FRAP 28

 BRIEFS

 (a) Brief of the appellant.  The brief of the appellant 
shall contain under appropriate headings and in the order here 
indicated:

 (1) A table of contents, with page references, and a 
table of cases (alphabetically arranged), statutes and other 
authorities cited, with references to the pages of the brief 
where they are cited.

 (2) A statement of subject matter and appellate 
jurisdiction.  The statement shall include: (i) a statement of 
the basis for subject matter jurisdiction in the district court 
or agency, with citation to applicable statutory provisions and 
with reference to the relevant facts to establish such 
jurisdiction; (ii) a statement of the basis for jurisdiction in 
the court of appeals, with citation to applicable statutory 
provisions and with reference to the relevant facts to establish 
                           
such jurisdiction; the statement shall include relevant filing 
dates establishing the timeliness of the appeal or petition for 
review and (a) shall state that the appeal is from a final order 
or a final judgment that disposes of all claims with respect to 
all parties or, if not, (b) shall include information 
establishing that the court of appeals has jurisdiction on some 
other basis.

 (3) A statement of the issues presented for review.

 (4) A statement of the case.  The statement shall first 
indicate briefly the nature of the case, the course of 
proceedings, and its disposition in the court below.  There shall 
follow a statement of the facts relevant to the issues presented 
for review, with appropriate references to the record (see 
subdivision (e)).

 (5) An argument.  The argument may be preceded by a 
summary.  The argument shall contain the contentions of the 
appellant with respect to the issues presented, and the reasons 
therefor, with citations to the authorities, statutes and parts 
of the record relied on.

 (6) A short conclusion stating the precise relief sought.

 (b) Brief of the appellee.  The brief of the appellee 
shall conform to the requirements of subdivision (a)(1)-(5), 
except that a statement of jurisdiction, of the issues, or of the 
case need not be made unless the appellee is dissatisfied with 
the statement of the appellant.

 (c) Reply brief.  The appellant may file a brief in reply 
to the brief of the appellee, and if the appellee has cross-
appealed, the appellee may file a brief in reply to the response 
of the appellant to the issues presented by the cross appeal.  No 
further briefs may be filed except with leave of court.  All 
reply briefs shall contain a table of contents, with page 
references, and a table of cases (alphabetically arranged), 
statutes and other authorities cited, with references to the 
pages of the reply brief where they are cited.

 (d) References in briefs to parties.  Counsel will be 
expected in their briefs and oral arguments to keep to a minimum 
references to parties by such designations as "appellant" and 
"appellee." It promotes clarity to use the designations used in 
the lower court or in the agency proceedings, or the actual names 
of parties, or descriptive terms such as "the employee," "the 
injured person," "the taxpayer," "the ship," "the stevedore," 
etc.

 (e) References in briefs to the record.  References in 
the briefs to parts of the record reproduced in the appendix 
filed with the brief of the appellant (see Rule 30(a)) shall be 
to the pages of the appendix at which those parts appear.  If the 
appendix is prepared after the briefs are filed, references in 
the briefs to the record shall be made by one of the methods 
allowed by Rule 30(c).  If the record is reproduced in accordance 
with the provisions of Rule 30(f), or if references are made in 
the briefs to parts of the record not reproduced, the references 
shall be to the pages of the parts of the record involved; e.g., 
Answer p. 7, Motion for Judgment p. 2, Transcript p. 231.  
Intelligible abbreviations may be used.  If reference is made to 
evidence the admissibility of which is in controversy, reference 
shall be made to the pages of the appendix or of the transcript 
at which the evidence was identified, offered, and received or 
rejected.

 (f) Reproduction of statutes, rules, regulations, etc.  
If determination of the issues presented requires the study of 
statutes, rules, regulations, etc. or relevant parts thereof, 
they shall be reproduced in the brief or in an addendum at the 
end, or they may be supplied to the court in pamphlet form.

 (g) Length of briefs.  Except by permission of the court, 
or as specified by local rule of the court of appeals, principal 
briefs shall not exceed 50 pages, and reply briefs shall not 
exceed 25 pages, exclusive of pages containing the table of 
contents, tables of citations and any addendum containing 
statutes, rules, regulations, etc.

 (h) Briefs in cases involving cross appeals.  If a cross 
appeal is filed, the party who first files a notice of appeal, or 
in the event that the notices are filed on the same day, the 
plaintiff in the proceeding below, shall be deemed the appellant 
for the purposes of this rule and Rules 30 and 31, unless the 
parties otherwise agree or the court otherwise orders.  The brief 
of the appellee shall conform to the requirements of subdivision 
(a)(1)-(6) of this rule with respect to the appellee's cross 
appeal as well as respond to the brief of the appellant except 
that a statement of the case need not be made unless the appellee 
is dissatisfied with the statement of the appellant.

 (i) Briefs in cases involving multiple appellants or 
appellees.  In cases involving more than 1 appellant or appellee, 
including cases consolidated for purposes of the appeal, any 
number of either may join in a single brief, and any appellant or 
appellee may adopt by reference any part of the brief of another.  
Parties may similarly join in reply briefs.

 (j) Citation of supplemental authorities.  When pertinent 
and significant authorities come to the attention of a party 
after the party's brief has been filed, or after oral argument 
but before decision, a party may promptly advise the clerk of the 
court, by letter, with a copy to all counsel, setting forth the 
citations.  There shall be a reference either to the page of
the brief or to a point argued orally to which the citations 
pertain, but the letter shall without argument state the reasons 
for the supplemental citations.  Any response shall be made 
promptly and shall be similarly limited.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. 
July 1, 1986, Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991, 
eff. Dec. 1, 1991.)

CIRCUIT RULE 28-1

 BRIEFS, APPLICABLE RULES

 (a) Briefs shall be prepared and filed in accordance with 
the Federal Rules of Appellate Procedure except as otherwise 
provided by these rules.  See FRAP 28, 29, 31 and 32.  Briefs not 
complying with FRAP and these rules may be stricken by the Court.

 (b) Appellants proceeding without the assistance of 
counsel may file the form brief provided by the Clerk in lieu of 
the brief described in the preceding paragraph.

Cross Reference:  Circuit Rule 33-1, Civil Appeals Docketing 
Statement; Appendix of Forms, Form 6.

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 28-1

 The rules regarding form of the brief and the colors of 
covers are set forth in FRAP 32.  See Circuit Rule 31-1 for the 
number of copies required.

CIRCUIT RULE 28-2

 CONTENTS OF BRIEFS

 In addition to the requirements of FRAP 28, briefs shall 
comply with the following rules:
 28-2.1 Certificate as to Interested Parties 
[ABROGATED 7/1/90].

Cross Reference: FRAP 26.1 Corporate Disclosure 
Statement.

 28-2.2 Statement of Jurisdiction

 In a statement preceding the statement of the case in its 
initial brief, each party shall demonstrate the jurisdiction of 
the district court or agency and of this Court by stating, in the 
following order:

 (a) The statutory basis of subject matter jurisdiction of 
the district court or agency;
 (b) The basis for claiming that the judgment or order 
appealed from is final or otherwise appealable (e.g., Fed. R. 
Civ. P.  54(b); 28 U.S.C.  1292), and the statutory basis of 
jurisdiction of this Court.

 (c) The date of entry of the judgment or order appealed 
from; the date of filing of the notice of appeal or petition for 
review; and the statute or rule under which it is claimed the 
appeal is timely.

 If the appellee agrees with appellant's statement of 1 or 
more of the foregoing matters, it will be sufficient for the 
appellee to state such agreement under an appropriate heading.

 28-2.3 Attorneys Fees

 Any party in a civil case, including administrative 
agency adjudications under 28 U.S.C.  2412(d)(3), who intends to 
seek attorneys fees for the appeal must include a short statement 
to that effect and must identify the authority under which the 
attorneys fees will be sought.

 28-2.4 Bail Status

 The opening brief in a criminal appeal shall contain a 
statement as to the bail status of the defendant.  If the 
defendant is in custody, the projected release date should be 
included. 

        28-2.5 Reviewability and Standard of Review 

As to each issue, appellant shall state where in the record on 
appeal the issue was raised and ruled on and identify the 
applicable standard of review.

In addition, if a ruling complained of on appeal is one to which 
a party must have objected at trial to preserve a right of 
review, e.g., a failure to admit or exclude evidence or the 
giving or refusal to give a jury instruction, the party shall 
state where in the record on appeal the objection and ruling are 
set forth.

28-2.6 Statement of Related Cases

Each party shall identify in a statement on the last page of its 
initial brief any known related case pending in this court.  As 
to each such case, the statement shall include the name and Court 
of Appeals docket number of the related case and describe its 
relationship to the case being briefed.  Cases are deemed related 
if they:

 (a)  arise out of the same or consolidated cases in the 
district court or agency;

 (b) are cases previously heard in this Court which 
concern the case being briefed;

 (c) raise the same or closely related issues; or

 (d) involve the same transaction or event.  If no other 
cases in this Court are deemed related, a statement shall be made 
to that effect.  The appellee need not include any case 
identified as related in the appellant's brief.

28-2.7 Addendum to Briefs

 If determination of the issues presented requires the 
study of statutes, regulations or rules, relevant parts thereof 
shall be reproduced in an addendum at the end of a party's brief.  
The addendum shall be separated from the brief by a distinctively 
colored page.

28-2.8 Record References

 Every assertion in briefs regarding matters in the record 
shall be supported by a reference to the page or document number 
of the original record where the matter relied on is to be found.

 28-2.9 Bankruptcy Appeals

 If the appeal arises out of the bankruptcy court, the 
name, address and court of the bankruptcy judge initially ruling 
on the matter shall be furnished to the clerk of this court by 
the appellant with the opening brief.

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 28-2

 Sanctions may be imposed for failure to comply with this 
rule, particularly with respect to record references.  See 
Mitchel v. General Elec. Co., 689 F.2d 877 (9th Cir. 1982).

CIRCUIT RULE 28-3

LENGTH OF BRIEFS; MOTIONS TO EXCEED PAGE LIMITS

 28-3.1 Length of Briefs

 The length of briefs may be limited by court order, or by 
order under the prebriefing conference program.  In the absence 
of such an order, the parties will observe the page limitations 
in FRAP 28(g).

Appeals Docketing Statement; Prebriefing Conference Program.

 28-3.2 Computation

 The certificate as to interested parties, statement of 
related cases and any addendum under Circuit Rule 28-2.7 shall 
not be counted in determining the length of a brief.  All other 
material in the brief, including all materials required by these 
rules, shall be counted in determining the length of briefs, and 
none of the requirements of this rule is a justification for 
filing a motion to exceed page limits.  Parties must not append 
or incorporate by reference briefs submitted to the district 
court or agency, or refer this Court to such briefs for their 
arguments on the merits of the appeal.

 28-3.3 Motions to Exceed Page Limits

 The Court looks with disfavor on motions to exceed the 
page limits in FRAP 28(g) or established under the prebriefing 
conference program and such motions will be granted only for 
extraordinary and compelling reasons.  A motion for permission to 
exceed page limits must be filed at least 14 days before the 
brief is due to be filed (7 days in the case of a reply brief) 
and must be accompanied by an affidavit stating in detail the 
reasons for the motion.  The cost of preparing and revising the 
brief will not be considered by the Court in ruling on a motion 
to exceed page limits.

CIRCUIT RULE 28-4

JOINT BRIEFS IN CIVIL CASES

 In civil cases involving more than 1 appellant or 
appellee, and in cases consolidated for purposes of the appeal, 
all parties on a side shall join in a single brief to the 
greatest extent practicable.  Upon application, the clerk may 
extend the time for filing a joint brief up to 21 days and may 
allow the joint parties up to 5 additional pages in which to 
discuss any differences in their positions.


CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 28-4

Joint Briefs in Multi-Defendant Criminal Appeals:  In multi-
defendant criminal appeals raising common issues, parties are 
encouraged to file a joint brief with respect to the common 
issues.

FRAP 29

BRIEF OF AN AMICUS CURIAE

 A brief of an amicus curiae may be filed only if 
accompanied by written consent of all parties, or by leave of 
court granted on motion or at the request of the court, except 
that consent or leave shall not be required when the brief is 
presented by the United States or an officer or agency thereof, 
or by a State, Territory or Commonwealth.  The brief may be 
conditionally filed with the motion for leave.  A motion for 
leave shall identify the interest of the applicant and shall 
state the reasons why a brief of an amicus curiae is desirable.  
Save as all parties otherwise consent, any amicus curiae shall 
file its brief within the time allowed the party whose position 
as to affirmance or reversal the amicus brief will support unless 
the court for cause shown shall grant leave for later filing, in 
which event it shall specify within what period an opposing party 
may answer.  A motion of an amicus curiae to participate in the 
oral argument will be granted only for extraordinary reasons.

CIRCUIT RULE 29-1

REPLY BRIEF OF AN AMICUS CURIAE

 No reply brief of an amicus curiae will be received.


FRAP 30

 APPENDIX TO THE BRIEFS

 (a) Duty of appellant to prepare and file; content of 
appendix; time for filing; number of copies.  The appellant shall 
prepare and file an appendix to the briefs which shall contain:  
(1) the relevant docket entries in the proceeding below; (2) any 
relevant portions of the pleadings, charge, findings or opinion; 
(3) the judgment, order or decision in question; and (4) any 
other parts of the record to which the parties wish to direct the 
particular attention of the court.  Except where they have 
independent relevance, memoranda of law in the district court 
should not be included in the appendix.  The fact that parts of 
the record are not included in the appendix shall not prevent the 
parties or the court from relying on such parts.

 Unless filing is to be deferred pursuant to the 
provisions of subdivision (c) of this rule, the appellant shall 
serve and file the appendix with the brief.  Ten copies of the 
appendix shall be filed with the clerk, and 1 copy shall be 
served on counsel for each party separately represented, unless 
the court shall by rule or order direct the filing or service of 
a lesser number.

 (b) Determination of contents of appendix; cost of 
producing.  The parties are encouraged to agree as to the 
contents of the appendix.  In the absence of agreement, the 
appellant shall, not later than 10 days after the date on which 
the record is filed, serve on the appellee a designation of the 
parts of the record which the appellant intends to include in the 
appendix and a statement of the issues which the appellant 
intends to present for review.  If the appellee deems it 
necessary to direct the particular attention of the court to 
parts of the record not designated by the appellant, the appellee 
shall, within 10 days after receipt of the designation, serve 
upon the appellant a designation of those parts.  The appellant 
shall include in the appendix the parts thus designated with 
respect to the appeal and any cross appeal.  In designating parts 
of the record for inclusion in the appendix, the parties shall 
have regard for the fact that the entire record is always 
available to the court for reference and examination and shall 
not engage in unnecessary designation.  The provisions of this 
paragraph shall apply to cross appellants and cross appellees.

 Unless the parties otherwise agree, the cost of producing 
the appendix shall initially be paid by the appellant, but if the 
appellant considers that parts of the record designated by the 
appellee for inclusion are unnecessary for the determination of 
the issues presented the appellant may so advise the appellee and 
the appellee shall advance the cost of including such parts.  The 
cost of producing the appendix shall be taxed as costs in the 
case, but if either party shall cause matters to be included in 
the appendix unnecessarily the court may impose the cost of 
producing such parts on the party.  Each circuit shall provide by 
local rule for the imposition of sanctions against attorneys who 
unreasonably and vexatiously increase the costs of litigation 
through the inclusion of unnecessary material in the appendix.

 (c) Alternative method of designating contents of the 
appendix; how references to the record may be made in the briefs 
when an alternative method is used.  If the court shall so 
provide by rule for classes of cases or by order in specific 
cases, preparation of the appendix may be deferred until after 
the briefs have been filed, and the appendix may be filed 21 days 
after service of the brief of the appellee.  If the preparation 
and filing of the appendix is thus deferred, the provisions of 
subdivision (b) of this Rule 30 shall apply, except that the 
designations referred to therein shall be made by each party at 
the time each brief is served, and a statement of the issues 
presented shall be unnecessary.

 If the deferred appendix authorized by this subdivision 
is employed, references in the briefs to the record may be to the 
pages of the parts of the record involved, in which event the 
original paging of each part of the record shall be indicated in 
the appendix by placing in brackets the number of each page at 
the place in the appendix where that page begins.  Or if a party 
desires to refer in a brief directly to pages of the appendix, 
that party may serve and file typewritten or page proof copies of 
the brief within the time required by Rule 31(a), with 
appropriate references to the pages of the parts of the record 
involved.  In that event, within 14 days after the appendix is 
filed the party shall serve and file copies of the brief in the 
form prescribed by Rule 32(a) containing references to the pages 
of the appendix in place of or in addition to the initial 
references to the pages of the parts of the record involved.  No 
other changes may be made in the brief as initially served and 
filed, except that typographical errors may be corrected.

 (d) Arrangement of the appendix.  At the beginning of the 
appendix there shall be inserted a list of the parts of the 
record which it contains, in the order in which the parts are set 
out therein, with references to the pages of the appendix at 
which each part begins.  The relevant docket entries shall be set 
out following the list of contents.  Thereafter, other parts of 
the record shall be set out in chronological order.  When matter 
contained in the reporter's transcript of proceedings is set out 
in the appendix, the page of the transcript at which such matter 
may be found shall be indicated in brackets immediately before 
the matter which is set out.  Omissions in the text of papers or 
of the transcript must be indicated by asterisks.  Immaterial 
formal matters (captions, subscriptions, acknowledgments, etc.) 
shall be omitted.  A question and its answer may be contained in 
a single paragraph.

 (e) Reproduction of exhibits.  Exhibits designated for 
inclusion in the appendix may be contained in a separate volume, 
or volumes, suitably indexed.  Four copies thereof shall be filed 
with the appendix and 1 copy shall be served on counsel for each 
party separately represented.  The transcript of a proceeding 
before an administrative agency, board, commission or officer 
used in an action in the district court shall be regarded as an 
exhibit for the purpose of this subdivision.

 (f) Hearing of appeals on the original record without the 
necessity of an appendix.  A court of appeals may by rule 
applicable to all cases, or to classes of cases, or by order in 
specific cases, dispense with the requirement of an appendix and 
permit appeals to be heard on the original record, with such 
copies of the record or relevant parts thereof, as the court may 
require.

(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 10, 1986, eff. 
July 1, 1986; Apr. 30, 1991, eff. Dec. 1, 1991.)

CIRCUIT RULE 30-1

 THE EXCERPTS OF RECORD

 Appeals before the Court of Appeals shall be on the 
original record without requirement of the appendix prescribed by 
FRAP 30.  Excerpts of record, in cases other than petitions for 
review or enforcement of agency orders, shall be filed as 
provided below.  Cases involving petitions for review or 
enforcement of agency orders are governed by Circuit Rule 17-2.

30-1.1 Filing of the Excerpts of Record At the time the 
appellant's brief is filed, the appellant shall file 5 copies of 
excerpts of record bound separately from the briefs.  The 
appellant shall serve 1 copy of the excerpts on each of the other 
parties.

30-1.2 Required Contents of the Excerpts of Record

 (a)  In all appeals the excerpts of record shall include:

(i) the notice of appeal;

(ii) the trial court docket sheet; 
(iii) the judgment or interlocutory order appealed from;

(iv) any opinion, findings of fact or conclusions of law relating 
to the judgment or order appealed from;

(v) any other orders or rulings, including minute orders, sought 
to be reviewed;

(vi) any jury instruction given or refused which presents an 
issue on appeal;

(vii) except as provided in Circuit Rule 30-1.2(b)(ii), where an 
issue on appeal is based upon a challenge to the admission or 
exclusion of evidence, that specific portion of the reporter's 
transcript recording any discussion by court or counsel involving 
the evidence, offer of proof, ruling or order, and objections at 
issue;

(viii) except as provided in Circuit Rule 30-1.2(b)(ii), where an 
issue on appeal is based upon a challenge to any other ruling, 
order, finding of fact, or conclusion of law, and that ruling, 
order, finding or conclusion was delivered orally, that specific 
portion of the reporter's transcript recording any discussion by 
court or counsel in which the assignment of error is alleged to 
rest;

(ix) where an issue on appeal is based upon a challenge to the 
allowance or rejection of jury instructions, that specific 
portion of the reporter's transcript recording any discussion by 
court or counsel involving the instructions at issue, including 
the ruling or order, and objections;

(x) where an issue on appeal is based on written exhibits 
(including affidavits), those specific portions of the exhibits 
necessary to resolve the issue; and

(xi) any other specific portions of any documents in the record 
that are cited in appellant's briefs and necessary to the 
resolution of an issue on appeal.

 (b) In addition to the items required by Circuit Rule 30-
1.2(a), in all criminal appeals and motions for relief under 28 
U. S. C.  2255 the excerpts of record shall also include:

 (i) the final indictment; and

 (ii) where an issue on appeal concerns matters raised at 
a suppression hearing, change of plea hearing or sentencing 
hearing, the entire reporter's transcript of that hearing.

Cross Reference:  Cir. R. 30-1.7, Presentence Reports.

 (c) In addition to the items required by Circuit Rule 30-
1.2(a), in all civil appeals the excerpts of record shall also 
include:

 (i) the final pretrial order, or, if the final pretrial 
order does not set out the issues to be tried, the final 
complaint and answer, petition and response, or other pleadings 
setting out those issues, and;

 (ii) where the appeal is from the grant or denial of a 
motion, those specific portions of any affidaits, declarations, 
exhibits or similar attachments submitted in support of or in 
opposition to the motion that are essential to the resolution of 
an issue on appeal.

 (d) In appeals from a district court decision reviewing 
agency actions, the excerpts of record shall include the items 
required by Circuit Rule 17-2.

Cross Reference:  Circuit Rule 28-2.5, Reviewability and Standard 
of Review.

 30-1.3 Items Not to Be Included in the Excerpts of Record

 The excerpts of record shall not include briefs or other 
memoranda of law filed in the district court unless necessary to 
the resolution of an issue on appeal, and shall include only 
those pages necessary therefor.

Cross Reference:  Circuit Rule 30-2, Sanctions.  

 30-1.4 Form of the Excerpts of Record

 The documents which comprise the excerpts of record need 
not be certified as true copies, but if possible the district 
court's "filed" stamp should appear on each document.  The 
documents in the excerpts should be arranged by file date in 
chronological order with the document with the earliest file date 
on top.  The document with the earliest file date should appear 
under the first tab or should be paginated beginning with page 1.  
The trial court docket sheet should always be the last document 
in the excerpts.  The 5 copies of the excerpts are to be 
reproduced on letter size white paper by any duplicating or 
copying process capable of producing a clear black image, and 
each copy must be securely bound at the top or on the left side 
and must have a tan cover styled as described in FRAP 32(a).  The 
excerpts must be either paginated or the documents marked with 
tabs corresponding to the tab number, if any, of the documents in 
the clerk's record.  The excerpts must begin with an index 
organized chronologically describing the documents, exhibits and 
portions of the reporter's transcript contained therein and the 
page or tab number where they may be found in the excerpts.  The 
information on the front cover of the excerpts of record should 
be styled exactly as a brief except that the wording "Excerpts of 
Record" should be substituted for "Brief of Appellant." In those 
unusual cases in which the total number of pages in the excerpts 
exceeds 300 pages, the excerpts shall be filed in multiple 
volumes, with each volume containing 300 pages or fewer.

30-1.5 Appellee's Supplemental Excerpts of Record

 If the appellee believes that the excerpts of record 
filed by the appellant exclude items which are required under 
this rule, or if argument in the answering brief requires review 
of portions of the reporter's transcript or documents not 
included by appellant in the excerpts, the appellee shall, at the 
time of the appellee's brief is filed, file supplemental excerpts 
of record, prepared pursuant to this rule, comprised of the 
omitted items.  Appellee shall file 5 copies of the supplemental 
excerpts.  The appellee shall serve 1 copy of the supplemental 
excerpts of record on each of the other parties.

 30-1.6 Additional Copies of the Excerpts of 
Record

 Should the Court of Appeals consider a case en banc, the 
clerk of the Court of Appeals will require counsel to submit an 
additional 20 copies of the excerpts of record.

 30-1.7 Presentence Reports

 In all cases in which the presentence report is 
referenced in the brief, the party filing such brief must forward 
four (4) copies of the presentence report, under seal, to the 
Clerk of the Court of Appeals.  This filing shall be accomplished 
by mailing the four copies of the presentence report in a sealed 
envelope which reflects the title and number of the cases and 
that four copies of the presentence report are enclosed.  The 
copies of the presentence report shall accompany the brief and 
excerpts of record.  The presentence report shall remain under 
seal but be provided by the Clerk to the panel hearing the case.

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 30-1

 The purpose of the excerpts of record is to provide each 
member of the panel with those portions of the record necessary 
to reach a decision.  In general, decisions will be rendered 
without review of parts of the record not contained in the 
excerpts and not specifically relied upon in the briefs of the 
parties.  Therefore, parties should ensure that those parts of 
the record necessary to permit an informed analysis of their 
position are included in the excerpts.  Nevertheless, in reaching 
its decision, the court may, but need not, rely on parts of the 
record not included by the parties in their excerpts.

CIRCUIT RULE 30-2

SANCTIONS FOR FAILURE TO COMPLY WITH CIRCUIT RULE 30-1

 If materials required to be included in the excerpts 
under these rules are omitted, or irrelevant materials are 
included, the court may take one or more of the following 
actions:

 (a) strike the excerpts and order that they be corrected 
and resubmitted;

 (b) order that the excerpts be supplemented;

 (c) if the court concludes that a party or attorney has 
vexatiously or unreasonably increased the cost of litigation by 
inclusion of irrelevant materials, deny that portion of the costs 
the court deems to be excessive; and/or

 (d) impose monetary sanctions.

Counsel will be provided notice and have an opportunity to 
respond before sanctions are imposed.

CIRCUIT RULE 30-3

PRISONER APPEALS WITHOUT
REPRESENTATION BY COUNSEL

 In cases involving appeals by prisoners not represented 
by counsel, the clerk of the district court shall forward to the 
prisoner and to the clerk of this Court, within 21 days after the 
date the notice of appeal is filed, copies of the documents to 
comprise the excerpts of record.


FRAP 31

 FILING AND SERVICE OF BRIEFS

 (a) Time for serving and filing briefs.  The appellant 
shall serve and file a brief within 40 days after the date on 
which the record is filed.  The appellee shall serve and file a 
brief within 30 days after service of the brief of the appellant.  
The appellant may serve and file a reply brief within 14 days 
after service of the brief of the appellee, but, except for good 
cause shown, a reply brief must be filed at least 3 days before 
argument.  If a court of appeals is prepared to consider cases on 
the merits promptly after briefs are filed, and its practice is 
to do so, it may shorten the periods prescribed above for serving 
and filing briefs, either by rule for all cases or for classes of 
cases, or by order for specific cases.

 (b) Number of copies to be filed and served.  Twenty-five 
copies of each brief shall be filed with the clerk, unless the 
court by order in a particular case shall direct a lesser number, 
and 2 copies shall be served on counsel for each party separately 
represented.  If a party is allowed to file typewritten ribbon 
and carbon copies of the brief, the original and 3 legible copies 
shall be filed with the clerk, and 1 copy shall be served on 
counsel for each party separately represented.

 (c) Consequence of failure to file briefs.  If an 
appellant fails to file a brief within the time provided by this 
rule, or within the time as extended, an appellee may move for 
dismissal of the appeal.  If an appellee fails to file a brief, 
the appellee will not be heard at oral argument except by 
permission of the court.

(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 10, 1986, eff. 
July 1, 1986.)

CIRCUIT RULE 31-1

 NUMBER OF BRIEFS

 In lieu of the 25 copies required by FRAP 31(b), an 
original and 15 copies of each brief shall be filed.  If a 
suggestion for hearing or rehearing en banc is granted, each 
party shall file 20 additional copies of its briefs.  The 
appellant shall also file 20 additional copies of the excerpts of 
record.

 Any party proceeding in forma pauperis and not 
represented by counsel, shall file only an original and 7 copies 
of briefs.

CIRCUIT RULE 31-2

TIME FOR SERVICE AND FILING

 31-2.1 Requirement of Timely Filing

 (a) Parties shall observe the briefing schedule set forth 
in FRAP 31(a) unless a briefing schedule is established by an 
order of the Court of Appeals.  Specific due dates set by Court 
order are not subject to the additional 3-day allowance for 
service of previous papers by mail set forth in FRAP 26(c).

 (b)  In cases controlled by FRAP 31(a), the appellant is 
responsible for determining the date on which the certificate of 
record is filed with the Court of Appeals and for computing the 
due date for the opening brief.

 (c) In all cases, first class mail shall be deemed to be 
the most expeditious form of delivery by mail.  (See FRAP 25(a).)

 31-2.2 Rule for Criminal Cases

 In criminal cases, the briefing schedule will normally be 
set by the district court clerk.  In such cases, the filing of 
the appellant's brief before the due date shall not advance the 
due date for the appellee's brief.  If a briefing schedule is not 
set by the district court clerk, the parties shall follow the 
time schedule set forth in FRAP 31.

 31-2.3 Extensions of Time for Filing Briefs

 (a) If good cause is shown, the clerk or a designated 
deputy may grant an oral request for a single extension of time 
of no more than 14 days to file an opening, answering or reply 
brief.  Such extensions may be applied for and granted or denied 
by telephone.  The grant or denial of the extension shall be 
entered on the court docket.  Application for such an extension 
shall be conditioned upon prior notice to the opposing party.  
The grant of an extension of time under this rule will bar any 
further motion to extend the brief's due date unless such motion, 
which must be in writing, demonstrates extraordinary and 
compelling circumstances.  The previous filing of a motion under 
Rule 31-2.3(b) precludes an application for an extension of time 
under this subsection.

 (b) In all other cases, an extension of time may be 
granted only upon written motion supported by a showing of 
diligence and substantial need.

 The motion shall be filed at least 7 days before the 
expiration of the time prescribed for filing the brief, and shall 
be accompanied by an affidavit stating:

 (1) when the brief is due;

 (2) when the brief was first due;

 (3) the length of the requested extension;  

 (4) the reason an extension is necessary;

 (5) movant's representation that movant has exercised 
diligence and that the brief will be filed within the time 
requested; and

 (6) whether any other party separately represented 
objects to the request, or why the moving party has been unable 
to determine any such party's position.

A conclusory statement as to the press of business does not 
constitute a showing of diligence and substantial need.  Any 
request exceeding 21 days must be supported by showing of 
extraordinary and compelling circumstances.

 31-2.4 Failure to File Briefs

 If the appellant fails to file a brief within the time 
allowed by FRAP 31(a) or an extension thereof, the court will 
dismiss the appeal pursuant to FRAP 31(c).  If appellee does not 
elect to file a brief, appellee shall notify the court by letter 
on or before the due date for the answering brief.  Failure to 
file the brief timely or advise the court that no brief will be 
filed will result in the issuance of an order to show cause to 
counsel why sanctions should not be imposed.

Cross Reference:  Circuit Rule 33-1, Civil Appeals Docketing 
Statement; Prebriefing Conference Program.


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