Handbook IX.A: Briefs

(See Fed. R. App. P. 28-32.1; D.C. Cir. Rules 25, 28-32.1)

A well-written brief is of prime importance to success on appeal. Three precepts should guide counsel in drafting briefs:

P Be clear.

P Cite the record and legal authorities fully, fairly, and accurately and, in particular, cite to controlling D.C. Circuit or Supreme Court law.

P Be concise.

1. Timing

Normally, the Clerk's Office establishes a briefing schedule after the case has been screened and classified by the Legal Division, and after any pending motions in the case have been resolved. In cases designated as "Regular Merits" cases, the date for oral argument is announced by a separate order after the briefing order has issued. Typically, the final brief will be due at least 45 days before the argument date.

In general, the appellee's or respondent's brief is due 30 days after the appellant’s or petitioner’s brief. A reply brief is due 21 days later. To avoid repetition of factual statements or legal arguments made in the principal briefs, the Clerk's Office will stagger the briefing so that intervenors and amici curiae file their briefs 7 days after the brief of the party they support. A briefing schedule also will contain additional time if the parties utilize a deferred appendix, as provided in Federal Rule of Appellate Procedure 30(c). See infra Part IX.B.3.

Once a case has been calendared for oral argument, the Court strongly disfavors motions to extend the briefing schedule. Such motions will be granted only for extraordinarily compelling reasons. In those extraordinary situations where counsel must seek such an extension, Circuit Rule 28(e)(2) requires the motion to be filed at least 7 calendar days before the brief is due. Circuit Rule 28(e)(3) requires that, before filing the motion, counsel attempt to obtain the consent of other counsel, and recite in the motion the result of such an attempt. Circuit Rule 28(e)(3) also specifies the requirements for service of motions to extend time or to exceed length limits. On a showing of good cause, the Clerk may grant a late-filed motion to extend time if it is unopposed and will not affect the oral argument schedule. Otherwise, motions for extension of time to file a brief that are filed less than 7 days before the brief is due will be denied as untimely, absent extraordinary circumstances. Counsel should be aware that, while the Court will attempt to rule on the motion prior to the date on which the brief is due, submission of a motion to extend time or exceed length limits does not toll the time for compliance with the filing requirements for briefs. Under Circuit Rule 28(e)(4), movants are required to meet all filing requirements absent an express order from the Court granting a waiver.

With respect to cases that have been calendared for oral argument, the Court has instructed the Clerk to deny motions for extensions of time to file briefs (except for very modest extensions of 1 or 2 days) where no explanation for the request is provided or where the need for the extension is attributed to: (1) production difficulties such as malfunctioning equipment, delivery problems, or the lack of secretarial help; or (2) the press of other business. The Clerk may, upon an appropriate showing, grant extensions of up to 7 days.

Untimely or unwarranted motions for extensions of time may result in the imposition of sanctions. If sanctions are appropriate, the Court will consider issuing an order to show cause that requires further explanation from counsel; imposing a fine payable to the Court; assessing attorneys’ fees; or referring counsel to the Court’s disciplinary committee.

If the appellant or petitioner fails to file the opening brief within the time allowed by the Court, the appellee or respondent may move to dismiss the case, or the Court may dismiss it on the Court's own motion. If the appellee or respondent fails to file a timely answering brief, the Court may order the case submitted on the appellant's or petitioner's brief alone. Circuit Rule 34(f) forecloses oral argument by any party who fails to file a brief, except by permission of the Court.

2. Consolidated and Joint Appeals (See Fed. R. App. P. 3(b), 28, 32; D.C. Cir. Rules 28, 32.)

Parties with common interests in consolidated or joint appeals must join in a single brief where feasible. The Court has admonished counsel that it looks with extreme disfavor on the filing of duplicative briefs in consolidated cases. To avoid repetitious arguments, a party may adopt or incorporate by reference all or any part of the brief of another.

It is important in consolidated cases that the parties caption their briefs correctly and uniformly. Each brief cover must bear the lead docket number and corresponding case name and reflect the particular docket number and case name pertaining to that party.

3. Cross-Appeals (See Fed. R. App. P. 28.1; D.C. Cir. Rule 28.1.)

In cross-appeals, the first party to appeal is deemed the appellant; if cross-notices are filed on the same day, the plaintiff is deemed the appellant. These designations may be modified by the Court, or by agreement of the parties if the parties notify the Clerk's Office at the time the docketing statements are filed in civil cases, or at the time the final transcript status report is filed in criminal cases. The brief of the appellee serves both as the response brief to appellant's appeal and as the main brief on appellee's appeal. For length limitation purposes, both appellant's opening and reply/response briefs are treated as principal briefs. They are limited to 30 pages each unless the briefs comply with the type-volume limitation of 13,000 words or use a monospaced face and contain no more than 1,300 lines of text. See Fed. R. App. P. 28.1(e). The appellee’s opening brief is limited to 35 pages unless it complies with the type-volume limitation of 15,300 words or uses a monospaced face and contains no more than 1,500 lines of text. See id. The appellee may file a second brief, but only in reply to the appellant's answer on the appellee's cross-appeal. That brief is limited to half the type-volume of appellant’s principal brief or 15 pages. See Fed. R. App. P. 28.1(e)(2)(C); see also Part IX.A. 6, 7. Further briefing requires permission of the Court. See Fed. R. App. P. 28.1(c)(5). The cover of appellant’s opening brief must be blue; appellee/cross-appellant’s response and opening brief, red; appellant/cross-appellee’s reply and response brief, yellow; and appellee’s reply brief, gray. See Fed. R. App. P. 28.1(d).

4. Amici Curiae and Intervenors (See Fed. R. App. P. 29; D.C. Cir. Rules 28(d), 29, 32, 40(f).)

A brief of an amicus curiae may be filed only by consent of all the parties or by leave of the Court, unless the amicus is the United States or an officer or agency thereof, a state, a territory, a commonwealth, or the District of Columbia, or has been appointed by the Court. A motion for leave to file an amicus brief must set forth the movant’s interest, the reason why briefing is desirable, and why the matters asserted are relevant. Motions for leave to participate as amicus curiae, or written representation of the consent of all parties to such participation, must be accompanied by any disclosure statement required by Circuit Rule 26.1. Parties seeking leave to participate as amicus curiae after the merits panel has been assigned or at the rehearing stage should be aware that the Court will not accept an amicus brief where it would result in the recusal of a member of the panel or recusal of a member of the en banc Court.

The Court encourages those who wish to participate as amici, including governmental entities, to notify the Court as soon as practicable after a case is docketed in this Court, by filing a notice of intent to participate, a representation of consent, or a motion for leave of court when necessary. Prompt notification will enable the Court to accommodate amici briefs in setting the briefing format and schedule in each case, and assist the Court in the early identification of potential recusals caused by the participation of amici. An amicus brief will be due as set by the briefing order in each case; in the absence of provision for such a brief in the order, the brief must be filed in accordance with the time limitations of Federal Rule of Appellate Procedure 29(a)(6).

Federal Rule of Appellate Procedure 29(a)(4)(E) requires an amicus (other than the United States or its officer or agency, or a state) to disclose whether a party’s counsel authored the amicus brief in whole or in part and whether a party or a party’s counsel contributed money with the intention of funding the preparation or submission of the brief, and to identify every person (other than the amicus, its members, and its counsel) who contributed money that was intended to fund the brief’s preparation or submission.

The brief of an amicus curiae not appointed by the Court may not exceed one-half the maximum length authorized by the Federal Rules of Appellate Procedure for a party’s main brief. See Fed. R. App. P. 29(a)(5). The brief of an amicus appointed by the Court is usually subject to the length limitations set forth in Federal Rule of Appellate Procedure 32(a)(7).

This Court’s rules define an "intervenor" as an interested person who has sought and obtained this Court's leave to participate in an already instituted proceeding. See D.C. Cir. Rule 28(d). The principal brief of an intervenor is limited to 19 pages unless the brief complies with the type-volume limitation of 9,100 words or uses a monospaced face and contains no more than 813 lines of text. See D.C. Cir. Rule 32(e)(2).

The briefs are due approximately 7 days after the brief of the party that the intervenor or amicus supports, and the briefs may not repeat facts or legal arguments made and adequately elaborated upon in the parties' briefs. Circuit Rule 28(d)(4) requires consolidated briefing by intervenors on the same side, to the extent practicable. Similarly, Circuit Rule 29(d) requires amici curiae on the same side to join in a single brief, to the extent practicable. Where an intervenor or amicus files a separate brief, counsel must certify in the brief why a separate brief is necessary. Grounds that are not acceptable as reasons for filing a separate brief include representations that the issues presented require greater length than allowed under the rules, that counsel cannot coordinate filing a single brief because of geographical dispersion, or that separate presentations were permitted in the proceedings below. When a governmental entity is an amicus curiae or an intervenor, it is not required to file a joint brief with other amici or intervenors. For this purpose, a governmental entity includes the United States or an officer or agency thereof, a state, a territory, a commonwealth, and the District of Columbia.

An intervenor supporting an appellant or petitioner may file a reply brief when the appellant's or petitioner's reply brief is due, but an amicus, other than one appointed by the Court, may not file a reply brief unless otherwise directed by the Court. An intervenor’s reply brief is limited to half the type-volume of the intervenor’s opening brief or 9 pages.

5. Number of Copies (See Fed. R. App. P. 31(b); D.C. Cir. Rule 31.)

Except when an unrepresented party is proceeding in forma pauperis, the original and 8 copies of each brief must be filed and 2 copies served on each party separately represented. Parties who are not represented by counsel and are proceeding in forma pauperis need file only the original brief, and the Clerk's Office will duplicate the necessary copies. If a deferred appendix is used (see infra Part IX.B.3), the parties are required to file only one copy of the initial briefs. Electronic filers should submit the initial brief in electronic format only, unless the Court requests paper copies.

6. Format (See Fed. R. App. P. 32(a); D.C. Cir. Rules 28(a), 32.)

Briefs may use either a proportionally spaced or a monospaced face and must be set in a plain, roman style, although italics and boldface may be used for emphasis. Case names must be italicized or underlined. If a brief uses a proportionally spaced face, the typeface must be at least 14-point and must include serifs, but sans-serif type may be used in headings and captions. Certain typefaces can be easier to read, such as Century and Times New Roman. The Court encourages the use of these typefaces. Briefs that use Garamond as the typeface can be more difficult to read and the use of this typeface is discouraged. If a brief uses a monospaced face, it may have no more than 10 ½ characters per inch. See Fed. R. App. P. 32(a)(5), (6). Briefs must be double-spaced and printed on one side of the page only. Evasion of the length limitations may result in the Court’s rejection of the brief.

Briefs other than those submitted by unrepresented parties proceeding in forma pauperis must have colored covers as follows: appellant - blue; appellee - red; intervenor or amicus curiae - green; any reply - gray; supplemental brief - tan. In cases designated "Complex," the cover of the briefs and the first page of motions and other pleadings should indicate the designation "Complex." In cases being considered for disposition without oral argument under Circuit Rule 34(j), the cover of the briefs and the first page of motions and other pleadings should indicate "Case being considered for treatment pursuant to Rule 34(j)."

The front cover of the brief must set forth the following: (1) the name of this Court; (2) the docket number of the appeal and the caption of the case, including the docket number and caption of the lead case in a consolidated appeal; (3) the nature of the proceeding and the name of the court or agency below (e.g., Appeal from the United States District Court for the District of Columbia; Petition for Review of an Order of the Federal Communications Commission); (4) the title of the document (e.g., Brief for Appellant); (5) the names, postal addresses, and telephone numbers of an unrepresented party or counsel representing the party filing the brief, and e-mail addresses for electronic filers; and (6) the date on which the case has been scheduled for oral argument. One of the attorneys designated on the cover must be a member of the bar of the Court, except as otherwise provided by law.

The Federal Rules of Appellate Procedure require that briefs and appendices be bound in a manner that permits the document to lie reasonably flat when open. The following types of binding ensure that the brief will lie flat when open: spiral (also known as coil), comb, and wire binding. The following types of binding do not permit a brief to lie flat when open: velo (also known as strip) binding, metal fasteners or posts, and staples. Accordingly, the use of such methods is not acceptable for a brief, nor is the use of a three-ring binder.

If a brief does not conform to the Federal Rules of Appellate Procedure or to the Circuit Rules, the party will be notified and directed either to file a conforming brief (if the problems are numerous) or an errata to the brief (if the problems are minor). If the brief exceeds the page, line, or word limitations, the party will be directed to submit either a corrected brief or a motion for leave to exceed the limits on length.

7. Length (See Fed. R. App. P. 32(a); D.C. Cir. Rules 28(c), 28(e), 32.)

Briefs may not exceed the word, line, or page limitations set forth in the Federal and Circuit Rules absent the Court's permission. A principal brief is limited to 30 pages unless the brief complies with the type-volume limitation of 13,000 words or uses a monospaced face and contains no more than 1,300 lines of text. See Fed. R. App. P. 32(a)(7). A reply brief is limited to half the type-volume of the principal brief or 15 pages. The length limitations for briefs in cross-appeals are set out in Federal Rule of Appellate Procedure 28.1. See Part IX.A.3. These limits do not include the table of contents; table of citations; statement with respect to oral argument; certificate of parties, rulings, and related cases; the glossary; any addendum containing statutory material, regulations, or evidence supporting the claim of standing; and certificates of service and compliance with type-volume limitations. The summary of argument, footnotes, and citations are included for purposes of computing the word or page limits.

Parties submitting briefs under the type-volume limitations of Federal Rule of Appellate Procedure 32(a)(7)(B) must include in the brief a certificate, signed by counsel of record or, in the case of parties filing briefs pro se, by the party, stating the number of words in the brief or the number of lines of monospaced text. Certificates that include generalized statements that the brief does not exceed the maximum length limitations, without indicating the specific number of words or lines, are not allowed. The person preparing this certificate may rely on word or line counts reported by word processing systems provided the word processing system counts words in footnotes and citations. Parties using word processing systems that do not count words may use the page limitations of 30 pages for principal briefs and 15 pages for reply briefs.

Parties wishing to submit a brief that exceeds the length limitations must, not less than 7 days before the brief is due, file a motion requesting permission to exceed the length limitations. Such motions are granted only for extraordinarily compelling reasons, and motions filed less than 7 days before the brief is due will be denied as untimely, absent exceptional circumstances. See D.C. Cir. Rule 28(e).

8. Contents (See Fed. R. App. P. 28, 32.1; D.C. Cir. Rules 28, 32.1.)

Briefs must contain the following in the order indicated. Note, however, that intervenors and amici might not be required to include each of the specified items in their briefs.

(a) A "Certificate as to Parties, Rulings, and Related Cases" immediately inside the cover of the brief and preceding the table of contents. Three items must be included in this certificate:

i. The certificate must identify by name all parties, intervenors, and amici who appeared before the district court and all parties, intervenors, or amici in this Court. The appellee or the respondent may omit from the certificate those listed by the appellant or the petitioner but must identify the briefs in which the lists are set forth. The certificate also must include the name of any parent company and any publicly-held company that has a 10% or greater ownership interest in the certifying party. Circuit Rule 26.1 specifies precisely what must be included as to corporate entities, and counsel should consult that provision for greater detail. In a criminal case, the government must make the disclosure required by Federal Rule of Appellate Procedure 26.1(b), and the appropriate party in a bankruptcy case must make the disclosure required by Federal Rule of Appellate Procedure 26.1(c).

ii. The certificate must identify the rulings under review, including the date, the name of the district court judge, the place in the appendix where the ruling is reproduced, and any official citation to the ruling, the Federal Register or other citation when the ruling is an agency decision, or a statement that no such citation exists. In briefs filed after the opening brief, the certificate may incorporate by reference the opening brief’s certificate of rulings under review, but must so indicate.

iii. The certificate must indicate whether the case was previously before this or any other court, and, if so, identify it by court number and caption. The certificate also must identify "related cases," as defined in Circuit Rule 28(a)(1)(C), or state that there are none.

(b) A table of contents, with page references.

(c) A table of cases, statutes, and other authorities cited, arranged alphabetically and referring to the pages of the brief where they are cited. The table may include asterisks in the left margin to denote those authorities upon which the brief chiefly relies. All sources listed in the table of authorities must refer to the specific pages of the brief on which a source is cited; passim or the use of similar terms is prohibited.

(d) A glossary defining abbreviations and acronyms, other than those that are part of common usage. See D.C. Cir. Rule 28(a)(3). In briefs the use of acronyms other than those that are widely known should be avoided.

(e) A statement indicating the basis for this Court's jurisdiction and the basis for the district court’s or agency’s subject matter jurisdiction, with statutory citations and, if necessary, relevant case citations. See Fed. R. App. P. 28(a)(4); D.C. Cir. Rule 28(a)(4). Only appellant’s or petitioner’s brief must contain this statement; any party, intervenor, or amicus may include a counter statement regarding jurisdiction. If the basis of the district court's or agency's subject matter jurisdiction or this Court's jurisdiction is in dispute, the parties should so state and should reference the pages in the brief that address this issue. In cases involving direct review of administrative actions, the petitioner or appellant must also recite in a separate section the basis on which it claims standing. The brief must include arguments and cite evidence establishing standing “by a substantial probability,” and must include the evidence in an addendum if it is not contained in the administrative record. See D.C. Cir. Rule 28(a)(7); Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002).

(f) A section containing pertinent statutes and regulations. See D.C. Cir. Rule 28(a)(5). If these are extensive, they may be included as an addendum, which must be bound separately from the brief if the addendum exceeds 40 pages. If the statutes and regulations are contained in another party's brief, they may be incorporated by reference.

(g) A statement of the issues presented for review, which appellee or respondent may omit if satisfied with appellant's or petitioner's statement.

(h) A statement of the case setting out the facts relevant to the issues presented for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record. See Fed. R. App. P. 28(a)(6). Appellee or respondent may omit or shorten the statement of the case if satisfied with that of the appellant or petitioner.

(i) A summary of argument that contains a succinct, clear statement of the arguments made in the body of the brief. The summary must not merely repeat the argument headings.

(j) The argument, which contains the contentions of the parties on the issues presented, with citations to authorities, statutes, and portions of the record upon which the parties rely, and the standard of review for each issue.

(k) A succinct conclusion setting forth the precise relief sought.

(l) A certificate of compliance if required by Federal Rule of Appellate Procedure 32(g).

Citation requirements for briefs are set out in Federal Rule of Appellate Procedure 32.1 and Circuit Rule 32.1. Counsel must cite to the Federal Reporter for published D.C. Circuit decisions and to the National Reporter System for published D.C. and state court decisions. Parallel citations to the U.S. App. D.C. for D.C. Circuit decisions are not required. All federal statutes, including those applicable to the District of Columbia, must be cited by the current official code or its supplement, or, if there is no current official code, to the current unofficial code or its supplement. Citation to the official session laws is not required unless there is no code citation. When citing to the record, authorities, or any other material, citations must refer to specific pages of the source; passim or similar terms may not be used.

Unpublished orders, judgments, sealed dispositions, or explanatory memoranda entered by this Court before January 1, 2002, may not be cited as precedent. An unpublished disposition may, however, be cited for its res judicata, law of the case, or preclusive effect.

Unpublished dispositions of the D.C. Circuit entered on or after January 1, 2002, may be cited as precedent. Unpublished dispositions include any order, judgment, explanatory memorandum, or other disposition, including interlocutory rulings and summary orders (but not sealed dispositions). (As before, an unpublished disposition of this Court may always be cited for its res judicata, law of the case, or preclusive effect.)

Unpublished dispositions of other federal courts entered before January 1, 2007, may be cited where they are relevant for purposes of res judicata, law of the case, or their preclusive effect. Otherwise, unpublished dispositions of other courts of appeals entered before January 1, 2007, may be cited only in the circumstances and for the purposes allowed by the court issuing the disposition, and unpublished dispositions of district courts entered before that date may not be cited. Unpublished dispositions of other federal courts entered on or after January 1, 2007, may be cited in accordance with Federal Rule of Appellate Procedure 32.1.

If unpublished dispositions cited in a brief are not available in a publicly accessible electronic database, a copy of each must be included in an appropriately labeled addendum to the brief. The addendum may be bound together with the brief, but it should be separated from the body of the brief and any other addendum by a distinctly colored separation page. Any addendum exceeding 40 pages must be bound separately from the brief. If the addendum is bound separately, it must be filed and served concurrently with, and in the same number of copies as, the brief itself.

It is important to understand an important caveat in connection with reliance upon unpublished dispositions of this Court. For example, counsel are permitted to argue that an unpublished disposition is binding precedent on a particular issue; they may also argue that an unpublished disposition establishes an intra-circuit conflict in decisions warranting a rehearing en banc. On the other hand, counsel are reminded that the Court's decision to issue an unpublished disposition means that the Court sees no precedential value in that disposition. See D.C. Cir. Rule 36(e)(2). Thus, counsel should recognize that the Court believes its published precedents already establish and adequately explain the legal principles applied in the unpublished disposition, and that there is accordingly no need for counsel to base their arguments on unpublished dispositions. (See generally Circuit Rule 36, which sets out the criteria for published and unpublished opinions.)

Counsel should avoid use of designations such as "appellant" and "appellee." In the interest of clarity, it is preferable to use the designations in the court or agency below, the actual names of the parties, or terms descriptive of them, such as "the employee." In addition, parties are strongly urged to limit the use of acronyms. While acronyms may be used for entities and statutes with widely recognized initials, such as FERC and FOIA, parties should avoid using acronyms that are not widely known.

The excessive use of footnotes also should be avoided. The Court prefers that substantive arguments not be made in footnotes. Footnotes should be used primarily for citations.

Finally, counsel may not refer this Court to sections of pleadings filed in the district court to support those contentions upon which it relies on appeal in lieu of addressing such arguments in the brief.

9. Citation of Supplemental Authorities (See Fed. R. App. P. 28(j); D.C. Cir. Rule 28(f).)

When pertinent and significant authorities come to a party's attention after briefing or oral argument but before decision, a party may promptly advise the Clerk by letter, limited to 350 words, with copies to all other parties as provided in Federal Rule of Appellate Procedure 28(j). Other parties may file a response to the letter, but any response must be similarly limited.

10. Briefs Containing Material Under Seal (See D.C. Cir. Rule 47.1(d).)

If it is necessary to refer in a brief to material under seal, two sets of briefs must be filed. The briefs are to be identical except for references to sealed materials. One set of briefs must bear the legend "Under Seal" on the cover, and each page containing sealed material must bear the legend "Under Seal" at the top of the page. The second set of briefs must bear the legend "Public Copy — Sealed Material Deleted" on the cover, and each page from which material under seal has been deleted must bear a legend stating "Material Under Seal Deleted" at the top of the page. The original and 6 copies of the sealed brief plus the original and 8 copies of the public brief must be filed, and 2 copies of the public brief and 2 copies of the brief under seal served on each party, if such party is entitled to receive the material under seal. See, e.g., Fed. R. Crim. P. 6(e). Both sets of briefs must comply with the remainder of the rules, including Federal Rule of Appellate Procedure 32(a)(7) and Circuit Rule 32(e), on the length of briefs. Litigants proceeding in forma pauperis must file 1 copy of the sealed brief and 1 copy of the public brief. Briefs filed with the Court under seal are available only to authorized court personnel and are not made available to the public.