Ninth Circuit Rules
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Ninth Circuit Rules |
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FRAP 30
APPENDIX TO THE BRIEFS
(a) Appellant's Responsibility.
(1) Contents of the Appendix. The appellant must prepare and file an appendix to the briefs containing:
(A) the relevant docket entries in the proceeding below;
(B) the relevant portions of the pleadings, charge, findings, or opinion;
(C) the judgment, order, or decision in question; and
(D) other parts of the record to which the parties wish to direct the court's attention.
(2) Excluded Material. Memoranda of law in the district court should not be included in the appendix unless they have independent relevance. Parts of the record may be relied on by the court or the parties even though not included in the appendix.
(3) Time to File; Number of Copies. Unless filing is deferred under Rule 30(c), the appellant must file 10 copies of the appendix with the brief and must serve one copy on counsel for each party separately represented. An unrepresented party proceeding in forma pauperis must file 4 legible copies with the clerk, and one copy must be served on counsel for each separately represented party. The court may by local rule or by order in a particular case require the filing or service of a different number.
(b) All Parties' Responsibilities.
(1) Determining the Contents of the Appendix. The parties are encouraged to agree on the contents of the appendix. In the absence of an agreement, the appellant must, within 10 days after the record is filed, serve on the appellee a designation of the parts of the record the appellant intends to include in the appendix and a statement of the issues the appellant intends to present for review. The appellee may, within 10 days after receiving the designation, serve on the appellant a designation of additional parts to which it wishes to direct the court's attention. The appellant must include the designated parts in the appendix. The parties must not engage in unnecessary designation of parts of the record, because the entire record is available to the court. This paragraph applies also to a cross-appellant and a cross-appellee.
(2) Costs of Appendix. Unless the parties agree otherwise, the appellant must pay the cost of the appendix. If the appellant considers parts of the record designated by the appellee to be unnecessary, the appellant may advise the appellee, who must then advance the cost of including those parts. The cost of the appendix is a taxable cost. But if any party causes unnecessary parts of the record to be included in the appendix, the court may impose the cost of those parts on that party. Each circuit must, by local rule, provide for sanctions against attorneys who unreasonably and vexatiously increase litigation costs by including unnecessary material in the appendix.
(c) Deferred Appendix.
(1) Deferral Until After Briefs Are Filed. The court may provide by rule for classes of cases or by order in a particular case that preparation of the appendix may be deferred until after the briefs have been filed and that the appendix may be filed 21 days after the appellee's brief is served. Even though the filing of the appendix may be deferred, Rule 30(b) applies; except that a party must designate the parts of the record it wants included in the appendix when it serves its brief, and need not include a statement of the issues presented.
(2) References to the Record.
(A) If the deferred appendix is used, the parties may cite in their briefs the pertinent pages of the record. When the appendix is prepared, the record pages cited in the briefs must be indicated by inserting record page numbers, in brackets, at places in the appendix where those pages of the record appear.
(B) A party who wants to refer directly to pages of the appendix may serve and file copies of the brief within the time required by Rule 31(a), containing appropriate references to pertinent pages of the record. In that event, within 14 days after the appendix is filed, the party must serve and file copies of the brief, containing references to the pages of the appendix in place of or in addition to the references to the pertinent pages of the record. Except for the correction of typographical errors, no other changes may be made to the brief.
(d) Format of the Appendix. The appendix must begin with a table of contents identifying the page at which each part begins. The relevant docket entries must follow the table of contents. Other parts of the record must follow chronologically. When pages from the transcript of proceedings are placed in the appendix, the transcript page numbers must be shown in brackets immediately before the included pages. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial formal matters (captions, subscriptions, acknowledgments, etc.) should be omitted.
(e) Reproduction of Exhibits. Exhibits designated for inclusion in the appendix may be reproduced in a separate volume, or volumes, suitably indexed. Four copies must be filed with the appendix, and one copy must be served on counsel for each separately represented party. If a transcript of a proceeding before an administrative agency, board, commission, or officer was used in a district-court action and has been designated for inclusion in the appendix, the transcript must be placed in the appendix as an exhibit.
(f) Appeal on the Original Record Without an Appendix. The court may, either by rule for all cases or classes of cases or by order in a particular case, dispense with the appendix and permit an appeal to proceed on the original record with any copies of the record, or relevant parts, that the court may order the parties to file.
THE EXCERPTS OF RECORD
30-1.1 Purpose
(a) In the Ninth Circuit the appendix prescribed by FRAP 30 is not required. Instead, Circuit Rule 30-1 requires the parties to prepare excerpts of record. All members of the panel assigned to hear the appeal ordinarily will not have the entire record. 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 should 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.
(b) Excerpts of record must be filed in all cases. The requirements for petitions for review and applications for enforcement of agency decisions are set forth at Rule 17-1. In appeals from district court decisions reviewing agency actions, the excerpts of record shall comply with Rule 30-1 and shall include as well the materials required by Rule 17-1.
30-1.2 Appellant's Initial Excerpts of Record
At the time the appellant's opening brief is filed, the appellant shall file five (5) copies of excerpts of record bound separately from the briefs. The appellant shall serve one (1) copy of the excerpts on each of the other parties.
30-1.3 Required Contents of the Excerpts of Record
(a) In all appeals the excerpts of record shall include:
(i) the notice of appeal;
(ii) the trial court docket sheet;
(iii) the judgment or interlocutory order appealed from;
(iv) any opinion, findings of fact or conclusions of law relating to the judgment or order appealed from;
(v) any other orders or rulings, including minute orders, sought to be reviewed;
(vi) any jury instruction given or refused which presents an issue on appeal;
(vii) except as provided in Circuit Rule 30-1.3(b)(ii), where an issue on appeal is based upon a challenge to the admission or exclusion of evidence,
that specific portion of the reporter's transcript recording any discussion by court or counsel involving the evidence, offer of proof, ruling or order, and objections at issue;
(viii) except as provided in Circuit Rule 30-1.3(b)(ii), where an issue on appeal is based upon a challenge to any other ruling, order, finding of fact, or conclusion of law, and that ruling, order, finding or conclusion was delivered orally, that specific portion of the reporter's transcript recording any discussion by court or counsel in which the assignment of error is alleged to rest;
(ix) where an issue on appeal is based upon a challenge to the allowance or rejection of jury instructions, that specific portion of the reporter's transcript recording any discussion by court or counsel involving the instructions at issue, including the ruling or order, and objections;
(x) where an issue on appeal is based on written exhibits (including affidavits), those specific portions of the exhibits necessary to resolve the issue; and
(xi) any other specific portions of any documents in the record that are cited in appellant's briefs and necessary to the resolution of an issue on appeal.
(b) In addition to the items required by Circuit Rule 30-1.3(a), in all criminal appeals and motions for relief under 28 U. S. C. sec. 2255 the excerpts of record shall also include:
(i) the final indictment; and
(ii) where an issue on appeal concerns matters raised at a suppression hearing, change of plea hearing or sentencing hearing, the relevant portions of reporter's transcript of that hearing.
Cross Reference: Circuit Rule 30-1.9, Presentence Reports.
(c) In addition to the items required by Circuit Rule 30-1.3(a), in civil appeals the excerpts of record shall also include:
(i) the final pretrial order, or, if the final pretrial order does not set out the issues to be tried, the final complaint and answer, petition and response, or other pleadings setting out those issues, and;
(ii) where the appeal is from the grant or denial of a motion, those specific portions of any affidavits, declarations, exhibits or similar attachments submitted in support of or in opposition to the motion that are essential to the resolution of an issue on appeal; and
(iii) where the appeal is from a district court order reviewing an agency's benefits determination, the entire reporter's transcript of proceedings before the administrative law judge if such transcript was filed with the district court.
Cross Reference: Circuit Rule 28-2.5, Reviewability and Standard of Review.
30-1.4 Items Not to Be Included in the Excerpts of Record
The excerpts of record shall not include briefs or other memoranda of law filed in the district court unless necessary to the resolution of an issue on appeal, and shall include only those pages necessary therefor.
Cross Reference: Circuit Rule 30-2, Sanctions.
30-1.5 Form of the Excerpts of Record
The documents which comprise the excerpts of record need not be certified as true copies, but if possible the district court or agency's "filed" stamp should appear on each document. The documents in the excerpts should be arranged by file date in chronological order with the document with the earliest file date on top. The document with the earliest file date should appear under the first tab or should be paginated beginning with page 1. The trial court docket sheet should always be the last document in the excerpts. The five (5) copies of the excerpts are to be reproduced on letter size white paper by any duplicating or copying process capable of producing a clear black image, and each copy must be securely bound on the left side and must have a white cover styled as described in FRAP 32(a). The excerpts must be either consecutively paginated beginning with page 1, or the documents marked with tabs corresponding to the tab number, if any, of the documents in the clerk's record. If tabs are used, the pages within the tabs must be consecutively paginated. The excerpts must begin with an index organized chronologically describing the documents, exhibits and portions of the reporter's transcript contained therein, the location where the documents and exhibits may be found in the district court record, and the page where the documents, exhibits or transcript portions may be found in the excerpts. The information on the front cover of the excerpts of record should be styled exactly as a brief except that the wording "Excerpts of Record" should be substituted for "Brief of Appellant." In those unusual cases in which the total number of pages in the excerpts exceeds 300 pages, the excerpts shall be filed in multiple volumes, with each volume containing 300 pages or fewer.
Appellants proceeding without the assistance of counsel who file the form brief provided by the Clerk pursuant to Circuit Rule 28-1 and who are required to file an excerpt of record need not comply with the technical requirements of this rule if they attach to their form briefs the documents comprising the excerpts of record.
30-1.6 Appellee's Supplemental Excerpts of Record
If the appellee believes that the excerpts of record filed by the appellant exclude items which are required under this rule, or if argument in the answering brief requires review of portions of the reporter's transcript or documents not included by appellant in the excerpts, the appellee shall, at the time of the appellee's brief is filed, file supplemental excerpts of record, prepared pursuant to this rule, comprised of the omitted items. Appellee shall file five copies of the supplemental excerpts. The appellee shall serve one copy of the supplemental excerpts of record on each of the other parties.
30-1.7 Additional Copies of the Excerpts of Record
(a) If the reply brief requires review of portions of the reporter's transcript or documents not included in the previously filed excerpts, appellant shall, at the time the reply brief is filed, file further excerpts of record. Appellant shall file five (5) copies of the further excerpts and shall serve one (1) copy of such excerpts of record on each of the other parties.
(b) If a supplemental brief filed pursuant to court order requires review of portions of the reporter's transcript or documents not included in any previously filed excerpts, the party filing the supplemental brief, shall, at the time the supplemental brief is filed, file additional excerpts of record. The party shall file five (5) copies of the excerpts and shall serve one (1) copy of such excerpts of record one each of the other parties.
30-1.8 Presentence Reports
In all cases in which the presentence report is referenced in the brief, the party filing such brief must forward four copies of the presentence report and may forward four copies of any other relevant confidential sentencing documents under seal to the Clerk of the Court of Appeals. This filing shall be accomplished by mailing the four copies of the presentence report in a sealed envelope which reflects the title and number of the cases and that four copies of the presentence report are enclosed. The copies of the presentence report shall accompany the brief and
excerpts of record. The presentence report shall remain under seal but be provided by the Clerk to the panel hearing the case. (rev. 7/95)
Cross Reference: Circuit Rule 27-13, Motions to Seal.
SANCTIONS FOR FAILURE TO COMPLY WITH CIRCUIT RULE 30-1
If materials required to be included in the excerpts under these rules are omitted, or irrelevant materials are included, the court may take one or more of the following actions:
(a) strike the excerpts and order that they be corrected and resubmitted;
(b) order that the excerpts be supplemented;
(c) if the court concludes that a party or attorney has vexatiously or unreasonably increased the cost of litigation by inclusion of irrelevant materials, deny that portion of the costs the court deems to be excessive; and/or
(d) impose monetary sanctions.
Counsel will be provided notice and have an opportunity to respond before sanctions are imposed.
PRISONER APPEALS WITHOUT REPRESENTATION BY COUNSEL
In cases involving appeals by prisoners not represented by counsel, the clerk of the district court shall upon receipt of the prisoner’s written request forward to the prisoner, within 21 days from the receipt of the request, copies of the documents to comprise the excerpt of record.