General Order 2.3: Procedures for Failure to Comply with Deadlines Established by the Court

Circuit Rule 42-1 provides for dismissal if records, docket fees, or appellant's briefs are not timely filed. The Clerk may issue an order to show cause directing the payment of fees or a response with respect to jurisdictional and other issues that may be appropriate for summary disposition. If appellant fails to comply with the order, the Clerk may dismiss the appeal for lack of prosecution; however, a direct criminal appellant shall have a second opportunity to respond. (Rev. 9/17/14)

In situations where the failure to prosecute involves the failure to file the brief, the Clerk shall follow these procedures:

a. All Civil Appeals, Including All Pro Se and Retained Counsel

Habeas Corpus and Criminal Post-Judgment Appeals

If appellant pro se or appellant's retained or pro bono counsel fails to timely file the opening brief, the Clerk shall dismiss the appeal for failure to prosecute no sooner than 14 days after the brief's due date has passed. (Rev. 9/17/14)

b. All Direct Criminal Appeals and All Habeas Corpus and Criminal

Post-Judgment Appeals in which Appellant is Represented by

Counsel Appointed pursuant to the Criminal Justice Act

If any appellant in a direct criminal appeal or an appellant represented by appointed counsel in a habeas corpus or criminal post-judgment appeal fails to timely file the opening brief, the Clerk shall issue a default order directing appellant to correct the deficiency within 14 days. The default order shall warn that failure to comply timely with the order may result in the imposition of sanctions on counsel, the removal of appointed counsel from the appeal, and/or dismissal of the appeal for failure to prosecute. The default order will further require the United States Attorney or the State Attorney General, within 14 days, to serve the order on appellant individually and to provide proof of service, including appellant’s registration number and address, to the Court. The Clerk shall serve the default order on appellant’s counsel by overnight mail if counsel is not registered for Appellate ECF.

If the opening brief is submitted along with a motion for relief from default, the Clerk may grant the motion and re-set the remainder of the briefing schedule or refer the motion to an Appellate Commissioner for resolution.

If a motion for extension of time to file the opening brief is filed in response to the default order, the motion will be referred to an Appellate Commissioner for resolution.

If appellant fails to respond to the default order with 14 days of the date of the default order, the matter will be referred to an Appellate Commissioner for further proceedings.

In the event appointed counsel is relieved pursuant to this section, a copy of the order shall be served on the appointing authority. (Rev. 9/17/14)

c. Direct Criminal Appeals (retained counsel) (Abrogated 9/17/14)

d. Direct Criminal Appeals (pro se appellants) (Abrogated 9/17/14)

e. Failure to File Answering Brief

In all cases, if no answering brief is filed, the Clerk shall, no sooner than 14 days after the brief’s due date, issue an order that directs appellee either to inform the Clerk by letter that no brief will be filed or to submit the brief along with a motion within 14 days of the date of the order. The Clerk may grant or refer the motion to an Appellate Commissioner, motions panel, or merits panel. If appellee fails to respond to the order, the case will be deemed ready for calendaring on the basis of the opening brief. (New 9/17/14)