Foreword

The Federal Rules of Appellate Procedure and the Local Rules are frequently amended, deleted and supplemented. The Federal Rules of Appellate Procedure were last amended in December, 1998.

This publication contains the most recent modifications to the First Circuit Local Rules. The Local Rules are printed in italic type and set after the corresponding Fed. R. App. P. Local Rules amended over the course of the last year include Rule 27 (Motions), and Rule 32 (Briefs, Petitions for Rehearing and Other Papers: Computer Generated Disk Requirement), and Rule 35 (En Banc Consideration). Internal Operating Procedure V has been amended as well.

Please also note the provisions of Local Rule 32.1 allowing CD-ROM submissions.

Richard Cushing Donovan, Clerk

Boston, Massachusetts

February, 2001

Table of Contents

Foreword i

Table of Contents ii

Judges of the Court vi

Officers of the Court vi

Advisory Committee on Rules vi

Amendments vii

Schedule of Fees viii

Major Case Processing Events x

Notice to Litigants xii

Federal Rules of Appellate Procedure and Local Rules of the First Circuit 1

Title I. Applicability of Rules 1

Rule 1. Scope of Rules and Title 1

Rule 2. Suspension of Rules 1

Title II. Appeals From a Judgment and Order of a District Court 1

Rule 3. Appeal as of Right -- How Taken 1

Local Rule 3. Docketing Statement Required; Dismissals for Want of Diligent

Prosecution 3

Rule 4. Appeal as of Right -- When Taken 4

Rule 5. Appeal by Permission Under 28 U.S.C. § 1292(b) 8

Rule 6. Appeal in a Bankruptcy Case from a Final Judgment, Order, or Decree of a District Court or of Bankruptcy Appellate Panel 9

Rule 7. Bond for Costs on Appeal in Civil Cases 11

Rule 8. Stay or Injunction Pending Appeal 11

Rule 9. Release in a Criminal Case 12

Local Rule 9. Recalcitrant Witnesses 13

Rule 10. The Record on Appeal 13

Local Rule 10. Ordering Transcripts 15

Rule 11. Forwarding the Record 16

Local Rule 11. Transmission of the Record, Sealed Documents 18

Rule 12. Docketing the Appeal; Filing a Representation Statement; Filing the Record 19

Local Rule 12. Appearance, Withdrawal of Appearance 19

Title III. Review of a Decision of the United States Tax Court 20

Rule 13. Review of a Decision of the Tax Court 20

Rule 14. Applicability of Other Rules to Review of Decisions of the Tax Court 20

Title IV. Review and Enforcement of Orders of Administrative Agencies, Boards, Commissions and Officers 21

Rule 15. Review or Enforcement of an Agency Order -- How Obtained; Intervention 21

Rule 15.1. Briefs and Oral Argument in National Labor Relations Board Proceedings 22

Rule 16. The Record on Review or Enforcement 22

Rule 17. Filing the Record 23

Rule 18. Stay Pending Review 23

Rule 19. Settlement of a Judgment Enforcing an Agency Order in Part 24

Rule 20. Applicability of Other Rules to Review or Enforcement of an Agency Order 24

Title V. Extraordinary Writs 25

Rule 21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs 25

Local Rule 21. Petitions for Special Writs 26

Title VI. Habeas Corpus; Proceedings In Forma Pauperis 26

Rule 22. Habeas Corpus and Section 2255 Proceedings 26

Local Rule 22. Habeas Corpus; Certificate of Probable Cause 27

Local Rule 22.1. Habeas Corpus; Certificate of Appealability 27

Local Rule 22.2. Habeas Corpus; Successive Petitions 28

Rule 23. Custody or Release of a Prisoner in a Habeas Corpus Proceeding 29

Rule 24. Proceeding in Forma Pauperis 30

Title VII. General Provisions 31

Rule 25. Filing and Service 31

Local Rule 25. Facsimile Filing 33

Rule 26. Computing and Extending Time 33

Rule 26.1. Corporate Disclosure Statement 34

Rule 27. Motions 34

Local Rule 27. Motions 36

Rule 28. Briefs 37

Local Rule 28. Addendum to Briefs Required 39

Local Rule 28.1 References in Briefs to Sealed Material 40

Rule 29. Brief of an Amicus Curiae 40

Rule 30. Appendix to the Briefs 41

Local Rule 30. Appendix to Briefs 43

Rule 31. Serving and Filing Briefs 44

Local Rule 31. Filing Briefs 44

Rule 32. Form of Briefs, Appendices and Other Papers 45

Local Rule 32. Briefs Computer Generated Disk Required 47

Local Rule 32.1 CD-Rom Filings Allowed 48

Local Rule 32.2 Citations 51

Rule 33. Appeal Conferences 52

Local Rule 33. Civil Appeals Management Program 52

Rule 34. Oral Argument 54

Local Rule 34. Oral Argument 55

Local Rule 34.1 Terms and Sittings 55

Rule 35. En Banc Determination 56

Local Rule 35. En Banc Determination 57

Rule 36. Entry of Judgment; Notice 58

Local Rule 36. Opinions 58

Rule 37. Interest on Judgment 59

Rule 38. Costs Frivolous Appeals -- Damages and Costs 59

Rule 39. Costs 60

Local Rule 39. Fee Applications 61

Rule 40. Petition for Panel Rehearing 62

Rule 41. Mandate: Contents; Issuance and Effective Date; Stay 62

Local Rule 41. Stay of Mandate 63

Rule 42.Voluntary Dismissal 63

Rule 43. Substitution of Parties 64

Rule 44. Cases Involving Constitutional Questions Where United States Is Not a Party 64

Rule 45. Clerk's Duties 65

Local Rule 45. Defaults 66

Local Rule 45.1. The Clerk 66

Rule 46. Attorneys 66

Local Rule 46. Attorneys 67

Local Rule 46.5. Appointment of Counsel in Criminal Cases 70

Local Rule 46.6. Procedure for Withdrawal in Criminal Cases 72

Rule 47. Local Rules by Court of Appeals 73

Local Rule 47. Judicial Conference of the First Circuit 73

Local Rule 47.1. Local Rules of the First Circuit 74

Rule 48. Masters 75

Local Rule 48. Capital Cases 75

Appendix of Forms 82

Form 1. Notice of Appeal to a Court of Appeals From a Judgment or Order of a District Court 82

Form 2. Notice of Appeal to a Court of Appeals From a Decision of the United States Tax Court 83

Form 3. Petition for Review of Order of an Agency, Board, Commission or Officer 84

Form 4. Affidavit to Accompany Motion for Leave to Appeal in Forma Pauperis 85

Form 5. Notice of Appeal to a Court of Appeals from a Judgment or Order of a District Court or Bankruptcy Appellate Panel 90

First Circuit Appearance Form 91

Appendix A. Selected Sections from Title 28 of the United States Code 92

§ 2253. Appeal 92

§ 2254. State custody; remedies in Federal courts 92

§ 2255. Federal custody; remedies on motion attacking sentence 94

Appendix B: Order of the Court Regarding Section 2254, 2255 Petitions 96

Internal Operating Procedures of the First Circuit 97

Introduction 97

Internal Operating Procedure I. Court Organization 97

Internal Operating Procedure II. Attorneys 97

Internal Operating Procedure III. Initial Procedures 98

Internal Operating Procedure IV. Docketing Procedures 98

Internal Operating Procedure V. Motion Procedures 99

Internal Operating Procedure VI. Briefs and Appendices 99

Internal Operating Procedure VII. Screening and Calendaring 100

Internal Operating Procedure VIII. Oral Argument 100

Internal Operating Procedure IX. Opinions & Judgments 101

Internal Operating Procedure X. Petitions for Rehearing and Petitions for Hearing or Rehearing En Banc 101

Internal Operating Procedure XI. Complaints Against Judges 102

Internal Operating Procedure XII. Circuit Judicial Conferences 102

Internal Operating Procedure XIII. Notification of Changes or Notifications of the Court's Local Rules and Internal Operating Procedures 103

Judges of the Court

Hon. Juan R. Torruella, Chief Judge

Hon. Bruce M. Selya, Circuit Judge

Hon. Michael Boudin, Circuit Judge

Hon. Norman H. Stahl, Circuit Judge

Hon. Sandra L. Lynch, Circuit Judge

Hon. Kermit V. Lipez, Circuit Judge

Hon. Frank M. Coffin, Senior Circuit Judge

Hon. Levin H. Campbell, Senior Circuit Judge

Hon. Hugh H. Bownes, Senior Circuit Judge

Hon. Conrad K. Cyr, Senior Circuit Judge

Hon. David Souter, Circuit Justice

Officers of the Court

Phoebe Morse, Clerk of Court

Vincent Flanagan, Circuit Executive

Karen M. Moss, Circuit Librarian

Kathy Lanza, Senior Staff Attorney

Advisory Committee on Rules

Emily Gray Rice

Samuel Cespedes

Herman Cestero

John W. McCarthy

Mark Spiegel

Mary K. Ryan

Tracy A. Miner

Deming E. Sherman

Dina Chaitowitz

Miriam Conrad

Amendments

February, 2001

This edition of the rules supersedes the October 1999 publication. Since then, several rules have been amended, adopted or proposed. Proposed rules are not included here; they are available in the Clerk's Office.

Local Rule 22. Habeas Corpus; Certificate of Probable Cause.: amended. The headnote was amended to change the word "filed" to the word "initiated" and to add a citation. (September, 2000).

Local Rule 22.1. Habeas Corpus; Certificate of Appealability.: amended. The headnote was amended to change the word "filed" to the phrase "initiated on or after" and to add a citation. (September, 2000).

Local Rule 27. Motions.: amended. Subsection 27(b) was amended to add two sentences describing procedures for obtaining emergency relief. (January, 2001).

Local Rule 32. Briefs, Petitions for Rehearing, and Other Papers: Computer Generated Disk Requirement.: amended. The rule was amended to require that petitions for rehearing and, in addition, all other papers exceeding 10 pages in length must be submitted on disk as well as on paper. (January, 2001).

Local Rule 35. En Banc Determination.: amended. The rule was amended to add a requirement that one copy of a petition for a panel rehearing, rehearing en banc or combined Fed.R.App.P. 35(b)(3) document must be filed on disk. (January, 2001).

Internal Operating Procedure V. Motion Procedures.: amended. The Internal Operating Procedure was amended by adding subsection V.C., describing the Court's procedures for handling requests for emergency relief. (January, 2001).

Schedule of Fees

Following are fees to be charged for services to be performed by clerks of the courts of appeals. No fees are to be charged for services rendered on behalf of the United States, with the exception of those specifically prescribed in items 2, 4, and 13. No fees under this schedule shall be charged to federal agencies or programs which are funded from judiciary appropriations, including, but not limited to, agencies, organizations, and individuals providing services authorized by the Criminal Justice Act, 18 U.S.C. § 3006A, and Bankruptcy Administrator programs.

(1) For docketing a case on appeal or review, or docketing any other proceeding, $100. A separate fee [$105] shall be paid by each party filing a notice of appeal in the district court, but parties filing a joint notice of appeal in the district court are required to pay only one fee. A docketing fee shall not be charged for the docketing of an application for the allowance of an interlocutory appeal under 28 U.S.C. § 1292(b), unless the appeal is allowed.

(2) For every search of the records of the court and certifying the results thereof, $20.

(3) For certifying any document or paper, whether the certification is made directly on the document, or by separate instrument, $7.

(4) For reproducing any record or paper, 50 cents per page. This fee shall apply to paper copies made from either: (1) original documents; or (2) microfiche or microfilm reproductions of the original records.

(5) For reproduction of the magnetic tape recordings, either cassette or reel-to-reel, $20 including the cost of materials.

(6) For reproduction of the record in any appeal in which the requirement of an appendix is dispensed with by any court of appeals pursuant to Fed. R. App. P. 30(f), a flat fee of $55.

(7) For each microfiche or microfilm copy of any court record, where available, $4.

(8) For retrieval of a record from a Federal Records Center, National Archives, or other storage location removed from the place of business of the court, $25.

(9) For a check paid into the court which is returned for lack of funds, $35.

(10) Fees to be charged and collected for copies of opinions shall be fixed, from time to time, by each court, commensurate with the cost of printing.

(11) The court may charge and collect fees, commensurate with the cost of printing, for copies of the local rules of court. The court may also distribute copies of the local rules without charge.

(12) The clerk shall assess a charge for the handling of registry funds deposited with the court, to be assessed from interest earnings and in accordance with the detailed fee schedule issued by the Director of the Administrative Office of the United States Courts.

(13) For usage of electronic access to court data, 60 cents per minute of usage via dial up service, and 7 cents per page for public users obtaining information through a federal judiciary Internet site [provided the court may, for good cause, exempt persons or classes of persons from the fees, in order to avoid unreasonable burdens and to promote public access to such information]. All such fees collected shall be deposited to the Judiciary Information Technology Fund. These fees shall apply to the United States. (The Judicial Conference has approved an advisory note clarifying the judiciary's policy with respect to exemptions from the fees for usage of electronic access to court data. This advisory note is attached to this Fee Schedule as Appendix I. The Conference has also approved an advisory note defining information that may be provided to the public at no cost. This advisory note is attached at Appendix II.)

(14) Upon the filing of any separate or joint notice of appeal or application for appeal from the Bankruptcy Appellate Panel, or notice of the allowance of an appeal from the Bankruptcy Appellate Panel, or of a writ of certiorari, $5 shall be paid by the appellant or petitioner.

The Judicial Conference has prescribed fees for electronic access to court data, as set forth above in the Miscellaneous Fee Schedule. The schedule provides that the court may exempt persons or classes of persons from the fees, in order to avoid unreasonable burdens and to promote public access to such information. Exemptions should be granted as the exception, not the rule. The exemption language is intended to accommodate those users who might otherwise not have access to the information in this electronic form. It is not intended to provide a means by which a court would exempt all users.

Examples of persons and classes of persons who may be exempted from electronic public access fees include, but are not limited to: indigents; bankruptcy case trustees; not-for-profit organizations; and voluntary ADR neutrals.

a. The Judicial Conference has prescribed a fee for access to court data obtained electronically from the public records of individual cases in the court, including filed documents and the docket sheet, except as provided below.

b. Courts may provide other local court information at no cost. Examples of information which can be provided at no cost include: local rules, court forms, news items, court calendars, opinions designated by the court for publication, and other information - such as court hours, court location, telephone listings - determined locally to benefit the public and the court.

Major Case Processing EventsKey:

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 [Loc. 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(b) must be used. Counsel must accurately complete the form and arrange for payment for the Order to be effective. A copy of the Transcript Order must be attached to the docketing statement filed in the Court of Appeals. See Local Rules 10, 3.

2. Form of Briefs

The parties must carefully comply with the margin, print size and word limit requirements of Fed. R. App. P. 32. One copy of the brief must be submitted on a computer readable disk. See Local Rule 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 Local Rule 28.

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 Loc. R. 30, 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.

6. Corporate Disclosure Statement

Counsel representing corporations must include a corporate 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.

7. Certificate of Service

The Court will not consider any motion, brief, or document that has not been served on all parties. Therefore, all documents submitted for filing must contain a statement, preferably attached to the document's last page, indicating: the date of service; the manner of service, and the names and addresses of the persons served. See Fed. R. App. P. 25.

Federal Rules of Appellate Procedure

and First Circuit Local Rules

TITLE I. APPLICABILITY OF RULES

Rule 1. Scope of Rules; 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) Rules Do Not Affect Jurisdiction. These rules do not extend or limit the jurisdiction of the courts of appeals.

(c) Title.  These rules are to be known as the Federal Rules of Appellate Procedure.

Rule 2. Suspension of Rules

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 proceeding as it directs, except as otherwise provided in Rule 26(b).

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

Rule 3. 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.

• 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:

(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, order, or part thereof being appealed; 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) An appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice.

(5) Form 1 in the Appendix of Forms is a suggested form of a notice of appeal.

(d) Serving the Notice of Appeal.

(1) The district clerk must serve notice of the filing of a notice of appeal by mailing 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, either by personal service or by mail addressed to 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 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 mails copies, with the date of mailing. 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. Docketing Statement Required; Dismissals for Want of Diligent Prosecution.

• 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 of filing the notice of appeal, 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 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.



• Form. Counsel filing an appeal must complete and file a docketing statement, using the form provided by the clerk of the appeals court.



• 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.



• 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 seven days of service of the docketing statement, with copies to all other parties.

(b) If appellant does not pay the docket fee within 7 days of the filing of the notice of appeal, or does not file the docketing statement or any other paper 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]

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 the judgment or order appealed from is entered.

(B) When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered.

(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 timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, 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;

(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 no later than 10 days (computed using Federal Rule of Civil Procedure 6(a)) after the judgment is entered.

(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 altered or amended 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) 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 10 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:

(A) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice of the entry, whichever is earlier;

(B) the court finds that the moving party was entitled to notice of the entry of the judgment or order sought to be appealed but did not receive the notice from the district court or any party within 21 days after entry; and

(C) the court finds that no party would be prejudiced.

(7) Entry Defined. A judgment or order is entered for purposes of this Rule 4(a) when it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure.

(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 10 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.

(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 10 days after the entry of the order disposing of the last such remaining motion, or within 10 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 10 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(c), nor does the filing of a motion under 35(c) affect the validity of a notice of appeal filed before entry of the order disposing of the motion.

(6) Entry Defined. A judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket.

(c) Appeal by an Inmate Confined in an Institution.

(1) If an inmate confined in an institution 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. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

(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 30-day 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 for permission to appeal. The petition must be filed with the circuit clerk with proof of service 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.

(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 7 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. All papers must conform to Rule 32(a)(1). 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.

(d) Grant of Permission; Fees; Cost Bond; Filing the Record.

(1) Within 10 days after the entry of the order granting permission to appeal, the appellant must:

(A) pay the district clerk all required fees; and

(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 from a Final Judgment, Order, or Decree of a District Court or Bankruptcy Appellate Panel

(a) Appeal From a Judgment, Order, or Decree of a District Court Exercising Original Jurisdiction in a Bankruptcy Case. An appeal to a court of appeals from a final judgment, order, or decree of a district court exercising jurisdiction under 28 U.S.C. § 1334 is taken as any other civil appeal under these rules.

(b) Appeal From a Judgment, Order, or Decree of a District Court or Bankruptcy Appellate Panel Exercising Appellate Jurisdiction in a Bankruptcy Case.

• Applicability of Other Rules. These rules apply to an appeal to a court of appeals under 28 U.S.C. § 158(d) from a final judgment, order, or decree of a district court or bankruptcy appellate panel exercising appellate jurisdiction under 28 U.S.C. § 158(a) or (b). But there are 3 exceptions:

(A) Rules 4(a)(4), 4(b), 9, 10, 11, 12(b), 13-20, 22-23, and 24(b) do not apply;

(B) the reference in Rule 3(c) to "Form 1 in the Appendix of Forms" must be read as a reference to Form 5; and

(C) when the appeal is from a bankruptcy appellate panel, the term "district court," as used in any applicable rule, means "appellate panel."

(2) Additional Rules. In addition to the rules made applicable by Rule 6(b)(1), the following rules apply:

(A) Motion for rehearing.

(i) If a timely motion for rehearing under Bankruptcy Rule 8015 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) Appellate review of the order disposing of the motion requires the party, in compliance with Rules 3(c) and 6(b)(1)(B), to amend a previously filed notice of appeal. A party intending to challenge an altered or amended judgment, order, or decree must file a notice of appeal or amended notice of appeal 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 10 days after filing the notice of appeal, the appellant must file with the clerk possessing the record assembled in accordance with Bankruptcy Rule 8006 -- and serve on the appellee -- a statement of the issues to be presented on appeal and a designation of the record to be certified and sent to the circuit clerk.

(ii) An appellee who believes that other parts of the record are necessary must, within 10 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) Forwarding the record.

(i) When the record is complete, the district clerk or bankruptcy appellate panel 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 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.

(ii) All parties must do whatever else is necessary to enable the clerk to assemble and forward the record. The court of appeals may provide by rule or order that a certified copy of the docket entries be sent in place of the redesignated record, but any party may request at any time during the pendency of the appeal that the redesignated record be sent.

(D) Filing the record. Upon receiving the record -- or a certified copy of the docket entries sent in place of the redesignated record -- the circuit clerk must file it and immediately notify all parties of the filing date.

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. A party must ordinarily move first in the district court for the following relief:

(A) a stay of the judgment or order of a district court pending appeal;

(B) approval of a supersedeas bond; 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.

(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 appropriate security in the district court.

(b) Proceeding Against a Surety. If a party gives security in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the district court and irrevocably appoints the district clerk as the surety's agent on whom any papers affecting the surety's liability on the bond or undertaking may be served. On motion, a surety'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 mail a copy to each surety 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.

(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. 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

• 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 10 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

(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 10 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 10 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 10 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 10 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 evide