10th Cir. R. 30.1: Appellant’s appendix

Instead of a Federal Rule of Appellate Procedure 30 “appendix to the briefs,” parties shall attach to their briefs the documents required by Rule 28.2(A) and (B).

The appendix required by the remainder of this Rule 30.1 is the form the record on appeal takes when the appellant is represented by retained counsel or is an attorney representing himself or herself. See 10th Cir. R. 10.1. The remainder of this Rule does not apply to appeals in which the appellant is pro se or is represented by counsel appointed pursuant to 18 U.S.C. § 3006A. See 10th Cir. R. 10.1.

The appendix is prepared and electronically filed by the appellant. A hard copy of the electronic appendix is required only if ordered by the court. If a hard copy is ordered, it must be an exact replica of the electronically filed appendix. This Rule also applies to appeals from the Tax Court.

(A) Timing.

(1) Electronic filing. The appendix must be filed electronically at the same time the opening brief is filed. See 10th Cir. R. 31.1(A)(1) (noting the brief and appendix must be filed within 40 days after the district court clerk notifies the parties and the circuit clerk that the record is complete).

(2) Deferred appendix. Parties seeking to submit a deferred appendix under Federal Rule of Appellate Procedure 30(c) may file a motion seeking an exception to these requirements.

(B) Content.

(1) Appellant’s duty. An appellant who is represented by retained counsel, or who is an attorney representing himself or herself, must electronically file an appendix sufficient for considering and deciding the issues on appeal. The requirements of Rule 10.4 for the contents of a record on appeal apply to appellant’s appendix. See also 10th Cir. R. 10.2(A) (addressing appellant’s duty with regard to transcripts).

(2) Social Security cases. In Social Security cases, the entire administrative record must be included in the appendix. In appropriate situations, the appellant may file a motion seeking an exemption from electronic filing of the administrative record, and a waiver of service requirements for the administrative record. If an exemption from electronic filing is granted, the appellant must submit a hard copy of the appendix. See 10th Cir. R. 30.1(A)(2).

(3) Inadequate Appendix. The court need not remedy any failure of counsel to provide an adequate appendix. See 10th Cir. R. 10.4(B).

(C) Multiple appellants. When multiple appellants are allowed to file separate briefs under Rule 31.3(B), separate appendices may be filed. But counsel must avoid duplication of items included in a previously filed appendix; duplicative items may be adopted by reference. A single agreed appendix is preferred.

(D) Form.

Important Note: Counsel should review the Court’s CM/ECF User Manual at Sections II and III and in particular III(G) for important technical information and instructions regarding the electronic appendix. These sections also include important information regarding submission of the required single hard copy of the appendix. See www.ca10.uscourts.gov.

(1) Cover; pagination. Each volume of an appendix must have a white cover with the information required by Federal Rule of Appellate Procedure 32(a)(2) and (b). The appendix must be consecutively paginated. However, volumes within a multi-volume appendix may be paginated independently. That is, while the appendix need not be paginated consecutively across multiple volumes, each volume must be paginated consecutively. Citations to the appendix must make clear the volume and page cited.

(2) Index or table of contents. All appendices must include an index or table of contents of documents with appropriate volume and page numbers noting where the documents appear. If the appendix consists of multiple volumes, each volume must include an index or table of contents.

(3) File stamped. Documents in the appendix should show the district court’s electronic stamp, but they need not be certified.

(4) District court docket entries. A copy of the district court’s docket entries should always be the first document in the appendix.

(5) Order of documents. Documents should be arranged in chronological order according to the filing date; other papers such as exhibits and transcript excerpts should be at the end.

(6) Separate volumes. Where the appendix is large, separate volumes should be created to allow for manageable review of the materials, and each volume should have its own cover page identifying that volume number. Individual volumes should not exceed 300 pages in length. If a hard copy of the appendix is ordered, the number of electronic volumes must match the number of hard copy volumes; the court strongly encourages the use of spiral binding; and the use of three-ring binders is prohibited.

(7) Sealed documents; form and motion requirement.

Copies of documents intended for filing under seal should be submitted in a separate volume, using the ECF option for filing under seal. If the appendix includes sealed materials it must be accompanied by a separate motion to seal in accordance with Rule 25.6. Pretrial services reports, presentence reports, and statements of reasons in criminal cases constitute an exception to this motion requirement. 10th Cir. R. 11.3(C).

(E) Service of the Appendix. The electronic appendix must be served on every other party to the appeal. Parties may use the court’s CM/ECF system to accomplish that service. See 10th Cir. R. 25.4. If served electronically, a hard copy need not be served on other parties. If an exemption is allowed under Rule 30.3(A) and only hard copies of the appendix are filed, a hard copy of the appendix must be served on every other party to the appeal. See 10th Cir. R. 25.3 (regarding seeking exemptions from electronic filing requirements); 10th Cir. R. 30.3(A).

(F) Order appealed must be submitted with brief. Filing an appendix does not relieve counsel of the requirements of Rule 28.2(A).