Attorney Filing

Introduction

If this is your first time in this court, welcome.  If it has been a while since you filed a brief with us, welcome back.  Practicing in a federal appeals court is different from practicing in a trial court, state or federal, and there are even notable differences from state appellate work.  With this in mind, there are a number of resources available to assist you.

As an initial matter, if you intend to practice in this court, you can count on referring frequently to the Federal Rules of Appellate Procedure, and especially our local Tenth Circuit Rules.  Our Practitioner’s Guide is also a good source of information.

If you can’t find the answer to a question in the rules or if you have a special concern about an appeal, do not hesitate to call the clerk’s office at 303-844-3157.  We have real people answering the phone and a well-trained staff who can assist you.

The following sections provide general information you may find useful.  However, this information is no substitute for a careful review of the federal and our local rules.

Fees

Filing Your Appeal - Fees

Unless granted leave by the district court to proceed in forma pauperis on appeal, an appellant represented by counsel must pay the full appellate filing and docketing fee.  In appeals from district court decisions, the fee is paid to the district court.  In original proceedings in this court (agency review and mandamus proceedings), the fee is paid to this court. 

Appearing and Filing

Filing Your Appeal - Appearing and Filing

Any attorney who files an entry of appearance in this court must either already be or must promptly become a member of our bar.  The application forms are available on this website

If you intend to file anything with this court, you will also need to be registered to file electronically though our electronic case filing (“ECF”) system.  Registration is also available through this website.  Our ECF registration is separate from your registration with the district court.  To use the ECF system, you must have software capable of creating documents in native (text-searchable) portable data format. 

With the exception of briefs (which must be filed both electronically and in hard copy), appendices (filed electronically with a single hard copy provided to the court), and petitions for rehearing en banc (electronic and hard copy), we are a paperless court.  Unless a litigant is pro se, all filing is done though our ECF system.  Except as noted above, ECF filings need not be followed up with hardcopies. 

Original proceedings, such as mandamus petitions, Fed. R. App. P. 5 petitions, and petitions for agency review, can be filed using the court's ECF system. The filing fee for the mandamus and review petitions can be paid online with the filing using a credit card.

Briefing

Filing Your Appeal - Briefing

In most cases, the deadline for filing the opening brief will be set based on the district court’s determination that the record is complete. 

Be certain to include the required attachments to your opening brief and follow the federal and local rules with regard to required sections of the brief.  Notwithstanding the local rule that permits 13 point font, use 14 point.  The larger type is much easier to read and does not affect your available argument space.  Also, the conversion to PDF format sometimes shrinks the text and if the typeface on the hardcopy of your brief doesn’t pass our rules measurement test, you will be required to prepare a new brief.

All hardcopies of briefs and appendices must be single sided.   Briefs must comport to the type/volume and other requirements of the rules.  Motions seeking leave to file briefs in excess of the type/volume limitations of the rules are rarely granted.  Principal briefs must state on the cover whether oral argument is requested and if the answer is yes, must include a short section in the brief explaining why.

Please see our Appeal Requirements, Briefing and Appendix Checklist, and our FAQ for helpful guidelines in preparing your brief and appendix.

Beyond the initial due dates that will be set for each brief, you can generally get a single extension of time of an additional 30 days within which to file the opening and answer briefs, and an additional 14 days within which to file a reply brief.  Plan from the beginning on getting your briefs done within that timeframe. 

Court Orders & Judgments

Filing Your Appeal - Court Orders & Judgments

The court does not have a term in the same sense as the United States Supreme Court.  Final judgments are handed down throughout the year.  No timetable exists for rendering decisions.  This court has one of the fastest turnaround times of any federal circuit court.  Nevertheless, factors such as the number and complexity of the issues, whether the case is to be scheduled for oral argument, the extent of unanimity among the judges, and other considerations cause some cases to take longer to decide than others.

Motions

Filing Your Appeal - Motions

Unless the other side is unrepresented, all motions must include a statement of opposing counsel’s position as to the relief requested. 

Motions for extensions of time to file briefs are discouraged but must be filed at least five days before the due date for the brief.

During the briefing process, most motions are decided within a day or two of the filing of a motion, or even the same day.  Certain motions, such as motions for a stay of the execution of a judgment, often take longer. 

Some motions filed during the briefing process will not be decided until after the appeal has been fully briefed.  In that case, the parties will be notified that the motion has been referred to the merits panel for later decision.  A common example of a motion that would likely be referred in that way would be a motion to certify a question of state law to a state supreme court.  

Oral Argument

Filing Your Appeal - Oral Argument

The court has five weeks of regularly scheduled oral arguments each year – a week in January, a week in March, a week in May, a week in September, and a week in November.  Arguments are almost always conducted in Denver.  Our courthouse has four different courtrooms that are often in simultaneous use. 

The oral argument schedule is on our website.  The identity of the judges on the panel assigned to hear a case is posted the week before the argument is scheduled.  Occasionally, the court will conduct a special session off the regular oral argument calendar.

If your case is scheduled for oral argument, you will be notified in writing about two months in advance of the scheduled date.  You will be instructed to appear at the courthouse early for check-in at the clerk’s office.  Please be on time.  You must bring photo identification to get through security.  You may use a laptop in lieu of notes to argue, but you will be delayed in getting through security.  Absolutely no recording devices (picture or audio) may be used in the courtroom.  

Both sides are usually allotted 15 minutes within which to argue and answer the court’s questions.  Occasionally, an attorney asks about using a visual aid during argument, a practice the court discourages.  If you nevertheless feel you must bring an exhibit, file a motion asking permission well in advance of the argument.            

The panels on which the judges sit change each session so rescheduling is very difficult.  If you were planning on arguing a case but for some reason cannot, the best option is to arrange for someone else in your office to do it.  If you must ask for rescheduling (i.e., solo practitioner with a pre-planned vacation or medical emergency), be advised that the court may elect to cancel the oral argument and decide the case on the briefs rather than reschedule the argument.

Maps and other logistical information regarding the Denver courthouse are available on our website.

The Record

Filing Your Appeal - The Record

If the appellant in either a civil or criminal appeal is represented by retained counsel, it is the obligation of the appellant’s counsel to provide a record for the appeal in the form of an appendix, filed with the opening brief.  The appellant must file and serve the requisite number of complete appendices that include everything from the district court record necessary to appellate review.

If the appellant is represented by counsel appointed pursuant to the Criminal Justice Act, counsel must file a designation of record with the district court with a copy filed in this court. In due course, an electronic record will be prepared and will be accessible on the appellate docket.

Petitions seeking direct review of a final decision of one of the federal agencies over which this court exercises direct jurisdiction generally proceed on an administrative record.

Please see our Briefing and Appendix Checklist and our FAQ for helpful guidelines in preparing your brief and appendix.

Regardless of the type of case and regardless of whether the appellant is represented by counsel or not, if a transcript is necessary to the appellate record, the appellant is responsible for having the transcript prepared.  A transcript order form to be filed in the district court is available on our website.  Even if no transcript is requested, appellants must nevertheless file a transcript order form so stating.