FEDERAL RULES OF APPELLATE PROCEDURE Effective

FEDERAL RULES OF APPELLATE PROCEDURE

Effective December 1, 2021

And

TENTH CIRCUIT RULES

Effective January 1, 2022

TITLE I. APPLICABILITY OF RULES .................................................................. 1

Fed. R. App. P. Rule 1. Scope of Rules; Title ....................................................... 1

10th Cir. R. 1 ................................................................................................... 1

1.1 Scope of rules.................................................................................... 1

1.2 Organization...................................................................................... 1

1.3 Citation. ............................................................................................. 1

1.4 Internal references. ........................................................................... 1

1.5 Effective date. ................................................................................... 2

Fed. R. App. P. Rule 2. Suspension of Rules ......................................................... 3

10th Cir. R. 2 ................................................................................................... 3

2.1 Suspension of local rules. ................................................................. 3

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT

COURT ...................................................................................................................... 4

Fed. R. App. P. Rule 3. Appeal as of Right—How Taken .................................... 4

10th Cir. R. 3 ................................................................................................... 6

3.1 Signing notice of appeal. .................................................................. 6

3.2 Preliminary record. ........................................................................... 6

3.3 Fees. .................................................................................................. 7

3.4 Docketing statement. ........................................................................ 8

Fed. R. App. P. Rule 3.1. Appeal from a Judgment of a Magistrate Judge in a

Civil Case ............................................................................................................... 9

Fed. R. App. P. Rule 4. Appeal as of Right—When Taken ................................. 10

Fed. R. App. P. Rule 5. Appeal by Permission .................................................... 16

10th Cir. R. 5 ................................................................................................. 17

5.1 Reply briefs. .................................................................................... 17

Fed. R. App. P. Rule 5.1. Appeal by Leave under 28 U.S.C. § 636(c)(5) ........... 18

Fed. R. App. P. Rule 6. Appeal in a Bankruptcy Case ........................................ 19

10th Cir. R. 6 ................................................................................................. 22

6.1

Appendices in bankruptcy appeals. ................................................ 22

Fed. R. App. P. Rule 7. Bond for Costs on Appeal in a Civil Case ..................... 23

Fed. R. App. P. Rule 8. Stay or Injunction Pending Appeal ................................ 24

10th Cir. R. 8 ................................................................................................. 25

8.1 Required showing. .......................................................................... 25

8.2 Emergency or ex parte motions. ..................................................... 26

8.3 Applications made to a single judge. .............................................. 26

Fed. R. App. P. Rule 9. Release in a Criminal Case ............................................ 27

10th Cir. R. 9 ................................................................................................. 28

9.1 Expedited proceedings. ................................................................... 28

9.2 Procedures. ...................................................................................... 28

9.3 Response and date at issue. ............................................................. 29

9.4 Length. ............................................................................................ 29

9.5 Hard copies. .................................................................................... 29

9.6 Ruling not law of the case. ............................................................. 29

Fed. R. App. P. Rule 10. The Record on Appeal ................................................. 30

10th Cir. R. 10 ............................................................................................... 32

10.1 Tenth Circuit Record on Appeal. ................................................... 32

10.2 Transcripts. .................................................................................... 32

10.3 Designation of record (when filed). ............................................... 34

10.4 Content of record. .......................................................................... 34

Fed. R. App. P. Rule 11. Forwarding the Record ................................................ 38

10th Cir. R. 11 ............................................................................................... 40

11.1 Record retained in district court (appendix filed). ......................... 40

11.2 Record transmitted to court of appeals (when required). .............. 40

11.3 Sealed materials. ............................................................................ 41

Fed. R. App. P. Rule 12. Docketing the Appeal; Filing a Representation

Statement; Filing the Record ................................................................................ 42

iii

Fed. R. App. P. Rule 12.1. Remand After an Indicative Ruling by the District

Court on a Motion for Relief That Is Barred by a Pending Appeal ..................... 43

TITLE III. APPEALS FROM THE UNITED STATES TAX COURT ................. 44

Fed. R. App. P. Rule 13. Appeals from the Tax Court ........................................ 44

Fed. R. App. P. Rule 14. Applicability of Other Rules to Appeals from the Tax

Court ..................................................................................................................... 46

10th Cir. R. 14 ............................................................................................... 46

14.1 Tenth Circuit rules apply. .............................................................. 46

TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN

ADMINISTRATIVE AGENCY, BOARD, COMMISSION, OR OFFICER ......... 47

Fed. R. App. P. Rule 15. Review or Enforcement of an Agency Order—How

Obtained; Intervention .......................................................................................... 47

10th Cir. R. 15 ............................................................................................... 49

15.1 Required attachments. .................................................................... 49

15.2 Service on the Respondents. .......................................................... 49

15.3 Docketing statement. ..................................................................... 49

15.4 Intervention. ................................................................................... 49

Fed. R. App. P. Rule 15.1. Briefs and Oral Argument in a National Labor

Relations Board Proceeding ................................................................................. 50

Fed. R. App. P. Rule 16. The Record on Review or Enforcement ...................... 51

Fed. R. App. P. Rule 17. Filing the Record ......................................................... 52

10th Cir. R. 17 ............................................................................................... 53

17.1 Time for filing. ............................................................................... 53

17.2 No separate appendix required. ..................................................... 53

Fed. R. App. P. Rule 18. Stay Pending Review ................................................... 54

10th Cir. R. 18 ............................................................................................... 55

18.1 Applications for stay. ..................................................................... 55

Fed. R. App. P. Rule 19. Settlement of a Judgment Enforcing an Agency Order

in Part ................................................................................................................... 56

Fed. R. App. P. Rule 20. Applicability of Rules to the Review or Enforcement of

an Agency Order .................................................................................................. 57

10th Cir. R. 20 ............................................................................................... 57

20.1 Tenth Circuit rules apply. .............................................................. 57

TITLE V. EXTRAORDINARY WRITS ................................................................. 58

Fed. R. App. P. Rule 21. Writs of Mandamus and Prohibition, and Other

Extraordinary Writs .............................................................................................. 58

10th Cir. R. 21 ............................................................................................... 59

21.1 Fees. ............................................................................................... 59

TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS ........ 60

Fed. R. App. P. Rule 22. Habeas Corpus and Section 2255 Proceedings ........... 60

10th Cir. R. 22 ............................................................................................... 61

22.1 Certificate of appealability. ........................................................... 61

22.2 Procedures in death penalty cases. ................................................ 61

22.3 Other rules applicable. ................................................................... 62

Fed. R. App. P. Rule 23. Custody or Release of a Prisoner in a Habeas Corpus

Proceeding ............................................................................................................ 63

Fed. R. App. P. Rule 24. Proceeding in Forma Pauperis ..................................... 64

10th Cir. R. 24 ............................................................................................... 65

24.1 Prison Litigation Reform Act. ....................................................... 65

24.2 Duty of Prisoner Appellant. ........................................................... 66

TITLE VII. GENERAL PROVISIONS ................................................................... 67

Fed. R. App. P. Rule 25. Filing and Service ........................................................ 67

10th Cir. R. 25 ............................................................................................... 71

25.1 File stamped copies of papers. ....................................................... 71

25.2 Papers subject to being stricken. .................................................... 71

25.3 Electronic filing. ............................................................................ 71

25.4 Electronic and nonelectronic service; proof of service. ................ 71

25.5

Privacy redaction requirements. .................................................... 72

25.6 Filing under seal. ........................................................................... 73

25.7 Technical failure. ........................................................................... 73

Fed. R. App. P. Rule 26. Computing and Extending Time .................................. 75

Fed. R. App. P. Rule 26.1. Disclosure Statement ................................................ 78

10th Cir. R. 26.1 ............................................................................................ 79

(A) Disclosure Statement in Appeals Based on Diversity Jurisdiction—

Identifying Members and Partners. .......................................................... 79

Fed. R. App. P. Rule 27. Motions ........................................................................ 80

10th Cir. R. 27 ............................................................................................... 82

27.1 Disclosure of opponent’s position. ................................................ 82

27.2 Paper copies not required. .............................................................. 83

27.3 Summary disposition on motion by a party or the court. .............. 83

27.4 Certification of questions of state law. .......................................... 84

27.5 Clerk authorized to act. .................................................................. 85

27.6 Motions to extend time. ................................................................. 86

27.7 Orders. ............................................................................................ 87

Fed. R. App. P. Rule 28. Briefs ............................................................................ 88

10th Cir. R. 28 ............................................................................................... 91

28.1 References to appendix or record. ................................................. 91

28.2 Additional requirements. ............................................................... 91

28.3 Disfavored practices. ..................................................................... 92

Fed. R. App. P. Rule 28.1. Cross-Appeals ........................................................... 94

Fed. R. App. P. Rule 29. Brief of an Amicus Curiae ........................................... 97

10th Cir. R. 29 ............................................................................................... 99

29.1 Amicus briefs on rehearing. ........................................................... 99

29.2 Paper copies of amicus briefs. ....................................................... 99

Fed. R. App. P. Rule 30. Appendix to the Briefs ...............................................100

10th Cir. R. 30 .............................................................................................102

30.1 Appellant’s appendix. ..................................................................102

30.2 Supplemental appendix. ...............................................................105

30.3 Appendix exemptions. .................................................................105

Fed. R. App. P. Rule 31. Serving and Filing Briefs ...........................................107

10th Cir. R. 31 .............................................................................................108

31.1 Opening brief for appellant/petitioner. ........................................108

31.2 Joint briefing in criminal appeals. ...............................................108

31.3 Joint briefing in civil appeals. ......................................................108

31.4 Extensions. ...................................................................................109

31.5 Number of copies. ........................................................................109

Fed. R. App. P. Rule 32. Form of Briefs, Appendices, and Other Papers .........110

10th Cir. R. 32 .............................................................................................113

(A) Font sizes in briefs. .......................................................................113

(B) Word count where glossary included. ..........................................113

Fed. R. App. P. 32.1. Citing Judicial Dispositions. ...........................................114

10th Cir. R. 32.1 ..........................................................................................114

32.1 Citing judicial dispositions. ...........................................................114

Fed. R. App. P. Rule 33. Appeal Conferences ...................................................115

10th Cir. R. 33 .............................................................................................115

33.1 Mediation conference. .................................................................115

Fed. R. App. P. Rule 34. Oral Argument ...........................................................117

10th Cir. R. 34 .............................................................................................118

34.1 Oral argument. .............................................................................118

Fed. R. App. P. Rule 35. En Banc Determination ..............................................120

10th Cir. R. 35 .............................................................................................121

35.1 En banc consideration. .................................................................121

vii

35.2

Request in petition for rehearing. ................................................122

35.3 Untimely request. .........................................................................122

35.4 Hard copies. .................................................................................122

35.5 Who may vote; en banc panel. .....................................................122

35.6 Effect of rehearing en banc. .........................................................122

35.7 Matters not considered en banc. ..................................................122

Fed. R. App. P. Rule 36. Entry of Judgment; Notice .........................................123

10th Cir. R. 36 .............................................................................................123

36.1 Orders and judgments. .................................................................123

36.2 Publication. ..................................................................................123

Fed. R. App. P. Rule 37. Interest on Judgment ..................................................124

Fed. R. App. P. Rule 38. Frivolous Appeal—Damages and Costs ....................125

Fed. R. App. P. Rule 39. Costs ...........................................................................126

10th Cir. R. 39 .............................................................................................127

39.1 Maximum rates. ...........................................................................127

39.2 Motion for attorneys’ fees. ..........................................................127

Fed. R. App. P. Rule 40. Petition for Panel Rehearing ......................................128

10th Cir. R. 40 .............................................................................................129

40.1 Reasons for petition. ....................................................................129

40.2 Form; copies and attachments. ....................................................129

40.3 Successive petitions. ....................................................................129

Fed. R. App. P. Rule 41. Mandate: Contents; Issuance and Effective Date; Stay

............................................................................................................................130

10th Cir. R. 41 .............................................................................................131

41.1 Stay not routinely granted. ...........................................................131

41.2 Motion to recall mandate. ............................................................131

Fed. R. App. P. Rule 42. Voluntary Dismissal ..................................................132

10th Cir. R. 42 .............................................................................................132

viii

42.1

Dismissal for failure to prosecute. ...............................................132

42.2 Reinstatement...............................................................................132

Fed. R. App. P. Rule 43. Substitution of Parties ................................................133

Fed. R. App. P. Rule 44. Case Involving a Constitutional Question When the

United States or the Relevant State Is Not a Party .............................................135

Fed. R. App. P. Rule 45. Clerk’s Duties ............................................................136

10th Cir. R. 45 .............................................................................................137

45.1 Duties. ..........................................................................................137

45.2 Chief deputy clerk. .......................................................................137

45.3 Office location. ............................................................................137

Fed. R. App. P. Rule 46. Attorneys ....................................................................138

10th Cir. R. 46 .............................................................................................139

46.1 Entry of appearance. ....................................................................139

46.2 Admission to Tenth Circuit bar. ..................................................140

46.3 Responsibilities in criminal and postconviction cases. ...............141

46.4 Withdrawal. ..................................................................................142

46.5 Signing briefs, motions, and other papers; representations to court;

sanctions. ................................................................................................144

46.6 Discipline of counsel or parties. ..................................................144

46.7 Student practice. ..........................................................................145

Fed. R. App. P. Rule 47. Local Rules by Courts of Appeals .............................148

10th Cir. R. 47 .............................................................................................148

47.1 Advisory committee. ....................................................................148

47.2 Circuit library. ..............................................................................150

47.3 Judicial conference. .....................................................................150

Fed. R. App. P. Rule 48. Masters .......................................................................151

APPENDIX ........................................................................................................152

Length Limits Stated in the Federal Rules of Appellate Procedure ..................152

FORMS ..............................................................................................................155

Form 1A. Notice of Appeal to a Court of Appeals From a Judgment of a

District Court ..................................................................................................155

Form 1B. Notice of Appeal to a Court of Appeals From an Appealable Order

of a District Court ...........................................................................................156

Form 2. Notice of Appeal to a Court of Appeals From a Decision of the

United States Tax Court .................................................................................157

Form 3. Petition for Review of Order of an Agency, Board, Commission or

Officer .............................................................................................................158

Form 4. Affidavit to Accompany Motion for Leave to Appeal in Forma

Pauperis ..........................................................................................................159

Form 5. Notice of Appeal to a Court of Appeals from a Judgment or Order of

a District Court or a Bankruptcy Appellate Panel ..........................................166

Form 6. Certificate of Compliance With Type-Volume Limit ......................168

Form 7. Declaration of Inmate Filing .............................................................169

TENTH CIRCUIT FORMS ...............................................................................170

10th CIR. FORM 1. DOCKETING STATEMENT INSTRUCTIONS AND

FORM .............................................................................................................170

10th CIR. FORM 2. ENTRY OF APPEARANCE AND CERTIFICATE OF

INTERESTED PARTIES UNDER 10th Cir. R. 46.1 ....................................179

10th CIR. FORM 3. ENTRY OF APPEARANCE—PRO SE .......................182

10th CIR. FORM 4. LETTER NOTICE THAT COUNSEL HAS MOVED TO

WITHDRAW UNDER 10th CIR. R. 46.4(B)(2) ...........................................184

LOCAL APPENDIX A ......................................................................................186

APPELLATE TRANSCRIPT MANAGEMENT PLAN ...............................186

FOR THE TENTH CIRCUIT ........................................................................186

LOCAL APPENDIX B ......................................................................................190

GENERAL ORDER REGARDING SCHEDULING CONFLICTS .............190

FOR THE TENTH CIRCUIT ........................................................................190

ADDENDUM I ..................................................................................................194

CRIMINAL JUSTICE ACT PLAN ...............................................................194

ADDENDUM II .................................................................................................202

PLAN FOR APPOINTMENT OF COUNSEL IN SPECIAL CIVIL

APPEALS .......................................................................................................202

ADDENDUM III ................................................................................................204

PLAN FOR ATTORNEY DISCIPLINARY ENFORCEMENT ...................204

FEDERAL RULES OF APPELLATE PROCEDURE

TITLE I. APPLICABILITY OF RULES

Fed. R. App. P. Rule 1. Scope of Rules; Title

(a) Scope of Rules.

(1) These rules govern procedure in the United States courts of appeals.

(2) When these rules provide for filing a motion or other document in the

district court, the procedure must comply with the practice of the district court.

(b) Definition. In these rules, “state” includes the District of Columbia and any

United States commonwealth or territory.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002;

Apr. 28, 2010, eff. Dec. 1, 2010.)

10th Cir. R. 1

1.1 Scope of rules.

These rules supplement the Federal Rules of Appellate Procedure for

cases in this court. Parties must comply both with the Federal Rules of

Appellate Procedure and with these rules.

1.2 Organization.

These rules have been organized and numbered to correspond to the

Federal Rules of Appellate Procedure. Provisions having no direct

relationship to a Federal Rule of Appellate Procedure are in Rule 47.

1.3 Citation.

These rules are known as the Tenth Circuit Rules. A particular rule

should be cited as “10th Cir. R. ___.”

1.4 Internal references.

In these rules, the circuit clerk is referred to as “circuit clerk” or “the

Clerk.” A Tenth Circuit Rule is referred to as “Rule ___.” A Federal

Rule of Appellate Procedure is referred to as “Fed. R. App. P. ___” or

“Federal Rule of Appellate Procedure ___.” A Federal Rule of Civil

Procedure is referred to as “Fed. R. Civ. P. ___.”

1.5 Effective date.

These local rules are effective January 1, 2022, and apply to all

proceedings that have not been completed before that date.

Fed. R. App. P. Rule 2. Suspension of Rules

On its own or a party’s motion, a court of appeals may—to expedite its decision or

for other good cause—suspend any provision of these rules in a particular case and

order proceedings as it directs, except as otherwise provided in Rule 26(b).

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

10th Cir. R. 2

2.1 Suspension of local rules.

The court may suspend any part of these rules in a particular case on

its own or on a party’s motion.

TITLE II. APPEAL FROM A JUDGMENT OR ORDER

OF A DISTRICT COURT

Fed. R. App. P. Rule 3. Appeal as of Right—How Taken

(a) Filing the Notice of Appeal.

(1) An appeal permitted by law as of right from a district court to a court of

appeals may be taken only by filing a notice of appeal with the district clerk

within the time allowed by Rule 4. At the time of the filing, the appellant must

furnish the clerk with enough copies of the notice to enable the clerk to comply

with Rule 3(d).

(2) An appellant’s failure to take any step other than the timely filing of a

notice of appeal does not affect the validity of the appeal, but is ground only

for the court of appeals to act as it considers appropriate, including dismissing

the appeal.

(3) An appeal from a judgment by a magistrate judge in a civil case is taken in

the same way as an appeal from any other district court judgment.

(4) An appeal by permission under 28 U.S.C. § 1292(b) or an appeal in a

bankruptcy case may be taken only in the manner prescribed by Rules 5 and 6,

respectively.

(b) Joint or Consolidated Appeals.

(1) When two or more parties are entitled to appeal from a district-court

judgment or order, and their interests make joinder practicable, they may file a

joint notice of appeal. They may then proceed on appeal as a single appellant.

(2) When the parties have filed separate timely notices of appeal, the appeals

may be joined or consolidated by the court of appeals.

(1) The notice of appeal must:

(A) specify the party or parties taking the appeal by naming each one in the

caption or body of the notice, but an attorney representing more than one

party may describe those parties with such terms as “all plaintiffs,” “the

defendants,” “the plaintiffs A, B, et al.,” or “all defendants except X;”

(B) designate the judgment—or the appealable order—from which the

appeal is taken; and

(2) A pro se notice of appeal is considered filed on behalf of the signer and the

signer’s spouse and minor children (if they are parties), unless the notice

clearly indicates otherwise.

(3) In a class action, whether or not the class has been certified, the notice of

appeal is sufficient if it names one person qualified to bring the appeal as

representative of the class.

(4) The notice of appeal encompasses all orders that, for purposes of appeal,

merge into the designated judgment or appealable order. It is not necessary to

designate those orders in the notice of appeal.

(5) In a civil case, a notice of appeal encompasses the final judgment, whether

or not that judgment is set out in a separate document under Federal Rule of

Civil Procedure 58, if the notice designates:

(A) an order that adjudicates all remaining claims and the rights and

liabilities of all remaining parties; or

(B) an order described in Rule 4(a)(4)(A).

(6) An appellant may designate only part of a judgment or appealable order by

expressly stating that the notice of appeal is so limited. Without such an

express statement, specific designations do not limit the scope of the notice of

appeal.

(7) An appeal must not be dismissed for informality of form or title of the

notice of appeal, for failure to name a party whose intent to appeal is otherwise

clear from the notice, or for failure to properly designate the judgment if the

notice of appeal was filed after entry of the judgment and designates an order

that merged into that judgment.

(8) Forms 1A and 1B in the Appendix of Forms are suggested forms of notices

of appeal.

(d) Serving the Notice of Appeal.

(1) The district clerk must serve notice of the filing of a notice of appeal by

sending a copy to each party’s counsel of record—excluding the appellant’s—

or, if a party is proceeding pro se, to the party’s last known address. When a

defendant in a criminal case appeals, the clerk must also serve a copy of the

notice of appeal on the defendant. The clerk must promptly send a copy of the

notice of appeal and of the docket entries—and any later docket entries—to the

clerk of the court of appeals named in the notice. The district clerk must note,

on each copy, the date when the notice of appeal was filed.

(2) If an inmate confined in an institution files a notice of appeal in the manner

provided by Rule 4(c), the district clerk must also note the date when the clerk

docketed the notice.

(3) The district clerk’s failure to serve notice does not affect the validity of the

appeal. The clerk must note on the docket the names of the parties to whom the

clerk sends copies, with the date of sending. Service is sufficient despite the

death of a party or the party’s counsel.

(e) Payment of Fees.

Upon filing a notice of appeal, the appellant must pay the district clerk all required

fees. The district clerk receives the appellate docket fee on behalf of the court of

appeals.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 25, 2019, eff. Dec. 1, 2019;

Apr. 14, 2021, eff. Dec. 1, 2021.)

10th Cir. R. 3

3.1 Signing notice of appeal.

Every notice of appeal must be signed by the appellant’s counsel or, if

the appellant is proceeding pro se, by the appellant. Counsel’s digital

signature is sufficient under this Rule.

3.2 Preliminary record.

(A) Contents. When an appeal is filed, the district clerk must

promptly send the Clerk, electronically, copies of:

(1) the district court’s docket entries;

(2) pertinent written reports and recommendations, findings

and conclusions, opinions, or orders of a district judge,

bankruptcy judge, or magistrate judge;

(3) the district court’s final judgment or order from which the

appeal is taken;

(4) all postjudgment motions to reconsider or motions

questioning the judgment (see Fed. R. App. P. 4(a)(4) and

Fed. R. Civ. P. 60(b)), and any order disposing of them;

(5) the notice of appeal; and

(6) any motion for extension of time to file the notice of appeal

or to reopen the time to file an appeal and any dispositive

order.

(B) Later filed motions and later entered orders. The district court

clerk must supplement the preliminary record with: any motion

for extension of time to file the notice of appeal or to reopen the

time to file an appeal and any dispositive order; any later filed

postjudgment motions to reconsider or motions questioning the

judgment and any order disposing of them; any amended

judgment; and copies of the related docket entries. Sending the

Clerk the preliminary record and any supplement satisfies the

requirements of Federal Rule of Appellate Procedure 11(e). See

Rule 11.2(B) for procedures in pro se appeals.

3.3 Fees.

(A) Notification. The district court clerk must notify the Clerk when

the fees are paid or when leave to proceed without prepayment

of fees is granted or denied.

(B) Dismissal for failure to comply. An appeal may be dismissed

immediately if, within 14 days after filing the notice of appeal, a

party fails to:

(1) pay a required fee;

(2) file a timely motion for extension of time to pay the

required fee; or

(3) file a timely motion for leave to proceed without

prepayment of fees.

revoked if the docket fee is not paid or if the appeal is not timely

pursued. The district court must so advise the defendant and the

defendant’s attorney when release pending appeal is ordered.

3.4 Docketing statement.

(A) Filing. Within 14 days after filing the notice of appeal, the

appellant must file with the circuit clerk a docketing statement on

a court-approved form (see 10th Cir. Form 1). This requirement

does not apply to appellants proceeding pro se and does not

apply in bail appeals filed under Federal Rule of Appellate

Procedure 9.

(B) Omitted issue. An issue not raised in the docketing statement

may be raised in the appellant’s opening brief.

Fed. R. App. P. Rule 3.1. Appeal from a Judgment of a Magistrate

Judge in a Civil Case

[Abrogated]

No local rule.

Fed. R. App. P. Rule 4. Appeal as of Right—When Taken

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and

4(c), the notice of appeal required by Rule 3 must be filed with the district

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

(B) The notice of appeal may be filed by any party within 60 days after

entry of the judgment or order appealed from if one of the parties is:

(i) the United States;

(ii) a United States agency;

(iii) a United States officer or employee sued in an official capacity; or

(iv) a current or former United States officer or employee sued in an

individual capacity for an act or omission occurring in connection with

duties performed on the United States’ behalf— including all instances

in which the United States represents that person when the judgment or

order is entered or files the appeal for that person.

of error coram nobis is an appeal in a civil case for purposes of Rule 4(a).

(2) Filing Before Entry of Judgment. A notice of appeal filed after the court

announces a decision or order—but before the entry of the judgment or order—

is treated as filed on the date of and after the entry.

(3) Multiple Appeals. If one party timely files a notice of appeal, any other

party may file a notice of appeal within 14 days after the date when the first

notice was filed, or within the time otherwise prescribed by this Rule 4(a),

whichever period ends later.

(4) Effect of a Motion on a Notice of Appeal.

(A) If a party files in the district court any of the following motions under

the Federal Rules of Civil Procedure—and does so within the time allowed

by those rules—the time to file an appeal runs for all parties from the entry

of the order disposing of the last such remaining motion:

(i) for judgment under Rule 50(b);

(ii) to amend or make additional factual findings under Rule 52(b),

whether or not granting the motion would alter the judgment;

(iii) for attorney’s fees under Rule 54 if the district court extends the

time to appeal under Rule 58;

(iv) to alter or amend the judgment under Rule 59;

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the motion is filed no later than 28 days

after the judgment is entered.

(B)

(i) If a party files a notice of appeal after the court announces or enters

a judgment—but before it disposes of any motion listed in Rule

4(a)(4)(A) —the notice becomes effective to appeal a judgment or

order, in whole or in part, when the order disposing of the last such

remaining motion is entered.

(ii) A party intending to challenge an order disposing of any motion

listed in Rule 4(a)(4)(A), or a judgment altered or amended upon such a

motion, must file a notice of appeal, or an amended notice of appeal—

in compliance with Rule 3(c)—within the time prescribed by this Rule

measured from the entry of the order disposing of the last such

remaining motion.

(iii) No additional fee is required to file an amended notice.

(5) Motion for Extension of Time.

(A) The district court may extend the time to file a notice of appeal if:

(i) a party so moves no later than 30 days after the time prescribed by

this Rule 4(a) expires; and

(ii) regardless of whether its motion is filed before or during the 30

days after the time prescribed by this Rule 4(a) expires, that party

shows excusable neglect or good cause.

(B) A motion filed before the expiration of the time prescribed in Rule

4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the

motion is filed after the expiration of the prescribed time, notice must be

given to the other parties in accordance with local rules.

prescribed time or 14 days after the date when the order granting the

motion is entered, whichever is later.

(6) Reopening the Time to File an Appeal. The district court may reopen the

time to file an appeal for a period of 14 days after the date when its order to

reopen is entered, but only if all the following conditions are satisfied:

(A) the court finds that the moving party did not receive notice under

Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order

sought to be appealed within 21 days after entry;

(B) the motion is filed within 180 days after the judgment or order is

entered or within 14 days after the moving party receives notice under

Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier;

and

(7) Entry Defined.

(A) A judgment or order is entered for purposes of this Rule 4(a):

(i) if Federal Rule of Civil Procedure 58(a) does not require a separate

document, when the judgment or order is entered in the civil docket

under Federal Rule of Civil Procedure 79(a); or

(ii) if Federal Rule of Civil Procedure 58(a) requires a separate

document, when the judgment or order is entered in the civil docket

under Federal Rule of Civil Procedure 79(a) and when the earlier of

these events occurs:

• the judgment or order is set forth on a separate document, or

• 150 days have run from entry of the judgment or order in the

civil docket under Federal Rule of Civil Procedure 79(a).

(B) A failure to set forth a judgment or order on a separate document when

required by Federal Rule of Civil Procedure 58(a) does not affect the

validity of an appeal from that judgment or order.

(b) Appeal in a Criminal Case.

(1) Time for Filing a Notice of Appeal.

(A) In a criminal case, a defendant’s notice of appeal must be filed in the

district court within 14 days after the later of:

(i) the entry of either the judgment or the order being appealed; or

(ii) the filing of the government’s notice of appeal.

(B) When the government is entitled to appeal, its notice of appeal must be

filed in the district court within 30 days after the later of:

(i) the entry of the judgment or order being appealed; or

(ii) the filing of a notice of appeal by any defendant.

(2) Filing Before Entry of Judgment. A notice of appeal filed after the court

announces a decision, sentence, or order—but before the entry of the judgment

or order—is treated as filed on the date of and after the entry.

(3) Effect of a Motion on a Notice of Appeal.

(A) If a defendant timely makes any of the following motions under the

Federal Rules of Criminal Procedure, the notice of appeal from a judgment

of conviction must be filed within 14 days after the entry of the order

disposing of the last such remaining motion, or within 14 days after the

entry of the judgment of conviction, whichever period ends later. This

provision applies to a timely motion:

(i) for judgment of acquittal under Rule 29;

(ii) for a new trial under Rule 33, but if based on newly discovered

evidence, only if the motion is made no later than 14 days after the

entry of the judgment; or

(iii) for arrest of judgment under Rule 34.

(B) A notice of appeal filed after the court announces a decision, sentence,

or order—but before it disposes of any of the motions referred to in Rule

4(b)(3)(A)—becomes effective upon the later of the following:

(i) the entry of the order disposing of the last such remaining motion; or

(ii) the entry of the judgment of conviction.

from an order disposing of any of the motions referred to in Rule

4(b)(3)(A).

(4) Motion for Extension of Time. Upon a finding of excusable neglect or

good cause, the district court may—before or after the time has expired, with

or without motion and notice—extend the time to file a notice of appeal for a

period not to exceed 30 days from the expiration of the time otherwise

prescribed by this Rule 4(b).

(5) Jurisdiction. The filing of a notice of appeal under this Rule 4(b) does not

divest a district court of jurisdiction to correct a sentence under Federal Rule of

Criminal Procedure 35(a), nor does the filing of a motion under 35(a) affect the

validity of a notice of appeal filed before entry of the order disposing of the

motion. The filing of a motion under Federal Rule of Criminal Procedure 35(a)

does not suspend the time for filing a notice of appeal from a judgment of

conviction.

(6) Entry Defined. A judgment or order is entered for purposes of this Rule

4(b) when it is entered on the criminal docket.

(1) If an institution has a system designed for legal mail, an inmate confined

there must use that system to receive the benefit of this Rule 4(c)(1). If an

inmate files a notice of appeal in either a civil or a criminal case, the notice is

timely if it is deposited in the institution’s internal mail system on or before the

last day for filing and:

(A) it is accompanied by:

(i) a declaration in compliance with 28 U.S.C. § 1746—or a notarized

statement—setting out the date of deposit and stating that first-class

postage is being prepaid; or

(ii) evidence (such as a postmark or date stamp) showing that the notice

was so deposited and that postage was prepaid; or

(B) the court of appeals exercises its discretion to permit the later filing of a

declaration or notarized statement that satisfies Rule 4(c)(1)(A)(i).

(2) If an inmate files the first notice of appeal in a civil case under this

Rule 4(c), the 14-day period provided in Rule 4(a)(3) for another party to file a

notice of appeal runs from the date when the district court dockets the first

notice.

(3) When a defendant in a criminal case files a notice of appeal under this

Rule 4(c), the 30-day period for the government to file its notice of appeal runs

from the entry of the judgment or order appealed from or from the district

court’s docketing of the defendant’s notice of appeal, whichever is later.

(d) Mistaken Filing in the Court of Appeals. If a notice of appeal in either a civil

or a criminal case is mistakenly filed in the court of appeals, the clerk of that court

must note on the notice the date when it was received and send it to the district

clerk. The notice is then considered filed in the district court on the date so noted.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002;

Apr. 25, 2005, eff. Dec. 1, 2005; May 7, 2009, eff. Dec. 1, 2009; Apr. 28, 2010,

eff. Dec. 1, 2010; Apr. 26, 2011, eff. Dec. 1, 2011; Apr. 28, 2016, eff. Dec. 1,

2016.)

No local rule.

Fed. R. App. P. Rule 5. Appeal by Permission

(a) Petition for Permission to Appeal.

(1) To request permission to appeal when an appeal is within the court of

appeals’ discretion, a party must file a petition with the circuit clerk and serve

it on all other parties to the district-court action.

(2) The petition must be filed within the time specified by the statute or rule

authorizing the appeal or, if no such time is specified, within the time provided

by Rule 4(a) for filing a notice of appeal.

(3) If a party cannot petition for appeal unless the district court first enters an

order granting permission to do so or stating that the necessary conditions are

met, the district court may amend its order, either on its own or in response to a

party’s motion, to include the required permission or statement. In that event,

the time to petition runs from entry of the amended order.

(b) Contents of the Petition; Answer or Cross-Petition; Oral Argument.

(1) The petition must include the following:

(A) the facts necessary to understand the question presented;

(B) the question itself;

(D) the reasons why the appeal should be allowed and is authorized by a

statute or rule; and

(E) an attached copy of:

(i) the order, decree, or judgment complained of and any related

opinion or memorandum, and

(ii) any order stating the district court’s permission to appeal or finding

that the necessary conditions are met.

(2) A party may file an answer in opposition or a cross-petition within 10 days

after the petition is served.

(3) The petition and answer will be submitted without oral argument unless the

court of appeals orders otherwise.

conform to Rule 32(c)(2). An original and 3 copies must be filed unless the court

requires a different number by local rule or by order in a particular case. Except by

the court’s permission, and excluding the accompanying documents required by

Rule 5(b)(1)(E):

(1) a paper produced using a computer must not exceed 5,200 words; and

(2) a handwritten or typewritten paper must not exceed 20 pages.

(d) Grant of Permission; Fees; Cost Bond; Filing the Record.

(1) Within 14 days after the entry of the order granting permission to appeal,

the appellant must:

(A) pay the district clerk all required fees; and

(B) file a cost bond if required under Rule 7.

(2) A notice of appeal need not be filed. The date when the order granting

permission to appeal is entered serves as the date of the notice of appeal for

calculating time under these rules.

(3) The district clerk must notify the circuit clerk once the petitioner has paid

the fees. Upon receiving this notice, the circuit clerk must enter the appeal on

the docket. The record must be forwarded and filed in accordance with

Rules 11 and 12(c).

(As amended Apr. 29, 2002, eff. Dec. 1, 2002; May 7, 2009, eff. Dec. 1, 2009;

Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 25, 2019, eff. Dec. 1, 2019.)

10th Cir. R. 5

5.1 Reply briefs.

A party seeking to file a reply in support of a petition may file a motion

to that effect within 5 business days of service of the response. The

motion must include the proposed reply. Replies may be no longer

than 2,600 words in length in a 13 point font, or 10 pages if typed or

handwritten. If using a word count, the proposed reply must include a

certification per Federal Rule of Appellate Procedure 32(g).

Fed. R. App. P. Rule 5.1. Appeal by Leave under 28 U.S.C.

§ 636(c)(5)

[Abrogated]

No local rule.

Fed. R. App. P. Rule 6. Appeal in a Bankruptcy Case

(a) Appeal From a Judgment, Order, or Decree of a District Court Exercising

Original Jurisdiction in a Bankruptcy Case. An appeal to a court of appeals

from a final judgment, order, or decree of a district court exercising jurisdiction

under 28 U.S.C. § 1334 is taken as any other civil appeal under these rules.

(b) Appeal From a Judgment, Order, or Decree of a District Court or

Bankruptcy Appellate Panel Exercising Appellate Jurisdiction in a

Bankruptcy Case.

(1) Applicability of Other Rules. These rules apply to an appeal to a court of

appeals under 28 U.S.C. § 158(d)(1) from a final judgment, order, or decree of

a district court or bankruptcy appellate panel exercising appellate jurisdiction

under 28 U.S.C. § 158(a) or (b), but with these qualifications:

(A) Rules 4(a)(4), 4(b), 9, 10, 11, 12(c), 13-20, 22-23, and 24(b) do not

apply;

(B) the reference in Rule 3(c) to “Forms 1A and 1B in the Appendix of

Forms” must be read as a reference to Form 5; and

as used in any applicable rule, means “appellate panel”; and

(D) in Rule 12.1, “district court” includes a bankruptcy court or bankruptcy

appellate panel.

(2) Additional Rules. In addition to the rules made applicable by Rule 6(b)(1),

the following rules apply:

(A) Motion for Rehearing.

(i) If a timely motion for rehearing under Bankruptcy Rule 8022 is

filed, the time to appeal for all parties runs from the entry of the order

disposing of the motion. A notice of appeal filed after the district court

or bankruptcy appellate panel announces or enters a judgment, order, or

decree—but before disposition of the motion for rehearing—becomes

effective when the order disposing of the motion for rehearing is

entered.

(ii) If a party intends to challenge the order disposing of the motion—or

the alteration or amendment of a judgment, order, or decree upon the

motion—then the party, in compliance with Rules 3(c) and 6(b)(1)(B),

must file a notice of appeal or amended notice of appeal. The notice or

amended notice must be filed within the time prescribed by Rule 4—

excluding Rules 4(a)(4) and 4(b)—measured from the entry of the

order disposing of the motion.

(iii) No additional fee is required to file an amended notice.

(B) The Record on Appeal.

(i) Within 14 days after filing the notice of appeal, the appellant must

file with the clerk possessing the record assembled in accordance with

Bankruptcy Rule 8009—and serve on the appellee—a statement of the

issues to be presented on appeal and a designation of the record to be

certified and made available to the circuit clerk.

(ii) An appellee who believes that other parts of the record are

necessary must, within 14 days after being served with the appellant’s

designation, file with the clerk and serve on the appellant a designation

of additional parts to be included.

(iii) The record on appeal consists of:

• the redesignated record as provided above;

• the proceedings in the district court or bankruptcy appellate

panel; and

• a certified copy of the docket entries prepared by the clerk under

Rule 3(d).

(i) When the record is complete, the district clerk or bankruptcy-

appellate- panel clerk must number the documents constituting the

record and promptly make it available to the circuit clerk. If the clerk

makes the record available in paper form, the clerk will not send

documents of unusual bulk or weight, physical exhibits other than

documents, or other parts of the record designated for omission by local

rule of the court of appeals, unless directed to do so by a party or the

circuit clerk. If unusually bulky or heavy exhibits are to be made

available in paper form, a party must arrange with the clerks in advance

for their transportation and receipt.

(ii) All parties must do whatever else is necessary to enable the clerk to

assemble the record and make it available. When the record is made

available in paper form, the court of appeals may provide by rule or

order that a certified copy of the docket entries be made available in

place of the designated record. But any party may request at any time

during the pendency of the appeal that the redesignated record be made

available.

(D) Filing the Record. When the district clerk or bankruptcy-appellate-

panel clerk has made the record available, the circuit clerk must note that

fact on the docket. The date noted on the docket serves as the filing date of

the record. The circuit clerk must immediately notify all parties of the

filing date.

(1) Applicability of Other Rules. These rules apply to a direct appeal by

permission under 28 U.S.C. § 158(d)(2), but with these qualifications:

(A) Rules 3-4, 5(a)(3), 6(a), 6(b), 8(a), 8(c), 9-12, 13-20, 22-23, and 24(b)

do not apply;

(B) as used in any applicable rule, “district court” or “district clerk”

includes—to the extent appropriate—a bankruptcy court or bankruptcy

appellate panel or its clerk; and

reference to Rules 6(c)(2)(B) and (C).

(2) Additional Rules. In addition, the following rules apply:

(A) The Record on Appeal. Bankruptcy Rule 8009 governs the record on

appeal.

(B) Making the Record Available. Bankruptcy Rule 8010 governs

completing the record and making it available.

pending appeal.

(D) Duties of the Circuit Clerk. When the bankruptcy clerk has made the

record available, the circuit clerk must note that fact on the docket. The

date noted on the docket serves as the filing date of the record. The circuit

clerk must immediately notify all parties of the filing date.

(E) Filing a Representation Statement. Unless the court of appeals

designates another time, within 14 days after entry of the order granting

permission to appeal, the attorney who sought permission must file a

statement with the circuit clerk naming the parties that the attorney

represents on appeal.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; May 7, 2009, eff. Dec. 1, 2009;

Apr. 25, 2014, eff. Dec. 1, 2014; Apr. 14, 2021, eff. Dec. 1, 2021.)

10th Cir. R. 6

6.1 Appendices in bankruptcy appeals.

Rules 30.1, 30.2, and 30.3 apply to all bankruptcy appeals.

Fed. R. App. P. Rule 7. Bond for Costs on Appeal in a Civil Case

In a civil case, the district court may require an appellant to file a bond or provide

other security in any form and amount necessary to ensure payment of costs on

appeal. Rule 8(b) applies to a surety on a bond given under this rule.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

No local rule.

Fed. R. App. P. Rule 8. Stay or Injunction Pending Appeal

(a) Motion for Stay.

(1) Initial Motion in the District Court. A party must ordinarily move first in

the district court for the following relief:

(A) a stay of the judgment or order of a district court pending appeal;

(B) approval of a bond or other security provided to obtain a stay of

judgment; or

while an appeal is pending.

(2) Motion in the Court of Appeals; Conditions on Relief. A motion for the

relief mentioned in Rule 8(a)(1) may be made to the court of appeals or to one

of its judges.

(A) The motion must:

(i) show that moving first in the district court would be impracticable;

(ii) state that, a motion having been made, the district court denied the

motion or failed to afford the relief requested and state any reasons

given by the district court for its action.

(B) The motion must also include:

(i) the reasons for granting the relief requested and the facts relied on;

(ii) originals or copies of affidavits or other sworn statements

supporting facts subject to dispute; and

(iii) relevant parts of the record.

parties.

(D) A motion under this Rule 8(a)(2) must be filed with the circuit clerk

and normally will be considered by a panel of the court. But in an

exceptional case in which time requirements make that procedure

impracticable, the motion may be made to and considered by a single

judge.

(E) The court may condition relief on a party’s filing a bond or other

security in the district court.

(b) Proceeding Against a Security Provider. If a party gives security with one or

more security providers, each provider submits to the jurisdiction of the district

court and irrevocably appoints the district clerk as its agent on whom any papers

affecting its liability on the security may be served. On motion, a security

provider’s liability may be enforced in the district court without the necessity of an

independent action. The motion and any notice that the district court prescribes

may be served on the district clerk, who must promptly send a copy to each

security provider whose address is known.

governs a stay in a criminal case.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 26, 2018, eff. Dec. 1, 2018.)

10th Cir. R. 8

8.1 Required showing.

No application for a stay or an injunction pending appeal will be

considered unless the applicant addresses all of the following:

(A) the basis for the district court’s or agency’s subject matter

jurisdiction and the basis for the court of appeals’ jurisdiction,

including citation to statutes and a statement of facts establishing

jurisdiction;

(B) the likelihood of success on appeal;

granted;

(D) the absence of harm to opposing parties if the stay or injunction

is granted; and

(E) any risk of harm to the public interest.

8.2 Emergency or ex parte motions.

(A) Emergency relief. Any motion that requests a ruling within 48

hours after filing must be plainly marked “EMERGENCY” and

accompanied by a certificate stating:

(1) the reason the motion was not filed earlier;

(2) the date the underlying order was entered;

(3) the time and date the order becomes effective;

(4) the telephone numbers and email addresses for all

counsel of record and, where available, unrepresented

parties; and

(5) in immigration cases seeking a stay of removal or other

emergency relief, the petitioner must attach to the motion a

copy of the transcript from the Immigration Judge’s ruling,

if relevant, plus copies of the written rulings of the

Immigration Judge and Board of Immigration Appeals.

(B) Ex parte relief. Any motion that requests the court to act ex

parte must include a certificate stating the reason it was not

possible to provide notice to the other parties.

the movant must notify the Clerk in advance at the earliest

practical time so that arrangements can be made for timely

submission to the court.

8.3 Applications made to a single judge.

(A) Emergency. Application to a single judge for a stay of a

judgment or order pending appeal is disfavored.

(B) Contents. An application made to a single judge must

demonstrate:

(1) that notice of the application—including when, where, and

to which judge the application was made and the reason

for submission to a single judge—was furnished to other

parties; or

(2) what efforts were made to furnish notice to other parties

and to contact the office of the clerk, or else the reasons

why notice to the parties and/or to the Clerk was not

required and/or possible.

Fed. R. App. P. Rule 9. Release in a Criminal Case

(a) Release Before Judgment of Conviction.

(1) The district court must state in writing, or orally on the record, the reasons

for an order regarding the release or detention of a defendant in a criminal case.

A party appealing from the order must file with the court of appeals a copy of

the district court’s order and the court’s statement of reasons as soon as

practicable after filing the notice of appeal. An appellant who questions the

factual basis for the district court’s order must file a transcript of the release

proceedings or an explanation of why a transcript was not obtained.

(2) After reasonable notice to the appellee, the court of appeals must promptly

determine the appeal on the basis of the papers, affidavits, and parts of the

record that the parties present or the court requires. Unless the court so orders,

briefs need not be filed.

(3) The court of appeals or one of its judges may order the defendant’s release

pending the disposition of the appeal.

(b) Release After Judgment of Conviction. A party entitled to do so may obtain

review of a district-court order regarding release after a judgment of conviction by

filing a notice of appeal from that order in the district court, or by filing a motion

in the court of appeals if the party has already filed a notice of appeal from the

judgment of conviction. Both the order and the review are subject to Rule 9(a). The

papers filed by the party seeking review must include a copy of the judgment of

conviction.

accordance with the applicable provisions of 18 U.S.C. §§ 3142, 3143, and

3145(c).

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

10th Cir. R. 9

9.1 Expedited proceedings.

(A) Release order. Review of a district court’s release order is

generally expedited.

(B) Application of 10th Cir. R. 46.3(B). In light of the expedited

nature of the proceeding, the motion requirement outlined in

Rule 46.3(B) does not apply to bail appeals.

docketing statements in bail appeals.

(D) Deferred ruling. After reasonable notice, the court may defer

ruling on a motion for release after a judgment of conviction until

it disposes of the underlying direct appeal.

9.2 Procedures.

Within 14 days after filing the notice of appeal or motion for release,

the party seeking relief must file:

(A) a memorandum containing:

(1) a statement of facts necessary for an understanding of the

issues presented;

(2) the grounds for relief, including citation to relevant

authorities; and

(3) a statement of the defendant’s custodial status and

reporting date as relevant—the court must be notified of

any change in custody status pending the review process;

and

(B) an electronic appendix containing the items noted below. (Please

see the court’s CM/ECF User Manual at Sections II(S) and III(G)

for information regarding filing requirements and procedures for

filing electronic appendices. It may be found on the court’s

website, www.ca10.uscourts.gov.) The appendix must include:

(1) all release orders or rulings, together with the reasons

(findings and conclusions) given by the magistrate judge or

the district judge for the action taken;

(2) any motion filed in the district court on the issue of release

and relevant memoranda in support or opposition;

(3) transcripts of any relevant proceeding if the factual basis

for the action taken is questioned;

(4) the judgment of conviction, if review is sought under

Federal Rule of Appellate Procedure 9(b); and

(5) other relevant papers, affidavits, or portions of the district

court record.

9.3 Response and date at issue.

Within 14 days after the Rule 9.2 memorandum is filed, the opposing

party should file a response or notify the court that a response will not

be filed. The matter will be considered at issue after the opposing party

has been given reasonable notice and an opportunity to respond. A

reply is permitted only by order of the court.

9.4 Length.

Memorandum briefs filed under this rule shall be no longer than 5,200

words in length or 20 pages if typed or handwritten. All briefs filed using

the word limit must contain a certification in accord with Federal Rule of

Appellate Procedure 32(g).

9.5 Hard copies.

No hard copies of the memorandum briefs or appendix are required.

9.6 Ruling not law of the case.

Neither of the following constitutes law of the case:

(A) a decision on a motion for release; or

(B) a decision of an appeal from a district court’s order on release

made before final disposition of the direct criminal appeal.

Fed. R. App. P. Rule 10. The Record on Appeal

(a) Composition of the Record on Appeal. The following items constitute the

record on appeal:

(1) the original papers and exhibits filed in the district court;

(2) the transcript of proceedings, if any; and

(3) a certified copy of the docket entries prepared by the district clerk.

(b) The Transcript of Proceedings.

(1) Appellant’s Duty to Order. Within 14 days after filing the notice of

appeal or entry of an order disposing of the last timely remaining motion of a

type specified in Rule 4(a)(4)(A), whichever is later, the appellant must do

either of the following:

(A) order from the reporter a transcript of such parts of the proceedings not

already on file as the appellant considers necessary, subject to a local rule

of the court of appeals and with the following qualifications:

(i) the order must be in writing;

(ii) if the cost of the transcript is to be paid by the United States under

the Criminal Justice Act, the order must so state; and

(iii) the appellant must, within the same period, file a copy of the order

with the district clerk; or

(B) file a certificate stating that no transcript will be ordered.

(2) Unsupported Finding or Conclusion. If the appellant intends to urge on

appeal that a finding or conclusion is unsupported by the evidence or is

contrary to the evidence, the appellant must include in the record a transcript of

all evidence relevant to that finding or conclusion.

(3) Partial Transcript. Unless the entire transcript is ordered:

(A) the appellant must—within the 14 days provided in Rule 10(b)(1)—file

a statement of the issues that the appellant intends to present on the appeal

and must serve on the appellee a copy of both the order or certificate and

the statement;

(B) if the appellee considers it necessary to have a transcript of other parts

of the proceedings, the appellee must, within 14 days after the service of

the order or certificate and the statement of the issues, file and serve on the

appellant a designation of additional parts to be ordered; and

ordered all such parts, and has so notified the appellee, the appellee may

within the following 14 days either order the parts or move in the district

court for an order requiring the appellant to do so.

(4) Payment. At the time of ordering, a party must make satisfactory

arrangements with the reporter for paying the cost of the transcript.

When a Transcript is Unavailable. If the transcript of a hearing or trial is

unavailable, the appellant may prepare a statement of the evidence or proceedings

from the best available means, including the appellant’s recollection. The

statement must be served on the appellee, who may serve objections or proposed

amendments within 14 days after being served. The statement and any objections

or proposed amendments must then be submitted to the district court for settlement

and approval. As settled and approved, the statement must be included by the

district clerk in the record on appeal.

(d) Agreed Statement as the Record on Appeal. In place of the record on appeal

as defined in Rule 10(a), the parties may prepare, sign, and submit to the district

court a statement of the case showing how the issues presented by the appeal arose

and were decided in the district court. The statement must set forth only those facts

averred and proved or sought to be proved that are essential to the court’s

resolution of the issues. If the statement is truthful, it—together with any additions

that the district court may consider necessary to a full presentation of the issues on

appeal—must be approved by the district court and must then be certified to the

court of appeals as the record on appeal. The district clerk must then send it to the

circuit clerk within the time provided by Rule 11. A copy of the agreed statement

may be filed in place of the appendix required by Rule 30.

(e) Correction or Modification of the Record.

(1) If any difference arises about whether the record truly discloses what

occurred in the district court, the difference must be submitted to and settled by

that court and the record conformed accordingly.

(2) If anything material to either party is omitted from or misstated in the

record by error or accident, the omission or misstatement may be corrected and

a supplemental record may be certified and forwarded:

(A) on stipulation of the parties;

(B) by the district court before or after the record has been forwarded; or

(3) All other questions as to the form and content of the record must be

presented to the court of appeals.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; May 7, 2009, eff. Dec. 1, 2009.)

10th Cir. R. 10

10.1 Tenth Circuit Record on Appeal.

In this circuit, the record on appeal is presented in one of three forms:

• When the appellant is represented by retained counsel, the

record on appeal is presented in an electronic appendix

prepared by counsel in accordance with 10th Cir. R. 30.1 and

filed concurrently with the opening brief.

• When the appellant is represented by counsel appointed

pursuant to 18 U.S.C. § 3006A, the district court prepares and

forwards a record on appeal comprised of district-court filings

designated by counsel in accordance with 10th Cir. R. 10.3(A)

and 11.2(A).

• When the appellant is pro se, the court prepares and dockets a

record on appeal compiled in accordance with 10th Cir. R. 10.4.

10.2 Transcripts.

(A) Appropriate transcripts.

(1) Appellant’s duty. The appellant must provide all portions

of the transcript necessary to give the court a complete

and accurate record of the proceedings related to the

issues on appeal.

(a) When sufficiency of the evidence is raised, the

entire relevant trial transcript must be provided.

(b) When sufficiency of the evidence is not raised, the

appellant should order only the relevant portions of

the transcript and enter into stipulations that will

avoid or reduce the need for transcripts.

unless specifically at issue on appeal.

(2) No transcript ordered. An appellant who does not intend

to order a transcript must so state on a transcript order

form filed in the district court, with a copy filed in the circuit

court, within 14 days after filing the notice of appeal.

(B) Ordering transcripts.

(1) Order form. The transcript order must be made on a form

provided by the district court and must comply with Federal

Rule of Appellate Procedure 10(b). If counsel is appointed

under the Criminal Justice Act, appropriate payment

arrangements must be made in the eVoucher system at

the time the transcript is ordered.

(2) Reporter’s duty. Upon receipt of a properly completed

transcript order, the reporter must:

(a) acknowledge receipt of the order;

(b) state on the form an anticipated date of completion

within the time set by the Appellate Transcript

Management Plan for the Tenth Circuit (see Local

Appendix A); and

clerk.

(3) Completion. A transcript order is not complete until

satisfactory financial arrangements have been made with

the reporter.

(1) Preparation and filing. The Appellate Transcript

Management Plan for the Tenth Circuit governs the

preparation and filing of transcripts for cases on appeal.

See Local Appendix A.

(2) Delivery. When the transcript is complete, the court

reporter must:

(a) deliver the original to the requesting party or to

counsel later appointed;

(b) file a certified copy with the district court clerk; and

10.3 Designation of record (when filed).

(A) Appointed counsel. In appeals in which any appellant is

represented by appointed counsel—including companion and

consolidated appeals—a designation of record must be filed in

district court, with a copy filed with the circuit court. No Rule 30.1

appendix is required.

(1) Filing. The appellant’s designation of record must be filed

within 14 days after filing the notice of appeal.

(2) Appellee’s designation. The appellee may file an

additional designation within 14 days after service of the

appellant’s designation.

(B) Retained counsel. In appeals in which all appellants are

represented by retained counsel—including companion and

consolidated appeals—no designation is required and the record

will be presented in an appendix prepared by the appellant. For

requirements regarding the appendix, see 10th Cir. R. 30.1

(Appellant’s appendix), 30.2 (Supplemental appendix), and 30.3

(Appendix exemptions). Retained counsel includes counsel for

national, state, or local government entities. If the appellee’s

counsel is appointed, Rule 30.2(A) also applies.

court will prepare a pro se record. See 10th Cir. Rule 11.2(B);

30.1.

10.4 Content of record.

(A) Essential items. Counsel must designate a record on appeal or

prepare an appendix that is sufficient for considering and

deciding the appellate issues. Only essential parts of the district

court record should be designated for the record on appeal.

(B) Inadequate record. The court need not remedy any failure by

counsel to designate an adequate record or to prepare an

adequate appendix. When the party asserting an issue fails to

provide a record or appendix sufficient for considering that issue,

the court may decline to consider it.

must include:

(1) the district court’s docket entries;

(2) the last amended complaint and answer, or the indictment

or information and any superseding indictment or

information;

(3) the final pretrial order;

(4) pertinent written reports and recommendations, findings

and conclusions, opinions, or orders of a district judge,

bankruptcy judge, or magistrate judge, or, if the findings

and conclusions were made orally, a copy of the transcript

pages reproducing those findings and conclusions;

(5) all jury instructions when an instruction is at issue on

appeal, as well as proposed instructions that were refused;

when a finding or conclusion is an issue on appeal,

proposed findings and conclusions that were refused;

(6) the decision or order from which the appeal is taken;

(7) the judgment, when one has been entered;

(8) the notice of appeal; and

(9) in a social security appeal, the entire administrative record.

(D) Additional items.

(1) Evidence; instructions. If an appeal is based on a

challenge to the admission or exclusion of evidence, the

giving or failure to give a jury instruction, or any other

ruling or order, a copy of the pages of the reporter’s

transcript must be included in the record or appendix to

show where the evidence, offer of proof, instruction, ruling

or order, and any necessary objection are recorded.

(2) Documents. When the appeal is from an order disposing

of a motion or other pleading, the motion, relevant portions

of affidavits, depositions and other supporting documents

(including any supporting briefs, memoranda, and points of

authority), filed in connection with that motion or pleading,

and any responses and replies filed in connection with that

motion or pleading must be included in the record or

appendix.

(3) Presentence report. The presentence investigation report

must be included if the appeal is from a sentence imposed

under 18 U.S.C. § 3742. See Rule 11.3(C).

(4) Other. Other items, such as trial exhibits and transcript

excerpts, must be included when they are relevant to an

issue raised on appeal and are referred to in the brief.

(5) Trial exhibits. Copies of relevant trial exhibits released by

the district court before appeal but referred to in a party’s

brief may be presented in an appendix where one is filed,

or may be submitted via motion as a supplement to the

record on appeal in cases where the record is created via

designation.

(E) Exclusions. The following items may not be included in the

record on appeal or appendix unless they are relevant to the

issues on appeal:

• appearances;

• bills of costs;

• briefs, memoranda, and points of authority, except as

specified in Rule 10.4(D)(2);

• certificates of service;

• depositions, interrogatories, and other discovery matters,

unless used as evidence;

• lists of witnesses or exhibits;

• notices and calendars;

• procedural motions or orders;

• returns and acceptances of service;

• subpoenas;

• summonses;

• setting orders;

• unopposed motions granted by the trial court;

• non final pretrial reports or orders; and

• suggestions for voir dire.

Fed. R. App. P. Rule 11. Forwarding the Record

(a) Appellant’s Duty.

An appellant filing a notice of appeal must comply with Rule 10(b) and must do

whatever else is necessary to enable the clerk to assemble and forward the record.

If there are multiple appeals from a judgment or order, the clerk must forward a

single record.

(b) Duties of Reporter and District Clerk.

(1) Reporter’s Duty to Prepare and File a Transcript. The reporter must

prepare and file a transcript as follows:

(A) Upon receiving an order for a transcript, the reporter must enter at the

foot of the order the date of its receipt and the expected completion date

and send a copy, so endorsed, to the circuit clerk.

(B) If the transcript cannot be completed within 30 days of the reporter’s

receipt of the order, the reporter may request the circuit clerk to grant

additional time to complete it. The clerk must note on the docket the action

taken and notify the parties.

clerk and notify the circuit clerk of the filing.

(D) If the reporter fails to file the transcript on time, the circuit clerk must

notify the district judge and do whatever else the court of appeals directs.

(2) District Clerk’s Duty to Forward. When the record is complete, the

district clerk must number the documents constituting the record and send them

promptly to the circuit clerk together with a list of the documents

correspondingly numbered and reasonably identified. Unless directed to do so

by a party or the circuit clerk, the district clerk will not send to the court of

appeals documents of unusual bulk or weight, physical exhibits other than

documents, or other parts of the record designated for omission by local rule of

the court of appeals. If the exhibits are unusually bulky or heavy, a party must

arrange with the clerks in advance for their transportation and receipt.

Preparing the Appeal.

The parties may stipulate, or the district court on motion may order, that the district

clerk retain the record temporarily for the parties to use in preparing the papers on

appeal. In that event the district clerk must certify to the circuit clerk that the

record on appeal is complete. Upon receipt of the appellee’s brief, or earlier if the

court orders or the parties agree, the appellant must request the district clerk to

forward the record.

(d) [Abrogated.]

(e) Retaining the Record by Court Order.

(1) The court of appeals may, by order or local rule, provide that a certified

copy of the docket entries be forwarded instead of the entire record. But a party

may at any time during the appeal request that designated parts of the record be

forwarded.

(2) The district court may order the record or some part of it retained if the

court needs it while the appeal is pending, subject, however, to call by the court

of appeals.

(3) If part or all of the record is ordered retained, the district clerk must send to

the court of appeals a copy of the order and the docket entries together with the

parts of the original record allowed by the district court and copies of any parts

of the record designated by the parties.

(f) Retaining Parts of the Record in the District Court by Stipulation of the

Parties.

The parties may agree by written stipulation filed in the district court that

designated parts of the record be retained in the district court subject to call by the

court of appeals or request by a party. The parts of the record so designated remain

a part of the record on appeal.

(g) Record for a Preliminary Motion in the Court of Appeals. If, before the

record is forwarded, a party makes any of the following motions in the court of

appeals:

• for dismissal;

• for release;

• for a stay pending appeal;

• for additional security on the bond on appeal or on a bond or other security

provided to obtain a stay of judgment; or

• for any other intermediate order—

the district clerk must send the court of appeals any parts of the record designated

by any party.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 26, 2018, eff. Dec. 1, 2018.)

10th Cir. R. 11

11.1 Record retained in district court (appendix filed).

(A) Notice from district court. In appeals in which an appendix is

required by 10th Cir. R. 30.1, see also 10th Cir. R. 10.3(B), the

district court clerk will notify the parties and the circuit clerk when

the record is complete (i.e., when the appellant certifies that no

transcript will be ordered or the transcript is filed).

(B) Appendix. Appellant electronically files the appendix

concurrently with the opening brief. The appendix must comply

with all provisions of 10th Cir. R. 30.1. The appellee may file a

supplemental appendix in accordance with 10th Cir. R. 30.2.

11.2 Record transmitted to court of appeals (when required).

(A) Designated record. In an appeal in which an appellant is

represented by appointed counsel, the district court clerk must

forward the record to the circuit clerk as required by Federal Rule

of Appellate Procedure 11(b). See also 10th Cir. R. 10.3(A). The

record must include any transcript that has been filed for the

appeal.

(B) Pro se record. In pro se appeals, a record on appeal will be

prepared and docketed. See 10th Cir. R. 10.3(C).

the appellant permission to proceed without prepayment of fees

or denies a certificate of appealability, the district court clerk may

transmit the district court’s “original file” to the circuit clerk.

(D) Electronic submission. When the district court clerk transmits a

record electronically, the various volumes shall be forwarded as

separate .pdf files. Pleadings must be bookmarked, and sealed

volumes shall be identified as such.

11.3 Sealed materials.

(A) In the appendix. Rule 25.6 applies to sealed materials in the

appendix.

(B) In the record on appeal. When materials sealed by district

court order are forwarded as part of the record, the district court

clerk must:

(1) separate the sealed materials from other portions of the

record;

(2) enclose them in an envelope clearly marked “Sealed” if

forwarded in hard copy or identify them as sealed in a

separate electronic volume when transmitted; and

(3) affix a copy of the sealing order to the outside of the

envelope if the sealed material is not available electronically.

reasons. Presentence reports and statements of reasons are

confidential. If a presentence report or a statement of reasons is

forwarded as part of the record on appeal, the district court clerk

must treat it like sealed material under this rule.

Fed. R. App. P. Rule 12. Docketing the Appeal; Filing a

Representation Statement; Filing the Record

(a) Docketing the Appeal.

Upon receiving the copy of the notice of appeal and the docket entries from the

district clerk under Rule 3(d), the circuit clerk must docket the appeal under the

title of the district-court action and must identify the appellant, adding the

appellant’s name if necessary.

(b) Filing a Representation Statement.

Unless the court of appeals designates another time, the attorney who filed the

notice of appeal must, within 14 days after filing the notice, file a statement with

the circuit clerk naming the parties that the attorney represents on appeal.

Upon receiving the record, partial record, or district clerk’s certificate as provided

in Rule 11, the circuit clerk must file it and immediately notify all parties of the

filing date.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; May 7, 2009, eff. Dec. 1, 2009.)

No local rule.

Fed. R. App. P. Rule 12.1. Remand After an Indicative Ruling by

the District Court on a Motion for Relief That Is Barred by a

Pending Appeal

(a) Notice to the Court of Appeals.

If a timely motion is made in the district court for relief that it lacks authority to

grant because of an appeal that has been docketed and is pending, the movant must

promptly notify the circuit clerk if the district court states either that it would grant

the motion or that the motion raises a substantial issue.

(b) Remand After an Indicative Ruling.

If the district court states that it would grant the motion or that the motion raises a

substantial issue, the court of appeals may remand for further proceedings but

retains jurisdiction unless it expressly dismisses the appeal. If the court of appeals

remands but retains jurisdiction, the parties must promptly notify the circuit clerk

when the district court has decided the motion on remand.

(Eff. Dec. 1, 2009.)

No local rule.

TITLE III. APPEALS FROM THE UNITED STATES TAX

COURT

Fed. R. App. P. Rule 13. Appeals from the Tax Court

(a) Appeal as of Right.

(1) How Obtained; Time for Filing a Notice of Appeal.

(A) An appeal as of right from the United States Tax Court is commenced

by filing a notice of appeal with the Tax Court clerk within 90 days after

the entry of the Tax Court’s decision. At the time of filing, the appellant

must furnish the clerk with enough copies of the notice to enable the clerk

to comply with Rule 3(d). If one party files a timely notice of appeal, any

other party may file a notice of appeal within 120 days after the Tax

Court’s decision is entered.

(B) If, under Tax Court rules, a party makes a timely motion to vacate or

revise the Tax Court’s decision, the time to file a notice of appeal runs

from the entry of the order disposing of the motion or from the entry of a

new decision, whichever is later.

(2) Notice of Appeal; How Filed.

The notice of appeal may be filed either at the Tax Court clerk’s office in

the District of Columbia or by sending it to the clerk. If sent by mail the

notice is considered filed on the postmark date, subject to § 7502 of the

Internal Revenue Code, as amended, and the applicable regulations.

(3) Contents of the Notice of Appeal; Service; Effect of Filing and Service.

Rule 3 prescribes the contents of a notice of appeal, the manner of service,

and the effect of its filing and service. Form 2 in the Appendix of Forms is

a suggested form of a notice of appeal.

(4) The Record on Appeal; Forwarding; Filing.

(A) Except as otherwise provided under Tax Court rules for the transcript

of proceedings, the appeal is governed by the parts of Rules 10, 11 and 12

regarding the record on appeal from a district court, the time and manner of

forwarding and filing, and the docketing in the court of appeals.

(B) If an appeal is taken to more than one court of appeals, the original

record must be sent to the court named in the first notice of appeal filed. In

an appeal to any other court of appeals, the appellant must apply to that

other court to make provision for the record.

(b) Appeal by Permission. An appeal by permission is governed by Rule 5.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 16, 2013, eff. Dec. 1, 2013;

Apr. 25, 2019, eff. Dec. 1, 2019.)

No local rule.

Fed. R. App. P. Rule 14. Applicability of Other Rules to Appeals

from the Tax Court

All provisions of these rules, except Rules 4, 6-9, 15-20, and 22-23, apply to

appeals from the Tax Court. References in any applicable rule (other than

Rule 24(a)) to the district court and district clerk are to be read as referring to the

Tax Court and its clerk.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 16, 2013, eff. Dec. 1, 2013.)

10th Cir. R. 14

14.1 Tenth Circuit rules apply.

These rules—except Rules 8, 9, 15, 17, 20, and 22—apply to review of

a decision of the Tax Court. As used in any applicable Tenth Circuit

rule, the term “district court” includes the Tax Court, the term “district

judge” includes a judge of the Tax Court, and the term “district court

clerk” includes the Tax Court clerk.

TITLE IV. REVIEW OR ENFORCEMENT OF AN

ORDER OF AN ADMINISTRATIVE AGENCY, BOARD,

COMMISSION, OR OFFICER

Fed. R. App. P. Rule 15. Review or Enforcement of an Agency

Order—How Obtained; Intervention

(a) Petition for Review; Joint Petition.

(1) Review of an agency order is commenced by filing, within the time

prescribed by law, a petition for review with the clerk of a court of appeals

authorized to review the agency order. If their interests make joinder

practicable, two or more persons may join in a petition to the same court to

review the same order.

(2) The petition must:

(A) name each party seeking review either in the caption or the body of the

petition—using such terms as “et al.,” “petitioners,” or “respondents” does

not effectively name the parties;

(B) name the agency as a respondent (even though not named in the

petition, the United States is a respondent if required by statute); and

(3) Form 3 in the Appendix of Forms is a suggested form of a petition for

review.

(4) In this rule “agency” includes an agency, board, commission, or officer;

“petition for review” includes a petition to enjoin, suspend, modify, or

otherwise review, or a notice of appeal, whichever form is indicated by the

applicable statute.

(b) Application or Cross-Application to Enforce an Order; Answer; Default.

(1) An application to enforce an agency order must be filed with the clerk of a

court of appeals authorized to enforce the order. If a petition is filed to review

an agency order that the court may enforce, a party opposing the petition may

file a cross-application for enforcement.

(2) Within 21 days after the application for enforcement is filed, the respondent

must serve on the applicant an answer to the application and file it with the

clerk. If the respondent fails to answer in time, the court will enter judgment

for the relief requested.

(3) The application must contain a concise statement of the proceedings in

which the order was entered, the facts upon which venue is based, and the

relief requested.

The circuit clerk must serve a copy of the petition for review, or an application or

cross-application to enforce an agency order, on each respondent as prescribed by

Rule 3(d), unless a different manner of service is prescribed by statute. At the time

of filing, the petitioner must:

(1) serve, or have served, a copy on each party admitted to participate in the

agency proceedings, except for the respondents;

(2) file with the clerk a list of those so served; and

(3) give the clerk enough copies of the petition or application to serve each

respondent.

(d) Intervention.

Unless a statute provides another method, a person who wants to intervene in a

proceeding under this rule must file a motion for leave to intervene with the circuit

clerk and serve a copy on all parties. The motion—or other notice of intervention

authorized by statute—must be filed within 30 days after the petition for review is

filed and must contain a concise statement of the interest of the moving party and

the grounds for intervention.

(e) Payment of Fees.

When filing any separate or joint petition for review in a court of appeals, the

petitioner must pay the circuit clerk all required fees.

(As amended May 7, 2009, eff. Dec. 1, 2009.)

10th Cir. R. 15

15.1 Required attachments.

The order to be reviewed or enforced must be attached to the petition

for review or the application to enforce. In immigration cases, a copy of

the transcript from the Immigration Judge’s oral ruling, plus copies of

the written rulings of the Immigration Judge and the Board of

Immigration Appeals must be attached.

15.2 Service on the Respondents.

At the time of making the filing required under Federal Rule of

Appellate Procedure 15(c)(2), the petitioner shall also include a list of

those respondents requiring service of the petition.

15.3 Docketing statement.

Within 14 days after filing a petition for review or an application for

enforcement, the filing party must file a docketing statement on a form

provided by the court. See 10th Cir. Form 1.

15.4 Intervention.

(A) Notice of Intervention by a party. A party to an agency

proceeding may intervene in a review of that proceeding by filing

a notice of intervention in the court. The notice must state

whether the party wishes to intervene as a petitioner in

opposition to the agency order or as a respondent in support of

the order.

(B) Motion to intervene.

(1) Content. In addition to the requirements of Federal Rule of

Appellate Procedure 15(d), a nonparty motion must state

the reasons why the parties cannot adequately protect the

interest asserted.

(2) Opposition. Opposition to a motion to intervene must be

filed within 14 days after the motion is served.

Fed. R. App. P. Rule 15.1. Briefs and Oral Argument in a National

Labor Relations Board Proceeding

In either an enforcement or a review proceeding, a party adverse to the National

Labor Relations Board proceeds first on briefing and at oral argument, unless the

court orders otherwise.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

No local rule.

Fed. R. App. P. Rule 16. The Record on Review or Enforcement

(a) Composition of the Record.

The record on review or enforcement of an agency order consists of:

(1) the order involved;

(2) any findings or report on which it is based; and

(3) the pleadings, evidence, and other parts of the proceedings before the

agency.

(b) Omissions From or Misstatements in the Record.

The parties may at any time, by stipulation, supply any omission from the record or

correct a misstatement, or the court may so direct. If necessary, the court may

direct that a supplemental record be prepared and filed.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

No local rule.

Fed. R. App. P. Rule 17. Filing the Record

(a) Agency to File; Time for Filing; Notice of Filing.

The agency must file the record with the circuit clerk within 40 days after being

served with a petition for review, unless the statute authorizing review provides

otherwise, or within 40 days after it files an application for enforcement unless the

respondent fails to answer or the court orders otherwise. The court may shorten or

extend the time to file the record. The clerk must notify all parties of the date when

the record is filed.

(b) Filing—What Constitutes.

(1) The agency must file:

(A) the original or a certified copy of the entire record or parts designated

by the parties; or

(B) a certified list adequately describing all documents, transcripts of

testimony, exhibits, and other material constituting the record, or

describing those parts designated by the parties.

(2) The parties may stipulate in writing that no record or certified list be filed.

The date when the stipulation is filed with the circuit clerk is treated as the date

when the record is filed.

(3) The agency must retain any portion of the record not filed with the clerk.

All parts of the record retained by the agency are a part of the record on review

for all purposes and, if the court or a party so requests, must be sent to the court

regardless of any prior stipulation.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

10th Cir. R. 17

17.1 Time for filing.

If a certified list is filed instead of the record, the entire record, or the

parts designated by the parties, must be filed on or before the deadline

set for filing the respondent’s brief.

17.2 No separate appendix required.

Because the appendix requirement of Rule 30.1 applies only to

appeals from district courts, it does not apply to cases under this Rule.

Fed. R. App. P. Rule 18. Stay Pending Review

(a) Motion for a Stay.

(1) Initial Motion Before the Agency. A petitioner must ordinarily move first

before the agency for a stay pending review of its decision or order.

(2) Motion in the Court of Appeals. A motion for a stay may be made to the

court of appeals or one of its judges.

(A) The motion must:

(i) show that moving first before the agency would be impracticable; or

(ii) state that, a motion having been made, the agency denied the

motion or failed to afford the relief requested and state any reasons

given by the agency for its action.

(B) The motion must also include:

(i) the reasons for granting the relief requested and the facts relied on;

(ii) originals or copies of affidavits or other sworn statements

supporting facts subject to dispute; and

(iii) relevant parts of the record.

parties.

(D) The motion must be filed with the circuit clerk and normally will be

considered by a panel of the court. But in an exceptional case in which time

requirements make that procedure impracticable, the motion may be made

to and considered by a single judge.

(b) Bond.

The court may condition relief on the filing of a bond or other appropriate security.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

10th Cir. R. 18

18.1 Applications for stay.

Applications for stay must comply with Rule 8.

Fed. R. App. P. Rule 19. Settlement of a Judgment Enforcing an

Agency Order in Part

When the court files an opinion directing entry of judgment enforcing the agency’s

order in part, the agency must within 14 days file with the clerk and serve on each

other party a proposed judgment conforming to the opinion. A party who disagrees

with the agency’s proposed judgment must within 10 days file with the clerk and

serve the agency with a proposed judgment that the party believes conforms to the

opinion. The court will settle the judgment and direct entry without further hearing

or argument.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; May 7, 2009, eff. Dec. 1, 2009.)

No local rule.

Fed. R. App. P. Rule 20. Applicability of Rules to the Review or

Enforcement of an Agency Order

All provisions of these rules, except Rules 3-14 and 22-23, apply to the review or

enforcement of an agency order. In these rules, “appellant” includes a petitioner or

applicant, and “appellee” includes a respondent.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

10th Cir. R. 20

20.1 Tenth Circuit rules apply.

These rules—except Rules 3, 9, 10, 11.1, 11.2, 14, and 22—apply to

review or enforcement of agency orders. As used in any Tenth Circuit

rule, the term “appellant” includes a petitioner and the term “appellee”

includes a respondent in proceedings to review or enforce agency

orders, and the term “district judge” includes an administrative law

judge or hearing officer.

TITLE V. EXTRAORDINARY WRITS

Fed. R. App. P. Rule 21. Writs of Mandamus and Prohibition, and

Other Extraordinary Writs

(a) Mandamus or Prohibition to a Court: Petition, Filing, Service, and

Docketing.

(1) A party petitioning for a writ of mandamus or prohibition directed to a

court must file the petition with the circuit clerk and serve it on all parties to

the proceeding in the trial court. The party must also provide a copy to the trial-

court judge. All parties to the proceeding in the trial court other than the

petitioner are respondents for all purposes.

(2) (A) The petition must be titled “In re [name of petitioner].”

(B) The petition must state:

(i) the relief sought;

(ii) the issues presented;

(iii) the facts necessary to understand the issue presented by the

petition; and

(iv) the reasons why the writ should issue.

record that may be essential to understand the matters set forth in the

petition.

(3) Upon receiving the prescribed docket fee, the clerk must docket the petition

and submit it to the court.

(b) Denial; Order Directing Answer; Briefs; Precedence.

(1) The court may deny the petition without an answer. Otherwise, it must

order the respondent, if any, to answer within a fixed time.

(2) The clerk must serve the order to respond on all persons directed to

respond.

(3) Two or more respondents may answer jointly.

(4) The court of appeals may invite or order the trial-court judge to address the

petition or may invite an amicus curiae to do so. The trial-court judge may

request permission to address the petition but may not do so unless invited or

ordered to do so by the court of appeals.

(5) If briefing or oral argument is required, the clerk must advise the parties,

and when appropriate, the trial-court judge or amicus curiae.

(6) The proceeding must be given preference over ordinary civil cases.

(7) The circuit clerk must send a copy of the final disposition to the trial-court

judge.

An application for an extraordinary writ other than one provided for in Rule 21(a)

must be made by filing a petition with the circuit clerk and serving it on the

respondents. Proceedings on the application must conform, so far as is practicable,

to the procedures prescribed in Rule 21(a) and (b).

(d) Form of Papers; Number of Copies.

All papers must conform to Rule 32(c)(2). An original and 3 copies must be filed

unless the court requires the filing of a different number by local rule or by order in

a particular case. Except by the court’s permission, and excluding the

accompanying documents required by Rule 21(a)(2)(C):

(1) a paper produced using a computer must not exceed 7,800 words; and

(2) a handwritten or typewritten paper must not exceed 30 pages.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002;

Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 25, 2019, eff. Dec. 1, 2019.)

10th Cir. R. 21

21.1 Fees.

The fee is due and payable to the Clerk when the petition is filed. See

28 U.S.C. § 1913 note (Judicial Conference Schedule of Fees).

TITLE VI. HABEAS CORPUS; PROCEEDINGS IN

FORMA PAUPERIS

Fed. R. App. P. Rule 22. Habeas Corpus and Section 2255

Proceedings

(a) Application for the Original Writ.

An application for a writ of habeas corpus must be made to the appropriate district

court. If made to a circuit judge, the application must be transferred to the

appropriate district court. If a district court denies an application made or

transferred to it, renewal of the application before a circuit judge is not permitted.

The applicant may, under 28 U.S.C. § 2253, appeal to the court of appeals from the

district court’s order denying the application.

(b) Certificate of Appealability.

(1) In a habeas corpus proceeding in which the detention complained of arises

from process issued by a state court, or in a 28 U.S.C. § 2255 proceeding, the

applicant cannot take an appeal unless a circuit justice or a circuit or district

judge issues a certificate of appealability under 28 U.S.C. § 2253(c). If an

applicant files a notice of appeal, the district clerk must send to the court of

appeals the certificate (if any) and the statement described in Rule 11(a) of the

Rules Governing Proceedings Under 28 U.S.C. § 2254 or § 2255 (if any),

along with the notice of appeal and the file of the district court proceedings. If

the district judge has denied the certificate, the applicant may request a circuit

judge to issue it.

(2) A request addressed to the court of appeals may be considered by a circuit

judge or judges, as the court prescribes. If no express request for a certificate is

filed, the notice of appeal constitutes a request addressed to the judges of the

court of appeals.

(3) A certificate of appealability is not required when a state or its

representative or the United States or its representative appeals.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; May 7, 2009, eff. Dec. 1, 2009.)

10th Cir. R. 22

22.1 Certificate of appealability.

(A) Required form. Although a notice of appeal constitutes a

request for a certificate of appealability, the appellant must also

file a brief. The Clerk will provide pro se appellants a form for this

purpose which serves as both a brief and a request for a

certificate.

(B) Briefing. Respondents-appellees shall not file a brief until

requested to do so by this court.

Proceedings Under 28 U.S.C. § 2254 or § 2255 the district court

shall in every applicable case issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.

22.2 Procedures in death penalty cases.

(A) General Procedures.

(1) Upon receipt of the docketing statement in capital cases

arising under 28 U.S.C. § 2254 or any federal criminal

statute, the Clerk shall enter a case management order

directing the parties to schedule a video or phone

conference with the chief deputy clerk or other designated

court representative. Lead counsel for both parties must

be available for the conference.

(2) At the designated time, counsel and the court shall

address matters related to issues to be appealed, page

limitations, record issues, and any other procedural

matters which the parties believe are significant in the

appeal. At the time of the conference, counsel shall be

prepared to discuss and adopt a briefing schedule. In

addition, where appropriate, the court may address issues

regarding issuance of a certificate of appealability.

(3) The court will issue a scheduling order following the

conference. In that order, the court will set all appropriate

deadlines. Motions to amend those deadlines are strongly

discouraged, and the court will deviate from the scheduling

order only under extreme circumstances.

(4) Counsel must provide the court with 7 hard copies of all

electronically-filed motions for issuance of a certificate of

appealability, responses, and replies. The required hard

copies must be received in the clerk’s office within 5

business days of the electronic filing of the motion,

response, or reply.

(B) Cases with a scheduled execution date.

(1) Notice of execution date. When a petitioner has a

scheduled execution date at the time the notice of appeal

is filed, a separate notice regarding the date must be filed

with the Clerk. The notice must be filed immediately upon

case opening. The notice must:

(a) certify the existence of a death sentence and state

the execution date; and

(b) list any previous related cases in federal court and

any related cases pending in any other court,

including state courts.

(2) Immediate communication upon filing in district court.

The district clerk must notify the circuit clerk immediately

upon the filing of any new habeas petition, or any other

new proceeding, which includes a scheduled execution

date for the petitioner. Counsel for the petitioner must also

notify this court immediately if any new proceeding is filed

in the district court involving a case with a scheduled

execution date.

(1) Initial motion in district court. A motion for a stay of

execution must ordinarily be made in the district court first.

See Fed. R. App. P. 8(a)(2)(A)(i).

(2) Lodged with court of appeals. In anticipation of

jurisdiction, a motion for stay and supporting documents

may be forwarded to the circuit Clerk before a notice of

appeal is filed. Counsel should also contact the circuit

Clerk via phone as soon as is feasible regarding

anticipated motions for stay. Written materials may be

forwarded electronically to [email protected]s.gov.

22.3 Other rules applicable.

All other Tenth Circuit rules apply in death penalty cases unless they

are inconsistent with this rule.

Fed. R. App. P. Rule 23. Custody or Release of a Prisoner in a

Habeas Corpus Proceeding

(a) Transfer of Custody Pending Review.

Pending review of a decision in a habeas corpus proceeding commenced before a

court, justice, or judge of the United States for the release of a prisoner, the person

having custody of the prisoner must not transfer custody to another unless a

transfer is directed in accordance with this rule. When, upon application, a

custodian shows the need for a transfer, the court, justice, or judge rendering the

decision under review may authorize the transfer and substitute the successor

custodian as a party.

(b) Detention or Release Pending Review of Decision Not to Release.

While a decision not to release a prisoner is under review, the court or judge

rendering the decision, or the court of appeals, or the Supreme Court, or a judge or

justice of either court, may order that the prisoner be:

(1) detained in the custody from which release is sought;

(2) detained in other appropriate custody; or

(3) released on personal recognizance, with or without surety.

While a decision ordering the release of a prisoner is under review, the prisoner

must—unless the court or judge rendering the decision, or the court of appeals, or

the Supreme Court, or a judge or justice of either court orders otherwise—be

released on personal recognizance, with or without surety.

(d) Modification of the Initial Order on Custody.

An initial order governing the prisoner’s custody or release, including any

recognizance or surety, continues in effect pending review unless for special

reasons shown to the court of appeals or the Supreme Court, or to a judge or justice

of either court, the order is modified or an independent order regarding custody,

release, or surety is issued.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

No local rule.

Fed. R. App. P. Rule 24. Proceeding in Forma Pauperis

(a) Leave to Proceed in Forma Pauperis.

(1) Motion in the District Court. Except as stated in Rule 24(a)(3), a party to

a district-court action who desires to appeal in forma pauperis must file a

motion in the district court. The party must attach an affidavit that:

(A) shows in the detail prescribed by Form 4 of the Appendix of Forms, the

party’s inability to pay or to give security for fees and costs;

(B) claims an entitlement to redress; and

(2) Action on the Motion. If the district court grants the motion, the party may

proceed on appeal without prepaying or giving security for fees and costs,

unless a statute provides otherwise. If the district court denies the motion, it

must state its reasons in writing.

(3) Prior Approval. A party who was permitted to proceed in forma pauperis

in the district-court action, or who was determined to be financially unable to

obtain an adequate defense in a criminal case, may proceed on appeal in forma

pauperis without further authorization, unless:

(A) the district court—before or after the notice of appeal is filed—certifies

that the appeal is not taken in good faith or finds that the party is not

otherwise entitled to proceed in forma pauperis and states in writing its

reasons for the certification or finding; or

(B) a statute provides otherwise.

(4) Notice of District Court’s Denial. The district clerk must immediately

notify the parties and the court of appeals when the district court does any of

the following:

(A) denies a motion to proceed on appeal in forma pauperis;

(B) certifies that the appeal is not taken in good faith; or

pauperis.

(5) Motion in the Court of Appeals. A party may file a motion to proceed on

appeal in forma pauperis in the court of appeals within 30 days after service of

the notice prescribed in Rule 24(a)(4). The motion must include a copy of the

affidavit filed in the district court and the district court’s statement of reasons

for its action. If no affidavit was filed in the district court, the party must

include the affidavit prescribed by Rule 24(a)(1).

(b) Leave to Proceed in Forma Pauperis on Appeal from the United States

Tax Court or on Appeal or Review of an Administrative-Agency Proceeding.

A party may file in the court of appeals a motion for leave to proceed on appeal in

forma pauperis with an affidavit prescribed by Rule 24(a)(1):

(1) in an appeal from the United States Tax Court; and

(2) when an appeal or review of a proceeding before an administrative agency,

board, commission, or officer proceeds directly in the court of appeals.

A party allowed to proceed on appeal in forma pauperis may request that the

appeal be heard on the original record without reproducing any part.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002;

Apr. 16, 2013, eff. Dec. 1, 2013.)

10th Cir. R. 24

24.1 Prison Litigation Reform Act.

All prisoners bringing civil actions or appeals must pay the full amount

of filing and docketing fees. 28 U.S.C. § 1915(b)(1). Consequently, if a

prisoner tenders less than full fees when a notice of appeal is filed, the

district court shall obtain sufficient information to determine the

prisoner’s eligibility to make partial payments of the full fee, and, if the

prisoner is eligible, assess a partial filing fee under the Act. If the

prisoner has sufficient funds, the district court shall assess the entire

fee immediately. A prisoner who was permitted to proceed in forma

pauperis in the district court is not automatically entitled to proceed on

appeal without prepayment of full fees, but must file a motion

specifically seeking such permission. The partial payment

determination must take place regardless of whether the prisoner’s

status was examined at the time the complaint or other pleading was

submitted to the district court. If the district court denies in forma

pauperis status, the prisoner must file a renewed motion in the court of

appeals. The appeal should be processed and submitted to this court

in the normal course, as required by Federal Rule of Appellate

Procedure 3(d), without waiting for the determination of the prisoner’s

eligibility for making partial payments. When the district court makes its

determination, it shall enter an order and forward a copy to this court. If

the in forma pauperis application reveals the eligible prisoner has no

assets and no means to make an initial partial payment, 28 U.S.C.

§ 1915(b)(4), the district court’s order must reflect that finding.

24.2 Duty of Prisoner Appellant.

The appellant must authorize the custodian to deduct payments from

the institutional account, and the custodian shall pay the assessment.

Any failure to file the proper trust account statement and authorization

shall be grounds for dismissal under 10th Cir. R. 3.3(B) and 42.1. Filing

fee payments shall be made to the clerk of the district court pursuant to

Federal Rule of Appellate Procedure 3(e).

TITLE VII. GENERAL PROVISIONS

Fed. R. App. P. Rule 25. Filing and Service

(a) Filing.

(1) Filing with the Clerk. A paper required or permitted to be filed in a court

of appeals must be filed with the clerk.

(2) Filing: Method and Timeliness.

(A) Nonelectronic filing.

(i) In General. For a paper not filed electronically, filing may be

accomplished by mail addressed to the clerk, but filing is not timely

unless the clerk receives the papers within the time fixed for filing.

(ii) A Brief or Appendix. A brief or appendix not filed electronically

is timely filed, however, if on or before the last day for filing, it is:

• mailed to the clerk by first-class mail, or other class of mail that

is at least as expeditious, postage prepaid; or

• dispatched to a third-party commercial carrier for delivery to the

clerk within 3 days.

(iii) Inmate Filing. If an institution has a system designed for legal

mail, an inmate confined there must use that system to receive the

benefit of this Rule 25(a)(2)(A)(iii). A paper not filed electronically by

an inmate is timely if it is deposited in the institution’s internal mail

system on or before the last day for filing and:

• it is accompanied by: a declaration in compliance with 28 U.S.C.

§ 1746—or a notarized statement—setting out the date of

deposit and stating that first-class postage is being prepaid; or

evidence (such as a postmark or date stamp) showing that the

paper was so deposited and that postage was prepaid; or

• the court of appeals exercises its discretion to permit the later

filing of a declaration or notarized statement that satisfies Rule

25(a)(2)(A)(iii).

(B) Electronic Filing and Signing.

(i) By a Represented Person—Generally Required; Exceptions. A

person represented by an attorney must file electronically, unless

nonelectronic filing is allowed by the court for good cause or is

allowed or required by local rule.

(ii) By an Unrepresented Person—When Allowed or Required. A

person not represented by an attorney:

• may file electronically only if allowed by court order or by local

rule; and

• may be required to file electronically only by court order, or by a

local rule that includes reasonable exceptions.

(iii) Signing. A filing made through a person’s electronic-filing

account and authorized by that person, together with that person’s

name on a signature block, constitutes the person’s signature.

(iv) Same as a Written Paper. A paper filed electronically is a written

paper for purposes of these rules.

(3) Filing a Motion with a Judge. If a motion requests relief that may be

granted by a single judge, the judge may permit the motion to be filed with the

judge; the judge must note the filing date on the motion and give it to the clerk.

(4) Clerk’s Refusal of Documents. The clerk must not refuse to accept for

filing any paper presented for that purpose solely because it is not presented in

proper form as required by these rules or by any local rule or practice.

(5) Privacy Protection. An appeal in a case whose privacy protection was

governed by Federal Rule of Bankruptcy Procedure 9037, Federal Rule of Civil

Procedure 5.2, or Federal Rule of Criminal Procedure 49.1 is governed by the

same rule on appeal. In all other proceedings, privacy protection is governed by

Federal Rule of Civil Procedure 5.2, except that Federal Rule of Criminal

Procedure 49.1 governs when an extraordinary writ is sought in a criminal

case.

(b) Service of All Papers Required. Unless a rule requires service by the clerk, a

party must, at or before the time of filing a paper, serve a copy on the other parties

to the appeal or review. Service on a party represented by counsel must be made on

the party’s counsel.

(1) Nonelectronic service may be any of the following:

(A) personal, including delivery to a responsible person at the office of

counsel;

(B) by mail; or

(2) Electronic service of a paper may be made (A) by sending it to a registered

user by filing it with the court’s electronic-filing system or (B) by sending it by

other electronic means that the person to be served consented to in writing.

(3) When reasonable considering such factors as the immediacy of the relief

sought, distance, and cost, service on a party must be by a manner at least as

expeditious as the manner used to file the paper with the court.

(4) Service by mail or by commercial carrier is complete on mailing or delivery

to the carrier. Service by electronic means is complete on filing or sending,

unless the party making service is notified that the paper was not received by

the party served.

(d) Proof of Service.

(1) A paper presented for filing must contain either of the following if it was

served other than through the court’s electronic-filing system:

(A) an acknowledgment of service by the person served; or

(B) proof of service consisting of a statement by the person who made

service certifying:

(i) the date and manner of service;

(ii) the names of the persons served; and

(iii) their mail or electronic addresses, facsimile numbers, or the

addresses of the places of delivery, as appropriate for the manner of

service.

(2) When a brief or appendix is filed by mailing or dispatch in accordance with

Rule 25(a)(2)(A)(ii), the proof of service must also state the date and manner

by which the document was mailed or dispatched to the clerk.

(3) Proof of service may appear on or be affixed to the papers filed.

(e) Number of Copies. When these rules require the filing or furnishing of a

number of copies, a court may require a different number by local rule or by order

in a particular case.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002;

Apr. 30, 2007, eff. Dec. 1, 2007; May 7, 2009, eff. Dec. 1, 2009; Apr. 28, 2016,

eff. Dec. 1, 2016; Apr. 26, 2018, eff. Dec. 1, 2018; Apr. 25, 2019, eff. Dec. 1,

2019.)

10th Cir. R. 25

25.1 File stamped copies of papers.

For pro se parties submitting hard copies, file stamped copies of

papers filed with the court will be sent to the filer only if that party

provides necessary copies and a self-addressed envelope bearing

sufficient postage.

25.2 Papers subject to being stricken.

If papers submitted to the circuit clerk do not comply with the Federal

Rules of Appellate Procedure and these rules, they may be stricken.

25.3 Electronic filing.

As authorized by Federal Rule of Appellate Procedure 25(a)(2)(B), the

court has converted to mandatory electronic case filing (ECF) for all

persons represented by counsel of record. The court does not accept

filings via email by any person absent the express permission of the

clerk or chief deputy clerk, which will be given in only the most

extraordinary and exigent circumstances.

All electronically filed pleadings shall be submitted in compliance with

the procedures adopted by the court and set forth in the CM/ECF User

Manual. During the electronic-filing process, ECF users will certify

compliance with the court’s ECF requirements. Consistent with Rule

25(a)(2)(B)(i), any party may move to be exempt from electronic filing

requirements, including the filing of an electronic appendix. See 10th

Cir. R. 30.3(A). Copies of, and information regarding, the court’s

CM/ECF User Manual and training materials may be obtained by

contacting the office of the clerk or by visiting the court’s website at

www.ca10.uscourts.gov.

25.4 Electronic and nonelectronic service; proof of service.

(A) Electronic service of electronically filed papers. In

accordance with Federal Rule of Appellate Procedure 25(c)(2),

electronic filers may use the court’s electronic-filing system to

serve papers, including an appendix, on registered ECF users

and other parties who have consented to electronic service in the

particular case. Please see the court’s CM/ECF User Manual at

Section II(E) for information regarding service requirements.

Proof of service is not required for service via the court’s

electronic-filing system.

(B) Nonelectronic service of electronically filed papers.

Electronic filers must continue to serve parties who are not

registered ECF users and have not consented to electronic

service in the case via nonelectronic means. See Fed. R. App. P.

25(c)(1). Proof of service is required for all papers served other

than through the court’s electronic-filing system.

filers. When the Clerk dockets a paper submitted by a

nonelectronic filer, for purposes of Federal Rule of Appellate

Procedure 26(c) the notice of docket activity (NDA) issued via

the court’s ECF system shall constitute electronic service on

registered ECF users and other parties who have consented to

electronic service in the case. The nonelectronic filer need not

include proof of service for service made via the NDA.

(D) Nonelectronic service by nonelectronic filers. Nonelectronic

filers are responsible for serving papers in accordance with

Federal Rule of Appellate Procedure 25(c)(1) upon parties who

are not registered ECF users and have not consented to

electronic service in the case. Nonelectronic filers must include a

certificate of service that identifies the method of service used for

all service made other than via the NDA.

25.5 Privacy redaction requirements.

All filers are required to follow the privacy and redaction requirements

of Federal Rule of Appellate Procedure 25(a)(5), as well as the

applicable federal rules of civil procedure, criminal procedure, and the

relevant bankruptcy rule. See Fed. R. Civ. P. 5.2; Fed. R. Crim. P.

49.1; Fed. R. Bankr. P. 9037. Required redactions include social

security numbers and tax identification numbers (filers may disclose

the last four digits of a social security or tax identification number), birth

dates (use year of birth only), minors’ names (initials may be used),

and financial account numbers (except those identifying property

allegedly subject to forfeiture in a forfeiture proceeding). It is the sole

responsibility of the filer to redact pleadings appropriately.

25.6 Filing under seal.

Any party who seeks to file any document under seal in this court must

overcome a presumption in favor of access to judicial records. See

Eugene S. v. Horizon Blue Cross Blue Shield of New Jersey, 663 F.3d

1124, 1135 (10th Cir. 2011).

(A) Motions to seal. Except as provided in Rule 11.3(B) or 11.3(C)

any document—motion, response, attachment, brief, appendix,

or other paper—submitted under seal must be accompanied by a

motion for leave to file the document under seal. The motion

must

(1) identify with particularity the specific document containing

the sensitive information;

(2) explain why the sensitive information cannot reasonably be

redacted in lieu of filing the entire document under seal;

(3) articulate a substantial interest that justifies depriving the

public of access to the document;

(4) cite any applicable rule, statute, case law, and/or prior

court order having a bearing on why the document should

be sealed, keeping in mind that this court is not bound by a

district court’s decision to seal a document below, see

Williams v. FedEx Corporate Services, 849 F.3d 889, 905

(10th Cir. 2017); and

(5) comply with Tenth Circuit Rule 27.1.

The motion to seal need not be filed under seal unless required

by the nature of the request or the need to protect sealed

information.

(B) Redaction in lieu of sealing. Redaction is preferable to filing an

entire document under seal. Thus, unless redaction is

impracticable, the party seeking to protect sensitive information

shall publicly file a redacted version of the document

concurrently with the motion to seal.

25.7 Technical failure.

The Clerk may deem the ECF system to be subject to a technical

failure on any given day if the system is unable to accept filings

continuously or intermittently over the course of any period of time

greater than one hour after 12:00 noon MT on that day. Filings due on

the day of a declared technical failure that were not filed solely due to

that failure shall be due the next business day. All delayed filings shall

be accompanied by a declaration or affidavit attesting to and

describing the filer’s failed attempts to file electronically.

Fed. R. App. P. Rule 26. Computing and Extending Time

(a) Computing Time. The following rules apply in computing any time period

specified in these rules, in any local rule or court order, or in any statute that does

not specify a method of computing time.

(1) Period Stated in Days or a Longer Unit. When the period is stated in days

or a longer unit of time:

(A) exclude the day of the event that triggers the period;

(B) count every day, including intermediate Saturdays, Sundays, and legal

holidays; and

Sunday, or legal holiday, the period continues to run until the end of the

next day that is not a Saturday, Sunday, or legal holiday.

(2) Period Stated in Hours. When the period is stated in hours:

(A) begin counting immediately on the occurrence of the event that triggers

the period;

(B) count every hour, including hours during intermediate Saturdays,

Sundays, and legal holidays; and

period continues to run until the same time on the next day that is not a

Saturday, Sunday, or legal holiday.

(3) Inaccessibility of the Clerk’s Office. Unless the court orders otherwise, if

the clerk’s office is inaccessible:

(A) on the last day for filing under Rule 26(a)(1), then the time for filing is

extended to the first accessible day that is not a Saturday, Sunday, or legal

holiday; or

(B) during the last hour for filing under Rule 26(a)(2), then the time for

filing is extended to the same time on the first accessible day that is not a

Saturday, Sunday, or legal holiday.

(4) “Last Day” Defined. Unless a different time is set by a statute, local rule,

or court order, the last day ends:

(A) for electronic filing in the district court, at midnight in the court’s time

zone;

(B) for electronic filing in the court of appeals, at midnight in the time zone

of the circuit clerk’s principal office;

and filing by mail under Rule 13(a)(2)—at the latest time for the method

chosen for delivery to the post office, third-party commercial carrier, or

prison mailing system; and

(D) for filing by other means, when the clerk’s office is scheduled to close.

(5) “Next Day” Defined. The “next day” is determined by continuing to count

forward when the period is measured after an event and backward when

measured before an event.

(6) “Legal Holiday” Defined. “Legal holiday” means:

(A) the day set aside by statute for observing New Year’s Day, Martin

Luther King, Jr.’s Birthday, Washington’s Birthday, Memorial Day,

Independence Day, Labor Day, Columbus Day, Veterans’ Day,

Thanksgiving Day, or Christmas Day;

(B) any day declared a holiday by the President or Congress; and

holiday by the state where either of the following is located: the district

court that rendered the challenged judgment or order, or the circuit clerk’s

principal office.

(b) Extending Time. For good cause, the court may extend the time prescribed by

these rules or by its order to perform any act, or may permit an act to be done after

that time expires. But the court may not extend the time to file:

(1) a notice of appeal (except as authorized in Rule 4) or a petition for

permission to appeal; or

(2) a notice of appeal from or a petition to enjoin, set aside, suspend, modify,

enforce, or otherwise review an order of an administrative agency, board,

commission, or officer of the United States, unless specifically authorized by

law.

act within a specified time after being served, and the paper is not served

electronically on the party or delivered to the party on the date stated in the service,

3 days are added after the period would otherwise expire under Rule 26(a).

(As amended Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005;

May 7, 2009, eff. Dec. 1, 2009; Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 26, 2018,

eff. Dec. 1, 2018; Apr. 25, 2019, eff. Dec. 1, 2019.)

No Local Rule.

Fed. R. App. P. Rule 26.1. Disclosure Statement

(a) Nongovernmental Corporations. Any nongovernmental corporation that is a

party to a proceeding in a court of appeals must file a statement that identifies any

parent corporation and any publicly held corporation that owns 10% or more of its

stock or states that there is no such corporation. The same requirement applies to a

nongovernmental corporation that seeks to intervene.

(b) Organizational Victims in Criminal Cases. In a criminal case, unless the

government shows good cause, it must file a statement that identifies any

organizational victim of the alleged criminal activity. If the organizational victim is

a corporation, the statement must also disclose the information required by Rule

26.1(a) to the extent it can be obtained through due diligence.

is a party, the appellant must file a statement that:

(1) identifies each debtor not named in the caption; and

(2) for each debtor that is a corporation, discloses the information required

by Rule 26.1(a).

(d) Time for Filing; Supplemental Filing. The Rule 26.1 statement must:

(1) be filed with the principal brief or upon filing a motion, response,

petition, or answer in the court of appeals, whichever occurs first, unless a

local rule requires earlier filing;

(2) be included before the table of contents in the principal brief; and

(3) be supplemented whenever the information required under Rule 26.1

changes.

(e) Number of Copies. If the Rule 26.1 statement is filed before the principal

brief, or if a supplemental statement is filed, an original and 3 copies must be filed

unless the court requires a different number by local rule or by order in a particular

case.

(As amended Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2019, eff. Dec. 1, 2019.)

10th Cir. R. 26.1

(A) Disclosure Statement in Appeals Based on Diversity Jurisdiction—

Identifying Members and Partners.

Where the asserted basis for federal jurisdiction is 28 U.S.C. § 1332

and a party or parties to the appeal are formed as a limited liability

company (LLC), partnership, or any other unincorporated entity, each

party so defined must:

(1) Include in that party’s brief a statement identifying each of its

members and their states of citizenship.

(2) Submit a supplemental statement if any of the required

information changes.

See Americold Realty Trust v. Conagra Foods, Inc., 136 S. Ct. 1012,

1015 (2016) (for diversity jurisdiction, the citizenship of an

unincorporated entity depends on the citizenship of all of its members).

Fed. R. App. P. Rule 27. Motions

(a) In General.

(1) Application for Relief. An application for an order or other relief is made

by motion unless these rules prescribe another form. A motion must be in

writing unless the court permits otherwise.

(2) Contents of a Motion.

(A) Grounds and Relief Sought. A motion must state with particularity

the grounds for the motion, the relief sought, and the legal argument

necessary to support it.

(B) Accompanying Documents.

(i) Any affidavit or other paper necessary to support a motion must be

served and filed with the motion.

(ii) An affidavit must contain only factual information, not legal

argument.

(iii) A motion seeking substantive relief must include a copy of the trial

court’s opinion or agency’s decision as a separate exhibit.

(i) A separate brief supporting or responding to a motion must not be

filed.

(ii) A notice of motion is not required.

(iii) A proposed order is not required.

(3) Response.

(A) Time to File. Any party may file a response to a motion; Rule 27(a)(2)

governs its contents. The response must be filed within 10 days after

service of the motion unless the court shortens or extends the time. A

motion authorized by Rules 8, 9, 18, or 41 may be granted before the 10-

day period runs only if the court gives reasonable notice to the parties that

it intends to act sooner.

(B) Request for Affirmative Relief. A response may include a motion for

affirmative relief. The time to respond to the new motion, and to reply to

that response, are governed by Rule 27(a)(3)(A) and (a)(4). The title of the

response must alert the court to the request for relief.

(4) Reply to Response. Any reply to a response must be filed within 7 days

after service of the response. A reply must not present matters that do not relate

to the response.

(b) Disposition of a Motion for a Procedural Order. The court may act on a

motion for a procedural order—including a motion under Rule 26(b)—at any time

without awaiting a response, and may, by rule or by order in a particular case,

authorize its clerk to act on specified types of procedural motions. A party

adversely affected by the court’s, or the clerk’s, action may file a motion to

reconsider, vacate, or modify that action. Timely opposition filed after the motion

is granted in whole or in part does not constitute a request to reconsider, vacate, or

modify the disposition; a motion requesting that relief must be filed.

alone on any motion, but may not dismiss or otherwise determine an appeal or

other proceeding. A court of appeals may provide by rule or by order in a

particular case that only the court may act on any motion or class of motions. The

court may review the action of a single judge.

(d) Form of Papers; Page Limits; and Number of Copies.

(1) Format.

(A) Reproduction. A motion, response, or reply may be reproduced by any

process that yields a clear black image on light paper. The paper must be

opaque and unglazed. Only one side of the paper may be used.

(B) Cover. A cover is not required but there must be a caption that includes

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

descriptive title indicating the purpose of the motion and identifying the

party or parties for whom it is filed. If a cover is used, it must be white.

does not obscure the text, and permits the document to lie reasonably flat

when open.

(D) Paper Size, Line Spacing, and Margins. The document must be on 8

½ by 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. Page numbers may be placed in the margins, but no text may

appear there.

(E) Typeface and type styles. The document must comply with the

typeface requirements of Rule 32(a)(5) and the type-style requirements of

Rule 32(a)(6).

(2) Length Limits. Except by the court’s permission, and excluding the

accompanying documents authorized by Rule 27(a)(2)(B):

(A) a motion or response to a motion produced using a computer must not

exceed 5,200 words;

(B) a handwritten or typewritten motion or response to a motion must not

exceed 20 pages;

(D) a handwritten or typewritten reply to a response must not exceed 10

pages.

(3) Number of Copies. An original and 3 copies must be filed unless the court

requires a different number by local rule or by order in a particular case.

(e) Oral Argument. A motion will be decided without oral argument unless the

court orders otherwise.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002;

Apr. 25, 2005, eff. Dec. 1, 2005; May 7, 2009, eff. Dec. 1, 2009; Apr. 28, 2016,

eff. Dec. 1, 2016.)

10th Cir. R. 27

27.1 Disclosure of opponent’s position.

Every motion filed under Federal Rule of Appellate Procedure 27 and

this rule must contain a statement of the opposing party’s position on

the relief requested or why the moving party was unable to learn the

opposing party’s position. Parties should make reasonable efforts to

contact opposing parties well in advance of filing a motion. Motions

filed in direct criminal appeals or postconviction proceedings to

withdraw, continue appointment, or substitute counsel need not state

opposing counsel’s position.

27.2 Paper copies not required.

Attorneys and pro se parties filing electronically need not provide the

court with paper copies of motions, responses, or replies filed

electronically.

27.3 Summary disposition on motion by a party or the court.

(A) Motions to dismiss or affirm.

(1) Types. A party may file only the following dispositive

motions:

(a) a motion to dismiss the entire case for lack of

appellate jurisdiction or for any other reason a

dismissal is permitted by statute, the Federal Rules

of Appellate Procedure, or these rules;

(b) a motion for summary disposition because of a

supervening change of law or mootness;

administrative proceedings; or

(d) a motion by the government to enforce an appeal

waiver.

(2) Contents.

(a) The motion must discuss the grounds for the

motion.

(b) A motion under (A)(1)(d) must include copies of the

plea agreement and copies of transcripts for both

the plea hearing and the sentencing hearing.

(3) Time to file.

(a) A motion under (A)(1)(a) through (c) should be filed

within 14 days after the notice of appeal is filed,

unless good cause is shown.

(b) A motion under (A)(1)(d) must be filed within 20

days after:

(i) the district court’s notice, pursuant to 10th Cir.

R. 11.1, that the record is complete, or;

(ii) the district court’s notice that it is transmitting

the record pursuant to 10th Cir. R. 11.2.

waiver does not preclude a party from raising the

issue in a merits brief.

(4) Responses and replies. If a party chooses to respond to

a motion, the response must be filed within 14 days after

the motion is served. The time to file a reply is governed by

Fed. R. App. P. 27(a)(4).

(B) Action by the court. After giving notice to the parties, the court

may summarily dispose of an appeal or a petition for review or

enforcement.

(1) Memorandum briefs. The court may require parties to file

memorandum briefs addressing specific dispositive issues.

(2) Contents. A memorandum brief need not contain an index

or a table of cases, but it must include a list of prior and

related appeals.

(3) Length. Memorandum briefs filed under this rule shall be

no longer than 5200 words in length or 20 pages if typed or

handwritten. All briefs filed using the word limit must

contain a certification in accord with Federal Rule of

Appellate Procedure 32(g).

(4) Submission. A case with memorandum briefs will be

considered without oral argument, unless a panel member

decides that oral argument is needed. See 10th Cir. R.

34.1(G).

action by the court under (B) suspends the briefing schedule

unless the court orders otherwise.

27.4 Certification of questions of state law.

(A) Certification; abatement. When state law permits, this court

may:

(1) certify a question arising under state law to that state’s

highest court according to that court’s rules; and

(2) abate the case in this court to await the state court’s

decision of the certified question.

(B) Motion. The court may certify on its own or on a party’s motion.

as, but separately from, the moving party’s brief on the merits.

(D) Response; time to file. A response may be filed at the same

time as the answer or reply brief or within 14 days after the

motion is served. The time to file a reply is governed by Fed. R.

App. P. 27(a)(4).

(E) When considered. A motion to certify is ordinarily referred to the

panel of judges assigned to decide the appeal on the merits and

is considered at the same time as the arguments on the merits.

(F) Additional paper copies of briefs and other materials. If a

motion to certify is granted, the parties may be ordered to submit

additional copies of the briefs, appendix, motion to certify, and

any other materials required by the state supreme court.

27.5 Clerk authorized to act.

(A) Motions. Subject to review by the court, the Clerk is authorized

to act for the court on any of the following matters, either sua

sponte or on motion:

(1) to extend time to file a pleading or perform an act required

by Federal Rules of Appellate Procedure 10, 11, 12, 13(d),

17, 24, 27, 29, 30, 31, 39, or 40, or by 10th Cir. R. 3, 10,

11, 14, 15, 17, 20, 24, 27, 30, 31, 39.2, 40, or 46;

(2) to correct a brief or pleading;

(3) to supplement or correct records or to incorporate records

from previous appeals;

(4) to consolidate appeals;

(5) to substitute parties;

(6) to appear as amicus curiae;

(7) to expedite, continue, or abate cases;

(8) to withdraw or substitute counsel in a civil case or, after

compliance with 10th Cir. R. 46.4, in a criminal case;

(9) by appellant to dismiss an appeal (in criminal and

postconviction cases, see 10th Cir. R. 46.3(C)), or a

stipulation for dismissal, with or without an agreement on

payment of costs (if an appeal is dismissed, the Clerk may

issue a copy of the dismissal order as the mandate);

(10) for extension of time to file a petition for rehearing, limited

to one extension of 15 days or less;

(11) for relief under 10th Cir. R. 30.2 or 30.3;or

(12) any other motion or matter the court may authorize.

(B) Opposed motions. If any motion for relief listed in (A) is

opposed, the Clerk will submit the matter to the court.

27.6 Motions to extend time.

(A) Disfavored. Extensions of time to file briefs are disfavored.

(B) Time to file. A motion to extend time to file a brief must be filed

at least 3 days before the brief’s due date, unless the reasons for

the request did not exist or were unknown earlier.

(1) state the brief’s due date;

(2) contain a statement of the opposing party’s position on the

relief requested or why the moving party was unable to

learn the opposing party’s position. In this regard, parties

should make reasonable efforts to contact opposing

parties well in advance of filing a motion; and

(3) list any such prior motion filed and the court’s action on it.

(D) Requirements. The motion must establish that it will not be

possible to file the brief on time, even if the party exercises due

diligence and gives priority to preparing the brief.

(1) All factual statements must be set forth with specificity.

(2) Generalities—such as assertions that the purpose of the

motion is not for delay and that counsel is too busy—are

not sufficient.

(3) If the reason for the extension is that the transcript is not

available, the motion must show that the transcript was

timely ordered and paid for, or must explain why not.

(E) Reasons. Reasons that may merit consideration are that:

(1) other litigation presents a scheduling conflict, in which

case the motion must:

(a) identify the litigation by caption, number, and court;

(b) describe the action taken in the other litigation on a

request for continuance or deferment;

priority over the case in which the motion is filed;

(d) state reasons why other associated counsel cannot

prepare the brief for timely filing or relieve movant’s

counsel of the other litigation; and

(e) recite any other relevant circumstances;

(2) the case is so complex that an adequate brief cannot

reasonably be prepared by the due date, in which case the

motion must state facts demonstrating the complexity; and

(3) counsel will suffer extreme hardship, in which case the

motion must state the nature of the hardship.

(F) Criminal cases. A motion to extend time to file a brief in a

criminal case must also state the custody status of the

defendant.

27.7 Orders.

(A) Panel Judge. When a case has been assigned, a designated

panel judge may issue any interlocutory order and act on any

motion filed under Federal Rules of Appellate Procedure 8, 9(b),

22(a), or 22(b).

(B) Procedural orders. Orders are entered when the Clerk dockets

them. The docket entry will:

(1) describe briefly and succinctly the nature of the order; and

(2) either be entered by the Clerk or state the name of the

judge or judges directing its entry.

Fed. R. App. P. Rule 28. Briefs

(a) Appellant’s Brief. The appellant’s brief must contain, under appropriate

headings and in the order indicated:

(1) a disclosure statement if required by Rule 26.1;

(2) a table of contents, with page references;

(3) a table of authorities—cases (alphabetically arranged), statutes, and other

authorities—with references to the pages of the brief where they are cited;

(4) a jurisdictional statement, including:

(A) the basis for the district court’s or agency’s subject-matter jurisdiction,

with citations to applicable statutory provisions and stating relevant facts

establishing jurisdiction;

(B) the basis for the court of appeals’ jurisdiction, with citations to

applicable statutory provisions and stating relevant facts establishing

jurisdiction;

review; and

(D) an assertion that the appeal is from a final order or judgment that

disposes of all parties’ claims, or information establishing the court of

appeals’ jurisdiction on some other basis;

(5) a statement of the issues presented for review;

(6) a concise statement of the case setting out the facts relevant to the issues

submitted for review, describing the relevant procedural history, and

identifying the rulings presented for review, with appropriate references to the

record (Rule 28(e));

(7) a summary of the argument, which must contain a succinct, clear, and

accurate statement of the arguments made in the body of the brief, and which

must not merely repeat the argument headings;

(8) the argument, which must contain:

(A) appellant’s contentions and the reasons for them, with citations to the

authorities and parts of the record on which the appellant relies; and

(B) for each issue, a concise statement of the applicable standard of review

(which may appear in the discussion of the issue or under a separate

heading placed before the discussion of the issues);

(9) a short conclusion stating the precise relief sought; and

(10) the certificate of compliance, if required by Rule 32(g)(1).

(b) Appellee’s Brief. The appellee’s brief must conform to the requirements of

Rule 28(a)(1)-(8) and (10), except that none of the following need appear unless

the appellee is dissatisfied with the appellant’s statement:

(1) the jurisdictional statement;

(2) the statement of the issues;

(3) the statement of the case; and

(4) the statement of the standard of review.

Unless the court permits, no further briefs may be filed. A reply brief must contain

a table of contents, with page references, and a table of authorities—cases

(alphabetically arranged), statutes, and other authorities—with references to the

pages of the reply brief where they are cited.

(d) References to Parties. In briefs and at oral argument, counsel should minimize

use of the terms “appellant” and “appellee.” To make briefs clear, counsel should

use the parties’ actual names or the designations used in the lower court or agency

proceeding, or such descriptive terms as “the employee,” “the injured person,” “the

taxpayer,” “the ship,” “the stevedore.”

(e) References to the Record. References to the parts of the record contained in

the appendix filed with the appellant’s brief must be to the pages of the appendix.

If the appendix is prepared after the briefs are filed, a party referring to the record

must follow one of the methods detailed in Rule 30(c). If the original record is

used under Rule 30(f) and is not consecutively paginated, or if the brief refers to an

unreproduced part of the record, any reference must be to the page of the original

document. For example:

• Answer p. 7;

• Motion for Judgment p. 2;

• Transcript p. 231.

Only clear abbreviations may be used. A party referring to evidence whose

admissibility is in controversy must cite the pages of the appendix or of the

transcript at which the evidence was identified, offered, and received or rejected.

(f) Reproduction of Statutes, Rules, Regulations, etc. If the court’s

determination of the issues presented requires the study of statutes, rules,

regulations, etc., the relevant parts must be set out in the brief or in an addendum at

the end, or may be supplied to the court in pamphlet form.

(g) [Reserved]

(h) [Reserved]

(i) Briefs in a Case Involving Multiple Appellants or Appellees. In a case

involving more than one appellant or appellee, including consolidated cases, any

number of appellants or appellees may join in a brief, and any party may adopt by

reference a part of another’s brief. Parties may also join in reply briefs.

(j) Citation of Supplemental Authorities. If pertinent and significant authorities

come to a party’s attention after the party’s brief has been filed—or after oral

argument but before decision—a party may promptly advise the circuit clerk by

letter, with a copy to all other parties, setting forth the citations. The letter must

state the reasons for the supplemental citations, referring either to the page of the

brief or to a point argued orally. The body of the letter must not exceed 350 words.

Any response must be made promptly and must be similarly limited.

(As amended Apr. 16, 2013, eff. Dec. 1, 2013; Apr. 28, 2016, eff. Dec. 1, 2016;

Apr. 25, 2019, eff. Dec. 1, 2019.)

10th Cir. R. 28

28.1 References to appendix or record.

(A) Record references. For each issue raised on appeal, all briefs

must cite the precise references in the record where the issue

was raised and ruled on. Counsel are encouraged to include a

footnote in the briefs at the point of the first record citation to

confirm the citation convention.

(1) Appendix. References to the appendix should be by

volume and page number (e.g., App. Vol. 2 at 27, or Supp.

App. Vol. 2 at 14).

(2) Record. In cases without an appendix, references to the

record should be to the record volume and page number

(e.g., ROA, Vol. II, at 6). References to the transcript

should be by volume and page number.

(B) Particular record references. Briefs must cite the precise

references in the record where a required objection was made

and ruled on, if the appeal is based on:

(1) a failure to admit or exclude evidence;

(2) the giving of or refusal to give a particular jury instruction;

(3) any other act or ruling for which a party must record an

objection to preserve the right to appeal.

28.2 Additional requirements.

(A) Appellant’s brief. In addition to all other requirements of the

Federal Rules of Appellate Procedure and these rules, the

appellant’s brief must include as an attachment the following

(even though they are also included in the appendix or record):

(1) copies of all pertinent written findings, conclusions,

opinions, or orders of a district judge, bankruptcy judge, or

magistrate judge (if the district court adopts a magistrate’s

report and recommendation, that report must also be

included);

(2) if any judicial pronouncement listed in (1) is oral, a copy of

the transcript pages;

(3) in social security cases, copies of the decisions of the

administrative law judge and the appeals council;

(4) in immigration cases, a copy of the transcript from the

Immigration Judge’s oral ruling, plus copies of the written

rulings of the Immigration Judge and the Board of

Immigration Appeals; and

(5) the judgment.

(B) Appellee’s brief. If the appellant’s brief fails to attach all the

rulings required by (A), the appellee’s brief must attach them.

(1) Name of court, judge, and originating case number.

The front cover of each brief must contain the name of the

court, the judge whose judgment is being appealed, and

the originating case number.

(2) Oral argument statement. The front cover of each party’s

first brief must state whether oral argument is requested. If

argument is requested, a statement of the reasons why

argument is necessary must follow the brief’s conclusion.

(3) Statement of related cases. At the end of the Table of

Authorities, the first brief filed by each party must list all

prior or related appeals, with appropriate citations, or a

statement that there are no prior or related appeals.

(4) Glossary. All briefs containing acronyms or abbreviations

not in common use (other than names of parties) must

include a Glossary on a page immediately following the

Table of Authorities.

(5) Brief Attachments and the Table of Contents. All

attachments to briefs, including those required by Rule

28.2(A), shall be identified and included in the Table of

Contents.

28.3 Disfavored practices.

(A) Motions to exceed word counts are disfavored. Motions to

exceed the word count will be denied unless extraordinary and

compelling circumstances can be shown. A motion filed within 14

days of the brief’s due date must show why earlier filing was not

possible.

(B) Incorporating by reference disapproved. Incorporating by

reference portions of lower court or agency briefs or pleadings is

disapproved and does not satisfy the requirements of Federal

Rules of Appellate Procedure 28(a) and (b).

discouraged. Parties are encouraged to include page references

for all authorities and sources.

Fed. R. App. P. Rule 28.1. Cross-Appeals

(a) Applicability. This rule applies to a case in which a cross-appeal is filed. Rules

28(a)-(c), 31(a)(1), 32(a)(2), and 32(a)(7)(A)-(B) do not apply to such a case,

except as otherwise provided in this rule.

(b) Designation of Appellant. The party who files a notice of appeal first is the

appellant for the purposes of this rule and Rules 30 and 34. If notices are filed on

the same day, the plaintiff in the proceeding below is the appellant. These

designations may be modified by the parties’ agreement or by court order.

(1) Appellant’s Principal Brief. The appellant must file a principal brief in the

appeal. That brief must comply with Rule 28(a).

(2) Appellee’s Principal and Response Brief. The appellee must file a

principal brief in the cross-appeal and must, in the same brief, respond to the

principal brief in the appeal. That appellee’s brief must comply with Rule

28(a), except that the brief need not include a statement of the case unless the

appellee is dissatisfied with the appellant’s statement.

(3) Appellant’s Response and Reply Brief. The appellant must file a brief

that responds to the principal brief in the cross-appeal and may, in the same

brief, reply to the response in the appeal. That brief must comply with Rule

28(a)(2)-(8) and (10), except that none of the following need appear unless the

appellant is dissatisfied with the appellee’s statement in the cross-appeal:

(A) the jurisdictional statement;

(B) the statement of the issues;

(D) the statement of the standard of review.

(4) Appellee’s Reply Brief. The appellee may file a brief in reply to the

response in the cross-appeal. That brief must comply with Rule 28(a)(2)-(3)

and (10) and must be limited to the issues presented by the cross-appeal.

(5) No Further Briefs. Unless the court permits, no further briefs may be filed

in a case involving a cross-appeal.

(d) Cover. Except for filings by unrepresented parties, the cover of the appellant’s

principal brief must be blue; the appellee’s principal and response brief, red; the

appellant’s response and reply brief, yellow; the appellee’s reply brief, gray; an

intervenor’s or amicus curiae’s brief, green; and any supplemental brief, tan. The

front cover of a brief must contain the information required by Rule 32(a)(2).

(e) Length.

(1) Page Limitation. Unless it complies with Rule 28.1(e)(2), the appellant’s

principal brief must not exceed 30 pages; the appellee’s principal and response

brief, 35 pages; the appellant’s response and reply brief, 30 pages; and the

appellee’s reply brief, 15 pages.

(2) Type-Volume Limitation.

(A) The appellant’s principal brief or the appellant’s response and reply

brief is acceptable if it:

(i) contains no more than 13,000 words; or

(ii) uses a monospaced face and contains no more than 1,300 lines of

text.

(B) The appellee’s principal and response brief is acceptable if it:

(i) contains no more than 15,300 words; or

(ii) uses a monospaced face and contains no more than 1,500 lines of

text.

of the type volume specified in Rule 28.1(e)(2)(A).

(f) Time to Serve and File a Brief. Briefs must be served and filed as follows:

(1) the appellant’s principal brief, within 40 days after the record is filed;

(2) the appellee’s principal and response brief, within 30 days after the

appellant’s principal brief is served;

(3) the appellant’s response and reply brief, within 30 days after the appellee’s

principal and response brief is served; and

(4) the appellee’s reply brief, within 21 days after the appellant’s response and

reply brief is served, but at least 7 days before argument unless the court, for

good cause, allows a later filing.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1,

2002; Apr. 25, 2005, eff. Dec. 1, 2005; May 7, 2009, eff. Dec. 1, 2009; Apr.

16, 2013, eff. Dec. 1, 2013; Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 26, 2018,

eff. Dec. 1, 2018.)

No Local Rule.

Fed. R. App. P. Rule 29. Brief of an Amicus Curiae

(a) During Initial Consideration of a Case on the Merits.

(1) Applicability. This Rule 29(a) governs amicus filings during a court’s

initial consideration of a case on the merits.

(2) When Permitted. The United States or its officer or agency or a state may

file an amicus brief without the consent of the parties or leave of court. Any

other amicus curiae may file a brief only by leave of court or if the brief states

that all parties have consented to its filing, but a court of appeals may prohibit

the filing of or may strike an amicus brief that would result in a judge’s

disqualification.

(3) Motion for Leave to File. The motion must be accompanied by the

proposed brief and state:

(A) the movant’s interest; and

(B) the reason why an amicus brief is desirable and why the matters

asserted are relevant to the disposition of the case.

(4) Contents and Form. An amicus brief must comply with Rule 32. In

addition to the requirements of Rule 32, the cover must identify the party or

parties supported and indicate whether the brief supports affirmance or

reversal. An amicus brief need not comply with Rule 28, but must include the

following:

(A) if the amicus is a corporation, a disclosure statement like that required

of parties by Rule 26.1;

(B) a table of contents, with page references;

other authorities—with references to the pages of the brief where they are

cited;

(D) a concise statement of the identity of the amicus curiae, its interest in

the case, and the source of its authority to file;

(E) unless the amicus curiae is one listed in the first sentence of

Rule 29(a)(2), a statement that indicates whether:

(i) a party’s counsel authored the brief in whole or in part;

(ii) a party or a party’s counsel contributed money that was intended to

fund preparing or submitting the brief; and

(iii) a person—other than the amicus curiae, its members, or its

counsel—contributed money that was intended to fund preparing or

submitting the brief and, if so, identifies each such person;

(F) an argument, which may be preceded by a summary and which need

not include a statement of the applicable standard of review; and

(G) a certificate of compliance under Rule 32(g)(1), if length is computed

using a word or line limit.

(5) Length. Except by the court’s permission, an amicus brief may be no more

than one-half the maximum length authorized by these rules for a party’s

principal brief. If the court grants a party permission to file a longer brief, that

extension does not affect the length of an amicus brief.

(6) Time for Filing. An amicus curiae must file its brief, accompanied by a

motion for filing when necessary, no later than 7 days after the principal brief

of the party being supported is filed. An amicus curiae that does not support

either party must file its brief no later than 7 days after the appellant’s or

petitioner’s principal brief is filed. A court may grant leave for later filing,

specifying the time within which an opposing party may answer.

(7) Reply Brief. Except by the court’s permission, an amicus curiae may not

file a reply brief.

(8) Oral Argument. An amicus curiae may participate in oral argument only

with the court’s permission.

(b) During Consideration of Whether to Grant Rehearing.

(1) Applicability. This Rule 29(b) governs amicus filings during a court’s

consideration of whether to grant panel rehearing or rehearing en banc, unless a

local rule or order in a case provides otherwise.

(2) When Permitted. The United States or its officer or agency or a state may

file an amicus brief without the consent of the parties or leave of court. Any

other amicus curiae may file a brief only by leave of court.

(3) Motion for Leave to File. Rule 29(a)(3) applies to a motion for leave.

(4) Contents, Form, and Length. Rule 29(a)(4) applies to the amicus brief.

The brief must not exceed 2,600 words.

(5) Time for Filing. An amicus curiae supporting the petition for rehearing or

supporting neither party must file its brief, accompanied by a motion for filing

when necessary, no later than 7 days after the petition is filed. An amicus

curiae opposing the petition must file the brief, accompanied by a motion for

filing when necessary, no later than the date set by the court for the response.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 28, 2010, eff. Dec. 1, 2010;

Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 26, 2018, eff. Dec. 1, 2018.)

10th Cir. R. 29

29.1 Amicus briefs on rehearing.

The court will receive but not file proposed amicus briefs on rehearing.

Filing will be considered shortly before the oral argument on rehearing

en banc if granted, or before the grant or denial of panel rehearing.

Federal Rule of Appellate Procedure 29(a)(2)-(4) and (6)-(8) govern

amicus filings after the court has granted rehearing en banc. Proposed

amicus briefs filed after the court has granted en banc rehearing may

be no longer than one-half the maximum length permitted for any briefs

ordered by the court.

29.2 Paper copies of amicus briefs.

Paper copies of amicus briefs must be provided to the court in

accordance with 10th Cir. R. 31.5.

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Fed. R. App. P. Rule 30. Appendix to the Briefs

(a) Appellant’s Responsibility.

(1) Contents of the Appendix. The appellant must prepare and file an

appendix to the briefs containing:

(A) the relevant docket entries in the proceeding below;

(B) the relevant portions of the pleadings, charge, findings, or opinion;

(D) other parts of the record to which the parties wish to direct the court’s

attention.

(2) Excluded Material. Memoranda of law in the district court should not be

included in the appendix unless they have independent relevance. Parts of the

record may be relied on by the court or the parties even though not included in

the appendix.

(3) Time to File; Number of Copies. Unless filing is deferred under Rule

30(c), the appellant must file 10 copies of the appendix with the brief and must

serve one copy on counsel for each party separately represented. An

unrepresented party proceeding in forma pauperis must file 4 legible copies

with the clerk, and one copy must be served on counsel for each separately

represented party. The court may by local rule or by order in a particular case

require the filing or service of a different number.

(b) All Parties’ Responsibilities.

(1) Determining the Contents of the Appendix. The parties are encouraged to

agree on the contents of the appendix. In the absence of an agreement, the

appellant must, within 14 days after the record is filed, serve on the appellee a

designation of the parts of the record the appellant intends to include in the

appendix and a statement of the issues the appellant intends to present for

review. The appellee may, within 14 days after receiving the designation, serve

on the appellant a designation of additional parts to which it wishes to direct

the court’s attention. The appellant must include the designated parts in the

appendix. The parties must not engage in unnecessary designation of parts of

the record, because the entire record is available to the court. This paragraph

applies also to a cross-appellant and a cross-appellee.

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(2) Costs of Appendix. Unless the parties agree otherwise, the appellant must

pay the cost of the appendix. If the appellant considers parts of the record

designated by the appellee to be unnecessary, the appellant may advise the

appellee, who must then advance the cost of including those parts. The cost of

the appendix is a taxable cost. But if any party causes unnecessary parts of the

record to be included in the appendix, the court may impose the cost of those

parts on that party. Each circuit must, by local rule, provide for sanctions

against attorneys who unreasonably and vexatiously increase litigation costs by

including unnecessary material in the appendix.

(1) Deferral Until After Briefs are Filed. The court may provide by rule for

classes of cases or by order in a particular case that preparation of the appendix

may be deferred until after the briefs have been filed and that the appendix may

be filed 21 days after the appellee’s brief is served. Even though the filing of

the appendix may be deferred, Rule 30(b) applies; except that a party must

designate the parts of the record it wants included in the appendix when it

serves its brief, and need not include a statement of the issues presented.

(2) References to the Record.

(A) If the deferred appendix is used, the parties may cite in their briefs the

pertinent pages of the record. When the appendix is prepared, the record

pages cited in the briefs must be indicated by inserting record page

numbers, in brackets, at places in the appendix where those pages of the

record appear.

(B) A party who wants to refer directly to pages of the appendix may serve

and file copies of the brief within the time required by Rule 31(a),

containing appropriate references to pertinent pages of the record. In that

event, within 14 days after the appendix is filed, the party must serve and

file copies of the brief, containing references to the pages of the appendix

in place of or in addition to the references to the pertinent pages of the

record. Except for the correction of typographical errors, no other changes

may be made to the brief.

(d) Format of the Appendix. The appendix must begin with a table of contents

identifying the page at which each part begins. The relevant docket entries must

follow the table of contents. Other parts of the record must follow chronologically.

When pages from the transcript of proceedings are placed in the appendix, the

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transcript page numbers must be shown in brackets immediately before the

included pages. Omissions in the text of papers or of the transcript must be

indicated by asterisks. Immaterial formal matters (captions, subscriptions,

acknowledgments, etc.) should be omitted.

(e) Reproduction of Exhibits. Exhibits designated for inclusion in the appendix

may be reproduced in a separate volume, or volumes, suitably indexed. Four copies

must be filed with the appendix, and one copy must be served on counsel for each

separately represented party. If a transcript of a proceeding before an

administrative agency, board, commission, or officer was used in a district-court

action and has been designated for inclusion in the appendix, the transcript must be

placed in the appendix as an exhibit.

(f) Appeal on the Original Record Without an Appendix. The court may, either

by rule for all cases or classes of cases or by order in a particular case, dispense

with the appendix and permit an appeal to proceed on the original record with any

copies of the record, or relevant parts, that the court may order the parties to file.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; May 7, 2009, eff. Dec. 1, 2009.)

10th Cir. R. 30

30.1 Appellant’s appendix.

Instead of a Federal Rule of Appellate Procedure 30 “appendix to the

briefs,” parties shall attach to their briefs the documents required by

Tenth Circuit Rule 28.2(A) and (B).

The appendix required by the remainder of this Rule 30.1 is the form

the record on appeal takes when the appellant is represented by

retained counsel. See 10th Cir. R. 10.1. The remainder of this rule

does not apply to appeals in which the appellant is pro se or

represented by counsel appointed pursuant to 18 U.S.C. § 3006A. See

10th Cir. R. 10.1.

The appendix is prepared and electronically filed by the appellant, who

must also forward a single hard copy of the electronic appendix to the

office of the clerk. The hard copy must be an exact replica of the

electronically filed appendix. This rule also applies to appeals from the

Tax Court.

(A) Timing.

(1) Electronic filing. The appendix must be filed electronically

at the same time the opening brief is filed. See 10th Cir. R.

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31.1(A)(1) (noting the brief and appendix must be filed

within 40 days after the district court clerk notifies the

parties and the circuit clerk that the record is complete).

(2) Required hard copy filing. The single required hard copy

must be received in the office of the clerk, along with the

required number of hard copies of the opening brief, within

5 business days following issuance of notice from the

clerk’s office that the electronic filing is compliant. See 10th

Cir. R. 31.5.

(3) Deferred appendix. Parties seeking to submit a deferred

appendix under Federal Rule of Appellate Procedure 30(c)

may file a motion seeking an exception to these

requirements.

(B) Content.

(1) Appellant’s duty. An appellant represented by retained

counsel must electronically file an appendix sufficient for

considering and deciding the issues on appeal. The

requirements of Rule 10.4 for the contents of a record on

appeal apply to appellant’s appendix. See also Rule

10.2(A) (addressing appellant’s duty with regard to

transcripts).

(2) Social security cases. In social security cases, the entire

administrative record must be included in the appendix. In

appropriate situations, the appellant may file a motion

seeking an exemption from electronic filing of the

administrative record, and a waiver of service requirements

for the administrative record. If an exemption from

electronic filing is granted, the appellant must submit a

hard copy of the appendix. See 10th Cir. R. 30.1(A)(2).

(3) Inadequate Appendix. The court need not remedy any

failure of counsel to provide an adequate appendix. See

10th Cir. R. 10.4(B).

separate briefs under 10th Cir. R. 31.3(B), separate appendices

may be filed. But counsel must avoid duplication of items

included in a previously filed appendix; duplicative items may be

adopted by reference. A single agreed appendix is preferred.

(D) Form.

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Important Note: Counsel should review the Court’s CM/ECF

User Manual at Sections II and III and in particular III(G) for

important technical information and instructions regarding the

electronic appendix. These sections also include important

information regarding submission of the required single hard

copy of the appendix. See www.ca10.uscourts.gov

(1) Cover; pagination. Each volume of an appendix must

have a white cover with the information required by Fed.

R. App. P. 32(a)(2) and 32(b). The appendix must be

consecutively paginated starting with the cover page.

However, volumes within a multi-volume appendix may be

paginated independently. That is, while the appendix need

not be paginated consecutively across multiple volumes,

each volume must be paginated consecutively. Citations to

the appendix must make clear the volume and page cited.

(2) Index or table of contents. All appendices must include

an index or table of contents of documents with

appropriate volume and page numbers noting where the

documents appear. If the appendix consists of multiple

volumes, each volume must include an index or table of

contents.

(3) File stamped. Documents in the appendix should show

the district court’s electronic stamp, but they need not be

certified.

(4) District court docket entries. A copy of the district court’s

docket entries should always be the first document in the

appendix.

(5) Order of documents. Documents should be arranged in

chronological order according to the filing date; other

papers such as exhibits and transcript excerpts should be

at the end.

(6) Separate volumes. Where the appendix is large, separate

volumes should be created to allow for manageable review

of the materials, and each volume should have its own

cover page identifying that volume number. Individual

volumes should not exceed 300 pages in length. The

number of electronic volumes must match the number of

hard copy volumes. For the single hard copy, the court

strongly encourages the use of spiral binding. The use of

three-ring binders is prohibited.

105

(7) Sealed documents; form and motion requirement.

Copies of documents intended for filing under seal should

be submitted in a separate volume, using the ECF option

for filing under seal. If the appendix includes sealed

materials it must be accompanied by a separate motion to

seal in accordance with Tenth Circuit Rule 25.6.

Presentence reports and statements of reasons in criminal

cases constitute an exception to this motion requirement.

10th Cir. R. 11.3(C).

(E) Service of the Appendix. The electronic appendix must be

served on every other party to the appeal. Parties may use the

court’s CM/ECF system to accomplish that service. See 10th Cir.

R. 25.4. If served electronically, a hard copy need not be served

on other parties. If an exemption is allowed under 10th Cir. R.

30.3(A) and only hard copies of the appendix are filed, a hard

copy of the appendix must be served on every other party to the

appeal. See 10th Cir. R. 25.3 (regarding seeking exemptions

from electronic filing requirements); 10th Cir. R. 30.3(A).

(F) Order appealed must be submitted with brief. Filing an

appendix does not relieve counsel of the requirements of Rule

28.2(A).

30.2 Supplemental appendix.

(A) Appellee’s appendix.

(1) Filing. An appellee who believes that the appellant’s

appendix omits items that should be included may file a

supplemental appendix with the answer brief.

Supplemental appendices shall comply with 10th Cir. R.

30.1(D)(1)-(7), and shall be filed electronically and served

in the same manner as is described in 10th Cir. R. 30.1(E).

(2) Appointed counsel. If all appellants are represented by

retained counsel, appointed counsel for an appellee may

file a supplemental appendix and apply for reimbursement

when the voucher or the statement of hours and expenses

is filed.

(B) No other appendix. No other appendix may be filed except by

order of the court.

30.3 Appendix exemptions.

(A) Waiver of electronic appendix requirement. Any party may

move to be exempt from the electronic appendix requirement

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upon the filing of a motion at least 7 days prior to the due date

for the principal brief and appendix. If an exemption is granted,

two hard copies of the required appendix must be filed with the

Clerk within 5 business days following issuance of notice that the

electronic brief and appendix are compliant. A hard copy of the

appendix must be served on all other parties to the appeal within

that same 5 business day period.

(B) Particular documents. A party may file a motion to exempt

certain documents from the appendix:

(1) if the documents themselves cannot be readily copied or

put in electronic form;

(2) if essential excerpts of the reporter’s transcript are so

voluminous that copying or creating electronic access is

excessively burdensome or costly; or

(3) if an exemption to the electronic appendix requirement is

sought and obtained under subsection (A) of this rule,

those cases in which making 2 copies of the administrative

record would be too costly.

bono cases, if production or creation of an appendix is too costly

for the appellant to bear, the appellant may file a motion to

proceed on a record on appeal.

107

Fed. R. App. P. Rule 31. Serving and Filing Briefs

(a) Time to Serve and File a Brief.

(1) The appellant must serve and file a brief within 40 days after the record is

filed. The appellee must serve and file a brief within 30 days after the

appellant’s brief is served. The appellant may serve and file a reply brief within

21 days after service of the appellee’s brief but a reply brief must be filed at

least 7 days before argument, unless the court, for good cause, allows a later

filing.

(2) A court of appeals that routinely considers cases on the merits promptly

after the briefs are filed may shorten the time to serve and file briefs, either by

local rule or by order in a particular case.

(b) Number of Copies. Twenty-five copies of each brief must be filed with the

clerk and 2 copies must be served on each unrepresented party and on counsel for

each separately represented party. An unrepresented party proceeding in forma

pauperis must file 4 legible copies with the clerk, and one copy must be served on

each unrepresented party and on counsel for each separately represented party. The

court may by local rule or by order in a particular case require the filing or service

of a different number.

time provided by this rule, or within an extended time, an appellee may move to

dismiss the appeal. An appellee who fails to file a brief will not be heard at oral

argument unless the court grants permission.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002;

May 7, 2009, eff. Dec. 1, 2009; Apr. 26, 2018, eff. Dec. 1, 2018.)

108

10th Cir. R. 31

31.1 Opening brief for appellant/petitioner.

(A) Appeals from district court.

(1) Retained Counsel. When the appellant is required to file

an appendix, the appellant’s brief and appendix must be

filed within 40 days after the date the district court clerk (as

required by Rule 11.1) notifies the parties and the circuit

clerk that the record is complete for purposes of appeal.`

(2) Appointed counsel; pro se. In all other cases, appellant’s

opening brief must be filed and served according to

Federal Rule of Appellate Procedure 31(a).

(B) Review and enforcement proceedings. In cases seeking

review or enforcement of agency orders, petitioner’s opening

brief must be filed within 40 days after the date when the certified

list is filed or the date when the record is filed, whichever occurs

first.

31.2 Joint briefing in criminal appeals.

Codefendants in criminal appeals may each file a brief or may join in a

single brief. Joint briefs must bear all the appellate case numbers and

captions of all appeals. The United States is encouraged to file a single

brief.

31.3 Joint briefing in civil appeals.

(A) Multiple parties. In civil cases involving more than one appellant

or appellee, including consolidated cases, all parties on a side

(including intervenors) must—to the extent practicable—file a

single brief. Where, however, multiple response briefs are filed

pursuant to 10th Cir. R. 31.3(B), the appellant may file only one

reply except upon motion to the court seeking an exemption.

(B) Certificate of counsel. Any brief filed separately by one of

multiple parties on a side must contain a certificate plainly stating

the reasons why the separate brief is necessary. The only

exception to this requirement is if the only other party on a side

filing separately is a government entity under 10th Cir. R.

31.3(D).

briefing to allow the parties time to coordinate a single brief.

109

(D) Government entities exempt. This rule does not apply to

government entities.

31.4 Extensions.

Extensions of time to file briefs are disfavored. See 10th Cir. R.

27.6(A).

31.5 Number of copies.

Counseled parties, including amicus curiae, must provide the court

with 7 hard copies of all briefs filed electronically. This requirement is in

addition to the court’s ECF (Electronic Case Filing) requirements. The

required hard copies must be received in the clerk’s office within 5

business days following issuance of notice that the electronic filing is

compliant. In addition, counseled parties and amicus curiae must serve

a copy of all briefs on each unrepresented party and all counsel for

each separately represented party. Service may be provided

electronically through the court’s ECF system to attorneys and pro se

filers who have received permission to file electronically and who are

registered ECF users. Service must be made in another manner on

persons who are entitled to notice but are not electronic filers in the

case. For more information regarding filing briefs, please see the

court’s CM/ECF User Manual at Section III(E). See

http://www.ca10.uscourts.gov.

110

Fed. R. App. P. Rule 32. Form of Briefs, Appendices, and Other

Papers

(a) Form of a Brief.

(1) Reproduction.

(A) A brief may be reproduced by any process that yields a clear black

image on light paper. The paper must be opaque and unglazed. Only one

side of the paper may be used.

(B) Text must be reproduced with a clarity that equals or exceeds the

output of a laser printer.

method that results in a good copy of the original; a glossy finish is

acceptable if the original is glossy.

(2) Cover. Except for filings by unrepresented parties, the cover of the

appellant’s brief must be blue; the appellee’s, red; an intervenor’s or amicus

curiae’s, green; any reply brief, gray and any supplemental brief, tan. The front

cover of a brief must contain:

(A) the number of the case centered at the top;

(B) the name of the court;

(D) the nature of the proceeding (e.g., Appeal, Petition for Review) and the

name of the court, agency, or board below;

(E) the title of the brief, identifying the party or parties for whom the brief

is filed; and

(F) the name, office address, and telephone number of counsel representing

the party for whom the brief is filed.

(3) Binding. The brief must be bound in any manner that is secure, does not

obscure the text, and permits the brief to lie reasonably flat when open.

(4) Paper Size, Line Spacing, and Margins. The brief must be on 8 ½ by 11

inch paper. The text must be double-spaced, but quotations more than two lines

111

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. Page

numbers may be placed in the margins, but no text may appear there.

(5) Typeface. Either a proportionally spaced or monospaced face may be used.

(A) A proportionally spaced face must include serifs, but sans-serif type

may be used in headings and captions. A proportionally spaced face must

be 14-point or larger.

(B) A monospaced face may not contain more than 10 ½ characters per

inch.

(6) Type Styles. A brief must be set in a plain, roman style, although italics or

boldface may be used for emphasis. Case names must be italicized or

underlined.

(7) Length.

(A) Page limitation. A principal brief may not exceed 30 pages, or a reply

brief 15 pages, unless it complies with Rule 32(a)(7)(B).

(B) Type-volume limitation.

(i) A principal brief is acceptable if it:

• contains no more than 13,000 words; or

• uses a monospaced face and contains no more than 1,300 lines

of text.

(ii) A reply brief is acceptable if it contains no more than half of the

type volume specified in Rule 32(a)(7)(B)(i).

(b) Form of an Appendix. An appendix must comply with Rule 32(a)(1), (2), (3),

and (4), with the following exceptions:

(1) The cover of a separately bound appendix must be white.

(2) An appendix may include a legible photocopy of any document found in

the record or of a printed judicial or agency decision.

112

(3) When necessary to facilitate inclusion of odd-sized documents such as

technical drawings, an appendix may be a size other than 8 ½ by 11 inches, and

need not lie reasonably flat when opened.

(1) Motion. The form of a motion is governed by Rule 27(d).

(2) Other Papers. Any other paper, including a petition for panel rehearing

and a petition for hearing or rehearing en banc, and any response to such a

petition, must be reproduced in the manner prescribed by Rule 32(a), with the

following exceptions:

(A) A cover is not necessary if the caption and signature page of the paper

together contain the information required by Rule 32(a)(2). If a cover is

used, it must be white.

(B) Rule 32(a)(7) does not apply.

(d) Signature. Every brief, motion, or other paper filed with the court must be

signed by the party filing the paper or, if the party is represented, by one of the

party’s attorneys.

(e) Local Variation. Every court of appeals must accept documents that comply

with the form requirements of this rule and the length limits set by these rules. By

local rule or order in a particular case a court of appeals may accept documents that

do not meet all of the form requirements of this rule or the length limits set by

these rules.

(f) Items Excluded from Length. In computing any length limit, headings,

footnotes, and quotations count toward the limit but the following items do not:

• cover page;

• disclosure statement;

• table of contents;

• table of citations;

• statement regarding oral argument;

• addendum containing statutes, rules, or regulations;

113

· certificates of counsel;

• signature block;

• proof of service; and

• any item specifically excluded by these rules or by local rule.

(g) Certificates of Compliance.

(1) Briefs and Papers that Require a Certificate. A brief submitted under

Rules 28.1(e)(2), 29(b)(4), or 32(a)(7)(B)—and a paper submitted under Rules

5(c)(1), 21(d)(1), 27(d)(2)(A), 27(d)(2)(C), 35(b)(2)(A), or 40(b)(1)—must

include a certificate by the attorney, or an unrepresented party, that the

document complies with the type-volume limitation. The person preparing the

certificate may rely on the word or line count of the word-processing system

used to prepare the document. The certificate must state the number of

words—or the number of lines of monospaced type—in the document.

(2) Acceptable Form. Form 6 in the Appendix of Forms meets the

requirements for a certificate of compliance.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002;

Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 25, 2019,

eff. Dec. 1, 2019.)

10th Cir. R. 32

(A) Font sizes in briefs.

The court prefers 14-point type as required by Federal Rule of

Appellate Procedure 32(a)(5)(A), but 13-point type is acceptable.

Footnote font size should be the same as that used in the body of the

brief.

(B) Word count where glossary included.

In calculating the number of words and lines that count toward the

word and line limitations, the glossary required by 10th Cir. R.

28.2(C)(4) may be excluded, in addition to the items listed in Federal

Rule of Appellate Procedure 32(f).

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Fed. R. App. P. 32.1. Citing Judicial Dispositions.

(a) Citation Permitted. A court may not prohibit or restrict the citation of federal

judicial opinions, orders, judgments, or other written dispositions that have been:

(i) designated as “unpublished,” “not for publication,” “non-precedential,” “not

precedent,” or the like; and

(ii) issued on or after January 1, 2007.

(b) Copies Required. If a party cites a federal judicial opinion, order, judgment, or

other written disposition that is not available in a publicly accessible electronic

database, the party must file and serve a copy of that opinion, order, judgment, or

disposition with the brief or other paper in which it is cited.

(Eff. Dec. 1, 2006.)

10th Cir. R. 32.1

32.1 Citing judicial dispositions.

(A) Precedential value. While citation to published authority is

preferred, citation of unpublished decisions is permitted as

authorized in Federal Rule of Appellate Procedure 32.1.

Unpublished decisions are not precedential, but may be cited for

their persuasive value. They may also be cited under the

doctrines of law of the case, claim preclusion, and issue

preclusion. Citation to unpublished opinions for which a Federal

Appendix cite is unavailable must include an “unpublished”

parenthetical. E.g., United States v. Wilson, No. 13-2047, 2015

WL 3072766 (10th Cir. Oct. 31, 2016) (unpublished).

(B) Reference. If an unpublished decision cited in a brief or other

pleading is not available in a publicly accessible electronic

database, a copy must be attached to the document when it is

filed and must be provided to all other counsel and pro se

parties. Where possible, references to unpublished dispositions

should include the appropriate electronic citation.

issued prior to January 1, 2007, in the same manner and under

the same circumstances as are allowed by Federal Rule of

Appellate Procedure 32.1(a)(i) and part (A) of this local rule.

115

Fed. R. App. P. Rule 33. Appeal Conferences

The court may direct the attorneys—and, when appropriate, the parties—to

participate in one or more conferences to address any matter that may aid in

disposing of the proceedings, including simplifying the issues and discussing

settlement. A judge or other person designated by the court may preside over the

conference, which may be conducted in person or by telephone. Before a

settlement conference, the attorneys must consult with their clients and obtain as

much authority as feasible to settle the case. The court may, as a result of the

conference, enter an order controlling the course of the proceedings or

implementing any settlement agreement.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

10th Cir. R. 33

33.1 Mediation conference.

(A) Circuit mediation office; purpose of mediation conference.

The circuit mediation office may schedule and conduct mediation

conferences in any matter pending before the court. The primary

purpose of a conference is to explore settlement, but case

management matters may also be addressed.

(B) Participation of counsel and parties. Counsel must participate

in every scheduled mediation conference and in related

discussions. Generally a party may participate but need not

unless required by the circuit mediation office. Conferences are

conducted by telephone unless the circuit mediation office

directs otherwise.

authority. Counsel must consult with their clients and obtain as

much authority as feasible to settle the case and agree on case

management matters in preparing for the initial conference.

These obligations continue throughout the mediation process.

(D) Confidentiality. Statements made during the conference and in

related discussions, and any records of those statements, are

confidential and must not be disclosed by anyone (including the

circuit mediation office, counsel, or the parties, and their agents

or employees), to anyone not participating in the mediation

process. Proceedings under this rule may not be recorded by

counsel or the parties.

116

(E) Conference order; mediator authority. The circuit mediation

office may cause a judgment or order to be entered controlling

the course of the case or the mediation proceedings. The circuit

mediation office and its mediators are delegates of this court.

Any conference orders or other communications from the circuit

mediation office must be treated the same as any other court

directive.

(F) Extensions for ordering transcript or filing brief. The time

allowed by Federal Rule of Appellate Procedure 10(b)(1) for

ordering a transcript and by Rule 31.1 for filing briefs is not

automatically tolled pending a conference. If a conference has

been scheduled, counsel may contact the circuit mediation office

for an extension of time to order a transcript or to file a brief.

(G) Request for mediation conference by counsel. Counsel may

request a mediation conference by contacting the circuit

mediation office. The office will determine whether a conference

will be held.

(H) Sanctions. The court may impose sanctions if counsel or a party

violates this rule or an order entered under it.

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Fed. R. App. P. Rule 34. Oral Argument

(a) In General.

(1) Party’s Statement. Any party may file, or a court may require by local

rule, a statement explaining why oral argument should, or need not, be

permitted.

(2) Standards. Oral argument must be allowed in every case unless a panel of

three judges who have examined the briefs and record unanimously agrees that

oral argument is unnecessary for any of the following reasons:

(A) the appeal is frivolous;

(B) the dispositive issue or issues have been authoritatively decided; or

record, and the decisional process would not be significantly aided by oral

argument.

(b) Notice of Argument; Postponement. The clerk must advise all parties

whether oral argument will be scheduled, and, if so, the date, time, and place for it,

and the time allowed for each side. A motion to postpone the argument or to allow

longer argument must be filed reasonably in advance of the hearing date.

argument. Counsel must not read at length from briefs, records, or authorities.

(d) Cross-Appeals and Separate Appeals. If there is a cross-appeal, Rule 28.1(b)

determines which party is the appellant and which is the appellee for purposes of

oral argument. Unless the court directs otherwise, a cross-appeal or separate appeal

must be argued when the initial appeal is argued. Separate parties should avoid

duplicative argument.

(e) Nonappearance of a Party. If the appellee fails to appear for argument, the

court must hear appellant’s argument. If the appellant fails to appear for argument,

the court may hear the appellee’s argument. If neither party appears, the case will

be decided on the briefs, unless the court orders otherwise.

(f) Submission on Briefs. The parties may agree to submit a case for decision on

the briefs, but the court may direct that the case be argued.

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(g) Use of Physical Exhibits at Argument; Removal. Counsel intending to use

physical exhibits other than documents at the argument must arrange to place them

in the courtroom on the day of the argument before the court convenes. After the

argument, counsel must remove the exhibits from the courtroom, unless the court

directs otherwise. The clerk may destroy or dispose of the exhibits if counsel does

not reclaim them within a reasonable time after the clerk gives notice to remove

them.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 25, 2005, eff. Dec. 1, 2005.)

10th Cir. R. 34

34.1 Oral argument.

(A) Responsibilities of counsel.

(1) Presence of counsel. Counsel for each party must be

present for oral argument unless excused by the court.

The established argument time is allocated by counsel as

they see fit.

(2) Motion to waive oral argument. After the principal briefs

have been filed, a party may file a motion to waive oral

argument and to submit a case on the briefs. If filed within

10 days of the scheduled argument date, the motion must

show why an earlier filing was not possible.

(3) Postponement. Only in extraordinary circumstances will

an argument be postponed. Except in an emergency, a

motion to postpone must be made more than 20 days

before the scheduled argument date. In addition, any

motion filed must include opposing counsel’s position and

must address whether the appeal is suitable for

submission on the briefs.

(4) Recovery of expenses. A party prejudiced by the granting

of a motion to waive or postpone oral argument filed within

10 days of the scheduled argument date may move for

recovery of expenses.

(B) Joint appeals. Cases that have been consolidated for briefing

purposes will be treated as one case for oral argument. The

court disfavors divided arguments on behalf of a single party or

multiple parties with the same interests.

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side, the time allowed is divided as they agree. If counsel do not

agree, the court will allocate the time.

(D) Preparation. In preparing for oral argument, counsel should

remember that the judges read the briefs before oral argument.

(E) Recording and transcription.

(1) Recording. The Clerk of Court shall post to the Tenth

Circuit website audio recordings made from oral argument

hearings unless the court directs otherwise. The

recordings will generally be posted no later than 48 hours

after the hearing.

(2) Transcription. Counsel or parties may move for

permission to arrange, at their own expense, for a qualified

court reporter to be present and to report and transcribe

oral argument. A copy of the transcript must be filed with

the circuit clerk.

(F) No oral argument on petitions or motions. Oral argument on

petitions or motions is not ordinarily permitted.

(G) Submission on briefs. Except in pro se appeals or when both

parties have waived oral argument, the court will advise the

parties when a panel decides that oral argument is not

necessary. That advisement may be at the time a decision is

issued.

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Fed. R. App. P. Rule 35. En Banc Determination

(a) When Hearing or Rehearing En Banc May be Ordered. A majority of the

circuit judges who are in regular active service and who are not disqualified may

order that an appeal or other proceeding be heard or reheard by the court of appeals

en banc. An en banc hearing or rehearing is not favored and ordinarily will not be

ordered unless:

(1) en banc consideration is necessary to secure or maintain uniformity of the

court’s decisions; or

(2) the proceeding involves a question of exceptional importance.

(b) Petition for Hearing or Rehearing En Banc. A party may petition for a

hearing or rehearing en banc.

(1) The petition must begin with a statement that either:

(A) the panel decision conflicts with a decision of the United States

Supreme Court or of the court to which the petition is addressed (with

citation to the conflicting case or cases) and consideration by the full court

is therefore necessary to secure and maintain uniformity of the court’s

decisions; or

(B) the proceeding involves one or more questions of exceptional

importance, each of which must be concisely stated; for example, a petition

may assert that a proceeding presents a question of exceptional importance

if it involves an issue on which the panel decision conflicts with the

authoritative decisions of other United States Courts of Appeals that have

addressed the issue.

(2) Except by the court’s permission:

(A) a petition for an en banc hearing or rehearing produced using a

computer must not exceed 3,900 words; and

(B) a handwritten or typewritten petition for an en banc hearing or

rehearing must not exceed 15 pages.

(3) For purposes of the limits in Rule 35(b)(2), if a party files both a petition

for panel rehearing and a petition for rehearing en banc, they are considered a

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single document even if they are filed separately, unless separate filing is

required by local rule.

appeal be heard initially en banc must be filed by the date when the appellee’s brief

is due. A petition for a rehearing en banc must be filed within the time prescribed

by Rule 40 for filing a petition for rehearing.

(d) Number of copies. The number of copies to be filed must be prescribed by

local rule and may be altered by order in a particular case.

(e) Response. No response may be filed to a petition for an en banc consideration

unless the court orders a response. The length limits in Rule 35(b)(2) apply to a

response.

(f) Call for a Vote. A vote need not be taken to determine whether the case will be

heard or reheard en banc unless a judge calls for a vote.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 25, 2005, eff. Dec. 1, 2005;

Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 27, 2020, eff. Dec. 1, 2020.)

10th Cir. R. 35

35.1 En banc consideration.

(A) Extraordinary procedure. A request for en banc consideration

is disfavored. Before seeking rehearing en banc litigants should

be aware and take account of the fact that, before any published

panel opinion issues, it is generally circulated to the full court and

every judge on the court is given an opportunity to comment. En

banc review is an extraordinary procedure intended to focus the

entire court on an issue of exceptional public importance or on a

panel decision that conflicts with a decision of the United States

Supreme Court or of this court.

(B) Petition not required. Filing a petition for rehearing or for

rehearing en banc is not required before filing a petition for

certiorari in the United States Supreme Court.

denial of an en banc petition or an en banc disposition.

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35.2 Request in petition for rehearing.

(A) Cover. The request for en banc consideration must appear on

the cover page and in the title of the document requesting

rehearing.

(B) Form of request. A copy of the opinion or order and judgment

that is the subject of a request for rehearing en banc must be

attached to every copy of the petition. See 10th Cir. R. 40.2. No

other attachments may be included unless the petition is

accompanied by a motion seeking permission which identifies

the attachments with particularity and the reason for their

inclusion.

35.3 Untimely request.

Untimely en banc requests will be transmitted to the full court only

upon express order of the hearing panel.

35.4 Hard copies.

Hard copies of petitions for en banc consideration are not required.

35.5 Who may vote; en banc panel.

A majority of the active judges who are not disqualified may order

rehearing en banc. The en banc panel consists of this court’s active

judges who are not disqualified and any senior judge who was a

member of the hearing panel, unless he or she elects not to sit.

35.6 Effect of rehearing en banc.

The grant of rehearing en banc vacates the judgment, stays the

mandate, and restores the case on the docket as a pending appeal.

The panel decision is not vacated unless the court so orders.

35.7 Matters not considered en banc.

The en banc court does not consider procedural and interim orders.

These include, but are not limited to, stay orders; injunctions pending

appeal; and denials of appointment of counsel, leave to appeal in

forma pauperis, and leave to appeal from a nonfinal order. En banc

requests from these rulings are referred to the judge or panel that

entered the order, in the same manner as a petition for rehearing.

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Fed. R. App. P. Rule 36. Entry of Judgment; Notice

(a) Entry. A judgment is entered when it is noted on the docket. The clerk must

prepare, sign, and enter the judgment:

(1) after receiving the court’s opinion-but if settlement of the judgment’s form

is required, after final settlement; or

(2) if a judgment is rendered without an opinion, as the court instructs.

(b) Notice. On the date when judgment is entered, the clerk must serve on all

parties a copy of the opinion—or the judgment, if no opinion was written—and a

notice of the date when the judgment was entered.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)

10th Cir. R. 36

36.1 Orders and judgments.

The court does not write opinions in every case. The court may

dispose of an appeal or petition without written opinion. Disposition

without opinion does not mean that the case is unimportant. It means

that the case does not require application of new points of law that

would make the decision a valuable precedent.

36.2 Publication.

When the opinion of the district court, an administrative agency, or the

Tax Court has been published, this court ordinarily designates its

disposition for publication.

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Fed. R. App. P. Rule 37. Interest on Judgment

(a) When the Court Affirms. Unless the law provides otherwise, if a money

judgment in a civil case is affirmed, whatever interest is allowed by law is payable

from the date when the district court’s judgment was entered.

(b) When the Court Reverses. If the court modifies or reverses a judgment with a

direction that a money judgment be entered in the district court, the mandate must

contain instructions about the allowance of interest.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

No local rule.

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Fed. R. App. P. Rule 38. Frivolous Appeal—Damages and Costs

If a court of appeals determines that an appeal is frivolous, it may, after a

separately filed motion or notice from the court and reasonable opportunity to

respond, award just damages and single or double costs to the appellee.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

No local rule.

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Fed. R. App. P. Rule 39. Costs

(a) Against Whom Assessed. The following rules apply unless the law provides or

the court orders otherwise:

(1) if an appeal is dismissed, costs are taxed against the appellant, unless the

parties agree otherwise;

(2) if a judgment is affirmed, costs are taxed against the appellant;

(3) if a judgment is reversed, costs are taxed against the appellee;

(4) if a judgment is affirmed in part, reversed in part, modified, or vacated,

costs are taxed only as the court orders.

(b) Costs For and Against the United States. Costs for or against the United

States, its agency, or officer will be assessed under Rule 39(a) only if authorized

by law.

rate for taxing the cost of producing necessary copies of a brief or appendix, or

copies of records authorized by Rule 30(f). The rate must not exceed that generally

charged for such work in the area where the clerk’s office is located and should

encourage economical methods of copying.

(d) Bill of Costs: Objections; Insertion in Mandate.

(1) A party who wants costs taxed must—within 14 days after entry of

judgment—file with the circuit clerk, and serve an itemized and verified bill of

costs.

(2) Objections must be filed within 14 days after service of the bill of costs,

unless the court extends the time.

(3) The clerk must prepare and certify an itemized statement of costs for

insertion in the mandate, but issuance of the mandate must not be delayed for

taxing costs. If the mandate issues before costs are finally determined, the

district clerk must—upon the circuit clerk’s request—add the statement of

costs, or any amendment of it, to the mandate.

(e) Costs on Appeal Taxable in the District Court. The following costs on

appeal are taxable in the district court for the benefit of the party entitled to costs

under this rule:

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(1) the preparation and transmission of the record;

(2) the reporter’s transcript, if needed to determine the appeal;

(3) premiums paid for a bond or other security to preserve rights pending

appeal; and

(4) the fee for filing the notice of appeal.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; May 7, 2009, eff. Dec. 1, 2009;

Apr. 26, 2018, eff. Dec. 1, 2018; Apr. 25, 2019, eff. Dec. 1, 2019.)

10th Cir. R. 39

39.1 Maximum rates.

Costs of making necessary copies of briefs, appendices, or other

records are taxable at the actual cost, but no more than 20 cents per

page.

39.2 Motion for attorneys’ fees.

(A) Time to file. Absent a statutory provision or court order to the

contrary, any motion requesting an award of appellate attorneys’

fees must be filed by the later of: (1) if no timely petition for panel

or en banc rehearing has been filed, 14 days after the time to file

expires; or (2) 14 days after the court disposes of all timely

petitions for rehearing or rehearing en banc.

(B) Contents. A motion requesting an award of attorneys’ fees must

set forth the legal basis for an award of appellate attorneys’ fees.

The motion need not contain an itemization of the tasks

undertaken or the fees requested, unless requested by the court.

motion for attorneys’ fees, the response must be filed within 14

days after the motion is served. The time to file a reply is

governed by Fed. R. App. P. 27(a)(4).

(D) Mandate. The court will not delay issuance of its mandate

pending determination of a motion for attorneys’ fees. If the court

grants a motion for attorneys’ fees after it issues the mandate,

the Clerk will supplement the mandate with the attorneys’ fee

award.

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Fed. R. App. P. Rule 40. Petition for Panel Rehearing

(a) Time to File; Contents; Response; Action by the Court if Granted.

(1) Time. Unless the time is shortened or extended by order or local rule, a

petition for panel rehearing may be filed within 14 days after entry of

judgment. But in a civil case, unless an order shortens or extends the time, the

petition may be filed by any party within 45 days after entry of judgment if one

of the parties is:

(A) the United States;

(B) a United States agency;

(D) a current or former United States officer or employee sued in an

individual capacity for an act or omission occurring in connection with

duties performed on the United States’ behalf—including all instances in

which the United States represents that person when the court of appeals’

judgment is entered or files the petition for that person.

(2) Contents. The petition must state with particularity each point of law or

fact that the petitioner believes the court has overlooked or misapprehended

and must argue in support of the petition. Oral argument is not permitted.

(3) Response. Unless the court requests, no response to a petition for panel

rehearing is permitted. Ordinarily, rehearing will not be granted in the absence

of such a request. If a response is requested, the requirements of Rule 40(b)

apply to the response.

(4) Action by the Court. If a petition for panel rehearing is granted, the court

may do any of the following:

(A) make a final disposition of the case without reargument;

(B) restore the case to the calendar for reargument or resubmission; or

(b) Form of Petition; Length. The petition must comply in form with Rule 32.

Copies must be served and filed as Rule 31 prescribes. Except by the court’s

permission:

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(1) a petition for panel rehearing produced using a computer must not exceed

3,900 words; and

(2) a handwritten or typewritten petition for panel rehearing must not exceed

15 pages.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 26, 2011, eff. Dec. 1, 2011;

Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 27, 2020, eff. Dec. 1, 2020.)

10th Cir. R. 40

40.1 Reasons for petition.

(A) Not routine. A petition for rehearing should not be filed routinely.

Rehearing will be granted only if a significant issue has been

overlooked or misconstrued by the court.

(B) Sanctions. If a petition for rehearing is found to be frivolous,

vexatious, or filed for delay, the court may impose a money

penalty of up to $500. Counsel may be required to pay the

penalty personally to the opposing party. See 28 U.S.C. § 1927.

40.2 Form; copies and attachments.

Hard copies of petitions for rehearing are not required.

If the petition for panel rehearing also seeks en banc review, a copy of

the opinion or order and judgment must be attached. No other

attachments may be included unless the petition is accompanied by a

motion seeking permission which identifies the attachments with

particularity and the reason for their inclusion.

For information regarding filing petitions for panel rehearing and

rehearing en banc, please see the CM/ECF User Manual at Section

III(K). See www.ca10.uscourts.gov.

40.3 Successive petitions.

The court will accept only one petition for rehearing from any party to

an appeal. No motion to reconsider the court’s ruling on a petition for

rehearing may be filed.

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Fed. R. App. P. Rule 41. Mandate: Contents; Issuance and Effective

Date; Stay

(a) Contents. Unless the court directs that a formal mandate issue, the mandate

consists of a certified copy of the judgment, a copy of the court’s opinion, if any,

and any direction about costs.

(b) When Issued. The court’s mandate must issue 7 days after the time to file a

petition for rehearing expires, or 7 days after entry of an order denying a timely

petition for panel rehearing, petition for rehearing en banc, or motion for stay of

mandate, whichever is later. The court may shorten or extend the time by order.

(d) Staying the Mandate Pending a Petition for Certiorari.

(1) Motion to Stay. A party may move to stay the mandate pending the filing

of a petition for a writ of certiorari in the Supreme Court. The motion must be

served on all parties and must show that the petition would present a

substantial question and that there is good cause for a stay.

(2) Duration of Stay; Extensions. The stay must not exceed 90 days, unless:

(A) the period is extended for good cause; or

(B) the party who obtained the stay notifies the circuit clerk in writing

within the period of the stay:

(i) that the time for filing a petition has been extended, in which case

the stay continues for the extended period; or

(ii) that the petition has been filed, in which case the stay continues

until the Supreme Court’s final disposition.

(3) Security. The court may require a bond or other security as a condition to

granting or continuing a stay of the mandate.

(4) Issuance of Mandate. The court of appeals must issue the mandate

immediately on receiving a copy of a Supreme Court order denying the

petition, unless extraordinary circumstances exist.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002;

May 7, 2009, eff. Dec. 1, 2009; Apr. 26, 2018, eff. Dec. 1, 2018.)

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10th Cir. R. 41

41.1 Stay not routinely granted.

(A) Criminal cases. To minimize delay in the administration of

justice, after the affirmance of a conviction the mandate will issue

and bail will be revoked. A motion to stay the mandate will not be

granted unless the court finds that it is not frivolous or filed

merely for delay. The court—or a judge of the hearing panel—

may revoke bail before the mandate is issued. See 18 U.S.C.

§ 3141(b).

(B) Civil cases. A motion to stay the mandate in a civil case will not

be granted unless the court finds there is a substantial possibility

that a petition for writ of certiorari would be granted.

41.2 Motion to recall mandate.

When a motion to recall the mandate is tendered for filing more than

one year after issuance of the mandate, the Clerk shall not accept the

motion for filing unless the motion states with specificity why it was not

filed sooner. The court will not grant the request unless the movant has

established good cause for the delay in filing the motion.

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Fed. R. App. P. Rule 42. Voluntary Dismissal

(a) Dismissal in the District Court. Before an appeal has been docketed by the

circuit clerk, the district court may dismiss the appeal on the filing of a stipulation

signed by all parties or on the appellant’s motion with notice to all parties.

(b) Dismissal in the Court of Appeals. The circuit clerk may dismiss a docketed

appeal if the parties file a signed dismissal agreement specifying how costs are to

be paid and pay any fees that are due. But no mandate or other process may issue

without a court order. An appeal may be dismissed on the appellant’s motion on

terms agreed to by the parties or fixed by the court.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

10th Cir. R. 42

42.1 Dismissal for failure to prosecute.

When an appellant fails to comply with the Federal Rules of Appellate

Procedure or these rules, the Clerk will notify the appellant that the

appeal may be dismissed for failure to prosecute unless the failure to

comply is remedied within a designated time. If the appellant fails to

comply within that time, the Clerk will enter an order dismissing the

appeal and issue a copy of the order as the mandate. The appellant

may not remedy the failure to comply after the appeal is dismissed,

unless the court orders otherwise.

42.2 Reinstatement.

A motion to reinstate an appeal dismissed for failure to prosecute may

not be filed unless the failure is remedied or the remedy for the failure

accompanies the motion.

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Fed. R. App. P. Rule 43. Substitution of Parties

(a) Death of a Party.

(1) After Notice of Appeal Is Filed. If a party dies after a notice of appeal has

been filed or while a proceeding is pending in the court of appeals, the

decedent’s personal representative may be substituted as a party on motion

filed with the circuit clerk by the representative or by any party. A party’s

motion must be served on the representative in accordance with Rule 25. If the

decedent has no representative, any party may suggest the death on the record,

and the court of appeals may then direct appropriate proceedings.

(2) Before Notice of Appeal Is Filed—Potential Appellant. If a party entitled

to appeal dies before filing a notice of appeal, the decedent’s personal

representative—or, if there is no personal representative, the decedent’s

attorney of record—may file a notice of appeal within the time prescribed by

these rules. After the notice of appeal is filed, substitution must be in

accordance with Rule 43(a)(1).

(3) Before Notice of Appeal Is Filed—Potential Appellee. If a party against

whom an appeal may be taken dies after entry of a judgment or order in the

district court, but before a notice of appeal is filed, an appellant may proceed as

if the death had not occurred. After the notice of appeal is filed, substitution

must be in accordance with Rule 43(a)(1).

(b) Substitution for a Reason Other Than Death. If a party needs to be

substituted for any reason other than death, the procedure prescribed in Rule 43(a)

applies.

(1) Identification of Party. A public officer who is a party to an appeal or

other proceeding in an official capacity may be described as a party by the

public officer’s official title rather than by name. But the court may require the

public officer’s name to be added.

(2) Automatic Substitution of Officeholder. When a public officer who is a

party to an appeal or other proceeding in an official capacity dies, resigns, or

otherwise ceases to hold office, the action does not abate. The public officer’s

successor is automatically substituted as a party. Proceedings following the

substitution are to be in the name of the substituted party, but any misnomer

that does not affect the substantial rights of the parties may be disregarded. An

134

order of substitution may be entered at any time, but failure to enter an order

does not affect the substitution.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

No local rule.

135

Fed. R. App. P. Rule 44. Case Involving a Constitutional Question

When the United States or the Relevant State Is Not a Party

(a) Constitutional Challenge to Federal Statute. If a party questions the

constitutionality of an Act of Congress in a proceeding in which the United States

or its agency, officer, or employee is not a party in an official capacity, the

questioning party must give written notice to the circuit clerk immediately upon

the filing of the record or as soon as the question is raised in the court of appeals.

The clerk must then certify that fact to the Attorney General.

(b) Constitutional Challenge to State Statute. If a party questions the

constitutionality of a statute of a State in a proceeding in which that State or its

agency, officer, or employee is not a party in an official capacity, the questioning

party must give written notice to the circuit clerk immediately upon the filing of

the record or as soon as the question is raised in the court of appeals. The clerk

must then certify that fact to the attorney general of the State.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)

No local rule.

136

Fed. R. App. P. Rule 45. Clerk’s Duties

(a) General Provisions.

(1) Qualifications. The circuit clerk must take the oath and post any bond

required by law. Neither the clerk nor any deputy clerk may practice as an

attorney or counselor in any court while in office.

(2) When Court is Open. The court of appeals is always open for filing any

paper, issuing and returning process, making a motion, and entering an order.

The clerk’s office with the clerk or a deputy in attendance must be open during

business hours on all days except Saturdays, Sundays, and legal holidays. A

court may provide by local rule or by order that the clerk’s office be open for

specified hours on Saturdays or on legal holidays other than New Year’s Day,

Martin Luther King, Jr.’s Birthday, Washington’s Birthday, Memorial Day,

Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving

Day, and Christmas Day.

(b) Records.

(1) The Docket. The circuit clerk must maintain a docket and an index of all

docketed cases in the manner prescribed by the Director of the Administrative

Office of the United States Courts. The clerk must record all papers filed with

the clerk and all process, orders, and judgments.

(2) Calendar. Under the court’s direction, the clerk must prepare a calendar of

cases awaiting argument. In placing cases on the calendar for argument, the

clerk must give preference to appeals in criminal cases and to other

proceedings and appeals entitled to preference by law.

(3) Other Records. The clerk must keep other books and records required by

the Director of the Administrative Office of the United States Courts, with the

approval of the Judicial Conference of the United States, or by the court.

circuit clerk must immediately serve a notice of entry on each party, with a copy of

any opinion, and must note the date of service on the docket. Service on a party

represented by counsel must be made on counsel.

(d) Custody of Records and Papers. The circuit clerk has custody of the court’s

records and papers. Unless the court orders or instructs otherwise, the clerk must

not permit an original record or paper to be taken from the clerk’s office. Upon

137

disposition of the case, original papers constituting the record on appeal or review

must be returned to the court or agency from which they were received. The clerk

must preserve a copy of any brief, appendix, or other paper that has been filed.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002;

Apr. 25, 2005, eff. Dec. 1, 2005.)

10th Cir. R. 45

45.1 Duties.

(A) Funds. The Clerk must account for all court funds.

(B) Court sessions. The Clerk or a deputy must attend court

sessions.

45.2 Chief deputy clerk.

In the absence of the Clerk, the chief deputy clerk is acting clerk.

45.3 Office location.

The clerk’s office is in the Byron White United States Courthouse, 1823

Stout Street, Denver, Colorado 80257. The telephone number is (303)

844-3157. The clerk’s office email address is

[email protected]s.gov. The court’s website can be found at

www.ca10.uscourts.gov.

138

Fed. R. App. P. Rule 46. Attorneys

(a) Admission to the Bar.

(1) Eligibility. An attorney is eligible for admission to the bar of a court of

appeals if that attorney is of good moral and professional character and is

admitted to practice before the Supreme Court of the United States, the highest

court of a state, another United States court of appeals, or a United States

district court (including the district courts for Guam, the Northern Mariana

Islands, and the Virgin Islands).

(2) Application. An applicant must file an application for admission, on a form

approved by the court that contains the applicant’s personal statement showing

eligibility for membership. The applicant must subscribe to the following oath

or affirmation:

“I, ___________________ , do solemnly swear [or affirm] that I will

conduct myself as an attorney and counselor of this court, uprightly and

according to law; and that I will support the Constitution of the United

States.”

(3) Admission Procedures. On written or oral motion of a member of the

court’s bar, the court will act on the application. An applicant may be admitted

by oral motion in open court. But, unless the court orders otherwise, an

applicant need not appear before the court to be admitted. Upon admission, an

applicant must pay the clerk the fee prescribed by local rule or court order.

(b) Suspension or Disbarment.

(1) Standard. A member of the court’s bar is subject to suspension or

disbarment by the court if the member:

(A) has been suspended or disbarred from practice in any other court; or

(B) is guilty of conduct unbecoming a member of the court’s bar.

(2) Procedure. The member must be given an opportunity to show good cause,

within the time prescribed by the court, why the member should not be

suspended or disbarred.

139

(3) Order. The court must enter an appropriate order after the member

responds and a hearing is held, if requested, or after the time prescribed for a

response expires, if no response is made.

it for conduct unbecoming a member of the bar or for failure to comply with any

court rule. First, however, the court must afford the attorney reasonable notice, an

opportunity to show cause to the contrary, and, if requested, a hearing.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

10th Cir. R. 46

46.1 Entry of appearance.

(A) Attorneys. Within 14 days after an appeal or other proceeding is

filed, counsel for the parties must file written appearances in a

form approved by the court (see 10th Cir. Form 2). Other

attorneys whose names subsequently appear on filed papers

must also file written appearances.

While the court requires a separate, formal entry of appearance

from all attorneys in the appeal or other proceeding, counsel

should also note that attorneys who authorize their names to

appear on filed papers have technically entered an appearance

and are therefore responsible for the contents of such papers,

and also for following all court rules and requirements. Attorneys

who appear in a case in this court may not withdraw absent entry

of a court order allowing them to do so.

(B) Pro se. A party appearing without counsel may notify the Clerk

in writing of that status by filing an entry of appearance on a form

approved by the court (see 10th Cir. Form 3).

information current. Once an appearance has been entered,

the Clerk must be notified of any subsequent change in address.

This requirement applies to changes in both street addresses

and changes made to email addresses. Registered attorneys are

required to keep their email addresses current and may update

ECF registration with the PACER Service Center. See

www.pacer.psc.uscourts.gov.

140

(D) Certification of interested parties.

(1) Certificate. Each entry of appearance must be

accompanied by a certificate listing the names of all

interested parties not in the caption of the notice of appeal

so that the judges may evaluate possible disqualification or

recusal.

(2) List. The certificate must list all persons, associations,

firms, partnerships, corporations, guarantors, insurers,

affiliates, and other legal entities that are financially

interested in the outcome of the litigation. For corporations,

see Fed. R. App. P. 26.1.

(3) Generic description. An individual listing is not necessary

if a large group of persons or firms can be identified by a

generic description.

(4) Attorneys. Attorneys not entering an appearance in this

court must be listed if they have appeared for any party in

a proceeding sought to be reviewed, or in related

proceedings that preceded the original action being

pursued in this court.

(5) No additional parties. If there are no additional parties,

entities, or attorneys in any of these categories not

previously reported to the court, a report to that effect also

is required.

(6) Obligation to amend. The certificate must be kept

current.

46.2 Admission to Tenth Circuit bar.

(A) Prerequisite to practice. Upon filing a case or entering an

appearance in this court, an attorney who is not admitted to the

Tenth Circuit bar must apply for admission. Forms (as well as

other information) are available on the court’s website at

www.ca10.uscourts.gov.

(B) Method of admission and fees. Federal Rule of Appellate

Procedure 46 applies to admission to the Tenth Circuit bar. The

amount of the admission fee will be set by the court and is

payable to the Clerk as trustee. The admission fee is waived for

any attorney representing the United States or a federal agency

or for any attorney appointed by the court to represent a party on

appeal. Per the court’s Plan For Attorney Disciplinary

141

Enforcement, any lawyer disbarred from practice before the

Circuit will be required to pay the fee prior to being readmitted.

account known as the “Attorney Admission Fund.” The Clerk will

disburse money from this account as the chief judge or a

delegated judicial committee directs to defray expenses of the

annual judicial conference and support other activities and

purchases that will benefit the bench and the bar. The Clerk

must account to the court annually for the trust funds.

46.3 Responsibilities in criminal and postconviction cases.

(A) Prosecution of appeal. Trial counsel must continue to represent

the defendant until either the time for appeal has elapsed and no

appeal has been taken or this court has relieved counsel of that

duty. An attorney who files a notice of appeal in a criminal case

or a postconviction proceeding under 28 U.S.C. § 2241, § 2254

or § 2255, or who has not obtained an order from the district

court granting permission to withdraw from further representation

prior to the filing of a pro se notice of appeal, has entered an

appearance in this court and may not withdraw without the

court’s permission. Before filing a proper motion to withdraw

under 10th Cir. R. 46.4 counsel must file, at a minimum, an entry

of appearance and docketing statement.

(B) Additional Motion Requirement. All counsel appearing in this

court pursuant to an appointment made originally under the

Criminal Justice Act must file a motion, within 14 days of case

opening, seeking either a continued appointment for the appeal

or permission to withdraw.

(1) All motions to withdraw must comply with 10th Cir. R.

46.4(A).

(2) All motions to continue the appointment on appeal must

include:

(a) a statement regarding whether the attorney is

currently, or was previously, a member of the Tenth

Circuit Criminal Justice Act appellate panel; and

(b) a statement regarding why the continuation is

sought and the benefit to the appeal by virtue of a

continued appointment.

(3) In counsel’s discretion, motions to continue may be filed ex

parte and/or under seal.

142

(4) Consistent with the provisions of Rule 46.3(A), this

requirement applies equally if the defendant files a pro se

notice of appeal.

appeal or an appeal in a postconviction proceeding must contain

a statement, signed by the appellant, demonstrating knowledge

of the right to appeal and expressly electing to withdraw the

appeal. If the statement is not included, counsel must show that

exceptional circumstances prevented its inclusion. Proof of

service must include service on the appellant him or herself.

46.4 Withdrawal.

(A) Motion requirements. Every motion to withdraw in a criminal

appeal or in an appeal in a postconviction proceeding must

include:

(1) the reasons for withdrawal;

(2) one of the following:

(a) a showing that new counsel has been retained or

the client already has other counsel of record in the

appeal;

(b) a showing that: (i) the client has been granted leave

to proceed on appeal without prepayment of fees or

has been found eligible for benefits under 18 U.S.C.

§ 3006A; and (ii) the client desires the appointment

of counsel;

under 18 U.S.C. § 3006A, a statement that counsel

has advised the client to obtain other counsel

promptly;

(d) if the client intends to proceed pro se: (i) a signed

statement from the client demonstrating knowledge

of the right to retain new counsel or apply for

appointment of counsel and expressly electing to

appear without counsel; and (ii) a statement from

counsel that he or she has advised the client of the

right to representation, if any, and of any pending

obligations under the Federal Rules of Appellate

Procedure or this court’s local rules; or

143

(e) a showing that exceptional circumstances prevent

counsel from meeting any of the other requirements

of this subsection; and

(3) proof of service on the client and on all opposing parties.

(B) Frivolous appeals.

(1) Duty of counsel. In a direct criminal appeal, counsel who

believes the appeal is frivolous and moves to withdraw or

who believes opposition to a motion to dismiss would be

frivolous must file an Anders brief and advise the court of

the defendant’s current address. See Anders v. California,

386 U.S. 738 (1967). If the defendant is a non-English

speaker, the motion to withdraw must state counsel has

made “reasonable efforts to contact the defendant in

person or by telephone, with the aid of an interpreter if

necessary, to explain to the defendant the substance of

counsel’s Anders brief, the defendant’s right to oppose it,

and the likelihood that the brief could result in dismissal of

the appeal.” United States v. Cervantes, 795 F.3d 1189,

1190 (10th Cir. 2015) (internal quotation and ellipses

omitted). Written notice in a language understood by the

defendant will also satisfy this duty. Id. The motion

required by 10th Cir. R. 46.3(B) is separate from any

motion filed later, in connection with the filing of the Anders

brief. That is, the requirement set forth in Rule 46.3(B) is

distinct from any motion later filed under Anders.

(2) Notice to defendant. Except as provided in (3), the Clerk

will send the defendant by certified mail, return receipt

requested, a copy of the Anders brief, the motion to

withdraw, and a letter in the form set out in 10th Cir.

Form 4.

(3) Incompetent defendant. If the defendant has been found

incompetent or there is reason to believe that the

defendant is incompetent, the motion to withdraw must so

state, and the matter will be referred to the court for

appropriate action.

for any party files a motion to withdraw after the mandate has

issued, the court will treat the motion as a notice of withdrawal.

This rule applies in civil cases only and does not apply in

postconviction proceedings filed under 28 U.S.C. § 2254 or

§ 2255.

144

46.5 Signing briefs, motions, and other papers; representations to

court; sanctions.

(A) Signature. Every brief, motion, or other paper must be signed by

at least one attorney of record—or, in a pro se case, by the party

personally. The paper must state the signer’s mailing address,

email address, and telephone number. Unless a rule or statute

provides otherwise, a paper need not be verified or accompanied

by an affidavit.

(B) Representations to court. By presenting to the court—whether

by signing (electronically or through an original signature), filing,

submitting, or later advocating—a brief, motion, or other paper,

an attorney or unrepresented party certifies that, to the best of

the person’s knowledge, information, and belief, formed after an

inquiry reasonable under the circumstances:

(1) the paper is not being presented for any improper purpose,

such as to harass or to cause unnecessary delay or

expense in the litigation;

(2) the issues presented are warranted by existing law or by a

nonfrivolous argument for extending, modifying, or

reversing existing law or establishing new law; and

(3) the factual contentions or denials are supported in the

record.

of this rule, the court—on its own or on a party’s motion—may

impose upon the person who signed it, a represented party, or

both, an appropriate sanction, including:

(1) dismissal or affirmance of the appeal;

(2) monetary sanctions;

(3) initiation of disciplinary proceedings under the Plan for

Attorney Disciplinary Enforcement; and

(4) an order to pay the other party or parties the amount of the

reasonable expenses incurred because of the filing of the

paper, including reasonable attorney’s fees.

46.6 Discipline of counsel or parties.

(A) Sanctions for increasing cost of litigation. After giving notice

and an opportunity to respond, this court may impose sanctions

145

against parties and attorneys who unreasonably increase the

cost of litigation. Examples of unreasonable cost increases

include, but are not limited to, putting unnecessary material in

records, briefs, appendices, addenda, and other papers.

(B) Court-appointed counsel. If court-appointed counsel for an

appellant fails to comply with the Federal Rules of Appellate

Procedure or with these rules, the Clerk may issue an order

requiring counsel to show cause why disciplinary action should

not be taken. Action by the court may include monetary

sanctions.

take disciplinary action against attorneys for inadequate

representation on appeal, which includes but is not limited to

failing to follow the rules and directives of the court.

46.7 Student practice.

(A) Appearance by law students.

(1) Consent of party. An eligible law student may enter an

appearance in the court on behalf of a party if the party has

filed a statement of consent.

(2) Agreement of supervising attorney. A member of the

Tenth Circuit bar must file an agreement to supervise the

student. The agreement must contain:

(a) a certification by the supervising attorney that the

student has satisfied the requirements of (C); and

(b) a copy of the law school certification required by

(C)(3).

(B) Student participation.

(1) Briefs. A law student who has entered an appearance in a

case under (A) may appear on a brief if the supervising

attorney also appears on the brief.

(2) Oral argument. An eligible student may participate in oral

argument if the supervising attorney is present in court.

(3) Other. The student may take part in other activities in

connection with the case, subject to the direction of the

supervising attorney.

146

this rule, the law student must provide a letter as described in

Rule 46.7(D) or otherwise document that he or she:

(1) is enrolled and in good standing in a law school accredited

by the American Bar Association; or is a recent law school

graduate awaiting the first bar examination after the

student’s graduation or the result of that examination;

(2) has completed the equivalent of 4 semesters of legal

studies;

(3) is certified to be of good character and competent legal

ability, and is qualified to provide the legal representation

permitted by this rule, by either the law school’s dean or a

faculty member designated by the dean; and

(4) is familiar with the Federal Rules of Civil, Criminal, and

Appellate Procedure, the Federal Rules of Evidence, the

American Bar Association Code of Professional

Responsibility, and the rules of this court.

(D) Dean’s letter. A letter from the law school’s dean or the

designated faculty member describing the student’s

qualifications under (C) may demonstrate eligibility.

(E) Supervising attorney. An attorney who supervises an eligible

law student under this rule must:

(1) be a member in good standing of the Tenth Circuit bar;

(2) assume personal professional responsibility for the quality

of the student’s work;

(3) guide and assist the student as necessary or appropriate

under the circumstances;

(4) sign all documents filed with the court (the student may

also sign documents, but the attorney’s signature is

required);

(5) appear with the student in any oral presentations before

the court;

(6) file a written agreement to supervise the student; and

147

(7) supplement any written or oral statement made by the

student to this court or opposing counsel if the court so

requests.

148

Fed. R. App. P. Rule 47. Local Rules by Courts of Appeals

(a) Local Rules.

(1) Each court of appeals acting by a majority of its judges in regular active

service may, after giving appropriate public notice and opportunity for

comment, make and amend rules governing its practice. A generally applicable

direction to parties or lawyers regarding practice before a court must be in a

local rule rather than an internal operating procedure or standing order. A local

rule must be consistent with—but not duplicative of —Acts of Congress and

rules adopted under 28 U.S.C. § 2072 and must conform to any uniform

numbering system prescribed by the Judicial Conference of the United States.

Each circuit clerk must send the Administrative Office of the United States

Courts a copy of each local rule and internal operating procedure when it is

promulgated or amended.

(2) A local rule imposing a requirement of form must not be enforced in a

manner that causes a party to lose rights because of a nonwillful failure to

comply with the requirement.

(b) Procedure When There Is No Controlling Law. A court of appeals may

regulate practice in a particular case in any manner consistent with federal law,

these rules, and local rules of the circuit. No sanction or other disadvantage may be

imposed for noncompliance with any requirement not in federal law, federal rules,

or the local circuit rules unless the alleged violator has been furnished in the

particular case with actual notice of the requirement.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

10th Cir. R. 47

47.1 Advisory committee.

As required by 28 U.S.C. § 2077(b), there is an advisory committee on

procedures for the court of appeals.

(A) Membership. The committee consists of ten members: one

circuit judge, one district judge, one United States attorney or

assistant United States attorney, one federal public defender or

assistant federal public defender, and one actively practicing

member of the Tenth Circuit bar from each of the six states in the

circuit. The committee may appoint ad hoc committees

149

consisting of persons who are not members of the advisory

committee.

(B) Selection of members; organization.

(1) Circuit judge. The circuit judge member is the chief judge

of the circuit or a circuit judge designated by the chief

judge. This member serves as chair.

(2) District judge; United States attorney; federal public

defender. The district judge member and representatives

of the United States attorneys’ offices and federal public

defenders’ offices are selected by their respective

associations within the circuit.

(3) Bar members. The members of the bar are selected by

the circuit judges residing in each respective state.

Candidates must have substantial and active federal

practices.

(4) Terms. Members serve 3 year terms, with a third of the

terms expiring each year. Terms begin on April 1. No

member, except the chief judge or a designee, may serve

successive terms. But a person selected to fill an

unexpired term may serve a successive term.

(5) Reporter; secretary. The chief staff counsel serves as

reporter; the circuit executive, or a designee, serves as

secretary.

may meet and act in person, by telephone, or through other

electronic means.

(D) Duties. The committee advises the court about its operating

procedures and rules. Among other things, the committee may:

(1) provide a forum for continuous study of the operating

procedures and published rules of the court;

(2) serve as a liaison between the bar, the public, and the

court on procedural matters and suggestions for changes;

(3) consider and recommend amendments to the rules for

adoption by the court;

(4) make suggestions for and assist with programs at the

circuit judicial conference; and

150

(5) make any other studies, reports, and recommendations

that the court requests or that the committee determines

are appropriate.

47.2 Circuit library.

The circuit’s central library and most satellite law libraries are open to

all members of the Tenth Circuit bar. Books and materials may not be

removed without the librarian’s permission.

47.3 Judicial conference.

(A) Authorization. As permitted by 28 U.S.C. § 333, a judicial

conference will be convened every other year, at a time and

place designated by the chief judge, or at another court-

determined interval that the law permits. In alternate years, the

circuit may hold a conference for judges only.

(B) Purpose. The conference will consider the business of the

circuit’s federal courts and devise ways of improving the

administration of justice within the circuit.

as secretary of the conference, is responsible for all records and

accounts of the conference, and may perform other conference

duties as the chief judge or circuit judicial council may require.

(D) Agenda. During judicial conferences, all judges of the Tenth

Circuit will meet to discuss the dockets and the administration of

justice in the circuit’s judicial districts. The chief judge of each

district will report on the condition of judicial business in that

district and make recommendations about judicial business. In

those years in which an open conference is held, all general

meetings are open to attorney attendees and are devoted to

improving the administration of justice in the Tenth Circuit.

(E) Registration fee. A registration fee, set by the judicial council,

will be collected from each attorney attendee of the conference.

The money collected must be used as directed by the chief judge

to defray the expense of the conference. The circuit executive

must maintain a judicial conference bank account and keep a

record of all receipts and disbursements. During the year after

each conference, the circuit executive must make a fiscal report

to the judicial council.

151

Fed. R. App. P. Rule 48. Masters

(a) Appointment; Powers. A court of appeals may appoint a special master to

hold hearings, if necessary, and to recommend factual findings and disposition in

matters ancillary to proceedings in the court. Unless the order referring a matter to

a master specifies or limits the master’s powers, those powers include, but are not

limited to, the following:

(1) regulating all aspects of a hearing;

(2) taking all appropriate action for the efficient performance of the master’s

duties under the order;

(3) requiring the production of evidence on all matters embraced in the

reference; and

(4) administering oaths and examining witnesses and parties.

(b) Compensation. If the master is not a judge or court employee, the court must

determine the master’s compensation and whether the cost is to be charged to any

party.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

No local rule.

152

APPENDIX

Length Limits Stated in the Federal Rules of Appellate Procedure

This chart summarizes the length limits stated in the Federal Rules of Appellate

Procedure. Please refer to the rules for precise requirements, and bear in mind the

following:

• In computing these limits, you can exclude the items listed in Rule 32(f).

• If you use a word limit or a line limit (other than the word limit in Rule

28(j)), you must file the certificate required by Rule 32(g).

• For the limits in Rules 5, 21, 27, 35, and 40:

- You must use the word limit if you produce your document on a

computer; and

- You must use the page limit if you handwrite your document or type it on

a typewriter.

• For the limits in Rules 28.1, 29(a)(5), and 32:

- You may use the word limit or page limit, regardless of how you produce

the document; or

- You may use the line limit if you type or print your document with a

monospaced typeface. A typeface is monospaced when each character

occupies the same amount of horizontal space.

153

Rule

Document Type

Word limit

Page limit

Line limit

Permission to

Appeal

5(c)

• Petition for

permission to appeal

5,200

Not applicable

• Answer in opposition

• Cross-petition

Extraordinary

writs

21(d)

• Petition for writ of

mandamus or

prohibition or other

extraordinary writ

7,800

Not applicable

• Answer

Motions

27(d)(2)

• Motion

5,200

Not applicable

• Response to a motion

• Reply to a response

to a motion

2,600

Parties’ briefs

(where no

cross-appeal)

32(a)(7)

• Principal brief

13,000

1,300

• Reply brief

6,500

650

Parties’ briefs

(where cross-

appeal)

28.1(e)

• Appellant’s principal

brief

13,000

1,300

• Appellant’s response

and reply brief

13,000

1,300

• Appellee’s principal

and response brief

15,300

1,500

• Appellee’s reply brief

6,500

650

Party’s

supplemental

letter

28(j)

• Letter citing

supplemental

authorities

350

Not applicable

Amicus briefs

29(a)(5)

• Amicus brief during

initial consideration

of case on merits

One-half the

length set by

the Appellate

Rules for a

party’s

principal brief

One-half the

length set by

the Appellate

Rules for a

party’s

principal brief

One-half the

length set by

the Appellate

Rules for a

party’s

principal brief

154

29(b)(4)

• Amicus brief during

consideration of

whether to grant

rehearing

2,600

Not applicable

Rehearing and

en banc filings

35(b)(2)

& 40(b)

• Petition for hearing

en banc

3,900

Not applicable

• Petition for panel

rehearing; petition for

rehearing en banc

155

Federal Rules of Appellate Procedure

FORMS

Form 1A. Notice of Appeal to a Court of Appeals From a Judgment of a

District Court

UNITED STATES DISTRICT COURT

for the

<__________________> DISTRICT OF <__________________>

<Name(s) of plaintiff(s)>,

Plaintiff(s)

<Name(s) of defendant(s)>,

Defendant(s)

)

Case No. <Number>

NOTICE OF APPEAL

<Name all parties taking the appeal> appeal to the United States Court of Appeals for the

<_________> Circuit from the final judgment entered on <Date the judgment was entered>.

Date: <Date>

________________________________________

Attorney for <party>

<E-mail address>

[Note to inmate filers: If you are an inmate confined in an institution and you seek the timing benefit of

Fed. R. App. P. 4(c)(1), complete Form 7 (Declaration of Inmate Filing) and file that declaration with

this Notice of Appeal.]

See Fed. R. App. P. 3(c) for permissible ways of identifying appellants.

(As amended Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff. Dec. 1, 2003; Apr. 28, 2016, eff. Dec.1,

2016; Apr. 14, 2021, eff. Dec. 1, 2021.)

156

Form 1B. Notice of Appeal to a Court of Appeals From an Appealable Order

of a District Court

UNITED STATES DISTRICT COURT

for the

<__________________> DISTRICT OF <__________________>

<Name(s) of plaintiff(s)>,

Plaintiff(s)

<Name(s) of defendant(s)>,

Defendant(s)

)

Case No. <Number>

NOTICE OF APPEAL

<Name all parties taking the appeal> appeal to the United States Court of Appeals for the

<_________> Circuit from the order <describe the order>] entered on <Date the order was entered>.

Date: <Date>

________________________________________

Attorney for <party>

<E-mail address>

[Note to inmate filers: If you are an inmate confined in an institution and you seek the timing benefit of

Fed. R. App. P. 4(c)(1), complete Form 7 (Declaration of Inmate Filing) and file that declaration with

this Notice of Appeal.]

See Fed. R. App. P. 3(c) for permissible ways of identifying appellants.

(As amended Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff. Dec. 1, 2003; Apr. 28, 2016, eff. Dec.1,

2016; Apr. 14, 2021, eff. Dec. 1, 2021.)

157

Form 2. Notice of Appeal to a Court of Appeals From a Decision of the United

States Tax Court

UNITED STATES TAX COURT

Washington, DC

<Name of petitioner>,

Petitioner

Commissioner of Internal Revenue,

Respondent

)

Docket No. <Number>

NOTICE OF APPEAL

<Name all parties taking the appeal>, appeal to the United States Court of Appeals for

the <_________> Circuit from the decision entered on <Date> .

Date: <Date>

<Signature of the attorney or unrepresented

party>

________________________________________

<E-mail address>

See Fed. R. App. P. 3(c) for permissible ways of identifying appellants.

(As amended Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff. Dec. 1, 2003; Apr. 28, 2016,

eff. Dec.1, 2016; Apr. 14, 2021, eff. Dec. 1, 2021.)

158

Form 3. Petition for Review of Order of an Agency, Board, Commission or

Officer

United States Court of Appeals

for the

<__________________> CIRCUIT

<Name of petitioner>,

Petitioner

<XYZ Commission>,

Respondent

)

PETITION FOR REVIEW

<Here name all parties bringing the petition> hereby petition the court for review of the

Order of the <XYZ Commission> <describe the order> entered on <Date>.

Date: <Date>

<Signature of the attorney or unrepresented

party>

________________________________________

<E-mail address>

See Fed. R. App. P. 15.

(As amended Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff. Dec. 1, 2003.)

159

Form 4. Affidavit to Accompany Motion for Leave to Appeal in Forma

Pauperis

UNITED STATES DISTRICT COURT

for the

<__________________> DISTRICT OF <__________________>

<Name(s) of plaintiff(s)>,

Plaintiff(s)

<Name(s) of defendant(s)>,

Defendant(s)

)

Case No. <Number>

AFFIDAVIT ACCOMPANYING MOTION

FOR PERMISSION TO APPEAL IN FORMA PAUPERIS

Affidavit in Support of Motion

I swear or affirm under penalty of perjury that,

because of my poverty, I cannot prepay the

docket fees of my appeal or post a bond for

them. I believe I am entitled to redress. I swear

or affirm under penalty of perjury under United

States laws that my answers on this form are

true and correct. (28 U.S.C. § 1746; 18 U.S.C.

§ 1621.)

Signed: _____________________________

Instructions

Complete all questions in this application and

then sign it. Do not leave any blanks: if the

answer to a question is “0,” “none,” or “not

applicable (N/A),” write that response. If you

need more space to answer a question or to

explain your answer, attach a separate sheet of

paper identified with your name, your case's

docket number, and the question number.

Date: _____________________________

160

My issues on appeal are:

1. For both you and your spouse estimate the average amount of money received from each

of the following sources during the past 12 months. Adjust any amount that was received

weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use

gross amounts, that is, amounts before any deductions for taxes or otherwise.

Income source Average monthly

amount during the past

12 months

Amount expected next

month

You Spouse You Spouse

Employment $ $ $ $

Self-employment $ $ $ $

Income from real property (such as

rental income)

$ $ $ $

Interest and dividends $ $ $ $

Gifts $ $ $ $

Alimony $ $ $ $

Child support $ $ $ $

Retirement (such as social security,

pensions, annuities, insurance)

$ $ $ $

Disability (such as social security,

insurance payments)

$ $ $ $

Unemployment payments $ $ $ $

Public-assistance (such as welfare) $ $ $ $

Other (specify):

$ $ $ $

Total monthly income:

$ $ $ $

161

2. List your employment history for the past two years, most recent employer first. (Gross

monthly pay is before taxes or other deductions.)

Employer Address Dates of employment

Gross

monthly pay

3. List your spouse’s employment history for the past two years, most recent employer first.

(Gross monthly pay is before taxes or other deductions.)

Employer Address Dates of employment

Gross

monthly pay

4. How much cash do you and your spouse have? $________

Below, state any money you or your spouse have in bank accounts or in any other

financial institution.

Financial Institution Type of Account Amount you have

Amount your

spouse has

$ $

If you are a prisoner seeking to appeal a judgment in a civil action or proceeding, you must

attach a statement certified by the appropriate institutional officer showing all receipts,

expenditures, and balances during the last six months in your institutional accounts. If you

have multiple accounts, perhaps because you have been in multiple institutions, attach one

certified statement of each account.

162

5. List the assets, and their values, which you own or your spouse owns. Do not list clothing

and ordinary household furnishings.

Home Other real estate Motor vehicle #1

(Value) $ (Value) $ (Value) $

Make and year:

Model:

Registration #:

Motor vehicle #2 Other assets Other assets

(Value) $ (Value) $ (Value) $

Make and year:

Model:

Registration #:

6. State every person, business, or organization owing you or your spouse money, and the

amount owed.

Person owing you or your spouse

money

Amount owed to you

Amount owed to your

spouse

$ $

7. State the persons who rely on you or your spouse for support.

Name [or, if under 18, initials only] Relationship Age

163

8. Estimate the average monthly expenses of you and your family. Show separately the

amounts paid by your spouse. Adjust any payments that are made weekly, biweekly,

quarterly, semiannually, or annually to show the monthly rate.

You Your Spouse

Rent or home-mortgage payment (including lot rented for

mobile home)

Are real estate taxes included? [ ] Yes [ ] No

Is property insurance included? [ ] Yes [ ] No

$ $

Utilities (electricity, heating fuel, water, sewer, and telephone) $ $

Home maintenance (repairs and upkeep) $ $

Food $ $

Clothing $ $

Laundry and dry-cleaning $ $

Medical and dental expenses $ $

Transportation (not including motor vehicle payments) $ $

Recreation, entertainment, newspapers, magazines, etc. $ $

Insurance (not deducted from wages or included in mortgage payments)

Homeowner's or renter's:

$ $

Life:

$ $

Health:

$ $

Motor vehicle:

$ $

Other:

$ $

Taxes (not deducted from wages or included in mortgage

payments) (specify):

$ $

164

Installment payments

Motor Vehicle:

$ $

Credit card (name):

$ $

Department store (name):

$ $

Other:

$ $

Alimony, maintenance, and support paid to others $ $

Regular expenses for operation of business, profession, or farm

(attach detailed statement)

$ $

Other (specify): $ $

Total monthly expenses: $ $

9. Do you expect any major changes to your monthly income or expenses or in your assets

or liabilities during the next 12 months?

[ ] Yes [ ] No If yes, describe on an attached sheet.

10. Have you spent—or will you be spending—any money for expenses or attorney fees in

connection with this lawsuit? [ ] Yes [ ] No

If yes, how much? $ _______

11. Provide any other information that will help explain why you cannot pay the docket fees

for your appeal.

165

12. State the city and state of your legal residence.

Your daytime phone number: (____) _______________

Your age: ________ Your years of schooling: ________

(As amended Apr. 28, 2010, eff. Dec. 1, 2010; Apr. 16, 2013, eff. Dec. 1, 2013; Apr. 26, 2018,

eff. Dec. 1, 2018.)

166

Form 5. Notice of Appeal to a Court of Appeals from a Judgment or Order of

a District Court or a Bankruptcy Appellate Panel

UNITED STATES DISTRICT COURT

for the

<__________________> DISTRICT OF <__________________>

In re

<Name of debtor>,

Debtor

<Name of plaintiff>,

Plaintiff

<Name of defendant>,

Defendant

)

File No. <Number>

NOTICE OF APPEAL TO UNITED STATES COURT

OF APPEALS FOR THE <_______> CIRCUIT

<Name of party>, the [plaintiff] [defendant] [other party], appeals to the United States

Court of Appeals for the <__________> Circuit from the [final judgment] [order] [decree] of the

[district court for the district of <____________>] [bankruptcy appellate panel of the

<___________> circuit], entered in this case on <Date>.

The parties to the [judgment] [order] [decree] appealed from and the names and addresses

of their respective attorneys are as follows:

167

Date: <Date>

________________________________________

Attorney for Appellant

<E-mail address>

[Note to inmate filers: If you are an inmate confined in an institution and you seek the timing

benefit of Fed. R. App. P. 4(c)(1), complete Form 7 (Declaration of Inmate Filing) and file that

declaration along with this Notice of Appeal.]

(Added Apr. 25, 1989, eff. Dec. 1, 1989; amended Mar. 27, 2003, eff. Dec. 1, 2003; Apr. 28,

2016, eff. Dec. 1, 2016.)

168

Form 6. Certificate of Compliance With Type-Volume Limit

Certificate of Compliance With Type-Volume Limit,

Typeface Requirements and Type Style Requirements

1. This document complies with [the type-volume limit of Fed. R. App. P. [insert Rule

citation; e.g., 32(g)]] [the word limit of Fed. R. App. P. [insert Rule citation; e.g.,

5(c)(1)]] because, excluding the parts of the document exempted by Fed. R. App. P. 32(f)

[and [insert applicable Rule citation, if any]]:

[ ] this document contains <state the number of> words, or

[ ] this brief uses a monospaced typeface and contains <state the number of> lines of

text.

2. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and

the type style requirements of Fed. R. App. P. 32(a)(6) because:

[ ] this document has been prepared in a proportionally spaced typeface using <state

name and version of word processing program> in <state font size and name of

type style>, or

[ ] this document has been prepared in a monospaced typeface using <state name and

version of word processing program> with <state number of characters per inch

and name of type style>.

Date: <Date>

________________________________________

Attorney for <__________________>

<E-mail address>

(As amended Apr. 28, 2016, eff. Dec. 1, 2016.)

169

Form 7. Declaration of Inmate Filing

_________________________________________________________________

[insert name of court; for example,

United States District Court for the District of Minnesota]

A.B., Plaintiff

C.D., Defendant

Case No.____________

I am an inmate confined in an institution. Today, ______________ [insert date], I am

depositing the __________________ [insert title of document; for example, “notice of appeal”]

in this case in the institution’s internal mail system. First-class postage is being prepaid either by

me or by the institution on my behalf.

I declare under penalty of perjury that the foregoing is true and correct (see 28 U.S.C.

§ 1746; 18 U.S.C. § 1621).

Sign your name here ___________________________________________

Signed on ________________ [insert date]

[Note to inmate filers: If your institution has a system designed for legal mail, you must use that

system in order to receive the timing benefit of Fed. R. App. P. 4(c)(1) or Fed. R. App. P.

25(a)(2)(A)(iii).]

(As amended Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 26, 2018, eff. Dec. 1, 2018.)

170

TENTH CIRCUIT FORMS

10th CIR. FORM 1. DOCKETING STATEMENT INSTRUCTIONS AND

FORM

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Byron White United States Courthouse

1823 Stout Street

Denver, Colorado 80257

(303) 844-3157

www.ca10.uscourts.gov

DOCKETING STATEMENT INSTRUCTIONS

PLEASE FOLLOW THE INSTRUCTIONS REGARDING CONTENT

CAREFULLY. IN PARTICULAR, PLEASE NOTE THAT AS OF

JANUARY 1, 2019, THE COURT NO LONGER REQUIRES

ATTACHMENTS TO THE DOCKETING STATEMENT.

I. APPEALS FROM DISTRICT COURT

The appellant must complete a Docketing Statement and file it in the court of

appeals within 14 days after filing the notice of appeal. The docketing statement must be

filed via the court’s Electronic Case Filing System (ECF). Instructions and information

regarding ECF can be found on the court’s website, www.ca10.uscourts.gov

Please complete all sections of the Docketing Statement except Sections I-B and

I-C. Section II should only be completed in criminal appeals.

II. PETITIONS FOR REVIEW OR APPLICATIONS FOR ENFORCEMENT

OF AGENCY ORDERS

The petitioner must complete a Docketing Statement and file it in the court of

appeals within 14 days after filing a petition for review or application for enforcement. The

docketing statement must be filed via the court’s Electronic Case Filing System (ECF).

171

Instructions and information regarding ECF can be found on the court’s website,

www.ca10.uscourts.gov

Please complete all sections of the Docketing Statement except Sections I-A, I-C,

and II.

III. APPEALS FROM UNITED STATES TAX COURT

The appellant must complete a Docketing Statement and file it in the court of

appeals within 14 days after the appeal is docketed. The docketing statement must be filed

via the court’s Electronic Case Filing System (ECF). Instructions and information

regarding ECF can be found on the court’s website, www.ca10.uscourts.gov

Please complete all sections of the Docketing Statement except Sections I-A, I-B,

and II.

172

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DOCKETING STATEMENT

Appeal Number

Case Name

Party or Parties

Filing Notice of Appeal

Or Petition

Appellee(s) or

Respondent(s)

List all prior or related

appeals in this court with

appropriate citation(s).

I. JURISDICTION OVER APPEAL OR PETITION FOR REVIEW

A. APPEAL FROM DISTRICT COURT

1. Date final judgment or order to be reviewed was entered on the

district court docket:

2. Date notice of appeal was filed:

3. State the time limit for filing the notice of appeal (cite the specific

provision of Fed. R. App. P. 4 or other statutory authority):

a. Was the United States or an officer or an agency of the

United States a party below?

b. Was a motion filed for an extension of time to file the notice

of appeal? If so, give the filing date of the motion, the date of

any order disposing of the motion, and the deadline for filing

the notice of appeal:

173

4. Tolling Motions. See Fed. R. App. P. 4(a)(4)(A); 4(b)(3)(A).

a. Give the filing date of any motion that tolls the time to appeal

pursuant to Fed. R. App. P. 4(a)(4)(A) or 4(b)(3)(A):

b. Has an order been entered by the district court disposing of

any such motion, and, if so, when?

5. Is the order or judgment final (i.e. does it dispose of all claims by

and against all parties)? See 28 U.S.C. § 1291.

(If your answer to Question 5 is no, please answer the following

questions in this section.)

a. If not, did the district court direct entry of judgment in

accordance with Fed. R. Civ. P. 54(b)? When was this done?

b. If the judgment or order is not a final disposition, is it

appealable under 28 U.S.C. ' 1292(a)?

c. If none of the above applies, what is the specific legal

authority for determining that the judgment or order is

appealable?

6. Cross Appeals.

a. If this is a cross appeal, what relief do you seek beyond

preserving the judgment below? See United Fire & Cas. Co.

v. Boulder Plaza Residential, LLC, 633 F.3d 951, 958 (10th

Cir. 2011) (addressing jurisdictional validity of conditional

cross appeals).

b. If you do not seek relief beyond an alternative basis for

affirmance, what is the jurisdictional basis for your appeal?

See Breakthrough Mgt. Group, Inc. v. Chukchansi Gold

Casino and Resort, 629 F.3d 1173, 1196-98 and n.18 (10th

Cir. 2010) (discussing protective or conditional cross

appeals).

174

B. REVIEW OF AGENCY ORDER (To be completed only in connection

with petitions for review or applications for enforcement filed directly with

the court of appeals.)

1. Date of the order to be reviewed:

2. Date petition for review was filed:

3. Specify the statute or other authority granting the Tenth Circuit

Court of Appeals jurisdiction to review the order:

4. Specify the time limit for filing the petition (cite specific statutory

section or other authority): ________________________________

C. APPEAL OF TAX COURT DECISION

1. Date of entry of decision appealed:

2. Date notice of appeal was filed:______________________________

(If notice was filed by mail, attach proof of postmark.)

3. State the time limit for filing notice of appeal (cite specific statutory

section or other authority):

4. Was a timely motion to vacate or revise a decision made under the

Tax Court’s Rules of Practice, and if so, when? See Fed. R.

App. P. 13(a)

175

II. ADDITIONAL INFORMATION IN CRIMINAL APPEALS.

A. Does this appeal involve review under 18 U.S.C. ' 3742(a) or (b) of the

sentence imposed?

B. If the answer to A (immediately above) is yes, does the defendant also

challenge the judgment of conviction?

C. Describe the sentence imposed.

D. Was the sentence imposed after a plea of guilty?

E. If the answer to D (immediately above) is yes, did the plea agreement

include a waiver of appeal and/or collateral challenges?

F. Is the defendant on probation or at liberty pending appeal?

G. If the defendant is incarcerated, what is the anticipated release date if the

judgment of conviction is fully executed?

NOTE: In the event expedited review is requested and a motion to that

effect is filed, the defendant shall consider whether a transcript

of any portion of the trial court proceedings is necessary for the

appeal. Necessary transcripts must be ordered by completing

and delivering the transcript order form to the Clerk of the

district court with a copy filed in the court of appeals.

176

III. GIVE A BRIEF DESCRIPTION OF THE NATURE OF THE

UNDERLYING CASE AND RESULT BELOW.

IV. IDENTIFY TO THE BEST OF YOUR ABILITY AT THIS STAGE OF THE

PROCEEDINGS, THE ISSUES TO BE RAISED IN THIS APPEAL. You

must attempt to identify the issues even if you were not counsel below. See

10th Cir. R. 3.4(B).

177

V. ATTORNEY FILING DOCKETING STATEMENT:

Name: _______________________________ Telephone:

Firm:

Email Address:

Address:

_______________________________________ _____________________

Signature Date

178

NOTE: The Docketing Statement must be filed with the Clerk via the court’s

Electronic Case Filing System (ECF). Instructions and information

regarding ECF can be found on the court’s website,

www.ca10.uscourts.gov

The Docketing Statement must be accompanied by proof of service. The

following Certificate of Service may be used.

CERTIFICATE OF SERVICE

I, _______________________________________, hereby certify that on

[attorney for appellant/petitioner]

, I served a copy of the foregoing Docketing Statement, to:

[date]

, at

[counsel for/or appellee/respondent]

, the last known address/email address, by

[state method of service]

Signature

Date

___________________________________

Full name and address of attorney

179

10th CIR. FORM 2. ENTRY OF APPEARANCE AND CERTIFICATE OF

INTERESTED PARTIES UNDER 10th Cir. R. 46.1

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Entry of Appearance and Certificate of Interested Parties

Case No.

INSTRUCTIONS: WITHIN THE TIME PROSCRIBED IN THE COURT’S CASE OPENING

LETTER FOR THE APPEAL OR OTHER PROCEEDING COUNSEL FOR A PARTY MUST

EXECUTE AND FILE THIS FORM

, INDICATING METHOD(S) OF SERVICE ON ALL

OTHER PARTIES

. MULTIPLE COUNSEL APPEARING FOR A PARTY OR PARTIES WHO

SHARE THE SAME MAILING ADDRESS MAY ENTER THEIR APPEARANCES ON THE

SAME FORM BY EACH SIGNING INDIVIDUALLY

In accordance with 10th Cir. R. 46.1, the undersigned attorney(s) hereby appear(s) as counsel for

____________________________________________________________________________________

[Party or Parties]

__________________________________________________________________, in the subject case(s).

[Appellant/Petitioner or Appellee/Respondent]

Further, in accordance with 10th Cir. R. 46.1, the undersigned certify(ies) as follows:

(Check one.)

 On the reverse of this form is a completed certificate of interested parties and/or attorneys not

otherwise disclosed, who are now or have been interested in this litigation or any related proceeding.

Specifically, counsel should not include in the certificate any attorney or party identified immediately

above.

 There are no such parties, or any such parties have already been disclosed to the court.

180

_____________________________________ _ _______________________________________

Name of Counsel Name of Counsel

_____________________________________ _ _______________________________________

Signature of Counsel Signature of Counsel

_____________________________________ _ _______________________________________

Mailing Address and Telephone Number Mailing Address and Telephone Number

_____________________________________ _ _______________________________________

E-Mail Address E-Mail Address

I hereby certify that a copy of this Entry of Appearance and Certificate of Interested Parties was served on

(please insert date) ____________________________ via (state method of service)

________________________________________________________________________________________

to _______________________________________________________________________________________

(See Fed. R. App. P. 25(b)) (Signature) ______________________________________

181

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Case No.

Certificate of Interested Parties

The following are not direct parties in this appeal but do have some interest in or a

relationship with the litigation or the outcome of the litigation. See 10th Cir. R. 46.1(D).

In addition, attorneys not entering an appearance in this court but who have appeared for

any party in prior trial or administrative proceedings, or in related proceedings, are noted

below.

(Attach additional pages if necessary.)

182

10th CIR. FORM 3. ENTRY OF APPEARANCE—PRO SE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Entry of Appearance - Pro Se

Case No.

INSTRUCTIONS: A PARTY DESIRING TO APPEAR WITHOUT COUNSEL SHALL NOTIFY THE

CLERK BY COMPLETING AND SIGNING THIS FORM. THE FEDERAL RULES OF APPELLATE

PROCEDURE AND TENTH CIRCUIT RULES REQUIRE THAT ALL PAPERS SUBMITTED TO THE

COURT FOR FILING BE SIGNED BY THE FILING PARTY AND THAT COPIES BE SERVED ON

OPPOSING PARTIES OR THEIR COUNSEL

, IF REPRESENTED BY COUNSEL. THE ORIGINAL OF

EVERY PAPER SUBMITTED FOR FILING MUST CONTAIN PROOF OF SERVICE IN A FORM SIMILAR

TO THAT ON THE REVERSE OF THIS FORM

. ANY PAPER THAT DOES NOT CONTAIN THE

REQUIRED PROOF OF SERVICE MAY BE DISREGARDED BY THE COURT OR RETURNED

I hereby notify the clerk that I am appearing pro se as the

_____________________________________________________________________

(Appellant, Petitioner, Appellee or Respondent)

in this case. All notices regarding the case should be sent to me at the address below. If my

mailing address changes, I will promptly notify the clerk in writing of my new address.

Further, in accordance with 10th Cir. R. 46.1, I certify: (Check one.)

 All parties to this litigation, including parties who are now or have been interested in this

litigation, are revealed by the caption on appeal, or

 There are parties interested in this litigation that do not appear in the caption for

this appeal, and they are listed on the back of this form.

183

_________________________________ ________________________________

Signature Name

________________________________

Mailing Address

________________________________

City State Zip Code

CERTIFICATE OF SERVICE

I hereby certify that on ____________________________ I sent a copy of

[date]

the Pro Se Entry of Appearance Form to:

__________________________________, the last known address/email address, by

[state method of service]

Date

Signature

CERTIFICATE OF INTERESTED PARTIES

(attach additional pages if necessary)

184

10th CIR. FORM 4. LETTER NOTICE THAT COUNSEL HAS MOVED TO

WITHDRAW UNDER 10th CIR. R. 46.4(B)(2)

Your attorney filed a brief on ______________________, 20__, stating a belief

that your appeal is frivolous and requesting permission to withdraw from the case. Please

be advised:

(1) You have 30 days from the date this notice was mailed to raise any points to

show why your conviction and/or sentence should be set aside.

(2) If you do not respond within 30 days, the court may affirm your conviction

and/or sentence, or dismiss your appeal. An affirmance or dismissal would mean that

your appeal would be decided against you.

(3) If you want to make a showing why the court should not affirm your

conviction and/or sentence, or dismiss your appeal, and you believe there is a very good

reason why you will not be able to file your response within the 30-day limit, you should

write to the court immediately and ask for up to 30 more days. If additional time is

granted, you must file your response before the additional time expires.

(4) You do not have a right to another attorney unless this court finds, based upon

your objections and the reasons for them, that your case requires further briefing or

argument. If the court finds that your case requires further briefing or argument, an

attorney will be appointed to handle your appeal.

Si Usted no habla inglés, su abogado tiene el deber legal de explicarle las siguientes

cosas en su idioma nativo: su abogado tiene que explicarle el contenido del documento

que ha registrado con la corte de acuerdo con Anders v. California, 386 U.S. 738 (1967);

tiene que avisarle que Usted tiene el derecho de registrar con la corte una objeción al

documento Anders que ha registrado su abogado, y tiene que informarle de la posibilidad

de que su apelación será despedida basado en el documento Anders. United States v.

Cervantes, 795 F.3d 1189, 1190 (10th Cir. 2015). Su abogado puede explicarle estas

cosas con la asistencia de un intérprete si es necesario o por escrito en su idioma nativo.

185

If you want to write to this court, you should address your letter to:

Clerk of the Court

United States Court of Appeals

Byron White United States Courthouse

1823 Stout Street

Denver, Colorado 80257

Be sure to show the name and number of your case clearly on any material you send to

the court.

Notice mailed ________ __________________________________

Date Deputy Clerk, U.S. Court of Appeals

186

LOCAL APPENDIX A

APPELLATE TRANSCRIPT MANAGEMENT PLAN

FOR THE TENTH CIRCUIT

The Court Reporter Management Plans adopted by the district courts within

this circuit and approved by the Judicial Council are incorporated and made a part

of this Plan to the extent that they provide for the production of appellate

transcripts. To further promote the prompt production of transcripts, which

contributes to the timely processing of appeals, the Judicial Council of the Tenth

Circuit adopts the following guidelines:

1. District Court Reporter Coordinators

Each district court must appoint a Court Reporter Coordinator within the

Clerk’s Office, who will be responsible for:

(a) Monitoring the preparation and filing of transcripts, and ensuring

compliance with this Plan.

(b) Bringing to the attention of the Clerk of the court of appeals violations of

this Plan, which cannot be resolved locally, and

appropriate parties.

2. Calculation of Times

No transcript order will be deemed complete for purposes of calculation of

delivery dates until satisfactory financial arrangements have been made with the

court reporter. The Tenth Circuit Transcript Order Form contains the reporter’s

certification that arrangements for payment have been made. If the arrangements

subsequently fail, the burden will be on reporters to notify this court in writing that

the litigant has failed to abide by the arrangements for payment. This notification

shall include copies of letters requesting payment or deposit. The court will enforce

reporters’ legitimate requests for payment by threat of dismissal of appeals for

failure to prosecute.

187

3. Extensions of Time

An extension of time pursuant to Federal Rule of Appellate Procedure

11(b)(1)(B) does not waive the mandatory fee reduction. To obtain a waiver, a

separate request alleging appropriate circumstances must be made.

4. Waiver of Mandatory Fee Reduction

The Clerk of the court of appeals may waive the mandatory fee reduction or

other sanctions imposed by this Plan, upon receipt of a timely request, in

circumstances such as the following:

(a) Illness or Incapacity of the Reporter

A reporter requesting a waiver of the fee reduction due to illness or other

incapacity must provide a letter from the district court reporter coordinator which

verifies the nature and expected duration of the illness or other incapacity. This

certification must be attached to a request for extension and will be kept

confidential. The request must include the date by which the transcript will be

completed.

(b) Planned Vacation

The reporter must submit a vacation schedule approved by the trial judge.

The request must include the date by which the transcript will be completed.

When the transcript in a particular case will require additional time, the

reporter must provide a certification from the district judge stating the reason

additional time is required. When multiple orders are received at the same time, the

reporter may request an extension in all cases, but must provide copies of the

orders and the estimated length of the transcripts involved. The request must

include the date by which each transcript will be completed.

A form for requesting an extension of time and/or fee reduction waiver is

attached as Exhibit 1. The Judicial Council prefers that this form be used.

No provision is made for extensions of time for transcript backlog.

Transcript production is considered by the Administrative Office to be

compensated by transcript fees. Reporters are expected to hire note readers or

substitutes when transcripts cannot be completed within specified times. The hiring

of note readers and/or substitutes does not excuse reporters, however, from

188

requesting extensions of time under Fed. R. App. P. 11(b) when a transcript cannot

be completed within the prescribed time.

Occasionally, counsel may request that a reporter suspend production of a

transcript. Transcript production may be stopped only by order of the court of

appeals. It is the responsibility of the party who ordered the transcript to move for

suspension of production.

5. Substitute Court Reporters

Pursuant to Judicial Conference policy, reporters are expected to hire

substitutes when they are unable to complete transcripts on time. A reporter who

cannot file a transcript before the ninetieth day after it is ordered must remove him

or herself from courtroom duties and provide a substitute.

Official reporters are responsible for transcript production by their

substitutes. Requests for extensions received from substitute reporters will be

returned to the district court reporter coordinator so the appropriate official reporter

can make a proper request.

6. Court Reporters’ Manual

The Court Reporters’ Manual, Volume 6 of the Guide to Judiciary Policy is

incorporated into these guidelines. Reporters in this circuit are expected to know

and abide by the rules, regulations and policies contained in it.

The pages of a transcript are to be numbered in a single series of consecutive

numbers for each proceeding, regardless of the number of days involved. Pages in

a multiple-volume transcript must be numbered consecutively for an entire

multiple-volume transcript. See Volume 6, Guide to Judiciary Policy, Chapter 5,

§ 520 et. seq; See also United States v. Davis, 953 F.2d 1482, 1487 n.2 (10th Cir.

1992).

7. Miscellaneous Provisions

Where there are multiple reporters responsible for a single transcript order,

one must take the lead. The lead reporter must be an official court reporter. When a

transcript is being paid for under the Criminal Justice Act, the lead reporter must

assist in obtaining the district judge’s signature on the completed form CJA 24. If a

transcript order form is incomplete or inaccurate, the lead reporter must give

written notice of the deficiency to the ordering party with a copy to this court.

189

EXHIBIT 1 TO LOCAL APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

Court of Appeals Docket Number(s): ______________________________

Short Title: ___________________________________________________

District Court Docket Number(s): _________________________________

REQUEST FOR EXTENSION OF TIME TO FILE TRANSCRIPT

I request an extension of time to file the transcript until ___________.

This extension is necessary because ________________________________

_____________________________________________________________

____________________________________________________________

Attach letter from court reporter coordinator if necessary.

I understand that the grant of an extension does not waive the mandatory fee

reduction.

Signature: ___________________________

Official Court Reporter

REQUEST FOR WAIVER OF MANDATORY FEE REDUCTION

I request waiver of the mandatory fee reduction for (check one):

___ Illness or other incapacity—I have attached the required certification.

___ Planned vacation—I have attached the required certification.

___ Lengthy or Complex Litigation or Excessive Pages Ordered—I have

attached the required documentation.

Signature: ___________________________

Official Court Reporter

ATTACH PROOF OF SERVICE ON ALL COUNSEL

190

LOCAL APPENDIX B

GENERAL ORDER REGARDING SCHEDULING CONFLICTS

FOR THE TENTH CIRCUIT

In re:

Guidelines for Resolving Scheduling

Conflicts with Oklahoma Courts

GENERAL ORDER

FILED May 21, 1998

Before SEYMOUR, Chief Judge, PORFILIO, ANDERSON, TACHA,

BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, LUCERO, and

MURPHY.

For the purpose of resolving conflicts that arise in scheduling between this

court and the federal district courts in Oklahoma or the Oklahoma state courts, the

court adopts the following guidelines:

(A) An attorney shall not be deemed to have a conflict unless:

(1) the attorney is lead counsel in two or more of the actions

affected, and

191

(2) the attorney certifies that the matters cannot be adequately

handled, and the client’s interest adequately protected, by other counsel for

the party in the action or by other attorneys in lead counsel’s firm; certifies

compliance with this rule and has nevertheless been unable to resolve the

conflicts; and certifies in the notice a proposed resolution by list of such

cases in the order of priority specified by this rule.

(B) When an attorney is scheduled for a day certain by trial calendar,

special setting or court order to appear in two or more courts (trial or appellate;

state or federal), the attorney shall give prompt written notice, as specified in (A)

above, of the conflict to opposing counsel, to the Clerk of each court and to the

judge before whom each action is set for hearing (or to an appropriate judge if

there has been no designation of a presiding judge). The written notice shall

contain the attorney’s proposed resolution of the appearance conflicts in

accordance with the priorities established by this rule and shall set forth the order

of cases to be tried with a listing of the date and data required by (B)(1)-(4) as to

each case arranged in the order in which the cases should prevail under this rule.

Attorneys confronted by such conflicts are expected to give written notice as soon

as the conflict arises but in any event at least seven (7) days prior to the date of the

conflicting settings. In resolving scheduling conflicts, the following priorities

should ordinarily prevail:

192

(1) Criminal (felony) actions shall prevail over civil actions set for

trial or appellate proceedings;

(2) Jury trials shall prevail over non-jury matters, including trials

and administrative proceedings;

(3) Trials shall prevail over appellate arguments, hearing and

conferences;

(4) Appellate proceedings prevail over all trial hearings, other than

actual trials;

(5) Within each of the above categories only, the action which was

first set shall take precedence.

the comparative age of the cases, their complexity, the estimated trial time, the

number of attorneys and parties involved, whether the trial involves a jury, and the

difficulty or ease of rescheduling.

(D) The judges of the courts involved in a scheduling conflict shall

promptly confer, resolve the conflict, and notify counsel of the resolution. The

judge presiding over the older case (i.e., the earliest filed case) will be responsible

for initiating this communication.

(E) Conflict resolution shall not require the continuance of the other

matter or matters not having priority. In the event the matter determined to have

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priority is disposed of prior to the scheduled time set, the attorney shall

immediately notify all affected parties, including the court affected, of the disposal

and shall, absent good cause shown to the court, proceed with the remaining case

or cases which did not have priority if the setting was not vacated.

(F) Nothing in these guidelines is intended to prevent courts from

voluntarily yielding a favorable scheduling position, and judges of all courts are

urged to communicate with each other in an effort to lessen the impact of conflicts

and continuances on all courts.

Entered for the Court

Patrick Fisher

Clerk of Court

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ADDENDUM I

CRIMINAL JUSTICE ACT PLAN

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

(as amended eff. July 1, 2019)

PREAMBLE

Pursuant to the Criminal Justice Act of 1964 (hereinafter, “Act”), codified as

18 U.S.C. § 3006A(b), the Court adopts the following Criminal Justice Act Plan

(hereinafter, “Plan”) for furnishing representation in criminal cases on appeal.

This Plan supersedes all previous Plans adopted by the Circuit, and will take effect

on July 1, 2019.

I. Establishment of the Appellate Panel

The Court has established a Panel of private attorneys (hereinafter, “Panel”)

who are capable and willing to accept appointments under the Act. These

attorneys, along with the Office of the Federal Public Defender for the Districts of

Colorado and Wyoming, shall constitute the core group from which appointments

shall be made. The Court shall approve private attorneys for membership on the

Panel after receiving recommendations from the Court’s Standing Committee on

the Criminal Justice Act.

II. Appointment of Counsel in the Tenth Circuit

A. Appointment of counsel under the Act will be governed generally by

the Guidelines for Administering the CJA and related statutes. See Volume 7,

Guide to Judiciary Policy, Appointment and Payment of Counsel, Part A. Online

at:

http://www.uscourts.gov/FederalCourts/AppointmentOfCounsel/CJAGuidelinesFo

rms.aspx.

1. When requested, counsel will be appointed for every person

who is entitled to representation under the Act. Absent a change

in financial conditions, any determination that a person is

eligible for CJA counsel made in the district court shall

continue on appeal. The Court of Appeals may appoint the

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Office of the Federal Public Defender for the Districts of

Colorado and Wyoming, another Federal Public Defender

office within the Circuit, an attorney from the Court’s Criminal

Justice Act Panel, or counsel from the trial court.

2. While the Court recognizes there may be benefits to

maintaining continuity of counsel, it also recognizes that trial

counsel may not have the requisite skills, or the desire, to

represent an individual on appeal. Because each proceeding is

unique in this regard, all counsel continuing in appeals from the

trial court will be required, through procedures established by

the Court, to file either a motion for continued appointment or a

motion to withdraw. As appropriate, and at the discretion of the

Court, new counsel may be appointed from the Panel or the

Office of the Federal Public Defender. The Court may also,

however, authorize continued appointment of a trial attorney

who is not a member of the Court’s panel.

3. Trial counsel is always required to continue to represent the

defendant until relieved of that duty by the Court, consistent

with 10

Cir. R. 46.3 and 46.4.

III. Composition of the Panel

A. Application for Membership

Applications for membership on the Panel shall be available in the Office of

the Clerk of Court and on the Circuit’s website at

http://www.ca10.uscourts.gov/cja/becoming-tenth-circuit-appellate-panel-attorney

Completed applications must be submitted to the Clerk of Court for

transmittal to the Court’s Standing Committee on the Criminal Justice Act.

Incomplete applications will not be considered.

B. Eligibility and Qualifications

CJA Panel members will be selected on the basis of demonstrated

commitment, qualification and skill in federal criminal appellate practice.

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1. To be eligible for service on the Panel, lawyers must be or

become, and remain, members in good standing of the Tenth

Circuit’s bar. Panel attorneys must certify they have a working

knowledge of this Plan, the Tenth Circuit Rules, the Federal

Rules of Appellate Procedure, the Federal Rules of Evidence,

the Federal Rules of Criminal Procedure, the United States

Sentencing Guidelines, and relevant provisions of the United

States Code. Panel members must also certify their willingness

to accept at least one appellate appointment each year. Finally,

applicants must also show they have an established law practice

in the Tenth Circuit.

C. Size of the Panel

The Panel will not have a size limitation. It shall be large enough to provide

an adequate number of experienced attorneys who possess the necessary skills to

effectively litigate federal criminal appeals. To that end, membership shall be

reserved for attorneys who meet the Court’s criteria. The Panel will also be small

enough that each attorney receives a sufficient number of appointments to maintain

proficiency in litigating federal criminal appeals. To the extent possible, the Panel

will include qualified attorneys from every judicial district within the Tenth

Circuit.

1. Not every qualified applicant will be selected for Panel

membership. To ensure that qualified applicants are given the

opportunity to serve, Panel membership will be for three-year

terms. Reapplication is required at the conclusion of each term.

D. Membership Terms

Panel members shall be appointed for a three-year term, but may be removed

by the Court prior to the expiration of a term.

1. A Panel member will be given written notice in advance of the

expiration of an existing term. To be considered for renewal,

the Panel member must submit the application for renewal prior

to expiration of the application deadline. Applicants are solely

responsible for compliance with the application deadline.

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2. Renewal applications shall be made available in the Office of

the Clerk of Court and on the Circuit’s website at

www.ca10.uscourts.gov

. Completed applications must be

submitted to the Clerk of Court for transmittal to the Court’s

Standing Committee on the Criminal Justice Act. Renewal shall

not be automatic, but may be granted at the Court’s discretion,

taking into account the provisions of this Plan.

E. Removal from the Panel

Membership on the Panel is not a property right. A Panel attorney may be

removed whenever the Court, at its discretion, determines the attorney has failed to

fulfill the obligations of Panel membership, including the duty to provide

competent and effective representation, or has engaged in other conduct that

renders inappropriate his or her continued service on the Panel. Removal may also

result if a Panel attorney refuses three times to accept an appointment during the

membership term.

1. The Standing Committee shall make all removal

recommendations to the Court in writing. If the Court decides

to accept the recommendation, counsel will be given notice of

the proposed basis for removal and will be provided an

opportunity to respond in writing. The Court of Appeals will

make all final decisions regarding removal. An attorney who is

removed will receive a written explanation of removal from the

Court.

2. Attorneys who are removed from the Panel may file a renewal

application no earlier than one year from the date of removal. In

the application, counsel must report the earlier removal and

explain why reappointment to the Panel should be granted.

F. Maintaining the Panel List and eVoucher User Profile

The Clerk of Court and/or the Court’s Panel administrator shall maintain the

roster of Panel members, including current names, physical business addresses,

business emails, and business telephone numbers. The Panel roster shall be public

information.

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1. The Panel attorney shall be solely responsible for prompt

notification to the Clerk and/or Panel administrator of any

changes in business address, business telephone number, or

e-mail address.

2. The Panel attorney shall be solely responsible for promptly

updating his or her eVoucher User Profile regarding any change

of firm association, physical business address, taxpayer

identification number, email address, telephone number, and

IRS Form W-9.

IV. Standing Committee on the Criminal Justice Act

A. Membership and Structure

The Chief Judge, or the Chief Judge’s delegate, shall appoint the Standing

Committee. The Federal Public Defender for the Districts of Colorado and

Wyoming shall be a permanent member of the Standing Committee. The

remaining membership shall consist of two lawyers from Oklahoma, and one

lawyer from the remaining states in the Circuit. At least one of these positions must

be filled with one of the other Federal Public Defenders from the Circuit. Two of

the other positions must be filled with attorneys who are not current members of

the Panel.

The Chief Judge may also appoint a liaison to the Committee from the

Court’s legal staff. That person will not be a Committee member, but will be

available to both the Court and members for support and consultation. The liaison

may attend, but shall not participate in, the Committee’s deliberations.

B. Duties of the Committee

The Standing Committee shall meet in person at least once per year.

Additional meetings may be convened by the Chair.

The Committee shall review the qualifications of applicants for membership

on the Panel, conduct further inquiries as necessary, and make recommendations to

the Court for placement or removal. The Standing Committee shall also review the

operation of the Panel on a periodic basis and shall make recommendations to the

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Court regarding any suggested changes. At the Court’s discretion, the Standing

Committee may also investigate complaints concerning deficient performance by

Panel members and report its findings and recommendations to the Court. The

Standing Committee’s written recommendations to the Court on any issue shall

remain confidential.

V. Change in Financial Conditions Affecting Representation on Appeal

A person previously represented by private counsel in the district court who

becomes financially unable to employ counsel on appeal must first obtain an order

in the district court finding that he or she qualifies for court-appointed appellate

counsel. Trial counsel is responsible for filing the application for court-appointed

counsel in the district court, and must comply with all other provisions of 10

Cir.

R. 46.3 and 46.4. This Court may, at any time, review the financial status of the

defendant. If the Court finds that the defendant has become financially able to

obtain counsel or make partial payments for representation, the Court may deny or

terminate an appointment pursuant to subsection (c) of the Act or require partial

payment to be made pursuant to subsection (f) of the Act.

VI. Death Penalty Cases

Pursuant to the Guidelines for Administering the Criminal Justice Act (CJA

Guidelines), the Court may, in an appropriate death penalty case, appoint and

compensate under the Act an attorney or attorneys from a state or local public

defender organization or from a legal aid agency or other non-profit organization.

VII. Petition for Writ of Certiorari

Counsel’s appointment does not terminate until, if the person loses the

appeal, counsel informs the person of his or her right to petition for certiorari in the

United States Supreme Court and the deadline for filing the petition. Additionally,

counsel must prepare and file the petition if the person requests it and there are

reasonable grounds for counsel properly to do so (see Rule 10 of the Rules of the

Supreme Court of the United States).

If counsel determines that there are no reasonable grounds for filing a

petition and declines the person’s request to file a petition, counsel shall inform the

person and, after entry of judgment, shall move to withdraw under

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Cir. R. 46.4. Upon entry of an order terminating the appointment, counsel shall

promptly notify the represented person and advise the person of his or her right to

file a pro se petition for certiorari.

VIII. Compensation

A. Claims

All claims for compensation and expenses must be submitted through the

eVoucher case management and voucher review system. See

http://www.ca10.uscourts.gov/cja

. All claims must be supported as required by the

CJA Guidelines and the Court’s Advice to CJA Counsel letter(s), found at

https://www.ca10.uscourts.gov/cja/vouchers-and-instructions-attorneys.

Counsel appointed in direct criminal appeals and non-death penalty

28 U.S.C. §§ 2254 and 2255 matters should review the Court’s general Advice to

CJA Counsel letter for detailed information and guidelines regarding compensation

issues, found at http://www.ca10.uscourts.gov/sites/default/files/adv20-mod.pdf

Counsel appointed in death penalty matters should review the Court’s separate

Advice To CJA Counsel Regarding Death Penalty and Capital Habeas Matters

letter, found at

http://www.ca10.uscourts.gov/sites/default/files/adv30-mod.pdf.

B. Authorization of Payments in Excess of Statutory Case Compensation

Maximums

Payments in excess of statutory compensation limits may be approved to

provide fair compensation where deemed appropriate by the Chief Judge of the

Circuit or by a circuit judge in regular active service to whom excess compensation

approval authority has been delegated.

C. Disallowance or Reduction of a Claim

The Court recognizes that the compensation afforded often does not reflect

the true value of the services rendered. Consequently, it is the Court’s policy not to

cut or reduce claims which are reasonable and necessary. If the Court intends to

reduce a claim for compensation, it will provide the attorney prior notice of the

proposed reduction with a brief statement of reasons, and will provide an

opportunity to address the matter pursuant to procedures adopted by the Judicial

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Conference. Notice will not be given where the reduction is based on mathematical

or technical errors.

D. Other Payments

Except as authorized or directed by the Court, no appointed attorney and no

person or organization authorized by the Court to furnish representation under the

Act may request or accept any payment or promise of payment for representation

of a defendant.

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ADDENDUM II

PLAN FOR APPOINTMENT OF COUNSEL IN SPECIAL

CIVIL APPEALS

PURPOSE:

To provide representation in special cases for persons who are financially

unable to obtain the services of counsel.

CRITERIA:

Under this plan, the court may appoint counsel to represent a party or parties

to a civil matter pending before the court when:

1. the person is financially unable to obtain the services of counsel;

2. the person is not entitled to appointed counsel under the provisions of

the Criminal Justice Act or other source of legal assistance;

3. the litigation presents complex and significant legal issues, the

outcome of which may have wide impact;

4. it is manifestly clear that the services of counsel are necessary for the

effective presentation of the issues to the court; and

5. the interests of justice require that counsel be assigned to assist the

litigant who would otherwise be compelled to proceed pro se.

PROCEDURE:

When, upon the application of a party or upon the court’s motion, it is

determined that in an appeal or other proceeding criteria required by this plan are

satisfied, a judge may order the appointment of counsel to represent the eligible

party.

The appointment of counsel under this plan may be made from a panel of

attorneys maintained pursuant to the court’s plan to implement the provisions of

the Criminal Justice Act or otherwise.

The appointment will remain effective throughout all stages of a proceeding

in this court, including the filing of a petition for writ of certiorari to the Supreme

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Court, if requested to do so by the client, but subject to the provisions of Section

VII of the Court’s Criminal Justice Act Plan.

PRO BONO SERVICES AND EXPENSES:

The court is very appreciative of the service of the attorneys taking

appointments under this plan. Due to limited resources, however, the court is

generally unable to compensate counsel for either attorney time or expenses.

Appointments are made with the understanding that services will be provided pro

bono and that expenses will be absorbed by counsel. In an exceptional case counsel

may submit a motion seeking limited reimbursement of out-of-pocket costs or

expenses. Any motion filed must address the exceptional nature of the case.

If a motion is filed and granted, reimbursement for reasonable and necessary

out-of-pocket expenses will be subject to the limitations applicable to counsel

appointed under the Criminal Justice Act. Those limitations are outlined in the

court’s CJA Advice to Counsel guidelines, and in the Guidelines for Administering

the Criminal Justice Act and Related Statutes. Both documents may be found on

the court’s website. The Chief Judge, or any judge on the panel assigned to the

appeal or other proceeding, may address a motion for expenses and may authorize

payment of expenses from the Attorney Admission Fund.

Counsel appointed and compensated under this plan may not accept payment

for their services from their clients or anyone on their behalf.

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ADDENDUM III

PLAN FOR ATTORNEY DISCIPLINARY ENFORCEMENT

Section 1. Definitions.

1.1 “The Court” means the United States Court of Appeals for the Tenth

Circuit.

1.2 “Another Court” means any court of the United States, the District of

Columbia, or any state, territory, or commonwealth of the United States.

1.3 “Serious Crime” means any felony or any lesser crime involving false

swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit,

bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or

solicitation of another to commit such a lesser crime.

1.4 “Disciplinary Panel” means a panel of judges specially constituted to

consider an attorney disciplinary matter.

1.5 “Attorney” means any attorney admitted to practice or who has

appeared before this court.

Section 2. Grounds for Discipline.

An attorney may be disciplined by this court as a result of:

2.1 conviction in another court of a Serious Crime;

2.2 disbarment or suspension or reprimand by another court, with or without

the attorney’s consent, or the resignation from the bar of another court while an

investigation into allegations of misconduct is pending;

2.3 any act or omission which violates the federal laws or federal statutes or

Federal Rules of Appellate Procedure, the rules of this court, orders or other

instructions of this court, or the Code of Professional Responsibility adopted by the

highest court of any state to which the attorney is admitted to practice.

Section 3. Disciplinary Sanctions.

3.1 Discipline may consist of (a) disbarment, (b) suspension from practice

before the court for a definite or indefinite period, (c) reprimand, (d) monetary

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sanction, (e) removal from the roster of attorneys eligible for appointment as court-

appointed counsel, or (f) any other sanction that the court may deem appropriate.

3.2 The identical discipline imposed by another court may be appropriate

for discipline imposed as a result of that other court’s suspension or disbarment or

reprimand of an attorney. However, any discipline imposed by another court will

not limit the range of disciplinary sanctions available to the Disciplinary Panel or a

panel of the court of appeals.

3.3 A monetary sanction imposed on disciplinary grounds is the personal

responsibility of the attorney disciplined, and may not be reimbursed by a client

directly or indirectly. Notice to that effect is to be sent to the client by the Clerk

whenever a monetary sanction is imposed.

3.4 Proceedings for the award of damages, costs, expenses, or attorney’s

fees under 28 U.S.C. § 1927, Fed. R. App. P. 38, or 10th Cir. R. 46.5(C)(4) are not

covered by this Plan.

Section 4. Discipline Imposed by a Panel of the Court or by a Disciplinary

Panel.

4.1 A panel of the court may impose in a case pending before it any

sanction other than suspension or disbarment in accordance with Section 4.2.

4.2 Before imposing a sanction, a panel of the court will notify the attorney

of the alleged conduct which may justify sanction and afford the attorney an

opportunity to be heard, in writing or in person at the option of the panel.

4.3 Any matter of attorney discipline in which suspension or disbarment

may be considered an appropriate sanction will be referred to a Disciplinary Panel

or, in the case of an uncontested matter, to the Chief Judge or Chief Judge’s

designee. The Disciplinary Panel consists of three circuit judges appointed by the

Chief Judge. The judge most senior in service on the court will be designated and

serve as chair. If any member of the Disciplinary Panel is unable to hear a

particular matter, the Chief Judge will designate another active circuit judge as a

member of the panel to hear that matter.

4.4 The Disciplinary Panel may at any time appoint counsel to investigate

or to prosecute a disciplinary matter. Generally, the court will appoint as

disciplinary counsel the disciplinary agency of the highest court of the state in

which the attorney maintains his or her principal office. If no such disciplinary

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agency exists or such disciplinary agency declines appointment or such

appointment is clearly inappropriate, this court will appoint as disciplinary counsel

one or more members of the bar of this court to investigate allegations of

misconduct or to prosecute disciplinary proceedings.

4.5 The Disciplinary Panel may designate a special master for purposes of

conducting an evidentiary hearing. The special master may establish whatever

procedural and evidentiary rules are appropriate. At the conclusion of the

evidentiary hearing, the special master must promptly make a report of findings to

the Disciplinary Panel.

Section 5. Duties of Clerk.

5.1 Upon being informed that an attorney admitted to practice before this

court has been either convicted of any Serious Crime or subjected to discipline by

another court, the Clerk will determine whether a copy of the judgment of

conviction or disciplinary judgment or order has been forwarded to this court. If

not, the Clerk will promptly obtain a copy of the judgment of conviction or

disciplinary judgment or order and file it with this court.

5.2 Whenever any person is disbarred, suspended, or reprimanded, on

consent or otherwise, or otherwise disciplined by this court and is shown on the

records of the court to be admitted to practice in any other jurisdiction or before

any other court, the Clerk will, within ten days of that disbarment, suspension,

reprimand, or imposition of discipline, transmit to the disciplinary authorities in

such other jurisdiction or for such other court, a certified copy of the judgment or

order of disbarment, suspension, censure, reprimand or discipline, as well as the

last known office address of the attorney.

5.3 The Clerk shall refer to the Disciplinary Panel or the Chief Judge or the

Chief Judge’s designee all information received concerning disbarments,

suspensions, resignations during the pendency of misconduct investigations, and

other conduct sufficient to cast doubt upon the continuing qualification of a

member of the bar to practice before it.

Section 6. Initiation of Disciplinary Proceedings.

6.1 Upon the receipt of a copy of a judgment, order, or other court

document demonstrating that an attorney has been convicted of a Serious Crime,

has been either suspended or disbarred or reprimanded by another court, or has

resigned from the bar of another court during the pendency of a misconduct

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investigation, the Clerk shall issue an order directing the attorney to show cause

why the court should not impose upon the attorney the discipline described in

Section 3. With the order to show cause, the Clerk also may send a copy of the

judgment of conviction or disciplinary judgment, order, or other court document

indicating the form of disciplinary action.

6.2 When misconduct or allegations of misconduct concerning the appellate

process which, if substantiated, would warrant discipline on the part of an attorney

comes to the attention of the Clerk or a judge, whether by complaint, grievance, or

otherwise, the Clerk shall issue an order to show cause why discipline should not

be imposed by this court. The order will set forth the alleged conduct which is the

subject of the proceeding and the reason the conduct may justify such discipline. If

the Disciplinary Panel determines that cause does not exist for disciplinary action,

the proceeding will be dismissed with appropriate notice.

6.3 All orders to show cause under this section will require the attorney to

respond within twenty (20) days. In the response to the order to show cause, the

attorney must include a declaration of the other bars to which the attorney is

admitted.

Section 7. Uncontested Proceedings.

7.1 If an attorney acquiesces to the imposition of discipline by failing to

timely respond to an order to show cause, the Clerk will issue an order imposing

discipline as indicated in the order to show cause.

7.2 Any attorney who is the subject of an investigation by this court into

allegations of misconduct may consent to disbarment by filing with the Clerk’s

Office an affidavit stating that the attorney desires to consent to disbarment.

Section 8. Contested Proceedings.

All contested matters, except those before a panel under Section 4.1, will be

referred to a Disciplinary Panel.

8.1 If an attorney’s response to an order to show cause specifically requests

to be heard in person in defense or in mitigation, the Disciplinary Panel may set the

matter for a hearing before a special master. If an evidentiary hearing is held before

the special master, findings of fact must be promptly prepared and forwarded to the

Disciplinary Panel and the attorney. Exceptions to the special master’s findings

may be filed within ten (10) days of the date the findings are transmitted by the

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special master to the Disciplinary Panel. After the Disciplinary Panel has resolved

any timely exceptions, it may then make a decision.

8.2 If an attorney’s response to an order to show cause does not specifically

request to be heard in person, the Disciplinary Panel may then direct entry of an

order imposing discipline or take other appropriate action.

8.3 A certified copy of a judgment of conviction for any crime will be prima

facie evidence of the commission of that crime in any disciplinary proceeding

instituted against an attorney based upon the conviction. If the conviction is

subsequently reversed or vacated, any discipline imposed on the basis thereof will

be promptly reviewed by the Disciplinary Panel, the Chief Judge or the Chief

Judge’s designee upon submission of a certified copy of the relevant mandate.

8.4 A certified copy of a disciplinary judgment or order demonstrating that

a member of the bar has been disbarred or suspended or reprimanded by another

court will be prima facie evidence that the conduct for which the discipline was

imposed in fact occurred.

8.5 An attorney to whom an order to show cause is issued pursuant to

Section 6 may be represented by counsel at all hearings.

8.6 The Disciplinary Panel may compel by subpoena the attendance of

witnesses, including the attorney whose conduct is the subject of the proceeding,

and the production of pertinent documents. If a hearing is held, the Disciplinary

Panel may compel by subpoena the attendance of any witness and the production

of any document reasonably designated by the disciplinary counsel and the

attorney as relevant for adequate prosecution or defense or mitigation.

8.7 If disciplinary action is imposed by this court on an attorney who has

entered an appearance in a representational capacity in any type of proceeding in

this court, the Disciplinary Panel may require the attorney to:

(a) promptly notify all clients who are represented by the attorney in this

court of the nature of the disciplinary action imposed; and

(b) furnish sufficient evidence of compliance with (a).

Section 9. Suspension During Pendency of a Disciplinary Proceeding.

9.1 Upon a sufficient showing that an attorney has been convicted of a

Serious Crime, disbarred, suspended or reprimanded, the Disciplinary Panel may

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summarily suspend the attorney’s privilege to practice before this court pending

the determination of appropriate discipline.

9.2 The court or the Disciplinary Panel, after notice and an opportunity to

be heard, may suspend an attorney’s privilege to practice before this court during

the course of any disciplinary investigation and proceeding.

Section 10. Reinstatement.

10.1 An attorney suspended for six months or less is automatically

reinstated at the end of the period of suspension upon the filing of an affidavit of

compliance with the provisions of the disciplinary order. An attorney suspended

for more than six months or disbarred may not resume practice until reinstated by

order of the court.

10.2 An attorney who has been disbarred may not apply for reinstatement

until the expiration of five years from the effective date of the disbarment.

10.3 No petition for reinstatement may be filed within one year following

an adverse determination on the attorney’s petition for reinstatement.

10.4 Any attorney who has been disbarred by a district court must provide

proof of reinstatement to that court or demonstrate the futility of making an

application to the district court.

10.5 The Clerk refers petitions for reinstatement to the Disciplinary Panel.

If the Disciplinary Panel is satisfied that reinstatement is appropriate based upon

the findings of another court or otherwise, it will grant the petition. If the

Disciplinary Panel is not so satisfied, the Disciplinary Panel may schedule a

hearing by a special master on the petition. At the hearing, the petitioner has the

burden of demonstrating by clear and convincing evidence that he or she has the

moral qualifications, competency, and learning in the law required for admission to

practice before this court and that his or her resumption of the practice of law will

not be detrimental to the integrity and standing of the bar or to the administration

of justice, or contrary to the public interest. The special master must submit a

report and recommendation to the Disciplinary Panel who will act upon the

petition.

10.6 Reinstatement may be on such terms and conditions as the Disciplinary

Panel directs. If the attorney has been disbarred or suspended for five years or

more, this may include certification by the bar examiners of a state or other

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jurisdiction of the attorney’s successful completion of an examination for

admission to practice.

10.7 A condition precedent to reinstatement under this rule is payment of

the prevailing attorney admission fee. That requirement is in addition to any other

terms and conditions imposed by the Disciplinary Panel.

Section 11. Service of Papers and Other Notices.

11.1 Service of an order to show cause instituting formal disciplinary

proceedings will be made by personal service or by certified mail addressed to the

attorney at the last known office address as shown on the records or in the most

recent pleading or other document filed by the attorney in the course of any

proceeding before this court. Service also will be deemed complete if the notice is

addressed to counsel for the attorney.

Section 12. Payment of Fees and Costs.

12.1 At the conclusion of any disciplinary investigation or prosecution, if

any, under these rules, disciplinary counsel may make application to this court for

an order awarding reasonable attorney’s fees and reimbursing costs expended in

the course of such disciplinary investigation or prosecution. The court may require

the attorney to pay such reasonable attorney’s fees and costs.

Section 13. Access to Disciplinary Information.

13.1 Subject to 13.3 of this plan, orders to show cause why discipline

should not be imposed, orders imposing discipline, records created by the

Disciplinary Panel, are public records and are accessible to the public in the same

manner as other records of the court.

13.2 Subject to 13.3 of this plan, hearings before the special master are open

to the public.

13.3 The court or the Disciplinary Panel may, upon application and for good

cause, issue a protective order prohibiting the disclosure of specific information

otherwise privileged or confidential and direct that the proceedings be conducted

so as to implement the order.