For newbies to federal appellate procedure, filing your first appeal is intimidating. But fear not—filing an appeal in the U.S. Court of Appeals for the Tenth Circuit is actually quite straightforward. The court’s top-notch resources are to thank for this. We highly recommend visiting the court’s website and reviewing their Practitioner’s Guide for new and infrequent attorney flyers. The guide contains a nice overview of the process and answers many questions first-timers may have. The practice guide is good to get information from the court’s perspective. This post outlines the process from the appellant’s attorney’s perspective, highlighting what to expect in the initial stages when you are retained counsel on an appeal from a district court’s decision.
Filing the Notice of Appeal
Just like in Colorado state court, the first step toward an appeal is the notice of appeal. But even before that, it is important to make sure you have a final order or judgment from which appeal can be taken. In some cases, it is relatively straightforward—such as when the court grants summary judgment in favor of one party as to all claims. In other cases, it is not so clear. Do a proper finality analysis before you start down the appellate road, making sure that the order is final as to all claims, or that you have a Fed. R. Civ. P. 54(b) certification, for example.
Once you know you have a final order, the clock is ticking. Generally, for appeals from the final judgment of a district court, you have 30 days from the date of the final order to file the notice of appeal. For those familiar with appellate practice in Colorado state court, you may envision the notice of appeal as the place to list your issues for appeal. In federal court, however, the notice of appeal is a very short statement of who is appealing, to where, and from what. It is typically a page or so in length.
Another difference from state court is that, in federal court, the notice of appeal is filed in the district court, not the appellate court. From a technical standpoint, the District of Colorado federal court has a nice how-to guide on filing the notice of appeal in ECF, available here.
You should also remember that you’ll need to pay the filing fee at this time. For normal appeals, the cost right now is $505. You can use Pay.gov to pay for the appeal with a credit card, which is quite convenient.
Then, the district court will send notice to the appellate court that an appeal has been filed. The appellate court will then assign a case number and give everyone notice that the appeal was filed. You’ll get a couple of letters from the court with instructions on what to do next—read them carefully!
Practice Before the Tenth Circuit
In order to practice in front of the Tenth Circuit, you’ll need to be admitted. The process is pretty simple and can be done through the court’s online filing system. You can read more about attorney admissions in the Tenth Circuit here.
Also, if this is your first appeal (or if it has been a while), you’ll need to make sure you have yourself set up on the new CM/ECF system. You’ll use that for e-filing everything. Learn more about that system here.
Within 14 days of filing the notice of appeal, you’ll need to file the docketing statement with the appellate court. The docketing statement contains the substantive information about the appeal, such as the preliminary issues on appeal and what happened in the case below. The court has a form statement with instructions that you should use to complete these requirements. While on the topic of forms, the appellate court has a nice selection of forms, many of which are referenced in this post. Check them out here.
The docketing statement doesn’t necessarily limit your ability to argue issues in your principal brief, but it does help the court figure out if it has jurisdiction and who the proper parties are. When you file the docketing statement, you need to attach the relevant orders, findings and conclusions of the district court, so be sure to have those handy.
Entry of Appearance and Certificate of Interested Persons
A host of things happen within 14 days of the notice of appeal. Another one of those is the entry of appearance and certificate of interested persons. This is also done through a form available on the court’s website. In addition to the standard entry of appearance (you can file a single form if you have two attorneys from the same firm), there is a certificate of interested persons. That certificate tells the court if there are other people involved in the appeal not listed in the caption, or if other people may have an interest in the litigation.
Transcript Order Form
For appeals with retained counsel (as opposed to appointed counsel), the record is done through an appendix filed with the opening brief. So, you don’t designate the record like in other contexts. However, the responsible attorney needs to fill out a transcript order form (available in the forms section on the court’s website). Even if you don’t need transcripts for your appeal—if, for example, your case was decided only on motions—you still have to submit the form indicating a transcript is not necessary. There will be a check box to indicate no transcript is needed. You then file the form in both the district and the appellate courts, making sure it is served on all parties (which will be done by email via CM/ECF if everyone is represented).
If you need transcripts, you use the same form to indicate which transcripts are needed. Then, in addition to serving the form on the district and appeals court, you also serve it on the court reporter.
Again, you’ve got 14 days to file this form.
For retained counsel cases, your principal brief is due 40 days after the district court notifies the appeals court (and everyone else) that the record is complete. For cases where no transcript is needed, this process moves pretty fast. It is not uncommon for the record to be noticed complete less than a day after you submit the notice that no transcript is needed. At that point, the clock starts running.
For cases where transcripts must be prepared, it can take a bit more time. In any case, the appellate court will send out a notification with the deadline for the principal brief once the record is noticed complete.
Filing your first appeal is both exciting and nerve-wracking. While there are a lot of moving parts, the Tenth Circuit has done a nice job explaining the process and providing multiple resources to make attorneys’ jobs easier. Take advantage of those resources, and the federal rules of appellate procedure and local rules, before undertaking your first appeal.
Featured Image: "Unnamed" by Inma Ibáñez on Unsplash.
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