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Welcome to the website for On-Point Paralegal Services, LLC! Our associates specialize in New York appellate practice. Our associates are fluent in appellate practice before the New York Appellate Division, the New York Court of Appeals and the Second Circuit Court of Appeals. You have come to the right place if you want to appeal in New York or the Second Circuit. Please complete our Appellate Intake Form to receive a quote.

Second Circuit Court of
Appeals Practice in a Nutshell

TABLE OF CONTENTS

I. Briefs, Appendicies and Related Documents

II. Case Records and Indexing

III. Monitoring Deadlines

IV. Argument

V. Settlements

VI. Motions

VII. Miscellaneous

I. BRIEFS, APPENDICIES AND RELATED DEADLINES

Federal Rule of Appellate Procedure 31(b) requires that parties file an original and twenty-five copies of all briefs. Second Circuit Local Rule 31(b), however, has reduced that requirement to only nine copies.

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Second Circuit Local Rule 30(b) requires that a joint appendix ordinarily be filed in all appeals. This same Local Rule also requires that appendices be sequentially numbered (A-1, A-2, A-3 and so on) and must contain a detailed index. Both sides of the appendix pages may contain printed matter (although they usually do not), and the use of tabs and the Minuscript form of transcripts are permitted.

The Clerk's Office screens all briefs and appendices for compliance with Federal Rule of Appellate Procedure 32 and will notify the parties of any defects that are correctable. The most common defects are incorrect captions or covers, wrong cover page colors, improper addendum contents and lack of Certificate of Compliance and Certificate of Service. If the deficiencies are not corrected, or if otherwise the submissions are not filed on time, they are subject to dismissal.

Extensions of time to file the brief or appendix may be granted for good cause via motion with a supporting affidavit. In all appeals, generally the clerk will grant a party one thirty (30) day extension of time to file a brief. A subsequent extension may only be obtained by Order of a judge of the Court.

In civil cases, motions to extend the filing time must be filed at least two weeks before the original due date. In criminal cases, motions to extend the filing time must be filed at least seven days before the original due date. See Second Circuit Local Rule Part B par. 9; Second Circuit Local Rule Part C, par. 7.

Federal Rule of Appellate Procedure 32 allows either non-proportional fonts (e.g., Courier New) or proportional fonts (e.g., Times New Roman) to be used in appellate briefs. Proportional fonts are those for which the horizontal space accorded each letter varies by letter, i.e., the space is proportional to the letter's shape. By example, an "i" would occupy less horizontal space than an "m." Non-proportional fonts are those for which the horizontal space accorded each letter is the same. By example, an "i" would occupy the same horizontal space as an "m."

Federal Rule of Appellate Procedure 28(f) permits, and somewhat requires, an addendum to be included at the end of the brief that includes “statutes, rules, regulations, etc.” that are highly relevant to the appeal. This Rule requires that either an addendum be provided, or the contents of the statute, etc., be set forth in detail in the body of the brief. No permission is required to submit an addendum containing such material.

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Federal Rule of Appellate Procedure 28(f) and 30(c), along with Second Circuit Local Rule 30, permit a deferred appendix (i.e., an appendix to be filed subsequent to the filing of the briefs) to be used on stipulation of the parties or Order of the Court via motion. Motions to defer in civil appeals are decided by Staff Counsel; those in criminal cases are decided by a Motion Attorney. If a deferred appendix is submitted, an original and nine copies of page proof briefs must be filed with the Court and two copies must be served on counsel and unrepresented parties, just as with regular briefs. Deferred appendices are not ordinarily used and are explicitly discouraged by the Second Circuit Court of Appeals because they are costly to prepare and reproduce.

Federal Rule of Appellate Procedure 28(f) requires that an appellee combine the response to appellant's initial brief and the merits and argument of appellee's cross-appeal in one brief, limited to the type-volume allowed in Federal Rule of Appellate Procedure 32(a)(7).

Permission to file a brief in excess of the normal limitations will be granted based upon motion for good cause shown. The size of the brief you want to file will determine whether your motion will be heard by an Administrative Attorney of a judge. In civil and criminal cases, a motion for leave to file an oversized brief that is 21,000 words or 1,950 lines of mono-spaced type (reply briefs of 10,500 words or 975 lines) or less, will be decided by an Administrative Attorney. A motion for leave to file a brief that is larger than that will be decided by a judge. In civil cases, these motions must be filed at least two weeks before the due date; and in criminal cases, at least seven days before the due date. Untimely motions to file oversized briefs must also include a request to file the motion out of time. It would be a consolidated motion at that point.

The Court offers a night depository service located near the marshal's station just inside the Centre Street entrance to the Foley Square Courthouse. Briefs, appendices, motions and other filings may be time stamped and deposited there from 4:30 p.m. until 8:30 a.m. each business day and 24 hours on Saturday, Sunday and legal federal holidays. Deposited materials will be deemed filed on the business day they are time stamped, or the next business day if time stamped on Saturday, Sunday, or a federal holiday.  

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II. CASE RECORDS AND INDEXING

Case documents -- except briefs, appendices and records on appeal -- are maintained in standard, legal-size manila folders commonly referred to as "Accos." Acco files (as well as briefs and appendices) are located in Room 1803. Acco files for closed cases are sent to the Federal Records Center (FRC) within one (1) year after closing. The FRC is the federal courts’ storage warehouse located in Missouri. Counsel may review Acco files in Room 1803. Acco files that have been archived at the FRC may be ordered from the Clerk's Office for a retrieval fee of $45. Additionally, public copies of all briefs and appendices in open cases are available for review in Room 1803.

Records on appeal (the district court’s records) in cases not involving pro se litigants are held at district court until and unless requested by a judge of the Second Circuit Court of Appeals, whereupon they are transmitted to the Circuit Court by overnight delivery. Such records will not be transmitted to the Court of Appeals upon request of counsel, but they will remain available for review as provided by the district court where they are being held. Records on appeal in pro se cases and prisoner cases are maintained in Room 1803 and may be examined and copied under supervision of Clerk’s Office staff. Transmitted records on appeal are maintained in Room 1803; counsel may review them to assist in preparing briefs and appendices and make copies under the supervision of Clerk’s office staff. Original records of the district court may not be removed from Room 1803 without an order of the Second Circuit Court of Appeals.

An index to the record on appeal in civil and criminal cases not involving pro se litigants is always prepared and transmitted to the Court of Appeals where it is placed in the Acco file. The index usually consists of the district court docket sheet annotated with circles around each docket entry number corresponding to each document that is included in the record on appeal. The index is prepared by the attorney for the appellant in all cases not involving pro se litigants. The district court prepares the index in pro se cases.

III. MONITORING DEADLINES

Case Managers monitor cases to insure that filing deadlines are met. Appeals are routinely defaulted (dismissed) on appellant's failure to timely file its initial brief, appendices and Forms C, C-A or D as required by the Second Circuit Court of Appeals’ Local Rules. Accordingly, parties who may be unable to comply with deadlines should seek an extension of the original due dates in the manner set forth above. In civil cases, motions to reinstate for failure to timely file briefs and appendices or to pay the fee may be decided by Staff Counsel if the motion is filed within 120 days of dismissal. Those to reinstate for failure to timely file Forms C, C-A or D, may be decided by Staff Counsel if the motion is filed within 30 days of dismissal. Motions filed after these periods are decided by the applications judge.

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IV. ARGUMENT

A typical appeal will be set for hearing within eight to ten weeks from the date the appellee's brief is filed. The panel will consist of three judges. At least one active judge of the Second Circuit will be a member of that panel, at least one additional member will be eithr and active or a senior judge of the Second Circuit and a third may be an active, senior or visiting judge. Should the Court declare a judicial emergency due to the shortage of active judges of the Court, two visiting judges may sit on the panel. The identity of panel members is not made public until noon on the Thursday preceding the sitting week. It is then posted in Room 1803, on the Court's website and published in the New York Law Journal.

Counsel in cases on set calendars receive written notice of the day and allotted time for oral argument approximately four weeks in advance of the argument. It is imperative that counsel return the acknowledgment receipt and appear for hearing. Failure to do so results in forfeiture of oral argument. Once the case is set, a request to adjourn oral argument is rarely granted. This is because counsel have been afforded ample opportunity to notify the court in advance of unavailability, and the panel has already begun reviewing the case. An adjourned case is ordinarily replaced by a substituted case, requiring both the panel and the attorneys on the substituted case to prepare on short notice.

The Second Circuit Court of Appeals is the only federal appellate court that permits every litigant (unless incarcerated) to present oral argument. The judge scheduled to preside sets the time for argument. Normally, ten or fifteen minutes are allotted to each side if represented by counsel; pro se arguments are usually limited to five minutes per side. Except in case of true emergency, argument once scheduled will usually not be postponed.

V. SETTLEMENTS

Notice of all settlements must be provided in writing to the Calendar Deputy (212-857-8590/8591) as soon as effected. If an appeal is withdrawn without prejudice within two business days of scheduled oral argument, counsel MUST nonetheless appear as scheduled (unless adjournment is earlier sought from and granted by the panel); appearance is not required if the appeal is withdrawn with prejudice.

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VI. MOTIONS

Federal Rule of Appellate Procedure 27 states that no Notice of Motion is required is required to make a motion, but Second Circuit Court of Appeals Local Rule 27 requires that motions be made on a T-1080 Motion Information Statement (commonly referred to simply as a T-1080).  This Second Circuit requests that attorneys continue to use the form and to complete all answers to the questions on the form. An original and four copies of all motion papers must be filed, accompanied by proof of service.

Common mistakes in submitting motions include failing to sign the motion and failing to provide proof of service, counsel's telephone number or sufficient copies of the motion. Under the new Federal Rule of Appellate Procedure 27 and Second Circuit Court of Appeals Local Rule 27, all legal arguments must be contained in the body of the motion, not to exceed 20 pages. This page limit does not include an accompanying factual affidavit. Motions for a stay of the lower court's order or judgment must be accompanied by a copy of that order or judgment. A motion filed in the Second Circuit Court of Appeals simultaneous with filing the Notice of Appeal (NOA) in the district court must be accompanied by copy of the NOA along with the district court receipt or file stamp thereon (this establishes appellate jurisdiction). The requested return date provided on the T-1080 is the date on which the movant suggests calendaring the motion for oral argument or submission. No return date is needed for procedural motions which are decided without hearing.

Counsel who request oral argument on the T-1080 (substantive motions only) must appear for argument or withdraw the request by letter to the Calendar Team in advance of the hearing date. Substantive motions include those seeking: bail pending appeal; dismissal or summary affirmance (including summary enforcement of an agency order); permission to appeal an interlocutory order pursuant to Federal Rule of Appellate Procedure 5; a stay or injunction pending appeal or review; a certificate of appealability (COA); leave to proceed in forma pauperis; remand; summary entry of judgment in NLRB cases; transfer (without consent); to modify a mandate; to claim or object to costs; to claim attorney's fees; and to impose sanctions. Substantive motions are submitted to a three-judge panel for decision.

When the Court sits in regular session, they are placed on a motions calendar for argument or submission each Tuesday. Non-emergency substantive motions are always calendared for hearing or submission on a Tuesday at least 20 days from the date of filing. Written notice is sent to respondent no later than the first Wednesday after filing, providing a response due date permitting at least seven days to respond. Staff Attorneys prepare bench memoranda that are due the Wednesday following the response date, and the motion is set for hearing or submission on the following Tuesday.

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In summary, Case Managers docket these motions and send them to Motion Attorneys, who screen them, determine whether they are complete and in proper form, and send them to the Calendar Team with scheduling instructions. The Calendar Team gives notice to respondent and calendars the motion as instructed. It also sends a copy to the panel and to the staff attorneys who prepare a bench memo for the panel.

The Staff Attorneys schedule petitions for permission to file under Federal Rule of Appellate Procedure 5 to proceed in in forma pauperis status, for appointment of counsel, for certificates of appealability and for permission to file successive habeas petitions. These motions are docketed by the Case Manager and sent to the Staff Attorneys. If the motion relates to an appeal not involving pro se parties, the Staff Attorneys’ office prepares a bench memorandum and notifies the Calendar Team when it is completed. If notified Monday through Wednesday, Calendar sets the motion for hearing or submission the upcoming Tuesday; if notified Thursday or Friday, Calendar sets the motion for the second Tuesday after notification. If the motion relates to a pro se appeal, the Staff Attorneys’ office prepares a bench memorandum that not only addresses the motion, but also the merits of the appeal. Staff attorneys prepare a calendar of such cases each Wednesday. This Pro Se Calendar is separate from the regular calendar of appeals.

As to emergency motions, the presiding judge of the panel then sitting schedules emergency motions seeking a stay, injunctive relief, bail, mandamus and other motions presenting emergency circumstances. The motion is initially received and docketed by the Case Manager, who sends it to the Motion Attorneys. The Motion Attorneys contact counsel to determine whether the parties will maintain status quo until the motion may be calendared by non-emergency procedures; if not, the motion is sent immediately to the presiding judge.

The judge may set the motion for hearing by (a) that week's panel, (b) the following week's panel, (c) a subsequent panel, or (d) the first panel sitting after a bench memo is prepared. If immediate action is required, the judge may act as an emergency applications judge and provide an interim ruling (e.g., a temporary stay) pending full panel consideration. The judge may also determine that a bench memo is needed. If so, the motion and hearing date are promptly transmitted to the staff attorneys. If immediate consideration is required, the judge will normally set a hearing date that allows two days to prepare the bench memo; if not, (e.g., when a temporary stay was entered), the hearing date is set to allow at least one week for preparing the bench memo.

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Substantive and procedural motions on a set case are forwarded directly to the panel. They do not appear on a motions calendar and are usually not reviewed by a Motion Attorney or a staff attorney. Procedural motions, however, include those for permission to file records, briefs, appendices or other papers out of time; to file oversized briefs or to dispense with an appendix; for assignment of counsel or transcription of the record at government expense (18 U.S.C. § 3006A); for allowance of compensation and expenses under 18 U.S.C. § 3006A; for leave to file an amicus brief; for substitution; for consolidation; to intervene; to change a caption; and for postponement of argument.

Certain unopposed procedural motions, stipulations and applications may be acted on either by the Clerk directly or a staff attorney acting for the Clerk. Authority to so act is delegated by the Standing Directions to the Clerk, the Civil Appeals Management Plan and the Plan to Expedite Criminal Appeals. Each disposition is subject to review by a judge on motion. All opposed procedural motions are decided by a judge. 

Unopposed procedural motions in civil cases not involving pro se litigants are decided by Staff Counsel if filed before the case is calendared for hearing. They are decided by an applications judge if opposed and by the presiding judge of the panel if filed after the case is calendared. Unopposed procedural motions in criminal cases are decided by a Motion Attorney if filed before the case is calendared. These motions are decided by the applications judge if opposed and by the presiding judge of the panel if filed after the case is calendared. Unopposed procedural motions in pro se cases are decided by the Staff Attorneys. These motions are decided by the applications judge if opposed and by the pro se presiding judge of the panel if filed after the case is calendared.

Substantive and procedural motions filed after argument or submission are referred to the panel that heard the appeal. Second Circuit Court of Appeals Local Rule 27(b) allows oral argument for certain substantive motions, including those seeking bail, stay or injunction pending appeal and those seeking summary affirmance or dismissal of an appeal. Motions for leave to appeal interlocutory rulings Federal Rule of Appellate Procedure 5 and for certificates of appealability are also placed on the Tuesday motions calendar but argument is not permitted. Procedural motions are not placed on the Tuesday motions calendar and are not argued. For all substantive motions, a staff attorney prepares a bench memorandum analyzing the legal issues presented and recommending disposition.

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VII. MISCELLANEOUS

Audio Tapes. Audio tapes of oral argument may be purchased by written request to the Clerk of Court, specifying the case name, appellate docket number, and the date of oral argument. An argument tape may not be immediately available for copying if it is in use by the Court. If it is to be sent by FedEx, include the FedEx account number and envelope. A check payable to “Clerk of Court, Second Circuit” for the $26 copying fee must be enclosed.

Attorney Admissions. Counsel are encouraged to apply for general admission to the Court of Appeals before appearing at oral argument, and may obtain an application for admission from the Court's website or from Admissions Deputy Clerk Kevin Brofsky (212-857-8603).  The one-time admission fee is $190 . Counsel who have not yet met the admission requirements may move to appear pro hac vice in an individual appeal, using form T-1080, the Motion Information Statement. Counsel are encouraged to make such a motion at least three weeks in advance of the scheduled argument.

Docket Sheets. Docket sheets are available via the PACER Service Center, the Federal Judiciary's centralized registration, billing, and technical support center for electronic access to U.S.District, Bankruptcy, and Appellate court records. A login and password, issued by the PACER Service Center, is required for access to PACER either through the dial-up service or the Internet service. To register, log on to the PACER Service Center website at http://pacer.psc.uscourts.gov or dial (800) 676-6856. An access fee of $.07 per page is charged for this service.

Appeal Bonds. Appeal bonds are filed with the district court clerk in accordance with that court's procedures. When the Court of Appeals imposes an appeal bond, the affected party is directed to file the bond with the District Court.

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If you choose this option, our work product will be provided to your attorney in an editable format via CD or e-mail. If you pay us directly we will also serve you with a copy of the work product. If you are pro se or pro per, we will prepare a pro se brief and appendix for you that is ready to be signed and submitted as-is, but you will need an attorney who will accept a copy of the materials on your behalf.

If you retain us, you are technically retaining us to prepare the brief and appendix for the attorney, not for you, although the brief can be prepared as a pro se brief upon request. We will not provide you legal advice. Although such an arrangement allows us to provide you low cost brief writing and legal research services, this only allows us to conduct your legal research and prepare you a legal brief. It does not allow us to provide you legal advice or counsel. Only a licensed attorney may provide you legal advice.

Nothing on this website is or should be construed as being legal advice. You should not rely upon any of the information on this website in making a legal decision of any kind. You should consult a licensed attorney before making legal decisions.