Blog | Appellate Practice

You’ve filed your notice of appeal and paid the applicable fee, but now what? Surprisingly, to the New York State court practitioner, when one files a notice of appeal, that is just the first in a series of filings before perfecting an appeal in the Second Circuit.

As the filing attorney, you will receive a Pacer alert once the notice of appeal is docketed and assigned a Second Circuit docket number. The first step you should take is to review the Second Circuit docket sheet for accuracy in the case information, your name and firm information. After your initial review of the docket sheet, the next important step is to determine the deadlines for filing the next series of forms; most run in 14-day intervals.

Within 14 days after filing the notice of appeal, a Civil Pre-Argument Statement (Form C) and a Civil Appeal Transcript Information Form (Form D) must be filed by the appellant. The practitioner is responsible for ensuring that no later than 14 days after filing the notice of appeal, the appellant must either order the transcript of proceedings or indicate on Form D that no transcript is necessary.

The Acknowledgement and Notice of Appearance form must be filed by all parties within 14 days of receiving the court’s docketing notice. If an attorney other than the originally designated lead counsel of record wishes to appear in a case, that attorney must file a Notice of Appearance of Substitute, Additional or Amicus Counsel. Timely submission of the Acknowledgement and Notice of Appearance form constitutes compliance with the FRAP 12(b) Representation Statement requirement.

Pursuant to Local Rule 31.2, except for those cases assigned to the court’s expedited calendar, the appellant must notify the court of the date by which the appeal will be perfected within 14 days of the “ready date,” which is the date the appellant either receives the completed transcript or files Form D indicating that no transcript is necessary. The attorney must select a perfection date within 91 days of said ready date. This requirement is most easily accomplished by filing a letter addressed to the court simply stating that the appellant has selected X date to perfect their appeal; said letter is called a scheduling notification. The court will so-order the appellant’s letter unless the date chosen is unacceptable, for example, if it is outside the 91-day limit or falls on a weekend or holiday. It is important for counsel to realize that they are actually choosing their perfection date. This is significant as the court strongly discourages requests for extensions of time, in part because counsel are allowed to select their filing dates and should choose said date carefully in full knowledge of their schedule and other obligations. Absent extraordinary circumstances, failure to file a scheduling notification within 14 days of the ready date will result in the court setting a briefing deadline of 40 days from the ready date.

After filing a notice of appeal, counsel must be cognizant of the need for subsequent filings before perfecting an appeal; the Acknowledgment and Notice of Appearance form and Forms C and D as well as a scheduling notification must be filed according to the Second Circuit’s applicable rules. The Second Circuit’s website contains sample forms and the clerk’s office is available to answer questions regarding any of the above procedures. Lastly, the documents listed above must be text-searchable PDFs when uploaded to the CM/ECF system.

Tagged: Appellate Practice, Appellate Procedure, United States Court of Appeals for the Second Circuit