Presenting a live 90-minute webinar with interactive Q&A Federal Appellate Petitions and Motions: Filing and Response Strategies Making or Opposing Requests for Permission to Appeal, Mandamus Orders, and Other Procedural or Substantive Relief TUESDAY, FEBRUARY 7, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Chad Clamage, Attorney, Mayer Brown , Chicago Hans J. Germann, Partner, Mayer Brown , Chicago Stephen J. Kane, Partner, Mayer Brown , Chicago The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Federal Appellate Petitions and Motions Making or Opposing Requests for Permission to Appeal, Mandamus Orders, and Other Procedural or Substantive Relief Steve Kane skane@mayerbrown.com February 2017 Hans Germann hgermann@mayerbrown.com Chad Clamage cclamage@mayerbrown.com Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe-Brussels LLP both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
Appellate Motions — General Principles • Motion practice in federal appellate courts encompasses an enormous array of requests for substantive and procedural relief. • The Federal Rules of Appellate Procedure govern motion practice. Rule 27 is the starting point. • Local Rules and Operating Procedures supplement and sometimes supersede the federal rules. • Always review current rules before filing motion papers. Treatises can provide guidance, too. • Call the Clerk’s office if you are unsure about how to proceed. 6
Form and Content of Motion Papers • Motion papers should be concise and straight-forward, without unnecessary formality and repetition. • A notice of motion, proposed order, or separate legal memorandum is not allowed. A cover is not required, but a caption and title are. • Many motions require certain attachments (disclosure statement, ruling appealed, affidavit). • Responses may request affirmative relief. • 5,200 words for motion and response; 2,600 words for reply; 14-point font. 7
Timing and Filing of Motion Papers • No general deadline for motions, but certain motions do have timing requirements (intervention, amicus, enlargement, and extension). Eleventh-hour motions disfavored. • Responses due 10 days after service. • Replies due 7 days after service. • Electronic filing is mandatory. Exceptions vary by circuit but usually include sealed matter and case opening petitions. • Paper copies of electronically filed motions should not be filed. • Consult local rules. 8
Consent to Motions • Some circuits require that a movant contact other parties before making the motion and inform the court whether the other parties oppose the motion. • Even if not required, seeking consent is advisable any time you believe the other parties might agree. • Consent sometimes will entitle the movant to the requested relief, as with a motion to file an amicus brief. • Consent should be noted in the title and body of the motion. 9
Decisions on Motions • Some procedural motions can be decided by clerk’s office personnel, but the specific motions vary by circuit. • Other procedural motions are decided by a single motions judge. • Substantive motions ordinarily are decided by three-judge motions panels. • Oral argument on motions virtually never happens. • A losing party can seek reconsideration of a ruling on a non- dispositive motion and rehearing under Rules 35 and 40 for rulings on dispositive motions. 10
Stay Motions • Motion To Stay Judgment in Civil Case (Rule 8) – Motion almost always must be pursued in district court under Fed. R. Civ. P. 62 first. Attach district court decision. – Security for money judgment must be supplied unless movant shows an obvious ability to pay or a true inability to obtain full security. – Stays of injunctive relief require weighing of likelihood of success, injury to each party, and public interest. • Motion to Stay Judgment in Criminal Case : Governed by Rules 8(c) and 9(b) and Fed. R. Crim. P. 38. Standards depend on consequence sought to be stayed. • Motion to Stay in Habeas Case : Governed by Rule 23. Presumption favors release upon grant of writ but favors detention upon denial of writ. 11
Timing of Decision Motions • Motion for Expedited Review : The movant must show “good cause” for expedited briefing or argument, such as irreparable harm or looming mootness. Many circuits have local rules on the subject. • Motion to Stay Appeal : Parties exploring settlement can ask to stay an appeal. Sometimes, courts require assurances that settlement is likely. Courts with settlement offices allow settlement attorneys to enter stays. • Motion to Certify State Law Questions : When an unsettled question of state law is outcome determinative, a party often can ask the circuit court to certify the question to the state’s highest court. – Nearly all states allow certification, but they limit which courts may certify. – Motion usually is made with or in a party’s brief and will be decided after briefing. – Consult relevant state statutes or rules and any circuit rules. 12
Participation Motions • Motion to Withdraw as Counsel : An attorney who has appeared must obtain permission from the court to withdraw. Required showing depends on whether case is civil or criminal, whether there is replacement counsel, and whether frivolousness is the reason. • Motion to Substitute Party (Rule 43): If a party dies, the decedent’s personal representative may move to substitute the representative or another party may suggest death on the record. Other reasons for a motion to substitute include incompetency or a transfer of interest. Automatic substitution for public officials. • Motion to File Amicus Brief (Rule 29): Private litigants may file an amicus brief only with consent from all parties or with permission from the court. To obtain permission, a prospective amicus must submit a motion, with the proposed brief, within seven days after the brief of the party that the amicus supports. Rule 29(b) now governs amicus filings regarding rehearing petitions. 13
Record Motions • Motion to Supplement the Record (Rule 10): Parties may correct omissions or misstatements in the record on appeal. – With rare exceptions, motion may not be used to introduce new material not presented in the district court – Joint stipulation or contested motion. • Motion to Seal: To keep confidential information from becoming publicly available, a party must move to seal anything containing that information. – Some courts maintain any sealing allowed by the district court; other courts will unseal all record materials unless a party promptly moves to seal. – Mere confidentiality may not suffice. Trade secrets, minor identities, national security information, and privileged material. Details are necessary. – Public versions of briefs and appendices are often required. 14
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