5th Cir. R. 27: Motions

27.1 Clerk May Rule on Certain Motions. Under FED. R. APP. P. 27(b), the clerk has discretion to act on, in accordance with the standards set forth in the applicable rules, or to refer to the court, the procedural motions listed below. The clerk’s action is subject to review by a single judge upon a motion for reconsideration made within the 14 or 45 day period set by FED. R. APP. P. 40(d)(1).

27.1.1 To extend the time for: filing answers or replies to pending motions; paying filing fees; filing motions to proceed in forma pauperis; filing petitions for panel rehearing and rehearing en banc, and for reconsideration of single judge orders, for not longer than 14 days, 30 days if the applicant for extension is a prisoner proceeding pro se; filing briefs as permitted by 5TH CIR. R. 31.4; filing bills of costs; and filing applications under the Equal Access to Justice Act.

27.1.2 To rule on motions to file briefs out of time.

27.1 3 To stay further proceedings in appeals.

27.1.4 To correct briefs or pleadings filed in this court at counsel’s request.

27.1.5 To stay the issuance of mandates pending certiorari in civil cases only, for no more than 30 days, provided the court has not ordered the mandate issued earlier.

27.1.6 To reinstate appeals dismissed by the clerk.

27.1.7 To enter and issue consent decrees in labor board and other government agency review cases.

27.1.8 To enter CJA Form 20 orders continuing trial court appointment of counsel on appeal for purposes of compensation.

27.1.9 To consolidate appeals.

27.1.10 To withdraw appearances.

27.1.11 To supplement or correct records.

27.1.12 To incorporate records or briefs on former appeals.

27.1.13 To file reply or supplemental briefs in addition to the single reply brief permitted by FED. R. APP. P. 28(c) prior to submission to the court.

27.1.14 To file an amicus curiae brief under FED. R. APP. P. 29 (see 5TH CIR. R. 29.4).

27.1.15 To enlarge the number of pages of optional contents in record excerpts.

27.1.16 To extend the length limits for: briefs under FED. R. APP. P. 32(a)(7) and 5TH CIR. R. 32; petitions for rehearing en banc and panel rehearing under FED. R. APP. P. 40(d)(3); certificates of appealability and motions for permission to file second or successive habeas corpus applications under 28 U.S.C. §§ 2254 and 2255, under 5TH CIR. R. 22; petitions for permission to appeal under 5TH CIR. R. 5; and petitions for mandamus and extraordinary writs under 5TH CIR. R. 21.

27.1.17 To proceed in forma pauperis, see FED. R. APP. P. 24 and 28 U.S.C. § 1915;

27.1.18 To appoint counsel or to permit appointed counsel to withdraw;

27.1.19 To obtain transcripts at government expense.

27.1.20 To rule on an unopposed motion by the government or a defendant in a direct criminal appeal to gain access to matters sealed in the case and for the use in prosecution of its appeal.

27.2 Single Judge May Rule on Certain Motions. Pursuant to FED. R. APP. P. 27(c), any single judge of this court has discretion, subject to review by a panel upon a motion for reconsideration made within the 14 or 45 day period set forth in FED. R. APP. P. 40(d)(1), to take appropriate action on the following procedural motions:

27.2.1 The motions listed in 5TH CIR. R. 27.1 that have been referred to a single judge for initial action, or for single judge reconsideration of a ruling made by the clerk, but the judge is not limited to the time restrictions in 5TH CIR. R. 27.1.1.

27.2.2 To permit interventions in agency proceedings pursuant to FED. R. APP. P. 15(d).

27.2.3 To act on applications for certificates of appealability under FED. R. APP. P. 22(b) and 28 U.S.C. § 2253 except for death penalty cases where a three judge panel must act.

27.2.4 To extend for good cause the times prescribed by the Federal Rules of Appellate Procedure or by the rules of this court except for enlarging the time for initiating an appeal, see FED. R. APP. P. 26(b).

27.2.5 To substitute parties under FED. R. APP. P. 43.

27.2.6 To exercise the power granted in FED. R. APP. P. 8 and 9, respecting stays, or injunctions, or releases in criminal cases pending appeal, and subject to the restrictions set out in those rules; and to exercise the power granted in FED. R. APP. P. 18, respecting stays pending review of agency decisions or orders, subject to the restrictions on the power of a single judge contained in that rule.

27.2.7 To stay the issuance of mandates or to recall same pending certiorari.

27.2.8 To expedite appeals.

27.2.9 To strike a nonconforming brief or record excerpts as provided in 5TH CIR. R. 32.5 and to strike other papers not conforming to the FED. R. APP. P. and 5TH CIR. R.

27.3 Emergency Motions and Urgent Filings Requiring Action by a Date Certain in Cases Other Than Capital Cases. Parties should not file motions seeking emergency relief unless there is an emergency sufficient to justify disruption of the normal appellate process. In cases not governed by 5TH Cir. R. 8.10, motions seeking relief before the expiration of 14 days after filing must, subject to the penalties of FED. R. APP. P. 46(c), be supported by good cause and must:

Be preceded by a telephone call to the clerk's office and to the offices of opposing counsel advising of the intent to file the emergency motion. If time does not permit the filing of the motion by hand delivery or by mail, the clerk may permit filing by facsimile or by other electronic means. In an extraordinary case, the clerk may permit the submission of an oral motion by telephone. If the motion is filed by means other than hand delivery or mail, counsel should also later file the motion by hand delivery or by mail.

Be labeled "Emergency Motion."

State the nature of the emergency and the irreparable harm the movant will suffer if the motion is not granted.

Certify that the facts supporting emergency consideration of the motion are true and complete.

Provide the date by which action is believed to be necessary.

Attach any relevant order or other ruling of the district court as well as copies of all relevant pleadings, briefs, memoranda, or other papers filed by all parties in the district court. If this cannot be done, counsel must state the reason that it cannot be done.

Be served on opposing counsel at the same time and, absent agreement to the contrary with opposing counsel, in the same manner as the emergency motion is filed with the court.

Be filed in the clerk's office by 2:00 p.m. on the day of filing.

27.3.1 Emergency Stays of Deportation. The court will give emergency consideration to stays of deportation only where the petitioner has a scheduled removal date and is in custody. Petitioners and counsel are responsible for obtaining accurate information about the custody status of their clients, as well as confirming the scheduled removal date. Emergency stays where petitioners have an imminent scheduled deportation date and are in custody will be processed in accordance with rule 27.3 above.

27.3.2 Urgent Filings Requiring Action by a Date Certain. If a filing does not meet the criteria for an emergency under this rule but a party certifies that court action is necessary by a date certain, the filer must notify the clerk of court by telephone no later than 2:00 p.m. on the day of the filing of the intent to file and the date by which action is required. In addition to following all rules regarding the format of the filing, the filed pleading must clearly state the date for action and provide a justification for why such action is needed.

27.4 Form of Motions. Parties or counsel must comply with the requirements of FED. R. APP. P. 27 including the length limits of FED. R. APP. P.27(d)(2). Except for purely procedural matters, motions must include a certificate of interested persons as described in 5TH CIR. R. 28.2.1. Where a single judge or the clerk may act only an original and 1 copy need be filed. All motions requiring panel action require an original and 3 copies. All motions must state that the movant has contacted or attempted to contact all other parties and must indicate whether an opposition will be filed. Where a party's motion is not an Emergency Motion covered by 5TH Cir. Rule 27.3, but the party has a serious need for the court to act within a specified time, the motion must state the time requirement and describe both the nature of the need and the facts that support it.

27.5 Motions To Expedite Appeal. Such motions are presented in the same manner as other motions. Only the court may expedite an appeal and only for good cause. If an appeal is expedited, the clerk will fix a briefing schedule unless a judge directs a specific date.

I.O.P.

GENERAL STANDARDS FOR RULING ON MOTIONS

5TH CIR. R. 27 IMPLEMENTS FED. R. APP. P. 27(B) AND (C) AND DELEGATES TO SINGLE JUDGES AND THE CLERK THE AUTHORITY TO RULE ON SPECIFIED MOTIONS, SUBJECT TO REVIEW BY THE COURT. THIS I.O.P. PROVIDES THE GENERAL SENSE OF THE COURT ON THE DISPOSITION OF A VARIETY OF MATTERS:

BRIEFS. THE COURT EXPECTS THAT ALL BRIEFS WILL BE FILED TIMELY. MOTIONS FOR EXTENSION OF TIME TO FILE BRIEFS ARE DISFAVORED AND SHOULD BE MADE ONLY IN EXCEPTIONAL INSTANCES WHERE “GOOD CAUSE” EXISTS. NO EXTENSION IS AUTOMATIC. IF AN EXTENSION IS GRANTED, IT WILL BE FOR THE VERY LEAST AMOUNT OF TIME NECESSARY, AND EXCEPT IN THE MOST UNUSUALLY COMPELLING CIRCUMSTANCES, WILL NOT EXCEED 30 DAYS IN A CRIMINAL CASE, OR 40 DAYS IN A CIVIL CASE.

LITIGANTS SEEKING TO FILE BRIEFS AFTER THE DUE DATE SET IN THE BRIEFING LETTER SHOULD UNDERSTAND THAT THE COURT GENERALLY WILL NOT PERMIT THE BRIEF’S FILING “OUT OF TIME”. HOWEVER EVEN IN THE UNUSUAL CASE WHERE OUT OF TIME FILING IS AUTHORIZED, A BRIEF GENERALLY WILL NOT BE FILED OUT OF TIME MORE THAN 30 DAYS BEYOND THE ORIGINAL DUE DATE IN A CRIMINAL CASE, OR 40 DAYS IN A CIVIL CASE.

MOTIONS FOR EXTENSION OF TIME TO FILE ANSWERS, REPLIES TO PENDING MOTIONS OR TO PAY FILING FEES. IF SUCH MOTIONS ARE GRANTED, EXTENSIONS GENERALLY WILL NOT EXCEED 30 DAYS.

REINSTATEMENT OF CASES DISMISSED BY THE CLERK. THE COURT NORMALLY WILL NOT REINSTATE A CASE DISMISSED BY THE CLERK UNDER 5TH CIR. R. 27.1.6 UNLESS:

THE DEFICIENCY WHICH CAUSED THE DISMISSAL HAS BEEN REMEDIED; AND THE MOTION FOR REINSTATEMENT IS MADE AS SOON AS REASONABLY POSSIBLE AND IN ANY EVENT WITHIN 45 DAYS OF DISMISSAL.

MOTIONS PANELS - MOTIONS PANELS ARE DRAWN RANDOMLY FROM THE ACTIVE JUDGES. THESE PANELS ALSO OPERATE AS SCREENING PANELS AS DISCUSSED IN THE I.O.P. FOLLOWING 5TH CIR. R. 34. THE MOTIONS PANELS COMPOSITIONS ARE CHANGED AT THE BEGINNING OF EACH COURT YEAR TO PERMIT THE JUDGES TO SIT WITH OTHER JUDGES IN SCREENING AND HANDLING ADMINISTRATIVE MOTIONS.

DISTRIBUTION

TO JUDGES - MOTIONS REQUIRING JUDGES’ CONSIDERATION ARE ASSIGNED IN ROTATION TO ALL ACTIVE JUDGES ON A ROUTING LOG.

THE CLERK ASSEMBLES A COMPLETE SET OF THE MOTION PAPERS, AND ANY OTHER NECESSARY MATERIAL AND SUBMITS THEM WITH A ROUTING FORM TO THE INITIATING JUDGE. IN SINGLE JUDGE MATTERS THE JUDGE ACTS ON THE MOTION AND RETURNS IT TO THE CLERK WITH AN APPROPRIATE ORDER. FOR MOTIONS REQUIRING PANEL ACTION, A SINGLE SET OF PAPERS IS PREPARED, BUT THE INITIATING JUDGE TRANSMITS THE FILE TO THE NEXT JUDGE WITH A RECOMMENDATION. THE SECOND JUDGE SENDS IT ON TO THE THIRD JUDGE, WHO RETURNS THE FILE AND AN APPROPRIATE ORDER TO THE CLERK.

EMERGENCY MOTIONS - THE CLERK IMMEDIATELY ASSIGNS THE MATTER TO THE NEXT INITIATING JUDGE IN ROTATION ON THE ADMINISTRATIVE ROUTING LOG AND TO THE PANEL MEMBERS. IF THE MATTER REQUIRES COUNSEL TO CONTACT THE INITIATING JUDGE OR PANEL MEMBERS PERSONALLY, THE CLERK WILL PROVIDE THE NAMES OF THE JUDGES ASSIGNED THE CASE, AFTER GETTING APPROVAL FROM THE INITIATING JUDGE. THE MOTION PAPERS ARE DISTRIBUTED AS DESCRIBED ABOVE, EXCEPT THAT A COMPLETE SET, INCLUDING ANY DRAFT ORDER, IS FORWARDED TO ALL MEMBERS OF THE PANEL.

MOTIONS AFTER ASSIGNMENT TO CALENDAR - AFTER CASES ARE ASSIGNED TO THE ORAL ARGUMENT CALENDAR, MOTIONS ARE CIRCULATED TO THE HEARING PANEL RATHER THAN TO THE STANDARD MOTIONS PANELS. THE SENIOR ACTIVE JUDGE ON THE PANEL IS CONSIDERED THE INITIATING JUDGE. THE CLERK ENTERS ORDERS RESPONDING TO THE MOTIONS ON BEHALF OF THE PANEL UNTIL ENTRY OF THE OPINION.

POST-DECISION MOTIONS

EXTENSION OF TIME TO FILE PETITION FOR REHEARING OR LEAVE TO FILE OUT OF TIME - THE CLERK MAY ACT ON OR REFER TO THE COURT A TIMELY MOTION FOR AN EXTENSION OF TIME TO FILE A PETITION FOR PANEL REHEARING OR FOR REHEARING EN BANC FOR A PERIOD NOT LONGER THAN 14 DAYS, 30 DAYS IF THE APPLICANT IS A PRISONER PROCEEDING PRO SE. MOTIONS FOR ADDITIONAL TIME BEYOND 14 OR 30 DAYS, OR TO FILE OUT OF TIME, ARE SUBMITTED TO THE WRITING JUDGE, UNLESS HE OR SHE IS A VISITING JUDGE. IN THAT EVENT THE MATTER IS REFERRED TO THE SENIOR ACTIVE JUDGE ON THE PANEL. IF THE SENIOR ACTIVE JUDGE DISSENTED, THE MATTER IS REFERRED TO THE OTHER ACTIVE JUDGE ON THE PANEL.

STAY OR RECALL OF MANDATE - THE CLERK OR A SINGLE JUDGE, AS APPROPRIATE, DECIDES A MOTION FOR STAY OR RECALL OF MANDATE PENDING ACTION ON A PETITION FOR WRIT OF CERTIORARI AND ROUTES AND DISPOSES OF IT IN THE SAME MANNER AS IN THE PRECEDING PARAGRAPH. (SEE 5TH CIR. R. 27.1.5, 27.2.7, AND 41).

MOTIONS TO AMEND, CORRECT, OR SETTLE THE JUDGMENT - THESE MOTIONS ARE REFERRED TO THE WRITING JUDGE WITH COPIES TO THE PANEL MEMBERS.

REMAND FROM SUPREME COURT OF THE UNITED STATES - REMANDS FROM THE SUPREME COURT OF THE UNITED STATES ARE SENT TO THE ORIGINAL PANEL FOR DISPOSITION WHEN THE SUPREME COURT'S JUDGMENT IS RECEIVED. COUNSEL DOES NOT NEED TO FILE A FORMAL MOTION.