Amendments to Local Rules

The Federal Rules of Appellate Procedure have been amended, and the amendments are effective December 1, 2002. Counsel should pay particular note to amendments to Rule 4, Rule 5, Rule 21, Rule 25, Rule 26, Rule 26.1, Rule 27, Rule 280), Rule 31, and Rule 32.

Rule 26 now provides that periods of time of less than 11 days will be calculated in the same fashion as they are in the civil and criminal rules of procedure (i.e, intervening weekends and holidays are not counted). In light of this change, Rule 27 has modified the times for An responses and replies to 8 and 5 days, respectively.

The Eighth Circuit has also amended eight of its local rules. Rule 5A has been deleted. Rule 10A on exhibits now requires counsel to include relevant pre-trial exhibits in the exhibit appendix. Rule 25A implements FRAP 25's electronic service provisions. Rule 28A(d) permits counsel to use CD-ROMs for the required digital version of their brief and mandates the use of PDF format for all digital versions of briefs. Rule 28A(h) requires counsel seeking leave to file an overlength brief to submit the motion seven calendar days in advance of the brief due date; the court has also amended the rule to provide that overlength briefs are permitted only in extraordinary cases. Rule 31A affects service of briefs in death penalty cases. Ride 32A covers briefs filed in response to multiple briefs from opposing parties, and requires a consolidated brief from the responder in such circumstances. Rule 42A codifies the court's long-standing practice that motions to voluntarily dismiss direct criminal appeals must be signed by the defendant.

Copies of the amended Federal and Eighth Circuit rules are available on the court's web site at www.ca8.uscourts.gov and through many other legal resources.

The amendments to the Federal and Eighth Circuit Rules will be enforced as of December 2, 2002. Questions regarding their interpretation and implementation should be directed to the Eighth Circuit Clerk's Office.

November 29, 2002.

(a) Duty of Appellant. Subject to subparagraph (b) of 8th Cir.R.10A, appellant must ensure that all trial exhibits and all relevant pre-trial exhibits, or copies thereof, are submitted to the clerk of the court appeals no later than the filing of appellant's opening brief. If the trial exhibits and the relevant pre-trial exhibits were retained by the district court, appellant must ask the clerk of the district court to forward the exhibits to the clerk of the court of appeals. If the trial exhibits and the relevant pre-trial exhibits were not retained by the district court, appellant must prepare and submit a separate appendix containing the exhibits, or copies thereof. In the event appellant fails either to ask the district court to transmit the exhibits or to prepare a separate appendix of exhibits, the appellee may take steps to ensure that all trial exhibits and all relevant pretrial exhibits, or copies thereof, are submitted to the clerk of the court of appeals no later than the filing of appellee's brief. In pro se cases, the district court will transmit the exhibits, and no separate appendix of exhibits is required. See 8th Cir.R. 30A(a)(2).

(b) Physical Exhibits. Physical exhibits should not be filed with the clerk of this court unless they are referred to in the brief and examination of the exhibits would aid the court in resolving an issue raised on appeal. Counsel should contact the clerk before submitting unusually bulky or large physical exhibits. In a criminal case, evidence such as firearms and drugs may be filed only with leave of court.

(A) Electronic Filing. In cases or classes of cases as the clerk of court may select, the clerk is authorized to allow or to require any moving party to file a required document electronically. The electronic image of the document will constitute the original document for all court purposes. Filing is complete when the document is received in the clerk's database.

To each document filed electronically, the filer must add a certificate verifying that the original was signed by the attorney or party shown as the filer. The original signed document must be maintained by the filer for a period not less than the maximum allowable time to complete the appellate process. Upon request, the original document must be provided to other parties or to the court.

The clerk may allow a district court clerk to transmit the notice of appeal and other required docketing documents electronically. Receipt of these documents is complete for filing purposes when they are received in the clerk's database.

The clerk may require paper copies of any document filed electronically.

(b) Electronic Noticing. In cases or classes of cases as the clerk of court may select, the clerk is authorized to serve all papers on counsel of record electronically. Counsel who agree to accept electronic notice must agree that the electronic notice will be the only notice provided by the clerk.

(c) Filing by Facsimile. The clerk may establish a program to permit parties to file documents by facsimile.

(d) Electronic Service on Opposing Counsel. Electronic service is permitted only when the party being served has agreed, in writing, to accept electronic notice. If the party wishes to revoke consent previously given, the party must do so in writing. Substitution of counsel operates as a revocation of consent. Electronic service may be by facsimile or electronic mail. A party may limit the types of documents accepted by electronic service and may limit electronic mail to certain word processing formats. A party consenting to receive electronic service may also require that electronic service must be accompanied by simultaneous service by mail or commercial carrier of a paper copy of the electronically served document.

(a) Number. Five copies of briefs prepared pro se must be file. Ten copies must be filed with the court in all cases handled by an attorney. Eleven additional copies must be filed in cases heard en banc. In every case, two copies of each brief must be served on counsel for each party separately represented.

A party proceeding in forma pauperis who chooses to file typewritten and carbon copies of the brief must file the original and three legible copies with the clerk and must serve one legible copy on counsel for each party separately represented. See FRAP 31(b).

(1) Contents. Appellant must prepare an addendum and file it with the opening brief. The addendum must include:

(i) a copy of the district court or administrative agency opinion or order including supporting memoranda or findings;

(ii) any magistrate's report and recommendation that preceded the district court opinion or order;

(iii) short excerpts from the record, other than from the transcript of testimony, that would be helpful in reading the brief without immediate reference to the appendix; and

(iv) other relevant rulings of the district court.

(2) Length. The addendum must not exceed 15 pages excluding the district court or agency opinion and the magistrate's report and recommendation. The addendum will normally be incorporated into the back of the brief, but may be bound separately if it includes a long district court opinion or report and recommendation. If bound separately, the appellant must file the same number of addenda as briefs.

(3) Appellees's Addendum. The appellee's brief may include an addendum not to exceed 15 pages.

(c) Certification of Word Processing Program. In addition to the information required by FRAP 32(a)(7)(C), the certificate of compliance must also include the name and version of the word processing software used to prepare the brief.

(1) A digital version of each brief, excluding the Addendum, must be furnished to the court at the time the paper brief is file, unless counsel certifies that filing a digital version is not practicable. The full contents of the brief must be furnished. The contents must be in a single document file.

(2) The digital version of the brief may be furnished on 31/2 inch computer diskette or on a CD-ROM. Nothing else should be on the diskette or CDROM. The label of the diskette or CD-ROM must include the case name, docket number, and the name of the party on whose behalf the brief is filed. If a diskette is provided, the filing party must certify that the diskette has been scanned for viruses and that it is virus-free. If a CD-ROM is provided, the filing party must certify that the file copied to the CD-ROM has been scanned for viruses and that it is virus-free.

(3) The digital version of the brief must be in Portable Document Format (also known as PDF or Acrobat Format). The digital version must be generated by printing to PDF from the original word processing file, so that the text of the digital version of the brief may be searched and copied. PDF images created by scanning paper documents do not comply with this rule.

(4) One copy of the digital version of the brief must be furnished to each party separately represented by counsel.

(1) Schedule for Filing. In cases presenting a cross-appeal, the appellee/cross-appellant's opening brief must be filed as one brief within 30 days after service of appellant's brief. Appellant's reply/cross-appellee brief must be file as one brief within 30 days after service of cross-appellant's brief. Cross-appellant's reply brief must be filed within 14 days after service of appellant/cross-appellee's brief.

(2) Length of Briefs in Cross-Appeals. The appellant's opening brief and the combined appellee/cross-appellant's opening brief are governed by the length provisions of FRAP 32(a)(7)(A) and (B). An appellant's reply/cross-appellee brief may not exceed 25 pages. If prepared in compliance with FRAP 32(a)(7)(B), the brief may not exceed 10,000 or 1000 lines. The length of a cross-appellant's reply brief is governed by FRAP 32(a)(7)(A) and (B).

(1) Summary of the Case. Each appellant must file a statement not to exceed one page providing a summary of the case, the reasons why oral argument should or should not be heard, and the amount of time (15, 20, or 30 minutes, or in an extraordinary case, more than 30 minutes) necessary to present the argument. The summary must be placed as the first item in the brief. If appellee deems appellant's statement incorrect or incomplete, appellee may include a responsive statement in appellee's brief.

(2) Statement of Issues. In addition to the requirement of FRAP 28(a)(5), the statement of issues shall include for each issue a list of the most apposite cases, not to exceed four, and the most apposite constitutional and statutory provisions.

(g) Incorporation by Reference. A party may not incorporate by reference the contents of a brief filed elsewhere.

(h) Motions to File Overlength Briefs. Motions for leave to file overlength briefs will be granted only in extraordinary cases. A motion for permission to file an overlength brief must be submitted at least seven calendar days prior to the brief's due date.

(i) Citation of Unpublished Opinion. Unpublished opinions are decisions which a court designates for unpublished status. They are not precedent and parties generally should not cite them. When relevant to establishing the doctrines of res judicata, collateral estoppel, or the law of the case, however, the parties may cite any unpublished opinion. Parties may also cite an unpublished opinion of this court if the opinion has persuasive value on a material issue and no published opinion of this or another court would serve as well. A party who cites an unpublished opinion in a document must attach a copy of the unpublished opinion to the document. A party who cites an unpublished opinion for the first time at oral argument must attach a copy of the unpublished opinion to the supplemental authority letter required by FRAP 28(j). When citing an unpublished opinion, a party must indicate the opinion's unpublished status.

Cross-References: FRAP 25 (filing and service, 26 (computation of time), 28, 29, 31, 32.

Number of Copies. In death penalty matters where the petitioner or defendant is represented by more than one attorney, the state Attorney General or the United States Attorney must serve each opposing counsel with two copies of the brief.

(a) Appellee Briefs in Consolidated Criminal Cases Involving Multiple Appellants. In consolidated criminal appeals involving multiple appellants, the United States must file a single appellee brief. The type-volume limitations set forth in FRAP 32(a)(7)(i) apply to the brief. If the United States believes presentation of the cases would be aided by separate appellee briefs, it may file a motion, at least seven days prior to the brief due date, setting forth good cause to file separate briefs. Inability to comply with the type-volume limitations set forth in FRAP 32(a)(7)(B)(i) is not good cause for filing separate briefs.

(b) Reply Briefs in Appeals Involving Multiple Appellees. In cases involving multiple appellee briefs, appellant must file a single reply brief responding to all of the appellee briefs. The type-volume limitations set forth in FRAP 32(a)(7)(B)(ii) apply to the reply brief.

A criminal appeal may be dismissed only with the consent of the defendant. No motion to voluntarily dismiss a criminal appeal will be granted unless the defendant either signs the motion or consents, in a written attachment to the motion, to dismissal of the appeal.