Handbook IV.A: Cases from the District Court and the Tax Court

1. Preliminary Record on Appeal and Preparation of Transcripts (See Fed. R. App. P. 10.)

The preliminary record on appeal, prepared in the district court Clerk's Office or the Tax Court Clerk's Office, consists of the notice of appeal and the district court docket entries. Upon receipt of the preliminary record, a case administrator in this Court's Clerk's Office dockets the appeal, assigns it a number, and gives notice of the filing to all parties by issuing an order scheduling certain submissions. In addition, a case administrator checks to see that the docketing fee has been paid and issues an appropriate order if it has not.

The documents and exhibits filed in the district court; the transcript of proceedings, if any; and the docket entries prepared by the Clerk of the district court, constitute the record on appeal. The parties may correct errors or omissions in the record by stipulation. In the event of a dispute, this Court has the power to require that the record be corrected or amplified, but disputes about the accuracy of the record must first be submitted to the district court.

Within 14 days of filing the notice of appeal in a civil case, or entry of an order disposing of the last timely remaining motion as specified in Federal Rule of Appellate Procedure 4(a)(4)(A), appellants must order from the court reporter a transcript of such parts of the proceedings not already on file that they consider necessary to dispose of the appeal.

Counsel has the responsibility for assuring expeditious preparation of the transcript in a criminal appeal. If any unusual problems arise with the court reporter, they should be brought to this Court's attention immediately. Where the defendant proceeded in forma pauperis in the district court, that court, by local practice, requires appointed counsel to order the transcript at the same time as filing the notice of appeal.

Unless the entire transcript is ordered, the appellant must file and serve on the appellee a designation of the parts of the transcript ordered, and a statement of the issues to be presented on appeal. The appellee has 14 days to file and serve a cross-designation of additional parts of the transcript. If the appellant refuses to order the additional portions, appellee should do so, or ask the district court to compel the appellant to comply.

When, as is often the case, a complete transcript has been made during the trial, and it is filed with the Clerk, no designation need be made. The parties, however, must include in the appendix to the briefs only those portions of the transcript that are pertinent to the appeal. Awards of costs and sanctions may be imposed where a party has included unnecessary material in the appendix. See infra Part IX.B.

If no transcript is available, the appellant may prepare and file with the district court a statement of the evidence or proceedings based on the best available means, including recollection, and serve it on the appellee. The appellee has 14 days to serve objections or proposed amendments in response. The district court then approves the statement as submitted or amended, and certifies it to this Court as the record on appeal.

As with transcript designations, the parties are encouraged to agree on what exhibits are necessary to resolve the appeal, but in the absence of an agreement they may cross-designate exhibits.

In civil cases, the district court returns the exhibits to the parties who filed them. In criminal cases, the exhibits are given to the United States Attorney. If a party wants an exhibit presented in the courtroom during oral argument to this Court, counsel must notify the Court in writing at least 7 days before the argument date, and deliver the exhibit to the Clerk's Office. If the Court requests an exhibit, the parties will be notified and directed to deliver the exhibit to the Clerk’s Office.

2. Transmission of the Record (See Fed. R. App. P. 11; D.C. Cir. Rule 11.)

The district court transmits the preliminary record in all cases a few days after the notice of appeal is filed. Counsel should keep in mind that, unlike other federal circuits, briefing schedules in this Court, where the case has been scheduled for argument, are not computed from the date on which the record is filed in this Court. Rather, briefing schedules are established by order. See infra Part IX.A.1.

3. Docketing the Appeal (See Fed. R. App. P. 12; D.C. Cir. Rule 12.)

After an appeal has been docketed, the Clerk's Office enters an initial scheduling order that specifies the dates on which the docketing statement and initial submissions, procedural motions, and dispositive motions are due. In civil cases, the order directs the appellant to file within 30 days a docketing statement on a form provided by the Clerk's Office and to serve a copy on all other parties and amici curiae. The docketing statement includes information about the type of case; the district court or agency case number; relevant dates; the order sought to be reviewed; related cases; relevant statutes; and counsel's name, e-mail address, postal address, and telephone number. A copy of the district court judgment under review must be submitted with the docketing statement, as well as a preliminary statement of the issues for appeal and a transcript status report. This material assists the Clerk's Office and the Legal Division in screening and classifying all new appeals, identifying related cases in this Court, and detecting possible jurisdictional problems. The information about preparation of the transcript is especially important to ensure against delays as the case is processed. The parties also may include a stipulation to be placed in the stand-by pool for argument or a request to be included in the Court's mediation program. See infra Part IV.D (discussing the Court's mediation program), and Part X.E.4 (discussing the requirements to enter the stand-by pool).

Appellants must provide with the docketing statement a provisional certificate setting forth the information specified in Circuit Rule 28(a)(1), identifying parties, intervenors, and amici in the district court proceedings and in this Court, including any disclosure statement required by Federal Rule of Appellate Procedure 26.1 and Circuit Rule 26.1. Circuit Rule 26.1 requires corporations, associations, joint ventures, partnerships, syndicates, or other similar entities appearing before the Court to file a disclosure statement that identifies all parent companies and any publicly-held company that has a 10% or greater ownership interest (such as stock or partnership shares) in the entity. The statement also must identify the represented entity's general nature and purpose, as relevant to the litigation, and if the entity is unincorporated and its members have no ownership interests, the statement must include the names of any members of the entity that have issued shares or debt securities to the public. No listing need be made, however, of the names of members of a trade association or professional association.

In civil cases, the provisional certificate filed with the docketing statement is necessary to enable the Clerk's Office to avoid assigning matters to a judge who would be recused because of an association with a party or counsel in the case.

Appellees must file, within 7 days of service of the docketing statement, or upon filing a motion, response, or answer, whichever occurs first, any disclosure statement required by Federal Rule of Appellate Procedure 26.1 and Circuit Rule 26.1. See Fed. R. App. P. 26.1(d). Any disclosure statement required by Circuit Rule 26.1 must also accompany a motion to intervene, a written representation of consent to participate as amicus curiae, and a motion for leave to participate as amicus. See D.C. Cir. Rules 12(f), 15(c)(6). The disclosure statement and a Rule 28(a)(1)(A) certificate of parties and amici must likewise accompany a petition for panel rehearing or rehearing en banc, and the disclosure statement must be attached to any response to a petition. See D.C. Cir. Rule 40(c).

In an appeal from a pretrial release or detention order in a criminal case, the government must file any disclosure statement required by Federal Rule of Appellate Procedure 26.1(b) with the memorandum of law and fact or any response thereto, unless the statement has been filed previously with the Court. See D.C. Cir. Rule 9(a)(4). For applications for release after a judgment of conviction, the government must file any disclosure statement required by Federal Rule of Appellate Procedure 26.1(b) with any response to the application, unless the statement has been filed previously with the Court. See D.C. Cir. Rule 9(b).

A revised corporate disclosure statement must be filed any time there is a change in corporate ownership interests that would affect the disclosures required under Circuit Rule 26.1. Similarly, the statement required by Federal Rule of Appellate Procedure 26.1 must be supplemented whenever the required information changes.