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| Where is the Notice of Appeal filed? | With the Clerk of the District Court. FRAP 3. |
| What are the 3 things to remember about jurisdiction before filing an appeal? | 1) proper timing, 2) proper (appealable) order or judgment (final, or exception to finality), 3) proper court |
| What are the two main ways to seek review of an agency decision? | 1) in district court, 2) in Court of Appeals |
| What governs the jurisdiction to review agency decisions? | Statutes |
| What are the 4 most important elements of a statute re: jurisdiction to review an agency decision? | 1) whether Court of appeals can review the decision, 2) when the petition for review has to be filed, 3) which court may hear the challenge, 4) whether party is required to seek rehearing before petition can be filed. |
| Can a party pursue a petition for review when the party is also seeking reconsideration or rehearing before the agency? | Ordinarily, no. |
| What are the most common types of petitions for extraordinary writs? | Mandamus and prohibition. |
| What are some examples of common petitions for writ of mandamus? | 1) requiring agency to take action on a matter that has been "unreasonably delayed" (TRAC case), 2) interlocutory review of district court orders that cannot be reviewed until final judgment, such as discovery orders and orders affecting jury procedures, 3) orders transferring cases to other jurisdictions. |
| Where is a petition for mandamus generally filed? | If the petition seeks review of a district court matter, or would be reviewable in Court of Appeals upon final order, then it probably should be filed in the Court of Appeals. |
| How are petitions for extraordinary writs handled? | 1) they are treated like motions and given priority, 2) they are referred to the Legal Division for presentation to a Special Panel, 3) staff attorney will prepare a memo and recommend one of three dispositions: deny without a response; order response, and defer disposition pending receipt of response; order response and calendar for oral argument. |
| What happens at the time of docketing? | The clerk's office will issue an order: giving you 30 days to file "initial submissions"; and set a 30-day deadline for procedural motions, and a 45-day deadline for dispositive motions. |
| What are "initial submissions"? | Initial submissions provide information to assist the Court in processing the case. They include copies of the decision, a docketing statement, statement of issues to be raised on appeal, etc. |
| What is a docketing statement? | A form, asking for information about the case, which is used by court personnel to process the appeal. |
| Is the statement of issues binding? | No. It is pimarily used by the clerk's office to help determine whether the appeal should be calendared for argument. |
| What is a deferred appendix? | An appendix filed after the briefs are filed. If used, the parties file preliminary briefs that omit appendix references, and after the deferred appendix is filed, the parties submit final briefs. |
| What are the two main types of motions? | Procedural and dispositive. |
| What is a procedural motion? | Any motion that does not have the potential of disposing of the case in whole or in part. |
| What are some common examples of procedural motions? | Motions to consolidate, intervene, to stay, to hold in abeyance, and to appoint counsel. |
| How does timing differ for procedural and dispositive motions? | 30 days after docketing for procedural, 45 days after docketing for dispositive. |
| How are procedural motions handled? | Motion is referred to the Legal Division, where it will be assigned to a staff attorney. The staff attorney will recommend a disposition to the Special Panel. |
| Which procedural motions are given priority? | Motions to expedite, to stay district court or agency orders, and motions to hold in abeyance. |
| How long does it take the Special Panel to decide procedural motions? | Most are resolved within 30 days of the filing of the opposition or the reply to the opposition. |
| What is a prerequisite for intervention? | Article III standing. |
| What is a motion to hold in abeyance? | It is a motion to defer appellate consideration pending the occurrence of another event. |
| What are the most common situations where motions to hold in abeyance are appropriate? | When parties are attempting to settle, or when the result of a related court or agency proceeding will substantially affect or even moot the appeal. |
| Will a direct criminal appeal be held in abeyance pending a post-conviction proceeding in the district court? | Absent exceptional circumstances, no. |
| What is required to grant a motion to expedite? | If not required by statute, have to show substantial likelihood of prevailing, and that absent expedition, the movant will suffer irreparable harm. May also grant if public, or persons not before the court, have an unusual interest in prompt disposition. |
| Can the clerk grant a motion to exceed page or word limits? | No. All such motions can only be granted by judges of the court. |
| What is a dispositive motion? | A motion that will terminate, in whole or in part, the court's consideration of an appeal. |
| What are some common examples of dispositive motions? | Motions for summary affirmance, to dismiss, for remand, and to transfer. |
| Can a dispositive motion be filed more than 45 days after docketing? | Yes, but motion must be accompanied by motion for leave to file the motion, and demonstrate good cause for the untimely filing. |
| How long does it take to decide a dispositive motion? | All are presented to the Court within 60 days of the filing of the reply to the opposition. |
| When is a motion for summary affirmance appropriate? | When the appeal presents no issue of first impression, the facts are relatively uncomplicated, and oral argument is unlikely to aid significantly to the decisional process. |
| What are two situations where the court is unlikely to grant summary affirmance? | 1) the appeal involves and issue of first impression, 2) where the court would have to choose between conflicting circuit decisions. |
| When is a motion for summary reversal appropriate? | Very rarely. Appropriate when intervening Supreme Court or D.C. Circuit decisions render the decision incorrect. Almost always inappropriate in other circumstances. |
| When is a motion to dismiss appropriate? | Where the court's power to decide the appeal is in question--the order is not a final order; appellant does not have standing; appeal filed out of time; appeal is moot; or if court has no statutory authority to review the order appealed. |
| Is a motion to dismiss a proper vehicle to argue the merits of the decision being appealed? | Unless the appeal is legally frivolous, no. Such arguments should be made in a motion for summary affirmance. |
| When is a motion for remand appropriate? | When further proceedings before the district court or the agency are appropriate. |
| What is the difference between a remand of the record and a remand of the case? | Where only the record is remanded, the Court of Appeals retains jurisdiction and the district court or agency cannot change its ultimate disposition. When the whole case is remanded, the Court of Appeals relinquishes jurisdiction and the district court or agency is free to reconsider its disposition in light of the instructions accompanying the remand. |
| When is a remand of the record appropriate? | When the district court or agency needs to supplement the record with additional fact-finding. |
| What is an emergency motion? | Motions that seek relief on an expedited basis, usually to forestall the effective date of an agency or district court order. |
| What are the most common emergency motions? | Motions to stay district court or agency orders or agency rules, or motions to enjoin specified action by a party pending disposition of the appeal. |
| What must emergency relief motion discuss? | 1) likelihood of prevailing on merits, 2) irreparable harm to moving party, 3) irreparable harm to other parties, 4) public interest. |
| How are emergency motions handled? | Immediately routed to Legal Division; assigned to staff attorney; staff attorney reviews and discusses with supervisor; staff attorney briefs Special Panel either orally or in a written recommendation. |
| What is the Special Panel? | A panel that is always on duty to hear emergencies; decide motions; and dispose of cases without argument, under DC Cir. R. 34(j). |
| Which Circuit rule addresses disposition without oral argument? | 34(j) |
| How long do judges serve on the Special Panel? | For up to three months during the term, and for six weeks during the summer. |
| How are civil appeals screened? | A package of materials--the initial submissions and district court docket entries--are sent to the Legal Division after the initial submissions are filed and any motions decided. A staff attorney reviews the material, checks to see whether jurisdiction is proper, and whether there are related cases. If everything is in order, the staff attorney will make an initial determination re: whether the appeal should be decided with or without oral argument. |
| How are criminal appeals screened? | The Legal Division will wait until after appellant's brief is filed, and often until appellee's brief is filed, to screen the case. |
| What happens when a case is screened for possible disposition without oral argument? | Clerk's office issues briefing schedule, indicating that it may fall within 34(j). This order only means that a staff attorney has been made, not a judicial one. After briefing, staff attorney will prepare a written memo and proposed disposition for the Special Panel. If the Special Panel agrees, the parties will receive a notice, and can seek recon, but it's rarely granted. |
