Practitioner'S Guide To The United States Court Of Appeals For The .

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PRACTITIONER’S GUIDETO THEUNITED STATES COURT OF APPEALSFOR THETENTH CIRCUITTWELFTH EDITIONFebruary 2022(Tenth Circuit Rules effective Jan. 1, 2022)Distributed by:OFFICE OF THE CLERKUNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUITBYRON WHITE UNITED STATES COURTHOUSE1823 STOUT STREETDENVER, COLORADO 80257www.ca10.uscourts.gov

JUDGES AND OFFICERSUNITED STATES COURT OF APPEALSTENTH CIRCUITCIRCUIT JUSTICE:Neil M. GorsuchWashington, D.C.CIRCUIT JUDGES:Timothy M. Tymkovich, Chief JudgeDenver, ColoradoHarris L HartzAlbuquerque, New MexicoJerome A. HolmesOklahoma City, OklahomaScott M. Matheson, Jr.Salt Lake City, UtahRobert E. BacharachOklahoma City, OklahomaGregory A. PhillipsCheyenne, WyomingCarolyn B. McHughSalt Lake City, UtahNancy L. MoritzTopeka, KansasAllison H. EidDenver, ColoradoJoel M. CarsonRoswell, New MexicoVeronica S. RossmanDenver, Coloradoi

SENIOR CIRCUIT JUDGES:Stephanie K. SeymourTulsa, OklahomaBobby R. BaldockRoswell, New MexicoDavid M. EbelDenver, ColoradoPaul J. Kelly, Jr.Santa Fe, New MexicoMary Beck BriscoeLawrence, KansasCarlos F. LuceroDenver, ColoradoMichael R. MurphySalt Lake City, UtahTerrence L. O’BrienCheyenne, WyomingCIRCUIT EXECUTIVE:Circuit Executive:David TigheDeputy Circuit Executive:Leslee FathallahCLERK OF COURT:Clerk of Court:Christopher M. WolpertChief Deputy Clerk:Jane K. Castroii

CHIEF STAFF COUNSEL:Chief Staff Counsel:Niki Esmay HellerChief Deputy Staff Counsel:Tracey TiedmanLIBRARIAN:Circuit Librarian:Helane DavisAssistant Circuit Librarian:Diane BauersfeldCIRCUIT MEDIATION OFFICE:Chief Circuit Mediator:David W. Aemmeriii

TABLE OF CONTENTSI. TO APPEAL OR NOT TO APPEAL . 9A.Duration of Appeal. . 9B.Chances of Success. . 9C.Sanctions for Meritless Appeals. . 10II. INITIATING A PROCEEDING . 11A.Jurisdiction. . 11B. Appeals from District Courts. 111.Time for Filing Notice of Appeal . 122.Calculation of Time. . 133.Fees. . 154.Bond for Costs on Appeal in Civil Cases. . 15C.Appeals from Judgments Entered by Magistrates in Civil Cases. . 15D.Appeals by Permission from Interlocutory Orders. . 161.Requesting Permission to Appeal. 162.Time for Filing. . 163.Processing the Petition and Answer. . 174.Granting of Permission. . 17E.Review of Decisions of the United States Tax Court. . 171.Time for Filing. . 172.Tolling of Time for Filing a Notice of Appeal. . 18F.Review or Enforcement of Agency Orders. . 191.Time for Filing Petition or Application. . 192. Contents and Number of Copies of Petition for Review and Applicationfor Enforcement. . 19G.Original Proceedings. . 211.Time for Filing a Petition. . 212.Contents of the Petition. . 213.Further Proceedings. . 21iv

III. DOCKETING STATEMENT . 23A.Appeals from District Courts. . 231.Form and Content of Docketing Statement. . 232.Filing and Service. . 233.Appeals by Permission from Interlocutory Order. . 23B. Review of Decisions of the United States Tax Court and Review orEnforcement of Agency Orders. . 24IV. RECORDS AND APPENDICES . 25A.Appendices. . 25Please note a Briefing and Appendix Checklist, effective January 1, 2019 isposted on the court’s website. It includes information about the new electronicappendix requirement. . 261.Form of the Appendix (electronic version) . 262.Form of the Appendix (hard copy). . 263.Sealed Documents. . 274.Exhibits. . 275.Appellee’s Appendix. . 286.Exemptions. . 28B.Record on Appeal. . 291.Transcripts. . 292.Designation of Record. . 313.Transmission of Record. . 334.Correction and Modification of the Record. . 335.Agreed Statement as Record. . 33C.Record in Appeals from the United States Tax Court. . 33D.Record on Review or Enforcement of Agency Orders. . 34V. CIRCUIT MEDIATION OFFICE . 35A.Cases Scheduled for Mediation Conferences. . 351.Initiated by the Circuit Mediation Office. . 352.Initiated at a Party’s Request. . 35v

B.Mediation Conference. . 35C.Preparation for the Conference. . 36D.Mandatory Participation – Voluntary Settlement. . 36E.Confidentiality. . 37VI. WRITING A BRIEF . 38Please note a Briefing and Appendix Checklist, effective January 1, 2019 isposted on the court’s website. . 38A.Formal Requirements as to Content. . 381.Principal Briefs. . 382.Additional Briefs. . 403.Cross-Appeals. . 404.Designation of Parties. . 405.Joint Briefing. 416.Amicus Briefs. . 41B.Length and Form. . 411.Word Limitations (please note word limits changed eff. 12/1/2016). . 412.Covers, Page Size, Type Style and Spacing. . 413.Form of Citation. . 424.Addendum. . 42C.Other Writing Suggestions. . 42D.Sample Brief. . 45E.Opening Brief Checklist. . 45VII. FILING AND SERVING BRIEFS. 48A.Time for Filing. . 481.Appellant’s Opening Brief in Appeals from District Courts. . 482.Tax Court Appeals and Agency Review Proceedings. . 483.Answer Briefs. . 494.Reply Briefs. . 495.Cross-Appeals. . 49vi

B.Calculation of Time. 49C.Extensions of Time. . 50D.Copies to be Filed and Served. . 50VIII. ORAL ARGUMENT . 50A.Panel Arguments and Panel Composition. . 50B.Calendaring. . 51C.Time and Attendance. . 511.Time for Argument. . 512.Attendance of Counsel. 523.Postponement. . 52D.Preparation and Presentation. . 521.Preparation for Argument. . 522.Presentation of Oral Argument. . 53E.Video Conference. . 57IX. DECISION – MANDATE – COSTS . 59A.Deciding the Appeal. . 59B.Mandate. . 601.Issuance. . 602.Stay Pending Application for Certiorari. . 603.Petition for Writ of Certiorari. . 61C.Costs. . 61X. PETITIONS FOR REHEARING – EN BANC PROCEDURE . 62A.Petitions for Rehearing. . 621.Time for Filing. . 622.Form and Disposition. . 623.Frivolous Petitions – Sanctions. 624.Petitions for Rehearing not Prerequisite to Certiorari. . 63B.En Banc Procedure. . 631.Petitions for Rehearing En Banc. . 63vii

2.Filing Requirements. . 633.Defective Petitions. . 644.Matters Not Subject to En Banc Consideration. . 645.Processing an Application. . 646.If Rehearing En Banc Granted. 65XI. STAY OR INJUNCTION PENDING APPEAL . 65A.Jurisdiction. . 65B.Fees. . 66C.Content of Motion and Supporting Papers. . 66D.Filing and Service. . 66F.Disposition. 67XII. RELEASE IN CRIMINAL CASES . 68A.Tenth Circuit Requirements. . 681.Docketing Statement. 682.Preliminary Record. . 683.Memorandum or Brief with Appendix. . 69B.Disposition. 69XIII. HABEAS CORPUS PROCEEDINGS . 70A.Application for Writ. . 70B.Certificate of Appealability. . 70C.Special Procedures in Death Penalty Cases. . 701.Notification of District Court Action. . 702.Lodging of Papers Prior to Appeal. . 71D.Antiterrorism and Effective Death Penalty Act. . 71XIV. MOTIONS. 72A.B.Relief Sought. . 721.Prohibited Relief. . 722.Restricted Relief. . 72Contents of Motions. . 72viii

C.Responses. . 73D.Form and Service. . 73E.Disposition. 73XV. RESPONSIBILITIES OF COUNSEL . 74A.Admission to Practice. . 74B.Appearance by Counsel or Parties. . 741.Entry of Appearance. . 742.Consequences of Appearance. . 753.Continuance of Representation in Criminal and Post-Conviction Cases. 75C.Withdrawal and Dismissal. . 761.Withdrawal of Counsel. . 762.Frivolous Appeals. . 773.Dismissal of Appeal. . 77D.Suspension, Disbarment, and Discipline. . 781.Effect of Suspension or Disbarment by Another Court. . 782.Discipline for Practice in this Court. . 78XVI. JUDICIAL MISCONDUCT COMPLAINT PROCEDURE . 78Appendices . 81Appendix A – Sample BriefAppendix B – CJA Advice to Counsel LetterAppendix C – Helpful Linksix

OVERVIEWOFTHE UNITED STATES COURT OF APPEALSFOR THE TENTH JUDICIAL CIRCUITCourt StructureThe federal courts of appeals are the intermediate appellate courts between thedistrict (trial) courts and the Supreme Court of the United States. There are thirteen courtsof appeals: eleven numbered circuits (First through Eleventh), the District of ColumbiaCircuit, and the Federal Circuit. The numbered circuits, including the Tenth Circuit,provide appellate review of all cases resolved by the district courts within the geographicarea of their jurisdiction. They also decide appeals brought to them by residents of thecircuit from various administrative tribunals, including the Tax Court and agencies of thefederal government. The territorial jurisdiction of the Tenth Circuit includes the six statesof Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah, plus those portions ofthe Yellowstone National Park extending into Montana and Idaho.Other federal courts also have jurisdiction of cases arising in the Tenth Circuit. TheDistrict of Columbia Circuit may hear administrative appeals from most federal agenciesregardless of the residence of the litigants. The Federal Circuit has exclusive jurisdictionover appeals of patent cases and most non-tort claims seeking monetary recovery againstthe United States government.A history of the United States Court of Appeals for the Tenth Circuit was publishedin 1992. Logan, Hon. James K., ed., The Federal Courts of the Tenth Circuit: A History(1992).Only the United States Supreme Court can review decisions of the Tenth Circuit.In almost all instances the Supreme Court’s review of this court’s decisions isdiscretionary. Indeed, the United States Supreme Court accepts for review less than onepercent of the Tenth Circuit’s cases. In most litigation the court of appeals is, for practicalpurposes, the court of last resort.The headquarters of the Tenth Circuit is the Byron White United States Courthouselocated at 1823 Stout Street in Denver, Colorado, named after Supreme Court Justice Byron

R. White who served on the Court from 1962 to 1993. Justice White was a Colorado nativeand was assigned as our circuit justice during his tenure on the United States SupremeCourt. Most oral arguments are heard in Denver, but the court may hear cases at any placewithin the circuit. The court holds special criminal sessions in the separate states andoccasionally will hold a full session in one of the states in the circuit.JudgesEach of the six states in the circuit has at least one active judge on the court. Thecourt is allocated twelve active judges and currently has eight senior judges. Although alljudges on the Tenth Circuit maintain chambers in the Denver courthouse, the non-Coloradojudges have their principal working chambers in their home states.The chief judge is the administrative head of the court. A judge becomes chief bybeing the circuit judge in regular active service who is both senior in commission and underthe age of sixty-five when an opening occurs. The chief judge may not serve more thanseven years or after reaching age seventy. The chief judge is also a member of the JudicialConference of the United States and presides over the annual Judicial Conference of thecircuit and over the Judicial Council of the circuit.Circuit judges are appointed by the President and confirmed by the Senate. Theactive circuit judges are those who have entered upon the service of their office, and havenot yet taken senior status or retirement. A judge becomes eligible for senior status orretirement at age sixty-five if he or she has fifteen years of service, or at a later age whena combination of the judge’s age and service on the court (with a ten-year minimum) equalseighty. Senior judges continue as members of the court to the extent that they are willingwork on cases and the court requests their service. All senior judges of this court continueto provide valuable service to the court. It would not be possible for the court to handle itsworkload without their contribution.The current active judges (effective February 2022), in order of seniority, are: ChiefJudge Timothy M. Tymkovich of Colorado; Harris L Hartz of New Mexico; Jerome A.Holmes of Oklahoma; Scott M. Matheson, Jr. of Utah; Robert E. Bacharach of Oklahoma;Gregory A. Phillips of Wyoming; Carolyn B. McHugh of Utah; Nancy L. Moritz ofKansas, Allison H. Eid of Colorado; Joel M. Carson of New Mexico; and Veronica S.Rossman of Colorado. Senior judges (effective February 2022) are Stephanie K. Seymourof Oklahoma; Bobby R. Baldock of New Mexico; David M. Ebel of Colorado; Paul J.Kelly, Jr. of New Mexico; Mary Beck Briscoe of Kansas; Carlos F. Lucero of Colorado;Michael R. Murphy of Utah, Terrence L. O’Brien of Wyoming.2

Non-judge PersonnelAlthough the chief judge oversees all the circuit’s administration, non-judgepersonnel supervise many important activities of the circuit more directly. The CircuitExecutive, David Tighe, is in charge of most non-judicial administrative duties of thecourts within the Tenth Circuit. His specific duties include receipt of all misconductcomplaints against judges in the circuit.The Clerk of Court, Christopher M. Wolpert, is custodian of the court’s records andpapers. With the assistance of the Chief Deputy Clerk, Jane K. Castro, and a large staff inthe Clerk’s Office, he receives and accounts for monies paid to the court, initiates a docketfor each appeal, issues calendars of cases for oral argument sessions, and enters orders andopinions of the court as authorized and issued by the judges. The Clerk also has authorityto act on certain routine motions. 10th Cir. R. 27.5. The Clerk’s Office is located on thefirst floor of the Byron White United States Courthouse, 1823 Stout Street, Denver,Colorado, and is open for business from 8:00 a.m. to 5:00 p.m., Mountain Time, Mondaythrough Friday, except legal holidays. With the court’s electronic filing system, however,it is always open for the purpose of filing appropriate documents. Emergency mattersarising outside of regular office hours requiring immediate attention must be directed tothe Clerk, Christopher M. Wolpert, or Chief Deputy Clerk, Jane K. Castro, whose cellphone numbers are: Christopher M. Wolpert (510) 207-3952 and Jane K. Castro (512) 8507251.The Office of Staff Counsel, headed by Niki Esmay Heller, provides majorassistance to the judges on selected types of cases, particularly those that do not requireoral argument.The Circuit Librarian, Helane Davis, presides over a large collection of legalmaterials at the circuit library in Denver. The circuit library is available for use by lawyersadmitted to practice before the circuit court, and is located in the Byron Rogers UnitedStates Courthouse, 1929 Stout Street, Denver, Colorado.The Circuit Mediation Office provides mediation services in civil appeals. TheCircuit Mediator is David W. Aemmer. You may be contacted by the Circuit MediationOffice to explore the possibility of settlement of your case. Counsel are encouraged torequest a conference if the Circuit Mediation Office might assist in settling your case.Requests for a conference are confidential.The names, office addresses, and phone numbers of the key administrativepersonnel appear at the end of this section.3

Names, Addresses, and Telephone Numbers ofCourt Officers and OfficesDavid Tighe, Circuit Executive, U.S. Court of the Tenth Circuit, Byron White U.S.Courthouse, Denver, Colorado 80257; (303) 844-2067Christopher M. Wolpert, Clerk, U.S. Court of Appeals for the Tenth Circuit, Byron WhiteU.S. Courthouse, Denver, Colorado 80257; (303) 844-3157Niki Esmay Heller, Chief Staff Counsel, U.S. Court of Appeals for the Tenth Circuit, ByronWhite U.S. Courthouse, Denver, Colorado 80257; (303) 844-5306Helane Davis, Circuit Librarian, U.S. Court of Appeals for the Tenth Circuit, C-411 U.S.Courthouse, Denver, Colorado 80294; (303) 844-3591David W. Aemmer, Chief Circuit Mediator, U.S. Court of Appeals for the Tenth Circuit,Byron White U.S. Courthouse, Denver, Colorado 80257; (303) 844-6017; FAX (303) 8446437Inquiries Concerning Rules, Procedures, or CasesThe rules, this Guide and other information about the court are available on thecourt’s website at http://www.ca10.uscourts.gov. In particular, interested parties will findinformation and training tools, including a CM/ECF Manual, on the court’s website. Thewebsite also includes information for lawyers seeking to register to file electronically.Additionally, access to the court’s docket and opinions is available on PACER(Public Access to Court Electronic Records) at www.ca10.uscourts.gov/pacer. To registeras a PACER user (which is a separate registration from that allowing electronic filing); usethe Registration Wizard at . PACER isavailable around the clock seven days a week. The court’s opinions are also available freeof charge on the court’s website.As noted above, emergency matters or matters requiring special handling orinterpretation of the rules must be directed to the Clerk, Christopher M. Wolpert; ChiefDeputy Clerk, Jane K. Castro, or a deputy clerk at the central number for the Clerk’s Office,(303) 844-3157. For emergencies arising outside regular office hours which requireimmediate attention inquiries may be directed to Christopher M. Wolpert at (510) 2073952, or Jane K. Castro at (512) 850-7251.4

MAJOR CASE PROCESSING EVENTSEffective January 1, 2022Key:USDCUnited States District CourtUSCAUnited States Court of Appeals 10th Cir. R. Tenth Circuit RulesUSTCUnited States Tax CourtIFPIn Forma PauperisUSCUnited States CodeNOANotice of AppealROARecord on AppealWHATNotice ofAppealWHOAppellantPetition for PetitionerReviewEntry ofAll partiesAppearanceFRAPFederal Rules of Appellate ProcedureWHERE/WHENFiled in USDC:Criminal Cases: within 14 daysafter entry of judgment, or 30 daysif U.S. is the appellant;Civil Cases: within 30 days afterentry of the order or judgment, or60 days if U.S. is a party;REFERENCEFRAP 4(b)Filed in USTC:Tax Cases: within 90 days afterdecision is entered.Filed in USCA: within timeprovided by statuteWithin fourteen days of filingappeal or other proceedingFRAP 135FRAP 4(a)FRAP 1510th Cir. R.46.1(A)

WHATFiling andDocketingFeesWHOAppellant orPetitionerPreliminary Clerk, USDCRecordDocketingAppellant orStatementPetitionerTranscriptAppellantOrder FormDesignation Appellantof Record(Appeals withcourt-appointedcounsel only)TranscriptCourt ReporterRecord onAppealClerk, USDC(for appointedcounsel or pro secases only—retainedappellant’scounsel must filean appendix)WHERE/

In almost all instances the Court's review of this court's decisions is Supreme discretionary. Indeed, the United States Supreme Court accepts for review less than one percent of the Tenth Circuit's cases. In most litigation the court of appeals is, for practical purposes, the court of last resort.

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