Appearance, Withdrawal of Appearance

(a) Representation Statement, Appearance. A representation statement must take the form of an appearance, in a form prescribed by this court. Attorneys for both appellant and appellee must file appearance forms within 14 days after the case is docketed in the court of appeals. See also 1st Cir.

R. 46.0(a).

Additional or new attorneys for the parties may enter an appearance outside the 14 day period. However, in no event may any attorney file a notice of appearance without leave of court after the appellee brief has been filed. (b) Withdrawal of Appearance. No attorney who has entered an appearance in this court may withdraw without the consent of the court.

An attorney who has represented a defendant in a criminal case in the district court will be responsible for representing the defendant on appeal, whether or not the attorney has entered an appearance in the Court of Appeals, until the attorney is relieved of such duty by the court. Procedures for withdrawal in criminal cases are found in 1st Cir.

R. 46.6.

For requirements applying to court-appointed counsel, reference is made to 1st Cir.

R. 46.5(c), the Criminal Justice Plan of this Circuit.

Rule 12.1. Is Barred by a Pending Appeal Remand After an Indicative Ruling by the District Court on a Motion for Relief That (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. 30 (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.

TITLE III.

APPEALS FROM THE UNITED STATES TAX COURT

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. 31 (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. 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.

TITLE IV.

REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE AGENCY, BOARD, COMMISSION, OR OFFICER 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. 32 (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. (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. 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. Rule 16.

The Record on Review or Enforcement (a) Composition of the Record. The record on review or enforcement of an agency order consists 33 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. 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.

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.

34 (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.