FEDERAL BAR ASSOCIATION

HON. RAYMOND L. ACOSTA PUERTO RICO CHAPTER

FEDERAL RULES OF APPELLATE PROCEDURE

Roberto Abesada-Agüet
ra@calopsc.com

I. Federal Bar Exam

1. The Federal Rules of Appellate Procedure is 10% of the exam or five

questions.

2. Topics covered are the terms, notice of appeal, briefs, appendix, and
record on appeal.

3. Focus on the rules. Examiners will not ask questions arising out of
federal cases, but only on the language of the rules.

II. Brief Overview of Federal Appellate Jurisdiction

1. U.S. Const. Article III §1(“The judicial power of the United States, shall
be vested in one Supreme Court, and in such inferior Courts as
Congress shall from time to time ordain and establish.”) Court of
Appeals created by Judiciary Act of 1891.

2. Jurisdiction is always a threshold question. Appellate court must

ascertain that district court had federal jurisdiction in the first place. In re
Perry, 391 F.3d 282, 284–285 (1st Cir.2004); Diaz-Rodriguez v. Pep
Boys Corp., 410 F.3d 56, 59 (1st Cir. 2005); (requesting, sua sponte,
supplemental briefing on a jurisdictional issue). Subject-matter and
appellate jurisdiction are never waived. Appellate courts have an
independent obligation to determine if jurisdiction is proper prior to
proceeding to the merits. Plains Commerce Bank v. Long Family Land
and Cattle Co., 554 U.S. 316 (2008).

3. Important to review whether applicable federal statute allows an appeal

or not. See, e.g., 28 U.S.C. §1447(d); See generally Com. of Mass. v.
V& M Management, Inc., 929 F.2d 830, 832 (1st Cir. 1991); Perfect
Puppy, Inc. v. City of East Providence, 807 F.3d 415, 419 (1st Cir. 2015)
(absent several statutory exceptions an order denying removal and
remanding the case back to state court is not appealable as of right).
But see Fed. R. Civ. P. 23(f) which permits interlocutory appeal from an
order granting or denying class action certification if Court of Appeals
grants permission and appeal is filed within 14 days.

4. Final Judgment Rule codified at 28 U.S.C. §1291. Purpose is to promote

judicial economy and avoid abusive delay tactics in litigation with
unnecessary interlocutory appeals. A notice of appeal that designates
the final judgment encompasses not only that judgment, but also all
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 earlier interlocutory orders that merge in the judgment. See Fed. R. App.
P. 3(c)(6) as amended in December 2021. “The express-statement
requirement of subsection (c)(6), the committee says, removes this ‘trap
for the unwary’, while also leaving the door open for those parties who
still wish to deliberately limit their notices.” Gonpo v. Sonam's Stonewalls
& Art, LLC, No. 21-1352, 2022 WL 2763131, at *7 (1st Cir. July 15,
2022).

But interlocutory rulings do not merge into a judgment of dismissal for

failure to prosecute or as a discovery sanction and are, therefore,
unappealable. John's Insulation, Inc. v. L. Addison and Associates, Inc.,
156 F.3d 101, 105 (1st Cir. 1998).

5. Exception to final judgment rule: there are five ways a party can obtain
an interlocutory appeal in a federal case: (i) mandamus under 28 U.S.C.
§1651; (ii) 28 U.S.C. §1292(a) 1 and §1292(b) which provides specific
categories of cases that are exceptions to the final judgment rule2; (iii) 28
U.S.C. §1292(e) which authorizes U.S. Supreme Court to promulgate
rules that identify exception to the final judgment rule (Court has yet to
use this power); (iv) Fed. R. Civ. P. 23(f); and (v) the collateral order
doctrine.

6. Appellate Jurisdiction over Partial Judgments. See Fed. R. Civ. P. 54(b);

Comite Pro Rescate De La Salud v. Puerto Rico Aqueduct., 888 F.2d
180 (1st Cir. 1989) (allowing appeal taken from partial judgment);
Spiegel v. Trustees of Tufts College, 843 F.2d 38, 42-43 (1st Cir.1988)
(disallowing appeal taken from partial judgment).

III. Notice of Appeal

7. Generally, there must be a separate final dispositive order and judgment.

See Fed. R. Civ. P. 58(a), 79(a).

8. A notice of appeal must comply with Fed. R. App. P. 3.

1 (1) Interlocutory orders of the district courts of the United States, the United States District Court for the District
of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges
thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify
injunctions, except where a direct review may be had in the Supreme Court; (2) Interlocutory orders appointing
receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such
as directing sales or other disposals of property; (3) Interlocutory decrees of such district courts or the judges
thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees
are allowed.

2 “When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be
of the opinion that such 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, he shall so state in writing in such order. The Court of Appeals which would have
jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such
order, if application is made to it within ten days after the entry of the order: Provided, however, that application
for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of
Appeals or a judge thereof shall so order.”
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9. Focus on Rule 3(c) governing the contents of the notice of appeal which
requires:

• description of the parties and the attorneys representing each

party; designation of the judgment, orders, or part thereof
being appealed; and the name of the court to which the appeal
is taken.

• A pro se notice is considered filed on behalf of the signer and

the signer’s spouse and minor children (if they are parties)
unless the notice clearly indicates otherwise.

• In a class action, whether the class has been certified, the

notice of appeal is enough if it names one person qualified to
bring the appeal as representative of the class.

• An appeal must not be dismissed for mere informalities.

10. Under Rule 4(a), an appellant has 30 days after entry of judgment and
60 days if one of the parties is the United States, its agencies, officers, or
employees sued in their official capacity or in their individual capacity if
act or omission occurs regarding duties performed on behalf of the
government.

11. Time to appeal is tolled if any post-judgment motion is filed under Fed. R.
Civ. P. 50(b) (judgment notwithstanding verdict), 52(b) (amend or make
additional factual findings), 54 (attorney’s fees if the court extends the
time to appeal under Rule 58), 59 (alter or amend judgment or new trial)
60 (relief of judgment if filed within 28 days after entry of judgment).

12. If a notice of appeal is filed before the filing of a post-judgment motion

under Rule 4(a)(4)(A) then, under Fed. R. App. R. 4(a)(4)(B)(i), the
notice of appeal will not become effective until the district court rules
upon the post-judgment motion.

13. Under Rule 4(a)(5), the time to appeal may be extended by district court
if good cause or excusable neglect is found. Mirpuri v. ACT
Manufacturing, Inc., 212 F.3d 624, 630-631 (1st Cir. 2000) (no good
cause or excusable neglect found). The time limit for an extension of
time to file a notice of appeal is a non-jurisdictional claim-processing rule.
Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 199 L.
Ed. 2d 249 (2017). The time is 30 days after the 30- or 60-day deadline
under Rule 4(a) has expired. If district court grants the motion to extend
the deadline, the notice of appeal must be filed within 14 days.

14. Under Rule 4(a)(6), a district court may reopen a time to file an appeal if:
(a) moving party was not notified of the final judgment or order subject of
an appeal within 21 days after entry; (b) the motion under this rule is filed
within 180 days after the judgment or order is entered or within 14 days
after the moving party receives notice of the judgment or order,
whichever is earlier; and (c) the court finds there is no prejudice.

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 15. Under Rule 4(b), a criminal defendant has 14 days after the later of the
entry of either the judgment or the order being appealed or the filing of
the government’s notice of appeal. When the government is entitled to
appeal, the notice of appeal must be filed within 30 days. Check Rule
4(b)(3) for motions that toll the time to file a criminal notice of appeal.

16. Cross-Appeals. These are governed by Fed. R. App. P. 28.1. Occurs

when both parties are prejudiced by a final order or judgment. However,
under Jennings v. Stephens, 135 S. Ct. 793, 798, 190 L. Ed. 662 (2015),
Alberty-Vélez v. Corp. de P.R. Dif. Pub., 361 F.3d 1, 5 n. 4 (1st Cir.
2004) and United States v. American Ry. Express Co., 265 U.S. 425,
435 (1924) the appellee may, without taking a cross-appeal, “urge in
support of a decree any matter appearing in the record, although his
argument may involve an attack upon the reasoning of the lower court or
an insistence upon a matter overlooked or ignored by it.”

17. Appeals by permission are governed by Rule 5. Don’t file a notice of

appeal but a petition for permission to appeal. Must be filed within the
time governed by Rule 4(a) unless a different time is provided by statute
or rule authorizing the appeal.

III. Stays pending Appeals and Supersedeas Bond.

1. Federal Rule of Civil Procedure 62 has an automatic stay provision for

30 days. Federal Rule of Appellate Procedure 8 is clear that, in the
absence of a stay ordered by a district court or court of appeals, a party
may enforce a judgment while the appeal is pending. See Steven
Baicker-McKee, William M. Janssen and John B. Corr, Federal Civil
Rules Handbook, 1290 (Thomson Reuters/West 2016).

2. The motion to stay the judgment pending appeal must be first filed in the
district court. A stay may be granted if appellant files a bond or obtains
an injunction while the appeal is pending. The Court of Appeals will only
consider a motion to stay after the district court denied the relief
requested or if seeking relief in the district court is not practical.

3. “[T]he applicable standards for a party seeking such a stay are 1) a

strong showing that he is likely to succeed on the merits, 2) a showing
that unless a stay is granted, he will suffer irreparable injury, 3) a
showing that no substantial harm will come to the other interested
parties, and 4) a showing that a stay will do no harm to the public
interest.” Ainsworth Aristocrat Intern. Pty. Ltd. v. Tourism Co. of Com. of
Puerto Rico, 818 F.2d 1034, 1039 (1st Cir. 1987).

4. In bankruptcy appeals, see Federal Rule of Bankruptcy Procedure 8007.

In re Efron, 535 B.R. 516 (Bankr. D. Puerto Rico, 2014).

5. Local Civil Rule 65.1(c) (USDC-PR) requires fixing a bond in the amount
of the appealed judgment/order, plus interest at a rate consistent with 28
U.S.C. §1961(a) and an additional amount to cover costs and any
damages award for delay. It bears to mention that the bond amount is
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 intended to protect appellee’s interest under the judgment/order
throughout the appeal’s pendency. Doral Financial Corp v. García-
Vélez, 2012 U.S. Dist. Lexis. 193923, at *3 (D.PR, 2012).

IV. The Record on Appeal

1. Composition of the record, Fed. R. App. P. 10, and 1st Cir. Local Rule
10. Record constitutes original papers and exhibits filed in the district
court, transcripts, and certified copy of docket entries. Hearing
transcripts must be requested ASAP after notice of appeal is filed but not
later than 14 days. If no transcript is needed then you must file a
certificate stating that no transcript will be ordered.

2. Forwarding record, Fed. R. App. P. 11, and 1st Cir. Local Rule 11.

3. Docketing the appeal, Fed. R. App. P. 12, and 1st Cir. Local Rule 12

4. Appendix, Fed. R. App. P. 30. The appendix should, at least, include the
pleadings, relevant motions and, if there was a trial, the jury instructions,
charges and verdict forms, relevant orders, judgment and if the
sufficiency of the evidence is challenged on appeal the trial transcripts
and documentary evidence. Memoranda of law should not be included
unless they have independent relevance.

V. Corporate Disclosure and Motion Practice

1. Corporate Disclosure Statement is governed by Rule 26.1. Any

nongovernmental corporate entity party to an appeal must file a
statement identifying any parent corporation and any publicly held
corporation that owns 10% or more of its stock or states that there is no
such corporation. This disclosure must be filed with the principal brief or
upon filing of a motion. In the First Circuit, even if you file it with first
motion, you need to include the statement again in your brief.

2. Fed. R. App. P. 27 governs motion practice. No separate memoranda

and no proposed orders. Oppositions must be filed ten days after
service of the motion. Replies must be filed in seven days.

3. 1st Cir. Local Rule 27.0

4. Motions to dismiss (for summary disposition) such as for lack of

jurisdiction should be promptly filed. See 1st Cir. Local Rule 27(c)

5. Circuit Clerk has authority to dispose of certain routine, procedural

motions (e.g., extension of time, consolidation of appeals). See 1st Cir.
Local Rule 27(d).

VI. Bankruptcy Appeals

1. 28 U.S.C. §158

2. Federal Bankruptcy Rules 8001-8028

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 3. Federal Rule of Appellate Procedure 6

VII. Appellate Briefs

1. Covers (Fed. R. App. P. 28.1(d) and 32(a)(2)).

2. Font Times New Roman 14 or New Courier 12.

3. Appellant’s Brief must contain an addendum including the appealable

decisions. It is also encouraged that the addendum includes the
disputed statutes, regulations, contract provisions, jury instructions, etc.,
up to 25 pages in total. The page limit does not apply to the appealable
decisions and the inclusion of statutes, rules, or regulations. See 1st Cir.
Local Rule 28.0.

4. Appellant’s Brief, Fed. R. App. P. 28(a). 30 pages (or less than 13,000
words or if you use a monospaced font then less than 1,300 lines). Filed
40 days after record is filed.

5. Appellee’s Brief, Fed. R. App. P. 28(b). 35 pages (or less than 15,300
words) or if you use a monospaced font then less than 1,500 lines).
Filed 30 days after appellant’s brief is served.

6. Appellant’s Reply Brief, Fed. R. App. P. 28(c). 15 pages or less than

13,000 words. Filed 21 days after appellee’s brief is served.

7. References to the Record, Fed. R. App. P. 28(e)

8. Forms of Briefs, Fed. R. App. P. 32 (don’t forget the certificate of

compliance)

9. Cross-Appeals, Fed. R. App. P. 28.1.

10. State Decisions and Law Review Articles, 1st Cir. Local Rule 32.2

11. Citation Unpublished Opinions, 1st Cir. Local Rule 32.1.0

12. “The First Circuit encourages short, concise briefs.” See 1st Cir. Local
Rule 32.4. Therefore, oversized briefs should be avoided, but if needed
you must comply with Rule 32.4.

VIII. Other Matters

1. Rule 38. Governs award of just damages and single or double costs to
the appellee when an appeal has been frivolously filed.

2. Rule 39. If appeal is dismissed or judgment is affirmed on appeal, costs

are taxed against appellant unless the Court of Appeals decides
differently. If the judgment is reversed, then costs are taxed against the
appellee unless court decision states otherwise. If the judgment is
affirmed in part and reversed in part, then costs are taxed as the court
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 directs. Costs that are taxable are: (i) filing fee; (ii) preparation and
transmission of the record; (iii) report’s transcript, if needed to determine
the appeal; and (iv) insurance premiums paid for a bond or other security
to preserve rights pending appeal.

3. Rule 40. Petition for panel rehearing may be filed within 14 days after
entry of judgment by Court of Appeals. The term will be 45 days if one of
the parties is the United States, its agencies, employees, etc. No answer
is required by the party who prevailed on appeal.

4. Rule 41(d). Governs motions to stay the Court of Appeals’ mandate

pending a petition for certiorari to Supreme Court. Need to show that a
substantial question is present and there is good cause for the stay. The
stay should not be more than 90 days unless the period is extended for
good cause.

5. Rule 42(b). The circuit clerk may dismiss a docketed appeal if the
parties file a signed dismissal agreement specifying how costs are to be
paid and pay any fees that are due.

6. Rule 44. Cases involving constitutional questions require that the clerk
certify to Attorney General or the attorney general of the State the fact
that a federal or state statute’s constitutionality is being questioned.

7. Rule 12(b). Counsel who filed notice of appeal in district court must file
14 days later a statement in Court of Appeals of the party represented on
appeal.

8. Rule 30(b)(1). Once the appeal is docketed, appellant must file within
14 days designation of contents of appendix on appeal and statement of
the issues.