Handbook IX.B: Appendix

(See Fed. R. App. P. 30; D.C. Cir. Rules 25(c)(5), 30, 32.)

1. Contents

While the original record is available to the judges, it may contain far more than is necessary to a proper disposition of the case. To reduce the record to a manageable size, counsel must prepare an appendix, reproducing those parts of the record that are relevant to the issues on appeal. The Court does not require unrepresented parties proceeding in forma pauperis to file an appendix. See D.C. Cir. Rule 24.

The appendix must include the relevant docket entries in the proceeding below; the relevant portions of the pleadings, charge, findings, or opinion; the judgment or order in question; and any other parts of the record to which the parties intend to direct the Court's attention. The relevant portions of all pleadings, transcripts, and exhibits that are cited in the brief must also be included. Exhibits may be reproduced in a separate volume of the appendix. See Fed. R. App. P. 30(e). Memoranda of law must not be included in the appendix unless there is an issue as to which arguments were raised in the district court or some point that was admitted below. Failure to include relevant parts of the record in the appendix does not preclude the Court or the parties from relying on that material.

The appendix must contain a table of contents describing each item included, with the page of the appendix on which it can be found. This is followed by the relevant docket entries, and then by the other items from the record, set out in chronological order. All the material in the appendix must be consecutively paginated to facilitate citation to the appendix in the briefs.

2. Preparation

The appellant or the petitioner bears the burden of preparing the appendix, but the parties are encouraged to agree informally on the contents. If the parties do not agree, the appellant or the petitioner must, not later than 14 days after the date on which the record is filed, serve on the appellee or the respondent a designation of the parts of the record the appellant or petitioner intends to include in the appendix. If the appellee or the respondent wishes to direct the Court’s attention to parts of the record not designated by the appellant or the petitioner, the appellee or the respondent must, within 14 days after receipt of the designation, serve upon the appellant or the petitioner a designation of those parts. The appellant or the petitioner must include in the appendix the parts thus designated with respect to the appeal and any cross-appeal. In designating parts of the record for inclusion in the appendix, the parties should have regard for the fact that the entire record is always available to the Court for reference and examination, and the parties should not engage in unnecessary designation.

The appellant or the petitioner pays for the appendix but may be reimbursed when costs are taxed at the conclusion of the case. Appointed counsel in criminal appeals may be reimbursed for the expense of reproducing the appendix by photocopy process in accordance with the Criminal Justice Act. If the appellant or the petitioner believes that opposing counsel is designating material that is unnecessary, the appellant or the petitioner may request the appellee or the respondent to advance the cost of reproducing the materials. If either party causes the inclusion of unnecessary material in the appendix, the Court may require that party to bear the cost of reproducing it, and the Court also may impose sanctions.

Parties to a joint appeal file a joint appendix. In consolidated cases where there are several appellants, the parties must designate someone to assume the primary responsibility for preparing the joint appendix. Intervenors may ask the appellant or the petitioner to include certain material in the appendix, or intervenors may include that material as an addendum to their brief. Any addendum exceeding 40 pages must be bound separately from the brief.

If anything material to the appeal is omitted from the appendix, the Clerk, on the written request of any party, may allow the appendix to be supplemented.

3. Timing; Deferred Appendix (See Fed. R. App. P. 30; D.C. Cir. Rule 30.)

Federal Rule of Appellate Procedure 30 authorizes either of two timetables for preparing the appendix, and the appellant or petitioner must notify the Court as to which method will be utilized. Under one method, the appendix is complete and available to the parties as they prepare their briefs. In the absence of informal cooperation, the appellant or the petitioner serves the appellee or the respondent with a designation of the proposed contents of the appendix, plus a statement of the issues that the party intends to present for review. The appellee or the respondent then has 14 days to respond with a cross-designation. The appellant or petitioner thereafter files and serves the appendix at the time of filing the brief.

The alternate method allows preparation of the appendix after the briefs are filed. Absent informal cooperation, each party serves its designation of the proposed contents of the appendix at the time of filing that party's main brief. See Fed. R. App. P. 30(c)(1); D.C. Cir. Rule 30(c). The deferred appendix then must be filed in accordance with the briefing schedule issued by the Court. If a party objects to the use of a "deferred appendix," the matter will be submitted to the Court for resolution.

When parties file their briefs before the appendix has been prepared, they must nonetheless clearly cite to the record, and may do so in one of two ways. See Fed. R. App. P. 30(c)(2). They may cite in their briefs to the original pagination of the record (e.g., "Tr. 1154"), in which case the original page numbers also must be indicated on the material reproduced in the appendix. The second and preferred procedure is to file an initial version of the briefs containing references to the original record. Thereafter, the parties must, in accordance with the briefing schedule, serve and file their briefs in final form, replacing references to the original record with references to the appendix. See Fed. R. App. P. 30(c); D.C. Cir. Rule 31. No changes other than citations to the deferred appendix and correction of typographical errors may be made in the final briefs filed under this method.

4. Format (See Fed. R. App. P. 32(b); D.C. Cir. Rule 30(a).)

Unlike the brief, the appendix may be duplicated on both sides of each page. If the appendix is separately produced, it must have a white cover. 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 appendix will lie flat when open: spiral (also known as coil), comb, and wire binding. The following types of binding do not permit an appendix 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 an appendix, nor is the use of a three-ring binder. If an appendix is submitted that does not conform with these requirements, the party will be notified and directed to file an appendix that is properly bound.

5. Number of Copies (See Fed. R. App. P. 30(e); D.C. Cir. Rule 30(a).)

The appellant or the petitioner must file 8 copies of the appendix, and serve 1 copy on counsel for each party separately represented. When an appendix is filed electronically, 7 paper copies must be filed in addition to the electronic version. If exhibits are reproduced in a separate volume, only 4 copies of that volume need be filed.

6. In Forma Pauperis Appeals (See D.C. Cir. Rule 24.)

An unrepresented appellant or petitioner proceeding in forma pauperis is not required to file an appendix. The appellant or petitioner may instead furnish, with the brief, 1 copy of the transcript pages he or she wishes to call to the Court's attention; 1 copy of a list setting forth the page numbers of the transcript so furnished; and 1 copy of other portions of the record to which the appellant or petitioner directs the Court's attention. Pro se parties, however, are encouraged to submit 4 copies of these materials if they can. An appellee or respondent must furnish, with the brief, 4 copies of an appendix containing any pages of transcript or other portions of the record not furnished by appellant or petitioner to which the appellee or respondent directs the Court's attention.

7. Appendix Containing Matters Under Seal (See D.C. Cir. Rule 47.1(e).)

If it is necessary to include material under seal in an appendix, the appendix must be filed in two segments. One segment must contain all sealed material and must bear the legend "Supplement — Under Seal" on the cover, and each page of that segment containing sealed material must bear the legend "Under Seal" at the top of the page. The second appendix segment must bear the legend "Public Appendix — Material Under Seal in Separate Supplement" on the cover; each page from which material under seal has been deleted must bear the legend "Material Under Seal Deleted" at the top of the page. Seven copies of the sealed segment and 7 copies of the public segment of the appendix must be filed, and 1 copy of the public segment of the appendix and 1 copy of the sealed segment served on each party, if such party is entitled to receive the material under seal. See, e.g., Fed. R. Crim. P. 6(e). Segments of appendices filed with the Court under seal are available only to authorized court personnel and are not made available to the public.