PRACTITIONERS' GUIDE TO THE UNITED STATES COURT OF

PRACTITIONERS’ GUIDE

TO THE

UNITED STATES COURT OF APPEALS

FOR THE

FIFTH CIRCUIT

June 2024

Distributed by:

CLERK’S OFFICE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JOHN MINOR WISDOM UNITED STATES COURTHOUSE

600 SOUTH MAESTRI PLACE

SUITE 115

NEW ORLEANS, LOUISIANA 70130

INTRODUCTION & CONTENTS

We want to make it easier for lawyers to practice in our court. To do that, this

Practitioner’s Guide walks the reader through an appeal:

THE DECISION TO APPEAL will help parties and their lawyers decide

whether to appeal.

THE CLERK’S OFFICE explains how the clerk’s office works.

ATTORNEYS states the requirements for admission before the court, outlines

the duties of counsel, and sets out our mandatory e-filing requirements for

attorneys.

HOW DO I GET REVIEW OF… discusses types of cases that may come

before this court and how you may get those cases in front of the court.

PROCEDURES FOR GETTING TO COURT covers procedural steps

necessary to get an appeal before the court and ready for briefing, including the

deadlines and costs for an appeal and what happens when the court gets your

notice of appeal.

WRITING YOUR BRIEF tells you what the clerk’s office needs to see before

it can present your brief to the court, discusses citing to the record on appeal,

and provides tips about how to prepare your brief.

RECORD EXCERPTS discusses how to prepare your record excerpts.

TRANSCRIPTS tells you what you need to know about getting necessary

transcripts for your appeal.

MEDIATION PROGRAM lets you know how cases are selected for the

program and how the confidential settlement process works.

MOTIONS PROCESSING explains how motions are routed and decided.

CASE SCREENING & PANEL ASSIGNMENTS tells you how cases are

screened and assigned to panels for decision; this will help you understand why

most cases are decided without oral argument.

ORAL ARGUMENT discusses rules for argument and offers suggestions.

OPINIONS tells you how opinions are issued, when they are published, and

what the effect of non-publication is.

POST-DECISION MATTERS discusses petitions for rehearing or

reconsideration and issuance of the mandate.

MISCELLANEOUS addresses stays, release pending appeal, certificates of

appealability, and habeas corpus.

This guide is not law. For authoritative answers, practitioners should look to

the Federal Rules of Appellate Procedure, the Fifth Circuit Rules, our Internal

Operating Procedures, and, of course, case law and statutes.

The court’s rules and procedures are posted, along with other useful

information, on the court’s website

. In addition, practitioners may want to consult a

comprehensive guide to Fifth Circuit practice, George Rahdert and Larry Roth,

PPEALS TO THE FIFTH CIRCUIT (2001).

We hope you will find this guide useful. If you have suggestions for

improvement, write me at 600 South Maestri Place, Suite 115, New Orleans, LA

70130.

Lyle Cayce

Clerk of Court

THE DECISION TO APPEAL

The first question to consider is whether an appeal is worthwhile. First, ensure

that jurisdiction exists over your case. Second, consider whether the error you see will

cause this court to reverse. Third, you might consider other factors, such as the cost and

time the appeal will take.

DOES THIS COURT HAVE JURISDICTION?

Make sure that this court has jurisdiction over your appeal. We review each new

case for jurisdiction. Cases which appear to be before the court improperly are disposed

of without briefing or argument.

Generally, this court can review only final orders of the federal district courts

within its territorial jurisdiction, see 28 U.S.C. § 1291, final orders of certain federal

administrative tribunals involving residents of the circuit, and cases within the court’s

original jurisdiction. Certain district court orders that are final only as to some claims or

parties may be appealable under a district court certification order pursuant to F

ED. R.

CIV. P. 54(b). Certain interlocutory orders may be reviewable. See 28 U.S.C. § 1292(b).

The court has the power to entertain writs (e.g., mandamus, prohibition) in rare

cases. Likewise, the court can elect to review directly certain bankruptcy appeals with

proper certification. The court has no power to review decisions of state courts except

indirectly in criminal cases or on a habeas corpus petition initiated in federal district court.

WHAT IS THE STANDARD OF REVIEW?

Look at the applicable standard of review this court must employ in deciding your

appeal.

Although some issues are reviewed de novo, many are subject to more deferential

standards of review. For example, one standard requires the court to ask whether the

district court’s factual determinations are “clearly erroneous.” Further, if you are

seeking review of an agency determination, you will lose the appeal if the determination

was supported by “substantial” evidence. Put yourself in the place of a judge, apply the

proper standard of review, and determine the likelihood this court will overturn a decision.

Many books or other resources discuss the law and give examples of the standards of review. Two that

you might find useful are Federal Standards of Review by Steven Alan Childress and Martha S. Davis and Appeals to

the Fifth Circuit by George Rahdert and Larry Roth.

WHAT ARE MY CHANCES FOR SUCCESS?

For the 12-month period that ended on June 30, 2023, and in rounded numbers, this

court reversed only about 6.3% of the 3,589 cases decided on the merits. About 3.5% of

criminal appeals, 14.9% of non-prisoner “U.S. Civil Cases” (where the United States was

a party), and about 14.9% of non-prisoner “Private Civil” (where the United States was

not a party) cases resulted in reversal. If you are interested in further statistical

information, we post our annual statistical report

on our website.

HOW LONG WILL IT TAKE TO GET A DECISION?

As of June 30, 2023, there were 3,541 cases pending in the Fifth Circuit.

Administrative Office of the U. S. Courts statistics showed the median time from filing

the notice of appeal to issuance of the court’s opinion was 8.4 months.

WHAT IF I FILE A MERITLESS APPEAL?

A frivolous appeal is one when the result is obvious and the arguments of error are

wholly without merit. If the court finds that you filed a frivolous appeal, it may award

damages and single or double costs, pursuant to F

ED. R. APP. P. 38. Costs may be

awarded against counsel if the lawyer is at fault. Pro se litigants who file frivolous appeals

may be barred from further filings unless they get prior written approval from a judge.

TH CIR. R. 35.1 discusses the power of the court to impose sanctions on its own initiative

under Rule 38 and 28 U.S.C. § 1927 if you file a groundless petition for rehearing en banc.

THE CLERK’S OFFICE

The clerk’s office is the custodian of the court’s records and papers. Unless

otherwise directed, all communications with the court must be made through the clerk’s

office.

Among the clerk’s duties are to: receive and account for monies paid to the court,

initiate a docket for each appeal, enter all filings in appeals, issue calendars for oral

argument sessions, enter orders and opinions of the court as authorized by the judges, and

decide or refer to the court the procedural motions set forth in 5

TH CIR. R. 27.1 and 31.4.

CONTACTING THE CLERK’S OFFICE

The Fifth Circuit Clerk’s Office is located in the F. Edward Hebert Building, 600

South Maestri Place, Suite 115, New Orleans, LA 70130. Clerk’s office telephone

numbers are posted on our website

The office is open for business from 8:00 a.m. until 5:00 p.m., Monday through

Friday. The office is staffed on all days except Saturdays, Sundays, designated federal

holidays, and Mardi Gras. A limited staff is on duty in the clerk’s office for five federal

holidays (Martin Luther King Jr.’s Birthday, Washington’s Birthday, Juneteenth,

Columbus Day, and Veterans’ Day), but the office is not staffed on all other federal

holidays.

When the clerk’s office is not staffed, you can reach a deputy clerk by dialing (504)

310-7700, listening to the instructions from the automated attendant, and selecting the

option that connects you to the emergency duty clerk. This service is designed for true

emergency matters only. Assistance with filing is NOT an emergency. Requests for

extension of time to file briefs or to pay fees and other procedural matters are NOT

considered emergencies. If you think you will need to file documents outside normal

business hours, please make advance arrangements with the clerk’s office.

CASE MANAGEMENT RESPONSIBILITIES

The judicial support division processes all specific case-related matters, except for

the calendaring of oral argument cases. Most case processing responsibilities are assigned

to one of three teams, as follows:

• Northern and Western District Courts of Texas;

• Southern and Eastern District Courts of Texas; and

• Louisiana and Mississippi District Courts, and Agency cases.

You can tell which team your case is assigned to by the case number you receive

when we docket your appeal. All case numbers consist of two-digits corresponding to the

year the case was docketed (e.g., 19, 20, etc.), then a hyphen, and then a five-digit number.

The first digit of the five-digit number indicates which team is handling your case:

• Northern District of Texas cases begin with 1, e.g., 20-10025;

• Southern District of Texas (Houston) cases begin with 2;

• Louisiana cases begin with 3;

• Southern District of Texas (non-Houston) and Eastern District of Texas

cases begin with 4;

• Western District of Texas cases begin with 5;

• Mississippi District Court cases and most agency cases begin with 6; and

• Newly docketed death penalty cases begin with 7.

You can obtain much useful information—e.g., information about briefs, record

excerpts, due dates, copies of opinions, filing fees, or the clerk’s office address—24 hours

a day by calling (504) 310-7700, following the prompts, and listening to prerecorded

information. We encourage you to use our automated system. You may also check case

statuses on PACER.

To access PACER, you will need to register.

If you cannot find the information you need, contact the case management team

responsible for your case. Because of the large number of telephone calls we receive, we

ask for your patience and suggest calling at the non-peak times of 8:30 to 9:30 a.m. and

11:30 a.m. to 1:30 p.m.

INFORMATION AVAILABLE ONLINE

Reference Materials. Our website includes the FED. R. APP. P and our

implementing 5TH CIR. R. and IOPs; a checklist for Preparation of Briefs, Record

Excerpts, Motions and Other papers; and links to sources, including frequently asked

questions, a flow chart depicting the life of an appeal, forms and samples, and checklists.

Opinions. You can access published and unpublished opinions decided from 1992

to the present on our website. If you are unable to find an older opinion, please contact us

at (504) 310-7700.

CASELOAD HIGHLIGHTS

For the 12 month period which ended June 30, 2023, we docketed 5,740 actions.

We had 4,002 appeals from Texas district courts; 916 from Louisiana courts; and 365 from

Mississippi courts. The remaining cases included appeals from Agency decisions,

Bankruptcy and Tax court decisions, and motions to file successive habeas corpus

Except for federal court opinions, which are free, PACER charges $0.10 per page with a cap of $3.00 for

any single document. Fees are waived each quarterly billing cycle unless you accrue more than $30.00 in fees during

the quarter. Transcripts of federal court proceedings are not subject to the $3.00 cap.

petitions, among other matters. Pro se litigants filed 38.4% of the notices of appeal, and

51.4% of the cases were proceeding pro se at the time the case terminated.

ATTORNEYS

ADMISSION TO PRACTICE

All counsel who represent litigants before the Fifth Circuit, including counsel

appointed under the Criminal Justice Act (CJA), must be admitted to the bar of the court.

Admission requirements are set forth in F

ED. R. APP. P. 46 and 5TH CIR. R. 46. In

general, an attorney admitted to practice before the U.S. Supreme Court, the highest court

of a state, another U.S. court of appeals or a U.S. district court, and who is of good moral

and professional character is eligible for admission. Attorneys must provide initial contact

information and update that information when changes occur.

Attorneys must apply for admission on the court’s approved form

. A member of

the bar of this court must move for the applicant’s admission, but the applicant does not

need to appear before the court to be admitted. If you file an appeal or enter an appearance

in a case, we will not permit further practice until you are admitted to the court.

During the application process, attorneys will submit:

• The completed application;

• Unless exempt, a certificate of good standing from the state bar or court that

qualifies the attorney for admission to the Fifth Circuit;

• An accompanying motion for admission signed by a member of this court’s

bar (this motion is on the application form); and

• An application fee of $249.00 payable to “Clerk, U.S. Courts.”

The court waives the admission fee for any attorney appointed to represent a party

in a criminal or civil appeal, federal government attorneys, current law clerks to Fifth

Circuit Judges, and certain military attorneys. Motions to proceed pro hac vice are greatly

disfavored and will be denied absent extraordinary circumstances. Federally employed

5TH CIR. R. 46.1 requires attorneys to advise us of any change of their physical addresses, e-mail addresses,

or telephone numbers. Contact information must be updated via PACER. Without compliance, notices may not be

delivered timely, and we may be unable to notify you promptly about any changes in a scheduled oral argument date

or location.

attorneys should register for admission and e-filing through PACER with our court as a

Federal Attorney; that registration process will complete admission requirements.

TH CIR. R. 46.1 requires members of this court’s bar to apply for readmission

every five years. The clerk’s office will notify attorneys of their requirement to renew

their admission. When notified, attorneys must pay a $50.00 renewal fee payable to

“Librarian, U.S. Court of Appeals” within 30 days. Renewal should be completed online.

Failure to respond to the readmission notice may result in the attorney’s name being

removed from our attorney roll. Thereafter, if an attorney seeks readmission, he or she

will need to file a new application and oath for admission and may be required to pay the

full admission fee before being allowed to practice again in this court.

COUNSEL’S DUTIES

Continuation of Representation in Criminal and Post-Conviction Cases.

Counsel appointed to represent a defendant at trial or in a conditional guilty plea must

continue representation of the defendant unless relieved by the court. We consider your

signing of a notice of appeal on behalf of a petitioner or moving party in a post-conviction

proceeding under 28 U.S.C. §§ 2254 or 2255 as an entry of appearance in this court.

Withdrawal and Dismissal. An appointed attorney who has entered an

appearance in a case may not withdraw without consent of the court. In most instances, a

motion to withdraw will be directed to the district court. If granted, the district court

should also appoint new counsel to represent the defendant on appeal. An attorney who

seeks to withdraw from a criminal appeal or from an appeal involving post-conviction

relief must file a motion in this court. The motion must set out the reason for withdrawing

and must state that the client has been advised of the appeal process, including any

deadlines for taking action prescribed by the F

ED. R. APP. P. and the rules of this court.

The motion must contain:

• A showing that new counsel has been retained or appointed,

• A showing that appellant is proceeding in forma pauperis or is eligible

for appointment of counsel under 18 U.S.C. § 3006A, or that a motion

for finding appellant eligible for appointment of counsel on appeal has

been filed in the district court, and

• A signed statement from the client acknowledging the right to retain new

counsel or apply for appointment of counsel, and expressly electing to

appear pro se; or

• A showing that exceptional circumstances prevent counsel from meeting

any of the requirements stated above.

Counsel must furnish proof of service on the client and all opposing parties.

Appeals without Arguable Merit. If counsel in a direct criminal appeal files a

brief characterizing the appeal as without merit and moves to withdraw under Anders v.

California, 386 U.S. 738 (1967), or responds to a motion to dismiss by stating that any

argument in opposition would be frivolous, counsel must advise us of the client’s address.

We will notify the client of the motion to withdraw and provide notice that a response to

the motion is due within 30 days. See our Anders Guidelines

for more information.

Representation after Appeal. The Fifth Circuit’s Plan Under the Criminal

Justice Act for Representation on Appeal provides that, following an adverse decision on

appeal, appointed counsel must “promptly advise defendant in writing of the right to seek

further review by the filing of a petition for writ of certiorari.” If the defendant requests

counsel to file for certiorari in writing, counsel shall timely file a petition for the writ. As

an exception, counsel does not need to file for certiorari if this court relieves counsel of

that responsibility upon counsel’s motion suggesting the futility of certiorari, or upon this

court’s sua sponte order. Counsel must not assume that an adverse decision in this court

terminates their duties under the CJA.

ELECTRONIC CASE FILING (ECF)

Electronic case filing is mandatory unless counsel files a motion and is excused for

good cause shown.

Counsel must register as “filing users” under 5TH CIR. R. 25.2.3 and

comply with the court’s ECF rules and filing standards

. Pro se litigants who wish to file

using ECF must first file a motion. If the court grants the motion, the pro se litigant will

be eligible to file via ECF in that particular case.

The court continues to require paper copies of certain pleadings. We will notify

ECF filers when to submit the paper copies.

Process for Filing Motions Ex Parte and Under Seal. A motion for a court-

approved budget and/or interim payments under the Criminal Justice Act may be filed ex

parte and under seal. If counsel wishes for such motions to remain ex parte, counsel should

Because readers of the Guide may include a few attorneys exempt from the ECF requirements, as well as

pro se litigants not eligible for ECF filing, we continue to refer to documents and forms that these filers will use in

paper form. However, the vast majority of readers will file electronically.

not submit them through the ECF system, but should contact the Clerk’s Office for filing

instructions.

DISCIPLINE/CJA COUNSEL DISQUALIFICATION

Attorneys may be sanctioned for misconduct or failure to comply with FED. R.

APP. P. 46 and 5TH CIR. R. 46. Attorneys appearing before the court may not withdraw

without the court’s consent. Counsel in direct criminal, habeas, and other prisoner cases

must review 5

TH CIR. R. 42.3.1.1 to understand their obligation to timely prosecute

appeals. In relevant part, the rule provides that if a default is not timely remedied, the

clerk may enter an order dismissing the appeal and must refer to the court the matter

of disciplinary action against the attorney. See 5

TH CIR. R. 42.3.1.

Standards of Conduct. All members of the bar must comply with the standards

of professional conduct and ethical behavior in the states in which they are admitted to

practice. The court imposes disciplinary sanctions for deviations from these standards.

Basis for Disciplinary Action. The court usually takes disciplinary action when

notified that another court has suspended or disbarred an attorney, or when an attorney’s

conduct in this court falls below that required of a member of the bar. Possible sanctions

include reprimand, monetary penalties, forfeiture of payments to appointed counsel,

prohibition from receiving CJA appointments, suspension from practicing in the court, and

removal from the roll of attorneys permitted to practice before this court.

Procedures for Disciplinary Action. The chief judge, or the chief judge’s

designee, handles attorney disciplinary matters (including suspensions from practice and,

removals of attorneys’ names from the court’s roll), and issues related to the performance

and billing practices of CJA attorneys. Upon learning an attorney has failed to meet the

standards expected of a member of this court’s bar, the clerk, at the direction of the chief

judge or designee, may issue an order to the attorney to show cause why disciplinary action

should not be taken, or why the attorney should not be disqualified from handling CJA

cases. The order will set out the circumstances giving rise to the court’s concern and

specify the sanctions that may be imposed. A request for a hearing must be submitted in

writing. The chief judge decides the composition of any hearing panel and the attorney

may be represented by counsel. If an evidentiary hearing is allowed, the chief judge may

delegate fact-finding to a special master.

If CJA counsel is relieved for misconduct or nonperformance, the clerk is

responsible for appointing replacement counsel and sending a copy of the order relieving

counsel to the Circuit Mediation and Judicial Support Office.

APPEARANCE FORMS

In lieu of the “representation form” required by FED. R. APP. P. 12(b), this court

requires attorneys to file a Form for Appearance of Counsel

within 30 days after filing the

notice of appeal. After you download the form, complete it electronically, save it, and

upload the completed form when you docket your appearance electronically. Non-

ECF filers may print the form and mail it in.

Because there may be delay between when attorneys file an appearance form and

when they can actually file a document electronically, we strongly advise counsel to file an

appearance form as soon as they know they will be participating in the case.

HOW DO I GET REVIEW OF…

A DISTRICT COURT JUDGMENT?

You appeal from a final judgment or order of a district court by filing a notice of

appeal with the district court clerk within the time prescribed in F

ED. R. APP. P. 3(a)

and 4. The notice of appeal must name all of the parties taking the appeal; designate the

judgment or order, or part thereof, you are appealing; and identify the court you are

appealing to. F

ED. R. APP. P. 3(c). Form 1 following the FED. R. APP. P. is a suggested

notice of appeal. The district court clerk notifies the other parties by mail that a notice of

appeal has been filed and sends us copies of the notice of appeal and the district court

docket entries. F

ED. R. APP. P. 3(d).

Magistrate Judges’ Judgments. United States Magistrate Judge judgments

entered under 28 U.S.C. § 636(c)(1) may be appealed to this court in accordance with 28

U.S.C. § 636(c)(3). These are treated the same as appeals from district court judgments.

AN INTERLOCUTORY ORDER?

This court may permit an appeal of an otherwise non-appealable interlocutory

order if the district court expressly states that its order involves a controlling question of

law as to which there is substantial ground for difference of opinion and that an immediate

appeal might materially advance the ultimate termination of litigation. An order may be

amended at any time to include the prescribed statement. 28 U.S.C. § 1292(b) and F

ED.

R. APP. P. 5(a).

Requesting Permission to Appeal and Length of Petition. An interlocutory

appeal is taken by filing a petition for permission to appeal with the clerk of this court, with

proof of service on all parties to the action in the district court. The petition and response

are limited to 20 pages. F

ED. R. APP. P. 5(c).

Time for Filing. The petition must be filed within the time limits set by F

ED. R.

APP. P. 5(a)(2) and (3).

Processing the Petition and Answer. The clerk will enter the petition on the

miscellaneous docket. Adverse parties may file an answer within 10 days after service of

the petition, F

ED. R. APP. P. 5(b)(2). When the time for filing answers expires, the clerk

will submit the petition and answer, if any, to the court. There will be no oral argument

on the petition unless ordered by the court, F

ED. R. APP. P. 5(b)(3).

Granting of Permission. If this court grants permission to appeal, the appellant

has 14 days to pay the fees to the district court clerk. If payment is not made, we will

dismiss the appeal. If the appellant is a criminal defendant who has appointed counsel or

a non-incarcerated party proceeding in forma pauperis, then no fee is required, and we

will enter the appeal on the docket after we enter the order granting permission to appeal.

A U.S. TAX COURT DECISION?

You appeal a United States Tax Court decision by filing a notice of appeal with the

Tax Court clerk in Washington, D.C., within the prescribed time. The clerk notifies all

other parties by mail that a notice of appeal has been filed. Form 2 of the F

ED. R. APP.

P. provides an example of a notice of appeal from the Tax Court.

Time for Filing. A petitioner wishing to appeal from a decision of the Tax Court

may file a notice of appeal within 90 days after entry of the decision. If a timely notice of

appeal is filed, any other party may take an appeal by filing a notice of appeal within 120

days after entry of the decision of the Tax Court. F

ED. R. APP. P. 13(a)(1)(A). You may

file a notice of appeal by mail, addressed to the clerk. The postmark date is deemed the

date of filing. F

ED. R. APP. P. 13(a)(2) and Internal Revenue Code § 7502 and

implementing regulations.

Termination of Time for Filing a Notice of Appeal. A timely motion to vacate

or revise a decision, made in conjunction with the Rules of Practice of the Tax Court,

terminates the running of time for filing a notice of appeal. The full time will begin to run

again for all parties from entry of the order disposing of the motion or from entry of the

decision, whichever is later. F

ED. R. APP. P. 13(a)(1)(B).

AN AGENCY ORDER?

You can have an agency order reviewed by filing a petition for review with the Fifth

Circuit clerk. The respondent is the appropriate agency, board, or officer. The United

States may be a respondent if allowed by statute. When a statute provides for enforcement

of an agency order by a court of appeals, you may apply for enforcement with the Fifth

Circuit clerk. We serve the respondents with copies of any petition for review or

application for enforcement, but the petitioner must serve a copy on all other parties to

the administrative proceedings and file with the clerk a list of those parties served. No

response to a petition for review is required. But if an application for enforcement is

contested, an answer must be served and filed by the respondent within 21 days after the

application for enforcement is filed.

Failure to answer will result in judgment by default. A cross-application for

enforcement may be filed by a respondent to a petition for review, if the court has

jurisdiction to enforce the order. Any cross-application will be filed in the already

docketed proceeding and the matters will be briefed and submitted as a single matter,

ED. R. APP. P. 15(a)–(c).

Fees. You must pay a $600.00 docketing fee to the Fifth Circuit clerk when a

petition for review is filed. If you fail to pay timely, the petition will be dismissed.

Time for Filing Petition or Application. A petition for review or application for

enforcement must be filed within the time prescribed by the applicable statute which

varies from agency to agency.

Contents and Number of Copies. A petition for review or application for

enforcement should contain a concise statement describing the proceeding in which the

order sought to be reviewed or enforced was entered, any reported citation of the order,

the facts upon which venue is based and the relief prayed. 5

TH CIR. R. 15.1 requires that

when you file a petition for review, you pay the filing fee and attach a copy of the order

or orders to be reviewed. You must file an original and a copy for each respondent.

AN ORIGINAL PROCEEDING?

You file an application for a writ of mandamus by filing a petition with the Fifth

Circuit clerk’s office. It can be mailed in hard copy or submitted electronically via ECF.

The associated fee must be submitted via PACER. Filers are required to comply with

service in accordance with F

ED. R. APP. P. 25. You must provide proof of service on all

parties to the proceeding in the trial court and provide a copy to the trial court judge.

Applications for other extraordinary writs are made by filing a petition with the circuit

clerk with proof of service on the respondents. Pro se prisoner petitions are not submitted

to the court until the $600.00 docket fee is paid or the petitioner is granted leave to

proceed in forma pauperis, F

ED. R. APP. P. 21(a). Depending on the nature of the

complaint, prisoners may be required to pay a portion of the fee and then the remainder

in installments. See U.S.C. § 1915; In re Stone, 118 F.3d 1032, 1033-34 (5th Cir. 1997).

Fees. You must pay a $600.00 docket fee to the Fifth Circuit clerk at the time of

filing, unless granted permission to proceed in forma pauperis.

Time for Filing a Petition. Extraordinary writs are usually matters of great

urgency; no time limit is prescribed.

Contents and Length of the Petition. The petition must contain a statement of

the issues, the relevant facts, the relief sought, and the reasons why the writ should issue.

Copies of an opinion, order, or necessary parts of a record must be included. F

ED. R.

APP. P. 21 sets a 30-page limit for petitions.

Further Proceedings. If the court thinks the writ should not be granted, it

normally denies the petition without calling for an answer. Otherwise, it issues an order

fixing a time for filing an answer. The clerk serves the order on the judge(s) named as

respondents and on all parties to the action in the trial court. F

ED. R. APP. P. 21(b). All

parties other than the petitioner are deemed respondents for all purposes. Answers filed

by respondents must be served on the petitioner. Ordinarily, the court decides the petition

on its merits without further briefing or hearing.

PROCEDURES FOR GETTING TO COURT

WHEN DO I FILE MY NOTICE OF APPEAL?

The prescribed times for filing a notice of appeal are jurisdictional and may not

be extended by the court of appeals except in limited circumstances. See F

ED. R. APP.

P. 26(b). Make sure to file your notice of appeal within the following timeframes:

Civil Cases:

• If the United States is not a party, you must file your notice of appeal

within 30 days after entry of the judgment or order appealed from. F

ED.

R. APP. P. 4(a)(1).

• If the United States (including or one of its officers or agencies) is a

party, any party may file the notice of appeal within 60 days after entry

of the judgment or order appealed from. Id.

• If a party files a timely notice of appeal, any other party may file a notice

of appeal within 14 days thereafter, or within the time otherwise

prescribed by F

ED. R. APP. P. 4(a). If two or more notices of appeal

are filed, the 14 days run only from the time the first notice of appeal was

filed. F

ED. R. APP. P. 4(a)(3).

Criminal Cases:

• A defendant must file a notice of appeal within 14 days after entry of the

judgment or order appealed from or after the government files a notice of

appeal.

• The United States must file a notice of appeal within 30 days after entry

of the judgment or order appealed from or after the defendant’s notice

of appeal. F

ED. R. APP. P. 4(b).

WHEN DOES THE TIME TO APPEAL START TO RUN?

Your time to file a notice of appeal is governed by FED. R. APP. P. 4(a)(7), and in

civil cases depends on whether F

ED. R. CIV. P. 58(a) requires the district court to enter

a separate document on the docket.

Final Judgments and Interlocutory Orders. Generally, you may only appeal a

final judgment. See 9 M

OORE’S FEDERAL PRACTICE §§ 110.06–110.15. However,

statutes allow appeals from certain interlocutory orders, and the time for appealing is the

same as the time prescribed for other civil appeals. Further, under F

ED. R. CIV. P. 54(b),

a district court may permit an immediate appeal from an otherwise non-appealable

interlocutory order by directing that it be entered as a final judgment as to fewer than all

the claims or parties. In such cases, the time for filing a notice of appeal begins on the date

that the district court clerk enters the order as final. A notice of appeal filed before entry

of the final order is premature and subject to dismissal by the court of appeals, but it may

be sufficient for a valid appeal if the district court enters a final judgment prior to this

court’s dismissal of the appeal. See St. Paul Mercury Ins. Co. v. FGC, 123 F.3d 336, 338

(5th Cir. 1997).

Effect of Post-judgment Motions in Civil Cases. If a party timely files in the

district court any of the following motions in a civil case, then the time for filing a notice

of appeal is suspended:

• For judgment under F

ED. R. CIV. P. 50(b);

• To amend or make additional findings of fact under F

ED. R. CIV. P.

52(b), whether or not granting the motion would alter the judgment;

• For attorney fees under F

ED. R. CIV. P. 54 if the district court extends

the time to appeal under F

ED. R. CIV. P. 58;

• To alter or amend the judgment under F

ED. R. CIV. P. 59;

• For a new trial under F

ED. R. CIV. P. 59; or

• For relief under F

ED. R. CIV. P. 60, if filed within 28 days of entry of

judgment.

The full time for filing a notice of appeal begins to run again from the entry of the

order disposing of any of the above motions. F

ED. R. APP. P. 4(a)(4).

WHAT DOES IT COST TO APPEAL?

Appellants must pay a $5.00 filing fee and a $600.00 docketing fee to the district

court clerk when the notice of appeal is filed. Those exempt from paying are: the United

States (or its officer or agency), defendants filing a direct criminal appeal who are

represented by CJA-appointed attorneys, and non-incarcerated appellants granted leave

to appeal in forma pauperis or seeking to appeal in forma pauperis. Failure to timely pay

may result in dismissal of the appeal. Appellants who abuse the privilege of proceeding in

forma pauperis may have restrictions placed on filing further appeals.

Absent approval of in forma pauperis status, the filing fee is payable in full when

the notice of appeal is filed. Prisoners may be able to pay in installments as set forth in the

Prison Litigation Reform Act, 28 U.S.C. § 1915(b)(1). Among other requirements,

prisoners seeking to proceed in forma pauperis must:

• File a motion to proceed on appeal in forma pauperis with the district

court clerk;

• Provide a certified statement of their prison accounts for the six months

prior to filing the notice of appeal (statements must be obtained from

every institution in which the prisoner was in custody during the six-

month period); and

• Sign consent forms allowing prison officials to access the inmate’s

account to withdraw funds, if the prisons require consent forms.

Prisoners must send any consent forms required by the prisons to the district court

clerk with the motion to proceed on appeal in forma pauperis and the certified statement

of their prison account.

The court will assess an initial partial filing fee (IPFF) if a prisoner applying to

proceed on appeal in forma pauperis does not have enough money to pay the full fee.

Prisoners must pay the IPFF from their inmate accounts, and all available funds in the

account will be put toward the IPFF until the full IPFF has been paid.

Once the IPFF

has been paid, the remaining fees will be collected periodically, but only when the prisoner

has more than $10.00 in the account.

Prisoners in civil cases may have to pay costs of the appeal if they lose. Also, under

the PLRA’s “three strikes” rule, inmates who have had three actions or appeals dismissed

because they were frivolous, malicious, or failed to state a claim are prohibited from

proceeding in forma pauperis in a civil action or appeal unless they are under imminent

danger of grievous bodily harm. Prisoners with three “strikes” must pay the full amount

of their filing fees before their appeal can be considered.

WHAT HAPPENS AFTER THIS COURT GETS MY NOTICE OF APPEAL?

Once we receive your notice of appeal and district court docket entries, or we

receive your petition for review or your petition for extraordinary relief, the clerk’s office

reviews the information and dockets the case.

After we docket the case, we issue a notice of docketing activity and enclosures

in ECF. To those not required to use ECF, we send a paper docketing packet. An

attorney in our office conducts an initial jurisdictional review. Cases with obvious

jurisdictional deficiencies are sent to a jurisdictional review panel

for review and possible

dismissal. Some civil cases where both parties are represented by counsel may be

identified as possible candidates for our

mediation program and referred to that office.

We will direct you to pay any fees if you have not already done so and to send in an

appearance form as required by 5

TH CIR. R. 46, and we will inform you how to obtain

access to the Record on Appeal.

Read the letter immediately. Comply with the instructions as soon as possible.

Also, this is the time to resolve questions about the case caption or what actions you need

to take. If we can address these matters early, we can avoid last-minute problems.

For example, if the IPFF is $4.30, and the prisoner has only $1.25 in the inmate account, the $1.25 will be

withdrawn immediately from the account, or the prison may place a hold on the money to keep the prisoner from

spending it. In either event, the prisoner will effectively have a $0.00 account balance. If the prisoner receives $0.75

the next month, that will be collected or held, keeping the balance at $0.00 until the IPFF is fully paid.

DISMISSAL OF AN APPEAL

Voluntary Dismissal. Civil appeals not involving post-conviction relief may be

dismissed by agreement of the parties or on appellant’s motion. The terms of dismissal

may be agreed upon by the parties or fixed by the court. F

ED. R. APP. P. 42(b). Pro se

appellants may voluntarily dismiss criminal appeals and appeals involving post-conviction

relief. However, if counsel moves to voluntarily dismiss a criminal appeal or one involving

post-conviction relief, counsel must submit a signed statement from the appellant

acknowledging his right to appeal and expressly electing to withdraw the appeal.

Alternatively, counsel must show exceptional circumstances preventing such a statement.

Dismissal by the court. On its own motion, the court may dismiss an appeal if a

pro se appellant or retained counsel fails to comply with 5

TH CIR. R. 42. Dismissal does

not relieve counsel from possible disciplinary action

. See 5TH CIR. R. 42.3.

TRANSCRIPTS

NECESSARY TRANSCRIPTS

An appellant who argues that a ruling is unsupported by or contrary to the evidence

must include in the record a transcript of all evidence relevant to the challenged findings

or conclusions. F

ED. R. APP. P. 10(b)(2). Further, if the appeal challenges the trial

court’s admission or exclusion of evidence, the giving or failure to give a jury instruction,

or any other evidentiary ruling, the record must include a transcript of those portions of

the proceedings at which the evidence, offer of proof, instruction, or ruling and any

necessary objections are recorded. Exercise discretion in deciding whether to order

transcripts because they significantly increase the time and expense of an appeal.

To order necessary transcripts, you must:

• Complete Part I of the Transcript Order Form

• Serve copies on the court reporter, the clerk of the district court, and all

other parties to the appeal; and file a copy with the court of appeals; and

• Arrange to pay for the transcript when you order it. An order is not

complete until you make financial arrangements with the court reporter.

If the United States is paying under the CJA, your order must say so and

you must submit an authorization request.

ECF filers should fill out the transcript order form electronically and upload it when

docketing the event in CM/ECF.

The appellant must order necessary transcripts not already on file within 14 days

after the notice of appeal. Because time required for the production of transcripts is a major

cause of delay, we urge you to order and pay for necessary transcripts as soon as possible

after filing the notice of appeal. In a criminal appeal where the appellant requests

expediting the appeal because his sentence is one year or less, you must order and pay for

necessary transcripts when the notice of appeal is filed. The court does not favor motions

for extensions of time to file briefs if you did not timely order the transcripts.

Unavailability of Transcripts. If transcripts are unavailable, the appellant may

prepare a statement of the evidence or proceedings from the best available means,

including recollection, and serve the statement on the appellee, who may serve objections

or proposed amendments within 14 days. The district court settles and approves the

statement or objections, and the resulting statement is included in the record on appeal.

ED. R. APP. P. 10(c).

Extensions of Time. If a court reporter seeks an extension of time to file the

transcript, he or she must comply with the provisions of 5

TH CIR. R. 11.2. The court

reporter must notify you if this court grants an extension.

WHAT IF I DO NOT NEED A TRANSCRIPT?

If you do not need a transcript to pursue your appeal, e.g., there was no hearing or

trial at the district court, notify us by filing a Transcript Order Form with an “x” in the

box in Part I, A stating “Transcript is unnecessary for appeal purposes” and serve the

other parties to the appeal, 5

TH CIR. R. 10.1.

MEDIATION PROGRAM

Since 1996, the Circuit Mediation Program (formerly the Fifth Circuit’s Appellate

Conference Program) has offered a confidential forum in which counsel can discuss their

cases with both opposing counsel and the court’s mediators. See

The Circuit Mediation

Program Order .

The discussions are off the record and without prejudice to the parties. Your

communications with a circuit mediator are kept in strict confidence and are not divulged

to the judges, court personnel, or anyone else. If you need more information than that

provided below, you may contact the Circuit Mediation Program, U.S. Court of Appeals,

600 Camp Street, New Orleans, LA 70130, or call (504) 310-7799.

The office currently is staffed by three attorney-mediators who conduct

telephonic, video and in-person conferences with counsel. These conferences are

intended primarily to explore the possibilities of settlement and secondarily to resolve

procedural problems. Follow-up conferences directed toward settlement can include

parties as well as counsel.

The Circuit Mediation Program is limited to civil cases in which all parties are

represented by counsel. Conferences are not scheduled in criminal, pro se, or habeas

corpus appeals. Most cases in the program are selected by the chief circuit mediator after

the initial jurisdictional review process. In addition, either party can request that a case

be assigned to the program at any time. The court itself occasionally refers specific cases

to the program, even after oral argument.

HOW DOES THE PROGRAM WORK?

Most cases assigned to the program are scheduled for an initial conference, usually

by telephone. Such conferences ordinarily last less than an hour and generally occur early

in the case’s history—before a briefing schedule is set. The appellant’s counsel

summarizes what the case is about, why the appellant should win, and the relief sought.

The appellee’s counsel may respond. This discussion begins the process of focusing on

which issues may control and provides background for possible settlement.

Counsel and the mediator then map out steps to attempt to resolve the case. Any

settlement must be voluntary. A substantial percentage of the cases selected for the

program are settled. However, in some cases, it is clear that no settlement can occur, and

conference proceedings do not continue. Even if a case does not settle, the program may

benefit the parties, since issues on appeal can be identified, explored, and refined.

Discussing the issues at the outset should make writing briefs easier, and the better briefs

that result will aid the court in its consideration of the case.

Assignment to the mediation program does not affect deadlines already set by the

court. But if settlement discussions are making progress, extensions of briefing schedules

can be arranged within the guidelines of 5

TH CIR. R. 31.4.

WRITING YOUR BRIEF

THE BRIEFING NOTICE

The first thing you should do when you receive the briefing notice is to read it

carefully and completely. We will tell you:

• The brief’s due date,

• How to cite to the record on appeal in writing your brief, and

• The case caption to use on the cover of your brief.

We may remind you to send an appearance form if you have not done so.

MAKING A PDF FILE

Almost all attorneys will be ECF filers and need to follow 5TH CIR. R. 25.2 and

ECF Standards in filing their briefs and record excerpts

. Counsel exempt from ECF filing

must send an electronic copy of their brief to the clerk’s office on a CD or by other means

as the clerk allows. See 5

TH CIR. R. 31.1. The brief must be a single Portable Document

Format (PDF) file. You may not submit separate files for the Statement of Issues,

Statement of Facts, etc. Counsel exempt from the ECF rules must also submit an

electronic PDF of the record excerpts. A guide for converting Word and WordPerfect

documents to a PDF file is available

here.

THE RECORD ON APPEAL

Counsel who has entered an appearance in a case may access the electronic record

from the district court or the administrative record from the agency whose decision is

being appealed. The court relies on the record to decide your case. You are responsible

for ensuring that it is complete and that you have ordered all necessary transcripts and

documents. Except for those trial exhibits being part of the ROA, trial exhibits are not

sent unless you specifically request them.

As with the briefing notice, please act promptly. Within 14 days of receipt, you

need to review the ROA and advise us and the district court of any omissions, if you need

to order additional transcripts, etc. This court will not be sympathetic to requests for

extensions of time to file briefs if you have waited until the last moment to see if the ROA

is complete and a delay then results because of a deficiency.

CITING TO THE RECORD

You must cite to the page number in the record to support factual assertions, etc.

The Fifth Circuit has adopted the Electronic Record on Appeal (ROA) as the official

record in cases in which the district court created the appellate record. In single record

cases, you should use the format of “ROA,” followed by a period, then the page number

(e.g., ROA.123). For multiple record cases, you will use “ROA,” followed by a period,

the Fifth Circuit case number of the relevant record, another period, and the page number

(e.g., ROA.13-12345.123). Guidance for attorneys regarding citation issues can be found

in Fifth Circuit Form 1

, at the appendix to the Fifth Circuit’s Local Rules.

FORMAL REQUIREMENTS FOR BRIEFS

Before filing a brief, you may wish to review our Checklist of Rule Requirements for

Briefs and Record Excerpts. You may also review our website’s page providing assistance

for preparing rule-compliant briefs. The site contains a link to brief templates available on

CM/ECF. Brief templates in MS Word are available to assist in preparing briefs; counsel

may access the templates through CM/ECF in the Attorney Toolbox. Pro se parties can

request a brief template via email to

ca05_cmecf@ca5.uscourts.gov.

Principal Briefs. FED. R. APP. P. 28 and 5TH CIR. R. 28 set out the requirements

for briefs. The principal brief must contain the following, in the order indicated, a(n):

• Cover meeting the requirements of F

ED. R. APP. P. 32 and 28.1 (for cross

appeals),

o Briefs filed in ECF must have an electronic cover page identical in format

(but not color) to the paper copy; the paper copy must have the correct

color cover;

• Certificate of interested persons, 5

TH CIR. R. 28.2.1;

• Statement regarding oral argument, 5

TH CIR. R. 28.2.3;

• Table of contents with page references, F

ED. R. APP. P. 28(a)(2);

• Table of authorities, F

ED. R. APP. P. 28(a)(3),

• Brief statement of jurisdiction, F

ED. R. APP. P. 28(a)(4)(A)–(D);

o An appellee’s brief does not need a jurisdictional statement unless

dissatisfied with the appellant’s statement, F

ED. R. APP. P. 28(b)(1);

• Statement of the issues presented for review, F

ED. R. APP. P. 28(a)(5),

o This is not required in an appellee’s brief if the appellee is satisfied with

the appellant’s statement, but an appellee who does not agree should

correct errors or omissions in the appellant’s statement;

• Statement of the case, setting out the facts relevant to the issues presented,

describing the relevant procedural history, and identifying rulings presented for

review with appropriate references to the record, F

ED. R. APP. P. 28(a)(6),

o The appellee’s brief does not need such a statement if the appellee is

satisfied with the appellant’s statement;

• Summary of the argument, F

ED. R. APP. P. 28(a)(7);

• Argument, F

ED. R. APP. P. 28(a)(8). This must contain the party’s

contentions with respect to the issues presented, and the reasons therefor, and

must include citations to relevant authorities, statutes, and page numbers in

the record on appeal,

o Although F

ED. R. APP. P. 28(a)(8)(B) allows discretion on where to

place the standard of review, this court greatly prefers that it be clearly

identified in a separate heading before discussion of the issues. If the

issue is a ruling for which a party must record an objection to preserve the

right of appeal (e.g., failure to admit or exclude evidence, refusal to give

a jury instruction), your brief should identify where in the record counsel

made the objection and where it was ruled upon,

o Note that an appellee does not need to state the standard of review unless

he or she disagrees with the appellant’s standard;

• Short conclusion setting forth the precise relief sought, F

ED. R. APP. P.

28(a)(9);

• Signature of counsel or a party, F

ED. R. APP. P. 32(d) and 5TH CIR. R. 25.2.10

for ECF filing;

• Proper certificate (proof) of service,

FED. R. APP. P. 25.

o If you are exempt from ECF and prepare your brief on a computer, your

certificate of service must state that you served an electronic copy on

opposing counsel;

o Not required if opposing side is served electronically.

• Certificate of compliance, if required by F

ED. R. APP. P. 32(g) and 5TH CIR. R.

32.3.

Supplemental Briefs. The only additional brief that may be filed without express

leave of court is the reply brief, if the appellant chooses to respond to the appellee’s brief,

or if a cross-appellant responds to the answer brief filed by the cross-appellee. Any other

supplemental briefing requires leave of the court.

Rule 28(j) Letters. The court prefers that F

ED. R. APP. P. 28(j) letters be used

only to cite cases decided after a brief has been filed. You are limited to 350 words.

Cross-Appeals. Under Fed. R. App. P. 28.1(b), the party who first files a notice

of appeal is generally the appellant, but if notices are filed the same day, the plaintiff below

is the appellant. The appellee must file a principal brief in the cross-appeal and respond to

the principal brief in the appeal. The appellant then must respond to the principal brief in

the cross-appeal and may, in the same brief, reply to the response in the appeal.

Designation of Parties. Designations as “appellant” and “appellee” should be

used as little as possible. In the interest of clarity, the briefs should, as much as possible,

use the designations used in the court or agency below, the actual names of the parties, or

terms descriptive of the parties.

Joint Briefing. Joint briefing is encouraged, but not required, in criminal appeals

involving more than one appellant or appellee. The United States is encouraged to file a

consolidated brief whenever possible. On motion, leave to file a consolidated brief may

be granted by the court even if the appeals are not consolidated. Every effort is made to

set co-defendants’ appeals before the same panel.

PAPER COPIES

The court requires paper copies of briefs only on request. FED. R. APP. P. 32 sets the

standards for briefs. Use opaque, unglazed paper. Print on only one side of the paper. We

will notify ECF filers when to submit their paper copies.

Cover. Except for filings by pro se parties, paper copies of briefs must have a

durable cover and be in the colors prescribed by the federal rules. Your cover must include

the:

• Case number at the top of the cover;

• Name of the court;

• Title of the case (use the title in the briefing notice, unless you and this

office have agreed that a different title is correct);

• Nature of the proceeding and the name of the court, agency, or board

below;

• Title of the brief, identifying the party or parties on whose behalf the brief

is filed, e.g., “Appellant’s Brief” or “Brief of Appellant”; and

• Name, office address, and telephone number of counsel representing the

party filing the brief.

The brief must be securely bound. The binding may not obscure the text and must

allow the brief to lie reasonably flat when open. The court strongly prefers spiral binding.

Paper Size, Line Spacing, and Margins. The brief must be on 8½ x 11-inch paper.

The text must be double-spaced, but quotations more than two lines long may be indented

and single spaced. Headings and footnotes may be single-spaced. Margins must be at least

one inch on all four sides.

Typeface. You may use either monospaced or proportionally spaced typeface.

Text written in proportionally spaced typeface must include serifs, and the typeface must

be at least 14 points. As an exception to the federal rule, footnotes may be in 12-point or

larger proportional typeface. Monospaced typeface may not have more than 10½

characters per inch.

PAGE AND VOLUME LIMITS

The court requires typed briefs; however, the court accepts handwritten briefs from

incarcerated pro se litigants. Briefs from non-incarcerated pro se litigants must conform to

ED. R. APP. P. 32.

Page Limits. Principal briefs with 30 or fewer pages, and reply briefs with 15 or

fewer pages, automatically meet the length standards of F

ED. R. APP. P. 32(a)(7)(A).

Principal briefs can be longer than 30 pages and reply briefs more than 15 pages if you

comply with the “type-volume” limits and provide a certificate of compliance.

Type-volume Limits. A principal brief may contain up to 13,000 words in either

proportional or monospaced typeface. Alternatively, if your brief uses monospaced

typeface, it may contain up to 1,300 lines of text. A reply brief may not contain more than

one-half the type-volume limits for a principal brief.

In counting pages, words, or text lines, you do not count the certificate of

interested persons; any corporate disclosure statement; the tables of contents and

citations; the statement regarding oral argument; any addendum containing statutes,

rules, or regulations; or any certificates of counsel.

The court “looks . . . with great disfavor” on motions to exceed the type volume

limits, 5

TH CIR. R. 32(a)(7). Any motion to exceed the limits must be filed at least 10

days before the brief is due and contain sufficient reasons to warrant the request.

The type-volume limits are designed to be applied mechanically and objectively. As

a matter of court policy, you must use your word processor’s word count feature. Do

not manually count the words. A manual count is often inaccurate, and we cannot readily

verify the count. Please note that least one version of Microsoft Word will not

automatically count words in footnotes and will produce an inaccurate word count unless

special care is taken. See DeSilva v. DiLeonardi, 185 F.3d 815, 816 (7th Cir. 1999). Be aware

of the attributes of your word-processing software to ensure that all words in your brief are

reflected in your certificate of compliance.

Because the type-volume limits are designed to work only in a mechanical fashion,

we do not permit handwritten briefs to use the type-volume limits to measure length.

Because handwriting size and spacing are inconsistent, the text line convention of 26 lines

per page is not reliable. Thus, handwritten principal briefs are limited to 30 pages, and

reply briefs are limited to 15 pages, exclusive of the statements regarding oral argument or

interested persons, tables of contents and authorities, etc.

CERTIFICATES OF COMPLIANCE

You MUST complete a certificate of compliance and place it as the last document

in your brief and other papers in accordance with F

ED. R. APP. P. 32(g)(1).

ED. R. APP. P. 32(g)(2) provides a “Form 6” Certificate of Compliance, which

counsel should use. Note that to meet the requirements of F

ED. R. APP. P. 32(g), the

certificate must state the number of words in the document. A statement that the

document has “fewer than 13,000” words is not sufficient. Further, to assist us in

checking the accuracy of your certificate, we ask you to identify the name and version of

the word-processing software you used, e.g., Microsoft Office Professional Word 13.

WHY DO I HAVE TO SIGN MY BRIEF?

FED. R. APP. P. 32(d) requires a signature because this constitutes a certificate

that you have read the brief and that it complies with the rules. We look at this as a

personal professional responsibility and a means to help ensure that counsel is involved

fully in the preparation of the briefs.

WHAT DOES AN APPELLEE NEED TO DO?

An appellee’s brief must be written under the standards of FED. R. APP. P. 28 and

32 and 5

TH CIR. R. 28 and 32. Under FED. R. APP. P. 28(b), an appellee’s brief does

not need to contain any of the following, unless the appellee is dissatisfied with the

appellant’s statement:

• Jurisdictional statement,

• Statement of the issues,

• Statement of the case, and

• Statement of the standard of review.

An appellee’s brief must:

• contain a certificate of interested persons and a statement regarding oral

argument;

• be signed (see 5

TH CIR. R.25.2.10 for ECF filing); and

• if prepared on a computer, be served on the appellant’s counsel

electronically, in addition to paper copies.

REPLY BRIEFS

Under FED. R. APP. P. 28(c), an appellant may file a reply brief to address

arguments raised in the appellee’s brief. Reply briefs should be filed only if necessary, to

rebut an important argument in the appellee’s brief. A reply brief that merely reiterates

your opening brief serves little purpose and delays consideration of your appeal.

If you do file a reply brief, it must contain a table of contents with page references

and a table of authorities. F

ED. R. APP. P. 28(c). Reply briefs are due within 21 days

after service of the appellee’s brief. F

ED. R. APP. P. 31(a)(1). Extensions of time to file

reply briefs are greatly disfavored. 5

TH CIR. R. 31.4.4. An appellant in a civil case who

is not going to file a reply brief should notify us immediately so we can forward the case

for decision.

Length. A reply brief may contain up to 15 pages, 6,500 words, or (if prepared in

monospace type) 650 lines of text. F

ED. R. APP. P. 32(a)(7).

DEFICIENCIES IN BRIEFS

We check briefs us to ensure, among other things, that: the case caption is correct;

there are certificates of service and, compliance, if required; and the brief is signed. If

there are errors (over 30% of the briefs we receive have deficiencies), we will notify ECF

filers via a “notice of docket activity.” For non-ECF filers, we will call or write to explain

what corrective action you must take. Under F

ED. R. APP. P. 25, we must file your brief

(even with errors) and notify you of the deficiencies. If you do not timely correct the

errors, we may send your brief to the court for review, which may lead to it being stricken

and, if you are the appellant, dismissal of the appeal. 5

TH CIR. R. 32.5. Carefully check

your briefs before you file them. If there is a problem, promptly correct the errors and

return the brief to us.

AMICUS BRIEFS

Amicus briefs may be filed only with the consent of all parties and such

consent must be noted in the brief, F

ED. R. APP. P. 29(a), or by leave of court

granted on motion. The United States (including its agencies or officers), or a

state, territory, or commonwealth, or the District of Columbia, do not need

consent or leave of court to file an amicus brief during initial consideration of

a case on the merits, F

ED. R. APP. P. 29(a)(2), or during consideration of whether

to grant rehearing, FED. R. APP. P. 29(b)(2). However, if any other person or

entity wishes to file an amicus brief in support of a petition for rehearing or

rehearing en banc, they must file a motion. If a motion for leave is required,

your motion must accompany your brief and state your interest and the reason

an amicus brief is desirable and why the matters asserted are relevant to the

disposition of the case, F

ED. R. APP. P. 29(a)(3).

Amicus briefs must comply with F

ED. R. APP. P. 29 and must be filed no

later than 7 days after the principal brief of the party being supported is filed.

Amicus briefs must include a certificate of interested parties, if necessary to

fully disclose all those with an interest in the amicus brief, 5

TH CIR. R. 29.2. A

brief filed pursuant to Rule 29(a) is limited to one half the maximum length

allowed by the rules for a party’s principal brief, F

ED. R. APP. P. 29(a)(5). A brief

filed pursuant to Rule 29(b) is limited to 2600 words, FED. R. APP. P. 29(b)(4).

FILING AND SERVING YOUR BRIEF

Number of Copies Required. We have suspended the requirement under 5TH

CIR. R. 31.1 for all counsel to file 7 paper copies of their briefs. Counsel will be notified to

provide copies if the appeal is placed on the oral argument calendar. For non-ECF attorney

filers, send us the paper copies on the due date along with one copy of the brief in a single

PDF file or other authorized electronic format; send another electronic copy to each party

separately represented by counsel. We use the electronic copy to check the word count

and provide staff attorneys and judges a text-searchable brief.

An appellant must file its brief to this court no later than 40 days after the date the

briefing notice was sent. The appellee has 33 days from the date on the appellant’s

certificate of service to file its brief.

Proof of Service. F

ED. R. APP. P. 25(d) requires that the proof or “certificate” of

service certify:

• The date and manner of service;

• The names of the persons served; and

• The mailing addresses or the addresses of the place of delivery.

ECF filers must agree to receive service electronically. Certificate of Service is not

required if opposing side is served electronically. If the opposing party is not an ECF filer,

you must complete service in accordance with the federal rule. Please remember that when

you identify an address for service, you must give a full address.

EXTENSIONS OF TIME

5TH CIR. R. 31.4 governs requests for extensions of time to file briefs. The court

expects briefs to be filed timely, without extensions. No extension, even if unopposed, is

automatic. Extensions should only be requested when absolutely necessary—not just when

convenient. Unopposed requests for extension for less than 30 days normally should be

made by via ECF and must include a letter advising why the extension is needed. The clerk

should receive all motions requesting an extension at least 7 days before the due date.

Absent extraordinary circumstances, the MAXIMUM extension in criminal cases is 30

days, and 40 days in civil cases. See 5

TH CIR. R. 31.4.1 and the Internal Operating

Procedures following 5

TH CIR. R. 27 & 31.

OTHER SUGGESTIONS

The court is duty-bound to do substantial justice in deciding the appeals before it.

Judges rely upon the advocates to point out the facts of record, the applicable rules of law,

and the equities of the case. You will have greater success persuading the court if you have

an effective and carefully prepared brief. Because fewer than 25% of briefed cases are given

oral argument, the brief may be your only chance to argue your position. Briefs should be

written so that you get your important contentions before the court.

The court strongly recommends that the parties cite statutes, cases, etc. according

to a uniform system, such as that set out in The Bluebook: A Uniform System of Citation.

Make an effort to present only a few questions or issues for review. The questions

you select should be stated clearly and simply. A brief that assigns a dozen errors and treats

each as being of equal importance when some are clear losers may suggest that none are

very good. As Justice Frankfurter once said, “a bad argument is like the clock striking

thirteen, it puts in doubt the others.”

The statement of facts should set forth a brief and objective account of the pertinent

facts, with references to the record to support and verify each statement. Use a narrative

chronological summary, rather than a digest of what each witness said. Do not omit

relevant unfavorable facts. If you marshal the facts well, the relevant points of law often

develop naturally. An effective statement summarizes the facts and persuades the reader

that both justice and precedent require a decision for your client. Appellees should give

their own statement of facts if they believe that the facts have not been fairly presented by

the appellant; however, they should not needlessly repeat the appellant’s statement.

Factual statements should be suitably divided by appropriate headings. Short

paragraphs with topic sentences and frequent headings help the court follow and

understand the points you are making. If the case turns on the facts, the brief should make

clear factual arguments bolstered by record references. If the important record reference

is short enough, quote the record, but not for pages and pages. Record citations also help

the court find the important facts in a voluminous record.

Emphasize reason, not merely precedent, unless a particular decision is controlling.

A few good cases, with sufficient discussion to show that they are relevant, are preferred

over string citations. If a case is worth citing, it usually has a quote which will drive the

point home, and one or two good cases are ordinarily sufficient. If the cited case lacks a

good quote, a terse summary will establish it as a case the court should read. A long

discussion of the facts of the cited cases is usually unnecessary.

If an opponent cites cases that obviously do not apply, your brief need not

distinguish those cases. Consider whether the judge could reasonably think the opponent’s

cited case was important. If not, do not waste space on the case.

Clarity, simplicity, and accuracy are paramount. Use italics and footnotes sparingly.

Statements, citations, and quotations must be accurate. Counsel should carefully

proofread briefs for errors.

Finally, put yourselves in the judges’ position. Write the briefs almost as your client

would like to see the opinion written. Think about what the judges must do to affirm or

reverse, and structure the briefs accordingly.

RECORD EXCERPTS

5TH CIR. R. 30 requires parties to file record excerpts in appeals from decisions of

district courts, the U.S. Tax Court, and in agency cases, except for Immigration and

Naturalization Service appeals and Federal Energy Regulatory Commission cases, which

are covered by 5

TH CIR. R. 15.3.

Record excerpts are intended to give our judges a brief document that they can read

along with the briefs in deciding whether a case needs oral argument. Judges also refer to

record excerpts in preparing for oral argument. When preparing record excerpts, include

only those portions of the record on appeal that are required or that will assist the judges.

Records are available online to attorneys who have filed an appearance-of-counsel

form in the case. Pro se parties must contact the district court to obtain a copy of the

record. For more information, see Accessing District Court Electronic Record

WHO MUST FILE RECORD EXCERPTS AND HOW DO YOU FILE?

Appellants represented by counsel must file record excerpts. Pro se parties do not

need to file record excerpts. An appellee who believes essential material has been excluded

may file separate record excerpts with the brief.

Appellant counsel may use the “Create Record Excerpts” feature in the Attorney

Toolbox (within CM/ECF) to create record excerpts for filing. Non-ECF filing attorneys

will file record excerpts in paper and provide an electronic copy in PDF format.

Form. Record excerpts must:

• Have a numbered table of contents, with citations to the record, starting

with the lower-court docket sheet;

• Be on 8½ x 11-inch light paper with clear black images;

• Be tabbed to correspond to the table of contents;

• Be securely bound (spiral binding is preferred) in a way that allows the

excerpts to lie reasonably flat when opened; and

• Have a durable white cover conforming to F

ED. R. APP. P. 32(a)(2),

except titled “RECORD EXCERPTS.”

Nonconforming Record Excerpts. If deficiencies are not timely corrected, the

excerpts may be struck, sanctions may be imposed, and the appeal may be dismissed.

CONTENTS

Mandatory Contents. Record excerpts must contain the matters identified in 5TH

CIR. R. 30, including copies of the following portions of the district court record.

• The docket sheet;

• The notice of appeal;

• The indictment in criminal cases;

• Any jury verdict;

• The judgment or interlocutory order appealed;

• Any other orders or rulings being reviewed;

• Any relevant magistrate judge’s report and recommendation;

• Supporting opinion or findings of fact and conclusions of law filed, or

transcript pages of orally delivered opinions or findings of fact;

• A certificate of service complying with F

ED. R. APP. P. 25.

In agency cases, except for Federal Energy Regulatory Commission actions, the

petitioner must file record excerpts that include: any order being reviewed and any

supporting opinion, findings of fact, or conclusions of law. 5

TH CIR. R. 30.2(b). This

filing must be completed immediately following the petitioner’s brief.

If later required to produce paper, we ask that you take particular care in binding the

record excerpts to ensure that the binding does not obscure any documents.

Optional Contents. Optional contents are limited to 40 pages and may include

parts of the record referred to in the briefs, including:

• Essential pleadings or portions thereof;

• Relevant parts of a F

ED. R. CIV. P. 16(e) pretrial order;

• Jury instructions given or refused, together with any objection and the

court’s ruling, and any other relevant part of the jury charge;

• The administrative law judge’s findings and conclusions, if the appeal

seeks review of a court order reviewing an agency determination;

• Relevant transcript pages challenging admission or exclusion of evidence,

or other interlocutory ruling or order; and

• Relevant parts of written exhibits.

MOTIONS PROCESSING

Applications for an order or other relief from operation of the rules must be made

by filing a motion unless the federal rules prescribe another form. F

ED. R. APP. P.

27(a)(1).

TH CIR. R. 27.1 and 27.2 set forth which motions the clerk and single judges can

decide. If you are dissatisfied with a ruling, you may file a motion for reconsideration

Reconsideration of a clerk’s order is by a single judge; review of a single-judge order is by

a three-judge panel. 5

TH CIR. R. 27 gives the clerk’s office authority to act on opposed

and unopposed procedural motions. Centralizing the authority to act on these motions—

e.g., motions for extension of time—gives greater consistency to the court’s actions.

Contents of Motions. Motions must state the particular grounds for the motion,

the relief sought, and any legal argument necessary to support the motion. The motion also

must contain and be accompanied by the documents required by F

ED. R. APP. P.

27(a)(2)(B) and 5

TH CIR. R. 27.4, which requires a certificate of interested persons

(except for purely procedural motions). If motions are supported by memoranda,

affidavits, or other papers, these must be served and filed with the motions, F

ED. R. APP. P.

27. All motions must indicate whether they are opposed. All motions must contain a

certificate of compliance, in accordance with F

ED. R. APP. P. 32(g).

Responses. Any party may file a response in opposition to a motion within 10 days

after service of the motion unless the court shortens or extends the time. The court may

act on motions authorized by F

ED. R. APP. P. 8, 9, 18, and 41 in fewer than 10 days by

giving reasonable notice before ruling. The court may decide procedural motions at any

time, without waiting for a response. Any party adversely affected by such action may file

a motion for reconsideration, vacatur, or modification. F

ED. R. APP. P. 27(a)–(b).

Reply to Responses. Although F

ED. R. APP. P. 27(a)(4) permits a reply within 7

days after service of the response, the court looks upon replies with great disfavor. Further,

as a general rule, the court does not grant extensions of time to file a reply to a response.

Form. Motions must be filed electronically. Text must be double spaced, except

for quotations more than two lines long. There must be one-inch margins on all sides.

Motions should be in 14-point proportional typeface (or not more than 10½ characters per

inch in monospaced typeface) and use a plain roman typeface.

A motion or response does not need a cover but must contain a caption setting forth

the name of the court, the title of the case, the case number, and a brief descriptive title

indicating its purpose. F

ED. R. APP. P. 27(d) and 32(a)(3).

Number of Copies. ECF filers need to send paper copies of motions only when we

request them. Non-ECF filers must provide paper copies. Where the motion can be acted

on by the clerk or a single judge, see 5th C

IR. R. 27.1 and 27.2, you need only file an

original and one copy. Motions which require panel action (e.g., to dismiss an appeal)

require an original and three copies.

Service. You must serve copies of all motions and responses on all other parties

and must file proof of service with the court. F

ED. R. APP. P. 25(b)–(d).

HOW ARE MOTIONS PROCESSED?

Motions decided by the clerk under 5th Cir. R. 27.1 will normally be ruled on

within 5 days after we receive an unopposed motion or within 5 days after the time for filing

an opposition expires. In prisoner cases, if the federal or state government moves for an

extension of time to file a brief, the clerk’s office can grant a 15-day extension without

knowing whether the prisoner objects. If the prisoner objects after the motion has been

granted, then any further governmental extension requests are considered opposed.

If a single judge can decide a motion, the judge is selected randomly.

Most non-emergency motions requiring initial decision by a three-judge panel are

sent to the staff attorney’s office for review and recommendation. A motion for permission

to file a successive habeas corpus application in the district court is sent to the staff

attorney’s office as soon as possible because a three-judge panel has only 30 days to decide

the matter. 28 U.S.C. § 2244(b)(3)(D).

Emergency Motions. 5

TH CIR. R. 27.3 discusses how to file an emergency motion

and the requirements you must meet for the court to consider your motion on an expedited

basis. If your motion is a true emergency, we immediately assign it to the next initiating

judge on our log and simultaneously send copies to the other panel members. Unless

directed by the clerk, all communication must be made to the clerk’s office. The court may

take action on a motion before receiving a response. Therefore, respondents should notify

the clerk immediately if they intend to respond and file their response as soon as possible.

Fax or Electronic Filing. 5

TH CIR. R. 25 permits fax filing only in emergency

situations and only after the clerk specifically allows a party to send documents by fax. ECF

filers will file motions electronically. Non-ECF filers may send an electronic motion via e-

mail only when the clerk’s office grants permission to do so.

CASE SCREENING & PANEL ASSIGNMENTS

CASE SCREENING

Cases with obvious jurisdictional deficiencies are not briefed, and we do not request

the full record. Instead, they are prepared for decision by a jurisdictional review panel

Briefed cases are either screened through the staff attorney’s office or sent directly to an

“initiating” screening judge. When we receive the briefs and record on appeal, we send

the case on for screening. A discussion of the court’s screening practices and procedures

is found in the Internal Operating Procedures following 5

TH CIR. R. 34.

The staff attorney generally designates cases as Class I through IV:

• Class I cases are so lacking in merit they are deemed frivolous and subject

to affirmance or dismissal under F

ED. R. APP. P. 34(a)(2)(A) and 5TH

CIR. R. 42.2 and 47.6;

• Class II cases constitute the court’s summary calendar. This includes

cases where counsel has waived argument. In general, Class II cases have

a limited number of issues that have recently been decided, or the facts

and arguments are presented adequately in the briefs and record.

• Class III and IV cases represent the oral argument calendars and present

difficult or new issues. Class III cases are given 20 minutes per side for

argument; Class IV cases receive 30 minutes per side and represent the

most complex cases.

After review, the staff attorney may designate cases with few issues, easy facts, and

a limited record for decision on the summary calendar without further screening.

Otherwise, cases submitted to the court are sent in rotation to the next screening panel

selected from our log. Screening panel assignments are made effective July 1st of each year,

and the three judges assigned to a panel sit together for one year. Within each panel, we

rotate initiating judge assignments. When the initiating judge receives the appeal, his or

her first task is to determine whether the case is properly classified. If the initiating judge

agrees with a Class I or II recommendation, the case will be decided on the

summary

calendar. The judge then normally has 45 days in civil cases and 31 days in criminal cases

to draft an opinion and send it to the other judges on the panel. Those judges can agree

both with the proposed disposition and the opinion or send the case to the oral argument

calendar. It takes all three judges’ agreement to decide the case on the summary calendar.

Cases that the staff attorney classifies as Class III or IV and recommends for oral

argument are sent to an initiating judge for approval of the recommendation, except for

direct criminal appeals, which are sent to the oral argument calendar on the staff attorney’s

recommendation alone. If the judge concurs that argument is needed, the case is assigned

to the next available oral argument calendar. If the initiating judge disagrees with the

recommendation, the judge’s screening panel will decide the case without oral argument,

as long as all three panel members agree.

A small number of cases (e.g., NLRB, private civil diversity, tax, bankruptcy) are

sent directly to an initiating judge. Cases sent directly to the judges’ chambers for

screening are handled in a similar manner to cases sent via the staff attorney.

PANEL ASSIGNMENTS

At the beginning of each court year, the clerk’s office sets various panels of judges

to decide cases. As discussed above, screening panels determine whether oral argument is

needed. We also set panels for hearing oral argument.

Summary Calendar Panels. Class I and II cases not decided on the conference

calendar are submitted to the court along with all briefs, record excerpts, and the record on

appeal. The panel then decides the cases (typically within a month). If any party has

requested oral argument in their briefs, all judges must concur in the result and in opinion;

there can be no special concurrences or dissents.

Oral Argument Panels. Before argument, each panel member receives a copy of

the briefs and the record excerpts, and the record on appeal is available for review. The

judges confer promptly after completion of a day’s calendar of oral arguments. Although

the panel may reach a tentative decision at this conference, additional exchanges among

the judges are often necessary. The presiding judge of the panel assigns the case to a panel

member to prepare an opinion. The writing judge circulates a copy of the proposed opinion

to the other panel members. By court policy, the court does not pre-circulate opinions to

the entire court except in the very rare instance where the panel opinion results in a split of

authority among the circuits. After panel members have concurred or had an opportunity

to prepare separate opinions, the disposition is sent electronically to the clerk with

instructions as to how to assess costs and how to release the opinion. The median time

from oral argument until decision for all cases is about 2 months.

ORAL ARGUMENT

Fewer than 20% of briefed cases receive oral argument. Some cases initially selected

for argument are later removed from the calendar shortly before the scheduled argument.

Criminal cases have the least, and private civil cases the greatest, likelihood of being

selected for argument.

The length of time between the filing of briefs and oral argument varies depending

upon the type of case and the court’s caseload. Criminal and other special cases receive

priority. The court presently has little backlog of cases for oral argument, so once

designated for argument, a case should be heard within about 3 months.

PANEL ARGUMENTS

Generally, the court hears oral argument during the first week of each month, and

each panel hears five cases per day, Monday through Thursday. Additional sessions can

be scheduled at any time to handle certain matters (e.g., death penalty appeals, cases

requiring emergency relief). Except for en banc cases, the panel consists of three judges.

Cases are randomly assigned to panels. We send the briefs and record excerpts to panel

members soon after cases are selected for argument. The judges read the briefs and record

excerpts before argument, but they usually will not have examined the entire record.

About 30 days before the beginning of oral argument sessions, we post the case

names and numbers and the locations of the arguments on our website. However, the court

does not release the identity of the panel members until seven days before the beginning of

the oral argument session. At that time, this information will be posted on our website.

EN BANC ARGUMENTS

If a majority of the judges in active service agree, the en banc court can hear an

appeal initially or rehear it after panel decision. F

ED. R. APP. P. 35(a). If the court votes

to take a case en banc, the parties must file 22 copies of all previously filed and any

supplemental briefs. All non-recused active judges participate. Generally, each side is

allowed thirty minutes for argument. Counsel for the appellant and appellee may each

reserve no more than the first 5 minutes of an en banc argument as uninterrupted time.

Uninterrupted time cannot be shared or divided between advocates for a side, nor can any

part of the rebuttal be reserved as interrupted time. The court normally holds en banc

sessions in January, May, and September.

THE DAY OF ORAL ARGUMENT

Attorneys who will argue must check in with the clerk. Once you arrive at the John

Minor Wisdom U.S. Court of Appeals Building (directions are available here

), proceed to

Room 105. Counsel must check in 30 minutes before court convenes. 5TH CIR. R. 34.9.

Counsel in the fourth and fifth cases on the docket may check in by telephone, except on

the panel’s last day of argument. The number to call is at the end of “Note 1” to the oral

argument calendar posted on the court’s website. If you check in by phone, you still must

physically check in at the courtroom no later than one hour after the court session

convenes. Because changes are frequently made to the calendar after issuance, we

recommend you check the calendar on the court’s website on the Friday preceding oral

argument.

There are three courtrooms on the second floor of the John Minor Wisdom

Building. If more than three oral argument panels are scheduled in New Orleans, some

calendars will start at 9:00 a.m. and others at 1:00 p.m. Periodically, the court hears oral

argument outside of New Orleans. At least 30 days before oral argument, we will notify

you where and when the session will be held.

Once argument begins, cases are heard without interruption until the entire calendar

has been heard. Thus, counsel in the second case normally sit in the courtroom during the

first argument so that they can move to counsel’s table immediately after the first case is

argued. Counsel in the third and later cases may wait in the attorney’s lounges adjacent to

our three courtrooms. Each lounge contains a monitor to indicate which case is being

argued. When the case before yours is being heard, you should be present in the courtroom

so there is minimal delay when the preceding argument concludes.

You should know the names of the judges on the panel. At the beginning of your

argument, we ask you to identify yourselves to the court. This allows the judges to know

who is arguing so they can address counsel by name.

Time for Argument. Each side normally receives 20 minutes; a few cases permit

30 minutes per side. Most appellants reserve 5 minutes of their time for rebuttal. The

court disfavors requests to extend the time for argument and normally denies them. The

time permitted has no relationship to the attention the court gives a case; time limits

represent the estimate of the time needed to present the issues and answer questions.

If more than one counsel will argue, or if an amicus is permitted to argue, counsel

must agree among themselves how to allocate their 20- or 30-minute time allowance. Cases

consolidated for briefing are treated as one case for oral argument unless the court orders

otherwise. Counsel may divide the argument time as they agree. Generally, not more than

two counsel will be heard for each party. 5

TH CIR. R. 34.4.

Attendance of Counsel. Counsel for each party must be present unless excused by

the court for good cause. 5

TH CIR. R. 34.2. Parties desiring to waive oral argument and

to submit the case on the briefs, must file a motion to waive argument at least 7 days before

the date set for hearing. 5

TH CIR. R. 34.3. Please note, however, that when a case is placed

on the oral argument calendar, a judge has determined argument will be helpful in resolving

the case. Requests to waive argument are not looked upon with favor. 5

TH CIR. R. 34.10.

Continuance of Hearing. After a hearing has been set, only the court may delay

argument for good cause. 5

TH CIR. R. 34.6. The court ordinarily does not consider

engagement of counsel in other proceedings as good cause.

PREPARING FOR ARGUMENT

Counsel should thoroughly prepare to argue their case. You should have read the

record on appeal while writing your brief, and you should reread the record excerpts. Be

certain about what the record contains (and where those contents are located therein).

Review all the briefs. Be aware of discrepancies between your statement of facts and your

opponent’s. Make sure you are fully conversant on the legal arguments.

Imagine yourself in the court’s position: consider what the judges will want to know

and how they will want to hear it. Although your oral argument and brief complement each

other, each serves a different purpose. The oral argument should emphasize the critical

points to convince the judges that fair play and precedent support your position. In

contrast, the strength of the brief lies in its lucid, precise, and documented statement of the

facts, with fully explained reasoning and law supporting your position.

SUGGESTIONS FOR PRESENTING ARGUMENT

The Opening Statement. The panel has read the briefs before argument and is

familiar with the case. Individual judges, however, will have prepared to hear about twenty

cases during oral argument week. Thus, counsel should say enough about the facts and

posture of the case to bring it into focus. While counsel must obviously capture the judges’

attention in the first few minutes, an effective presentation can take many forms.

The Statement of Facts. Attune yourselves to the court’s level of comprehension.

If the facts are simple, do not spend much time on them. A common mistake lawyers make

is spending half of their time talking about background facts—and not focusing on the key

issues on which the decision turns. If the case is factually complex, even though the court

has read the briefs, counsel may need to give a clear factual exposition.

Discussion of Cases. Avoid a minute dissection of case law except when one or a

few cases clearly should control the outcome or when cases must be distinguished for you

to prevail. Avoid quotations, and generally do not provide citations of cases in your brief

(for example, “Your Honor, Johnson v. Jones, from this Circuit, cited in the brief, is

controlling.”). If you plan to discuss cases not in the briefs, refer to them by name and

court, and provide citations in writing to the court and counsel before argument.

Visual Aids. Visual aids are a two-edged sword. Many judges do not find them

helpful. Some judges will not allow you to make visual aids of anything not already in the

record on appeal. Further, when counsel refer to a chart or diagram, they might walk

toward the aid or turn away from the microphone, so the judges then have difficulty

hearing. Nonetheless, if counsel believe visual aids are necessary, in lieu of large poster-

sized aids, it is more helpful to furnish four small (8 x 14 inches or less) copies to the

courtroom deputy, who will give one to each judge. For en banc cases, counsel should

provide 20 copies. If counsel must use large aids, they should also furnish smaller copies.

Emphasis. You do not have a lot of time to argue, particularly if the court asks many

questions. Emphasize the most important points. You should have an instinct for your

strongest point and the opponent’s weaknesses. Stress those in oral argument.

Avoid Reading. You need to know the argument so well that you can watch the

court, respond to its uncertainties, ascertain its concerns, and answer its questions. Answer

questions when asked; do not postpone until later in the argument. Yet, of course, try not

to let the court keep you from reaching your major points.

Talk Policy Sense. Perhaps there is no room for policy in the case, but if there is,

counsel should be able to tell the court why his or her client should prevail and what social

ends a favorable decision would promote. One benefit of oral argument may be the

opportunity to address the breadth of the issue before the court. For example, it is

sometimes critical to a regulated industry that a decision be confined to the facts of the

case. Or, if a conviction might be set aside, the prosecutor might hope to create as little

precedent as possible. A good advocate looking to the future may try to persuade the court

to resist expressing dicta or, conversely, may seek the enunciation of a broad rule.

Avoid Personal Attacks. Although counsel may, of course, criticize the reasoning

of opposing counsel or the court below, be careful not to make personal attacks.

Disparaging words only detract from your argument.

The Special Position of Appellee’s Counsel. Appellee’s counsel has the

advantage of listening to appellant’s argument. Appellee’s counsel should correct

important misstatements of the facts. Appellee’s counsel may want to give fresh answers

to questions which were posed to appellant’s lawyer; this can be done by noting the

question and saying that you would also like to respond. Of course, having won below is an

advantage, especially if the issues turn on credibility determinations.

Rebuttal. Most appellants’ counsel reserve a few minutes for rebuttal. The last

word may be important. However, remember that rebuttal is not used to raise new

arguments. If you try to make a new argument on rebuttal, the court may deny

consideration or give appellee a chance at sur-rebuttal. Make your rebuttal short and use

it to correct important errors and mischaracterizations by appellee’s counsel.

Be Succinct. Too often, lawyers make their points, note that argument time has

not been used up, and go over the points again. The court is grateful when counsel make

their arguments and then stop. That an amount of time has been allocated for argument

does not require you to fill it. Be aware of the court’s reaction to your argument: if your

case is an obvious winner, do not prolong argument just to use up time. As one judge has

noted: “Often the mark of a good appellate advocate is knowing when to sit down.”

OPINIONS

The court does not issue decisions from the bench. All opinions are typewritten. A

copy is sent to the trial court or agency and the parties on the day the court enters the

decision on the docket sheet. F

ED. R. APP. P. 36. ECF filers will receive a notice of

docket activity when the opinion issues. Generally, we do not fax copies of the opinion to

the parties, but we will call to let you know an opinion has issued, if you request this service

in advance. All opinions also are posted on our website the day issued.

The court may, in its discretion, use a terse judgment such as “affirmed.” 5

CIR. R. 47.6. Judges do not have to sign the opinion, as district court judges do.

PUBLICATION OF OPINIONS

5TH CIR. R. 47.5 sets out the criteria for publishing an opinion. Opinions are

published unless each panel member decides the case does not meet the criteria for

publication. If any judge of the court or a party requests that a panel reconsider its

publication decision, all panel members must agree to publish the opinion.

All unpublished opinions contain a legend on the first page stating that pursuant to

TH CIR. R. 47.5, the court has determined that this opinion should not be published.

Unpublished opinions issued before January 1, 1996, are precedent and binding on the

court. But unpublished opinions issued on or after January 1, 1996, have no precedential

value and do not bind other panels of the court. 5

TH CIR. R. 47.5.4. However, they may

be cited if they have persuasive value with respect to a material issue that has not been

addressed in a published opinion.

Note that if any document you file with the court cites to an unpublished opinion

not in a publicly available electronic database (e.g., WestLaw or Lexis), you must attach a

copy of the opinion.

POST-DECISION MATTERS

REHEARING

Counsel may file a petition for panel or en banc rehearing. Filing a petition for

rehearing is not a prerequisite to filing a petition for writ of certiorari in the Supreme Court.

Rehearing is rarely granted, and you should only ask for it when truly warranted. The

historical average of successful petitions for panel rehearing is less than 5%. Even fewer

petitions for en banc rehearing are granted, generally less than 3%. Petitions for rehearing

should never assume an adversarial posture with the panel. Even though the court has

ruled against a particular party, the panel has not become an adversary.

Rehearing must be filed within 14 days after entry of judgment, except in civil cases

where the United States is a party—then, any party has 45 days. F

ED. R. APP. P. 35(c)

and 40(a)(1). We must receive the petition within the time set. 5

TH CIR. R. 40.4. If you

are filing both a petition for panel and en banc rehearing, both must be filed within the time

limits in F

ED. R. APP. P. 40(a)(1). You do not get to wait until your petition for panel

rehearing is denied to file a petition for en banc rehearing. Pro se litigants often make this

mistake. Except by permission of the court, petitions for rehearing should have no

attachments other than a copy of the panel opinion.

Petition for Panel Rehearing. A petition for panel rehearing must state with

particularity each point of law or fact that the petitioner believes the court has overlooked

or misapprehended. F

ED. R. APP. P. 40(a)(2), 5TH CIR. R. 40.2. Generally, the court

does not request an answer to the petition.

The petition must not exceed 3900 words. The form is prescribed by F

ED. R.

APP. P. 32 and the petition must be served as FED. R. APP. P. 31 requires. Please attach a

copy of the stamped opinion we sent you, rather than one printed out from the internet.

Petition for Rehearing En Banc. A petition for rehearing en banc is to be used only

for cases involving questions of exceptional importance or to secure or maintain uniformity

of the court’s decisions. F

ED. R. APP. P. 35(a). Rehearing en banc is an extraordinary

procedure intended to correct errors of exceptional public importance or opinions that

directly conflict with prior Supreme Court, Fifth Circuit, or state law precedent. Rehearing

en banc petitions take an inordinate amount of the judges’ scarce resources. Because of

the extraordinary nature of en banc rehearing, the court is fully justified in imposing

sanctions on its own initiative for petitions which have little merit. 5

TH CIR. R. 35.1.

The petition must not exceed 3900 words and must comply with the format

requirements of F

ED. R. APP. P. 32. Any petition must also include a statement of

interested parties, 5

TH CIR. R. 35.2.1, and if the party is represented by counsel, there

must be a statement by counsel that complies with F

ED. R. APP. P. 35(b)(1) and (2). No

response is necessary unless the court orders one.

The petition must not be incorporated in a petition for panel rehearing, if one is

filed. Further, the petition for en banc rehearing may not adopt by reference any matter

from the petition for panel rehearing or from any other brief or motions in the case. 5

CIR. R. 35.2. You must attach unmarked copies of the panel opinion or order as an

appendix to the petition. 5

TH CIR. R. 35.2.10. Please attach a copy of the stamped opinion

we sent you.

If the court grants a petition for en banc rehearing, the panel opinion is vacated and

the mandate is stayed. 5

TH CIR. R. 41.3.

RECONSIDERATION

When the clerk or a single judge rules on an administrative motion, there is no

“rehearing”; instead, the court uses the term “reconsideration.” 5

TH CIR. R. 27.1 and

.2 lay out the types of motions that the clerk and single judges may rule on. Any request

for review of their decisions should be made by a “motion for reconsideration.” You

generally must file the motion within 14 days after the date the order you want reviewed is

filed, but if the United States is a party in a civil case, any party has 45 days to file the

motion. Requests for reconsideration may not exceed 5200 words. F

ED. R. APP. P.

27(d)(2)(B).

Reconsideration of denials of relief in administrative motions is by a three-judge

panel only. Procedural and interim matters—e.g., appointment of counsel, leave to appeal

in forma pauperis, denial of permission for an abusive litigant to file pleadings, etc.—are

not subject to en banc consideration.

Further, 28 U.S.C. § 2244(b)(3)(E) is clear that the denial of permission to file a

successive habeas corpus petition is not appealable. There is no right of reconsideration or

rehearing and no right to file a writ of certiorari to the Supreme Court.

THE MANDATE

Unless the court directs that a formal mandate issue, the mandate consists of a

certified copy of the court’s judgment, a copy of the opinion, and direction as to costs.

The court’s judgment takes effect when the mandate issues. We issue the mandate

on the eighth calendar day after the time for filing a petition for rehearing has passed, unless

a timely petition for rehearing is filed or an explicit court order shortens or lengthens the

time for issuing the mandate. If a petition for rehearing is denied, we issue the mandate on

the eighth calendar day after the order denying rehearing is filed, unless the court shortens

or extends the time. On occasion, the court will issue the mandate forthwith, in which case

the mandate is issued at the same time as the judgment, e.g., in expedited appeals of

criminal sentences and actions denying mandamus relief. 5

TH CIR. R. 41.4. When we

issue the mandate, we send a certified copy of the final judgment, the opinion, any

directions as to costs, and any non-electronic portions of the record on appeal that were

filed with this court to the district court. We notify the parties of the issuance of the

mandate, but we do not send another copy of the opinion or a copy of the judgment to

the parties.

STAY OF THE MANDATE

Stay Pending Application for Certiorari. You may file a motion to stay issuance

of the mandate pending application to the Supreme Court for a writ of certiorari, with

reasonable notice to all parties. Fed. R. App. P. 41(d)(2). The stay must not exceed 90

days unless extended by the court for good cause shown. To prevent a stay from being used

for purposes of delay, we will not grant a stay pending certiorari in criminal cases unless we

conclude there is a substantial question for the Supreme Court. 5

TH CIR. R.41.1. The fact

we have issued the mandate does not affect your right to apply for a writ of certiorari nor

does it affect the power of the Supreme Court to grant the writ.

Petition for Writ of Certiorari. You have 90 days from the date of entry of

judgment, or the date of the denial of a timely petition for rehearing, to file a petition for

writ of certiorari in the U.S. Supreme Court. Any requests for additional time must be filed

by motion with the clerk of the U.S. Supreme Court.

Petition for Rehearing. The timely filing of a petition for panel or en banc

rehearing, or motion for stay of the mandate, stays the mandate until the petition or motion

is ruled upon, unless the court directs otherwise.

COURT’S MANDATE PROCEDURES

We now notify parties when a mandate is held or released. A public entry is made

on the docket and a public order is issued without releasing the name of the judge.

COSTS

The prevailing party can request payment of the costs set out in FED. R. APP. P.

39 and 5

TH CIR. R. 39. A party seeking to recover costs must file an itemized and verified

bill of costs, along with proof of service on opposing counsel, within 14 days after entry of

the judgment. Any objections must be filed within 14 days of service on the party against

whom the costs are taxed, unless the time is extended by the court. Objections to the bill

of costs are usually filed when unreasonable charges or improper items are listed. We

permit copying costs for up to 15 copies of briefs and 10 copies of record excerpts; copying

costs are limited to the lesser of actual cost or $0.15 per page. We do not permit recovery

of mailing or commercial delivery fees for transmitting briefs. 5

TH CIR. R. 39.1 and .2.

Although “taxable” in the court of appeals, the money involved as “costs” never

physically changes hands at the court-of-appeals level. We prepare an itemized statement

of costs for insertion in the mandate. The costs can then be recovered in the district court

after the mandate issues. In some instances, we may send a supplemental statement of

costs to the district court after the mandate has issued. No time limit is specified for the

court of appeals to send the statement of costs, and district courts are not authorized to

impose such a time limit.

MISCELLANEOUS

STAY OR INJUNCTION PENDING APPEAL

The mere filing of a notice of appeal does not stay the district court’s judgment. If

you want to stay a district court judgment or if you seek an injunction pending appeal, you

must follow F

ED. R. APP. P. 8 and generally make application in the district court. In a

motion for stay of judgment or for injunction made to this court, you must show that the

district court has denied the relief you requested, with the reasons given therefor, or that

application to the district court would not be practicable. F

ED. R. APP. P. 8(a)(2). Stays

in death penalty cases are governed by the separate requirements of 5

TH CIR. R. 8.

An application for stay of a decision or order of an agency is made in a similar manner

to an application for stay of a district court judgment. F

ED. R. APP. P. 18.

Jurisdiction. A motion for stay or injunction does not transfer jurisdiction to the

court of appeals. For the court to consider such a motion, there must be a pending appeal,

petition for review, or application for a writ.

Fees. No separate fee is required to file a motion for stay or injunction, but all

required fees must have been paid in the underlying action or leave to proceed in forma

pauperis must have been granted, before the court will act on the motion.

Content of Motion and Supporting Papers. You must show prior application to

the district court or agency, where practicable, and the action of the district court or agency,

with reasons given for such action. You must also show the reason for the relief requested

and the facts relied upon. Disputed facts should be supported by affidavits or other sworn

statements. The motion should be accompanied by copies of the relevant parts of the

record. F

ED. R. APP. P. 8(a)(2) and 18(a)(2)(B).

Filing and Service. You must file an original copy of the motion and supporting

papers, together with a certificate of service on all parties to the appeal. You must also give

reasonable notice of every application for stay or injunction to all parties, including when,

where and to whom the application is to be presented.

Responses. The court may grant a stay or injunction pending appeal without first

giving opposing parties time to respond to the motion. It may also grant temporary relief

ex parte in appropriate cases. If you intend to respond, you should notify the clerk’s office

immediately. All responses received by the clerk before action on the motion are presented

to the court for consideration.

RELEASE IN CRIMINAL CASES

This court may review district court orders respecting release, entered before or

after a judgment of conviction. Review of a district court order entered before judgment or

conviction must be by appeal, 18 U.S.C. § 3145(c), and should be initiated like any other

criminal appeal. After reasonable notice to the appellee, the appeal must be heard upon

such papers, affidavits, and portions of the record as the parties may present or the court

requires. F

ED. R. APP. P. 9(a). A government-requested review of a district court order

respecting release pending a defendant’s direct criminal appeal must also be by appeal. 18

U.S.C. §§ 3145(c) and 3731. A defendant may seek review of a district court order

respecting release pending appeal by initiating a separate appeal, 18 U.S.C. § 3145(c), or by

filing a new motion for release. F

ED. R. APP. P. 9(b).

Fifth Circuit Requirements. Our requirements for filing an application for release

after judgment of conviction are set forth in 5

TH CIR. R. 9.2. The documents required

for an application for release before or after judgment of conviction are set forth in 5

CIR. R. 9.3.

HABEAS CORPUS

Antiterrorism and Effective Death Penalty Act. There is a one-year statute of

limitations on filing a petition for writ of habeas corpus. 28 U.S.C. §§ 2244(d)(1) and 2255.

Generally, a prisoner may file only one federal habeas corpus application. A second or

successive application may not be filed unless a three-judge panel of this court grants

permission. 28 U.S.C. § 2244(b)(3). There are also limits on the standards of review that

the court may apply.

Prisoners convicted by state courts must exhaust available state court remedies

before filing a federal habeas corpus application. 28 U.S.C. § 2254(b)(1)(A). After

exhaustion of those remedies, state prisoners may file an application for federal habeas

corpus relief in the federal district court which has jurisdiction over the location of their

prison or over the court where they were convicted. Prisoners convicted in a federal district

court may file an application for a writ of habeas corpus to the federal district court where

they were convicted. Applications improperly sent to this court will be transferred to the

appropriate district court. F

ED. R. APP. P. 22(a).

Certificate of Appealability. If the district court denies habeas corpus relief, the

prisoner may appeal, but only if granted a “certificate of appealability” by a district or

circuit court judge. F

ED. R. APP. P. 22(b). A habeas petitioner who is unsuccessful in

the district court must apply first to the district judge for a certificate of appealability. If

the district judge denies a certificate of appealability, a notice of appeal from the denial of

a writ of habeas corpus constitutes a request to this court for a certificate of appealability.

ED. R. APP. P. 22(b). This court generally requires the prisoner to file: 1) a motion for

a certificate of appealability and 2) a separate brief in support of the motion. If the prisoner

fails to file these documents within the prescribed time, we will dismiss the appeal. If the

district judge grants a certificate of appealability on only some of the issues, the petitioner

must expressly ask for an expanded certificate from this court to raise additional issues.

Applications for certificates of appealability must meet the format and length

requirements of F

ED. R. APP. P. 32(a), and 5TH CIR. R. 32, as applicable.

Successive Habeas Corpus Applications. Applications for second or successive

habeas corpus petitions are limited to 30 pages for a handwritten application, or 13,000

words or 1,300 lines of text for typed or computer-generated applications.

A second or successive § 2254 petition must make a prima facie showing that you

satisfy either of the two conditions found in 28 U.S.C. § 2244(b):

(a) your claim relies on a new rule of constitutional law, made retro-active by

the Supreme Court, that was previously unavailable; or,

(b) the factual predicate for your claim could not have been discovered

previously through the exercise of due diligence, and the facts underlying

your claim, if proven by clear and convincing evidence, would be

sufficient to establish that a reasonable trier of fact would not have found

you guilty of the underlying offense.

You must attach the following documentation:

• a copy of the proposed § 2254 petition you are requesting permission to

file in the district court;

• copies of all previous § 2254 petitions challenging the judgment or

sentence received in any conviction for which you are currently

incarcerated and any previous § 2241 petitions challenging the terms and

conditions of your imprisonment;

• any complaint, regardless of title, that was subsequently treated by the

district court as a § 2254 motion or § 2241 petition;

• all court opinions, orders, and reports and recommendations disposing of

the claims advanced above.

If, after due diligence and through no fault of your own, you cannot obtain the

documents described above, you should submit an affidavit describing the steps you took

to obtain them and explaining why you were unsuccessful. If possible, identify by court,

case name, and case number any proceeding for which you cannot obtain documents.

SPECIAL PROCEDURES IN DEATH PENALTY CASES

Because of the extraordinary nature of the interests in cases involving the death

penalty and because appeals in cases in which an execution date is set may require an

expedited decision or a stay of execution to prevent the appeal from becoming moot, the

court has adopted special procedures governing appeals in such cases. These procedures

are set out in detail in 5

TH CIR. R. 8.