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.

50 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 (C) specify the order or part thereof to be reviewed. (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. 51 (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. (c) Service of the Petition or Application. 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.) 52 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 the docketing of 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.

R. 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. 53 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. 54 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. 55 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.) 56 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. The appendix requirement of Rule 30.1 does not apply to cases under this Rule. 57 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. (C) The moving party must give reasonable notice of the motion to all 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.) 58 10th Cir.

R. 18 18.1 Applications for stay.

Applications for stay must comply with Rule 8. 59 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. 60 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.)