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!

– 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.

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.

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.

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).

APPELLEE’S BRIEF
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.

CROSS-APPEAL
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).

REPLY BRIEF
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.

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).

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.

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.