FRAP10

Ninth Circuit Rules

Table of Contents

FRAP 10

THE RECORD ON APPEAL

(a) Composition of the Record on Appeal. The following items constitute the record on appeal:

(1) the original papers and exhibits filed in the district court;

(2) the transcript of proceedings, if any; and

(3) a certified copy of the docket entries prepared by the district clerk.

(b) The Transcript of Proceedings.

(1) Appellant's Duty to Order. Within 10 days after filing the notice of appeal or entry of an order disposing of the last timely remaining motion of a type specified in Rule 4(a)(4)(A), whichever is later, the appellant must do either of the following:

(A) order from the reporter a transcript of such parts of the proceedings not already on file as the appellant considers necessary, subject to a local rule of the court of appeals and with the following qualifications:

(i) the order must be in writing;

(ii) if the cost of the transcript is to be paid by the United States under the Criminal Justice Act, the order must so state; and

(iii) the appellant must, within the same period, file a copy of the order with the district clerk; or

(B) file a certificate stating that no transcript will be ordered.

(2) Unsupported Finding or Conclusion. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to that finding or conclusion.

(3) Partial Transcript. Unless the entire transcript is ordered:

(A) the appellant must - within the 10 days provided in Rule 10(b)(1) - file a statement of the issues that the appellant intends to present on the appeal and must serve on the appellee a copy of both the order or certificate and the statement;

(B) if the appellee considers it necessary to have a transcript of other parts of the proceedings, the appellee must, within 10 days after the service of the order or certificate and the statement of the issues, file and serve on the appellant a designation of additional parts to be ordered; and

(C) unless within 10 days after service of that designation the appellant has ordered all such parts, and has so notified the appellee, the appellee may within the following 10 days either order the parts or move in the district court for an order requiring the appellant to do so.

(4) Payment. At the time of ordering, a party must make satisfactory arrangements with the reporter for paying the cost of the transcript.

(c) Statement of the Evidence When the Proceedings Were Not Recorded or When a Transcript Is Unavailable. If the transcript of a hearing or trial is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. The statement must be served on the appellee, who may serve objections or proposed amendments within 10 days after being served. The statement and any objections or proposed amendments must then be submitted to the district court for settlement and approval. As settled and approved, the statement must be included by the district clerk in the record on appeal.

(d) Agreed Statement as the Record on Appeal. In place of the record on appeal as defined in Rule 10(a), the parties may prepare, sign, and submit to the district court a statement of the case showing how the issues presented by the appeal arose and were decided in the district court. The statement must set forth only those facts averred and proved or sought to be proved that are essential to the court's resolution of the issues. If the statement is truthful, it - together with any additions that the district court may consider necessary to a full presentation of the issues on appeal - must be approved by the district court and must then be certified to the court of appeals as the record on appeal. The district clerk must then send it to the circuit clerk within the time provided by Rule 11. A copy of the agreed statement may be filed in place of the appendix required by Rule 30.

(e) Correction or Modification of the Record.

(1) If any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly.

(2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded:

(A) on stipulation of the parties;

(B) by the district court before or after the record has been forwarded; or

(3) All other questions as to the form and content of the record must be presented to the court of appeals.

CIRCUIT RULE 10-1

NOTICE OF FILING OF APPEAL; DOCKET SHEET

When the notice of appeal is filed in the district court, the clerk of the district court shall immediately transmit a copy of the notice to the Court of Appeals, together with a copy of the district court docket sheet. The clerk of the district court shall immediately transmit a copy of the docket sheet to all parties.

Cross Reference: FRAP 3, Appeal as of Right-How Taken; Circuit Rule 3-1, Filing the Appeal.

CIRCUIT RULE 10-2

CONTENTS OF THE RECORD ON APPEAL

Pursuant to FRAP 10(a), the complete record on appeal consists of:

(a) the official transcript of oral proceedings before the district court ("transcript"), if there is one; and

(b) the district court clerk's record of original pleadings, exhibits and other papers filed with the district court ("clerk's record").

Because all members of the panel assigned to hear the appeal ordinarily will not have the entire record (see Ninth Cir. R. 11-4.1), the parties must prepare excerpts of record pursuant to Ninth Cir. R. 30-1. The purpose of the excerpts of record is to provide each member of the panel with those portions of the record necessary to reach a decision. The parties must ensure that, in accordance with the limitations of Rule 30-1, those parts of the record necessary to permit an informed analysis of their positions are included in the excerpts. (rev. 7/95)

Cross Reference: Circuit Rule 30-1, The Excerpts of Record.

CIRCUIT RULE 10-3

ORDERING THE REPORTER'S TRANSCRIPT

10-3.1 Civil Appeals

(a) Appellan's Initial Notice

Unless the parties have agreed on which portions of the transcript to order, or appellant intends to order the entire transcript, appellant shall serve appellee with a notice specifying which portions of the transcript appellant intends to order from the court reporter, as well as a statement of the issues the appellant intends to present on appeal. In the alternative, appellant shall serve on appellee a statement indicating that appellant does not intend to order any transcripts. This notice and statement shall be served on appellee and filed with this court within 10 calendar days of the filing of the notice of appeal or within 10 calendar days of the entry of an order disposing of the last timely filed motion of a type specified in Fed. R. App. P. 4(a)(4).

(b) Appellee's Response

Within 10 calendar days of the service date of appellant=s initial notice, appellee may respond to appellant's initial notice by serving on appellant a list of any additional portions of the transcript that appellee deems necessary to the appeal.

If the parties agree that no transcripts are necessary, appellant shall file in the district court a notice stating that no transcripts will be ordered, and provide copies of this notice to the court reporter and the Court of Appeals.

(d) Ordering the Transcript

Within 30 days of the filing of the notice of appeal, appellant shall file a transcript order in the district court, using the district court's transcript designation form. Appellant shall simultaneously provide a copy of the designation form to the court reporter and the Court of Appeals.

In ordering the transcripts, appellant shall either order all portions of the transcript listed by both appellant and appellee or certify to the district court pursuant to subsection (f) of this rule that the portions listed by appellee in the response to appellant's initial notice are unnecessary.

(e) Paying for the Transcript

On or before filing the designation form in the district court, appellant shall make arrangements with the court reporter to pay for the transcripts ordered. The United States Judicial Conference has approved the rates a reporter may charge for the production of the transcript and copies of a transcript. Appellant must pay for the original transcript.

The transcript is considered ordered only after the designation form has been filed in the district court and appellant has made payment arrangements with the court reporter or the district court has deemed the transcripts designated by appellee to be unnecessary and appellee has made financial arrangements. Payment arrangements include obtaining authorization for preparation of the transcript at government expense.

(f) Paying for Additional Portions of the Transcript

If appellee notifies appellant that additional portions of the transcript are required pursuant to 9th Cir. R. 10-3.1(b), appellant shall make arrangements with the court reporter to pay for these additional portions unless appellant certifies that they are unnecessary to the appeal and explains why not.

If such a certificate is filed in the district court, with copies to the court reporter and this court, the district court shall determine which party shall pay for which portions of the transcript. Appellant may ask the Court of Appeals for an extension of time to make arrangements with the court reporter to pay for the transcripts pending the district court's resolution the issue.

10-3.2 Criminal Appeals

(a) Early Ordering of the Transcript in Criminal Trials Lasting

10 Days or More

Where criminal proceedings result in a trial lasting 10 calendar days or more, the district court may authorize the preparation of the transcript for the appeal and payment of the court reporter after the entry of a verdict but before the filing of a notice of appeal. In addition to filing a CJA Form 24 (Authorization and Voucher for Payment of Transcript), appointed counsel shall certify to the district curt that defendant is aware of the right to appeal, and that the defendant has instructed counsel to appeal regardless of the nature or length of the sentence imposed.

Retained counsel must make a similar certification to the district court along with financial arrangements with the court reporter to pay for the transcripts before obtaining early preparation authorization.

The Court of Appeals waives the reduction on transcript price for transcripts ordered pursuant to this subsection from the date of the initial order to the date the transcripts would otherwise be ordered, i.e., 7 calendar days from the filing of the notice of appeal.

The parties shall comply with all other applicable parts of 9th Cir. R. 10-3.2(b) - (f).

(b) Appellant's Initial Notice

Unless parties have agreed on which portions of the transcript to order or appellant intends to order the entire transcript, appellant shall serve appellee with a notice listing the portions of the transcript appellant will order from the court reporter, as well as a statement of the issues the appellant intends to present on appeal. In the alternative, the appellant shall serve appellee with a statement indicating that no transcripts will be ordered. This notice and statement shall be served on appellee within 7 calendar days of the filing of the notice of appeal or within 7 calendar days of the filing of the notice of appeal or within 7 calendar days of the entry of an order disposing of the last timely filed motion of a type specified in Fed. R. App. P. 4(b).

Within 7 days of the service of appellant=s initial notice, the appellee may serve on the appellant a response specifying what, if any, additional portions of the transcript are necessary to the appeal.

(d) Ordering the Transcript

Within 21 days from the filing of the notice of appeal, appellant shall file a transcript order in the district court using the district court's transcript designation form. Appellant shall simultaneously provide a copy of this designation form to the court reporter and the court of Appeals. Appellant shall order all the portions of the transcript listed by both appellant and appellee, or certify to the district court pursuant to subsection (f) of this rule that the portions of the transcript listed by appellee in the response to appellant's initial notice are unnecessary. (e) Paying for the Transcript

Where appellant is represented by retained counsel, counsel shall make arrangements with the court reporter to pay for the transcripts on or before the day the transcript designation form is filed in the district court. Appellee shall make financial arrangements when the district court has deemed the transcripts designated by appellee to be unnecessary and appellee desires production of those transcripts.

Where the appellant is proceeding in forma pauperis, appellant shall prepare a CJA Voucher Form 24 and submit the voucher to the district court along with the designation form.

In either case, failure to make proper arrangements with the court reporter to pay for the ordered transcripts may result in sanctions pursuant to Fed. R. App. P. 46(c).

(f) Paying for Additional Portions of the Transcript

If appellee notifies appellant that additional portions of the transcript are required pursuant to 9th Cir. R. 10-3.2(c), appellant shall make arrangements with the court reporter to pay for these additional portions unless appellant certifies that they are unnecessary to the appeal and explains why not.

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 10-3

The intent of the requirement of a statement of the issues is to provide the appellee with notice of those transcripts necessary for resolution of the issues to be raised by the appellant on appeal. While failure to comply with this rule may, in the court's discretion, result in dismissal of the appeal, dismissal is not mandated if the record is otherwise sufficient to permit resolution of the issues on appeal. See United States v. Alerta, 96 F.3d 1230, 1233-34 (9th Cir. 1996); Syncom Capitol Corp. v. Wade, 924 F.2d 167 (9th Cir. 1991). Similarly, the omission of a given issue from the statement of the issues does not bar appellant from raising that issue in the brief if any transcript portions necessary to support that argument have been prepared.

A party who subsequently determines that the initially designated transcripts are insufficient to address the arguments advanced on appeal may seek leave to file a supplemental transcript designation and, if necessary, to expand the record to include that transcript