Appellate ambiguity

So a reader notified me of language in  the standard case opening notice sent by the First Circuit to the parties that might be deemed less than clear.  Here's the text, with the ambiguous language emphasized: 


The above-captioned appeal was docketed in this court today pursuant to Rule 12 of the Federal Rules of Appellate Procedure. The above case number and caption should be used on all papers subsequently submitted to this court. If any party disagrees with the clerk’s office’s designation of the parties on appeal, it must file a motion to amend the caption with any supporting documentation attached. Absent an order granting such a motion, the parties are directed to use the above caption on all pleadings related to this case.

Appellant must complete and return the following forms to the clerk’s office by [this is a specific date two weeks from docketing of the appeal] to be deemed timely filed:

  • Appearance Form
  • Transcript Report/Order Form (Please carefully read the instructions for completing and filing this form.)
  • Docketing Statement

These forms are available on the court’s website at, under “Forms & Notices.” Failure to comply with the deadlines set by the court may result in dismissal of the appeal for lack of diligent prosecution. See 1st Cir. R. 3.0, 10.0, and 45.0.

Upon confirmation by the circuit clerk that the record is complete either because no hearing was held, no transcript is necessary, or the transcript is on file, the clerk’s office will set the briefing schedule and forward a scheduling notice to the parties.

Within seven days of filing the notice of appeal, appellant must pay the filing fee to the district court clerk. An indigent appellant who seeks to appeal in forma pauperis must file a motion and financial affidavit in the district court in compliance with Fed. R. App. P. 24. Unless this court is provided with notice of paying the filing fee to the clerk of the district court or filing a motion seeking in forma pauperis status within fourteen days of the date of this notice, this appeal may be dismissed for lack of prosecution. 1st Cir. R. 3.0(b).

An appearance form should be completed and returned immediately by any attorney who wishes to file pleadings in this court. 1st Cir. R. 12.0(a) and 46.0(a)(2). Pro se parties are not required to file an appearance form. Any attorney who has not been admitted to practice before the First Circuit Court of Appeals must submit an application and fee for admission with the appearance form. 1st Cir. R. 46.0(a)(2).

Dockets, opinions, rules, forms, attorney admission applications, the court calendar and general notices can be obtained from the court’s website at Your attention is called specifically to the notice(s) listed below:

  • Notice to Counsel and Pro Se Litigants
  • Transcript Notice

If you wish to inquire about your case by telephone, please contact the case manager at the direct extension listed below.

ok, so reading this form, if you represent the appellee, when do you think that your appearance form is due?  The form gives a date certain for when the appellant needs to file its appearance form.  If you then keep reading, it says that an appearance form should be completed "immediately" by any attorney who wished to file pleadings.  Does that mean the appellee lawyers, too?  What's "immediately"?

Perhaps all will be revealed by the rules, you say. 

FRAP 12(b) provides that "[u]nless the court of appeals designates another time, the attorney who filed the notice of appeal must, within 14 days after filing the notice, file a statement with the circuit clerk naming the parties that the attorney represents on appeal."  Ok, that matches the form – notice of appearance due for the appellant within two weeks of docketing.  But what about the appellee?

For that, go to Local Rule 12.0(a), cited in the "immediately" paragraph in the notice.  There, it clearly says "Attorneys for both appellant and appellee must file appearance forms within 14 days after the case is docketed in the court of appeals."

Perhaps the language in the notice could be a little clearer on this point, micmicking the clear language of the local rule itself?

In any event, be forewarned:  if you get one of these notices as an appellee representative, there's a two week clock ticking for filing your notice of appearance.     



To top