Handbook VII.A: Formal Requirements

(See Fed. R. App. P. 27; D.C. Cir. Rules 27, 32.)

Motions practice in this Court has become a means of achieving early resolution of cases that would otherwise unnecessarily go the full route of briefing and oral argument. Parties are particularly encouraged to file dispositive motions where a sound basis exists for summary disposition. The result can be a major savings of time, effort, and resources for the parties, counsel, and the Court. In order to achieve this economy, however, it is essential for counsel to comply fully with the procedural requirements for motions practice. The following section discusses general motions practice; specific motions are discussed infra at Part VIII.

At the outset, there are two important time limits to observe: typically, there are 30 days from docketing for filing procedural motions, and 45 days from docketing for filing dispositive motions. The actual dates when both types of motions are due are specified in the initial order sent out by the Clerk's Office at the time of docketing.

Procedural motions are those that may affect the progress of the case through the Court, e.g., motions to intervene, motions to consolidate, motions to defer the appendix, motions to hold the case in abeyance, motions for stay, and motions to expedite.

Dispositive motions are defined in Circuit Rule 27(f) as those which, if granted, would dispose of the appeal or the petition for review in its entirety, or would transfer the case to another court. They include motions for summary affirmance or reversal, motions to dismiss (on any ground, including jurisdiction), and motions to transfer. The dispositive motion deadline does not apply to a motion by an appellant or a petitioner for voluntary dismissal, which may be filed at any time.

Normally, cases will not be given oral argument dates or briefing schedules until all pending motions have been resolved. Counsel can assist the Clerk's Office in processing the case by stipulating within the first 45 days that no dispositive motions will be filed. Any motions filed after the oral argument date is set are referred to the panel assigned to hear the case on the merits.

There are certain formal requirements common to most motions. Unless a party is proceeding in forma pauperis, or the Court directs otherwise in a particular case or by standing order, non-electronic filers must submit an original and 4 paper copies of any motion, except in en banc cases, for which an original and 19 copies are required. Electronic filers must, in addition to the electronic original, file 4 paper copies of any motion specified in Circuit Rule 32(d)(2), or 19 paper copies in en banc cases. These motions include dispositive motions, contested procedural motions, and motions for emergency relief.

Motions, responses thereto, and replies must be prepared in conformity with Federal Rule of Appellate Procedure 27(d)(1) and (2). Thus, all papers relating to motions must be submitted in standard typographical printing or by any duplicating or copying process that produces a clear black image on light paper, in a plain, roman style, with a proportionally spaced typeface of 14-point or larger or a monospaced typeface containing no more than 10 and one-half characters per inch. Except by permission or direction of the Court, a motion may not, under any printing method utilized, exceed 5,200 words if produced using a computer and 20 pages if handwritten or typewritten. All legal arguments must be presented in the body of the motion; a separate brief or memorandum supporting or responding to a motion may not be filed. A copy of the trial court’s opinion or agency’s decision must accompany a motion seeking any substantive relief.

The front page of the motion must give the name of this Court, the title and number of the case, and a brief descriptive title (e.g., Motion for Summary Affirmance). If a case has been scheduled for oral argument, has already been argued, or is being submitted without oral argument, a motion, response, or reply must so state in capital letters at the top of the first page. Where applicable, the date of the argument also must be included.

The motion must specify the grounds and the relief sought. Parties may seek more than one form of relief in a single motion if the matters are related. For example, a single motion may be filed where, in addition to seeking dismissal, a party requests in the alternative summary affirmance. If a party seeks more than one form of relief in a single motion, the descriptive title on the front page of the motion must clearly set forth the matters presented in the pleading. If the matters are unrelated, parties should file separate motions. Requests for permission to file an untimely or overlong motion should not be included in the substantive motion but should be filed as a separate motion.

All motions must be signed by a party or by a member of the bar of the Court and served on all other parties to the proceeding before the Court. Except as prescribed by Federal Rule of Appellate Procedure 28(j), parties, other than pro se litigants proceeding in forma pauperis, may not plead by letter. See D.C. Cir. Rule 32(f). Generally, for motions, responses, and replies, filing is complete on receipt of the pleading in the Clerk's Office, not on mailing. A document filed electronically is deemed filed on the date and at the time stated on the Notice of Docket Activity from the Court. For incarcerated litigants, filing is complete upon deposit in the institution’s internal mailing system in accordance with the federal rules. See Fed. R. App. P. 25(a)(2)(A)(iii).

Any response must be filed within 10 days after service of the motion. It may not exceed 5,200 words if produced using a computer and 20 pages if handwritten or typewritten. Any reply to the response must be filed within 7 days after service of the response and may not exceed 2,600 words if produced using a computer and 10 pages if handwritten or typewritten. The response may contain a motion for other relief. If so, the caption must clearly denote that the response includes the separate motion, and the document may not exceed 7,800 words if produced using a computer and 30 pages if handwritten or typewritten. When the response includes a motion for affirmative relief, the reply must be joined in the same pleading with a response to the motion for affirmative relief, and counsel has 10 days to file it. Such reply may not exceed 5,200 words if produced using a computer and 20 pages if handwritten or typewritten. The final reply on a combined filing is limited to 2,600 words if produced using a computer and 10 pages if handwritten or typewritten. Replies must not reargue positions presented in an opening paper and may not present any matters that are not strictly in reply to the response. After the filing of a reply, no further pleadings on a motion or petition are permitted, except by leave of the Court. The above filing times are extended by 3 days if service was effected on the responding party by a method of service authorized by Federal Rule of Appellate Procedure 25 other than personal or electronic service. See Fed. R. App. P. 26(c).

Circuit Rule 27(g) establishes the requirements for seeking extensions of time to file motions, responses, and replies, and for seeking leave to exceed the length limits set forth in Federal Rule of Appellate Procedure 27(d)(2). Such motions must be filed 5 days before the pleading is due. A motion to extend time for filing a motion, response, or reply must indicate in the first paragraph when the motion, response, or reply is currently due. Motions under Rule 27(g) for extension of time or to exceed the length limits that are filed less than 5 days before the document is due will be denied as untimely, absent exceptional circumstances, except that the Clerk may grant unopposed late filed motions for extension of time for good cause shown. The Circuit Rules explicitly state that requests to exceed the length limits are disfavored and will be granted "only for extraordinarily compelling reasons." D.C. Cir. Rule 27(g)(3).

Circuit Rule 27(g)(2) establishes requirements for consulting the opposing side to obtain consent to motions for extension of time and motions to exceed the length limit, and to inquire whether an opposition or other form of response will be filed. The opening paragraph of any such motion must recite the position taken by the opposing party, or the efforts made to obtain a response. Where the other side has indicated an intention to file an opposition or other form of response, or has not been reached after reasonable effort, the moving party must serve the motion by personal service if the opposing party is not an electronic filer or if the motion is not filed electronically. If personal service is not feasible, the moving party must give telephone notice of the filing and serve the motion by another form of expedited service authorized by Federal Rule of Appellate Procedure 25. Where the moving party is unable to effect personal service or telephone notice at the time of the filing, the opening paragraph of the motion must recite the efforts made to do so.

Circuit Rule 27(g)(4) provides for an automatic extension of the original deadline for filing motions or petitions, or to exceed length limits for such pleadings, if the motion is filed in accordance with the requirements of subparagraphs (1) and (2) of Circuit Rule 27(g) and the Court does not act on the motion by the end of the second business day before the filing deadline. If the Court thereafter denies the motion, the filing deadline will be extended automatically for 7 days. If the Court denies the motion to extend the length, it ordinarily will allow time to file a conforming document. This automatic extension provision applies only to motions deadlines; there are no comparable provisions in the Circuit Rules for automatic extension of the deadline for filing briefs. Motions to extend time or length limits for filing briefs are separately addressed in Circuit Rule 28(e).

Finally, when an untimely, overlength, or otherwise nonconforming motion or response is filed along with a motion for leave to file out of time or to exceed the length limitations, no response is required to the nonconforming document until a decision is rendered on the motion to file out of time or to exceed the length limitations.