United States Court of Appeals, Eighth Circuit.
Effective February 1, 2002.
RULE 27B. ORDERS (a) Orders the Clerk May Grant. The clerk has discretion to enter orders on behalf of the court in procedural matters including, but not limited to:
(1) applications to file briefs exceeding the page limits set forth in these rules and the Federal Rules of Appellate Procedure;
(2) extensions of time for filing briefs and records;
(3) extensions of time for designating the record under 8th Cir.R. 30A(b);
(4) authorization to proceed on a deferred appendix under 8th Cir R. 30A(b)(2);
(5) corrections in briefs, pleadings, or the record;
(6) supplementation of the record;
(7) incorporation of records from former appeals;
(8) consolidation of appeals;
(9) substitution of parties;
(10) motions to appear as amicus curiae;
(11) requests by amicus curiae counsel to participate in oral argument by sharing time with other counsel;
(12) advancement or continuance of cases;
(13) appointment of counsel on appeal in cases prosecuted under the Criminal Justice Act;
(14) withdrawal of appearance in civil cases;
(15) extensions of time to file petitions for rehearing not to exceed 14 days;
(16) transmission of records to the Supreme Court for use in connection with petitions for writs of certiorari;
(17) entry of consent decrees in National Labor Relations Board cases and other governmental agency review cases; and
(18) taxation of costs under 28 U.S.C. § 1920.
If any party opposes the action requested in any of the above matters or seeks reconsideration of an order entered under this section, the clerk must submit the matter for a ruling by a judge of this court.
(b) Orders One Judge May Grant. Subject to FRAP 27(c), one judge of the court may determine any motion and exercise any power including:
(1) granting leave to appeal in forma pauperis and ordering preparation of a transcript at government expense;
(2) granting appointment of counsel for an indigent defendant proceeding under 28 U.S.C. § 1915;
(3) denying a motion to dismiss under 8th Cir.R. 47A; and
(4) ordering a temporary stay of any proceeding pending the court’s determination of a stay application.
(c) All Other Matters. A panel of three judges will act in all other matters.
(d) Reconsideration of Orders. Any party adversely affected by an order issued under subdivisions (b), (c), or (d) may file a motion to reconsider, vacate, or modify the order within ten days after its entry. The motion will be referred to a three-judge panel that includes all judges who previously acted on the matter.
Cross-Reference: FRAP 27.
RULE 27C. FILING NOTICES OF APPEAL AND MOTIONS TO WITHDRAW IN CRIMINAL CASES. (a) Notices of Appeal. Retained counsel in criminal cases, and counsel appointed to represent a party pursuant to the provisions of the Criminal Justice Act, 18 U.S.C. § 3006A. Federal Rule of Criminal Procedure 44, or the inherent power of a federal court, shall file a notice of appeal upon their client’s request. Defendant’s trial counsel, whether retained or appointed, shall represent the defendant on appeal, unless the Court of Appeals grants permission to withdraw.
(b) Motions to Withdraw. A motion to withdraw on the ground that in counsel’s opinion there are no non-frivolous issues to be urged on appeal must be accompanied by a brief prepared in accordance with the procedures enunciated in Anders v. California, 386 U.S. 738 (1967), and Robinson v. Black, 812 F.2d 1084 (8th Cir. 1987). A motion to withdraw on any other ground will only be granted for good cause shown, and will rarely be granted unless another attorney has entered an appearance for the defendant on appeal or another attorney has agreed to represent the defendant on appeal and the defendant has consented to the appearance of that new attorney.
RULE 28A. BRIEFS (A) Number. Five copies of briefs prepared pro se must be filed. Ten copies must be filed with the court in all cases handled by an attorney. Eleven additional copies must be filed in cases heard en banc. In every case two copies of each brief must be served on counsel for each party separately represented.
A party proceeding in forma pauperis who chooses to file typewritten and carbon copies of the brief must file the original and three legible copies with the clerk and must serve on legible copy on counsel for each party separately represented. See FRAP 31(b).
(b) Addendum.
(1) Contents. Appellant must prepare an addendum and file it with the opening brief. The addendum must include:
(i) a copy of the district court or administrative agency opinion or order including supporting memoranda or findings;
(ii) any magistrate’s report and recommendation that preceded the district court opinion or order;
(iii) short excerpts from the record, other than from the transcript of testimony, that would be helpful in reading the brief without immediate reference to the appendix; and
(iv) other relevant rulings of the district court.
(2) Length. The addendum must not exceed 15 pages excluding the district court or agency opinion and the magistrate’s report and recommendation. The addendum will normally be incorporated into the back of the brief, but may be bound separately if it includes a long district court opinion or report and recommendation. If bound separately, the appellant must file the same number of addenda as briefs.
(3) Appellee’s Addendum. The appellee’s brief may include an addendum not to exceed 15 pages.
(c) Certification of Word Processing Program. In addition to the information required by FRAP 32(a)(7)(C), the certificate of compliance must also include the name and version of the word processing software used to prepare the brief.
(d) Computer Diskettes. For all briefs prepared on a computer, the filing party must also provide the clerk with a 31/2 inch computer diskette containing the full text of the brief. The label on the diskette must include the case name and the docket number. One copy of the diskette must be served on each party separately represented by counsel. The filing party must certify that the diskette has been scanned for viruses and that it is virus-free.
(e) Briefing Schedule in Cross-Appeals; Length of Briefs inCross-Appeals.
(1) Schedule for Filing. In cases presenting a cross-appeal, the appellee/cross-appellant’s opening brief must be filed as one brief within 30 days after service of appellant’s brief. Appellant’s reply/cross-appellee brief must be filed as one brief within 30 days after service of cross-appellant’s brief. Cross-appellant’s reply brief must be filed within 14 days after service of appellant/cross-appellee’s brief.
(2) Length of Briefs in Cross-Appeals. The appellant’s opening brief and the combined appellee/cross-appellant’s opening brief are governed by the length provisions of FRAP 32(a)(7)(A) and (B). An appellant’s reply/cross-appellee brief may not exceed 25 pages. If prepared in compliance with FRAP 32(a)(7)(B), the brief may not exceed 10,000 words or 1000 lines. The length of a cross-appellant’s reply brief is governed by FRAP 32(a)(7)(A) and (B).
(f) Contents.
(1) Summary of the Case. Each appellant must file a statement not to exceed one page providing a summary of the case, the reasons why oral argument should or should not be heard, and the amount of time (15, 20, or 30 minutes, or in an extraordinary case, more than 30 minutes) necessary to present the argument. The summary must be placed as the first item in the brief. If appellee deems appellant’s statement incorrect or incomplete, appellee may include a responsive statement in appellee’s brief.
(2) Statement of Issues. In addition to the requirement of FRAP 28(a)(5), the statement of issues shall include for each issue a list of the most apposite cases, not to exceed four, and the most apposite constitutional and statutory provisions.
(g) Incorporation by Reference. A party may not incorporate by reference the contents of a brief file elsewhere.
(h) [Reserved].
(i) Citation of Unpublished Opinion. Unpublished opinions are decisions which a court designates for unpublished status. They are not precedent and parties generally should not cite them. When relevant to establishing the doctrines of res judicata, collateral estoppel, or the law of the case, however, the parties may cite and unpublished opinion. Parties may also cite an unpublished opinion of this court if the opinion has persuasive value on a material issue and no published opinion of this or another court would serve as well. A party who cites an unpublished opinion in a document must attach a copy of the unpublished opinion to the document. A party who cites an unpublished opinion in a document must attach a copy of the unpublished opinion to the document. A party who cites an unpublished opinion for the first time at oral argument must attach a copy of the unpublished opinion to the supplemental authority letter required by FRAP 28(j). When citing an unpublished opinion, a party must indicate the opinion’s unpublished status.
Cross-References: FRAP 25 (filing and service), 26 (computation of time), 28, 29, 31, 32.