Circuit Rule 28: Briefs

Briefs must conform to Fed. R. App. P. 28 and the additional provisions in Circuit Rules 12(b), 30 and 52. The following requirements supplement those in the corresponding provisions of Fed. R. App. P. 28:

(a) Appellant’s Jurisdictional Statement. The jurisdictional statement in appellant’s brief, see Fed. R. App. P. 28(a)(4), must contain the following details:

(1) The statement concerning the district court’s jurisdiction shall identify the provision of the constitution or federal statute involved if jurisdiction is based on the existence of a federal question. If jurisdiction depends on diversity of citizenship, the statement shall identify the jurisdictional amount and the citizenship of each party to the litigation. If any party is a corporation, the statement shall identify both the state of incorporation and the state in which the corporation has its principal place of business. If any party is an unincorporated association or partnership the statement shall identify the citizenship of all members. The statement shall supply similar details concerning the invocation of supplemental jurisdiction or other sources of jurisdiction.

(2) The statement concerning appellate jurisdiction shall identify the statutory provision believed to confer jurisdiction on this court and the following particulars:

(i) The date of entry of the judgment or decree sought to be reviewed.

(ii) The filing date of any motion for a new trial or alteration of the judgment or any other motion claimed to toll the time within which to appeal.

(iii) The disposition of such a motion and the date of its entry.

(iv) The filing date of the notice of appeal (together with information about an extension of time if one was granted).

(v) If the case is a direct appeal from the decision of a magistrate judge, the dates on which each party consented in writing to the entry of final judgment by the magistrate judge.

(3) If the appeal is from an order other than a final judgment which adjudicates all of the claims with respect to all parties, counsel shall provide the information necessary to enable the court to determine whether the order is immediately appealable. Elaboration will be necessary in the following cases although the list is illustrative rather than exhaustive:

(i) If any claims or parties remain for disposition in the district court, identify the nature of these claims and the ground on which an appeal may be taken in advance of the final judgment. If there has been a certificate under Fed. R. Civ. P. 54(b) or if this is an appeal by permission under 28 U.S.C. § 1292(b), give the particulars and describe the relation between the claims or parties subject to the appeal and the claims or parties remaining in the district court.

(ii) If the ground of jurisdiction is the “collateral order doctrine,” describe how the order meets each of the criteria of that doctrine: finality, separability from the merits of the underlying action, and practical unreviewability on appeal from a final judgment. Cite pertinent cases establishing the appealability of orders of the character involved.

(iii) If the order sought to be reviewed remands a case to a bankruptcy judge or administrative agency, explain what needs to be done on remand and why the order is nonetheless “final.”

(iv) Whenever some issues or parties remain before the district court, give enough information to enable the court to determine whether the order is appealable. Appeals from orders granting or staying arbitration or abstaining from decision as well as appeals from the grant or denial of injunctions require careful exposition of jurisdictional factors.

(b) Appellee’s Jurisdictional Statement. The appellee’s brief shall state explicitly whether or not the jurisdictional summary in the appellant’s brief is complete and correct. If it is not, the appellee shall provide a complete jurisdictional summary.

(c) [Deleted]

(d) Brief in Multiple Appeals.

(1) If a cross-appeal is filed, the clerk will designate which party will file the opening brief, and will set a briefing schedule in accordance with Fed. R. App. P. 28.1.

(2) The court will entertain motions for realignment of the briefing schedule and enlargement of the number of pages when the norm established by this rule proves inappropriate. Because it is improper to take a cross-appeal in order to advance additional arguments in support of a judgment, the court will not grant motions under this subsection by cross-appellants that do not seek to enlarge their rights under the judgment.

(3) Captions of Briefs in Multiple Appeals. When two or more parties file cross-appeals or other separate but related appeals, the briefs shall bear the appellate case numbers and captions of all related appeals.

(e) Citation of Supplemental Authority. Counsel shall file the original letter and ten copies of supplemental authorities drawn to the court’s attention under Fed. R. App. P. 28(j).

(f) Citation to the United States Reports. Citation to the opinions of the Supreme Court of the United States must include the Volume and page of the United States Reports, once the citation is available.