on the Appellate Division
3rd and 4th Departments
Second Circuit Nuance Regarding Rejected Filings
Kevin Momot | Senior Appellate Consultant | PHP
The U.S. Court of Appeals for the Second Circuit notes specific deadlines with respect to timing of appellant, appellee and reply briefs (as well as for other filings). The deadlines for each subsequent brief (after the primary appellant’s brief) are measured from the date on which the brief immediately prior was filed (ie: the appellee must notify the clerk within 14 days after the last appellant’s brief is filed the deadline by which he will file his appellee’s brief. That date must be within 91 days of the appellant’s brief filing).
Moreover, pursuant to Local Rule 31.2(a)(2), “A reply brief must be filed within 21 days after the filing of the last appellee’s brief.” The question arises, however, as to what happens when a filing is rejected – for instance, in this case, the appellee’s brief. If the appellee’s brief is filed via ECF on a particular date, but is rejected for whatever procedural defect, and is corrected 2-3 days later with a new ECF filing, what is the reply brief deadline? Does the appellant derive the benefit of the appellee’s defective filing and get the extra 2-3 days for his reply brief?
The answer, in short, is no. The 21 days which appellant receives for his reply are measured from the date of the initial filing even if a rejection of that initial filing takes place. The Second Circuit measures from the time of filing, not from the time of the corrected filing.
Make a note of this so that you’re not late!
The Appendix Method at the Appellate Division, Third and Fourth Departments
In essence, an Appendix is an abbreviated Record on Appeal. When a trial goes on for weeks but only a portion of the transcript is pertinent to the appeal, an Appendix can be filed in order to eliminate the additional documents that could possibly dilute the appellant’s argument. Our clients will often look to file an Appendix as an alternative to the traditional Record on Appeal for this reason, or simply to explore as a possible cost-saving measure.
Per the statewide Practice Rules of the Appellate Division, Rule 1250.7(d), the Appendix must include portions of the Record necessary to allow the court to fully consider the issues being raised by the appellant and the respondent. The contents should include:
– Statement pursuant to CPLR 5531;
– Notice of Appeal;
– Decision/Order being appealed;
– Any pleading as to the issues raised on appeal;
– Any relevant portions of motions, opinions, transcripts or exhibits;
– Stipulation settling transcript or affirmation of compliance; and
– Certification pursuant to CPLR 2105 or stipulation pursuant to CPLR 5532.
When filing an Appendix with the Appellate Division, First or Second Department, the appellant must provide proof of service of a subpoena on the court of original instance requiring the documents making up the Record on Appeal to be filed with the appellate division, see Rule 1250.9(a)(2)(i).
However, when an appellant perfects an appeal on the Appendix method in the Appellate Division, Third or Fourth Department, these courts require the complete Record to be filed (digital copy only) in addition to the Appendix, per Rule 1250.9(a)(2)(ii). This means that after compiling the Appendix documents, numbering the pages, creating headnotes and an Appendix table of contents, the appellant must repeat these steps for a Record on Appeal, including even those documents which the appellant elected to exclude from the Appendix.
If you are filing an Appendix in either the Third or Fourth Department in order to save costs, you might be cutting off your nose to spite your face. Unless the anticipated Record on Appeal would be exceedingly large, it usually is more efficient in the Third and Fourth Departments to simply compile a Record on Appeal instead of serving and filing both an Appendix and a Record.
Ensuring Your Availability for Oral Argument in the Third and Fourth Departments
In the Appellate Division, Fourth Department, the court calendars appeals during pre-designated terms throughout the year, with each case either argued or submitted. After the appeal is perfected/filed, a scheduling order is issued specifying the term of court which the matter will be heard.
If you are not available for oral argument on specific dates during a particular term, the court should be notified in writing within 15 days from the time the scheduling order was issued of the conflict/unavailability, see Fourth Department Local Rule 1000.15(b). If there is a scheduling conflict that arises at a later time, and the actual date within the term for argument has not yet been set, notify the court in writing of the conflict
as soon as possible. Once a case has been scheduled for oral argument on a specified date, any request to change must be made by motion (although if it is an emergency situation, the court could still consider a request by letter).
There is currently a flexible protocol in the Fourth Department that allows for either in-person or remote oral argument appearances. After the appeal is calendared, and if oral argument has been requested/reserved, a party must inform the court no later than two days before the term as to whether they will be in-person or remote.
Similarly in the Third Department, appeals are calendared for designated terms and once respondents’ briefs are filed, the matter will be scheduled for the next available term (with notification from the court to the parties with scheduling information). The court should be notified of any scheduling conflicts that could fall within a specific day of the term scheduled. Approximately six weeks prior to argument date, the court will issue the day calendar specifying the cases which are scheduled for each day of the term. About one week before the first date of a particular term, the Third Department will have the session calendar available which will detail the time allowed for oral argument on a specific appeal
as well as the panel of judges that will hear the case. In addition, a party is required to notify the court at least 24 hours prior to argument of any calendar changes (including submissions or attorney changes).
As of the May 2021 Term, the Third Department anticipated it would essentially be back to in-person oral argument (as much as possible). However, requests could still be made on a case by case basis to be considered for remote appearances.
When Should the Initial Information and Documents be Electronically Filed in an Appeal? What is Included in Filing?
The Joint Rules of the Appellate Division on Electronic Filing (22 NYCRR Part 1245) govern e-filing designations and requirements. Rule 1245.3 specifically deals with entry of initial information and documents.
The first step in filing initial information in an e-filed appeal is to register or confirm registration as an authorized e-filer on the NYSCEF site (attorneys can use their existing Attorney Online Services account). To then request a Docket/Case Number from the appellate division you must, within 14 days of filing the Notice of Appeal in the lower court, e-file:
– A copy of the Notice of Appeal;
– Informational Statement; and
– Copy of Order or Judgment appealed from.
The Informational Statement will include the necessary details related to the appeal, including: caption, case type, originating court information and nature of suit, description of appeal and statement of issues, party information, and attorney information for all parties (including contacts).
Keep in mind each department of the appellate division can have various distinctions related to these initial filing documents, specifically as to how they should be consolidated and e-filed, and whether proof of filing/proof of service are required. We can assist in navigating the filing procedures and local rule exceptions (for example, in the Fourth Department the Informational Statement is not required, per Rule 1000.3(a)).
Once the initial documents are e-filed, the appellate division will then issue a Docket/Case Number. The attorney for appellant is required (within seven days of receipt) to serve on all other parties the Notification of Appellate Case or Docket Number. Service is by hardcopy, and must also follow with e-filing proof of service of the notification.
Unless exempt from e-filing requirements, the attorney for respondent must then, within 20 days of service of the notification of the case or docket number, register/confirm registration as an authorized e-filer with NYSCEF and e-file contact information in NYSCEF, see Rule 1245.3(d). After the 20-day period, an attorney who has not fulfilled these requirements will be deemed served with any e-filed documents.
In addition, Rule 1245(e) allows the appellant to designate a person or entity to e-file documents on their behalf as a filing agent, if that agent is also an approved e-filer. The Statement of Authorization for Electronic Filing form (either as an individual attorney or as managing attorney) must be e-filed together with the first document e-filed by the agent in the matter. The authorization for e-filing as an agent can also be revoked at any time, and the form designated for such purpose must be sent to the E-Filing Resource Center for processing. This is just a brief summary of the rules, generally, for filing the initial documents in an e-filed appeal. Each court has specific requirements on format and procedure – PHP can help you navigate the rules and work with you every step of the way.
What are Forms A, B, C and D at the 2nd Circuit?
Kevin Momot | Senior Appellate Consultant | PHP
FOR CIVIL CASES: FORMS C AND D
In civil cases, the Appellant must upload Forms C and D to the ECF system.
Form C: Civil Appeal Pre-Argument Statement. This gives a brief description of the appeal (e.g., caption of the case, contact information for the parties’ attorneys, disposition of the district Court and the nature of the case, to name a few items). This form must also be served on all parties.
Form D: Civil Appeal Transcript Information. This tells the Second Circuit whether or not a transcript is being ordered, and if not, the reason why. The Appellant also needs to provide a description, including dates of the proceedings for the transcripts required.
Forms C and D must be uploaded within 14 days after the Notice of Appeal has been uploaded. For a simple rundown of how to appeal civil cases at the Second Circuit, click here. You can download both forms from PHP’s website at http://phpny.com/federal-courts.
FOR CRIMINAL CASES: FORMS A AND B
When appealing a criminal case in the Second Circuit, the Appellant needs to upload Forms A and B to the ECF system instead of Forms C and D.
Form A: Criminal Notice of Appeal. This lists the caption of the case, what the appeal concerns, whether the defendant was found guilty by plea or trial, the dates of the offense and sentence, bail/jail disposition, and so on.
Form B: Criminal Appeal Transcript Information. This form lists the caption of the case, docket number, and counsel’s name and contact information. Primarily, the document is used to determine whether a transcript needs to be ordered or is readily available. The transcript can be pre-trial proceedings, trial transcripts, sentencing transcripts or post-trial proceedings.
Form A must be filed with the District Court within 14 days of entry of the Judgement or Order being appealed. Form B must be uploaded within 14 days of the date the Notice of Appeal was filed.
How to Determine/Schedule Filing Deadlines for Appendices and Briefs in the Second Circuit
Kevin Momot | Senior Appellate Consultant | PHP
In the Second Circuit, you must file a scheduling notification. Essentially, you are setting your own deadline to file the Appendix and Brief. However, there are certain limitations and guidelines you must follow.
APPELLANT’S BRIEF AND APPENDIX
Within 14 days after the appellant either receives the completed transcript or the appellant files the certificate that no transcript will be ordered (the “ready date”), the court must be notified in writing of the date by which the appellant’s brief will be filed. That deadline must be within 91 days of receipt of the completed transcript. The appellant’s proposed filing date will be “so-ordered” unless the court determines the selected filing date is unacceptable. If the appellant does not submit a scheduling request, the court will set a deadline for the brief that is 40 days after the ready date. See, generally, Second Circuit Local Rule 31.2(a)(1)(A) regarding the scheduling request for an appellant’s brief.
Per FRAP 30(a)(3), the appellant must file the Appendix with the brief. However, if the parties stipulate or if the court directs on motion, parties may file a deferred Appendix per FRAP 30(c).
Per Local Rule 31.2(a)(1)(B), within 14 days of filing the last appellant’s brief, the appellee must also notify the court (in writing) of the filing deadline for their brief. This deadline must be within 91 days after filing of the last appellant’s brief. If the appellee does not submit a scheduling request, the court will set a deadline for the brief that is 30 days after the filing of the last appellant’s brief.
In an instance where there is a cross-appeal, within 14 days of filing the last cross-appellant’s brief, the appellant-cross-appellee must notify the court of the filing deadline for their brief. This deadline must be within 60 days after filing of the last appellant’s brief. If the appellant-cross-appellee fails to set a deadline, the court will set the brief to be due 30 days after filing of the last cross-appellant’s brief. See Local Rule 31.2(a)(1)(C).
Per Local Rule 31.2(a)(2), a reply brief must be filed within 21 days after filing of the last appellee’s brief.
EXPEDITED APPEALS CALENDAR
In the alternative, the Second Circuit can place an appeal on an expedited appeals calendar if certain criteria are met (i.e. – judgment or order from the district court dismissing a complaint solely for subject matter jurisdiction, failure to state a claim for which relief can be granted, or a frivolous complaint). Once an appeal is placed on the expedited calendar, the court will inform the parties and the briefing schedule is as follows (per Local Rule 31.2(b)(3)):
– Appellant must file within 35 days of date of the court’s notification
of placement on the expedited calendar.
– Appellee must file within 35 days after filing of the last appellant’s brief.
– Reply brief must be filed within 14 days after filing of the last appellee’s brief.
Extending the Time to Perfect an Appeal and File a Respondent’s and Reply Brief in AD3 and AD4
Kevin Momot | Senior Appellate Consultant | PHP
Below are guidelines regarding how to request an extension of time to perfect an appeal or file a respondent’s brief in the Appellate Division, Third and Fourth Departments (as directed generally by the statewide Practice Rules of the Appellate Division, 22 NYCRR Part 1250).
PERFECTING AN APPEAL
An appellant is required to perfect an appeal within six months from the date of the Notice of Appeal, per Rule 1250.9(a). When seeking additional time to perfect an appeal in either of these departments, the appellant may submit a request by letter (on notice to all parties) an extension of up to 60 days to perfect the appeal, per Rule 1250.9(b). The appellant can subsequently request by letter (on notice to all
parties) for an additional 30 days to perfect, and then any further extension must be made by motion. In the alternative parties may extend the deadline to perfect the appeal by stipulation.
FILING A RESPONDENT’S BRIEF
The respondent is required to file/serve their brief within 30 days of service of the Record on Appeal/Appendix, per Rule 1250.9(c). When requesting extra time to submit a respondent’s brief in the Third and Fourth Departments, the respondent may apply by letter (on notice to all parties) for an extension of up to 30 days, per Rule 1250.9(g)(1). A second request for an additional 30 days can be made by letter, and any further extension must be made by motion. Again, in the alternative, parties may extend the deadline to file/serve a respondent’s brief by stipulation.
FILING A REPLY BRIEF
The appellant’s reply brief must be filed/served within 10 days of service of the respondent’s brief, per Rule 1250.9(d). The same process applies to the reply brief: the initial request for an additional 10 days can be made by letter (on notice to all parties), a subsequent request for an additional 10 days also by letter, then any further extension to be made by motion (or in the alternative extension by stipulation).
Subpoena Requirements at the New York State Appellate Division
Kevin Momot | Senior Appellate Consultant |PHP
In the New York State Appellate Division, subpoenas are most commonly used when the appellant elects to perfect an appeal using the “Appendix Method.” Essentially, an Appendix is an abbreviated version of a Record on Appeal. Therefore, when perfecting an appeal using the “Appendix Method,” it is the appellant’s responsibility to ensure the Appellate Division has a complete copy of the lower court file. In order to effectuate such a transfer of the file, the appellant must file a subpoena with the county court which produced the order they are appealing from. For instance, if the appellant is perfecting an appeal in the Appellate Division, First Department from an order originating in New York County, the subpoena must be filed in New York County. It is then the responsibility of the New York County Clerk’s Office to transfer the complete Record to the First Department. When perfecting an appeal using the “Appendix Method” in either the First or Second Departments, if the complete Record has not yet been transferred by the time the appellant is ready to file the Appendix and Brief, the clerk of the Appellate Division will request a copy of the filed subpoena.
There is a fee associated with filing a subpoena and the amounts and processes may vary from county to county. Most of the fees are fixed (and nominal) and must be paid with an attorney’s check. However, Bronx County requires cash and the charges vary depending on the size of the Record that is being subpoenaed. On average, the fee will be between $20 and $30.
The process to perfect an appeal using the “Appendix Method” in the Appellate Division, Third and Fourth Departments is quite different. In addition to filing the Appendix, the Appellant is required to file one complete copy of the Record on Appeal (digital only). No subpoena is required.
MEET KEVIN MOMOT
A native of Rochester, Kevin has worked in the Western New York legal community for almost 20 years. He serves on the boards of several area nonprofit organizations, and is affiliated with numerous local and statewide legal and business associations. Kevin focuses primarily on appeals to the New York State Appellate Divisions, the New York State Court of Appeals and the U.S. Court of Appeals for the Second Circuit. He is dedicated to delivering the highest level of customer service.