Pro Se Filing

Introduction

The court urges all parties to obtain counsel.  If that is not possible, litigants may represent themselves before this court in most types of cases.  Unrepresented parties are referred to as pro se (‘prō say’) litigants.  However, pro se litigants may represent only themselves, not other people and not corporations or business entities.   

The court follows federal law with regard to the liberal interpretation of pro se filings.  On the other hand, the court enforces its rules and expects full compliance with all directives issued by the court.  The failure to comply with a court rule, federal law, or court directive may result in an appeal being dismissed or the imposition of a sanction.   

As a general matter, proceedings in this court are governed by the Federal Rules of Appellate Procedure.  These rules are different from the rules that apply in the federal district courts. 

Initiating an Appeal

Filing Your Appeal - Pro Se - Initiating an Appeal

There are limited kinds of orders that may be appealed before a final judgment is entered.  But in almost all cases, the initiation of an appeal must await the entry of a final judgment that disposes of all the claims as to all parties.  An appeal taken after the entry of final judgment can generally raise claims of error in any of the orders issued by the district court prior to the entry of the final judgment. 

An appeal is initiated by the filing of a “notice of appeal” in the federal district court.  The notice of appeal must comply with Fed. R. App. P. 3 in terms of content and with Fed. R. App. P. 4 in terms of timeliness.  An untimely or premature notice of appeal may result in dismissal of the appeal.     

Once a notice of appeal has been filed, the federal district court will notify this court, an appellate case will be opened, and a case number will be assigned.  Persons who contact the court should have that case number available to assist in getting answers to questions.  The case number should also be on the cover of all documents submitted to this court.

Filing Fee

Filing Your Appeal - Pro Se - Filing Fee

As a general matter, pro se litigants are expected to pay the filing and docketing fee for an appeal just like anyone else.  The fee is currently $505.00.  An indigent pro se appellant may in some circumstances be excused from paying the filing fee at the time the notice of appeal is filed.  To be granted this form of relief, the appellant must file a motion in the district court seeking leave to proceed on appeal without prepayment of the filing fee.  Such motions are sometimes referred to as motions seeking leave to proceed in forma pauperis (“in for muh paw per uhs”).

The Prison Litigation Reform Act applies to persons who are incarcerated who initiate civil (as opposed to criminal or habeas) appeals.  In that circumstance, the filing fee will likely be deducted from the appellant’s prison trust account in a series of payments over time.  The process still begins with the filing of a motion in the district court seeking leave to proceed on appeal without prepayment of the filing fee.

Each district court has its own form for motions seeking leave to proceed without prepayment of the filing fee.  Please check the applicable district court’s website or with the district court to obtain the proper form.

If the district court denies or does not act in a timely manner on the motion, the pro se appellant will be required to file a renewed motion with this court on our form.

The appellate filing and docketing fee is due regardless of whether the appeal is dismissed for lack of jurisdiction, lack of prosecution, or any other reason.  The filing of the notice of appeal triggers the fee obligation, not the outcome of the appellate proceedings.

Record on Appeal

Filing Your Appeal - Pro Se - The Record on Appeal

The purpose of an appeal is to determine if the district court made an error based on the evidence and the arguments that were presented to that court.  It is therefore vital that the parties present all arguments and all evidence in support of all claims to the district court.  As a general matter, this court will not consider additional evidence nor will this court consider arguments that were not raised in the district court proceedings.

When the appellant is pro se, the district court will assemble a record of documents filed in that court and will then transmit those documents to this court to serve as the record on appeal.  The pro se appellant need not provide an appendix or copies of district court documents.

If a transcript is necessary to an appeal, it is the responsibility of the appellant to request that the transcript be prepared using a transcript order form.  The appellant is also required to make arrangements to pay for the transcript preparation.  The statute governing the question of whether a transcript might be prepared at government expense is 28 U.S.C. § 753(f).   The district court generally resolves all questions regarding payment for transcript preparation. 

Briefs and Arguments

Filing Your Appeal - Pro Se - Briefs and Arguments

Appeals are decided based on the record and the briefs filed by the parties.  A brief is a document wherein a party sets out the party’s contentions with regard to alleged district court error.  The appellant files the opening brief.  A deadline for that filing will be established by the court.  The parties will be notified in writing of that deadline.

At the time the deadline for the opening brief is set, any pro se appellant will also be sent a form that may be completed and filed as the opening brief.  However, the pro se litigant is not obligated to use the form.  The pro se litigant may choose to file a brief that complies as closely as possible to the Federal Rules of Appellate Procedure.

By operation of rule, any response brief(s) of the appellees are due within 30 days (plus an additional three days after service of the opening brief if service is not completed electronically).  Appellees are not obligated to file a response brief and often elect not to.

If an appellee files a response brief, the appellant will be allowed 21 days (plus an additional three days after service of the response brief if service is not completed electronically) within which to file an optional final reply brief.  Only one reply brief is permitted, regardless of the number of response briefs filed.  If no response brief is filed, then no reply brief is permitted.

Handwritten briefs are acceptable.  An opening brief and any response brief may not exceed thirty pages unless, at the end of the brief, there is a certification of the number of words in the brief and that word count is less than 13,000.  A reply brief cannot exceed 15 pages unless there is a certification at the end of the brief regarding the number of words in the brief and that word count is less than 6,500.

Extensions, Deadline and Responsibilities

Filing Your Appeal - Pro Se - Extensions, Deadline and Responsibilities

Extensions of time

In this circuit, extensions of time to file briefs are disfavored.   Unless the court has expressly ordered otherwise, a party can generally get one 30-day extension of time beyond the initial due date without much question.  Obtaining extensions of time beyond an initial 30-day extension is more difficult.  The court is even stricter about extensions on reply briefs, and will generally only allow a single 14-day extension from the initial due date.  Litigants should plan on getting their briefs finished and filed promptly.

Missed deadlines

If an appellant is given a deadline within which to file something and does not file it and also does not timely request an extension of time, the appeal may be dismissed.  If an order states it is a final deadline or that no further extensions of time will be allowed, parties should plan accordingly.

Filing responsibilities

A brief is deemed filed on the date it is post-marked for delivery.  Other forms of filings are not deemed filed until they are received in the clerk’s office.  The only exception to those rules is the “prison mailbox rule,” applicable only to those who are incarcerated.

A plaintiff-appellant need not serve copies of filings on the defendants if the district court never summoned the defendants to appear.  With that limited exception, all filings in this court must include a certificate of service at the end of the document stating that a copy of the brief or other filing was sent to counsel for all the opposing parties (or to the parties themselves if they don’t have counsel)  involved in the appeal.

Copies

Filing Your Appeal - Pro Se - Copies

The court will accept a single copy of anything filed by a pro se litigant.  But a copy of the filing must also have been sent to all counsel for other parties involved in the appeal, as evidenced in the certificate of service.

Motions, Arguments & Decision

Filing Your Appeal - Pro Se - Motions, Arguments & Decision

Motions

The types of motions that may be properly filed in an appeals court are significantly fewer in number than are allowed in a district court.  So, for example, there are no provisions in the appellate rules for obtaining discovery or submitting new evidence.

Oral Argument

The court sometimes elects to conduct an oral argument in an appeal.  In an appellate argument, the parties are permitted to appear and argue their cases, usually for 15 minutes per side.  Whether argument is conducted is a matter of court discretion.   Oral arguments are rarely conducted in cases with pro se litigants.   

Court Decision

After the opening brief and any response or reply briefs have been filed, a panel of judges will be assigned to decide whether reversible district court error occurred.  The court’s decision will be in writing and will be transmitted to the parties.  There is no requirement that the court issue its decision within any particular time frame.

Rehearing

Filing Your Appeal - Pro Se - Rehearing

Once this court has issued its order or judgment deciding the outcome of the appeal, the decision is generally final.  A party unhappy with a final decision of this court may file a petition for rehearing with the panel, giving reasons why the panel’s decision should be reconsidered.  The rule governing rehearing petitions and their timing is Fed. R. App. P. 40.  In cases of exceptional public importance or if a panel decision conflicts with a prior decision of this court or the United States Supreme Court, a party may file a rehearing petition that seeks review by the entire court.  This is called a petition for rehearing en banc.  Litigants must bear in mind that rehearing en banc is an extraordinary procedure and if the court finds the petition frivolous, the filing party may be ordered to pay a money penalty of up to $500.00.  

Supreme Court

Filing Your Appeal - Pro Se - Supreme Court

The only court with the authority to overturn a decision by this court is the United States Supreme Court.  The procedures for seeking further review by that court can be found in the Rules of the United States Supreme Court.  Review by the Supreme Court is not invoked by filing a notice of appeal with this court.  Instead, a person seeking review by the United States Supreme Court must file the appropriate documents with that court. 

Additional Resources

Filing Your Appeal - Pro Se - Additional Resources

The court’s library has additional web-based resources that a pro se litigant in this court might find helpful.  We regret that we cannot provide free rulebooks to parties, regardless of the party’s financial situation. However, our rules are available online.  The court will provide such forms as will be necessary to the appeal.   If you have procedural questions, you may contact the clerk’s office at 303-844-3157.  The court’s employees cannot provide legal advice but can generally answer procedural questions.