Circuit Rule 28-2: Contents of Briefs

In addition to the requirements of FRAP 28, briefs shall comply with the following rules:

28-2.1. Certificate as to Interested Parties [Abrogated 7/1/90]

28-2.2. Statement of Jurisdiction

In a statement preceding the statement of the case in its initial brief, each party shall demonstrate the jurisdiction of the district court or agency and of this Court by stating, in the following order:

(a) The statutory basis of subject matter jurisdiction of the district court or agency;

(b) The basis for claiming that the judgment or order appealed from is final or otherwise appealable, and the statutory basis of jurisdiction of this Court. (Rev. 12/1/09)

(c) The date of entry of the judgment or order appealed from; the date of filing of the notice of appeal or petition for review; and the statute or rule under which it is claimed the appeal is timely.

If the appellee agrees with appellant’s statement of one or more of the foregoing matters, it will be sufficient for the appellee to state such agreement under an appropriate heading.

28-2.3. Attorneys Fees [Abrogated 7/1/97]

28-2.4. Bail / Detention Status

(a) The opening brief in a criminal appeal shall contain a statement as to the bail status of the defendant. If the defendant is in custody, the projected release date should be included.

(b) The opening brief in a petition for review of a decision of the Board of Immigration Appeals shall state whether petitioner (1) is detained in the custody of the Department of Homeland Security or at liberty and/or (2) has moved the Board of Immigration Appeals to reopen or applied to the district director for an adjustment of status. (New 1/1/05; Rev. 12/1/09)

28-2.5. Reviewability and Standard of Review

As to each issue, appellant shall state where in the record on appeal the issue was raised and ruled on and identify the applicable standard of review.

In addition, if a ruling complained of on appeal is one to which a party must have objected at trial to preserve a right of review, e.g., a failure to admit or to exclude evidence or the giving of or refusal to give a jury instruction, the party shall state where in the record on appeal the objection and ruling are set forth. (Rev. 12/1/09)

28-2.6. Statement of Related Cases

Each party shall identify in a statement on the last page of its initial brief any known related case pending in this Court. This statement constitutes a certificate of counsel, excluded from the page and word limitations pursuant to FRAP 32(f) and Circuit Rule 32-1(c). As to each such case, the statement shall include the name and Court of Appeals docket number of the related case and describe its relationship to the case being briefed. Cases are deemed related if they:

(a) arise out of the same or consolidated cases in the district court or agency;

(b) raise the same or closely related issues; or

(c) involve the same transaction or event.

If no other cases in this Court are deemed related, no statement is required. The appellee need not include any case identified as related in the appellant’s brief. (Rev. 12/1/19)

Circuit Advisory Committee Note to Rule 28-2.6

The purpose of this rule is to alert the parties and the Court to other known cases pending in this Court that might affect how the instant case is managed or decided. This rule does not require counsel to list all known cases raising the same or closely related issues if the list would be lengthy and counsel in good faith believes that listing the cases would not assist the Court or other parties. (New 12/1/19)

28-2.7. Addendum to Briefs

Statutory. Pertinent constitutional provisions, treaties, statutes, ordinances, regulations or rules must be set forth verbatim and with appropriate citation either (1) following the statement of issues presented for review or (2) in an addendum introduced by a table of contents and bound with the brief or separately; in the latter case, a statement must appear referencing the addendum after the statement of issues. If this material is 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 distinctively colored page. A party need not resubmit material included with a previous brief or addendum; if it is not repeated, a statement must appear under this heading as follows: [e]xcept for the following, all applicable statutes, etc., are contained in the brief or addendum of _________. (Rev. 12/1/09)

Orders Challenged in Immigration Cases. All opening briefs filed in counseled petitions for review of immigration cases must include an addendum comprised of the orders being challenged, including any orders of the immigration court and Board of Immigration Appeals. The addendum shall be bound with the brief, both when it is filed electronically and, when ordered, in hard copies. When paper copies of the brief are ordered, the addendum shall be separated from the brief by a distinctively colored page. (New 7/1/07; Rev. 12/1/09; Rev. 12/1/21)

Circuit Advisory Committee Note to Rule 28-2.7

The purpose of the statutory addendum is to provide the Court with convenient access to statutory or other authority that is either specifically at issue or is not already commonly known, not to provide every statute or legal authority that is cited in the brief. For example, when the parties are debating the meaning of a specific clause or portion of a statute, regulation, constitutional provision, or other legal authority, or when they are discussing authority that is not commonly cited, the addenda should include the pertinent provisions of that legal authority. (New 12/1/21)

28-2.8. Record References

Every assertion in the briefs regarding matters in the record, except for undisputed facts offered only for general background, shall be supported by a citation to the Excerpts of Record, unless the filer is exempt from the excerpts requirement. (Rev. 7/1/98; 12/1/09; 12/1/20)

Circuit Advisory Committee Note to Rule 28-2.8

Because every record-related citation other than undisputed facts offered only for general background shall be supported by the Excerpts of Record, citations directly to the underlying record are otherwise prohibited. (Rev. 12/1/20)

28-2.9. Bankruptcy Appeals [Abrogated 12/1/09]