About the Amendments to Federal Rules of Appellate Procedure

As of December 1, 2018, the United States Court of Appeals has made some changes to the Federal Rules of Appellate Procedure, commonly referred to as FRAP. Below is a brief overview of the amended rules.

For the full text, or redlined version, of the amended rules, please visit http://www.uscourts.gov/rules-policies/current-rules-practice-procedure.

Rule 8. Stay or Injunction Pending Appeal

The Rule formerly required a party to provide a “supersedeas bond” to obtain a stay of the judgment and proceedings to enforce the judgment. As amended, the Rule allows a party to obtain a stay by providing a “bond or other security.”

Rule 11. Forwarding the Record

Again, as amended, this Rule allows a party to obtain a stay by providing a “bond or other security”.

Rule 25. Filing and Service

Includes changes to the rules on electronic filing, signature, and service. These changes establish a new national rule that generally makes electronic filing mandatory (with exceptions for pro se litigants, good cause, and variations established by local rule). The amendments also establish national rules regarding the methods of signing and serving electronic documents.

Rule 26. Computing and Extending Time

This amendment only adjusts references to subdivisions of Rule 25 that have been renumbered.

Rule 28.1. Cross-Appeals

The time period for filing a reply brief is extended from 14 to 21 days.

Rule 29. Brief of Amicus Curiae

The amendment to this Rule authorizes orders or local rules that prohibit the filing of, or permit the striking of, an amicus curiae brief if the brief would result in a judge’s disqualification.

Rule 31. Serving and Filing Briefs

This amendment extends the period for filing a reply brief from 14 days to 21 days.

Rule 39. Costs

As the previous amendments, this rule now allows a party to obtain a stay by providing a “bond or other security”.

Rule 41. Mandate: Contents; Issuance and Effective Date; Stay

The amendment to subdivision (b) clarifies that an order is required for a stay of the mandate.

There are three amendments to subdivision (d). The Court deleted subdivision (d)(1) as they determined it was redundant. This change is intended to streamline the rule, no substantive change is intended. The other sections have now been renumbered.

Under the new subdivision (d)(2)(B), if the court issues a stay of the mandate for a party to file a petition for certiorari, and a Justice of the Supreme Court subsequently extends the time for filing the petition, the stay automatically continues for the extended period.

Subdivision (d)(4) – formerly subdivision (d)(2)(D) – is amended to specify that a mandate stayed pending a petition for certiorari must issue immediately once the court of appeals receives a copy of the Supreme Court’s order denying certiorari, unless the court of appeals finds that extraordinary circumstances justify a further stay.