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Key Facts
- Federal level: The Federal Rules of Appellate Procedure govern procedure in the United States courts of appeals.
- Federal level: Rule 3 governs how an appeal as of right is taken, while Rule 4 supplies the applicable filing periods.
- Federal level: Rule 10 defines the record on appeal.
- Federal level: Rule 25 governs filing and service in appellate proceedings.
- Federal level: Rule 28 specifies the required parts of appellate briefs.
- Federal level: Rule 40 governs panel rehearing and en banc determination.
The Federal Rules of Appellate Procedure, commonly shortened to FRAP, provide the national procedural framework for cases in the United States courts of appeals. They organize an appeal from its opening notice through the record, filing, briefing, decision, and possible rehearing.
The rules do not create appellate jurisdiction by themselves. Federal statutes identify which decisions a court of appeals may review, while FRAP governs how an authorized appellate proceeding moves forward.
Rule 3 starts an appeal as of right
Rule 3 provides that an appeal permitted as of right from a district court is taken by filing a notice of appeal with the district clerk within Rule 4’s time.
The notice must identify the appealing party, designate the judgment or appealable order being challenged, and name the court receiving the appeal. Rule 3 also states that an appeal should not be dismissed for informality in the notice’s form or title.
Rule 4 makes timing part of the opening step
In an ordinary federal civil case, Rule 4 generally provides 30 days after entry of the judgment or order. The period is generally 60 days when the United States, a federal agency, or a covered federal officer or employee is a party.
For a criminal defendant, the ordinary period is 14 days after the later of the judgment or order being appealed or the government’s notice of appeal. Rule 4 also contains provisions addressing specified post-judgment motions, extensions, and reopening.
Rule 10 defines the appellate record
The record on appeal consists of the original papers and exhibits filed in the district court, any transcript of proceedings, and a certified copy of the docket entries.
When an appellant challenges a finding as unsupported by the evidence, Rule 10 requires inclusion of the transcript containing all evidence relevant to that finding or conclusion.
Rule 25 governs filing and service
Rule 25 addresses where papers are filed, when filing is timely, electronic and nonelectronic filing, proof of service, and signatures. Filing with the court’s electronic system is timely if completed by midnight in the court’s time zone on the due date, unless another law or order sets a different time.
A person represented by counsel must file electronically unless nonelectronic filing is allowed by the court for good cause or permitted by local rule.
Rule 28 structures appellate briefs
An appellant’s brief includes a corporate disclosure statement when required, a table of contents, a table of authorities, a jurisdictional statement, the issues presented, a statement of the case, a summary of the argument, the argument, and a conclusion stating the precise relief sought.
The argument must contain the party’s contentions, reasons, authority, record citations, and the applicable standard of review for each issue.
Rule 40 addresses rehearing
Rule 40 permits a petition for panel rehearing, rehearing en banc, or both. Panel rehearing is the ordinary means of reconsidering a panel decision.
En banc rehearing is not favored and ordinarily addresses a conflict within circuit precedent or a question of exceptional importance.
National rules work alongside statutes and local rules
FRAP supplies national procedure, but it is not the only authority relevant to a federal appeal. Statutes establish jurisdiction, and each court of appeals publishes local rules and orders that can add court-specific requirements consistent with federal law.
This article concerns federal appellate procedure and does not establish any state court’s rules. A related overview of federal circuit court cases explains the courts that administer these national rules.
Sources
- U.S. Courts: Federal Rules of Appellate Procedure
- Federal Rules of Appellate Procedure index
- Federal Rule of Appellate Procedure 3
- Federal Rule of Appellate Procedure 4
- Federal Rule of Appellate Procedure 10
- Federal Rule of Appellate Procedure 25
- Federal Rule of Appellate Procedure 28
- Federal Rule of Appellate Procedure 40
