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Practitioner’s Checklist: Filing Second Circuit Civil Appeals

What to Appeal:

• Final judgments of a U.S. District Court.

• Interlocutory orders specified in 28 U.S.C. §1292(a), which include:

o Interlocutory orders of the district courts of the United States, or of the judges
thereof, granting, continuing, modifying, refusing or dissolving injunctions, or
refusing to dissolve or modify injunctions, except where a direct review may be
had in the Supreme Court; (28 U.S.C. §1292(a))

o Interlocutory orders appointing receivers, or refusing orders to wind up

receiverships or to take steps to accomplish the purposes thereof, such as directing
sales or other disposals of property;

o Interlocutory decrees of such district courts or the judges thereof determining the
rights and liabilities of the parties to admiralty cases in which appeals from final
decrees are allowed.

• When a district judge, in making in a civil action an order not otherwise appealable under
this section, shall be of the opinion that such order involves a controlling question of law
as to which there is substantial ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate termination of the litigation,
he shall so state in writing in such order. The Court of Appeals which would have
jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal
to be taken from such order, if application is made to it within ten days after the entry of
the order: Provided, however, That application for an appeal hereunder shall not stay
proceedings in the district court unless the district judge or the Court of Appeals or a
judge thereof shall so order. (28 U.S.C. §1292(b)).

Time to File a Notice of Appeal:

• A party has 30 days to file a Notice of Appeal once the judgment or order being appealed
has been entered. (Federal Rules of Appellate Procedure (FRAP) Rule 4(a)(1)(A))

• If the United States or its officer or agency is a party, a party has 60 days to file a Notice
of Appeal once the judgment or order being appealed has been entered. (FRAP
4(a)(1)(B))

• 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.
(FRAP 4(a)(2))

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Extending Your Time to File:

• If a party moves to extend the time to file a Notice of Appeal within thirty (30) days after
the time to file expires AND the party shows “excusable neglect or good cause” (FRAP
4 (a)(5)(A))

• If a party moves before the expiration of the time to file, the motion may be ex parte
unless the court requires otherwise. If the motion is filed after the expiration of the time
to file, notice must be given to the other parties in accordance with local rules. (FRAP 4
(a)(5)(B))

How Pending District Court Motions Affect Time to File:

• If any of the following motions are timely filed in the district court, the time to file begins
to run from the entry disposing of the last pending motion:

o for judgment under Rule 50(b);

o to amend or make additional factual findings under Rule 52(b), whether or not
granting the motion would alter the judgment;
o for attorney's fees under Rule 54 if the district court extends the time to appeal
under Rule 58;
o to alter or amend the judgment under Rule 59;
o for a new trial under Rule 59; and/or
o for relief under Rule 60 if the motion is filed no later than 28 days after the
judgment is entered.

(FRAP 4 (a)(4)(A))

• If a party files a Notice of Appeal after the court announces or enters a judgment pursuant
to FRAP 4 (a)(1), but prior to the court’s disposition of any of the above motions, 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. (FRAP 4(a)(4)(B)(i)).

• If a party intends to challenge any order disposing of one of the above motions, the party
must file a Notice of Appeal, or amend a previously filed Notice of Appeal, within 30
days (60 days if the US is a party), accruing from the date the order was entered. (FRAP
4(a)(4)(B)(ii)).

What to File:

The Notice of Appeal

• A template for a Notice of Appeal is found at Form 1 in the Appendix of Forms at the
Second Circuit Website

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• The notice of appeal must include the lower court caption and index number and
designated the order(s)/judgment(s) being appealed from.

• The order(s)/judgment(s) designated in the Notice of Appeal, must be appended to the

Notice.

Form C – Civil Appeal Pre-Argument Statement

• Form C is a two (2) page, fillable PDF available on the Second Circuit website under
“Forms and Instructions”.

• Form C must be filed within 14 days of the filing of the Notice of Appeal.

• Form C requires two (2) addenda. Addendum “A” requires (1) a brief description of the
Nature of the Action and the Result Below; (2) a copy of the Notice of Appeal and a
current copy of the Lower Court docket; and (3) copies of all relevant opinions/orders
forming the basis of the appeal. Addendum “B” requires a list of the issues to be raised
on appeal.

• Form C, including the addenda, must be served on ALL parties and the original must be
filed with the Clerk of the Second Circuit. A STAMPED copy must also be filed
electronically on the Second Circuit’s CM/ECF system.

Form D – Transcript Information Form

• Form D is a one (1) page, fillable PDF available on the Second Circuit website under
“Forms and Instructions”.

• Form D must be filed within 14 days of the filing of the Notice of Appeal.

• Form D requires verification that arrangements have been made for the preparation of
transcripts, if applicable.

• The original Form D must be filed with the Clerk of the Second Circuit. A STAMPED
copy must also be filed electronically on the Second Circuit’s CM/ECF system.

At the Courthouse:

• Once the Notice of Appeal has been prepared, the original and two (2) copies must be
taken to the appeals counter at the District Courthouse.

• Payment must be made to the District Court at the time of filing the Notice of Appeal.
The current cost to file is $455.00.

• The party’s stamped copy of the Notice of Appeal must be scanned and emailed as a PDF
to appeals@nysd.uscourts.gov as soon as practicable after filing.

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• The Notice of Appeal will be served by the Clerk of the District Court.

Acknowledgment and Notice of Appearance:

• The Second Circuit will send (via e-mail/ECF) a docketing notice.

• Counsel must complete and file the Acknowledgement and Notice of Appearance form
(found in the Forms section of the Second Circuit website) within 14 days of receiving
the docketing notice.

• The Acknowledgement and Notice of Appearance form must be filed on ECF.

Briefing Schedule: THIS IS NEW IN 2010!

• Within 14 days of receiving the complete transcript or, if no transcript need be ordered,
the date which Form D is required to be filed, the appellant must write to the Court
requesting a filing day for the brief.

• The date requested must be within 120 days of the scheduling request.

• Appellants scheduling request must be filed on the CM/ECF system.

• Appellee must submit a scheduling request within 14 days of the receipt of Appellant’s
brief. Again, the date requested must be within 120 days of the receipt of Appellant’s
brief.

• FAILURE TO SUBMIT A SCHEDULING REQUEST WILL RESULT IN THE BRIEF

BEING DUE 40 DAYS FROM THE FILING OF FORMS D OR THE RECEIPT OF
THE COMPLETE TRANSCRIPT!

CAMP Conference:

• The Civil Appeals Management Program will hold a conference with all parties after the
appeal is docketed in an effort to settle.

• Prior to a CAMP conference, counsel for all parties must consult with clients to obtain
authority to settle.

Transmitting the Record to the Second Circuit:

• Transmitting the record the Appellant’s duty.

• The record on appeal consists of all of the lower court documents including transcripts.

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DUNNINGTON, BARTHOLOW & MILLER LLP 1359 BROADWAY, SUITE 600
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• Within 14 days of filing the notice of appeal, the appellant must do whatever is necessary
to enable the district court clerk to assemble and forward the index of the record to the
Court of Appeals. This typically requires Appellant to visit the District Court Clerk,
physically page through the documents with the docket sheet to ensure all of the
documents are present, and sign a verification indicating the record is complete. The
District Clerk Court will then forward the index to the Second Circuit.

• If the record is not complete, Appellant must work with the District Court Clerk to
complete the record.

Correction or Modification of the Record:

• 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.

• 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:

o on stipulation of the parties;

o by the district court before or after the record has been forwarded; or
o by the court of appeals.

(FRAP 10 (e))

Amicus Briefs:

• Any amicus curiae, with the exception of the U.S. or its officers or agencies, must have
either consent of all parties or permission from the Second Circuit to file an amicus brief.

• Amicus briefs are due within seven (7) days of the filing of the principal brief.

Practitioner’s Tips:

• An appeal taken from the judgment or order of a Magistrate Judge is taken in the same
manner as an appeal from a district court judgment.
• It’s advisable to always bring extra copies to the Courthouse
• Make sure you are admitted to practice before the Second Circuit.

Helpful Second Circuit Websites:

• http://www.ca2.uscourts.gov//clerk/Rules/Rules_home.htm
• http://www.ca2.uscourts.gov//clerk/Forms_and_instructions/forms_home.htm

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