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 86 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 Hard copies not required. Attorneys and pro se parties filing electronically need not provide the court with hard 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) (b) (c) (d) 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; a motion for summary disposition because of a supervening change of law or mootness; a motion to remand for additional trial court or administrative proceedings; or a motion by the government to enforce an appeal waiver and dismiss the entire appeal. Any request for dismissal of fewer than all claims or issues in an appeal based upon an appeal waiver (as opposed to a request for dismissal of an entire appeal), should be asserted in the merits brief and not by a preliminary motion filed under this rule. (2) Contents.

(a) (b) The motion must discuss the grounds for the motion. A motion under Rule 27.3(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. 87 (a) (b) If a motion to dismiss the entire case for lack of appellate jurisdiction or pursuant to a claims- processing deadline is filed, it must be filed within 14 days after the appeal or other proceeding is docketed in this court, unless good cause is shown for later filing.

If any other motion under Rule 27.3(A)(1)(a) through (c) is filed, it should be filed within 14 days after the appeal or other proceeding is docketed in this court, unless good cause is shown for later filing. (c) If a motion under Rule 27.3(A)(1)(d) is filed, it must be filed within 20 days after: (i) the district court’s notice, pursuant to Rule 11.1, that the record is complete, or (ii) the district court’s notice that it is transmitting the record pursuant to Rule 11.2, unless good cause is shown for later filing. (d) Failure to file a timely motion under this rule 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 Federal Rule of Appellate Procedure 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). 88 (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).

(C) Briefing stopped. The filing of a motion under Rule 27.3(A) or notice of action by the court under Rule 27.3(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. (C) Time to file.

A motion to certify should be filed at the same time 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 Federal Rule of Appellate Procedure 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 hard 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), 89 (2) (3) (4) (5) (6) (7) (8) (9) 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; to correct a brief or pleading; to supplement or correct records or to incorporate records from previous appeals; to consolidate appeals; to substitute parties; to appear as amicus curiae; to expedite, continue, or abate cases; to withdraw or substitute counsel in a civil case or, after compliance with Rule 46.4, in a criminal case; by appellant to dismiss an appeal (in criminal and postconviction cases, see 10th Cir.

R. 42.3), 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 Rule 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 Rule 27.5(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.

(C) Content. A motion to extend time must: (1) (2) state the brief’s due date; contain a statement of the opposing party’s position on the relief requested or why the moving party was unable to 90 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) (b) (c) (d) identify the litigation by caption, number, and court; describe the action taken in the other litigation on a request for continuance or deferment; state reasons why the other litigation should receive priority over the case in which the motion is filed; 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. 91 (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) (2) describe briefly and succinctly the nature of the order; and either be entered by the Clerk or state the name of the judge or judges directing its entry. 92 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; (C) the filing dates establishing the timeliness of the appeal or petition for 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: 93 (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. (c) Reply Brief.

The appellant may file a brief in reply to the appellee’s brief. 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: 94 • 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.) 95 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; or (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; 96 (3) (4) in social security cases, copies of the decisions of the administrative law judge and the appeals council; 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.

(C) All principal briefs. (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.

(6) Citizenship 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: 97 (a) include in that party’s brief a statement identifying each of its members and their states of citizenship; and (b) submit a supplemental statement if any of the required information changes. See Americold Realty Tr. v. Conagra Foods, Inc., 577 U.S. 378, 382 (2016) (for diversity jurisdiction, the citizenship of an unincorporated entity depends on the citizenship of all of its members). 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). (C) Use of passim disapproved. The Table of Authorities must not use the "passim" notation, but must instead list every page on which an authority is cited. Page ranges may be used if the authority is cited on every page in the range (e.g., "7-10" instead of "7, 8, 9, 10").

98 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.

(c) Briefs. In a case involving a cross-appeal: (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; (C) the statement of the case; and (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. 99 (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.

(C) The appellee’s reply brief is acceptable if it contains no more than half 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 100 (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.

101 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; (C) a table of authorities-cases (alphabetically arranged), statutes, and 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: 102 (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. 103 (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.)