8th Cir. IOP § III

A. PRELIMINARY CONSIDERATION

Counsel must work with the clerk’s office throughout the appellate process and must

comply with the Federal Rules of Appellate Procedure and the Eighth Circuit Rules. Most

procedures prescribed by the rules are not absolutely inflexible. In procedural matters the court’s

primary interest is efficient and expeditious case processing. To that end, the court is willing to

accommodate reasonable alternatives to procedures set forth in the rules. See FRAP 2.

To invoke the court’s appellate jurisdiction, a party must file with the district court a

timely notice of appeal from a final decision or other appealable order. See FRAP 3, 4.

Before filing a notice of appeal, counsel should consider the following questions.

(1) Is there subject matter jurisdiction in the case?

(2) Has the district court fully resolved all issues in the case? If not, is the order

appropriate for the interlocutory appeal process under 28 U.S.C. § 1292(b), or has the district

court entered an order under Fed. R. Civ. P. 54(b)?

(3) Is there a pending motion listed in FRAP 4(a)(4) that would render the filing of a

notice of appeal premature?

(4) Is the appeal timely?

(5) Have the points of error been properly preserved?

(6) Does the proposed appeal have real merit, or is it frivolous?

(7) Is counsel appealing from an appropriate “final order”? See 28 U.S.C. § 1291; Cohen

v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).

Certain interlocutory or nonfinal orders are reviewable, some as a matter of right and

some as a matter of judicial discretion. 28 U.S.C. § 1292. Interlocutory orders reviewable as a

matter of right include orders granting, continuing, modifying, dissolving, or denying injunctions,

and certain orders in receivership, bankruptcy, admiralty, and patent proceedings. See 28 U.S.C.

§1292(a). Interlocutory orders not otherwise appealable may be reviewed at the discretion of the

court of appeals if the trial court certifies the order “involves a controlling question of law as to

which there is substantial ground for difference of opinion and that an immediate appeal from the

order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b);

FRAP 5. Petitions for appeals by permission and answers to the petitions are limited to 5,200

words if computer generated or 20 pages is handwritten or typewritten. See FRAP 5(c).

The court may also entertain original proceedings under the All Writs Act, 28 U.S.C. §

1651. See FRAP 21. These proceedings include petitions for writs of mandamus and

prohibition.

Counsel should ensure any judgment or order is set forth on a separate document as Fed.

R. Civ. R. 58 requires.

B. LEAVE TO PROCEED IN FORMA PAUPERIS

The district court and court of appeals may allow a person who makes an affidavit of

indigency to file a civil or criminal appeal without prepaying fees and costs. See 28 U.S.C.

§ 1915(a); FRAP 24; FRAP Appendix of Forms, Form 4.

Any person who has been permitted to proceed in forma pauperis in the district court may

similarly proceed in the court of appeals unless the district court finds and states, in writing, the

appeal is not taken in good faith or the party is otherwise not entitled to pauper status. Parties

claiming pauper status for the first time on appeal must initially apply to the district court, and if

the court grants permission to proceed in forma pauperis, no further authorization from the court

of appeals is necessary. If the district court denies permission, the party may apply to the court of

appeals.

A person who wishes to proceed in forma pauperis on review of a final order of an

administrative agency proceeding must file a motion with the court of appeals. See FRAP 24(b).

C. VOLUNTARY DISMISSALS

When a notice of appeal has been filed but the appeal has not been docketed, the district

court may dismiss the appeal if a stipulation for dismissal signed by all the parties is filed or if

the appellant moves for dismissal. See FRAP 42(a). Once the appeal has been docketed in the

court of appeals, the district court loses jurisdiction to dismiss the appeal, and the dismissal must

be directed to the court of appeals. Dismissal by the court of appeals is governed by FRAP

42(b).

In a criminal case, the defendant must personally sign a written consent to the dismissal.

See 8th Cir. R. 42A.

D. PROCESSING SCHEDULE

The court prepares schedules for every case. On its own motion or upon the motion of a

party to expedite the appeal, the court may request shorter briefs on an accelerated schedule.

Time allowed for argument remains in the court’s sole discretion.

E. EXPEDITED CRIMINAL APPEALS

A major concern of the Judicial Conference of the United States and of this court is the

prompt disposition of criminal cases, both before the district courts and on appeal. See Speedy

Trial Act of 1974, 18 U.S.C. §§ 3161-3174. The court of appeals and each district court in the

Eighth Circuit now operate under a plan to expedite criminal cases. See Eighth Circuit Plan to

Expedite Criminal Appeals. A copy of the Plan can be obtained from the "Rules and

Publications" link on the court’s website. The clerk's office carefully monitors criminal case

schedules and the court requires strict compliance with all deadlines. The court strives to decide

all criminal appeals within six to eight months after the notice of appeal is filed.

F. CROSS-APPEALS AND JOINT APPEALS

1. Cross-Appeals

Without filing a cross-appeal, an appellee may defend a judgment on any ground the

record supports, even if rejected in the lower court. Appellees must file cross-appeals to attack

the judgment, either to enlarge their own rights or to lessen the rights of their adversaries.

Briefing in cross-appeals is governed by FRAP 28.1.

2. Joint Appeals

Joinder of appeals is governed by FRAP 3(b). If parties file separate notices of appeal,

the clerk dockets the appeals separately and the parties must pay separate filing fees.

Counsel who have joined on appeal must cooperate in arranging for the preparation and

transmittal of the record. Joint briefs are governed by FRAP 28(i). Appellee briefs and reply

briefs responding to multiple briefs are restricted under the provisions of 8th Cir. R. 32A, and

counsel should review the provision of the rule if they are responding to multiple appellants’

briefs or replying to multiple appellee briefs. Appeals involving the same question are usually

argued together.

G. RECORD ON APPEAL

The record on appeal is governed by FRAP 10, 11, and 30; and 8th Cir. R. 10A, 11A and

30A. There is a good deal of confusion among counsel as to the meaning of the phrase, “record

on appeal.” FRAP 10(a) defines the record on appeal, also called the original record, as “(1) the

original papers and exhibits filed in the district court; (2) the transcript of proceedings, if any;

and (3) a certified copy of the docket entries prepared by the district clerk.” This definition of the

term “record on appeal” establishes the scope of materials the court may consider in reaching a

decision. FRAP 30, however, requires that the parties file a concise designated record, including

only those portions of the record necessary to consider the issues on appeal. A description of

how the designated record may be prepared is provided in FRAP 30 and 8th Cir. R. 30A. If the

designated record is insufficient, the court may rely on the original record. In conformity with

FRAP 11(e), 8th Cir. R. 11A provides that a certified copy of the docket entries shall be

transmitted in place of the entire record. This permits the original record to remain in the district

court while the parties are preparing their briefs and designated records.

1. Criminal cases

No appendix or clerk’s record is required in direct criminal appeals. See Eighth Circuit

Plan to Expedite Criminal Appeals, Section III(A)(1)(b). The electronic record maintained by the

district court will serve as the record on appeal, together with the transcripts, exhibits, and other

paper documents in the case. Orders appealed from, such as suppression orders, should also be

included in the Addendum to the Appellant’s Brief. See 8th Cir. R. 28A(g).

2. Civil Cases

a. Pro Se Appeals

The court will review pro se appeals on the original file of the district court. In practice,

the court and its staff use PACER to access the district court’s original file. As a result, counsel

participating in pro se appeals do not need to prepare an appendix; counsel may include an

addendum with the brief. Either side may order a transcript if the transcript is required for

disposition of the issues raised on appeal. If a pro se appellant is proceeding in forma pauperis in

this court, and wishes to have a transcript prepared, he or she must file a motion for preparation

of a transcript at government expense. An administrative panel will then determine whether a

transcript should be prepared. See III, H.3., supra. If the court orders the preparation of the

transcript, the court reporter will send the bill for the transcription costs to the clerk’s office for

processing of the costs.

b. Civil Appeals Where Both Sides Are Represented by Counsel

The following guidelines should be observed in preparing the record in civil cases:

(1) Order the transcript or necessary portions therefrom and make the necessary financial

arrangements with the court reporter immediately after filing the notice of appeal.

(2) Notify the district court clerk’s office of all trial and any other necessary exhibits to be

forwarded to the court of appeals. Exhibits are not automatically transferred to the court of

appeals. See 8th Cir. R. 10A.

(3) Decide whether a joint appendix or separate appendices will be prepared. See 8th Cir.

R. 30A(b).

(4) Include only material relevant to the issues raised on appeal. See FRAP 30.

(5) The entire district court file or administrative agency file is available to the court and

is available electronically if the panel needs additional material.

Counsel are urged to follow these guidelines and to call the clerk’s office if questions

regarding record composition arise. The record should be concise.

c. The Appendix and the Addendum

Appellants represented by counsel must file three paper copies of an appendix. The

appendix provides each member of the panel with a copy of record material needed for full

consideration of the issues. The addendum is submitted electronically for filing with the brief

and duplicates carefully selected portions of the appendix in order to provide the court with a

readily accessible condensation of the relevant record. For example, if the appendix includes

jury instructions, only the instruction involved in the appeal should be set forth in the addendum.

If the appendix contains a long contract, only the paragraph directly related to the issue on appeal

should be included in the addendum. The addendum may not exceed fifteen pages, excluding the

district court or agency opinion and the magistrate judge’s report and recommendation. Once the

addendum has been submitted and is filed by the clerk’s office, paper copies of the addendum

should attached to the back of the paper briefs, although separately bound paper addenda are

permitted. Counsel can find additional information about the electronic version of the addendum

in 8th Cir. R. 28A(g)(5).

d. Exhibits

Pursuant to 8th Cir. R. 10A, appellant must ensure that all trial exhibits are forwarded to

the clerk’s office. If the exhibits are retained by the district court, appellant should request that

the district court submit them to the clerk of the court of appeals. If appellant has retained the

exhibits, appellant should submit one copy of a separate appendix with all trial exhibits.

Exceptions to this rule in the case of unusually bulky or large exhibits should be discussed with

the clerk. In criminal cases, evidence such as firearms and drugs should be filed only with leave

of the court of appeals.

H. COURT REPORTERS

1. Ordering the Transcript

Appellant’s counsel must order a transcript from the court reporter within fourteen days

after filing the notice of appeal. The transcript should include the parts of the proceedings not

already on file that appellant deems necessary. If the district court used electronic recording, the

transcript should be ordered from the district court clerk. Failure to fulfill these responsibilities

may result in dismissal of the case. See FRAP 3(a); 8th Cir. R. 3C. Within 14 days after

appellant serves the transcript order, the appellee must file and serve a designation of additional

parts to be transcribed. Counsel should observe the district court’s procedures for transcript

redaction.

2. Duties of Court Reporters; Extensions of Time

Court reporters are directly responsible to the court of appeals for timely production of

transcripts and must request an extension of time for filing the transcript if they cannot prepare

the transcript within thirty days from receipt of the appellant’s order. The clerk’s office will

notify counsel if an extension of time is granted. Counsel should monitor the court reporter’s

progress and notify the clerk’s office if problems or delays arise in transcript production.

3. Proceeding In Forma Pauperis

A party proceeding in forma pauperis must obtain authorization from the court before

ordering the necessary parts of the transcript. In direct criminal appeals and state habeas corpus

cases in which a certificate of appealability has been granted, the district court or the court of

appeals will authorize only the requested parts of the transcript that are necessary to the issues

raised on appeal. A request for a transcript in a case governed by the Criminal Justice Act is

made by filing a CJA Form 24 in the district court; all processing and payments are administered

by the district court. For the specific provisions applicable to ordering the transcript in direct

criminal appeals, see the Plan to Expedite Criminal Appeals. Authorization for a transcript in

federal habeas corpus and other postconviction appeals is not automatic. A motion for a

transcript at government expense must be presented to and granted by the court of appeals. The

court of appeals has the power to order a transcript prepared at public expense in any civil case if

the proper findings are made. See 28 U.S.C. § 753(f). A copy of the Motion and Affidavit for

Permission to Appeal In Forma Pauperis may be obtained from the "Forms" button on the court’s

website.