Lawyers
who do not regularly practice
before the U.S. Court of Appeals
for the Third Circuit often
ask me what is going to happen
next in their pending or soon-to-be-filed
appeal to that court. This month's
column sets forth a comprehensive
account of how the Third Circuit
processes appeals from beginning
to end.
1. Docketing the case:
After a notice of appeal to
the Third Circuit is filed in
a U.S. District Court located
in Delaware, New Jersey, or
Pennsylvania (or in the District
Court for the U.S. Virgin Islands),
the district court's clerk's
office dockets the appeal and
forwards a copy of the notice
and the district court's docket
sheet to the Third Circuit.
When the Third Circuit receives
those documents from the district
court, the Third Circuit dockets
the appeal and assigns an appellate
docket number.
The Third Circuit's clerk's
office immediately sends a case
opening letter to counsel for
all parties and former parties
in the district court. The case
opening letter advises that
the Third Circuit has docketed
the appeal and sets forth deadlines
by which counsel must file various
forms in order to participate
in the appeal. Counsel for all
parties receive with the case
opening letter an entry of appearance
form, a corporate disclosure
statement form, and (if the
recipient is not admitted to
practice in the Third Circuit)
a bar admission application.
The letter also sets forth deadlines
by which counsel for the appealing
party must file a transcript
order form (even if no transcript
exists), a civil or criminal
information statement providing
details about the case, and
a concise statement of facts
and issues in civil cases potentially
subject to appellate mediation.
If the parties opposing the
appeal are dissatisfied with
the appellant's information
statement or concise statement
of facts and issues, they can
then file their own versions
of those forms.
If a case is not subject to
appellate mediation, this case
opening letter may also include
an order establishing a briefing
schedule. Finally, if the appeal
appears to have been taken from
a non-appealable order, or if
the appeal appears to have been
taken after the time for appeal
has expired, the initial letter
may ask the parties to address
promptly whether the Third Circuit
possesses jurisdiction over
the case.
2. Appellate mediation:
Appeals in civil cases that
involve claims for money or
that otherwise appear capable
of settlement are often directed
into the Third Circuit's appellate
mediation program before a briefing
schedule issues. If an appeal
is selected for mediation, counsel
will receive a mailing that
directs the filing of confidential
settlement position statements.
The mediation program's files
are confidential and are not
available for review by any
of the Third Circuit's judges
who will decide the appeal if
mediation fails.
The Third Circuit's mediation
program can be very effective
in helping to settle even especially
difficult cases. If unsuccessful,
however, mediation will cause
an appeal's progress to be delayed
for several months, because
no briefing schedule issues
while an appeal is in the mediation
program. A party that believes
settlement to be impossible
and that does not wish to have
an appeal's resolution delayed
can send a letter at the start
of the mediation process asking
that the appeal be removed from
mediation and returned to the
clerk's office for issuance
of a briefing schedule.
3. The appellate briefing
schedule: Once the
Third Circuit issues a briefing
schedule, the appealing party
typically has forty days from
the date of the order to file
the brief for appellant. The
opposing party then has thirty
days to file the brief for appellee.
If the appealing party wishes,
it can file a reply brief within
two weeks of when the brief
for appellee has been filed.
Many lawyers overlook that all
parties to an appeal have a
shared obligation to agree on
the contents of the joint appendix,
which is to be filed with the
appellant's opening brief. The
Third Circuit strongly disfavors
appeals in which the opposing
parties each try to file a separate
appendix. It is important to
put into the appendix all portions
of the trial court's record
that the judges assigned to
the appeal will need to see.
Unlike many other state and
federal appellate courts, the
Third Circuit rarely obtains
the complete trial court record
in cases where all parties have
counsel. Thus, if a document
is not in the appendix, the
appellate judges probably will
never see it.
4. Motions:
The period before briefs on
appeal are due tends to be when
most motions are filed. If you
file a motion in a Third Circuit
appeal, it will either be decided
by the clerk's office, by a
motions panel not assigned to
decide the appeal on its merits,
or by the panel that will decide
the merits of the appeal. The
clerk's office usually decides
procedural motions, such as
motions that seek a short extension
of the due date for a brief,
motions that seek to increase
the word count limit of a brief,
and motions to file a supplemental
appendix. A three-judge motions
panel typically decides more
significant motions, such as
those seeking to dismiss an
appeal for lack of appellate
jurisdiction. Once an appeal
is assigned to a three-judge
panel for a decision on the
merits, the merits panel will
decide any motions filed thereafter.
5. Filing the briefs
and the appendix: The
Third Circuit provides to all
parties helpful checklists of
what the parties' briefs and
the joint appendix must contain.
If your brief omits a required
element or fails to have the
proper cover, the Third Circuit's
clerk's office will ask you
to correct the deficiency. A
lawyer who makes these sorts
of errors may communicate to
the judges assigned to the appeal
that he or she is not well versed
in appellate practice. As always,
the best advice is to get it
right the first time.
One especially important requirement
is that the brief for the appealing
party must contain as an attachment
copies of all of the opinions
and orders that are before the
Third Circuit for review. The
trial court's rulings usually
are the most important part
of any appeal, and the Third
Circuit's judges have adopted
this attachment-to-the-brief
rule to ensure that when the
judges carry the parties' briefs
away from the office, the brief
for appellant will include copies
of all pertinent trial court
rulings.
6. Assigning an appeal
to a three-judge merits panel:
The Third Circuit's clerk's
office late each year issues
a calendar scheduling three-judge
panel assignments and sitting
dates for the upcoming year.
The court's active judges are
randomly assigned to each panel
for each sitting, and at least
six weeks are usually provided
between sittings.
Once the parties start the briefing
process, the clerk's office
forwards to an upcoming merits
panel the corporate disclosure
forms filed by the parties to
the appeal. The judges on the
panel will then review the forms
to see whether they are disqualified
from the appeal. If a disqualification
is noted, the appeal will then
be sent on for conflict screening
to the judges assigned to the
next available sitting.
7. Scheduling oral argument:
Approximately six to eight weeks
before a panel will hear oral
arguments, the briefs in nearly
forty appeals will be sent to
the three judges assigned to
the panel. The judges assigned
to that week's cases will then
begin reviewing the briefs to
decide whether to request oral
argument. This represents the
first time that anyone at the
court will look at the actual
content of the briefs other
than to ensure that the required
elements are present. The merits
panel can have the clerk's office
send letters to counsel for
the parties raising issues that
were insufficiently addressed
in the briefs.
If any one judge wants oral
argument, the case will be scheduled
for argument. Cases that are
not selected for oral argument
have a higher rate of affirmance,
so oral argument is an encouraging
sign for the party that lost
in the trial court.
After the briefs have been filed,
but in advance of oral argument,
the Third Circuit's clerk's
office will send at least three
separate letters to counsel
for the parties. The first letter
lists several weeks during which
argument or submission on the
briefs could occur and asks
the lawyers to advise immediately
of any potential scheduling
conflicts. Thereafter, a second
letter is sent advising the
lawyers of the exact date on
which the appeal is likely to
be argued or submitted. Finally,
approximately ten days before
the date of oral argument, the
clerk's office sends counsel
a letter advising whether oral
argument will occur and disclosing
the identity of the three judges
assigned to decide the merits
of the appeal.
8. Conducting oral argument:
If your case is selected for
oral argument, the notice will
provide details about where
the argument will take place
and when counsel is to report
to the courtroom. The notice
usually will not disclose the
order in which cases will be
argued, so counsel desiring
that information should call
the Third Circuit's clerk's
office late in the afternoon
on the day before the argument
or on the morning of the argument.
Oral arguments are audio-taped.
After the briefs have been filed,
counsel can draw supplemental
authorities to the Third Circuit's
attention via a Federal Rule
of Appellate Procedure 28(j)
letter. Such letters can be
filed before or after oral argument,
and they tend to be more effective
when reporting newly-issued
decisions rather than older
decisions that counsel previously
managed to overlook.
9. The Third Circuit's
ruling: The Third Circuit
will advise counsel of its ruling
via the mail. Each weekday afternoon
the Third Circuit also posts
opinions on its Web site, http://www.ca3.uscourts.gov/.
Finally, the Third Circuit is
experimenting with a system
that would send an email to
lawyers advising that a decision
in their case has issued and
providing a link to the ruling
on the Third Circuit's Web site.
10. Post-decision proceedings:
After the Third Circuit decides
an appeal, the court will issue
its mandate seven days after
the time for seeking rehearing
or rehearing en banc has expired
unless a party has filed a timely
rehearing petition. If rehearing
is sought, the mandate will
issue seven days after rehearing
is denied. A motion for stay
of the mandate pending the filing
of a petition for writ of certiorari
in the U.S. Supreme Court can
be filed, but such a stay should
only be sought where the mandate's
issuance will work some specific
hardship on the losing party
(e.g., imposition of the death
penalty, deportation, destruction
of unique property, payment
of money that might not later
be recoverable from the opposing
party, etc.).
Once the Third Circuit's mandate
issues, the Third Circuit's
involvement in the appeal has
come to a close.
This
article is reprinted with permission
from the August 12, 2002 issue
of The Legal Intelligencer ©
2002 NLP IP Company.
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