First Circuit Rulebook Federal Rules of Appellate Procedure First Circuit Local Rules First Circuit Internal Operating Procedures Effective with amendments to the Fed. R. App. P. through December 1, 1998 Maine Massachusetts New Hampshire Rhode Island Puerto Rico The Federal Rules of Appellate Procedure were recently amended, effective December 1, 1998. The amendments to the Federal Rules of Appellate Procedure include revisions of all forty-eight rules and a revision of Form 4. The majority of the changes are stylistic and were intended to make the rules more comprehensible. Recent legislative and judicial developments have resulted in substantive changes to several of the Federal Rules, most notably Fed. R. App. P. 3.1, 5, 22, 26.1, 27, 28, 29, 32, 35 and 41. The court will be flexible in its applications of the new rules during the first months under the amended Fed.R.App.P. The First Circuit has not yet amended its Local Rules in light of the revisions to the Federal Rules of Appellate Procedure. Certain Local Rules may be overruled by the new Federal Rules; in other cases, specifically Loc. R. 31.1, the Local Rule contains requirements independent of the provisions of the Federal Rules. This pamphlet contains the amended Federal Rules of Appellate Procedure and the current First Circuit Local Rules, with a brief comment following specific Local Rules whose provisions may be changed by the recent amendments. Phoebe Morse, Clerk Boston, Massachusetts Table of Contents Forward. . . . . . . . . . . . . . . . . . . . . . . . . . . . .i Table of Contents. . . . . . . . . . . . . . . . . . . . . . . ii Judges of the Court. . . . . . . . . . . . . . . . . . . . . . .v Officers of the Court. . . . . . . . . . . . . . . . . . . . . .v Advisory Committee on Rules. . . . . . . . . . . . . . . . . . .v Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . vi Schedule of Fees . . . . . . . . . . . . . . . . . . . . . . .vii Major Case Processing Events . . . . . . . . . . . . . . . . viii Notice to Litigants. . . . . . . . . . . . . . . . . . . . . . .x Federal Rules of Appellate Procedure and Local Rules of the First Circuit1 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 Rule 3.1. Appeal from a Judgment Entered by a Magistrate Judge in a Civil Case [Abrogated] . . . . . . . . . . . . . . . . . . . .3 Local Rule 3. Docket Fees . . . . . . . . . . . . . . . . .3 Rule 4. Appeal as of Right When Taken. . . . . . . . . . . .3 Rule 5. Appeal by Permission Under 28 U.S.C.  1292(b) . . . .7 Rule 5.1. Appeal by Permission Under 28 U.S.C.  636(c)(5) . .9 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 . . . . . . . . . . . . . 13 Local Rule 9. Recalcitrant Witnesses. . . . . . . . . . . 13 Rule 10. The Record on Appeal. . . . . . . . . . . . . . . . 14 Local Rule 10. Ordering Transcripts . . . . . . . . . . . 16 Rule 11. Forwarding the Record . . . . . . . . . . . . . . . 16 Local Rule 11. Record on Appeal . . . . . . . . . . . . . 18 Rule 12. Docketing the Appeal; Filing a Representation Statement; Filing the Record18 Local Rule 12. Calendaring. . . . . . . . . . . . . . . . 18 Title III. Review of a Decision of the United States Tax Court 18 Rule 13. Review of a Decision of the Tax Court . . . . . . . 19 Rule 14. Applicability of Other Rules to Review of Decisions of the Tax Court19 Title IV. Review and Enforcement of Orders of Administrative Agencies, Boards, Commissions and Officers . . . . . . . . . . . . . . . . . . . . . . . . . 20 Rule 15. Review or Enforcement of an Agency Order How Obtained; Intervention20 Rule 15.1. Briefs and Oral Argument in National Labor Relations Board Proceedings21 Rule 16. The Record on Review or Enforcement . . . . . . . . 21 Rule 17. Filing the Record . . . . . . . . . . . . . . . . . 22 Rule 18. Stay Pending Review . . . . . . . . . . . . . . . . 22 Rule 19. Settlement of a Judgment Enforcing an Agency Order in Part23 Rule 20. Applicability of Other Rules to Review or Enforcement of an Agency Order23 Title V. Extraordinary Writs . . . . . . . . . . . . . . . . . 23 Rule 21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs23 Local Rule 21. Petitions for Special Writs. . . . . . . . 25 Title VI. Habeas Corpus; Proceedings In Forma Pauperis . . . . 25 Rule 22. Habeas Corpus and Section 2255 Proceedings. . . . . 25 Local Rule 22. Habeas Corpus. . . . . . . . . . . . . . . 26 Interim Local Rule 22.1. Certificate of Appealability . . 26 Interim Local Rule 22.2. Motion to File a Second or Successive Petition Under 28 U.S.C.  2254 or  2255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Rule 23. Custody or Release of a Prisoner in a Habeas Corpus Proceeding27 Rule 24. Proceeding in Forma Pauperis. . . . . . . . . . . . 28 Title VII. General Provisions. . . . . . . . . . . . . . . . . 29 Rule 25. Filing and Service. . . . . . . . . . . . . . . . . 29 Local Rule 25.1. Facsimile Filing . . . . . . . . . . . . 31 Rule 26. Computing and Extending Time . . . . . . . . . . . 31 Rule 26.1. Corporate Disclosure Statement. . . . . . . . . . 32 Rule 27. Motions . . . . . . . . . . . . . . . . . . . . . . 33 Local Rule 27. Motions. . . . . . . . . . . . . . . . . . 35 Local Rule 27.1. Summary Disposition. . . . . . . . . . . 35 Rule 28. Briefs. . . . . . . . . . . . . . . . . . . . . . . 35 Local Rule 28.1. Citations. . . . . . . . . . . . . . . . 38 Local Rule 28.2. Addendum to Briefs . . . . . . . . . . . 38 Rule 29. Brief of an Amicus Curiae . . . . . . . . . . . . . 38 Rule 30. Appendix to the Briefs. . . . . . . . . . . . . . . 39 Local Rule 30.1. Content. . . . . . . . . . . . . . . . . 42 Local Rule 30.2. Number . . . . . . . . . . . . . . . . . 42 Local Rule 30.3. Filing of Designations, etc. . . . . . . 42 Local Rule 30.4. Reproduction . . . . . . . . . . . . . . 42 Local Rule 30.5. Original Copies. . . . . . . . . . . . . 42 Local Rule 30.6. In Forma Pauperis. . . . . . . . . . . . 42 Local Rule 30.7. Translations . . . . . . . . . . . . . . 43 Local Rule 30.8. Sanctions. . . . . . . . . . . . . . . . 43 Rule 31. Serving and Filing Briefs . . . . . . . . . . . . . 43 Local Rule 31. Time . . . . . . . . . . . . . . . . . . . 44 Local Rule 31.1. Computer Generated Briefs. . . . . . . . 44 Rule 32. Form of Briefs, Appendices and Other Papers . . . . 45 Rule 33. Appeal Conferences. . . . . . . . . . . . . . . . . 47 Rule 34. Oral Argument . . . . . . . . . . . . . . . . . . . 47 Local Rule 34.1. Oral Argument. . . . . . . . . . . . . . 48 Local Rule 34.2. Terms and Sittings . . . . . . . . . . . 49 Rule 35. En Banc Determination . . . . . . . . . . . . . . . 50 Local Rule 35.1. Petitions for En Banc Consideration. . . 51 Local Rule 35.2. Sanctions. . . . . . . . . . . . . . . . 51 Local Rule 35.3. Composition of En Banc Court . . . . . . 51 Rule 36. Entry of Judgment; Notice . . . . . . . . . . . . . 51 Local Rule 36.1. Opinions . . . . . . . . . . . . . . . . 52 Local Rule 36.2. Publication of Opinions. . . . . . . . . 52 Rule 37. Interest on Judgment. . . . . . . . . . . . . . . . 53 Rule 38. Frivolous Appeals Damages and Costs . . . . . . . 53 Rule 39. Costs . . . . . . . . . . . . . . . . . . . . . . . 54 Local Rule 39.1. Fee Application under the Equal Access to Justice Act55 Local Rule 39.2. Fee Applications other than under 28 U.S.C.  241255 Rule 40. Petition for Panel Rehearing. . . . . . . . . . . . 55 Rule 41. Mandate: Contents; Issuance and Effective Date; Stay 56 Local Rule 41. Stay of Mandate. . . . . . . . . . . . . . 57 Rule 42. Voluntary Dismissal . . . . . . . . . . . . . . . . 57 Rule 43. Substitution of Parties . . . . . . . . . . . . . . 57 Rule 44. Cases Involving Constitutional Questions Where United States Is Not a Party58 Rule 45. Clerks's Duties . . . . . . . . . . . . . . . . . . 59 Local Rule 45. Defaults . . . . . . . . . . . . . . . . . 60 Local Rule 45.1. The Clerk. . . . . . . . . . . . . . . . 60 Local Rule 45.2. Library. . . . . . . . . . . . . . . . . 60 Rule 46. Attorneys . . . . . . . . . . . . . . . . . . . . . 60 Local Rule 46. Staff Attorneys and Law Clerks . . . . . . 61 Local Rule 46.1. Attorneys. . . . . . . . . . . . . . . . 62 Local Rule 46.2. Disciplinary Enforcement . . . . . . . . 62 Local Rule 46.3. Standing Rule Governing Appearance and Argument by Eligible Law Students62 Local Rule 46.4. Withdrawal of Appearance . . . . . . . . 64 Local Rule 46.4(a). Procedure for Withdrawal in Criminal Cases64 Local Rule 46.5. Appointment of Counsel . . . . . . . . . 65 Local Rule 46.6. Temporary Suspension of Attorneys. . . . 67 Rule 47. Local Rules by Courts of Appeals. . . . . . . . . . 67 Local Rule 47.1. Judicial Conference of the First Circuit 68 Local Rule 47.2. Advisory Committee . . . . . . . . . . . 68 Local Rule 47.3. Comments from Members of the Bar . . . . 69 Local Rule 47.4. Rule Day . . . . . . . . . . . . . . . . 69 Local Rule 47.5. Civil Appeals Management Plan. . . . . . 69 Rule 48. Masters . . . . . . . . . . . . . . . . . . . . . . 71 Appendix of Forms. . . . . . . . . . . . . . . . . . . . . . . 72 Form 1. Notice of Appeal to a Court of Appeals From a Judgment or Order of a District Court72 Form 2. Notice of Appeal to a Court of Appeals From a Decision of the United States Tax Court73 Form 3. Petition for Review of Order of an Agency, Board, Commission or Officer74 Form 4. Affidavit to Accompany Motion for Leave to Appeal in Forma Pauperis75 Form 5. Notice of Appeal to a Court of Appeals from a Judgment or Order of a District Court or Bankruptcy Appellate Panel. . . . . . . . . . . . . . . . . . . . . . . . 80 First Circuit Appearance Form. . . . . . . . . . . . . . . . 81 Appendix A. Selected Sections from Title 28 of the United States Code82  2253. Appeal . . . . . . . . . . . . . . . . . . . . . . . 82  2254. State custody; remedies in Federal courts. . . . . . 82  2255. Federal custody; remedies on motion attacking sentence84 Appendix B: Order of the Court Regarding Section 2254, 2255 Petitions85 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. Bailey Aldrich, Senior 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 Samuel Cespedes Herman Cestero Emily Rice Gray Michael B. Keating Joan Lukey Richard W. MacAdams John W. McCarthy John O'Leary Mark Spiegel Amendments December 1, 1998 This edition of the rules supersedes the February 1998 publication. Since then, the following rule has been adopted. Proposed rules are not included in this rulebook; they are available in the Clerk's Office. Local Rule 46.1. Attorneys: adopted. (June 10, 1998) Schedule of Fees Effective April 1, 1996 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, $15. (3) For certifying any document or paper, whether the certification is made directly on the document, or by separate instrument, $5. (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 magnetic tape recordings, either cassette or reel-to-reel, $15 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 Rule 30(f), F.R.A.P., a flat fee of $25. (7) For each microfiche or microfilm copy of any court record, where available, $3. (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, $25. (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 [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 Automation Fund. This fee shall apply to the United States. Major Case Processing Events Key: USDC: U.S. District Court for the district from which the appeal originates USCA: U.S. Court of Appeals for the First Circuit USTC: United States Tax Court USC: United States Code IFP: In Forma Pauperis FRAP: Federal Rules of Appellate Procedure LR: Local Rules for the U.S. Court of Appeals for the First Circuit IOP: Internal Operating Procedures for the U.S. Court of Appeals for the First Circuit NoA: Notice of Appeal RoA: Record on Appeal WHAT WHO WHERE / WHEN REFERENCE Notice of Appeal Appellant Civil cases: filed in USDC within 30 days after entry of order or judgment; 60 days if US is a party. Criminal cases: filed in USDC within 10 days after entry of order or judgment; 30 days if US is the appellant. Tax cases: filed in USTC within 90 days after decision entered. FRAP 3, 4, 13 Forms 1, 2, 5 Petition for Review Petitioner Filed in USCA within time provided by statute. FRAP 15 Form 3 Filing and Docketing Fees Appellant / Petitioner Appeals from USDC or USTC: $105 ($5 filing fee + $100 docketing fee) paid to Clerk, USDC or USTC, due within 40 days of filing NOA, unless appellant is IFP or US. Agency, writ of mandamus, original proceedings: $100 docket fee paid to Clerk, USCA, due when filed. FRAP 3 LR 3 IOP III(A) 28 USC  1913 CAMP Statement Appellant Form A (CAMP statement) will be provided by USCA. Filed in USCA within 10 days of issuance. LR 47.5 Transcript Order Appellant Form CA-1-10 available at USDC. Transcript must be ordered using this form and copies must be filed in USDC within 10 days after filing NoA. FRAP 10(b) LR 10 IOP III(B) Transcript Court Re porter Filed in USDC within 30 days after the order. FRAP 11(b) IOP III(C) Record on Appeal Clerk, USDC Filed in USCA. FRAP 10-12 LR 10-12 Appellant's Brief Appellant Filed in USCA within 35 days (40 for Puerto Rico) of filing of RoA. Cover: Blue. Length limit: proportionally spaced typeface - 14,000 words; monospaced typeface - 14,000 words or 1,300 lines. Non-IFP: Copies: Original + 9 + disk. IFP: Copies: Original + 3. FRAP 31, 32 LR 31, 31.1 IOP V Addendum Appellant Bound to appellant's brief. Page limit: 20. LR 28.2 Appendix Appellant Filed in USCA with appellant's brief. Excused if IFP. Cover: White. Copies: original + 4. FRAP 30 LR 30.2-.8 Appellee's Brief Appellee Filed in USCA within 30 days of service of appellant's brief. Cover: Red. Length limit: proportionally spaced typeface - 14,000 words; monospaced typeface - 14,000 words or 1,300 lines. . Non-IFP: Copies: Original + 9 + disk. IFP: Copies: Original + 3. FRAP 31, 32 LR 31, 31.1 IOP V Appellant's Reply Brief Appellant Filed in USCA within 10 days of filing appellee's brief. Cover: Gray. Length limit: proportionally spaced typeface - 7,000 words; monospaced typeface -7,000 words or 650 lines. Non-IFP: Copies: Original + 9 + disk. IFP: Copies: Original + 3. FRAP 31, 32 LR 31, 31.1 IOP V Amicus Curi‘ Brief Amicus curi‘ Filed in USCA, must accompany motion for leave to file unless all parties consent to filing. Cover: Green. Length limit: proportionally spaced typeface - 7,000 words; monospaced typeface -7,000 words or 650 lines. Copies: Original + 9 + disk. FRAP 29, 31 FRAP 32 LR 31, 31.1 IOP V Statement of Issues and Designation of Contents of Appendix Appellant / Appellee Filed in USCA within 10 days from date of filing RoA or, in agency cases, certified list or transcript. Designation of Contents of Appendix is excused if IFP. FRAP 10(b)(3) FRAP 25, 30 LR 11 Oral Argu ment Calendar is announced at least one week before argument starts. Names of Judges may be disclosed 7 days before the session. Counsel should be present at the opening of Court. Arguments are usually limited to 15 min. per side. FRAP 34 LR 12, 34.1 IOP VIII Bill of Costs Prevailing party Filed in USCA within 14 days after entry of judgment. Applications for fees are due within 30 days of judgment. FRAP 39 LR 39.1, 39.2 Petition for Rehearing Petitioner Filed in USCA within 14 days (45 days if civil case in which US or agency is a party) after entry of judgment. Same color / copies as principal brief. Page limit: 15. FRAP 40 IOP X Mandate Clerk, USCA Issued 7 days after either: expiration of time for filing a petition for rehearing, or, after entry of any order denying a petition for panel rehearing, rehearing en banc, or motion for stay of mandate, whichever is later. FRAP 41 LR 41 Petition for Writ of Cer tiorari Petitioner Filed with Clerk, U.S. Supreme Court, according to statute and the rules of the Supreme Court. 28 USC  2101 Notice to Litigants To assist litigants in preparing documents in conformity with the filing requirements specified by 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. Form of Briefs To ensure that clear and readable briefs are filed with the Court, the parties should carefully comply with the margin and print size requirements of Fed.R.App.P. 32. The Court will not tolerate attempts to circumvent the length limitations through, e.g., the use of narrow margins, undersize or condensed print, or excessive reliance on footnotes. One copy of the brief must be submitted on a computer readable disk. 2. Contents of Briefs The parties and counsel should provide a statement of the issues; state the appellate standard of review for each issue; and observe the other requirements of Fed.R.App.P. 28. 3. References in Briefs to the Record 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. Requests for transcripts from the court/agency reporter must be made immediately. 4. Addendum to Brief To assist the Court in understanding the nature of the issues on appeal, the appellant's brief must include an addendum containing, among other things, a copy of the judgment, ruling or order being appealed, and any accompanying memoranda or statement of reason. 5. Appendix to the Briefs To help the Court understand the facts of the case, the appellant is responsible for preparing an appendix in accordance with Fed.R.App.P. 30(d) and Loc.R. 30.4, with each page clearly numbered. Documents may be reproduced by any process that yields a legible clear black image on light paper. The parties should not include any extraneous materials (such as notation or underlining) in any document included in the appendix. 6. Motions to Enlarge Filing Dates or Length of Briefs Motions for extensions of 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. 7. Certificate of Service The Court will not consider any motion, brief, or document that has not been served on all parties to the case. 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 (e.g., first class mail, personal service, overnight mail); the names and addresses of the persons served; and the certification or signature of the person who made service. In lieu of such a certification, papers presented for filing must include an acknowledgment of service required by Fed.R.App.P. 25(d). 8. Corporate Disclosure Statement Counsel representing corporations in proceedings before this Court must include a corporate disclosure statement meeting the requirement set forth 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. 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. (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: (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. Docket Fees. If appellant does not pay the docket fee within 40 days of the filing of the notice of appeal, or such further time as the court may order, the appeal may be dismissed. 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 memoran dum, 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. (1) 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 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. 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. 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 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 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 10 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 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. Ordering Transcripts. FRAP 10(b) requires that the transcript be ordered within 10 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. Parties who do not do so, and who thereafter seek extensions of time from this court, will have the burden of showing why they did not comply with this request and the party and or counsel will ordinarily be subject to a monetary penalty in an amount to be set by the court for not timely ordering a transcript in writing from the court reporter. 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 FRAP 30(b)). However, if an agreed statement of the evidence is contemplated, counsel are reminded of FRAP 10(c) requiring submission to the district court for approval. The clerk of the court of appeals is prepared to offer assistance in this regard, and to hold informal hearings attended by both sides looking to such a stipulation. The ten-day ordering rule will not be suspended because of such activity; however, except by order of the court for good cause shown. 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.] (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 supersedeas bond; 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. Record on Appeal. In addition to an appellant's duties under FRAP 11(a), it is appellant's responsibility to see that the record, as certified, is complete. 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 10 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. Calendering. At the time of filing of the record the clerk will tentatively assign the case to a specific month for hearing. Approximately three weeks prior to hearing, the clerk will contact counsel concerning assignment of the case to a specific day, and the name of the person who will present the oral argument. One week before the monthly sitting commences the clerk will prepare and distribute an order assigning the cases for that session to a day certain for hearing. The court reserves the privilege of reducing the allotted time for argument when the case is presented. TITLE III. REVIEW OF A DECISION OF THE UNITED STATES TAX COURT Rule 13. Review of a Decision of the Tax Court (a) How Obtained; Time for Filing Notice of Appeal. (1) Review of a decision of 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. (2) 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. (b) 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 mail addressed 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. (c) 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. (d) The Record on Appeal; Forwarding; Filing. (1) An appeal from the Tax Court 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. References in those rules and in Rule 3 to the district court and district clerk are to be read as referring to the Tax Court and its clerk. (2) If an appeal from a Tax Court decision 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. Rule 14. Applicability of Other Rules to the Review of a Tax Court Decision All provisions of these rules, except Rules 4-9, 15-20, and 22-23, apply to the review of a Tax Court decision. TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINIS TRATIVE 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. (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 20 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 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. (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; (i) 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. 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 7 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. EXTRAORDINARY WRITS Rule 21. 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 a petition with the circuit clerk with proof of service 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: (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. Otherwise, it must order the respondent, if any, to answer within a fixed time. (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 with proof of service 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. All papers must conform to Rule 32(a)(1). 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. Local Rule 21. 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. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS Rule 22. 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 judge who rendered the judgment must either issue a certificate of appealability or state why a certificate should not issue. The district clerk must send the certificate or statement to the court of appeals 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 the certificate. (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. Local Rule 22. Habeas Corpus (see Appendix B: Order of the Court Regarding Section 2254, 2255 Petitions in the First Circuit) FRAP 22(b) is supplemented as follows. In this circuit neither the court nor a judge thereof will initially receive or act on a request for a certificate of probable cause if the district judge who refused the writ is available. The request to the district judge should be made as promptly as possible. If the district judge denies the certificate, and a notice of appeal has been filed, this court will review the district court judge's decision. However, it may decline to make such review unless a memorandum has been filed by the petitioner, either in the district court, or in this court, giving specific reasons and not mere generalizations why such relief should be granted. Ten days after the district court file has been received in this court, the clerk will present the record to the court, with or without a separate request for a certificate of probable cause addressed to that court. If no sufficient memorandum has been filed by that time, the court may deny the certificate without further consideration. The effect of such denial is to terminate the appeal. Interim Local Rule 22.1. Certificate of Appealability. (see Appendix B: Order of the Court Regarding Section 2254, 2255 Petitions in the First Circuit) Fed.R.App.P. 22(b) is supplemented as follows: (a) The procedure set forth in Fed.R.App.P. 22(b) shall apply to requests for certificates of appealability in actions under 28 U.S.C.  2254 and 28 U.S.C.  2255. (b) In this circuit, ordinarily neither the court nor a judge thereof will initially receive or act on a request for a certificate of appealability if the district judge who refused the writ is unavailable unless an application has first been made to the district court judge. A petitioner wishing to appeal from the denial of a  2254 or  2255 petition must timely file a notice of appeal and should promptly apply to the district court for a certificate of appealability. If the district court grants a certificate of appealability, it must state which issue or issues satisfy the standard set forth in 28 U.S.C.  2253(c)(2). If the district court denies a certificate of appealability, it shall state the reasons why the certificate should not issue. (c) Once the district court grants or denies a certificate of appealability, the petitioner should promptly apply 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. Ten days after the district court file has been received in this court, the clerk will present the record to the court, with or without a separate motion for a certificate of appealability addressed to that court. If no sufficient memorandum has been filed by that time, the certificate may be denied without further consideration. The effect of a denial is to terminate the appeal. Interim Local Rule 22.2. Motion to File a Second or Successive Petition Under 28 U.S.C.  2254 or 2255 (see Appendix B: Order of the Court Regarding Section 2254, 2255 Petitions in the First Circuit) (a) 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 memorandum clearly stating the new claim(s) presented and addressing how  2244(b)'s or  2255's standard is satisfied, and (2) copies of all relevant portions of earlier court proceedings. While the content of (2) may vary from case to case and depend in part on the type of new claims raised, the motion 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) If the court of appeals determines that the motion and accompanying materials are not sufficiently complete to assess the motion, the court of appeals may deny the motion with or without prejudice to refiling or may in its discretion treat the motion lodged, the filing being deemed complete when the deficiency is remedied. (c) 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 General for the federal judicial district in which movant was convicted ( 2255 cases) and shall comply with Fed.R.App.P. 25. (d) 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. 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: (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; (B) claims an entitlement to redress; and (C) 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. 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 district-court 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 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. In that event, the district court must state in writing its reasons for the certification or finding. (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 or Review of an Administrative-Agency Proceeding. When an appeal or review of a proceeding before an administrative agency, board, commission, or officer (including for the purpose of this rule the United States Tax Court) proceeds directly in a court of appeals, 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). (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. GENERAL PROVISIONS Rule 25. 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) In general. 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. (B) A brief or appendix. A brief or appendix is timely filed, however, if on or before the last day for filing, it is: (i) mailed to the clerk by First-Class Mail, or other class of mail that is at least as expeditious, postage prepaid; or (ii) dispatched to a third-party commercial carrier for delivery to the clerk within 3 calendar days. (C) Inmate filing. A paper filed by an inmate confined in an institution is timely if deposited in the institution's internal mailing 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. (D) Electronic filing. A court of appeals may by local rule permit papers to be filed, signed, or verified by electronic means that are consistent with technical standards, if any, that the Judicial Conference of the United States establishes. A paper filed by electronic means in compliance with a local rule constitutes a written paper for the purpose of applying 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 motion 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. (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. Service may be personal, by mail, or by third-party commercial carrier for delivery within 3 calendar days. 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. Personal service includes delivery of the copy to a responsible person at the office of counsel. Service by mail or by commercial carrier is complete on mailing or delivery to the carrier. (d) Proof of Service. (1) A paper presented for filing must contain either of the following: (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 mailing addresses or the addresses of the places of delivery. (2) When a brief or appendix is filed by mailing or dispatch in accordance with Rule 25(a)(2)(B), 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 25.1 Facsimile Filing The Clerk of Court is authorized to accept for filing papers transmitted by facsimile equipment in situations determined by the Clerk to be of an emergency nature or other compelling circumstances, subject to such procedures for follow-up filing of hard copies, or otherwise, as the Clerk may from time to time specify. Rule 26. Computing and Extending Time (a) Computing Time. The following rules apply in computing any period of time specified in these rules or in any local rule, court order, or applicable statute: (1) Exclude the day of the act, event, or default that begins the period. (2) Exclude intermediate Saturdays, Sundays, and legal holidays when the period is less than 7 days, unless stated in calendar days. (3) Include the last day of the period unless it is a Saturday, Sunday, legal holiday, or if the act to be done is filing a paper in court a day on which the weather or other conditions make the clerk's office inaccessible. (4) As used in this rule, "legal holiday" means New Year's Day, Martin Luther King, Jr.'s Birthday, Presidents' Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, Christmas Day, and any other day declared a holiday by the President, Congress, or the state in which is located either the district court that rendered the challenged judgment or order, or the circuit clerk's principal office. (b) Extending Time. For good cause, the court may extend the time prescribed by these rules or by its order to perform any act, or may permit an act to be done after that time expires. But the court may not extend the time to file: (1) a notice of appeal (except as authorized in Rule 4) or a petition for permission to appeal; or (2) a notice of appeal from or a petition to enjoin, set aside, suspend, modify, enforce, or otherwise review an order of an administrative agency, board, commission, or officer of the United States, unless specifically authorized by law. (c) Additional Time after Service. When a party is required or permitted to act within a prescribed period after a paper is served on that party, 3 calendar days are added to the prescribed period unless the paper is delivered on the date of service stated in the proof of service. Rule 26.1. Corporate Disclosure Statement (a) Who Must File. Any nongovernmental corporate party to a proceeding in a court of appeals must file a statement identifying all its parent corporations and listing any publicly held company that owns 10% or more of the party's stock. (b) Time for Filing. A party must file the statement with the principal brief or upon filing a motion, response, petition, or answer in the court of appeals, whichever occurs first, unless a local rule requires earlier filing. Even if the statement has already been filed, the party's principal brief must include the statement before the table of contents. (c) Number of Copies. If the statement is filed before the principal brief, the party must file an original and 3 copies unless the court requires a different number by local rule or by order in a particular case. Rule 27. Motions (a) In General. (1) Application for Relief. An application for an order or other relief is made by motion unless these rules prescribe another form. A motion must be in writing unless the court permits otherwise. (2) Contents of a Motion. (A) Grounds and relief sought. A motion must state with particularity the grounds for the motion, the relief sought, and the legal argument necessary to support it. (B) Accompanying documents. (i) Any affidavit or other paper necessary to support a motion must be served and filed with the motion. (ii) An affidavit must contain only factual information, not legal argument. (iii) A motion seeking substantive relief must include a copy of the trial court's opinion or agency's decision as a separate exhibit. (C) Documents barred or not required. (i) A separate brief supporting or responding to a motion must not be filed. (ii) A notice of motion is not required. (iii) A proposed order is not required. (3) Response. (A) Time to file. Any party may file a response to a motion; Rule 27(a)(2) governs its contents. The response must be filed within 10 days after service of the motion unless the court shortens or extends the time. A motion authorized by Rules 8, 9, 18, or 41 may be granted before the 10-day period runs only if the court gives reasonable notice to the parties that it intends to act sooner. (B) Request for affirmative relief. A response may include a motion for affirmative relief. The time to respond to the new motion, and to reply to that response, are governed by Rule 27(a)(3)(A) and (a)(4). The title of the response must alert the court to the request for relief. (4) Reply to Response. Any reply to a response must be filed within 7 days after service of the response. A reply must not present matters that do not relate to the response. (b) Disposition of a Motion for a Procedural Order. The court may act on a motion for a procedural order including a motion under Rule 26(b) at any time without awaiting a response, and may, by rule or by order in a particular case, authorize its clerk to act on specified types of procedural motions. A party adversely affected by the court's, or the clerk's, action may file a motion to reconsider, vacate, or modify that action. Timely opposition filed after the motion is granted in whole or in part does not constitute a request to reconsider, vacate, or modify the disposition; a motion requesting that relief must be filed. (c) Power of a Single Judge to Entertain a Motion. A circuit judge may act alone on any motion, but may not dismiss or otherwise determine an appeal or other proceeding. A court of appeals may provide by rule or by order in a particular case that only the court may act on any motion or class of motions. The court may review the action of a single judge. (d) Form of Papers; Page Limits; and Number of Copies. (1) Format. (A) Reproduction. A motion, response, or reply may be reproduced by any process that yields a clear black image on light paper. The paper must be opaque and unglazed. Only one side of the paper may be used. (B) Cover. A cover is not required but there must be a caption that includes the case number, the name of the court, the title of the case, and a brief descriptive title indicating the purpose of the motion and identifying the party or parties for whom it is filed. (C) Binding. The document must be bound in any manner that is secure, does not obscure the text, and permits the document to lie reasonably flat when open. (D) Paper size, line spacing, and margins. The document must be on 8« by 11 inch paper. The text must be double-spaced, but quotations more than two lines long may be indented and single-spaced. Headings and footnotes may be single-spaced. Margins must be at least one inch on all four sides. Page numbers may be placed in the margins, but no text may appear there. (2) Page Limits. A motion or a response to a motion must not exceed 20 pages, exclusive of the corporate disclosure statement and accompanying documents authorized by Rule 27(a)(2)(B), unless the court permits or directs otherwise. A reply to a response must not exceed 10 pages. (3) Number of Copies. 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. (e) Oral Argument. A motion will be decided without oral argument unless the court orders otherwise. Local Rule 27. Motions All motions will be decided without oral argument unless the court orders otherwise. Motions will not necessarily be allowed even though assented to. Motions for stay, or other emergency relief, may be denied for failure to present promptly. This rule should be read in conjunction with FRAP Rule 27 and Local Rule 30.4, herein, as to clarity of reproduction, also applies. Local Rule 27.1. Summary Disposition At any time, on such notice as the court may order, on motion of appellee or sua sponte, the court may dismiss the appeal or other request for relief or affirm and enforce the judgment or order below if the court lacks jurisdiction, or if it shall clearly appear that no substantial question is presented. In case of obvious error the court may, similarly, reverse. Motions for such relief should be promptly filed when the occasion appears, and must be accompanied by four copies of a memorandum or brief. Rule 28. Briefs (a) Appellant's Brief. The appellant's brief must contain, under appropriate headings and in the order indicated: (1) a corporate disclosure statement if required by Rule 26.1; (2) a table of contents, with page references; (3) a table of authorities cases (alphabetically arranged), statutes, and other authorities with references to the pages of the brief where they are cited; (4) a jurisdictional statement, including: (A) the basis for the district court's or agency's subject-matter jurisdiction, with citations to applicable statutory provisions and stating relevant facts establishing jurisdiction; (B) the basis for the court of appeals' jurisdiction, with citations to applicable statutory provisions and stating relevant facts establishing jurisdiction; (C) the filing dates establishing the timeliness of the appeal or petition for review; and (D) an assertion that the appeal is from a final order or judgment that disposes of all parties' claims, or information establishing the court of appeals' jurisdiction on some other basis; (5) a statement of the issues presented for review; (6) a statement of the case briefly indicating the nature of the case, the course of proceedings, and the disposition below; (7) a statement of facts relevant to the issues submitted for review with appropriate references to the record (see Rule 28(e)); (8) a summary of the argument, which must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, and which must not merely repeat the argument headings; (9) the argument, which must contain: (A) appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies; and (B) for each issue, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues); (10) a short conclusion stating the precise relief sought; and (11) the certificate of compliance, if required by Rule 32(a)(7). (b) Appellee's Brief. The appellee's brief must conform to the requirements of Rule 28(a)(1)-(9) and (11), except that none of the following need appear unless the appellee is dissatisfied with the appellant's statement: (1) the jurisdictional statement; (2) the statement of the issues; (3) the statement of the case; (4) the statement of the facts; and (5) the statement of the standard of review. (c) Reply Brief. The appellant may file a brief in reply to the appellee's brief. An appellee who has cross-appealed may file a brief in reply to the appellant's response to the issues presented by the cross-appeal. Unless the court permits, no further briefs may be filed. A reply brief must contain a table of contents, with page references, and a table of authorities cases (alphabetically arranged), statutes, and other authorities with references to the pages of the reply brief where they are cited. (d) References to Parties. In briefs and at oral argument, counsel should minimize use of the terms "appellant" and "appellee." To make briefs clear, counsel should use the parties' actual names or the designations used in the lower court or agency proceeding, or such descriptive terms as "the employee," "the injured person," "the taxpayer," "the ship," "the stevedore." (e) References to the Record. References to the parts of the record contained in the appendix filed with the appellant's brief must be to the pages of the appendix. If the appendix is prepared after the briefs are filed, a party referring to the record must follow one of the methods detailed in Rule 30(c). If the original record is used under Rule 30(f) and is not consecutively paginated, or if the brief refers to an unreproduced part of the record, any reference must be to the page of the original document. For example: Answer p. 7; Motion for Judgment p. 2; Transcript p. 231. Only clear abbreviations may be used. A party referring to evidence whose admissibility is in controversy must cite 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 the court's determination of the issues presented requires the study of statutes, rules, regulations, etc., the relevant parts must be set out in the brief or in an addendum at the end, or may be supplied to the court in pamphlet form. (g) [Reserved] (h) Briefs in a Case Involving a Cross-Appeal. If a cross-appeal is filed, the party who files a notice of appeal first is the appellant for the purposes of this rule and Rules 30, 31, and 34. If notices are filed on the same day, the plaintiff in the proceeding below is the appellant. These designations may be modified by agreement of the parties or by court order. With respect to appellee's cross- appeal and response to appellant's brief, appellee's brief must conform to the requirements of Rule 28(a)(1)-(11). But an appellee who is satisfied with appellant's statement need not include a statement of the case or of the facts. (i) Briefs in a Case Involving Multiple Appellants or Appellees. In a case involving more than one appellant or appellee, including consolidated cases, any number of appellants or appellees may join in a brief, and any party may adopt by reference a part of another's brief. Parties may also join in reply briefs. (j) Citation of Supplemental Authorities. If pertinent and significant authorities come to a party's attention after the party's brief has been filed or after oral argument but before decision a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state without argument the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. Any response must be made promptly and must be similarly limited. Local Rule 28.1. Citations All citations to State or Commonwealth Courts shall include both the official state court citation and the National Reporter System citation when such decisions have been published in both reports; e.g., Coney v. Commonwealth, 364 Mass. 137, 301 N.E.2d 450 (1973). Law review or other articles unpublished at the time a brief or memorandum is filed may not be cited therein, except with permission of the court. Local Rule 28.2. Addendum to Briefs In addition to the requirements of FRAP 28, for the court's convenience, the brief of the appellant shall include an addendum containing the following items: (a) The judgement, ruling or order appealed from and any supporting opinion, memorandum, or statement of reason; (b) The portions of any instructions to the jury which are the subject of appeal; (c) Pertinent portions of any document in the record that is the subject of an issue on appeal; and (d) Other items or short excepts from the record, if any, considered necessary for understanding the specific issues on appeal. The addendum shall be limited to 20 pages ( exclusive of the judgement, order or opinion appealed from) and shall be bound at the rear of the appellant's brief. The appellee's brief may include such an addendum to incorporate materials omitted from the appellant's addendum, subject to the same limitations on length and content. Material included in the addendum need not be reproduced in the appendix also. Rule 29. Brief of an Amicus Curiae (a) When Permitted. The United States or its officer or agency, or a State, Territory, Common wealth, or the District of Columbia may file an amicus-curiae brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court or if the brief states that all parties have consented to its filing. (b) Motion for Leave to File. The motion must be accompanied by the proposed brief and state: (1) the movant's interest; and (2) the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case. (c) Contents and Form. An amicus brief must comply with Rule 32. In addition to the requirements of Rule 32, the cover must identify the party or parties supported and indicate whether the brief supports affirmance or reversal. If an amicus curiae is a corporation, the brief must include a disclosure statement like that required of parties by Rule 26.1. An amicus brief need not comply with Rule 28, but must include the following: (1) a table of contents, with page references; (2) a table of authorities cases (alphabetically arranged), statutes and other authorities with references to the pages of the brief where they are cited; (3) a concise statement of the identity of the amicus curiae, its interest in the case, and the source of its authority to file; (4) an argument, which may be preceded by a summary and which need not include a statement of the applicable standard of review; and (5) a certificate of compliance, if required by Rule 32(a)(7). (d) Length. Except by the court's permission, an amicus brief may be no more than one-half the maximum length authorized by these rules for a party's principal brief. If the court grants a party permission to file a longer brief, that extension does not affect the length of an amicus brief. (e) Time for Filing. An amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed. An amicus curiae that does not support either party must file its brief no later than 7 days after the appellant's or petitioner's principal brief is filed. A court may grant leave for later filing, specifying the time within which an opposing party may answer. (f) Reply Brief. Except by the court's permission, an amicus curiae may not file a reply brief. (g) Oral Argument. An amicus curiae may participate in oral argument only with the court's permission. Rule 30. Appendix to the Briefs (a) Appellant's Responsibility. (1) Contents of the Appendix. The appellant must prepare and file an appendix to the briefs containing: (A) the relevant docket entries in the proceeding below; (B) the relevant portions of the pleadings, charge, findings, or opinion; (C) the judgment, order, or decision in question; and (D) other parts of the record to which the parties wish to direct the court's attention. (2) Excluded Material. Memoranda of law in the district court should not be included in the appendix unless they have independent relevance. Parts of the record may be relied on by the court or the parties even though not included in the appendix. (3) Time to File; Number of Copies. Unless filing is deferred under Rule 30(c), the appellant must file 10 copies of the appendix with the brief and must serve one copy on counsel for each party separately represented. An unrepresented party proceeding in forma pauperis must file 4 legible copies with the clerk, and one copy must be served on counsel for each separately represented party. The court may by local rule or by order in a particular case require the filing or service of a different number. (b) All Parties' Responsibilities. (1) Determining the Contents of the Appendix. The parties are encouraged to agree on the contents of the appendix. In the absence of an agreement, the appellant must, within 10 days after the record is filed, serve on the appellee a designation of the parts of the record the appellant intends to include in the appendix and a statement of the issues the appellant intends to present for review. The appellee may, within 10 days after receiving the designation, serve on the appellant a designation of additional parts to which it wishes to direct the court's attention. The appellant must include the designated parts in the appendix. The parties must not engage in unnecessary designation of parts of the record, because the entire record is available to the court. This paragraph applies also to a cross-appellant and a cross-appellee. (2) Costs of Appendix. Unless the parties agree otherwise, the appellant must pay the cost of the appendix. If the appellant considers parts of the record designated by the appellee to be unnecessary, the appellant may advise the appellee, who must then advance the cost of including those parts. The cost of the appendix is a taxable cost. But if any party causes unnecessary parts of the record to be included in the appendix, the court may impose the cost of those parts on that party. Each circuit must, by local rule, provide for sanctions against attorneys who unreasonably and vexatiously increase litigation costs by including unnecessary material in the appendix. (c) Deferred Appendix. (1) Deferral Until After Briefs Are Filed. The court may provide by rule for classes of cases or by order in a particular case that preparation of the appendix may be deferred until after the briefs have been filed and that the appendix may be filed 21 days after the appellee's brief is served. Even though the filing of the appendix may be deferred, Rule 30(b) applies; except that a party must designate the parts of the record it wants included in the appendix when it serves its brief, and need not include a statement of the issues presented. (2) References to the Record. (A) If the deferred appendix is used, the parties may cite in their briefs the pertinent pages of the record. When the appendix is prepared, the record pages cited in the briefs must be indicated by inserting record page numbers, in brackets, at places in the appendix where those pages of the record appear. (B) A party who wants to refer directly to pages of the appendix may serve and file copies of the brief within the time required by Rule 31(a), containing appropriate references to pertinent pages of the record. In that event, within 14 days after the appendix is filed, the party must serve and file copies of the brief, containing references to the pages of the appendix in place of or in addition to the references to the pertinent pages of the record. Except for the correction of typographical errors, no other changes may be made to the brief. (d) Format of the Appendix. The appendix must begin with a table of contents identifying the page at which each part begins. The relevant docket entries must follow the table of contents. Other parts of the record must follow chronologically. When pages from the transcript of proceedings are placed in the appendix, the transcript page numbers must be shown in brackets immediately before the included pages. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial formal matters (captions, subscriptions, acknowledgments, etc.) should be omitted. (e) Reproduction of Exhibits. Exhibits designated for inclusion in the appendix may be reproduced in a separate volume, or volumes, suitably indexed. Four copies must be filed with the appendix, and one copy must be served on counsel for each separately represented party. If a transcript of a proceeding before an administrative agency, board, commission, or officer was used in a district- court action and has been designated for inclusion in the appendix, the transcript must be placed in the appendix as an exhibit. (f) Appeal on the Original Record Without an Appendix. The court may, either by rule for all cases or classes of cases or by order in a particular case, dispense with the appendix and permit an appeal to proceed on the original record with any copies of the record, or relevant parts, that the court may order the parties to file. Local Rule 30.1. Content [Rescinded October 29, 1990] Local Rule 30.2. Number Pursuant to FRAP Rule 30(a) and 31(b), only (5) copies of appendices and (10) copies of briefs and petitions for rehearing need be filed with the clerk and on motion, for cause shown, parties may be allowed to file even fewer copies of appendices and briefs. Local Rule 30.3. Filing of Designations One copy of any designation, statement of issues, or counter-designation served pursuant to FRAP 30(b), or any notice of agreement thereunder, shall be simultaneously filed with the clerk. Local Rule 30.4. Reproduction Parties submitting copies of any document or paper, whether of the record, transcript, deposition, brief, exhibit, etc. may not, except on motion for cause shown, submit carbons or reproduction that is not black, sharp, and clear. The clerk is authorized to refuse to accept copies not conforming herewith. Local Rule 30.5. Original Copies When the court accepts the case on the original record it expects to have, or to be given, the ribbon copy of the transcript or of any depositions, and not carbon copies. Local Rule 30.6. In Forma Pauperis All appeals proceeding in forma pauperis shall be considered on the record on appeal as certified by the clerk of the district court without the necessity of filing an appendix unless otherwise ordered by this court in a specific case. Local Rule 30.7. Translations The court will not receive documents not in the English language unless translations are furnished. Whenever an opinion of the Supreme Court of Puerto Rico is cited in a brief or oral argument which does not appear in the bound volumes in English, an official, certified or stipulated translation thereof with three conformed copies shall be filed. Partial translations will be accepted if stipulated by the parties or if submitted by one party not less than 30 days before the oral argument. Where partial translations are submitted by one party, opposing parties may, prior to oral argument, submit translations of such additional parts as they may deem necessary for a proper understanding of the holding. Local Rule 30.8. Sanctions Not later than at the time of oral argument, on motion of a party to the action, or at any time upon this court's order to show cause why sanctions should not be imposed, the court may impose sanctions against attorneys who unreasonably and vexatiously increase the cost of litigation through the inclusion of unnecessary material in the appendix. Any party charged with misconduct under this rule shall be afforded an opportunity to respond within fifteen (15) days of service of a motion or an order to show cause before any sanctions are imposed by the court. Rule 31. Serving and Filing Briefs (a) Time to Serve and File a Brief. (1) The appellant must serve and file a brief within 40 days after the record is filed. The appellee must serve and file a brief within 30 days after the appellant's brief is served. The appellant may serve and file a reply brief within 14 days after service of the appellee's brief but a reply brief must be filed at least 3 days before argument, unless the court, for good cause, allows a later filing. (2) A court of appeals that routinely considers cases on the merits promptly after the briefs are filed may shorten the time to serve and file briefs, either by local rule or by order in a particular case. (b) Number of Copies. Twenty-five copies of each brief must be filed with the clerk and 2 copies must be served on counsel for each separately represented party. An unrepresented party proceeding in forma pauperis must file 4 legible copies with the clerk, and one copy must be served on counsel for each separately represented party. The court may by local rule or by order in a particular case require the filing or service of a different number. (c) Consequence of Failure to File. If an appellant fails to file a brief within the time provided by this rule, or within an extended time, an appellee may move to dismiss the appeal. An appellee who fails to file a brief will not be heard at oral argument unless the court grants permission. Local Rule 31. Time Inasmuch as it is the practice of this court to consider cases on the merits promptly after briefs are filed, pursuant to the last sentence of FRAP 31(a), unless by special order for cause shown, all briefs shall be filed on the following schedule. Brief of appellant or petitioner, within 35 days after the date on which the record is filed. Brief of appellee or respondent within 30 days after service of brief of the appellant. Reply brief, 10 days after service of brief of appellee. A reply brief may be rejected by the court if it contains matter repetitive of the main brief, or which, in the opinion of the court, should have been in the main brief. Unavailability of the transcript shall constitute cause for granting extensions, subject, however, to the provisions of Local Rule 10, ante. Section (a) special time schedules do not apply to appeals from the District of Puerto Rico, where the times shall remain as provided in FRAP 31(a). Local Rule 31.1. Computer Generated Briefs (a) Where a party is represented by counsel, one copy of its brief must be submitted on a computer readable disk and shall be filed at the time the party's paper brief is filed. The brief on disk must be accompanied by nine paper copies of the brief. The disk shall contain the entire brief exclusive of non- generated appendices. The label of the disk shall include the case name and docket number and identify the brief being filed (i.e. appellant's brief, appellee's brief, appellant's reply brief, etc.) and the word processing format utilized. (b) The brief must be on a 3 1/2" disk in either DOS WordPerfect or WordPerfect for Windows, 5.1 or greater. (c) One copy of the disk, along with a paper copy of the brief, may be served on each party separately represented by counsel. The certificate of service shall indicate service of the brief in both paper and electronic format. (d) A party may be relieved from filing and service under this rule by submitting a motion, within fourteen days after the date of the notice establishing the party's initial briefing schedule, certifying that compliance with the rule would impose undue hardship, that the text of the brief is not available on disk, or that other unusual circumstances preclude compliance with this rule. The requirements of this rule shall not apply to parties appearing pro se. Briefs tendered by counsel after January 1, 1998 without a computer disk copy or court-approved waiver of the requirements of this rule may be rejected by the clerk's office. NOTE: The amendments to the Fed.R.App.P. do not affect a party's obligations under Loc.R. 31.1. Rule 32. Form of Briefs, Appendices, and Other Papers (a) Form of a Brief. (1) Reproduction. (A) A brief may be reproduced by any process that yields a clear black image on light paper. The paper must be opaque and unglazed. Only one side of the paper may be used. (B) Text must be reproduced with a clarity that equals or exceeds the output of a laser printer. (C) Photographs, illustrations, and tables may be reproduced by any method that results in a good copy of the original; a glossy finish is acceptable if the original is glossy. (2) Cover. Except for filings by unrepresented parties, the cover of the appellant's brief must be blue; the appellee's, red; an intervenor's or amicus curiae's, green; and any reply brief, gray. The front cover of a brief must contain: (A) the number of the case centered at the top; (B) the name of the court; (C) the title of the case (see Rule 12(a)); (D) the nature of the proceeding (e.g., Appeal, Petition for Review) and the name of the court, agency, or board below; (E) the title of the brief, identifying the party or parties for whom the brief is filed; and (F) the name, office address, and telephone number of counsel representing the party for whom the brief is filed. (3) Binding. The brief must be bound in any manner that is secure, does not obscure the text, and permits the brief to lie reasonably flat when open. (4) Paper Size, Line Spacing, and Margins. The brief must be on 8 « by 11 inch paper. The text must be double-spaced, but quotations more than two lines long may be indented and single-spaced. Headings and footnotes may be single-spaced. Margins must be at least one inch on all four sides. Page numbers may be placed in the margins, but no text may appear there. (5) Typeface. Either a proportionally spaced or a monospaced face may be used. (A) A proportionally spaced face must include serifs, but sans-serif type may be used in headings and captions. A proportionally spaced face must be 14-point or larger. (B) A monospaced face may not contain more than 10« characters per inch. (6) Type Styles. A brief must be set in a plain, roman style, although italics or boldface may be used for emphasis. Case names must be italicized or underlined. (7) Length. (A) Page limitation. A principal brief may not exceed 30 pages, or a reply brief 15 pages, unless it complies with Rule 32(a)(7)(B) and (C). (B) Type-volume limitation. (i) A principal brief is acceptable if: it contains no more than 14,000 words; or it uses a monospaced face and contains no more than 1,300 lines of text. (ii) A reply brief is acceptable if it contains no more than half of the type volume specified in Rule 32(a)(7)(B)(i). (iii) Headings, footnotes, and quotations count toward the word and line limitations. The corporate disclosure statement, table of contents, table of citations, statement with respect to oral argument, any addendum containing statutes, rules or regulations, and any certificates of counsel do not count toward the limitation. (C) Certificate of compliance. A brief submitted under Rule 32(a)(7)(B) must include a certificate by the attorney, or an unrepresented party, that the brief complies with the type- volume limitation. The person preparing the certificate may rely on the word or line count of the word-processing system used to prepare the brief. The certificate must state either: (i) the number of words in the brief; or (ii) the number of lines of monospaced type in the brief. (b) Form of an Appendix. An appendix must comply with Rule 32(a)(1), (2), (3), and (4), with the following exceptions: (1) The cover of a separately bound appendix must be white. (2) An appendix may include a legible photocopy of any document found in the record or of a printed judicial or agency decision. (3) When necessary to facilitate inclusion of odd-sized documents such as technical drawings, an appendix may be a size other than 8 « by 11 inches, and need not lie reasonably flat when opened. (c) Form of Other Papers. (1) Motion. The form of a motion is governed by Rule 27(d). (2) Other Papers. Any other paper, including a petition for rehearing and a petition for rehearing en banc, and any response to such a petition, must be reproduced in the manner prescribed by Rule 32(a), with the following exceptions: (A) a cover is not necessary if the caption and signature page of the paper together contain the information required by Rule 32(a)(2); and (B) Rule 32(a)(7) does not apply. (d) Local Variation. Every court of appeals must accept documents that comply with the form requirements of this rule. By local rule or order in a particular case a court of appeals may accept documents that do not meet all of the form requirements of this rule. Rule 33. Appeal Conferences The court may direct the attorneys and, when appropriate, the parties to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement. A judge or other person designated by the court may preside over the conference, which may be conducted in person or by telephone. Before a settlement conference, the attorneys must consult with their clients and obtain as much authority as feasible to settle the case. The court may, as a result of the conference, enter an order controlling the course of the proceedings or implementing any settlement agreement. Rule 34. Oral Argument (a) In General. (1) Party's Statement. Any party may file, or a court may require by local rule, a statement explaining why oral argument should, or need not, be permitted. (2) Standards. Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of the following reasons: (A) the appeal is frivolous; (B) the dispositive issue or issues have been authoritatively decided; or (C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument. (b) Notice of Argument; Postponement. The clerk must advise all parties whether oral argument will be scheduled, and, if so, the date, time, and place for it, and the time allowed for each side. A motion to postpone the argument or to allow longer argument must be filed reasonably in advance of the hearing date. (c) Order and Contents of Argument. The appellant opens and concludes the argument. Counsel must not read at length from briefs, records, or authorities. (d) Cross-Appeals and Separate Appeals. If there is a cross-appeal, Rule 28(h) determines which party is the appellant and which is the appellee for purposes of oral argument. Unless the court directs otherwise, a cross-appeal or separate appeal must be argued when the initial appeal is argued. Separate parties should avoid duplicative argument. (e) Nonappearance of a Party. If the appellee fails to appear for argument, the court must hear appellant's argument. If the appellant fails to appear for argument, the court may hear the appellee's argument. If neither party appears, the case will be decided on the briefs, unless the court orders otherwise. (f) Submission on Briefs. The parties may agree to submit a case for decision on the briefs, but the court may direct that the case be argued. (g) Use of Physical Exhibits at Argument; Removal. Counsel intending to use physical exhibits other than documents at the argument must arrange to place them in the courtroom on the day of the argument before the court convenes. After the argument, counsel must remove the exhibits from the courtroom, unless the court directs otherwise. The clerk may destroy or dispose of the exhibits if counsel does not reclaim them within a reasonable time after the clerk gives notice to remove them. Local Rule 34.1. Oral Argument (a) Submitted Cases (1) Counsel may file a stipulation joined in by all parties for submission of a case on briefs without oral argument, which stipulation shall be subject to approval of the court. (2) Without such stipulation, if the court concludes, after examination of the briefs and record that (i) the appeal is frivolous; or (ii) the dispositive issue or set of issues has been recently authoritatively decided; or (iii) the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument, the clerk will advise counsel that the court has decided not to hear oral argument. A decision to dispense with oral argument will not be reached unless a panel of three judges, who will have examined the briefs and record, are unanimous in so concluding. A party may within 7 days (10 days if an appeal is from Puerto Rico) after notice by the clerk of the decision to dispense with oral argument, file a statement setting forth the reasons why oral argument should be entertained and requesting the same. (b) Argument. Parties may expect the court to have some familiarity with the briefs. Normally the court will permit no more than 15 minutes per side for oral argument. It is counsel's responsibility to keep track of time. Where more than one counsel argues on one side of a case, it is counsel's further responsibility to assure a fair division of the total time allotted. One or more cases posing the same issues, arising from the same factual context, will be treated as a single case for the purposes of this rule. Although FRAP 34(c) permits an appellant both to open and conclude the argument, the court holds the view that seldom is counsel well served by an advance reservation of time for rebuttal. Not only does such action reduce the limited time allotted but is likely merely to allow repetitious argument. Counsel are expected to cover all anticipated issues in their arguments in chief. Should unexpected matters arise, such as the need for factual correction, the court is prepared to give counsel who have not reserved time a brief additional period for real rebuttal. Local Rule 34.2. Terms and Sittings The court shall not hold formal terms but shall be deemed always open for the purpose of docketing appeals and petitions, making motions, filing records, briefs and appendices, filing opinions and entering orders and judgments. Where a federal holiday falls on a Monday, the general order is that the court shall commence its sitting on Tuesday. Continuances may be allowed only for cause, and continuances carrying a case beyond the April and May sittings will be allowed only for grave cause. Sittings will be in Boston except that there will also be sittings in Puerto Rico in November and March and at such other times as the court orders. Cases arising in Puerto Rico which are assigned to other sessions may be reassigned to sessions scheduled to be conducted in Puerto Rico. All other cases will be assigned for hearing or submission to the next available session after the briefs have been filed or the time therefor has run. Requests for assignment to a specific session, including the March and November sessions, must state reasons justifying special treatment. Assignment to the November and March session list, so long as space permits, will be made on the basis of statutory priority requirements, hardship that would result from travel to Boston, or other good cause shown. Rule 35. En Banc Determination (a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or (2) the proceeding involves a question of exceptional importance. (b) Petition for Hearing or Rehearing En Banc. A party may petition for a hearing or rehearing en banc. (1) The petition must begin with a statement that either: (A) the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the court's decisions; or (B) the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue. (2) Except by the court's permission, a petition for an en banc hearing or rehearing must not exceed 15 pages, excluding material not counted under Rule 32. (3) For purposes of the page limit in Rule 35(b)(2), if a party files both a petition for panel rehearing and a petition for rehearing en banc, they are considered a single document even if they are filed separately, unless separate filing is required by local rule. (c) Time for Petition for Hearing or Rehearing En Banc. A petition that an appeal be heard initially en banc must be filed by the date when the appellee's brief is due. A petition for a rehearing en banc must be filed within the time prescribed by Rule 40 for filing a petition for rehearing. (d) Number of Copies. The number of copies to be filed must be prescribed by local rule and may be altered by order in a particular case. (e) Response. No response may be filed to a petition for an en banc consideration unless the court orders a response. (f) Call for a Vote. A vote need not be taken to determine whether the case will be heard or reheard en banc unless a judge calls for a vote. Local Rule 35.1. Petitions for In Banc Consideration. Supplementing FRAP Rule 35, the following requirement shall apply: Each application shall be submitted with ten copies. Where the party suggesting in banc consideration is represented by counsel, the petition shall include one or both of the following statements as applicable: I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decision(s) of the Supreme Court of the United States or the precedents of this circuit and that consideration by the full court is necessary to secure and maintain uniformity of decisions in this court: [cite specifically the case or cases]; I express a belief, based on a reasoned and studied professional judgment, that this appeal involves one or more questions of exceptional importance: [set forth each question in one sentence]. Local Rule 35.2. Sanctions If a petition for rehearing or for rehearing en banc is found, on its face, to be wholly without merit, vexatious, multifarious, or filed principally for delay, the court may tax a sum not exceeding $250 as additional costs, payable to the clerk of the court or the opposing party, as the court may direct. At the court's order, counsel may be required personally to pay all or any part of these costs. Local Rule 35.3. Composition of In Banc Court Any senior circuit judge of this circuit who sat as a member of the original panel that decided the case being reviewed is eligible to participate, at his election, as a member of the in banc court. Rule 36. Entry of Judgment; Notice (a) Entry. A judgment is entered when it is noted on the docket. The clerk must prepare, sign, and enter the judgment: (1) after receiving the court's opinion but if settlement of the judgment's form is required, after final settlement; or (2) if a judgment is rendered without an opinion, as the court instructs. (b) Notice. On the date when judgment is entered, the clerk must mail to all parties a copy of the opinion or the judgment, if no opinion was written and a notice of the date when the judgment was entered. Local Rule 36.1. Opinions The volume of filings is such that the court cannot dispose of each case by opinion. Rather it makes a choice, reasonably accommodated to the particular case, whether to use an order, memorandum and order, or opinion. An opinion is used when the decision calls for more than summary explanation. However, in the interests both of expedition in the particular case, and of saving time and effort in research on the part of future litigants, some opinions are rendered in unpublished form; that is, the opinions are directed to the parties but are not otherwise published, and may not be cited in unrelated cases. As indicated in Local Rule 36.2, the court's policy, when opinions are used, is to prefer that they be published; but in limited situations, described in Local Rule 36.2, where opinions are likely not to break new legal ground or contribute otherwise to legal development, they are issued in unpublished form. Local Rule 36.2. Publication of Opinions The Judicial Council of the First Circuit, pursuant to resolution of the Judicial Conference of the United States, hereby adopts the following plan for the publication of opinions of the United States Court of Appeal for the First Circuit. (a) Statement of Policy. In general, the court thinks it desirable that opinions be published and thus be available for citation. The policy may be overcome in some situations where an opinion does not articulate a new rule of law, modify an established rule, apply an established rule to novel facts or serve otherwise as a significant guide to future litigants. (Most opinions dealing with claims for benefits under the Social Security Act, 42 U.S.C.  205(g), will clearly fall within the exception.) (b) Manner of Implementation. 1. As members of a panel prepare for argument, they shall give thought to the appropriate mode of disposition (order, memorandum and order, unpublished opinion, published opinion). At conference the mode of disposition shall be discussed and, if feasible, agreed upon. Any agreement reached may be altered in the light of further research and reflection. 2. With respect to cases decided by a unanimous panel with a single opinion, if the writer recommends that the opinion not be published, the writer shall so state in the cover letter accompanying the draft. After an exchange of views, should any judge remain of the view that the opinion should be published, it shall be. 3. When a panel decides a case with a dissent, or with more than one opinion, the opinion or opinions shall be published unless all the participating judges decide against publication. In any case decided by the court in banc the opinion or opinions shall be published. 4. Any party or other interested person may apply for good cause shown to the court for publication of an unpublished opinion. 5. If a District Court opinion in a case has been published, the order of court upon review shall be published even when the court does not publish an opinion. 6. Unpublished opinions may be cited only in related cases. Only published opinions may be cited otherwise. 7. Periodically the court shall conduct a review in an effort to improve its publication policy and implementation. Rule 37. Interest on Judgment (a) When the Court Affirms. Unless the law provides otherwise, if a money judgment in a civil case is affirmed, whatever interest is allowed by law is payable from the date when the district court's judgment was entered. (b) When the Court Reverses. If the court modifies or reverses a judgment with a direction that a money judgment be entered in the district court, the mandate must contain instructions about the allowance of interest. Rule 38. Frivolous Appeal Damages and Costs If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee. Rule 39. Costs (a) Against Whom Assessed. The following rules apply unless the law provides or the court orders otherwise: (1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise; (2) if a judgment is affirmed, costs are taxed against the appellant; (3) if a judgment is reversed, costs are taxed against the appellee; (4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders. (b) Costs For and Against the United States. Costs for or against the United States, its agency, or officer will be assessed under Rule 39(a) only if authorized by law. (c) Costs of Copies. Each court of appeals must, by local rule, fix the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records authorized by Rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerk's office is located and should encourage economical methods of copying. (d) Bill of Costs: Objections; Insertion in Mandate. (1) A party who wants costs taxed must within 14 days after entry of judgment file with the circuit clerk, with proof of service, an itemized and verified bill of costs. (2) Objections must be filed within 10 days after service of the bill of costs, unless the court extends the time. (3) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs. If the mandate issues before costs are finally determined, the district clerk must upon the circuit clerk's request add the statement of costs, or any amendment of it, to the mandate. (e) Costs on Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs under this rule: (1) the preparation and transmission of the record; (2) the reporter's transcript, if needed to determine the appeal; (3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal; and (4) the fee for filing the notice of appeal. Local Rule 39.1. Fee Application under the Equal Access to Justice Act (a) Time for Filing. An application to a court of appeals for an award of fees and other expenses pursuant to 28 U.S.C.  2412, in connection with an appeal, shall be filed with the clerk of the court of appeals, with proof of service on the United States, within 30 days of final judgment in the action. For purposes of the 30-day limit, a judgment shall not be considered final until the time for filing an appeal or a petition for a writ of certiorari has expired, or the government has given written notice to the parties and to the court of appeals that it will not seek further review, or judgment is entered by the court of last resort. (b) Content. The application shall: (1) identify the applicant and the proceeding for which the award is sought; (2) show that the party seeking the award is a prevailing party and is eligible to receive an award; (3) show the nature and extent of services rendered and the amount sought, including an itemized statement from an attorney representing the party or any agent or expert witness appearing on behalf of the party, stating the actual time expended and the rate at which fees are computed, together with a statement of expenses for which reimbursement is sought; and (4) identify the specific position of the United States that the party alleges was not substantially justified. The court of appeals may, in its discretion, remit any such application to the district court for a determination. (c) Objection. If the United States has any objection to the application for fees and other expenses, such objection must be filed within 30 days of service of the application. Local Rule 39.2. Fee Applications other than under 28 U.S.C.  2412 An application, under any statute, rule or custom other than 28 U.S.C.  2412, for an award of fees and other expenses, in connection with an appeal, shall be filed with the clerk of the court of appeals within 30 days of the date of entry of the final circuit judgment, whether or not attorney fees had been requested in the trial court, except in those circumstances where the court of appeals has ordered that the award of fees and other expenses be remanded to the district court for a determination. For purposes of the 30-day limit, a judgment shall not be considered final until the time for filing an appeal or a petition for a writ of certiorari has expired, or judgment is entered by the court of last resort. If any party against whom an award of fees and other expenses is sought has any objection to the application, such objection must be filed within 30 days of service of the application. The court of appeals may, in its discretion, remit any such application to the district court for a determination. Rule 40. Petition for Panel Rehearing (a) Time to File; Contents; Answer; Action by the Court if Granted. (1) Time. Unless the time is shortened or extended by order or local rule, a petition for panel rehearing may be filed within 14 days after entry of judgment. But in a civil case, if the United States or its officer or agency is a party, the time within which any party may seek rehearing is 45 days after entry of judgment, unless an order shortens or extends the time. (2) Contents. The petition must state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition. Oral argument is not permitted. (3) Answer. Unless the court requests, no answer to a petition for panel rehearing is permitted. But ordinarily rehearing will not be granted in the absence of such a request. (4) Action by the Court. If a petition for panel rehearing is granted, the court may do any of the following: (A) make a final disposition of the case without reargument; (B) restore the case to the calendar for reargument or resubmission; or (C) issue any other appropriate order. (b) Form of Petition; Length. The petition must comply in form with Rule 32. Copies must be served and filed as Rule 31 prescribes. Unless the court permits or a local rule provides otherwise, a petition for panel rehearing must not exceed 15 pages. Rule 41. Mandate: Contents; Issuance and Effective Date; Stay (a) Contents. Unless the court directs that a formal mandate issue, the mandate consists of a certified copy of the judgment, a copy of the court's opinion, if any, and any direction about costs. (b) When Issued. The court's mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, rehearing en banc, or motion for stay of mandate, whichever is later. The court may shorten or extend the time. (c) Effective Date. The mandate is effective when issued. (d) Staying the Mandate. (1) On Petition for Rehearing or Motion. The timely filing of a petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, stays the mandate until disposition of the petition or motion, unless the court orders otherwise. (2) Pending Petition for Certiorari. (A) A party may move to stay the mandate pending the filing of a petition for a writ of certiorari in the Supreme Court. The motion must be served on all parties and must show that the certiorari petition would present a substantial question and that there is good cause for a stay. (B) The stay must not exceed 90 days, unless the period is extended for good cause or unless the party who obtained the stay files a petition for the writ and so notifies the circuit clerk in writing within the period of the stay. In that case, the stay continues until the Supreme Court's final disposition. (C) The court may require a bond or other security as a condition to granting or continuing a stay of the mandate. (D) The court of appeals must issue the mandate immediately when a copy of a Supreme Court order denying the petition for writ of certiorari is filed. Local Rule 41. Stay of Mandate Whereas an increasingly large percentage of unsuccessful petitions for certiorari have been filed in this circuit in criminal cases in recent years, in the interests of minimizing unnecessary delay in the administration of justice mandate will not be stayed hereafter in criminal cases following the affirmance of a conviction simply upon request. On the contrary, mandate will issue and bail will be revoked at such time as the court shall order except upon a showing, or an independent finding by the court, of probable cause to believe that a petition would not be frivolous, or filed merely for delay. See 18 U.S.C.  3148. The court will revoke bail even before mandate is due. A comparable principle will be applied in connection with affirmed orders of the NLRB, see NLRB v. Athbro Precision Engineering, 423 F.2d 573 (1st Cir. 1970), and in other cases where the court believes that the only effect of a petition for certiorari would be pointless delay. Rule 42. Voluntary Dismissal (a) Dismissal in the District Court. Before an appeal has been docketed by the circuit clerk, the district court may dismiss the appeal on the filing of a stipulation signed by all parties or on the appellant's motion with notice to all parties. (b) Dismissal in the Court of Appeals. The circuit clerk may dismiss a docketed appeal if the parties file a signed dismissal agreement specifying how costs are to be paid and pay any fees that are due. But no mandate or other process may issue without a court order. An appeal may be dismissed on the appellant's motion on terms agreed to by the parties or fixed by the court. Rule 43. Substitution of Parties (a) Death of a Party. (1) After Notice of Appeal Is Filed. If a party dies after a notice of appeal has been filed or while a proceeding is pending in the court of appeals, the decedent's personal representative may be substituted as a party on motion filed with the circuit clerk by the representative or by any party. A party's motion must be served on the representative in accordance with Rule 25. If the decedent has no representative, any party may suggest the death on the record, and the court of appeals may then direct appropriate proceedings. (2) Before Notice of Appeal Is Filed Potential Appellant. If a party entitled to appeal dies before filing a notice of appeal, the decedent's personal representative or, if there is no personal representative, the decedent's attorney of record may file a notice of appeal within the time prescribed by these rules. After the notice of appeal is filed, substitution must be in accordance with Rule 43(a)(1). (3) Before Notice of Appeal Is Filed Potential Appellee. If a party against whom an appeal may be taken dies after entry of a judgment or order in the district court, but before a notice of appeal is filed, an appellant may proceed as if the death had not occurred. After the notice of appeal is filed, substitution must be in accordance with Rule 43(a)(1). (b) Substitution for a Reason Other Than Death. If a party needs to be substituted for any reason other than death, the procedure prescribed in Rule 43(a) applies. (c) Public Officer: Identification; Substitution. (1) Identification of Party. A public officer who is a party to an appeal or other proceeding in an official capacity may be described as a party by the public officer's official title rather than by name. But the court may require the public officer's name to be added. (2) Automatic Substitution of Officeholder. When a public officer who is a party to an appeal or other proceeding in an official capacity dies, resigns, or otherwise ceases to hold office, the action does not abate. The public officer's successor is automatically substituted as a party. Proceedings following the substitution are to be in the name of the substituted party, but any misnomer that does not affect the substantial rights of the parties may be disregarded. An order of substitution may be entered at any time, but failure to enter an order does not affect the substitution. Rule 44. Case Involving a Constitutional Question When the United States Is Not a Party If a party questions the constitutionality of an Act of Congress in a proceeding in which the United States or its agency, officer, or employee is not a party in an official capacity, the questioning party must give written notice to the circuit clerk immediately upon the filing of the record or as soon as the question is raised in the court of appeals. The clerk must then certify that fact to the Attorney General. Rule 45. Clerk's Duties (a) General Provisions. (1) Qualifications. The circuit clerk must take the oath and post any bond required by law. Neither the clerk nor any deputy clerk may practice as an attorney or counselor in any court while in office. (2) When Court Is Open. The court of appeals is always open for filing any paper, issuing and returning process, making a motion, and entering an order. The clerk's office with the clerk or a deputy in attendance must be open during business hours on all days except Saturdays, Sundays, and legal holidays. A court may provide by local rule or by order that the clerk's office be open for specified hours on Saturdays or on legal holidays other than New Year's Day, Martin Luther King, Jr.'s Birthday, Presidents' Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, and Christmas Day. (b) Records. (1) The Docket. The circuit clerk must maintain a docket and an index of all docketed cases in the manner prescribed by the Director of the Administrative Office of the United States Courts. The clerk must record all papers filed with the clerk and all process, orders, and judgments. (2) Calendar. Under the court's direction, the clerk must prepare a calendar of cases awaiting argument. In placing cases on the calendar for argument, the clerk must give preference to appeals in criminal cases and to other proceedings and appeals entitled to preference by law. (3) Other Records. The clerk must keep other books and records required by the Director of the Administrative Office of the United States Courts, with the approval of the Judicial Conference of the United States, or by the court. (c) Notice of an Order or Judgment. Upon the entry of an order or judgment, the circuit clerk must immediately serve by mail a notice of entry on each party to the proceeding, with a copy of any opinion, and must note the mailing on the docket. Service on a party represented by counsel must be made on counsel. (d) Custody of Records and Papers. The circuit clerk has custody of the court's records and papers. Unless the court orders or instructs otherwise, the clerk must not permit an original record or paper to be taken from the clerk's office. Upon disposition of the case, original papers constituting the record on appeal or review must be returned to the court or agency from which they were received. The clerk must preserve a copy of any brief, appendix, or other paper that has been filed. Local Rule 45. Defaults When a cause is in default as to the filing of the brief for appellant or petitioner, and the appendix, if one is required, the clerk is to enter an order dismissing the appeal for want of diligent prosecution. The party in default may have the appeal reinstated upon showing special circumstances justifying the failure to comply with the time limit. The motion to set aside the dismissal should be filed within ten days. When a cause is in default as to the filing of the brief for appellee or respondent, the cause shall be assigned to the next list and the appellee will not be heard at oral argument except by leave of the Court. Counsel are reminded of Local Rule 3 providing for the dismissal of the appeal for want of prosecution if the docket fee is not paid within 40 days of the filing of the notice of appeal. Local Rule 45.1 The Clerk The office of the clerk shall be open for business from 9:00 a.m. to 5:00 p.m. except Saturdays, Sundays, and legal holidays. The clerk shall charge the fees and costs which shall be fixed from time to time by the Judicial Conference of the United States, pursuant to 28 U.S.C.  1913. Unless subject to a standing order which might apply to classes of subscribers, such as law schools, the charge for a copy of each opinion, after one free copy to counsel for each party is $2.00. No one serving as clerk or deputy clerk of this court shall engage in the practice of law while continuing in such position. Local Rule 45.2. Library The law library of this court shall be open to members of the Bar, to the Untied States Attorney of the Circuit and their assistants, to other law officers of the government, and persons having a case in this court, but books may be removed only by government employees, who shall sign therefor. Rule 46. Attorneys (a) Admission to the Bar. (1) Eligibility. An attorney is eligible for admission to the bar of a court of appeals if that attorney is of good moral and professional character and is admitted to practice before the Supreme Court of the United States, the highest court of a state, another United States court of appeals, or a United States district court (including the district courts for Guam, the Northern Mariana Islands, and the Virgin Islands). (2) Application. An applicant must file an application for admission, on a form approved by the court that contains the applicant's personal statement showing eligibility for membership. The applicant must subscribe to the following oath or affirmation: "I, _____, do solemnly swear [or affirm] that I will conduct myself as an attorney and counselor of this court, uprightly and according to law; and that I will support the Constitution of the United States." (3) Admission Procedures. On written or oral motion of a member of the court's bar, the court will act on the application. An applicant may be admitted by oral motion in open court. But, unless the court orders otherwise, an applicant need not appear before the court to be admitted. Upon admission, an applicant must pay the clerk the fee prescribed by local rule or court order. (b) Suspension or Disbarment. (1) Standard. A member of the court's bar is subject to suspension or disbarment by the court if the member: (A) has been suspended or disbarred from practice in any other court; or (B) is guilty of conduct unbecoming a member of the court's bar. (2) Procedure. The member must be given an opportunity to show good cause, within the time prescribed by the court, why the member should not be suspended or disbarred. (3) Order. The court must enter an appropriate order after the member responds and a hearing is held, if requested, or after the time prescribed for a response expires, if no response is made. (c) Discipline. A court of appeals may discipline an attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with any court rule. First, however, the court must afford the attorney reasonable notice, an opportunity to show cause to the contrary, and, if requested, a hearing. Local Rule 46. Staff Attorneys and Law Clerks No one serving as a staff attorney to the court or as a law clerk to a member of this court or employed in any other capacity by this court shall engage in the practice of law while continuing in such position. Nor shall a staff attorney or law clerk after separating from that position practice as an attorney in connection with any case pending in this court during the term of service, or appear at the counsel table or on brief in connection with any case heard during a period of one year following separation from service with the court. Local Rule 46.1. Attorneys (a) Admission Fee. Upon being admitted to practice, an attorney other than government counsel, and court-appointed counsel, shall pay a fee of $25.00 to the clerk. The clerk shall maintain the proceeds as a court's discretionary fund for the reimbursement of expenses of non-compensable court-appointed counsel and such other purposes as the court may order. Attorneys may be admitted in open court on motion or otherwise as the court shall determine. (b) Admission as a Prerequisite to Practice. In order to file motions, pleadings or briefs on behalf of a party or participate in oral argument, attorneys must be admitted to the bar of this court and file an appearance form. The appearance of a member of the bar of any court designated in Fed.R.App.P. 46(a) will be entered subject to filing an application and subsequent admission to practice in this court. Forms for admission and entry of appearance will be provided by the clerk. (c) Parties. A party desiring to appear without counsel shall notify the clerk in writing by completing and filing an entry of appearance on a form approved by the court. Local Rule 46.2. Disciplinary Enforcement The Court of Appeals for the First Circuit Rules of Disciplinary Enforcement are on file in the clerks's office. A copy may be obtained upon request addressed to the clerk of this court. Local Rule 46.3. Standing Rule Governing Appearance and Argument by Eligible Law Students I. Scope of Legal Assistance. 1. An eligible law student with the written consent of an indigent and the indigent's attorney of record may appear in this court on behalf of that indigent in any case. The attorney of record, for purposes of this rule, must be a member of the bar of this court, the faculty member conducting the course in appellate advocacy described in Section II(3), and appointed as counsel on appeal for the indigent. The written consent shall be filed with the clerk. 2. An eligible law student may assist in the preparation of briefs and other documents to be filed in this court, but such briefs or documents must be signed by the attorney of record. Names of students participating in the preparation of briefs may, however, be added to the briefs. The law student may also participate in oral argument with leave of the court, but only in the presence of the attorney of record. The attorney or record shall assume personal professional responsibility for the law student's work and for supervising the quality of the law student's work. The attorney of record should be familiar with the case and prepared to supplement or correct any written or oral statements made by the student. II. Student Eligibility Requirements. In order to appear, the student shall: 1. Be enrolled in a law school approved by the American Bar Association; 2. Have completed legal studies amounting to at least four (4) semesters, or the equivalent if the school is on some basis other than a semester basis; 3. Be taking a course in appellate advocacy for academic credit; 4. Be certified by the attorney of record as qualified to provide the legal representation permitted by this rule. This certification, which shall be filed with the clerk, may be withdrawn by the dean at any time by mailing a notice to the clerk or by termination by this court without notice or hearing and without any showing of cause; 5. Neither ask for nor receive any compensation or remuneration of any kind for the student's services from the person on whose behalf the student renders services. This shall also prevent a law student from making charges for its services.; 6. certify in writing that the student has read and is familiar with the Code of Professional Responsibility of the American Bar Association, the Federal Rules of Appellate Procedure, and the rules of this court. III. Standards of Supervision. The supervising attorney of record shall: 1. File with this court the attorney's written consent to supervise the student; 2. Assume personal professional responsibility for the student's work; 3. Assist the student to the extent necessary; 4. Appear with the student in all proceedings before this court and be prepared to supplement any written or oral statement made by the student to this court or opposing counsel. IV. Forms Required by Rule. Form to be completed by the party for whom the law student is rendering services; I authorize _________, a law student, to appear in court or at other proceedings on my behalf, and to prepare documents on my behalf. ________________________________ _________________________________ (Date) (Signature of Client) (If more than one client is involved, approvals from each shall be attached.) Form to be completed by the law student's supervising attorney: I certify that this student has completed at least 4 semesters of law school work, and is, to the best of my knowledge, of good character and competent legal ability. I will carefully supervise all of this student's work. I authorize this student to appear in court or at other proceedings, and to prepare documents. I will accompany the student at such appearances, sign all documents prepared by the student, assume personal responsibility for the student's work, and be prepared to supplement, if necessary, any statements made by the student to the court or to opposing counsel. ________________________________ _________________________________ (Name of Student) (Signature of Supervising Attorney) ________________________________ _________________________________ ________________________________ _________________________________ ________________________________ _________________________________ (Address & Phone of Above) (Address & Phone of Above) Name of Law School Student is Attending:_________________________________ Form to be completed by law student: I certify that I have completed at least 4 semesters of law school; that I am familiar and will comply with the Code of Professional Responsibility of the American Bar Association, the Federal Rules of Appellate Procedure, and the Rules of this Court; and that I am receiving no compensation from the party on whose behalf I am rendering services. ________________________________ _________________________________ (Date) (Signature of Client) Local Rule 46.4. 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. For requirements applying to court-appointed counsel, reference is made to Loc.R. 46.5, para. (c), the Criminal Justice Plan of this Circuit. Local Rule 46.4(a). Procedure for Withdrawal in Criminal Cases Motions to withdraw as counsel on appeal in criminal cases must be accompanied by a notice of appearance of replacement counsel or in the absence of replacement counsel, such motions must state the reasons for withdrawal and must be accompanied by one of the following: (1) The defendant's completed application for appointment of replacement counsel under the Criminal Justice Act or a showing that such application has already been filed with the court; or (2) An affidavit from the defendant showing that the defendant has been advised that the defendant may retain replacement counsel or apply for appointment of replacement counsel and expressly stating that the defendant does not wish to be represented by counsel but elects to appear; or (3) An affidavit from the defendant showing that the defendant has been advised of the defendant's rights with regard to the appeal and expressly stating that the defendant elects to withdraw the appeal; or (4) If the reason for the motion is the frivolousness of the appeal, a brief following the procedure described in Anders v. California, 386 U.S. 738 (1967) must be filed with the court. [Counsel's attention is also directed to McCoy v. Court of Appeals, 486 U.S. 429 (1988); Penson v. Ohio, 488 U.S. 75 (1988)]. Any such brief shall be filed only after counsel has ordered and read all relevant transcripts, including trial, change of plea, and sentencing transcripts, as well as the presentence investigation report. Counsel shall serve a copy of the brief and motion on the defendant and advise the defendant that the defendant has thirty (30) days from the date of service in which to file a brief in support of reversal or modification of the judgment. The motion must be accompanied by proof of service on the defendant and certification that counsel has advised the defendant of the defendant's right to file a separate brief. All motions must be accompanied by proof of service on the defendant and the Government and will be determined, without oral argument, by one or more judges. Local Rule 46.5. Appointment of Counsel The United States Court of Appeals for the First Circuit adopts the following Plan to implement the Criminal Justice Act of 1964, 18 U.S.C.  3006A, P.L. 88-455, as amended October 12, 1984, P.L. 98-473, and November 14, 1986, P.L. 99-651 to which references must be made. The purpose of this Plan is to provide adequate representation and defense of all persons to the extent provided therein including cases where a person faces loss of liberty or is in custody as a material witness. The court notes at the outset that the Act does not diminish the traditional responsibility of members of the Bar to accept appointments. It recognizes that compensation will, in most instances, be something less than full, and appreciates that service by counsel will represent a substantial measure of public dedication. (a) Request for Counsel. Every person or eligible witness desiring counsel and that the government pay for the expense of appeal, whether or not the person had court-appointed counsel in the district court, shall address to this court a request in writing and a statement of the person's inability to pay. The court may make such further inquiry of the person's need as it may see fit. This inquiry may also be addressed to previously retained counsel, with the objective of ascertaining that present inability to pay is not a result of past excessive compensation. Such inquiry is not aimed at depriving an indigent of counsel but at the relatively few counsel who might reasonably be considered to have used up all of the available funds for doing only part of the work. (b) Appointment of Counsel. The court may appoint counsel who represented the person in the district court, or counsel from a panel maintained by the court, or otherwise. The addition or deletion of names from the panel and the selection of counsel shall be the sole and exclusive responsibility of the court but the actual administration thereof may be conducted by the clerk of this court. The person may ask for appointment of counsel who represented the defendant in the district court or for the non- appointment of such counsel, but shall not otherwise request any specific individual. The court shall give consideration to such request, but shall not be bound by it. A request for relief by trial counsel, upon a showing of cause, shall be given due consideration. It is recognized that counsel on appeal may require different qualifications than for trial. The substitution of counsel on appeal shall not in any way reflect upon the ability or upon the conduct of prior counsel. The Administration Office shall be notified promptly of each appointment, and of each order releasing counsel. (c) Duration and Substitution of Counsel. The court notes, and incorporates herein, the provisions of section (c) of the Act, except the references therein to magistrates. Except when relieved by the court, counsel's appointment shall not terminate until, if the person loses the appeal, counsel informs the person of that fact and of the person's right to petition for certiorari and the time period, and has prepared and filed the petition if the person requests it and there are reasonable grounds for counsel properly to do so (see Rule 10 of the Rules of the Supreme Court of the United States). If counsel determines that there are no reasonable grounds and declines to file a petition for certiorari requested by the person, counsel shall so inform the Court and request leave to withdraw from the representation by written motion stating that counsel has reviewed the matter and determined that the petition would be frivolous, accompanied by counsel's certification of the date when a copy of the motion was furnished to the person. If the person does not wish to apply for certiorari or does not respond to the notification, counsel shall so inform the court by letter, which action shall terminate the representa tion. The clerk will inform the person in writing of the fact and effective date of the termination of counsel's appointment. (d) Payment for Representation and (e) Services other than Counsel. The court notes sections (d) and (e) of the Act and incorporates the pertinent portions herein. Expenses described in the Act do not include overhead and such matters as secretarial expenses not ordinarily billed to clients, but a reasonable charge for xeroxing or similar copying services for briefs may be allowed. No other reimbursable expenses shall be incurred without prior court approval. The word "necessary" as used in the act will at all times be construed in its strictest sense. The hourly rates of compensation are designated and intended to be maximum rates and will be treated as such. In fixing the rate, the chief judge or his delegate will bear in mind the qualification of attorneys and the relative difficulties encountered in presenting the case. The 1986 changes in the hourly rates were made to meet the changes in the price structure of the nation since the original Act was passed. They are not intended to change the basic and underlying philosophy of the Act that the bar of the nation owes a responsibility to represent person financially unable to retain counsel and that only in the most extraordinary case will the chief judge or his delegate consider a request for fees beyond the statutory maximum. All claims, whether for compensation, or for expenditures, shall be submitted promptly after the completion of all duties, which may include preparation of a petition for writ of certiorari, at the risk of disallowance. After court approval all orders for payment shall be processed through the Administrative Office. (f) Receipt of Other Payments. The provisions of section (f) of the Act are incorporated herein. Appointed counsel shall be under a continuing duty to report to the court any circumstances indicating financial ability on behalf of the person to pay part or all of the person's counsel fees or expenses. The court shall in no instance permit counsel who receives payments under the Act to frustrate the intent of the limitations contained in sections (d) and (e) by the receipt of other payment, either during, before, or after such representation. (g) Forms. For the appointment of counsel, the making of claims, and all other matters for which forms shall have been approved by the Administrative Office, such forms shall be used as a matter of course. (h) Effective Date, and Amendments. This amended Plan shall take effect on November 14, 1986. It may be amended at any time with the approval of the Judicial Council. Local Rule 46.6. Temporary Suspension of Attorneys When it is shown to the Court of Appeals that any member of its bar has been suspended or disbarred from practice by a final decision issued by any other court of record, or has been found guilty of conduct unbecoming of a member of the bar of this court, the member may be temporarily suspended from representing parties before this court pending the completion of proceedings initiated under Fed.R.App.P. 46 and the Rules of Disciplinary Enforcement of the Court of Appeals for the First Circuit. Rule 47. Local Rules by Courts of Appeals (a) Local Rules. (1) Each court of appeals acting by a majority of its judges in regular active service may, after giving appropriate public notice and opportunity for comment, make and amend rules governing its practice. A generally applicable direction to parties or lawyers regarding practice before a court must be in a local rule rather than an internal operating procedure or standing order. A local rule must be consistent with but not duplicative of Acts of Congress and rules adopted under 28 U.S.C.  2072 and must conform to any uniform numbering system prescribed by the Judicial Conference of the United States. Each circuit clerk must send the Administrative Office of the United States Courts a copy of each local rule and internal operating procedure when it is promulgated or amended. (2) A local rule imposing a requirement of form must not be enforced in a manner that causes a party to lose rights because of a nonwillful failure to comply with the requirement. (b) Procedure When There Is No Controlling Law. A court of appeals may regulate practice in a particular case in any manner consistent with federal law, these rules, and local rules of the circuit. No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local circuit rules unless the alleged violator has been furnished in the particular case with actual notice of the requirement. Local Rule 47.1. Judicial Conference of the First Circuit (a) There shall be held annually at such time and place as shall be designated by the chief judge of the circuit a Conference of all the circuit, district and bankruptcy judges of the circuit and of those magistrates designated by the chief judge of the circuit for the purpose of considering the state of business of the courts and advising ways and means of improving the administration of justice within the circuit. It shall be the duty of each circuit, district, and bankruptcy judge and designated magistrates in the circuit to attend the Conference and, unless excused by the chief judge, to remain throughout the Conference. The chief judge shall preside at the Conference. (b) The chief judge of the circuit shall appoint a Planning Committee consisting of a circuit judge and/or district judge and such members of the Bar as they may designate to plan and conduct the Conference. (c) At least biennially, members of the Conference shall include the following: 1. Presidents of the state bar associations of states and commonwealths within the circuit. 2. The dean or member of the faculty designated by the dean of each accredited law school within the circuit. 3. All United States Attorneys of the circuit. 4. Lawyers to be appointed from each state in numbers to be determined by the Planning Committee, such appointment to be made by the district committee of each district; if such a committee does not exist, such appointments to be made by the district judges as determined by each district court. Such additional members of the Bar may also be invited as the chief circuit judge, in consultation with the other circuit judges, and the Planning Committee shall decide. 5. All federal defenders designated by the chief judge of the circuit. (d) The Circuit Executive of this court shall be the Secretary of the Conference. Local Rule 47.2. Advisory Committee (a) Membership. In accordance with 28 U.S.C.  2077(b) an advisory committee on the rules of practice and internal operating procedures is hereby created for the court. This committee shall consist of members of the Bar of the court as follows: Three members from the District of Massachusetts, two members from the District of Puerto Rico and one each from the Districts of Maine, New Hampshire and Rhode Island. (b) Duties. The advisory committee shall have an advisory role concerning the rules of practice and internal operating procedures of the court. The advisory committee shall, among other things, (1) provide a forum for continuous study of the rules of practice and internal operating procedures of the court; (2) serve as a conduit between the bar and the public and the court regarding procedural matters and suggestions for changes; (3) consider and recommend rules and amendments for adoption; and (4) render reports from time to time, on its own initiative and on request, to the court. (c) Terms of Members. The members of the advisory committee shall serve three-year terms, which will be staggered commencing on October 1, 1986, so that three new members will be appointed every year in such order as the court decides. The court shall appoint one of the members of the committee to serve as chairman. Local Rule 47.3. Comments from Members of the Bar Prior to the adoption of a proposed amendment to these Rules, if time permits, the court will seek the comments and recommendations of interested members of the bar through the office of the clerk and with the aid of the advisory committee created pursuant to 28 U.S.C.  2077. Local Rule 47.4. Rule Day Except in special circumstances, amendments to these Rules will become effective on a day of the year to be designated by the court as Rule Day, which will be chosen insofar as possible to insure maximum availability in published sources. Local Rule 47.5. Civil Appeals Management Plan Pursuant to Rule 47 of the Federal Rules of Appellate Procedure, the United States Court of Appeals for the First Circuit adopts the following plan to establish a Civil Appeals Management Program, said Program to have the force and effect of a local rule. 1. Pre-Argument Filing; Ordering Transcript. (a) Upon receipt of the Notice of Appeal in the Court of Appeals, the Clerk of the Court of Appeals shall send notice of such fact to the appellant, together with blank Forms A and B (copies of which are attached hereto). Upon receipt of such notice from the Clerk of the Court of Appeals, the appellant shall, within ten days: (1) file with the Clerk of the Court of Appeals and serve on all other parties a pre-argument statement (in the form attached hereto as Form A) detailing information needed for the prompt disposition of an appeal; (2) certify and file with the Clerk of the Court of Appeals (in the form attached hereto as Form B) that satisfactory arrangements have been made with the court reporter for payment of the cost of the transcript. (b) Nothing herein shall alter the duty to order from the court reporter, promptly upon filing of the Notice of Appeal in the District Court, a transcript of the proceedings pursuant to FRAP Rule 10(b). 2. Pre-Argument Conference; Pre-Argument Conference Order. (a) In cases where he may deem this desirable, the Settlement Counsel, who shall be appointed by the Court of Appeals, may direct the attorneys, and in certain cases the clients, to attend a pre-argument conference to be held as soon as practicable before him or a judge designated by the Chief Judge to consider the possibility of settlement, the simplification of the issues, and any other matters which the Settlement Counsel determines may aid in the handling or the disposition of the proceeding. The Settlement Counsel shall consult the Clerk on setting dates for Pre-Argument Conferences. (b) At the conclusion of the conference, the Settlement Counsel shall consult with the Clerk concerning the Clerk's entry of a Conference Order which shall control the subsequent course of the proceeding. 3. Confidentiality. The Settlement Counsel shall not disclose the substance of the Pre-argument Conference, nor report on the same, to any person or persons whomsoever (including, but not limited to, any judge). The attorneys are likewise prohibited from disclosing any substantive information emanating from the conference to anyone other than their clients or co-counsel; and then only upon receiving due assurance that the recipients will honor the confidentiality of the information. See In re Lake Utopia Paper Ltd., 608 F.2d 928 (1st Cir. 1979). The fact of the conference having taken place, and the bare result thereof (e.g., "settled," "not settled," "continued"), including any resulting Conference Order, shall not be considered to be confidential. 4. Non-Compliance Sanctions. If the appellant has not taken each of the actions set forth in paragraph 1 of this Program, or in the Conference Order, within the time therein specified, the appeal may be dismissed by the Clerk without further notice. 5. Grievances. Any grievances as to the handling of any case under the Program will be addressed by the Court of Appeals, and should be sent to Vincent Flanagan, Circuit Executive, One Courthouse Way, Suite 3700, Boston, MA 02110, who will hold them confidential on behalf of the Court of Appeals unless release is authorized by the complainant. 6. Scope of Program. The Program will include all civil appeals and review of administrative orders, except the following. It will not include original proceedings ( such as petitions for mandamus), prisoner petitions, habeas corpus petitions, summary enforcement actions of the National Labor Relations Board or any pro se cases. Nothing herein shall prevent any judge or panel, upon motion or sua sponte, from referring any matter to the Settlement Counsel at any time. The foregoing Civil Appeals Management Program shall be applicable to all such cases as set forth above, arising from the District Courts in the Districts of Maine, New Hampshire, Massachu setts, and Rhode Island, in which the Notice of Appeal is received in the Court of Appeals on or after January 1, 1992; and all such cases arising from the District Court in the District of Puerto Rico, in which the Notice of Appeal is received in the Court of Appeals on or after January 1, 1993. Rule 48. Masters (a) Appointment; Powers. A court of appeals may appoint a special master to hold hearings, if necessary, and to recommend factual findings and disposition in matters ancillary to proceedings in the court. Unless the order referring a matter to a master specifies or limits the master's powers, those powers include, but are not limited to, the following: (1) regulating all aspects of a hearing; (2) taking all appropriate action for the efficient performance of the master's duties under the order; (3) requiring the production of evidence on all matters embraced in the reference; and (4) administering oaths and examining witnesses and parties. (b) Compensation. If the master is not a judge or court employee, the court must determine the master's compensation and whether the cost is to be charged to any party. Appendix of Forms Form 1. Notice of Appeal to a Court of Appeals From a Judgment or Order of a District Court United States District Court for the District of __________ File Number __________ A.B., Plaintiff ) v. ) Notice of Appeal C.D., Defendant ) Notice is hereby given that [(here name all parties taking the appeal), (plaintiffs)(defendants) in the above named case*] hereby appeal to the United States Court of Appeals for the First Circuit (from the final judgment)(from an order (describing it)) entered in this action on the _______ day of _______, 19___. (s) ___________________ Attorney for [____] [Address:_________] * See Rule 3(c) for permissible ways of identifying appellants. Form 2. Notice of Appeal to a Court of Appeals From a Decision of the United States Tax Court United States Tax Court Washington, D.C. A.B., Petitioner ) v. ) Docket No. ____ Commissioner of Internal ) Revenue, Respondent ) Notice of Appeal Notice is hereby given that [here name all parties taking the appeal], hereby appeals to the United States Court of Appeals for the First Circuit from (that part of) the decision of this court entered in the above captioned proceeding on the _______ day of _______, 19___ (relating to _______). /s/ __________________ Counsel for [____] [Address:________] * See Rule 3(c) for permissible ways of identifying appellants. Form 3. Petition for Review of Order of an Agency, Board, Commission or Officer United States Court of Appeals for the First Circuit A.B., Petitioner ) v. ) Petition for Review XYZ Commission, Respondent ) [(here name all parties bringing the petition*] hereby petitions the court for review of the Order of the XYZ Commission (describe the order) entered on _______, 19___. /s/ __________________ Attorney for Petitioners [Address:________] * See Rule 15. Form 4. Affidavit to Accompany Motion for Leave to Appeal in Forma Pauperis United States District Court for the District of ____________ A.B., Plaintiff v. Case No._____________ C.D., Defendant Affidavit in Support of Motion I swear or affirm under penalty of perjury that, because of my poverty, I cannot prepay the docket fees of my appeal or post a bond for them. I believe I am entitled to redress. I swear or affirm under penalty of perjury under United States laws that my answers on this form are true and correct.(28 U.S.C.  1746; 18 U.S.C.  1621.) Signed: _______________________________ Instructions Complete all questions in this application and then sign it. Do not leave any blanks: if the answer to a question is "0," "none," or "not applicable (N/A)," write in that response. If you need more space to answer a question or to explain your answer, attach a separate sheet of paper identified with your name, your case's docket number, and the question number. Date: ___________________________________ My issues on appeal are: 1. For both you and you spouse estimate the average amount of money received from each of the following sources during the past 12 months. Adjust any amount that was received weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross amounts, that is, amounts before any deductions for taxes or otherwise. Income source Average monthly amount during Amount expected next month the past 12 months You You Employment $_________ $_________ Self-employment $_________ $_________ Income from real property $_________ $_________ (such as rental income) Interest and dividends $_________ $_________ Gifts $_________ $_________ Alimony $_________ $_________ Child support $_________ $_________ Retirement (such as social $_________ $_________ security, pensions, annuities, insurance) Disability (such as social $_________ $_________ security, insurance payments) Unemployment payments $_________ $_________ Public-assistance $_________ $_________ (such as welfare) Other (specify):___________ $_________ $_________ Total Monthly income: $_________ $_________ 2. List your employment history, most recent employer first. (Gross monthly pay is before taxes or other deductions) Employer ___________________ ___________________ ___________________ Address ___________________ ___________________ ___________________ Dates of Employment ___________________ ___________________ ___________________ Gross monthly pay ___________________ ___________________ ___________________ 3. List your spouses's employment history, most recent employer first. (Gross monthly pay is before taxes or other deductions) Employer ___________________ ___________________ ___________________ Address ___________________ ___________________ ___________________ Dates of Employment ___________________ ___________________ ___________________ Gross monthly pay ___________________ ___________________ ___________________ 4. How much cash do you and your spouse have? $______________ Below, state any money you or your spouse have in bank accounts or in any other financial institution. Financial Institution ___________________ ___________________ ___________________ Type of Account ___________________ ___________________ ___________________ Amount you have $________ $________ $________ Amount your spouse has $________ $________ $________ If you are a prisoner, you must attach a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months in your institutional accounts. If you have multiple accounts, perhaps because you have been in multiple institutions, attach one certified statement of each account. 5. List the assets, and their values, which you or your spouse owns. Do not list clothing and ordinary household furnishings. Home (Value) ____________________________ ____________________________ ____________________________ Other real estate (Value) __________________________ __________________________ __________________________ Motor Vehicle #1 (Value) Make & year: ________________ Model: ________________ Registration #:________________ Motor Vehicle #2 (Value) Make & year: ________________ Model: ________________ Registration #:_________________ Other assets (Value) __________________________ __________________________ __________________________ Other assets (Value) __________________________ __________________________ __________________________ 6. State every person, business, or organization owing you or your spouse money, and the amount owed. Person owing you or your spouse money __________________________ __________________________ __________________________ Amount owed to you __________________________ __________________________ __________________________ Amount owed to your spouse __________________________ __________________________ __________________________ 7. State the persons who rely on you or your spouse for support. Name __________________________ __________________________ __________________________ Relationship __________________________ __________________________ __________________________ Age __________________________ __________________________ __________________________ 8. Estimate the average monthly expenses of you and your family. Show separately the amounts paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. You Spouse Rent or home mortgage payment (include lot rented $_________ $_________ for mobile home) Are any real estate taxes included? Yes No Is property insurance included? Yes No Utilities (electricity, heating fuel, water, sewer, and $_________ $_________ Telephone) Home maintenance (repairs and upkeep) $_________ $_________ Food $_________ $_________ Clothing $_________ $_________ Laundry and dry-cleaning $_________ $_________ Medical and dental expenses $_________ $_________ Transportation (not including motor vehicle payments) $_________ $_________ Recreation, entertainment, newspapers, magazines, etc. $_________ $_________ Insurance (not deducted from wages or included in $_________ $_________ Mortgage payments) Homeowner's or renter's $_________ $_________ Life $_________ $_________ Health $_________ $_________ Motor Vehicle $_________ $_________ Other:________________________ $_________ $_________ Taxes (not deducted from wages or included in $_________ $_________ Mortgage payments)(specify):_________________ Installment payments $_________ $_________ Motor Vehicle $_________ $_________ Credit card (name):_____________________ $_________ $_________ Department store (name):________________ $_________ $_________ Other:_______________________________ $_________ $_________ Alimony, maintenance, and support paid to others $_________ $_________ Regular expenses for operations of business, profession, $_________ $_________ or farm (attach detailed statement) Other (specify):______________________________ $_________ $_________ Total monthly expenses: $_________ $_________ 9. Do you expect any major changes to your monthly income or expenses in your assets or liabilities du ring the next 12 months? Yes No If yes, describe on an attached sheet. 10.Have you paid or will you be paying an attorney any money for services in connection with this case, including the completion of this form? Yes No If yes, how much? $__________ If yes, state the attorney's name, address, and telephone number: _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ 11.Have you paid or will you be paying anyone other than an attorney (such as a paralegal or a typist) any money for services in connection with this case, including the completion of this form? Yes No If yes, how much? $__________ If yes, state the person's name, address, and telephone number: _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ 12.Provide any other information that will help explain why you cannot pay the docket fees for your appeal. 13.State the address of your legal residence. __________________________________________________________ __________________________________________________________ Your daytime phone number: (_____) ___________________ Your age: ________ Your years of schooling: __________ Your social security number: _______________________ Form 5. Notice of Appeal to a Court of Appeals from a Judgment or Order of a District Court or a Bankruptcy Appellate Panel United States District Court for the District of ________ In re ) _______________________, ) Debtor ) ) File No __________ _______________________, ) Plaintiff ) v. ) _______________________, ) Defendant ) Notice of Appeal to the United States Court of Appeals for the First Circuit _______________________, the plaintiff [or defendant or other party] appeals to the United States Court of Appeals for the First Circuit from the final judgment [or order or decree] of the district court for the district of _______________________ [or bankruptcy appellate panel of the first circuit], entered in this case on ______________, 19_____ [here describe the judgment, order, or decree] __________________. The parties to the judgment [or order or decree] appealed from and the names and addresses of their respective attorneys are as follows: Dated _______________________ Signed ______________________ Attorney for Appellant Address: _______________________ ________________________________ First Circuit Appearance Form The First Circuit Appearance Form is available at the Clerk's Office. Appendix A. Selected Sections from Title 28 of the United States Code  2253. Appeal (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). (June 25, 1948, c. 646, 62 Stat. 967; May 24, 1949, c. 139,  113, 63 Stat. 105; Oct. 31, 1951, c. 655,  52, 65 Stat. 727. As amended Apr. 24, 1996, Pub.L. 104-132, Title I,  102, 110 Stat. 1217.)  2254. State custody; remedies in Federal courts (a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. (b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant. (2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State. (3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement. (c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented. (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that (A) the claim relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. (f) If the applicant challenges the sufficiency of the evidence adduced in such State court proceeding to support the State court's determination of a factual issue made therein, the applicant, if able, shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to support such determination. If the applicant, because of indigency or other reason is unable to produce such part of the record, then the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official. If the State cannot provide such pertinent part of the record, then the court shall determine under the existing facts and circumstances what weight shall be given to the State court's factual determination. (g) A copy of the official records of the State court, duly certified by the clerk of such court to be a true and correct copy of a finding, judicial opinion, or other reliable written indicia showing such a factual determination by the State court shall be admissible in the Federal court proceeding. (h) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel for an applicant who is or becomes financially unable to afford counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18. (i) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254. (June 25, 1948, c. 646, 62 Stat. 967; Nov. 2, 1966, Pub.L. 89-711,  2, 80 Stat. 1105. As amended Apr. 24, 1996, Pub.L. 104-132, Title I,  104, 110 Stat. 1218.)  2255. Federal custody; remedies on motion attacking sentence A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. A court may entertain and determine such motion without requiring the production of the prisoner at the hearing. An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus. An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18. A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. (June 25, 1948, c. 646, 62 Stat. 967; May 24, 1949, c. 139,  114, 63 Stat. 105. As amended Apr. 24, 1996, Pub.L. 104-132, Title I,  105, 110 Stat. 1220.) Appendix B: Order of the Court Regarding Section 2254, 2255 Petitions United States Court of Appeals for the First Circuit ORDER OF COURT In an Order effective September 10, 1996, this court adopted Interim Local Rules 22.1 and 22.2 in order to implement provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") relating to the processing of applications for certificates of appealability and motions to file second or successive petitions in proceedings arising under 28 U.S.C.  2254 and 2255. The Order also rescinded Local Rule 22 relating to applications for certificates of probable cause in  2254 proceedings. The Supreme Court's decision in Lindh v. Murphy, 117 S.Ct. 2059 (1997), indicates that the subject provisions of the AEDPA do not apply in non-capital cases that were pending in the district courts or courts of appeals prior to April 24, 1996, the effective date of the AEDPA. Accordingly, our Order effective September 10, 1996 is hereby amended as follows. Local Rule 22 is reinstated and is applicable to  2254 proceedings which were pending prior to April 24, 1996. Interim Local Rules 22.1 and 22.2 shall be applied to the processing of non-capital  2254 and  2255 petitions, and to motions seeking permission to file second or successive petitions, which were filed on or after April 24, 1996. So ordered. July 22, 1997.