Circuit Rule 28: Briefs — D.C. Cir.

(a) Contents of Briefs: Additional Requirements. Briefs for an appellant/petitioner and an appellee/respondent, and briefs for an intervenor and an amicus curiae, must contain the following in addition to the items required by FRAP 28:

(1) Certificate. Immediately inside the cover and preceding the table of contents, a certificate titled "Certificate as to Parties, Rulings, and Related Cases," which contains a separate paragraph or paragraphs, with the appropriate heading, corresponding to, and in the same order as, each of the sub-paragraphs below.

(A) Parties and Amici. The appellant or petitioner must furnish a list of all parties, intervenors, and amici who have appeared before the district court, and all persons who are parties, intervenors, or amici in this court. An appellee or respondent, intervenor, or amicus may omit from its certificate those persons who were listed by the appellant or petitioner, but must state: "[Except for the following,] all parties, intervenors, and amici appearing [before the district court and] in this court are listed in the Brief for ."

Any party or amicus curiae that is a corporation, association, joint venture, partnership, syndicate, or other similar entity must make the disclosure required by Circuit Rule 26.1. In a criminal case, the government must make the disclosure required by FRAP 26.1(b), and the appropriate party in a bankruptcy case must make the disclosure required by FRAP 26.1(c).

(B) Rulings Under Review. Appropriate references must be made to each ruling at issue in this court, including the date, the name of the district court judge (if any), the place in the appendix where the ruling can be found, and any official citation in the case of a district court or Tax Court opinion, the Federal Register citation and/or other citation in the case of an agency decision, or a statement that no such citation exists. Such references need not be included if they are contained in a brief previously filed by another person, but the certificate must state: "[Except for the following,] references to the rulings at issue appear in the Brief for ."

(C) Related Cases. A statement indicating whether the case on review was previously before this court or any other court and, if so, the name and number of such prior case. The statement must also contain similar information for any other related cases currently pending in this court or in any other court of which counsel is aware. For purposes of this rule, the phrase "any other court" means any other United States court of appeals or any other court (whether federal or local) in the District of Columbia. The phrase "any other related cases" means any case involving substantially the same parties and the same or similar issues. If there are no related cases, the certificate must so state.

(2) Table of Authorities. In the left-hand margin of the table of authorities, an asterisk may be placed next to those authorities on which the brief principally relies, together with a notation at the bottom of the first page of the table stating: "Authorities upon which we chiefly rely are marked with asterisks." Even though the marking of “principal authorities” is optional, the table of authorities must identify each page of the brief on which the authority is cited; passim or similar terms may not be used.

(3) Glossary. All briefs containing abbreviations, including acronyms, must provide a "Glossary" defining each such abbreviation on a page immediately following the table of authorities. Abbreviations that are part of common usage need not be defined.

(4) Statement of Jurisdiction. The brief of the appellant or petitioner must set forth the jurisdictional statement required by FRAP 28(a)(4). Any party, intervenor, or amicus curiae may include in its brief a counter statement regarding jurisdiction.

(5) Statutes and Regulations. Pertinent statutes and regulations must be set forth either in the body of the brief following the statement of the issues presented for review or in an addendum introduced by a table of contents and bound with the brief or separately; in the latter case a statement must appear in the body of the brief referencing the addendum. Any addendum exceeding 40 pages must be bound separately from the brief. If the statutes and regulations are included in an addendum bound with the brief, the addendum must be separated from the body of the brief (and from any other addendum) by a distinctly colored separation page. If the pertinent statutes and regulations are contained in a brief previously submitted by another party, they need not be repeated but, if they are not repeated, a statement must appear under this heading as follows: "[Except for the following,] all applicable statutes, etc., are contained in the Brief for ."

(6) Summary of Argument. Except when a brief contains a "Standing" section as required by Circuit Rule 28(a)(7), in each brief, including a reply brief, a summary of argument must immediately precede the argument; the summary of argument must contain a succinct, clear statement of the arguments made in the body of the brief and not merely repeat the argument headings.

(7) Standing. In cases involving direct review in this court of administrative actions, the brief of the appellant or petitioner must set forth the basis for the claim of standing. This section, entitled "Standing," must follow the summary of argument and immediately precede the argument. The brief must include arguments and cite evidence establishing by a “substantial probability” the claim of standing. See Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002). If the supporting evidence is not contained in the administrative record, it must be included in an addendum to the brief. If it is bound with the brief, the addendum must be separated from the body of the brief (and from any other addendum) by a distinctly colored separation page. Any addendum exceeding 40 pages must be bound separately from the brief.

(8) Reference to Oral Argument and Submission Without Oral Argument. If a case has been scheduled for oral argument, has already been argued, or is being submitted without oral argument, a brief must so state in capital letters at the top of the front cover and, where applicable, include the date of the argument.

(b) References to Authorities and Other Material. 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.

(d) Briefs for Intervenors. The rules stated below apply with respect to the brief for an intervenor in this court. For purposes of this rule, an intervenor is an interested person who has sought and obtained the court's leave to participate in an already instituted proceeding.

(1) Except by permission or direction of the court, the brief must conform to the brief lengths set out in Circuit Rule 32(e)(2).

(2) The brief must avoid repetition of facts or legal arguments made in the principal (appellant/petitioner or appellee/respondent) brief, and focus on points not made or adequately elaborated upon in the principal brief, although relevant to the issues before this court.

(3) Except as otherwise directed by the court, the brief must be filed in accordance with the time limitations described in FRAP 29.

(4) Intervenors on the same side must join in a single brief to the extent practicable. This requirement does not apply to a governmental entity. (For this purpose, the term "governmental entity" includes the United States or an officer or agency thereof, the District of Columbia, or a State, Territory, or Commonwealth of the United States.) Any separate brief for an intervenor must contain a certificate of counsel plainly stating why the separate brief is necessary. Generally unacceptable grounds for the filing of separate briefs include representations that the issues presented require greater length than these rules allow (appropriately addressed by a motion to exceed length limits), that counsel cannot coordinate their efforts due to geographical dispersion, or that separate presentations were allowed in earlier proceedings.

(5) A reply brief may be filed for an intervenor on the side of appellant or petitioner at the time the appellant's or petitioner's reply brief is due.

(e) Request to Exceed the Limits on the Length of Briefs and for Extension of Time for Filing.

(1) The court disfavors motions to exceed limits on the length of briefs and motions to extend the time for filing briefs that affect the oral argument schedule. Such motions will be granted only for extraordinarily compelling reasons.

(2) A motion to exceed the limits on length of briefs or to extend the filing time for a brief must be filed at least 7 days before the brief is due. Untimely motions will be denied absent exceptional circumstances, except that, where good cause is shown, the clerk may grant unopposed late-filed motions for extension of time that do not affect the oral argument schedule.

(3) Before filing a motion to exceed the limits on length of briefs, or to extend the time for filing, the moving party must attempt to obtain the consent of the opposing side. If consent is not obtained, the moving party must attempt 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 in response to these inquiries, or the efforts made to obtain a response.

The following requirements pertain to service (i) on an opposing party who has not consented to electronic service or (ii) for motions to exceed the limits on length of briefs or to extend the time for filing that are not filed electronically. If the opposing side has stated an intention to file an opposition or other response, or has not been reached after reasonable effort, the moving party must serve the motion by hand, or if such service is not feasible, by giving telephone notice of the filing and serving the motion by the most expeditious form of service. If the moving party is unable to effect service by hand or telephone notice at the time of filing, the opening paragraph of the motion must recite the efforts made to do so.

(4) Submission of a motion to exceed the limits on length of briefs or extend the time for filing a brief does not toll the time for compliance with filing requirements. Movants will be expected to meet all filing requirements in the absence of an order granting a waiver.

(f) Citation of Supplemental Authorities. After briefing has been completed, a party may file an original and 4 copies of a letter pursuant to FRAP 28(j).

See also Circuit Rule 28.1 (Cross-Appeals), Circuit Rule 29 (Brief of an Amicus Curiae), Circuit Rule 32.1 (Citing Judicial Dispositions), and Circuit Rule 47.1 (Matters Under Seal).