States Tax Court
105
Form 3. Petition for Review of Order of an Agency, Board, Commission or Officer ............... 106
Form 4. Affidavit Accompanying Motion for Permission to Appeal in Forma Pauperis .......... 107
Form 5. Notice of Appeal to a Court of Appeals from a Judgment or Order of a District Court or
a Bankruptcy Appellate Panel ....................................................................................................... 112
Form 6. Certificate of Compliance With Type-Volume Limit .................................................. 113
Form 7. Declaration of Inmate Filing ........................................................................................... 114
Appendix:................................................................................................................................................. 115
First Circuit Internal Operating Procedures ....................................................................................... 117
Introduction ................................................................................................................................... 117
Internal Operating Procedure I. Court Organization .................................................................. 117
Internal Operating Procedure II. Attorneys................................................................................ 117
Internal Operating Procedure III. Initial Procedures .................................................................. 118
Internal Operating Procedure IV. Docketing Procedures .......................................................... 118
Internal Operating Procedure V. Motion Procedures................................................................. 119
Internal Operating Procedure VI. Briefs and Appendices ......................................................... 120
Internal Operating Procedure VII. Screening and Calendaring ................................................. 120
Internal Operating Procedure VIII. Oral Argument ...................................................................... 122
Internal Operating Procedure IX. Opinions & Judgments ............................................................ 122
Internal Operating Procedure X. Petitions for Panel Rehearing and Petitions for Hearing or
Rehearing En Banc ....................................................................................................................... 123
Internal Operating Procedure XI. Complaints Against Judges ..................................................... 123
Internal Operating Procedure XII. Notification of Changes or Notifications of the Court's Local
Rules and Internal Operating Procedures ..................................................................................... 123
Rules of Attorney Disciplinary Enforcement for the Court of Appeals for the First Circuit..........125
RULES FOR JUDICIAL-CONDUCT AND JUDICIAL-DISABILITY PROCEEDINGS.............133

3

Judges of the Court
Hon. David J. Barron, Chief Judge
Hon. Gustavo A. Gelpí, Jr., Circuit Judge
Hon. Lara E. Montecalvo, Circuit Judge
Hon. Julie Rikelman, Circuit Judge
Hon. Seth R. Aframe, Circuit Judge
Hon. Joshua D. Dunlap, Circuit Judge
Hon. Sandra L. Lynch, Senior Circuit Judge
Hon. Kermit V. Lipez, Senior Circuit Judge
Hon. Jeffrey R. Howard, Senior Circuit Judge
Hon. O. Rogeriee Thompson, Senior Circuit Judge
Hon. William J. Kayatta, Jr., Senior Circuit Judge
Hon. Ketanji Brown Jackson, Circuit Justice

Officers of the Court
Anastasia Dubrovsky, Clerk of Court
Susan Goldberg, Circuit Executive
George P. Taoultsides, Circuit Librarian
Jane Willoughby, Senior Staff Attorney

Advisory Committee on Rules
Roberto Prats Palerm, Chair
Kaitlin Caruso
Dan Deane
Christine DeMaso
Mark Fleming
Krystle Guillory Tadese
Nilda M. Navarro-Cabrer
David J. Zimmer
Lauren S. Zurier

4

Court of Appeals Miscellaneous Fee Schedule
(Issued in accordance with 28 U.S.C. § 1913)
Effective December 1, 2023
The fees included in the Court of Appeals Miscellaneous Fee Schedule are to be charged for
services provided by the courts of appeals, including relevant services provided by the bankruptcy
appellate panels established under 28 U.S. C. § 158(b)(1).
•

The United States should not be charged fees under this schedule, except as prescribed
in Items 2, 4, and 5 when the information requested is available through remote electronic
access.

•

Federal agencies or programs that are funded from judiciary appropriations (agencies,
organizations, and individuals providing services authorized by the Criminal Justice Act,
18 U.S.C. § 3006A, and bankruptcy administrators) should not be charged any fees under
this schedule.

(1) For docketing a case on appeal or review, or docketing any other proceeding, $600.
•

Each party filing a notice of appeal pays a separate fee to the district court, but parties
filing a joint notice of appeal pay only one fee.

•

There is no docketing fee for an application for an interlocutory appeal under 28 U.S.C.
§ 1292(b) or other petition for permission to appeal under Fed. R. App. P. 5, unless the
appeal is allowed.

•

There is no docketing fee for a direct bankruptcy appeal or a direct bankruptcy cross
appeal, when the fee has been collected by the bankruptcy court in accordance with item
14 of the Bankruptcy Court Miscellaneous Fee Schedule.

•

This fee is collected in addition to the statutory fee of $5 that is collected under 28 U.S.C.
§ 1917.

[Upon filing a notice of appeal in the district court, appellant shall pay the clerk of the
district court a fee of $605, which includes the $5 statutory filing fee for the notice of appeal,
and a $600 fee for docketing the appeal in this court. Upon filing a petition for review of an
agency order or a petition for writ of mandamus, petitioner shall pay the $600 docketing fee,
payable to the Clerk, U.S. Court of Appeals.]
(2) For conducting a search of the court of appeals or bankruptcy appellate panel records, $34 per
name or item searched. This fee applies to services rendered on behalf of the United States if
the information requested is available through remote electronic access.
(3) For certification of any document, $12. For the issuance of an apostille, $50.
(4)

(a) For reproducing any document and providing a copy in paper form, $.50 per page.
This fee applies to services rendered on behalf of the United States if the document
requested is available through remote electronic access.
5

(b) For reproducing and transmitting in any manner a copy of an electronic record
stored outside of the court's electronic case management system, including but not
limited to, document files, audio and video recordings (other than a recording of a
court proceeding), $33 per record provided.
(5)

For reproducing recordings of proceedings, regardless of the medium, $34, including the cost
of materials. This fee applies to services rendered on behalf of the United States if the
recording is available through remote electronic access.

(6)

For reproducing the record in any appeal in which the court of appeals does not require an
appendix pursuant to Fed. R. App. P.30(f), (or, in appeals before a bankruptcy appellate
panel, pursuant to Fed. R. Bankr. P. 8018(e)), $94.

(7)

For retrieval of one box of records from a Federal Records Center, National Archives, or
other storage location removed from the place of business of the court, $70. For retrievals
involving multiple boxes, $43 for each additional box. For electronic retrievals, $11 plus any
charges assessed by the Federal Records Center, National Archives, or other storage location
removed from the place of business of the courts.

(8)

For any payment returned or denied for insufficient funds, or reversed due to a chargeback, $53.

(9)

For copies of opinions, a fee commensurate with the cost of printing, as fixed by each court
of appeal.
[Opinions may be purchased from the clerk of the court of appeals at a cost of $5 per opinion.
Opinions in electronic form are available free of charge from the court's website,
http://www.ca1.uscourts.gov.]

(10) For copies of the local rules of court, a fee commensurate with the cost of distributing the
copies. The court may also distribute copies of the local rules without charge.
(11) For filing:
•

Any separate or joint notice of appeal or application for appeal from the bankruptcy
appellate panel, $5.

•

A notice of the allowance of an appeal from the bankruptcy appellate panel, $5.

(12) For counsel’s requested use of the court’s videoconferencing equipment in connection with
each oral argument, the court may charge and collect a fee of $200 per remote location.
(13) For original admission of an attorney to practice, including a certificate of admission, $199.
For a duplicate certificate of admission or certificate of good standing, $21.
[The First Circuit collects a local attorney admission fee of $50.00 in addition to the national
attorney admission fee of $199.00 imposed by this fee schedule pursuant to 28 U.S.C. § 1913.
See 1st Cir. R. 46.0(a)(1). Absent a waiver, the payment of the combined fee of $249.00 must
be paid electronically using the court's Case Management/Electronic Case Files
("CM/ECF") system.]
6

Notice to Litigants
To assist litigants in preparing documents that conform to the Federal Rules of Appellate Procedure
[Fed. R. App. P.] and the Local Rules of this Court [1st Cir. R.], the Clerk's Office has compiled a
list of common, but easily avoidable, errors that often delay the processing of cases and may
result in the striking or returning for correction of submitted documents.
1. Ordering Transcripts
Requests for transcripts must be made to the court reporter immediately and a copy filed in the
district court. The Transcript Order form specified in Local Rule 10.0(b) must be used. Counsel
must accurately complete the form and arrange for payment for the Order to be effective. See 1st
Cir. R. 10.0.
2. Form of Briefs
The parties must carefully comply with the margin, print size, and word limit requirements of
Fed. R. App. P. 32.
3. Contents of Briefs
The parties are directed to Fed. R. App. P. 28, which sets forth the contents of briefs. The required
sections must be under the appropriate headings and in the order indicated by the rule. The
appellant’s brief must also include an addendum. See 1st Cir. R. 28.0.
4. References in Briefs to the Record Required
To enable the Court to verify the documentary basis of the parties' arguments, factual assertions
must be supported by accurate references to the appendix or to the record. Counsel and parties
should ensure that transcripts cited in the briefs have been filed and made a part of the record on
appeal. The appellant is responsible for preparing an appendix in accordance with Fed. R. App.
P. 30 and 1st Cir. R. 30.0, with each page clearly numbered.
5. Motions to Enlarge Filing Dates or Length of Briefs
Motions to enlarge time to file briefs or to file briefs in excess of applicable length limitations
are discouraged. Any such request must be made by a motion filed well before the expiration of
the time limit for filing the brief. See 1st Cir. R. 32.4.
6. Disclosure Statement
Counsel representing a nongovernmental corporation must include a disclosure statement as
specified in Fed. R. App. P. 26.1 in the first document submitted for filing with the Court, and
again in front of the table of contents in the party's principal brief. A disclosure statement must
be filed even if the party has no information to disclose.
7. Certificate of Service
The Court will not consider any motion, brief, or document that has not been served on all parties.
The Notice of Docket Activity that is generated by the court's electronic filing system constitutes
service on all ECF filers. 1st Cir. R. 25.0(e). If a certificate of service is required by Fed. R. App.
P. 25(d), it should be attached to the document's last page and indicate: the date of service; the
manner of service; and the names and addresses of the persons served. See Fed. R. App. P. 25(d).

7

Federal Rules of Appellate Procedure and First Circuit Local Rules
TITLE I.
Rule 1.

APPLICABILITY OF RULES

Scope of Rules; Definition; Title

(a) Scope of Rules.
(1) These rules govern procedure in the United States courts of appeals.
(2) When these rules provide for filing a motion or other document in the district court, the
procedure must comply with the practice of the district court.
(b) Definition. In these rules, ‘state’ includes the District of Columbia and any United States
commonwealth or territory.
(c) Title. These rules are to be known as the Federal Rules of Appellate Procedure.

Rule 2.

Suspension of Rules

(a)

In a Particular Case. On its own or a party’s motion, a court of appeals may — to expedite
its decision or for other good cause — suspend any provision of these rules in a particular
case and order proceedings as it directs, except as otherwise provided in Rule 26(b).

(b)

In an Appellate Rules Emergency.
(1)

Conditions for an Emergency. The Judicial Conference of the United States may
declare an Appellate Rules emergency if it determines that extraordinary
circumstances relating to public health or safety, or affecting physical or electronic
access to a court, substantially impair the court's ability to perform its functions in
compliance with these rules.

(2)

Content. The declaration must:
(A)

designate the circuit or circuits affected; and

(B)

be limited to a stated period of no more than 90 days.

(3)

Early Termination. The Judicial Conference may terminate a declaration for one
or more circuits before the termination date.

(4)

Additional Declarations.

The Judicial Conference may issue additional
8

declarations under this rule.
(5)

Proceedings in a Rules Emergency. When a rules emergency is declared, the court
may:
(A)

Suspend in all or part of that circuit any provision of these rules, other than
time limits imposed by statute and described in Rule 26(b)(1)-(2); and

(B)

order proceedings as it directs.

TITLE II.

Rule 3.

APPEAL FROM A JUDGMENT OR ORDER
OF A DISTRICT COURT

Appeal as of Right — How Taken

(a) Filing the Notice of Appeal.
(1) An appeal permitted by law as of right from a district court to a court of appeals may be
taken only by filing a notice of appeal with the district clerk within the time allowed by
Rule 4. At the time of filing, the appellant must furnish the clerk with enough copies of
the notice to enable the clerk to comply with Rule 3(d).
(2) An appellant’s failure 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 the court of appeals to act
as it considers appropriate, including dismissing the appeal.
(3) An appeal from a judgment by a magistrate judge in a civil case is taken in the same way
as an appeal from any other district court judgment.
(4) An appeal by permission under 28 U.S.C. § 1292(b) or an appeal in a bankruptcy case
may be taken only in the manner prescribed by Rules 5 and 6, respectively.
(b) Joint or Consolidated Appeals.
(1) When two or more parties are entitled to appeal from a district-court judgment or order,
and their interests make joinder practicable, they may file a joint notice of appeal. They
may then proceed on appeal as a single appellant.
(2) When the parties have filed separate timely notices of appeal, the appeals may be joined
or consolidated by the court of appeals.
(c) Contents of the Notice of Appeal.
(1) The notice of appeal must:
9

(A) specify the party or parties taking the appeal by naming each one in the caption or
body of the notice, but an attorney representing more than one party may describe
those parties with such terms as “all plaintiffs,” “the defendants,” “the plaintiffs A, B,
et al.,” or “all defendants except X”;
(B) designate the judgment– or the appealable order– from which the appeal is taken; and
(C) name the court to which the appeal is taken.
(2) A pro se notice of appeal is considered filed on behalf of the signer and the signer’s spouse
and minor children (if they are parties), unless the notice clearly indicates otherwise.
(3) In a class action, whether or not the class has been certified, the notice of appeal is
sufficient if it names one person qualified to bring the appeal as representative of the class.
(4) The notice of appeal encompasses all orders that, for purposes of appeal, merge into the
designated judgment or appealable order. It is not necessary to designate those orders in
the notice of appeal.
(5) In a civil case, a notice of appeal encompasses the final judgment, whether or not that
judgment is set out in a separate document under Federal Rules of Civil Procedure 58, if
the notice designates:
(A) an order that adjudicates all remaining claims and the rights and liabilities of all
remaining parties; or
(B) an order described in Rule 4(a)(4)(A).
(6) An appellant may designate only part of a judgment or appealable order by expressly
stating that the notice of appeal is so limited. Without such an express statement, specific
designations do not limit the scope of the notice of appeal.
(7) An appeal must not be dismissed for informality of form or title of the notice of appeal, for
failure to name a party whose intent to appeal is otherwise clear from the notice, or for
failure to properly designate the judgment if the notice of appeal was filed after entry of
the judgment and designates an order that merged into that judgment.
(8) Forms 1A and 1B in the Appendix of Forms are suggested forms of notices of appeal.
(d) Serving the Notice of Appeal.
(1) The district clerk must serve notice of the filing of a notice of appeal by sending a copy to
each party’s counsel of record — excluding the appellant’s — or, if a party is proceeding
pro se, to the party’s last known address. When a defendant in a criminal case appeals, the
clerk must also serve a copy of the notice of appeal on the defendant. The clerk must
promptly send a copy of the notice of appeal and of the docket entries — and any later
docket entries — to the clerk of the court of appeals named in the notice. The district clerk
10

must note, on each copy, the date when the notice of appeal was filed.
(2) If an inmate confined in an institution files a notice of appeal in the manner provided by
Rule 4(c), the district clerk must also note the date when the clerk docketed the notice.
(3) The district clerk’s failure to serve notice does not affect the validity of the appeal. The
clerk must note on the docket the names of the parties to whom the clerk sends copies,
with the date of sending. Service is sufficient despite the death of a party or the party’s
counsel.
(e) Payment of Fees. Upon filing a notice of appeal, the appellant must pay the district clerk all
required fees. The district clerk receives the appellate docket fee on behalf of the court of
appeals.

Local Rule 3.0. Docketing Statement Required; Dismissals for Want of Diligent Prosecution
(a) Docketing Statement Required. To provide the clerk of the Court of Appeals at the
commencement of an appeal with the information needed for effective case management,
within 14 days after the case is docketed in the court of appeals, the person or persons taking
the appeal must submit a separate statement listing all parties to the appeal, the last known
counsel, and last known addresses and e-mail addresses for counsel and unrepresented
parties. Errors or omissions in this separate statement alone shall not otherwise affect the
appeal if the notice of appeal itself complies with this rule.
(1) Form. Counsel filing an appeal must complete and file a docketing statement, using the
form provided by the clerk of the appeals court.
(2) Service. A copy of the docketing statement and any attachments must be served on the
opposing party or parties at the time the docketing statement is filed.
(3) Duty of Opposing Party. If an opposing party concludes that the docketing statement is
in any way inaccurate, incomplete, or misleading, the clerk’s office must be informed in
writing of any errors and any proposed additions or corrections within fourteen days of
service of the docketing statement, with copies to all other parties.
(b) If appellant does not pay the docket fee within 14 days of the filing of the notice of appeal, or
does not file the docketing statement or any other document within the time set by the court,
the appeal may be dismissed for want of diligent prosecution.

Rule 3.1.
Appeal from a Judgment of a Magistrate Judge in a Civil Case
[Abrogated]

11

Rule 4.

Appeal as of Right — When Taken

(a) Appeal in a Civil Case.
(1) Time for Filing a Notice of Appeal.
(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of
appeal required by Rule 3 must be filed with the district clerk within 30 days after
entry of the judgment or order appealed from.
(B) The notice of appeal may be filed by any party within 60 days after entry of the
judgment or order appealed from if one of the parties is:
(i)

the United States;

(ii) a United States agency;
(iii) a United States officer or employee sued in an official capacity; or
(iv) a current or former United States officer or employee sued in an individual
capacity for an act or omission occurring in connection with duties performed on
the United States' behalf—including all instances in which the United States
represents that person when the judgment or order is entered or files the appeal
for that person.
(C) An appeal from an order granting or denying an application for a writ of error coram
nobis is an appeal in a civil case for purposes of Rule 4(a).
(2) Filing Before Entry of Judgment. 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) Multiple Appeals. 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 ends later.
(4) Effect of a Motion on a Notice of Appeal.
(A) If a party files in the district court any of the following motions under the Federal
Rules of Civil Procedure—and does so within the time allowed by those rules—the
time to file an appeal runs for all parties from the entry of the order disposing of the
last such remaining motion:
(i)

for judgment under Rule 50(b);

(ii) to amend or make additional factual findings under Rule 52(b), whether or not
granting the motion would alter the judgment;
12

(iii) for attorney’s fees under Rule 54 if the district court extends the time to appeal
under Rule 58;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is filed within the time allowed for filing a
motion under Rule 59.
(B) (i) If a party files a notice of appeal after the court announces or enters a judgment—
but before it disposes of any motion listed in Rule 4(a)(4)(A)—the notice becomes
effective to appeal a judgment or order, in whole or in part, when the order
disposing of the last such remaining motion is entered.
(ii) A party intending to challenge an order disposing of any motion listed in Rule
4(a)(4)(A), or a judgment’s alteration or amendment upon such a motion, must
file a notice of appeal, or an amended notice of appeal—in compliance with Rule
3(c)—within the time prescribed by this Rule measured from the entry of the order
disposing of the last such remaining motion.
(iii) No additional fee is required to file an amended notice.
(5) Motion for Extension of Time.
(A) The district court may extend the time to file a notice of appeal if:
(i)

a party so moves no later than 30 days after the time prescribed by this Rule 4(a)
expires; and

(ii) regardless of whether its motion is filed before or during the 30 days after the time
prescribed by this Rule 4(a) expires, that party shows excusable neglect or good
cause.
(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may
be ex parte unless the court requires otherwise. If the motion is filed after the
expiration of the prescribed time, notice must be given to the other parties in
accordance with local rules.
(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or
14 days after the date when the order granting the motion is entered, whichever is
later.
(6) Reopening the Time to File an Appeal. The district court may reopen the time to file an
appeal for a period of 14 days after the date when its order to reopen is entered, but only
if all the following conditions are satisfied:
13

(A) the court finds that the moving party did not receive notice under Federal Rule of Civil
Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21
days after entry;
(B) the motion is filed within 180 days after the judgment or order is entered or within 14
days after the moving party receives notice under Federal Rule of Civil Procedure
77(d) of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced.
(7) Entry Defined.
(A) A judgment or order is entered for purposes of this Rule 4(a):
(i)

if Federal Rule of Civil Procedure 58(a) does not require a separate document,
when the judgment or order is entered in the civil docket under Federal Rule of
Civil Procedure 79(a); or

(ii) if Federal Rule of Civil Procedure 58(a) requires a separate document, when the
judgment or order is entered in the civil docket under Federal Rule of Civil
Procedure 79(a) and when the earlier of these events occurs:
• the judgment or order is set forth on a separate document, or
• 150 days have run from entry of the judgment or order in the civil docket under
Federal Rule of Civil Procedure 79(a).
(B) A failure to set forth a judgment or order on a separate document when required by
Federal Rule of Civil Procedure 58(a) does not affect the validity of an appeal from
that judgment or order.
(b) Appeal in a Criminal Case.
(1) Time for Filing a Notice of Appeal.
(A) In a criminal case, a defendant’s notice of appeal must be filed in the district court
within 14 days after the later of:
(i)

the entry of either the judgment or the order being appealed; or

(ii) the filing of the government’s notice of appeal.
(B) When the government is entitled to appeal, its notice of appeal must be filed in the
district court within 30 days after the later of:
(i)

the entry of the judgment or order being appealed; or

(ii) the filing of a notice of appeal by any defendant.
14

(2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a
decision, sentence, or order — but before the entry of the judgment or order — is treated
as filed on the date of and after the entry.
(3) Effect of a Motion on a Notice of Appeal.
(A) If a defendant timely makes any of the following motions under the Federal Rules of
Criminal Procedure, the notice of appeal from a judgment of conviction must be filed
within 14 days after the entry of the order disposing of the last such remaining motion,
or within 14 days after the entry of the judgment of conviction, whichever period ends
later. This provision applies to a timely motion:
(i)

for judgment of acquittal under Rule 29;

(ii) for a new trial under Rule 33, but if based on newly discovered evidence, only if
the motion is made no later than 14 days after the entry of the judgment; or
(iii) for arrest of judgment under Rule 34.
(B) A notice of appeal filed after the court announces a decision, sentence, or order — but
before it disposes of any of the motions referred to in Rule 4(b)(3)(A) — becomes
effective upon the later of the following:
(i)

the entry of the order disposing of the last such remaining motion; or

(ii) the entry of the judgment of conviction.
(C) A valid notice of appeal is effective — without amendment — to appeal from an order
disposing of any of the motions referred to in Rule 4(b)(3)(A).
(4) Motion for Extension of Time. Upon a finding of excusable neglect or good cause, the
district court may — before or after the time has expired, with or without motion and
notice — extend the time to file a notice of appeal for a period not to exceed 30 days from
the expiration of the time otherwise prescribed by this Rule 4(b).
(5) Jurisdiction. 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 Federal Rule of Criminal Procedure 35(a),
nor does the filing of a motion under 35(a) affect the validity of a notice of appeal filed
before entry of the order disposing of the motion. The filing of a motion under Federal
Rule of Criminal Procedure 35(a) does not suspend the time for filing a notice of appeal
from a judgment of conviction.
(6) Entry Defined. A judgment or order is entered for purposes of this Rule 4(b) when it is
entered on the criminal docket.

15

(c) Appeal by an Inmate Confined in an Institution.
(1) If an institution has a system designed for legal mail, an inmate confined there must use
that system to receive the benefit of this Rule 4(c)(1). If an inmate files a notice of appeal in
either a civil or a criminal case, the notice is timely if it is deposited in the institution’s
internal mail system on or before the last day for filing and:
(A) it is accompanied by:
(i)

a declaration in compliance with 28 U.S.C. § 1746—or a notarized statement—
setting out the date of deposit and stating that first-class postage is being prepaid;
or

(ii) evidence (such as a postmark or date stamp) showing that the notice was so
deposited and that postage was prepaid; or
(B) the court of appeals exercises its discretion to permit the later filing of a declaration
or notarized statement that satisfies Rule 4(c)(1)(A)(i).
(2) If an inmate files the first notice of appeal in a civil case under this Rule 4(c), the 14-day
period provided in Rule 4(a)(3) for another party to file a notice of appeal runs from the
date when the district court dockets the first notice.
(3) When a defendant in a criminal case files a notice of appeal under this Rule 4(c), the 30day 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 docketing of the defendant’s
notice of appeal, whichever is later.
(d) Mistaken Filing in the Court of Appeals. If a notice of appeal in either a civil or a criminal
case is mistakenly filed in the court of appeals, the clerk of that court must note on the notice
the date when it was received and send it to the district clerk. The notice is then considered
filed in the district court on the date so noted.

Rule 5.

Appeal by Permission

(a) Petition for Permission to Appeal.
(1) To request permission to appeal when an appeal is within the court of appeals’ discretion,
a party must file a petition with the circuit clerk and serve it on all other parties to the
district-court action.
(2) The petition must be filed within the time specified by the statute or rule authorizing the
appeal or, if no such time is specified, within the time provided by Rule 4(a) for filing a
notice of appeal.

16

(3) If a party cannot petition for appeal unless the district court first enters an order granting
permission to do so or stating that the necessary conditions are met, the district court may
amend its order, either on its own or in response to a party’s motion, to include the required
permission or statement. In that event, the time to petition runs from entry of the amended
order.
(b) Contents of the Petition; Answer or Cross-Petition; Oral Argument.
(1) The petition must include the following:
(A) the facts necessary to understand the question presented;
(B) the question itself;
(C) the relief sought;
(D) the reasons why the appeal should be allowed and is authorized by a statute or rule;
and
(E) an attached copy of:
(i)

the order, decree, or judgment complained of and any related opinion or
memorandum; and

(ii) any order stating the district court’s permission to appeal or finding that the
necessary conditions are met.
(2) A party may file an answer in opposition or a cross-petition within 10 days after the
petition is served.
(3) The petition and answer will be submitted without oral argument unless the court of
appeals orders otherwise.
(c) Form of Papers; Number of Copies; Length Limits. All papers must conform to Rule
32(c)(2). An original and 3 copies must be filed unless the court requires a different number
by local rule or by order in a particular case. Except by the court's permission, and excluding
the accompanying documents required by Rule 5(b)(1)(E):
(1) a paper produced using a computer must not exceed 5,200 words; and
(2) a handwritten or typewritten paper must not exceed 20 pages.
(d) Grant of Permission; Fees; Cost Bond; Filing the Record.
(1) Within 14 days after the entry of the order granting permission to appeal, the appellant
must:
(A) pay the district clerk all required fees; and
17

(B) file a cost bond if required under Rule 7.
(2) A notice of appeal need not be filed. The date when the order granting permission to appeal
is entered serves as the date of the notice of appeal for calculating time under these rules.
(3) The district clerk must notify the circuit clerk once the petitioner has paid the fees. Upon
receiving this notice, the circuit clerk must enter the appeal on the docket. The record must
be forwarded and filed in accordance with Rules 11 and 12(c).

Rule 5.1

Appeal by Leave Under 28 U.S.C. § 636 (c)(5)
[Abrogated]

Rule 6.

Appeal in a Bankruptcy Case or Proceeding

(a) Appeal From a Judgment, Order, or Decree of a District Court Exercising Original
Jurisdiction in a Bankruptcy Case or Proceeding. An appeal to a court of appeals from a
final judgment, order, or decree of a district court exercising original jurisdiction in a
bankruptcy case or proceeding under 28 U.S.C. § 1334 is taken as any other civil appeal under
these rules. But the reference in Rule 4(a)(4)(A) to the time allowed for motions under certain
Federal Rules of Civil Procedure must be read as a reference to the time allowed for the
equivalent motions under the applicable Federal Rules of Bankruptcy Procedure, which may
be shorter than the time allowed under the Civil Rules.
(b) Appeal From a Judgment, Order, or Decree of a District Court or Bankruptcy Appellate
Panel Exercising Appellate Jurisdiction in a Bankruptcy Case or Proceeding.
(1) Applicability of Other Rules. These rules apply to an appeal to a court of appeals under 28
U.S.C. § 158(d)(1) from a final judgment, order, or decree of a district court or bankruptcy
appellate panel exercising appellate jurisdiction in a bankruptcy case or proceeding under
28 U.S.C. § 158(a) or (b), but with these qualifications:
(A) Rules 4(a)(4), 4(b), 9, 10, 11, 12(c), 13-20, 22-23, and 24(b) do not apply;
(B) the reference in Rule 3(c) to “Forms 1A and 1B in the Appendix of Forms” must be
read as a reference to Form 5;
(C) when the appeal is from a bankruptcy appellate panel, “district court,” as used in
any applicable rule, means “bankruptcy appellate panel”; and
(D) in Rule 12.1, “district court” includes a bankruptcy court or bankruptcy appellate
panel.
(2) Additional Rules. In addition to the rules made applicable by Rule 6(b)(1), the following
rules apply:
18

(A) Motion for Rehearing.
(i)

If a timely motion for rehearing under Bankruptcy Rule 8022 is filed, the time to
appeal for all parties runs from the entry of the order disposing of the motion. A
notice of appeal filed after the district court or bankruptcy appellate panel
announces or enters a judgment, order, or decree—but before disposition of the
motion for rehearing—becomes effective when the order disposing of the motion
for rehearing is entered.

(ii) If a party intends to challenge the order disposing of the motion—or the alteration
or amendment of a judgment, order, or decree upon the motion—then the party,
in accordance with Rules 3(c) and 6(b)(1)(B), must file a notice of appeal or
amended notice of appeal. The notice or amended notice must be filed within the
time prescribed by Rule 4—excluding Rules 4(a)(4) and 4(b)—measured from the
entry of the order disposing of the motion.
(iii) No additional fee is required to file an amended notice.
(B) The Record on Appeal.
(i)

Within 14 days after filing the notice of appeal, the appellant must file with the
clerk possessing the record assembled in accordance with Bankruptcy Rule
8009—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 made available to the
circuit clerk.

(ii) An appellee who believes that other parts of the record are necessary must, within
14 days after being served with the appellant’s designation, file with the clerk and
serve on the appellant a designation of additional parts to be included.
(iii) The record on appeal consists of:
• the redesignated record as provided above;
• the proceedings in the district court or bankruptcy appellate panel; and
• a certified copy of the docket entries prepared by the clerk under Rule 3(d).
(C) Making the Record Available.
(i)

When the record is complete, the district clerk or bankruptcy-appellate-panel clerk
must number the documents constituting the record and promptly make it
available to the circuit clerk. If the clerk makes the record available in paper form,
the clerk will not send documents of unusual bulk or weight, physical exhibits
other than documents, or other parts of the record designated for omission by local
rule of the court of appeals, unless directed to do so by a party or the circuit clerk.
If unusually bulky or heavy exhibits are to be made available in
19

paper form, a party must arrange with the clerks in advance for their transportation
and receipt.
(ii) All parties must do whatever else is necessary to enable the clerk to assemble the
record and make it available. When the record is made available in paper form,
the court of appeals may provide by rule or order that a certified copy of the docket
entries be made available in place of the redesignated record. But at any time
during the appeal's pendency, any party may request that the redesignated record
be made available.
(D) Filing the Record. When the district clerk or bankruptcy-appellate-panel clerk has
made the record available, the circuit clerk must note that fact on the docket. The date
as noted serves as the filing date of the record. The circuit clerk must immediately
notify all parties that date.
(c) Direct Appeal from a Judgment, Order, or Decree of a Bankruptcy Court by Authorization
Under 28 U.S.C. § 158(d)(2).
(1) Applicability of Other Rules. These rules apply to a direct appeal from a judgment,
order, or decree of a bankruptcy court by authorization under 28 U.S.C. § 158(d)(2), but
with these qualifications:
(A) Rules 3-4, 5 (except as provided in this Rule 6(c)), 6(a), 6(b), 8(a), 8(c), 9-12, 13-20, 22-23,
and 24(b) do not apply; and
(B) as used in any applicable rule, “district court” or “district clerk” includes—to the
extent appropriate—a bankruptcy court or bankruptcy appellate panel or its clerk.
(2) Additional Rules.
apply:

In addition to the rules made applicable by Rule 6(c)(1), the following rules

(A) Petition to Authorize a Direct Appeal. Within 30 days after a certification of a
bankruptcy court's order for direct appeal to the court of appeals under 28 U.S.C.
§ 158(d)(2) becomes effective under Bankruptcy Rule 8006(a), any party to the
appeal may ask the court of appeals to authorize a direct appeal by filing a petition
with the circuit clerk under Bankruptcy Rule 8006(g).
(B) Contents of the Petition. The petition must include the material required by Rule
5(b)(1) and an attached copy of:
(i)

the certification; and

(ii) the notice of appeal of the bankruptcy court's judgment, order, or decree filed
under Bankruptcy Rule 8003 or 8004.
(C) Answer or Cross-Petition; Oral Argument. Rule 5(b)(2) governs an answer or
cross-petition. Rule 5(b)(3) governs oral argument.
20

(D) Form of Papers; Number of Copies; Length Limits. Rule 5(c) governs the
required form, number of copies to be filed, and length limits applicable to the petition
and any answer or cross-petition.
(E) Notice of Appeal; Calculating Time. A notice of appeal to the court of appeals need
not be filed. The date when the order authorizing the direct appeal is entered serves
as the date of the notice of appeal for calculating time under these rules.
(F) Notification of the Order Authorizing Direct Appeal; Fees; Docketing the Appeal.
(i)

When the court of appeals enters the order authorizing the direct appeal, the
circuit clerk must notify the bankruptcy clerk and the district court clerk or
bankruptcy-appellate-panel clerk of the entry.

(ii) Within 14 days after the order authorizing the direct appeal is entered, the
appellant must pay the bankruptcy clerk any unpaid required fee, including:
• the fee required for the appeal to the district court or bankruptcy appellate panel;
and
• the difference between the fee for an appeal to the district court or bankruptcy
appellate panel and the fee required for an appeal to the court of appeals.
(iii) The bankruptcy clerk must notify the circuit clerk once the appellant has paid all
required fees. Upon receiving the notice, the circuit clerk must enter the direct
appeal on the docket.
(G) Stay Pending Appeal. Bankruptcy Rule 8007 governs any stay pending appeal.
(H) The Record on Appeal. Bankruptcy Rule 8009 governs the record on appeal. If a
party has already filed a document or completed a step required to assemble the record
for the appeal to the district court or bankruptcy appellate panel, the party need not
repeat that filing or step.
(I) Making the Record Available. Bankruptcy Rule 8010 governs completing the
record and making it available. When the court of appeals enters the order authorizing
the direct appeal, the bankruptcy clerk must make the record available to the circuit
clerk.
(J) Duties of the Circuit Clerk. When the bankruptcy clerk has made the record
available, the circuit clerk must note that fact on the docket. The date as noted serves
as the filing date of the record. The circuit clerk must immediately notify all parties
of that date.
(K) Filing a Representation Statement. Unless the court of appeals designates another
21

time, within 14 days after the order authorizing the direct appeal is entered, the attorney
for each party to the appeal must file a statement with the circuit clerk naming the
parties that the attorney represents on appeal.

Rule 7.

Bond for Costs on Appeal in a Civil Case

In a civil case, the district court may require an appellant to file a bond or provide other security
in any form and amount necessary to ensure payment of costs on appeal. Rule 8(b) applies to a
surety on a bond given under this rule.

Rule 8.

Stay or Injunction Pending Appeal

(a) Motion for Stay.
(1) Initial Motion in the District Court.
court for the following relief:

A party must ordinarily move first in the district

(A) a stay of the judgment or order of a district court pending appeal;
(B) approval of a bond or other security provided to obtain a stay of judgment; or
(C) an order suspending, modifying, restoring, or granting an injunction while an appeal
is pending.
(2) Motion in the Court of Appeals; Conditions on Relief.
A motion for the relief
mentioned in Rule 8(a)(1) may be made to the court of appeals or to one of its judges.
(A) The motion must:
(i)

show that moving first in the district court would be impracticable; or

(ii) state that, a motion having been made, the district court denied the motion or failed
to afford the relief requested and state any reasons given by the district court for
its action.
(B) The motion must also include:
(i)

the reasons for granting the relief requested and the facts relied on;

(ii) originals or copies of affidavits or other sworn statements supporting facts subject
to dispute; and
(iii) relevant parts of the record.
(C) The moving party must give reasonable notice of the motion to all parties.
22

(D) A motion under this Rule 8(a)(2) must be filed with the circuit clerk and normally will
be considered by a panel of the court. But in an exceptional case in which time
requirements make that procedure impracticable, the motion may be made to and
considered by a single judge.
(E) The court may condition relief on a party’s filing a bond or other security in the district
court.
(b) Proceeding Against a Security Provider. If a party gives security with one or more security
providers, each provider submits to the jurisdiction of the district court and irrevocably
appoints the district clerk as its agent on whom any papers affecting its liability on the security
may be served. On motion, a security provider's liability may be enforced in the district court
without the necessity of an independent action. The motion and any notice that the district
court prescribes may be served on the district clerk, who must promptly send a copy to each
security provider whose address is known.
(c) Stay in a Criminal Case. Rule 38 of the Federal Rules of Criminal Procedure governs a stay
in a criminal case.

Rule 9.

Release in a Criminal Case

(a) Release Before Judgment of Conviction.
(1) The district court must state in writing, or orally on the record, the reasons for an order
regarding the release or detention of a defendant in a criminal case. A party appealing
from the order must file with the court of appeals a copy of the district court’s order and
the court’s statement of reasons as soon as practicable after filing the notice of appeal. An
appellant who questions the factual basis for the district court’s order must file a transcript
of the release proceedings or an explanation of why a transcript was not obtained.
(2) After reasonable notice to the appellee, the court of appeals must promptly determine the
appeal on the basis of the papers, affidavits, and parts of the record that the parties present
or the court requires. Unless the court so orders, briefs need not be filed.
(3) The court of appeals or one of its judges may order the defendant’s release pending the
disposition of the appeal.
(b) Release After Judgment of Conviction. A party entitled to do so may obtain review of a
district-court order regarding release after a judgment of conviction by filing a notice of appeal
from that order in the district court, or by filing a motion in 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). The papers filed by the party seeking review must include a
copy of the judgment of conviction.
23

(c) Criteria for Release. The court must make its decision regarding release in accordance with
the applicable provisions of 18 U.S.C. §§ 3142, 3143, and 3145(c).
Local Rule 9.0.

Recalcitrant Witnesses

(a) A recalcitrant witness who is held in contempt for refusal to testify is entitled to disposition of
the recalcitrant witness’s appeal within thirty days if the recalcitrant witness is denied bail,
and the government is entitled to equal promptness if bail is granted. The unsuccessful party
on the bail issue may waive the thirty day statutory requirement by filing a written waiver with
the clerk of this court.
(b) The district court shall allow bail, with or without surety, unless the appeal appears frivolous,
but a condition shall be the filing of a notice of appeal forthwith, and obedience to all
subsequent orders with respect to briefing and argument. Except for cause shown the district
court shall not, in any case, order a witness committed for the first forty-eight hours after the
date of the order.
(c) The appeal shall be docketed immediately, and the district court’s order on bail may be
reviewed by the court of appeals or a judge thereof.

Rule 10.

The Record on Appeal

(a) Composition of the Record on Appeal. The following items constitute the record on appeal:
(1) the original papers and exhibits filed in the district court;
(2) the transcript of proceedings, if any; and
(3) a certified copy of the docket entries prepared by the district clerk.
(b) The Transcript of Proceedings.
(1) Appellant’s Duty to Order. Within 14 days after filing the notice of appeal or entry of an
order disposing of the last timely remaining motion of a type specified in Rule 4(a)(4)(A),
whichever is later, the appellant must do either of the following:
(A) order from the reporter a transcript of such parts of the proceedings not already on file
as the appellant considers necessary, subject to a local rule of the court of appeals and
with the following qualifications:
(i)

the order must be in writing;

(ii) if the cost of the transcript is to be paid by the United States under the Criminal
Justice Act, the order must so state; and
24

(iii) the appellant must, within the same period, file a copy of the order with the district
clerk; or
(B) file a certificate stating that no transcript will be ordered.
(2) Unsupported Finding or Conclusion. 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 must include in the record a transcript of all evidence relevant to that finding or
conclusion.
(3) Partial Transcript.

Unless the entire transcript is ordered:

(A) the appellant must — within the 14 days provided in Rule 10(b)(1) — file a statement
of the issues that the appellant intends to present on the appeal and must serve on the
appellee a copy of both the order or certificate and the statement;
(B) if the appellee considers it necessary to have a transcript of other parts of the
proceedings, the appellee must, within 14 days after the service of the order or
certificate and the statement of the issues, file and serve on the appellant a designation
of additional parts to be ordered; and
(C) unless within 14 days after service of that designation the appellant has ordered all
such parts, and has so notified the appellee, the appellee may within the following 14
days either order the parts or move in the district court for an order requiring the
appellant to do so.
(4) Payment. At the time of ordering, a party must make satisfactory arrangements with the
reporter for paying the cost of the transcript.
(c) Statement of the Evidence When the Proceedings Were Not Recorded or When a
Transcript Is Unavailable. If the transcript of a hearing or trial 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 must be served on the appellee, who may
serve objections or proposed amendments within 14 days after being served. The statement
and any objections or proposed amendments must then be submitted to the district court for
settlement and approval. As settled and approved, the statement must be included by the
district clerk in the record on appeal.
(d) Agreed Statement as the Record on Appeal. In place of the record on appeal as defined in
Rule 10(a), the parties may prepare, sign, and submit to the district court a statement of the
case showing how the issues presented by the appeal arose and were decided in the district
court. The statement must set forth only those facts averred and proved or sought to be proved
that are essential to the court’s resolution of the issues. If the statement is truthful, it —
together with any additions that the district court may consider necessary to a full presentation
of the issues on appeal — must be approved by the district court and must then be certified to
the court of appeals as the record on appeal. The district clerk must then send it to the circuit
clerk within the time provided by Rule 11. A copy of the agreed statement may be filed in
25

place of the appendix required by Rule 30.
(e) Correction or Modification of the Record.
(1) If any difference arises about whether the record truly discloses what occurred in the
district court, the difference must be submitted to and settled by that court and the record
conformed accordingly.
(2) If anything material to either party is omitted from or misstated in the record by error or
accident, the omission or misstatement may be corrected and a supplemental record may
be certified and forwarded:
(A) on stipulation of the parties;
(B) by the district court before or after the record has been forwarded; or
(C) by the court of appeals.
(3) All other questions as to the form and content of the record must be presented to the court
of appeals.

Local Rule 10.0. Ordering Transcripts
(a) Timely Filing. Fed. R. App. P. 10(b) requires that the transcript be ordered within 14 days
of the filing of the notice of appeal. Parties are nevertheless urged to order any necessary
transcript immediately after the filing of the notice. If the appellant fails to timely order a
transcript in writing from the court reporter, the appeal may be dismissed for want of diligent
prosecution.
(b) Transcript Order/Report. A Transcript Order/Report, in the form prescribed by this court,
shall be used to satisfy the requirements of Fed. R. App. P. 10(b).
(c) Transcripts under the Criminal Justice Act. If the cost of the transcript is to be paid by the
United States under the Criminal Justice Act, counsel must complete and attach CJA form 24
to the Transcript Order/Report so as to satisfy the requirement of Fed. R. App. P. 10(b)(4).
(d) Caveat. The court is of the opinion that in many cases a transcript is not really needed, and
makes for delay and expense, as well as unnecessarily large records. The court urges counsel
to endeavor, in appropriate cases, to enter into stipulations that will avoid or reduce
transcripts. See Fed. R. App. P. 30(b). However, if an agreed statement of the evidence is
contemplated, counsel are reminded of Fed. R. App. P. 10(c) requiring submission to the
district court for approval. The fourteen-day ordering rule will not be suspended because of
such activity, however, except by order of the court for good cause shown.

26

Rule 11.

Forwarding the Record

(a) Appellant’s Duty. An appellant filing a notice of appeal must comply with Rule 10(b) and
must do whatever else is necessary to enable the clerk to assemble and forward the record. If
there are multiple appeals from a judgment or order, the clerk must forward a single record.
(b) Duties of Reporter and District Clerk.
(1) Reporter’s Duty to Prepare and File a Transcript. The reporter must prepare and file
a transcript as follows:
(A) Upon receiving an order for a transcript, the reporter must enter at the foot of the order
the date of its receipt and the expected completion date and send a copy, so endorsed,
to the circuit clerk.
(B) If the transcript cannot be completed within 30 days of the reporter’s receipt of the
order, the reporter may request the circuit clerk to grant additional time to complete
it. The clerk must note on the docket the action taken and notify the parties.
(C) When a transcript is complete, the reporter must file it with the district clerk and notify
the circuit clerk of the filing.
(D) If the reporter fails to file the transcript on time, the circuit clerk must notify the district
judge and do whatever else the court of appeals directs.
(2) District Clerk’s Duty to Forward. When the record is complete, the district clerk must
number the documents constituting the record and send them promptly to the circuit clerk
together with a list of the documents correspondingly numbered and reasonably identified.
Unless directed to do so by a party or the circuit clerk, the district clerk will not send to
the court of appeals documents of unusual bulk or weight, physical exhibits other than
documents, or other parts of the record designated for omission by local rule of the court
of appeals. If the exhibits are unusually bulky or heavy, a party must arrange with the
clerks in advance for their transportation and receipt.
(c) Retaining the Record Temporarily in the District Court for Use in Preparing the Appeal.
The parties may stipulate, or the district court on motion may order, that the district clerk
retain the record temporarily for the parties to use in preparing the papers on appeal. In that
event the district clerk must certify to the circuit clerk that the record on appeal is complete.
Upon receipt of the appellee’s brief, or earlier if the court orders or the parties agree, the
appellant must request the district clerk to forward the record.
(d) [Abrogated]

27

(e) Retaining the Record by Court Order.
(1) The court of appeals may, by order or local rule, provide that a certified copy of the docket
entries be forwarded instead of the entire record. But a party may at any time during the
appeal request that designated parts of the record be forwarded.
(2) The district court may order the record or some part of it retained if the court needs it while
the appeal is pending, subject, however, to call by the court of appeals.
(3) If part or all of the record is ordered retained, the district clerk must send to the court of
appeals a copy of the order and the docket entries together with the parts of the original
record allowed by the district court and copies of any parts of the record designated by the
parties.
(f) Retaining Parts of the Record in the District Court by Stipulation of the Parties. The
parties may agree by written stipulation filed in the district court that designated parts of the
record be retained in the district court subject to call by the court of appeals or request by a
party. The parts of the record so designated remain a part of the record on appeal.
(g) Record for a Preliminary Motion in the Court of Appeals. If, before the record is
forwarded, a party makes any of the following motions in the court of appeals:
• for dismissal;
• for release;
• for a stay pending appeal;
• for additional security on the bond on appeal or on a bond or other security provided to
obtain a stay of judgment; or
• for any other intermediate order —
the district clerk must send the court of appeals any parts of the record designated by any party.

Local Rule 11.0.

Transmission of the Record, Sealed Documents

(a) Duty of Appellant. In addition to an appellant’s duties under Fed. R. App. P. 11(a), it is an
appellant’s responsibility to see that the record, as certified, is complete.
(b) Transmission of the Record. The district court will not transmit the full record except upon
request of the circuit clerk. Rather, the district court will transmit to the circuit clerk
electronically a copy of the notice of appeal, the order(s) being appealed, and a certified copy
of the district court docket report in lieu of transmitting the entire record. Sealed documents
will not be included in this abbreviated electronic record. Rather, any sealed documents or
sealed docket reports/entries will be transmitted to the circuit clerk in hard copy whether or
28

not electronically available. In addition, any papers and exhibits which are not electronically
available will also be transmitted to the circuit clerk. The entire electronic district court
record is available to the court of appeals whether or not individual documents are
transmitted as part of the abbreviated electronic record or later supplemented.
(c) Sealed Materials.
(1) Materials Sealed by District Court or Agency Order. The court of appeals expects that
ordinarily motions to seal all or part of a district court or agency record will be presented
to, and resolved by, the lower court or agency. Motions, briefs, transcripts, and other
materials which were filed with the district court or agency under seal and which
constitute part of the record transmitted to the court of appeals shall be clearly labeled as
sealed when transmitted to the court of appeals and will remain under seal until further
order of court.
(2) Motions to Seal in the Court of Appeals. In order to seal in the court of appeals materials
not already sealed in the district court or agency (e.g., a brief or unsealed portion of the
record), a motion to seal must be filed in paper form in the court of appeals; parties cannot
seal otherwise public documents merely by agreement or by labeling them “sealed.” A
motion to seal, which should not itself be filed under seal, must explain the basis for
sealing and specify the desired duration of the sealing order. If discussion of confidential
material is necessary to support the motion to seal, that discussion shall be confined to an
affidavit or declaration, which may be filed provisionally under seal. A motion to seal may
be filed before the sealed material is submitted or, alternatively the item to be sealed (e.g.,
the brief) may be tendered with the motion and, upon request, will be accepted
provisionally under seal, subject to the court’s subsequent ruling on the motion. Material
submitted by a party under seal, provisionally or otherwise must be stamped or labeled by
the party on the cover “FILED UNDER SEAL.” If the court of appeals denies the movant’s
motion to seal, any materials tendered under provisional seal will be returned to the
movant. Motions to seal or sealed documents should never be filed electronically. See 1st
Cir. R. 25.0.
(3) Limiting Sealed Filings. Rather than automatically requesting the sealing of an entire
brief, motion, or other filing, litigants should consider whether argument relating to
sealed materials may be contained in separate supplemental brief, motion, or filing, which
may then be sealed in accordance with the procedures in subsection (2).
(d) References to Sealed Materials.
(1) Records or materials sealed by district court, court of appeals, or agency order shall not
be included in the regular appendix, but may be submitted in a separate, sealed
supplemental volume of appendix. The sealed supplemental volume must be clearly and
prominently labeled by the party on the cover “FILED UNDER SEAL.”
(2) In addressing material under seal in an unsealed brief or motion or oral argument counsel
are expected not to disclose the substance of the sealed material and to apprise the court
that the material in question is sealed. If the record contains sealed materials of a
29

sensitive character, counsel would be well advised to alert the court to the existence of
such materials and their location by a footnote appended to the “Statement of the Case”
caption in the opening or answering brief.

Rule 12.

Docketing the Appeal; Filing a Representation Statement; Filing the Record

(a) Docketing the Appeal. Upon receiving the copy of the notice of appeal and the docket entries
from the district clerk under Rule 3(d), the circuit clerk must docket the appeal under the title
of the district-court action and must identify the appellant, adding the appellant’s name if
necessary.
(b) Filing a Representation Statement. Unless the court of appeals designates another time, the
attorney who filed the notice of appeal must, within 14 days after filing the notice, file a
statement with the circuit clerk naming the parties that the attorney represents on appeal.
(c) Filing the Record, Partial Record, or Certificate. Upon receiving the record, partial record,
or district clerk’s certificate as provided in Rule 11, the circuit clerk must file it and
immediately notify all parties of the filing date.

Local Rule 12.0.

Appearance, Withdrawal of Appearance

(a) Representation Statement, Appearance. A representation statement must take the form of an
appearance, in a form prescribed by this court. Attorneys for both appellant and appellee
must file appearance forms within 14 days after the case is docketed in the court of appeals.
See also 1st Cir. R. 46.0(a). Additional or new attorneys for the parties may enter an
appearance outside the 14 day period. However, in no event may any attorney file a notice of
appearance without leave of court after the appellee brief has been filed.
(b) Withdrawal of Appearance. No attorney who has entered an appearance in this court may
withdraw without the consent of the court. An attorney who has represented a defendant in a
criminal case in the district court will be responsible for representing the defendant on appeal,
whether or not the attorney has entered an appearance in the Court of Appeals, until the
attorney is relieved of such duty by the court. Procedures for withdrawal in criminal cases
are found in 1st Cir. R. 46.6. For requirements applying to court-appointed counsel, reference
is made to 1st Cir. R. 46.5(c), the Criminal Justice Plan of this Circuit.

Rule 12.1.
Remand After an Indicative Ruling by the District Court on a Motion for Relief That
Is Barred by a Pending Appeal
(a) Notice to the Court of Appeals. If a timely motion is made in the district court for relief that
it lacks authority to grant because of an appeal that has been docketed and is pending, the
movant must promptly notify the circuit clerk if the district court states either that it would
grant the motion or that the motion raises a substantial issue.
30

(b) Remand After an Indicative Ruling. If the district court states that it would grant the motion
or that the motion raises a substantial issue, the court of appeals may remand for further
proceedings but retains jurisdiction unless it expressly dismisses the appeal. If the court of
appeals remands but retains jurisdiction, the parties must promptly notify the circuit clerk
when the district court has decided the motion on remand.

TITLE III.

Rule 13.

APPEALS FROM THE UNITED STATES
TAX COURT

Appeals From the Tax Court

(a) Appeal as of Right.
(1) How Obtained; Time for Filing a Notice of Appeal.
(A) An appeal as of right from the United States Tax Court is commenced by filing a
notice of appeal with the Tax Court clerk within 90 days after the entry of the Tax
Court’s decision. At the time of filing, the appellant must furnish the clerk with
enough copies of the notice to enable the clerk to comply with Rule 3(d). If one party
files a timely notice of appeal, any other party may file a notice of appeal within 120
days after the Tax Court’s decision is entered.
(B) If, under Tax Court rules, a party makes a timely motion to vacate or revise the Tax
Court’s decision, the time to file a notice of appeal runs from the entry of the order
disposing of the motion or from the entry of a new decision, whichever is later.
(2) Notice of Appeal; How Filed. The notice of appeal may be filed either at the Tax Court
clerk’s office in the District of Columbia or by sending it to the clerk. If sent by mail the
notice is considered filed on the postmark date, subject to § 7502 of the Internal Revenue
Code, as amended, and the applicable regulations.
(3) Contents of the Notice of Appeal; Service; Effect of Filing and Service. Rule 3
prescribes the contents of a notice of appeal, the manner of service, and the effect of its
filing and service. Form 2 in the Appendix of Forms is a suggested form of a notice of
appeal.
(4) The Record on Appeal; Forwarding; Filing.
(A) Except as otherwise provided under Tax Court rules for the transcript of proceedings,
the appeal is governed by the parts of Rules 10, 11, and 12 regarding the record on
appeal from a district court, the time and manner of forwarding and filing, and the
docketing in the court of appeals.
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(B) If an appeal is taken to more than one court of appeals, the original record must be
sent to the court named in the first notice of appeal filed. In an appeal to any other
court of appeals, the appellant must apply to that other court to make provision for the
record.
(b) Appeal by Permission.

Rule 14.

An appeal by permission is governed by Rule 5.

Applicability of Other Rules to Appeals from the Tax Court

All provisions of these rules, except Rules 4, 6-9, 15-20, and 22-23, apply to appeals from the
Tax Court. References in any applicable rule (other than Rule 24(a)) to the district court and district
clerk are to be read as referring to the Tax Court and its clerk.

TITLE IV.
REVIEW OR ENFORCEMENT OF AN
ORDER OF AN ADMINISTRATIVE AGENCY, BOARD,
COMMISSION, OR OFFICER
Rule 15.

Review or Enforcement of an Agency Order — How Obtained; Intervention

(a) Petition for Review; Joint Petition.
(1) Review of an agency order is commenced by filing, within the time prescribed by law, a
petition for review with the clerk of a court of appeals authorized to review the agency
order. If their interests make joinder practicable, two or more persons may join in a petition
to the same court to review the same order.
(2) The petition must:
(A) name each party seeking review either in the caption or the body of the petition —
using such terms as “et al.,” “petitioners”, or “respondents” does not effectively name
the parties;
(B) name the agency as a respondent (even though not named in the petition, the United
States is a respondent if required by statute); and
(C) specify the order or part thereof to be reviewed.
(3) Form 3 in the Appendix of Forms is a suggested form of a petition for review.
(4) In this rule “agency” includes an agency, board, commission, or officer; “petition for
review” includes a petition to enjoin, suspend, modify, or otherwise review, or a notice of
appeal, whichever form is indicated by the applicable statute.
32

(b) Application or Cross-Application to Enforce an Order; Answer; Default.
(1) An application to enforce an agency order must be filed with the clerk of a court of appeals
authorized to enforce the order. If a petition is filed to review an agency order that the
court may enforce, a party opposing the petition may file a cross-application for
enforcement.
(2) Within 21 days after the application for enforcement is filed, the respondent must serve
on the applicant an answer to the application and file it with the clerk. If the respondent
fails to answer in time, the court will enter judgment for the relief requested.
(3) The application must contain a concise statement of the proceedings in which the order
was entered, the facts upon which venue is based, and the relief requested.
(c) Service of the Petition or Application. The circuit clerk must serve a copy of the petition for
review, or an application or cross-application to enforce an agency order, on each respondent
as prescribed by Rule 3(d), unless a different manner of service is prescribed by statute. At
the time of filing, the petitioner must:
(1) serve, or have served, a copy on each party admitted to participate in the agency
proceedings, except for the respondents;
(2) file with the clerk a list of those so served; and
(3) give the clerk enough copies of the petition or application to serve each respondent.
(d) Intervention. Unless a statute provides another method, a person who wants to intervene in
a proceeding under this rule must file a motion for leave to intervene with the circuit clerk and
serve a copy on all parties. The motion — or other notice of intervention authorized by statute
— must be filed within 30 days after the petition for review is filed and must contain a concise
statement of the interest of the moving party and the grounds for intervention.
(e) Payment of Fees. When filing any separate or joint petition for review in a court of appeals,
the petitioner must pay the circuit clerk all required fees.

Rule 15.1.

Briefs and Oral Argument in a National Labor Relations Board Proceeding

In either an enforcement or a review proceeding, a party adverse to the National Labor
Relations Board proceeds first on briefing and at oral argument, unless the court orders otherwise.

Rule 16.

The Record on Review or Enforcement

(a) Composition of the Record. The record on review or enforcement of an agency order consists
33

of:
(1) the order involved;
(2) any findings or report on which it is based; and
(3) the pleadings, evidence, and other parts of the proceedings before the agency.
(b) Omissions From or Misstatements in the Record. The parties may at any time, by
stipulation, supply any omission from the record or correct a misstatement, or the court may
so direct. If necessary, the court may direct that a supplemental record be prepared and filed.

Rule 17.

Filing the Record

(a) Agency to File; Time for Filing; Notice of Filing. The agency must file the record with the
circuit clerk within 40 days after being served with a petition for review, unless the statute
authorizing review provides otherwise, or within 40 days after it files an application for
enforcement unless the respondent fails to answer or the court orders otherwise. The court
may shorten or extend the time to file the record. The clerk must notify all parties of the date
when the record is filed.
(b) Filing — What Constitutes.
(1) The agency must file:
(A) the original or a certified copy of the entire record or parts designated by the parties;
or
(B) a certified list adequately describing all documents, transcripts of testimony, exhibits,
and other material constituting the record, or describing those parts designated by the
parties.
(2) The parties may stipulate in writing that no record or certified list be filed. The date when
the stipulation is filed with the circuit clerk is treated as the date when the record is filed.
(3) The agency must retain any portion of the record not filed with the clerk. All parts of the
record retained by the agency are a part of the record on review for all purposes and, if the
court or a party so requests, must be sent to the court regardless of any prior stipulation.

Rule 18.

Stay Pending Review

(a) Motion for a Stay.
(1) Initial Motion Before the Agency. A petitioner must ordinarily move first before the
agency for a stay pending review of its decision or order.
34

(2) Motion in the Court of Appeals. A motion for a stay may be made to the court of appeals
or one of its judges.
(A) The motion must:
(i) show that moving first before the agency would be impracticable; or
(ii) state that, a motion having been made, the agency denied the motion or failed to
afford the relief requested and state any reasons given by the agency for its action.
(B) The motion must also include:
(i)

the reasons for granting the relief requested and the facts relied on;

(ii) originals or copies of affidavits or other sworn statements supporting facts subject
to dispute; and
(iii) relevant parts of the record.
(C) The moving party must give reasonable notice of the motion to all parties.
(D) The motion must be filed with the circuit clerk and normally will be considered by a
panel of the court. But in an exceptional case in which time requirements make that
procedure impracticable, the motion may be made to and considered by a single judge.
(b) Bond. The court may condition relief on the filing of a bond or other appropriate security.
Local Rule 18.0

Stay in Immigration Cases; Notification of Removal Date

In order to ensure the orderly presentation of issues placed before this Court in immigration
cases and to preserve the Court's ability to make considered decisions in such cases, the Court
adopts the following policy, which applies to petitions for review and to appeals from district court
habeas proceedings (collectively, for purposes of this rule, "petitions").
1.

If the government has scheduled the removal of a petitioner, then the government will file with
the Court a notice identifying the earliest date upon which removal may be made. The notice
must be filed by the later of: one day after a petition is docketed in the court of appeals and
notification is transmitted to the government via the court's CM/ECF system or immediately
once removal is scheduled. The absence of any such notice will be deemed a representation by
counsel for the government that the government has not yet scheduled the removal of the
petitioner.

2.

When a first motion for stay of removal is timely filed in this court and notification is
transmitted to the government via the court's CM/ECF system, the clerk will enter an
administrative order staying removal for ten business days. The government shall file its
response to the motion for stay of removal by the later of: two business days after the filing of
35

the first motion for stay of removal; or, ten business days prior to the earliest possible date of
removal; provided, however, that any response must be filed within the time period specified
by Fed. R. App. P. 27(a)(3)(A). Upon motion and good cause, any of these deadlines, as well
as the duration of the stay, may be revised in a particular case. This paragraph applies only
to the first timely motion to stay removal filed in an individual case in this court. For purposes
of this paragraph only, a first motion to stay removal will be deemed timely if filed by the later
of: the docketing of the petition; or two business days after the filing of a notice by the
government as provided in paragraph 1, above. If petitioner is pro se, this deadline shall not
apply, but any stay motion should be filed as expeditiously as possible.

Rule 19.

Settlement of a Judgment Enforcing an Agency Order in Part

When the court files an opinion directing entry of judgment enforcing the agency’s order in
part, the agency must within 14 days file with the clerk and serve on each other party a proposed
judgment conforming to the opinion. A party who disagrees with the agency’s proposed judgment
must within 10 days file with the clerk and serve the agency with a proposed judgment that the
party believes conforms to the opinion. The court will settle the judgment and direct entry without
further hearing or argument.

Rule 20.

Applicability of Rules to the Review or Enforcement of an Agency Order

All provisions of these rules, except Rules 3-14 and 22-23, apply to the review or enforcement
of an agency order. In these rules, “appellant” includes a petitioner or applicant, and “appellee”
includes a respondent.

TITLE V.
Rule 21.

EXTRAORDINARY WRITS

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 prohibition directed to a court must file the
petition with the circuit clerk and serve it on all parties to the proceeding in the trial court.
The party must 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 must be titled “In re [name of petitioner].”
(B) The petition must state:
36

(i)

the relief sought;

(ii) the issues presented;
(iii) the facts necessary to understand the issue presented by the petition; and
(iv) the reasons why the writ should issue.
(C) The petition must include a copy of any order or opinion or parts of the record that
may be essential to understand the matters set forth in the petition.
(3) Upon receiving the prescribed docket fee, the clerk must 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.
respondent, if any, to answer within a fixed time.

Otherwise, it must order the

(2) The clerk must 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 address the petition or
may invite an amicus curiae to do so. The trial-court judge may request permission to
address the petition but may not do so unless invited or ordered to do so by the court of
appeals.
(5) If briefing or oral argument is required, the clerk must advise the parties, and when
appropriate, the trial-court judge or amicus curiae.
(6) The proceeding must be given preference over ordinary civil cases.
(7) The circuit clerk must send a copy of the final disposition to the trial-court judge.
(c) Other Extraordinary Writs. An application for an extraordinary writ other than one
provided for in Rule 21(a) must be made by filing a petition with the circuit clerk and serving
it on the respondents. Proceedings on the application must conform, so far as is practicable,
to the procedures prescribed in Rule 21(a) and (b).
(d) Form of Papers; Number of Copies; Length Limits. All papers must conform to Rule
32(c)(2). An original and 3 copies must be filed unless the court requires the filing of a
different number by local rule or by order in a particular case. Except by the court's
permission, and excluding the accompanying documents required by Rule 21(a)(2)(C);
(1) a paper produced using a computer must not exceed 7,800 words; and
(2) a handwritten or typewritten paper must not exceed 30 pages.
37

Local Rule 21.0. Petitions for Special Writs
A petition for a writ of mandamus or writ of prohibition shall be entitled simply "In re
, Petitioner." To the extent that relief is requested of a particular judge, unless
otherwise ordered, the judge shall be represented pro forma by counsel for the party opposing the
relief, who shall appear in the name of the party and not that of the judge.

TITLE VI.

Rule 22.

HABEAS CORPUS; PROCEEDINGS IN
FORMA PAUPERIS

Habeas Corpus and Section 2255 Proceedings

(a) Application for the Original Writ. An application for a writ of habeas corpus must be made
to the appropriate district court. If made to a circuit judge, the application must be transferred
to the appropriate district court. If a district court denies an application made or transferred to
it, renewal of the application before a circuit judge is not permitted. The applicant may, under
28 U.S.C. § 2253, appeal to the court of appeals from the district court’s order denying the
application.
(b) Certificate of Appealability.
(1) In a habeas corpus proceeding in which the detention complained of arises from process
issued by a state court, or in a 28 U.S.C. § 2255 proceeding, the applicant cannot take an
appeal unless a circuit justice or a circuit or district judge issues a certificate of
appealability under 28 U.S.C. § 2253(c). If an applicant files a notice of appeal, the district
clerk must send to the court of appeals the certificate (if any) and the statement described
in Rule 11(a) of the Rules Governing Proceedings Under 28 U.S.C. § 2254 or § 2255 (if
any), along with the notice of appeal and the file of the district-court proceedings. If the
district judge has denied the certificate, the applicant may request a circuit judge to issue
it.
(2) A request addressed to the court of appeals may be considered by a circuit judge or judges,
as the court prescribes. If no express request for a certificate is filed, the notice of appeal
constitutes a request addressed to the judges of the court of appeals.
(3) A certificate of appealability is not required when a state or its representative or the United
States or its representative appeals.

38

Local Rule 22.0. Habeas Corpus; Certificate of Appealability
(a) General Procedures. In this circuit, ordinarily neither the court nor a judge thereof will act
on a request for a certificate of appealability if the district judge who refused the writ is
available and has not ruled first. The general procedures regarding certificates of
appealability are set forth in Fed. R. App. P. 22 and Rule 11 of the Rules Governing
Proceedings Under 28 U.S.C. § 2254 or § 2255. These latter rules require the district judge
to rule on the issuance of a certificate of appealability when a final order issues. If the district
court denies a certificate, the petitioner may not appeal the denial but may file a motion for a
certificate of appealability before this court. A petitioner wishing to challenge the denial of a
§ 2254 or § 2255 petition must file a timely notice of appeal whether or not the district court
issues a certificate of appealability.
(b) Denial in Full by District Court. If the district court denies a certificate of appealability, the
petitioner should promptly apply within the time set by the clerk to the court of appeals for
issuance of a certificate of appealability. The motion should be accompanied by a copy of the
district court’s order and a memorandum giving specific and substantial reasons, and not
mere generalizations, why a certificate should be granted. If no sufficient memorandum has
been filed by the time set by the clerk, the certificate may be denied without further
consideration. The effect of a denial is to terminate the appeal.
(c) Partial Denial by District Court.
(1) If the district court grants a certificate of appealability as to one or more issues, the
petitioner’s appeal shall go forward only as to the issue or issues for which the district
court granted the certificate. See Grant-Chase v. Commissioner, 145 F.3d 431 (1st Cir.
1998).
(2) If the petitioner wants appellate review of an issue or issues as to which the district court
has denied a certificate of appealability, petitioner must apply promptly, within the time
set by the clerk of the court of appeals, to the court of appeals for an expanded certificate
of appealability. The request for an expanded certificate of appealability:
(A) must be explicit as to the additional issues the petitioner wishes the court to consider
and
(B) should be accompanied by a copy of the district court order and a memorandum
giving specific and substantial reasons, and not mere generalizations, why an
expanded certificate of appealability should be granted.
If the petitioner fails to apply for an expanded certificate of appealability within the time
designated by the clerk, the appeal will proceed only with respect to the issues on which
the district court has granted a certificate; this court will not treat an inexplicit notice of
appeal, without more, as a request for a certificate of appealability with respect to issues
on which the district court has denied a certificate.
(d) Grant in Full by District Court. If the district court grants a certificate of appealability on
39

all issues, the petitioner's appeal shall go forward. See Grant-Chase v. Commissioner, 145
F.3d 431 (1st Cir. 1998).
Local Rule 22.1. Habeas Corpus; Successive Petitions
(a) Motion for Authorization. Any petitioner seeking to file a second or successive petition for
relief pursuant to 28 U.S.C. §§ 2254 or 2255 must first file a motion with this court for
authorization. A motion for authorization to file a second or successive § 2254 or § 2255
petition must be sufficiently complete on filing to allow the court to assess whether the
standard set forth in 28 U.S.C. §§ 2244(b) or 2255, as applicable, has been satisfied. The
motion must be accompanied by both:
(1) a completed application form, available from this court, stating the new claims(s)
presented and addressing how Section 2244(b) or Section 2255's standard is satisfied;
and
(2) copies of all relevant portions of earlier court proceedings, which must ordinarily include:
(A) copies of all § 2254 or § 2255 petitions earlier filed;
(B) the respondent’s answer to the earlier petitions (including any portion of the state
record the respondent submitted to the district court);
(C) any magistrate-judge’s report and recommendation in the earlier § 2254 or § 2255
proceedings;
(D) the district court’s decision in the earlier proceedings; and
(E) the portions of the state court record needed to evaluate the claims presented and to
show that movant has exhausted state court remedies.
(b) Incomplete Motion. Failure to provide the requisite application and attachments may result
in the denial of the motion for authorization with or without prejudice to refiling. At its
discretion, the court may instead treat the motion as lodged, the filing being deemed complete
when the deficiency is remedied.
(c) Service. The movant shall serve a copy of the motion to file a second or successive petition
and all accompanying attachments on the state attorney general (§ 2254 cases) or United
States Attorney for the federal judicial district in which movant was convicted (§ 2255 cases)
and shall comply with Fed. R. App. P. 25.
(d) Response. The state attorney general (§ 2254 cases) or United States Attorney (§ 2255 cases)
is requested to file a response within 14 days of the filing of the motion.
(e) Transfer. If a second or successive § 2254 or § 2255 petition is filed in a district court without
the requisite authorization by the court of appeals pursuant to 28 U.S.C. § 2244(b)(3), the
40

district court will transfer the petition to the court of appeals pursuant to 28 U.S.C. § 1631 or
dismiss the petition. If the petition is transferred, the petitioner must file a motion meeting the
substantive requirements of 1st Cir. R. 22.1(a) within 45 days of the date of notice from the
clerk of the court of appeals that said motion is required. If the motion is not timely filed,
the court will enter an order denying authorization for the § 2254 or § 2255 petition.

Rule 23.

Custody or Release of a Prisoner in a Habeas Corpus Proceeding

(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, the person having custody of the prisoner must not transfer custody to another
unless a transfer is directed in accordance with this rule. When, upon application, a custodian
shows the need for a transfer, the court, justice, or judge rendering the decision under review
may authorize the transfer and substitute the successor custodian as a party.
(b) Detention or Release Pending Review of Decision Not to Release. While a decision not to
release a prisoner is under review, the court or judge rendering the decision, or the court of
appeals, or the Supreme Court, or a judge or justice of either court, may order that the prisoner
be:
(1) detained in the custody from which release is sought;
(2) detained in other appropriate custody; or
(3) released on personal recognizance, with or without surety.
(c) Release Pending Review of Decision Ordering Release. While a decision ordering the
release of a prisoner is under review, the prisoner must — unless the court or judge rendering
the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court
orders otherwise — be released on personal recognizance, with or without surety.
(d) Modification of the Initial Order on Custody. An initial order governing the prisoner’s
custody or release, including any recognizance or surety, continues in effect pending review
unless for special reasons shown to the court of appeals or the Supreme Court, or to a judge
or justice of either court, the order is modified or an independent order regarding custody,
release, or surety is issued.

Rule 24.

Proceeding in Forma Pauperis

(a) Leave to Proceed in Forma Pauperis.
(1) Motion in the District Court. Except as stated in Rule 24(a)(3), a party to a district- court
action who desires to appeal in forma pauperis must file a motion in the district court. The
party must attach an affidavit that:
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(A) shows in the detail prescribed by Form 4 of the Appendix of Forms the party’s
inability to pay or to give security for fees and costs; claims an entitlement to
redress; and
(B) states the issues that the party intends to present on appeal.
(2) Action on the Motion. If the district court grants the motion, the party may proceed on
appeal without prepaying or giving security for fees and costs, unless a statute provides
otherwise. If the district court denies the motion, it must state its reasons in writing.
(3) Prior Approval. A party who was permitted to proceed in forma pauperis in the districtcourt action, or who was determined to be financially unable to obtain an adequate defense
in a criminal case, may proceed on appeal in forma pauperis without further authorization,
unless:
(A) the district court — before or after the notice of appeal is filed — certifies that the
appeal is not taken in good faith or finds that the party is not otherwise entitled to
proceed in forma pauperis and states in writing its reasons for the certification or
finding; or
(B) a statute provides otherwise.
(4) Notice of District Court’s Denial. The district clerk must immediately notify the parties
and the court of appeals when the district court does any of the following:
(A) denies a motion to proceed on appeal in forma pauperis;
(B) certifies that the appeal is not taken in good faith; or
(C) finds that the party is not otherwise entitled to proceed in forma pauperis.
(5) Motion in the Court of Appeals. A party may file a motion to proceed on appeal in forma
pauperis in the court of appeals within 30 days after service of the notice prescribed in Rule
24(a)(4). The motion must include a copy of the affidavit filed in the district court and the
district court’s statement of reasons for its action. If no affidavit was filed in the district
court, the party must include the affidavit prescribed by Rule 24(a)(1).
(b) Leave to Proceed in Forma Pauperis on Appeal from the United States Tax Court or on
Appeal or Review of an Administrative-Agency Proceeding. A party may file in the court
of appeals a motion for leave to proceed on appeal in forma pauperis with an affidavit
prescribed by Rule 24(a)(1):
(1) in an appeal from the United States Tax Court; and
(2) when an appeal or review of a proceeding before an administrative agency, board,
commission, or officer proceeds directly in the court of appeals.
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(c) Leave to Use Original Record. A party allowed to proceed on appeal in forma pauperis may
request that the appeal be heard on the original record without reproducing any part.

TITLE VII.
Rule 25.

GENERAL PROVISIONS

Filing and Service

(a) Filing.
(1) Filing with the Clerk. A paper required or permitted to be filed in a court of appeals
must be filed with the clerk.
(2) Filing: Method and Timeliness.
(A) Nonelectronic Filing.
(i)

In General. For a paper not filed electronically, 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.

(ii) A Brief or Appendix. A brief or appendix not filed electronically is timely filed,
however, if on or before the last day for filing, it is:
• mailed to the clerk by first-class mail, or other class of mail that is at least as
expeditious, postage prepaid; or
• dispatched to a third-party commercial carrier for delivery to the clerk within 3
days.
(iii) Inmate Filing. If an institution has a system designed for legal mail, an inmate
confined there must use that system to receive the benefit of this Rule
25(a)(2)(A)(iii). A paper not filed electronically by an inmate is timely if it is
deposited in the institution’s internal mail system on or before the last day for
filing and:
• it is accompanied by: a declaration in compliance with 28 U.S.C. § 1746—or a
notarized statement—setting out the date of deposit and stating that first-class
postage is being prepaid; or evidence (such as a postmark or date stamp) showing
that the paper was so deposited and that postage was prepaid; or
• the court of appeals exercises its discretion to permit the later filing of a
declaration or notarized statement that satisfies Rule 25(a)(2)(A)(iii).
(B) Electronic Filing and Signing.
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(i)

By a Represented Person—Generally Required; Exceptions. A person
represented by an attorney must file electronically, unless nonelectronic filing is
allowed by the court for good cause or is allowed or required by local rule.
(ii) By an Unrepresented Person—When Allowed or Required. A person not
represented by an attorney:
• may file electronically only if allowed by court order or by local rule; and
• may be required to file electronically only by court order, or by a local rule that
includes reasonable exceptions.
(iii) Signing. A filing made through a person's electronic-filing account and authorized
by that person, together with that person's name on a signature block, constitutes
the person's signature.
(iv) Same as a Written Paper. A paper filed electronically is a written paper for
purposes of 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 must note the
filing date on the moti on and give it to the clerk.
(4) Clerk’s Refusal of Documents. The clerk must 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 rule or practice.
(5) Privacy Protection. An appeal in a case whose privacy protection was governed by
Federal Rule of Bankruptcy Procedure 9037, Federal Rule of Civil Procedure 5.2, or
Federal Rule of Criminal Procedure 49.1 is governed by the same rule on appeal. In all
other proceedings, privacy protection is governed by Federal Rule of Civil Procedure 5.2,
except that Federal Rule of Criminal Procedure 49.1 governs when an extraordinary writ
is sought in a criminal case. The provisions on remote electronic access in Federal Rule of
Civil Procedure 5.2(c)(1) and (2) apply in a petition for review of a benefits decision of
the Railroad Retirement Board under the Railroad Retirement Act.
(b) Service of All Papers Required. Unless a rule requires service by the clerk, a party must, at
or before the time of filing a paper, serve a copy on the other parties to the appeal or review.
Service on a party represented by counsel must be made on the party’s counsel.
(c) Manner of Service.
(1) Nonelectronic service may be any of the following:
(A) personal, including delivery to a responsible person at the office of counsel;
(B) by mail; or
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(C) by third-party commercial carrier for delivery within 3 days.
(2) Electronic service of a paper may be made (A) by sending it to a registered user by filing
it with the court's electronic-filing system or (B) by sending it by other electronic means
that the person to be served consented to in writing.
(3) When reasonable considering such factors as the immediacy of the relief sought, distance,
and cost, service on a party must be by a manner at least as expeditious as the manner used
to file the paper with the court.
(4) Service by mail or by commercial carrier is complete on mailing or delivery to the carrier.
Service by electronic means is complete on filing or sending, unless the party making
service is notified that the paper was not received by the party served.
(d) Proof of Service.
(1) A paper presented for filing must contain either of the following if it was served other than
through the court's electronic-filing system:
(A) an acknowledgment of service by the person served; or
(B) proof of service consisting of a statement by the person who made service certifying:
(i)

the date and manner of service;

(ii) the names of the persons served; and
(iii) their mail or electronic addresses, facsimile numbers, or the addresses of the
places of delivery, as appropriate for the manner of service.
(2) When a brief or appendix is filed by mailing or dispatch in accordance with Rule
25(a)(2)(A)(ii), the proof of service must also state the date and manner by which the
document was mailed or dispatched to the clerk.
(3) Proof of service may appear on or be affixed to the papers filed.
(e) Number of Copies. When 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.

Local Rule 25.0. Electronic Case Filing System and Facsimile
(a) Electronic Case Filing. Use of the electronic filing system is mandatory for all attorneys
filing in this court, unless they are granted an exemption, and is voluntary for all nonincarcerated pro se litigants proceeding without counsel.
(1) The clerk may make changes to the procedures for electronic filing to adapt to changes
45

in technology or to facilitate electronic filing.
(2) The court may deviate from these procedures in specific cases if deemed appropriate in
the exercise of its discretion.
(3) Documents must be formatted for electronic filing by converting the original word
processing document into Portable Document Format (“PDF”). PDF images created
by scanning paper documents do not comply with this rule. However, exhibits that are
submitted as attachments to an electronically filed pleading may be scanned and
attached if the filer does not possess a word-processing file version of the document.
(4) Completed PDF fillable forms must be scanned or "printed to PDF" in order to lock or
"flatten" the form prior to filing the document in CM/ECF.
(b) Scope of Electronic Filing. Unless this court by rule or order prescribes otherwise, all cases
will be assigned to the court's electronic filing system. Upon motion and a showing of good
cause, the court may exempt an attorney from the provisions of this rule and authorize filing
by means other than use of the electronic filing system. Absent an exemption, all documents
filed by counsel must be filed electronically using the electronic filing system with the
exceptions below, which also apply to pro se litigants who have elected to use the electronic
filing system.
(1) Paper Only Filings. The following documents must be filed only in paper form:
(A) motions to seal; and
(B) sealed, ex parte, or otherwise non-public documents, including, for example, presentence reports and statements of reasons in a judgment of criminal conviction.
(2) Documents Initiating a Case. Documents that initiate a case in the court of appeals
may be filed electronically or in paper, including for example, petitions for review,
petitions for permission to appeal, applications to enforce an agency order, petitions
for a writ of mandamus or prohibition, and applications for leave to file a second or
successive petition for relief pursuant to 28 U.S.C. § 2254 or § 2255. While a Notice of
Appeal initiates an appeal, it must be filed in the district court and, thus, is subject to
the relevant district court's procedures governing electronic filing.
(3) Briefs and Appendices. Although briefs (including the addendum, required by 1st Cir.
R. 28.0) and appendices must be filed electronically, paper copies are still required to
be filed. When a brief or appendix is filed electronically, it is deemed tendered. The
clerk's office will then review the electronically tendered filing and, if it is compliant
with federal and local rules, send a notification accepting the brief and/or appendix as
filed and requiring the attorney or party filing electronically ("ECF Filer") to file the
appropriate number of identical paper copies so that they are received by the court
within seven days of the notification. The clerk may shorten the period for filing paper
copies of a brief if it becomes necessary in a particular case. At the time a brief or
46

appendix is tendered electronically, it must be served on all other parties, as required
by Federal Rules of Appellate Procedure 25(b) and 31(b). See 1st Cir. R. 25.0(e).
Parties do not need to serve the brief or appendix again on the other parties to the case
when identical paper copies are filed with the court.
(4) Criminal Justice Act Vouchers. CJA 24 vouchers filed in accordance with the Criminal
Justice Act, 18 U.S.C. § 3006A, must be filed electronically using the court’s electronic
filing system. All other Criminal Justice Act vouchers must be submitted electronically
using the court's CJA eVoucher system.
(5) Copies of Filings. Paper copies of electronically filed documents other than briefs (such
as petitions for rehearing or rehearing en banc) are not required and should not be filed
unless specifically requested by the clerk. The clerk may direct the ECF Filer to provide
the court with paper copies of electronically filed documents, or with an identical
electronic version of any paper document previously filed in the same case by that filer,
in a format designated by the court.
(c) Eligibility and Registration. Attorneys who practice in this court must register as ECF
Filers. Registration is required to obtain a login and password for use of the electronic case
filing system. Attorneys and non-incarcerated pro se litigants may register at
www.pacer.uscourts.gov. A non-incarcerated party to a pending case who is not
represented by an attorney may, but is not required to, register as an ECF Filer for purposes
of that case. If a pro se party retains an attorney, the attorney must register as an ECF Filer
if he or she has not already done so and file an appearance form.
(1) Consent to Service. Registration as an ECF Filer constitutes consent to electronic
service of all documents as provided in these rules and in the Federal Rules of Appellate
Procedure.
(2) CM/ECF User’s Guide. Before filing an electronic document using the court’s
electronic filing system, ECF Filers should familiarize themselves with the CM/ECF
User’s Guide available on the court’s website at www.ca1.uscourts.gov.
(3) Duty to Update Registration Information. An ECF Filer has an affirmative duty to keep
the filer's primary email address and any additional email addresses associated with
the filer's account updated at all times. Any changes to an ECF Filer’s contact
information, including name, physical address, telephone, fax

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/federal_court_rules%3Aca1%3A7f679b1641b0dd13. Public record. Not legal advice.