This article addresses the basic procedure for handling an appeal before the United States Court of Appeals for the Eighth Circuit.
The Eighth Circuit is a federal appellate court that covers federal courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
Let’s say you just lost a civil lawsuit in one of the federal district courts in the Eighth Circuit. You may consider challenging that loss through an appeal. There, a panel of three judges will consider the trial court’s ruling and decide whether any legal errors require correction.
But while filing a compelling brief is essential, it won’t be enough to simply point out the mistakes made by the trial court to win. There are several other important procedural steps that a party must take before the Eighth Circuit will even consider the merits of your case. And the failure to follow those steps could have dramatic consequences, including dismissal of the appeal. Thus, it’s just as important to satisfy all these procedural hurdles to have a chance of winning on the merits.
Let’s walk through those steps:
Notice of Appeal
To initiate an appeal, the party (usually called an “appellant”) must file what is called a Notice of Appeal. This is a short, straightforward document, that provides basic information about the case and what type of appeal will be at issue.
Even though it is a simple document to prepare, the notice of appeal is a critical one and comes with strict deadlines. In most cases, the appellant must file a notice of appeal within 30 days of service of the notice of entry of judgment or the appealable decision. See Fed. R. App. 4(a)(1)(A).
Do not miss this deadline! Failure to file a timely notice of appeal will likely result in the dismissal of the appeal, with no further remedy.
Record, Appendix, and Transcripts
An important aspect of any appeal is the “record,” which are the materials from the district court that the appellate court will consider in deciding a case.
After the notice of appeal has been filed, the Clerk of the District Court in which the originating matter was located will transmit a certified copy of the docket entries to the Court of Appeals. See 8th Cir. Rule 11A (citing Fed. R. App. P. 11(e)).
Then the parties will prepare an appendix for the Court of Appeals, which includes the relevant portions of the record, such as pleadings, rulings, orders, and other materials the parties believe will assist the Court’s decision-making. Typically, the parties will agree to file a “joint” appendix, meaning they will confer and agree on the relevant materials to include in the joint appendix. Fed. R. App. P. 30(b)(1); see also 8th Cir. Local Rule 30A(b)(2). Along with filing the joint appendix at the time the opening brief is due, the appellant must also lodge three paper copies of the joint appendix with the Court of Appeals as well. 8th Cir. Rule 30A(b)(2).
In some cases, the appellant may choose instead to file a “separate” appendix, meaning the appellant does not confer with the appellee in assembling the materials to include in the appendix. If so doing, the appellant must notify the Clerk of Court and all opposing parties in writing of the decision to prepare and file a separate appendix within 14 days after filing the notice of appeal. 8th Cir. Rule 30A(b)(3). The appellee then may file a separate appendix containing material not included in the appellant’s appendix. Id.
In most cases, it makes sense for the parties to work together and agree on a joint appendix. The Court will appreciate it.
Additionally, the appellant must ensure that the Court of Appeals has all necessary transcripts of proceedings before the district court. Within 14 days of filing the notice of appeal, the appellant must either (1) order transcripts of all relevant proceedings not already on file; or (2) file a certification stating that no transcript will be ordered. Fed. R. App. P. 10(b)(1).
Filing the certification is common, typically because either (i) all transcripts have already been ordered (and thus prepared) while the parties were litigating in the district court; or (ii) no hearings were held and thus no transcripts would exist (for example, when a complaint is dismissed on a motion to dismiss without a hearing).
Appellant’s Opening Brief
Now it is time to get to the merits of the appeal. The parties submit substantive briefing on the relevant law and facts to assist the Court of Appeals in deciding how to rule on the appeal. There are specific requirements about timing, length, and contents that each brief must adhere to.
The appellant goes first, filing an opening brief. The Clerk of Court will set a briefing schedule after the notice of appeal is filed, though the opening brief is typically due 40 days after the appeal is docketed. Fed. R. App. P 31(a)(1).
As for length and form, the appellant’s brief cannot exceed 30 pages or 13,000 words. Fed. R. App. P. 32(a)(7). And the font size must be 14-point. Fed. R. App. P. 32(a)(5). And for paper copies the cover must be blue. Fed. R. App. P. 32(a)(2).
The Federal Rules require the appellant’s brief to “contain, under appropriate headings and in the order indicated” the following items:
- “(1) a disclosure statement if required by Rule 26.1;
- (2) a table of contents, with page references;
- (3) a table of authorities—cases (alphabetically arranged), statutes, and other authorities—with references to the pages of the brief where they are cited;
- (4) a jurisdictional statement, including:
-
- (A) the basis for the district court’s or agency’s subject-matter jurisdiction, with citations to applicable statutory provisions and stating relevant facts establishing jurisdiction;
- (B) the basis for the court of appeals’ jurisdiction, with citations to applicable statutory provisions and stating relevant facts establishing jurisdiction;
- (C) the filing dates establishing the timeliness of the appeal or petition for review; and
- (D) an assertion that the appeal is from a final order or judgment that disposes of all parties’ claims, or information establishing the court of appeals’ jurisdiction on some other basis;
- (5) a statement of the issues presented for review;
- (6) a concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record (see Rule 28(e));
- (7) a summary of the argument, which must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, and which must not merely repeat the argument headings;
- (8) the argument, which must contain:
-
- (A) appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies; and
- (B) for each issue, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues);
- (9) a short conclusion stating the precise relief sought; and
- (10) the certificate of compliance, if required by Rule 32(g)(1).”
Fed. R. App. P. 28(a).
Additionally, the Eighth Circuit’s Local Rules require two other items be included in the opening brief. First, the appellant must file a Summary of the Case, which is “a statement not to exceed one page providing a summary of the case, the reasons why oral argument should or should not be heard, and the amount of time (typically, 10, 15, 20, or 30 minutes) necessary to present the argument. The summary must be placed as the first item in the brief.” 8th Cir. Rule 28A(i)(1).
Second, the Eighth Circuit requires additional detail to the statement of issues presented for review in Fed. R. App. P 28(a)(5). Specifically, “the statement of issues must include for each issue a list of the most apposite cases, not to exceed 4, and the most apposite constitutional and statutory provisions.” 8th Cir. Rule 28A(i)(2).
Finally, each party must deliver 10 paper copies of its brief to the Clerk of Court. But the parties should first wait to do so until after they file their electronic brief and receive notification from the Court that the brief has been accepted. Once that happens, the party will have five days to deliver those copies. 8th Cir. Rule 28A(d).
Appellee’s Brief
After the appellant serves its brief, the appellee must then serve and file its brief within 30 days. Fed. R. App. P 31(a)(1).
As for length and form, like the appellant’s brief, the appellee’s brief cannot exceed 30 pages or 13,000 words. Fed. R. App. P. 32(a)(7). The font size must be 14-point. Fed. R. App. P. 32(a)(5). And for paper copies the cover must be red. Fed. R. App. P. 32(a)(2).
The requirements on the contents of the appellee’s brief are similar to that for the appellant. The appellee’s brief “must conform to the requirements of Rule 28(a)(1)–(8) and (10), except that none of the following need appear unless the appellee is dissatisfied with the appellant’s statement: (1) the jurisdictional statement; (2) the statement of the issues; (3) the statement of the case; and (4) the statement of the standard of review.” Fed. R. App. P. 28(b).
Appellant’s Reply Brief
The appellant may then serve and file a reply brief within 21 days after service of the appellee’s brief. Fed. R. App. P 31(a)(1).
As for length, the reply brief cannot exceed 15 pages or 6,500 words. Fed. R. App. P. 32(a)(7). And for paper copies the cover must be gray. Fed. R. App. P. 32(a)(2).
Addendum
Along with filing an opening brief, an appellant is also required to file a document called an addendum. 8th Cir. Rule 28A(g). The addendum must include a copy of the district court’s order or opinion that the party is challenging, as well as other relevant rulings, including the magistrate’s report and recommendation (if there was one).
The addendum may also include up to 15 pages of excerpts from the record that a party believes would be helpful in reading the brief without immediate reference to the appendix, such as jury instructions, contracts or other key documents, and brief excerpts from transcripts.
The addendum can be no longer than 15 pages, excluding the district court or agency opinion and orders. 8th Cir. Rule 28A(g)(2).
An appellee may, but is not required to, file a separate addendum with the opposition brief, but it should not include any materials already included in the appellant’s addendum. 8th Cir. Rule 28A(g)(3).
Oral argument
As discussed, the appellant’s opening brief must include a brief statement explaining why oral argument is (or is not) appropriate. Fed. R. App. P. 34(a)(1); 8th Cir. Rule 28A(i)(1). And the appellee may include such a statement as well.
The Clerk of Court will screen cases for oral argument and will usually allot 10, 15, or 20 minutes of argument per side. 8th Cir. Rule 34A(b). After the Court provides notice about oral argument, the attorney intending to participate in oral argument should file a letter identifying any scheduling conflicts and file the Oral Argument Response Form.
Petition for rehearing / En banc review
After the Eighth Circuit issues its decision, either party may be unhappy with the outcome and may want to challenge that decision. They can do so in a few ways, including filing either: (1) a petition for rehearing; or (2) petition for rehearing en banc.
The petition for rehearing in essence asks the same panel of three judges to reconsider aspects of its decision, typically some point of law or fact that the petitioner believes the Court has overlooked or misapprehended in issuing its decision. Fed. R. App. P. 40(a)(2). But a party needs to move quickly, as the petition for rehearing is due within 14 days of the Court issuing its opinion and judgment. Fed. R. App. P. 40(a)(1). And the petition cannot exceed 15 pages or 3,900 words. Fed. R. App. P. 40(b).
A party that opposes a petition for rehearing need not—indeed, cannot—file a response brief just yet. Instead, a response is permitted only if the Court first requests. Fed. R. App. P. 40(a)(3). The Court will assign a deadline for the response brief, though parties can anticipate about 14 days. And the response brief cannot exceed 15 pages or 3,900 words. Fed. R. App. P. 40(b). No reply brief is permitted, and oral argument will not be granted.
The petition for rehearing en banc, by contrast, asks the full court—all active judges of the Eighth Circuit—to review the decision.
The rules note that en banc rehearing “is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.” Fed. R. App. P. 35(a).
The Rules mandate that the petition “must begin with a statement that either:
- (A) the panel decision conflicts with a decision of the United States Supreme Court or of the [Eighth Circuit] (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the [Eighth Circuit’s] decisions; or
- (B) the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.”
Fed. R. App. P. 35(b).
As with the petition for rehearing, the petition for rehearing en banc is due within 14 days of the Court issuing its opinion and judgment. Fed. R. App. P. 35(c). And, likewise, the petition cannot exceed 15 pages or 3,900 words. Fed. R. App. P. 35(b)(2).
A response is permitted only if the Court requests it. Fed. R. App. P. 35(e). And the response brief cannot exceed 15 pages or 3,900 words. Fed. R. App. P. 35(b)(2). No reply brief is permitted, and oral argument will not be granted.
Also, the Eighth Circuit’s Local Rules add that a petition should not refer to or adopt by reference any matter from other briefs or motions in the case. 8th Cir. R. 35A.
Finally, keep in mind that most petitions for rehearing and rehearing en banc are denied. And the Eighth Circuit’s Local Rules note that the Court “may assess costs against counsel who files a frivolous petition for rehearing en banc deemed to have multiplied the proceedings in the case and to have increased costs unreasonably and vexatiously. At the court’s order, counsel personally may be required to pay those costs to the opposing party.” 8th Cir. R. 35A(2).
Conclusion
An appeal is often a key part of litigation, and one should know and follow an appellate court’s requirements.
One of the best things a practitioner can do is to check the Rules: both the Federal Rules of Appellate Procedure and the Eighth Circuit’s Local Rules. Confirm the deadlines and confirm the requirements.
The Eighth Circuit’s website provides a useful checklist to consider while working on an appeal (though note that it has not been updated since 2016).
Good luck!
[Note: These rules apply to appeals in civil cases before the Eighth Circuit involving just one appellant and one appellee. Appeals involving multiple parties, cross-appeals, criminal cases, or those involving federal agencies are governed by somewhat different rules and may have different requirements.]