The Federal Rules of Appellate Procedure provide that an appellant should prepare and file an appendix to the briefs.[i] References to the parts of the record contained in the appendix filed with the appellant’s brief should be to the pages of the appendix.[ii] The appendix is not the record but merely a selection of record for the convenience of the judges of the court of appeals. The purpose of Federal Rules of Appellate Procedure is for the appellate court to have all necessary documents before it as it considers the parties’ arguments and renders its decision.[iii]
The court has power to dismiss appeal or affirm judgment due to appellant’s disregard of appendix rule by failing to delineate relevant portions of district court record from which appeal was taken.[iv] Also, a party who fails to provide an appendix which is sufficiently complete to present the questions upon which he relies on appeal takes a risk that his/her appeal will be dismissed. Further, the failure to include in the appendix all parts of the record and transcript necessary to fairly present any error alleged justifies the court’s refusal to consider such alleged error.[v] The obligation to file an appendix is that of the appellant and appeal may be dismissed if adequate appendix is not filed.[vi] Similarly, if the permission to dispense with an appendix is neither sought nor granted in accordance with the federal rules the appeal will be dismissed by the courts.[vii]
However, a federal court of appeals may permit an appeal to proceed on the original record without an appendix, if the court may, either by rule for all cases or classes of cases or by order in a particular case, dispense with the appendix and permit an appeal to proceed on the original record with any copies of the record, or relevant parts, that the court may order the parties to file.[viii] Additionally, a party allowed to proceed on appeal in forma pauperis may request that the appeal be heard on the original record without reproducing any part.[ix] When an addendum is filed providing a sufficient record to reach the merits, the court may consider the merits of the appeal, even though the party fails to provide an appendix.[x]
Contents of an appendix are:[xi]
- relevant docket entries in the proceeding in the lower court;
- relevant portions of the pleadings, charge, findings, or opinion;
- judgment, order, or decision in question; and
- other parts of the record to which the parties wish to direct the court’s attention.
Memoranda of of law in the district court are not included in the appendix unless they have independent relevance.[xii] Also, parts of the record may be relied on by the court or the parties even though not included in the appendix. Only materials from the record may appear in appendices.[xiii]
The parties are encouraged to agree on the contents of the appendix.[xiv] In the absence of an agreement, the appellant should, within 14 days after the record is filed, serve on the appellee a designation of the parts of the record the appellant intends to include in the appendix and a statement of the issues the appellant intends to present for review.[xv] The court may provide by rule for classes of cases or by order in a particular case that preparation of the appendix may be deferred until after the briefs have been filed and that the appendix may be filed 21 days after the appellee’s brief is served.[xvi]
The appellee may, within 14 days after receiving the designation, serve on the appellant a designation of additional parts to which it wishes to direct the court’s attention.[xvii] The appellant should then include the designated parts in the appendix. The parties should not engage in unnecessary designation of parts of the record, because the entire record is available to the court.[xviii] The federal rule provides that it applies also to a cross-appellant and a cross-appellee.[xix]
The form of the appendix is required to be the same as that of a brief with the following exceptions:[xx]
- the cover of a separately bound appendix must be white,
- an appendix may include a legible photocopy of any document found in the record or of a printed judicial or agency decision, and
- when necessary to facilitate inclusion of odd-sized documents such as technical drawings, an appendix may be a size other than 81/2 by 11 inches, and need not lie reasonably flat when opened.
The federal rule provides that the appendix should begin with a table of contents identifying the page at which each part begins.[xxi] The relevant docket entries should follow the table of contents. Also, other parts of the record should follow chronologically. When pages from the transcript of proceedings are placed in the appendix, the transcript page numbers must be shown in brackets immediately before the included pages. Further, omissions in the text of papers or of the transcript should be indicated by asterisks. Immaterial formal matters such as captions, subscriptions, acknowledgments, should be omitted.
Exhibits designated for inclusion in the appendix may be reproduced in a separate volume, or volumes, suitably indexed.[xxii] If a transcript of a proceeding before an administrative agency, board, commission, or officer was used in a district-court action and has been designated for inclusion in the appendix, the transcript should be placed in the appendix as an exhibit.
Unless filing is deferred, the appellant should file ten copies of the appendix with the brief and should serve one copy on counsel for each party separately represented.[xxiii] An unrepresented party proceeding in forma pauperis should file four legible copies with the clerk, and one copy must be served on counsel for each separately represented party. The court may by local rule or by order in a particular case require the filing or service of a different number.
If the deferred appendix is used, the parties may cite in their briefs the pertinent pages of the record. When the appendix is prepared, the record pages cited in the briefs should be indicated by inserting record page numbers, in brackets, at places in the appendix where those pages of the record appear.[xxiv] A party who wants to refer directly to pages of the appendix may serve and file copies of the brief, within the time, containing appropriate references to pertinent pages of the record.[xxv] In that event, within fourteen days after the appendix is filed, the party should serve and file copies of the brief, containing references to the pages of the appendix in place of or in addition to the references to the pertinent pages of the record. Except for the correction of typographical errors, no other changes may be made to the brief.
Unless the parties agree otherwise, the appellant should pay the cost of the appendix.[xxvi] If the appellant considers parts of the record designated by the appellee to be unnecessary, the appellant may advise the appellee, who should then advance the cost of including those parts. The cost of the appendix is a taxable cost. However, if any party causes unnecessary parts of the record to be included in the appendix, the court may impose the cost of those parts on that party. Further, each circuit must, by local rule, provide for sanctions against attorneys who unreasonably and vexatiously increase litigation costs by including unnecessary material in the appendix.
An appellant’s attorney should bear in mind to minimize the cost of reproducing the appendix, consistent with the obligation and responsibility of the parties to reproduce therein those parts of the record which are essential to the court’s consideration and determination of the issues raised by the appeal.[xxvii]
[i] USCS Fed Rules App Proc R 30
[ii] USCS Fed Rules App Proc R 28 (e)
[iii] Hill v. Porter Mem. Hosp., 90 F.3d 220, 226 (7th Cir. Ind. 1996)
[iv] Morrison v. Texas Co., 289 F.2d 382 (7th Cir. Ill. 1961)
[v] Potomac Ins. Co. v. Stanley, 281 F.2d 775 (7th Cir. Ind. 1960)
[vi] United States v. Seaboard C. L. Railroad, 517 F.2d 881, 882 (4th Cir. Va. 1975)
[vii] FMC Corp. v. Knowles Electric, Inc., 438 F.2d 1220, 1221 (4th Cir. W. Va. 1971)
[viii] USCS Fed Rules App Proc R 30 (f)
[ix] USCS Fed Rules App Proc R 24 (c)
[x] Fryar v. Curtis, 485 F.3d 179, 182 (1st Cir. Mass. 2007)
[xi] USCS Fed Rules App Proc R 30 (a) (1)
[xii] USCS Fed Rules App Proc R 30 (a) (2)
[xiii] United States v. Burke, 781 F.2d 1234 (7th Cir. Ill. 1985)
[xiv] USCS Fed Rules App Proc R 30 (b) (1)
[xvi] USCS Fed Rules App Proc R 30 (c) (1)
[xvii] USCS Fed Rules App Proc R 30 (b) (1)
[xx] USCS Fed Rules App Proc R 32 (b)
[xxi] USCS Fed Rules App Proc R 30 (d)
[xxii] USCS Fed Rules App Proc R 30 (e)
[xxiii] USCS Fed Rules App Proc R 30 (a) (3)
[xxiv] USCS Fed Rules App Proc R 30 (c) (2) (A)
[xxv] USCS Fed Rules App Proc R 30(c) (2) (B)
[xxvi] USCS Fed Rules App Proc R 30 (b) (2)
[xxvii] Drewett v. Aetna Casualty & Surety Co., 539 F.2d 496 (5th Cir. La. 1976)