APPELLATE PRACTICE AND PROCEDURE Beyond Briefs: …

1 APPELLATE PRACTICE AND PROCEDURET here is no question that briefing andoral argument are the main events inany appeal. It is also generally true thatfar fewer motions are filed at the appel-late level than in the trial court. As aresult, attorneys often mistakenly under-estimate the value of judiciously-filedmotions and the necessity of strictcompliance with relevant court rules. Infact, motions are important and insome cases, dispositive tools forappellate practitioners. This articlesummarizes the procedures that governmotion PRACTICE in civil appeals fromfederal district court judgments andadministrative decisions to the UnitedStates Court of Appeals for the primary authorities regardingTenth Circuit motion PRACTICE are theFederal Rules of APPELLATE PROCEDURE ( FRAP ), the accompanying TenthCircuit Rules and decisions applyingand construing both the federal andlocal Tenth Circuit s Practi-tioner s Guide, published andperiodically updated by the court andavailable at no charge from the Clerk, isan additional helpful 27 is entitled Motions, which might lead an attorney to believethat the rule states all there is to knowabout APPELLATE motion PRACTICE .

2 In fact,although FRAP 27 and the correspon-ding local rule set forth a number ofgeneral requirements for all types ofmotions, other rules state additionalgeneral requirements. Both TenthCircuit Rule 27 and other FRAP andlocal rules state additional or differentrequirements for specific types Rules The Motion, Response and ReplyA motion must specifically state inthe motion itself rather than in a sepa-rate brief the factual and legal basesfor the relief movantshould attach whatever supporting docu-ments are necessary for the court toresolve the motion, including appropri-ate affidavits, other factual documentsand relevant pleadings and motion must state the opposingparty s position or why the movant wasunable to learn that order is not required and typi-cally is not response to a motion, beyondaddressing the relief sought in themotion, may include a motion for affir-mative response is due withineight days after service of the computing time, the rules provide forthe exclusion of intermediate weekendsand legal holidays when the deadline fora particular action is less than.

3 The response will be dueeight days from the date of service, notincluding intermediate weekends andholidays. Three days should be addedto that deadline if the motion was servedby (The deadline could becalculated by adding eight days andthree days, and then including interme-diate weekends and holidays becausethe total time allowed (eleven days) isnot less than 11 days under FRAP26(a)(2). However, the Tenth Circuithas not followed this ) A reply to a response should belimited to points raised in lawyer who ignoresthis rule invites the filing of a motionseeking leave to file a surreply reply is due within five days afterservice of the response, not includingintermediate weekends and days are added to that deadline ifthe response was served by and Mechanics of FilingWhen a motion is filed before thefiling of principal briefs, a nongovern-mental corporate party must include inthe motion or its response a corporatedisclosure statement that identifies itsApril/May 2005 TRIAL TALK13 Beyond Briefs: Motion PRACTICE in Civil Appealsin The Tenth CircuitBy Marcy G.

4 Glenn, PRACTICE AND PROCEDURE parent corporation and any publicly heldcorporation that owns ten percent ormore of its , responsesand replies must be or a response may not exceedtwenty pages, exclusive of the corporatedisclosure statement (if required) andattachments, and a reply may not exceedten briefs, motions donot require cover pages or tables ofcontents or authorities, although theymay be used; a cover, if included, mustbe briefs, motions mustbe bound in any manner that is secure,does not obscure the text, and permitsthe document to lie reasonably flat whenopen. 20 While, as a practical matter,the length of briefs generally requiresthem to be spiral bound in order to meetthe rule s requirements, motions atleast those without lengthy attachments often can be bound by a single staplein the upper left 27 generally requires the filingof an original and three copies of amotion, as well as the response andreply,21although parties must file sevencopies of dispositive motions, responsesand , by an emer-gency order the mandate of which isnot reflected in the current Tenth CircuitRules effective January 1, 2005,parties must electronically file almost allpapers with the Tenth emergency order, motions must befiled both in digital form (submittedvia e-mail or on a compact disc) and inwritten , only the orig-inal motion need be filed.

5 Copies are nolonger should bealert for amendments to the EmergencyOrder, which could alter the provisionsdiscussed in this article, as the TenthCircuit intends to observe and, if neces-sary, fine-tune its new electronicsubmission procedures. Disposition of MotionsUnless the court orders otherwise,motions are decided without oral 27 provides that the court mayact on a motion for a procedural orderwithout awaiting a response, and it mayauthorize the clerk to act on specifiedtypes of procedural Circuit has identified twelve typesof procedural motions that the clerk maydecide, subject to review by the court;these include motions for extension oftime, to correct a brief or pleading, tosupplement or correct records, toconsolidate appeals, to substitute parties,to appear as amicus curiae, to expediteor continue cases, to withdraw or substi-tute counsel in a civil case and todismiss an appeal by , if the court or clerk acts on aprocedural motion before the filing of aresponse, an opposing party may moveto reconsider, vacate, or modify addition, if any of the listedmotions is opposed, the clerk mustsubmit it to the court for to review by the court, a singlejudge may act on any motion but maynot dismiss or otherwise dispose of rotating motions panel oftwo judges rules on many motions thatare ripe for decision before the assign-ment of an appeal to a merits panel.

6 Forthose motions that require three judges(such as dispositive motions), a thirdjudge participates on the motions motions are decided by the panelof three judges that decides the appealon the merits. Rules Applicable to Specific Types of MotionsThere is no limit to the relief that can besought through motions. However, thefederal and local rules specificallyaddress a number of categories ofmotions that are filed with frequency. Motions for FRAP 8 and 18 separatelyaddress motions for stay or injunction ofdistrict court judgments and motions tostay administrative decisions or orders,the rules are virtually type of appeal, the motion for stayordinarily must be filed first in thedistrict court or with the motion for stay filed withthe Tenth Circuit must demonstrate thateither seeking relief below would be impracticable, or that the movant wasdenied relief the FRAP rules state only that the motion muststate the reasons for granting the reliefrequested, the corresponding localrules specifically require the motion toaddress the decision-based requirementsfor a stay or injunction: (1) the basesfor the district court s or agency ssubject matter jurisdiction and the courtof appeals jurisdiction; (2) the likeli-hood of success on appeal; (3) the threatof irreparable harm if the stay is notgranted.

7 (4) the absence of harm toopposing parties if the stay is granted;and (5) any risk of harm to the motion should includenecessary affidavits to establishdisputable facts and relevant parts of court may and gener-ally will condition the issuance of astay or injunction on the filing of a bondor other appropriate security in thedistrict to person who was not a party in anadministrative proceeding but wishes tointervene on appeal must move to do soin the court of appeals within thirty daysof the filing of the petition for motion should concisely state themoving person s interest, the groundsfor intervention and why the partiescannot protect the putative intervenor most motions, theresponse to a motion to intervene mustbe filed within ten days after service ofthe party to the proceedingbelow need file only a notice of inter-vention as opposed to a motion tointervene stating whether the partywishes to support or oppose the is no rule governing interven-tion in other appeals.

8 But such motionsmay be filed under the general motionsrules; movants generally should attemptto comply with the requirements forintervention in administrative appeals. April/May 2005 TRIAL TALK15 APPELLATE PRACTICE AND PROCEDUREM otions to Dismiss or local rule, the Tenth Circuit hasset forth procedures to be followed inseeking summary disposition of anappeal. A party may file a motion todismiss the entire case for lack of appel-late jurisdiction, a motion for summarydisposition due to mootness or a super-vening change of law, or a motion toremand for additional district court oradministrative agency (Although the rule refers only todismissal of the entire case for lack ofappellate jurisdiction, the court also willaccept a motion to dismiss that chal-lenges the court s jurisdiction over onlya portion of the appeal.) A motion forsummary disposition filed later thanfifteen days after the notice of appealmust explain the reason for the optional response, if filed, is duewithin ten days of service of court requires the origi-nal and seven copies of dispositivemotions, which frequently bear greaterresemblance to a merits brief than to atypical court often trans-mits these motions to the merits panel,which, in turn, often defers decisionuntil after briefing and argument on the merits.

9 Motions for Extensions of Tenth Circuit receives over athousand motions for extensions of timeannually. The rules address suchmotions both generally and with respectto particular filings. The general rule isthat the court may extend the time toperform any act, or may permit an act tobe done after that time expires, 46withseveral important exceptions. First, thedeadline for filing a notice of appealmay be extended only by the districtcourt in conformance with FRAP 4, assummarized , the dead-line for filing a petition for permissionto appeal may not be appealed underany , the courtmay not extend the deadline for filing anotice of appeal from or petition forreview of an administrative order, unlessspecifically authorized by TALKA pril/May 2005that additional days are necessary toprepare an adequate brief, or that coun-sel will suffer extreme hardship ifrequired to file the brief without the reason, itmust be supported by specific factualinformation.

10 Thus, if other litigationpresents a conflict, the motion shouldidentify the other litigation by caption,number and court, describe the actiontaken to obtain a continuance in theother action (or why no such action wastaken), state why the other litigationshould receive priority, state whyanother attorney cannot prepare the brieffor timely filing or handle the compet-ing matter and state any other the motion is basedon the complexity of the appeal, themotion must demonstrate the complex-ity through specific themotion asserts the prospect of extremehardship to counsel, it must state thenature of the extensionalso may be warranted where parties arecoordinating to file a single , if the circuit mediation officehas ordered a mediation conference, thatoffice may extend the time for filing who comply with the court sspecific requirements will find that theTenth Circuit takes a reasonableapproach to requests for additional civil cases, the court generally willgrant an initial motion that seeks up tothirty additional days to file a principalbrief, so long as the motion is unop-posed and provides the informationcontemplated by the local rules.