First Circuit Rulebook

United States Court of Appeals

For the First Circuit

Rulebook

Federal Rules of Appellate Procedure

First Circuit Local Rules

First Circuit Internal Operating Procedures

Administrative Order Regarding

Case Management /Electronic Case Files System (CM/ECF)

Rules of Attorney Disciplinary Enforcement for the

Court of Appeals for the First Circuit

Rules For Judicial-Conduct and Judicial-Disability Proceedings

Effective with amendments through October 1, 2024

Maine Massachusetts New Hampshire

Rhode Island Puerto Rico

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

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Rule 21.   Writs of Mandamus and Prohibition, and Other Extraordinary Writs ............. 36 
Local Rule 21.0.   Petitions for Special Writs ............................................................. 38 
TITLE VI.  HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS ..................... 38 
Rule 22.   Habeas Corpus and Section 2255 Proceedings ................................................ 38 
Local Rule 22.0.   Habeas Corpus; Certificate of Appealability ................................ 38 
Local Rule 22.1.   Habeas Corpus; Successive Petitions ........................................... 40 
Rule 23.   Custody or Release of a Prisoner in a Habeas Corpus Proceeding .................. 41 
Rule 24.   Proceeding in Forma Pauperis .......................................................................... 41 
TITLE VII.  GENERAL PROVISIONS ............................................................................... 43 
Rule 25.   Filing and Service ............................................................................................. 43 
Local Rule 25.0.   Electronic Case Filing System and Facsimile ............................... 45 
Rule 26.   Computing and Extending Time ...................................................................... 50 
Rule 26.1. Disclosure Statement ....................................................................................... 52 
Rule 27.   Motions ............................................................................................................. 53 
Local Rule 27.0.   Motions .......................................................................................... 55 
Rule 28.   Briefs ................................................................................................................ 56 
Local Rule 28.0.   Addendum to Briefs Required ........................................................ 58 
Local Rule 28.1.   References in Briefs to Sealed Material ........................................ 59 
Rule 28.1.   Cross-Appeals ............................................................................................... 59 
Rule 29.   Brief of an Amicus Curiae................................................................................ 61 
Rule 30.   Appendix to the Briefs ..................................................................................... 63 
Local Rule 30.0.   Appendix to the Briefs ................................................................... 65 
Rule 31.   Serving and Filing Briefs ................................................................................. 66 
Local Rule 31.0.   Filing Briefs ................................................................................... 66 
Rule 32.   Form of Briefs, Appendices, and Other Papers ................................................ 67 
Local Rule 32.0. Computer Generated Disk Requirement for Documents Filed in 
Paper Form ..................................................................................................... 70 
Local Rule 32.2.   Citation of State Decisions and Law Review Articles ................... 70 
Local Rule 32.4.   Motions for Leave to File Oversized Briefs ................................... 70 
Rule 32.1.   Citing Judicial Dispositions........................................................................... 71 
Local Rule 32.1.0.   Citation of Unpublished Dispositions ........................................ 71 
Rule 33.   Appeal Conferences ......................................................................................... 71 
Local Rule 33.0.   Civil Appeals Management Plan ................................................... 72 
Rule 34.   Oral Argument.................................................................................................. 73 
Local Rule 34.0.   Oral Argument ............................................................................... 74 
Local Rule 34.1.   Terms and Sittings ......................................................................... 75 
Rule 35.   En Banc Determination .................................................................................... 76 
Local Rule 35.0.   En Banc Determination ................................................................. 77 
Rule 36.   Entry of Judgment; Notice ............................................................................... 78 
Local Rule 36.0.   Opinions ........................................................................................ 78 
Rule 37.   Interest on Judgment ........................................................................................ 79 
Rule 38.   Frivolous Appeal—Damages and Costs .......................................................... 79 
Local Rule 38.0.   Sanctions for Vexatious Litigation ................................................ 80 
Rule 39.   Costs ................................................................................................................. 80 
Local Rule 39.0.   Taxation of Reproduction Costs .................................................... 81 
Local Rule 39.1.   Fee Applications ............................................................................ 81 
Rule 40.   Petition for Panel Rehearing ............................................................................ 82 

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Local Rule 40.0.   Petition for Panel Rehearing ......................................................... 83 
Rule 41.   Mandate: Contents; Issuance and Effective Date; Stay.................................... 84 
Local Rule 41.0.   Stay of Mandate ............................................................................. 85 
Rule 42.   Voluntary Dismissal ......................................................................................... 85 
Rule 43.   Substitution of Parties ...................................................................................... 85 
Rule 44. Case Involving a Constitutional Question When the United States or the 
Relevant State is Not a Party....................................................................................... 86 
Rule 45.   Clerk’s Duties ................................................................................................... 86 
Local Rule 45.0.   Defaults ......................................................................................... 87 
Local Rule 45.1.   The Clerk ....................................................................................... 88 
Rule 46.   Attorneys .......................................................................................................... 88 
Local Rule 46.0.   Attorneys ........................................................................................ 89 
Local Rule 46.5.   Appointment of Counsel in Criminal Cases .................................. 93 
Local Rule 46.6.   Procedure for Withdrawal in Criminal Cases .............................. 95 
Rule 47.   Local Rules by Courts of Appeals .................................................................... 97 
Local Rule 47.0.   Local Rules of the First Circuit ..................................................... 97 
Local Rule 47.1.   Judicial Conference of the First Circuit ........................................ 98 
Rule 48.   Masters ............................................................................................................. 98 
Local Rule 48.0.   Capital Cases ................................................................................ 99 
Appendix of Forms ................................................................................................................... 102 
Form 1A. Notice of Appeal to a Court of Appeals From a Judgment of a District Court .... 103 
Form 1B. Notice of Appeal to a Court of Appeals From an Appealable Order of a District 
Court ............................................................................................................................... 103 
Form 2. Notice of Appeal to a Court of Appeals From a Decision of the United States Tax 
Court ............................................................................................................................... 104 
Form 3.  Petition for Review of Order of an Agency, Board, Commission or Officer ....... 105 
Form 4.  Affidavit Accompanying Motion for Permission to Appeal in Forma Pauperis.. 107 
Form 5.  Notice of Appeal to a Court of Appeals from a Judgment or Order of a District 
Court or a Bankruptcy Appellate Panel .......................................................................... 111 
Form 6.  Certificate of Compliance With Type-Volume Limit .......................................... 112 
Form 7. Declaration of Inmate Filing ................................................................................... 113 
Appendix:  Length Limits Stated in the Federal Rules of Appellate Procedure  ............ 114 
First Circuit Internal Operating Procedures ......................................................................... 117 
Introduction ........................................................................................................................... 117 
Internal Operating Procedure I.  Court Organization .......................................................... 117 
Internal Operating Procedure II.  Attorneys ....................................................................... 117 
Internal Operating Procedure III.  Initial Procedures .......................................................... 118 
Internal Operating Procedure IV.  Docketing Procedures .................................................. 118 
Internal Operating Procedure V.  Motion Procedures......................................................... 119 
Internal Operating Procedure VI.  Briefs and Appendices ................................................. 120 
Internal Operating Procedure VII.  Screening and Calendaring ......................................... 120 
Internal Operating Procedure VIII. Oral Argument .............................................................. 120 
Internal Operating Procedure IX. Opinions & Judgments .................................................... 122 
Internal Operating Procedure X. Petitions for Panel Rehearing and Petitions for Hearing or 
Rehearing En Banc ......................................................................................................... 123 
Internal Operating Procedure XI. Complaints Against Judges ............................................. 123 
Internal Operating Procedure XII. Notification of Changes or Notifications of the Court's             
Local Rules and Internal Operating Procedures ............................................................. 123 

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ADMINISTRATIVE ORDER REGARDING CM/ECF ...................................................... 125 
Rules of Attorney Disciplinary Enforcement ......................................................................... 126 
RULE I .................................................................................................................................. 126 
Attorneys Convicted of Crimes  
RULE II ................................................................................................................................ 127 
Discipline Imposed by Other Courts  
RULE III ............................................................................................................................... 128 
Disbarment on Consent or Resignation in Other Courts  
RULE IV ............................................................................................................................... 128 
Standards for Professional Conduct 
RULE V ................................................................................................................................ 129 
Disciplinary Proceedings 
RULE VI ............................................................................................................................... 130 
Disbarment on Consent While Under Disciplinary Investigation or Prosecution.  
RULE VII.............................................................................................................................. 130 
Reinstatement.  
RULE VIII ............................................................................................................................ 132 
Attorneys Specially Admitted.  
RULE IX ............................................................................................................................... 132 
Appointment of Counsel.  
RULE X ................................................................................................................................ 132 
Duties and Powers of the Clerk.  
RULE XI ............................................................................................................................... 132 
Jurisdiction.  
RULE XII.............................................................................................................................. 133 
Effective Date.  
RULES FOR JUDICIAL-CONDUCT AND JUDICIAL-DISABILITY PROCEEDINGS.............137 

Judges of the Court

Hon. David J. Barron, Chief Judge

Hon. William J. Kayatta, Jr., Circuit Judge

Hon. Gustavo A. Gelpí, Jr., Circuit Judge

Hon. Lara E. Montecalvo, Circuit Judge

Hon. Julie Rikelman, Circuit Judge

Hon. Seth R. Aframe, Circuit Judge

Hon. Bruce M. Selya, Senior Circuit Judge

Hon. Sandra L. Lynch, Senior Circuit Judge

Hon. Kermit V. Lipez, Senior Circuit Judge

Hon. Jeffrey R. Howard, Senior Circuit Judge

Hon. O. Rogeriee Thompson, Senior Circuit Judge

Hon. Ketanji Brown Jackson, Circuit Justice

Officers of the Court

Anastasia Dubrovsky, Clerk of Court

Susan Goldberg, Circuit Executive

George P. Taoultsides, Circuit Librarian

Jane Willoughby, Senior Staff Attorney

Advisory Committee on Rules

Kelli Powell, Chair

Kaitlin Caruso

E. Niki Edmonds

Eamonn R.C. Hart

Nilda M. Navarro-Cabrer

Roberto Prats Palerm

Henry C. Quillen

David J. Zimmer

Lauren S. Zurier

Court of Appeals Miscellaneous Fee Schedule

(Issued in accordance with 28 U.S.C. § 1913)

Effective December 1, 2023

The fees included in the Court of Appeals Miscellaneous Fee Schedule are to be charged for

services provided by the courts of appeals, including relevant services provided by the bankruptcy

appellate panels established under 28 U.S. C. § 158(b)(1).

• The United States should not be charged fees under this schedule, except as prescribed

in Items 2, 4, and 5 when the information requested is available through remote electronic

access.

• Federal agencies or programs that are funded from judiciary appropriations (agencies,

organizations, and individuals providing services authorized by the Criminal Justice Act,

18 U.S.C. § 3006A, and bankruptcy administrators) should not be charged any fees under

this schedule.

(1)

For docketing a case on appeal or review, or docketing any other proceeding, $600.

• Each party filing a notice of appeal pays a separate fee to the district court, but parties

filing a joint notice of appeal pay only one fee.

• There is no docketing fee for an application for an interlocutory appeal under 28 U.S.C.

§ 1292(b) or other petition for permission to appeal under Fed. R. App. P. 5, unless the

appeal is allowed.

• There is no docketing fee for a direct bankruptcy appeal or a direct bankruptcy cross

appeal, when the fee has been collected by the bankruptcy court in accordance with item

14 of the Bankruptcy Court Miscellaneous Fee Schedule.

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

§ 1917.

[Upon filing a notice of appeal in the district court, appellant shall pay the clerk of the

district court a fee of $605, which includes the $5 statutory filing fee for the notice of appeal,

and a $600 fee for docketing the appeal in this court. Upon filing a petition for review of an

agency order or a petition for writ of mandamus, petitioner shall pay the $600 docketing fee,

payable to the Clerk, U.S. Court of Appeals.]

(2)

For conducting a search of the court of appeals or bankruptcy appellate panel records, $34 per

name or item searched. This fee applies to services rendered on behalf of the United States if

the information requested is available through remote electronic access.

(3)

For certification of any document, $12. For the issuance of an apostille, $50.

(4)

(a) For reproducing any document and providing a copy in paper form, $.50 per page.

This fee applies to services rendered on behalf of the United States if the document

requested is available through remote electronic access.

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(b) For reproducing and transmitting in any manner a copy of an electronic record

stored outside of the court's electronic case management system, including but not

limited to, document files, audio and video recordings (other than a recording of a

court proceeding), $33 per record provided.

(5)

For reproducing recordings of proceedings, regardless of the medium, $34, including the cost

of materials. This fee applies to services rendered on behalf of the United States if the

recording is available through remote electronic access.

(6)

For reproducing the record in any appeal in which the court of appeals does not require an

appendix pursuant to Fed. R. App. P.30(f), (or, in appeals before a bankruptcy appellate

panel, pursuant to Fed. R. Bankr. P. 8018(e)), $94.

(7)

For retrieval of one box of records from a Federal Records Center, National Archives, or

other storage location removed from the place of business of the court, $70. For retrievals

involving multiple boxes, $43 for each additional box. For electronic retrievals, $11 plus any

charges assessed by the Federal Records Center, National Archives, or other storage location

removed from the place of business of the courts.

(8)

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

(9)

For copies of opinions, a fee commensurate with the cost of printing, as fixed by each court

of appeal.

[Opinions may be purchased from the clerk of the court of appeals at a cost of $5 per opinion.

Opinions in electronic form are available free of charge from the court's website,

http://www.ca1.uscourts.gov.]

(10)

For copies of the local rules of court, a fee commensurate with the cost of distributing the

copies. The court may also distribute copies of the local rules without charge.

(11)

For filing:

• Any separate or joint notice of appeal or application for appeal from the bankruptcy

appellate panel, $5.

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

(12)

For counsel’s requested use of the court’s videoconferencing equipment in connection with

each oral argument, the court may charge and collect a fee of $200 per remote location.

(13)

For original admission of an attorney to practice, including a certificate of admission, $199.

For a duplicate certificate of admission or certificate of good standing, $21.

[The First Circuit collects a local attorney admission fee of $50.00 in addition to the national

attorney admission fee of $199.00 imposed by this fee schedule pursuant to 28 U.S.C. § 1913.

See 1st Cir. R. 46.0(a)(1). Absent a waiver, the payment of the combined fee of $249.00 must

be paid electronically using the court's Case Management/Electronic Case Files

("CM/ECF") system.]

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Notice to Litigants

To assist litigants in preparing documents that conform to the Federal Rules of Appellate

Procedure [Fed. R. App. P.] and the Local Rules of this Court [1st Cir. R.], the Clerk's Office has

compiled a list of common, but easily avoidable, errors that often delay the processing of cases

and may result in the striking or returning for correction of submitted documents.

Ordering Transcripts

Requests for transcripts must be made to the court reporter immediately and a copy filed in the

district court. The Transcript Order form specified in Local Rule 10.0(b) must be used. Counsel

must accurately complete the form and arrange for payment for the Order to be effective. See

1st Cir. R. 10.0.

Form of Briefs

The parties must carefully comply with the margin, print size and word limit requirements of

Fed. R. App. P. 32.

Contents of Briefs

The parties are directed to Fed. R. App. P. 28, which sets forth the contents of briefs. The

required sections must be under the appropriate headings and in the order indicated by the rule.

The appellant’s brief must also include an addendum. See 1st Cir. R. 28.0.

References in Briefs to the Record Required

To enable the Court to verify the documentary basis of the parties' arguments, factual assertions

must be supported by accurate references to the appendix or to the record. Counsel and parties

should ensure that transcripts cited in the briefs have been filed and made a part of the record on

appeal. The appellant is responsible for preparing an appendix in accordance with Fed. R. App.

P. 30 and 1st Cir. R. 30.0, with each page clearly numbered.

Motions to Enlarge Filing Dates or Length of Briefs

Motions to enlarge time to file briefs or to file briefs in excess of applicable length limitations

are discouraged. Any such request must be made by a motion filed well before the expiration of

the time limit for filing the brief. See 1st Cir. R. 32.4.

Disclosure Statement

Counsel representing a nongovernmental corporation must include a disclosure statement as

specified in Fed. R. App. P. 26.1 in the first document submitted for filing with the Court, and

again in front of the table of contents in the party's principal brief. A disclosure statement must

be filed even if the party has no information to disclose.

Certificate of Service

The Court will not consider any motion, brief, or document that has not been served on all

parties. The Notice of Docket Activity that is generated by the court's electronic filing system

constitutes service on all ECF filers. 1st Cir. R. 25.0(e). If a certificate of service is required by

Fed. R. App. P. 25(d), it should be attached to the document's last page and indicate: the date of

service; the manner of service; and the names and addresses of the persons served. See Fed. R.

App. P. 25(d).

Federal Rules of Appellate Procedure

and First Circuit Local Rules

TITLE I. APPLICABILITY OF RULES

Rule 1. Scope of Rules; Definition; Title

(a)

Scope of Rules.

(1)

These rules govern procedure in the United States courts of appeals.

(2)

When these rules provide for filing a motion or other document in the district court, the

procedure must comply with the practice of the district court.

(b)

Definition. In these rules, ‘state’ includes the District of Columbia and any United States

commonwealth or territory.

(c)

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

Rule 2. Suspension of Rules

(a) In a Particular Case. On its own or a party’s motion, a court of appeals may — to expedite

its decision or for other good cause — suspend any provision of these rules in a particular

case and order proceedings as it directs, except as otherwise provided in Rule 26(b).

(b) In an Appellate Rules Emergency.

(1) Conditions for an Emergency. The Judicial Conference of the United States may

declare an Appellate Rules emergency if it determines that extraordinary

circumstances relating to public health or safety, or affecting physical or electronic

access to a court, substantially impair the court's ability to perform its functions in

compliance with these rules.

(2) Content. The declaration must:

(A) designate the circuit or circuits affected; and

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

(3) Early Termination. The Judicial Conference may terminate a declaration for one

or more circuits before the termination date.

(4) Additional Declarations. The Judicial Conference may issue additional

declarations under this rule.

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

may:

(A) Suspend in all or part of that circuit any provision of these rules, other than

time limits imposed by statute and described in Rule 26(b)(1)-(2); and

(B) order proceedings as it directs.

TITLE II. 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.

(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– or the appealable order– from which the appeal is taken; and

(C)

name the court to which the appeal is taken.

(2) A pro se notice of appeal is considered filed on behalf of the signer and the signer’s spouse

and minor children (if they are parties), unless the notice clearly indicates otherwise.

(3) In a class action, whether or not the class has been certified, the notice of appeal is

sufficient if it names one person qualified to bring the appeal as representative of the class.

(4) The notice of appeal encompasses all orders that, for purposes of appeal, merge into the

designated judgment or appealable order. It is not necessary to designate those orders in

the notice of appeal.

(5) In a civil case, a notice of appeal encompasses the final judgment, whether or not that

judgment is set out in a separate document under Federal Rules of Civil Procedure 58, if

the notice designates:

(A)

an order that adjudicates all remaining claims and the rights and liabilities of all

remaining parties; or

(B)

an order described in Rule 4(a)(4)(A).

(6) An appellant may designate only part of a judgment or appealable order by expressly

stating that the notice of appeal is so limited. Without such an express statement, specific

designations do not limit the scope of the notice of appeal.

(7) An appeal must not be dismissed for informality of form or title of the notice of appeal, for

failure to name a party whose intent to appeal is otherwise clear from the notice, or for

failure to properly designate the judgment if the notice of appeal was filed after entry of

the judgment and designates an order that merged into that judgment.

(8) Forms 1A and 1B in the Appendix of Forms are suggested forms of notices of appeal.

(d) Serving the Notice of Appeal.

(1) The district clerk must serve notice of the filing of a notice of appeal by sending a copy to

each party’s counsel of record — excluding the appellant’s — or, if a party is proceeding

pro se, to the party’s last known address. When a defendant in a criminal case appeals, the

clerk must also serve a copy of the notice of appeal on the defendant. The clerk must

promptly send a copy of the notice of appeal and of the docket entries — and any later

docket entries — to the clerk 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 sends copies,

with the date of sending. Service is sufficient despite the death of a party or the party’s

counsel.

(e) Payment of Fees. Upon filing a notice of appeal, the appellant must pay the district clerk all

required fees. The district clerk receives the appellate docket fee on behalf of the court of

appeals.

Local Rule 3.0. Docketing Statement Required; Dismissals for Want of Diligent Prosecution

(a) Docketing Statement Required. To provide the clerk of the Court of Appeals at the

commencement of an appeal with the information needed for effective case management,

within 14 days after the case is docketed in the court of appeals, the person or persons taking

the appeal must submit a separate statement listing all parties to the appeal, the last known

counsel, and last known addresses and e-mail addresses for counsel and unrepresented

parties. Errors or omissions in this separate statement alone shall not otherwise affect the

appeal if the notice of appeal itself complies with this rule.

(1) Form. Counsel filing an appeal must complete and file a docketing statement, using the

form provided by the clerk of the appeals court.

(2) Service. A copy of the docketing statement and any attachments must be served on the

opposing party or parties at the time the docketing statement is filed.

(3) Duty of Opposing Party. If an opposing party concludes that the docketing statement is

in any way inaccurate, incomplete, or misleading, the clerk’s office must be informed in

writing of any errors and any proposed additions or corrections within fourteen days of

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

(b) If appellant does not pay the docket fee within 14 days of the filing of the notice of appeal, or

does not file the docketing statement or any other document within the time set by the court,

the appeal may be dismissed for want of diligent prosecution.

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

[Abrogated]

Rule 4. Appeal as of Right — When Taken

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of

appeal required by Rule 3 must be filed with the district clerk within 30 days after

entry of the judgment or order appealed from.

(B) The notice of appeal may be filed by any party within 60 days after entry of the

judgment or order appealed from if one of the parties is:

(i) the United States;

(ii) a United States agency;

(iii) a United States officer or employee sued in an official capacity; or

(iv) a current or former United States officer or employee sued in an individual

capacity for an act or omission occurring in connection with duties performed on

the United States' behalf—including all instances in which the United States

represents that person when the judgment or order is entered or files the appeal

for that person.

nobis is an appeal in a civil case for purposes of Rule 4(a).

(2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a

decision or order—but before the entry of the judgment or order—is treated as filed on the

date of and after the entry.

(3) Multiple Appeals. If one party timely files a notice of appeal, any other party may file a

notice of appeal within 14 days after the date when the first notice was filed, or within the

time otherwise prescribed by this Rule 4(a), whichever period ends later.

(4) Effect of a Motion on a Notice of Appeal.

(A) If a party files in the district court any of the following motions under the Federal

Rules of Civil Procedure—and does so within the time allowed by those rules—the

time to file an appeal runs for all parties from the entry of the order disposing of the

last such remaining motion:

(i) for judgment under Rule 50(b);

(ii) to amend or make additional factual findings under Rule 52(b), whether or not

granting the motion would alter the judgment;

(iii) for attorney’s fees under Rule 54 if the district court extends the time to appeal

under Rule 58;

(iv) to alter or amend the judgment under Rule 59;

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the motion is filed within the time allowed for filing a

motion under Rule 59.

(B) (i) If a party files a notice of appeal after the court announces or enters a judgment—

but before it disposes of any motion listed in Rule 4(a)(4)(A)—the notice becomes

effective to appeal a judgment or order, in whole or in part, when the order

disposing of the last such remaining motion is entered.

(ii)

A party intending to challenge an order disposing of any motion listed in Rule

4(a)(4)(A), or a judgment’s alteration or amendment upon such a motion, must

file a notice of appeal, or an amended notice of appeal—in compliance with Rule

3(c)—within the time prescribed by this Rule measured from the entry of the order

disposing of the last such remaining motion.

(iii)

No additional fee is required to file an amended notice.

(5) Motion for Extension of Time.

(A) The district court may extend the time to file a notice of appeal if:

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

expires; and

(ii) regardless of whether its motion is filed before or during the 30 days after the time

prescribed by this Rule 4(a) expires, that party shows excusable neglect or good

cause.

(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may

be ex parte unless the court requires otherwise. If the motion is filed after the

expiration of the prescribed time, notice must be given to the other parties in

accordance with local rules.

14 days after the date when the order granting the motion is entered, whichever is

later.

(6) Reopening the Time to File an Appeal. The district court may reopen the time to file an

appeal for a period of 14 days after the date when its order to reopen is entered, but only

if all the following conditions are satisfied:

(A) the court finds that the moving party did not receive notice under Federal Rule of Civil

Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21

days after entry;

(B) the motion is filed within 180 days after the judgment or order is entered or within 14

days after the moving party receives notice under Federal Rule of Civil Procedure

77(d) of the entry, whichever is earlier; and

(7) Entry Defined.

(A) A judgment or order is entered for purposes of this Rule 4(a):

(i) if Federal Rule of Civil Procedure 58(a) does not require a separate document,

when the judgment or order is entered in the civil docket under Federal Rule of

Civil Procedure 79(a); or

(ii) if Federal Rule of Civil Procedure 58(a) requires a separate document, when the

judgment or order is entered in the civil docket under Federal Rule of Civil

Procedure 79(a) and when the earlier of these events occurs:

• the judgment or order is set forth on a separate document, or

• 150 days have run from entry of the judgment or order in the civil docket under

Federal Rule of Civil Procedure 79(a).

(B) A failure to set forth a judgment or order on a separate document when required by

Federal Rule of Civil Procedure 58(a) does not affect the validity of an appeal from

that judgment or order.

(b) Appeal in a Criminal Case.

(1) Time for Filing a Notice of Appeal.

(A) In a criminal case, a defendant’s notice of appeal must be filed in the district court

within 14 days after the later of:

(i) the entry of either the judgment or the order being appealed; or

(ii) the filing of the government’s notice of appeal.

(B) When the government is entitled to appeal, its notice of appeal must be filed in the

district court within 30 days after the later of:

(i) the entry of the judgment or order being appealed; or

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

(2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a

decision, sentence, or order — but before the entry of the judgment or order — is treated

as filed on the date of and after the entry.

(3) Effect of a Motion on a Notice of Appeal.

(A) If a defendant timely makes any of the following motions under the Federal Rules of

Criminal Procedure, the notice of appeal from a judgment of conviction must be filed

within 14 days after the entry of the order disposing of the last such remaining motion,

or within 14 days after the entry of the judgment of conviction, whichever period ends

later. This provision applies to a timely motion:

(i) for judgment of acquittal under Rule 29;

(ii) for a new trial under Rule 33, but if based on newly discovered evidence, only if

the motion is made no later than 14 days after the entry of the judgment; or

(iii) for arrest of judgment under Rule 34.

(B) A notice of appeal filed after the court announces a decision, sentence, or order — but

before it disposes of any of the motions referred to in Rule 4(b)(3)(A) — becomes

effective upon the later of the following:

(i) the entry of the order disposing of the last such remaining motion; or

(ii) the entry of the judgment of conviction.

disposing of any of the motions referred to in Rule 4(b)(3)(A).

(4) Motion for Extension of Time. Upon a finding of excusable neglect or good cause, the

district court may — before or after the time has expired, with or without motion and

notice — extend the time to file a notice of appeal for a period not to exceed 30 days from

the expiration of the time otherwise prescribed by this Rule 4(b).

(5) Jurisdiction. The filing of a notice of appeal under this Rule 4(b) does not divest a district

court of jurisdiction to correct a sentence under Federal Rule of Criminal Procedure 35(a),

nor does the filing of a motion under 35(a) affect the validity of a notice of appeal filed

before entry of the order disposing of the motion. The filing of a motion under Federal

Rule of Criminal Procedure 35(a) does not suspend the time for filing a notice of appeal

from a judgment of conviction.

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

entered on the criminal docket.

(1) If an institution has a system designed for legal mail, an inmate confined there must use

that system to receive the benefit of this Rule 4(c)(1). If an inmate files a notice of appeal in

either a civil or a criminal case, the notice is timely if it is deposited in the institution’s

internal mail system on or before the last day for filing and:

(A) it is accompanied by:

(i) a declaration in compliance with 28 U.S.C. § 1746—or a notarized statement—

setting out the date of deposit and stating that first-class postage is being prepaid;

(ii) evidence (such as a postmark or date stamp) showing that the notice was so

deposited and that postage was prepaid; or

(B) the court of appeals exercises its discretion to permit the later filing of a declaration

or notarized statement that satisfies Rule 4(c)(1)(A)(i).

(2) If an inmate files the first notice of appeal in a civil case under this Rule 4(c), the 14-day

period provided in Rule 4(a)(3) for another party to file a notice of appeal runs from the

date when the district court dockets the first notice.

(3) When a defendant in a criminal case files a notice of appeal under this Rule 4(c), the 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 with the circuit clerk and serve it on all other parties to the

district-court action.

(2) The petition must be filed within the time specified by the statute or rule authorizing the

appeal or, if no such time is specified, within the time provided by Rule 4(a) for filing a

notice of appeal.

(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;

(D) the reasons why the appeal should be allowed and is authorized by a statute or rule;

and

(E) an attached copy of:

(i) the order, decree, or judgment complained of and any related opinion or

memorandum; and

(ii) any order stating the district court’s permission to appeal or finding that the

necessary conditions are met.

(2) A party may file an answer in opposition or a cross-petition within 10 days after the

petition is served.

(3) The petition and answer will be submitted without oral argument unless the court of

appeals orders otherwise.

32(c)(2). An original and 3 copies must be filed unless the court requires a different number

by local rule or by order in a particular case. Except by the court's permission, and excluding

the accompanying documents required by Rule 5(b)(1)(E):

(1) a paper produced using a computer must not exceed 5,200 words; and

(2) a handwritten or typewritten paper must not exceed 20 pages.

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

(1) Within 14 days after the entry of the order granting permission to appeal, the appellant

must:

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

(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

(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)(1) 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 with

these qualifications:

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

(B) the reference in Rule 3(c) to “Forms 1A and 1B in the Appendix of Forms” must be

read as a reference to Form 5;

any applicable rule, means “appellate panel”; and

(D) in Rule 12.1, “district court” includes a bankruptcy court or bankruptcy appellate

panel.

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

rules apply:

(A) Motion for Rehearing.

(i) If a timely motion for rehearing under Bankruptcy Rule 8022 is filed, the time to

appeal for all parties runs from the entry of the order disposing of the motion. A

notice of appeal filed after the district court or bankruptcy appellate panel

announces or enters a judgment, order, or decree — but before disposition of the

motion for rehearing — becomes effective when the order disposing of the motion

for rehearing is entered.

(ii) If a party intends to challenge the order disposing of the motion – or the alteration

or amendment of a judgment, order, or decree upon the motion – then the party,

in compliance with Rules 3(c) and 6(b)(1)(B), must file a notice of appeal or

amended notice of appeal. The notice or amended notice must be filed within the

time prescribed by Rule 4 – excluding Rules 4(a)(4) and 4(b) – measured from the

entry of the order disposing of the motion.

(iii) No additional fee is required to file an amended notice.

(B) The Record on Appeal.

(i) Within 14 days after filing the notice of appeal, the appellant must file with the

clerk possessing the record assembled in accordance with Bankruptcy Rule 8009

— and serve on the appellee — a statement of the issues to be presented on appeal

and a designation of the record to be certified and made available to the circuit

clerk.

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

14 days after being served with the appellant’s designation, file with the clerk and

serve on the appellant a designation of additional parts to be included.

(iii) The record on appeal consists of:

• the redesignated record as provided above;

• the proceedings in the district court or bankruptcy appellate panel; and

• a certified copy of the docket entries prepared by the clerk under Rule 3(d).

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

must number the documents constituting the record and promptly make it

available to the circuit clerk. If the clerk makes the record available in paper form,

the clerk will not send documents of unusual bulk or weight, physical exhibits

other than documents, or other parts of the record designated for omission by local

rule of the court of appeals, unless directed to do so by a party or the circuit clerk.

If unusually bulky or heavy exhibits are to be made available in

paper form, a party must arrange with the clerks in advance for their transportation

and receipt.

(ii) All parties must do whatever else is necessary to enable the clerk to assemble the

record and make it available. When the record is made available in paper form,

the court of appeals may provide by rule or order that a certified copy of the docket

entries be made available in place of the redesignated record. But any party may

request at any time during the pendency of the appeal that the redesignated record

be made available.

(D) Filing the Record. When the district clerk or bankruptcy-appellate-panel clerk has

made the record available, the circuit clerk must note that fact on the docket. The date

noted on the docket serves as the filing date of the record. The circuit clerk must

immediately notify all parties of the filing date.

(1) Applicability of Other Rules. These rules apply to a direct appeal by permission under

28 U.S.C. § 158(d)(2), but with these qualifications:

(A) Rules 3-4, 5(a)(3), 6(a), 6(b), 8(a), 8(c), 9-12, 13-20, 22-23, and 24(b) do not apply;

(B) as used in any applicable rule, “district court” or “district clerk” includes – to the

extent appropriate – a bankruptcy court or bankruptcy appellate panel or its clerk; and

Rules 6(c)(2)(B) and (C).

(2) Additional Rules. In addition, the following rules apply:

(A) The Record on Appeal. Bankruptcy Rule 8009 governs the record on appeal.

(B) Making the Record Available. Bankruptcy Rule 8010 governs completing the record

and making it available.

(D) Duties of the Circuit Clerk. When the bankruptcy clerk has made the record

available, the circuit clerk must note that fact on the docket. The date noted on the

docket serves as the filing date of the record. The circuit clerk must immediately notify

all parties of the filing date.

(E) Filing a Representation Statement. Unless the court of appeals designates another

time, within 14 days after entry of the order granting permission to appeal, the attorney

who sought permission must file a statement with the circuit clerk naming the parties

that the attorney represents on appeal.

Rule 7. Bond for Costs on Appeal in a Civil Case

In a civil case, the district court may require an appellant to file a bond or provide other security

in any form and amount necessary to ensure payment of costs on appeal. Rule 8(b) applies to a

surety on a bond given under this rule.

Rule 8. Stay or Injunction Pending Appeal

(a) Motion for Stay.

(1) Initial Motion in the District Court. 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 bond or other security provided to obtain a stay of judgment; or

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.

(D) A motion under this Rule 8(a)(2) must be filed with the circuit clerk and normally will

be considered by a panel of the court. But in an exceptional case in which time

requirements make that procedure impracticable, the motion may be made to and

considered by a single judge.

(E) The court may condition relief on a party’s filing a bond or other security in the district

court.

(b) Proceeding Against a Security Provider. If a party gives security with one or more security

providers, each provider submits to the jurisdiction of the district court and irrevocably

appoints the district clerk as its agent on whom any papers affecting its liability on the security

may be served. On motion, a security provider's liability may be enforced in the district court

without the necessity of an independent action. The motion and any notice that the district

court prescribes may be served on the district clerk, who must promptly send a copy to each

security provider whose address is known.

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.

the applicable provisions of 18 U.S.C. §§ 3142, 3143, and 3145(c).

Local Rule 9.0. Recalcitrant Witnesses

(a) A recalcitrant witness who is held in contempt for refusal to testify is entitled to disposition of

the recalcitrant witness’s appeal within thirty days if the recalcitrant witness is denied bail,

and the government is entitled to equal promptness if bail is granted. The unsuccessful party

on the bail issue may waive the thirty day statutory requirement by filing a written waiver with

the clerk of this court.

(b) The district court shall allow bail, with or without surety, unless the appeal appears frivolous,

but a condition shall be the filing of a notice of appeal forthwith, and obedience to all

subsequent orders with respect to briefing and argument. Except for cause shown the district

court shall not, in any case, order a witness committed for the first forty-eight hours after the

date of the order.

reviewed by the court of appeals or a judge thereof.

Rule 10. The Record on Appeal

(a) Composition of the Record on Appeal. The following items constitute the record on appeal:

(1) the original papers and exhibits filed in the district court;

(2) the transcript of proceedings, if any; and

(3) a certified copy of the docket entries prepared by the district clerk.

(b) The Transcript of Proceedings.

(1) Appellant’s Duty to Order. Within 14 days after filing the notice of appeal or entry of an

order disposing of the last timely remaining motion of a type specified in Rule 4(a)(4)(A),

whichever is later, the appellant must do either of the following:

(A) order from the reporter a transcript of such parts of the proceedings not already on file

as the appellant considers necessary, subject to a local rule of the court of appeals and

with the following qualifications:

(i) the order must be in writing;

(ii) if the cost of the transcript is to be paid by the United States under the Criminal

Justice Act, the order must so state; and

(iii) the appellant must, within the same period, file a copy of the order with the district

clerk; or

(B) file a certificate stating that no transcript will be ordered.

(2) Unsupported Finding or Conclusion. If the appellant intends to urge on appeal that a

finding or conclusion is unsupported by the evidence or is contrary to the evidence, the

appellant must include in the record a transcript of all evidence relevant to that finding or

conclusion.

(3) Partial Transcript. Unless the entire transcript is ordered:

(A) the appellant must — within the 14 days provided in Rule 10(b)(1) — file a statement

of the issues that the appellant intends to present on the appeal and must serve on the

appellee a copy of both the order or certificate and the statement;

(B) if the appellee considers it necessary to have a transcript of other parts of the

proceedings, the appellee must, within 14 days after the service of the order or

certificate and the statement of the issues, file and serve on the appellant a designation

of additional parts to be ordered; and

such parts, and has so notified the appellee, the appellee may within the following 14

days either order the parts or move in the district court for an order requiring the

appellant to do so.

(4) Payment. At the time of ordering, a party must make satisfactory arrangements with the

reporter for paying the cost of the transcript.

Transcript Is Unavailable. If the transcript of a hearing or trial is unavailable, the appellant

may prepare a statement of the evidence or proceedings from the best available means,

including the appellant’s recollection. The statement must be served on the appellee, who may

serve objections or proposed amendments within 14 days after being served. The statement

and any objections or proposed amendments must then be submitted to the district court for

settlement and approval. As settled and approved, the statement must be included by the

district clerk in the record on appeal.

(d) Agreed Statement as the Record on Appeal. In place of the record on appeal as defined in

Rule 10(a), the parties may prepare, sign, and submit to the district court a statement of the

case showing how the issues presented by the appeal arose and were decided in the district

court. The statement must set forth only those facts averred and proved or sought to be proved

that are essential to the court’s resolution of the issues. If the statement is truthful, it —

together with any additions that the district court may consider necessary to a full presentation

of the issues on appeal — must be approved by the district court and must then be certified to

the court of appeals as the record on appeal. The district clerk must then send it to the circuit

clerk within the time provided by Rule 11. A copy of the agreed statement may be filed in

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

(3) All other questions as to the form and content of the record must be presented to the court

of appeals.

Local Rule 10.0. Ordering Transcripts

(a) Timely Filing. Fed. R. App. P. 10(b) requires that the transcript be ordered within 14 days

of the filing of the notice of appeal. Parties are nevertheless urged to order any necessary

transcript immediately after the filing of the notice. If the appellant fails to timely order a

transcript in writing from the court reporter, the appeal may be dismissed for want of diligent

prosecution.

(b) Transcript Order/Report. A Transcript Order/Report, in the form prescribed by this court,

shall be used to satisfy the requirements of Fed. R. App. P. 10(b).

United States under the Criminal Justice Act, counsel must complete and attach CJA form 24

to the Transcript Order/Report so as to satisfy the requirement of Fed. R. App. P. 10(b)(4).

(d) Caveat. The court is of the opinion that in many cases a transcript is not really needed, and

makes for delay and expense, as well as unnecessarily large records. The court urges counsel

to endeavor, in appropriate cases, to enter into stipulations that will avoid or reduce

transcripts. See Fed. R. App. P. 30(b). However, if an agreed statement of the evidence is

contemplated, counsel are reminded of Fed. R. App. P. 10(c) requiring submission to the

district court for approval. The fourteen-day ordering rule will not be suspended because of

such activity, however, except by order of the court for good cause shown.

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.

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.

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 bond or other security provided to

obtain a stay of judgment; or

• for any other intermediate order —

the district clerk must send the court of appeals any parts of the record designated by any party.

Local Rule 11.0. Transmission of the Record, Sealed Documents

(a) Duty of Appellant. In addition to an appellant’s duties under Fed. R. App. P. 11(a), it is an

appellant’s responsibility to see that the record, as certified, is complete.

(b) Transmission of the Record. The district court will not transmit the full record except upon

request of the circuit clerk. Rather, the district court will transmit to the circuit clerk

electronically a copy of the notice of appeal, the order(s) being appealed, and a certified copy

of the district court docket report in lieu of transmitting the entire record. Sealed documents

will not be included in this abbreviated electronic record. Rather, any sealed documents or

sealed docket reports/entries will be transmitted to the circuit clerk in hard copy whether or

not electronically available. In addition, any papers and exhibits which are not electronically

available will also be transmitted to the circuit clerk. The entire electronic district court

record is available to the court of appeals whether or not individual documents are

transmitted as part of the abbreviated electronic record or later supplemented.

(1) Materials Sealed by District Court or Agency Order. The court of appeals expects that

ordinarily motions to seal all or part of a district court or agency record will be presented

to, and resolved by, the lower court or agency. Motions, briefs, transcripts, and other

materials which were filed with the district court or agency under seal and which

constitute part of the record transmitted to the court of appeals shall be clearly labeled as

sealed when transmitted to the court of appeals and will remain under seal until further

order of court.

(2) Motions to Seal in the Court of Appeals. In order to seal in the court of appeals materials

not already sealed in the district court or agency (e.g., a brief or unsealed portion of the

record), a motion to seal must be filed in paper form in the court of appeals; parties cannot

seal otherwise public documents merely by agreement or by labeling them “sealed.” A

motion to seal, which should not itself be filed under seal, must explain the basis for

sealing and specify the desired duration of the sealing order. If discussion of confidential

material is necessary to support the motion to seal, that discussion shall be confined to an

affidavit or declaration, which may be filed provisionally under seal. A motion to seal may

be filed before the sealed material is submitted or, alternatively the item to be sealed (e.g.,

the brief) may be tendered with the motion and, upon request, will be accepted

provisionally under seal, subject to the court’s subsequent ruling on the motion. Material

submitted by a party under seal, provisionally or otherwise must be stamped or labeled by

the party on the cover “FILED UNDER SEAL.” If the court of appeals denies the movant’s

motion to seal, any materials tendered under provisional seal will be returned to the

movant. Motions to seal or sealed documents should never be filed electronically. See 1st

Cir. R. 25.0.

(3) Limiting Sealed Filings. Rather than automatically requesting the sealing of an entire

brief, motion, or other filing, litigants should consider whether argument relating to

sealed materials may be contained in separate supplemental brief, motion, or filing, which

may then be sealed in accordance with the procedures in subsection (2).

(d) References to Sealed Materials.

(1) Records or materials sealed by district court, court of appeals, or agency order shall not

be included in the regular appendix, but may be submitted in a separate, sealed

supplemental volume of appendix. The sealed supplemental volume must be clearly and

prominently labeled by the party on the cover “FILED UNDER SEAL.”

(2) In addressing material under seal in an unsealed brief or motion or oral argument counsel

are expected not to disclose the substance of the sealed material and to apprise the court

that the material in question is sealed. If the record contains sealed materials of a

sensitive character, counsel would be well advised to alert the court to the existence of

such materials and their location by a footnote appended to the “Statement of the Case”

caption in the opening or answering brief.

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

(a) Docketing the Appeal. Upon receiving the copy of the notice of appeal and the docket entries

from the district clerk under Rule 3(d), the circuit clerk must docket the appeal under the title

of the district-court action and must identify the appellant, adding the appellant’s name if

necessary.

(b) Filing a Representation Statement. Unless the court of appeals designates another time, the

attorney who filed the notice of appeal must, within 14 days after filing the notice, file a

statement with the circuit clerk naming the parties that the attorney represents on appeal.

or district clerk’s certificate as provided in Rule 11, the circuit clerk must file it and

immediately notify all parties of the filing date.

Local Rule 12.0. Appearance, Withdrawal of Appearance

(a) Representation Statement, Appearance. A representation statement must take the form of an

appearance, in a form prescribed by this court. Attorneys for both appellant and appellee

must file appearance forms within 14 days after the case is docketed in the court of appeals.

See also 1st Cir. R. 46.0(a). Additional or new attorneys for the parties may enter an

appearance outside the 14 day period. However, in no event may any attorney file a notice of

appearance without leave of court after the appellee brief has been filed.

(b) Withdrawal of Appearance. No attorney who has entered an appearance in this court may

withdraw without the consent of the court. An attorney who has represented a defendant in a

criminal case in the district court will be responsible for representing the defendant on appeal,

whether or not the attorney has entered an appearance in the Court of Appeals, until the

attorney is relieved of such duty by the court. Procedures for withdrawal in criminal cases

are found in 1st Cir. R. 46.6. For requirements applying to court-appointed counsel, reference

is made to 1st Cir. R. 46.5(c), the Criminal Justice Plan of this Circuit.

Rule 12.1. Remand After an Indicative Ruling by the District Court on a Motion for Relief

That Is Barred by a Pending Appeal

(a) Notice to the Court of Appeals. If a timely motion is made in the district court for relief that

it lacks authority to grant because of an appeal that has been docketed and is pending, the

movant must promptly notify the circuit clerk if the district court states either that it would

grant the motion or that the motion raises a substantial issue.

(b) Remand After an Indicative Ruling. If the district court states that it would grant the motion

or that the motion raises a substantial issue, the court of appeals may remand for further

proceedings but retains jurisdiction unless it expressly dismisses the appeal. If the court of

appeals remands but retains jurisdiction, the parties must promptly notify the circuit clerk

when the district court has decided the motion on remand.

TITLE III. APPEALS FROM THE UNITED STATES TAX COURT

Rule 13. Appeals From the Tax Court

(a) Appeal as of Right.

(1) How Obtained; Time for Filing a Notice of Appeal.

(A) An appeal as of right from the United States Tax Court is commenced by filing a

notice of appeal with the Tax Court clerk within 90 days after the entry of the Tax

Court’s decision. At the time of filing, the appellant must furnish the clerk with

enough copies of the notice to enable the clerk to comply with Rule 3(d). If one party

files a timely notice of appeal, any other party may file a notice of appeal within 120

days after the Tax Court’s decision is entered.

(B) If, under Tax Court rules, a party makes a timely motion to vacate or revise the Tax

Court’s decision, the time to file a notice of appeal runs from the entry of the order

disposing of the motion or from the entry of a new decision, whichever is later.

(2) Notice of Appeal; How Filed. The notice of appeal may be filed either at the Tax Court

clerk’s office in the District of Columbia or by sending it to the clerk. If sent by mail the

notice is considered filed on the postmark date, subject to § 7502 of the Internal Revenue

Code, as amended, and the applicable regulations.

(3) Contents of the Notice of Appeal; Service; Effect of Filing and Service. Rule 3

prescribes the contents of a notice of appeal, the manner of service, and the effect of its

filing and service. Form 2 in the Appendix of Forms is a suggested form of a notice of

appeal.

(4) The Record on Appeal; Forwarding; Filing.

(A) Except as otherwise provided under Tax Court rules for the transcript of proceedings,

the appeal is governed by the parts of Rules 10, 11, and 12 regarding the record on

appeal from a district court, the time and manner of forwarding and filing, and the

docketing in the court of appeals.

(B) If an appeal is taken to more than one court of appeals, the original record must be

sent to the court named in the first notice of appeal filed. In an appeal to any other

court of appeals, the appellant must apply to that other court to make provision for the

record.

(b) Appeal by Permission. An appeal by permission is governed by Rule 5.

Rule 14. Applicability of Other Rules to Appeals from the Tax Court

All provisions of these rules, except Rules 4, 6-9, 15-20, and 22-23, apply to appeals from the

Tax Court. References in any applicable rule (other than Rule 24(a)) to the district court and district

clerk are to be read as referring to the Tax Court and its clerk.

TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN

ADMINISTRATIVE AGENCY, BOARD, COMMISSION, OR OFFICER

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

(a) Petition for Review; Joint Petition.

(1) Review of an agency order is commenced by filing, within the time prescribed by law, a

petition for review with the clerk of a court of appeals authorized to review the agency

order. If their interests make joinder practicable, two or more persons may join in a petition

to the same court to review the same order.

(2) The petition must:

(A) name each party seeking review either in the caption or the body of the petition —

using such terms as “et al.,” “petitioners”, or “respondents” does not effectively name

the parties;

(B) name the agency as a respondent (even though not named in the petition, the United

States is a respondent if required by statute); and

(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 21 days after the application for enforcement is filed, the respondent must serve

on the applicant an answer to the application and file it with the clerk. If the respondent

fails to answer in time, the court will enter judgment for the relief requested.

(3) The application must contain a concise statement of the proceedings in which the order

was entered, the facts upon which venue is based, and the relief requested.

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;

(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;

(ii) originals or copies of affidavits or other sworn statements supporting facts subject

to dispute; and

(iii) relevant parts of the record.

(D) The motion must be filed with the circuit clerk and normally will be considered by a

panel of the court. But in an exceptional case in which time requirements make that

procedure impracticable, the motion may be made to and considered by a single judge.

(b) Bond. The court may condition relief on the filing of a bond or other appropriate security.

Local Rule 18.0 Stay in Immigration Cases; Notification of Removal Date

In order to ensure the orderly presentation of issues placed before this Court in immigration

cases and to preserve the Court's ability to make considered decisions in such cases, the Court

adopts the following policy, which applies to petitions for review and to appeals from district court

habeas proceedings (collectively, for purposes of this rule, "petitions").

If the government has scheduled the removal of a petitioner, then the government will file with

the Court a notice identifying the earliest date upon which removal may be made. The notice

must be filed by the later of: one day after a petition is docketed in the court of appeals and

notification is transmitted to the government via the court's CM/ECF system or immediately

once removal is scheduled. The absence of any such notice will be deemed a representation by

counsel for the government that the government has not yet scheduled the removal of the

petitioner.

When a first motion for stay of removal is timely filed in this court and notification is

transmitted to the government via the court's CM/ECF system, the clerk will enter an

administrative order staying removal for ten business days. The government shall file its

response to the motion for stay of removal by the later of: two business days after the filing of

the first motion for stay of removal; or, ten business days prior to the earliest possible date of

removal; provided, however, that any response must be filed within the time period specified

by Fed. R. App. P. 27(a)(3)(A). Upon motion and good cause, any of these deadlines, as well

as the duration of the stay, may be revised in a particular case. This paragraph applies only

to the first timely motion to stay removal filed in an individual case in this court. For purposes

of this paragraph only, a first motion to stay removal will be deemed timely if filed by the later

of: the docketing of the petition; or two business days after the filing of a notice by the

government as provided in paragraph 1, above. If petitioner is pro se, this deadline shall not

apply, but any stay motion should be filed as expeditiously as possible.

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

When the court files an opinion directing entry of judgment enforcing the agency’s order in

part, the agency must within 14 days file with the clerk and serve on each other party a proposed

judgment conforming to the opinion. A party who disagrees with the agency’s proposed judgment

must within 10 days file with the clerk and serve the agency with a proposed judgment that the

party believes conforms to the opinion. The court will settle the judgment and direct entry without

further hearing or argument.

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

All provisions of these rules, except Rules 3-14 and 22-23, apply to the review or enforcement

of an agency order. In these rules, “appellant” includes a petitioner or applicant, and “appellee”

includes a respondent.

TITLE V. 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 the

petition with the circuit clerk and serve it on all parties to the proceeding in the trial court.

The party must also provide a copy to the trial-court judge. All parties to the proceeding

in the trial court other than the petitioner are respondents for all purposes.

(2) (A) The petition must be titled “In re [name of petitioner].”

(B)

The petition must state:

(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.

provided for in Rule 21(a) must be made by filing a petition with the circuit clerk and serving

it on the respondents. Proceedings on the application must conform, so far as is practicable,

to the procedures prescribed in Rule 21(a) and (b).

(d) Form of Papers; Number of Copies; Length Limits. All papers must conform to Rule

32(c)(2). An original and 3 copies must be filed unless the court requires the filing of a

different number by local rule or by order in a particular case. Except by the court's

permission, and excluding the accompanying documents required by Rule 21(a)(2)(C);

(1) a paper produced using a computer must not exceed 7,800 words; and

(2) a handwritten or typewritten paper must not exceed 30 pages.

Local Rule 21.0. Petitions for Special Writs

A petition for a writ of mandamus or writ of prohibition shall be entitled simply "In re

, Petitioner." To the extent that relief is requested of a particular judge, unless

otherwise ordered, the judge shall be represented pro forma by counsel for the party opposing the

relief, who shall appear in the name of the party and not that of the judge.

TITLE VI. 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

clerk must send to the court of appeals the certificate (if any) and the statement described

in Rule 11(a) of the Rules Governing Proceedings Under 28 U.S.C. § 2254 or § 2255 (if

any), along with the notice of appeal and the file of the district-court proceedings. If the

district judge has denied the certificate, the applicant may request a circuit judge to issue

it.

(2) A request addressed to the court of appeals may be considered by a circuit judge or judges,

as the court prescribes. If no express request for a certificate is filed, the notice of appeal

constitutes a request addressed to the judges of the court of appeals.

(3) A certificate of appealability is not required when a state or its representative or the United

States or its representative appeals.

Local Rule 22.0. Habeas Corpus; Certificate of Appealability

(a) General Procedures. In this circuit, ordinarily neither the court nor a judge thereof will act

on a request for a certificate of appealability if the district judge who refused the writ is

available and has not ruled first. The general procedures regarding certificates of

appealability are set forth in Fed. R. App. P. 22 and Rule 11 of the Rules Governing

Proceedings Under 28 U.S.C. § 2254 or § 2255. These latter rules require the district judge

to rule on the issuance of a certificate of appealability when a final order issues. If the district

court denies a certificate, the petitioner may not appeal the denial but may file a motion for a

certificate of appealability before this court. A petitioner wishing to challenge the denial of a

§ 2254 or § 2255 petition must file a timely notice of appeal whether or not the district court

issues a certificate of appealability.

(b) Denial in Full by District Court. If the district court denies a certificate of appealability, the

petitioner should promptly apply within the time set by the clerk to the court of appeals for

issuance of a certificate of appealability. The motion should be accompanied by a copy of the

district court’s order and a memorandum giving specific and substantial reasons, and not

mere generalizations, why a certificate should be granted. If no sufficient memorandum has

been filed by the time set by the clerk, the certificate may be denied without further

consideration. The effect of a denial is to terminate the appeal.

(1) If the district court grants a certificate of appealability as to one or more issues, the

petitioner’s appeal shall go forward only as to the issue or issues for which the district

court granted the certificate. See Grant-Chase v. Commissioner, 145 F.3d 431 (1st Cir.

1998).

(2) If the petitioner wants appellate review of an issue or issues as to which the district court

has denied a certificate of appealability, petitioner must apply promptly, within the time

set by the clerk of the court of appeals, to the court of appeals for an expanded certificate

of appealability. The request for an expanded certificate of appealability:

(A) must be explicit as to the additional issues the petitioner wishes the court to consider

and

(B) should be accompanied by a copy of the district court order and a memorandum

giving specific and substantial reasons, and not mere generalizations, why an

expanded certificate of appealability should be granted.

If the petitioner fails to apply for an expanded certificate of appealability within the time

designated by the clerk, the appeal will proceed only with respect to the issues on which

the district court has granted a certificate; this court will not treat an inexplicit notice of

appeal, without more, as a request for a certificate of appealability with respect to issues

on which the district court has denied a certificate.

(d) Grant in Full by District Court. If the district court grants a certificate of appealability on

all issues, the petitioner's appeal shall go forward. See Grant-Chase v. Commissioner, 145

F.3d 431 (1st Cir. 1998).

Local Rule 22.1. Habeas Corpus; Successive Petitions

(a) Motion for Authorization. Any petitioner seeking to file a second or successive petition for

relief pursuant to 28 U.S.C. §§ 2254 or 2255 must first file a motion with this court for

authorization. A motion for authorization to file a second or successive § 2254 or § 2255

petition must be sufficiently complete on filing to allow the court to assess whether the

standard set forth in 28 U.S.C. §§ 2244(b) or 2255, as applicable, has been satisfied. The

motion must be accompanied by both:

(1) a completed application form, available from this court, stating the new claims(s)

presented and addressing how Section 2244(b) or Section 2255's standard is satisfied;

and

(2) copies of all relevant portions of earlier court proceedings, which must ordinarily include:

(A) copies of all §2254 or §2255 petitions earlier filed;

(B) the respondent’s answer to the earlier petitions (including any portion of the state

record the respondent submitted to the district court);

proceedings;

(D) the district court’s decision in the earlier proceedings; and

(E) the portions of the state court record needed to evaluate the claims presented and to

show that movant has exhausted state court remedies.

(b) Incomplete Motion. Failure to provide the requisite application and attachments may result

in the denial of the motion for authorization with or without prejudice to refiling. At its

discretion, the court may instead treat the motion as lodged, the filing being deemed complete

when the deficiency is remedied.

and all accompanying attachments on the state attorney general (§ 2254 cases) or United

States Attorney for the federal judicial district in which movant was convicted (§ 2255 cases)

and shall comply with Fed. R. App. P. 25.

(d) Response. The state attorney general (§ 2254 cases) or United States Attorney (§ 2255 cases)

is requested to file a response within 14 days of the filing of the motion.

(e) Transfer. If a second or successive § 2254 or § 2255 petition is filed in a district court without

the requisite authorization by the court of appeals pursuant to 28 U.S.C. § 2244(b)(3), the

district court will transfer the petition to the court of appeals pursuant to 28 U.S.C. § 1631 or

dismiss the petition. If the petition is transferred, the petitioner must file a motion meeting the

substantive requirements of 1st Cir. R. 22.1(a) within 45 days of the date of notice from the

clerk of the court of appeals that said motion is required. If the motion is not timely filed,

the court will enter an order denying authorization for the § 2254 or § 2255 petition.

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

(a) Transfer of Custody Pending Review. Pending review of a decision in a habeas corpus

proceeding commenced before a court, justice, or judge of the United States for the release of

a prisoner, the person having custody of the prisoner must not transfer custody to another

unless a transfer is directed in accordance with this rule. When, upon application, a custodian

shows the need for a transfer, the court, justice, or judge rendering the decision under review

may authorize the transfer and substitute the successor custodian as a party.

(b) Detention or Release Pending Review of Decision Not to Release. While a decision not to

release a prisoner is under review, the court or judge rendering the decision, or the court of

appeals, or the Supreme Court, or a judge or justice of either court, may order that the prisoner

be:

(1) detained in the custody from which release is sought;

(2) detained in other appropriate custody; or

(3) released on personal recognizance, with or without surety.

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

(2) Action on the Motion. If the district court grants the motion, the party may proceed on

appeal without prepaying or giving security for fees and costs, unless a statute provides

otherwise. If the district court denies the motion, it must state its reasons in writing.

(3) Prior Approval. A party who was permitted to proceed in forma pauperis in the 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:

(A) the district court — before or after the notice of appeal is filed — certifies that the

appeal is not taken in good faith or finds that the party is not otherwise entitled to

proceed in forma pauperis and states in writing its reasons for the certification or

finding; or

(B) a statute provides otherwise.

(4) Notice of District Court’s Denial. The district clerk must immediately notify the parties

and the court of appeals when the district court does any of the following:

(A) denies a motion to proceed on appeal in forma pauperis;

(B) certifies that the appeal is not taken in good faith; or

(5) Motion in the Court of Appeals. A party may file a motion to proceed on appeal in forma

pauperis in the court of appeals within 30 days after service of the notice prescribed in Rule

24(a)(4). The motion must include a copy of the affidavit filed in the district court and the

district court’s statement of reasons for its action. If no affidavit was filed in the district

court, the party must include the affidavit prescribed by Rule 24(a)(1).

(b) Leave to Proceed in Forma Pauperis on Appeal from the United States Tax Court or on

Appeal or Review of an Administrative-Agency Proceeding. A party may file in the court

of appeals a motion for leave to proceed on appeal in forma pauperis with an affidavit

prescribed by Rule 24(a)(1):

(1) in an appeal from the United States Tax Court; and

(2) when an appeal or review of a proceeding before an administrative agency, board,

commission, or officer proceeds directly in the court of appeals.

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) Nonelectronic Filing.

(i) In General. For a paper not filed electronically, filing may be accomplished by

mail addressed to the clerk, but filing is not timely unless the clerk receives the

papers within the time fixed for filing.

(ii) A Brief or Appendix. A brief or appendix not filed electronically is timely filed,

however, if on or before the last day for filing, it is:

•

mailed to the clerk by first-class mail, or other class of mail that is at least as

expeditious, postage prepaid; or

•

dispatched to a third-party commercial carrier for delivery to the clerk within 3

days.

(iii) Inmate Filing. If an institution has a system designed for legal mail, an inmate

confined there must use that system to receive the benefit of this Rule

25(a)(2)(A)(iii). A paper not filed electronically by an inmate is timely if it is

deposited in the institution’s internal mail system on or before the last day for

filing and:

•

it is accompanied by: a declaration in compliance with 28 U.S.C. § 1746—or a

notarized statement—setting out the date of deposit and stating that first-class

postage is being prepaid; or evidence (such as a postmark or date stamp) showing

that the paper was so deposited and that postage was prepaid; or

•

the court of appeals exercises its discretion to permit the later filing of a

declaration or notarized statement that satisfies Rule 25(a)(2)(A)(iii).

(B) Electronic Filing and Signing.

(i) By a Represented Person—Generally Required; Exceptions. A person

represented by an attorney must file electronically, unless nonelectronic filing is

allowed by the court for good cause or is allowed or required by local rule.

(ii) By an Unrepresented Person—When Allowed or Required. A person not

represented by an attorney:

•

may file electronically only if allowed by court order or by local rule; and

•

may be required to file electronically only by court order, or by a local rule that

includes reasonable exceptions.

(iii) Signing. A filing made through a person's electronic-filing account and authorized

by that person, together with that person's name on a signature block, constitutes

the person's signature.

(iv) Same as a Written Paper. A paper filed electronically is a written paper for

purposes of these rules.

(3) Filing a Motion with a Judge. If a motion requests relief that may be granted by a single

judge, the judge may permit the motion to be filed with the judge; the judge must note the

filing date on the 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.

(5) Privacy Protection. An appeal in a case whose privacy protection was governed by

Federal Rule of Bankruptcy Procedure 9037, Federal Rule of Civil Procedure 5.2, or

Federal Rule of Criminal Procedure 49.1 is governed by the same rule on appeal. In all

other proceedings, privacy protection is governed by Federal Rule of Civil Procedure 5.2,

except that Federal Rule of Criminal Procedure 49.1 governs when an extraordinary writ

is sought in a criminal case. The provisions on remote electronic access in Federal Rule of

Civil Procedure 5.2(c)(1) and (2) apply in a petition for review of a benefits decision of

the Railroad Retirement Board under the Railroad Retirement Act.

(b) Service of All Papers Required. Unless a rule requires service by the clerk, a party must, at

or before the time of filing a paper, serve a copy on the other parties to the appeal or review.

Service on a party represented by counsel must be made on the party’s counsel.

(1) Nonelectronic service may be any of the following:

(A) personal, including delivery to a responsible person at the office of counsel;

(B) by mail; or

(2) Electronic service of a paper may be made (A) by sending it to a registered user by filing

it with the court's electronic-filing system or (B) by sending it by other electronic means

that the person to be served consented to in writing.

(3) When reasonable considering such factors as the immediacy of the relief sought, distance,

and cost, service on a party must be by a manner at least as expeditious as the manner used

to file the paper with the court.

(4) Service by mail or by commercial carrier is complete on mailing or delivery to the carrier.

Service by electronic means is complete on filing or sending, unless the party making

service is notified that the paper was not received by the party served.

(d) Proof of Service.

(1) A paper presented for filing must contain either of the following if it was served other than

through the court's electronic-filing system:

(A) an acknowledgment of service by the person served; or

(B) proof of service consisting of a statement by the person who made service certifying:

(i) the date and manner of service;

(ii) the names of the persons served; and

(iii) their mail or electronic addresses, facsimile numbers, or the addresses of the

places of delivery, as appropriate for the manner of service.

(2) When a brief or appendix is filed by mailing or dispatch in accordance with Rule

25(a)(2)(A)(ii), the proof of service must also state the date and manner by which the

document was mailed or dispatched to the clerk.

(3) Proof of service may appear on or be affixed to the papers filed.

(e) Number of Copies. When these rules require the filing or furnishing of a number of copies,

a court may require a different number by local rule or by order in a particular case.

Local Rule 25.0. Electronic Case Filing System and Facsimile

(a) Electronic Case Filing. Use of the electronic filing system is mandatory for all attorneys

filing in this court, unless they are granted an exemption, and is voluntary for all non-

incarcerated pro se litigants proceeding without counsel.

(1) The clerk may make changes to the procedures for electronic filing to adapt to changes

in technology or to facilitate electronic filing.

(2) The court may deviate from these procedures in specific cases if deemed appropriate in

the exercise of its discretion.

(3) Documents must be formatted for electronic filing by converting the original word

processing document into Portable Document Format (“PDF”). PDF images created

by scanning paper documents do not comply with this rule. However, exhibits that are

submitted as attachments to an electronically filed pleading may be scanned and

attached if the filer does not possess a word-processing file version of the document.

(4) Completed PDF fillable forms must be scanned or "printed to PDF" in order to lock or

"flatten" the form prior to filing the document in CM/ECF.

(b) Scope of Electronic Filing. Unless this court by rule or order prescribes otherwise, all cases

will be assigned to the court's electronic filing system. Upon motion and a showing of good

cause, the court may exempt an attorney from the provisions of this rule and authorize filing

by means other than use of the electronic filing system. Absent an exemption, all documents

filed by counsel must be filed electronically using the electronic filing system with the

exceptions below, which also apply to pro se litigants who have elected to use the electronic

filing system.

(1) Paper Only Filings. The following documents must be filed only in paper form:

(A) motions to seal; and

(B) sealed, ex parte, or otherwise non-public documents, including, for example, pre-

sentence reports and statements of reasons in a judgment of criminal conviction.

(2) Documents Initiating a Case. Documents that initiate a case in the court of appeals

may be filed electronically or in paper, including for example, petitions for review,

petitions for permission to appeal, applications to enforce an agency order, petitions

for a writ of mandamus or prohibition, and applications for leave to file a second or

successive petition for relief pursuant to 28 U.S.C. §2254 or §2255. While a Notice of

Appeal initiates an appeal, it must be filed in the district court and, thus, is subject to

the relevant district court's procedures governing electronic filing.

(3) Briefs and Appendices. Although briefs (including the addendum, required by 1st Cir.

R. 28.0) and appendices must be filed electronically, paper copies are still required to

be filed. When a brief or appendix is filed electronically, it is deemed tendered. The

clerk's office will then review the electronically tendered filing and, if it is compliant

with federal and local rules, send a notification accepting the brief and/or appendix as

filed and requiring the attorney or party filing electronically ("ECF Filer") to file the

appropriate number of identical paper copies so that they are received by the court

within seven days of the notification. The clerk may shorten the period for filing paper

copies of a brief if it becomes necessary in a particular case. At the time a brief or

appendix is tendered electronically, it must be served on all other parties, as required

by Federal Rules of Appellate Procedure 25(b) and 31(b). See 1st Cir. R. 25.0(e).

Parties do not need to serve the brief or appendix again on the other parties to the case

when identical paper copies are filed with the court.

(4) Criminal Justice Act Vouchers. CJA 24 vouchers filed in accordance with the Criminal

Justice Act, 18 U.S.C. §3006A, must be filed electronically using the court’s electronic

filing system. All other Criminal Justice Act vouchers must be submitted electronically

using the court's CJA eVoucher system.

(5) Copies of Filings. Paper copies of electronically filed documents other than briefs (such

as petitions for rehearing or rehearing en banc) are not required and should not be filed

unless specifically requested by the clerk. The clerk may direct the ECF Filer to provide

the court with paper copies of electronically filed documents, or with an identical

electronic version of any paper document previously filed in the same case by that filer,

in a format designated by the court.

Filers. Registration is required to obtain a login and password for use of the electronic case

filing system. Attorneys and non-incarcerated pro se litigants may register at

www.pacer.uscourts.gov. A non-incarcerated party to a pending case who is not

represented by an attorney may, but is not required to, register as an ECF Filer for purposes

of that case. If a pro se party retains an attorney, the attorney must register as an ECF Filer

if he or she has not already done so and file an appearance form.

(1) Consent to Service. Registration as an ECF Filer constitutes consent to electronic

service of all documents as provided in these rules and in the Federal Rules of Appellate

Procedure.

(2) CM/ECF User’s Guide. Before filing an electronic document using the court’s

electronic filing system, ECF Filers should familiarize themselves with the CM/ECF

User’s Guide available on the court’s website at www.ca1.uscourts.gov.

(3) Duty to Update Registration Information. An ECF Filer has an affirmative duty to keep

the filer's primary email address and any additional email addresses associated with

the filer's account updated at all times. Any changes to an ECF Filer’s contact

information, including name, physical address, telephone, fax number or e-mail

addresses, should be made through the PACER Service Center, which can be accessed

at www.pacer.uscourts.gov.

(4) Password and Login Protection. ECF Filers agree to protect the security of their logins

and passwords. An ECF Filer shall immediately notify the PACER Service Center and

the clerk if the filer learns, or has reason to suspect, that the filer's login or password

has been compromised. ECF Filers may be sanctioned for failure to comply with this

provision. In addition to other sanctions imposed by the court, the clerk may terminate

without notice the electronic filing privileges of any ECF Filer who uses the electronic

filing system inappropriately.

(d) Consequences of Electronic Filing. Electronic transmission of a document via the

electronic filing system in compliance with these rules, together with the transmission of

a Notice of Docket Activity from the court, constitutes filing of the document under the

Federal Rules of Appellate Procedure and the local rules of this court, and constitutes entry

of the document on the docket kept by the clerk under Fed. R. App. P. 36 and 45(b).

(1) Leave to File. If leave of court is required to file a document and the document may be

filed electronically under 1st Cir. R. 25.0(b), both the motion and the subject document

should be submitted electronically. If leave is granted, an order will issue accepting

the filing for docketing.

(2) Legibility. Before filing a document with the court, an ECF Filer must ensure its

legibility and completeness.

(3) Time Filed. When a document has been filed electronically, the official record is the

electronic document stored by the court. Except in the case of documents first filed in

paper form and subsequently submitted electronically, an electronically filed document

is deemed filed at the date and time stated on the Notice of Docket Activity from the

court. Unless otherwise required by statute, rule, or court order, filing must be

completed by midnight in the time zone of the circuit clerk’s office in Boston to be

considered timely filed that day.

(4) Failure to Electronically File a Document. ECF Filers are advised that they should

contact the clerk's office if they transmit a document via the electronic filing system but

do not receive a Notice of Docket Activity. If a Notice of Docket Activity was not

transmitted by the court, the ECF Filer's filing attempt failed and the document was not

filed. If the filer was attempting to file a document initiating a case and does not receive

electronic confirmation that the submission was received by the court, then the ECF

Filer's filing attempt failed and the document was not filed.

(e) Service of Documents by Electronic Means. The Notice of Docket Activity that is generated

by the court's electronic filing system constitutes service of the filed document on all ECF

Filers.

(1) Service on Paper Recipients. The court's electronic filing system identifies which parties

in a particular case are ECF filers. Parties who are not registered as ECF Filers must

be served with a copy of any electronically filed document in some other way authorized

by Fed. R. App. P. 25(c)(1). Similarly, a document filed in paper form pursuant to 1st

Cir. R. 25.0(b)(1) must be served using an alternate method of service prescribed by Fed.

R. App. P. 25(c)(1). However, paper copies of briefs filed and served electronically do

not need to be served again on the parties to the case when paper copies of the briefs

are filed with the court.

(2) Certificate of Service. The Notice of Docket Activity does not replace the certificate of

service, if required by Fed. R. App. P. 25(d).

(f) Entry of Court-Issued Documents. Except as otherwise provided by local rule or court

order, all public orders, opinions, judgments, and proceedings of the court in cases assigned

to the electronic filing system will be filed in accordance with these rules, which will

constitute entry on the docket kept by the clerk under Fed. R. App. P. 36 and 45(b). Any

order or document electronically issued by the court without the original signature of a judge

or authorized court personnel has the same force and effect as if the judge or clerk had signed

a paper copy of the order. Orders also may be issued as “text-only” entries on the docket,

without an attached document. Such orders are official and binding.

(g) Attachments and Exhibits to Electronically Filed Documents. All documents referenced

as exhibits or attachments to an electronically filed document must also be filed

electronically, unless the court permits or requires paper filing. An ECF Filer must submit

as exhibits or attachments only those excerpts of the referenced documents that are directly

germane to the matter under consideration by the court. Excerpted material must be clearly

and prominently identified as such. The court may require parties to file additional excerpts

or the complete document.

(h) Sealed Documents. As required by 1st Cir. R. 25.0(b)(1), sealed documents and motions

for permission to file a document under seal should be filed only in paper form. Sealed

documents must be filed in compliance with 1st Cir. R. 11.0(c) and 1st Cir. R. 30.0(g). If an

entire case is sealed, all documents in the case are considered sealed unless the court orders

otherwise or, in the case of a court order, opinion, or judgment, the court releases the order,

opinion or judgment for public dissemination.

(i) Retention Requirements. Electronically filed documents that require original signatures

other than that of the ECF Filer must be maintained in paper form by the ECF Filer until

final disposition of the case. For purposes of this rule, a disposition is not final until the time

for filing a petition for a writ of certiorari has expired, or, if a petition for a writ of certiorari

is filed, until the Supreme Court disposes of the matter, and, if a remand is ordered, the case

is finally resolved. Upon request by the court, ECF Filers must provide original documents

for review.

(j) Signatures. The user login and password required to submit documents via the electronic

filing system serve as the ECF Filer’s signature on all electronic documents filed with the

court. They also serve as a signature for purposes of the Federal Rules of Appellate

Procedure, the local rules of court, and any other purpose for which a signature is required

in connection with proceedings before the court.

(1) Submission by Signatory. No ECF Filer or other person may knowingly permit or cause

to permit an ECF Filer’s login and password to be used by anyone other than an

authorized agent of the ECF Filer. ECF Filers are reminded that pursuant to 1st Cir.

R. 25.0(c)(4), a filer must immediately notify the PACER Service Center and the clerk

if the filer learns, or has reason to know, that the filer's login or password has been

compromised.

(2) Multiple Signatures. The filer of any electronically filed document requiring multiple

signatures (for example, stipulations) must list thereon all the names of other

signatories by means of a signature block for each. By submitting such a document, the

ECF Filer certifies that each of the other signatories has expressly agreed to the form

and substance of the document, and that the ECF Filer has the authority to submit the

document electronically. If any person objects to the representation of his or her

signature on an electronic document as described above, he or she must, within 14 days

of the electronic filing, file a notice setting forth the basis of the objection.

(k) Notice of Court Orders and Judgments. Immediately upon the entry of a public order,

opinion or judgment in a case assigned to the electronic filing system, a Notice of Docket

Activity will be electronically transmitted to the ECF Filers in the case. Electronic

transmission of the Notice of Docket Activity constitutes the notice and service of the order,

opinion, or judgment required by Fed. R. App. P. 36(b) and 45(c). The clerk will give notice

of any order, opinion, or judgment required by Fed. R. App. P. 36(b) and 45(c) in paper to

any person who has not consented to electronic service.

(l) Technical Failures. An ECF Filer whose filing is made untimely as the result of a technical

failure may seek appropriate relief from the court.

(m) Privacy Protections and Public Access. Filers, whether filing electronically or in paper

form, shall refrain from including or shall redact certain personal data identifiers from all

documents filed with the court whenever such redaction is required by Fed. R. App. P.

25(a)(5). The responsibility for redacting these personal identifiers rests solely with counsel

and the parties. The clerk will not review any document for compliance with this rule. Filers

are advised that it is the experience of this court that failure to comply with redaction

requirements is most apt to occur in attachments, addenda, or appendices, and, thus,

special attention should be given to such documents.

(n) Hyperlinks. Electronically filed documents may contain hyperlinks except as stated herein.

Hyperlinks may not be used to link to sealed or restricted documents. Hyperlinks to cited

authority may not replace standard citation format. Complete citations must be included in

the text of the document. A hyperlink, or any site to which it refers, will not be considered

part of the record. Hyperlinks are simply convenient mechanisms for accessing material in

a document. The court accepts no responsibility for the availability or functionality of any

hyperlink, and does not endorse any product, organization, or content at any hyperlinked

site, or at any site to which that site might be linked.

(o) Facsimile. 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

electronic or paper copies, 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 time period specified in these

rules, in any local rule or court order, or in any statute that does not specify a method of

computing time.

(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer

unit of time:

(A) exclude the day of the event that triggers the period;

(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and

holiday, the period continues to run until the end of the next day that is not a Saturday,

Sunday, or legal holiday.

(2) Period Stated in Hours. When the period is stated in hours:

(A) begin counting immediately on the occurrence of the event that triggers the period;

(B) count every hour, including hours during intermediate Saturdays, Sundays, and legal

holidays; and

to run until the same time on the next day that is not a Saturday, Sunday, or legal

holiday.

(3) Inaccessibility of the Clerk’s Office. Unless the court orders otherwise, if the clerk’s

office is inaccessible:

(A) on the last day for filing under Rule 26(a)(1), then the time for filing is extended to

the first accessible day that is not a Saturday, Sunday, or legal holiday; or

(B) during the last hour for filing under Rule 26(a)(2), then the time for filing is extended

to the same time on the first accessible day that is not a Saturday, Sunday, or legal

holiday.

(4) “Last Day” Defined. Unless a different time is set by a statute, local rule, or court order,

the last day ends:

(A) for electronic filing in the district court, at midnight in the court’s time zone;

(B) for electronic filing in the court of appeals, at midnight in the time zone of the circuit

clerk’s principal office;

under Rule 13(a)(2)—at the latest time for the method chosen for delivery to the post

office, third-party commercial carrier, or prison mailing system; and

(D) for filing by other means, when the clerk’s office is scheduled to close.

(5) “Next Day” Defined. The “next day” is determined by continuing to count forward when

the period is measured after an event and backward when measured before an event.

(6) “Legal Holiday” Defined. “Legal holiday” means:

(A) the day set aside by statute for observing New Year’s Day, Martin Luther King Jr.’s

Birthday, Washington’s Birthday, Memorial Day, Juneteenth National Independence

Day; Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving

Day, or Christmas Day;

(B) any day declared a holiday by the President or Congress; and

state where either of the following is located: 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;

(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.

specified time after being served, and the paper is not served electronically on the party or

delivered to the party on the date stated in the proof of service, 3 days are added after the

period would otherwise expire under Rule 26(a).

Rule 26.1. Disclosure Statement

(a) Nongovernmental Corporations. Any nongovernmental corporation that is a party to a

proceeding in a court of appeals must file a statement that identifies any parent corporation

and any publicly held corporation that owns 10% or more of its stock or states that there is no

such corporation. The same requirement applies to a nongovernmental corporation that seeks

to intervene.

(b) Organizational Victims in Criminal Cases. In a criminal case, unless the government shows

good cause, it must file a statement that identifies any organizational victim of the alleged

criminal activity. If the organizational victim is a corporation, the statement must also disclose

the information required by Rule 26.1(a) to the extent it can be obtained through due diligence.

appellant must file a statement that:

(1) identifies each debtor not named in the caption; and

(2) for each debtor that is a corporation, discloses the information required by Rule 26.1(a).

(d) Time for Filing; Supplemental Filing. The Rule 26.1 statement must:

(1) be filed 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;

(2) be included before the table of contents in the principal brief; and

(3) be supplemented whenever the information required under Rule 26.1 changes.

(e) Number of Copies. If the Rule 26.1 statement is filed before the principal brief, or if a

supplemental statement is filed, 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.

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.

(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.

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; Length Limits; 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. If a cover is used, it must be white.

the text, and permits the document to lie reasonably flat when open.

(D) Paper size, line spacing, and margins. The document must be on 8½ 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.

(E) Typeface and type styles. The document must comply with the typeface

requirements of Rule 32(a)(5) and the type-style requirements of Rule 32(a)(6).

(2) Length Limits. Except by the court's permission, and excluding the accompanying

documents authorized by Rule 27(a)(2)(B);

(A) a motion or response to a motion produced using a computer must not exceed 5,200

words;

(B) a handwritten or typewritten motion or response to a motion must not exceed 20 pages;

(D) a handwritten or typewritten 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 27.0. Motions

(a) Assent. Motions will not necessarily be allowed even though assented to.

(b) Emergency Relief. Motions for stay, or other emergency relief, may be denied for failure to

present promptly. Counsel who envisages a possible need for an emergency filing, or

emergency action by the court, or both, during a period when the Clerk's Office is ordinarily

closed should consult with the Clerk's Office at the earliest opportunity. Failure to consult

with the Clerk's Office well in advance of the occasion may preclude such special

arrangements. Although documents may be filed electronically at any time through CM/ECF,

the filer should not expect that the filing will be addressed outside regular business hours

unless the filer contacts the clerk’s office in advance to make special arrangements. The

business hours for the clerk’s office are Mondays through Fridays from 8:30 a.m. to 5:00 p.m.

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.

(d) Motions Decided by the Clerk. The clerk is authorized to dispose of certain routine,

procedural motions in accordance with the Court’s standing instructions. Any party adversely

affected by the action of the clerk on a motion may promptly move for reconsideration. Unless

the clerk grants reconsideration, the motion for reconsideration will be submitted to a single

judge or panel. See Internal Operating Procedure V(C).

Rule 28. Briefs

(a) Appellant’s Brief. The appellant’s brief must contain, under appropriate headings and in

the order indicated:

(1) a 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 concise statement of the case setting out the facts relevant to the issues submitted for

review, describing the relevant procedural history, and identifying the rulings presented

for review, with appropriate references to the record (see Rule 28(e));

(7) 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;

(8) 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);

(9) a short conclusion stating the precise relief sought; and

(10) the certificate of compliance, if required by Rule 32(g)(1).

(b) Appellee’s Brief. The appellee’s brief must conform to the requirements of Rule 28(a)(1)-(8) and

(10), 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; and

(4) the statement of the standard of review.

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) [Reserved]

(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 the reasons for the supplemental

citations, referring either to the page of the brief or to a point argued orally. The body of the

letter must not exceed 350 words. Any response must be made promptly and must be similarly

limited.

Local Rule 28.0. Addendum to Briefs Required

(a) Contents. In addition to the requirements of Fed. R. App. P. 28, for the court’s convenience,

the brief of the appellant must include an addendum containing the following items:

(1) Required. The judgments, decisions, rulings, or orders appealed from, including any

supporting explanation (e.g., a written or transcript opinion), and in addition, where the

district court or agency whose decision is under review was itself reviewing or acting upon

the decision of a lower-level decision-maker, that lower-level decision as well (e.g., a

recommended decision by a magistrate judge or an initial decision by an administrative

law judge).

Note: If the decision appealed from is a text-only entry upon a docket report, a copy of

the relevant entry or page of the docket report should be provided.

(2) Optional, but encouraged. The addendum may also include other items or short excerpts

from the record that are either the subject of an issue on appeal (e.g., disputed jury

instructions or disputed contractual provisions) or necessary for understanding the

specific issues on appeal, up to 25 pages in total. Statutes, rules, regulations, etc. included

as part of the addendum pursuant to Fed. R. App. P. 28(f) do not count towards this page

limit.

(b) Form. The addendum shall be bound at the rear of the appellant’s brief. The addendum must

begin with a table of contents identifying the page at which each part begins.

(1) 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.

(2) Material included in the addendum need not be reproduced in the appendix also.

presentence investigation report or statement of reasons in a judgment of criminal conviction

– should not be included in a public addendum. Rather, where sealed items are to be included,

they should be filed in a separate, sealed addendum.

Local Rule 28.1. References in Briefs to Sealed Material

Briefs filed with the court of appeals are a matter of public record. In order to have a brief

sealed, counsel must file a specific and timely motion in compliance with Local Rule 11.0(c)(2)

and (3) asking the court to seal a brief or supplemental brief. Counsel must also comply with Local

Rule 11.0(d), when applicable.

Rule 28.1. Cross-Appeals

(a) Applicability. This rule applies to a case in which a cross-appeal is filed. Rules 28(a)-(c),

31(a)(1), 32(a)(2), and 32(a)(7)(A)-(B) do not apply to such a case, except as otherwise

provided in this rule.

(b) Designation of Appellant. The party who files a notice of appeal first is the appellant for the

purposes of this rule and Rules 30 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 the parties'

agreement or by court order.

(1) Appellant's Principal Brief. The appellant must file a principal brief in the appeal. That

brief must comply with Rule 28(a).

(2) Appellee's Principal and Response Brief. The appellee must file a principal brief in the

cross-appeal and must, in the same brief, respond to the principal brief in the appeal. That

appellee's brief must comply with Rule 28(a), except that the brief need not include a

statement of the case unless the appellee is dissatisfied with the appellant's statement.

(3) Appellant's Response and Reply Brief. The appellant must file a brief that responds to

the principal brief in the cross-appeal and may, in the same brief, reply to the response in

the appeal. That brief must comply with Rule 28(a)(2)-(8) and (10), except that none of

the following need appear unless the appellant is dissatisfied with the appellee's statement

in the cross-appeal:

(A) the jurisdictional statement;

(B) the statement of the issues;

(D) the statement of the standard of review.

(4) Appellee's Reply Brief. The appellee may file a brief in reply to the response in the cross-

appeal. That brief must comply with Rule 28(a)(2)-(3) and (10) and must be limited to the

issues presented by the cross-appeal.

(5) No Further Briefs. Unless the court permits, no further briefs may be filed in a case

involving a cross-appeal.

(d) Cover. Except for filings by unrepresented parties, the cover of the appellant's principal brief

must be blue; the appellee's principal and response brief, red; the appellant's response and

reply brief, yellow; the appellee's reply brief, gray; an intervenor's or amicus curiae's brief,

green; and any supplemental brief, tan. The front cover of a brief must contain the information

required by Rule 32(a)(2).

(e) Length.

(1) Page Limitation. Unless it complies with Rule 28.1(e)(2), the appellant's principal brief

must not exceed 30 pages; the appellee's principal and response brief, 35 pages; the

appellant's response and reply brief, 30 pages; and the appellee's reply brief, 15 pages.

(2) Type-Volume Limitation.

(A) The appellant's principal brief or the appellant's response and reply brief is acceptable

if it:

(i) contains no more than 13,000 words; or

(ii) uses a monospaced face and contains no more than 1,300 lines of text.

(B) The appellee's principal and response brief is acceptable if it:

(i) contains no more than 15,300 words; or

(ii) uses a monospaced face and contains no more than 1,500 lines of text.

volume specified in Rule 28.1(e)(2)(A).

(f) Time to Serve and File a Brief. Briefs must be served and filed as follows:

(1) the appellant's principal brief, within 40 days after the record is filed;

(2) the appellee's principal and response brief, within 30 days after the appellant's principal

brief is served;

(3) the appellant's response and reply brief, within 30 days after the appellee's principal and

response brief is served; and

(4) the appellee's reply brief, within 21 days after the appellant's response and reply brief is

served, but at least 7 days before argument unless the court, for good cause, allows a later

filing.

Rule 29. Brief of an Amicus Curiae

(a) During Initial Consideration of a Case on the Merits.

(1) Applicability. This Rule 29(a) governs amicus filings during a court's initial consideration

of a case on the merits.

(2) When Permitted. The United States or its officer or agency or a state may file an amicus

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, but a court of appeals may prohibit the filing of or may strike an amicus brief that

would result in a judge's disqualification.

(3) Motion for Leave to File. The motion must be accompanied by the proposed brief and

state:

(A) the movant's interest; and

(B) the reason why an amicus brief is desirable and why the matters asserted are relevant

to the disposition of the case.

(4) 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. An amicus brief need not comply with

Rule 28, but must include the following:

(A) if the amicus curiae is a corporation, a disclosure statement like that required of parties

by Rule 26.1;

(B) a table of contents, with page references;

authorities—with references to the pages of the brief where they are cited;

(D) a concise statement of the identity of the amicus curiae, its interest in the case, and the

source of its authority to file;

(E) unless the amicus curiae is one listed in the first sentence of Rule 29(a)(2), a statement

that indicates whether:

(i)

a party's counsel authored the brief in whole or in part;

(ii)

a party or a party's counsel contributed money that was intended to fund preparing

or submitting the brief; and

(iii)

a person—other than the amicus curiae, its members, or its counsel—contributed

money that was intended to fund preparing or submitting the brief and, if so,

identifies each such person;

(F) an argument, which may be preceded by a summary and which need not include a

statement of the applicable standard of review; and

(G) a certificate of compliance under Rule 32(g)(1), if length is computed using a word or

line limit.

(5) 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.

(6) 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.

(7) Reply Brief. Except by the court's permission, an amicus curiae may not file a reply brief.

(8) Oral Argument. An amicus curiae may participate in oral argument only with the court’s

permission.

(b) During Consideration of Whether to Grant Rehearing.

(1) Applicability. This Rule 29(b) governs amicus filings during a court's consideration of

whether to grant panel rehearing or rehearing en banc, unless a local rule or order in a case

provides otherwise.

(2) When Permitted. The United States or its officer or agency or a state may file an amicus

brief without the consent of the parties or leave of court. Any other amicus curiae may file

a brief only by leave of court.

(3) Motion for Leave to File. Rule 29(a)(3) applies to a motion for leave.

(4) Contents, Form, and Length. Rule 29(a)(4) applies to the amicus brief. The brief must

not exceed 2,600 words.

(5) Time for Filing. An amicus curiae supporting the petition for rehearing or supporting

neither party must file its brief, accompanied by a motion for filing when necessary, no

later than 7 days after the petition is filed. An amicus curiae opposing the petition must

file its brief, accompanied by a motion for filing when necessary, no later than the date set

by the court for the response.

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;

(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 14

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 14 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.

(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 30.0. Appendix to the Briefs

(a) Number of Copies. Pursuant to Fed. R. App. P. 30(a)(3), when a paper copy deadline is set, only

five (5) copies of the appendix need be filed with the clerk and on motion, for cause shown,

parties may be allowed to file even fewer copies.

(b) Reproduction. The appendix should be printed on both sides of each page.

exhibits, or other parts of the record referred to in the briefs as may be necessary to

understand the issues on appeal and to preserve context. Material included in the addendum

bound with appellant's brief need not be reproduced in the appendix. Guidance to counsel as

to the contents of the appendix is set forth in a Notice to Counsel Regarding Contents of the

Appendix, which accompanies the briefing schedule and is available on the court's website at

www.ca1.uscourts.gov. The required and optional contents of the addendum are set forth in

Local Rule 28.0(a).

(d) Proceeding Pro Se or Under the Criminal Justice Act.

(1) Pro Se Appendices Not Required. All pro se appeals 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. An appendix is

required in all other appeals unless the court rules otherwise pursuant to Fed. R. App.

P. 30(f).

(2) CJA Appendices. Although an appellant may be reimbursed for the cost of preparing an

appendix where appellant's counsel is appointed under the Criminal Justice Act, counsel

in consolidated multi-defendant appeals should coordinate, to the extent possible, to file

a consolidated appendix.

(e) Translations. The court will not receive documents or cited opinions not in the English

language unless translations are furnished. Whenever an opinion of the Supreme Court of

Puerto Rico (or other Commonwealth of Puerto Rico court) 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 shall be filed. Unless the translation is filed electronically in compliance

with the court’s electronic filing system, three conformed copies should also 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.

(f) Sanctions. This court may impose sanctions against attorneys who unreasonably and

vexatiously increase litigation costs by including unnecessary material in the appendix as

provided for in Local Rule 38.0.

(g) Inclusion of Sealed Material in Appendices. Appendices filed with the court of appeals are

a matter of public record. If counsel conclude that it is necessary to include sealed material

in appendix form, then, in order to maintain the confidentiality of materials filed in the district

court or agency under seal, counsel must designate the sealed material for inclusion in a

supplemental appendix to be filed separately from the regular appendix and must file a

specific and timely motion in compliance with Local Rules 11.0(c)(2), 11.0(c)(3), and 11.0(d)

asking the court to seal the supplemental appendix.

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 21 days after service of the appellee’s brief

but a reply brief must be filed at least 7 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 each unrepresented party and 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 each unrepresented party and 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.

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 31.0. Filing Briefs

(a) Time to File a Brief.

(1) Briefing schedules will be set in accordance with Fed. R. App. P. 31(a) once the record is

complete, including any necessary transcripts. When a brief (and addendum required by

Local Rule 28.0) is filed electronically in compliance with the court’s electronic filing

system, the court will review the electronic filing and notify the filer of the due date for the

paper copies of the brief. 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.

(2) Unavailability of the transcript shall constitute cause for granting extensions, subject,

however, to the provisions of Local Rule 10.0, ante.

(b) Number of copies. Only 10 copies of briefs need be filed with the clerk and on motion for

cause shown, parties may be allowed to file even fewer copies. The disk required by Local

Rule 32.0 for briefs filed in paper form constitutes one copy for purposes of this rule. If a brief

is filed electronically in compliance with the court’s electronic filing system, the electronically

filed brief counts as one copy and nine paper copies must be filed.

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.

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; any reply brief, gray;

and any supplemental brief, tan. The front cover of a brief must contain:

(A) the number of the case centered at the top;

(B) the name of the court;

(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 ½ 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 10½ 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).

(B) Type-Volume Limitation.

(i) A principal brief is acceptable if it:

• contains no more than 13,000 words; or

• 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).

(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 ½ by 11 inches, and need not lie reasonably flat

when opened.

(1) Motion. The form of a motion is governed by Rule 27(d).

(2) Other Papers. Any other paper, including a petition for panel rehearing and a petition for

hearing or 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). If a cover is used, it must be white.

(B) Rule 32(a)(7) does not apply.

(d) Signature. Every brief, motion, or other paper filed with the court must be signed by the party

filing the paper or, if the party is represented, by one of the party's attorneys.

(e) Local Variation. Every court of appeals must accept documents that comply with the form

requirements of this rule and the length limits set by these rules. By local rule or order in a

particular case, a court of appeals may accept documents that do not meet all the form

requirements of this rule or the length limits set by these rules.

(f) Items Excluded from Length. In computing any length limit, headings, footnotes, and

quotations count toward the limit but the following items do not:

• cover page;

• disclosure statement;

• table of contents;

• table of citations;

• statement regarding oral argument;

• addendum containing statutes, rules, or regulations;

• certificate of counsel;

• signature block;

• proof of service; and

• any item specifically excluded by these rules or by local rule.

(g) Certificate of Compliance.

(1) Briefs and Papers That Require a Certificate. A brief submitted under Rules 28.1(e)(2),

29(b)(4), or 32(a)(7)(B)—and a paper submitted under Rules 5(c)(1), 21(d)(1),

27(d)(2)(A), 27(d)(2)(C), 35(b)(2)(A), or 40(b)(1)—must include a certificate by the

attorney, or an unrepresented party, that the document 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 document. The certificate must state the

number of words—or the number of lines of monospaced type—in the document.

(2) Acceptable Form. Form 6 in the Appendix of Forms meets the requirements for a

certificate of compliance.

Local Rule 32.0. Computer Generated Disk Requirement for Documents Filed in Paper Form

(a) When a party who is represented by counsel files a brief, petition for rehearing or other paper

exceeding 10 pages in length in paper form and not electronically, one copy must be submitted

on a computer readable disk. The disk shall be filed at the time the party’s paper filing is

made. The brief on disk must be accompanied by nine paper copies of the brief. The disk shall

contain the entire brief in a single electronic file. 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 file format utilized.

(b) The brief, petition for rehearing, and, in addition, all other papers exceeding 10 pages in

length must be in Portable Document Format (PDF). The electronic version must contain any

supplemental material that is bound with the paper version, such as an addendum. Although

the main document must be generated by saving in PDF from the original word processing

file, supplemental material may be scanned if an original word processing file of that material

is unavailable.

chooses to serve a copy of the disk, the certificate of service must indicate service of the brief,

petition for rehearing, and, in addition, all other papers exceeding 10 pages in length in both

paper and electronic format.

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 undue hardship or other unusual circumstances preclude compliance. The

requirements of this rule shall not apply to parties appearing pro se.

(d) The disk requirement does not apply to electronically filed documents.

Local Rule 32.2. Citation of State Decisions and Law Review Articles

All citations to State or Commonwealth Courts must 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 32.4. Motions for Leave to File Oversized Briefs

The First Circuit encourages short, concise briefs. A motion for leave to file an oversized

opening brief must be filed at least ten days in advance of the brief’s due date, must specify the

additional length sought, and must be supported by a detailed statement of grounds. A motion for

leave to file an oversized reply brief must be filed at least seven days in advance. Such motions

will be granted only for compelling reasons.

Rule 32.1. Citing Judicial Dispositions

(a) Citation Permitted. A court may not prohibit or restrict the citation of federal judicial

opinions, orders, judgments, or other written dispositions that have been:

(i)

designated as "unpublished," "not for publication," "non-precedential," "not

precedent," or the like; and

(ii)

issued on or after January 1, 2007.

(b) Copies Required. If a party cites a federal judicial opinion, order, judgment, or other written

disposition that is not available in a publicly accessible electronic database, the party must file

and serve a copy of that opinion, order, judgment or disposition with the brief or other paper

in which it is cited.

Local Rule 32.1.0. Citation of Unpublished Dispositions

(a) Disposition of this court. An unpublished judicial opinion, order, judgment or other written

disposition of this court may be cited regardless of the date of issuance. The court will

consider such dispositions for their persuasive value but not as binding precedent. A party

must note in its brief or other filing that the disposition is unpublished. The term

"unpublished" as used in this subsection and Local Rule 36.0(c) refers to a disposition that

has not been selected for publication in the West Federal Reporter series, e.g., F., F.2d, and

F.3d.

(b) Dispositions of other courts. The citation of dispositions of other courts is governed by Fed.

R. App. P. 32.1 and the local rules of the issuing court. Notwithstanding the above,

unpublished or non-precedential dispositions of other courts may always be cited to establish

a fact about the case before the court (for example, its procedural history) or when the binding

or preclusive effect of the opinion, rather than its quality as precedent, is relevant to support

a claim of res judicata, collateral estoppel, law of the case, double jeopardy, abuse of the writ,

or other similar doctrine.

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.

Local Rule 33.0. 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.

(a) Pre-Argument Filing; Ordering Transcript. Upon receipt of the Notice of Appeal in the Court

of Appeals, the Clerk of the Court of Appeals shall notify Settlement Counsel of the appeal.

Within 14 days after the case is docketed in the Court of Appeals, appellant shall file with the

Clerk of the Court of Appeals, and serve on all other parties a statement, in the form of the

Docketing Statement required by Local Rule 3.0(a), detailing information needed for the

prompt disposition of an appeal. The Parties shall provide Settlement Counsel with such

additional information about the appeal as Settlement Counsel may reasonably request.

(b) Pre-Argument Conference; Pre-Argument Conference Order.

(1) 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.

(2) 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.

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 (2nd 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.

(d) Non-Compliance Sanctions.

(1) If the appellant has not taken each of the actions set forth in section (a) of this Program,

or in the Conference Order, within the time therein specified, the appeal may be dismissed

by the Clerk without further notice.

(2) Upon the failure of a party or attorney to comply with the provisions of this rule or the

provisions of the court's notice of settlement conference, the court may assess reasonable

expenses caused by the failure, including attorney's fees; assess all or a portion of the

appellate costs; dismiss the appeal; or take such other appropriate action as the

circumstances may warrant.

(e) 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 the Circuit Executive, One

Courthouse Way, Suite 3700, Boston, MA 02210, who will hold them confidential on behalf

of the Court of Appeals unless release is authorized by the complainant.

(f) 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, social security appeals, petitions for review from orders of

the Board of Immigration Appeals, 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,

Massachusetts, 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 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

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.

Counsel must not read at length from briefs, records, or authorities.

(d) Cross-Appeals and Separate Appeals. If there is a cross-appeal, Rule 28.1(b) 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 34.0. Oral Argument

(a) Party's Statement. Any party who desires to do so may include, either in the opening or

answering brief as the case may be, a statement limited to one-half page setting forth the

reasons why oral argument should, or need not, be heard. If such a statement is included, it

must be inserted in the brief immediately after the Table of Contents and Table of Authorities

and immediately before the first page of the brief and must be captioned “REASONS WHY

ORAL ARGUMENT SHOULD [NEED NOT] BE HEARD” as appropriate. The inclusion of

this statement will not be counted in computing the maximum permitted length of the brief.

(b) Notice of Argument. If the court concludes that oral argument is unnecessary based on the

standards set forth in Fed. R. App. P. 34(a)(2), counsel shall be so advised. The court's

decision to dispense with oral argument may be announced at the time that a decision on the

merits is rendered.

(1) Presentation. 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.

(2) Rebuttal. Allowance of time for rebuttal is within the discretion of the presiding judge, but

often appellant will be allowed to reserve a few minutes on request made at the outset of

opening argument. However, counsel is expected to cover all anticipated issues in opening

argument. Reserved rebuttal time is for the purpose of answering contentions made in the

other side’s oral argument. Any time allowed to be reserved by the presiding judge will be

deducted from that party’s allotted time for opening argument.

Local Rule 34.1. Terms and Sittings

(a) Terms. 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.

(b) Sittings.

(1) Locations. Sittings will be in Boston except that there will also be sittings in Puerto Rico

in November and March and at such other times and places 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.

(2) Request for Assignment. 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 Puerto Rico 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.

concerning assignment of the case to a specific day, and request the name of the person who

will present the oral argument. Two weeks before the monthly sitting commences the clerk

will prepare and distribute an order assigning the cases for that session for hearing. The court

reserves the privilege of reducing the allotted time for argument when the case is presented.

(d) Continuances. Once a case is scheduled for argument, continuances may be allowed only for

grave cause.

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 and who are not disqualified 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) a petition for an en banc hearing or rehearing produced using a computer must not

exceed 3,900 words; and

(B) a handwritten or typewritten petition for an en banc hearing or rehearing must not

exceed 15 pages.

(3) For purposes of the limits 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.

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. The length limits in Rule 35(b)(2) apply to 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 35.0. En Banc Determination

(a) Who May Vote; Composition of En Banc Court.

(1) Vote. The decision whether a case should be heard or reheard en banc is made solely by

the circuit judges of this circuit who are in regular active service. Rehearing en banc shall

be ordered only upon the affirmative votes of a majority of the judges of this court in

regular active service who are not disqualified, provided that the judges who are not

disqualified constitute a majority of the judges who are in regular active service.

(2) Composition of En Banc Court.

(A) A court en banc consists solely of the circuit judges of this circuit in regular active

service except that any senior circuit judge of this circuit shall be eligible to

participate (i) at that judge’s election, as a member of an en banc court reviewing a

decision of a panel of which that judge was a member, or (ii) to continue to participate

in the decision of a case or controversy that was heard or reheard by the court en

banc at a time when such judge was in regular active service.

(B) For the purpose of determining those who may be a member of the en banc court

under subsection (A)(ii), a case is heard or reheard by the court en banc when oral

argument is held, or if no oral hearing is held, as of the date the case is ordered to be

submitted to the en banc court.

(b) Petitions for Panel Hearing or Rehearing En Banc. If a petitioner files a petition for panel

rehearing and a petition for rehearing en banc addressed to the same decision or order of the

court, the two petitions must be combined into a single document and the document is subject

to the length limitation contained in Fed. R. App. P. 35 (b)(2), (3).

App. P. 35(b)(3) document is filed electronically in compliance with the court’s electronic

filing system, paper copies are not required and a disk copy is not required. When a petition

for hearing or rehearing en banc or combined Fed. R. App. P. 35(b)(3) document is filed in

paper form, ten copies must be filed with the clerk, including one copy on a computer

generated disk. The disk must be filed regardless of page length but otherwise in accordance

with Local Rule 32.0.

(d) Motions for Leave to File Oversized Petitions. A motion for leave to file a petition in excess

of the page length limitations of Fed. R. App. P. 35(b)(2) and Local Rule 35.0(b) must be filed

at least five days in advance of the petition’s due date, must specify the additional length

sought, and must contain a detailed statement of grounds. Such motions will be granted only

for compelling reasons.

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 serve on 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 36.0. Opinions

(a) Opinions Generally. 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 published in West's Federal Reporter. As indicated in Local Rule

36.0(b), the court’s policy, when opinions are used, is to prefer that they be published; but in

limited situations, described in Local Rule 36.0(b), where opinions are likely not to break new

legal ground or contribute otherwise to legal development, they are issued in unpublished

form.

(b) Publication of Opinions. The United States Court of Appeals for the First Circuit has adopted

the following plan for the publication of its opinions.

(1) 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.)

(2) Manner of Implementation.

(A) 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.

(B) 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 or memorandum accompanying the draft. After an exchange of views, should

any judge remain of the view that the opinion should be published, it must be.

or opinions shall be published unless all the participating judges decide against

publication. In any case decided by the court en banc the opinion or opinions shall be

published.

(D) Any party or other interested person may apply for good cause shown to the court for

publication of an unpublished opinion.

(E) Periodically the court shall conduct a review in an effort to improve its publication

policy and implementation.

may be cited to this court in accordance with Fed. R. App. P. 32.1 and Local Rule 32.1.0, a

panel’s decision to issue an unpublished opinion means that the panel sees no precedential

value in that opinion.

(d) Copies of Opinions. 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 $5.00. Free copies of opinions are available on the court’s website

at www.ca1.uscourts.gov.

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.

Local Rule 38.0. Sanctions for Vexatious Litigation

When any party to a proceeding before this court or any attorney practicing before the court

files a motion, brief, or other document that is frivolous or interposed for an improper purpose,

such as to harass or to cause unnecessary delay, or unreasonably or vexatiously increases

litigation costs, the court may, on its own motion, or on motion of a party, impose appropriate

sanctions on the offending party, the attorney, or both. Any party or attorney on whom sanctions

may be imposed under this rule shall be afforded an opportunity to respond within fourteen days

of service of a motion or an order to show cause before sanctions are imposed by the court.

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.

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 and serve an itemized and verified bill of costs.

(2) Objections must be filed within 14 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 bond or other security to preserve rights pending appeal; and

(4) the fee for filing the notice of appeal.

Local Rule 39.0. Taxation of Reproduction Costs

(a) The maximum rate at which costs may be taxed shall be fixed from time to time by the clerk

of the court of appeals. See Fed. R. App. P. 39(c). A schedule of Maximum Rates for Taxation

of Costs is posted on the court’s website at www.ca1.uscourts.gov and is available by request

to the clerk’s office. Costs are taxed at the maximum rates set by the clerk or at the actual

cost, whichever is lower.

(b) Costs may be recovered for reproducing the following number of copies, unless the court

directs filing of a different number:

(1) Briefs. Nine copies of each brief plus two for the filer and two for each party required to

be served with paper copies of the brief. See 1st Cir. R. 31.0(b).

(2) Appendices. Five copies of each appendix plus one for the filer and one for each

unrepresented party and each separately represented party. See 1st Cir. R. 30.0(a).

website at www.ca1.uscourts.gov and by request to the clerk's office, and must be

accompanied by a vendor's itemized statement of charges, if applicable, or a statement by

counsel if reproduction was performed in-house. Bills of costs must be filed in the clerk's office

within fourteen days after entry of judgment, even if a petition for rehearing or other post-

judgment motion is filed. See Fed. R. App. P. 39(d)(1). Payment of costs should be made

directly to the prevailing party or counsel, not to the clerk's office.

Local Rule 39.1. Fee Applications

(a) Fee Applications under the Equal Access to Justice Act.

(1) 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, must 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 must 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.

(2) Content. The application shall:

(A) identify the applicant and the proceeding for which the award is sought;

(B) show that the party seeking the award is a prevailing party and is eligible to receive

an award;

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

(D) 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.

(3) 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.

(b) 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, must 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 must 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, unless

an order shortens or extends the time, the petition may be filed by any party within 45

days after entry of judgment if one of the parties is:

(A) the United States;

(B) a United States agency;

(D) a current or former United States officer or employee sued in an individual capacity

for an act or omission occurring in connection with duties performed on the United

States' behalf—including all instances in which the United States represents that

person when the court of appeals' judgment is entered or files the petition for that

person.

(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) Response. Unless the court requests, no response to a petition for panel rehearing is

permitted. Ordinarily, rehearing will not be granted in the absence of such a request. If a

response is requested, the requirements of Rule 40(b) apply to the response.

(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

(b) Form of Petition; Length. The petition must comply in form with Rule 32. Copies must be

served and filed as Rule 31 prescribes. Except by the court's permission:

(1) a petition for panel rehearing produced using a computer must not exceed 3,900 words;

and

(2) a handwritten or typewritten petition for panel rehearing must not exceed 15 pages.

Local Rule 40.0. Petition for Panel Rehearing

(a) Number of Copies. When a petition for panel rehearing is filed electronically in compliance

with the court’s electronic filing system, paper copies are not required and a disk copy is not

required. When a petition for panel rehearing is filed in paper form, ten copies must be filed

with the clerk, including one copy on computer generated disk. The disk must be filed

regardless of page length but otherwise in accordance with Local Rule 32.0.

(b) Motions for Leave to File Oversized Petitions. A motion for leave to file a petition for panel

rehearing in excess of the page length limitations of Fed. R. App. P. 40(b) must be filed at

least five days in advance of the petition’s due date, must specify the additional length sought,

and must contain a detailed statement of grounds. Such motions will be granted only for

compelling reasons.

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, petition for rehearing en banc, or motion for stay of mandate, whichever is later.

The court may shorten or extend the time by order.

(d) Staying the Mandate Pending a Petition for Certiorari.

(1) Motion to Stay. 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 petition would present a substantial question and that there is good cause

for a stay.

(2) Duration of Stay; Extensions. The stay must not exceed 90 days, unless:

(A) the period is extended for good cause; or

(B) the party who obtained the stay notifies the circuit clerk in writing within the period

of the stay:

(i) that the time for filing a petition has been extended, in which case the stay

continues for the extended period; or

(ii) that the petition has been filed, in which case the stay continues until the Supreme

Court’s final disposition.

(3) Security. The court may require a bond or other security as a condition to granting or

continuing a stay of the mandate.

(4) Issuance of Mandate. The court of appeals must issue the mandate immediately on

receiving a copy of a Supreme Court order denying the petition, unless extraordinary

circumstances exist.

Local Rule 41.0. 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.

(1) Stipulated Dismissal. The circuit clerk must dismiss a docketed appeal if the parties

file a signed dismissal agreement specifying how costs are to be paid and pay any court fees

that are due.

(2) Appellant’s Motion to Dismiss. An appeal may be dismissed on the appellant's motion

on terms agreed to by the parties or fixed by the court.

(3) Other Relief. A court order is required for any relief under Rule 42(b)(1) or (2) beyond

the dismissal of an appeal—including approving a settlement, vacating an action of the

district court or an administrative agency, or remanding the case to either of them.

of a settlement, payment, or other consideration.

(d) Criminal Cases. A court may, by local rule, impose requirements to confirm that a defendant

has consented to the dismissal of an appeal in a criminal case.

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.

(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 or the

Relevant State is Not a Party

(a) Constitutional Challenge to Federal Statute. 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.

(b) Constitutional Challenge to State Statute. If a party questions the constitutionality of a

statute of a State in a proceeding in which that State 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 of the State.

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, Washington's Birthday, Memorial

Day, Juneteenth National Independence 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.

must immediately serve a notice of entry on each party, with a copy of any opinion, and must

note the date of service 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 45.0. Defaults

(a) Appellant. 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 must 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 must be filed within fourteen days.

(b) Appellee. When a cause is in default as to the filing of the brief for appellee or respondent,

the cause must be assigned to the next list and the appellee will not be heard at oral argument

except by leave of the Court.

appeal for want of diligent prosecution if the docket fee is not paid within 14 days of the filing

of the notice of appeal.

Local Rule 45.1. The Clerk

(a) Business Hours. The office of the clerk shall be open for business from 8:30 a.m. to 5:00

p.m. except Saturdays, Sundays, and legal holidays.

(b) Fees and Costs. The clerk must charge the fees and costs which are fixed from time to time

by the Judicial Conference of the United States, pursuant to 28 U.S.C. § 1913.

subscribers, such as law schools, the charge for a copy of each opinion, after one free copy

to counsel for each party, is $5.00. Free copies of opinions are available on the court’s website

at www.ca1.uscourts.gov.

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.

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 46.0. Attorneys

(a) Admission.

(1) Admission Fee. Upon being admitted to practice, an attorney other than government

counsel, and court-appointed counsel, must pay a local admission fee of $50.00 to the

clerk. The clerk must maintain the proceeds as a court’s discretionary fund for the

reimbursement of expenses of noncompensable court-appointed counsel and such other

purposes as the court may order. This fee is in addition to the national admission fee

imposed by the Court of Appeals Miscellaneous Fee Schedule, promulgated under 28 U. S.

C. § 1913. Absent a waiver, the admission fee must be paid electronically using the court's

Case Management/Electronic Case Files ("CM/ECF") system. Attorneys may be admitted

in open court on motion or otherwise as the court shall determine.

(2) 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.

(3) 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.

(b) 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 Attorney Disciplinary Enforcement for the Court of Appeals for the First

Circuit.

for the First Circuit are on file in the clerk’s office. A copy may be obtained upon request

addressed to the clerk of this court.

(d) Library Access. The law library of this court shall be open to members of the Bar, to the

United 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.

(e) 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 such 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.

(f) Standing Rule Governing Appearance and Argument by Eligible Law Students

(1) Scope of Legal Assistance.

(A) 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 paragraph, must be a member of the bar of

this court and either appointed as counsel on appeal for the indigent or represent the

indigent on a pro bono basis. The written consent must be filed with the clerk.

An eligible law student may also appear in this court on behalf of the United States or

a State, or agency thereof, provided that the governmental entity on whose behalf the

student appears has consented thereto in writing, and that the attorney of record has

also indicated in writing approval of that appearance. The attorney of record must be

a member of the bar of this court, and the written consent must be filed with the clerk.

(B) 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 of record

must 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.

(2) Student Eligibility Requirements. In order to appear, the student must:

(A) Be enrolled in a law school approved by the American Bar Association, or be a recent

graduate of such a school, awaiting the first bar examination after the student’s

graduation or the result of that examination;

(B) 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;

clinical program for academic credit;

(D) Be certified by the dean of the student's law school 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;

(E) 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, but

this shall not prevent an attorney, legal aid bureau, law school, public defender

agency, a State, or the United States from paying compensation to the eligible law

student;

(F) 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.

(3) Standards of Supervision. The supervising attorney of record must:

(A) File with this court the attorney’s written consent to supervise the student;

(B) Assume personal professional responsibility for the student’s work;

(D) 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.

(4) Forms Required by Rule.

(A) Form to be completed by the party for whom the law student is rendering services:

I authorize , a [law student] or [recent law school graduate

awaiting the first bar examination after the student’s graduation or the results of

that examination], 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. If

services are rendered for the United States or agency thereof, the form should be

completed by the United States Attorney or authorized representative. If services

are rendered for a State or agency thereof, the form should be completed by the

State Attorney General or authorized representative.)

(B) 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] or

[is a recent law school graduate awaiting the first bar examination or the results of

that examination], 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

I certify that I [have completed at least 4 semesters of law school work] or [am a

recent law school graduate awaiting the first bar examination or the results of that

examination]; that I am taking, or have taken, a course in appellate advocacy or a

course in a supervised clinical program for academic credit; 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 (not including any compensation from an attorney, legal aid

bureau, law school, public defender agency, a State, or the United States).

(Date) (Signature of Student)

(D) Form to be completed by Dean:

I certify that this student [has completed at least 4 semesters of law school work] or

[is a recent law school graduate awaiting the first bar examination or the results of

that examination]; is taking, or has taken, a course in appellate advocacy or a

course in a supervised clinical program for academic credit; and is qualified to

fulfill the responsibilities required by First Circuit Rule 46.0(f).

(Name of Student) (Signature of Dean)

(Address & Phone of Above)

Name of Law School

(5) Exceptions. The court retains authority to establish exceptions to these requirements

in any individual case.

Local Rule 46.5. Appointment of Counsel in Criminal Cases

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. The court notes, and incorporates herein, the entirety of

the current United States Court of Appeals for the First Circuit CJA Reference Manual, which is

periodically updated and amended, and includes policies, procedures, and regulations in

accordance with the Guidelines for the Administration of the Criminal Justice Act and Related

Statutes, Volume VII, Guide to Judiciary Policies and Procedures.

(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.

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

representation. 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 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 copying briefs may be allowed. For additional guidance,

see the Guidelines for the Administration of the Criminal Justice Act and Related Statutes,

Volume VII, Guide to Judiciary Policies and Procedures.

All claims, whether for compensation, or for expenditures, shall be submitted promptly after

the completion of all duties, at the risk of disallowance. If counsel files a petition for a writ of

certiorari, counsel's time and expenses involved in the preparation of the petition should be

included on the voucher for services performed in this court. After court approval all orders

for payment shall be processed through the Administrative Office.

(e) 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.

(f) 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.

(g) 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. [The present plan

incorporates amendments made on December 16, 2002 and January 23, 2015.]

Local Rule 46.6. Procedure for Withdrawal in Criminal Cases

(a) Trial counsel's duty to continue to represent defendant on appeal until relieved by the

court of appeals.

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 of

appeals. See 1st Cir. R. 12.0(b).

(b) Withdrawal by counsel appointed in the district court.

When a defendant has been represented in the district court by counsel appointed under the

Criminal Justice Act, the clerk will usually send a "Form for Selection of Counsel on Appeal" to

defendant, which asks defendant to select among the following:

(1) representing him or herself on appeal and proceeding pro se;

(2) requesting trial counsel to be appointed on appeal to represent defendant on appeal;

(3) requesting the appointment of new counsel on appeal; and

(4) retaining private counsel for appeal.

If the defendant returns the form and elects to proceed with new counsel to be appointed on appeal,

then the court will ordinarily appoint new counsel and allow trial counsel to withdraw.

If counsel wishes to withdraw and either the defendant fails to complete the form or counsel wishes

to terminate representation even though the defendant has selected (2) above, counsel may file an

affidavit explaining the difficulty and move to withdraw.

An unsworn declaration under the penalty of perjury in the format set forth in 28 U.S.C. § 1746

will suffice in place of an affidavit.

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 and, if defendant has not already been determined to be financially eligible,

certification of compliance with Fed. R. App. P. 24; 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 pro se; 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.

If counsel is unable to comply with (1), (2), or (3) and does not think it appropriate to proceed

in accordance with (4), counsel may file an affidavit explaining the difficulty and move to

withdraw.

An unsworn declaration under the penalty of perjury in the format set forth in 28 U.S.C.

§ 1746 will suffice in place of an affidavit.

(d) Service.

All motions must be accompanied by proof of service on the defendant and, if required by

Fed. R. App. P. 25(d), the Government. Motions are customarily determined, without oral

argument, by one or more judges.

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 47.0. Local Rules of the First Circuit

(a) Advisory Committee

(1) 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. In addition, a ninth

member shall be appointed, which position shall rotate among the five districts.

(2) 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,

(A) provide a forum for continuous study of the rules of practice and internal operating

procedures of the court;

(B) serve as a conduit between the bar and the public and the court regarding procedural

matters and suggestions for changes;

(D) render reports from time to time, on its own initiative and on request, to the court.

(3) Terms of Members. The members of the advisory committee shall serve three-year terms,

which will be staggered, 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.

(b) 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 47.1. Judicial Conference of the First Circuit

(a) A judicial conference of the First Circuit will be held periodically in accordance with 28

U.S.C. § 333. 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.

(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; and

(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.

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.

Local Rule 48.0. Capital Cases

(a) Applicability of Rule. This rule shall govern all matters in which this Court is requested to

rule in any case where the death penalty has been imposed, including, but not limited to, the

following:

(1) direct criminal appeals;

(2) appeals from District Court rulings, such as on motions to vacate a sentence, petitions for

a writ of habeas corpus, and requests for a stay or other injunction;

(3) original petitions for a writ of habeas corpus;

(4) motions for second or successive habeas corpus applications;

(5) any related civil proceedings challenging the conviction or sentence of death, or the time,

place or manner of execution, as being in violation of federal law, whether filed by the

prisoner or by someone else on his or her behalf.

Such cases shall be referred to herein as "capital cases" and shall be governed by this rule, except

where otherwise specified in a written order by the Court. To the extent that any local rule of this

100

Court is inconsistent with this rule, this rule shall govern. All local rules of this Court, including

interim local rules, are otherwise as applicable to capital cases as they would have been absent this

rule.

(b) Certificate of Death Penalty Case. A special docket shall be maintained by the Clerk of this

Court for all cases filed pursuant to this rule.

(1) Filing. Upon the filing of any proceeding in any District Court in this Circuit challenging

a sentence of death imposed pursuant to a federal or a state court judgment, each party to

such proceeding shall file a Certificate of Death Penalty Case with the Clerk of this Court.

The U.S. Attorney shall file a Certificate of Death Penalty Case with the Clerk of this

Court immediately upon notifying the District Court of intent to seek the death penalty in

a federal criminal case. The U.S. Attorney shall also update the Certificate immediately

upon return of a verdict imposing a sentence of death.

(2) Content of the Certificate. The Certificate shall set forth the names, telephone numbers

and addresses of the parties and counsel, the proposed date and place of implementation

of the sentence of death, if set, and the emergency nature of the proceedings, if

appropriate. It shall be the responsibility of counsel for all parties to apprise the Clerk of

this Court of any changes in the information provided on the Certificate as expeditiously as

possible.

(1) Certificates of Appealability and Motions for Stays. Certificates of appealability for all

habeas matters are addressed in Fed. R. App. P. 22 and Rule 11 of the Rules Governing

Proceedings Under 28 U.S.C. § 2254 or § 2255.

(2) Stays of Execution.

(A) Except where otherwise prohibited by 28 U.S.C. § 2262, a sentence of death shall

automatically be stayed upon the filing of a notice of appeal. In cases where the

petitioner is seeking leave to file a second or successive application under 28 U.S.C.

§ 2254 or § 2255, a stay of execution shall automatically be issued upon approval by

the Court of Appeals of the filing of a second or successive application under 28

U.S.C. § 2244(b). The Clerk shall immediately notify all parties and the state or

federal authorities responsible for implementing the defendant's sentence of death of

the stay of execution. If notification is oral, it shall be followed as expeditiously as

possible by written notice.

(B) Except where otherwise required by law or specified in a written order by the Court,

an automatic stay of execution shall remain in effect until the Court issues its mandate,

at which time the automatic stay shall expire. In the event that a motion requesting a

stay of mandate is filed, the motion should also be accompanied by a motion

requesting a case-specific stay of execution.

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and will consider upon request motions for a case-specific stay of execution. All

motions for a case specific stay of execution must be accompanied by a memorandum

of law, which must include at a minimum the prevailing standards of review and any

relevant facts to advise the Court's decision.

(D) Upon making the necessary findings, the Court may enter a case-specific stay of

execution which shall clearly specify the duration of the stay.

(E) The Clerk shall send notice to all the parties and state or federal authorities

responsible for implementing the defendant's sentence of death when a stay imposed

by this provision, be it automatic or case-specific, is no longer in effect.

102

Appendix of Forms

103

Form 1A.

Notice of Appeal to a Court of Appeals From a

Judgment of a District Court

United States District Court for the

District of

Docket Number

A.B., Plaintiff )

v. ) Notice of Appeal

C.D., Defendant )

(name all parties taking the appeal)*

appeal to the United States Court of Appeals for the Circuit

from the final judgment entered on (state the date the

judgment was entered).

(s)

Attorney for

Address:

[Note to inmate filers: If you are an inmate confined in an institution and you seek the timing

benefit of Fed. R. App. P. 4(c)(1), complete Form 7 (Declaration of Inmate Filing) and file that

declaration along with this Notice of Appeal.]

See Rule 3(c) for permissible ways of identifying appellants.

104

Form 1B.

Notice of Appeal to a Court of Appeals From an

Appealable Order of a District Court

United States District Court for the

District of

Docket Number

A.B., Plaintiff )

v. ) Notice of Appeal

C.D., Defendant )

(name all parties taking the appeal)*

appeal to the United States Court of Appeals for the Circuit

from the order (describe the order) entered on

____________(state the date the order was entered).

(s)

Attorney for

Address:

[Note to inmate filers: If you are an inmate confined in an institution and you seek the timing

benefit of Fed. R. App. P. 4(c)(1), complete Form 7 (Declaration of Inmate Filing) and file that

declaration along with this Notice of Appeal.]

See Rule 3(c) for permissible ways of identifying appellants.

105

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.

Docket No. ____________________

A.B., Petitioner )

v. ) Notice of Appeal

Commissioner of )

Internal Revenue, )

Respondent )

(here name all parties taking the appeal)* appeal

to the United States Court of Appeals for the Circuit from the decision

entered on (state the date the decision was entered).

(s) _____________________________________

Counsel for:_______________________________

Address: _________________________________

See Rule 3(c) for permissible ways of identifying appellants.

106

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

Officer

United States Court of Appeals for the 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 , 20 .

(s)

Attorney for Petitioners

Address:

See Rule 15.

107

Form 4. Affidavit Accompanying Motion for Permission to Appeal in Forma

Pauperis

United States District

Court for the

District of

<Name(s) of plaintiff(s)>,

Plaintiff(s)

Case No.

<Name(s) of defendant(s)>,

Defendant(s)

AFFIDAVIT ACCOMPANYING MOTION

FOR PERMISSION TO APPEAL IN FORMA

PAUPERIS

Affidavit in Support of Motion

Instructions

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.)

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.

Signed:

Date:

My issues on appeal are:

1. For both you and your 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 the past

12 months

Amount expected next

month

You

Spouse

You

Spouse

108

Employment

Self-employment

109

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 for the past two years, most recent employer first. (Gross

monthly pay is before taxes or other deductions.)

Employer

Address

Dates of

employment

Gross monthly

pay

3. List your spouse’s employment history for the past two years, most recent employer

first. (Gross monthly pay is before taxes or other deductions.)

Employer

Address

Dates of

employment

Gross monthly

pay

110

4. How much cash do you and your spouse have? $

111

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 seeking to appeal a judgment in a civil action or proceeding, 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 own or your spouse owns. Do not list

clothing and ordinary household furnishings.

Home

Other real estate

Motor vehicle #1

(Value)

Make and year:

Model:

Registration #:

Motor vehicle #2

Other assets

(Value)

Make and year:

Model:

Registration #:

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.

112

Name [or, if under 18, initials only]

Relationship

Age

113

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

Your Spouse

Rent or home-mortgage payment (include lot rented for mobile

home) Are 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:

114

Credit card (name):

Department store (name):

Other:

Alimony, maintenance, and support paid to others

Regular expenses for operation 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 or in your assets or

liabilities during the next 12 months?

[ ] Yes [ ] No If yes, describe on an attached sheet.

10. Have you spent — or will you be spending — any money for expenses or attorney fees in

connection with this lawsuit?

[ ] Yes [ ] No If yes, how much?

11. Provide any other information that will help explain why you cannot pay the docket fees

for your appeal.

12. State the city and state of your legal residence:

Your daytime phone number: ( )

Your age: Your years of schooling:

115

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 Circuit

, the plaintiff [or defendant or other party] appeals to the United

States Court of Appeals for the Circuit from the final judgment [or order or decree] of the

district court for the district of [or bankruptcy appellate panel of the

circuit], entered in this case on , [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:

[Note to inmate filers: If you are an inmate confined in an institution and you seek the timing

benefit of Fed. R. App. P. 4(c)(1), complete Form 7 (Declaration of Inmate Filing) and file that

declaration along with this Notice of Appeal.]

116

Form 6. Certificate of Compliance With Type-Volume Limit

Certificate of Compliance With Type-Volume Limit,

Typeface Requirements, and Type-Style Requirements

This document complies with [the type-volume limit of Fed. R. App. P. [insert Rule citation;

e.g., 32(a)(7)(B)]] [the word limit of Fed. R. App. P. [insert Rule citation; e.g., 5(c)(1)]] because,

excluding the parts of the document exempted by the Fed. R. App. P. 32(f) [and [insert

applicable Rule citation, if any]]:

◻ this document contains [state the number of] words, or

◻ this brief uses a monospaced typeface and contains [state the number of] lines of text.

This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the

type-style requirements of Fed. R. App. P. 32(a)(6) because:

◻ this document has been prepared in a proportionally spaced typeface using [state name

and version of word-processing program] in [state font size and name of type style], or

◻ this document has been prepared in a monospaced typeface using [state name and

version of word-processing program] with [state number of characters per inch and name

of type style].

(s)

Attorney for

Dated:

117

Form 7. Declaration of Inmate Filing

[insert name of court; for example,

United States District Court for the District of Minnesota]

A.B

., Plaintiff )

v. ) Case No.

C.D., Defendant )

I am an inmate confined in an institution. Today, [insert date], I am depositing

the [insert title of document; for example, "notice of appeal"] in this case in the

institution's internal mail system. First-class postage is being prepaid either by me or by the

institution on my behalf.

I declare under penalty of perjury that the foregoing is true and correct (see 28 U.S.C. §

1746; 18 U.S.C. § 1621).

Sign your name here

Signed on [insert date]

[Note to inmate filers: If your institution has a system designed for legal mail, you must use that

system in order to receive the timing benefit of Fed. R. App. P. 4(c)(1) or Fed. R. App. P.

25(a)(2)(A)(iii).]

118

Appendix:

Length Limits Stated in the Federal Rules of Appellate Procedure

This chart summarizes the length limits stated in the Federal Rules of Appellate Procedure. Please

refer to the rules for precise requirements, and bear in mind the following:

• In computing these limits, you can exclude the items listed in Rule 32(f).

• If you use a word limit or a line limit (other than the word limit in Rule 28(j)), you must

file the certificate required by Rule 32(g).

• For the limits in Rules 5, 21, 27, 35, and 40:

- You must use the word limit if you produce your document on a computer; and

- You must use the page limit if you handwrite your document or type it on a

typewriter.

• For the limits in Rule 28.1, 29(a)(5), and 32:

- You may use the word limit or page limit, regardless of how you produce the

document; or

- You may use the line limit if you type or print your document with a monospaced

typeface. A typeface is monospaced when each character occupies the same amount

of horizontal space.

Rule

Document type

Word limit

Page

limit

Line limit

Permission to

appeal

5(c)

• Petition for permission

to appeal

• Answer in opposition

• Cross-petition

5,200

Not

applicable

Extraordinary

writs

21(d)

• Petition for writ of

mandamus or

prohibition or other

extraordinary writ

• Answer

7,800

Not

applicable

Motions

27(d)(2)

• Motion

• Response to a motion

• Reply to a response to a

motion

5,200

2,600

Not

applicable

Not

applicable

119

Parties' briefs

(where no

cross-appeal)

32(a)(7)

• Principal brief

• Reply brief

13,000

6,500

1,300

650

Parties' brief

(where cross-

appeal)

28.1(e)

• Appellant's principal

brief

• Appellant's response

and reply brief

• Appellee's principle

and response brief

• Appellee's reply brief

13,000

15,300

6,500

1,300

1,500

650

Party's

supplemental

letter

28(j)

• Letter citing

supplemental

authorities

350

Not

applicable

Not

applicable

Amicus briefs

29(a)(5)

29(b)(4)

• Amicus brief during

initial consideration of

case on merits

• Amicus brief during

consideration of

whether to grant

rehearing

One-half

the length

set by the

Appellate

Rules for a

party's

principle

brief

2,600

One-half

the length

set by the

Appellate

Rules for

a party's

principle

brief

Not

applicable

One-half

the length

set by the

Appellate

Rules for

a party's

principle

brief

Not

applicable

Rehearing

and en banc

filings

35(b)(2)

& 40(b)

• Petition for hearing en

banc

• Petition for panel

rehearing; petition for

rehearing en banc

3,900

Not

applicable

120

First Circuit Internal Operating Procedures

Introduction

This publication outlines the procedures followed in this Court, and its Clerk's Office, for the

processing of appeals, petitions for review and other appellate matters in this Circuit. New

techniques and procedures are continually tried and, when improvements are found, such

procedures are adopted so that at any given time the procedures set forth herein may be in a state

of change.

Internal Operating Procedure I. Court Organization

Facilities. The Clerk's Office and the appellate courtrooms are located in the John Joseph

Moakley United States Courthouse at 1 Courthouse Way in Boston. The staff attorneys, the

Court of Appeals library, the Circuit Executive and some of the appellate judges are located

in the courthouse.

Clerk's Office. The office hours for the Clerk's Office are from 8:30 a.m. to 5:00 p.m.,

Monday through Friday. In case of an emergency, the Clerk or the Chief Deputy Clerk may

be contacted after hours; however, appropriate arrangements should be made with the Clerk's

Office in advance. Although documents may be filed electronically at any time through the

court's Case Management/Electronic Case Files (“CM/ECF”) system, the filer should not

expect that the filing will be addressed outside regular business hours unless the filer contacts

the Clerk's Office in advance to make special arrangements.

Library. The Court of Appeals library is open from 8:30 a.m. to 5:00 p.m. and attorneys

practicing in the federal courts may use the library, but books and materials may not be

removed.

Staff Attorneys. The office of the staff attorneys assists the Court in many ways including

research, drafting memoranda and other forms of legal assistance to the Court.

Internal Operating Procedure II. Attorneys

Admission. Attorneys seeking admission to the bar of the First Circuit Court of Appeals

should obtain an application from the court’s website at www.ca1.uscourts.gov or write to the

Clerk's Office. The admission fee imposed by Local Rule 46.0(a) (1) is $50.00. There is an

additional admission fee prescribed by the Court of Appeals Miscellaneous Fee Schedule,

promulgated under 28 U.S.C. § 1913. Absent a waiver from the Clerk’s Office, attorneys must

file their application form electronically and pay the combined fee electronically using the

Court's Case Management/Electronic Case Files ("CM/ECF") system. Once verification of the

application is complete, which may take up to 7 days, a Certificate of

121

Admission will be returned by mail. Incomplete applications will not be considered. Requests

to be admitted in person must be made on the application form and will be allowed at the

Court's discretion. Successful applicants to be admitted in court will be electronically notified

of the time and place of admission. Such applicants will receive their Certificate of Admission

by mail at a later date. Where an application raises questions about the applicant's qualification

for admission, the Clerk will refer the matter to the Chief Judge. If the Chief Judge concludes

that denial may be warranted, the matter will be referred to a panel for determination.

Discipline. Procedures to be followed in this Court are covered by Fed. R. App. P. 46(b) and

the Rules of Attorney Disciplinary Enforcement for the Court of Appeals for the First Circuit.

Copies of the latter rules may be obtained at the Clerk's Office.

Internal Operating Procedure III. Initial Procedures

Appeals, Petitions for Review and Fees. In cases appealed from the district court, the notice

of appeal is filed in the district court in accordance with the Fed. R. App. P. and the combined

docketing and filing fees are paid to the district court clerk. In administrative agency cases

and petitions for mandamus, the docketing fee is paid to the Clerk of the Court of Appeals at

the time the petition is filed in the Court of Appeals. The relevant fees can be found in the

Schedule of Fees posted on this court's website at www.ca1.uscourts.gov.

Ordering Transcripts. The transcripts must be ordered from the court reporter(s) on

Transcript Order/Report Form which is available from the district court clerks and from the

Clerk of the Court of Appeals. The order for the transcript must be given within 14 days after

the filing of the notice of appeal and satisfactory financial arrangements must be made with

the court reporter. See Fed. R. App. P. 10, 11; 1st Cir. R. 10.0. Counsel are required to

complete these arrangements before the copy of the Transcript Order/Report is filed with the

Court of Appeals. If counsel are being paid under the Criminal Justice Act (“CJA”), the CJA

form must first be approved and then attached to the Transcript Order/Report Form.

Reporter's Duties. If the reporter cannot complete the transcript by the date set by the court,

then pursuant to Fed. R. App. P. 11(b) the reporter must file a motion in the Court of Appeals

for an enlargement of time for filing the transcript. Counsel for appellants, however, would

be well advised to check with the court reporter to see that the transcript will be timely filed

and that the reporter is making such a request, if it will not be so completed.

Internal Operating Procedure IV. Docketing Procedures

Docketing. Pursuant to Fed. R. App. P. 12, appeals are docketed in the Court of Appeals upon

receipt from the Clerk of the district court of copies of the notice of appeal and the district

court docket report. If the docketing fee has not been paid in the district court, the failure to

pay is grounds for dismissal of the appeal pursuant to Local Rule 3.0. Local Rule

3.0 also requires the filing of a Docketing Statement within 14 days after the case is docketed

in the court of appeals.

122

Screening. In the First Circuit a preliminary screening takes place upon the docketing of the

appeal and procedural defects are often called to the Court's attention for sua sponte action by

the Court including dismissal of the appeal.

Briefing. Once the record on appeal is complete, including the filing of all necessary

transcripts, the Clerk's Office sends to counsel a notice advising appellant of the filing dates

for the brief and the appendix. After the brief for appellant is filed, the Clerk's Office likewise

gives notice to the appellee.

Internal Operating Procedure V. Motion Procedures

General. In accordance with Fed. R. App. P. 27(d) (3), all motions must be accompanied by

3 copies unless the motion is filed electronically in compliance with the court’s electronic

filing system, and a proof of service showing the type of service that was made, i.e., by mail

or by hand delivery or electronically. The date of service establishes the due date for filing the

response per Fed. R. App. P. 27(a)(3).

Processing. All motions must be filed with the clerk. The single judge matters are transmitted

to a single judge and the matters calling for three judge action are transmitted to a three judge

panel. The motion judge and the motion panel duties are rotated among the judges of this Court.

All motions are decided without oral argument, unless the Court orders otherwise. The

motions are submitted to the Court after the response time provided in Fed. R. App. P.

27(a)(3)(A) has run except for (1) routine procedural motions which are usually processed

forthwith, and (2) emergency motions which may be handled on an expedited basis. The court

will not ordinarily await the filing of a reply to a response before acting on a motion and

response. If a movant intends to file a reply to a response, the movant shall promptly notify

the clerk of the intended filing.

Disposition By the Clerk. Pursuant to Fed. R. App. P. 27(b) and 1st Cir. R. 27.0(d), the clerk

is authorized to dispose of certain routine, procedural motions in accordance with the Court’s

standing instructions. Typical examples include motions for an enlargement of time, to

consolidate, to correct filings, to correct captions, and to withdraw as counsel. Effective March

16, 2006, clerk’s orders are identifiable by their form: a clerk’s order states on its face that it

is entered pursuant to 1st Cir. R. 27.0(d).

Emergencies. If counsel anticipates that a matter may arise requiring emergency action by

the court outside of ordinary business hours, the court's local rules advise counsel to contact

the Clerk’s Office at the earliest opportunity to discuss the matter. Depending on the

circumstances, the Clerk’s Office, in consultation with the duty judge and the Staff Attorney’s

Office, may make special arrangements for after hours filings and responses, issuance of

orders after hours, and similar matters. Counsel are further advised that in all emergency

matters, whether or not action outside of ordinary business hours is required, the process is

facilitated if counsel contacts the Clerk’s Office in advance and the motion seeking expedited

relief clearly indicates the date by which a ruling is requested and the reasons supporting

expedition. Although documents may be filed electronically at any time through CM/ECF,

123

the filer should not expect that the filing will be addressed outside regular business hours

unless the filer contacts the Clerk's Office in advance to make special arrangements. The

business hours for the Clerk’s Office are Mondays through Fridays from 8:30 a.m. to 5:00

p.m.

Internal Operating Procedure VI. Briefs and Appendices

General. The court's website, www.ca1.uscourts.gov, contains guidelines and a checklist to

assist counsel in preparing briefs. Counsel are advised that any brief that does not conform to

the requirements of the rules may be rejected. For information regarding electronic document

filing pursuant to the court’s electronic filing system, see 1st Cir. R. 25.0, a copy of which is

available on the court’s website. Electronic filing is permitted after October 13, 2009 and is

required for all attorney filings after January 1, 2010.

Modifications. The following modifications of the Fed. R. App. P. apply in the First Circuit:

One copy of the brief or petition must be filed electronically or on a computer generated

disk. See 1st Cir. R. 32.0.

Only 10 copies, including the disk or electronic filing, need be filed.

Deferred Appendix. Note the Local Rules of this Court do not provide for the proceeding on

a deferred appendix pursuant to Fed. R. App. P. 30(c). If special leave to proceed under this

method is sought, and the Court grants such leave, the leave will be conditioned upon a shorter

time schedule than the Fed. R. App. P. generally allow so that the processing of the appeal

will not take any longer time than it would under the regular procedure.

Defaults. If the appellant fails to file the brief and appendix on time, the Clerk is authorized

to enter an order dismissing the appeal, and when an appellee is in default as to filing a brief,

the appellee will not be heard at oral argument. The party in default may remove the default

by showing special circumstance justifying the failure to comply. Any motion to set aside a

dismissal should be filed within fourteen days. See 1st Cir. R. 45.0.

Internal Operating Procedure VII. Screening and Calendaring

General. Initially, the staff attorney reviews the briefs in the cases the Clerk has assigned for

a particular session. If a panel of 3 judges, in accordance with Fed. R. App. P. 34 and after

consultation with the staff attorney, is of the opinion that a case does not warrant oral

argument, the Clerk so advises counsel. Shortly after the decision as to hearing is made, the

amount of time to be allotted for oral argument is also set by the Court. Before the hearing list

is finally established, the Clerk notifies the parties by letter of the proposed date for hearing the

case so that counsel may contact the Clerk if it appears that a scheduling conflict exists.

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Expedited Schedule. Expedited scheduling is provided automatically in those cases where it

is required by statute, such as recalcitrant witness cases. In other cases a request for expedited

processing may be filed, but the motion should be made shortly after the case is docketed in

the Court of Appeals.

Dates of Sessions. In January through June, and October through December, the Court usually

sits for one week starting on the first Monday of the month. In either July or August, the court

sits for one week. In September the Court starts on the Wednesday after Labor Day and sits

for the 3 days in that week and the 5 days in the following week. In November and March the

Court sits two weeks, with one week in Boston and one week in Puerto Rico.

Judges and Case Assignment. In accordance with long-standing practice, cases are assigned

to panels on a random basis provided, however, that a case may be assigned to a particular

panel or to a panel including a particular judge in the following circumstances:

where the case is a sequel to, or offshoot of, a case previously decided by the court (e.g.,

following a remand);

where the case was presented to the duty panel in the regular course of duties, see, e.g.,

Bui v. DiPaolo, 170 F.3d 232, 238 (1st

Cir. 1999) ("[a]s an administrative measure, we

advise litigants that, to the extent practicable, the panel that determines whether to issue a

complementary COA also will be the panel that adjudicates the appeal on the merits"),

cert. denied, 529 U.S. 1086 (2000);

where a case has been assigned to a panel, but scheduling changes (e.g., postponement of

oral argument) or changes in the procedural handling of the case (e.g., a case intended for

summary disposition is thereafter set for oral argument) require rescheduling;

where a case has been assigned to a panel, but the subsequent recusal of a judge (or other

unavailability of a judge, e.g., due to illness) makes it appropriate to transfer the case to a

different panel or to find a replacement judge.

No other non-random assignments of cases shall be made except for special cause and with the

concurrence of the duty judge.

Judges and Case Assignment in Capital Cases.

Capital Case Panel. Capital cases, as defined in Local Rule 48.0, shall be randomly

assigned to a panel of three judges, of whom at least one is an active judge of this Court,

from the capital case pool. The capital case pool of judges shall consist of all active judges

of this Court and those senior judges who have filed with the Clerk a statement of

willingness to serve on capital case panels.

Duties of Capital Case Panel. Notwithstanding the practices identified in Internal

Operating Procedure V, the assigned capital case panel handles all matters relating to the

case, including but not limited to, the merits of a direct appeal, all case management, all

petitions for collateral review, motions for stay of execution, motions to vacate a stay of

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execution, applications for a certificate of appealability, motions for an order authorizing

the district court to consider a second or successive application for habeas corpus, appeals

from subsequent petitions, and remands from the United States Supreme Court.

Timing. The Court will hear up to six cases per day. Generally, it is the practice of this Court

to schedule cases in which the brief for appellee is filed by the fifteenth day of one month, so

as to have the case screened and assigned to the list for hearing or submission on the second

month thereafter.

Internal Operating Procedure VIII. Oral Argument

General. The Court establishes the times allotted for oral argument and the Clerk so notifies

the parties at least one week before argument starts. Though the calendar is not called at the

beginning of the court day, counsel should be present at the opening or make arrangements to

ascertain whether there is any change in the order of the cases at the opening of Court. It is

counsel's responsibility to be present and be prepared should earlier cases take less time for

oral argument than was anticipated. See 1st Cir. R. 34.1.

Disclosure of Panel in Advance of Oral Argument. The names of the judges on each panel

may be disclosed for a particular session seven (7) days in advance of the session. Once the

panel is made public, the Court will not normally grant motions for continuances or for a

change in argument date during the same session.

Lights. The signal lights are located on the Clerk's desk and they are set so that an amber light

turns on when there are five minutes left and it remains on until the red light turns on indicating

that the time for oral argument has ended.

Recording. Oral arguments in all cases are digitally recorded for the use of the Court and are

not part of the permanent record of the case. A disk copy of the recording of an oral argument

may be obtained by submitting a request in writing to the Clerk with a check in the amount

prescribed by the Judicial Conference of the United States. The Schedule of Fees is posted on

this court's website at www.ca1.uscourts.gov. Audio recordings of the court's oral arguments

are also available on the court's website.

Internal Operating Procedure IX. Opinions & Judgments

Processing. When the opinion of the Court (and concurring and dissenting opinions, if any)

are completed, they are turned over to the Clerk for reproducing and release. Copies of the

opinion and copies of the judgment are sent to one counsel for each side. They are also released

in electronic format on the same day.

Publication. The manner of deciding whether an opinion is to be published and the Court's

policy with respect to publication are set forth in Local Rule 36.0.

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Electronic Access. The Court’s dockets and opinions are available electronically through the

PACER network supported by the Administrative Office for the United States Courts. Details

are available in the Clerk’s Office. Opinions are also available on the court’s website at

www.ca1.uscourts.gov.

Internal Operating Procedure X. Petitions for Panel Rehearing and Petitions

for Hearing or Rehearing En Banc

General. Fed. R. App. P. 40 and 35 should be consulted with respect to the procedures.

Petitions for rehearing are intended to bring to the attention of the panel claimed errors in the

opinion and they are not to be used for reargument of an issue previously presented.

No Response. Unless the court requests, no response to a petition is permitted.

En Banc Processing. A petition for a hearing or rehearing en banc is submitted by the Clerk to

the panel that heard the case and to the other active First Circuit judges. A petition for

rehearing en banc will also be treated as a petition for rehearing before the original panel.

Vacation of Previous Opinion and Judgment. Usually when an en banc rehearing is

granted, the previous opinion and judgment will be vacated.

Internal Operating Procedure XI. Complaints Against Judges

The procedure for filing complaints against judges is set forth in the Rules for Judicial-Conduct

and Judicial-Disability Proceedings. A copy of these Rules may be obtained from the Clerk of this

Court and are also on the Court's website.

Office of the Clerk

U.S. Court of Appeals for the First Circuit

John Joseph Moakley Courthouse

1 Courthouse Way, Suite 2500

Boston, Massachusetts 02210

Internal Operating Procedure XII. Notification of Changes or Notifications of

the Court's Local Rules and Internal Operating Procedures

Changes in the Local Rules of this Court or its Internal Operating Procedures will be publicized

by circulating for comment the entire text of the proposed change to the following state legal

publishers:

a. Massachusetts Lawyers Weekly, 10 Milk Street, Suite 1000, Boston, Massachusetts

02108.

b. Rhode Island Lawyers Weekly, c/o Massachusetts Lawyers Weekly, 10 Milk Street, Suite

1000, Boston, MA 02108.

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c. New Hampshire Bar News, 112 Pleasant Street, Concord, New Hampshire 03301.

d. Maine Bar Journal, P.O. Box 788, Augusta, Maine 04332.

e. Puerto Rico Bar Association, P.O. Box 1900, San Juan, PR 00903.

Notice of the changes will also be placed in all federal court bulletin boards and to all state bar

associations within the Circuit. Comments should be forwarded to the Clerk's Office within thirty

days from the date of the notice.

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UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

ADMINISTRATIVE ORDER REGARDING

CASE MANAGEMENT/ELECTRONIC CASE FILES SYSTEM (“CM/ECF”) ENTERED

SEPTEMBER 14, 2009

As of August 21, 2017, amended Local Rule 25.0 superseded the court's September

14, 2009 Administrative Order Regarding Case Management/Electronic Case Files System.

Consequently, the court's September 14, 2009 Administrative Order is no longer in effect.

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Rules of Attorney Disciplinary Enforcement

for the Court of Appeals

for the First Circuit

Effective: August 1, 2002

Amended: April 13, 2011

The Court of Appeals for the First Circuit, in furtherance of its inherent power and

responsibility to supervise the conduct of attorneys who are admitted to practice before it, or

admitted for the purpose of a particular proceeding (pro hac vice), promulgates the following Rules

of Attorney Disciplinary Enforcement superseding all of its other Rules pertaining to disciplinary

enforcement heretofore promulgated.

RULE I

Attorneys Convicted of Crimes.

Upon filing with this Court of a certified copy of a judgment of conviction demonstrating that

any attorney admitted to practice before the Court has been convicted in any Court of the United

States, or the District of Columbia, or of any state, territory, commonwealth or possession of the

United States of a serious crime as hereinafter defined, the Chief Judge shall refer the matter to a

disciplinary panel. The disciplinary panel shall enter an order immediately suspending that

attorney, whether the conviction resulted from a plea of guilty or nolo contendere or from a verdict

after trial or otherwise, and regardless of the pendency of any appeal, until final disposition of a

disciplinary proceeding to be commenced upon such conviction. A copy of such order shall

immediately be served by the Clerk of this Court upon the attorney personally or by certified or

registered mail. Upon motion and good cause shown, the disciplinary panel may set aside such

order when it appears in the interest of justice to do so.

The term "serious crime" shall include any felony and any lesser crime, a necessary element

of which, as determined by the statutory or common law definition of such crime in the jurisdiction

where the judgment was entered, involves false swearing, misrepresentation, fraud, willful failure

to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a

conspiracy or solicitation of another to commit a "serious crime."

Upon the filing of a certified copy of a judgment of conviction of an attorney for a serious

crime, the disciplinary panel shall, in addition to suspending that attorney in accordance with the

provisions of this Rule, also initiate disciplinary proceedings in which the sole issue to be

determined shall be the extent of the final discipline to be imposed as a result of the conduct

resulting in the conviction, provided that no final disposition will be rendered until all direct

appeals from the conviction are concluded. The certified copy of the judgment of conviction shall

be conclusive evidence of the commission of that crime by the attorney in question.

Upon the filing of a certified copy of a judgment of conviction of an attorney for any crime not

constituting a "serious crime," the Chief Judge may refer the matter to a disciplinary panel for

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disciplinary proceedings or may exercise discretion to make no reference with respect to

convictions for minor offenses for which discipline would not be appropriate.

Any attorney suspended under the first paragraph of this Rule will be reinstated immediately

upon the filing of a certificate demonstrating that the underlying conviction has been vacated or

reversed on direct appeal, but the reinstatement shall not terminate any disciplinary proceeding

then pending against the attorney, the disposition of which shall be determined by the disciplinary

panel on the basis of all available evidence pertaining to both guilt and the extent of discipline to

be imposed.

RULE II

Discipline Imposed by Other Courts.

Any attorney admitted to practice before this Court shall, upon being subject to public

discipline by any other Court of the United States, or the District of Columbia, or of any state,

territory, commonwealth or possession of the United States, promptly inform the Clerk of this

Court of such action.

Upon filing of a certified copy of a judgment, order, or other official document demonstrating

that an attorney admitted to practice before this Court has been publicly disciplined by another

court, the Chief Judge shall refer the matter to a disciplinary panel and the Clerk of this Court shall

serve on the attorney, personally or by certified or registered mail, a notice containing:

1. a copy of the judgment or order from the other court; and

2. an order to show cause directing that the attorney inform this Court within 30 days after

service of the order of any claim predicated upon the grounds set forth in paragraph (C) of

this Rule that the imposition of substantially similar discipline on the attorney would be

unwarranted and the reasons therefor. The order shall also state that a hearing on such a

claim must be requested within 30 days after service of the order.

Upon the expiration of the time to show cause, if no response has been filed, then the

disciplinary panel shall enter an order imposing substantially similar discipline. If a timely

response is filed, the disciplinary panel shall, after any applicable hearing or other proceedings,

impose substantially the same discipline imposed by the other court unless the attorney

demonstrates, and the disciplinary panel is persuaded:

1. that the procedure used by the other court was so lacking in notice or opportunity to be

heard as to constitute a deprivation of due process; or

2. that there was such an infirmity of proof establishing the misconduct as to give rise to the

clear conviction that this Court could not, consistent with its duty, accept as final the

conclusion on that subject; or

3. that the imposition of substantially similar discipline by this Court would result in grave

injustice; or

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4. that the misconduct established is deemed by this Court to warrant different discipline.

Where the disciplinary panel determines that any of these elements exist, it shall enter such other

order as it deems appropriate.

In all other respects, a final adjudication in another court that an attorney has been guilty of

misconduct shall establish conclusively the misconduct for purposes of any disciplinary

proceeding in this Court.

RULE III

Disbarment on Consent or Resignation in Other Courts.

Any attorney admitted to practice before this Court who shall be disbarred on consent or resign

from the bar of any other court of the United States or the District of Columbia, or from the Bar of

any state, territory, commonwealth or possession of the United States while an investigation into

allegations of misconduct is pending, shall, upon the filing with this Court of a certified or

exemplified copy of the judgment or order accepting such disbarment on consent or resignation,

cease to be permitted to practice before this Court and be stricken from the roll of attorneys

admitted to practice before this Court.

Any attorney admitted to practice before this Court shall, upon being disbarred on consent or

resigning from the bar of any other court of the United States or the District of Columbia, or from

the Bar of any state, territory, commonwealth or possession of the United States while an

investigation into allegations of misconduct is pending, promptly inform the Clerk of this Court of

such disbarment on consent or resignation.

RULE IV

Standards for Professional Conduct.

For misconduct defined in these Rules, and for good cause shown, and after notice and

opportunity to be heard, any attorney admitted to practice before this Court may be disbarred,

suspended from practice before this Court, reprimanded or subjected to such other disciplinary

action as the circumstances may warrant.

Acts or omissions by an attorney admitted to practice before this Court, individually or in

concert with any other person or persons, which violate the Code of Professional Responsibility,

either of the state, territory, commonwealth or possession of the United States in which the attorney

maintains his principal office; or of the state, territory, commonwealth or possession of the United

States in which the attorney is acting at the time of the misconduct; or of the state in which the

circuit maintains its Clerk's Office, shall constitute misconduct and shall be grounds for discipline,

whether or not the act or omission occurred in the course of the attorney-client relationship. The

Code of Professional Responsibility means that code adopted by the highest court of the state,

territory, commonwealth or possession of the United States, as amended from time to time by that

court, except as otherwise provided by specific Rule of this Court after consideration of comments

by representatives of bar associations within the state, territory, commonwealth or possession of

132

the United States. Failure to comply with the Federal Rules of Appellate Procedure, the Local

Rules of this Court, or the orders of this Court may also constitute misconduct and be grounds for

discipline.

RULE V

Disciplinary Proceedings.

When misconduct or allegations of misconduct on the part of an attorney admitted to practice

before this Court shall come to the attention of a Judge or officer of this Court, whether by

complaint or otherwise, and the applicable procedure is not otherwise mandated by these rules, the

Judge or officer shall refer the matter to the Chief Judge for initial review. If the Chief Judge

determines that misconduct is alleged which, if substantiated, would warrant discipline by this

Court, the Chief Judge shall refer the matter to a disciplinary panel; if not, the Chief Judge may

dismiss the matter. A disciplinary panel shall consist of three judges of this Court, whether active

or senior, appointed by the Chief Judge. The Chief Judge may serve as a member of the disciplinary

panel. In the absence of the Chief Judge, the active judge most senior in service on the Court serves

as chair. If no active judge is on the disciplinary panel, the Chief Judge shall appoint the chair. The

disciplinary panel may at any time appoint counsel to investigate or to prosecute any disciplinary

matter. In a matter in which the Chief Judge is recused, references to "Chief Judge" shall mean the

senior active judge who is not recused.

If the disciplinary panel determines that cause may exist for disciplinary action, the disciplinary

panel will direct the Clerk of the Court to issue an order to the attorney in question to show cause

why (1) specified discipline should not be imposed or (2) discipline to be determined later should

not be imposed. The order shall be served on the attorney personally or by certified or registered

mail, shall notify the attorney of the alleged conduct and the reason the conduct may justify

disciplinary action, and shall direct that 5 copies of a response, including any supporting evidence

or request for a hearing, be filed within 30 days of service of the order or such other time as the

order may specify. The Clerk shall also append a copy of these rules to the order. In any response

to the order, the attorney must also (a) include an affidavit listing the other bars to which the

attorney is admitted, (b) note which if any of the facts alleged are controverted, and (c) specify the

basis on which any controverted facts are disputed. If the disciplinary panel determines on initial

investigation and review that cause does not exist for disciplinary action, the disciplinary panel

may dismiss the matter.

If the attorney fails to timely respond to an order to show cause, or if the attorney's timely

response to the order to show cause does not specifically request to be heard in person, the

disciplinary panel may direct entry of an order imposing discipline or take any other appropriate

action. If the attorney specifically requests to be heard in person, either in defense or in mitigation,

the disciplinary panel shall set the matter for such hearing as is appropriate under the

circumstances. The disciplinary panel may itself order a hearing whether or not one is requested.

Following such a hearing and the receipt of any findings or recommendation that may be required

and any further submissions that the disciplinary panel may invite, the disciplinary panel may

direct entry of an order imposing discipline or take any other appropriate action.

133

If a hearing is ordered, the disciplinary panel may conduct the hearing itself or designate a

special master (including but not limited to a district judge or magistrate judge serving within the

circuit) for purposes of conducting any hearing. The disciplinary panel (or the special master,

subject to the instruction of the disciplinary panel) may in its discretion adopt appropriate

procedural and evidentiary rules for any such hearing. At the conclusion of a hearing held before

a special master, the special master shall promptly make a report of findings and--if directed by

the disciplinary panel--recommendations to the disciplinary panel. A copy of the report and any

recommendations shall be made available to the attorney under investigation. The disciplinary

panel may reject or adopt the findings and/or recommendations of the special master in whole or

part.

Any attorney may file a petition for rehearing by the disciplinary panel or a combined petition

for rehearing by the disciplinary panel and suggestion for rehearing en banc by the active judges

of the Court. Similarly, the attorney may seek a stay of any disciplinary order entered by the

disciplinary panel, the stay to be sought from the disciplinary panel in the first instance and

thereafter if desired by the attorney from the Court en banc. The procedures for any such petition

will be in accordance with the Federal Rules of Appellate Procedure and the Local Rules of this

Court. If en banc review is granted, any senior judge shall be eligible to be a member of the en

banc Court, at that judge's election, in the circumstances specified in 28 U.S.C. § 46(c).

At any time, the disciplinary panel may in its discretion refer a disciplinary matter pending

before it to an appropriate state bar association or state disciplinary board. In such a case, the

disciplinary panel is free to dismiss the matter or hold its own proceedings in abeyance pending

the completion of the state disciplinary proceedings. Nothing in these rules prevents any

disciplinary panel, Judge, or officer of this Court from bringing disciplinary matters to the attention

of the appropriate state disciplinary authorities.

The provisions of this Rule shall govern disciplinary proceedings addressed to misconduct as

defined in Rule IV, and shall also apply to any proceedings under Rule I (Attorneys Convicted of

Crimes), Rule II (Discipline Imposed by Other Courts), and Rule VII (Reinstatement) to the extent

not inconsistent with the express provisions of those rules.

RULE VI

Disbarment on Consent While Under Disciplinary Investigation or Prosecution.

Any attorney admitted to practice before this Court who is the subject of an investigation into,

or a pending proceeding involving, allegations or misconduct may consent to disbarment, but only

by delivering to this Court an affidavit stating that the attorney desires to consent to disbarment

and that:

the attorney’s consent is freely and voluntarily rendered; the attorney is not being subjected

to coercion or duress; the attorney is fully aware of the implications of so consenting;

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the attorney is aware that there is a presently pending investigation or proceeding involving

allegation that there exist grounds for the attorney’s discipline the nature of which the

attorney shall specifically set forth;

the attorney acknowledges that the material facts so alleged are true; and

the attorney so consents because the attorney knows that if charges were predicted upon

the matters under investigation, or if the proceeding were prosecuted, the attorney could

not successfully defend himself.

Upon receipt of the required affidavit, this Court shall enter an order disbarring the attorney.

The order disbarring the attorney on consent shall be a matter of public record. However, the

affidavit required under the provisions of this Rule shall not be publicly disclosed or made

available for use in any other proceeding except upon order of this Court.

RULE VII

Reinstatement.

Unless this Court’s suspension order provides otherwise, an attorney who seeks to resume

practice before this Court after being disbarred or suspended under these rules must petition for

reinstatement. Petitions for reinstatement shall be filed with the Clerk of this Court and contain a

concise statement of the circumstances of the disciplinary proceeding, the discipline imposed by

this Court, and the grounds that justify reinstatement of the attorney in question. In accordance

with Rule V, the Chief Judge shall conduct an initial review, and, as warranted, dismiss the petition

or refer it to a disciplinary panel. After whatever investigation it sees fit, the disciplinary panel

may set the matter for whatever hearing it deems appropriate under the circumstances.

The petitioner shall have the burden of demonstrating by clear and convincing evidence that

he or she has the moral qualifications, competency, and learning in the law required for admission

to practice law before this Court and that the resumption of the practice of law will not be

detrimental to the integrity and standing of the bar or to the administration of justice, or subversive

to the public interest.

If the disciplinary panel finds that the petitioner is unfit to resume the practice of law, the

petition shall be dismissed. If the petitioner is found fit to resume the practice of law, the

disciplinary panel shall enter an order of reinstatement, provided that the disciplinary panel may

make reinstatement conditional upon the payment of all or part of the costs of the proceedings, and

upon the making of partial or complete restitution to parties harmed by the petitioner whose

conduct led to the suspension or disbarment, and the disciplinary panel may impose such other

reasonable conditions as it deems meet. Further, if the petitioner has been suspended or disbarred

for five or more years, the disciplinary panel may in its discretion condition reinstatement upon

the furnishing of proof of competency and learning in the law, which proof may include successful

completion of an examination for admission to practice subsequent to the date of suspension or

disbarment.

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No petition for reinstatement under this Rule shall be filed within one year following an

adverse final judgment upon a petition for reinstatement filed by or on behalf of the same attorney.

RULE VIII

Attorneys Specially Admitted.

Whenever an attorney applies to be admitted or is admitted to this Court for purposes of a

particular proceeding (pro hac vice), the attorney shall be deemed thereby to have conferred

disciplinary jurisdiction upon this Court for any alleged misconduct of that attorney arising in the

course of or in the preparation for such proceeding.

RULE IX

Appointment of Counsel.

Whenever counsel is appointed pursuant to these rules to investigate allegations of misconduct

or prosecute disciplinary proceedings or in conjunction with a reinstatement petition filed by a

disciplined attorney, a member of the Bar of this Court shall be appointed. Counsel, once

appointed, shall not resign without the consent of the disciplinary panel.

RULE X

Duties and Powers of the Clerk.

The Clerk of this Court shall promptly notify the National Discipline Data Bank operated by

the American Bar Association of any order imposing public discipline upon any attorney admitted

to practice before this Court.

The Clerk of this Court is empowered, upon being informed that any attorney admitted to

practice before this Court has been convicted of any crime or has been subjected to discipline by

another court, to obtain and file with this Court a certified or exemplified copy of such conviction

or disciplinary judgment or order.

Whenever it appears that any person who is disbarred or suspended or censured or disbarred

on consent by this Court is admitted to practice law in any other jurisdiction or before any other

court, the Clerk of this Court is empowered, to the extent he deems it desirable and necessary to

supplement the action taken under clause A, above, to so advise the disciplinary authority in such

other jurisdiction or such other court.

RULE XI

Jurisdiction.

Nothing contained in these Rules shall be construed to deny to this Court such powers as are

necessary for the Court to maintain control over proceedings conducted before it, such as

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proceedings for contempt under Title 18 of the United States Code or under Rule 42 of the Federal

Rules of Criminal Procedure.

RULE XII

Effective Date.

These Rules shall become effective on August 1, 2002, provided that any formal disciplinary

proceedings then pending before the Court shall (unless the Court otherwise directs) be concluded

under the Rules existing prior to that date.

JUDICIAL CONFERENCE OF THE UNITED STATES

___________________________

RULES FOR JUDICIAL-CONDUCT AND

JUDICIAL-DISABILITY PROCEEDINGS

Adopted March 11, 2008

Amended September 17, 2015

Amended March 12, 2019

UNITED STATES COURTS FOR THE FIRST CIRCUIT

___________________________

FIRST CIRCUIT LOCAL RULES FOR JUDICIAL-

CONDUCT AND JUDICIAL-DISABILITY PROCEEDINGS

Effective June 1, 2009

-i-

RULES FOR JUDICIAL-CONDUCT AND JUDICIAL-DISABILITY PROCEEDINGS

TABLE OF CONTENTS

Preface..............................................................................................................................................1

ARTICLE I. GENERAL PROVISIONS

1. Scope and Covered Judges...................................................................................................1

2. Construction and Effect .......................................................................................................2

3. General Definitions ..............................................................................................................3

(a) Chief Judge ..............................................................................................................3

(b) Circuit Clerk.............................................................................................................3

(c) Complaint .................................................................................................................3

(d) Court of Appeals, District Court, and District Judge ...............................................3

(e) Judicial Council and Circuit.....................................................................................4

(f) Judicial Employee ....................................................................................................4

(g) Magistrate Judge ......................................................................................................4

(h) Subject Judge ...........................................................................................................4

ARTICLE II. MISCONDUCT AND DISIBILITY

4. Misconduct and Disability Definitions ................................................................................6

(a) Misconduct Generally ..............................................................................................7

(b) Conduct Not Constituting Cognizable Misconduct .................................................7

(c) Disability ..................................................................................................................7

ARTICLE III. INITIATION OF COMPLAINT

5. Identification of Complaint ................................................................................................12

(a) Identification ..........................................................................................................12

(b) Submission Not Fully Complying with Rule 6 ......................................................12

6. Filing of Complaint ............................................................................................................13

(a) Form .......................................................................................................................13

(b) Brief Statement of Facts.........................................................................................13

(c) Legibility ................................................................................................................14

(d) Complainant's Address and Signature; Verification ..............................................14

(e) Number of Copies; Envelope Marking ..................................................................14

-ii-

7. Where to Initiate Complaint...............................................................................................14

(a) Where to File..........................................................................................................14

(b) Misconduct in Another Circuit; Transfer ...............................................................14

8. Action by Circuit Clerk ......................................................................................................15

(a) Receipt of Complaint .............................................................................................15

(b) Distribution of Copies ............................................................................................15

(d) Complaint Against Judge and Another Noncovered Person..................................15

Local Rule 8. Action by Circuit Executive upon Receipt of a Complaint ...................................16

9. Time for Filing or Identifying Complaint ..........................................................................17

10. Abuse of Complaint Procedure ..........................................................................................17

(a) Abusive Complaints ...............................................................................................17

(b) Orchestrated Complaints ........................................................................................17

ARTICLE IV. REVIEW OF COMPLAINT BY CHIEF JUDGE

11. Chief Judge's Review .........................................................................................................19

(a) Purpose of Chief Judge's Review ...........................................................................19

(b) Chief Judge's Inquiry .............................................................................................19

(c) Dismissal ................................................................................................................19

(d) Corrective Action ...................................................................................................20

(e) Intervening Events .................................................................................................20

(f) Appointment of Special Committee .......................................................................20

(g) Notice of Chief Judge's Action; Petition for Review .............................................20

(h) Public Availability of Chief Judge's Decision .......................................................21

ARTICLE V. INVESTIGATION AND REPORT BY SPECIAL COMMITTEE

12. Special Committee's Composition .....................................................................................26

(a) Membership ...........................................................................................................26

(b) Presiding Officer ....................................................................................................26

(d) Provision of Documents .........................................................................................26

(e) Continuing Qualification of Special-Committee Member .....................................26

(f) Inability of Special-Committee Member to Complete Service ..............................26

(g) Voting ....................................................................................................................26

13. Conduct of Special-Committee Investigation ....................................................................28

(a) Extent and Methods of Special-Committee Investigation .....................................28

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(b) Criminal Conduct ...................................................................................................28

(c) Staff ........................................................................................................................28

(d) Delegation of Subpoena Power; Contempt ............................................................28

14. Conduct of Special-Committee Hearings ..........................................................................29

(a) Purpose of Hearings ...............................................................................................29

(b) Special-Committee Evidence .................................................................................29

(d) Witness Fees ..........................................................................................................30

(e) Oath ....................................................................................................................... 30

(f) Rules of Evidence ..................................................................................................30

(g) Record and Transcript ............................................................................................30

15. Subject Judge's Rights .......................................................................................................30

(a) Notice .....................................................................................................................30

(b) Special-Committee Report .....................................................................................31

(d) Presentation of Argument ......................................................................................31

(e) Attendance at Hearings ..........................................................................................31

(f) Representation by Counsel ....................................................................................31

16. Complainant's Rights in Investigation ...............................................................................32

(a) Notice .....................................................................................................................32

(b) Opportunity to Provide Evidence...........................................................................32

(d) Representation by Counsel ....................................................................................32

17. Special-Committee Report .................................................................................................33

ARTICLE VI. REVIEW BY JUDICIAL COUNCIL

18. Petition for Review of Chief-Judge Disposition Under Rule 11(c), (d), or (e) .................34

(a) Petition for Review ................................................................................................34

(b) When to File; Form; Where to File ........................................................................34

(d) Untimely Petition ...................................................................................................34

(e) Timely Petition Not in Proper Form ......................................................................35

Local Rule 18. Petitions for Review of Chief Judge Dispositions under

Rule 11(c), (d) or (e) ..........................................................................................................35

19. Judicial-Council Disposition of Petition for Review .........................................................36

(a) Rights of Subject Judge .........................................................................................36

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(b) Judicial-Council Action .........................................................................................36

(d) Memorandum of Judicial-Council Decision ..........................................................36

(e) Review of Judicial-Council Decision ....................................................................37

(f) Public Availability of Judicial-Council Decision ..................................................37

Local Rule 19. Judicial Council Disposition of Petitions for Review...........................................37

20. Judicial-Council Action Following Appointment of Special Committee ..........................38

(a) Subject Judge's Rights ...........................................................................................38

(b) Judicial-Council Action .........................................................................................38

(d) Judicial-Council Vote ............................................................................................40

(e) Recommendation for Fee Reimbursement .............................................................40

(f) Judicial-Council Order ...........................................................................................40

ARTICLE VII. REVIEW BY COMMITTEE ON JUDICIAL CONDUCT AND DISABILITY

21. Committee on Judicial Conduct and Disability .................................................................43

(a) Committee Review.................................................................................................43

(b) Reviewable Matters ...............................................................................................43

(c) Committee Vote .....................................................................................................43

(d) Additional Investigation.........................................................................................43

(e) Oral Argument; Personal Appearance ...................................................................44

(f) Committee Decision...............................................................................................44

(g) Finality ...................................................................................................................44

22. Procedures for Review .......................................................................................................45

(a) Filing Petition for Review ......................................................................................45

(b) Form and Contents of Petition ...............................................................................45

(c) Time .......................................................................................................................45

(d) Action on Receipt of Petition .................................................................................45

ARTICLE VIII. MISCELLANEOUS RULES

23. Confidentiality ...................................................................................................................46

(a) Confidentiality Generally.......................................................................................46

(b) Confidentiality in the Complaint Process ..............................................................46

24. Public Availability of Decisions ........................................................................................50

(a) General Rule; Specific Cases .................................................................................50

(b) Manner of Making Public ......................................................................................50

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(d) Complaints Referred to Judicial Conference .........................................................51

25. Disqualification ..................................................................................................................52

(a) General Rule ..........................................................................................................52

(b) Subject Judge .........................................................................................................52

Review of Chief Judge's Order ..............................................................................53

(d) Member of Special Committee Not Disqualified ..................................................53

(e) Subject Judge's Disqualification After Appointment of Special Committee .........53

(f) Substitute for Disqualified Chief Judge .................................................................53

(g) Judicial-Council Action When Multiple Judges Disqualified ...............................53

(h) Disqualification of Members of Committee on Judicial Conduct

and Disability .........................................................................................................53

26. Transfer to Another Judicial Council .................................................................................56

27. Withdrawal of Complaint or Petition for Review ..............................................................56

(a) Complaint Pending Before Chief Judge ................................................................56

(b) Complaint Pending Before Special Committee or Judicial Council ......................56

(c) Petition for Review ................................................................................................56

28. Availability of Rules and Forms ........................................................................................57

29. Effective Date ....................................................................................................................57

RULES FOR JUDICIAL-CONDUCT AND JUDICIAL-DISABILITY PROCEEDINGS

Preface

These Rules were promulgated by the Judicial Conference of the United States, after public

comment, pursuant to 28 U.S.C. §§ 331 and 358, to establish standards and procedures for

addressing complaints filed by complainants or identified by chief judges under the Judicial

Conduct and Disability Act, 28 U.S.C. §§ 351–364.

ARTICLE I. GENERAL PROVISIONS

1. Scope and Covered Judges

(a) Scope. These Rules govern proceedings under the Judicial Conduct and Disability Act

(Act), 28 U.S.C. §§ 351–364, to determine whether a covered judge has engaged in

conduct prejudicial to the effective and expeditious administration of the business of

the courts or is unable to discharge the duties of office because of mental or physical

disability.

(b) Covered Judge. A covered judge is defined under the Act and is limited to judges of

United States courts of appeals, judges of United States district courts, judges of

United States bankruptcy courts, United States magistrate judges, and judges of the

courts specified in 28 U.S.C. § 363.

Commentary on Rule 1

In September 2006, the Judicial Conduct and Disability Act Study Committee (“Breyer

Committee”), appointed in 2004 by Chief Justice Rehnquist, presented a report (“Breyer

Committee Report”), 239 F.R.D. 116 (Sept. 2006), to Chief Justice Roberts that evaluated

implementation of the Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§ 351–364. The

Breyer Committee had been formed in response to criticism from the public and Congress

regarding the effectiveness of the Act’s implementation. The Executive Committee of the

Judicial Conference directed its Committee on Judicial Conduct and Disability to consider the

Breyer Committee’s recommendations and to report on their implementation to the Conference.

The Breyer Committee found that it could not evaluate implementation of the Act

without establishing interpretive standards, Breyer Committee Report, 239 F.R.D. at 132, and

that a major problem faced by chief judges in implementing the Act was the lack of authoritative

interpretive standards. Id. at 212–15. The Breyer Committee then established standards to guide

its evaluation, some of which were new formulations and some of which were taken from the

“Illustrative Rules Governing Complaints of Judicial Misconduct and Disability,” discussed

below. The principal standards used by the Breyer Committee are in Appendix E of its Report.

Id. at 238.

Based on the Breyer Committee’s findings, the Committee on Judicial Conduct and

Disability concluded that there was a need for the Judicial Conference to exercise its power

under Section 358 of the Act to fashion standards guiding the various officers and bodies that

must exercise responsibility under the Act. To that end, the Committee on Judicial Conduct and

Disability proposed rules based largely on Appendix E of the Breyer Committee Report and the

Illustrative Rules.

The Illustrative Rules were originally prepared in 1986 by the Special Committee of the

Conference of Chief Judges of the United States Courts of Appeals, and were subsequently

revised and amended, most recently in 2000, by the predecessor to the Committee on Judicial

Conduct and Disability. The Illustrative Rules were adopted, with minor variations, by circuit

judicial councils, to govern complaints under the Judicial Conduct and Disability Act.

After being submitted for public comment pursuant to 28 U.S.C. § 358(c), the Judicial

Conference promulgated the present Rules on March 11, 2008. They were amended on

September 17, 2015, and again on March 12, 2019.

The definition of a covered judge tracks the Judicial Conduct and Disability Act. See 28

U.S.C. § 351(d)(1) (defining the term “judge” as “a circuit judge, district judge, bankruptcy

judge, or magistrate judge”). As long as the subject of a complaint retains the judicial office and

remains a covered judge as defined in Rule 1(b), a complaint must be addressed. Id.; 28 U.S.C.

§§ 371(b); 372(a).

Rules 8(c) and (d) address the procedures for processing a complaint involving

allegations against a person not covered by the Act, such as other court personnel, or against both

a covered judge and a noncovered person. Court employees seeking to report, or file a claim

related to, misconduct or the denial of rights granted under their Employment Dispute Resolution

(EDR) plan by other court personnel may wish to consult the Model EDR Plan and the EDR plan

for the relevant court, among other resources. See Guide to Judiciary Policy, vol. 12, appx. 2B.

2. Construction and Effect

(a) Generally. These Rules are mandatory; they supersede any conflicting judicial-

council rules. Judicial councils may promulgate additional rules to implement the Act

as long as those rules do not conflict with these Rules.

(b) Exception. A Rule will not apply if, when performing duties authorized by the Act, a

chief judge, a special committee, a judicial council, the Committee on Judicial

Conduct and Disability, or the Judicial Conference expressly finds that exceptional

circumstances render application of that Rule in a particular proceeding manifestly

unjust or contrary to the purposes of the Act or these Rules.

Commentary on Rule 2

Unlike the Illustrative Rules, these Rules provide mandatory and nationally uniform

provisions governing the substantive and procedural aspects of misconduct and disability

proceedings under the Act. The mandatory nature of these Rules is authorized by 28 U.S.C. §

358(a) and (c). Judicial councils retain the power to promulgate rules consistent with these Rules.

For example, a local rule may authorize the electronic distribution of materials pursuant to Rule

8(b).

Rule 2(b) recognizes that unforeseen and exceptional circumstances may call for a

different approach in particular cases.

3. General Definitions

The following general definitions apply to these Rules. Cognizable misconduct and disability

are defined in Rule 4.

(a) Chief Judge. “Chief judge” means the chief judge of a United States court of appeals,

of the United States Court of International Trade, or of the United States Court of

Federal Claims.

(b) Circuit Clerk. “Circuit clerk” means a clerk of a United States court of appeals, the

clerk of the United States Court of International Trade, the clerk of the United States

Court of Federal Claims, or the circuit executive of the United States Court of Appeals

for the Federal Circuit.

(1) a document that, in accordance with Rule 6, is filed by, or on behalf of, any

person, including a document filed by an organization; or

(2) information from any source, other than a document described in (c)(1), that

gives a chief judge probable cause to believe that a covered judge, as defined

in Rule 1(b), has engaged in misconduct or may have a disability, whether or

not the information is framed as or is intended to be an allegation of

misconduct or disability.

(d) Court of Appeals, District Court, and District Judge. "Court of appeals," "district

court," and "district judge," where appropriate, include the United States Court of

Federal Claims, the United States Court of International Trade, and the judges

thereof.

(e) Judicial Council and Circuit. “Judicial council” and “circuit,” where appropriate,

include any courts designated in 28 U.S.C. § 363.

(f) Judicial Employee. “Judicial Employee” includes judicial assistants, law clerks, and

other court employees, including unpaid staff, such as interns, externs, and other

volunteer employees.

(g) Magistrate Judge. “Magistrate judge,” where appropriate, includes a special master

appointed by the Court of Federal Claims under 42 U.S.C. § 300aa-12(c).

(h) Subject Judge. “Subject judge” means a covered judge, as described in Rule 1(b), who

is the subject of a complaint.

Commentary on Rule 3

Rule 3 is derived and adapted from the Breyer Committee Report and the Illustrative

Rules.

Unless otherwise specified or the context otherwise indicates, the term "complaint" is

used in these Rules to refer both to complaints identified by a chief judge under Rule 5 and to

complaints filed by a complainant under Rule 6.

Under the Act, a “complaint” may be filed by “any person” or “identified” by a chief

judge. See 28 U.S.C. § 351(a), (b). Under Rule 3(c)(1), a complaint may be submitted by, or on

behalf of, any person, including a document filed by an organization. Traditional standing

requirements do not apply. Individuals or organizations may file a complaint even if they have

not been directly injured or aggrieved.

Generally, the word “complaint” brings to mind the commencement of an adversary

proceeding in which the contending parties are left to present the evidence and legal arguments,

and judges play the role of an essentially passive arbiter. The Act, however, establishes an

administrative, inquisitorial process. For example, even absent a complaint filed by a

complainant under Rule 6, chief judges are expected in some circumstances to trigger the process

— “identify a complaint,” see 28 U.S.C. § 351(b) and Rule 5 — and conduct an investigation

without becoming a party. See 28 U.S.C. § 352(a); Breyer Committee Report, 239 F.R.D. at 214;

Illustrative Rule 2(j). Where the complainant reveals information of misconduct or disability but

does not claim it as such, the chief judge is not limited to the “four corners of the complaint” and

should proceed under Rule 5 to determine whether identification of a complaint is appropriate.

See Breyer Committee Report, 239 F.R.D. at 183–84.

An allegation of misconduct or disability filed under Rule 6 is a “complaint,” and the

Rule so provides in subsection (c)(1). However, both the nature of the process and the use of the

term “identify” suggest that the word “complaint” covers more than a document formally

triggering the process. The process relies on chief judges considering known information and

triggering the process when appropriate. “Identifying” a “complaint,” therefore, is best

understood as the chief judge’s concluding that information known to the judge constitutes

probable cause to believe that misconduct occurred or a disability exists, whether or not the

information is framed as, or intended to be, an accusation. This definition is codified in

subsection (c)(2).

The remaining subsections of Rule 3 provide technical definitions clarifying the

application of the Rules.

ARTICLE II. MISCONDUCT AND DISABILITY

4. Misconduct and Disability Definitions

(a) Misconduct Generally. Cognizable Misconduct is conduct prejudicial to the effective and expeditious

administration of the business of the courts. Cognizable misconduct includes, but is not limited to,

the following:

(1) Violation of Specific Standards of Judicial Conduct. Cognizable misconduct includes:

(A) using the judge’s office to obtain special treatment for friends or relatives;

(B) accepting bribes, gifts, or other personal favors related to the judicial office;

a case;

(D) engaging in partisan political activity or making inappropriately partisan statements;

(E) soliciting funds for organizations; or

(F) violating rules or standards pertaining to restrictions on outside income or knowingly

violating requirements for financial disclosure.

(2) Abusive or Harassing Behavior. Cognizable misconduct includes:

(A) engaging in unwanted, offensive, or abusive sexual conduct, including sexual

harassment or assault;

(B) treating litigants, attorneys, judicial employees, or others in a demonstrably egregious

and hostile manner; or

(3) Discrimination. Cognizable misconduct includes intentional discrimination on the basis of

race, color, sex, gender, gender identity, pregnancy, sexual orientation, religion, national

origin, age, or disability;

(4) Retaliation. Cognizable misconduct includes retaliating against complainants, witnesses,

judicial employees, or others for participating in this complaint process, or for reporting or

disclosing judicial misconduct or disability;

(5) Interference or Failure to Comply with the Complaint Process. Cognizable misconduct

includes refusing, without good cause shown, to cooperate in the investigation of a complaint

or enforcement of a decision rendered under these Rules; or

(6) Failure to Report or Disclose. Cognizable misconduct includes failing to call to the attention

of the relevant chief district judge or chief circuit judge any reliable information reasonably

likely to constitute judicial misconduct or disability.

A judge who receives such reliable information shall respect a request for confidentiality but

shall nonetheless disclose the information to the relevant chief district judge or chief circuit

judge, who shall also treat the information as confidential. Certain reliable information may

be protected from disclosure by statute or rule. A judge’s assurance of confidentiality must

yield when there is reliable information of misconduct or disability that threatens the safety

or security of any person or that is serious or egregious such that it threatens the integrity and

proper functioning of the judiciary.

A person reporting information of misconduct or disability must be informed at the outset of

a judge’s responsibility to disclose such information to the relevant chief district judge or chief

circuit judge.

Reliable information reasonably likely to constitute judicial misconduct or disability related

to a chief circuit judge should be called to the attention of the next most-senior active circuit

judge. Such information related to a chief district judge should be called to the attention of

the chief circuit judge.

(7) Conduct Outside the Performance of Official Duties. Cognizable misconduct includes conduct

occurring outside the performance of official duties if the conduct is reasonably likely to have

a prejudicial effect on the administration of the business of the courts, including a substantial

and widespread lowering of public confidence in the courts among reasonable people.

(b) Conduct Not Constituting Cognizable Misconduct.

(1) Allegations Related to the Merits of a Decision or Procedural Ruling. Cognizable misconduct

does not include an allegation that calls into question the correctness of a judge’s ruling,

including a failure to recuse.

If the decision or ruling is alleged to be the result of an improper motive, e.g., a bribe, ex

parte contact, racial or ethnic bias, or improper conduct in rendering a decision or ruling,

such as personally derogatory remarks irrelevant to the issues, the complaint is not

cognizable to the extent that it calls into question the merits of the decision.

(2) Allegations About Delay. Cognizable misconduct does not include an allegation about delay

in rendering a decision or ruling, unless the allegation concerns an improper motive in

delaying a particular decision or habitual delay in a significant number of unrelated cases.

unable to discharge the duties of the particular judicial office. Examples of disability include

substance abuse, the inability to stay awake during court proceedings, or impairment of cognitive

abilities that renders the judge unable to function effectively.

Commentary on Rule 4

The phrase “prejudicial to the effective and expeditious administration of the business of the courts” is not

subject to precise definition, and subsection (a) therefore provides some specific examples. 28 U.S.C. § 351(a).

The Code of Conduct for United States Judges sets forth behavioral guidelines for judges. While the Code’s

Canons are instructive, ultimately the responsibility for determining what constitutes cognizable misconduct is

determined by the Act and these Rules, as interpreted and applied by judicial councils, subject to review and

limitations prescribed by the Act and these Rules. See also Rule 24 (Public Availability of Decisions).

Even where specific, mandatory rules exist — for example, governing the receipt of gifts by judges,

outside earned income, and financial disclosure obligations — the distinction between the misconduct statute and

these specific, mandatory rules must be borne in mind. For example, an inadvertent, minor violation of any one

of these rules, promptly remedied when called to the attention of the judge, might still be a violation but might

not rise to the level of misconduct under the Act. By contrast, a pattern of such violations of the Code might well

rise to the level of misconduct.

Rule 4(a)(2)(A) provides expressly that unwanted, offensive, or abusive sexual conduct by a judge,

including sexual harassment or assault, constitutes cognizable misconduct. The Rule recognizes that anyone can

be a victim of unwanted, offensive, or abusive sexual conduct, regardless of their sex and of the sex of the judge

engaging in the misconduct.

Under Rule 4(a)(4), a judge’s efforts to retaliate against any person for reporting or disclosing

misconduct, or otherwise participating in the complaint process constitute cognizable misconduct. The Rule

makes the prohibition against retaliation explicit in the interest of promoting public confidence in the complaint

process.

Rules 4(a)(2), (3), and (4) reflect the judiciary’s commitment to maintaining a work environment in which

all judicial employees are treated with dignity, fairness, and respect, and are free from harassment,

discrimination, and retaliation. See Code of Conduct for United States Judges, Canon 3A(3) cmt. (“The duty to

be respectful includes the responsibility to avoid comment or behavior that could reasonably be interpreted as

harassment, prejudice or bias.”).

Rule 4(a)(5) provides that a judge’s refusal, without good cause shown, to cooperate in the investigation

of a complaint or enforcement of a decision rendered under these Rules constitutes cognizable misconduct.

While the exercise of rights under the Fifth Amendment to the Constitution would constitute good cause under

Rule 4(a)(5), given the fact-specific nature of the inquiry, it is not possible to otherwise anticipate all

circumstances that might also constitute good cause. The Commentary on Rule 13 provides additional discussion

regarding Rule 4(a)(5). The Rules contemplate that judicial councils will not consider commencing proceedings

under Rule 4(a)(5) except as necessary after other means to acquire the information or enforce a decision have

been tried or have proven futile.

All judges have a duty to bring to the attention of the relevant chief district judge or chief circuit judge

reliable information reasonably likely to constitute judicial misconduct or disability. See Rule 4(a)(6). This duty

is included within every judge’s obligation to assist in addressing allegations of misconduct or disability and to

take appropriate action as necessary. Public confidence in the integrity and impartiality of the judiciary is

promoted when judges take appropriate action based on reliable information of likely misconduct. Appropriate

action depends on the circumstances, but the overarching goal of such action should be to prevent harm to those

affected by the misconduct and to prevent recurrence. See Code of Conduct for United States Judges, Canon

3B(6) & cmt. These Rules incorporate those principles while allowing for appropriate, expeditious, fair, and

effective resolutions of all such complaints.

The formal procedures outlined in these Rules are intended to address serious issues of judicial

misconduct and disability. By statute and rule, the chief circuit judge administers the misconduct and disability

complaint process, including the authority to investigate an allegation and, if warranted, to identify a formal

complaint. See Rule 5. Disclosures made to or otherwise brought to the attention of the appropriate chief district

judge of reliable information of misconduct or disability that threatens the safety or security of any person or that

is serious or egregious such that it threatens the integrity and proper functioning of the judiciary warrant

communication to and consultation with the chief circuit judge in light of the chief circuit judge’s statutory

responsibility for overseeing any required final action.

In practice, however, not all allegations of misconduct or disability will warrant resort to the formal

procedures outlined in these Rules because they appear likely to yield to effective, prompt resolution through

informal corrective action. In such cases, allegations may initially be addressed to the chief district judge or the

chief circuit judge to determine whether informal corrective action will suffice and to initiate such steps as

promptly as is reasonable under the circumstances.

A person who seeks to report information of misconduct or disability on a confidential or anonymous

basis may proceed through various alternative avenues within the judiciary, including the Office of Judicial

Integrity and/or comparable offices within the circuits.

Rule 4(a)(7) reflects that an allegation can meet the statutory standard for misconduct even though the

judge’s alleged conduct did not occur in the course of the performance of official duties. Furthermore, some

conduct specified in Rule 4(a)(1) through 4(a)(6), or not specified within these Rules, might constitute

misconduct occurring outside the performance of official duties. The Code of Conduct for United States Judges

expressly covers a wide range of extra‑official activities, and some of these activities may constitute misconduct

under the Act and these Rules. For example, allegations that a judge solicited funds for a charity or other

organization or participated in a partisan political event are cognizable under the Act even though they did not

occur in the course of the performance of the judge’s official duties.

Rule 4(b)(1) tracks the Act, 28 U.S.C. § 352(b)(1)(A)(ii), in excluding from the definition of misconduct

allegations “[d]irectly related to the merits of a decision or procedural ruling.” This exclusion preserves the

independence of judges in the exercise of judicial authority by ensuring that the complaint procedure is not used

to collaterally call into question the substance of a judge’s decision or procedural ruling. Any allegation that calls

into question the correctness of an official decision or procedural ruling of a judge — without more — is merits-

related. The phrase “decision or procedural ruling” is not limited to rulings issued in deciding Article III cases or

controversies. Thus, a complaint challenging the correctness of a chief judge’s determination to dismiss a prior

misconduct complaint would be properly dismissed as merits-related — in other words, as challenging the

substance of the judge’s administrative determination to dismiss the complaint — even though it does not

concern the judge’s rulings in Article III litigation. Similarly, an allegation that a judge incorrectly declined to

approve a Criminal Justice Act voucher is merits-related under this standard.

Conversely, an allegation that a judge conspired with a prosecutor to make a particular ruling is not

merits-related, even though it “relates” to a ruling in a colloquial sense. Such an allegation attacks the propriety

of conspiring with the prosecutor and goes beyond a challenge to the correctness — “the merits” — of the ruling

itself. An allegation that a judge ruled against the complainant because the complainant is a member of a

particular racial or ethnic group, or because the judge dislikes the complainant personally, is also not merits-

related. Such an allegation attacks the propriety of arriving at rulings with an illicit or improper motive.

Similarly, an allegation that a judge used an inappropriate term to refer to a class of people is not merits-related

even if the judge used it on the bench or in an opinion; the correctness of the judge’s rulings is not at stake. An

allegation that a judge treated litigants, attorneys, judicial employees, or others in a demonstrably egregious and

hostile manner is also not merits-related.

The existence of an appellate remedy is usually irrelevant to whether an allegation is merits-related. The

merits-related ground for dismissal exists to protect judges’ independence in making rulings, not to protect or

promote the appellate process. A complaint alleging an incorrect ruling is merits-related even though the

complainant has no recourse from that ruling. By the same token, an allegation that is otherwise cognizable

under the Act should not be dismissed merely because an appellate remedy appears to exist (for example,

vacating a ruling that resulted from an improper ex parte communication). However, there may be occasions

when appellate and misconduct proceedings overlap, and consideration and disposition of a complaint under

these Rules may be properly deferred by the chief judge until the appellate proceedings are concluded to avoid

inconsistent decisions.

Because of the special need to protect judges’ independence in deciding what to say in an opinion or

ruling, a somewhat different standard applies to determine the merits-relatedness of a non-frivolous allegation

that a judge’s language in a ruling reflected an improper motive. If the judge’s language was relevant to the case

at hand — for example, a statement that a claim is legally or factually “frivolous” — then the judge’s choice of

language is presumptively merits-related and excluded, absent evidence apart from the ruling itself suggesting an

improper motive. If, on the other hand, the challenged language does not seem relevant on its face, then an

additional inquiry under Rule 11(b) is necessary.

With regard to Rule 4(b)(2), a complaint of delay in a single case is excluded as merits-related. Such an

allegation may be said to challenge the correctness of an official action of the judge, i.e., assigning a low priority

to deciding the particular case. But, an allegation of a habitual pattern of delay in a significant number of

unrelated cases, or an allegation of deliberate delay in a single case arising out of an improper motive, is not

merits-related.

Rule 4(c) relates to disability and provides only the most general definition, recognizing that a fact-

specific approach is the only one available. A mental disability could involve cognitive impairment or any

psychiatric or psychological condition that renders the judge unable to discharge the duties of office. Such duties

may include those that are administrative. If, for example, the judge is a chief judge, the judicial council,

fulfilling its obligation under 28 U.S.C. § 332(d)(1) to make “necessary and appropriate orders for the effective

and expeditious administration of justice,” may find, under 28 U.S.C. § 45(d) or § 136(e), that the judge is

“temporarily unable to perform” his or her chief-judge duties. In that event, an appropriate remedy could

involve, under Rule 20(b)(1)(D)(vii), temporary reassignment of chief-judge duties to the next judge statutorily

eligible to perform them.

Confidentiality as referenced elsewhere in these Rules is directed toward protecting the fairness and

thoroughness of the process by which a complaint is filed or initiated, investigated (in specific circumstances),

and ultimately resolved, as specified under these Rules. Nothing in these Rules concerning the confidentiality of

the complaint process or the Code of Conduct for Judicial Employees concerning use or disclosure of

confidential information received in the course of official duties prevents judicial employees from reporting or

disclosing misconduct or disability. See Rule 23(c).

ARTICLE III. INITIATION OF COMPLAINT

5. Identification of Complaint

(a) Identification. When a chief judge has information constituting reasonable grounds for inquiry into

whether a covered judge has engaged in misconduct or has a disability, the chief judge may conduct

an inquiry, as he or she deems appropriate, into the accuracy of the information even if no related

complaint has been filed. A chief judge who finds probable cause to believe that misconduct has

occurred or that a disability exists may seek an informal resolution that he or she finds satisfactory.

If no informal resolution is achieved or is feasible, the chief judge may identify a complaint and, by

written order stating the reasons, begin the review provided in Rule 11. If the evidence of misconduct

is clear and convincing and no informal resolution is achieved or is feasible, the chief judge must

identify a complaint. A chief judge must not decline to identify a complaint merely because the person

making the allegation has not filed a complaint under Rule 6. This Rule is subject to Rule 7.

(b) Submission Not Fully Complying with Rule 6. A legible submission in substantial but not full

compliance with Rule 6 must be considered as possible grounds for the identification of a complaint

under Rule 5(a).

Commentary on Rule 5

This Rule is adapted from the Breyer Committee Report, 239 F.R.D. at 245–46.

The Act authorizes a chief judge, by written order stating reasons, to identify a complaint and thereby

dispense with the filing of a written complaint. See 28 U.S.C. § 351(b). Under Rule 5, when a chief judge

becomes aware of information constituting reasonable grounds to inquire into possible misconduct or disability

on the part of a covered judge, and no formal complaint has been filed, the chief judge has the power in his or her

discretion to begin an appropriate inquiry. A chief judge's decision whether to informally seek a resolution and/or

to identify a complaint is guided by the results of that inquiry. If the chief judge concludes that there is probable

cause to believe that misconduct has occurred or a disability exists, the chief judge may seek an informal

resolution, if feasible, and if failing in that, may identify a complaint. Discretion is accorded largely for the

reasons police officers and prosecutors have discretion in making arrests or bringing charges. The matter may be

trivial and isolated, based on marginal evidence, or otherwise highly unlikely to lead to a misconduct or disability

finding. On the other hand, if the inquiry leads the chief judge to conclude that there is clear and convincing

evidence of misconduct or a disability, and no satisfactory informal resolution has been achieved or is feasible,

the chief judge is required to identify a complaint.

An informal resolution is one agreed to by the subject judge and found satisfactory by the chief judge.

Because an informal resolution under Rule 5 reached before a complaint is filed under Rule 6 will generally

cause a subsequent Rule 6 complaint alleging the identical matter to be concluded, See Rule 11(d), the chief

judge must be sure that the resolution is fully appropriate before endorsing it. In doing so, the chief judge must

balance the seriousness of the matter against the particular judge's alacrity in addressing the issue. The

availability of this procedure should encourage attempts at swift remedial action before a formal complaint is

filed.

When a chief judge identifies a complaint, a written order stating the reasons for the identification must

be provided; this begins the process articulated in Rule 11. Rule 11 provides that once a chief judge has identified

a complaint, the chief judge, subject to the disqualification provisions of Rule 25, will perform, with respect to

that complaint, all functions assigned to the chief judge for the determination of complaints filed by a

complainant.

In high-visibility situations, it may be desirable for a chief judge to identify a complaint without first

seeking an informal resolution (and then, if the circumstances warrant, dismiss or conclude the identified

complaint without appointment of a special committee) in order to assure the public that the allegations have not

been ignored.

A chief judge's decision not to identify a complaint under Rule 5 is not appealable and is subject to Rule

4(b)(1), which excludes merits-related complaints from the definition of misconduct.

A chief judge may not decline to identify a complaint solely on the basis that the unfiled allegations could

be raised by one or more persons in a filed complaint, but none of these persons has opted to do so.

Subsection (a) concludes by stating that this Rule is "subject to Rule 7." This is intended to establish that

only (i) the chief judge of the home circuit of a potential subject judge, or (ii) the chief judge of a circuit in which

misconduct is alleged to have occurred in the course of official business while the potential subject judge was

sitting by designation, shall have the power or a duty under this Rule to identify a complaint.

Subsection (b) provides that submissions that do not comply with the requirements of Rule 6(d) must be

considered under Rule 5(a). For instance, if a complaint has been filed but the form submitted is unsigned, or the

truth of the statements therein are not verified in writing under penalty of perjury, then a chief judge must

nevertheless consider the allegations as known information and as a possible basis for the identification of a

complaint under the process described in Rule 5(a).

6. Filing of Complaint

(a) Form. A complainant may use the form reproduced in the Appendix to these Rules or a form

designated by the rules of the judicial council in the circuit in which the complaint is filed. A

complaint form is also available on each court of appeals' website or may be obtained from the circuit

clerk or any district court or bankruptcy court within the circuit. A form is not necessary to file a

complaint, but the complaint must be written and must include the information described in (b).

(b) Brief Statement of Facts. A complaint must contain a concise statement that details the specific facts

on which the claim of misconduct or disability is based. The statement of facts should include a

description of:

(1) what happened;

(2) when and where the relevant events happened;

(3) any information that would help an investigator check the facts; and

(4) for an allegation of disability, any additional facts that form the basis of that allegation.

illegible complaint will be returned to the complainant with a request to resubmit it in legible form.

If a resubmitted complaint is still illegible, it will not be accepted for filing.

(d) Complainant's Address and Signature; Verification. The complainant must provide a contact

address and sign the complaint. The truth of the statements made in the complaint must be verified

in writing under penalty of perjury. If any of these requirements are not met, the submission will be

accepted, but it will be reviewed under only Rule 5(b).

(e) Number of Copies; Envelope Marking. The complainant shall provide the number of copies of the

complaint required by local rule. Each copy should be in an envelope marked “Complaint of

Misconduct” or “Complaint of Disability.” The envelope must not show the name of any subject

judge.

Commentary on Rule 6

The Rule is adapted from the Illustrative Rules and is largely self-explanatory. As discussed in the

Commentary on Rule 4 and in Rule 23(c), confidentiality as referenced elsewhere in these Rules does not prevent

judicial employees from reporting or disclosing misconduct or disability.

7. Where to Initiate Complaint

(a) Where to File. Except as provided in (b),

(1) a complaint against a judge of a United States court of appeals, a United States district court,

a United States bankruptcy court, or a United States magistrate judge must be filed with the

circuit clerk in the jurisdiction in which the subject judge holds office.

(2) a complaint against a judge of the United States Court of International Trade or the United

States Court of Federal Claims must be filed with the respective clerk of that court.

(3) a complaint against a judge of the United States Court of Appeals for the Federal Circuit must

be filed with the circuit executive of that court.

(b) Misconduct in Another Circuit; Transfer. If a complaint alleges misconduct in the course of official

business while the subject judge was sitting on a court by designation under 28 U.S.C. §§ 291–293

and 294(d), the complaint may be filed or identified with the circuit clerk of that circuit or of the

subject judge's home circuit. The proceeding will continue in the circuit of the first-filed or first-

identified complaint. The judicial council of the circuit where the complaint was first filed or first

identified may transfer the complaint to the subject judge's home circuit or to the circuit where the

alleged misconduct occurred, as the case may be.

Commentary on Rule 7

Title 28 U.S.C. § 351 states that complaints are to be filed with "the clerk of the court of appeals for the

circuit." However, in many circuits, this role is filled by circuit executives. Accordingly, the term "circuit clerk,"

as defined in Rule 3(b) and used throughout these Rules, applies to circuit executives.

Section 351 uses the term "the circuit" in a way that suggests that either the home circuit of the subject

judge or the circuit in which misconduct is alleged to have occurred is the proper venue for complaints. With an

exception for judges sitting by designation, the Rule requires the filing or identification of a misconduct or

disability complaint in the circuit in which the judge holds office, largely based on the administrative perspective

of the Act. Given the Act's emphasis on the future conduct of the business of the courts, the circuit in which the

judge holds office is the appropriate forum because that circuit is likely best able to influence a judge's future

behavior in constructive ways.

However, when judges sit by designation, the non-home circuit has a strong interest in redressing

misconduct in the course of official business, and where allegations also involve a member of the bar — ex parte

contact between an attorney and a judge, for example — it may often be desirable to have the judicial and bar

misconduct proceedings take place in the same venue. Rule 7(b), therefore, allows transfer to, or filing or

identification of a complaint in, the non-home circuit. The proceeding may be transferred by the judicial council

of the filing or identified circuit to the other circuit.

8. Action by Circuit Clerk

(a) Receipt of Complaint. Upon receiving a complaint against a judge filed under Rule 6 or identified

under Rule 5, the circuit clerk must open a file, assign a docket number according to a uniform

numbering scheme promulgated by the Committee on Judicial Conduct and Disability, and

acknowledge the complaint’s receipt.

(b) Distribution of Copies. The circuit clerk must promptly send copies of a complaint filed under Rule

6 to the chief judge or, where the chief judge is disqualified from considering a complaint, to the

judge authorized to act as chief judge under Rule 25(f), and copies of complaints filed under Rule 6

or identified under Rule 5 to each subject judge. The circuit clerk must retain the original complaint.

Any further distribution should be as provided by local rule.

holding an office described in Rule 1(b), the clerk must not accept the complaint under these Rules.

(d) Complaint Against Judge and Another Noncovered Person. If the circuit clerk receives a complaint

about a judge described in Rule 1(b) and a person not holding an office described in Rule 1(b), the

clerk must accept the complaint under these Rules only with regard to the judge and must so inform

the complainant.

Commentary on Rule 8

This Rule is adapted from the Illustrative Rules and is largely self-explanatory.

The uniform docketing scheme described in subsection (a) should take into account potential problems

associated with a complaint that names multiple judges. One solution may be to provide separate docket numbers

for each subject judge. Separate docket numbers would help avoid difficulties in tracking cases, particularly if a

complaint is dismissed with respect to some, but not all of the named judges.

Complaints against noncovered persons are not to be accepted for processing under these Rules but may,

of course, be accepted under other circuit rules or procedures for grievances.

Local Rule 8. Action by Circuit Executive upon Receipt of a Complaint

(a) Receipt of Complaint in Proper Form. Upon receipt of a complaint against a judge filed in

proper form under these rules, the clerk of court of appeals will promptly transmit it to the circuit executive.

The circuit executive will have custody of the complaint and all related papers and see that the complaint is

expeditiously processed. The circuit executive will docket the complaint according to a uniform numbering

scheme promulgated by the Judicial Conference Committee on Judicial Conduct and Disability, and

acknowledge the complaint’s receipt. The circuit executive will promptly distribute copies of the complaint in

accordance with Rule 8(b). When the chief judge issues an order identifying a complaint under rule 5(a), the

circuit executive will process such complaint as otherwise provided by these rules.

(b) Distribution of Copies. If a district judge or magistrate judge is complained about, the circuit executive

will also send a copy of the complaint to the chief judge of the district court in which the judge or magistrate

judge holds his or her appointment. If a bankruptcy judge is complained about, the circuit executive will send

copies to the chief judges of the district court and the bankruptcy court. However, if the chief judge of the

district court or bankruptcy court is a subject of a complaint, the chief judge’s copy will be sent to the judge of

such court in regular active service who is most senior in date of commission among those who are not subjects

of the complaint.

not holding an office described in Rule 4, the circuit executive will not accept the complaint for filing and will

advise the complainant in writing of the procedure for processing such complaints.

(d) Receipt of Complaint about a Judge and Another Noncovered Person. If a complaint is received about

a judge described in Rule 4 and a person not holding an office described in Rule 4, the circuit executive will

accept the complaint for filing only with regard to the judge, and will advise the complainant accordingly.

(e) Receipt of a Complaint Not in Proper Form. If the circuit executive receives a complaint against a judge

described in Rule 4 that does not comply with the requirements of Rule 6, the circuit executive will ensure that

the complaint is reviewed under Rule 5(b), will advise the complainant of the appropriate procedures for refiling

the complaint under Rule 6, and will enclose a copy of these rules and the accompanying forms.

9. Time for Filing or Identifying Complaint

A complaint may be filed or identified at any time. If the passage of time has made an accurate and fair

investigation of a complaint impracticable, the complaint must be dismissed under Rule 11(c)(1)(E).

Commentary on Rule 9

This Rule is adapted from the Act, 28 U.S.C. §§ 351, 352(b)(1)(A)(iii), and the Illustrative Rules.

10. Abuse of Complaint Procedure

(a) Abusive Complaints. A complainant who has filed repetitive, harassing, or frivolous complaints, or

has otherwise abused the complaint procedure, may be restricted from filing further complaints.

After giving the complainant an opportunity to show cause in writing why his or her right to file

further complaints should not be limited, the judicial council may prohibit, restrict, or impose

conditions on the complainant's use of the complaint procedure. Upon written request of the

complainant, the judicial council may revise or withdraw any prohibition, restriction, or condition

previously imposed.

(b) Orchestrated Complaints. When many essentially identical complaints from different complainants

are received and appear to be part of an orchestrated campaign, the chief judge may recommend

that the judicial council issue a written order instructing the circuit clerk to accept only a certain

number of such complaints for filing and to refuse to accept additional complaints. The circuit clerk

must send a copy of any such order to anyone whose complaint was not accepted.

Commentary on Rule 10

This Rule is adapted from the Illustrative Rules.

Rule 10(a) provides a mechanism for a judicial council to restrict the filing of further complaints by a

single complainant who has abused the complaint procedure. In some instances, however, the complaint

procedure may be abused in a manner for which the remedy provided in Rule 10(a) may not be appropriate. For

example, some circuits have been inundated with submissions of dozens or hundreds of essentially identical

complaints against the same judge or judges, all submitted by different complainants. In many of these instances,

persons with grievances against a particular judge or judges used the Internet or other technology to orchestrate

mass complaint filing campaigns against them. If each complaint submitted as part of such a campaign were

accepted for filing and processed according to these Rules, there would be a serious drain on court resources

without any benefit to the adjudication of the underlying merits.

A judicial council may, therefore, respond to such mass filings under Rule 10(b) by declining to accept

repetitive complaints for filing, regardless of the fact that the complaints are nominally submitted by different

complainants. When the first complaint or complaints have been dismissed on the merits, and when further,

essentially identical submissions follow, the judicial council may issue a second order noting that these are

identical or repetitive complaints, directing the circuit clerk not to accept these complaints or any further such

complaints for filing, and directing the clerk to send each putative complainant copies of both orders.

ARTICLE IV. REVIEW OF COMPLAINT BY CHIEF JUDGE

11. Chief Judge's Review

(a) Purpose of Chief Judge’s Review. When a complaint is identified by the chief judge or is filed, the

chief judge must review it unless the chief judge is disqualified under Rule 25, in which case the most-

senior active circuit judge not disqualified will review the complaint. If a complaint contains

information constituting evidence of misconduct or disability, but the complainant does not claim it

as such, the chief judge must treat the complaint as if it did allege misconduct or disability and give

notice to the subject judge. After reviewing a complaint, the chief judge must determine whether it

should be:

(1) dismissed;

(2) concluded on the ground that voluntary corrective action has been taken;

(3) concluded because intervening events have made action on the complaint no longer necessary;

(4) referred to a special committee.

(b) Chief Judge's Inquiry. In determining what action to take under Rule 11(a), the chief judge may

conduct a limited inquiry. The chief judge, or a designee, may communicate orally or in writing with

the complainant, the subject judge, and any others who may have knowledge of the matter, and may

obtain and review transcripts and other relevant documents. In conducting the inquiry, the chief

judge must not determine any reasonably disputed issue. Any such determination must be left to a

special committee appointed under Rule 11(f) and to the judicial council that considers the

committee’s report.

(1) Permissible grounds. A complaint may be dismissed in whole or in part to the extent that the

chief judge concludes that the complaint:

(A) alleges conduct that, even if true, is not prejudicial to the effective and expeditious

administration of the business of the courts and does not indicate a mental or physical

disability resulting in the inability to discharge the duties of judicial office;

(B) is directly related to the merits of a decision or procedural ruling;

(D) is based on allegations lacking sufficient evidence to raise an inference that misconduct

has occurred or that a disability exists;

(E) is based on allegations that are incapable of being established through investigation;

(F) has been filed in the wrong circuit under Rule 7; or

(G) is otherwise not appropriate for consideration under the Act.

(2) Impermissible grounds. A complaint must not be dismissed solely because it repeats

allegations of a previously dismissed complaint if it also contains material information not

previously considered and does not constitute harassment of the subject judge.

(d) Corrective Action. The chief judge may conclude a complaint proceeding in whole or in part if:

(1) an informal resolution under Rule 5 satisfactory to the chief judge was reached before the

complaint was filed under Rule 6; or

(2) the chief judge determines that the subject judge has taken appropriate voluntary corrective

action that acknowledges and remedies the problems raised by the complaint.

(e) Intervening Events. The chief judge may conclude a complaint proceeding in whole or in part upon

determining that intervening events render some or all of the allegations moot or make remedial

action impossible as to the subject judge.

(f) Appointment of Special Committee. If some or all of a complaint is not dismissed or concluded, the

chief judge must promptly appoint a special committee to investigate the complaint or any relevant

portion of it and to make recommendations to the judicial council. Before appointing a special

committee, the chief judge must invite the subject judge to respond to the complaint either orally or

in writing if the judge was not given an opportunity during the limited inquiry. In the chief judge's

discretion, separate complaints may be joined and assigned to a single special committee. Similarly,

a single complaint about more than one judge may be severed and more than one special committee

appointed.

(g) Notice of Chief Judge's Action; Petition for Review.

(1) When chief judge appoints special committee. If the chief judge appoints a special committee,

the chief judge must notify the complainant and the subject judge that the matter has been

referred to a committee, notify the complainant of a complainant’s rights under Rule 16, and

identify the members of the committee. A copy of the order appointing the special committee

must be sent to the Committee on Judicial Conduct and Disability.

(2) When chief judge disposes of complaint without appointing special committee. If the chief

judge disposes of a complaint under Rule 11(c), (d), or (e), the chief judge must prepare a

supporting memorandum that sets forth the reasons for the disposition. If the complaint was

initiated by identification under Rule 5, the memorandum must so indicate. Except as

authorized by 28 U.S.C. § 360, the memorandum must not include the name of the

complainant or of the subject judge. The order and memoranda incorporated by reference in

the order must be promptly sent to the complainant, the subject judge, and the Committee on

Judicial Conduct and Disability.

(3) Right to petition for review. If the chief judge disposes of a complaint under Rule 11(c), (d),

or (e), the complainant and the subject judge must be notified of the right to petition the

judicial council for review of the disposition, as provided in Rule 18. If the chief judge so

disposes of a complaint that was identified under Rule 5 or filed by its subject judge, the chief

judge must transmit the order and memoranda incorporated by reference in the order to the

judicial council for review in accordance with Rule 19. In the event of such a transmission, the

subject judge may make a written submission to the judicial council but will have no further

right of review except as allowed under Rule 21(b)(1)(B). When a disposition is to be reviewed

by the judicial council, the chief judge must promptly transmit all materials obtained in

connection with the inquiry under Rule 11(b) to the circuit clerk for transmittal to the council.

(h) Public Availability of Chief Judge's Decision. The chief judge's decision must be made public to the

extent, at the time, and in the manner provided in Rule 24.

Commentary on Rule 11

This Rule describes complaint-review actions available either to the chief judge or, where that judge is the

subject judge or is otherwise disqualified under Rule 25, such as where the complaint is filed against the chief

judge, to the judge designated under Rule 25(f) to perform the chief judge’s duties under these Rules. Subsection

(a) of this Rule provides that where a complaint has been filed under Rule 6, the ordinary doctrines of waiver do

not apply. The chief judge must identify as a complaint any misconduct or disability issues raised by the factual

allegations of the complaint even if the complainant makes no such claim with regard to those issues. For

example, an allegation limited to misconduct in fact-finding that mentions periods during a trial when the judge

was asleep must be treated as a complaint regarding disability. A formal order giving notice of the expanded

scope of the proceeding must be given to the subject judge.

Subsection (b) describes the nature of the chief judge's inquiry. It is based largely on the Breyer

Committee Report, 239 F.R.D. at 243–45. The Act states that dismissal is appropriate "when a limited inquiry . . .

demonstrates that the allegations in the complaint lack any factual foundation or are conclusively refuted by

objective evidence." 28 U.S.C. § 352(b)(1)(B). At the same time, however, Section 352(a) states that "[t]he chief

judge shall not undertake to make findings of fact about any matter that is reasonably in dispute." These two

statutory standards should be read together so that a matter is not "reasonably" in dispute if a limited inquiry

shows that the allegations do not constitute misconduct or disability, that they lack any reliable factual

foundation, or that they are conclusively refuted by objective evidence.

In conducting a limited inquiry under subsection (b), the chief judge must avoid determinations of

reasonably disputed issues, including reasonably disputed issues as to whether the facts alleged constitute

misconduct or disability, which are ordinarily left to the judicial council and its special committee. An allegation

of fact is ordinarily not "refuted" simply because the subject judge denies it. The limited inquiry must reveal

something more in the way of refutation before it is appropriate to dismiss a complaint that is otherwise

cognizable. If it is the complainant's word against the subject judge's — in other words, there is simply no other

significant evidence of what happened or of the complainant's unreliability — then there must be a special-

committee investigation. Such a credibility issue is a matter "reasonably in dispute" within the meaning of the

Act.

However, dismissal following a limited inquiry may occur when a complaint refers to transcripts or to

witnesses and the chief judge determines that the transcripts and witnesses all support the subject judge. Breyer

Committee Report, 239 F.R.D. at 243. For example, consider a complaint alleging that the subject judge said X,

and the complaint mentions, or it is independently clear, that five people may have heard what the judge said. Id.

The chief judge is told by the subject judge and one witness that the judge did not say X, and the chief judge

dismisses the complaint without questioning the other four possible witnesses. Id. In this example, the matter

remains reasonably in dispute. If all five witnesses say the subject judge did not say X, dismissal is appropriate,

but if potential witnesses who are reasonably accessible have not been questioned, then the matter remains

reasonably in dispute. Id.

Similarly, under subsection (c)(1)(A), if it is clear that the conduct or disability alleged, even if true, is not

cognizable under these Rules, the complaint should be dismissed. If that issue is reasonably in dispute, however,

dismissal under subsection (c)(1)(A) is inappropriate.

Essentially, the standard articulated in subsection (b) is that used to decide motions for summary

judgment pursuant to Fed. R. Civ. P. 56. Genuine issues of material fact are not resolved at the summary

judgment stage. A material fact is one that "might affect the outcome of the suit under the governing law," and a

dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving

party." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Similarly, the chief judge may not resolve a

genuine issue concerning a material fact or the existence of misconduct or a disability when conducting a limited

inquiry pursuant to subsection (b).

Subsection (c) describes the grounds on which a complaint may be dismissed. These are adapted from the

Act, 28 U.S.C. § 352(b), and the Breyer Committee Report, 239 F.R.D. at 239–45. Subsection (c)(1)(A) permits

dismissal of an allegation that, even if true, does not constitute misconduct or disability under the statutory

standard. The proper standards are set out in Rule 4 and discussed in the Commentary on that Rule. Subsection

(c)(1)(B) permits dismissal of complaints related to the merits of a decision by a subject judge; this standard is

also governed by Rule 4 and its accompanying Commentary.

Subsections (c)(1)(C)-(E) implement the statute by allowing dismissal of complaints that are "frivolous,

lacking sufficient evidence to raise an inference that misconduct has occurred, or containing allegations which

are incapable of being established through investigation." 28 U.S.C. § 352(b)(1)(A)(iii).

Dismissal of a complaint as "frivolous" under Rule 11(c)(1)(C) will generally occur without any inquiry

beyond the face of the complaint. For instance, when the allegations are facially incredible or so lacking in

indicia of reliability that no further inquiry is warranted, dismissal under this subsection is appropriate.

A complaint warranting dismissal under Rule 11(c)(1)(D) is illustrated by the following example.

Consider a complainant who alleges an impropriety and asserts that he knows of it because it was observed and

reported to him by a person who is identified. The subject judge denies that the event occurred. When contacted,

the source also denies it. In such a case, the chief judge's proper course of action may turn on whether the source

had any role in the allegedly improper conduct. If the complaint was based on a lawyer's statement that he or she

had an improper ex parte contact with a judge, the lawyer's denial of the impropriety might not be taken as

wholly persuasive, and it would be appropriate to conclude that a real factual issue is raised. On the other hand, if

the complaint quoted a disinterested third party and that disinterested party denied that the statement had been

made, there would be no value in opening a formal investigation. In such a case, it would be appropriate to

dismiss the complaint under Rule 11(c)(1)(D).

Rule 11(c)(1)(E) is intended, among other things, to cover situations when no evidence is offered or

identified, or when the only identified source is unavailable. Breyer Committee Report, 239 F.R.D. at 243. For

example, a complaint alleges that an unnamed attorney told the complainant that the subject judge did X. Id. The

subject judge denies it. The chief judge requests that the complainant (who does not purport to have observed the

subject judge do X) identify the unnamed witness, or that the unnamed witness come forward so that the chief

judge can learn the unnamed witness's account. Id. The complainant responds that he has spoken with the

unnamed witness, that the unnamed witness is an attorney who practices in federal court, and that the unnamed

witness is unwilling to be identified or to come forward. Id. at 243–44. The allegation is then properly dismissed

as containing allegations that are incapable of being established through investigation. Id.

If, however, the situation involves a reasonable dispute over credibility, the matter should proceed. For

example, the complainant alleges an impropriety and alleges that he or she observed it and that there were no

other witnesses; the subject judge denies that the event occurred. Unless the complainant's allegations are facially

incredible or so lacking indicia of reliability as to warrant dismissal under Rule 11(c)(1)(C), a special committee

must be appointed because there is a material factual question that is reasonably in dispute.

Dismissal is also appropriate when a complaint is filed so long after an alleged event that memory loss,

death, or changes to unknown residences prevent a proper investigation.

Subsection (c)(2) indicates that the investigative nature of the process prevents the application of claim

preclusion principles where new and material evidence becomes available. However, it also recognizes that at

some point a renewed investigation may constitute harassment of the subject judge and should not be undertaken,

depending of course on the seriousness of the issues and the weight of the new evidence.

Rule 11(d) implements the Act's provision for dismissal if voluntary appropriate corrective action has

been taken. It is largely adapted from the Breyer Committee Report, 239 F.R.D. at 244–45. The Act authorizes

the chief judge to conclude the complaint proceedings if "appropriate corrective action has been taken." 28

U.S.C. § 352(b)(2). Under the Rule, action taken after a complaint is filed is "appropriate" when it acknowledges

and remedies the problem raised by the complaint. Breyer Committee Report, 239 F.R.D. at 244. Because the Act

deals with the conduct of judges, the emphasis is on correction of the judicial conduct that was the subject of the

complaint. Id. Terminating a complaint based on corrective action is premised on the implicit understanding that

voluntary self-correction or redress of misconduct or a disability may be preferable to sanctions. Id. The chief

judge may facilitate this process by giving the subject judge an objective view of the appearance of the judicial

conduct in question and by suggesting appropriate corrective measures. Id. Moreover, when corrective action is

taken under Rule 5 satisfactory to the chief judge before a complaint is filed, that informal resolution will be

sufficient to conclude a subsequent complaint based on identical conduct.

"Corrective action" must be voluntary action taken by the subject judge. Breyer Committee Report, 239

F.R.D. at 244. A remedial action directed by the chief judge or by an appellate court without the participation of

the subject judge in formulating the directive or without the subject judge's subsequent agreement to such action

does not constitute the requisite voluntary corrective action. Id. Neither the chief judge nor an appellate court has

authority under the Act to impose a formal remedy or sanction; only the judicial council can impose a formal

remedy or sanction under 28 U.S.C. § 354(a)(2). Id. Compliance with a previous judicial-council order may serve

as corrective action allowing conclusion of a later complaint about the same behavior. Id.

Where a subject judge's conduct has resulted in identifiable, particularized harm to the complainant or

another individual, appropriate corrective action should include steps taken by that judge to acknowledge and

redress the harm, if possible, such as by an apology, recusal from a case, or a pledge to refrain from similar

conduct in the future. Id. While the Act is generally forward-looking, any corrective action should, to the extent

possible, serve to correct a specific harm to an individual, if such harm can reasonably be remedied. Id. In some

cases, corrective action may not be "appropriate" to justify conclusion of a complaint unless the complainant or

other individual harmed is meaningfully apprised of the nature of the corrective action in the chief judge's order,

in a direct communication from the subject judge, or otherwise. Id.

Voluntary corrective action should be proportionate to any plausible allegations of misconduct in a

complaint. The form of corrective action should also be proportionate to any sanctions that the judicial council

might impose under Rule 20(b), such as a private or public reprimand or a change in case assignments. Breyer

Committee Report, 239 F.R.D at 244–45. In other words, minor corrective action will not suffice to dispose of a

serious matter. Id.

Rule 11(e) implements Section 352(b)(2) of the Act, which permits the chief judge to “conclude the

proceeding,” if “action on the complaint is no longer necessary because of intervening events,” such as a

resignation from judicial office. Ordinarily, stepping down from an administrative post such as chief judge,

judicial-council member, or court-committee chair does not constitute an event rendering unnecessary any further

action on a complaint alleging judicial misconduct. Breyer Committee Report, 239 F.R.D. at 245. As long as the

subject of a complaint retains the judicial office and remains a covered judge as defined in Rule 1(b), a complaint

must be addressed. Id.; 28 U.S.C. §§ 371(b); 372(a).

Concluding a complaint proceeding, by either the judicial council of the subject judge or the judicial

council to which a complaint proceeding has been transferred, precludes remedial action under the Act and these

Rules as to the subject judge. But the Judicial Conference and the judicial council of the subject judge have

ample authority to assess potential institutional issues related to the complaint as part of their respective

responsibilities to promote “the expeditious conduct of court business,” 28 U.S.C. § 331, and to “make all

necessary and appropriate orders for the effective administration of justice within [each] circuit.” Id. at §

332(d)(1). Such an assessment might include an analysis of what conditions may have enabled misconduct or

prevented its discovery, and what precautionary or curative steps could be undertaken to prevent its recurrence.

The judicial council may request that the Committee on Judicial Conduct and Disability transmit its order to

relevant Congressional entities.

If a complaint is not disposed of pursuant to Rule 11(c), (d), or (e), a special committee must be

appointed. Rule 11(f) states that a subject judge must be invited to respond to the complaint before a special

committee is appointed, if no earlier response was invited.

Subject judges receive copies of complaints at the same time that they are referred to the chief judge, and

they are free to volunteer responses to them. Under Rule 11(b), the chief judge may request a response if it is

thought necessary. However, many complaints are clear candidates for dismissal even if their allegations are

accepted as true, and there is no need for the subject judge to devote time to a defense.

The Act requires that the order dismissing a complaint or concluding a proceeding contain a statement of

reasons and that a copy of the order be sent to the complainant. 28 U.S.C. § 352(b). Rule 24, dealing with

availability of information to the public, contemplates that the order will be made public, usually without

disclosing the names of the complainant or the subject judge. If desired for administrative purposes, more

identifying information can be included in a non-public version of the order.

When a complaint is disposed of by the chief judge, the statutory purposes are best served by providing

the complainant with a full, particularized, but concise explanation, giving reasons for the conclusions reached.

See also Commentary on Rule 24 (dealing with public availability).

Rule 11(g) provides that the complainant and the subject judge must be notified, in the case of a

disposition by the chief judge, of the right to petition the judicial council for review. Because an identified

complaint has no “complainant” to petition for review, the chief judge’s dispositive order on such a complaint

will be transmitted to the judicial council for review. The same will apply where a complaint was filed by its

subject judge. A copy of the chief judge’s order, and memoranda incorporated by reference in the order,

disposing of a complaint must be sent by the circuit clerk to the Committee on Judicial Conduct and Disability.

ARTICLE V. INVESTIGATION AND REPORT BY SPECIAL COMMITTEE

12. Special Committee's Composition

(a) Membership. Except as provided in (e), a special committee appointed under Rule 11(f) must consist

of the chief judge and equal numbers of circuit and district judges. These judges may include senior

judges. If a complaint is about a district judge, bankruptcy judge, or magistrate judge, then, when

possible, the district-judge members of the special committee must be from districts other than the

district of the subject judge. For the courts named in 28 U.S.C. § 363, the special committee must be

selected from the judges serving on the subject judge's court.

(b) Presiding Officer. When appointing the special committee, the chief judge may serve as the presiding

officer or else must designate a committee member as the presiding officer.

magistrate judge, he or she may, within 14 days after being notified of the special committee’s

appointment, ask the chief judge to designate as a committee adviser another bankruptcy judge or

magistrate judge, as the case may be. The chief judge must grant such a request but may otherwise

use discretion in naming the adviser. Unless the adviser is a Court of Federal Claims special master

appointed under 42 U.S.C. § 300aa 12(c), the adviser must be from a district other than the district

of the subject bankruptcy judge or subject magistrate judge. The adviser cannot vote but has the

other privileges of a special-committee member.

(d) Provision of Documents. The chief judge must certify to each other member of the special committee

and to any adviser copies of the complaint and statement of facts, in whole or relevant part, and any