GEORGIA APPELLATE PRACTICE September 13, 2019 10310 ICLE: State Bar Series

Friday, September 13, 2019 GEORGIA APPELLATE PRACTICE

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Who are we? How does SOLACE work? What needs are addressed?

SOLACE is a program of the State If you or someone in the legal Needs addressed by the SOLACE Bar of Georgia designed to assist community is in need of help, simply program can range from unique medical those in the legal community who email [email protected]. Those emails conditions requiring specialized referrals have experienced some significant, are then reviewed by the SOLACE to a fire loss requiring help with clothing, potentially life-changing event in their Committee. If the need fits within the food or housing. Some other examples lives. SOLACE is voluntary, simple and parameters of the program, an email of assistance include gift cards, food, straightforward. SOLACE does not with the pertinent information is sent meals, a rare blood type donation, solicit monetary contributions but to members of the State Bar. assistance with transportation in a accepts assistance or donations in kind. medical crisis or building a wheelchair ramp at a residence.

Contact [email protected] for help. The purpose of the SOLACE program is to allow the legal community to provide help in meaningful and compassionate ways to judges, lawyers, court personnel, paralegals, legal secretaries and their families who experience loss of life or other catastrophic illness, sickness or injury.

TESTIMONIALS

In each of the Georgia SOLACE requests made to date, Bar members have graciously stepped up and used their resources to help find solutions for those in need.

A solo practitioner’s A Louisiana lawyer was in need A Bar member was dealing Working with the South quadriplegic wife needed of a CPAP machine, but didn’t with a serious illness and in Carolina Bar, a former rehabilitation, and members have insurance or the means the midst of brain surgery, paralegal’s son was flown of the Bar helped navigate to purchase one. Multiple her mortgage company from Cyprus to Atlanta discussions with their members offered to help. scheduled a foreclosure on (and then to South Carolina) insurance company to obtain her home. Several members for cancer treatment. the rehabilitation she required. of the Bar were able to Members of the Georgia and negotiate with the mortgage South Carolina bars worked company and avoided the together to get Gabriel and pending foreclosure. his family home from their long-term mission work.

Contact [email protected] for help. iii FOREWORD

Dear ICLE Seminar Attendee,

Thank you for attending this seminar. We are grateful to the Chairperson(s) for organizing this program. Also, we would like to thank the volunteer speakers. Without the untiring dedication and eﬀ orts of the Chairperson(s) and speakers, this seminar would not have been possible. Their names are listed on the AGENDA page(s) of this book, and their contributions to the success of this seminar are immeasurable.

We would be remiss if we did not extend a special thanks to each of you who are attending this seminar and for whom the program was planned. All of us at ICLE hope your attendance will be beneﬁ cial as well as enjoyable We think that these program materials will provide a great initial resource and reference for you.

If you discover any substantial errors within this volume, please do not hesitate to inform us. Should you have a diﬀ erent legal interpretation/opinion from the speaker’s, the appropriate way to address this is by contacting him/her directly.

Your comments and suggestions are always welcome.

Sincerely, Your ICLE Staﬀ

Jeﬀrey R. Davis Executive Director, State Bar of Georgia

Michelle E. West Director, ICLE

Rebecca A. Hall Associate Director, ICLE AGENDA

PRESIDING: Carolyn C. “Tippi” Burch, Program Co-Chair; United States Attorney’s Office, Northern District of Georgia, Atlanta John D. Hadden, Program Co-Chair; The Hadden Law Firm, LLC, Atlanta

8:30 REGISTRATION AND CONTINENTAL 12:00 BREAK BREAKFAST (All attendees must check in upon arrival. A removable jacket or sweater is 12:10 LUNCH PRESENTATION – WHAT I LEARNED recommended.) AT MY UNITED STATES SUPREME COURT ARGUMENT 9:00 WELCOME AND INTRODUCTION Amy Levin Weil, The Weil Law Firm, Atlanta

9:05 POST-VERDICT STEPS 12:40 DISCRETIONARY APPEALS AND CERTIORARI Naveen Ramachandrappa, Bondurant Mixson & Moderator: Tedra L. Cannella, Butler Wooten & Elmore LLP, Atlanta Peak LLP, Atlanta Hon. David E. Nahmias, Justice, Georgia Supreme 9:35 APPELLATE JURISDICTION & PROCEDURE Court, Atlanta Leland H. Kynes, Kynes Law LLC, Atlanta Hon. Christopher J. McFadden, Judge, Georgia Court of Appeals, Atlanta 10:20 BREAK Hon. Elizabeth D. Gobeil, Judge, Court of Appeals of Georgia, Atlanta 10:30 COURT OF APPEALS PRACTICE Moderator: Jason S. Naunas, Georgia Department 1:25 FEDERAL APPEALS of Law, Atlanta Moderator: Carolyn C. “Tippi” Burch Hon. Stephen L. A. Dillard, Judge, Georgia Court of Hon. Elizabeth L. Branch, Judge, US Court of Appeals, Atlanta Appeals 11th Circuit, Atlanta Hon. Sara L. Doyle, Judge, Georgia Court of Hon. Britt C. Grant, Judge, US Court of Appeals Appeals, Atlanta 11th Circuit, Atlanta Hon. Clyde L. Reese, III, Judge, Georgia Court of Appeals, Atlanta 2:10 BREAK Hon. Carla Wong McMillian, Judge, Georgia Court of Appeals, Atlanta 2:20 DRAFTING THE BRIEFS Hon. E. Trenton Brown III, Judge, Georgia Court of J. Darren Summerville, The Summerville Firm LLC, Appeals, Atlanta Atlanta Jennifer Auer Jordan, Shamp Jordan Woodward, 11:15 SUPREME COURT PRACTICE Atlanta Moderator: Laurie Webb Daniel, Holland & Knight LLP, Atlanta 3:05 ORAL ARGUMENT Hon. Keith R. Blackwell, Justice, Georgia Supreme Michael B. Terry, Bondurant Mixson & Elmore, LLP, Court, Atlanta Atlanta Hon. Nels S. D. Peterson, Justice, Georgia Supreme Court, Atlanta 3:35 ADJOURN Hon. Sarah Hawkins Warren, Justice, Georgia Supreme Court, Atlanta TABLE OF CONTENTS

FOREWORD...... 6

AGENDA...... 7

GEORGIA APPELLATE PRACTICE:

POST-VERDICT STEPS...... 9

APPELLATE JURISDICTION & PROCEDURE...... 26

COURT OF APPEALS PRACTICE...... 37

SUPREME COURT PRACTICE...... 73

WHAT I LEARNED AT MY UNITED STATES SUPREME COURT ARGUMENT...... 75

DISCRETIONARY APPEALS AND CERTIORARI...... 257

FEDERAL APPEALS...... 287

DRAFTING THE BRIEFS...... 639

ORAL ARGUMENT...... 684

APPENDIX:

ICLE BOARD...... 696

GEORGIA MANDATORY CLE FACT SHEET...... 697 POST-VERDICT STEPS

<< Back to Table of Contents How To Successfully Proceed From Verdict/Judgment to Appeal in the Georgia Courts

Appellate Practice Section State Bar of Georgia September 13, 2019

Naveen Ramachandrappa Bondurant, Mixson & Elmore, LLP 1201 W Peachtree St NW Ste 3900 Atlanta, GA 30309 [email protected]

Table Of Contents

Introduction ...... 1

1. Interlocutory Appeals...... 1

2. Entry of Final Judgment...... 3

3. Post-Trial Motion for New Trial and/or JNOV...... 4

4. Notice of Appeal ...... 7

5. Georgia Court of Appeals...... 9

6. Georgia Supreme Court ...... 12

Conclusion ...... 14

Introduction

This paper addresses some of the common issues presented by civil appeals in the

Georgia state court system. It is not meant to be exhaustive, nor does it address federal appeals.

1. Interlocutory Appeals.

The normal procedure is for a party to appeal from the entry of a final judgment, “that is

to say, where the case is no longer pending in the court below.”1 However, there are a number of

ways for a party to seek an interlocutory appeal, and so before discussing appeals from final

judgment, let’s discuss a few options for interlocutory appeal.

First, the trial judge may certify that an order, not otherwise subject to a direct appeal, “is

of such importance to the case that immediate review should be had.”2 This certification must be

made “within ten days of entry” of the order sought to be appealed.3 It is good practice,

therefore, to always discuss with your client the possibility that you may need to seek a

certificate of immediate review promptly and to have a form document for a motion for

certificate of immediate review ready when needed. If the trial judge grants the certificate, a

party has ten days from the certification to make an application for interlocutory appeal with the

Supreme Court or the Court of Appeals, depending on which court has subject matter jurisdiction. By statute, the application for interlocutory appeal must be decided within forty-five

days of the date the application was filed. If the application for interlocutory appeal is granted, a

party must file a notice of appeal with the trial court and the procedure from there is the same as

an appeal from a final judgment.

Second, in cases where there are multiple claims or multiple parties, the trial judge may

1 O.C.G.A. § 5-6-34 (a)(1). 2 O.C.G.A. § 5-6-34 (b). 3 Id.

pursuant to Rule 54 (b) “direct the entry of a final judgment as to one or more but fewer than all

of the claims or parties . . . upon an express determination that there is no just reason for delay

and upon an express direction for the entry of judgment.”4 Unlike a certificate of immediate

review, a certification of a final judgment is not subject to a ten-day deadline. A party can

request the trial court to certify a final judgment under Rule 54 (b) at any time (subject to the

trial judge’s discretion to consider delay as a factor in whether to deny a request for certification

under Rule 54 (b)). And unlike a certificate of immediate review, a certification of a final

judgment allows a party to appeal as a matter of right. However, the standard for Rule 54 (b)

certification is more stringent than the standard for certification of immediate review.

Third, “[a]n order granting summary judgment on any issue or as to any party shall be subject to review by appeal.”5 If the trial judge grants summary judgment on any issue or as to

any party, a party may file a notice of appeal with the trial court and the procedure from there is

the same as an appeal from a final judgment. However, a party is not required to appeal from a

summary judgment and can wait to appeal after a final judgment.6

Fourth, “[a] court’s order certifying a class or refusing to certify a class shall be

appealable in the same manner as a final order to the appellate court.”7 “Such appeal may only

be filed within 30 days of the order certifying or refusing to certify the class.”8 Because of the

“may only be filed” language, a party must appeal an order on class certification and cannot wait

to appeal after a final judgment.9

4 O.C.G.A. § 9-11-54 (b). 5 O.C.G.A. § 9-11-56 (h). 6 Willis v. City of Atlanta, 265 Ga. App. 640, 640-41 (2004). 7 O.C.G.A. § 9-11-23 (g). 8 Id. 9 Jones v. Forest Lake Vill. Homeowners Ass’n, 304 Ga. App. 495, 500 (2010) (“Thus, if Jones believed the order certifying the class was legally deficient, he had to file a separate appeal

2. Entry of Final Judgment.

If you receive a final judgment based an order on a motion to dismiss or motion for

summary judgment, the entry of final judgment is straightforward. However, there is a jury trial

and verdict, the process is a little more complicated. Once you have a jury verdict, the first thing

to do is move for entry of judgment. Rule 58 of the Civil Practice Act sets forth the requirements

for entry of judgment and make sure to follow those requirements when you prepare a proposed

judgment – including that “entry of the judgment shall not be made by the clerk of the court until the civil case disposition form is filed.”10

The judgment should include the jury’s award, subject to any required reductions.11 The

judgment should also include any other relief your client won. For example, if your client is

entitled to prejudgment interest under the Unliquidated Damages Act, such “[i]nterest shall be

made a part of the judgment.”12

The entry of judgment is important because, among other things, “[n]o execution shall

issue until judgment is entered and signed.”13 Indeed, Rule 62 of the Civil Practice Act requires

you to wait ten days before initiating “proceedings to enforce a judgment,” and this ten-day

period does not start until the entry of the judgment.14

The entry of judgment also starts the accrual of post-judgment interest. Georgia statute

provides that post-judgment interest “shall apply automatically,” but, as the name implies, post-

within 30 days after that order was entered; he could not wait until after entry of final judgment in the underlying case to raise such a challenge.”). 10 O.C.G.A. § 9-11-58 (b). 11 See, e.g., O.C.G.A. § 51-12-33 (a) (requiring “the judge [to] reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.”). 12 O.C.G.A. § 51-12-14 (d) (bolding added). 13 O.C.G.A. § 9-13-1. 14 O.C.G.A. § 9-11-62 (a).

judgment interest begins only when there is a “judgment[],” not a verdict.15 If there has been a

delay between the verdict and the entry of judgment, or you expect that there will be such delay,

request that the trial court enter judgment nunc pro tunc, effective as of the date of the jury’s

verdict.16 Otherwise, your client will not receive post-judgment interest during the delay.

The entry of judgment may also be a condition precedent to other rights a party may have. For example, under Georgia’s offer of settlement statute, where a plaintiff “recovers a final judgment in an amount greater than 125 percent of [an] offer of settlement, the plaintiff shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred … from the date of the rejection of the offer of settlement through the entry of judgment.”17 Conversely, “the

defendant shall be entitled to recover reasonable attorney’s fees and expenses of litigation

incurred … from the date of the rejection of the offer of settlement through the entry of

judgment if the final judgment is one of no liability or the final judgment obtained by the

plaintiff is less than 75 percent of such offer of settlement.”18

3. Post-Trial Motion for New Trial and/or JNOV.

Perhaps most important, the entry of judgment starts the thirty-day period for a party to

(a) move for new trial and/or JNOV or (b) file a notice of appeal.19

Let’s begin with a motion for new trial and/or JNOV. As an initial matter, a party is not

required to file a motion for new trial and/or JNOV. Instead, a party can appeal directly from the

15 O.C.G.A. § 7-4-12 (c) (bolding added). 16 See, e.g., Coleman v. Fortner, 260 Ga. App. 373, 377 (2003); Norman v. Ault, 287 Ga. 324 (2010). 17 O.C.G.A. § 9-11-68 (b)(2) (bolding added); see also O.C.G.A. § 9-11-68 (d)(1) (requiring “proof that the judgment is one to which the provisions of either paragraph (1) or paragraph (2) of subsection (b) of this Code section apply”). 18 O.C.G.A. § 9-11-68 (b)(1) (bolding added). 19 O.C.G.A. § 5-5-40 (a) (new trial); O.C.G.A. § 9-11-50 (b) (JNOV); O.C.G.A. § 5-6-38 (a) (notice of appeal) (all providing for thirty day deadlines from “entry of the judgment”).

entry of judgment.20 But, if the defendant chooses to file a motion for new trial and/or JNOV, the defendant must do so within thirty days of the entry of judgment.

In some cases, such as those where the trial is short and simple, this timeframe works fine. The trial court enters judgment on the verdict, the defendant moves for new trial and/or

JNOV within thirty days, and the trial court issues a decision shortly after that.

But, in many cases, this timeframe does not work because the trial transcript will not be completed within thirty days. To address this problem, Georgia statute provides the trial court with the discretion to wait until the trial transcript is completed and then hold a hearing and decide the motion. 21 The statute also authorizes a moving party to amend a motion any time before the trial court rules on the motion, which often results in the defendant first filing a perfunctory motion within the thirty-day deadline and then later filing a substantive brief after the transcript is completed.22

In this latter situation, where the trial is not very short and simple, you should consider a joint scheduling order. In most cases, the trial court will agree to defer decision until after the transcript is completed. Given that fact, it makes sense to reach agreement that, once the trial transcript is completed, the defendant will file an amended motion within thirty days (or some other fixed period of time), the plaintiff will respond within thirty days of the amended motion, and a hearing will be held shortly after that. Otherwise, without a scheduling order, there is tremendous uncertainty and opportunity for unfair tactics, with either side waiting until the last minute to file substantive briefs.

20 O.C.G.A. § 5-6-36 (“A motion for new trial need not be filed as a condition precedent to appeal[.]”); O.C.G.A. § 9-11-50 (b) (providing that “a party who has moved for a directed verdict may move [for JNOV]”). 21 O.C.G.A. § 5-5-40 (c). 22 O.C.G.A. § 5-5-40 (b).

As for the merits of post-trial motions, keep in mind that the trial court applies one legal standard for new trial and a different legal standard for JNOV. In deciding a motion for new trial, the trial judge “has the duty to exercise its discretion and weigh the evidence”23 and can grant a

new trial “even though there may appear to be some slight evidence in favor of the [verdict].”24

Also, the trial judge must decide the sufficiency of the evidence supporting the verdict, even if

the defendant did not move for directed verdict during the trial.25

Do not take this discretion lightly. Trial judges may decide the motion for new trial many

months after the trial and they may have second thoughts about various decisions made during the trial. Moreover, because trial judges exercises discretion and can weigh the evidence, if they

grant the motion for new trial, that ruling can be reversed only upon a showing of abuse of discretion. This is an extremely difficult showing to make.26

By contrast, in deciding a motion for JNOV, trial judges do not exercise discretion or weigh the evidence. Trial judges decide only whether “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.”27 Also, the trial court cannot grant a motion for JNOV unless the

defendant had moved for directed verdict during trial. 28

23 Walker v. State, 292 Ga. 262, 264 (2013) (italics added). 24 O.C.G.A. § 5-5-21 (italics added). 25 Cf. O.C.G.A. § 5-6-36 (a) (“The entry of judgment on a verdict by the trial court constitutes an adjudication by the trial court as to the sufficiency of the evidence to sustain the verdict[.]”); Aldworth Co. v. England, 281 Ga. 197, 199 (2006) (providing that the defendant may argue that “the evidence is insufficient to support a verdict even if the party failed to move for a directed verdict”). 26 O.C.G.A. § 5-5-50 (“The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.”) (italics added). 27 O.C.G.A. § 9-11-50 (a). 28 O.C.G.A. § 9-11-50 (b) (providing that “a party who has moved for a directed verdict may move” for JNOV); England, 281 Ga. at 199.

Pay close attention to the arguments made in the motion for JNOV as compared to the

arguments made in the motion for directed verdict. The trial court cannot consider grounds for

JNOV that were not made in the motion for directed verdict. Rule 50 of the Civil Practice Act

requires that the motion for JNOV be “in accordance with his motion for a directed verdict,” and

this requirement prohibits new grounds to be added after trial.29

4. Notice of Appeal

If a party moves for new trial and/or JNOV and the trial court denies the motion, the party must file a notice of appeal “within 30 days after the entry of the order” denying the motion. 30 If the party appeals directly from the entry of judgment, the defendant must file a

notice of appeal “within 30 days after entry of the appealable . . . judgment complained of.”31

After the party files a notice of appeal, another party may “cross appeal by filing notice thereof

within 15 days from service of the notice of appeal.”32

Think carefully about whether there are any rulings you want to cross appeal. You can

cross appeal “all errors or rulings adversely affecting” a party.33 It does not matter whether

those errors would be appealable on their own, nor does it matter if the error presents harm only

in the event of a new trial. 34

For example, let’s say that the trial court granted the defendant’s motion to exclude

29 O.C.G.A. § 9-11-50 (b); see, e.g., Adams v. Smith, 129 Ga. App. 850, 853-54 (1973) (refusing to consider an argument where “defendant seeks to enlarge on his motion for directed verdict, by adding that such recovery cannot be had merely upon proof of ‘carelessness’ by the defendant”). 30 O.C.G.A. § 5-6-38 (a). 31 Id. 32 Id. 33 Id. (italics added). 34 Sewell v. Cancel, 295 Ga. 235, 238 (2014) (“[T]his Court has held unequivocally that a properly filed cross-appeal will lie even as to an order that would not be directly appealable on its own.”); Monitronics Int’l, Inc. v. Veasley, 323 Ga. App. 126, 131 n.5 (2013) (“This ruling is the subject of Veasley’s conditional cross-appeal, which we need not address given the fact that we affirm the jury’s verdict.”).

certain evidence. Although you may have won the jury verdict without that evidence, you may still want it in the case in the event that the appellate court vacates the verdict because of an error in the jury instructions or some other error that results in a new trial. If you don’t present that issue on cross-appeal, you will likely be stuck with trial court’s prior ruling. Also, keep in mind that in Georgia courts, cross appeals are docketed as separate appeals with a separate set of briefs, which means that you can argue the cross appeal without having to sacrifice space for the defense of your jury verdict.35

If an appellant designates the trial transcript as part of the record on appeal, the appellant

“shall cause it to be filed within 30 days after filing of the notice of appeal.”36 In cases where

the appellant appeals directly from the entry of judgment, the trial transcript often will not be

completed within thirty days. To address this problem, Georgia statute provides the trial court

with the discretion to “grant extensions of time” for the filing of the transcript.37

Even where the transcript has already been prepared and filed at the time the appellant

files a notice of appeal, the clerk of the trial court will still need time to prepare the record. The

amount of time it takes for the clerk to prepare a record varies greatly, and there have been many

instances of long delays.38 Regardless, this is a good time to make sure that the trial court docket is complete and accurate. Make sure that all trial exhibits, proposed jury charges, and other materials that may have been overlooked during the course of a trial are properly filed. Although you can move in the appellate court to supplement the trial court record, it is better have a

35 Ga. Ct. App. R. 24 (a); cf. Ga. Ct. App. R. 28 (d) (treating main appeal and cross appeal as one case for oral argument). 36 O.C.G.A. § 5-6-42. 37 O.C.G.A. § 5-6-39 (a). 38 See, e.g., The Daily Report, “After Threat of Contempt, Fulton Clerk Delivers Records,” August 1, 2014 (“The records process is a massive undertaking, and the Fulton County court is the busiest in the state[.]”).

complete and accurate record from the start.39

Once all transcripts have been filed and the clerk of the trial court has finished preparing

the record, the clerk will send a final bill to the appellant. The appellant will pay the bill, unless there is a cross-appeal, in which case there may be some division of costs, and the clerk will then transmit the record to the appellate court.

5. Georgia Court of Appeals

The vast majority of appeals from a jury verdict go to the Georgia Court of Appeals.

Only an enumerated set of appeals go to the Georgia Supreme Court.40

It takes some time for the Court of Appeals to docket the appeal once it receives the record from the clerk of the trial court. But it is usually no more than a few weeks. Once the

Court of Appeals dockets the case, you will receive a “Notice of Docketing.” This is a very important document, which provides the schedule for briefing, the deadline for decision, and the identity of the judges who will decide your appeal.

Scheduling for Briefing. The appellant will have twenty days from the date of the docketing notice to file the initial brief of 8,400 words and a separate request for oral argument.41

The brief and request for oral argument are separate filings and so are the deadlines, which means that extension of one deadline does not extend the other.42 The appellee has twenty days

after the filing of the initial brief to file a response brief of 8,400 words.43 And the appellant has

39 Ga. Ct. App. R. 41 (c). 40 Ga. Const. Art. VI, § VI, ¶¶ 2-3 (providing exclusive jurisdiction for constitutional, title to land, equity, will, habeas corpus, extraordinary remedies, divorce and alimony, certified cases, and death penalty cases). 41 Ga. Ct. App. R. 23 (a). 42 Ga. Ct. App. R. 28 (a)(2). 43 Ga. Ct. App. R. 23 (b).

twenty days after the filing of the response brief to file a reply brief of 4,200 words.44 If the

Court grants oral argument, the argument before a three-judge panel will generally be scheduled

for two to four months later and each side has fifteen minutes.45 In some situations, the Court

will grant leave to file supplemental briefs either during or shortly after the oral argument.46

Deadline for Decision. The Court of Appeals has three terms: the December/Winter

term, which begins “the first Monday in December” and “shall end on March 31”; the April

term, which begins “the first Monday in April” and “shall end on July 17”; and the August term,

which begins “the first Monday in August” and “shall end on November 18.”47 The exact dates

for any given year are posted on the Court of Appeals website. The Georgia Constitution requires

the Court of Appeals to decide cases “at the term for which it is entered on the court’s docket for

hearing or at the next term.”48 This requirement is known as the two-term rule, and because of

this rule, you can calculate the exact deadline for an opinion in your appeal.

There are two steps to calculating the deadline. First, figure out which term your appeal is

entered on the court’s docket for hearing. This information should be in the docketing notice in

the fifth paragraph labeled “Oral Argument.” It will say something to the effect of, “[i]f oral

argument is requested and granted by this Court, the argument is tentatively scheduled for

[Month Date Year].” This information should also be on the Court of Appeals online docket at

http://www.gaappeals.us/docket/ under the label “Term.” It doesn’t matter if neither side requests

oral argument, nor does it matter if the Court denies a request for oral argument. The date your appeal is scheduled for oral argument remains the date your appeal “is entered on the court’s

44 Ga. Ct. App. R. 23 (c). 45 Ga. Ct. App. R. 28 (d). 46 A party may also move for leave to file a supplemental brief. Ga. Ct. App. R. 27. 47 O.C.G.A. § 15-2-4 (setting the terms for the Supreme Court); O.C.G.A. § 15-3-2 (providing that the “terms of the Court of Appeals shall be the same as the terms of the Supreme Court”). 48 Ga. Const. Art. VI, § IX, ¶ 2

docket for hearing,” regardless of whether an oral argument is held.49

Second, find out what is the last “working day” of the next term. Although the

Constitution gives the Court of Appeals until the end of the next term to decide a case, Georgia

statute provides that “[n]o judgment in a second-term case, other than a judgment on a motion for reconsideration in such case, shall be rendered during the last 15 days of any term.”50 In other

words, the exact deadline for an opinion in your appeal is 15 days before the end of the second

term, not the actual end of the second term.

Here is a hypothetical example that puts all of this together. Let’s say you received a

docketing notice on July 14, 2016, which states that, “[i]f oral argument is requested and granted by this Court, the argument is tentatively scheduled for Oct 26, 2016.” Based on this information, your appeal is entered on the court’s docket for hearing during the August 2016 term, and the last working day of the next term – the December 2017 term – is March 16, 2017.

Thus, the exact deadline for an opinion in your appeal is March 16, 2017, and the deadline for a final decision is March 31, 2017.

The Identity of the Judges. The docketing notice will provide you with the identity of the three-judge panel who will hear your appeal. This information should be in same sentence as the oral argument date. It will say something to the effect of, “[i]f oral argument is requested and granted by this Court, the argument is tentatively scheduled for [Month Date Year] before the

[First, Second, Third, Fourth, or Fifth] Division: P.J., [Last Name], J., [Last Name], J. [Last

Name].” These three judges will hear your appeal, and one of these judges will have randomly assigned to write the opinion as soon as the appeal is docketed.

49 Id.; see also Smith v. Branch, 226 Ga. App. 626, 630-31 (1997) (“[T]he case was placed on the docket ‘for hearing’ in the January term, and the fact that it was not ‘heard’ orally does not mean it was not ‘heard.’”). 50 O.C.G.A. § 15-2-4 (c).

In the past, if any one of the three judges disagreed with the judgment line of the proposed opinion, the appeal would be heard by a seven-judge panel. For a short period of time in 2016, the rule changed and was that if any judge disagreed with the judgment line of the proposed opinion, the appeal would be heard by a nine-judge panel. That is no longer the rule:

The Court will allow 2-1 decisions in the event of a dissent, without requiring two additional divisions of the Court to participate. A 2-1 decision will constitute physical precedent only and be of no precedential value. See Court of Appeals Rule 33. The Court will establish operating procedures to poll the entire Court to determine whether the Court desires to hear the case en banc in the event precedent is proposed to be overruled or a judge wishes to have the entire Court consider a case en banc. The Court is also considering procedures by which a party may request a rehearing en banc, consistent with the two-term rule. 51

* * *

Once you receive a decision, a party has ten days to file a motion for reconsideration, and it must be received by the Court of Appeals by 4:30 P.M. on the tenth day. 52 And under certain circumstances, the Court may pass a special order shortening that period even further.53

6. Georgia Supreme Court

A party can seek a writ of certiorari from the Georgia Supreme Court, regardless of whether the party first files a motion for reconsideration in the Court of Appeals. If a party does file a motion for reconsideration, the deadlines start from the date the Court of Appeals decides the motion for reconsideration. If a party does not file a motion for reconsideration, the deadlines start from the date the Court of Appeals issued its opinion.

There are three separate steps a party must take to seek certiorari to the Supreme Court.

First, the party must file a notice in the Court of Appeals stating that the party intends to seek

51 http://www.gaappeals.us/news2.php?title= Court%20of%20Appeals%20New%20Operating%20Procedures (bolding added) 52 Ga. Ct. App. R. 37 (b). 53 Ga. Ct. App. R. 37 (c).

certiorari.54 This notice must be filed within ten days, and it should be filed only with the Court

of Appeals.55 Second, the party must file a petition for certiorari in the Supreme Court

explaining why a writ should be granted.56 This petition must be filed within twenty days, and it

should be filed only with the Supreme Court.57 Third, the party must file a notice in the Court of

Appeals stating that the party has filed a petition for certiorari in the Supreme Court.58 This

notice must be filed at the same time that the actual petition is filed.59

A party has twenty days to respond to a petition for certiorari.60 The failure to respond is

an admission by a party that “the requirements of the rules for the granting of the petition for

certiorari have been met, provided, however, that such acknowledgment shall not be binding on

the Court.”61 There is no deadline for the Supreme Court to decide a petition for certiorari, but

the Court does decide petitions on a somewhat regular schedule. The Supreme Court website has

a “Granted and Denied Petitions” page, and by looking at the case numbers on this page, you can

get a rough sense of how far away your petition is from being decided.62 The Supreme Court generally releases decisions on petitions every other Monday. 63

If the Supreme Court grants a petition for certiorari, it will issue an order that specifies

the precise question it has granted certiorari to decide and this same order will identify which

“oral argument calendar” the case has been assigned to. In appeals that are heard by certiorari,

54 Ga. Ct. App. R. 38 (a); Ga. Sup. Ct. R. 38 (1). 55 Ga. Ct. App. R. 38 (a). 56 Id.; Ga. Sup. Ct. R. 38 (2). 57 Ga. Sup. Ct. R. 38 (2). 58 Ga. Ct. App. R. 38 (a)(2). 59 Id. 60 Ga. Sup. Ct. R. 42. 61 Id. 62 See, e.g., http://www.gasupreme.us/granted_apps/sc_dcmain15.php. 63 See, e.g., id. (showing decisions on petitions released on July 1, 2019, August 5, 2019, And August 19, 2019).

oral argument is mandatory.64

The appellant has twenty days from the date of docketing to file the initial brief. 65 The

appellee then has twenty days after the filing of the initial brief to file a response.66 The

Supreme Court rules do not expressly provide for reply briefs, but they do provide for

“supplemental briefs,” and it is common practice for parties to file supplemental briefs without

leave.67 As for the deadline for decision, the Supreme Court is subject to the same two-term rule as the Court of Appeals. And as for the identity of the justices, the Supreme Court hears all cases by a full nine-justice panel.

Conclusion

Without question, the hardest and most important thing you can do for your client is to

win in the trial court. Nothing you can do on appeal can fix a failure to persuade a judge or jury

that your client should win. However, it is important not to lose sight of the fact that you are not

finished once you win or lose in the trial court. There is more to do, and the appellate courts

apply their rules more technically than trial courts and, most importantly, they are focused more

on the law than trial courts.

64 Ga. Sup. Ct. R. 50 (2). 65 Ga. Sup. Ct. R. 10. 66 Id. 67 Ga. Sup. Ct. R. 24 (“Supplemental briefs may be filed at any time before decision. Any such briefs which serve only to circumvent the page limits set forth in Rule 20 will not be considered.”).

APPELLATE JURISDICTION & PROCEDURE

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An Overview of Georgia Appellate Jurisdiction

Leland H. Kynes

Kynes Law, LLC Atlanta, GA www.kyneslaw.com [email protected] I. AVENUES TO APPELLATE JURISDICTION

A. DIRECT APPEALS

Direct Appeals are permitted from most final judgments (except those excluded

by O.C.G.A. § 5-6-35(a)), and from a limited number of non-final judgments set out in

O.C.G.A. § 5-6-34(a). In a direct appeal, a party may appeal or cross-appeal any other judgment, ruling, or order in the case that may affect the proceedings below, even if not otherwise directly appealable. Direct appeals are initiated by filing a notice of appeal within 30 days after entry of the decision or judgment appealed from, or within 30 days after an order granting or denying a motion for a new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict.

1. Direct Appeals from Final Judgments

O.C.G.A. § 5-6-34(a)(1) provides for direct appeals to the Supreme Court or the

Court of Appeals from all final judgments (except those final judgments enumerated in

O.C.G.A. § 5-6-35 that must be pursued as applications). A judgment or order is “final”

when there is no aspect of the case pending in the lower court.

2. Direct Appeals from Non-Final Orders and Judgments

A limited number of non-final judgments or orders also are directly appealable.

These orders and judgments, most of which are enumerated in O.C.G.A. § 5-6-34(a),

include, among others:

• All judgments or orders directing that an accounting be had;

• All judgments or orders granting or refusing applications for receivers or for

interlocutory or final injunctions;

• All judgments or orders granting or refusing applications for attachment

against fraudulent debtors;

• All judgments or orders granting or refusing to grant mandamus or any other

extraordinary remedy, except with respect to temporary restraining orders;

• All judgments or orders refusing applications for dissolution of corporations

created by the superior courts;

• All judgments or orders sustaining motions to dismiss a caveat to the probate

of a will;

• All judgments or orders in child custody cases.

3. Motions for Summary Judgment

O.C.G.A. § 9-11-56(h) allows an immediate direct appeal whenever a motion for summary judgment is granted, even in part. The party against whom a motion for

summary judgment is granted as to fewer than all of the issues or all of the parties in a

case has the option of seeking an immediate direct appeal pursuant to O.C.G.A. § 9-11-

56(h), or of waiting until final judgment to directly appeal, but may not do both.

B. APPLICATIONS FOR DISCRETIONARY APPEAL

Under O.C.G.A. § 5-6-35, the following final judgments are not directly

appealable and require an application for review:

• appeals from judgments of the superior courts reviewing decisions of the state

board of workers’ compensation, the state board of education, auditors, state

and local administrative agencies, and lower courts by certiorari or de novo

proceedings;

• appeals from judgments or orders in divorce, alimony, child custody, and

other domestic relations cases;

• dispossessory or distress warrant cases where the only issue is the amount of

rent due and the amount is $2,500 or less;

• cases involving garnishment or attachment except those involving

applications for attachment against fraudulent debtors;

• revocations of probation;

• Actions for damages where judgment is $10,000 or less;

• denials of extraordinary motions for new trials, unless taken as part of a direct

appeal;

• orders under O.C.G.A. § 9-11-60 (d) or (e) denying a motion to set aside a

judgment;

• appeals from orders granting or denying temporary restraining orders;

• awards of attorneys’ fees or expenses of litigation under § 9-15-14;

• appeals from decisions of state courts reviewing decisions of magistrate courts

de novo so long as the decision is not otherwise subject to a right of direct

appeals

• appeals from orders terminating parental rights

The application required is a petition enumerating the errors to be urged on appeal, stating why the appellate court has jurisdiction, and specifying the order or judgment being appealed. The application must include as exhibits copies of the order being appealed, the petition or motion that led directly to the order, and any responses to the petition or motion. The application may also include copies of other parts of the record as the applicant deems appropriate. Court of Appeals Rule 31 requires that all material submitted be indexed and properly labeled.

The appellant has the burden of showing error from the material submitted and

presenting the necessary portions of the record to the court. The application may be

denied if the material submitted is not sufficient for review by the court. The

application must be fi led with the clerk of the appellate court within 30 days of the

entry of the order appealed from. A party opposing the application must file a response

within 10 days from the date the application is filed. The appellate court must then issue an order granting or denying the appeal within 30 days of its filing. If the court grants

the application, the applicant must file a notice of appeal within 10 days of the issuance

of the order granting the application.

C. INTERLOCUTORY APPEALS

If a judgment or order is not final and is not covered by O.C.G.A. § 5-6-34(a), the appellant must seek and receive a certificate of immediate review from the trial court before filing an application for interlocutory appeal. The trial judge must certify, within

10 days of the entry of the order, whether the order or ruling is of such importance to the case that immediate review should be had. If the trial judge issues the certificate, the appellant must file an application for interlocutory review with the appellate court within 10 days of its issuance. The opposing party has 10 days from the date the application is filed to file a response. The appellate court will then decide whether to allow an appeal. Failure to follow this procedure will lead to a dismissal of the appeal.

D. CERTIORARI

Article VI, § VI, Paragraph V, of the Georgia Constitution provides: “The Supreme

Court may review by certiorari cases in the Court of Appeals which are of gravity or great public importance.” Because this constitutional provision “places no limit on this

Court's certiorari jurisdiction,” the Supreme Court has held that it possesses

“jurisdiction to review any decision of the court of appeals by certiorari so long as the

case presents an issue of great concern, gravity, and importance to the public.” State v.

Tyson, 273 Ga. 690, 692 (2001); see also O.C.G.A. § 5-6-15 (“The writ of certiorari shall lie from the Supreme Court to the Court of Appeals as provided by Article VI, Section VI,

Paragraph V of the Constitution of this state.”). Furthermore, “[i]t is [the Supreme]

Court’s prerogative to prescribe rules regarding certiorari. Indeed, the only rules of procedure for reviewing a decision of the Court of Appeals by the writ of certiorari are

Rules 38 through 45 of” the Supreme Court. In re Stroh, 272 Ga. 894, 895 (2000).

II. WHICH COURT?: THE APPELLATE JURISDICTION REFORM ACT OF 20161

In 2016, the Georgia General Assembly passed the Appellate Jurisdiction Reform

Act of 2016, significantly altering the jurisdictional structure of the Georgia Supreme

Court and Court of Appeals. The Act marked a significant change in the courts’

jurisdiction, make-up, and procedure. As such, it provides a good lens through which to

view the division of labor between Georgia’s appellate courts.

A. JURISDICTIONAL SHIFT TO THE COURT OF APPEALS

Under Article VI, Section VI, Paragraph III of the Georgia Constitution, the

Supreme Court is provided with jurisdiction over the following cases:

• Cases involving title to land

• All equity cases

• All cases involving wills

• All habeas corpus cases

1 This section is adapted in part, with permission, from The Appellate Jurisdiction Reform Act of 2016 by John Hadden.

• All cases involving extraordinary remedies

• All divorce and alimony cases

• All cases certified to it by the Court of Appeals

• All cases in which a sentence of death was imposed or could be imposed

The Georgia Constitution provides, however, that jurisdiction in such cases may be changed by legislation. The 2016 Act does just that. Under O.C.G.A. § 15-3-3.1 (Section

3-1 of the Act), the Court of Appeals now has jurisdiction over:

• Cases involving title to land

• All equity cases, except those cases concerning proceedings in which a

sentence of death was imposed or could be imposed and those cases

concerning the execution of a sentence of death

• All cases involving wills

• All cases involving extraordinary remedies, except those cases concerning

proceedings in which a sentence of death was imposed or could be imposed

and those cases concerning the execution of a sentence of death

• All divorce and alimony cases

• All other cases not reserved to the Supreme Court or conferred on other

courts

Thus, the Court of Appeals is now the first appellate stop for many cases previously reserved to the Supreme Court. The Supreme Court retains exclusive jurisdiction over criminal, equity, and extraordinary remedies cases in which death was, or could have been, imposed, as well as habeas corpus matters. It also retains the exclusive jurisdiction over election contests and “[a]ll cases involving the construction of

6 a treaty or of the Constitution of the State of Georgia or of the United States and all cases in which the constitutionality of a law, ordinance, or constitutional provision has been drawn in question.”

It should be noted that the jurisdictional shift does not otherwise affect the appellate procedures required for filing an appeal. Therefore, the provisions of O.C.G.A.

§ 5-6-34, for interlocutory appeals, and O.C.G.A. § 5-6-35, for discretionary applications, must still be considered. The Supreme Court retains the jurisdiction to consider writs of certiorari to review cases previously under its exclusive jurisdiction once those cases are ruled upon by the Court of Appeals.

B. ADDITIONAL SUPREME COURT JUSTICES, AND NEW COURT OF APPEALS JUDGES

The Act amended O.C.G.A. § 15-2-1.1 to increase the number of justices on the

Supreme Court from seven to nine. The Georgia Constitution (Article VI, Section VI,

Paragraph I) provides for a Supreme Court of “not more than nine justices,” and therefore this expansion could be accomplished legislatively without a constitutional amendment. The Act also added three judges to the Georgia Court of Appeals, increasing the number from 12 to 15. Now, the Georgia Court of Appeals operates with five panels of three judges each.

C. CHANGES TO TERMS OF COURT AND RULES FOR DECISIONS

Through the end of 2016, the Supreme Court operated on January, April, and

September terms, with the January and September terms beginning on the first Monday of those months, and the April term beginning on the third Monday of April. See

O.C.G.A. § 15-2-4. The Court of Appeals adopted the same terms as the Supreme Court under O.C.G.A. § 15-3-2. As amended by the Act, the appellate courts now operate on

December, April, and August terms, with each term beginning on the first Monday of

the respective month. This amendment was effective with the December term that

began December 5, 2016. The prior provisions requiring second-term cases to be

decided before the final 15 days of a term remain in effect, as does the Constitutional

“two-term” rule, requiring all cases to be decided no later than the end of the term

following the term into which the case was docketed.

Finally, the Act eliminated the statutory rules for the Court of Appeals governing

the method by which cases are heard by more than one division and the effect of such

judgments. See O.C.G.A. § 15-3-1. Previously, the statute established the situations in

which cases were to be heard by multiple panels or the whole court, as well as the

requirements for overruling precedent.2 Such matters are now generally left to the Court

of Appeals to govern under its own rules, although the statute provides that a quorum of

nine judges is necessary in any case decided by more than one panel, with two judges

required for single-division cases. This provision became effective July 1, 2016,

following the addition of the three new Court of Appeals judges on January 1, 2016.

In response, the Court of Appeals changed their rules and operating procedures

to allow for dissents without the case going to the “whole court”.3 Cases with dissents

are now deemed “physical precedent only” under Court of Appeals Rule 33.2, along with

any decisions of 3 judge panels in which all the judges do not concur fully in the

2See OCGA 15-3-1(c) (2015) (providing that, in the event of a dissent, "the division next in line in rotation and a seventh Judge shall participate"); OCGA 15-3-1(d) (2015) (providing that certain precedents may be overruled with the participation of two divisions plus a seventh Judge, while overruling other precedents required "the concurrence of all the Judges"). 3https://www.gaappeals.us/news2.php?title=Court%20of%20Appeals%20New%20Operating%20Proced ures

decision. 4 The provision for 9-judge or 7-judge panels has been eliminated, and therefore all decisions are now ruled upon by either a 3-judge panel or by an en banc decision of the entire 15-judge court (subject to any judges who recuse or are otherwise disqualified from ruling on a particular case). Where an en banc decision includes

dissents or concurrences in judgment only or specially, the case is physical precedent

only as to any issue in which a majority of judges deciding the case to not fully concur in

the decision.

4https://www.gaappeals.us/rules2/dec42017summary.php

COURT OF APPEALS PRACTICE

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Georgia Court of Appeals Practice

“Open Chambers Revisited” contributed by Judge Stephen Louis A. Dillard, Georgia Court of Appeals

Special Contribution

Open Chambers Revisited: Demystifying the Inner Workings and Culture of the Georgia Court of Appeals

by Stephen Louis A. Dillard*

I was sitting in my cluttered but comfortable office, preparing for what would ultimately be my last hearing as a lawyer, when the phone rang. On the other end of the line was Governor Sonny Perdue’s executive assistant: “Mr. Dillard, do you have time to speak with the governor?” I did, of course. And less than two weeks after that brief but life-changing conversation with Governor Perdue, I was one of Georgia’s two newly- appointed appellate judges (and the seventy-third judge to serve on the court of appeals since 1906).1

* Vice Chief and Presiding Judge, Georgia Court of Appeals. Samford University (B.A., 1992); Mississippi College School of Law (J.D., cum laude, 1996). Member, State Bar of Georgia. I am grateful to my friends and colleagues Justice Keith Blackwell, Chief Judge Sara Doyle, and Judges Michael Boggs, Lisa Branch, Christopher McFadden, Carla McMillian, Billy Ray, and Nels Peterson for their thoughtful comments on earlier drafts of this essay. I am also indebted to my staff attorneys, P. Robert Elzey, Mary C. Davis, and Tiffany D. Gardner, as well as Michael B. Terry and Benjamin R. Dinges, for their invaluable feedback and helpful suggestions. I also offer my sincere gratitude to Lydia Cook, my administrative assistant, for her encouragement and support throughout this process and for everything she does to make my chambers run as smoothly as possible. Finally, I am eternally grateful for the patience and loving support of my wife (Krista) and children (Jackson, Lindley, and Mary Margaret) in this endeavor, as well as in everything I do in my capacity as a judge. 1. The other judge appointed that day was my dear friend and colleague, Justice Keith R. Blackwell, who was later appointed by Governor Nathan Deal to the Georgia Supreme

1 2 MERCER LAW REVIEW [Vol. 68

Over six years have passed now, and during that time a great deal has changed at the court of appeals. Indeed, after spending less than two months as the junior judge, five additional judges were either elected or appointed to the court in just over two years.2 Then, in April 2015, the Georgia General Assembly enacted legislation (House Bill 279)3 expanding the court of appeals from twelve to fifteen judges (as of January 1, 2016),4 which Governor Deal signed into law just a few weeks later.5 In other words, more than half of the court of appeals turned over in a very short period of time; and this has undeniably impacted the nature and personality of the court in a number of ways. But one constant remains: Much of what we do as appellate judges on the court of appeals is shrouded in mystery. I am not entirely certain why this is the case. It could be that (until recently) the culture of the court over the years has been for the judges to be fairly tight-lipped about our internal operating procedures. It may also have something to do with the practice of Geor- gia’s appellate courts hiring permanent staff attorneys. Thus, unlike the federal judiciary, we do not send a wave of law clerks out into the work- force every year with “insider knowledge.” But regardless of the reasons for its enigmatic character, my hope is that this Article will continue the process of demystifying some of the inner workings of Georgia’s intermediate appellate court. This Article, then, is distinctly personal in nature. Suffice it to say, my perspective of the internal operations of the court of appeals is just that: mine and mine alone. And while I am certainly hopeful that the insights and observations I offer prove to be of some use to the bench and bar, they should in no way be understood as being universally accepted or endorsed by my distinguished colleagues. The reader should also understand that this Article is not intended to be academic or comprehensive

Court on June 25, 2012. GEORGIA SUPREME COURT, http://www.gasupreme .us/court-information/biographies/justice-keith-r-blackwell/ (last visited Sept. 9, 2016). 2. Judge Christopher J. McFadden was elected to the Georgia Court of Appeals in November 2010 for a term beginning on January 1, 2011. Governor Nathan Deal then appointed Judge Michael P. Boggs (Jan. 6, 2012), Judge William M. Ray (July 30, 2012), Judge Elizabeth “Lisa” L. Branch (Sept. 4, 2012), and Judge Carla Wong McMillian (Jan. 24, 2013) to the court of appeals. See generally GEORGIA COURT OF APPEALS, http://www. gaappeals.us (last visited Sept. 28, 2016). 3. Ga. H.R. Bill 279, Reg. Sess., 2015 Ga. Laws 919. 4. Governor Nathan Deal appointed Judges Brian M. Rickman, Amanda H. Mercier, and Nels S.D. Peterson to the court of appeals in order to fill the vacancies created by House Bill 279 (effective Jan. 1, 2016). See generally GEORGIA COURT OF APPEALS, http://www. gaappeals.us (last visited Sept. 28, 2016). 5. See Clark v. Deal, 298 Ga. 893, 893, 785 S.E.2d 524, 525 (2016) (upholding the legality of Governor Deal’s appointments). 2016] OPEN CHAMBERS REVISITED 3 in nature. It is meant to give practical advice to lawyers who regularly appear before the court of appeals on unique aspects of the court’s internal operations, or, at the very least, provide practitioners with a useful perspective on certain practices from the viewpoint of a sitting appellate judge.

I. THE COURT OF APPEALS CASELOAD, THE TWO-TERM RULE, AND “DISTRESS” It has been said before, but it bears repeating: The Georgia Court of Appeals is one of the busiest intermediate appellate courts in the United States,6 and the court’s considerable caseload7 is only exacerbated by the two-term rule mandated by the Georgia Constitution, which requires that “[t]he Supreme Court and the Court of Appeals shall dispose of every case at the term for which it is entered on the court’s docket for hearing or at the next term.”8 This constitutional rule “imposes strict and (almost) immutable deadlines upon the merits decisions of [Georgia’s appellate courts],”9 and the draconian remedy for the failure to abide by this rule is “the affirmance of the lower court’s judgment by operation of law”10 (something that has never occurred in the history of Georgia’s appellate courts). It should come as no surprise, then, that many of the court’s operations are reflected to some degree by the pressure placed upon the

6. See CHRISTOPHER J. MCFADDEN ET AL., GEORGIA APPELLATE PRACTICE WITH FORMS 25-26 (2013-14) (“The record makes clear that both Georgia appellate courts regularly remain in the top four state supreme and intermediate appellate courts in opinion load. . . .”); MICHAEL B. TERRY, GEORGIA APPEALS: PRACTICE AND PROCEDURE WITH FORMS 12 (2016) (“The Court of Appeals of Georgia has been for years and remains the busiest intermediate appellate court in the country, with more cases per judge than any other.”); J.D. SMITH, HOW TO WIN/LOSE YOUR CASE IN THE GEORGIA COURT OF APPEALS: KNOWING HOW THE COURT DOES ITS WORK CAN MAKE THE DIFFERENCE 4 (11th Annual General Practice & Trial Institute, Mar. 15-17, 2012) (noting that the court of appeals caseload, “by many measures, is the largest of any appellate court in the country, and in terms of published opinions per judge, it is unquestionably the largest”). And while the addition of three new judges to the court of appeals in January 2016 has undoubtedly provided some degree of relief, the court continues to be one of the busiest intermediate appellate courts in the nation. Moreover, as discussed in greater detail infra, recently enacted legislation has shifted the jurisdiction of several categories of cases from the Georgia Supreme Court to the Geor- gia Court of Appeals, which will increase the workload of the court of appeals significantly. 7. In 2014, each of the court of appeals (then) twelve judges handled 263 filings, the bulk of which were direct appeals. See COURT OF APPEALS OF GEORGIA, http://www.gaapp eals.us/stats/index.php (last visited Sept. 9, 2016). 8. GA. CONST. art. VI, § 9, para. 2. 9. See TERRY, GEORGIA APPEALS, supra note 6, at 33. 10. In re Singh, 276 Ga. 288, 290 n.3, 576 S.E.2d 899, 901 n.3 (2003). 4 MERCER LAW REVIEW [Vol. 68 judges and staff by an extremely large caseload and the two-term rule.11 For example: ● Unlike many appellate courts, the court of appeals randomly and immediately assigns each case docketed to a judge for the purpose of authoring the opinion. ● There is currently no formal conferencing between the judges,12 regardless of whether a case is scheduled for oral argument. ● Oral argument is entirely discretionary,13 is only granted in about one-third of the cases in which it is actually requested by the parties, will rarely be rescheduled due to personal or professional conflicts,14 and is not permitted for “applications or motions.”15 ● There are strict time limits for oral argument, strict page limits for appellate briefs,16 and strict deadlines for filing motions for reconsideration, interlocutory applications and responses, and responses to discretionary applications.17

11. Michael B. Terry, Historical Antecedents of Challenges Facing the Georgia Appel- late Courts, 30 GA. ST. U. L. REV. 965, 976 (2014) (“This constitutional rule imposes strict deadlines on the merits decisions of the Georgia Supreme Court and Court of Appeals . . . That the Georgia appellate courts continue to function given the caseload and diminished resources is amazing. That they always meet the constitutional imperative of the Two-Term Rule is even more so.”). 12. There is, however, a considerable amount of informal conferencing that goes on between the judges. See ALSTON & BIRD, LLP, GEORGIA APPELLATE PRACTICE HANDBOOK 147 (7th ed. 2012) (“Unlike the Supreme Court, the Court of Appeals does not hold regular decisional bancs. Informal bancs do occur, however.”). 13. See CT. APPEALS R. 28(a)(1) (“Unless expressly ordered by the Court, oral argument is never mandatory and argument may be submitted by briefs only.”). 14. See CT. APPEALS R. 28(c) (“Postponements of oral argument are not favored, and no postponement shall be granted under any circumstances that would allow oral argument to take place during a term of the Court subsequent to the term for which the case was docketed.”). 15. CT. APPEALS R. 28(a)(1); see also CT. APPEALS R. 37(h) (disallowing oral argument on motions for reconsideration); CT. APPEALS R. 44(c) (disallowing oral argument on motions to recuse). 16. See CT. APPEALS R. 24(f) (“Briefs and responsive briefs shall be limited to 30 pages in civil cases and 50 pages in criminal cases except upon written motion filed with the Clerk and approved by the Court. Appellant’s reply brief shall be limited to 15 pages. . . .”). 17. See CT. APPEALS R. 4(e) (“Motions for Reconsideration that are received via e-filing or in hard copy after close of business (4:30 p.m.) will be deemed received on the next business day.”); CT. APPEALS R. 16(a) (“Requests for extensions of time to file discretionary applications must be directed to this Court and should be filed pursuant to Rule 40 (b). All extensions shall be by written order, and no oral extension shall be recognized.”); CT. APPEALS R. 16(c) (“No extension of time shall be granted to file an interlocutory application or a response thereto. An extension of time may be granted . . . to file a discretionary application, but no extension of time may be granted for filing a response to such application.”); CT. APPEALS R. 32(a) (“An application for interlocutory appeal shall be filed in this Court 2016] OPEN CHAMBERS REVISITED 5

● The court frequently remands a case when there has been a significant delay in transmitting the transcript or some other part of the appellate record.18 ● The court is often unable to hold or delay consideration of a case involving an issue under consideration by the Georgia Supreme Court or the United States Supreme Court.19 ● The court is often unable to give multiple extensions of time to file an appellate brief. ● The court is often unable to hold a case when there are ongoing mediation or settlement efforts.20 ● Cases that are ultimately considered by a nine-judge or fifteen-judge “whole court” (discussed infra) are not re-briefed or re-argued, and the parties are not informed that their case has moved beyond the consideration of the initial three-judge panel until the court’s opinion is published.

within 10 days of the entry of the trial court’s order granting the certificate for immediate review. . . .”); CT. APPEALS R. 32(b) (“An application for discretionary appeal shall be filed in this Court generally within 30 days of the date of the entry of the trial court’s order being appealed. . . .”); CT. APPEALS R. 37(b) (“Motions for reconsideration shall be filed within 10 days from the rendition of the judgment or dismissal . . . No extension of time shall be granted except for providential cause on written motion made before the expiration of 10 days. No response to a motion for reconsideration is required, but any party wishing to respond must do so expeditiously.”); CT. APPEALS R. 37(d) (“No party shall file a second motion for reconsideration unless permitted by order of the Court. The filing of a motion for permission to file a second motion for reconsideration does not toll the 10 days for filing a notice of intent to apply for certiorari with the Supreme Court of Georgia.”). 18. See CT. APPEALS R. 11(d) (“Any case docketed prior to the entire record coming to the Court, as requested by the parties, may be remanded to the trial court until such time as the record is so prepared and delivered to the Court.”); cf. Rodriguez v. State, 321 Ga. App. 619, 627, 746 S.E.2d 366, 372 (2013) (Dillard, J., dissenting) (noting that “our constitutional duty to resolve this appeal today—and thus within two terms of docketing—places time constraints upon the reconsideration of this case that also warrant vacating and remanding to the trial court.”). 19. But see In the Interest of J.F., 338 Ga. App. 15, 20, 789 S.E.2d 274 (2016) (certifying question and case to the Georgia Supreme Court under Georgia Constitution article VI, § V, ¶ IV and Georgia Constitution article VI, § VI, ¶ III (7)). 20. See TERRY, GEORGIA APPEALS, supra note 6, at 36-37 (“Another example of the courts ‘working around’ the Two Term Rule involves settlements reached during the appeal of cases of types requiring trial court approval of any settlement. This would include, for example, cases where one party is a minor, cases involving estates, and class actions. If a settlement requiring trial court approval is reached while the case is pending in the appellate court, the court generally will not stay the appeal to await trial court approval. . . . The appellate court may, however, dismiss the appeal with leave to re-appeal if the trial court fails to approve the settlement.”). 6 MERCER LAW REVIEW [Vol. 68

● During the final month of a term (which, as explained infra, the court refers to internally as “Distress”),21 the judges are extremely focused on circulating their colleagues’ cases and are often unable to spend as much time as they would like reviewing those cases (while still spending as much time as is needed to thoughtfully consider the merits of each case). ● In the rare cases in which the judgment line “flips” after a motion for reconsideration has been filed and granted, the losing party may be effectively deprived of the opportunity to file a motion for reconsideration from this revised decision.22 The internal pressures placed upon the court of appeals by the two- term rule culminate three times a year with the constitutional deadlines for the December, April, and August terms.23 Indeed, while the court remains busy year-round, things get especially hectic the month before these deadlines—a time period we refer to as “Distress.” Any opinion that circulates during this period is embossed with the attention-getting “DISTRESS” stamp in bright red ink, and is addressed immediately by the judges charged with considering the merits of that case. As my colleague, Presiding Judge John J. Ellington, is fond of saying, “Distress brings with it great clarity.” And this is absolutely true. Our Distress periods seem to fly by, and there is simply no delaying the inevitable. The judges have to make a decision in each Distress case by the deadline, whether we like it or not. And in most cases, the two-term rule works perfectly and (no doubt) as intended. But in a handful of cases each term, I am reminded (sometimes in rather stark terms) that the tremendous efficiency brought about by the two-term rule24 can come at a steep price in especially complex cases that—notwithstanding every effort to resolve those cases at an earlier time—are decided during the waning days of Distress. Thus, while I am a strong supporter of the two-term rule, I also

21. See ALSTON & BIRD, LLP, supra note 12, at 148 (“In the vernacular of the appellate courts, ‘distress’ cases are those cases that have reached the second term without being decided, and ‘distress day’ is the last day on which opinions can be issued for distress cases.”). 22. See Rodriguez, 321 Ga. App. at 627 n.20, 746 S.E.2d at 372 n.20 (Dillard, J., dissenting) (“In referencing the time constraints placed upon the Court in this case, I am not only referring to the limited amount of time that many members of the Court had to consider the complex issues presented by this appeal, but also to the fact that our decision to adopt this new, substituted opinion precludes Rodriguez from filing a motion for reconsideration.”). 23. See O.C.G.A. § 15-2-4 (2015 & Supp. 2016); O.C.G.A. § 15-3-2 (2015). 24. See TERRY, GEORGIA APPEALS, supra note 6, at 39 (“On the positive side, the Two Term Rule keeps the courts from falling behind. It imposes discipline and efficiency. It keeps the litigation process moving. It introduces an element of predictability into the timing of judicial decisions that is lacking in other jurisdictions.”). 2016] OPEN CHAMBERS REVISITED 7 firmly believe that litigants are not well served when judges do not have the time they need to thoughtfully reflect upon the merits of an appeal decided during Distress. My hope is that the forthcoming changes to the court’s operating procedures (as outlined in this article) will begin the process of addressing this problem. In any event, what lawyers should take away from the foregoing discussion is that the court of appeals continually operates under enormous internal pressures, and that it is absolutely crucial for practitioners appearing before the court to expend a considerable amount of time and effort preparing their appellate briefs and oral-argument presentations with these pressures in mind.

II. BRIEFING TIPS A great deal of ink has been spilled in recent years offering lawyers advice on crafting the perfect appellate brief, and I will refrain from re- hashing these important but all-too-familiar pointers in this essay.25 In- stead, I will offer just a few suggestions to lawyers who regularly submit briefs to the court of appeals. First, consider giving the court a roadmap of your argument at the outset of the brief. Specifically, I strongly recommend including a “Sum- mary of Argument” section, even though our rules do not currently require it.26 I am amazed at how many times I read briefs that only get to the heart of the argument after spending ten to fifteen pages recounting largely unimportant background information and procedural history. Get to the point quickly. You do not want our judges and staff attorneys reading and re-reading your brief in an attempt to figure out the basis (or bases) of your client’s appeal, especially given the severe time constraints placed upon the court by its heavy docket and the two-term rule. Second, and I cannot emphasize this enough, be generous and precise with your record and legal citations. The quickest way to sabotage your appeal is to fail to substantiate legal arguments or key factual or procedural assertions. Court of Appeals Rule 25(a)27 requires that appellant’s brief, among other things, “contain a succinct and accurate statement of . . . the material facts relevant to the appeal and the citation of such parts of the record or transcript essential to a consideration of the errors complained of,” as well as the argument and citation of authorities, and

25. While there are many excellent books and essays on the art of brief writing, I highly recommend ANTONIN SCALIA & BRYAN A. GARNER, MAKING YOUR CASE: THE ART OF PER- SUADING JUDGES (2008). 26. Id. at 97 (noting that many judges “consider the Summary of Argument indispens- ible—indeed, the most important part of the brief”). 27. CT. APPEALS R. 25(a). 8 MERCER LAW REVIEW [Vol. 68 that “[r]ecord and transcript citations shall be to the volume or part of the record or transcript and the page numbers that appear on the appellate record or transcript as sent from the trial court.”28 And when an appellant fails to support an enumeration of error in its brief by (1) citation of authority or argument, or (2) specific reference to the record or transcript, “the Court will not search for or consider such enumeration,” which “may be deemed abandoned.”29 Finally, lawyers who regularly practice before Georgia’s appellate courts need to understand the significant impact that the court of appeal’s “physical precedent” rule has on our state’s body of jurisprudence,30 and briefs to our court should specifically identify these precedents when they are used to support an argument. A physical precedent of the court of appeals is neither binding on the state’s trial courts nor on the court of appeals itself, but the opinion is instead merely persuasive authority.31 Typically, a published opinion becomes a “physical precedent” when an opinion of a three-judge panel32

28. Id.; see also CT. APPEALS R. 25(b)(1) (requiring the appellee to “point out any material inaccuracy or incompleteness of appellant’s statement of facts and any additional statement of facts deemed necessary, plus such additional parts of the record or transcript deemed material,” and noting that “[f]ailure to do so shall constitute consent to a decision based on the appellant’s statement of facts,” and that “[e]xcept as controverted, appellant’s statement of facts may be accepted by this Court as true”). 29. CT. APPEALS R. 25(c)(2)(i); see also Woods v. Hall, 315 Ga. App. 93, 95, 726 S.E.2d 596, 598 (2012) (noting that even pro se litigants are required to comply with Court of Ap- peals Rule 25(c)(2)); Johnson v. State, 313 Ga. App. 895, 897 n.8, 723 S.E.2d 100, 105 n.8 (2012) (noting that the court of appeals “will not cull the record on a party’s behalf”) (quoting Potts v. State, 296 Ga. App. 242, 246, 674 S.E.2d 109, 113 (2009)); Nelson v. Bd. of Regents of Univ. Sys. of Ga., 307 Ga. App. 220, 226 n.22, 704 S.E.2d 868, 874 n.22 (2010) (noting that because “plaintiffs’ arguments do not address the substantive merits of the trial court’s decision . . . those claims are deemed to be abandoned”). 30. See Eugene Volokh, Supermajority Rules for Court Opinions, and “Physical Prece- dent,” VOLOKH CONSPIRACY (July 13, 2011), http://www.volokh.com/2011/07/13/superm ajority-rules-for-court-opinions-and-physical-precedent/ (“Georgia seems to be one of the few American jurisdictions that requires a supermajority on a court to reach a binding decision—if the three-judge panel splits 2-1, the case must either be reheard by a larger court (if the one judge is in the dissent) or at least will lack full precedential value (if the one judge concurs only in the judgment).”). As noted infra, the court of appeals’s operating procedures will be more in line with other jurisdictions in the near future. 31. Chaparral Boats, Inc. v. Heath, 269 Ga. App. 339, 349-50, 606 S.E.2d 567, 575 (2004) (Barnes, J., concurring specially) (noting that a physical precedent “may be cited as persuasive authority, just as foreign case law or learned treatises may be persuasive, but it is not binding law for any other case.”). 32. See O.C.G.A. § 15-3-1(b) (2015 & Supp. 2016) (“The court shall sit in divisions composed of three Judges in each division.”). 2016] OPEN CHAMBERS REVISITED 9 includes a “concurrence in the judgment only,”33 which is referred to internally as a “JO,” or “a special concurrence without a statement of agreement with all that is said [in the majority opinion].”34 As to the former, it is not always readily apparent that a published opinion includes a concurrence in judgment only by one of the three panel members. This is because the majority of concurrences in judgment only are done without an opinion, so the only way an attorney can identify an opinion as being or including a physical precedent is to read the judgment line (which is easy to overlook).35 This is why I often write a separate opinion highlight- ing my concurrence in judgment only in order to make it clear to the bench and bar that the majority opinion is or includes36 a physical precedent and is not binding authority.37 The only way to tell if a special concurrence triggers the court’s physical-precedent rule, then, is to carefully read that concurrence and make sure that it can be reasonably understood as containing a statement of agreement with all that is said in the majority opinion. If no such statement is included, then the opinion (or any identified division of that opinion) is not binding in future cases.38 And, as noted infra, when the court starts publishing 2-1 decisions, these opinions will also constitute physical precedents and be of no precedential authority. That said, I do not believe that a lawyer should shy away from citing a physical-precedent opinion to our court or the Georgia Supreme Court

33. See Ga. Farm Bureaus Mut. Ins. Co. v. Franks, 320 Ga. App. 131, 137 n.14, 739 S.E.2d 427, 433 n.14 (2013) (“When a panel judge concurs in the judgment only, a case serves as physical precedent only, which is not binding in subsequent cases.”). 34. CT. APPEALS R. 33(a); see also Whitfield v. Tequila Mexican Rest. No. 1, Inc., 323 Ga. App. 801, 803 n.2, 748 S.E.2d 281, 284 n.2 (2013) (noting that “[u]nder Court of Appeals Rule 33(a), a special concurrence that does not agree with all that is said renders the opinion to be physical precedent only”). 35. See, e.g., Jones v. Morris, 325 Ga. App. 65, 70, 752 S.E.2d 99, 103 (2013); Nixon v. Pierce Cty. Sch. Dist., 322 Ga. App. 745, 751, 746 S.E.2d 225, 229 (2013). 36. It is important to keep in mind that many of the opinions published by the court of appeals have separate divisions and that our judges can and often do concur in judgment only as to a specific division (rather than the entire opinion). See, e.g., Monitronics Int’l, Inc. v. Veasley, 323 Ga. App. 126, 142, 746 S.E.2d 793, 807 (2013) (Boggs & McMillian, JJ., concurring in judgment only as to Division 2 of the majority opinion). 37. See, e.g., Felton v. State, 322 Ga. App. 630, 635-36, 745 S.E.2d 832, 837 (2013) (Dillard, J., concurring in judgment only); Mauldin v. Mauldin, 322 Ga. App. 507, 518, 745 S.E.2d 754, 763 (2013) (Dillard, J., concurring in judgment only). 38. In opinions published by a nine-judge or fifteen-judge “whole court,” there must be a majority of the judges fully concurring in the opinion or any particular division of that opinion for it to be binding precedent in future cases (five judges and eight judges, respectively). See ALSTON & BIRD, LLP, supra note 12, at 148 (“[W]hen fewer than a majority of the judges sitting as a [nine]-judge or [fifteen]-judge court concur with all that is said in the decision, the decision constitutes a nonbinding ‘physical’ precedent only.”). 10 MERCER LAW REVIEW [Vol. 68

(especially if you believe the reasoning contained in that opinion is persuasive), so long as you clearly designate the opinion as being or containing a physical precedent.39 Indeed, at least some of my colleagues (and yours truly) believe that the physical precedents of our court are entitled to a greater degree of consideration and respect than opinions from other jurisdictions.40 And once a physical precedent has been adopted by a unanimous three-judge panel of our court, by a majority of the judges in a nine-judge or fifteen-judge “whole court” decision, or by our supreme court, that precedent then becomes binding authority in future cases.41 The foregoing briefing suggestions, of course, only begin to scratch the surface of what is necessary to craft a persuasive, “winning” brief with the court of appeals, but they are, in my view, the most overlooked or least-known tips. To put it plainly, a lawyer’s likelihood of success on appeal before our court is largely dependent upon the substance of the appellate brief(s). As my former colleague, Judge J. D. Smith, has rightly and astutely observed, “[t]he court’s procedures and its institutional culture mean that the brief is almost always far, far more important, [and] far more likely to be outcome-determinative than oral argument.”42

39. See, e.g., Whitfield, 323 Ga. App. at 803 n.2, 748 S.E.2d at 284 n.2 (adopting the reasoning of a physical precedent because “we find the majority’s discussion of an owner or occupier of land’s potential liability for criminal acts of third parties to be highly persuasive, particularly in light of the similar fact pattern in this case”); Muldrow v. State, 322 Ga. App. 190, 195 n.29, 744 S.E.2d 413, 418 n.29 (2013) (“This is not to say, however, that a party on appeal should shy away from citing physical precedent as persuasive authority. . . . Nevertheless, it is crucial that litigants explicitly designate physical precedent as such, and thoroughly explain why this Court should adopt the reasoning from that particular opinion.”). Even the Georgia Supreme Court has recognized and relied upon the physical precedents of our court from time to time. See, e.g., Couch v. Red Roof Inns, Inc., 291 Ga. 359, 365, 729 S.E.2d 378, 383 (2012) (noting that “there is already persuasive Georgia precedent on this issue,” citing a physical precedent of the court of appeals). 40. Muldrow, 322 Ga. App. at 195 n.29, 744 S.E.2d at 418 n.29 (noting that “some of the judges on this Court are of the view that our physical-precedent cases should be afforded greater consideration than decisions from appellate courts in other jurisdictions”). 41. Johnson v. Butler, 323 Ga. App. 743, 746 n.13, 748 S.E.2d 111, 113 n.13 (2013) (“Assuming arguendo that [Tanner v. Golden, 189 Ga. App. 894, 377 S.E.2d 875 (1989)] is only physical precedent, it is ultimately of no consequence because a subsequent, unanimous panel of this Court fully adopted the reasoning of Tanner in [Troup Cty. Bd. of Educ. v. Daniel, 191 Ga. App. 370, 381 S.E.2d 586 (1989)] the opinion noted supra. The District’s contention that Court of Appeals Rule 33(a) precludes a panel of this Court from fully adopting, and thus making fully precedential, a prior physical precedent is wholly without merit.”). 42. SMITH, supra note 6, at 8. 2016] OPEN CHAMBERS REVISITED 11

III. ORAL ARGUMENT Nevertheless, oral argument is of great significance to the lawyers who appear before the court of appeals and plead their client’s case. Indeed, as anyone who regularly practices before our court is well aware, the vast majority of oral-argument requests are denied.43 Naturally, practitioners assume that this is due to the court’s heavy docket. And while this assumption is perhaps accurate as to a minority of the requests, the bulk of motions for oral argument that I deny are rejected because they are either untimely44 or fail to comply with Court of Appeals Rule 28(a)(4),45 which provides that

[a] request shall contain a brief statement describing specifically how the decisional process will be significantly aided by oral argument. The request should be self-contained and should convey the specific reason or reasons oral argument would be beneficial to the Court. Counsel should not assume the brief or the record shall be considered in ruling on the request for oral argument.46

Most of the requests we receive, however, disregard the requirements of this rule, averring nothing more than the desire to have oral argument or offering some generalized assertion that the case is “complex” and that the court will “benefit” from discussing this nondescript complexity with the designated attorneys.47 These generic requests are ultimately denied for failing to comply with the rule, rather than denied on the merits. In contrast, a persuasive request for oral argument draws the judge into the case after the first few sentences. A good appellate practitioner treats a request for oral argument as an opportunity to pique the court’s interest in his client’s story and the issues presented by the case. And while this list is far from exhaustive, here are some categories of appeals that, in my view, have a strong likelihood of being granted oral argument: ● A case involving an issue of first impression; ● A case involving conflicting lines of jurisprudence; ● A case presenting an issue with statewide implications;

43. TERRY, GEORGIA APPEALS, supra note 6, at 205 (“The Court of Appeals grants oral argument in only about one third of the cases where a request is received.”). 44. See CT. APPEALS R. 28(a)(2) (“A request for oral argument shall be filed within [twenty] days from the date the case is docketed in this Court. An extension of time to file brief and enumeration of errors does not extend the time to request oral argument.”). 45. CT. APPEALS R. 28(a)(4). 46. Id. (emphasis added). 47. ALSTON & BIRD, LLP, supra note 12, at 118 (“[C]ounsel should explain what distin- guishes this case from the normal one in which oral argument is not helpful. Statements that oral argument is warranted ‘because the case is an important one’ or that oral argument ‘is necessary to clarify the issues’ are not adequate.”). 12 MERCER LAW REVIEW [Vol. 68

● A case involving the application of settled legal principles to a novel set of facts; ● A case involving an area of law with a dearth of precedent; ● A case involving an area of law in serious need of clarification. But the reality is that there is no magic formula for getting your oral argument request granted.48 All you can do is present your self-contained request49 in the most compelling manner possible and hope for the best. The good news is that it only takes one judge to grant oral argument,50 so you have three opportunities to convince the court that your appeal satisfies the dictates of Rule 28(a)(4).51 Once oral argument is granted, the case is then placed on the oral- argument calendar (usually several months from the date of the order), and the appeal then recedes to the back of my mind until a few weeks before the argument is held. Then, about two weeks or so in advance, my administrative assistant emails me PDF versions of the briefs filed in the cases set for oral argument, and shortly thereafter I download those briefs to my laptop, iPad, or iPhone. I then do a “quick read” of the briefs to estimate the amount of time I need to set aside to adequately prepare for the arguments, which on average is about one and one-half to three hours per case (depending on the complexity of the case). And because the authoring judges are assigned prior to the cases being argued, I often spend additional time on any cases assigned to me, knowing that in just a few months I will prepare drafts of those opinions for the panel’s consideration. If I have more than three cases scheduled for oral argument (usually no more than six), my general practice is to spend the entire day before oral argument reading the briefs and relevant authorities, identifying any key issues of concern in each case, and drafting questions for the attorneys at oral argument. On the other hand, if I have three or fewer

48. According to court folklore, one practitioner’s request for oral argument was based entirely on the fact that the copy of the plat at issue in the appeal was impossible to understand unless viewed as a large exhibit and oral argument was necessary to walk the court through the details of the plat. A quick glance of the record confirmed the truth of this assertion, and the request for oral argument was granted. 49. ALSTON & BIRD, LLP, supra note 12, at 118 (“The request for oral argument should be self-contained, and counsel should not assume that the appellate brief will be considered in ruling on the request.”). 50. Id. at 119 (“The Court of Appeals has indicated the request will be granted if any of the three judges on the panel to which the case is assigned believes oral argument is warranted.”). 51. It should be noted, however, that as a matter of courtesy, a judge who wishes to grant oral argument in a case that he or she is not assigned to author typically confers with the assigned judge before granting oral argument in that case. 2016] OPEN CHAMBERS REVISITED 13 cases, then a half-day before oral argument often allows enough time to adequately prepare for the cases being argued. Either way, I do a mini- review of the oral-argument cases the morning of the arguments. I do not want any distractions during this review or before oral argument. Indeed, to the greatest extent possible, I try to be entirely focused on the issues presented by the appeals and the questions I am interested in discussing with the parties’ counsel at oral argument. And that’s exactly what a productive oral argument should be: a discussion. Counsel should reserve the emotion and theatrics for juries. Ap- pellate judges are neither swayed by nor pleased with such tactics.52 We are there, primarily, to (1) determine whether the trial court committed a reversible legal error (namely, to ensure fair proceedings and uphold the right to a fair trial),53 and (2) ensure that the law is consistently followed and fairly applied in each case. It is not the role of an appellate court to “micromanage the manner in which a trial court conducts its proceedings.”54 As a result, attorneys who spend precious oral-argument time attempting to make an emotional appeal to us, or suggesting that we act as a de novo appellate fact-finder, waste a valuable opportunity to converse with the judges about the merits of their client’s case.55 Instead, you should be prepared to speak at length with the judges about your and opposing counsel’s strongest arguments. Do not prepare a speech ahead of time or read from your brief to the court, and you should fully expect to receive questions from the bench. A good oral advocate directly answers the judges’ questions, concedes arguments that are not outcome determinative (and should be conceded), and knows when to conclude the argument and sit down. And most importantly, an effective appellate practitioner presents his client’s arguments in an honest and forthright manner, scrupulously describing the relevant facts and legal authorities to the court.56

52. See, e.g., ALSTON & BIRD, LLP, supra note 12, at 219 (“The rule of law is about independent judges applying the law to the facts without passion or prejudice. So if you try to be dramatic or appeal to emotion, for example by focusing on the horrible facts of a case and ignoring the applicable law, it may backfire, because you are implicitly telling the judge that passion rather than law should dictate the result.”). 53. Id. at 35 (“Georgia’s appellate courts do not sit as fact-finding bodies and generally review appeals for correction of errors of law.”). 54. Whorton v. State, 321 Ga. App. 335, 340 n.24, 741 S.E.2d 653, 658 n.24 (2013). 55. CT. APPEALS R. 28(d) provides, inter alia, that “[a]rgument is limited to [thirty] minutes for each case,” and that each side will be given [fifteen] minutes to argue, “unless by special leave an enlargement of time is granted.” 56. For additional advice on presenting an effective oral argument in Georgia’s appellate courts, see generally ALSTON & BIRD, LLP, supra note 12, at 217-24; TERRY, GEORGIA APPEALS, supra note 6, at 205-11. 14 MERCER LAW REVIEW [Vol. 68

But does oral argument really matter? Yes, I think it matters greatly at the court of appeals because it can actually have an impact on the outcome of the case.57 To be sure, in many cases, I already have an idea of how the appeal will ultimately be resolved; but in some cases, oral argument causes me to rethink matters. And even when I do not change my mind as to the ultimate judgment line, oral argument will often impact the content, reasoning, or scope of the resulting opinion. I almost always learn something new and interesting about the case from the parties’ counsel during oral argument. This is because, in contrast to the federal judiciary, the amount of time spent by the judges and their staff preparing for oral argument is severely constrained by the court’s heavy caseload and the two-term rule, as discussed supra. Indeed, when I clerked for Judge Daniel A. Manion of the United States Court of Appeals for the Seventh Circuit, our chambers spent a considerable amount of time on each case prior to oral argument. In addition to Judge Manion’s extensive preparations, I would also read the briefs, exhaustively research the relevant issues, examine the entire record, and write a detailed bench memo for each case. Then, the day before oral argument, Judge Manion and I would spend anywhere from five to six hours discussing, among other things, the issues presented by those cases. As a result, by the time oral argument occurred, Judge Manion was already prepared to begin drafting an opinion for each case.58 In stark contrast, as a judge on the Georgia Court of Appeals, I typically do almost all of the preparation for oral argument by myself. I generally do not have the benefit of much (if any) input from my staff attorneys because they are busy assisting me with draft opinions for the current term and working diligently on my behalf to ensure that the court meets its constitutional deadline for these cases. Thus, while I always strive to be well prepared for oral argument, the reality is that only so much can be done in advance given the current time constraints placed upon the court. And what this means for you, the advocate, is that oral argument is likely to be of much greater importance at the court of appeals than in any federal court in which you will ever practice. Indeed, if you are intimately familiar with the record and relevant authorities,

57. For this reason, lawyers should not take too much comfort in (or walk away de- spondent because of) the questions posed by the judges at oral argument. Until the judges have had an opportunity to fully immerse themselves in the case, it is simply premature to conclude that the case has either been won or lost. 58. Because I believe very strongly in the absolute confidentiality of the judge-law clerk relationship, I received permission from Judge Manion to disclose, in very general terms, the preparations that he and his law clerks go through in preparing for oral argument, as well as the term his clerks use for spading, i.e., “clerkulation.” See also infra note 64. 2016] OPEN CHAMBERS REVISITED 15 you will be in a unique position to educate the court about your case before the judges on the panel have made up their minds. So, yes, Virginia, oral argument matters greatly at the court of appeals. And there are other reasons, entirely unrelated to the merits of an appeal, why holding oral argument on a regular basis is important. For example, the practice of holding oral argument by an appellate court furthers the worthy goal of professionalism in the practice of law. It is absolutely essential for Georgia lawyers to understand how to present a compelling and effective appellate argument, and this simply cannot happen if the court of appeals, which handles approximately eighty-five percent of all appeals in Georgia,59 does not hold oral argument on a regular basis. Thankfully, Georgia is blessed to have many outstanding appellate practitioners, and I am grateful for the amount of time and effort these lawyers expend in their preparations for oral argument. As Justice Da- vid Nahmias of the Georgia Supreme has aptly noted, “good oral advocacy improves the quality of Georgia’s appellate courts and the decisions that they issue.”60 Finally, oral argument is a vital aspect of the court’s transparency to the people we serve. At least four to five times per month, nine months per year, any citizen can attend our oral arguments and witness their judges in action. And thankfully, as of September 2016, our citizens no longer have to travel to Atlanta to watch these arguments. The court of appeals, like our supreme court, now broadcasts live video-streaming of oral arguments over the Internet and maintains archives of those arguments on our website. Suffice it to say, it is absolutely crucial for Geor- gia’s appellate courts to do everything in their power to educate our citizens about the manner in which these courts operate and the important role that they play in the state’s tripartite system of government. And by holding oral argument on a regular basis, Georgia’s appellate courts play an integral role in educating the public in this regard, as well as providing a significant degree of transparency when it comes to the judiciary’s operations.

IV. OPINION WRITING A month or so after oral argument, the most important part of the appellate process begins: the drafting of the appellate opinion. And it is

59. SMITH, supra note 6, at 3 (“[R]oughly 85% of Georgia’s appellate business is handled by the Court of Appeals.”). The percentage of the state’s appeals handled in the first instance by the Georgia Court of Appeals will increase in 2017 as a result of the jurisdictional shift of certain categories of cases from the Georgia Supreme Court to the Georgia Court of Appeals (which is discussed in detail infra). 60. ALSTON & BIRD, LLP, supra note 12, at 217. 16 MERCER LAW REVIEW [Vol. 68 this aspect of my job that garners the greatest interest from lawyers at seminars and bar-related functions. “Do you write your own opinions?” “What tasks do your staff attorneys perform to assist you in drafting opinions?” “Do you conference with the other judges on the panel about your opinions?” These are just a few of the questions that lawyers ask about the opinion-writing process, and I hope this Article will offer some degree of insight as to how at least one appellate judge approaches the task of drafting opinions. So, do I write my own opinions? Yes, I do. To be sure, I have a tremendous amount of assistance in drafting these opinions. Indeed, it would be virtually impossible for me to publish approximately fifty-six opinions per year—which is my publication rate since joining the court—without any assistance and to have those opinions be of any use to the bench and bar. Thankfully, I have three extremely talented and dedicated staff attorneys who are intimately involved in the opinion-writing process. This process, of course, varies from chambers to chambers, and I am in no way suggesting that my method of opinion writing is superior to that of my colleagues. What follows, then, is simply the process that works best for my chambers. But at the outset, it is helpful to first understand how cases are assigned to each judge. First, the clerk’s office randomly assigns a proportional share of the court’s cases for each term to the judges via a computer-generated system, or “wheel.”61 After those assignments are made, every judge’s chambers receives a “yellow sheet” for each case that identifies the parties, the attorneys involved in the appeal, and the trial judge who handled the case below. In my chambers, upon receiving these documents, my administrative assistant immediately and randomly assigns a staff attorney to assist me with these cases in a proportional manner (after any necessary recusals are made). She does this by creating “term sheets” for each staff attorney, which list the assigned case numbers, style of the cases, and status of the cases (that is, not drafted, drafted, circulating, dismissed, withdrawn, transferred, and clerk/publication). And while my assistant is busy making the foregoing arrangements for the upcoming term, the court’s central-staff attorneys are skillfully examining each and every appeal and application to determine whether the

61. Id. at 147 (“Cases are assigned to the judges of the Court of Appeals through the use of four “wheels,” one each for: (i) direct appeals for criminal cases; (ii) direct appeals for civil cases; (iii) interlocutory applications; and (iv) discretionary applications. The clerk uses the wheels to assign cases as they are docketed to the [five] divisions of the court. The first four cases are assigned to the presiding judges, the next four cases are assigned to the second-most senior judges on each panel, and the next cases are assigned to the least senior judges on each panel. The cycle then repeats itself.”). 2016] OPEN CHAMBERS REVISITED 17 jurisdictional requirements have been satisfied.62 If so, then a purple check mark is placed on the first volume of the record to indicate to the judges that the case has passed the initial jurisdictional review (along with a brief note or memorandum explaining the staff attorney’s reasoning).63 If not, then the case is dismissed by the court on jurisdictional grounds. Each term begins with my administrative assistant retrieving the original briefs and records for all of my cases from the clerk’s office (or electronically) and then delivering those documents to the staff attorneys assigned to assist me with those cases. My staff attorneys are then charged with drafting memoranda that summarize the cases assigned to my chambers. This allows me to identify cases that may be more complex in nature and to formulate a game plan for the best way to approach drafting the opinions. In some (rare) cases, I may draft the opinion without any initial assistance from the assigned staff attorney. And in other cases (indeed in the vast majority of cases), I direct the assigned staff attorney to prepare an initial draft of the proposed opinion, which then serves as a starting point or template for my own drafting and review process. But regardless of the manner in which the initial draft opinion is prepared, I personally work through numerous drafts of any opinion before it ever circulates to my colleagues for their consideration. In preparing an initial rough draft of an opinion, my staff attorney and I will, without exception, perform the following tasks: (1) thoroughly examine the appellate record, (2) carefully and repeatedly read the parties’ briefs, (3) copiously outline the parties’ arguments, (4) exhaustively research the relevant issues, and (5) extensively cite the relevant parts of the record and applicable legal authorities. This initial draft opinion then goes through a rigorous vetting process that we refer to internally as “spading,”64 which, in a nutshell, involves the other two staff attorneys

62. In addition to conducting an initial jurisdictional review of every appeal and application docketed with the court, our central-staff attorneys also assist the judges in reviewing the merits of discretionary and interlocutory applications, occasionally serve as “float- ing” staff attorneys to the judges (i.e., they temporarily work “in chambers” when one of the judge’s staff attorneys is sick or is taking an extended leave), and sometimes assist the judges in drafting (mostly) per curiam opinions in cases that meet certain criteria (i.e., routine cases that can be handled in a fairly expeditious manner). 63. Each judge conducts a separate and distinct jurisdictional review of each appeal and application, and, on occasion, this review results in the dismissal of the case. 64. The origin of “spading” at the court of appeals is a bit of a mystery, but it is a fairly common term that derives from the idea of “digging” into a case. See Darby Dickerson, Citation Frustrations—and Solutions, 30 STETSON L. REV. 477, 478 (2000) (referring to “spading” as the “process through which law review members check the substantive accuracy of articles, place citations in the proper form, ensure that cited sources are still good 18 MERCER LAW REVIEW [Vol. 68 mirroring the aforementioned tasks—that is, thoroughly examining the appellate record, carefully reading the parties’ briefs, extensively re- searching the relevant issues, Bluebooking, and the like. This process also often involves extended discussion with my staff attorneys both before and after a draft opinion is produced. Indeed, it is not unusual for me to conference with all three of my staff attorneys in particularly difficult cases. This does not happen every day or even every week because many of our cases are fairly straightforward; but, when the issues presented in an appeal are novel or especially complex, I do not hesitate to collaborate with my entire staff.65 Throughout the drafting and review process, there are core principles of my judicial philosophy that my staff attorneys employ when providing assistance in each and every case when those principles are applicable. They are aware, in no uncertain terms, that I am an originalist and a textualist with an abiding commitment to (1) adhere to the plain or original meaning of the statutory and constitutional provisions that I am charged with interpreting;66 (2) faithfully follow and apply the precedents of the Georgia Court of Appeals, the Georgia Supreme Court, and the Supreme Court of the United States;67 (3) clarify and stabilize, to the greatest extent possible, the court of appeals’s caselaw;68 and (4) honor the separation-of-powers doctrine by respecting the strict demarcation line between judicial interpretation and legislative policy making.69 My law, and correct grammatical and typographical errors”). At the Seventh Circuit, we referred to this process as “clerkulation,” but, regardless of the terminology, it is typical for there to be an in-depth analysis of every case handled in chambers prior to giving that case to the judge for his or her consideration. 65. I also do not hesitate to consult with my colleagues or their staff attorneys if they have previously dealt with or have specialized knowledge in certain areas of law, or if I want a perspective from someone outside of my own chambers. It sounds trite, but there really is a familial-like collegiality at the court of appeals. And while the court’s judges may operate as “fifteen sovereigns,” we all have the same goal—to get it right. 66. State v. Able, 321 Ga. App. 632, 636, 742 S.E.2d 149, 152 (2013) (Dillard, J.) (“A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies), as well as with faithfully following the precedents established by higher courts.”). 67. See id.; State v. Smith, 308 Ga. App. 345, 352, 707 S.E.2d 560, 566 (2011) (“[T]he doctrine of stare decisis prohibits this Court from ignoring the valid precedent of a higher court.”). 68. See, e.g., Nelson, 307 Ga. App. at 225-26, 704 S.E.2d at 873-74 (Dillard, J.) (clarifying language in prior opinion and reconciling that decision with other opinions). 69. See, e.g., Able, 321 Ga. App. at 636, 742 S.E.2d at 152 (“Suffice it to say, it is not the role of a judge to ‘interpret’ constitutional or statutory provisions through the prism of his or her own personal policy preferences.”); see also Colon v. Fulton Cty., 294 Ga. 93, 97, 751 S.E.2d 307, 311 (2013) (citation and punctuation omitted) (noting that “under our system of separation of powers this Court does not have the authority to rewrite statutes”). 2016] OPEN CHAMBERS REVISITED 19 staff attorneys, then, are guided by these core principles in each opinion with which they assist me in drafting, and these principles are reflected in the opinions I author. After an initial draft opinion is completed, I then go through several levels of review before circulating that final draft opinion to the other judges on the panel (in order of seniority) for their consideration. Ini- tially, my primary focus is to reconsider whether the judgment line is correct. And in all but a small percentage of the cases, I come away from this reading of the opinion with the same view I held after my initial examination of the case. This is because, as noted supra, any particularly difficult cases are thoroughly discussed in my chambers and vetted long before I begin my final examination of the draft opinion. If, for some reason, I do have any lingering questions about the judgment line, I will confer with my staff attorneys to discuss these concerns. This conversation almost always results in my delving even deeper into the research conducted thus far, or in directing a staff attorney to conduct additional research to determine whether my concerns are valid. In rare instances, these discussions and additional work result in a revised judgment line. But in most cases, I conclude that the proposed judgment line is correct, and my attention then turns to the readability, structure, and reasoning of the draft opinion. My goal is to issue opinions that any person of reasonable intelligence (with no legal background) can understand. I firmly believe that the law should be accessible to the people, not just to a small group of specialists who “speak the language.”70 That said, I am well aware that my opinions are primarily read by judges and lawyers, and therefore need to be written in a way that provides the bench and bar with as much clarity and stability in our jurisprudence as possible. Thankfully, there are very few cases in which the readability of an opinion must suffer to clearly and precisely analyze the legal issues presented by the appeal. In addition to the time dedicated to addressing readability and clarity concerns, I also spend a great deal of time immersed in the relevant and applicable case, statutory, and constitutional law cited by the parties in their briefs and those citations included in the draft opinion. It is imperative that I fully understand the legal landscape at issue in the appeal before I can have complete confidence that the reasoning contained in the draft opinion, and for that matter the proposed judgment line, is correct.

70. One of the methods I use to ensure that my opinions “sound” more conversational in nature is to read them aloud. I find that doing this helps me to remove the more formal or stilted language in a draft opinion, as well as identifying areas of the opinion in need of better transition sentences. 20 MERCER LAW REVIEW [Vol. 68

And to do that, I frequently spend a considerable amount of time analyz- ing the relevant statutory frameworks (far beyond the specific subsections being relied upon by the parties), re-examining our state and federal constitutions, and tracing jurisprudential lines back to their origin. My approach to opinion writing is a bit organic. At the risk of sounding like a child of the 1960s, I try to get the “feel” of a case before delving into the merits. This means that in some cases I may follow a more traditional method of review by reading the trial court’s order, the parties’ briefs in the order they were filed, any relevant record excerpts, and the accompanying caselaw and statutes, and in other cases I may start the process by reading the appellant’s reply brief. It all depends on the par- ticulars or nature of the case before me. I believe there is great value in “mixing things up,” as it were, and that using the same analytical approach in every case runs the risk of squelching creative and outside-the- box thinking. One important decision to be made for each case is whether the opinion will be designated for publication. Indeed, I almost always have a discussion with a staff attorney about the pros and cons of publishing the opinion in question. And the overarching question I ask before recommending that any opinion be published is whether it clarifies, changes, or adds to, in any respect, the existing body of caselaw. This is because whenever an opinion is published there is always a danger that it will make the law less clear. And for this reason, among others, I strongly believe that appellate judges should be very deliberate and cautious before deciding to publish an opinion. At the end of the day, each opinion bears my name as author for time immemorial, and, accordingly, I take my duty to provide clarity and stability in our caselaw seriously. This is also why I am selective in the opinions I choose to publish.71 And while I understand that some of my colleagues believe that publishing the overwhelming majority of the court’s opinions ensures the greatest amount of transparency, I am convinced that the manner in which the court currently operates—with a considerable case load and the two-term rule—makes it virtually impossible to do

71. An unpublished or “unreported” opinion is “neither a physical nor binding precedent but establishes the law of the case as provided by O.C.G.A. § 9-11-60(h) [(2015)].” CT. APPEALS R. 33(b); see also CT. APPEALS R. 34 (“Opinions are reported except as otherwise designated by the Court. The official reports shall list the cases in which opinions were written but not officially reported and shall indicate the authors and participants in the opinions.”). 2016] OPEN CHAMBERS REVISITED 21 so while maintaining a desirable level of quality control. And thus, in my view, the court of appeals publishes far too many cases.72 Thankfully, the court of appeals has a means for disposing of more routine appeals without the need to draft a published or unpublished opinion. Court of Appeals Rule 3673 provides for an “affirmance without opinion” in cases in which: 1. The evidence supports the judgment; 2. No reversible error of law appears and an opinion would have no precedential value; 3. The judgment of the court below adequately explains the decision; and/or 4. The issues are controlled adversely to the appellant for the reasons and authority given in the appellee’s brief.74 Rule 36 cases “have no precedential value,” and typically involve a one- page order relying on one or more of the criteria noted above.75 In Rule 36 cases, I speak with a staff attorney at the outset of the review, and before any written work is done, about disposing of the appeal in this manner. And if I decide that a Rule 36 “opinion” is appropriate, the staff attorney will then prepare two documents for my—and, ultimately, the other panel members’—consideration: (1) a memorandum explaining why the case is one in which a written opinion is unnecessary and how the designated Rule 36 criteria have been satisfied,76 and (2) a one-page opinion outlining the grounds for disposing of the case by way of Rule 36. After the foregoing documents are prepared, I then read the proposed memorandum, proposed opinion, and parties’ briefs to ensure that I still agree with this method of handling the case. If so, I reread the memorandum to determine if any revisions are necessary, and I carefully ex-

72. See RUGGERO J. ALDISERT, OPINION WRITING 7 (3d ed. 2012) (“No one, not even the most fervent supporter of publication in every case, can seriously suggest that every one of these cases . . . has precedential or institutional value.”). 73. CT. APPEALS R. 36. 74. Id. 75. See id. 76. This does not mean that a case disposed of by way of Rule 36 never results in a published opinion. See, e.g., City of St. Marys v. Brinko, 324 Ga. App. 417, 422, 750 S.E.2d 726, 729 (2013) (affirming the trial court’s grant of summary judgment to the defendants on certain tort claims in a consolidated appeal pursuant to CT. APPEALS R. 36); Lexington Ins. Co. v. Rowland, 323 Ga. App. 191, 746 S.E.2d 924 (2013) (a published Rule 36 opinion with a dissenting opinion); Jones v. Forest Lake Vill. Homeowners Ass’n, 312 Ga. App. 775, 720 S.E.2d 174 (2011) (a published Rule 36 opinion sanctioning the appellant for bringing a frivolous appeal). 22 MERCER LAW REVIEW [Vol. 68 amine the controlling legal authorities. I do not, however, spend significant time worrying about whether the memorandum conveys my “voice” or whether certain passages are particularly eloquent. It is, after all, an internal memorandum that the parties will never see. To put it plainly, a Rule 36 memorandum needs to be substantively accurate, not Shake- spearean verse. With all of that said, parties receiving a Rule 36 opinion should understand that there has, nevertheless, been a great deal of work and consideration by the judges and staff attorneys leading up to that opinion. And while I certainly understand the frustration many lawyers feel when they receive a one-page opinion, rather than a detailed opinion, the unfortunate reality is that Rule 36 is a crucial time-management tool for judges in addressing the court of appeals’s considerable caseload77 and the always-looming deadlines imposed by the two-term rule.

V. CONCURRENCES AND DISSENTS In addition to the approximately 120 opinions I am assigned to author or dispose of every year, I am also required to carefully examine and consider the merits of approximately 240 opinions or orders drafted by my colleagues on the panel, as well as those that currently “roll over” to my division as a result of a dissent or are considered en banc. To be sure, most of the opinions issued by our court are not particularly controversial and result in unanimous decisions with full concurrences from the other judges.78 But occasionally, we do disagree with one another. And when that happens, a judge who takes issue with the proposed opinion has numerous options. If a judge agrees with the judgment line in a proposed opinion, but not all of the reasoning contained therein, he or she can (1) draft a memorandum to the authoring judge outlining the problems or concerns with the opinion, and identifying any language that needs to be added or omitted in order to obtain the full concurrence of that judge;79 (2) draft a special

77. See ALDISERT, supra note 72, at 4 (“As courts have gotten busier . . . the pace of opinion publishing has not been able to keep up with the rate of incoming cases.”). 78. ALSTON & BIRD, LLP, supra note 12, at 142-43 (“The Court of Appeals is divided into ‘rotating’ three-judge ‘panels’ or ‘divisions.’ These three-judge panels ordinarily render the decisions of the Court of Appeals. . . . The Court of Appeals decides cases with panels of more than three judges only in limited circumstances.”). 79. Occasionally, a judge will simply pen a brief handwritten note to the authoring judge, outlining any areas of concern. These notes are treated no differently than a more formal memorandum and they are circulated along with the file for the other judge or judges’ consideration. 2016] OPEN CHAMBERS REVISITED 23 concurrence that includes a full concurrence, but which provides additional reasoning for or commentary concerning the court’s decision; (3) draft a special concurrence that does not include a full concurrence (thus making the opinion or any disputed division of the opinion a “physical precedent” and of no precedential value), but outlines entirely separate reasoning for concurring in the judgment line; (4) draft a concurrence dubitante, which is a full concurrence, but one that is done doubtfully; or (5) simply concur in judgment only with or without a separate opinion, which also renders the opinion a “physical precedent” and of no precedential value.80 If a judge on the original panel joins the special concurrence of another judge, the case is then reassigned to the author of the special concurrence and that concurrence becomes the majority opinion. If a judge disagrees with the judgment line, he or she may author a dissenting opinion, which will, for the time being, then cause the case to transition to a nine-judge “whole court,” consisting of the original panel members and two backup panels of judges.81 For example, if a judge on the First Division dissents from an opinion authored by one of the other panel members, the case will then be voted on by all three judges of the First Division, all three judges of the Second Division, and all three judges of the Third Division.82 Currently, a majority opinion or dissent

80. There is even one extraordinary occasion in which I published an opinion “concurring dubitante in judgment only,” which meant that I had serious doubts in that case about not only the reasoning of the majority opinion but also the judgment line. See Nalley v. Langdale, 319 Ga. App. 354, 372-73, 734 S.E.2d 908, 922 (2012) (Dillard, J., concurring dubitante in judgment only). This type of concurrence has only been used once in the history of the court of appeals in a published opinion and is affectionately referred to by one of my colleagues as “concurring Dillardtante.” See Alyson M. Palmer, Judges, Lawyers Mull Possible Changes to State Appeals Court, FULTON COUNTY DAILY REP., Feb. 13, 2014 (“Dillard said in his concurrence that the two-term rule precluded him ‘from engaging in the type of extended study necessary to achieve a high degree of confidence that my experienced, able colleagues are right.’ McFadden quipped that it was a ‘concurrence Dillard- tante,’ adding, ‘if he didn’t pull an all-nighter before he did that, it was pretty darn close.’”). 81. See O.C.G.A. § 15-3-1(c)(2) (2015 & Supp. 2016) (“The Court of Appeals may provide by rule for certain cases to be heard and determined by more than a single division and the manner in which those Judges will be selected for such cases. When a case is heard and determined by more than a single division, nine Judges shall be necessary to constitute a quorum.”); COURT OF APPEALS OF GEORGIA, http://www.gaapeals.us/operating_proce dures.pdf (last visited Sept. 9, 2016) (“Consistent with this new statutory authority, the Judges of this Court adopted, effective July 1, 2016, new operating procedures. Those procedures shall remain in effect until such time as new rules are adopted. These procedures include: [1] In the event of a dissent, the two divisions immediately following the original division shall also participate . . . .”). 82. The chief judge of the court of appeals, currently the Honorable Sara L. Doyle, appoints the presiding judges and assigns the remaining judges to serve on one of the court’s five divisions. See O.C.G.A. § 15-3-1(b) (2015 & Supp. 2016) (“The court shall sit in divisions composed of three Judges in each division. The assignment of Judges to each division shall 24 MERCER LAW REVIEW [Vol. 68 will only trigger the consideration of the entire (fifteen-judge) court when it seeks to overrule a prior precedent, or when the majority of the original panel of judges or those of a nine-judge “whole court” conclude that the case is of such importance that it warrants en banc consideration (something that rarely happens).83 If the court sitting en banc considers a case and is “evenly divided,” the case is then transferred to the Georgia Su- preme Court (without the opinion being published).84 Unlike the majority opinions I author, I often draft concurrences and dissents with less assistance from my staff attorneys. To be sure, I ask my staff attorneys for their assistance in drafting concurrences and dissents, and I always confer with one or more of them before any opinion leaves my chambers, but I generally do not confer with my staff attorneys about other judges’ opinions. My intent is to handle as much of the “other judge” work as possible, which allows my staff attorneys to primarily focus on assisting me with the opinions I am assigned to author. With all of that said, practitioners should understand that even when the court issues a unanimous decision, the other judges on the panel are always fully engaged in the opinion-writing process. Indeed, there is often a great deal of informal conferencing, exchanging of back-and-forth memoranda, and substantial revisions to the proposed opinion, all of which the parties never see. There have even been cases in which the proposed opinion triggered a dissent, was circulated as a nine or fifteen- judge decision, and then, after numerous concurrences and dissents were be made by the Chief Judge, and the personnel of the divisions shall from time to time be changed in accordance with rules prescribed by the court. The Chief Judge shall designate the Presiding Judges of the divisions and shall, under rules prescribed by the court, distrib- ute the cases among the divisions in such manner as to equalize their work as far as practicable.”). 83. See O.C.G.A. § 15-3-1(c)(2) (2015 & Supp. 2016) (“The Court of Appeals may provide by rule for certain cases to be heard and determined by more than a single division and the manner in which those Judges will be selected for such cases. When a case is heard and determined by more than a single division, nine Judges shall be necessary to constitute a quorum.”); O.C.G.A. § 15-3-1(d) (2015 & Supp. 2016) (“The Court of Appeals shall provide by rule for the establishment of precedent and the manner in which prior decisions of the court may be overruled.”); COURT OF APPEALS OF GEORGIA, http://www.gaapeals.us/opera ting_procedures.pdf (last visited Sept. 9, 2016) (“Consistent with this new statutory authority, the Judges of this Court adopted, effective July 1, 2016, new operating procedures. Those procedures shall remain in effect until such time as new rules are adopted. These procedures include: . . . [2] In the event of a case involving the overruling of a prior decision of this Court, all 15 Judges of this Court shall participate (provided, however, that the disqualification of one or more Judges in such a case shall not prevent the overruling of a prior decision so long as at least nine Judges participate).”). 84. See GA. CONST. art. VI, § 5, para. 5; see also GA. CONST. art. VI, § 5, para. 4 (authorizing the court of appeals to certify questions to the Georgia Supreme Court to aid its decisional process). 2016] OPEN CHAMBERS REVISITED 25 drafted, returned to the original three-judge panel and was issued as a unanimous decision. Those who regularly practice before our court should not assume that the only time the other panel members are fully engaged in another judge’s case (that is, one they are not assigned to author) is when they publish either a concurrence or dissent. I spend a considerable amount of time each term working on opinions authored by my colleagues, and they do likewise.

VI. INTERLOCUTORY AND DISCRETIONARY APPLICATIONS

As with direct appeals, an application for a discretionary or interlocutory appeal is randomly assigned to a judge by the court’s computer- generated “wheel.” The application is then immediately and randomly assigned to an attorney in central staff to carefully review the application and accompanying materials, conduct any additional and necessary research (time permitting), and draft a memorandum on behalf of the assigned judge recommending the grant or denial of the application. All of this work must be done within a very condensed period of time. Indeed, O.C.G.A. § 5-6-35(f)85 provides that our court must either grant or deny an application for discretionary appeal within thirty days,86 and O.C.G.A. § 5-6-34(b)87 requires that we must either grant or deny an application for interlocutory appeal within 45 days.88 Suffice it to say, this does not give the central-staff attorneys or judges a significant amount of time to consider the merits of these applications. A lawyer hoping to have a discretionary or interlocutory application granted, then, needs to understand just how important it is to present a concise and self-contained application to the court. Indeed, regardless of whether you are filing a discretionary or interlocutory application, there are steps you can take to increase your client’s chances of receiving the highly sought after “grant” from our court. First and foremost, you need to make sure that your application is nar- rowly tailored to meet the criteria established by our court in its rules. Court of Appeals Rule 30(a)89 provides that an application for an interlocutory appeal will be granted only when it appears from the documents submitted that: 1. The issue to be decided appears to be dispositive of the case; or

85. O.C.G.A. § 5-6-35(f) (2013). 86. Id. 87. O.C.G.A. § 5-6-34(b) (2013). 88. Id. 89. CT. APPEALS R. 30(a). 26 MERCER LAW REVIEW [Vol. 68

2. The order appears erroneous and will probably cause a substantial error at trial or will adversely affect the rights of the appealing party until entry of final judgment in which case the appeal will be expedited; or 3. The establishment of precedent is desirable.90 Put another way, is there some compelling reason to stop the proceedings below and have the court of appeals intervene? It is not enough to demonstrate that the trial court erred. An application for interlocutory appeal must show that the trial court erred and that there will be unjust consequences resulting from that error unless the court of appeals immediately steps in and corrects it, or, conversely, that judicial-economy concerns warrant granting the application.91 Court of Appeals Rule 31(a)92 provides that an application for discretionary appeal will be granted only when “[r]eversible error appears to exist”93 or “[t]he establishment of a precedent is desirable.”94 My colleague, Judge Christopher J. McFadden, takes issue with the nomencla- ture of applications for “discretionary” appeal, rightly noting in his well- regarded treatise that there is “no discretion to deny an application for ‘discretionary review’ when reversible error appears to exist.”95 The other basis for granting an application for discretionary appeal, which is also a ground for granting an application for interlocutory appeal, is when the “establishment of precedent is desirable.”96 Of course, what is or is not desirable is entirely in the eye of the beholder. As a result, lawyers seeking to have an application for discretionary or interlocutory appeal granted need to understand that it will almost certainly be more difficult to receive a grant on this basis, or, at the very least, that there will be greater uncertainty as to the prospect of the application being granted on this ground. Indeed, when I discussed this aspect of the

90. Id. 91. See generally O.C.G.A. § 5-6-35 (2013). 92. CT. APPEALS R. 31(a). 93. CT. APPEALS R. 31(a)(1). 94. CT. APPEALS R. 31(a)(2). 95. MCFADDEN, supra note 6, at 437-38; see also SUP. CT. R. 34 (“An application for leave to appeal a final judgment in cases subject to appeal under O.C.G.A. § 5-6-35 shall be granted when . . . [r]eversible error appears to exist. . . . “); PHF II Buckhead LLC v. Dinku, 315 Ga. App. 76, 79, 726 S.E.2d 569, 572 (2012) (“Thus, in reviewing discretionary applications for appeals, our rules require us to grant the application when the trial court appears to have committed reversible error. Consequently, when this Court examines a request for a discretionary appeal, it acts in an error-correcting mode such that a denial of the application is on the merits, and the order denying the application is res judicata with respect to the substance of the requested review.”). 96. CT. APPEALS R. 31(a)(2). 2016] OPEN CHAMBERS REVISITED 27 application process with a central-staff attorney, she quipped, “It seems a little cruel to grant an application to establish precedent if you know up front that the outcome is likely to be the same.” To which I responded, “True, but the rule does not say that we will grant an application to establish precedent only when doing so will benefit the appealing party.” An appellate practitioner should be careful, then, not to conflate the “establish precedent” prong with the other, and entirely distinct, prongs of Rules 30(a) and 31(a). It is important to understand that if your application is granted for purposes of establishing precedent, it may not ultimately be to your liking. That said, I am sympathetic to applications for discretionary and interlocutory appeal that declare the need for precedent in a particular area of the law, while candidly acknowledging that the establishment of such precedent may very well result in a loss for the attorney’s client in that particular case. The key question I ask when considering applications requesting the establishment of precedent is whether the case is a good vehicle for addressing the issue. A good practitioner, then, explains not only why the establishment of precedent is desirable, but also why that case is a suitable vehicle for clarifying the issue. As previously mentioned, the other key to filing a successful application is to make absolutely sure that the application is self-contained and includes everything needed for the central-staff attorneys and judges to examine its merits. In this regard, you must include all necessary documents in the application, while also taking care not to clutter the application with extraneous parts of the trial record. You also need to be precise with your record citations and make it as easy as possible for the court to confirm that your assertions about the proceedings below are accurate. Finally, given the severe time constraints on the court in evaluating these applications, you should not expect the central-staff attorneys or judges to spend any considerable amount of time doing additional research on the issues raised by your application. Indeed, while my staff attorneys and I conduct extensive research in direct appeals, we will not—and cannot—exert anywhere near that amount of effort with regard to discretionary and interlocutory applications. To put it plainly, your application is going to be treated as a “closed memo” of sorts. If you cannot make your case within the confines of your application, you are not likely to receive grant from our court.97

97. It only takes one judge to grant a discretionary or interlocutory application, and an application is only denied when all three judges on the assigned panel are in agreement as to the denial of that application. 28 MERCER LAW REVIEW [Vol. 68

If your application is granted, it will, of course, be handled in the same manner as a direct appeal.98

VII. THE EXPANSION OF THE COURT OF APPEALS, THE CREATION OF THE APPELLATE JURISDICTION REVIEW COMMISSION, AND THE APPELLATE JURISDICTION REFORM ACT OF 2016 The first version of this article was published in 2014. Since that time, the Georgia Court of Appeals has undergone transformational changes. In 2015, the Georgia General Assembly enacted legislation (“House Bill 279”) expanding the court of appeals from twelve to fifteen judges, which means the court now has five (rather than four) divisions.99 The three additional judgeships created by this legislation were filled by Governor Nathan Deal under the appointment power granted to him by the Geor- gia Constitution100 and O.C.G.A. § 15-3-4 (b).101 These newly created judgeships are “for a term beginning January 1, 2016, and continuing through December 31, 2018, and until their successors are elected and qualified.”102 At the time my new colleagues joined the court (Judges Brian M. Rickman, Amanda H. Mercier, and Nels S.D. Peterson), we were halfway through our final term with four panels, so they were each substituted in as authors and voting judges on a designated number of randomly assigned cases (which allowed them to become acclimated with the work of the court before their first full term). Judges Rickman, Mer- cier, and Peterson will stand for election to retain their seats in 2018.

98. Every once in a while, an application for discretionary or interlocutory appeal that is granted is later dismissed on the basis that it was “improvidently granted.” This is referred to internally as a “DIG” (“dismissed as improvidently granted”). And if your case is DIGed, you should not take it personally. It does not mean that your brief was unpersuasive or that you offended the court. A dismissal on this ground simply means that the court, after a thorough review of the briefs and record, has concluded that the application should have never been granted. 99. See Ga. H.R. Bill 279, Reg. Sess. (2016), 2015 Ga. Laws, Act 138, §§ 1-2, 4-1 (amending O.C.G.A. § 15-3-1(a) (2015 & Supp. 2016)) (“The Court of Appeals shall consist of 15 Judges who shall elect one of their number as Chief Judge, in such manner and for such time as may be prescribed by rule or order of the court.”); Id. §§ 1-2, 4-1 (amending O.C.G.A. § 15-3-1 (b) (2015 & Supp. 2016) (“The court shall sit in divisions composed of three Judges in each division. . . .”). 100. GA CONST. art. VI, § 7, para. 3 (“Vacancies shall be filled by appointment of the Governor except as otherwise provided by law in the magistrate, probate, and juvenile courts.”). 101. See generally Clark, 298 Ga. at 893, 785 S.E.2d at 525 (upholding the legality of Governor Deal’s appointments). 102. O.C.G.A. § 15-3-4(b) (2015). 2016] OPEN CHAMBERS REVISITED 29

On October 1, 2015, Governor Nathan Deal issued an executive order creating the “Appellate Jurisdiction Review Commission”103 in order to “review the current jurisdictional boundaries of our appellate courts and make assessments about modernizing those courts for efficiencies to achieve best practices in the administration of justice.”104 The commission issued its report on January 12, 2016,105 and recommended, among other things: ● The Georgia General Assembly provide by law (effective January 1, 2017), under Article VI, Section VI, Paragraph III of the Georgia Consti- tution, that “the following types of cases are within the appellate jurisdiction of the Court of Appeals, rather than the Supreme Court: 1. Cases involving title to land; 2. All equity cases, except those cases concerning proceedings in which a sentence of death was imposed or could be imposed and those cases concerning the execution of a sentence of death; 3. All cases involving wills; 4. All cases involving extraordinary remedies, except those cases concerning proceedings in which a sentence of death was imposed or could be imposed and those cases concerning the execution of a sentence of death; 5. All divorce and alimony cases.”106 ● The Georgia General Assembly provide by law (effective July 1, 2016) that O.C.G.A. § 15-3-1 be amended to “allow the Court of Appeals to enact, by published rule, procedures relating to when the Court should decide cases with a panel consisting of more judges than its standard three-judge panel and when and how Court precedent is established and overruled.”

103. Governor Deal appointed the following individuals to the commission: Justice Da- vid Nahmias (Georgia Supreme Court), Justice Keith Blackwell (Georgia Supreme Court), Chief Judge Sara Doyle (Georgia Court of Appeals), Vice Chief Judge Stephen Dillard (Georgia Court of Appeals), Rep. Jon Burns (Majority Leader, Georgia House of Represent- atives), Senator Bill Cowsert (Majority Leader, Georgia State Senate), Ryan Teague (Exec- utive Counsel, Office of Governor Nathan Deal), Thomas Worthy (Director of Governmental and External Affairs, State Bar of Georgia), Kyle Wallace (Appellate Partner, Alston & Bird, LLP), Darren Summerville (Solo Appellate Practitioner, The Summerville Firm), Chuck Spahos (Executive Director, Prosecuting Attorneys Council of Georgia), and Bryan Tyson (Executive Director, Public Defenders Standards Council of Georgia). 104. GOVERNOR NATHAN DEAL, OFFICE OF THE GOVERNOR https://gov.georgia.gov/ sites/gov.georgia.gov/files/related_files/document/10.01.15.03.pdf (last visited Sept. 9, 2016). See generally Kyle G.A. Wallace, Andrew J. Tuck & Max Marks, Division of Labor: The Modernization of the Supreme Court of Georgia and Concomitant Workload Reduction Measures in the Court of Appeals, 30 GA. ST. U. L. REV. 925 (2014). 105. GOVERNOR NATHAN DEAL, OFFICE OF THE GOVERNOR, https://gov.georgia.gov/ sites/gov.georgia.gov/files/related_files/press_release/Final_Appellate%20Jurisdiction%20 Review%20Commission%20Report.pdf (last visited Sept. 9, 2016). 106. Id. at 7. 30 MERCER LAW REVIEW [Vol. 68

● The two remaining central-staff-attorney positions cut from the court of appeals’s budget during the recent recession be restored, and that additional central-staff attorneys be funded in the near future in order to allow the court of appeals to restructure its Central Staff Attor- ney Office to “more closely resemble that of other busy state and federal courts (i.e., one that shifts some cases to a central staff to assist in the drafting of opinions).”107 Then, during the 2016 legislative session, the Georgia General Assem- bly enacted House Bill 927, entitled the “Appellate Jurisdiction Reform Act of 2016,108 which, among other things, adopted several of the Appel- late Jurisdiction Review Commission’s recommendations: ● “The Court of Appeals may provide by rule for certain cases to be heard and determined by more than a single division and the manner in which those Judges will be selected for such cases. When a case is heard and determined by more than a single division, nine Judges shall be necessary to constitute a quorum.”109 ● “The Court of Appeals shall provide by rule for the establishment of precedent and the manner in which prior decisions of the court may be overruled.”110 ● “[T]he Court of Appeals rather than the Supreme Court shall have appellate jurisdiction in the following classes of cases: (1) Cases involving title to land; (2) All equity cases, except those cases concerning proceedings in which a sentence of death was imposed or could be imposed and those cases concerning the execution of a sentence of death; (3) All cases involving wills; (4) All cases involving extraordinary remedies, except those cases concerning proceedings in which a sentence of death was imposed or could be imposed and those cases concerning the execution of a sentence of death; (5) All divorce and alimony cases; and (6) All other cases not reserved to the Supreme Court or conferred on other courts.”111 These changes are nothing short of revolutionary. The Georgia Court of Appeals now has the operational flexibility (as of July 1, 2016) to consider other methods of handling cases when a judge on a three-judge panel dissents. And currently, the court of appeals is maintaining the status quo with a slight modification: If a judge dissents from a three- judge panel decision, two back-up panels are brought in to decide the case

107. Id. at 8. 108. Ga. H.R. Bill 927 § 1-1, Reg. Sess. (2016). 109. Id. § 2-1(c)(2). 110. Id. § 2-1(d). 111. Id. § 3-1. 2016] OPEN CHAMBERS REVISITED 31

(i.e., a “whole court nine” decision).112 But in the near future, the court of appeals will dramatically change the manner in which it operates. On September 1, 2016, the court adopted an operational model similar to that used by the federal circuit courts.113 Under this model, the court will allow panel decisions with a 2-1 outcome and abolish back-up panels altogether. A 2-1 decision—like a 3-0 decision with a judge concurring in judgment only—will be a “physical precedent” that is not binding authority. And while there will be procedures adopted in the near future for considering 2-1 decisions en banc, en banc consideration of those decisions will involve the entire court (all 15 judges), rather than just 7 or 9 judges. In my view, this manner of handling dissents not only maximizes the efficiency of the three-judge-panel model, but also ensures that en banc review will occur almost exclusively in cases where this level of review is actually warranted.114 And given the heavy caseload of the court of appeals and the pressures brought on by the two-term rule, the imple- mentation of these efficiency measures is crucial. The General Assembly and Governor Deal are to be applauded for permitting the court of appeals to design and implement its own operational

112. See O.C.G.A. § 15-3-1(c)(2) (2015 & Supp. 2016) (“The Court of Appeals may provide by rule for certain cases to be heard and determined by more than a single division and the manner in which those Judges will be selected for such cases. When a case is heard and determined by more than a single division, nine Judges shall be necessary to constitute a quorum.”); COURT OF APPEALS OF GEORGIA, http://www.gaappeals.us/operating_proc edures.pdf (last visited Sept. 9, 2016) (“Consistent with this new statutory authority, the Judges of this Court adopted, effective July 1, 2016, new operating procedures. Those procedures shall remain in effect until such time as new rules are adopted. These procedures include: [1] In the event of a dissent, the two divisions immediately following the original division shall also participate. . . .”). 113. See COURT OF APPEALS OF GEORGIA, http://www.gaappeals.us/news2.php?t itle=Court%20of%20Appeals%20New%20Operating%20Procedures (last visited Sept. 9, 2016) (“On September 1, 2016, the Judges of this Court approved changes to its operating procedures, which the Court plans to implement no later than the December Term of 2017. They are as follows: [1] The Court will allow 2-1 decisions in the event of a dissent, without requiring two additional divisions of the Court to participate. A 2-1 decision will constitute physical precedent only and be of no precedential value. See Court of Appeals Rule 33. [2] The Court will establish operating procedures to poll the entire Court to determine whether the Court desires to hear the case en banc in the event precedent is proposed to be overruled or a judge wishes to have the entire Court consider a case en banc. [3] The Court is also considering procedures by which a party may request a rehearing en banc, consistent with the two-term rule.”). 114. See Wright v. State, No. A16A0240, 2016 Ga. App. LEXIS 455, at *25 (July 15, 2016) (Peterson, J., concurring fully and specially) (noting that “[c]onvening an en banc court at any time is ‘costly to an appellate court in terms of consumption of its always limited resources of judicial time and energy’” (citation omitted)). 32 MERCER LAW REVIEW [Vol. 68 model of handling cases with dissents and to “provide by rule for the establishment of precedent.”115 They are also to be commended for adopting the recommendation of the Appellate Jurisdiction Review Commission to shift the jurisdiction of several categories of appeals from the supreme court to the court of appeals. This historic jurisdictional shift not only brings Georgia’s appellate judicial system more in line with other states (i.e., one with a truly intermediate appellate court and a more certiorari- based supreme court),116 it will also greatly reduce the amount of time and effort our appellate courts typically spend resolving the jurisdictional demarcation line in those particular cases.117 And while these seismic changes will undoubtedly make Georgia’s appellate courts more streamlined and efficient, the state’s growing population (currently just over ten million) and ever-increasing caseload will continue to present challenges for the court of appeals and those who practice before it.118

115. See O.C.G.A. § 15-3-1(d) (“The Court of Appeals shall provide by rule for the establishment of precedent and the manner in which prior decisions of the court may be overruled.”); COURT OF APPEALS OF GEORGIA, http://www.gaapeals.us/operating_procedures.pdf (last visited Sept. 9, 2016) (“Consistent with this new statutory authority, the Judges of this Court adopted, effective July 1, 2016, new operating procedures. Those procedures shall remain in effect until such time as new rules are adopted. These procedures include: . . . [2] In the event of a case involving the overruling of a prior decision of this Court, all 15 Judges of this Court shall participate (provided, however, that the disqualification of one or more Judges in such a case shall not prevent the overruling of a prior decision so long as at least nine Judges participate).”). 116. See Wallace et al., supra note 104, at 949 (“There is no principled reason for the Supreme Court to serve as an error-correcting court over the vast majority of cases that are currently [i.e., in 2014] within its jurisdiction—equity cases, divorce cases, habeas corpus cases, cases involving extraordinary remedies, cases involving title to land . . . and cases involving the construction of wills. Moving direct appeals of these cases to the Court of Appeals will resolve the current confusion over the scope of the Supreme Court’s jurisdiction, and it will allow the Supreme Court to focus on serving the function that it should serve—creating a coherent, uniform body of legal precedent in Georgia.”). 117. Id. at 946-47 (“The most alarming waste created by the archaic jurisdictional split in Georgia’s appellate system is the time that the Supreme Court and Court of Appeals spend considering which appellate court has jurisdiction over the appeal to hear it on the merits. This issue often results in transfers from the Court of Appeals to the Supreme Court, which sometimes result in transfers back to the Court of Appeals . . . resulting in a tremendous waste of Georgia’s already taxed judicial resources.”); ANDY CLARK LAW http://andyclarklaw.com/potential-realignment-of-the-georgia-appellate-courts-jurisdiction/ (visited Sept. 9, 2016) (“A big benefit to the judicial system [of a significant jurisdictional shift of cases from the Supreme Court to the Court of Appeals] will be that it spends far fewer resources deciding which court has jurisdiction. For parties, that means some cases will get to the briefing stage faster, for better or worse. Far fewer cases will be transferred from the Court of Appeals to the Supreme Court and then back again.”). 118. See State v. Int’l Keystone Knights of the Ku Klux Klan, Inc., 299 Ga. 392, 398 n.19, 788 S.E.2d 455, 461 n.19 (2016) (“Although OCGA § 5-6-35 (a) undoubtedly has helped with 2016] OPEN CHAMBERS REVISITED 33

VIII. CLOSING THOUGHTS The Georgia Court of Appeals is one of the busiest intermediate appellate courts in the country and faces unique challenges as a result of its heavy caseload and our state’s constitutional two-term requirement. Practitioners who understand these challenges and craft their briefs, presentations, and applications with these challenges in mind can more effectively represent their clients and ensure that their arguments are given the greatest consideration possible.

the ‘massive caseload of Georgia’s appellate courts,’ this Court and our Court of Appeals both continue to manage very heavy caseloads.”); TERRY, GEORGIA APPEALS, supra note 6, at 12 (“Despite these additions of judges [i.e., expansion of the Court of Appeals from 12 to 15], the growth of the court had not remotely kept up with the growth of the state and of the appellate caseload. The Court of Appeals of Georgia has been for years and remains the busiest intermediate appellate court in the country, with more cases per judge than any other. Each judge must finally dispose of more than four cases per week, and review and vote upon more than twice that many written by other judges. That does not include orders, motions, and interlocutory and discretionary applications.”). 34 MERCER LAW REVIEW [Vol. 68

SUPREME COURT PRACTICE

<< Back to Table of Contents Materials will be provided at the program. WHAT I LEARNED AT MY UNITED STATES SUPREME COURT ARGUMENT

<< Back to Table of Contents

WHAT I LEARNED AT MY UNITED STATES SUPREME COURT ARGUMENT

Amy Levin Weil, The Weil Law Firm, Atlanta

• Petition for Writ of Certiorari in Culbertson v. Berryhill

• Brief of Court Appointed Amicus in Culbertson v. Berryhill

• U.S. Supreme Court Opinion in Culbertson v. Berryhill No.

RICHARD A. CULBERTSON, PETITIONER v.

NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

RICHARD A. CULBERTSON DANIEL R. ORTIZ SARAH FAY Counsel of Record LAW OFFICES OF RICHARD TOBY J. HEYTENS A. CULBERTSON UNIVERSITY OF VIRGINIA 3200 Corrine Drive SCHOOL OF LAW Orlando, Florida SUPREME COURT 32803 LITIGATION CLINIC (407) 894-0888 580 Massie Road Charlottesville, VA 22903 (434) 924-3127 [email protected]

MARK T. STANCIL JOHN P. ELWOOD MATTHEW M. MADDEN JEREMY C. MARWELL ROBBINS, RUSSELL, VINSON & ELKINS LLP ENGLERT, ORSECK, 2200 Pennsylvania Ave., UNTEREINER & SAUBER N.W. LLP Suite 500W 1801 K Street, N.W. Washington, DC 20004 Suite 411L (202) 639-6500 Washington, D.C. 20006 (202) 775-4500

QUESTION PRESENTED “Fees for [the] representation of individuals claiming Social Security old-age, survivor, or disability benefits [at] the administrative and judicial review stages [are handled] discretely: [42 U.S.C.] § 406(a) governs fees for representation in administrative proceedings; § 406(b) controls fees for representation in court.” Gisbrecht v. Barnhart, 535 U.S. 789, 793- 794 (2002). Section 406(b) specifies in particular that [w]henever a court renders a judgment favorable to a claimant * * * who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment. 42 U.S.C. § 406(b)(1)(A) (emphasis added). The question presented is: Whether fees subject to § 406(b)’s 25-percent cap include, as the Sixth, Ninth, and Tenth Circuits hold, only fees for representation in court or, as the Fourth, Fifth, and Eleventh Circuits hold, also fees for representation before the agency.

PARTIES TO THE PROCEEDING BELOW In addition to Richard A. Culbertson and the then- Commissioner of Social Security, Celalettin Akarcay, Darleen R. Schuster, Bill J. Westfall, and Katrina F. Wood were parties in the consolidated proceeding in the court of appeals. Among the non-governmental parties, Richard A. Culbertson is the real party in interest. App., infra, 3a, n.1. Since the petition concerns fee awards related to the representation of only Bill J. Westfall and Katrina F. Wood, petitioner believes that Celalettin Akarcay and Darleen R. Schuster have no interest in the outcome of the petition. See Rule 12.6.

III

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Table Of Authorities ...... V Opinions Below ...... 1 Jurisdiction ...... 1 Relevant Statutory Provisions ...... 1 Statement ...... 1 A. Statutory Background ...... 1 B. Procedural Background ...... 3 Reasons For Granting The Petition ...... 6 I. There Is A Deep And Acknowledged Conflict Among The Courts Of Appeals Over Whether Section 406(b)’s 25-Percent Cap On Attorney’s Fees Applies Only To Fees Awarded Under Section 406(b) Or To The Combined Total Fees Awarded Under Sections 406(a) And 406(b) ...... 6 A. Three Federal Circuits Hold That Section 406’s Legislative History Requires The Total Fees Awarded Under Sections 406(a) And 406(b) To Be Capped At 25 Percent Of Past-Due Benefits ...... 8 B. Three Other Federal Circuits Hold That Section 406’s Plain Language, Structure, And Legislative History All Require That Section 406(b)’s 25-Percent Cap Apply Only To Fees Awarded For Work Before The Court ...... 11

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II. The Fourth, Fifth, And Eleventh Circuits Misinterpret The Statute’s Plain Language, Structure, Purpose, And History ...... 15 A. The Plain Language Of Section 406(b) Makes Clear That A Court Should Not Consider Fees Awarded Under Section 406(a) As Subject To Section 406(b)’s 25- Percent Cap ...... 15 B. Section 406’s Structure Creates Distinct Avenues For Obtaining Fees For Administrative And Judicial Represen- tation ...... 17 C. Applying A Cap Of 25 Percent Under Section 406(b) For Work Done Before Both The Agency And The District Court Undermines Congress’s Purpose ...... 20 D. Those Courts Holding That Section 406(b)’s 25-Percent Cap Applies To Fees Awarded For Both Administrative And In- Court Representation Misinterpret The Legislative History ...... 23 III. This Recurring Issue Is Of National Impor- tance ...... 25 IV. This Case Provides An Ideal Vehicle For Resolving The Conflict ...... 30 Conclusion ...... 31

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Cases: Bookman v. Commissioner of Soc. Sec., 490 F. App’x 314 (11th Cir. 2012) ...... 4, 5 Booth v. Commissioner of Soc. Sec., 645 F. App’x 455 (6th Cir. 2016) ...... 7 Caminetti v. United States, 242 U.S. 470 (1917) ...... passim Clark v. Astrue, 529 F.3d 1211 (9th Cir. 2008) ... passim Connecticut Nat’l Bank v. Germain, 503 U.S. 249 (1992) ...... 17, 20 Crawford v. Astrue, 586 F.3d 1142 (9th Cir. 2009) ..... 29 Dawson v. Finch, 425 F.2d 1192 (5th Cir. 1970) ...... passim Department of Homeland Sec. v. MacLean, 135 S. Ct. 913 (2015) ...... 16 Gisbrecht v. Barnhart, 535 U.S. 789 (2002) ...... I, 13, 21 Horenstein v. Secretary of Health & Human Servs., 35 F.3d 261 (6th Cir. 1994) ...... 8, 12 Jackson v. Astrue, 705 F.3d 527 (5th Cir. 2013) ...... 8 Moriarty v. Colvin, 806 F.3d 664 (1st Cir. 2015) ...... 25 Morris v. Social Sec. Admin., 689 F.2d 495 (4th Cir. 1982) ...... 8, 9, 10, 11 Murkeldove v. Astrue, 635 F.3d 784 (5th Cir. 2011) ...... 7, 8 NLRB v. SW Gen., Inc., 137 S. Ct. 929 (2017) ...... 23

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Paltan v. Commissioner of Soc. Sec., 518 F. App’x 673 (11th Cir. 2013) ...... 4, 5 Rice v. Astrue, 609 F.3d 831 (5th Cir. 2010) ...... 7, 8, 10 Rubin v. United States, 449 U.S. 424 (1981) ...... 17 Wrenn v. Astrue, 525 F.3d 931 (10th Cir. 2008) ...... 8, 11, 12, 13 Statutes and Regulations: 28 U.S.C. § 1254(1) ...... 1 42 U.S.C. § 306(a) ...... 20 42 U.S.C. § 401 ...... 1 42 U.S.C. § 406(a) ...... passim 42 U.S.C. § 406(b) ...... passim 20 C.F.R. § 404.1720(d) ...... 17 20 C.F.R. § 404.1725(b) ...... 2, 17 Legislative Materials: Hearings on H.R. 6675 Before the Senate Comm. on Fin., 89th Cong. (1965) ...... passim S. Rep. No. 89-404 (1965) ...... 10, 24 Social Security Processing of Attorney Fees: Hearing Before the Subcomm. on Soc. Sec. of the House Comm. on Ways & Means, 107th Cong. (2001) ...... 29, 30

VII

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Miscellaneous: Lester Brickman, Contingency Fee Abuses, Ethical Mandates, and the Disciplinary System: The Case Against Case-by-Case Enforcement, 53 Wash. & Lee L. Rev. 1339 (1996) ...... 22 Kimberley Dayton et al., Advising the Elderly Client (2017) ...... 25 Robert E. Jones et al., Rutter Group Practice Guide: Federal Civil Trials and Evidence § 19:335.1 (Westlaw, current through June 2017) ...... 7 Carolyn A. Kubitschek & Jon C. Dubin, Social Security Disability Law and Procedure in Federal Court § 10:8 (Westlaw current through Feb. 2017) ...... 7 Maximum Dollar Limit in the Fee Agreement Process, 74 Fed. Reg. 6080 (Feb. 4, 2009) ..... 2, 17-18 Model Code of Prof’l Responsibility EC 2-20 (Am. Bar Ass’n 1980) ...... 20 Joyce Nicholas & Michael Wiseman, Elderly Poverty and Supplemental Security Income, 69 Soc. Sec. Bulletin 45 (2009), https://www.ssa.gov/policy/docs/ssb/v69n1/v69n1 p45.html ...... 26

VIII

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Off. of the Inspector Gen., Soc. Sec. Admin., Fiscal Year 2013 Inspector General Statement on the Social Security Administration’s Major Management and Performance Challenges (Dec. 2013), https://www.ssa.gov/finance/2013/OIG% 202013%20AFR%20Mgmt%20Challenges.pdf ...... 27 Off. of the Inspector Gen., Soc. Sec. Admin., Infor- mational Report: Agency Payments to Claimant Representatives, No. A-05-15-15017 (July 2015), https://oig.ssa.gov/sites/default/files/audit/full/pd f/A-05-15-15017.pdf...... 19, 23, 28 Off. of Mgmt. & Budget, Historical Tables, Table 8.3 (2017), https://www.whitehouse.gov/omb/bud get/Historicals ...... 25 1 Robert L. Rossi, Attorneys’ Fees § 10:66 (3d ed. 2017) (Westlaw, current through June 2017) ...... 7 Soc. Sec. Admin., Annual Statistical Report on the Social Security Disability Insurance Program, 2015 (2016) ...... 26 Soc. Sec. Admin., Annual Statistical Supplement to the Social Security Bulletin, 2016 (2017) ...... 25 Soc. Sec. Admin., Fast Facts & Figures About Social Security, 2017, https://www.ssa.gov/policy/docs/c hartbooks/fast_facts/2017/fast_facts17.html#con tributions ...... 26

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Soc. Sec. Admin., Program Operations Manual System, GN 03920.017 § D.5, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0203 920017#b ...... 19 Soc. Sec. Admin., Program Operations Manual System, Representative’s Fee—Title II Past-Due Benefits GN 03920.030 ...... 19, 28 Soc. Sec. Admin., Program Operations Manual System, GN 03920.060 § A.5, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0203 920060 ...... 19 Soc. Sec. Admin., SSI Annual Statistical Report, 2015, (Jan. 2017) ...... 26 Soc. Sec. Admin., Understanding Supplemental Security Income (SSI) Overview—2017 Edition, https://www.ssa.gov/ssi/text-over-ussi.htm ...... 25 Soc. Sec. Admin., What You Need to Know When You Get Social Security Disability Benefits (2017), https://www.ssa.gov/pubs/EN-05-10153.pdf .... 28, 29 Christopher R. Tamborini et al., A Profile of Social Security Child Beneficiaries and Their Families: Sociodemographic and Economic Characteris- tics, 71 Soc. Sec. Bulletin 1 (2011), https://www.ssa.gov/policy/docs/ssb/v71n1/v71n 1p1.html ...... 27

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United States District Courts—National Judicial Caseload Profile, http://www.uscourts.gov/sites/d efault/files/data_tables/fcms_na_distprofile0630. 2017.pdf ...... 27 U.S. Gov’t Accountability Off., GAO-07-331, Disability Programs: SSA Has Taken Steps to Address Conflicting Court Decisions, but Needs to Manage Data Better on the Increasing Number of Court Remands (2007) ...... 22 5 West’s Federal Administrative Practice § 6277 (Westlaw, current through June 2017) ...... 7

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a- 17a) is reported at 861 F.3d 1197. The district court’s orders of April 20, 2016, on Plaintiff’s Amended Consent Motion For Attorney’s Fees (App., infra, 18a- 29a), of November 17, 2015, on Plaintiff’s Unopposed Request For Authorization To Charge A Reasonable Fee Under 42 U.S.C. 406(b) (App. infra, 30a-35a), and of April 19, 2015, on Defendant’s Motion For Relief From Order Pursuant To Rule 60 (App., infra, 36a- 57a), are unpublished. JURISDICTION The judgment of the court of appeals was entered on June 26, 2017. On September 15, 2017, Justice Thomas extended the time for filing a petition for a writ of certiorari until November 23, 2017. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). RELEVANT STATUTORY PROVISIONS The pertinent parts of the relevant statutory provisions, 42 U.S.C. § 406(a)-(b), appear in the appendix. App., infra, 58a-64a. STATEMENT A. Statutory Background Title II of the Social Security Act, 42 U.S.C. § 401 et seq., governs the award and collection of fees by

2 attorneys representing claimants seeking old-age, survivor, or disability insurance benefits. Section 406(a) governs the award and collection of attorney’s fees for representing Social Security claimants before the agency. Section 406(b), by contrast, governs the award and collection of fees by attorneys for representing claimants in court. Section 406(a) provides two ways for an attorney to obtain fees for work before the agency: the “fee petition process” and the “fee agreement process.” The “fee petition process” is governed by § 406(a)(1). When the agency acts favorably to the claimant, § 406(a)(1) authorizes the Administration to “fix * * * a reasonable fee to compensate [the] attorney for the services performed by him in connection with such claim.” 42 U.S.C. § 406(a)(1). Section 406(a)(1) requires that any such award be “reasonable” but does not otherwise limit it. And the agency “may authorize a fee even if no benefits are payable.” 20 C.F.R. § 404.1725(b)(2). The “fee agreement process” is governed by § 406(a)(2). Under it, the attorney and the claimant enter into a written fee agreement and submit it to the agency before it determines the claimant’s benefits. 42 U.S.C. § 406(a)(2)(A). If the agency acts favorably to the claimant, it “shall approve” the fee agreement at the time of the determination, provided the fee does not exceed the lesser of 25 percent of the claimant’s past-due benefits or $6,000. Maximum Dollar Limit in the Fee Agreement Process, 74 Fed. Reg. 6080 (Feb. 4, 2009).

Section 406(b), by contrast, governs the fees an attorney may charge a claimant for representation in court. It states that [w]henever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past- due benefits to which the claimant is entitled by reason of such judgment. 42 U.S.C. § 406(b)(1)(A). The particular question concerns whether § 406(b)’s allowance of “reasonable fee[s] for such representation,” ibid. (emphasis added), includes representation before the agency or only before the court. B. Procedural Background 1. In 2008, Katrina F. Wood, represented by Richard A. Culbertson, filed for Social Security disability benefits but was determined by the Administrative Law Judge (ALJ) not to be disabled. App., infra, 28a. After the Appeals Council denied review, Wood sought review in the district court, which reversed and remanded the agency’s decision. Ibid. The court also awarded Wood $4,107.27 in attorney’s fees under the Equal Access to Justice Act (EAJA). App., infra, 22a. At that point, Wood and Culbertson entered into a fee agreement providing for attorney’s fees for future work in the amount of 25 percent of any past-due benefits minus attorney fees paid under the EAJA. App., infra, 19a, 22a. On reconsideration, the agency awarded Wood past-due benefits of $35,211 for

4 herself and a child beneficiary, App., infra, 27a, and, pursuant to § 406(a), awarded Culbertson $2,865 in attorney’s fees for representing her before the agency, App., infra, 5a, 22a, which would come out of her awarded past-due benefits, App., infra, 19a. Wood then asked the district court to authorize a payment of $4,488.48 in attorney’s fees to Culbertson under § 406(b) for his work reversing the agency’s initial decision in court. App., infra, 19a. The request followed the terms of the fee agreement and represented 25 percent of the past-due benefits that Wood had collected ($8,595.75) minus the fees already awarded under the EAJA ($4,107.27). App., infra, 19a. Relying on Fifth Circuit precedent adopted by the Eleventh Circuit and two unpublished Eleventh Circuit decisions, see App., infra, 20a (following Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir. 1970) and citing Paltan v. Commissioner of Social Security, 518 F. App’x 673 (11th Cir. 2013) and Bookman v. Commissioner of Social Security, 490 F. App’x 314 (11th Cir. 2012) as persuasive authority), the district court held, however, that § 406(b) imposed a 25- percent cap on the total amount of attorney’s fees that could be awarded under both § 406(a) and § 406(b), App., infra, 26a. It thus declined to award Culbertson for his work in court 25 percent of the past-due benefits minus the EAJA award, as the fee agreement provided. Ibid. The district court instead awarded only $1,623.48, which represented 25 percent of the past-due benefits minus both the EAJA award and the § 406(a) fees awarded by the Commissioner. App., infra, 26a.

2. Culbertson also successfully represented claimant Bill Westfall before the agency and district court. App., infra, 6a, 33a. After the agency denied Westfall disability benefits, the district court reversed and remanded and awarded Westfall $2,713.30 under the EAJA. App., infra, 6a. On remand, the agency awarded Westfall past-due benefits of $24,157. Ibid. Based on a contingency-fee agreement with Westfall, App., infra, 31a, Culbertson asked the district court for $3,325.95 in attorney’s fees for representation in court under § 406(b), which represented 25 percent of past- due benefits awarded ($6,039.25) less the EAJA award ($2,713.30), App., infra, 6a-7a. Relying on Fifth Circuit precedent adopted by the Eleventh Circuit and two unpublished Eleventh Circuit decisions, see App., infra, 32a (following Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir. 1970) and citing Paltan v. Commissioner of Soc. Sec., 518 F. App’x 673 (11th Cir. 2013) and Bookman v. Commissioner of Soc. Sec., 490 F. App’x 314 (11th Cir. 2012) as persuasive authority), the district court held that § 406(b) imposed a 25-percent cap on the total amount of attorney’s fees that could be awarded under both § 406(a) and § 406(b), ibid. Since the agency had not yet determined allowable § 406(a) fees, the district court allowed Culbertson’s full § 406(b) request for $3,325.95 but barred him from requesting further fees under § 406(a) or otherwise. App., infra, 7a. 3. On consolidated appeal, the Eleventh Circuit affirmed the district court’s orders. App., infra, 17a. It first rejected the claimants’ argument that Dawson, the controlling Fifth Circuit precedent adopted by the Eleventh Circuit, see App., infra, 11a, limited only the

6 amount the agency could itself pay out from past-due benefits, not the amount the district court could authorize for payment, App., infra, 13a. Next it acknowledged that three other circuits “do not apply the 25% limit in § 406(b) to the aggregate fee award under § 406.” Ibid. Although that was “[t]rue,” the court argued (1) that all those cases “explicitly or implicitly recognize that Dawson[, the controlling Fifth Circuit precedent, did] limit[] the combined § 406(a) and (b) attorney’s fees awards to 25% of past-due benefits,” ibid., (2) that “[t]he Fifth Circuit continues to read Dawson to limit the aggregate award” and (3) that “the Fourth Circuit [has] relied on Dawson to support its holding that § 406(b) limits the combined § 406 award to 25% of past-due benefits.” App., infra, 14a, n.5 (citations omitted). “To the extent Mr. Culbertson points to other circuits to argue Dawson was wrongly decided,” it noted, “this does not empower us to ignore it.” App., infra, 14a. “We are,” it continued, “bound by this circuit’s prior panel precedent rule to apply Dawson’s holding unless it is overruled by the Supreme Court or by this Court sitting en banc.” Ibid. REASONS FOR GRANTING THE PETITION I. There Is A Deep And Acknowledged Conflict Among The Courts Of Appeals Over Whether Section 406(b)’s 25-Percent Cap On Attorney’s Fees Applies Only To Fees Awarded Under Section 406(b) Or To The Combined Total Fees Awarded Under Sections 406(a) And 406(b) In reaching its decision below, the Eleventh Circuit noted that “some other circuits” disagreed with it and “do not apply the 25% limit in § 406(b) to the aggregate

7 fee award under § 406.” App., infra, 13a. The Fifth Circuit has also recognized “sharp disagreement from other courts of appeals” over how § 406(b)’s 25-percent cap applies, Rice v. Astrue, 609 F.3d 831, 835 (5th Cir. 2010), and several other courts of appeals have acknowledged the split as well, Booth v. Commissioner of Soc. Sec., 645 F. App’x 455, 457 (6th Cir. 2016) (acknowledging the split with a “But see” signal); Murkeldove v. Astrue, 635 F.3d 784, 788 n.1 (5th Cir. 2011) (“There is currently a Circuit split on the issue.”); Clark v. Astrue, 529 F.3d 1211, 1215 (9th Cir. 2008) (noting that “[o]ther circuits that have addressed this issue have reached different results” and characterizing the split as one between a “plain text” approach and an approach “[b]ased primarily on legislative history”). Practice guides to Social Security law also have acknowledged the split. See Robert E. Jones et al., Rutter Group Practice Guide: Federal Civil Trials and Evidence § 19:335.1 (Westlaw, current through June 2017) (discussing the split); Carolyn A. Kubitschek & Jon C. Dubin, Social Security Disability Law and Procedure in Federal Court § 10:8 (Westlaw, current through Feb. 2017) (same); 1 Robert L. Rossi, Attorneys’ Fees § 10:66 (3d ed. 2017) (Westlaw, current through June 2017) (same); 5 West’s Federal Administrative Practice § 6277 (Westlaw, current through June 2017) (same). Indeed, even the Commissioner of Social Security has acknowledged the circuit split: This Court[, the Fifth Circuit,] has held that § 406 limits the combined amount of attorney’s fees that may be awarded the attorney under § 406(a)

and § 406(b) to a total of 25 percent of any past-due benefits awarded to the claimant. Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir.), cert. denied, 400 U.S. 830 (1970). Accord Morris v. SSA, 689 F.2d 495, 497-98 (4th Cir. 1982). But see Clark v. Astrue, 529 F.3d 1211, 1215 (9th Cir. 2008) (“§ 406(b)’s cap on attorney's fees applies only to fees awarded under § 406(b), and does not limit the combined fees awarded under both § 406(a) and § 406(b)”); Wrenn v. Astrue, 525 F.3d 931, 936 (10th Cir. 2008) (same), and Horenstein v. Secretary of HHS, 35 F.3d 261, 262 (6th Cir. 1994) (en banc) (same). Gov’t C.A. Br. at 5 n.2, Jackson v. Astrue, 705 F.3d 527 (5th Cir. 2013) (No. 12-10255); see also Gov’t C.A. Br. at 7 & n.3, Murkeldove v. Astrue, 635 F.3d 784 (5th Cir. 2011) (Nos. 09-11093 & 09-10902) (similarly summa- rizing the split). Where, as here, there is “sharp disagreement” among the circuits, Rice, 609 F.3d at 835, only this Court’s review can bring uniformity to the law and settle this pressing and practically important issue. A. Three Federal Circuits Hold That Section 406’s Legislative History Requires The Total Fees Awarded Under Sections 406(a) And 406(b) To Be Capped At 25 Percent Of Past-Due Benefits The Fourth, Fifth, and Eleventh Circuits have held that 42 U.S.C. § 406(b) “precludes the aggregate allowance of attorney’s fees greater than 25 percent of the past due benefits received by the claimant” without regard to whether those fees were authorized

9 under § 406(a) for representation before the agency or under § 406(b) for representation in court. Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir. 1970); see also App., infra, 11a-12a (interpreting Dawson as holding that “the 25% limit from § 406(b) applies to total fees awarded under both § 406(a) and (b)”); Morris v. Social Sec. Admin., 689 F.2d 495, 496 (4th Cir. 1982) (per curiam) (affirming district court’s ruling that § 406 “limits the aggregate attorney’s fees recoverable to 25 percent of the claimant’s past-due benefits”). These courts have followed a particular reading of the statute’s legislative history to reach this result. Morris, 689 F.2d at 497; Dawson, 425 F.2d at 1194- 1195. They all have focused on the Department of Health, Education, and Welfare’s (HEW) statements in 1965 to the Senate Finance Committee about why the 25-percent cap to § 406(b) should be added. Morris, 689 F.2d at 497; Dawson, 425 F.2d at 1194- 1195. These courts place particular weight on the Department’s statement that amending § 406(b) was “designed to alleviate two problems.” Dawson, 425 F.2d at 1194 (quoting Hearings on H.R. 6675 Before the S. Comm. on Fin., 89th Cong. 512-513 (1965)). According to HEW, the amendment would first “encourage effective legal representation of claimants [by allowing] the court-approved fee to the attorney [to be paid directly by the agency] out of the amount of accrued benefits.” Ibid. (quoting Hearings on H.R. 6675 Before the S. Comm. on Fin., 89th Cong. 512-513 (1965)). Second, the amendment’s 25-percent cap would address concerns “that attorneys have on occasion charged what appeared to be inordinately large fees for representing claimants in Federal

10 district court actions arising under the social security program.” Ibid. (quoting Hearings on H.R. 6675 Before the S. Comm. on Fin., 89th Cong. 512-513 (1965)) The Fourth Circuit focused further on a Senate report that used language virtually identical to HEW’s second statement. Morris, 689 F.2d at 497 (ignoring HEW’s first statement that § 406(b) was intended to “encourage effective legal representation of claimants,” but using both the report and HEW’s second statement to identify “inordinately large fees * * * as the impetus for the amendment”) (quoting S. Rep. No. 89-404, at 122 (1965)). To these courts, this legislative history indicated a congressional intent “to insure [sic] that the old age benefits for retirees and disability benefits for the disabled, which are usually the claimant’s sole means of support, are not diluted by a deduction of an attorney’s fee of one-third or one- half of the benefits received.” Dawson, 425 F.2d at 1194-1195; see also Morris, 689 F.2d at 497 (discussing the Senate report and concluding that “the legislative history of section 406 convinces us that the court must take into account any fees fixed by the Secretary pursuant to subsection (a)”). Based on these concerns, these courts held that “fees under § 406(a) [awarded at the administrative level] plus fees under § 406(b) [awarded at the district-court level] cannot exceed 25% [of the claimant’s past-due benefits].” Rice, 609 F.3d at 835. The Fourth Circuit relied further on the 1965 amendment’s legislative history to interpret a later 1968 amendment to § 406(a), which it thought supported aggregating § 406(a) and § 406(b) awards

11 under § 406(b)’s cap. Morris, 689 F.2d at 497-498. The court explained that after the 1968 amendment to § 406(a), which limited attorney’s fees for representation before the agency to 25 percent of past-due benefits, “neither the Secretary nor the district court was authorized to approve an attorney’s fee in excess of 25 percent of the successful claimant’s past-due benefits.” Id. at 497. Since “Congress,” it believed, “did not want the amount of an attorney’s fees to turn on the forum in which a claim was decided,” the Fourth Circuit inferred “that the same desire to eliminate ‘inordinately large fees[]’ * * * that prompted Con- gress to adopt the 1965 amendment * * * also inspire[d] the passage of the parallel 1968 amendment.” Id. at 497-498. From this, the court concluded, the 25-percent cap had to apply to the total of § 406(a) and § 406(b) awards. Otherwise, “an attorney [could] recover fifty percent of his client’s accrued benefits in direct contravention of congressional attempts to foreclose contingent fee arrangements of one-third to one-half.” Id. at 498. B. Three Other Federal Circuits Hold That Section 406’s Plain Language, Structure, And Legislative History All Require That Section 406(b)’s 25-Percent Cap Apply Only To Fees Awarded For Work Before The Court The Sixth, Ninth, and Tenth Circuits have interpreted § 406(b) as limiting “only the amount of attorney’s fees awarded under § 406(b), not the combined fees awarded under § 406(a) and § 406(b), to 25% of the claimant’s past-due benefits.” Clark v. Astrue, 529 F.3d 1211, 1218 (9th Cir. 2008); see also

Wrenn v. Astrue, 525 F.3d 931, 937 (10th Cir. 2008) (“Based on the plain language and statutory structure found in § 406, the 25% limitation on fees for court representation found in § 406(b) is not itself limited by the amount of fees awarded by the Commissioner”); Horenstein v. Secretary of Health & Human Servs., 35 F.3d 261, 262 (6th Cir. 1994) (en banc) (overruling prior circuit precedent and holding that § 406(b)’s 25- percent cap applies only “[f]or services performed in a federal court where the court awards benefits”). The primary rationale embraced by these courts, as expressed by Judge Bea writing for the Ninth Circuit in Clark v. Astrue, is that “the plain text of § 406(b) limits only the award of attorney’s fees for representation of a Social Security claimant before the district court.” 529 F.3d at 1215; see also Wrenn, 525 F.3d at 937 (“[b]as[ing holding] on the plain language and statutory structure found in § 406”); Horenstein, 35 F.3d at 262 (overruling precedent that had imposed a “blanket 25 percent cap on fee awards” because that holding “f[ound] little support in the language of the statute”). That “plain text” instructs that [w]henever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past- due benefits to which the claimant is entitled by reason of such judgment.

42 U.S.C. § 406(b)(1)(A). These courts have reasoned that “[t]he statute authorizes the court to award a reasonable fee ‘for such representation’” and that “such representation” can refer only to “representation ‘before the court,’” Clark, 529 F.3d at 1215 (quoting § 406(b)), the only type of representation referenced by § 406(b) itself. Some of these courts have also held that § 406’s structure points to the same conclusion. The Tenth Circuit, for example, has noted that “[s]ection 406 ‘deals with the administrative and judicial review stages discretely: § 406(a) governs fees for representation in administrative proceedings; § 406(b) controls fees for representation in court.’” Wrenn, 525 F.3d at 932 (quoting Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002)); see also Clark, 529 F.3d at 1214 (describing § 406(a) as “govern[ing] the award and collection of attorney’s fees for the representation of Social Security claimants in proceedings before the Administration” and § 406(b) as “govern[ing] the award and collection of fees by attorneys for the representation of claimants in court”). The Ninth Circuit has likewise pointed out that § 406(a)(1) gives the agency the power to award attorney’s fees that are “reasonable” at the administrative level—without imposing a 25-percent limit—in the event that there is no contingency agreement between a claimant and an attorney who represented the claimant during the administrative proceedings. Id. at 1216 (quoting 42 U.S.C. § 406(a)(1)). “If a fee award under § 406(a) can be greater than 25% of past-due benefits,” the court explained, “it follows that the combined amount of fees

14 awarded under both § 406(a) and § 406(b) must be capable of exceeding 25% of past-due benefits.” Ibid. Finally, the Ninth Circuit “f[ou]nd unconvincing the legislative history upon which the Fourth and Fifth Circuits relied in holding § 406(b) limits the combined total of attorney’s fees awarded under both § 406(a) and § 406(b) to 25% of past-due benefits.” Clark, 529 F.3d at 1216. The Ninth Circuit noted that the testimony referenced by the Fifth Circuit demonstrated a concern only about “inordinately large fees for representation ‘of claimants in Federal district court actions.’” Id. at 1216-1217 (quoting Dawson, 425 F.2d at 1194). “Nowhere,” it explained, “did Congress (or even a congressional committee) express a desire to limit the aggregate fees awarded both for representation of a claimant in court and for representation of the claimant before the Admin- istration.” Ibid. Next, the Ninth Circuit pointed out that the Fourth Circuit in Morris had incorrectly interpreted the 1968 amendment to § 406(a) that it had further relied on. Id. at 1217. That amendment, the Ninth Circuit noted, “did not prohibit the [agency] from authorizing attorney’s fees under § 406(a) in excess of 25 percent of past-due benefits.” Ibid. To the contrary, the amendment allowed the agency to authorize any “reasonable” fee and “left untouched the [agency’s] authority to award attorney’s fees under § 406(a)(1) in excess of 25% of past-due benefits.” Id. at 1218. This fact persuaded the court that “[t]he correct interpretation of the 1968 amendment [not only] does not support the Fourth Circuit’s holding in Morris[,] it instead supports the holding we make today.” Ibid. “[I]f a fee award under § 406(a) can be

15 greater than 25% of past-due benefits,” the court repeated, “it follows that the combined amount of fees awarded under both § 406(a) and § 406(b) must be capable of exceeding 25% of past-due benefits.” Ibid. * * * As matters now stand, attorney’s fees awards under § 406 are adjudicated under materially different standards in different circuits. This disuniformity affects attorneys’ willingness to represent claimants and ultimately the claimants’ ability to receive past benefits due them. II. The Fourth, Fifth, And Eleventh Circuits Misinterpret The Statute’s Plain Language, Structure, Purpose, And History A. The Plain Language Of Section 406(b) Makes Clear That A Court Should Not Consider Fees Awarded Under Section 406(a) As Subject To Section 406(b)’s 25- Percent Cap This Court has long held that “the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain * * * the sole function of the courts is to enforce it according to its terms.” Caminetti v. United States, 242 U.S. 470, 485 (1917). The language of 42 U.S.C. § 406(b) is plain. In relevant part, the statute provides: Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its

judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past- due benefits to which the claimant is entitled by reason of such judgment. Section 406(b)’s fee authorization “for such representation” refers to representation “before the court”—the only type of representation mentioned to which the term “such representation” could refer. In no way can it include fees for representation before the agency. Reading in a limitation of 25 percent for the total of fees awarded under subsections (a) and (b) therefore violates the “cardinal canon” of construction that a court is to “presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-254 (1992). Unlike subsection (b), subsection (a) of section 406 does refer to fees provided for representation “before the Commissioner for benefits.” 42 U.S.C. § 406(a)(1). Reading an aggregate limitation into § 406(b) therefore also runs counter to the principle of expressio unius est exclusio alterius, the notion that “Congress generally acts intentionally when it uses particular language in one section of a statute but omits it in another.” Department of Homeland Sec. v. MacLean, 135 S. Ct. 913, 919 (2015). Because Congress used the “particular language” of “before the court” in regard to fees awarded under subsection (b) and did not include the “particular language” of “before the Commis- sioner,” it intended for § 406(b)’s cap to extend no further than to awards under § 406(b) itself. When the words of a statute are unambiguous, as they are in § 406(b), the “judicial inquiry is complete.”

Connecticut Nat’l Bank, 503 U.S. at 254 (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)). The Court thus need not consult either the statutory structure, the congressional purpose, or the legislative history, but, in fact, all three point in the same direction as the plain language. B. Section 406’s Structure Creates Distinct Avenues For Obtaining Fees For Admin- istrative And Judicial Representation The statutory structure confirms what the plain language makes clearCongress created two distinct and independent award mechanisms in subsections (a) and (b). Section 406(a) itself provides two ways for an attorney to seek fees for representing a claimant in administrative proceedings: the fee-petition process and the fee-agreement process. Under the former, the agency authorizes a “reasonable fee” to be paid to the claimant’s representative.1 42 U.S.C. § 406(a)(1). Un- der the latter, any fee set by agreement between the attorney and the claimant controls so long as it does not exceed the lesser of 25 percent of the claimant’s past-due benefits or $6,000. Maximum Dollar Limit in

1 The agency has given this reasonableness inquiry real teeth. In determining whether a fee request is reasonable, it must consider “[t]he extent and type of services the representative performed;” “[t]he complexity of the case;” “[t]he level of skill and competence required of the representative[;]” the time the representative spent on the matter; the success of the representation; and the amount of the fee petition. 20 C.F.R. § 404.1725(b). The agency also allows both the claimant and the attorney to seek administrative review of fees authorized under the petition process. Id. § 404.1720(d).

18 the Fee Agreement Process, 74 Fed. Reg. 6080 (Feb. 4, 2009). Section 406(b), on the other hand, governs awards for attorneys representing claimants before a district court. 42 U.S.C. § 406(b). Given that section 406(a) sets forth two separate avenues for determining attorney’s fees for representation before the agency, it would not make sense to interpret section 406(b) to regulate awards for representation there. There is simply no need for section 406(b) to regulate awards already deemed “reasonable” under section 406(a) either by the agency itself or because they fall within the safe harbor set by Congress. Section 406(a)’s two attorney’s fee provisions effectively check excessive fees for representation before the agency. Checking them again under a provision designed to check fees for representation in court represents an insidious form of double-counting. As the Ninth Circuit has pointed out, moreover, the petition process does not cap the reasonable fees the agency can award through the petition process. Clark, 529 F.3d at 1218. Because § 406(a)(1) authorizes the agency to award reasonable fees above 25 percent of past-due benefits, it makes no sense for § 406(b) to include such fees under its own 25-percent cap. In many cases, that would mean that fees authorized as “reasonable” under § 406(a)(1) would be effectively unreasonable under § 406(b). Section 406(b), on the other hand, is addressed to different proceedingsthose before a district court. In enacting § 406(b), Congress was similarly concerned about excessive fee requests and so it placed a separate check on attorney’s fees earned there that is analogous

19 to § 406(a)(2)’s 25-percent safe harbor. Congress structured the statute to separate fee determinations by forum for a reason: claimants may use different representatives before the agency and district court. Even a non-lawyer, for example, can represent—and receive fees for representing—a claimant before the agency. See Office of the Inspector General, Soc. Sec. Admin., Informational Report: Agency Payments to Claimant Representatives, No. A-05-15-15017, at 1 (2015), available at https://oig.ssa.gov/sites/default/fil es/audit/full/pdf/A-05-15-15017.pdf (last visited Nov. 10, 2017) (“A claimant may appoint a qualified individual to act on his/her behalf in matters before the Social Security Administration.”). Only attorneys, by contrast, can represent claimants in court and be awarded fees for doing so. Soc. Sec. Admin., Program Operations Manual System GN 03920.017 § D.5, n.2, available at https://secure.ssa.gov/apps10/poms.nsf/ln x/0203920017#d (last visited Nov. 10, 2017) (“In court cases, the law does not provide for direct payment to a non-attorney.”). The Social Security Administration recognizes that representation may change between agency and court proceedings. See id. GN 03920.060 § A.5, available at https://secure.ssa.gov/apps10/poms. nsf/lnx/0203920060 (“The attorney(s) for the court proceedings may differ from the representative(s) for the SSA administrative proceedings.”).

C. Applying A Cap Of 25 Percent Under Section 406(b) For Work Done Before Both The Agency And The District Court Under- mines Congress’s Purpose Though the Court need not consider Congress’s purpose when a statute’s terms, like § 406(b)’s, are unambiguous, Connecticut Nat’l Bank, 503 U.S. at 254, Congress’s purpose in enacting § 406(b) further supports what the plain text makes clear: the fee awarded to an attorney under § 406(b) is independent of any fee awarded under § 406(a). Congress added subsection (b) to § 406 to “encourage effective legal representation of claimants.” Hearings on H.R. 6675 Before the S. Comm. on Fin., 89th Cong. 512-513 (1965). Interpreting its 25-percent cap as an aggregate limit on awards issued under both § 406(a) and § 406(b) undermines this purpose. Subsection 406(b) contemplates a contingency-fee agreement subject to a fixed maximum fee. Contingency fees often “provide the only practical means by which one * * * can economically afford * * * the services of a competent lawyer.” Model Code of Prof’l Responsibility EC 2-20 (Am. Bar Ass’n 1980). This is particularly true of the “needy individuals” who qualify for Social Security benefits. 42 U.S.C. § 306(a). Interpreting § 406(b)’s cap to include fees awarded under § 406(a) would disincentivize attorneys from representing claimants and remove the only “practical means” by which needy claimants can attain representation. Consider the following not uncommon case. One attorney represents a claimant before the agency and

21 the agency denies past-due benefits. Both the claimant and the attorney receive nothing. Another attorney specializing in work before the district courts agrees to seek judicial review of the adverse decision and is successful. Only that attorney’s success makes it possible for the claimant and the earlier attorney to receive anything. If the earlier attorney is successful on agency remand, he will be entitled to any agreed- upon contingency fees subject to § 406(a)’s cap. As this Court has recognized, however, “virtually every attorney representing Title II disability claimants includes in his/her retainer agreement a provision calling for a fee equal to 25% of the past-due benefits.” Gisbrecht v. Barnhart, 535 U.S. 789, 803 (2002) (internal quotation marks and citation omitted). The attorney who represented the claimant before the agency will thus be entitled under § 406(a) to fees of 25 percent of the claimant’s overall award. If § 406(b)’s cap includes these fees, then the attorney who represented the claimant in court can receive no fees— even when it was this attorney’s work before the court that made the § 406(a) award to the earlier attorney possible. The possibility of the earlier attorney receiving all the fees available will strongly discourage other attorneys from helping claimants seek judicial review. It will also have a perverse knock-on effect. Realizing that no other attorney would likely agree to seek judicial review of an unfavorable initial agency decision, the earlier attorney will be less likely to represent a claimant in the initial agency proceedings. And even if the earlier attorney were willing to seek judicial review herself, she would understand that the

22 many more hours she would have to spend on that effort would entitle her to no more fees. Such prospects would discourage attorneys from taking on social security cases generally. In a world where contingency fees for general civil litigation typically “rang[e] from 33% to 50%” and “seldom amount to less than 33%” of the recovery, Lester Brick- man, Contingency Fee Abuses, Ethical Mandates, and the Disciplinary System: The Case Against Case-by- Case Enforcement, 53 Wash. & Lee L. Rev. 1339, 1347, 1351 (1996), the possibility of receiving fees of less than 25 percent, let alone no fees at all, would strongly discourage attorneys from representing Social Security beneficiaries, see id. at 1347 (discussing significant rates that lawyers typically receive under contingency fee agreements). Ultimately, of course, claimaints themselves would suffer as they found it more and more difficult to find lawyers willing to represent them. This presents serious concerns for beneficiaries. Empirical studies show that legal representation for claimants is critical to their success. Based on recent data, federal courts review over 12,000 social security disability appeals per year. U.S. Gov’t Accountability Off., GAO-07-331, Disability Programs: SSA Has Taken Steps to Address Conflicting Court Decisions, but Needs to Manage Data Better on the Increasing Number of Court Remands 3 (2007). Of those appeals, district courts remand half back to the agency for further review. Ibid. And in the remanded cases, 66 percent of the claimants are awarded benefits. Ibid. Discouraging attorneys from representing claimants, then, could potentially

23 withhold benefits from up to 4,000 deserving claimants per year. Any concerns of attorneys abusing § 406 to reap “inordinately large fees,” e.g., Dawson, 425 F.2d at 1194 (internal quotation marks omitted), are misplaced, moreover. According to the most recent data, about 91 percent of claimant representatives in agency proceedings, which includes attorneys, make less than $100,000 in annual income. Off. of the Inspector Gen., SSA, Informational Report: Agency Payments to Claimant Representatives, No. A-05-15- 15017, at 4 (2015). Attorneys who represent claimants in Social Security proceedings do not do so to get rich. They accept a relatively modest income to assist our society’s most needy individuals. D. Those Courts Holding That Section 406(b)’s 25-Percent Cap Applies To Fees Awarded For Both Administrative And In- Court Representation Misinterpret The Legislative History Those courts aggregating agency and court fee awards under § 406(b) have relied almost exclusively on legislative history to reach this result. That is mistaken. Not only is such reliance suspect, NLRB v. SW Gen., Inc., 137 S. Ct. 929, 942 (2017) (“What Congress ultimately agrees on is the text that it enacts, not the preferences expressed by certain legislators.”), but the text of § 406 is so clear that a court “need not consider [any] extra-textual evidence,” ibid. Properly considered, however, the legislative history actually supports those courts on the other side of the split.

These courts base their analysis of the legislative history on two documents: Hearings before the Senate Committee on Finance and a Senate Report. Morris v. Social Sec. Admin, 689 F.2d 495, 497 (4th Cir. 1982) (discussing the Senate Report); Dawson v. Finch, 425 F.2d 1192, 1194-1195 nn.2-3 (5th Cir. 1970) (discussing both documents); App., infra, 11a (adopting the Fifth Circuit’s legislative history analysis in Dawson). While these courts are correct that Congress was motivated, in part, by a desire to curb “inordinately large fees,” Hearings on H.R. 6675 Before the Senate Comm. on Fin., 89th Cong. 513 (1965) (supplemental report submitted by the Dep’t of Health, Educ., and Welfare) (HEW), these documents show that such concern was limited to fees in district court proceedings. As HEW explained in its report to the Senate Finance Committee: [A]ttorneys have on occasion charged what appeared to be inordinately large fees for representing claimants in Federal district court actions arising under the social security program. Usually, these inordinately large fees result from a contingent fee arrangement under which the attorney is entitled to a percentage (frequently one- third to one-half of the accrued benefits). Since litigation necessarily involves a considerable lapse of time, in many cases large amounts of accrued benefits, and consequently large legal fees, may be payable if the claimant wins his case. Ibid. (emphasis added). The official Senate Report adopted this explanation nearly verbatim. S. Rep. No. 89-404, at 122 (1965). There was no concern expressed about fees awarded for representation before the

25 agency. That makes sense. Those fees often go to a different person and are already subject to reasonableness review by the agency or a separate 25- percent cap. See pp. 17-19, supra (describing statutory scheme). They could not lead to “inordinately large fees” going to the in-court lawyer. III. This Recurring Issue Is Of National Impor- tance Section 406 affects the proper administration of several large national programs administered by the Social Security Administration (SSA), including the Old-Age, Survivors, and Disability Insurance program (OASDI) and the Supplemental Security Income program (SSI). Kimberley Dayton et al., Advising the Elderly Client § 18:50 (2017); Soc. Sec. Admin., Understanding Supplemental Security Income (SSI) Overview—2017 Edition, https://www.ssa.gov/ssi/text- over-ussi.htm; see also Moriarty v. Colvin, 806 F.3d 664, 667 (1st Cir. 2015) (describing how § 406 governs attorney’s fees awarded in SSI cases). In 2015, 60 million Americans received OASDI benefits worth $886 billion. Soc. Sec. Admin., Annual Statistical Supplement to the Social Security Bulletin, 2016, at 1 (2017). In the same year, 8.3 million Americans received SSI benefits worth $55 billion. Soc. Sec. Admin., Annual Statistical Supplement to the Social Securit Bulletin, 2016, (2017). Combined, Social Security payments composed 23.9 percent of overall federal spending in 2015. Office of Mgmt. & Budget, Historical Tables, Table 8.3 (2017), https://www.whitehouse.gov/omb/budget/Historicals. Beneficiaries of these programs are among the most vulnerable of Americans. In 2016, for example,

86 percent of SSI beneficiaries received payments because of blindness or disability. Soc. Sec. Admin., Fast Facts & Figures About Social Security, 2017, https://www.ssa.gov/policy/docs/chartbooks/fast_facts/ 2017/fast_facts17.html#contributions. Among these disabled beneficiaries, “[t]he majority (87 percent) were disabled workers, 10.4 percent were disabled adult children, and 2.5 percent were disabled widow(er)s.” Soc. Sec. Admin., Annual Statistical Report on the Social Security Disability Insurance Program, 2015, at 11 (2016), https://www.ssa.gov/poli cy/docs/statcomps/di_asr/2015/di_asr15.pdf. Among beneficiaries over the age of sixty-five—a demographic that comprises 26 percent of SSI beneficiaries—62 percent receive half of their income from Social Security. Soc. Sec. Admin., Fast Facts & Figures About Social Security, 2017, https://www.ssa.gov/polic y/docs/chartbooks/fast_facts/2017/fast_facts17.html#c ontributions; Soc. Sec. Admin., SSI Annual Statistics Report, 2015, at ii (Jan. 2017); see also Joyce Nicholas & Michael Wiseman, Elderly Poverty and Supplemental Security Income, 69 Soc. Sec. Bulletin 45 (2009), https://www.ssa.gov/policy/docs/ssb/v69n1/v69 n1p45.html (“Elderly SSI recipients are very poor. Nearly 70 percent fall in the bottom fifth of the national income distribution, and about the same proportion fall in the bottom fifth of the income distribution among all elderly persons. Although correction for SSI underreporting reduces the official poverty rate for elderly SSI recipients, the revised absolute rate is still 38–40 percent when all SSI (and OASDI) benefits are included as income.”). Among families receiving Social Security child benefits, many are impoverished because “although not targeted

27 toward low-income families, [these benefits] provide income maintenance for many such families, in part because the conditions that give rise to child benefit eligibility—death, disability, and retirement—often lead to family income loss.” Christopher R. Tamborini et al., A Profile of Social Security Child Beneficiaries and Their Families: Sociodemographic and Economic Characteristics, 71 Soc. Sec. Bulletin 11 (2011), https://www.ssa.gov/policy/docs/ssb/v71n1/v71n1p1.ht ml. For these beneficiaries, receiving favorable determinations from the SSA is a virtual necessity. The vast number of people who depend on social security benefits explains the abundance of claims at the agency and district court level. Disability beneficiaries in 2013 filed “approximately 3 million initial and 784,000 reconsideration claims.” Off. of the Inspector Gen., Soc. Sec. Admin., Fiscal Year 2013 Inspector General Statement on the Social Security Administration’s Major Management and Performance Challenges 117 (Dec. 2013), https://www.ssa.gov/finan ce/2013/OIG%202013%20AFR%20Mgmt%20Challeng es.pdf. SSA had over 698,000 initial disability claims pending in September 2013. Ibid. During the year ending June 30, 2017, 18,953 social security cases were filed in district courts, making social security cases 6.98 percent of all civil cases filed in district court. United States District Courts—National Judicial Caseload Profile, http://www.uscourts.gov/sit es/default/files/data_tables/fcms_na_distprofile0630.2 017.pdf. Attorneys who represent the claimants in these cases do not do so to get rich. Of people who represent claimants before the agency, for example, which

28 includes attorneys, 91 percent made less than $100,000 in annual income in tax year (TY) 2013. Off. of the Inspector Gen., Soc. Sec. Admin., Informational Report: Agency Payments to Claimant Representatives, A-05-15-15017, at 4 (July 2015), https://oig.ssa.gov/sit es/default/files/audit/full/pdf/A-05-15-15017.pdf. Their median annual income related to SSA direct payments, moreover, was only $7,800 in TY 2013. Ibid. It is also worth noting that attorney’s fees awarded under § 406(b) may not exceed 25 percent of a claimant’s “past-due benefits.” 42 U.S.C. § 406(b)(1)(A) (emphasis added). As the term implies, past-due benefits include only the “amount of * * * monthly benefits credited * * * that have accumulated because of a favorable administrative determination or decision, up to but not including the month SSA effectuates the primary beneficiary's decision.” Soc. Sec. Admin., Program Operations Manual System, Representative’s Fee—Title II Past-Due Benefits GN 03920.030 (emphasis added). In addition to past-due benefits, a claimant deemed “disabled” receives monthly benefits “as long as [her] medical condition has not improved and [she] can’t work.” Soc. Sec. Admin., What You Need to Know When You Get Social Security Disability Benefits, at 1 (2017) [hereinafter What You Need to Know], available at https://www.ssa.gov/pubs/EN-05-10153.pdf. Also, a disabled claimant’s family may qualify for benefits because of the claimant’s disability. Soc. Sec. Admin., Disability Benefits, January 2017, at 10, available at https://www.ssa.gov/pubs/EN-05-10153.pdf. And finally, of critical importance, after two years of

29 receiving disability payments, a claimant automatically receives Medicare coverage. What You Need to Know 7. Old-age beneficiaries also receive benefits going forward that § 406(b) excludes from contingency- fee awards. 42 U.S.C. § 406(b). Given the possibility that a disabled beneficiary will receive such wide-ranging forward-looking benefits, an attorney’s fee of—at most—a quarter of the beneficiary’s past-due benefits can be appreciated for what it is: a reasonable fee in return for critical work, unlikely to constitute the “inordinately large fee” that Congress feared. Hearings on H.R. 6675 Before the Senate Comm. on Fin., 89th Cong. 513 (1965). As the Ninth Circuit has noted, § 406(b) “limits attorneys’ fees to a percentage of past-due benefits and allows no recovery from future benefits, which may far exceed the past-due benefits awarded.” Crawford v. Astrue, 586 F.3d 1142, 1150 (2009) (emphasis added). Having attorney representation greatly increases the likelihood of claimants being able to successfully recover past-due benefits to which they are entitled. Testimony of an expert before a House committee explains why that is the case: SSA’s statistics for FY 2000 indicate that 74.9% of Title II disability claimants are represented by an attorney. Statistics for the same period indicate that the allowance rate at the hearing level for Title II disability claimants with representation is 63.6%; in contrast, the allowance rate for unrepresented Title II claimants is 40.1%. We would suggest that this difference is attributable to a number of reasons. The knowledgeable representative knows the sequential evaluation system

set forth in the regulations and Social Security Rulings and knows the applicable standards. The representative can marshal evidence from treating medical sources, school systems, vocational testing, previous employers, etc. The knowledgeable representative can thoroughly cross-examine vocational and medical witnesses whom the ALJ has called. These are daunting tasks for pro se claimants, especially when we consider that they are in poor health and often have only limited education. Indeed, the statute requires SSA, whenever an adverse determination is sent to a claimant, to provide information on options for obtaining a private attorney as well as from legal services organizations providing free legal assistance. Social Security’s Processing of Attorney Fees: Hearing Before the Subcomm. on Soc. Sec. of the House Comm. on Ways & Means, 107th Cong. 50 (2001) (statement of Nancy G. Shor, Exec. Dir. of the Nat’l Org. of Soc. Sec. Claimants’ Representatives). The hurdles a claimant seeking to recover past-due benefits faces are daunting, and social security attorneys are often necessary to vindicate claimants’ rights. Section 406(b) determines whether vulnerable claimants can secure attorneys to represent them in court. Such representation is vital for them to be able to navigate our vast and complex social security program. IV. This Case Provides An Ideal Vehicle For Resolving The Conflict This petition presents a single issue of how to interpret an important provision of federal law. It involves no issues of fact or questions of state law. The split is clear and the issue is cleanly presented.

The issue presented is also outcome-determinative. Little would remain to be done. The district court has already determined what amounts would be due under the proper reading of § 406(b). In Ms. Wood’s case, it would grant that amount. In Mr. Westfall’s, it would allow him to request fees under § 406(a) from the agency. The issue has also sufficiently percolated in the lower courts. Six courts of appeal have decided it and they are evenly split. Each case involved in the split presents similar facts and the opinions on each side largely rely on the same reasoning. The arguments in the courts of appeals have been exhausted. The issue is ripe for this Court’s review and only this Court’s review can bring uniformity.

CONCLUSION The petition for a writ of certiorari should be granted.

Respectfully submitted.

RICHARD A. CULBERTSON DANIEL R. ORTIZ SARAH FAY Counsel of Record LAW OFFICES OF TOBY J. HEYTENS RICHARD A. UNIVERSITY OF VIRGINIA CULBERTSON SCHOOL OF LAW 3200 Corrine Drive SUPREME COURT Orlando, Florida LITIGATION CLINIC 32803 580 Massie Road (407) 894-0888 Charlottesville, VA 22903 (434) 924-3127 [email protected]

MARK T. STANCIL JOHN P. ELWOOD MATTHEW M. MADDEN JEREMY C. MARWELL ROBBINS, RUSSELL, VINSON & ELKINS LLP ENGLERT, ORSECK, 2200 Pennsylvania Ave., UNTEREINER & N.W. SAUBER LLP Suite 500W 1801 K Street, N.W. Washington, DC 20004 Suite 411L (202) 639-6500 Washington, D.C. 20006 (202) 775-4500

NOVEMBER 2017

[PUBLISH] IN THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

______No. 16-13664 ______D.C. Docket No. 6:12-cv-00915-DAB

KATRINA F. WOOD, Plaintiff-Appellant, versus COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. ______No. 16-13665 ______

D.C. Docket No. 6:12-cv-01882-KRS

CELALETTIN AKARCAY, Plaintiff-Appellant, versus COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

______No. 16-13666 ______D.C. Docket No. 6:14-cv-00784-DAB BILL J. WESTFALL, Plaintiff-Appellant, versus COMMISSIONER OF SOCIAL SECURITY, Defendant–Appellee. ______

No. 16-14004 ______

D.C. Docket No. 6:13-cv-01336-KRS DARLEEN R. SCHUSTER, Plaintiff-Appellant, RICHARD ALLEN CULBERTSON, Petitioner-Appellant, versus COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. ______Appeals from the United States District Court for the Middle District of Florida ______

(June 26, 2017) Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges. MARTIN, Circuit Judge: Richard Culbertson was counsel to the four plaintiffs shown in the caption here, who asked for and were awarded Social Security disability benefits. This appeal consolidates the four cases, and it is about attorney’s fees for Mr. Culbertson. To his credit, Mr. Culbertson represented Katrina Wood, Celalettin Akarcay, Bill Westfall, and Darleen Schuster (together, the “claimants”) in their successful challenge to the Commissioner of Social Security’s decision to deny them disability benefits. After winning for these clients, Mr. Culbertson asked the District Court to award him attorney’s fees in all four cases.1 Two statutes govern fees paid to lawyers representing Social Security claimants. First, 42 U.S.C. § 406 allows the Commissioner to set a fee for representation of the claimant at the administrative

1 Mr. Culbertson is the real party in interest in this appeal. See Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6, 122 S. Ct. 1817, 1823 n.6 (2002). Because Mr. Culbertson’s attorney’s fees will come out of the award that would otherwise go to his clients, the Commissioner now “plays a part in the fee determination resembling that of a trustee for the claimants.” Id. To be clear about the parties’ roles here, if Mr. Culbertson wins, his clients will get less money. If the Commissioner wins, they will get more. See id. at 804 n.13, 122 S. Ct. at 1826 n.13 (noting attorneys are “paid directly with funds withheld from their clients’ benefits awards”); 42 U.S.C. § 406(a)(4).

4a level, id. § 406(a), and the District Court to set a fee for representation of the claimant in court, id. § 406(b). Second, a claimant can request fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). In this appeal, Mr. Culbertson argues that the District Court did not correctly calculate the fees he is entitled to under these statutes and Eleventh Circuit precedent. After careful consideration, and with the benefit of oral argument, we affirm the decisions of the District Court.2 I. Mr. Culbertson represented all four of the captioned plaintiffs in appealing the Commissioner’s denial of disability benefits to them. He was successful in all four appeals. We will set out a narrative about each of the cases, which is summarized in a chart in section I.E. A. MS. WOOD The District Court reversed the Commissioner’s denial of benefits to Ms. Wood, then remanded her case to the Commissioner. The court later awarded Ms. Wood $4,107.27 in attorney’s fees under the EAJA. On remand, the Commissioner awarded Ms. Wood past- due benefits of $30,871 and awarded her child $4,340 as an auxiliary beneficiary. As is customary, the Commissioner withheld 25% of the total award ($8,595.75) to pay attorney’s fees. The Commissioner

2 The parties consented to jurisdiction by a U.S. Magistrate Judge in each case. We refer to the Magistrate Judges’ orders as those of the District Court.

5a also awarded Mr. Culbertson $2,865 under § 406(a) for representing Ms. Wood at the administrative level. Mr. Culbertson asked the District Court for attorney’s fees of $4,488.48 under § 406(b) for representing Ms. Wood in court. He calculated this figure by subtracting the EAJA award from the 25% of the past-due benefits the Commissioner withheld. The court granted Mr. Culbertson’s request in part, but limited his award to $1,623.48. The court declined to pay the full amount requested by Mr. Culbertson because it found he failed to subtract the earlier § 406(a) award in calculating his fees. B. MR. AKARCAY As with Ms. Wood’s case, the District Court reversed the Commissioner’s denial of benefits to Mr. Akarcay and remanded the case back to the Commissioner. The District Court later awarded Mr. Akarcay $3,121.70 in attorney’s fees under the EAJA. On remand, the Commissioner awarded Mr. Akarcay past-due benefits of $69,047, withholding the usual 25% ($17,261.75) for attorney’s fees. Mr. Culbertson asked the District Court for permission to charge Mr. Akarcay $14,140.05 in attorney’s fees under § 406(b), which was the amount withheld minus the EAJA award. The court denied Mr. Culbertson’s request. The District Court reasoned that it could not determine the proper § 406(b) fee award without first knowing the attorney’s fee award the Commissioner would grant under § 406(a). The District Court directed Mr. Culbertson to file a renewed motion after the Commissioner determined the § 406(a) fee award.

C. MS. SCHUSTER As with the others, the District Court reversed the Commissioner’s denial of disability benefits to Ms. Schuster. The court remanded the case back to the Commissioner and later awarded Ms. Schuster $4,988.17 in EAJA attorney’s fees. On remand, the Commissioner awarded Ms. Schuster past-due benefits of $54,382, withholding 25% of the award ($13,595.50) for attorney’s fees. Mr. Culbertson sought $10,707.083 in attorney’s fees under § 406(b). The District Court denied Mr. Culbertson’s request, again reasoning that it could not decide the proper § 406(b) fee award until the Commissioner awarded attorney’s fees under § 406(a). The District Court noted Mr. Culbertson could file a renewed motion after the § 406(a) fees were set. D. MR. WESTFALL Again in Mr. Westfall’s case, the District Court reversed the Commissioner’s denial of disability benefits to him. The court remanded the case to the Commissioner, and awarded Mr. Westfall $2,713.30 in EAJA attorney’s fees. On remand, the Commissioner awarded Mr. Westfall past-due benefits of $24,157, withholding 25% ($6,039.25) for attorney’s fees. Mr. Culbertson asked for attorney’s fees of $3,325.95 under § 406(b), which was the amount

3 Mr. Culbertson says he calculated this figure by subtracting the EAJA award from the 25% withheld from Ms. Schuster’s past- due benefits. The District Court was correct in pointing out that there is an error in this calculation, which would have accurately been a request for $8,607.33.

7a withheld minus the EAJA award. In this case, as in some of the others, the Commissioner had not yet awarded § 406(a) fees. However, in contrast to the other cases, for Mr. Westfall’s case, the District Court granted Mr. Culbertson’s fee request “provided that counsel is barred from any further request for fees in this matter, pursuant to § 406(a) or otherwise, and counsel for both parties are directed to advise the agency of this preclusion as part of the Court’s award.” In other words, the District Court awarded Mr. Culbertson his 25% (in combined EAJA and § 406(b) fees), but told him he could not ask for more. In the Westfall case, the Commissioner filed a Federal Rule of Civil Procedure 60 motion, asking the District Court to correct a legal error. The Commissioner argued the court erred to the extent it “direct[ed] the Commissioner not to award counsel § 406(a) fees,” which is a decision “entrusted by statute exclusively to the Commissioner.” The District Court denied the motion, saying its order barred counsel from requesting more fees and “did not purport to direct the Commissioner to take—or not take—any action.” E. SUMMARY This chart summarizes the past-due benefits awarded and withheld; the attorney’s fees awarded and requested; and the relevant District Court order in each claimant’s case.

II. We review a district court’s decision on attorney’s fees for an abuse of discretion. See Watford v. Heckler, 765 F.2d 1562, 1569 n.11 (11th Cir. 1985). The district court’s interpretation of a statute, we review de novo. Bergen v. Commissioner of Soc. Sec., 454 F.3d 1273, 1275 (11th Cir. 2006) (per curiam).

A. As we’ve set out above, there are three statutory provisions allowing fees for lawyers representing people claiming Social Security disability benefits. Section 406(a) allows attorney’s fees for representation of claimants at the administrative level. 42 U.S.C. § 406(a)(1). Section 406(a) requires the Commissioner to set a reasonable attorney’s fee when it decides in favor of a claimant represented by an attorney. Id. A fee awarded under § 406(a) is paid out of the claimant’s past-due benefits. Id. § 406(a)(4). Section 406(a)(1) does not itself limit the amount of fees the Commissioner can award. Section 406(b) allows “a court entering judgment in favor of a Social Security benefits claimant” to set a reasonable attorney’s fee for representing the claimant in court. Jackson v. Commissioner of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010); see 42 U.S.C. § 406(b)(1)(A). A fee awarded under § 406(b) is also paid out of the claimant’s past-due benefits. 42 U.S.C. § 406(b)(1)(A). This fee award can be no more than 25% of the total past-due benefits. Id. The third statutory source of attorney’s fees is the EAJA. “[S]uccessful Social Security benefits claimants may request a fee award under the EAJA” from the courts. Jackson, 601 F.3d at 1271. A court “shall” award this fee “unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C § 2412(d)(1)(A). EAJA fees are paid by the government, and are not taken from the claimant’s past-due benefits. See Jackson, 601 F.3d at 1271. Neither are EAJA fee awards limited. See Watford,

10a

765 F.2d at 1566–67. Instead, EAJA fees are set by multiplying the hours spent on a case times a fixed hourly rate. See Gisbrecht, 535 U.S. at 796, 122 S. Ct. at 1822. For our purposes here, we note that the EAJA includes a “Savings Provision” that requires an attorney who is awarded fees under both the EAJA and § 406(b) to refund the smaller of the two awards to the claimant. 28 U.S.C. § 2412 note, Act of Aug. 5, 1985, Pub. L. No. 99–80, § 3, 99 Stat. 183, 186. “[T]he Savings Provision was intended to prevent attorneys from receiving double recovery under both the EAJA and § 406(b).” Jackson, 601 F.3d at 1272. “Thus, an EAJA award offsets an award under Section 406(b), so that the amount of the total past-due benefits the claimant actually receives will be increased by the EAJA award . . . .” Gisbrecht, 535 U.S. at 796, 122 S. Ct. at 1822 (quotation omitted and alterations adopted). The Savings Provision makes clear that the government pays the EAJA award so that the claimant spends less of his past-due benefits on an attorney. In other words, EAJA does not exist so much to enrich the claimant’s attorney as it does to protect the claimant. B. All parties point to Eleventh Circuit cases interpreting these fee-award statutes. Mr. Culbertson says Jackson explains the method by which he calculated his fee requests under § 406(b). 601 F.3d 1268. In Jackson, this Court considered whether the EAJA required an attorney to affirmatively refund the smaller of the EAJA and § 406(b) fees, or whether the attorney could get the same fee amount by reducing his § 406(b) fee request by the amount of the EAJA

11a award he’d received. Id. at 1269. Jackson concluded that attorneys were allowed to do the latter, because it “effectuate[s] the refund” required by the EAJA Savings Provision. Id. at 1274. Under either administrative approach, the attorney collects the same amount and the claimant receives the same amount. See id. at 1273 (“Regardless of whether the attorney writes a refund check to his client or deducts the amount of the EAJA award from his § 406(b) fee request, the purpose of the Savings Provision is fulfilled—the attorney does not get a double recovery.”). Our precedent also includes Dawson v. Finch, 425 F.2d 1192 (5th Cir. 1970),4 which guided the District Court’s consideration of the relationship between a fee award set by the Commissioner under § 406(a) and a fee award set by the courts under § 406(b). In Dawson, an attorney requested a fee under § 406(b) equal to 25% of his client’s past-due benefits, even though the Commissioner already awarded him 25% of the past- due benefits under § 406(a). Id. at 1193. The Dawson panel ruled that the language and legislative history of § 406(b) “clearly indicate[d]” that the 25% cap on fees paid out of past-due benefits was designed “to insure that the old age benefits for retirees and disability benefits for the disabled . . . are not diluted by a deduction of an attorney’s fee of one-third or one- half of the benefits received.” Id. at 1195. Thus, the

4 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Id. at 1209.

12a panel opined that the 25% limit from § 406(b) applies to total fees awarded under both § 406(a) and (b), “preclud[ing] the aggregate allowance of attorney’s fees greater than 25 percent of the past due benefits received by the claimant.” Id. (emphasis added). In deciding Mr. Culbertson’s fee requests under § 406(b) in each of the four cases, the District Court relied on Dawson. In Ms. Wood’s case, the court looked to Dawson’s holding that the combined § 406(a) and (b) fees cannot be more than 25% of past-due benefits, and reduced Mr. Culbertson’s fee request by the § 406(a) award he had received so as to limit his fee award to 25% of Ms. Wood’s past-due benefits. In the other three cases, the Commissioner had not yet made an award under § 406(a). The District Court therefore relied on Dawson’s holding when it declined to set § 406(b) fees for Mr. Akarcay’s and Ms. Schuster’s cases until the Commissioner determined § 406(a) fees. In Mr. Westfall’s case, the District Court acknowledged Dawson’s holding, but instead of waiting for the Commissioner to determine § 406(a) fees, granted Mr. Culbertson’s § 406(b) fee request and at the same time barred him from requesting § 406(a) fees. III. Mr. Culbertson says the District Court erred in three ways: (1) by imposing a 25% cap on § 406 fees; (2) by including the EAJA awards in establishing the cap; and (3) by exceeding its authority in directing the Commissioner.

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A. Mr. Culbertson first says the District Court did not properly apply Dawson in capping his total fee awards at 25% of past-due benefits. He says Dawson distinguished between the amount that can be paid out from a claimant’s past-due benefits and the fee awards the Commissioner and district court can “authorize.” He argues that because the attorney in Dawson had already been paid 25% of the claimant’s past-due benefits, the Dawson holding meant the attorney could not be paid more from those funds. Yet, he argues that Dawson did not limit the amount of fees that can be authorized under § 406. Unfortunately for Mr. Culbertson, this distinction is refuted by the words of the Dawson opinion itself. It said “[w]e are fully convinced that 42 U.S.C.[] [§] 406 precludes the aggregate allowance of attorney’s fees greater than twenty-five percent of the past due benefits received by the claimant. Dawson has already been authorized by the Secretary to charge the maximum. He is entitled to no more.” 425 F.2d at 1195 (emphases added). Mr. Culbertson points out that some other circuits do not apply the 25% limit in § 406(b) to the aggregate fee award under § 406. See Clark v. Astrue, 529 F.3d 1211, 1218 (9th Cir. 2008); Wrenn ex rel. Wrenn v. Astrue, 525 F.3d 931, 937–38 (10th Cir. 2008); Horenstein v. Sec’y of Health & Human Servs., 35 F.3d 261, 262 (6th Cir. 1994) (en banc). True, but at the same time all the cases he points to either explicitly or implicitly recognize that Dawson limited the combined § 406(a) and (b) attorney’s fee awards to 25% of past- due benefits. See Clark, 529 F.3d at 1217 (disagreeing

14a with Dawson’s holding); Wrenn, 525 F.3d at 937 (noting Dawson’s holding); Horenstein, 35 F.3d at 262 (overruling Webb v. Richardson, 472 F.2d 529, 536 (6th Cir. 1972), which relied on Dawson’s holding).5 To the extent Mr. Culbertson points to other circuits to argue Dawson was wrongly decided, this does not empower us to ignore it. We are bound by this circuit’s prior panel precedent rule to apply Dawson’s holding unless it is overruled by the Supreme Court or by this Court sitting en banc. See United States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998) (en banc). We conclude that the District Court did not err in its interpretation and application of Dawson. B. Mr. Culbertson next argues that since EAJA fees are not paid out of a claimant’s past-due benefits, the District Court should not have included the EAJA fee awards when calculating whether his requests were within the 25% cap. He says that he has only asked for § 406(b) fees equal to “12.7%, 13.8%, [19.7%], and 20.5% of the total past due benefits awarded.” But this argument is refuted by our precedent in Jackson, where this Court held an attorney could deduct the EAJA award from her § 406(b) request because this method “effectuate[s] the refund.” 601 F.3d at 1274.

5 The Fifth Circuit continues to read Dawson to limit the aggregate award. See Murkeldove v. Astrue, 635 F.3d 784, 788 & n.1 (5th Cir. 2011); Rice v. Astrue, 609 F.3d 831, 835 & n.12 (5th Cir. 2010). And the Fourth Circuit relied on Dawson to support its holding that § 406(b) limits the combined § 406 fee award to 25% of past-due benefits. See Morris v. Social Sec. Admin., 689 F.2d 495, 497–98 (4th Cir. 1982).

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Mr. Culbertson’s request in Ms. Wood’s case demonstrates how his fee requests deplete the claimants’ past-due benefits without replenishing them with an EAJA refund, thereby running afoul of Jackson. In Ms. Wood’s case, Mr. Culbertson asked for a total attorney’s fee award of $11,460.75.6 If he were awarded that amount, $1,242.27 of the funds withheld by the Commissioner for attorney’s fees would be returned to Ms. Wood.7 If, to the contrary, Mr. Culbertson had refunded Ms. Wood’s EAJA award at the time he got the §406(b) award, he would have given her $4,107.27, and he likely would have kept all of the $8,595.75 withheld by the Commissioner from Ms. Wood’s past-due benefits. Thus, Mr. Culbertson’s proposal would result in Ms. Wood receiving only $1,242.27, while a refund of the EAJA award would have given her $4,107.27 This makes clear that Mr. Culbertson’s request for fees does not comply with Jackson’s requirement that he “effectuate the refund” when taking fees under both § 406(b) and the EAJA. Jackson anticipated that the claimant would get the same amount of money under either method. Mr. Culbertson’s argument that the District Court should not have included the EAJA award within the 25% cap is therefore mistaken. Although not what Mr. Culbertson proposed, our precedent would have allowed him to receive the EAJA

6 This amount is equal to the total of $4,107.27 in EAJA fees; $2,865 in § 406(a) fees; and the $4,488.48 requested under § 406(b). 7 $8,595.75 withheld by the Commissioner minus $2,865 in § 406(a) fees and minus Mr. Culbertson’s request of $4488.48 in § 406(b) fees would leave $1,242.27 for Ms. Wood.

16a fees in lieu of a larger § 406(b) award because Ms. Wood would then have a greater share of the remaining withheld past-due benefits. See Jackson 601 F.3d at 1273 (“By deducting the amount of the EAJA award from his § 406(b) fee request, [the attorney] reduced the amount that [the claimant] would otherwise be required to pay in § 406(b) fees, thereby increasing the portion of past-due benefits payable directly to [the claimant].”) What Mr. Culbertson did propose was to have the District Court use his requested § 406(b) award in calculating the 25% cap. This would have allowed Mr. Culbertson to keep the EAJA award and also deplete the withheld past-due benefits. To preserve Ms. Wood’s refund, it is therefore necessary for the District Court to add Mr. Culbertson’s requested § 406(b) fee together with his EAJA award to arrive at the “true § 406(b) award” for the purposes of the 25% cap. This method of calculation complies with our precedent, as well as Congress’s intent in enacting the Savings Provision. See id. at 1272–73; see also Gisbrecht, 535 U.S. at 796, 122 S. Ct. at 1822 (noting the Savings Provision works to increase “the amount of the total past-due benefits the claimant actually receives” (quotation omitted and alteration adopted)). C. Finally, Mr. Culbertson argues the District Court exceeded its authority in its directions to the Commissioner. The Commissioner agrees that the District Court exceeded its power in directing the Commissioner in Mr. Westfall’s case, to the extent the District Court imposed requirements on the

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Commissioner. Yet, the Commissioner says the District Court’s orders were otherwise correct. We do not read the District Court order in Mr. Westfall’s case in the way that the parties read it. It seems clear to us that, as explained in its Rule 60 order, the District Court order granting § 406(b) fees imposed no requirements on the Commissioner. The court simply barred Mr. Culbertson from seeking more fees, and in doing so, acted within its powers. See Farese v. Scherer, 342 F.3d 1223, 1232 n.11 (11th Cir. 2003) (per curiam) (“We have long held that powers incidental to the federal court include the authority to control and discipline attorneys appearing before it.” (quotation omitted)). The court also acted within its authority in Mr. Akarcay’s and Ms. Schuster’s cases in denying Mr. Culbertson’s § 406(b) requests, saying that he could refile them after the Commissioner makes the § 406(a) fee determinations. See id. We see no abuse of discretion by the District Court in its fashioning of these methods to comply with our precedent. See Watford, 765 F.2d at 1569 n.11. We therefore affirm the District Court in each case. AFFIRMED.

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

KATRINA F. WOOD,

Plaintiff,

Case No. 6:12-cv-915-Orl-DAB

-vs-

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

______

ORDER This cause came on for consideration with oral argument on the following motion filed herein:

MOTION: AMENDED CONSENT MOTION FOR ATTORNEY’S FEES (Doc. 40)

FILED: December 17, 2015

THEREON it is ORDERED that the motion is GRANTED in part.

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Introduction Counsel’s motion for authorization to charge a reasonable fee follows the issuance of an Order and Judgment reversing the decision of the Commissioner of Social Security with respect to Plaintiff’s claim for benefits, and remanding the case pursuant to sentence four of 42 U.S.C. § 405(g) (Docs. 21 & 22). As set forth in the motion, Plaintiff’s attorney, Richard Culbertson, petitions this Court pursuant to 42 U.S.C. §406(b) for authorization to charge his client a fee for federal court representation in the amount of $4,488.48. This fee is based on a contingency fee agreement between counsel and Plaintiff (Doc. 26-1), and the Commissioner’s letter notifications that Plaintiff and her auxiliary beneficiaries were awarded past due benefits. Doc. 26- 2, 26-3. The Commissioner filed a Response objecting to Plaintiff’s calculation of the fee, which did not include a deduction for the § 406(a) fees previously awarded to Plaintiff’s counsel. Upon review, the motion is GRANTED in part. Analysis I. The statutory framework There are three statutory provisions under which attorneys representing claimants in Social Security Disability cases may be compensated: 42 U.S.C. §§ 406(a) and 406(b), and 28 U.S.C. § 2142(d). Section 406(a) provides the exclusive avenue for attorneys seeking fees for work done before the Commissioner at the administrative level. The fees awarded under §406(a) are paid out of the claimant’s past-due benefits awarded. 42 U.S.C. § 406(a)(2)(A) and (B). Section 406(a) caps the fees that may be awarded at twenty-

20a five percent of past-due benefits awarded or a lesser fixed amount. 42 U.S.C. § 406(a)(2)(A)(ii)(I)-(II). For fees incurred representing claimants in federal court, claimants and their attorneys may seek fees under two statutory provisions, 42 U.S.C. § 406(b) and the Equal Access to Justice Act, 28 U.S.C. § 2142(d) (“the EAJA”). Under Section 406(b), upon entry of judgment in favor of a claimant, the Court may award a reasonable fee for work performed before the Court, which is paid out of the claimant’s past-due benefits awarded. 42 U.S.C. § 406(b)(1)(A). Section 406(b) imposes a cap on the total amount of fees that may be awarded. 42 U.S.C. § 406(b)(1)(A). Section 406(b) provides that a Court may not award fees “in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled.” 42 U.S.C. § 406(b)(1)(A). The Fifth Circuit has held that 42 U.S.C. § 406 “precludes the aggregate allowance of attorney’s fees greater than twenty-five percent of the past due benefits received by the claimant.” Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir. 1970). Thus, in this circuit,1 the total fee under Sections 406(a) and (b) cannot exceed 25% of the past-due benefits. See Paltan v. Commissioner of Soc. Sec., 518 F. App’x. 673 (11th Cir. 2013); Bookman v. Commissioner of Soc. Sec., 490 F. App’x 314 (11th Cir. 2012).2

1In Bonner v. City of Pritchard, 661 F.2d 1206, 1209-11 (11th Cir. 1981), the Eleventh Circuit adopted as binding precedent the law of the former Fifth Circuit.

2In the Eleventh Circuit, unpublished decisions are not binding, but are persuasive authority. See 11th Cir. R. 36-2.

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In contrast, the EAJA permits a claimant to seek an award of fees against the government for work that is done before the Court if the claimant prevailed and the position of the Commissioner is not substantially justified. 28 U.S.C. § 2412(d)(1)(A). The EAJA contains a Savings Provision, however, that provides that “where the claimant’s attorney receives fees for the same work under both [406(b) and the EAJA], the claimant’s attorney refunds to the claimant the amount of the smaller fee.” 28 U.S.C. 2412 note, Act of Aug. 5, 1985, Pub.L. No. 99-80, § 3, 99 Stat. 183, 186 (unmodified) (emphasis added).3 See Jackson v. Commissioner of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010) (noting that the attorney may choose to effectuate the refund by deducting the amount of an earlier EAJA award from his subsequent 42 U.S.C. § 406(b) request). As discussed at great length in Westfall v. Comm. of Social Security, Case No. 6:14-cv-784-DAB (M.D. Fla. April 19, 2016) (Doc. 33), in this circuit, the total fee under Sections 406(a) and (b) cannot exceed 25% of the past-due benefits, and double payment under the EAJA is not allowed. See Paltan v. Comm’r of Soc. Sec., 518 F. App’x. 673, 674 (11th Cir. 2013); Bookman v. Comm’r of Soc. Sec., 490 F. App’x 314 (11th Cir. 2012).

3Note that the refund is not to the government, but to the claimant. This is consistent with Supreme Court precedent noting that the fee is awarded to the prevailing party, not the party’s attorney. See Astrue v. Ratliff, 560 U.S.586, 130 S. Ct. 2521, 177 L.Ed. 2d 91 (2010).

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II. Calculation of fees in this case In this case, counsel seeks a §406(b) award of $4,488.48, calculated by deducting only the $4,107.27 EAJA award counsel has already received, from the $8,595.75 withheld by the Commissioner (25% of past due benefits), and omitting any deduction for the § 406(a) fee previously awarded. See Doc. 26. As noted by the Commissioner, Plaintiff’s counsel erroneously fails to deduct the § 406(a) fee award of $2,865, which would result in a net fee award of $1,623.48. Doc. 27. Directly on point is the Eleventh Circuit’s per curiam opinion in Paltan v. Commissioner of Social Security, 518 F. App’x. 673, 674 (11th Cir. 2013), affirming the decision of this Court which deducted the § 406(a) fee previously awarded: George Paltan appeals the district court's [] award of attorney's fees under 42 U.S.C. § 406(b) to Richard Culbertson, his attorney before the district court in a challenge to the Social Security Administration's denial of his application for disability insurance benefits and supplemental security income. On appeal, Paltan argues the district court erred by awarding Culbertson attorney's fees in the amount of $182.91, rather than $4,281.83. He maintains the district court erroneously concluded that the total amount of attorney's fees recoverable under 42 U.S.C.§ 406(a), § 406(b), and the Equal Access to Justice Act (EAJA), 28 U.S.C.§ 2412(d), could not exceed 25% of Paltan's past-due benefits.

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The district court did not err in its attorney's fees calculation.[] Paltan was represented in his proceedings before the Social Security Administration by J. Michael Matthews. After the Commissioner of Social Security denied Paltan's application for benefits, Paltan, represented by Culbertson, successfully appealed to the district court. Following the district court's remand, the Social Security Administration awarded Paltan $38,327.35 in past-due benefits. Accordingly, Matthews and Culbertson could receive, in the aggregate, 25% of those past-due benefits as attorney's fees, or $9,581.83. See Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir.1970) (holding that 42 U.S.C.§ 406 “precludes the aggregate allowance of attorney's fees greater than twenty-five percent of the past due benefits received by the claimant.”).[] Because Matthews received $5,300.00 in attorney's fees pursuant to 42 U.S.C.§ 406(a) for his work before the Social Security Administration, Culbertson was entitled only to $4,281.83 under § 406(b) for his work before the district court– i.e., the remainder of the $9,581.83 of past-due benefits available for attorney's fees. See Dawson, 425 F.2d at 1195. Culbertson, however, previously obtained an attorney's fees award of $4,098.92 under the EAJA for the work he did before the district court. As such, the “Savings Provision” of the EAJA required Culbertson to refund either the EAJA award or the § 406(b) award, whichever was smaller. 28 U.S.C. § 2412, note; Pub. L. No.

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99-80, § 3, 99 Stat. 186 (1985); see also Jackson v. Comm'r of Soc. Sec., 601 F.3d 1268, 1271-72 (11th Cir. 2010). Because the $4,098.92 EAJA award was smaller than the § 406(b) award of $4,281.83, Culbertson was required to refund the EAJA award to Paltan. Culbertson had the option of either refunding the EAJA award to Paltan directly, or reducing his § 406(b) award by $4,098.92, leaving him with a § 406(b) award of $182.91, the figure calculated by the district court.[] See Jackson, 601 F.3d at 1274 (explaining that an attorney who receives fees under both the EAJA and § 406(b) “may choose to effectuate the refund by deducting the amount of an earlier EAJA award from his subsequent 42 U.S.C. § 406(b) fee request”). In performing this calculus, the district court did not create a new rule limiting attorney's fees awards under § 406(a), § 406(b), and the EAJA to 25% of a claimant's past-due benefits. Instead, the district court followed binding Circuit precedent in imposing a 25% cap on attorney's fees under § 406(a) and (b) in the aggregate. The court, moreover, did not err by refusing to allow Culbertson to offset his EAJA award by deducting it from the total of Paltan's past-due benefits, which included the § 406(a) award to Matthews, or by prohibiting Culbertson from receiving double payment under the EAJA and § 406(b) for representing Paltan before the district court. See id. at 1272 (“We have previously recognized that the Savings Provision was intended to prevent attorneys

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from receiving double recovery under both the EAJA and § 406(b).”). Accordingly, we affirm the district court's award of attorney's fees. Paltan, 518 F. App’x 673, 673-75 (11th Cir. 2013) (emphasis added and footnotes omitted). See Bookman v. Comm'r of Soc. Sec., 490 F. App'x 314, 316 (11th Cir. 2012) (affirming the district court as not authorized to award additional attorney’s fees under § 406(b) where the SSA had already awarded 25% of the claimant’s past-due benefits to her attorney under § 406(a), and any additional award under § 406(b) would have resulted in an aggregate award that exceeded the maximum allowable under § 406). Under the dictates of the Eleventh Circuit’s holding in Jackson v. Commissioner of Social Security, 601 F.3d 1268, 1271 (11th Cir. 2010), the claimant is entitled to the full benefit of the EAJA award unless the EAJA award exceeds the §406(b) fee. In cases where the funds withheld by the Commissioner are sufficient to cover the §406(b) fee, counsel has the option of refunding the EAJA award to the claimant or reducing the §406(b) fee by the same amount. Id. In cases where the withheld funds are insufficient to pay the entire approved §406(b) fee, counsel may collect only so much of the withheld funds as leaves the claimant with the full EAJA award – again, unless the EAJA award exceeds the available §406(b) funds. Thus, regardless of whether it is offset by refund directly to the claimant, or retained by counsel and deducted from the §406(b) request, the EAJA award cannot be ignored and must be accounted for in the

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§406(b) calculation.4 The Court will continue to utilize the methodology approved by the Eleventh Circuit in Paltan. Accordingly, the appropriate calculation for the §406(b) award is to subtract the $4,107.27 EAJA award counsel has already received from the $8,595.75 withheld by the Commissioner (25% of past due benefits), which results in $4,488.48, minus the § 406(a) of $2,865 previously awarded, which would result in a net fee award of $1,623.48. III. Reasonableness of resulting fee award To evaluate an attorney’s § 406(b) petition, the Court must determine whether the fee requested is reasonable. Gisbrecht v. Barnhart, 535 U.S. 739, 122 S.Ct. 1817 (2002). According to their Fee Agreement, Plaintiff retained Mr. Culbertson on June 6, 2012, for representation in federal court. Doc. 26-1. The “best indicator of the ‘reasonableness’ of a contingency fee in a social security case is the contingency percentage actually negotiated between the attorney and client, not an hourly rate determined under lodestar calculations.” Whalen v. Commissioner of Social Security, Case No. 6:10cv865-Orl-22DAB, 2012 WL 2798486, *2 (M.D. Fla. 2012) (citing Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir.1990)). However, “[a] fee pursuant to a contingency contract is not per se reasonable.” McGuire v. Sullivan, 873 F.2d 974, 979 (7th Cir. 1989). The contingency fee negotiated by the claimant and her counsel is not reasonable if the agreement calls for fees greater than the twenty-five percent (25%) statutory limit, the agreement involved

4This is not to say that the Court must order the refund or oversee payment. Jackson makes clear that it is counsel’s obligation under penalty of law to effectuate the offset.

27a fraud or “overreaching” in its making, the resolution of the case was unreasonably delayed by the acts of the claimant’s attorney, or would provide a fee “so large as to be windfall to the attorney.” Wells, 907 F.2d at 372; McGuire, 873 F.2d at 981; Rodriguez v. Bowen, 865 F.2d 739, 746 (6th Cir.1989). “Because section 406(b) requires an affirmative judicial finding that the fee allowed is ‘reasonable,’ the attorney bears the burden of persuasion that the statutory requirement has been satisfied.” Gisbrecht, 122 S.Ct. at 1828 n. 17. Upon review of the supporting papers filed by Plaintiff’s counsel, the Court finds that the net fee award of $1,623.48 is reasonable, and an award is appropriate under § 406(b). Counsel previously filed a fee motion stating that two experienced attorneys spent 22.3 hours of attorney time on the federal appeal in this case. Doc. 23. Due to counsel’s efforts, Plaintiff was awarded approximately $35,211.00 ($30,871.00 + $4,340.00 in auxiliary beneficiary benefits) in wrongfully denied past-due benefits5 to date, as well as ongoing benefits and medical coverage. Mr. Culbertson is an appellate attorney who has specialized in Social Security law for more than 30 years; his associate Sarah Fay is also experienced in Social Security law. Plaintiff’s case was complex and she had an extensive medical history, having been treated for diabetes, peripheral neuropathy, high

5The Commissioner points out an error in Plaintiff’s calculation of the total amount of benefits to the auxiliary beneficiaries, however, Plaintiff’s calculation of the amount withheld for attorney’s fees ($8,595.75) is correct. See Doc. 27 at 2.

28a blood pressure, depression, and restless leg syndrome. Doc. 21 at 1. Plaintiff originally filed for benefits on April 21, 2008, alleging an onset of disability on November 19, 2007. Doc. 28. The ALJ found Plaintiff not disabled, the Appeals Council denied review and Mr. Culbertson filed the appeal on Plaintiff’s behalf in this Court on June 18, 2012. Doc. 1. The Court found that the ALJ failed to failed to [sic] adequately address Plaintiff’s multiple sclerosis diagnosis and diabetic neuropathy. Doc. 21. On September 16, 2013, the Court reversed and remanded the ALJ’s decision. Doc. 21, 22. Id. On remand, Plaintiff was subsequently awarded benefits in February 2016. Doc. 26. Thus, almost eight years after first applying for benefits, Plaintiff received the past due benefits award in 2016. Doc. 40. Through counsel’s efforts, the decision of the ALJ was reversed and remanded based on sentence four of 42 U.S.C. §405(g), before the ALJ issued a favorable decision finding Plaintiff disabled from February 2012 and awarding of benefits. Plaintiff has received an award totaling approximately $35,000 in past-due benefits. Doc. 26. The fee award is not a windfall and is consistent with that agreed to by Plaintiff and the net amount awarded by the Court is uncontested by the Commissioner. Moreover, it is far less than § 406(b)(1) fees approved pursuant to contingent fee arrangements in other Social Security cases in this District. See, e.g., Gorgoglione v. Commissioner, No. 8:13-CV-953-T-33TBS, 2015 WL 2094909 (M.D.Fla. May 5, 2015) ($25,325.72); Bibber, 2015 WL 476190 at *6 ($24,386); Taggart v. Commissioner, No. 6:12–cv–

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1068–Orl–TBS, 2014 WL 5320556, at *1 (M.D.Fla. Oct.17, 2014) ($24,580.25); Hatchett v. Commissioner, No. 6:11–cv–1810–Orl–18TBS, 2014 WL 293464, at *2 (M.D.Fla. Jan. 27, 2014) ($23,180); White v. Commissioner, No. 6:09–cv–1208–Orl–28GJK, 2012 WL 1900562, at *6 (M.D.Fla. May 2, 2012) ($36,680.78); McKee v. Commissioner, No. 6:07-cv- 1554-Orl-28KRS, 2008 WL 4456453, at *7 (M.D.Fla. Sept. 30, 2008) ($20,768.00, less EAJA fees). The Court finds that the sum sought is reasonable and an award of $1,623.48 is appropriate under § 406(b). DONE and ORDERED in Orlando, Florida on April 20, 2016. ____/s/______DAVID A. BAKER UNITED STATES MAGISTRATE JUDGE

30a

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

BILL WESTFALL, Plaintiff, -vs- Case No. 6:14-cv-784-Orl-DAB COMMISSIONER OF SOCIAL SECURITY, Defendant. ______

ORDER

This cause came on for consideration without oral argument on the following motion filed herein:

MOTION: UNOPPOSED REQUEST FOR AUTHORIZATION TO CHARGE A REASONABLE FEE UNDER 42 U.S.C 406(B) (Doc. No. 25)

FILED: November 9, 2015

THEREON it is ORDERED that the motion is GRANTED, with a caveat, as set forth herein.

Counsel’s motion for authorization to charge a reasonable fee follows the issuance of an Order and Judgment reversing the decision of the Commissioner

31a of Social Security with respect to Plaintiff’s claim for benefits, and remanding the case pursuant to sentence four of 42 U.S.C. § 405(g) (Docs. 20 & 21). As set forth in the motion, Plaintiff’s attorney, Richard A. Culbertson, petitions this Court pursuant to 42 U.S.C. §406(b) for authorization to charge his client a fee for federal court representation in the amount of $3,325.95. This fee is based on a contingency fee agreement between counsel and Plaintiff and counsel’s calculations regarding past due benefits received by Plaintiff. Upon review, the motion is granted, as follows. Standards of Law There are three statutory provisions under which attorneys representing claimants in Social Security Disability cases may be compensated: 42 U.S.C. §§ 406(a) and 406(b), and 28 U.S.C. § 2142(d). Section 406(a) provides the exclusive avenue for attorneys seeking fees for work done before the Commissioner at the administrative level. The fees awarded under Section 406(a) are paid out of the claimant’s past-due benefits awarded. 42 U.S.C. § 406(a)(2)(A) and (B). Section 406(a) caps the fees that may be awarded at twenty-five percent of past-due benefits awarded or a lesser fixed amount. 42 U.S.C. § 406(a)(2)(A)(ii)(I)-(II). For fees incurred representing claimants in federal court, claimants and their attorneys may seek fees under two statutory provisions, 42 U.S.C. § 406(b) and 28 U.S.C. § 2142(d) (“the EAJA”). Under Section 406(b), upon entry of judgment in favor of a claimant, the Court may award a reasonable fee for work performed before the Court, which are paid out of the claimant’s past-due benefits awarded. 42 U.S.C.

32a

§ 406(b)(1)(A). Section 406(b) imposes a cap on the total amount of fees that may be awarded. 42 U.S.C. § 406(b)(1)(A). Section 406(b) provides that a Court may not award fees “in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled.” 42 U.S.C. § 406(b)(1)(A). The Fifth Circuit has held that 42 U.S.C. § 406 “precludes the aggregate allowance of attorney’s fees greater than twenty-five percent of the past due benefits received by the claimant.” Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir. 1970). Thus, in this circuit,1 the total fee under Sections 406(a) and (b) cannot exceed 25% of the past-due benefits. See Paltan v. Commissioner of Social Security, 518 Fed. Appx. 673 (11th Cir. 2013); Bookman v. Commissioner of Social Security, 490 Fed. Appx. 314 (11th Cir. 2012). By contrast, the EAJA permits a claimant to seek an award of fees against the government for work that is done before the Court if the claimant prevailed and the position of the Commissioner is not substantially justified. 28 U.S.C. § 2412(d)(1)(A). The EAJA contains a Savings Provision, however, that provides that “where the claimant’s attorney receives fees for the same work under both [406(b) and the EAJA], the claimant’s attorney refunds to the claimant the amount of the smaller fee.” 28 U.S.C. 2412 note, Act of Aug. 5, 1985, Pub.L. No. 99-80, § 3, 99 Stat. 183, 186 (uncodified). See Jackson v. Commissioner of Social Security, 601 F.3d 1268, 1271 (11th Cir. 2010) (noting

1In Bonner v. City of Pritchard, 661 F.2d 1206, 1209-11 (11th Cir. 1981), the Eleventh Circuit adopted as binding precedent the law of the former Fifth Circuit.

33a that the attorney may choose to effectuate the refund by deducting the amount of an earlier EAJA award from his subsequent 42 U.S.C. § 406(b) request). As the total fee under Sections 406(a) and (b) cannot exceed 25% of the past-due benefits and “double dipping” under the EAJA is not allowed, the Court generally needs to know the amount awarded under § 406(a) (if any), amounts paid under EAJA (if any), and the total amount of past due benefits calculated by the agency, in order to evaluate a § 406(b) motion. Analysis Applied here, this Court previously entered judgment in Plaintiff’s favor, with remand for further administrative proceedings. Counsel requested and received an award under the EAJA in the amount of $2,713.30 (Doc. 23). On remand, the agency found Plaintiff to be disabled and Petitioner was notified that the Plaintiff was awarded past-due benefits. The Social Security Administration advised that it was withholding a total of $6,039.25 representing 25% of the past-due benefits of the Plaintiff (Doc. 25-2). In his motion, counsel seeks a net fee of $3,325.95 (25% of the past-due benefits minus the EAJA fees awarded). No allowance is made for any potential §406(a) award. The Court observes that the fee requested here plus the retention of the EAJA payment equals the full 25% cap, leaving no additional funds available to award to this (or any other) counsel under Section 406(a), as a matter of law. See Dawson, Paltan, Bookman, supra. Plaintiff’s counsel states that: “No fees have been paid at the administrative level (Appendix 2), and Petitioner does not intend to file a fee petition under

34a

42 U.S.C. § 406(a) for work done at the administrative level.” (Doc. 25, pg. 2). Petitioner was Plaintiff’s counsel in the administrative proceedings and the administrative record includes his acceptance of appointment and contract for legal services before the agency (Doc. 13, R. 120-22). Notably, the Appointment does not include an executed waiver of any 406(a)fee. Id. The Court accepts counsel’s current statement as a waiver of any right to seek a 406(a) fee. Even though Mr. Culbertson was counsel at the administrative level, an award of $3,325.95 under Section 406(b) and retention of the EAJA fee constitutes all compensation available to him in this matter, from all sources. Petitioner contends that the amount of the fee requested is reasonable under §406(b) and Gisbrecht v. Barnhart, 535 U.S. 789, 122 S.Ct. 1817, 70 U.S.L.W. 4477 (2002). As the undersigned noted in Whalen v. Commissioner of Social Security, the “best indicator of the ‘reasonableness' of a contingency fee in a social security case is the contingency percentage actually negotiated between the attorney and client, not an hourly rate determined under lodestar calculations.” Case No. 6:10-cv-865-Orl-22DAB, 2012 WL 2798486, *2 (M.D. Fla. 2012) (citing Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir.1990)). However, “[a] fee pursuant to a contingency contract is not per se reasonable.” McGuire v. Sullivan, 873 F.2d 974, 979 (7th Cir.1989). The contingency fee negotiated by the claimant and his counsel is not reasonable if the agreement calls for fees greater than the twenty-five percent (25%) statutory limit, the agreement involved fraud or “overreaching” in its making, the resolution of the case was unreasonably delayed by the acts of the claimant's attorney, or would provide a fee “so large as to be

35a windfall to the attorney.” Wells, 907 F.2d at 372; McGuire, 873 F.2d at 981; Rodriguez v. Bowen, 865 F.2d 739, 746 (6th Cir.1989). “[B]ecause section 406(b) requires an affirmative judicial finding that the fee allowed is ‘reasonable,’ the attorney bears the burden of persuasion that the statutory requirement has been satisfied.” Gisbrecht, 122 S.Ct. at 1828 n. 17. To the extent the fee agreement is interpreted to allow for a total award at or below the cap the Court finds the request here to be reasonable under the principles of Gisbrecht.2 The Motion for authorization to charge a reasonable fee for federal court representation under § 406(b) is therefore GRANTED to the extent counsel is authorized to charge his client $3,325.95, consistent with the fee agreement, provided that counsel is barred from any further request for fees in this matter, pursuant to § 406(a) or otherwise, and counsel for both parties are directed to advise the agency of this preclusion as part of the Court’s award. DONE and ORDERED in Orlando, Florida on November 17, 2015. /s/ DAVID A. BAKER UNITED STATES MAGISTRATE JUDGE

2According to the papers, counsel spent at least 28.2 hours in federal court effort (Doc. 27). As such, the total fee is not a windfall and is consistent with that agreed to by Plaintiff and uncontested by the Commissioner.

36a

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

BILL WESTFALL,

Plaintiff,

-vs- Case No. 6:14–cv–784–Orl–DAB

COMMISSIONER OF SOCIAL SECURITY,

Defendant. ______

ORDER

This cause came on for consideration with oral argument on the following motion filed herein:

MOTION: DEFENDANT’S MOTION FOR RELIEF FROM ORDER PURSUANT TO RULE 60 (Doc. No. 27)

FILED: November 24, 2015

THEREON it is ORDERED that the motion is DENIED.

37a

The Court held argument in this and related cases, on the issue of awarding §406(b) fees (Doc. 29). Leave was granted to file supplemental papers in the relevant cases, and the parties have filed a Joint Response (Doc. 31) and a Joint Analysis (Doc. 32). In the instant motion, the Commissioner moves for “relief, in part” from the Court’s November 17, 2015 Order (“the Order”) granting Plaintiff’s counsel’s unopposed motion to charge his client a reasonable fee (Doc. 26). The basis cited for the motion is the authority of the Court to correct “mistakes” in its orders or judgments. Rule 60(a),(b)(1), Fed. R. Civ. P. (2015). Upon close review, and for the reasons set forth herein, the Court sees no such mistake and the motion is denied. Analysis I. The statutory framework There are three statutory provisions under which attorneys representing claimants in Social Security Disability cases may be compensated: 42 U.S.C. §§ 406(a) and 406(b), and 28 U.S.C. § 2142(d). Section 406(a) provides the exclusive avenue for attorneys seeking fees for work done before the Commissioner at the administrative level. The fees awarded under §406(a) are paid out of the claimant’s past-due benefits awarded. 42 U.S.C. § 406(a)(2)(A) and (B). Section 406(a) caps the fees that may be awarded at twenty- five percent of past-due benefits awarded or a lesser fixed amount. 42 U.S.C. § 406(a)(2)(A)(ii)(I)-(II). For fees incurred representing claimants in federal court, claimants and their attorneys may seek fees under two statutory provisions, 42 U.S.C. § 406(b) and the Equal Access to Justice Act, 28 U.S.C. § 2142(d)

38a

(“the EAJA”). Under Section 406(b), upon entry of judgment in favor of a claimant, the Court may award a reasonable fee for work performed before the Court, which is paid out of the claimant’s past-due benefits awarded. 42 U.S.C. § 406(b)(1)(A). Section 406(b) imposes a cap on the total amount of fees that may be awarded. 42 U.S.C. § 406(b)(1)(A). Section 406(b) provides that a Court may not award fees “in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled.” 42 U.S.C. § 406(b)(1)(A). The Fifth Circuit has held that 42 U.S.C. § 406 “precludes the aggregate allowance of attorney’s fees greater than twenty-five percent of the past due benefits received by the claimant.” Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir. 1970). Thus, in this circuit,1 the total fee under Sections 406(a) and (b) cannot exceed 25% of the past-due benefits. See Paltan v. Comm’r of Soc. Sec., 518 F. App’x. 673 (11th Cir. 2013); Bookman v. Comm’r of Soc. Sec., 490 F. App’x 314 (11th Cir. 2012).2 By contrast, the EAJA permits a claimant to seek an award of fees against the government for work that is done before the Court if the claimant prevailed and the position of the Commissioner is not substantially justified. 28 U.S.C. § 2412(d)(1)(A). The EAJA contains a Savings Provision, however, that provides that

1In Bonner v. City of Pritchard, 661 F.2d 1206, 1209-11 (11th Cir. 1981), the Eleventh Circuit adopted as binding precedent the law of the former Fifth Circuit.

2In the Eleventh Circuit, unpublished decisions are not binding, but are persuasive authority. See 11th Cir. R. 36-2.

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“where the claimant’s attorney receives fees for the same work under both [406(b) and the EAJA], the claimant’s attorney refunds to the claimant the amount of the smaller fee.” 28 U.S.C. 2412 note, Act of Aug. 5, 1985, Pub.L. No. 99-80, § 3, 99 Stat. 183, 186 (unmodified) (emphasis added).3 See Jackson v. Comm’r of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010) (noting that the attorney may choose to effectuate the refund by deducting the amount of an earlier EAJA award from his subsequent 42 U.S.C. § 406(b) request). As the total fee under Sections 406(a) and (b) cannot exceed 25% of the past-due benefits and double payment under the EAJA is not allowed, the Court has previously determined that it needs to know the amount awarded under § 406(a) (if any), amounts paid under EAJA (if any), and the total amount of past due benefits calculated by the agency, in order to evaluate a §406(b) motion. II. The need for complete information Here, counsel sought a §406(b) award of $3,325.95, (25% of the past-due benefits minus the EAJA fees awarded). Mr. Culbertson represented that: “No fees have been paid at the administrative level (Appendix 2), and Petitioner does not intend to file a fee petition under 42 U.S.C. § 406(a) for work done at the administrative level.” (Doc. 25, pg. 2). As the motion

40a had merit, but the amount sought plus retention of the EAJA fees equaled the 25% cap, the Court granted the motion, but barred counsel from any further request for fees in this matter, pursuant to §406(a) or otherwise (Doc. 26). The Commissioner’s motion followed. Following the filing of this motion, Mr. Culbertson advised the Court “that he is entitled to an attorney fee under 42 U.S.C. § 406(a) for a significant amount of work done at the administrative level” and he does not waive his right to file a fee petition under 42 U.S.C. § 406(a) (Doc. 28). This is problematic. As aggregate attorney’s fees cannot exceed the 25% cap, the Court cannot assure itself, without knowing the status of any §406(a) claim(s), that granting the full §406(b) award sought will not run afoul of Dawson. III. The Court’s proposed solution and the parties’ response In cases where, as here, counsel has been unable or unwilling to disclose the §406(a) amounts awarded by the Commissioner,4 and the sought-after award of §406(b) fees, when coupled with the retained EAJA fee, would constitute an award of the entire amount of the 25% cap; the Court has sought to comply with Dawson by adding the following admonition to any “full cap” §406(b) award:

4Some practitioners may seek to obtain the full 25% award and retain the EAJA fee by obtaining the EAJA first, then “deducting” the amount of the EAJA award from a §406(b) petition and award (which would leave a balance equal to the EAJA award with the Commissioner), and then seeking that balance under §406(a). See, generally, infra.

41a

provided that counsel is barred from any further request for fees in this matter, pursuant to § 406(a) or otherwise, and counsel for both parties are directed to advise the agency of this preclusion as part of the Court’s award. This provision has been objected to by the Commissioner and the social security practitioners, who, in their collective responses, ask the Court to substitute the following: This court approves $XXXX in 406(b) fees in this matter. However, the amount of 406(b) fees authorized combined with the total amount of 406(a) fees already approved and authorized shall not exceed twenty-five percent of the total past-due benefits payable to Plaintiff. (Docs. 29, 30). This provision would be acceptable if all possible §406(a) fees had, indeed, been “already approved and authorized” at the time of filing of the §406(b) petition. There is no showing by any of the parties, however, that such is the case. This is the root of the complex problem presented to the Court. As explained by Judge Dalton in a similar case: Relying on Ninth Circuit precedent, [claimant’s attorney] contends that § 406(a) does not impose the same 25–percent fee restriction on the Commissioner that § 406(b) imposes upon courts. (See id. at 6 (citing Clark v. Astrue, 529 F.3d 1211, 1216 (9th Cir.2008)).) [Claimant’s attorney] thus argues that he should be entitled to first seek from courts the maximum 25– percent § 406(b) fee award and then seek from the Commissioner further § 406(a) fees,

42a resulting in an aggregate § 406 award exceeding 25 percent of his client's past due benefits. (See id. at 6–8.) Magistrate Judge Baker's recommendation to the contrary, [counsel] argues, would result in federal courts impermissibly encroaching upon the authority of the Commissioner. (See id.) The Court disagrees. As [counsel] well knows,[fn omitted] the question of whether attorney's fees awarded under §§ 406(a) and (b) can exceed 25 percent in the aggregate has not been "novel" in this Circuit since 1970, when the Dawson court held that they cannot. See 425 F.2d at 1195. Regardless of [counsel’s] Ninth Circuit authority, Dawson binds the Court and forecloses it from awarding any § 406(b) fee that will result in an aggregate § 406 award in excess of 25 percent of a claimant's past-due benefits. See id. As Magistrate Judge Baker notes, complying with Dawson’s aggregation limitation is ordinarily a straightforward arithmetic exercise; Social Security attorneys typically obtain a § 406(a) fee authorization before making their § 406(b) request, and thus courts can subtract the § 406(a) fee from 25 percent of the claimant's past-due benefits to determine the maximum allowable § 406(b) award. (See Doc. 28, p. 3.) Here though, by seeking a § 406(b) award prior to seeking a § 406(a) award, [claimant’s attorney] has (intentionally) made that calculation impossible.

43a

The Court cannot permit [counsel] to circumvent the Dawson aggregate-fee limit by requesting § 406(b) fees prior to requesting § 406(a) fees. The 25–percent aggregate § 406 cap discussed in Dawson is not a technical formality; it is designed, among other things, to prevent attorneys from charging "inordinately large fees for representing claimants in Federal district court." 425 F.2d at 1194. As Dawson remains binding, the Court will not shirk its obligation to enforce the 25-percent cap. Based on [counsel’s] representation that he intends to make his §§ 406(a) and (b) requests in reverse order to circumvent the Dawson aggregation limit, the Magistrate Judge could reasonably have recommended denying [counsel’s] § 406(b) fee request without prejudice to its reassertion after he either obtains a finite § 406(a) authorization from the Commissioner or agrees not to seek one, after which the Court would be able to make a concrete § 406(b) determination. However, the Magistrate Judge evidently elected not to recommend such a needless waste of judicial and administrative resources, and instead recommends authorizing the full § 406(b) award on the condition that [claimant’s attorney] be precluded from seeking further § 406(a) fees. (See Doc. 28, p. 5.) The Court finds Magistrate Judge Baker's recommended approach to be reasonable and consistent with its obligations under Dawson, and thus it will adopt and confirm the R & R.

44a

Bibber v. Comm’r of Soc. Sec., No. 6:12-cv-1337-ORL, 2015 WL 476190, at *2-3 (M.D. Fla. Feb. 5, 2015). Absent knowledge of the amount of §406(a) fees and assurance that the cap has not and will not be exceeded by virtue of the §406(b) award, the Court cannot comply with the mandates of Dawson and assure that it is not inadvertently assisting counsel in the “double recovery” prohibited by the EAJA. Nothing presented by the Commissioner or counsel at argument or in the Responses filed (Doc. 29, 30) changes this conclusion. The parties contend that: 1) Dawson is not controlling, because that Court “did not hold that the total 406(a) fees and 406(b) fees awarded cannot ever exceed twenty-five percent of the claimant’s past-due benefits” (Doc. 30, p. 5); 2) Paltan and Bookman are unpublished, not binding, and not persuasive; and 3) the Court should follow the unreported district court case of White v. Comm’r of Soc. Sec., 2012 WL 1900562 (M.D. Fla. May 2, 2012) (adopted and confirmed by White v. Comm’r of Soc. Sec., 2012 1890558 (M.D. Fla. May 24, 2012) instead. — Dawson continues to apply The parties’ construction of Dawson is, at best, odd. At issue in Dawson was “allowance of a total fee in excess of twenty-five percent of past due benefits.” 425 F. 2d at 1195. Stating “[w]e are fully convinced that 42 U.S.C.A. 406 precludes the aggregate allowance of attorney's fees greater than twenty-five percent of the past due benefits received by the claimant,” 425 F.2d at 1195, the Dawson court affirmed the decision of the lower court which “conclud[ed] that 42 U.S.C.A. 406 limits an attorney's total fee allowance to twenty-five percent of the past due benefits recovered by the

45a claimant regardless of the fact that the attorney represented the claimant before both the Secretary and the District Court.” 425 F.2d at 1192. The parties’ contention that Dawson “did not hold that the total 406(a) fees and 406(b) fees awarded cannot ever exceed twenty-five percent of the claimant’s past due benefits” is rejected. As is clear, that is exactly what the Dawson court held. Nor is this Court alone in that observation. As Judge Conway has noted: No matter what statute or combination of statutes an attorney uses to obtain fees after a successful Social Security appeal, binding Eleventh Circuit precedent caps the aggregate amount of attorney's fees at 25 percent of the past-due benefits awarded to the claimant. Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir. 1970). Carbonell v. Comm'r of Soc. Sec., No. 6:11-CV-400- ORL-22, 2015 WL 631375, at *1 (M.D. Fla. Feb. 13, 2015).5 The Eleventh Circuit has relied upon and applied Dawson in both published and unpublished opinions. See, e.g., Paltan, 518 F. App’x 673; Bookman, 490 F. App’x 314; Green v. Comm’r of Soc. Sec., 390 F. App’x 873 (11th Cir. 2010);6 Bergen v. Comm’r of Soc.

5Judge Dalton has also affirmed this interpretation, and Dawson’s status as controlling and binding precedent. Bibber, supra.

6Of particular note, contrary to its position in this case, in Green, the Commissioner argued “that the district court erred in calculating Green’s §406(b) fee by failing to include in its calculus the $5,300.00 already paid to Green’s administrative attorney

46a

Sec., 454 F.3d 1273 (11th Cir. 2006); Shoemaker v. Bowen, 853 F.2d 858, 861 (11th Cir. 1988). In doing so, the Eleventh Circuit has rejected the contention that Dawson – and its prohibition against aggregate fees over 25% of past-due benefits – is anything other than binding precedent. Paltan. — Paltan and Bookman are persuasive The parties next contend that Paltan and Bookman are unpersuasive as they are unpublished and, in the case of Paltan, “actually conflict” with Dawson and Jackson. In Paltan, a per curiam opinion, the Eleventh Circuit affirmed the decision of this Court, holding that “[t]he district court did not err in its attorney’s fees calculation.” 518 F. App’x at 674. The Paltan opinion discusses both Dawson and Jackson, and directly addresses the issues raised in the instant case and related cases: George Paltan appeals the district court's [] award of attorney's fees under 42 U.S.C. § 406(b) to Richard Culbertson, his attorney before the district court in a challenge to the Social Security Administration's denial of his application for disability insurance benefits and supplemental security income. On appeal, Paltan argues the district court erred by awarding Culbertson attorney's fees in the amount of $182.91, rather than $4,281.83. He

under §406(a) . . .” 390 Fed. Appx. 873, n. 1. The Eleventh Circuit did not reach that argument “because the Commissioner failed to file a cross-appeal raising the issue.” Id.

47a maintains the district court erroneously concluded that the total amount of attorney's fees recoverable under 42 U.S.C.§ 406(a), § 406(b), and the Equal Access to Justice Act (EAJA), 28 U.S.C.§ 2412(d), could not exceed 25% of Paltan's past-due benefits. The district court did not err in its attorney's fees calculation.[] Paltan was represented in his proceedings before the Social Security Administration by J. Michael Matthews. After the Commissioner of Social Security denied Paltan's application for benefits, Paltan, represented by Culbertson, successfully appealed to the district court. Following the district court's remand, the Social Security Administration awarded Paltan $38,327.35 in past-due benefits. Accordingly, Matthews and Culbertson could receive, in the aggregate, 25% of those past-due benefits as attorney's fees, or $9,581.83. See Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir.1970) (holding that 42 U.S.C.§ 406 “precludes the aggregate allowance of attorney's fees greater than twenty-five percent of the past due benefits received by the claimant.”).[] Because Matthews received $5,300.00 in attorney's fees pursuant to 42 U.S.C.§ 406(a) for his work before the Social Security Administration, Culbertson was entitled only to $4,281.83 under § 406(b) for his work before the district court-- i.e., the remainder of the $9,581.83 of past-due benefits available for attorney's fees. See Dawson, 425 F.2d at 1195.

48a

Culbertson, however, previously obtained an attorney's fees award of $4,098.92 under the EAJA for the work he did before the district court. As such, the “Savings Provision” of the EAJA required Culbertson to refund either the EAJA award or the § 406(b) award, whichever was smaller. 28 U.S.C. § 2412, note; Pub. L. No. 99-80, § 3, 99 Stat. 186 (1985); see also Jackson v. Comm'r of Soc. Sec., 601 F.3d 1268, 1271-72 (11th Cir. 2010). Because the $4,098.92 EAJA award was smaller than the § 406(b) award of $4,281.83, Culbertson was required to refund the EAJA award to Paltan. Culbertson had the option of either refunding the EAJA award to Paltan directly, or reducing his § 406(b) award by $4,098.92, leaving him with a § 406(b) award of $182.91, the figure calculated by the district court.[] See Jackson, 601 F.3d at 1274 (explaining that an attorney who receives fees under both the EAJA and § 406(b) “may choose to effectuate the refund by deducting the amount of an earlier EAJA award from his subsequent 42 U.S.C. § 406(b) fee request”). In performing this calculus, the district court did not create a new rule limiting attorney's fees awards under § 406(a), § 406(b), and the EAJA to 25% of a claimant's past-due benefits. Instead, the district court followed binding Circuit precedent in imposing a 25% cap on attorney's fees under § 406(a) and (b) in the aggregate. The court, moreover, did not err by refusing to allow Culbertson to offset his EAJA award by deducting it from the total of Paltan's

49a

past-due benefits, which included the § 406(a) award to Matthews, or by prohibiting Culbertson from receiving double payment under the EAJA and § 406(b) for representing Paltan before the district court. See id. at 1272 (“We have previously recognized that the Savings Provision was intended to prevent attorneys from receiving double recovery under both the EAJA and § 406(b).”). Accordingly, we affirm the district court's award of attorney's fees. Paltan, 518 F. App’x 673, 673-75 (11th Cir. 2013) (emphasis added and footnotes omitted). Against this clear language, the parties’ contention that “[t]he affirmation of the district court fee order in Paltan does not establish that the Court agreed with the analysis, but only that the amount was within the discretion of the district court” (Doc. 30, p. 9) is without merit. The parties present no reason for disregarding Paltan here. Similarly, in Bookman, the Eleventh Circuit affirmed the undersigned’s order with respect to attorney’s fees under §40(b) and EAJA. The appellate court explained: If a party filing for disability benefits receives a favorable determination before the SSA, the Commissioner is required to fix a reasonable fee to compensate her attorney, but that award may not exceed 25% of the claimant's past-due benefits. 42 U.S.C. § 406(a). Similarly, if a party filing for disability benefits receives a favorable judgment from a court, the court may fix a reasonable fee to compensate her attorney, but

50a

that award also may not exceed 25% of the claimant's past due benefits. Id. § 406(b). And the aggregate of the attorney's fees awarded under § 406(a) and § 406(b) may not exceed 25% of the claimant's past due benefits. Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir.1970).[] Awards under § 406 are paid “by the claimant out of the past-due benefits awarded.” Jackson v. Comm'r of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010). In this case, the district court did not abuse its discretion because it was not authorized to award additional attorney's fees under § 406(b). The SSA had already awarded 25% of Bookman's past-due benefits to her attorney under § 406(a), and any additional award under § 406(b) would have resulted in an aggregate award that exceeded the maximum allowable under § 406. See id. Bookman v. Comm'r of Soc. Sec., 490 F. App'x 314, 316 (11th Cir. 2012) (footnote omitted).7 Although not published, the parties point to nothing to dilute Bookman’s persuasive value, as it is consistent with Dawson and its progeny. — The Court declines to follow White To the extent the parties urge the Court to follow White v. Comm’r of Soc. Sec., 2012 WL 1900562 (M.D.

7Note that Bookman looked to the §406(a) award as a basis for concluding that the district court was not authorized to award additional fees under §406(b). Without knowledge of the §406(a) fees already awarded, the Court cannot ascertain the limits of its authority under the statute.

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Fla. May 2, 2012) (adopted and confirmed by White v. Comm’r of Soc. Sec., 2012 1890558 (M.D. Fla. May 24, 2012)), this Court has already addressed and distinguished White in Paltan, and that case has been affirmed. See Paltan, Case No. 07-cv-932-DAB (Doc. 37). The parties present no compelling reason to find White persuasive here. Although it is not discussed at length in the Response, the Court assumes the parties are relying on White for its finding that, “[i]n determining an appropriate Section 406(b) fee, the Court should not include any fees awarded under the EAJA as part of Section 406(b)'s statutory cap.” White, 2012 WL 1900562, at *6.8 As support for this conclusion, Judge Kelly quoted and relied upon Watford v. Heckler, 765 F. 2d 1562 (11th Cir. 1985). Id. At issue in Watford, however, was not, as here, the appropriate calculation of the §406(b) fee, but whether §406(b) limits or prohibits an award of attorney’s fees “against the government” under the EAJA. As explained by that court: Therefore, the question becomes this: does Section 406(b) of the Social Security Act directly or indirectly place a ceiling on the amount of attorneys' fees that may be awarded against the government (pursuant to the EAJA) in Social Security cases? In view of the purposes and legislative histories of the two acts, as well as their express language, the answer would seem to be no. As already noted, the express language of Section 406(b) makes no reference to any

8The parties cite no other case which follows White with respect to this conclusion.

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limitation on the amount of fees to be awarded against the government in a proper case. Nor can any limit be gleaned from the express purposes of the two acts. The purpose of the EAJA was to alleviate economic deterrents to contesting unreasonable government action by shifting the burden of attorneys' fees from the private litigant to the government where the government's position is substantially unjustified. See H.R.Rep. No. 96-1418, 96th Cong.2d Sess. (1980), reprinted in 1980 U.S.Code Cong. & Ad.News 4984. The purposes of 42 U.S.C. § 406(b), on the other hand, were (1) to limit the size of contingency fees payable by the client, Congress believing that contingent fee arrangements in Social Security cases often resulted in an inordinate deprivation of benefits otherwise payable to the client, and (2) to ensure that attorneys would receive some fees for their representation. See S.Rep. No. 404, Cong., 1st Sess. 422 (1965), reprinted in 1965 U.S.Code Cong. & Ad.News 1943, 2062. See also Guthrie v. Schweiker, 718 F.2d at 107, n. 9; Watkins v. Harris, 566 F.Supp. at 495-96; Ocasio v. Schweiker, 540 F.Supp. at 1322. Consequently, allowing fee awards against the government in Social Security cases in amounts greater than 25 percent of a claimant's past-due benefits would not be contrary to the letter or the spirit of 42 U.S.C. § 406(b). Watford v. Heckler, 765 F.2d 1562, 1566-67 (11th Cir. 1985) (emphasis original). Here, the EAJA award has already been formulated without any reference to the

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§406(b) cap. More importantly, that issue has nothing to do with how the courts are to treat EAJA fees already awarded in calculating an appropriate §406(b) fee. Indeed, the Watford court acknowledged as much, noting: “Of course, no ‘double recovery’ is permitted, and any award received by the claimant's counsel under the EAJA for work done in court must be used to reimburse the claimant up to any amount previously awarded under 42 U.S.C.§ 406(b)(1) for counsel's services in court.” Id., n. 5. The Supreme Court discussed the role of the EAJA in the social security fee context, at length, in Gisbrecht v. Barnhart, 535 U.S. 789, 122 S. Ct. 1817, 152 L. Ed. 2d 996 (2002). The Court stated: In many cases, as in the instant case, the Equal Access to Justice Act (EAJA), enacted in 1980, effectively increases the portion of past-due benefits the successful Social Security claimant may pocket. 94 Stat. 2329, as amended, 28 U.S.C. § 2412. Under EAJA, a party prevailing against the United States in court, including a successful Social Security benefits claimant, may be awarded fees payable by the United States if the Government's position in the litigation was not “substantially justified.” § 2412(d)(1)(A). EAJA fees are determined not by a percent of the amount recovered, but by the “time expended” and the attorney's “[hourly] rate,” § 2412(d)(1)(B), capped in the mine run of cases at $125 per hour, § 2412(d)(2)(A). ... Cf. 5 U.S.C.§ 504 (authorizing payment of attorney's fees by the Government when a party prevails in a federal agency adjudication).Congress

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harmonized fees payable by the Government under EAJA with fees payable under § 406(b) out of the claimant's past-due Social Security benefits in this manner: Fee awards may be made under both prescriptions, but the claimant's attorney must “refun[d] to the claimant the amount of the smaller fee.” Act of Aug. 5, 1985, Pub.L. 99-80, § 3, 99 Stat. 186. “Thus, an EAJA award offsets an award under Section 406(b), so that the [amount of the total past-due benefits the claimant actually receives] will be increased by the ... EAJA award up to the point the claimant receives 100 percent of the past-due benefits.” Brief for United States 3. Gisbrecht, 535 U.S. at 796, 122 S. Ct. at 1822 (emphasis added, footnote omitted). See also Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006), quoting Gisbrecht. Under the dictates of Jackson, the claimant is entitled to the full benefit of the EAJA award unless the EAJA award exceeds the §406(b) fee. In cases where the funds withheld by the Commissioner are sufficient to cover the §406(b) fee, counsel has the option of refunding the EAJA award to the claimant or reducing the §406(b) fee by the same amount. 601 F.3d at 1271. In cases where the withheld funds are insufficient to pay the entire approved §406(b) fee, counsel may collect only so much of the withheld funds as leaves the claimant with the full EAJA award -- again, unless the EAJA award exceeds the available §406(b) funds. Thus, regardless of whether it is offset by refund directly to the claimant, or retained by

55a counsel and deducted from the §406(b) request, the EAJA award cannot be ignored and must be accounted for in the §406(b) calculation.9 Stated differently, the methodology approved by the Eleventh Circuit in Paltan still applies. Counsel cannot sequence the various sources of payments and credits to avoid the dictates of the statutes and case law. To the extent the parties rely on White to conclude otherwise, they are mistaken. IV. Going Forward The Court ends the analysis where it began and concludes that the statutory framework and binding case law in this circuit compels the rejection of the parties’ suggested language. To the extent the parties object to the language prohibiting counsel from seeking additional §406(a) fees after obtaining full relief from this Court, the Court can deny all applications that do not provide complete information regarding the status of §406(a) fees, as premature. Alternatively, and in view of counsel’s difficulties in obtaining accurate and timely §406(a) information from the Commissioner, the Court can award §406(b) fees conditionally, to wit: This court approves up to $XXXX in 406(b) fees in this matter, provided the maximum amount of 406(b) fees authorized combined with 1) the total amount of 406(a) fees authorized by the Commissioner and 2) the amount of any EAJA award that has not been refunded to the

99This is not to say that the Court must order the refund or oversee payment. Jackson makes clear that it is counsel’s obligation under penalty of law to effectuate the offset.

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claimant shall not exceed twenty-five percent of the total past-due benefits payable to Plaintiff. This language adheres to the statutory standard and places the responsibility for compliance with Dawson and Jackson on the parties and counsel. The instant motion The premise of Defendant’s motion is its assertion that “the Order appears to direct the Commissioner not to award counsel §406(a) fees, should Plaintiff’s counsel seek them,” citing page 5 of the Order. The Order does no such thing. Rather, the Order explains the controlling law in this circuit and grants counsel’s motion, “provided that counsel is barred from any further request for fees in this matter, pursuant to § 406(a) or otherwise, and counsel for both parties are directed to advise the agency of this preclusion as part of the Court’s award.” (Doc. 26, at 5-emphasis original). The Court did not purport to direct the Commissioner to take - or not take - any action. Here, counsel was seeking a §406(b) fee which, coupled with retention of the EAJA fee already awarded, equaled the full 25%, leaving no additional funds available to award under §406(a), without running afoul of the cap. As the motion for §406(b) fees was filed before any petition for an award of fees under §406(a) was presented to the Commissioner, and the motion was not opposed by the Commissioner as being premature or otherwise, the Court granted the amount sought, which had the legal effect of foreclosing any additional award under §406. To the extent the Commissioner now asserts that “this court is not the correct forum to determine whether the payment of 406(a) fees is appropriate,” the Court reiterates that it

57a has no such plans. Should the Commissioner see it differently, she may object to future §406(b) motions as premature, if they fail to present without either 1) evidence of a §406(a) award or 2) a signed waiver of §406(a) fees by all counsel at the administrative level. Alternatively, the Court can condition its §406(b) award, as set forth above. In any event, the instant motion presents no sufficient ground for relief from the November 17, 2015 Order. It is therefore denied. DONE and ORDERED in Orlando, Florida on April 19, 2016. ______/s/______DAVID A. BAKER UNITED STATES MAGISTRATE JUDGE

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Relevant Statutory Provisions

§ 406. Representation of claimants before Commissioner (a) Recognition of representatives; fees for representation before Commissioner of Social Security (1) The Commissioner of Social Security may prescribe rules and regulations governing the recognition of agents or other persons, other than attorneys as hereinafter provided, representing claimants before the Commissioner of Social Security, and may require of such agents or other persons, before being recognized as representatives of claimants that they shall show that they are of good character and in good repute, possessed of the necessary qualifications to enable them to render such claimants valuable service, and otherwise competent to advise and assist such claimants in the presentation of their cases. An attorney in good standing who is admitted to practice before the highest court of the State, Territory, District, or insular possession of his residence or before the Supreme Court of the United States or the inferior Federal courts, shall be entitled to represent claimants before the Commissioner of Social Security. Notwithstanding the preceding sentences, the Commissioner, after due notice and opportunity for hearing, (A) may refuse to recognize as a representative, and may disqualify a representative already recognized, any attorney who has been disbarred or suspended from any court or bar to which he or she was previously admitted to practice or who has been disqualified from participating in or

59a appearing before any Federal program or agency, and (B) may refuse to recognize, and may disqualify, as a non-attorney representative any attorney who has been disbarred or suspended from any court or bar to which he or she was previously admitted to practice. A representative who has been disqualified or suspended pursuant to this section from appearing before the Social Security Administration as a result of collecting or receiving a fee in excess of the amount authorized shall be barred from appearing before the Social Security Administration as a representative until full restitution is made to the claimant and, thereafter, may be considered for reinstatement only under such rules as the Commissioner may prescribe. The Commissioner of Social Security may, after due notice and opportunity for hearing, suspend or prohibit from further practice before the Commissioner any such person, agent, or attorney who refuses to comply with the Commissioner’s rules and regulations or who violates any provision of this section for which a penalty is prescribed. The Commissioner of Social Security may, by rule and regulation, prescribe the maximum fees which may be charged for services performed in connection with any claim before the Commissioner of Social Security under this subchapter, and any agreement in violation of such rules and regulations shall be void. Except as provided in paragraph (2)(A), whenever the Commissioner of Social Security, in any claim before the Commissioner for benefits under this subchapter, makes a determination favorable to the claimant, the Commissioner shall, if the claimant was represented by an attorney in connection with such claim, fix (in accordance with the regulations prescribed pursuant

60a to the preceding sentence) a reasonable fee to compensate such attorney for the services performed by him in connection with such claim. (2)(A) In the case of a claim of entitlement to past- due benefits under this subchapter, if-- (i) an agreement between the claimant and another person regarding any fee to be recovered by such person to compensate such person for services with respect to the claim is presented in writing to the Commissioner of Social Security prior to the time of the Commissioner’s determination regarding the claim, (ii) the fee specified in the agreement does not exceed the lesser of-- (I) 25 percent of the total amount of such past-due benefits (as determined before any applicable reduction under section 1320a-6(a) of this title), or (II) $4,000, and (iii) the determination is favorable to the claimant, then the Commissioner of Social Security shall approve that agreement at the time of the favorable determination, and (subject to paragraph (3)) the fee specified in the agreement shall be the maximum fee. The Commissioner of Social Security may from time to time increase the dollar amount under clause (ii)(II) to the extent that the rate of increase in such amount, as determined over the period since January 1, 1991, does not at any time exceed the rate of increase in primary insurance

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amounts under section 415(i) of this title since such date. * * * (C) In any case involving-- (i) an agreement described in subparagraph (A) with any person relating to both a claim of entitlement to past-due benefits under this subchapter and a claim of entitlement to past-due benefits under subchapter XVI of this chapter {Supplemental Security Income for the Aged, Blind, and Disabled], and (ii) a favorable determination made by the Commissioner of Social Security with respect to both such claims, the Commissioner of Social Security may approve such agreement only if the total fee or fees specified in such agreement does not exceed, in the aggregate, the dollar amount in effect under subparagraph (A)(ii)(II). (D) In the case of a claim with respect to which the Commissioner of Social Security has approved an agreement pursuant to subparagraph (A), the Commissioner of Social Security shall provide the claimant and the person representing the claimant a written notice of-- (i) the dollar amount of the past-due benefits (as determined before any applicable reduction under section 1320a-6(a) of this title) and the dollar amount of the past-due benefits payable to the claimant,

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(ii) the dollar amount of the maximum fee which may be charged or recovered as determined under this paragraph, and (iii) a description of the procedures for review under paragraph (3). (3)(A) The Commissioner of Social Security shall provide by regulation for review of the amount which would otherwise be the maximum fee as determined under paragraph (2) if, within 15 days after receipt of the notice provided pursuant to paragraph (2)(D)-- (i) the claimant, or the administrative law judge or other adjudicator who made the favorable determination, submits a written request to the Commissioner of Social Security to reduce the maximum fee, or (ii) the person representing the claimant submits a written request to the Commissioner of Social Security to increase the maximum fee. Any such review shall be conducted after providing the claimant, the person representing the claimant, and the adjudicator with reasonable notice of such request and an opportunity to submit written information in favor of or in opposition to such request. The adjudicator may request the Commissioner of Social Security to reduce the maximum fee only on the basis of evidence of the failure of the person representing the claimant to represent adequately the claimant’s interest or on the basis of evidence that the fee is clearly excessive for services rendered. (B)(i) In the case of a request for review under subparagraph (A) by the claimant or by the person representing the claimant, such review shall be

63a conducted by the administrative law judge who made the favorable determination or, if the Commissioner of Social Security determines that such administrative law judge is unavailable or if the determination was not made by an administrative law judge, such review shall be conducted by another person designated by the Commissioner of Social Security for such purpose. (ii) In the case of a request by the adjudicator for review under subparagraph (A), the review shall be conducted by the Commissioner of Social Security or by an administrative law judge or other person (other than such adjudicator) who is designated by the Commissioner of Social Security. (C) Upon completion of the review, the administrative law judge or other person conducting the review shall affirm or modify the amount which would otherwise be the maximum fee. Any such amount so affirmed or modified shall be considered the amount of the maximum fee which may be recovered under paragraph (2). The decision of the administrative law judge or other person conducting the review shall not be subject to further review. (4) Subject to subsection (d) of this section, if the claimant is determined to be entitled to past-due benefits under this subchapter and the person representing the claimant is an attorney, the Commissioner of Social Security shall * * * certify for payment out of such past-due benefits (as determined before any applicable reduction under section 1320a- 6(a) of this title) to such attorney an amount equal to so much of the maximum fee as does not exceed 25 percent of such past-due benefits (as determined

64a before any applicable reduction under section 1320a- 6(a) of this title). * * * (b) Fees for representation before court (1)(A) Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security may * * * certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits. In case of any such judgment, no other fee may be payable or certified for payment for such representation except as provided in this paragraph. * * * (2) Any attorney who charges, demands, receives, or collects for services rendered in connection with proceedings before a court to which paragraph (1) of this subsection is applicable any amount in excess of that allowed by the court thereunder shall be guilty of a misdemeanor and upon conviction thereof shall be subject to a fine of not more than $500, or imprisonment for not more than one year, or both.

No. 17-773

In the Supreme Court of the United States

RICHARD ALLEN CULBERTSON,

Petitioner,

NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY,

Respondent.

On Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit

BRIEF OF COURT-APPOINTED AMICUS CURIAE URGING AFFIRMANCE OF THE JUDGMENT BELOW

Amy Levin Weil Counsel of Record Court-Appointed Amicus The Weil Firm 511 East Paces Ferry Road, N.E. Atlanta, Georgia 30305 (404) 581-0000 [email protected]

Counsel for Amicus Curiae 282334 A (800) 274-3321 • (800) 359-6859 i

QUESTION PRESENTED

Whether the attorney’s fees provisions of Title II of the Social Security Act, 42 U.S.C. § 406, cap the maximum amount of attorney’s fees that may be paid under §§ 406(a) and 406(b) to 25% in the aggregate of a claimant’s past- due benefits. ii

TABLE OF CONTENTS Page QUESTION PRESENTED ...... i

TABLE OF CONTENTS ...... ii

TABLE OF CITED AUTHORITIES ...... iv

STATEMENT OF THE CASE ...... 1

A. Statutory Background ...... 1

1. Attorney’s Fees Under 42 U.S.C. § 406 . . 1

a. Fees for Representation Before the Agency Under § 406(a) ...... 2

b. Fees for Representation Before the Court Under § 406(b) ...... 4

1. Attorney’s Fees Under EAJA . . 5

B. Factual Background ...... 6

SUMMARY OF THE ARGUMENT ...... 9

ARGUMENT ...... 11

THE ATTORNEY’S FEES PROVISIONS OF TITLE II OF THE SOCIAL SECURITY ACT, 42 U.S.C. § 406, CAP THE MAXIMUM AMOUNT OF ATTORNEY’S FEES THAT MAY BE PAID UNDER § 406(a) AND § 406(b) TO 25% IN THE AGGREGATE OF A CLAIMANT’S PAST-DUE BENEFITS. . . . . 11 iii

Table of Contents Page A. The Text of § 406(a) & (b), Read Together, Supports a 25%-Aggregate Rule...... 13

B. The Legislative History of § 406 Supports a 25%-Aggregate Rule...... 19

C. The Arguments in Favor of a 25%-Aggregate Rule Are Compelling...... 23

i. Because (a) and (b) fees are paid from a single pool of past-due benefits, permitting such fees to exceed 25% in the aggregate creates a race to the agency...... 23

ii. Rejecting the 25%-aggregate rule would lead to absurd results...... 24

iii. Logic supports the 25%-aggregate rule...... 26

iv. Respondent for decades agreed with Dawson’s 2 5% -agg regate rule...... 27

D. The Arguments Against a 25%-Aggregate Rule Are Unpersuasive...... 31

CONCLUSION ...... 43

APPENDIX ...... 1a iv

TABLE OF CITED AUTHORITIES Page CASES

Astrue v. Ratliff, 560 U.S. 586 (2010) ...... 30, 33, 34

Bailey v. Heckler, 621 F. Supp. 521 (W.D. Pa. 1985) ...... 25

Barnhart v. Walton, 535 U.S. 212 (2002) ...... 19

Bonner v. Prichard, 661 F.2d, 1206 (11th Cir. 1981) (en banc) ...... 12-13

Booth v. Comm’r of Soc. Sec., 645 F. App’x 455 (6th Cir. 2016) ...... 40

Brown v. Gardner, 387 F.2d 345 (4th Cir. 1967) ...... 25

Campbell v. Astrue, 2009 WL 2342739 (E.D. Ky. 2009) ...... 40

Celebrezze v. Sparks, 342 F.2d 286 (5th Cir. 1965) ...... 41

Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc., 472 U.S. 559 (1985) ...... 29 v

Cited Authorities Page City Bank Farmers Tr. Co. v. Irving Tr. Co., 299 U.S. 433 (1937) ...... 14

Clark v. Astrue, 529 F.3d 1211 (9th Cir. 2008) ...... 28

Claypool v. Barnhart, 294 F. Supp. 2d 829 (S.D.W. Va. 2003) ...... 32

Cunningham v. Harris, 658 F.2d 239 (4th Cir. 1981)...... 14

Cutler v. Weinberger, 516 F.2d 1282 (2d Cir. 1975) ...... 11, 13, 31, 42

Davis v. Bowen, 894 F.2d 271 (8th Cir. 1989) ...... 18

Dawson v. Finch, 425 F.2d 1192 (5th Cir. 1970) ...... passim

Digital Realty Tr., Inc. v. Somers, 138 S. Ct. 767 (2018) ...... 19

Eisenhauer v. Mathews, 535 F.2d 681 (2d Cir. 1976) ...... 14

Ellick v. Barnhart, 445 F. Supp. 2d 1166 (C.D. Cal. 2006) ...... 40 vi

Cited Authorities Page Gisbrecht v. Barnhart, 535 U.S. 789 (2002) ...... passim

Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38 (2 Cir. 1972) ...... 13-14, 42

Guido v. Schweiker, 775 F.2d 107 (3d Cir. 1985) ...... 18

Hayes v. Comm’r of Soc. Sec., 895 F.3d 449 (6th Cir. 2018) ...... 24, 41

Jackson v. Comm’r of Soc. Sec., 601 F.3d 1268 (11th Cir. 2010) ...... 6

King v. St. Vincent’s Hosp., 502 U.S. 215 (1991) ...... 13

Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752 (2018) ...... 18

Lavender v. Califano, 683 F.2d 133 (6th Cir. 1892) ...... 25

Lewis v. Sec’y of Health & Human Servs., 707 F.2d 246 (6th Cir. 1983) ...... 29

Lorillard v. Pons, 434 U. S. 575 (1978) ...... 18 vii

Cited Authorities Page Marshall v. Comm’r of Soc. Sec., 444 F.3d 837 (6th Cir. 2006) ...... 34

Massachusetts v. Morash, 490 U.S. 107 (1989) ...... 13

McCuin v. Sec’y of Health & Human Servs., 817 F.2d 161 (1st Cir. 1987) ...... 14

Melkonyan v. Sullivan, 501 U.S. 89 (1991) ...... 5

Melvin v. Colvin, 2013 WL 3340490 (E.D.N.C. 2013) ...... 32

Morris v. Soc. Sec. Admin., 689 F.2d 495 (4th Cir. 1982) ...... 12, 18, 22

Nix v. Whiteside, 475 U.S. 157 (1986) ...... 30

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) ...... 13

Rodriquez v. Bowen, 865 F.2d 739 (6th Cir. 1989) ...... 29

Sabourin v. Colvin, 2014 WL 3949506 (N.D.Tex. 2014) ...... 5 viii

Cited Authorities Page Scarborough v. Principi, 541 U.S. 401 (2004) ...... 5, 34

Shalala v. Schaefer, 509 U.S. 292 (1993) ...... 5, 34

Shell Oil Co. v. Iowa Dept. of Revenue, 488 U.S. 19 (1988) ...... 13

Sullivan v. Hudson, 490 U.S. 877 (1989) ...... 5

Tamara B. v. Berryhill, ___ F. Supp. ___, 2018 WL 3085200 (D. Vt. 2018) .22

United States v. Am. Trucking Ass’ns, 310 U.S. 534 (1940) ...... 26

Vilkas v. Comm’r of Soc. Sec., 2007 WL 1498115 (M.D. Fla. 2007) ...... 32

Webb v. Richardson, 472 F.2d 529 (6th Cir. 1972) ...... 18

Wrenn ex rel. Wrenn v. Astrue, 525 F.3d 931 (10th Cir. 2008) ...... 28, 29

STATUTES AND REGULATIONS

20 U.S.C. § 3508 ...... 19 ix

Cited Authorities Page 28 U.S.C. § 636 ...... 25

28 U.S.C. § 2412(d) ...... 5, 7

28 U.S.C. § 2412(d)(1)(A) ...... 5

42 U.S.C. §§ 401 et seq...... 1

42 U.S.C. § 405(g) ...... 5, 6, 34

42 U.S.C. § 406 ...... passim

42 U.S.C. § 406(a) ...... passim

42 U.S.C. § 406(a)(1) ...... passim

42 U.S.C. § 406(a)(2) ...... passim

42 U.S.C. § 406(a)(2)(A) ...... 3

42 U.S.C. § 406(a)(4) ...... 3, 4, 10, 23

42 U.S.C. § 406(a)(5) ...... 4

42 U.S.C. § 406(b) ...... passim

42 U.S.C. § 406(b)(1) ...... 24

42 U.S.C. § 406(b)(1)(A) ...... 4, 10, 25, 26

42 U.S.C. § 406(b)(2) ...... 4 x

Cited Authorities Page 42 U.S.C. § 407(a) ...... 41

42 U.S.C. §§ 1381 et seq...... 1

42 U.S.C. § 1383(d) ...... 1

42 U.S.C. § 1383(d)(2)(A) ...... 2

42 U.S.C. § 1383(d)(2)(B) ...... 2

20 C.F.R. § 1720 ...... 36

20 C.F.R. § 404.1720(a) ...... 36

20 C.F.R. § 404.1720(b) ...... 36

20 C.F.R. § 404.1720(b)(1) ...... 36

20 C.F.R. § 404.1720(b)(2) ...... 36

20 C.F.R. § 404.1720(b)(3) ...... 37

20 C.F.R. § 404.1720(b)(4) ...... 23, 37

20 C.F.R. § 404.1725(a)(4) ...... 41

20 C.F.R. § 404.1725(b)(2) ...... 3, 35

20 C.F.R. § 404.1728(a) ...... 41-42

20 C.F.R. § 404.1730 ...... 36 xi

Cited Authorities Page 20 C.F.R. § 404.1730(a) ...... 23

20 C.F.R. § 404.1730(b) ...... 23

20 C.F.R. § 404.1730(b)(1) ...... 37

20 C.F.R. §§ 404.1740–1799 ...... 4

MISCELLANEOUS

2 Soc. Sec. Disab. Claims Prac. & Proc. § 21:83 (2nd ed.) ...... 3

49 Stat. 620 (1935) ...... 14

74 Fed. Reg. 6080 ...... 3

79 Cong. Rec. 12793 (1935) ...... 1

1965 U.S.C.C.A.N. 1943 ...... 20

1990 U.S.C.C.A.N. 2374 ...... 38

Act of Aug. 5, 1985, Pub. L. No. 99–80, § 3, 99 Stat. 186 ...... 6

Admin. Office of the U.S. Courts, Statistical Tables for the Federal Judiciary, Table C-3 (2015-17) . . 32 xii

Cited Authorities Page Alison M. MacDonald & Victor, Williams, In Whose Interests? Evaluating Attorneys’ Fee Awards and Contingent-Fee Awards in Social Security Disability Benefits Cases, 47 Admin. L. Rev. 115 (1995) ...... 21

Conference Report—Social Security H.R. 7260 . . . 1

Disability Secrets: When Can a Disability LawyerUse a Fee Petition to Get Paid? ...... 38

Equal Access to Justice Act (EAJA) . . . . . passim

Equal Access to Justice Act: Its Use in Selected Agencies, HEHS-98-58R (Jan. 14, 1998) . . . . .34

H.R. 6675 ...... 16

H.R. Conf. Rep. 101-964 ...... 37

Hearings, Appeals, and Litigation Law Manual: (HALLEX) I–1–2–9(B) ...... 17, 23 (HALLEX) I–1–2–71(A) ...... 17 (HALLEX) I-1-2-71(A) n. 1 ...... 23

Hearings on H.R. 6675 Before the Senate Committee on Finance, 89th Congress, 1st Sess., Part One (1965) ...... 10, 19

Merriam-Webster Dictionary ...... 36 xiii

Cited Authorities Page Office of the Inspector Gen., Soc. Sec. Admin., No. A-05- 13-13061, Audit Report: Controls over Claimant Representative Fee Petition Payments 3 (2015) ...... 38

Office of the Inspector Gen., Soc. Sec. Admin., No. A-05-15-15017, Informational Report: Agency Payments to Claimant Representatives App. C-1 (2015) ...... 33

Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101–508, § 5106(a), 104 Stat. 1388 (1990) ...... 17

Program Operations Manual System (POMS): GN 03920.035(A) note ...... 17 GN 03920.050(C) ...... 39 GN 03920.060(B)(3) ...... 17

Pub. L. No. 89-97, Title III, § 332, 79 Stat. 403 . . . 15

Restatement (Second) of Trusts § 176 (1957) . . . . 29

S. Rep. No. 404, Pt. I, 89th Cong., 1st Sess...... 20

Social Security Act Amendments of 1939, 53 Stat. 1372 ...... 14

Social Security Act, Title II ...... 1, 5 xiv

Cited Authorities Page Social Security Act, Title XVI ...... 1, 5

Social Security Amendments of 1965, Pub. L. No. 89–97, § 332, 79 Stat. 403. Subsection (b)(1) .passim

Social Security Amendments of 1967, Pub. L. No. 90–248, Title I, § 173, 81 Stat. 877 (1968) ...... 16, 17, 22

Social Security Disability Applicants’ Access to Professional Representation Act of 2010, Pub. L. No. 111–142, 124 Stat. 38 ...... 2

Social Security Programs in the United States, 50 Soc. Sec. Bull. No. 4 (Apr. 1987) ...... 1

Social Security Protection Act of 2004, Pub. L. No. 108–203, § 302, 118 Stat. 493 . . . .1-2

Social Security Act of 1935 ...... passim

Thomas E. Bush, Social Security Disability Practice: The Fee Agreement Process for Approval of Attorney Fees ...... 38 1

STATEMENT OF THE CASE

A. Statutory Background

1. Attorney’s Fees Under 42 U.S.C. § 406

The Social Security Act of 1935 (“Act”) was enacted by Congress in the wake of the Great Depression “to provide for the general welfare.” 79 Cong. Rec. 12793 (1935) (excerpt from Conference Report–Social Security H.R. 7260). The Act created a number of federal assistance programs for the elderly, infirm, and economically disadvantaged, and for certain of their dependents. Title II of the Act, 42 U.S.C. §§ 401 et seq., established an insurance program providing old-age, survivor, and disability benefits for claimants and certain dependents. Title XVI of the Act, 42 U.S.C. §§ 1381 et seq., established a separate welfare program that provides supplemental security income (SSI) benefits to financially needy individuals who are aged, blind, or disabled, and certain dependents, regardless of their insured status. Benefits provided under the Act are intended to serve as a “safety net,” assuring minimum income and an adequate standard of living. See Social Security Programs in the United States, 50 Soc. Sec. Bull. No. 4, at 6 (Apr. 1987).

Amendments to the Act, codified at 42 U.S.C. § 406, govern the payment of attorney’s fees for Title II and Title XVI.1 The provisions of § 406 govern attorney’s

1. Although the payment of attorney’s fees for Title XVI claims is governed by 42 U.S.C. § 1383(d), Congress has extended the Title II attorney’s fee payment system to claims brought under Title XVI and incorporated the provisions of § 406 into § 1383(d). See Social 2 fees for successful representation of claimants at the administrative level under § 406(a) and in court under § 406(b). There is no allowance for the payment of attorney’s fees when representation is unsuccessful.

a. Fees for Representation Before the Agency Under § 406(a)

At the administrative level, an attorney who represents a claimant before the Social Security Administration (SSA) (referred to as an “agency attorney”) may collect a fee for his2 representation (referred to as an “(a) fee” or an “agency fee”) if such representation results in a favorable determination by the agency. See 42 U.S.C. § 406(a)(1), (2). An attorney has two options for recovering a fee for successful representation before the agency: the attorney may file with the SSA either a fee petition under § 406(a) (1) (“petition process”) or a fee agreement under § 406(a) (2) (“agreement process”).

Under the petition process, if an attorney’s representation before the agency results in a determination favorable to the claimant, the Commissioner of Social

Security Protection Act of 2004, Pub. L. No. 108–203, §302, 118 Stat. 493, 519–21, as amended by Social Security Disability Applicants’ Access to Professional Representation Act of 2010, Pub. L. No. 111–142, 124 Stat. 38. While the Commissioner correctly notes that the amendment to Title XVI incorporating 42 U.S.C. § 406 contains “modifications for SSI cases, 42 U.S.C. 1383(d)(2)(A), and separately addresses payment of such fees from past-due SSI benefits, 42 U.S.C. 1383(d)(2)(B),” (Respondent’s brief 2-3 n.2), § 406’s provisions remain applicable to SSI cases in all relevant respects.

2. For ease of reference, a generic attorney is referred to as “he” and a generic claimant as “she.” 3

Security will upon request determine a reasonable fee for the attorney’s services before the agency. See 42 U.S.C. § 406(a)(1). The maximum (a)(1) fee that may be charged is set by rules and regulations promulgated by the Commissioner. Id. An attorney may collect an (a)(1) fee even if no past-due benefits are awarded.See 20 C.F.R. 404.1725(b)(2). Cases in which a “favorable determination” is issued but no past-due benefits awarded typically involve overpayment or termination claims. See Filing a petition when there is no past-due fund, 2 Soc. Sec. Disab. Claims Prac. & Proc. § 21:83 (2nd ed.).

Alternatively, under the agreement process, if an attorney enters a fee agreement with his client setting a fee at the lesser of 25% of past-due benefits or $6,000 3 and files the agreement with the agency prior to the issuance of a favorable determination by the SSA, the Commissioner will automatically approve the fee at the time of the agency’s decision. See 42 U.S.C. § 406(a)(2).

Under both the petition process and the agreement process, if the claimant is determined by the agency to be entitled to past-due benefits, the Commissioner will certify for payment out of those past-due benefits the attorney’s fee in an amount up to 25% of the benefits.See 42 U.S.C. § 406(a)(4). The Commissioner is required to pay the agency attorney an (a) fee that she approves, but the payment of an (a) fee – under either (a)(1) or (a)(2) – may not exceed 25% of a claimant’s past-due benefits. Id.

3. 42 U.S.C. 406(a)(2)(A), 74 Fed. Reg. 6080. 4

b. Fees for Representation Before the Court Under § 406(b)

An attorney who represents a claimant in court on appeal from an agency determination (referred to as a “court attorney”) may collect a fee for his representation (referred to as a “(b) fee” or a “court fee”) if he obtains a favorable court decision. Congress has provided that a federal court may include as part of its judgment favorable to a claimant a reasonable fee for representation by an attorney before the court not in excess of 25% of the claimant’s past-due benefits.See 42 U.S.C. § 406(b)(1)(A). The Commissioner is authorized to certify a court fee for payment to the court attorney “out of, and not in addition to, the amount of such past-due benefits.”Id . Because a (b) fee is limited to 25% of past-due benefits, “attorneys may not gain additional fees based on a claimant’s continuing entitlement to benefits.” See Gisbrecht v. Barnhart, 535 U.S. 789, 795 (2002).

The attorney’s fee provisions of §§ 406(a) and (b) establish the exclusive regime for obtaining fees from Social Security claimants. See Gisbrecht, supra, 535 U.S. at 795–96. “Collecting or even demanding from the client anything more than the authorized allocation of past-due benefits is a criminal offense.” Id. at 796 (citing 42 U.S.C. §§ 406(a)(5), (b)(2); 20 CFR §§ 404.1740–1799).

Although both § 406(a) and § 406(b) allow for an award of attorney’s fees of up to 25% of a claimant’s past-due benefits, and for certification of payment of those fees directly to the attorney, the Commissioner withholds only one 25% pool of past-due benefits from which to pay both agency fees and court fees. See 42 U.S.C. § 406(a)(4). 5

1. Attorney’s Fees Under EAJA

In addition to the availability of attorney’s fees under 42 U.S.C. § 406, a prevailing claimant for Title II and XVI benefits may seek an award of attorney’s fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), in any case in which the Commissioner’s position in the litigation was not “substantially justified.” 28 U.S.C. § 2412(d)(1)(A). Once a claimant has established her prevailing party status, the burden shifts to the Government to prove that its position in the litigation was substantially justified. Id.; Scarborough v. Principi, 541 U.S. 401, 403 (2004). Unlike § 406 fees, which are paid by the claimant, EAJA fees are paid by the Government.

EAJA fees are available to a prevailing party for an attorney’s successful representation in court as well as before the agency, but EAJA fees for representation at the administrative level are limited to cases in which the agency representation results from a remand pursuant to sentence six of 42 U.S.C. § 405(g). Under sentence six, the court retains jurisdiction pending the Commissioner’s determination of claimant’s entitlement to benefits.4 See Sullivan v. Hudson, 490 U.S. 877, 892 (1989); see also Shalala v. Schaefer, 509 U.S. 292, 297-301 & 297 n.2 (1993).

4. In cases reviewing final agency decisions on Social Security benefits, the exclusive methods by which district courts may remand to the SSA are set forth in sentence four and sentence six of §405(g). Under sentence four, a district court either affirms, modifies, or reverses the SSA’s decision; under sentence six, the district court remands the case to the agency either with the Commissioner’s consent or in light of additional evidence without any substantive ruling as to the correctness of the Secretary’s decision, but only if the claimant shows good cause for failing to present the evidence earlier. See Melkonyan v. Sullivan, 501 U.S. 89, 98-99 (1991). 6

If an attorney is awarded both § 406 fees and EAJA fees for the same work, the attorney is required to refund the smaller fee to the client. See Act of Aug. 5, 1985, Pub. L. No. 99–80, § 3, 99 Stat. 186; Gisbrecht, 535 U.S. at 796. This savings provision “was intended to prevent attorneys from receiving double recovery under both the EAJA and § 406(b).” Jackson v. Comm’r of Soc. Sec., 601 F.3d 1268, 1272 (11th Cir. 2010). To the extent an EAJA award offsets an award under § 406, the offset effectively increases the amount of past-due benefits the claimant will receive, up to 100% of the past-due benefits awarded. Gisbrecht, 535 U.S. at 796.

B. Factual Background

In 2008, Claimant Katrina F. Wood filed an application for disability benefits with the SSA under Title II, which the agency denied. See Administrative Record (A.R.) 10- 21. After appointing Petitioner Richard Culbertson to act as her representative, A.R. 9, Ms. Wood appealed to the Appeals Council, A.R. 8, but the Appeals Council denied review, A.R. 4A-6.

In 2012, Ms. Wood retained Petitioner to file an appeal in the district court, and agreed to pay him a contingency fee of “25 percent of the total of the past due benefits to which [she] is entitled” in the event the court rendered judgment reversing or remanding and past-due benefits were awarded. J.A. 8-10. On appeal to the district court, the magistrate judge to whom the case was referred reversed the agency decision and entered judgment remanding the matter for further proceedings pursuant to sentence four of § 405(g).5 J.A. 11; Pet. App. 4a. The

5. The parties consented to adjudication by a magistrate judge. See Pet. App. 3a, 4a n.2. 7 magistrate judge also granted Ms. Wood’s unopposed motion for $4,107.27 in EAJA fees under § 2412(d) for Petitioner’s representation in district court. J.A. 12-15.

On remand to the agency, Ms. Wood was awarded a total of $34,383 in past-due disability benefits ($30,871 for Ms. Wood plus $3,512 6 for her child as auxiliary beneficiary). J.A. 19; Pet. App. 4a. The agency withheld a total of 25% of Ms. Wood’s past-due benefits ($8,595.75) to cover any payment of attorneys fees. J.A. 19, 30; Pet. App. 4a. Petitioner’s request that he be authorized attorney’s fees for his representation of Ms. Wood before the agency on remand was granted in part, and he was awarded an agency fee of $2,865. J.A. 19, 25-27; Pet. App. 4a-5a; Supp. C.A. App. 13.

Petitioner then moved the district court for additional attorney’s fees under § 406(b) in the amount of $4,488.48 for his representation of Ms. Wood before the court. Supp. C.A. App. 4-10. The (b) fee that Petitioner requested equaled 25% of Ms. Wood’s past-due benefits ($8,595.75) minus the EAJA award he had already been paid ($4,107.27). Id. at 5. Petitioner did not subtract from his request the $2,865 (a) fee he had been paid by the SSA for his agency work. Pet. App. 19a, 22a. Under Petitioner’s calculation, Ms. Wood would receive a refund of attorney’s fees in the amount of only $1,242.27 of her past-due benefits. Supp. C.A. App. 5.

The magistrate judge granted, in part, Petitioner’s § 406(b) fee request. Pet. App. 18a-29a. Observing that

6. Although the lower courts described the past-due auxiliary benefits as $4,340, Pet. App. 4a, 27a, the Commissioner explained that the correct amount is $3,512, D. Ct. Doc. 27 at 2. 8 binding precedent prevented a combined (a) and (b) fee in excess of 25% of a claimant’s past-due benefits, the magistrate judge concluded that Petitioner’s method of calculating his (b) fee request erroneously failed to deduct the $2,865 (a) fee he already had received. Id. at 20a, 22a-25. According to the magistrate judge, the proper method for calculating the (b) fee award was to subtract the $4,107.27 EAJA award that Petitioner had already received from the $8,595.75 in past-due benefits withheld by the Commissioner, and then subtract from that amount the $2,865 agency fee that Petitioner previously had been awarded under § 406(a), which would result in a net court fee award to Petitioner of $1,623.48. Id. at 26a. Under the magistrate judge’s calculation, Ms. Wood would receive a refund of $4,107.27 of her past-due benefits – which reflects a reimbursement to Ms. Wood of the full EAJA award.

Requested Awarded Past-Due $ 34,383 $ 34,383 Benefits Awarded 25% of Past-Due $ 8,595 $ 8,595 Benefits § 406(a) fees $2,865 $2,865 § 406(b) fees $ 4,488 $ 1,623 EAJA Fees $ 4,107 $ 4,107 Total Fees Paid $11,460 $ 8,595 to Petitioner: (33% of past-due (25% of past-due benefits) benefits) Past-Due $ 1,242 $ 4,107 Benefits Refunded to Ms. Woods 9

Petitioner appealed the district court’s attorney’s fee award, and a panel of the Eleventh Circuit affirmed. Pet. App. 1a-17a. The panel explained that Dawson v. Finch, 425 F.2d 1192 (5th Cir. 1970), is binding precedent in the Eleventh Circuit that has interpreted § 406 as placing a 25% cap on combined § 406(a) and § 406(b) attorney’s fees. Pet. App. 11a-12a & n.4, 14a. As the panel observed:

The Dawson panel ruled that the language and legislative history of § 406(b) “clearly indicate[d]” that the 25% cap on fees paid out of past-due benefits was designed “to insure that the old age benefits for retirees and disability benefits for the disabled ... are not diluted by a deduction of an attorney’s fee of one-third or one-half of the benefits received.”

Id. at 11a (quoting Dawson, 425 F.2d at 1195) (omissions in original). According to the panel, in ruling on Petitioner’s (b) fee request, the district court properly “looked to Dawson’s holding that the combined § 406(a) and (b) fees cannot be more than 25% of past-due benefits, and reduced [Petitioner’s] fee request by the § 406(a) award he had received so as to limit his fee award to 25% of Ms. Wood’s past-due benefits.” Id. at 12a.

SUMMARY OF THE ARGUMENT

Congress intended when it enacted 42 U.S.C. § 406 and its amendments that attorney’s fees for representation before the Social Security Administration under subsection (a) and attorney’s fees for representation before the court under subsection (b) be limited in the aggregate to 25% of the past-due benefits awarded to the 10 claimant. Although § 406(a) and § 406(b) provide separate avenues for an award of attorney’s fees for representation of a Social Security claimant, these fees are certified for payment out of a single source: the 25% of past-due benefits withheld by the Commissioner. See 42 U.S.C. § 406(a)(1), (a)(2), (a)(4), (b)(1)(A). When the statute is read as a whole, as it must be, it is evident that Congress placed a cumulative 25% cap on attorney’s fees payable for successful representation of a Social Security claimant before both the agency and the court. This interpretation is reinforced by the Social Security rules and regulations that have been incorporated into the text of § 406, as well as from the series of amendments that laid out the framework allowing attorneys to collect fees for agency and court representation, all of which were designed by Congress to rein in the amount of fees Social Security attorneys could collect from their clients.

To the extent § 406 is ambiguous, the existence of an aggregate 25% cap is confirmed by the statute’s legislative history. The legislative history reveals that Congress was deeply concerned that benefits awarded to Social Security claimants not be eroded by contingent fees sought by attorneys that could reach ⅓ to ½ of the claimant’s accrued benefits, an amount Congress perceived to be “inordinately large.” See Hearings on H.R. 6675 Before the Senate Committee on Finance, 89th Congress, 1st Sess., Part One, p. 513 (1965); Court-Appointed Amicus App. 1a-2a. By implementing a structure under § 406 for attorneys to collect fees, Congress did not intend to create a pathway for agency attorneys and court attorneys each to be awarded up to 25% of a disabled claimant’s past-due benefits, fees that together could reach 50% – half – of the total past-due benefits awarded to the claimant. A 25%-aggregate rule furthers Congress’s dual goals of 11 preventing benefits awarded to Social Security claimants from being consumed by unreasonably high attorney’s fees, while at the same time providing an effective and efficient process for attorneys to collect reasonable fees for their services. Id.

The Social Security Act is a remedial statute that should be broadly construed and liberally applied in favor of the beneficiaries.See, e.g., Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975). Broadly construing and liberally applying the relevant provisions of § 406(a) and § 406(b) in favor of the disability claimant, both agency and court fees are capped at an aggregate 25% of past-due benefits.

ARGUMENT

The question presented by the Petitioner is whether attorney’s fees subject to 42 U.S.C. § 406(b)’s 25% cap on past-due benefits include only fees for representation in court or also fees for representation before the SSA. Petitioner thus frames the issue as whether the court fee provision of § 406(b) controls the agency fee provision of § 406(a). But that is not how the issue was framed either by the Fifth Circuit in Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir. 1970), or by the courts below in applying Dawson. Instead, the holding in Dawson, applied below, was that “42 U.S.C.A. 406 precludes the aggregate allowance of 12 attorney’s fees greater than twenty-five percent of the past due benefits received by the claimant.” 425 F.2d at 1192; Pet. App. 12a (observing that district court below “looked to Dawson’s holding that the combined § 406(a) and (b) fees cannot be more than 25% of past-due benefits”). The correct question, subsumed within Petitioner’s question, is whether combined agency fees under § 406(a) and court fees under § 406(b) may exceed 25% of a claimant’s past- due benefits.

Petitioner and Respondent argue that the language of the statute is plain that there can be multiple awards of up to 25% of a claimant’s past-due benefits paid to attorneys for successful representation, and that agency attorneys and court attorneys each can be awarded up to 25% of a disabled claimant’s past-due benefits, fees that together could reach 50% – half – of the total past-due benefits awarded to the claimant. Petitioner and Respondent far overstate the clarity of this statute.

Since the statute itself does not specifically state whether combined agency and court fees may exceed 25% of a claimant’s past-due benefits, the answer lies in the text of § 406; the rules and regulations promulgated pursuant to that statute; the order in which amendments to the Social Security Act that led to the 25% cap on attorney’s fees were enacted; and the clear expression of Congress’s intent behind these amendments as set forth in both the text of the amendments and their accompanying legislative history. The Fourth, Fifth and Eleventh Circuits7 are correct that the 25% pool of past-due benefits

7. See Morris v. Soc. Sec. Admin., 689 F.2d 495 (4th Cir. 1982); Dawson v. Finch, 425 F.2d 1192 (5th Cir. 1970). See also Bonner v. 13 withheld by the Commissioner for payment of attorney’s fees must cover agency and court proceedings in order to effectuate Congress’ goal of protecting disabled claimants from excessive attorney’s fees awards.

A. The Text of § 406(a) & (b), Read Together, Supports a 25%-Aggregate Rule.

To understand the interplay between agency fees awarded under § 406(a) and court fees awarded under § 406(b), one must begin by reading the relevant text of both provisions together. A statute must be read in its entirety; it is not intended to be read piecemeal because the meaning of statutory language depends on context. See King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (following “the cardinal rule that a statute is to be read as a whole . . . since the meaning of statutory language, plain or not, depends on context”) (citing Massachusetts v. Morash, 490 U.S. 107 (1989) and Shell Oil Co. v. Iowa Dept. of Revenue, 488 U.S. 19, 26, 109 (1988)). “[I]n expounding a statute, we [are] not ... guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51 (1987).

Specific to this case, “the Social Security Act is remedial or beneficent in purpose, and, therefore, to be ‘broadly construed and liberally applied’” in favor of beneficiaries. Cutler, supra, 516 F.2d at 1285 (quoting Gold v. Secretary of Health, Education and Welfare, 463

Prichard, 661 F.2d, 1206, 1209 (11th Cir. 1981) (en banc) (holding that all decisions of the former Fifth Circuit announced prior to October 1, 1981, are binding precedent in the Eleventh Circuit). 14

F.2d 38, 41 (2 Cir. 1972)); McCuin v. Sec’y of Health & Human Servs., 817 F.2d 161, 174 (1st Cir. 1987) (“[T]he Social Security Act ... is a remedial statute, to be broadly construed and liberally applied in favor of beneficiaries.”); Eisenhauer v. Mathews, 535 F.2d 681, 686 (2d Cir. 1976) (“[T]the Social Security Act is to be accorded a liberal application in consonance with its remedial and humanitarian aims.”). Cf. City Bank Farmers Tr. Co. v. Irving Tr. Co., 299 U.S. 433, 444 (1937) (recognizing that remedial purpose of statute “demand[s] a liberal construction in favor of the claimants for whom relief was intended”). “In practical terms, when a Social Security Act provision can be reasonably interpreted in favor of one seeking benefits, it should be so construed.”Cunningham v. Harris, 658 F.2d 239, 243 (4th Cir. 1981).

The original version of the Social Security Act enacted in 1935 made no provision for attorney’s fees. 49 Stat. 620 (1935). Within four years, Congress amended the Act to permit the Social Security Board to prescribe by regulation the maximum fees attorneys could charge for representation of claimants before the agency. 8 Social Security Act Amendments of 1939, 53 Stat. 1372, codified at 42 U.S.C § 406. It is telling that Congress’s primary concern, as evidenced by its requirement that such fees be capped, was not to ensure that attorneys were being

8. The 1939 amendment provided: The Board may, by rule and regulation, prescribe the maximum fees which may be charged for services performed in connection with any claim before the Board under this title, and any agreement in violation of such rules and regulations shall be void. 53 Stat. 1372. 15 paid for their work before the agency; instead, it was to insure that they could not overbill their clients.

This same concern for protecting claimants from over-billing by attorneys was echoed 30 years later when Congress passed the Social Security Amendments of 1965, codified at § 406(b), for the first time regulating attorney’s fees for representation before the court. See Pub. L. No. 89-97, Title III, § 332, 79 Stat. 403. 9 This amendment not only limited the availability of attorney’s fees to only those cases in which the attorney’s representation was successful, it also stipulated that a court fee be “reasonable” and imposed a maximum on the amount of an attorney’s fee that could be collected, capping it at 25% of the claimant’s past-due benefits. See 79 Stat. 403, as amended, 42 U.S.C. § 406(b); Gisbrecht v. Barnhart, 535 U.S. 789, 793 (2002). The passage of § 406(b) was yet another expression of Congress’s intent that attorneys representing Social Security claimants be prevented from taking advantage of their clients by

9. The 1965 Amendment provided: Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Secretary may, notwithstanding the provisions of section 405(i) of this title, certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits. Social Security Amendments of 1965, Pub. L. No. 89–97, § 332, 79 Stat. 403. Subsection (b)(1). 16 charging them excessive fees. Certainly nothing in either piece of legislation suggests that Congress envisioned that agency and court attorneys could collect up to 50% of a claimant’s past-due benefits as a reasonable amount for attorney’s fees.

To address the dual concern that Social Security claimants receive effective legal representation, the 1965 Amendment sought to assure attorneys that they would receive their fees by including a provision allowing the Secretary of Health and Human Services (HHS) to certify court fees for payment out of the claimant’s past- due benefits.10 Two years later, in the Social Security Amendments of 1967, Congress added two sentences to § 406(a) that gave the Secretary similar authority to certify agency fees for payment out of past-due benefits, this time requiring that the Secretary certify the fees.11 In addition, Congress capped the amount of agency fees

10. The court fee certification provision states: [T]he Secretary may . . . certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits. H.R. 6675 (emphasis added).

11. The two sentences added by Congress in 1967 were: If as a result of such determination, such claimant is entitled to past-due benefits under this subchapter, the Secretary shall ... certify for payment (out of such past-due benefits) to such attorney an amount equal to whichever of the following is the smaller: (A) 25 per centum of the total amount of the past-due benefits, (B) the amount of the attorney’s fee so fixed, or (C) the amount agreed upon between the claimant and such attorney as the fee for such attorney’s services. 17 that could be certified at, once again, 25% of past-due benefits. See note 9 supra.

It is telling that, although § 406(a) and § 406(b) both permit the Commissioner to certify attorney’s fees for payment out of the claimant’s past-due benefits, the Commissioner withholds only one 25%-pool from which payment of attorney’s fees can be certified.12 If a single attorney could claim, and have certified, the entire 25% of withheld benefits, then the agency attorney and the court attorney would be racing against each other to be the first to have his fee certified for payment. It is difficult to believe that Congress intended to codify in a benefits statute a fee provision that has the practical effect of creating a race to the agency steps.

It also is significant that nearly 25 years later, in the Omnibus Budget Reconciliation Act of 1990, Congress amended § 406(a) to add subsection (a)(2) authorizing the “fee agreement” process.13 This subsection, which directs the Commissioner to automatically approve certain agency fee agreements if the attorney’s representation was successful, likewise includes a 25%-of-past-due-benefits cap. Once again, Congress is limiting fees in accordance with its stated goal of protecting claimants from

Social Security Amendments of 1967, Pub. L. No. 90–248, Title I, § 173, 81 Stat. 877 (1968) (emphasis added).

12. See Hearings, Appeals, and Litigation Law Manual (HALLEX) I–1–2–9(B), I–1–2–71(A) n. 1; Program Operations Manual System (POMS) GN 03920.035(A) note, GN 03920.060(B) (3) note, available at http://www.ssa.gov.

13. See Pub. L. No. 101–508, § 5106(a), 104 Stat. 1388, 1388–266 (1990). 18

inordinately high attorney’s fees, and, in accordance with its past legislation, defining excessive fees at anything over 25%.

What is of note is that, at the time this provision was enacted in 1990, the federal circuit courts of appeals were in unanimous agreement that there was an aggregate 25% cap on attorney’s fees under § 406.14 Congress presumptively was aware of this uniform application of the 25%-aggregate rule by the courts. See, e.g., Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1762 (2018), citing Lorillard v. Pons, 434 U. S. 575, 580 (1978) (“Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change”). Consequently, in 1990, when Congress provided this additional avenue for a Social Security attorney to obtain a fee of up to 25% of past-due benefits, there was little reason for concern that an agency attorney and a court attorney each would seek separate fees of 25% of a claimant’s past-due benefits. Instead, Congress was assured by the courts that an agency attorney and a court attorney would be required to share the 25% pool of accrued benefits.

Read in context and with a view toward implementing the purpose behind the amendments, Congress intended

14. See Davis v. Bowen, 894 F.2d 271, 273 n. 3 (8th Cir. 1989) (“We note that those circuits which have addressed the issue agree that the aggregate of fees awarded at the judicial and administrative levels may not exceed twenty-five percent of past due benefits.”); Guido v. Schweiker, 775 F.2d 107, 108 (3d Cir. 1985); Morris, supra, 689 F.2d at 497–98; Webb v. Richardson, 472 F.2d 529, 536 (6th Cir. 1972); Dawson, supra, 425 F.2d at 1195. 19 that attorney’s fees be limited under § 406(a) and (b) to a total of 25% in the aggregate.

B. The Legislative History of § 406 Supports a 25%-Aggregate Rule.

While Congress’s concern about overbilling is merely implicit in the text of the 1965 Amendment, it is explicit in the legislative history of the amendment. “[E]ven when, as here, a statute’s meaning can clearly be discerned from its text, consulting reliable legislative history can still be useful, as it enables us to corroborate and fortify our understanding of the text.” Digital Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 783 (2018) (Sotomayor, J., concurring). To the extent that Congress’s silence on the issue presented in this case creates an ambiguity, one must resort to the legislative history of the statute. See Barnhart v. Walton, 535 U.S. 212, 218 (2002) (“[S]ilence, after all, normally creates ambiguity. It does not resolve it.”).

The 1965 A mendment was proposed by the Department of Health, Education and Welfare (HEW)15 to address a dual concern of protecting Social Security claimants from inordinately large attorney’s fees, while at the same time insuring that they receive effective legal representation. See Hearings on H.R. 6675 Before the Senate Committee on Finance, 89th Congress, 1st Sess., Part One, p. 513 (1965); Court-Appointed Amicus App. 1a-2a. According to HEW, Social Security attorneys occasionally charged “inordinately large” contingency fees for representing

15. In 1979, HEW was redesignated the Department of Health and Human Services (“HHS”). See 20 U.S.C. § 3508 (1982). 20 claimants in court, frequently reaching up ⅓ to ½ of a claimant’s past-due benefits. When the bill came before the Senate Committee on Finance, the Committee adopted the concerns expressed by HEW in its report:

It has come to the attention of the committee that attorneys have upon occasion charged what appear to be inordinately large fees for representing claimants in Federal district court actions arising under the social security program. Usually, these large fees result from a contingent-fee arrangement under which the attorney is entitled to a percentage (frequently one-third to one-half) of the accrued benefits.

S. Rep. No. 404, Pt. I, 89th Cong., 1st Sess., reprinted in 1965 U.S.C.C.A.N 1943, 2062 (emphasis added). See Gisbrecht, supra, 535 U.S. at 805 (“Congress thus sought to protect claimants against “inordinately large fees” and also to ensure that attorneys representing successful claimants would not risk ‘nonpayment of [appropriate] fees.’” (quoting SSA Report 66).16 Congress’s desire to

16. As the Fifth Circuit in Dawson observed, the legislative history and text of § 406(b) clearly indicates that Congress sought, by amending the statute, to accomplish two goals. First, to encourage effective legal representation of claimants by insuring lawyers that they will receive reasonable fees directly through certification by the Secretary. And, second, to insure that the old age benefits for retirees and disability benefits for the disabled, which are usually the claimant’s sole means of support, are not diluted by a deduction of an attorney’s fee of one-third or one-half of the benefits received. 21 protect a Social Security claimant’s past-due benefits from being cut by a third, or even in half, by attorney’s fees could not have been more clear. As one scholarly article has discerned from the legislative history of the 1965 Amendment,

Underlying Congress’s concern with potential fee-gouging was Congress’s implicit recognition of Social Security claimants as a unique, vulnerable class of litigants, who confront special difficulties in pursuing their claims and are in need of judicial oversight. Most claimants desperately need the past-due benefits they have gone without, and some--because of mental impairments, limited education, or the financial stress occasioned by the initial denial or cessation of benefits--may enter into fee agreements with their attorneys without a complete understanding of the nature of the arrangements or of their ability to negotiate the terms of such contracts.

Alison M. MacDonald & Victor, Williams, In Whose Interests? Evaluating Attorneys’ Fee Awards and Contingent-Fee Awards in Social Security Disability Benefits Cases, 47 Admin. L. Rev. 115,145 (1995) (footnotes omitted).

It is difficult, if not impossible, to reconcile that after enacting a 25% cap on court fees in the 1965 Amendment designed to prevent “inordinately large” attorney’s fees of up to 50% of past-due benefits, Congress would then turn around two years later and provide a mechanism to

425 F.2d at 1195. 22 permit attorneys to do just that, i.e., to charge combined (a) and (b) fees of up to 50% of the past-due benefits that had been accruing while the disabled claimant was unable to work and earn a living.17 On the contrary, by far the most reasonable interpretation of these amendments was that Congress imposed a 25% cap on (a) and (b) fees so that attorney’s fees would be limited to 25% in the aggregate.

It was precisely this conundrum that drove the Fourth Circuit to adopt the 25%-aggregate rule in See Morris v. Soc. Sec. Admin., 689 F.2d 495 (4th Cir. 1982). As Morris observed, there is “no reason to believe that the same desire to eliminate ‘inordinately large fees,’ which were ‘frequently one-third to one-half’ of a claimant’s past- due benefits, that prompted Congress to adopt the 1965 amendment did not also inspire the passage of the parallel 1968 amendment.” Id. at 497–98. Morris refused to adopt a construction of § 406 that “would allow an attorney to recover fifty percent of his client’s accrued benefits in direct contravention of congressional attempts to foreclose contingent fee arrangements of one-third to one-half.” Id. at 498.

Liberally construing the statute with an eye toward implementing Congress’s goal of protecting a claimant’s Social Security benefits from being eroded by excessive attorney’s fees, the statute should be read to limit fees under § 406(a) and (b) to a total of 25% in the aggregate.

17. See Tamara B. v. Berryhill, ___ F. Supp. ___, 2018 WL 3085200, at *3 (D. Vt. 2018) (“It would be strange indeed to believe that Congress would in 1965 denounce 50% contingency fees as excessive and enact a statute to stop them, and then, in 1968, pass a law with the effect of permitting 50% contingency fees.”). 23

C. The Arguments in Favor of a 25%-Aggregate Rule Are Compelling.

i. Because (a) and (b) fees are paid from a single pool of past-due benefits, permitting such fees to exceed 25% in the aggregate creates a race to the agency.

Inarguably, § 406 does not expressly state whether an agency attorney and a court attorney may be paid combined fees of over 25% of the past-due benefits that a claimant is awarded. To the contrary, the statute is silent on this point. Yet one thing is clear: there is only one pool of past-due benefits from which agency fees and court fees may be paid by the Commissioner, and it is this same pool that is referenced in both § 406(a) and § 406(b). See 42 U.S.C. § 406(a)(4); 20 C.F.R. § 404.1720(b)(4), § 404.1730(a) & (b). The Commissioner withholds only one pool of 25% of past-due benefits from which to certify for payment all of the attorney’s fees awarded under both § 406(a) for agency representation and § 406(b) for court representation. See HALLEX I-1-2-71(A) n. 1, available at https://www. ssa.gov/OP_Home/hallex/I-01/I-1-2-71.html (“SSA only withholds a maximum of 25 percent of past-due benefits for direct payment of fees, whether authorized by SSA, a court, or both.”). See also HALLEX I-1-2-9(B), available at https://www.ssa.gov/OP_Home/hallex/I-01/I-1-2-9. html. There is no additional pool of benefits from which attorney’s fees may be paid.

Because the Commissioner withholds only one pool of 25% of past-due benefits from which to pay attorney’s fees for both agency and court representation, for an attorney to collect a fee that exceeds the 25% pool of withheld 24 disability benefits the attorney either would need to file a lawsuit against his disabled client, or seek to have his fees deducted from his client’s future disability benefits under the agency’s regulations governing overpayments.18 The prospect of attorneys suing their aged, blind or disabled clients to collect fees out of their present or future benefits is directly at odds with the stated purpose of the Social Security Act to ensure beneficiaries a protected source of income. The chance this could occur suggests that Congress intended that agency attorneys and court attorneys share in the pool of past-due benefits withheld under §406(a) and § 406(b) for payment of attorney’s fees.

ii. Rejecting the 25%-aggregate rule would lead to absurd results.

A reading of § 406 that would permit multiple, “stackable” attorney’s fees awards of up to 25% of past- due benefits would lead to absurd results. Consider the text of § 406(b)(1) governing the award of court fees, which provides in relevant part:

Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such

18. In the Sixth Circuit, which has rejected the 25%-aggregate approach, it is assumed that attorney’s fees exceeding 25% of past- due benefits are recoverable from the claimant “either directly or by utilizing the SSA’s administrative overpayment mechanism, whereby fees would be taken from [the claimant’s future] monthly disability payments.” Hayes v. Comm’r of Soc. Sec., 895 F.3d 449, 452 (6th Cir. 2018). 25

representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security may . . . certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits.

42 U.S.C. § 406(b)(1)(A) (emphasis added). The word “court” is not defined; it could refer to the district court, the court of appeals, or both. It appears to be universally accepted, however, that it refers to both the district court and the court of appeals: an attorney can obtain a favorable judgment from the district court19, followed by a favorable judgment by the court of appeals. Court fees then may be sought from the district court, or the court of appeals, or both. See, e.g., Lavender v. Califano, 683 F.2d 133, 135 (6th Cir. 1892) (recognizing that § 406(b) fees may be awarded “where a claimant has been successful either in the district court, or upon appeal to this court”); Brown v. Gardner, 387 F.2d 345, 346 (4th Cir. 1967) (affirming § 406(b) fee for services rendered in the district court and on appeal); Bailey v. Heckler, 621 F. Supp. 521, 523 (W.D. Pa. 1985) (recognizing that a district court can approve attorney’s fees for services performed in the trial or appellate courts).

Under the parties’ non-aggregate view of § 406, because the award of district court attorney’s fees and

19. On appeal to the district court of an SSA decision, a judgment may be rendered either by a district judge or by a magistrate judge by reference pursuant to 28 U.S.C. § 636. 26 appellate court attorney’s fees are “distinct,”20 each court attorney would be eligible to receive up to 25% of the claimant’s past-due benefits. In other words, the attorney who represented the claimant before the district court is entitled to fees of up to 25% of the claimant’s past- due benefits for obtaining the favorable district court judgment, and the attorney who represented the claimant before the court of appeals also is entitled to fees of up to 25% of the claimant’s past-due benefits for obtaining a favorable court of appeals judgment. Consequently, under § 406(b)(1)(A), up to 50% of a claimant’s past-due benefits could be awarded to court attorneys for successful representation before the district court and the court of appeals. Adding to that the up-to-25% “distinct” award of attorney’s fees recoverable by the agency attorney, both the SSA and the court – acting independently in awarding fees – together would be authorized to award fees of up to 75% of a claimant’s past-due disability benefits. No doubt this absurd result is not an outcome intended by Congress – nor should it be sanctioned by this Court. See United States v. Am. Trucking Ass’ns, 310 U.S. 534, 543 (1940) (recognizing that when the plain text of a statute leads to absurd results, or to unreasonable results at variance with the policy of the legislation as a whole, this Court follows the law’s purpose rather than its literal words).

iii. Logic supports the 25%-aggregate rule.

It also makes logical sense to read all of the relevant provisions of the statute as requiring that agency and court attorneys share the 25% pool of past-due benefits. If a claimant is successful before the SSA and need not

20. Brief of Petitioner 14, 19, 23; Brief of Respondent 14. 27 either pursue or defend an appeal, agency fees can be awarded in an amount of up to 25% of the entire pool of past-due benefits that has accrued while the case was pending before the agency. On the other hand, when court proceedings are necessary to obtain a favorable outcome, and then court fees are sought in addition to agency fees, the claimant’s past-due benefits continue to accrue while the court proceedings are pending – thereby increasing the past-due-benefits pool. In formulating the Social Security Amendments of 1965, “Congress was mindful . . . that the longer the litigation persisted, the greater the buildup of past-due benefits and, correspondingly, of legal fees awardable from those benefits if the claimant prevailed.” Gisbrecht, 535 U.S. at 804. This passive accrual of benefits is not the result of the performance of either the agency attorney or the court attorney; it is simply a byproduct of the passage of time. Because agency fees are payable to an agency attorney for successful representation before the agency, and court fees are payable to a court attorney for successful representation before the court, it makes sense to divvy up the agency fees and court fees from the 25% pool of accrued benefit in a manner that recognizes that a portion of the accrued benefits is attributable to time the case was pending before the agency, while the other portion is attributable to time the case was pending before the court. The 25%-aggregate rule does just that.

iv. Respondent for decades agreed with Dawson’s 25%-aggregate rule.

Respondent acknowledges that it interpreted § 406 to limit agency fees and court fees to a combined 25% of a claimant’s past-due benefits when it opposed this Court granting certiorari in Dawson, arguing in its brief in 28 opposition that Dawson had been correctly decided. Brief of Respondent 20 n. 8. The Secretary of HHS continued to side with Dawson and the 25%-aggregate rule over 35 years later, when the circuit courts first began to question the aggregate 25% cap. For example, in Clark v. Astrue, 529 F.3d 1211 (9th Cir. 2008), the Commissioner advised the Ninth Circuit that capping § 406(a) fees and § 406(b) fees at a combined 25% of past-due benefits “honors the congressional intent to limit the erosion of past-due benefits by attorney fees.” Brief for Appellee at 15, Clark, supra, (No. 07-35056) (filed June 25, 2007). The Commissioner concluded:

The statute is ambiguous, but repeatedly mentions a 25% cap on withheld past-due benefits for attorney fees. Given this language and congressional displeasure with attorney fees above 25% of a claimant’s past-due benefits, this Court should affirm the district court’s holding that combined attorney fees under §§ 406(a) and 406(b) must not exceed this amount.

Id. at 23. Likewise, the Commissioner’s brief in Wrenn ex rel. Wrenn v. Astrue, 525 F.3d 931 (10th Cir. 2008), described the inequity that would result if the Tenth Circuit were to permit both an agency attorney and a court attorney to collect up to 25% of a disability claimant’s past-due benefits:

[T]he Commissioner believes that it is in the claimants’s interest that this court does not establish a rule where there is a potential for 50% of a claimant’s past due benefits to be used 29

for attorney fees. Social Security “benefits are provided for the support and maintenance of claimants and their dependents, and not for the enrichment of members of the bar.” Rodriquez v. Bowen, 865 F.2d 739, 745 (6th Cir. 1989).

(Brief for Appellee at 13, Wrenn, supra (No. 06-7088) (filed Nov. 3, 2006).

A lthough no change in the law or relevant circumstances appears to have prompted it, the Commissioner has now reversed her position and is siding in this case with Petitioner against the 25%-aggregate rule. By doing so, the Commissioner has placed herself in a curious position. As this Court has recognized, in Social Security fee disputes, the Commissioner serves in the role as a sort of trustee, charged with representing the interests of the claimant whose benefits pay for the attorney’s fees. See Gisbrecht 535 U.S. at 798 n. 6 (observing that the Commissioner “plays a part in the fee determination resembling that of a trustee for the claimants”) (citing Lewis v. Sec’y of Health & Human Servs., 707 F.2d 246, 248 (6th Cir. 1983) (“In view of the humanitarian policy of the Social Security program to benefit the disabled, we agree that the Secretary retains an interest in the fair distribution of monies withheld for attorney’s fees.”) (internal quotation marks and citation omitted). The role of a trustee includes a duty to preserve the assets of the beneficiary. See Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc., 472 U.S. 559, 572 (1985) (“One of the fundamental common- law duties of a trustee is to preserve and maintain trust assets . . ..”); Restatement (Second) of Trusts § 176 (1957) (“The trustee is under a duty to the beneficiary to use 30 reasonable care and skill to preserve the trust property”). By withdrawing her support for the 25%-aggregate rule, the Commissioner appears to have abandoned her role as trustee for the claimant in this case as her new position has the potential of reducing the amount of past-due benefits the claimant may retain – a result that would neither be in the claimant’s best interests nor maximize the preservation of the claimant’s assets.

The attorney for the claimant is in an equally awkward position. An attorney’s argument in favor of overturning a limitation on fees that may be awarded from a client’s past-due benefits at some point collides with the attorney’s ethical duty to advance the interests of his client. Nix v. Whiteside, 475 U.S. 157, 168 (1986) (“[A]n attorney’s ethical duty to advance the interests of his client is limited by an equally solemn duty to comply with the law and standards of professional conduct . . ..”). Opposing a 25% aggregate rule seemingly creates an irreconcilable conflict between an attorney’s personal financial interest and his ethical obligation of zealous advocacy on behalf of the client.

Yet in Social Security fee disputes, claimants’ attorneys have been characterized as the “real parties in interest.” Gisbrecht, 535 U.S. at 798, n. 6; Astrue v. Ratliff, 560 U.S. 586, 600 (2010). It would seem that the most interested party, i.e., the party with the most at stake, would be the attorney’s client. While attorneys no doubt have an interest in the amount of fees they are able to secure for their representation, a Social Security attorney’s interest in maximizing his fees surely is not greater than his disabled client’s interest in preserving her past-due benefits. After all, while it is doubtful that any one case is a lawyer’s sole source of income, it is often 31 likely that a disability claimant’s past-due benefits are the claimant’s single source of income for the time-period during which the past-due benefits were accumulating. 21

The upshot of this is that at no point in the process of resolving the question of what the attorney’s fees should be in this case have Ms. Wood’s interests been represented in the courts. Indeed, in all similar fee disputes, it is the attorney and the Commissioner who appear in court; it is never the claimant. This makes application of the rule calling for a broad and liberal construction of § 406 in favor of beneficiaries of special importance in this and like cases. See, e.g., Cutler, supra, 516 F.2d at 1285. Given the favored construction of the amendments to § 406, the order in which these amendments were enacted, and the goal of Congress in passing them, § 406 should be read to limit the payment of attorney’s fees out of past-due benefits to 25% in the aggregate.

D. The Arguments Against a 25%-Aggregate Rule Are Unpersuasive.

1. Petitioner expresses concern that, “[s]hould the Eleventh Circuit’s interpretation of § 406(b) be endorsed, fewer attorneys will be willing to represent Social Security claimants” because they “will lack the financial incentive.” (Brief for Petitioner 20, 23). His dire prediction does not appear to be borne out by the data. In the past three years, the filings of Social Security

21. Indeed, the past-due benefits awarded to Ms. Wood appeared to have been her sole source of income, as the administrate law judge noted in his initial denial of benefits that she has not worked since the onset of her disability. A.R. 15. 32 cases in the district courts within the three circuits that have adopted the 25%-aggregate rule has steadily increased: Fourth Circuit (from 1,470 in 2015; to 1,616 in 2016; to 2,067 in 2017); Fifth Circuit (from 758 in 2015; to 795 in 2016; to 861 in 2017) and Eleventh Circuit (from 1,896 in 2015; from 1,966 in 2016; to 2,083 in 2017). See Admin. Office of the U.S. Courts, Statistical Tables for the Federal Judiciary, Table C-3 (2015-17), available at http://www.uscourts.gov/sites/default/files/data_tables/ stfj_c3_1231.2015.pdf;http://www.uscourts.gov/sites/ default/files/data_tables/stfj_c3_1231.2016.pdf; http:// www.uscourts.gov/report-names/statistical-tables tables- federal-judiciary. 22 This trend likely is due to the fact that, even in circuits operating under the 25%-aggregate rule, Social Security attorneys are able to obtain court fees computed at an hourly rate of over $1,000 per hour. See, e.g., Claypool v. Barnhart, 294 F. Supp. 2d 829, 833 (S.D.W. Va. 2003) (approving § 406(b) fee with hourly rate of $1,433.12); Sabourin v. Colvin, 2014 WL 3949506 (N.D.Tex. 2014) (unpublished) (“de facto hourly rate of $1,245.55 per hour” was not an unearned windfall); Melvin v. Colvin, 2013 WL 3340490 *2 (E.D.N.C. 2013) (unpublished) (approving § 406(b) fee with hourly rate of $1,043.70); Vilkas v. Comm’r of Soc. Sec., 2007 WL 1498115 (M.D. Fla. 2007) (unpublished) approving fees

22. Petitioner’s argument also is undercut by his own experience, as he has maintained a Social Security practice for four decades yet “has never required a client to pay more than twenty-five percent of his past-due benefits for attorney fees for work done in Federal Court and at the administrative level.” Supp. C.A. App. 28; see also https://www.richard culbertsonlaw.com/our- attorneys/ (“Since 1975, Mr. Culbertson has handled thousands of Social Security and Supplemental Security Income cases from pre application through the Federal Courts.”). 33 translating to an hourly rate of $1,121.86). While Petitioner suggests that Social Security attorneys earn “modest compensation” from which they will not “get rich,” Brief of Petitioner at 24, the data on which Petitioner relies shows that in 2013, at least one claimant representatives received $38.6 million in fees that year – $35 million of which he attributed to his law firm and the remaining $3.8 million he kept. See Office of the Inspector Gen., Soc. Sec. Admin., No. A-05-15-15017, Informational Report: Agency Payments to Claimant Representatives App. C-1 & n. 2 (2015), available at https://oig.ssa.gov/ sites/ default/files/audit/full/pdf/A-05-15-15017.pdf. This level of income should provide an adequate financial incentive for attorneys to represent Social Security claimants.

Moreover, Petitioner’s argument that a combined 25% cap is a disincentive to representing Social Security claimants is even less persuasive when the availability of EAJA fees is factored into the equation. As this Court has recognized, EAJA awards, which are paid by the Government, “provide an important additional incentive for attorneys to undertake Social Security cases.” Astrue v. Ratliff, supra, 560 U.S. at 602. Whereas § 406 fees are limited to a percentage of back-due benefits awarded, EAJA fees are calculated under the lodestar method by multiplying the attorney’s reasonable hours expended by hourly rate, and are payable regardless of whether back- due benefits are awarded. Id. To the extent an EAJA fee exceeds a § 406 fee awarded for the same work, the attorney may pocket the excess. The data, although scant, at least suggest a good possibility that EAJA fees will be available for successful court representation. In fiscal year 2010, EAJA fee were awarded in approximately 42% of Social Security cases in which the claimant prevailed, see 34

Astrue v. Ratliff, supra, 560 U.S. at 601 n. 2, amounting to $19,743,189.12 in payments, see https://www.ssa.gov/open /data/EAJA.html. By fiscal year 2017, that amount had more than doubled, to $41,952,601.90 in EAJA payments. Id.; see also Shalala v. Schaefer, 509 U.S. 292, 302 (1993) (recognizing that a sentence four remand under § 405(g) generally confers “prevailing party” status for EAJA purposes); Marshall v. Comm’r of Soc. Sec., 444 F.3d 837, 842 (6th Cir. 2006) (a sentence six remand followed by successful administrative proceedings is sufficient to confer prevailing party status). 23 The likelihood of obtaining EAJA fees for successful representation, payable over and above § 406 fees and regardless of whether past-due benefits are awarded, provides an attractive inducement to Social Security attorneys.

2. Petitioner and Respondent both argue that agency fees and court fees cannot be limited to an aggregate 25% of past-due benefits because an agency attorney may obtain an agency fee under § 406(a)(1)’s fee petition process in

23. Although more recent data is not readily available, in 1998 GAO reported to Congress: From its inception in fiscal year 1982 through fiscal year 1994 (the last year central reporting of governmentwide data was required), more than 6,200 applicants were awarded about $34 million under EAJA’s administrative and judicial processes for reimbursement of attorneys’ fees and related expenses. Of the $34 million, applications involving the Social Security Administration (SSA) accounted for at least 83 percent of the claims granted and 48 percent of the amounts awarded. Equal Access to Justice Act: Its Use in Selected Agencies, HEHS- 98-58R, pp. 2-3 (Jan. 14, 1998), available at https://www.gao.gov/ products/HEHS-98-58R. 35 excess of 25% of past-due benefits. (Brief for Petitioner 15; Brief for Respondent 17-19). To the contrary, finer analysis indicates that this blanket statement is overbroad. To be sure, where past-due benefits are not available yet the outcome of the representation was nevertheless successful – such as in termination or overpayment cases – there is no monetary cap on fees. In these cases, there are no past-due benefits to cap. But in cases where past-due benefitsare awarded, an examination of the statute and its implementing regulations reveals that agency fees sought under (a)(1)’s petition process are tethered to a limitation of 25% of past-due benefits.24

This 25% limitation is derived from two sentences (six and seven) of § 406(a)(1), which provide:

The Commissioner of Social Security may, by rule and regulation, prescribe the maximum fees which may be charged for services performed in connection with any claim before the Commissioner of Social Security under this subchapter, and any agreement in violation of such rules and regulations shall be void. Except as provided in paragraph (2)(A), whenever the Commissioner of Social Security, in any claim before the Commissioner for benefits under this subchapter, makes a determination favorable to the claimant, the Commissioner shall, if the claimant was represented by an attorney in

24. It is irrelevant that the regulations permit an award of attorney’s fees “even if no benefits are payable.” (Brief of the United States at pp. 17-19) (quoting 20 C.F.R. § 404.1725(b)(2)). The issue presented in this case does not arise when no past-due benefits are awarded. 36

connection with such claim, fix (in accordance with the regulations prescribed pursuant to the preceding sentence) a reasonable fee to compensate such attorney for the services performed by him in connection with such claim.

42 U.S.C. § 406(a)(1) (emphasis added). As the highlighted phrases explain, the statute delegates to the Commissioner the authority to determine by rules and regulations the maximum § 406(a)(1) fee that may be authorized when an agency attorney petitions to be paid a fee under the fee petition process. Further, the Commissioner is required to fix the maximum fee “in accordance” with the regulations that prescribe the maximum fee, meaning, the § 406(a)(1) fee must be set “in a way that agrees with or follows” the rules and regulations. Merriam-Webster Dictionary, available at https://www.merriam-webster. com/dictionary/in%20accordance%20with.

The Commissioner has done exactly that. The regulations that fix the maximum § 406(a)(1) fee are 20 C.F.R. § 1720 and § 1730. Section 1720(a), which governs agency fees, directs that an attorney “may charge and receive a fee for his or her services as a representative only as provided in paragraph (b) of this section.” 20 C.F.R. § 404.1720(a) (emphasis added). Section 404.1720(b), in turn, limits an agency attorney’s receipt of a § 406(a) (1) fee to the amount authorized by the Commissioner. 25

25. “The representative must file a written request with us before he or she may charge or receive a fee for his or her services.” 20 C.F.R. § 1720(b)(1). “We decide the amount of the fee, if any, a representative may charge or receive.” 20 C.F.R. § 1720(b)(2). 37

Section 404.1720(b)(3) specifically provides that an agency attorney “must not charge or receive any fee unless [the Commissioner has] authorized it,” and, further, that the agency attorney “must not charge or receive any fee that is more than the amount [the Commissioner] authorize[s].” 20 C.F.R. § 404.1720(b)(3). If agency representation includes an award of past-due benefits, 26 the Commissioner “will pay the authorized fee, or a part of the authorized fee, directly to the attorney . . . out of the past-due benefits, subject to the limitations described in [42 C.F.R.] § 404.1730(b)(1).” 20 C.F.R. § 404.1720(b)(4) (emphasis added). The “limitations described in § 404.1730(b)(1)” are that, if the Commissioner renders a favorable decision, the Commissioner “will pay the [agency attorney] out of the past-due benefits, the smaller of the amounts [of 25% of the total past-due benefits] or [the amount of fee the Commissioner sets].”

What all of this means is that the Commissioner has, by regulation, set the maximum fee under § 406(a)(1) when past-due benefits are awarded to the claimant as 25% of those past-due benefits.

Even if these provisions cannot be read to place a 25% cap on agency fees awarded under § 406(a)(1), it is apparent from the legislative history that Congress intended to replace the (a)(1) petition process – an ungainly method for approving fees at the agency level – with the (a)(2) agreement process – a more efficient, “streamlined” procedure. See H.R. Conf. Rep. 101-964,

26. Not every successful agency representation includes an award of past-due benefits, for example, if the favorable decision is in a termination or overpayment case. See supra p. 35. 38

reprinted in 1990 U.S.C.C.A.N. 2374, 2638-39 (“The provision would generally replace the fee petition process with a streamlined process in which SSA would approve any fee agreement jointly submitted in writing and signed by the representative and the claimant if the Secretary’s determination with respect to a claim for past-due benefits was favorable and if the agreed-upon fee did not exceed a limit of 25 percent of the claimant’s past-due benefits up to $4,000.”). Today, the fee agreement process is by far the preferred method used for obtaining agency fees. See, e.g., Thomas E. Bush, Social Security Disability Practice: The Fee Agreement Process for Approval of Attorney Fees, excerpted at http://jameseducationcenter.com/articles/ disability-attorney-fees/#Two_Fee_App (observing that “the fee agreement process, which provides for streamlined approval and payment of attorney fees, works better in the vast majority of cases”).27 A Social Security attorney generally will rely on the petition process when past-due benefits have been awarded only when (1) there is no written fee agreement; (2) the SSA did not approve a fee agreement; or (3) the attorney’s representation terminated before the SSA favorably decided the claim. See Disability Secrets: When Can a Disability Lawyer Use a Fee Petition to Get Paid? available at https://www. disability secrets.com/resources/when-can-a-disability- lawyer-use-a-fee-petition-get-paid.

27. According to the SSA’s Single Payment System (SPS) used to make fee payments to claimant representatives, only 4% of fee payments were coded as having been obtained pursuant to the petition process in fiscal year 2012. See Office of the Inspector Gen., Soc. Sec. Admin., No. A-05-13-13061, Audit Report: Controls over Claimant Representative Fee Petition Payments 3 n. 4 (2015), available at https://oig.ssa.gov/sites/default/files/audit/full/ pdf/A-05-13-13061.pdf. 39

3. Petitioner points to a Social Security instruction manual explaining that attorney’s fees could be awarded in excess of 25% of past-due benefits as evidence that “closes the door on any suggestion that administrative and court representation fees share a single fee cap.” Brief for Petitioner 17. Although Petitioner is correct that SSA’s Program Operations Manual System (POMS) advises that “the court fee and the administrative fee combined may exceed 25 percent of the [past-due benefits,” POMS GN 03920.050(C), the POMS is merely a guidance manual directed at Social Security claims processors intended to instruct them on how to perform their jobs. See https:// secure.ssa.gov/poms.nsf/home!readform (describing POMS as a “source of information used by Social Security employees to process claims for Social Security benefits.”). The portion of the instruction manual to which Petitioner refers merely provides guidance to SSA employees on how to handle a situation where combined agency fees and court fees exceed 25% of past-due benefits, presumably in jurisdictions where this is permitted. In other words, this manual does not purport to offer a legal opinion on whether § 406 provides a 25% cap on combined (a) and (b) fees; it simply attempts to advise employees on how to process claims consistent with the various divergent circuit court rules. However, to the extent this Court agrees with Petitioner regarding the weight to be given to the SSA’s opinion, this Court should affirm the judgment of the Eleventh Circuit because it has been the consistent position of the SSA for the past 48 years – at least since Dawson was decided in 1970 – that § 406 caps combined (a) fees and (b) fees at 25%. See infra pp. 27-29.

4. Petitioner suggests that there is no need to worry that attorneys will seek excessive fees in the absence of 40 a 25%-aggregate cap because § 406(a)’s “reasonableness inquiry” has “real teeth and “effectively check[s] excessive fees for representation before the agency.” Brief for Petitioner 14 n. 2 & 15. Respondent offers that is “unlikely” that combined fees will reach 50% of past-due benefits “if the agency and the courts property discharge their responsibility” to award reasonable fees. Brief of Respondent 22. Yet these safeguards have not prevented Social Security attorneys in circuits that have rejected the 25%-aggregate rule from walking away with combined (a) and (b) fees approaching 40% and even 50% of past-due benefits. See Booth v. Comm’r of Soc. Sec., 645 F. App’x 455, 457 (6th Cir. 2016) (after agency awarded attorney a $6,000 (a) fee, court awarded a (b) fee of 25% of past-due benefits, resulting in combined fees totaling over 47% of past-due benefits);Campbell v. Astrue, 2009 WL 2342739 (E.D. Ky. 2009) (unpublished) (after claimant’s attorney was awarded a $5,300 (a) fee, the court awarded a $9,362 (b) fee, amounting to 39% of claimant’s past-due benefits). See, e.g., Ellick v. Barnhart, 445 F. Supp. 2d 1166, 1168–69 (C.D. Cal. 2006) (reporting that survey of 43 cases revealed that “[s]lightly more than half” of the §406(b) requests yielded court fees alone of 25% of past-due benefits). 28

5. Amicus NOSSCR seems to suggest that the ramifications of rejecting a 25%-aggregate rule are insignificant, because attorneys who have been able to secure exorbitant fees will not be able to collect them from their disabled clients. Brief of Amicus NOSSCR 17018.

28. These cases appear to contradict Amicus NOSSCR’s suggestion that “[a]n attorney in a Circuit without a cumulative cap ordinarily requests that a court authorize a § 406(b) fee that reflects a cumulative cap” and its discussion regarding the “prevailing market rate” for (b) fees. Brief of Amicus NOSSCR 13. 41

Putting aside the dubious suggestion that this type of consideration should influence the decision in this case, it is by no means clear that disabled claimants would not be hounded by their lawyers in perpetuity over their future disability or SSI benefits, or any other potential sources of income, including inheritances, they might have the good fortune to acquire. As mentioned above, the Sixth Circuit has suggested that attorney’s fees in excess of the amount withheld by SSA might be treated as an overpayment and withheld from a claimant’s future benefits. See supra note 18 (quoting Hayes, 895 F.3d at 452). As for Amicus NOSSCR’s fear that 42 U.S.C. § 407(a) would prevent collection of attorney’s fees from claimants, this does not appear to be the case since such fees stem from past-due benefits, not future benefits. Cf. Celebrezze v. Sparks, 342 F.2d 286, 288 (5th Cir. 1965) (concluding that § 407(a) applies only to a ‘”future payment” whereas an attorney’s fee deals solely with past due benefits).

6. Petitioner and Amicus NOSSCR hypothesize that under a 25%-aggregate rule, an attorney might obtain a favorable result in court and then discover that an agency attorney has already “used up” the withheld past-due benefits. Brief for Petitioner 20; Brief for Amicus NOSSCR 10-11. In practice, there are safeguards to prevent this from happening. First, in circuits operating under the 25%-aggregate rule, such as the Eleventh Circuit, it is standard practice for an attorney who accepts representation of a claimant in court to enter an agreement ahead of time delineating how any withheld benefits will be split between counsel. Second, since the agency when ruling on an (a) fee request is required to consider the amount of any (b) fee the attorney plans to request from the court, see 20 C.F.R. § 404.1725(a)(4); 20 42

C.F.R. § 404.1728(a), and since the court when ruling on a (b) fee request is likewise authorized to consider the amount of any (a) fee the attorney plans to request from the agency, see Brief of Respondent 24-25, there would be no opportunity for the agency attorney to use up the pot of past-due benefits. Moreover, it is important to weigh the risks. While the risk to an attorney of not receiving a fee is minimal, the impact on a claimant’s well-being of having her income eroded by attorney’s fees can be significant. In any event, because the perceived problem in the hypothetical is at best illusory, it should not drive the Court’s decision in this case.

7. Finally, Petitioner and Respondent both argue that had Congress intended to limit agency and court fees to 25% in the aggregate, it would have said so. (Brief for Petitioner 13; Brief for Respondent 16). But the converse is equally true: had Congress intended that separate 25%- fees could be awarded under both § 406(a) and § 406(b), it could have said that as well. At best, the statute is ambiguous on this point. This ambiguity must be resolved in favor of Ms. Wood, because a broad construction and liberal application of the attorney’s fees provisions of § 406 would further the remedial and beneficent purposes of the Social Security Act, rather than defeat it. See Cutler, supra, 516 F.2d at 1285 (quoting Gold, supra, 463 F.2d at 41).

In sum, Congress intended when it drafted 42 U.S.C. § 406 and its amendments to limit combined agency fees under subsection (a) and court fees under subsection (b) to no more than 25% of a claimant’s past-due benefits. This is evident from the text of the amendments to § 406 as well as their legislative history, and effectuates 43

Congress’s goal of protecting Social Security claimants from a disproportionately large reduction of their benefits while at the same time ensuring their ability to secure legal representation.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

Amy Levin Weil Counsel of Record Court-Appointed Amicus The Weil Firm 511 East Paces Ferry Road, N.E. Atlanta, Georgia 30305 (404) 581-0000 [email protected]

Counsel for Amicus Curiae SEPTEMBER 2018 APPENDIX 1a

APPENDIXAppendix

Hearings on H.R. 6675 Before the Senate Committee on Finance, 89th Congress, 1st Sess., Part One, p. 513 (1965):

Explanation of amendment

This amendment is designed to alleviate two problems that have arisen with respect to representation of claimants by attorneys. The first relates to the need to encourage effective legal representation of claimants. Under the provisions of section 205(i) of the Social Security Act, accrued amounts of benefits that are due to a claimant as a result of a court decision are to be paid directly to him. Under section 207, assignment of benefits is prohibited. Attorneys have complained that such awards are sometimes made to the claimant without the attorney’s knowledge and that some claimants on occasion have not notified the attorney of the receipt of the money, nor have they paid his fee.

Another problem that has arisen is that attorneys have on occasion charged what appeared to be inordinately large fees for representing claimants in Federal district court actions arising under the social security program. Usually, these inordinately large fees result from a contingent fee arrangement under which the attorney is entitled to a percentage (frequently one-third to one- half of the accrued benefits). Since litigation necessarily involves a considerable lapse of time, in many cases large amounts of accrued benefits, and consequently large legal fees, may be payable if the claimant wins his case. 2a

Appendix

The amendment would provide that whenever a court renders a judgment favorable to a claimant, it would have express authority to allow as part of its judgment a reasonable fee (not in excess of 25 percent of accrued benefits) for services rendered in connection with the claim. Any violation would be made subject to the same penalties as are provided in section 206 of the law for charging more than the maximum fees prescribed in regulations (20 CFR 404.975) for services rendered in proceedings before the Secretary. In addition, as a specific exception to section 205(i), the Secretary would be permitted to certify the amount of the court-approved fee to the attorney out of the amount of accrued benefits. As a result, claimants would be insured more effective legal representation and also would be protected from being charged exorbitant fees. (Slip Opinion) OCTOBER TERM, 2018 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES

Syllabus

CULBERTSON v. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 17–773. Argued November 7, 2018—Decided January 8, 2019 The Social Security Act regulates the fees that attorneys may charge claimants seeking Title II benefits for representation both before the Social Security Administration and in federal court. For representation in administrative proceedings, the Act provides two ways to determine fees. If a fee agreement exists, fees are capped at the lesser of 25% of past-due benefits or a set dollar amount—currently $6,000. 42 U. S. C. §406(a)(2)(A). Absent an agreement, the agency may set any “reasonable” fee. §406(a)(1). In either case, the agency is required to withhold up to 25% of past-due benefits for direct payment of any fee. §406(a)(4). For representation in court proceedings, fees are capped at 25% of past-due benefits, and the agency has authority to withhold such benefits to pay these fees. §406(b)(1)(A). Petitioner Culbertson represented Katrina Wood in Social Security disability benefit proceedings before the agency and in District Court. The agency ultimately awarded Wood past-due benefits, withheld 25% of those benefits to pay any attorney’s fees, and awarded Cul- bertson fees under §406(a) for representation before the agency. Cul- bertson then moved for a separate fee award under §406(b) for the court proceedings, requesting a full 25% of past-due benefits. The District Court granted the request, but only in part, because Culbert- son did not subtract the amount he had already received under §406(a) for his agency-level representation. The Eleventh Circuit affirmed, holding that the 25% limit under §406(b) applies to the total fees awarded under both §§406(a) and (b). Held: Section 406(b)(1)(A)’s 25% cap applies only to fees for court representation and not to the aggregate fees awarded under §§406(a) and (b). Pp. 5–9. 2 CULBERTSON v. BERRYHILL

Syllabus

(a) Section 406(b) provides that a court rendering a favorable judgment to a claimant “represented before the court by an attorney” may award “a reasonable fee for such representation, not in excess of 25 percent” of past-due benefits. Here, the adjective “such,” which means “[o]f the kind or degree already described or implied,” refers to the only form of representation “already described” in §406(b)—i.e., “represent[ation] before the court.” Thus, the 25% cap applies only to fees for representation before the court, not the agency. Subsections (a) and (b) address different stages of the representation and use different methods for calculating fees. Given this statutory structure, applying §406(b)’s 25% cap on court-stage fees to §406(a) agency-stage fees, or the aggregate of §§406(a) and (b) fees, would make little sense. For example, such a reading would subject §406(a)(1)’s reasonableness limitation to §406(b)’s 25% cap—a limitation not included in the relevant provision of the statute. Had Con- gress wanted agency-stage fees to be capped at 25%, it presumably would have said so directly in subsection (a). Pp. 5–7. (b) The fact that the agency presently withholds a single pool of 25% of past-due benefits for direct payment of agency and court fees does not support an aggregate reading. The statutory text provides for two pools of money for direct payment of fees. See §§406(a)(4), (b)(1)(A). The agency’s choice to withhold only one pool of 25% of past-due benefits does not alter this text. More fundamentally, the amount of past-due benefits that the agency can withhold for direct payment does not delimit the amount of fees that can be approved for representation before the agency or the court. Pp. 7–9. 861 F. 3d 1197, reversed and remanded.

THOMAS, J., delivered the opinion for a unanimous Court. Cite as: 586 U. S. ____ (2019) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES ______

No. 17–773 ______RICHARD ALLEN CULBERTSON, PETITIONER v. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [January 8, 2019]

JUSTICE THOMAS delivered the opinion of the Court. Federal law regulates the fees that attorneys may charge Social Security claimants for representation before the Social Security Administration and a reviewing court. See 42 U. S. C. §§406(a)–(b). The question in this case is whether the statutory scheme limits the aggregate amount of fees for both stages of representation to 25% of the claimant’s past-due benefits. Because §406(b) by its terms imposes a 25% cap on fees only for representation before a court, and §406(a) has separate caps on fees for representation before the agency, we hold that the statute does not impose a 25% cap on aggregate fees. I A Title II of the Social Security Act, 49 Stat. 622, as amended, 42 U. S. C. §401 et seq., “is an insurance program” that “provides old-age, survivor, and disability benefits to insured individuals irrespective of financial need.” Bowen v. Galbreath, 485 U. S. 74, 75 (1988). A claimant’s application for Title II benefits can result in 2 CULBERTSON v. BERRYHILL

Opinion of the Court payments of past-due benefits—i.e., benefits that accrued before a favorable decision, 20 CFR §404.1703 (2018)—as well as ongoing monthly benefits, see 42 U. S. C. §423(a). A claimant who has been denied benefits “in whole or in part” by the Social Security Administration may seek administrative review of the initial agency determination, §405(b), and may then seek judicial review of the resulting final agency decision, §405(g). As presently written, the Social Security Act “discretely” addresses attorney’s fees for the administrative and judicial-review stages: “§406(a) governs fees for representation in administrative proceedings; §406(b) controls fees for representation in court.” Gisbrecht v. Barnhart, 535 U. S. 789, 794 (2002). The original Social Security Act made no such provision for attorney’s fees in either proceeding. Id., at 793, n. 2. But in 1939, “Congress amended the Act to permit the Social Security Board to prescribe maximum fees attorneys could charge for representation of claimants before the agency.” Ibid. In 1965, Congress added a new subsection (b) to §406 that explicitly prescribed fees for representation before a court and “allow[ed] withholding of past-due benefits to pay” these fees directly to the attorney. Social Security Amendments of 1965, §332, 79 Stat. 403; Bowen, 485 U. S., at 76. In 1968, Congress amended subsection (a) to give the agency similar withholding authority to pay attorney’s fees incurred in administrative proceedings. Id., at 76. Section 406(a) is titled “Recognition of representatives; fees for representation before Commissioner” of Social Security. It includes two ways to determine fees for representation before the agency, depending on whether a prior fee agreement exists. If the claimant has a fee agreement, subsection (a)(2) caps fees at the lesser of 25% of past-due benefits or a set dollar amount—currently $6,000. §406(a)(2)(A); Maximum Dollar Limit in the Fee Agree- ment Process, 74 Fed. Reg. 6080 (2009). Absent a fee Cite as: 586 U. S. ____ (2019) 3

Opinion of the Court agreement, subsection (a)(1) gives the agency authority to “prescribe the maximum fees which may be charged for services performed in connection with any claim” before the agency. If the claimant obtains a favorable agency determination, the agency may allot “a reasonable fee to compensate such attorney for the services performed by him.” Subsection (a)(4) requires the agency to withhold up to 25% of past-due benefits for direct payment of any fee for representation before the agency: “[I]f the claimant is determined to be entitled to past- due benefits under this subchapter and the person representing the claimant is an attorney, the Com- missioner of Social Security shall . . . certify for payment out of such past-due benefits . . . to such attorney an amount equal to so much of the maximum fee as does not exceed 25 percent of such past-due benefits . . . .” Section 406(b) is titled “Fees for representation before court.” Subsection (b)(1)(A) both limits these fees to no more than 25% of past-due benefits and allows the agency to withhold past-due benefits to pay these fees: “Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security may . . . certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past- due benefits.” At issue is whether §406(b)’s 25% cap limits the aggre- 4 CULBERTSON v. BERRYHILL

Opinion of the Court gate fees awarded for representation before both the agency under §406(a) and the court under §406(b), or instead limits only the fee awarded for court representation under §406(b). B Petitioner Richard Culbertson represented claimant Katrina Wood in proceedings seeking Social Security disability benefits. After the agency denied Wood benefits, she brought an action in district court. For the court action, Wood signed a contingency-fee agreement “to pay a fee of 25 percent of the total of the past-due benefits to which [she] is entitled” in consideration for Culbertson’s “representation of [her] in Federal Court.” App. 8–9. The agreement excludes fees for “any representation before” the agency. Id., at 9. The District Court reversed the agency’s denial of benefits and remanded for further proceedings. The court granted Wood attorney’s fees under the Equal Access to Justice Act (EAJA), which authorizes an award against the Government for reasonable fees in “civil action[s].” 28 U. S. C. §§2412(d)(1)(A) and (2)(A). On remand, the agency awarded Wood past-due disability benefits and withheld 25% of those benefits to pay any attorney’s fees that might ultimately be awarded. The agency also awarded Culbertson §406(a) fees for representing Wood before the agency. Culbertson then moved the District Court for a separate fee award under §406(b) for representing Wood there. After accounting for the EAJA award, see Gisbrecht, supra, at 796; App. 9, this request amounted to a full 25% of past-due benefits. The court granted Culbertson’s request only in part because he did not subtract the amount he had already received under §406(a) for his agency-level representation. The Eleventh Circuit affirmed, relying on Circuit precedent to hold that “the 25% limit from §406(b) Cite as: 586 U. S. ____ (2019) 5

Opinion of the Court applies to total fees awarded under both §406(a) and (b), ‘preclud[ing] the aggregate allowance of attorney’s fees greater than twenty-five percent of the past due benefits received by the claimant.’ ” Wood v. Commissioner of Social Security, 861 F. 3d 1197, 1205 (2017) (quoting Dawson v. Finch, 425 F. 2d 1192, 1195 (CA5 1970); emphasis deleted).* Given a conflict between the Circuits on this question, see 861 F. 3d, at 1205–1206, we granted certiorari. 584 U. S. ___ (2018). Because no party defends the judgment, we appointed Amy Weil to brief and argue this case as amicus curiae in support of the judgment below. 584 U. S. ___ (2018). Amicus Weil has ably discharged her assigned responsibilities. II A We “begi[n] with the language of the statute itself, and that is also where the inquiry should end, for the statute’s language is plain.” Puerto Rico v. Franklin Cal. Tax-Free Trust, 579 U. S. ___, ___ (2016) (slip op., at 9) (internal quotation marks omitted). Under §406(b), when a court “renders a judgment favorable to a claimant . . . who was represented before the court by an attorney,” the court may award “a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment.” 42 U. S. C. §406(b)(1)(A) (emphasis added). Both at the time of enactment and today, the adjective “such” means “[o]f the kind or degree already described or implied.” H. Fowler & F. Fowler, Concise Oxford Dictionary of Current English 1289 (5th ed. 1964); Black’s Law Dic- tionary 1661 (10th ed. 2014) (“[t]hat or those; having just ——————

* See Bonner v. Prichard, 661 F. 2d 1206, 1209 (CA11 1981) (en banc) (adopting all decisions of the former Fifth Circuit announced prior to October 1, 1981, as binding precedent in the Eleventh Circuit). 6 CULBERTSON v. BERRYHILL

Opinion of the Court been mentioned”). Here, the only form of representation “already described” in §406(b) is “represent[ation] before the court by an attorney.” Accordingly, the 25% cap applies only to fees for representation before the court, not the agency. This interpretation is supported by “the structure of the statute and its other provisions.” Maracich v. Spears, 570 U. S. 48, 60 (2013). As an initial matter, subsections (a) and (b) address different stages of the representation. Section 406(a) addresses fees for representation “before the Commissioner,” whereas §406(b) addresses fees for representation in court. Because some claimants will prevail before the agency and have no need to bring a court action, it is unsurprising that the statute contemplates separate fees for each stage of representation. These subsections also calculate fees differently. Sec- tion 406(b) applies a flat 25% cap on fees for court representation. By contrast, §406(a) provides two ways to determine fees for agency proceedings. Subsection (a)(2) caps fees based on a fee agreement at the lesser of 25% of past-due benefits or $6,000. Supra, at 2. If there is no fee agreement, the agency may set any fee, including a fee greater than 25% of past-due benefits, so long as the fee is “reasonable.” §406(a)(1). Given this statutory structure, applying §406(b)’s 25% cap on court-stage fees to §406(a) agency-stage fees, or the aggregate of §§406(a) and (b) fees, would make little sense. Many claimants will never litigate in court, yet under the aggregate reading, agency fees would be capped at 25% based on a provision related exclusively to representation in court. Absent a fee agreement, §406(a)(1) subjects agency fees only to a reasonableness limitation, so applying §406(b)’s cap to such fees would add a limitation that Congress did not include in the relevant provision of the statute. If Congress had wanted these fees to be capped at 25%, it presumably would have said so directly in subsec- Cite as: 586 U. S. ____ (2019) 7

Opinion of the Court tion (a), instead of providing for a “reasonable fee” in that subsection and adding a 25% cap in §406(b) without even referencing subsection (a). Thus, the structure of the statute confirms that §406(b) caps only court representation fees. B Amicus Amy Weil agrees that “§406(a) and §406(b) provide separate avenues for an award of attorney’s fees for representation of a Social Security claimant,” but emphasizes that “these fees are certified for payment out of a single source: the 25% of past-due benefits withheld by the Commissioner.” Brief for Court-Appointed Amicus Curiae 10. According to Amicus, “[b]ecause the Commis- sioner withholds only one pool of 25% of past-due benefits from which to pay attorney’s fees for both agency and court representation, for an attorney to collect a fee that exceeds the 25% pool of withheld disability benefits,” the attorney may “need to file a lawsuit against his disabled client” to collect the difference. Id., at 23–24. Therefore, Amicus urges, “[w]hen the statute is read as a whole,” “it is evident that Congress placed a cumulative 25% cap on attorney’s fees payable for successful representation of a Social Security claimant before both the agency and the court.” Id., at 10. Amicus is quite right that presently the agency withholds a single pool of 25% of past-due benefits for direct payment of agency and court fees. See Social Security Administration, Program Operations Manual System (POMS), GN 03920.035(A), online at https://policy.ssa.gov/ poms.nsf/lnx/0203920035 (as last visited Jan. 2, 2019); see also 20 CFR §§404.1730(a) and (b)(1)(i). And Amicus sensibly argues that if there is only a single 25% pool for direct payment of fees, Congress might not have intended aggregate fees higher than 25%. This argument is plausible, but the statutory text in fact provides for two pools of 8 CULBERTSON v. BERRYHILL

Opinion of the Court money for direct payment of fees. Any shortage of withheld benefits for direct payment of fees is thus due to agency policy. Under §406(a)(4), the agency “shall” certify for direct payment of agency representation fees “an amount equal to so much of the maximum fee as does not exceed 25 percent of ” past-due benefits. In other words, this subsection requires that the agency withhold the approved fees for work performed in agency proceedings, up to 25% of the amount of the claimant’s past-due benefits. But this is not the only subsection that enables the agency to withhold past-due benefits for direct payment of fees. Section 406(b)(1)(A) provides that the agency “may” certify past- due benefits for direct payment of court representation fees. As the Government explains, the agency has nevertheless “exercised its discretion . . . to withhold a total of 25% of past-due benefits for direct payment of the approved agency and court fees.” Reply Brief for Respondent 8 (emphasis added). The agency’s choice to withhold only one pool of 25% of past-due benefits does not alter the statutory text, which differentiates between agency representation in §406(a) and court representation in §406(b), contains separate caps on fees for each type of representation, and authorizes two pools of withheld benefits. More fundamentally, the amount of past-due benefits that the agency can withhold for direct payment does not delimit the amount of fees that can be approved for representation before the agency or the court. The attorney might receive a direct payment out of past-due benefits, but that payment could be less than the fees to which the attorney is entitled. Indeed, prior to 1968, the statute allowed fees for agency representation but lacked a provision for direct payment of such fees from past-due benefits. See supra, at 2. And under the current §§406(a)(1) and (4), the agency can award a “reasonable fee” that exceeds the 25% of past-due benefits it can withhold for Cite as: 586 U. S. ____ (2019) 9

Opinion of the Court direct payment. In short, despite the force of Amicus’ arguments, the statute does not bear her reading. Any concerns about a shortage of withheld benefits for direct payment and the consequences of such a shortage are best addressed to the agency, Congress, or the attorney’s good judgment. * * * Because the 25% cap in §406(b)(1)(A) applies only to fees for court representation, and not to the aggregate fees awarded under §§406(a) and (b), the judgment of the United States Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. DISCRETIONARY APPEALS AND CERTIORARI

<< Back to Table of Contents APPENDIX A

CHIEF JUSTICE’S COMMISSION ON PROFESSIONALISM

THE CHIEF JUSTICE’S COMMISSION ON PROFESSIONALISM (Founded 1989)

A Brief History of the Chief Justice’s Commission on Professionalism

Karlise Y. Grier, Executive Director

The mission of the Chief Justice’s Commission on Professionalism is to support and encourage lawyers to exercise the highest levels of professional integrity in their relationships with their clients, other lawyers, the courts and the public, and to fulfill their obligations to improve the law and legal system and to ensure access to that system.

After a series of meetings of key figures in Georgia’s legal community in 1988, in February of 1989, the Supreme Court of Georgia created the Chief Justice’s Commission on Professionalism (“Commission”), the first entity of this kind in the world created by a high court to address legal professionalism. In March of 1989, the Rules of the State Bar of Georgia were amended to lay out the purpose, members, powers and duties of the Commission. The brainchild of Justice Thomas Marshall and past Emory University President James Laney, they were joined by Justices Charles Weltner and Harold Clarke and then State Bar President A. James Elliott in forming the Commission. The impetus for this entity then and now is to address uncivil approaches to the practice of law, as many believe legal practice is departing from its traditional stance as a high calling – like medicine and the clergy – to a business.

The Commission carefully crafted a statement of professionalism, A Lawyer’s Creed and the Aspirational Statement on Professionalism, guidelines and standards addressing attorneys’ relationships with colleagues, clients, judges, law schools and the public, and retained its first executive director, Hulett “Bucky” Askew. Professionalism continuing legal education was mandated and programming requirements were developed by then assistant and second executive director Sally Evans Lockwood. During the 1990s, after the Commission conducted a series of convocations with the bench and bar to discern professionalism issues from

Page 1 Professionalism CLE General Materials v. 08-05-19 practitioners’ views, the State Bar instituted new initiatives, such as the Committee on Inclusion in the Profession (f/k/a Women and Minorities in the Profession Committee). Then the Commission sought the concerns of the public in a series of town hall meetings held around Georgia. Two concerns raised in these meetings were: lack of civility and the economic pressures of law practice. As a result, the State Bar of Georgia established the Law Practice Management Program.

Over the years, the Commission has worked with the State Bar to establish other programs that support professionalism ideals, including the Consumer Assistance Program and the Diversity Program. In 1993, under President Paul Kilpatrick, the State Bar’s Committee on Professionalism partnered with the Commission in establishing the first Law School Orientation on Professionalism Program for incoming law students held at every Georgia law school. At one time, this program had been replicated at more than forty U.S. law schools. It engages volunteer practicing attorneys, judges and law professors with law students in small group discussions of hypothetical contemporary professionalism and ethics situations.

In 1997, the Justice Robert Benham Community Service Awards Program was initiated to recognize members of the bench and bar who have combined a professional career with outstanding service to their communities around Georgia. The honorees are recognized for voluntary participation in community organizations, government-sponsored activities, youth programs, religious activities or humanitarian work outside of their professional practice or judicial duties. This annual program is now usually held at the State Bar Headquarters in Atlanta and in the past it has been co-sponsored by the Commission and the State Bar. The program generally attracts several hundred attendees who celebrate Georgia lawyers who are active in the community.

In 2006, veteran attorney and former law professor, Avarita L. Hanson became the third executive director. In addition to providing multiple CLE programs for local bars, government and law offices, she served as Chair of the ABA Consortium on Professionalism Initiatives, a group that informs and vets ideas of persons interested in development of professionalism programs. She authored the chapter on Reputation, in Paul Haskins, Ed., ESSENTIAL QUALITIES OF THE PROFESSIONAL LAWYER, ABA Standing Committee on Professionalism, ABA Center for Professional Responsibility (July 2013) and recently added to the newly-released accompanying Instructor’s Manual (April 2017). Ms. Hanson retired in August 2017 after a distinguished career serving the Commission.

Today, the Commission, which meets three times per year, is under the direction and management of its fourth Executive Director, attorney Karlise Yvette Grier. The Commission continues to support and advise persons locally and nationally who are interested in professionalism programming. The Chief Justice of the Supreme Court of Georgia serves as

Page 2 Professionalism CLE General Materials v. 08-02-19 APPENDIX A the Commission’s chair, and Chief Justice Harold D. Melton currently serves in this capacity. The Commission has twenty-two members representing practicing lawyers, the state appellate and trial courts, the federal district court, all Georgia law schools and the public. (See Appendix A). In addition to the Executive Director, the Commission staff includes Shamilla Jordan (Administrative Specialist). With its chair, members and staff, the Commission is well equipped to fulfill its mission and to inspire and develop programs to address today’s needs of the legal profession and those concerns on the horizon. (See Appendix B).

The Commission works through committees and working groups (Access to Justice, Finance and Personnel, Continuing Legal Education, Social Media/Awareness, Financial Resources, and Benham Awards Selection) in carrying out some of its duties. It also works with other state and national entities, such as the American Bar Association’s Center for Professional Responsibility and its other groups. To keep Georgia Bar members abreast of professionalism activities and issues, the Commission maintains a website at www.cjcpga.org. The Commission also provides content for the Professionalism Page in every issue of the Georgia Bar Journal. In 2018, the Commission engaged in a strategic planning process. As a result of that process, the Commission decided to focus on four priority areas for the next three to five years: 1) ensuring high quality professionalism CLE programming that complies with CJCP guidelines; 2) promoting the understanding and exercise of professionalism and emphasizing its importance to the legal system; 3) promoting meaningful access to the legal system and services; and 4) ensuring that CJCP resources are used effectively, transparently and consistent with the mission.

After 30 years, the measure of effectiveness of the Commission should ultimately rest in the actions, character and demeanor of every Georgia lawyer. Because there is still work to do, the Commission will continue to lead the movement and dialogue on legal professionalism.

Chief Justice’s Commission on Professionalism 104 Marietta Street, N.W. Suite 620 Atlanta, Georgia 30303 (404) 225-5040 (o) [email protected] www.cjcpga.org

Page 3 Professionalism CLE General Materials v. 08-05-19 CHIEF JUSTICE’S COMMISSION ON PROFESSIONALISM

PROFESSIONALISM AND GEORGIA’S LEGAL PROFESSION

THE MEANING OF PROFESSIONALISM

The three ancient learned professions were the law, medicine, and ministry. The word profession comes from the Latin professus, meaning to have affirmed publicly. As one legal scholar has explained, “The term evolved to describe occupations that required new entrants to take an oath professing their dedication to the ideals and practices associated with a learned calling.”1 Many attempts have been made to define a profession in general and lawyer professionalism in particular. The most commonly cited is the definition developed by the late Dean Roscoe Pound of Harvard Law School:

The term refers to a group . . . pursuing a learned art as a common calling in the spirit of public service - no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of a public service is the primary purpose.2

Thinking about professionalism and discussing the values it encompasses can provide guidance in the day-to-day practice of law. Professionalism is a wide umbrella of values encompassing competence, character, civility, commitment to the rule of law, to justice and to the public good. Professionalism calls us to be mindful of the lawyer’s roles as officer of the court, advocate, counselor, negotiator, and problem solver. Professionalism asks us to commit to improvement of the law, the legal system, and access to that system. These are the values that make us a profession enlisted in the service not only of the client but of the public good as well. While none of us achieves perfection in serving these values, it is the consistent aspiration toward them that defines a professional. The Commission encourages thought not only about the lawyer-client relationship central to the practice of law but also about how the legal profession can shape us as people and a society.

1 DEBORAH L. RHODE, PROFESSIONAL RESPONSIBILITY: ETHICS BY THE PERVASIVE METHOD 39 (1994) 2 ROSCOE POUND, THE LAWYER FROM ANTIQUITY TO MODERN TIMES 5 (1953)

Page 4 Professionalism CLE General Materials v. 08-02-19 APPENDIX A

BACKGROUND ON THE LEGAL PROFESSIONALISM MOVEMENT IN GEORGIA

In 1986, the American Bar Association ruefully reported that despite the fact that lawyers’ observance of the rules of ethics governing their conduct is sharply on the rise, lawyers’ professionalism, by contrast, may well be in steep decline:

[Although] lawyers have tended to take the rules more seriously because of an increased fear of disciplinary prosecutions and malpractice suits, . . . [they] have also tended to look at nothing but the rules; if conduct meets the minimum standard, lawyers tend to ignore exhortations to set their standards at a higher level.3

The ABA’s observation reflects a crucial distinction: while a canon of ethics may cover what is minimally required of lawyers, “professionalism” encompasses what is more broadly expected of them – both by the public and by the best traditions of the legal profession itself.

In response to these challenges, the State Bar of Georgia and the Supreme Court of Georgia embarked upon a long-range project – to raise the professional aspirations of lawyers in the state. Upon taking office in June 1988, then State Bar President A. James Elliott gave Georgia’s professionalism movement momentum when he placed the professionalism project at the top of his agenda. In conjunction with Chief Justice Marshall, President Elliott gathered 120 prominent judges and lawyers from around the state to attend the first Annual Georgia Convocation on Professionalism.

For its part, the Georgia Supreme Court took three important steps to further the professionalism movement in Georgia. First, at the first Convocation, the Supreme Court of Georgia announced and administered to those present a new Georgia attorney’s oath emphasizing the virtue of truthfulness, reviving language dating back to 1729. (See also Appendix C). Second, as a result of the first Convocation, in 1989, the Supreme Court of Georgia took two additional significant steps to confront the concerns and further the aspirations of the profession. First, it created the Chief Justice’s Commission on Professionalism (the “Commission”) and gave it a primary charge of ensuring that the practice of law in this state remains a high calling, enlisted in the service not only of the client, but of the public good as well. This challenging mandate was supplemented by the Court’s second step, that of amending the mandatory continuing legal education (CLE) rule to require all active Georgia

3 AMERICAN BAR ASSOCIATION COMMISSION ON PROFESSIONALISM, “ . . . IN THE SPIRIT OF PUBLIC SERVICE:” A BLUEPRINT FOR THE REKINDLING OF LAWYER PROFESSIONALISM, (1986) P.7, HTTPS://WWW.AMERICANBAR.ORG/CONTENT/DAM/ABA/ADMINISTRATIVE/PROFESSIONAL_RESPONSIBILITY/PR OFESSIONALISM_MIGRATED/STANLEY_COMMISSION_REPORT.PDF (LAST VISITED ON AUGUST 5, 2019).

Page 5 Professionalism CLE General Materials v. 08-05-19 lawyers to complete one hour of Professionalism CLE each year [Rule 8-104 (B)(3) of the Rules and Regulations for the Organization and Government of the State Bar of Georgia and Regulation (4) thereunder].

GENERAL PURPOSE OF CLE PROFESSIONALISM CREDIT

Beginning in 1990, the Supreme Court of Georgia required all active Georgia lawyers to complete one hour of Professionalism CLE each year [Rule 8-104 (B)(3) of the Rules and Regulations for the Organization and Government of the State Bar of Georgia and Regulation (4) thereunder]. The one hour of Professionalism CLE is distinct from and in addition to the required ethics CLE. The general goal of the Professionalism CLE requirement is to create a forum in which lawyers, judges and legal educators can explore the meaning and aspirations of professionalism in contemporary legal practice and reflect upon the fundamental premises of lawyer professionalism – competence, character, civility, commitment to the rule of law, to justice, and to the public good. Building a community among the lawyers of this state is a specific goal of this requirement.

DISTINCTION BETWEEN ETHICS AND PROFESSIONALISM

The Supreme Court has distinguished between ethics and professionalism, to the extent of creating separate one-hour CLE requirements for each. The best explanation of the distinction between ethics and professionalism that is offered by former Chief Justice Harold Clarke of the Supreme Court of Georgia:

“. . . the idea [is] that ethics is a minimum standard which is required of all lawyers, while professionalism is a higher standard expected of all lawyers.”

Laws and the Rules of Professional Conduct establish minimal standards of consensus impropriety; they do not define the criteria for ethical behavior. In the traditional sense, persons are not “ethical” simply because they act lawfully or even within the bounds of an official code of ethics. People can be dishonest, unprincipled, untrustworthy, unfair, and uncaring without breaking the law or the code. Truly ethical people measure their conduct not by rules but by basic moral principles such as honesty, integrity and fairness.

The term “Ethics” is commonly understood in the CLE context to mean “the law of lawyering” and the rules by which lawyers must abide in order to remain in good standing before the bar. Legal Ethics CLE also includes malpractice avoidance. “Professionalism” harkens back to the traditional meaning of ethics discussed above. The Commission believes that lawyers should remember in counseling clients and determining their own behavior that the letter of the law is only a minimal threshold describing what is legally possible, while professionalism is meant to address the aspirations of the profession and how we as lawyers should behave.

Page 6 Professionalism CLE General Materials v. 08-02-19 APPENDIX A

Ethics discussions tend to focus on misconduct -- the negative dimensions of lawyering. Professionalism discussions have an affirmative dimension -- a focus on conduct that preserves and strengthens the dignity, honor, and integrity of the legal system.

As former Chief Justice Benham of the Supreme Court of Georgia says, “We should expect more of lawyers than mere compliance with legal and ethical requirements.”

ISSUES AND TOPICS

In March of 1990, the Chief Justice’s Commission adopted A Lawyer’s Creed (See Appendix D) and an Aspirational Statement on Professionalism (See Appendix E). These two documents should serve as the beginning points for professionalism discussions, not because they are to be imposed upon Georgia lawyers or bar associations, but because they serve as words of encouragement, assistance and guidance. These comprehensive statements may be utilized to frame discussions and remind lawyers about the basic tenets of our profession.

Karl N. Llewellyn, jurisprudential scholar who taught at Yale, Columbia, and the University of Chicago Law Schools, often cautioned his students:

The lawyer is a man of many conflicts. More than anyone else in our society, he must contend with competing claims on his time and loyalty. You must represent your client to the best of your ability, and yet never lose sight of the fact that you are an officer of the court with a special responsibility for the integrity of the legal system. You will often find, brethren and sistern, that those professional duties do not sit easily with one another. You will discover, too, that they get in the way of your other obligations – to your conscience, your God, your family, your partners, your country, and all the other perfectly good claims on your energies and hearts. You will be pulled and tugged in a dozen directions at once. You must learn to handle those conflicts.4

The real issue facing lawyers as professionals is developing the capacity for critical and reflective judgment and the ability to “handle those conflicts,” described by Karl Llewellyn. A major goal of Professionalism CLE is to encourage introspection and dialogue about these issues.

4 MARY ANN GLENDON, A NATION UNDER LAWYERS 17 (1994)

Page 7 Professionalism CLE General Materials v. 08-05-19 CHIEF JUSTICE’S COMMISSION ON PROFESSIONALISM Karlise Y. Grier Executive Director Honorable Harold D. Melton

Chief Justice Shamilla Jordan Supreme Court of Georgia Administrative Specialist

APPENDICES

A 2019-2020 COMMISSION MEMBERS

B MISSION STATEMENT

C OATH OF ADMISSION

D A LAWYER’S CREED

E ASPIRATIONAL STATEMENT ON PROFESSIONALISM

F SELECT PROFESSIONALISM PAGE ARTICLES

Suite 620 • 104 Marietta Street, N.W. • Atlanta, Georgia 30303 • (404) 225-5040 • Email: [email protected] • www.cjcpga.org

Page 8 Professionalism CLE General Materials v. 08-02-19 APPENDIX A CHIEF JUSTICE’S COMMISSION ON PROFESSIONALISM Karlise Y. Grier Executive Director Honorable Harold D. Melton

Chief Justice Shamilla Jordan Supreme Court of Georgia Administrative Specialist

CHIEF JUSTICE’S COMMSSION ON PROFESSIONALISM 2019-2020

Members

The Honorable Harold D. Melton, Chair Atlanta

Ms. Elizabeth Beskin, Atlanta Professor Patrick E. Longan, Macon Professor Nathan S. Chapman, Athens Ms. Maria Mackay, Watkinsville Professor Clark D. Cunningham, Atlanta The Honorable Carla W. McMillian, Atlanta Mr. William T. Davis, Atlanta The Honorable William M. Ray, II, Atlanta Mr. Gerald M. Edenfield, Statesboro Ms. Claudia S. Saari, Decatur The Honorable Susan E. Edlein, Atlanta Ms. Adwoa Ghartey-Tagoe Seymour, Atlanta Ms. Elizabeth L. Fite, Decatur Assistant Dean Rita A. Sheffey, Atlanta Ms. Rebecca Grist, Macon Mr. Darrell L. Sutton, Marietta Associate Dean Sheryl Harrison-Mercer, Atlanta Ms. Nicki Noel Vaughan, Gainesville The Honorable Meng H. Lim, Tallapoosa Mr. R. Kyle Williams, Decatur Dr. Monica L. Willis-Parker, Stone Mountain Advisors Liaisons The Honorable Robert Benham, Atlanta Ms. Jennifer M. Davis, Savannah Mr. Robert Arrington, Atlanta Professor Roy M. Sobelson, Atlanta Mr. Jeffrey R. Davis, Atlanta The Honorable Sarah Hawkins Warren, Atlanta Ms. Paula J. Frederick, Atlanta Ms. Michelle E. West, Atlanta Staff Ms. DeeDee Worley, Atlanta

Ms. Karlise Y. Grier, Atlanta Ms. Shamilla Jordan, Atlanta

Names in italics denotes public member/non-lawyer

Suite 620 • 104 Marietta Street, N.W. • Atlanta, Georgia 30303 • (404) 225-5040 • Email: [email protected] • www.cjcpga.org

Page 9 Professionalism CLE General Materials v. 08-05-19 APPENDIX B

MISSION STATEMENT

The mission of the Chief Justice’s Commission on Professionalism is to support and encourage lawyers to exercise the highest levels of professional integrity in their relationships with their clients, other lawyers, the courts, and the public and to fulfill their obligations to improve the law and the legal system and to ensure access to that system.

CALLING TO TASKS

The Commission seeks to foster among lawyers an active awareness of its mission by calling lawyers to the following tasks, in the words of former Chief Justice Harold Clarke:

1. To recognize that the reason for the existence of lawyers is to act as problem solvers performing their service on behalf of the client while adhering at all times to the public interest;

2. To utilize their special training and natural talents in positions of leadership for societal betterment;

3. To adhere to the proposition that a social conscience and devotion to the public interest stand as essential elements of lawyer professionalism.

* * * * * * * * * *

Page 10 Professionalism CLE General Materials v. 08-02-19 APPENDIX A

APPENDIX C

HISTORICAL INFORMATION ABOUT THE COMMISSION’S ROLES IN THE DEVELOPMENT OF THE CURRENT GEORGIA ATTORNEY OATH

In 1986, Emory University President James T. Laney delivered a lecture on “Moral Authority in the Professions.” While expressing concern about the decline in moral authority of all the professions, he focused on the legal profession because of the respect and confidence in which it has traditionally been held and because it has been viewed as serving the public in unique and important ways. Dr. Laney expressed the fear that the loss of moral authority has as serious a consequence for society at large as it does for the legal profession.

For its part, the Georgia Supreme Court took an important step to further the professionalism movement in Georgia. At the first convocation on professionalism, the Court announced and administered to those present a new Georgia attorney’s oath emphasizing the virtue of truthfulness, reviving language dating back to 1729. Reflecting the idea that the word “profession” derives from a root meaning “to avow publicly,” this new oath of admission to the State Bar of Georgia indicates that whatever other expectations might be made of lawyers, truth-telling is expected, always and everywhere, of every true professional. Since the convocation, the new oath has been administered to thousands of lawyers in circuits all over the state.

Attorney’s Oath

I, ______, swear that I will truly and honestly, justly, and uprightly demean myself, according to the laws, as an attorney, counselor, and solicitor, and that I will support and defend the Constitution of the United States and the Constitution of the State of Georgia. So help me God.

In 2002, at the request of then-State Bar President George E. Mundy, the Committee on Professionalism was asked to revise the Oath of Admission to make the wording more relevant to the current practice of law, while retaining the original language calling for lawyers to “truly and honestly, justly and uprightly” conduct themselves. The revision was approved by the Georgia Supreme Court in 2002.

Page 11 Professionalism CLE General Materials v. 08-05-19 APPENDIX C

OATH OF ADMISSION TO THE STATE BAR OF GEORGIA

“I,______, swear that I will truly and honestly, justly and uprightly

conduct myself as a member of this learned profession and in accordance with the

Georgia Rules of Professional Conduct, as an attorney and counselor and that I will

support and defend the Constitution of the United States and the Constitution of the

State of Georgia. So help me God.”

As revised by the Supreme Court of Georgia, April 20, 2002

Page 12 Professionalism CLE General Materials v. 08-02-19 APPENDIX A APPENDIX D

A LAWYER’S CREED

To my clients, I offer faithfulness, competence, diligence, and good judgment. I will strive to represent you as I would want to be represented and to be worthy of your trust.

To the opposing parties and their counsel, I offer fairness, integrity, and civility. I will seek reconciliation and, if we fail, I will strive to make our dispute a dignified one.

To the courts, and other tribunals, and to those who assist them, I offer respect, candor, and courtesy. I will strive to do honor to the search for justice.

To my colleagues in the practice of law, I offer concern for your welfare. I will strive to make our association a professional friendship.

To the profession, I offer assistance. I will strive to keep our business a profession and our profession a calling in the spirit of public service.

To the public and our systems of justice, I offer service. I will strive to improve the law and our legal system, to make the law and our legal system available to all, and to seek the common good through the representation of my clients.

Entered by Order of Supreme Court of Georgia, October 9, 1992, nunc pro tunc July 3, 1990; Part IX of the Rules and Regulations of the State Bar of Georgia, as amended September 10, 2003 and April 26, 2013

Page 13 Professionalism CLE General Materials v. 08-05-19

APPENDIX E

ASPIRATIONAL STATEMENT ON PROFESSIONALISM

The Court believes there are unfortunate trends of commercialization and loss of professional community in the current practice of law. These trends are manifested in an undue emphasis on the financial rewards of practice, a lack of courtesy and civility among members of our profession, a lack of respect for the judiciary and for our systems of justice, and a lack of regard for others and for the common good. As a community of professionals, we should strive to make the internal rewards of service, craft, and character, and not the external reward of financial gain, the primary rewards of the practice of law. In our practices we should remember that the primary justification for who we are and what we do is the common good we can achieve through the faithful representation of people who desire to resolve their disputes in a peaceful manner and to prevent future disputes. We should remember, and we should help our clients remember, that the way in which our clients resolve their disputes defines part of the character of our society and we should act accordingly.

As professionals, we need aspirational ideals to help bind us together in a professional community. Accordingly, the Court issues the following Aspirational Statement setting forth general and specific aspirational ideals of our profession. This statement is a beginning list of the ideals of our profession. It is primarily illustrative. Our purpose is not to regulate, and certainly not to provide a basis for discipline, but rather to assist the Bar’s efforts to maintain a professionalism that can stand against the negative trends of commercialization and loss of community. It is the Court’s hope that Georgia’s lawyers, judges, and legal educators will use the following aspirational ideals to reexamine the justifications of the practice of law in our society and to consider the implications of those justifications for their conduct. The Court feels that enhancement of professionalism can be best brought about by the cooperative efforts of the organized bar, the courts, and the law schools with each group working independently, but also jointly in that effort.

Page 14 Professionalism CLE General Materials v. 08-05-19

APPENDIX A APPENDIX E

GENERAL ASPIRATIONAL IDEALS

As a lawyer, I will aspire:

(a) To put fidelity to clients and, through clients, to the common good, before selfish interests.

(b) To model for others, and particularly for my clients, the respect due to those we call upon to resolve our disputes and the regard due to all participants in our dispute resolution processes.

(c) To avoid all forms of wrongful discrimination in all of my activities including discrimination on the basis of race, religion, sex, age, handicap, veteran status, or national origin. The social goals of equality and fairness will be personal goals for me.

(d) To preserve and improve the law, the legal system, and other dispute resolution processes as instruments for the common good.

(e) To make the law, the legal system, and other dispute resolution processes available to all.

(f) To practice with a personal commitment to the rules governing our profession and to encourage others to do the same.

(g) To preserve the dignity and the integrity of our profession by my conduct. The dignity and the integrity of our profession is an inheritance that must be maintained by each successive generation of lawyers.

(h) To achieve the excellence of our craft, especially those that permit me to be the moral voice of clients to the public in advocacy while being the moral voice of the public to clients in counseling. Good lawyering should be a moral achievement for both the lawyer and the client.

(i) To practice law not as a business, but as a calling in the spirit of public service.

Page 15 Professionalism CLE General Materials v. 08-05-19 APPENDIX E

SPECIFIC ASPIRATIONAL IDEALS

As to clients, I will aspire:

(a) To expeditious and economical achievement of all client objectives.

(b) To fully informed client decision-making. As a professional, I should: (1) Counsel clients about all forms of dispute resolution; (2) Counsel clients about the value of cooperation as a means towards the productive resolution of disputes; (3) Maintain the sympathetic detachment that permits objective and independent advice to clients; (4) Communicate promptly and clearly with clients; and, (5) Reach clear agreements with clients concerning the nature of the representation.

(c) To fair and equitable fee agreements. As a professional, I should: (1) Discuss alternative methods of charging fees with all clients; (2) Offer fee arrangements that reflect the true value of the services rendered; (3) Reach agreements with clients as early in the relationship as possible; (4) Determine the amount of fees by consideration of many factors and not just time spent by the attorney; (5) Provide written agreements as to all fee arrangements; and, (6) Resolve all fee disputes through the arbitration methods provided by the State Bar of Georgia.

(d) To comply with the obligations of confidentiality and the avoidance of conflicting loyalties in a manner designed to achieve the fidelity to clients that is the purpose of these obligations.

As to opposing parties and their counsel, I will aspire:

(a) To cooperate with opposing counsel in a manner consistent with the competent representation of all parties. As a professional, I should: (1) Notify opposing counsel in a timely fashion of any cancelled appearance;

Page 16 Professionalism CLE General Materials v. 08-05-19

APPENDIX A APPENDIX E

(2) Grant reasonable requests for extensions or scheduling changes; and, (3) Consult with opposing counsel in the scheduling of appearances, meetings, and depositions.

(b) To treat opposing counsel in a manner consistent with his or her professional obligations and consistent with the dignity of the search for justice. As a professional, I should: (1) Not serve motions or pleadings in such a manner or at such a time as to preclude opportunity for a competent response; (2) Be courteous and civil in all communications; (3) Respond promptly to all requests by opposing counsel; (4) Avoid rudeness and other acts of disrespect in all meetings including depositions and negotiations; (5) Prepare documents that accurately reflect the agreement of all parties; and, (6) Clearly identify all changes made in documents submitted by opposing counsel for review.

As to the courts, other tribunals, and to those who assist them, I will aspire:

(a) To represent my clients in a manner consistent with the proper functioning of a fair, efficient, and humane system of justice. As a professional, I should: (1) Avoid non-essential litigation and non-essential pleading in litigation; (2) Explore the possibilities of settlement of all litigated matters; (3) Seek non-coerced agreement between the parties on procedural and discovery matters; (4) Avoid all delays not dictated by a competent presentation of a client’s claims; (5) Prevent misuses of court time by verifying the availability of key participants for scheduled appearances before the court and by being punctual; and, (6) Advise clients about the obligations of civility, courtesy, fairness, cooperation, and other proper behavior expected of those who use our systems of justice.

Page 17 Professionalism CLE General Materials v. 08-05-19 APPENDIX E

(b) To model for others the respect due to our courts. As a professional I should: (1) Act with complete honesty; (2) Know court rules and procedures; (3) Give appropriate deference to court rulings; (4) Avoid undue familiarity with members of the judiciary; (5) Avoid unfounded, unsubstantiated, or unjustified public criticism of members of the judiciary; (6) Show respect by attire and demeanor; (7) Assist the judiciary in determining the applicable law; and, (8) Seek to understand the judiciary’s obligations of informed and impartial decision-making.

As to my colleagues in the practice of law, I will aspire:

(a) To recognize and to develop our interdependence;

(b) To respect the needs of others, especially the need to develop as a whole person; and,

As to our profession, I will aspire:

(a) To improve the practice of law. As a professional, I should: (1) Assist in continuing legal education efforts; (2) Assist in organized bar activities; and, (3) Assist law schools in the education of our future lawyers.

(b) To protect the public from incompetent or other wrongful lawyering. As a professional, I should: (1) Assist in bar admissions activities; (2) Report violations of ethical regulations by fellow lawyers; and, (3) Assist in the enforcement of the legal and ethical standards imposed upon all lawyers.

Page 18 Professionalism CLE General Materials v. 08-05-19

APPENDIX A APPENDIX E

As to the public and our systems of justice, I will aspire:

(a) To counsel clients about the moral and social consequences of their conduct.

(b) To consider the effect of my conduct on the image of our systems of justice including the social effect of advertising methods.

As a professional, I should ensure that any advertisement of my services: (1) is consistent with the dignity of the justice system and a learned profession; (2) provides a beneficial service to the public by providing accurate information about the availability of legal services; (3) educates the public about the law and legal system; (4) provides completely honest and straightforward information about my qualifications, fees, and costs; and, (5) does not imply that clients’ legal needs can be met only through aggressive tactics.

(d) To support organizations that provide pro bono representation to indigent clients.

(e) To improve our laws and legal system by, for example:

(1) Serving as a public official; (2) Assisting in the education of the public concerning our laws and legal system; (3) Commenting publicly upon our laws; and, (4) Using other appropriate methods of effecting positive change in our laws and legal system.

Page 19 Professionalism CLE General Materials v. 08-05-19 APPENDIX F

SELECT PROFESSIONALISM PAGE ARTICLES GBJ | Professionalism Page

Honoring Georgia’s Lawyers

I sincerely hope the Commission on Professionalism’s work will honor Georgia’s lawyers for what they do each day and will help each lawyer to become consummate professionals while they do the tireless and often thankless work of representing clients. BY KARLISE Y. GRIER

In June of 2018, I was shaken to the core when I learned of the death of attorney Antonio Mari. I did not personally know Mari, a family law attorney who was murdered by a client’s ex-husband. I had, however, as a former family law attorney of almost 18 years, personally experienced the dynamics that caused his death: enmity, anger, retribution and a myriad of other vitriolic emotions directed at you as a lawyer (by opposing parties or clients) because you are striving to do your job to the best of your ability. I wanted to take a moment in this article to pay tribute to Mari and to honor the thousands of other Georgia lawyers who are just like him, men and women who toil in the trenches every day—putting their clients interests above their own personal well-being—as they strive to provide exemplary service and excellent representation. I also wanted to commend the wonderful professionalism example set by the Bartow County Bar As- sociation, which stepped up in the midst of this horrible tragedy to divide up and take Mari’s cases and to help close down his law practice.1 GETTYIMAGES.COM/DNY59

80 GEORGIA BAR JOURNAL According to the Daily Report, Mari and loyalty. You must represent your Too often, I think our profession fo- was afraid of the pro se opposing party client to the best of your ability, and cuses on the “bad” things for which law- who ultimately killed him.2 Neverthe- yet never lose sight of the fact that you yers may be known. I truly believe most less, Mari fulfilled his legal obligations are an officer of the court with a special lawyers are good, hard working men to his client and obtained a final divorce responsibility for the integrity of the and women who want to do the best job decree for the client less than two hours legal system. You will often find, breth- they can for their clients in return for before his client’s ex-husband shot him ren and sistern, that those professional fair payment for their work. During my to death. This balance of client interests duties do not sit easily with one anoth- stewardship as executive director of the versus personal interests is not always er. You will discover, too, that they get Commission, it is my goal to focus on played out as dramatically as in Mari’s in the way of your other obligations— and cultivate the good and the goodness case, but it is always there. Do you go to your conscience, your God, your in our profession that often happens to your child’s soccer practice or do you family, your partners, your country without notice or comment. I am eager first finish the brief that is due tomor- and all the other perfectly good claims to help us all (myself included) grow to row? Do you take time to go for a walk on your energies and hearts. You will be the best professionals we can be. I sin- or a run or do you take that early morn- be pulled and tugged in a dozen direc- cerely hope the Commission’s work will ing meeting with a client who can’t take tions at once. You must learn to handle honor Georgia’s lawyers for what they time off from their work as an hourly those conflicts.4 do each day and will help each lawyer to employee? Do you tell the pro bono cli- become consummate professionals while ent you are meeting with they have to I hope that, under my stewardship, the they do the tireless and often thankless leave your office and reschedule (know- Chief Justice’s Commission on Profes- work of representing clients. z ing they most likely won’t) because they sionalism will honor Georgia’s lawyers reek of cigarette smoke and you have by ensuring CLE providers offer out- asthma? Do you file a motion to with- standing programming regarding pro- Karlise Y. Grier draw well in advance of trial or do you fessionalism concepts that give lawyers Executive Director take the chance the client will pay you the opportunity to discuss the challenges Chief Justice’s Commission on Professionalism “in installments” as promised, knowing (and sometimes joys) of practicing law. I [email protected] the client really needs a lawyer in this look forward to continuing to recognize custody battle? the amazing community service work of Each day, Georgia lawyers are called lawyers and judges at the Justice Robert Endnotes upon to make choices, large and small, Benham Awards for Community Ser- 1. See R. Robin McDonald, Cartersville that force them to balance their per- vice. I hope that the Commission’s con- Attorney Gunned Down by Client’s sonal well-being against the interests vocations, such as the 2018 Convocation Ex-Husband, Daily Report, June 22, of their clients. Striking the “correct” on Professionalism and the Global Com- 2018, at 1, https://www.law.com/ balance is at the heart of what we call munity, will continue to explore cutting- dailyreportonline/2018/06/21/cartersville- attorney-gunned-down-by-clients-ex- “professionalism.”3 One of the first quotes edge issues in the legal profession. I hope husband/ (last visited June 22, 2018). I came across when I started as executive the Commission’s work will help to em- 2. See Id. director of the Chief Justice’s Commis- bolden lawyers to stand courageously for 3. To learn more about how Georgia defines sion on Professionalism was from Karl the rule of law in our country and to pro- professionalism, see A Lawyer’s Creed and N. Llewellyn, a jurisprudential scholar vide guidance to lawyers on how to do the Aspirational Statement on Professionalism who taught at Yale, Columbia and the so thoughtfully and with integrity. I look at: http://cjcpga.org/lawyers-creed/ (last University of Chicago Law Schools. Prof. forward to the Commission’s continued visited August 10, 2018). Llewellyn cautioned his students: partnership with the State Bar of Geor- 4. Mary Ann Glendon, A Nation Under gia Committee on Professionalism and Lawyers 17 (1994). The lawyer is a [person] of many with Georgia’s law schools as we strive conflicts. More than anyone else in our to introduce law students to profession- society, he [or she] must contend with alism concepts during the Law School competing claims on his [or her] time Orientations on Professionalism.

2019 JUNE 81 GBJ | Professionalism Page

The Importance of Lawyers Abandoning the Shame and Stigma of Mental Illness

One tenet of the Chief Justice’s Commission on Professionalism’s “A Lawyer’s Creed” is “To my colleagues in the practice of law, I o! er concern for your welfare.” If you are aware of a colleague that may be experiencing di" culties, ask questions and o! er to help them contact the Lawyer Assistance Program for help. BY MICHELLE BARCLAY

January is the month when Robin His practice expanded to working with Nash, my dear friend and lawyer col- institutionalized developmentally de- league, godfather to my child, officiate for layed clients, special education cases, my brother’s marriage and former direc- wills and estate litigation and repre- tor of the Barton Center at Emory Uni- senting banks in the hugely interesting versity, left the world. Positive reminders area of commercial real estate closings. of him are all around, including a child law and policy fellowship in his name, but In 1995, he was appointed as a juve- January is a tough month. nile court judge in DeKalb County. He Robin’s suicide, 12 years ago, was a resigned from the bench effective De- shock to me. As time passed and I heard cember 2005. He sold most of his per- stories about Robin from others who sonal belongings, paid off his remain- knew him and I learned more about sui- ing debts and moved overseas to think cide, I can see in hindsight the risk loom- and travel. After thinking and travel- ing for him. Today, I think his death was ing for three months, he returned to possibly preventable. the active world of Decatur. He was In 2006, Robin wrote this essay about appointed director of the Barton Clinic himself for Emory’s website effective April 15, 2006.”

“Robin Nash, age 53, drew his first When Robin came back from travel- breath, attended college and law ing, he told his friends—“I can be more school and now works at Emory Uni- impactful here.”—which was and is true. versity. He loves to travel to places Robin’s impact continues today through like Southeast Asia and the Middle the work of young lawyers serving as East but he always returns home to Robin Nash Fellows and through the Emory and his hometown of Decatur. lives of the thousands of mothers, fathers, Robin majored in Economics and daughters and sons he touched, helping Mathematics. He began his law prac- people traumatized by child abuse, ne- tice in 1980 in Decatur surviving most- glect, addiction and crime. ly on court appointed cases for mental- He was impactful in part because he

ly ill patients in commitment hearings. had so much empathy for others. He was GETTYIMAGES.COM/BAONA

78 GEORGIA BAR JOURNAL well regarded and well loved. He was a person has considered killing themselves person you could count on who did ex- can open the door to intervention and traordinary things for others—helping a saving a life. student obtain a TPO in the middle of the Before becoming a lawyer, I worked night to stop a stalker; quietly helping a as a nurse in a variety of settings at both refugee family get stable and connected Grady and Emory hospitals. I saw at- to services; and of course, his consistent tempted suicides. I witnessed a number care of his friend Vinny. Vinny was a of those people who were grateful they severely disabled adult Robin befriended were not successful. I saw safety plans and with whom he had a deep connec- work when enough people knew about tion. Because he was a lawyer, Robin the risks. Sometimes, medicines were was able to help Vinny obtain full access changed, new treatments tried and I saw www.AtlantaPsychologist.org to available medical services without people get better. being institutionalized. I feel like with my background I could Midtown Atlanta So why did Robin leave? He lost his have and should have probed Robin more. battle with mental illness. He masked But at the time, I thought I was respecting Michelle and Andy Barclay are so grateful it well and as a private person, did not his privacy by not asking too many ques- to the Emory University community for the share his struggles. His friends had some tions. Today I know that a person can be grace and care that surrounded everyone, es- insight into his struggles but it was al- fine one day and then chemicals in their pecially the students, when Robin died. ways complicated. While a judge, Robin brain can wildly change within 24 hours, was known for saying things like, “I am and they’re no longer ok. I learned that a manager of misery” or “I manage the not sleeping can be deadly. I have also Michelle Barclay, J.D., has more competition not to serve the most vul- learned that just talking about it can help than 20 years experience working nerable families and children.” But he a person cope. in Georgia’s judicial branch. She is also said, “Talk like this is just dark hu- A book that has helped me is called currently the division director of mor which is a useful coping mechanism “Stay: A History of Suicide and the Phi- Communications, Children, Families, for an emotionally draining job.” losophies Against It,” by Jennifer Michael and the Courts within the Judicial I know today that a low serotonin Hecht.3 If I had a second chance, I would Council of Georgia’s Administrative level in his body was dangerous for his try to use some of the arguments in that Office of the Courts. Before becoming depression and that the medications he book, such as: a lawyer, she was a nurse for 10 years, specializing in ICU and trauma care. took waxed and waned in effectiveness. Her degrees include a Juris Doctor I also now know that he had not slept None of us can truly know what we from Emory University School of Law, well for days before he acted. We’d had mean to other people, and none of a Bachelor of Science in Nursing from a work meeting the day before he died us can know what our future self will Emory University and a Bachelor where he made a long ‘to do’ list. Who experience. History and philosophy of Interdisciplinary Studies from makes a long ‘to do’ list when one is con- ask us to remember these mysteries, Georgia State University. She is also templating suicide? Plenty of people, I to look around at friends, family, hu- co-founder along with her husband have learned. I saw that ‘to do’ list on his manity, at the surprises life brings—the Andrew Barclay of the Barton Child table when I was in his apartment after endless possibilities that living offers— Law and Policy Center at Emory University School of Law. She can be his death. and to persevere. reached at 404-657-9219 or michelle. What could have helped? Abandoning [email protected]. the shame and stigma of mental illness Of course, first I would have just is a good start. I have been heartened by asked about his mental health with love the social movement campaign, Time to and listened. I still wish for that chance Endnotes Change,1 designed to help people speak to try. 1. https://twitter.com/TimetoChange. up about mental illness. A safety plan 2. See http://www.bbc.com/news/ shared with a reasonably wide network of Afterword by Chief Justice’s Commission on health-43143889 (last viewed April 2, 2018). people can also help. Antidepressant med- Professionalism Executive Director Karlise 3. See, e.g., https://www.amazon.com/Stay- ications can help. Recent studies about Yvette Grier: One tenet of the Chief Justice’s History-Suicide-Philosophies-Against/ dp/0300186088 (last viewed April 2, 2018) . anti-depression drugs “puts to bed the Commission on Professionalism’s “A Lawyer’s 4 4. https://www.gabar.org/aboutthebar/ controversy on anti-depressants, clearly Creed” is “To my colleagues in the practice of lawrelatedorganizations/cjcp/lawyers- showing that these drugs do work in lift- law, I ofer concern for your welfare.” If you creed.cfm. ing mood and helping most people with are aware of a colleague that may be expe- 5. https://www.gabar.org/ depression.”2 Science is advancing better riencing diiculties, ask questions and ofer committeesprogramssections/programs/ treatments at a rapid pace. And some ex- to help them contact the Lawyer Assistance lap/index.cfm . perts advise that directly asking whether a Program5 for help. 2018 JUNE 79 GBJ | Professionalism Page

“There is no doubt that Marley was dead. Promoting a This must be distinctly understood, or nothing wonderful can come of the story I am going to relate.”—Excerpt from: “A Christmas Professional Culture Carol” by Charles Dickens.

of Respect and Safety To borrow an idea from an iconic writer: There is no doubt that #MeToo #MeToo testimonials are real. This must be distinctly understood, or nothing wonderful can come of the ideas I am In keeping with our professionalism aspirations, I challenge you to take going to share. a proactive, preventative approach to sexual harassment and to start the I start with this statement because discussions . . . about things we as lawyers can do to promote a professional when I co-presented on behalf of culture of respect and safety to prevent #MeToo. the Chief Justice’s Commission on Professionalism at a two-hour seminar BY KARLISE Y. GRIER on Ethics, Professionalism and Sexual GETTYIMAGES.COM/KAMELEON007

86 GEORGIA BAR JOURNAL Harassment at the University of Georgia prosecute a lawyer for alleged lawyer- (UGA) in March 2018, it was clear to on-lawyer sexual harassment absent me that men and women, young and a misdemeanor or felony criminal old, question some of the testimonials conviction, involving rape, sexual assault, of sexual harassment that have recently battery, moral turpitude and other similar come to light. For the purposes of starting criminal behavior.6 Other circumstances a discussion about preventing future in which laws or ethics rules may not #MeToo incidents in the Georgia legal apply include sexual harassment of profession, I ask you to assume, arguendo, lawyers by clients or sexual harassment that sexual harassment does occur and to that occurs during professional events, further assume,!arguendo, that it occurs in such as bar association meetings or Georgia among lawyers and judges.1 Our continuing education seminars.7 attention and discussion must therefore Former Georgia Chief Justice Harold turn to “How do we prevent it?” We won’t Clarke described the distinction between expend needless energy on “Is he telling ethics and professionalism as . . . the the truth?” We won’t lament, “Why did idea that ethics is a minimum standard she wait so long to come forward?” which is required of all lawyers while First, I want to explain why I believe professionalism is a higher standard that sexual harassment in the legal expected of all lawyers. Therefore, in profession is, in part, a professionalism the absence of laws and ethical rules to issue. As Georgia lawyers, we have A guide our behavior, professionalism Lawyer’s Creed and an Aspirational aspirations call on Georgia lawyers to Statement on Professionalism that consider and implement a professional was approved by the Supreme Court culture of respect and safety that ensures of Georgia in 1990.2 One tenet of A zero tolerance for behavior that gives rise Lawyer’s Creed states: “To my colleagues to #MeToo testimonials.8 in the practice of law, I offer concern for The American Bar Association your welfare. I will strive to make our Commission on Women in the Profession association a professional friendship.” recently published a book titled “Zero Frankly, it is only a concern for the Tolerance: Best Practices for Combating welfare of others that in many cases will Sex-Based Harassment in the Legal prevent sexual harassment in the legal Profession.” The book provides some profession because of “gaps” in the law and in our ethics rules. For example, under federal law, sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees.3 According to a 2016 article on lawyer demographics, three Former Georgia Chief Justice Harold Clarke out of four lawyers are working in a law described the distinction between ethics and firm that has two to five lawyers working for it.4 In Georgia, there are no state laws professionalism as . . . the idea that ethics similar to Title VII’s statutory scheme. is a minimum standard which is required of There is currently nothing in Georgia’s Rules of Professional Conduct that all lawyers while professionalism is a higher explicitly prohibits sexual harassment of standard expected of all lawyers. a lawyer by another lawyer.5 Moreover, it is my understanding that generally the Office of the General Counsel will not

2018 AUGUST 87 practical advice for legal employers to to behave. Generally, our group agreed Endnotes address or to prevent sexual harassment.9 that women and men enjoy appropriate 1. See, e.g., In the Matter of James L. Some of the suggestions included: compliments on their new haircut or Brooks, S94Y1159 (Ga. 1994) and The establishing easy and inexpensive ways to color, a nice dress or tie, or a general “You Washington Post, Wet T-Shirt Lawyers detect sexual harassment, such as asking look nice today.” Admittedly, however, an (December 23, 1983), The Washington about it in anonymous employee surveys employment lawyer might say that even Post, https://www.washingtonpost. com/archive/politics/1983/12/23/ and/or exit interviews; not waiting for this is not considered best practice. wet-t-shirt-lawyers/c46ac2e6-2827- formal complaints before responding to Many of the seminar participants 49a7-9041-f00ac5f21753/?utm_term=. known misconduct; and discussing the agreed on some practical tips, however. bf1ec57a8b95 (Last visited May 31, 10 existence of sexual harassment openly. Think twice about running your fingers 2018). For a more recent articles The federal judiciary’s working group on through someone’s hair or kissing a on sexual harassment in the legal sexual harassment has many reforms that person on the check. Learn from others’ profession, see generally, Vanessa Romo, are currently underway, such as conducting past mistakes and do not intentionally pat Federal Judge Retires in the Walk of Sexual a session on sexual harassment during or “flick” someone on the buttocks even if Harassment Allegations (December 18, the ethics training for newly appointed you mean it as a joke and don’t intend for 2017), NPR, The Two-Way Breaking judges; reviewing the confidentiality it to be offensive or inappropriate.14 News, https://www.npr.org/sections/ provisions in several employee/law In our professional friendships, we thetwo-way/2017/12/18/571677955/ federal-judge-retires-in-the-wake-of- clerk handbooks to clarify that nothing want to leave room for the true fairy- sexual-harassment-allegations (Last in the provisions prevents the filing tale happily ever after endings, like that visited May 31, 2018) and The Young of a complaint; and clarifying the data of Barack and Michelle, who met at work Lawyer Editorial Board of The American that the judiciary collects about judicial when she was an associate at a law firm Lawyer, YL Board: This is What Sexual misconduct complaints to add a category and he was a summer associate at the same Harassment in the Legal Industry Looks for any complaints filed relating to sexual firm.15 We also need to ensure that our Like (February 28, 2018), The American misconduct.11 For those planning CLE or attempts to prevent sexual harassment do Lawyer, Commentary, https://www. bar events, the American Bar Association not become excuses for failing to mentor law.com/americanlawyer/2018/02/28/ Commission on Women in the Profession attorneys of the opposite sex. yl-board-this-is-what-sexual- cautions lawyers to “be extremely careful Finally, just because certain behaviors harassment-in-the-legal-industry-looks- about excessive use of alcohol in work/ may have been tolerated when you were like/ (Last visited May 31, 2018). 12 2. See State Bar of Georgia, Lawyer’s social settings.” a young associate, law clerk, etc., does not Creed and Aspirational Statement on During our continuing legal education mean the behavior is tolerated or accepted Professionalism, https://www.gabar.org/ seminar at UGA, one of the presenters, today. Professionalism demands that we aboutthebar/lawrelatedorganizations/ Erica Mason, who serves as president of constantly consider and re-evaluate the cjcp/lawyers-creed.cfm (Last visited May the Hispanic National Bar Association rules that should govern our behavior in 31, 2018). (HNBA), shared that HNBA has developed the absence of legal or ethical mandates. 3. U.S. Equal Employment Opportunity a “HNBA Conference Code of Conduct” Our small group at UGA did not always Commission, About EEOC, Publications, that states in part: “The HNBA is committed agree on what was inappropriate conduct Facts About Sexual Harassment, https:// to providing a friendly, safe, supportive or on the best way to handle a situation. We www.eeoc.gov/eeoc/publications/fs-sex. and harassment-free environment for all did all agree that the conversation on sexual cfm (Last visited May 31, 2018). 30 Mind-Boggling conference attendees and participants . harassment was valuable and necessary. 4. Brandon Gaille, Lawyer Demographics, BrandonGaille. . . . Anyone violating these rules may be So in keeping with our professionalism com, https://brandongaille.com/30- sanctioned or expelled from the conference aspirations, I challenge you to take mind-boggling-lawyer-demographics/, without a registration refund, at the a proactive, preventative approach February 8, 2016 (viewed on April 26, 13 discretion of HNBA Leadership.” Mason to sexual harassment and to start the 2018). See also American Bar Association also shared that the HNBA has signs at all discussions in your law firm, corporate 2013 Lawyer Demographics Data, of its conferences that reiterate the policy legal department, court system and/ https://www.americanbar.org/content/ and that provide clear instructions on how or bar association about things we dam/aba/migrated/marketresearch/ anyone who has been subjected to the as lawyers can do to promote a profes- PublicDocuments/lawyer_ harassment may report it. In short, you sional culture of respect and safety to demographics_2013.authcheckdam.pdf don’t have to track down a procedure or prevent #MeToo. z (viewed on April 26, 2018). figure out what do to if you feel you have 5. The Georgia Code of Judicial Conduct differs from the Georgia Rules of been harassed. Karlise Y. Grier Professional Conduct in that Rule 2.3 Overall, some of the takeaways from (b) of the Code of Judicial Conduct our sexual harassment seminar at UGA Executive Director specifically prohibits discrimination provide a good starting point for discussion Chief Justice’s Commission on Professionalism by a judge in the performance of his about how we as lawyers should aspire [email protected] or her judicial duties. See https://

88 GEORGIA BAR JOURNAL GBJ | Professionalism Page

Convocation on Professionalism and the Global Community

The purpose of the Convocation was to model professionalism while discussing a high-conﬂict issue and to demonstrate the ways in which attorneys have implemented “A Lawyer’s Creed” and the “Aspirational Statement” in their work with the global community. BY LESLIE E. STEWART

On Nov. 30, 2018, the Chief Justice’s Commission on Professionalism (the Commission) held its Convocation on Professionalism (the Convocation) at Atlanta’s Porsche Experience Center. This year, the Convocation theme was Professionalism and the Global Commu- nity, which focused on the professionalism values of competence, civility, character, and commitment to the rule of law and the public good. The purpose of the Convocation was to model professionalism while discussing a high-conflict issue and to demonstrate the ways in which attorneys have implemented “A Lawyer’s Creed” and the “Aspirational Statement” in their work with the global community. The event, which was sponsored by Squire Patton Boggs, Miller & Martin PLLC and Alston & Bird LLP, was well- received by the attendees. The speakers included an array of notables and dig- nitaries with ties to Georgia, beginning with Supreme Court of Georgia Chief Justice Harold D. Melton, who urged the attendees to demonstrate professionalism through service to their community,

PHOTO BY DON MORGAN PHOTOGRAPHY a key element of “A Lawyer’s Creed” and Supreme Court of Georgia Chief Justice Harold D. Melton the “Aspirational Statement.”

64 GEORGIA BAR JOURNAL The first panel, “Overview of the The Convocation’s keynote speaker, quent burnout on the part of those work- Global Community in Georgia,” was fa- Randolph “Randy” Evans, U.S. Ambassador ing full time in this area. cilitated by Javier Díaz de León, Consul to Luxembourg, described his humble The final panel of the day, “Ethics, Reg- General of Mexico. Two judges, Hon. beginnings in Georgia and how the values ulatory and Procedural Issues in Interna- Meng H. Lim, Tallapoosa Circuit Su- instilled in him by his family continue to tional Practice,” was facilitated by Shelby perior Court, and Hon. Dax E. Lopez, influence the way in which he deals with R. Grubbs, from Miller & Martin. Along DeKalb County State Court, spoke mov- his professional duties—of treating each with Paula Frederick, general counsel of ingly about how their judicial careers person with respect and dignity. the State Bar of Georgia and Ben Greer have been influenced by their experi- After lunch, the next panel, “What Jr., retired partner at Alston & Bird, the ences of straddling two cultures. Abby Lawyers Need to Know about Labor presenters discussed the competing ethi- Turano, deputy commissioner for Inter- Trafficking,” focused on the darker side cal standards that attorneys must negotiate national Relations, Georgia Department of doing business in the global commu- in international work and the necessity of of Economic Development, explained nity. The moderator, Hon. Richard Sto- adhering to Georgia standards regardless how and why Georgia welcomes foreign ry, judge, U.S. District Court, Northern of cultural or ethical differences. businesses to Georgia. District of Georgia, oversaw a lively The Convocation offered a marvel- The second panel, “A View from Gen- discussion between Norm Brothers, ous opportunity for in-person attendees eral Counsels of Companies Doing In- senior vice president and general coun- to learn about how the principles of pro- ternational Business,” was moderated by sel for UPS; Susan Coppedge, former fessionalism impact our legal work in the Shelby S. Guilbert Jr. from King & Spald- U.S. Ambassador-at-Large, the Office global community. Commission member ing. The panelists, including Angus M. to Monitor and Combat Trafficking in Hon. Carla McMillian, Court of Appeals Haig, senior vice president and general Persons, and senior advisor to the Sec- of Georgia, tweeted throughout the day counsel for Cox Automotive, and Ricardo retary of State (Ret.); and Jay Doyle of at @cjcpga in English and Spanish with Nuñez, senior vice president and general Lewis Brisbois Bisgaard & Smith LLP. the help of Commission member Maria counsel for Schweitzer-Mauduit Interna- This panel focused on the way in which F. Mackay, a Georgia certified interpreter tional, described their challenges and how government and private business have who provided Spanish interpretations of core values affect their roles as interna- collaborated to combat the scourge of the proceedings for McMillian to tweet. tional general counsels. Audrey Boone human trafficking. Commission advisor Jennifer Davis and Tillman, executive vice president and The attendees were then treated to a Commission liaison Dee Dee Worley pro- general counsel for AFLAC, portrayed presentation on “An Overview of Profes- vided invaluable “behind the scenes” staff the challenges and successes of being a sionalism in Immigration Cases” by James assistance for the event throughout the day. woman of color supervising attorneys in McHenry, director of the Executive Office The Commission staff was grateful for the Japan. Joseph Folz, vice president, general for Immigration Review at the Depart- support of the Commission members and counsel and secretary for Porsche Cars ment of Justice, who unpacked the com- other Convocation contributors and plan- North America, shared his experiences plex hearing procedures surrounding this ners who provided invaluable assistance working for a German-based company. timely topic. for this immensely successful Convocation. The third panel, “The Business Pros The second afternoon panel, “Emerg- More information about the Convocation and Cons of Developing a Formal Work- ing Issues and Pro Bono Opportunities and other upcoming Commission events, ing Relationship with an International for Attorneys as a Result of Changes in including the 20th Annual Justice Robert Lawyer or Law Firm,” was facilitated by Immigration Laws,” was moderated by Benham Awards for Community Service, Petrina A. McDaniel from Squire Patton Phil Sandick from Alston & Bird. The is available on the Commission’s website Boggs. Tricia “CK” Hoffler, principal at panelists were Audra Dial from Kilpat- at www.cjcpga.org. z The CK Hoffler Firm, regaled the attend- rick Townsend & Stockton, Jorge Andres ees with her vivid descriptions of being Gavilanes from Kuck Baxter, Monica threatened by automatic gunfire as a re- Khant, executive director of the Geor- Leslie E. Stewart is a child sult of a cultural miscalculation while she gia Asylum and Immigration Network, welfare attorney and has represented an un-named government. and Willis Linton Miller from The Latin served as a Supreme Court Therese Pritchard, from Bryan Cave and American Association. During this panel, Fellow on Georgia’s Cold Case project since March 2009 Robert Tritt, Dentons US LLP, discussed the speakers touched on the need for pro and is also a contractor with the Chief the necessity of retaining competent local bono assistance on these important cases Justice’s Commission on Professionalism. counsel in international cases. due to an upsurge in work and the conse-

2019 FEBRUARY 65 FEDERAL APPEALS

<< Back to Table of Contents

Federal Appeals

• 11th Circuit Rules http://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/Rules_ Bookmark_AUG19.pdf

• 11th Circuit Checklists http://www.ca11.uscourts.gov/general-practice-forms-and-checklists

• Opinions in Yarbrough v. Decatur Housing Authority

o Panel decision - Yarbrough v. Decatur Housing Authority, 905 F.3d 1222 (11th Cir. 2018).

o En banc decision - Yarbrough v. Decatur Housing Authority, 931 F.3d 1322 (11th Cir. 2019).

United States Court of Appeals Eleventh Circuit 56 Forsyth Street, NW Atlanta, Georgia 30303

David J. Smith www.ca11.uscourts.gov Amy C. Nerenberg Clerk of Court Chief Deputy Clerk

August 1, 2019

MEMORANDUM

Enclosed are revisions to the Eleventh Circuit Rules and Internal Operating Procedures (IOPs) that took effect on August 1, 2019. The revisions:

• Delete from 11th Cir. R. 10-1 Ordering the Transcript - Duties of Appellant and Appellee the paragraph about ordering transcripts under the Criminal Justice Act.

• Add to 11th Cir. R. 27-1(a) Number of Copies and Form of Motion a new subsection (11) stating that a motion must comply with the requirements for references to the record found at 11th Cir. R. 28-5.

• Amend 11th Cir. R. 28-5 References to the Record to clarify that the page number in a transcript is the page number that appears in the header generated by the district court’s electronic filing system.

• Amend FRAP 35, IOP 5 Requesting a Poll on Court’s Own Motion to reflect that a judge’s notice to the clerk to withhold the mandate operates as direction to enter an order withholding the mandate.

• Amend subsection (d) of 11th Cir. R. 41-1 Stay or Recall of Mandate to make it consistent with 11th Cir. R. 35-10.

• Add the word “the” to 11th Cir. R. 41-2 Expediting Issuance of Mandate.

• Amend 11th Cir. R. 46-1 Bar Admission and Fees to state that the attorney admission fee is paid “upon admission,” and to require all attorneys to apply for admission and submit attorney admission fees through PACER.

• Replace the phrase “appointed to represent a party in forma pauperis” with “any attorney appointed by this court” in 11th Cir. R. 46-3 Admission for Particular Proceeding.

A List of Replacement Pages on the following page shows the pages that have changed since the last revision. We welcome comments and suggestions concerning our local rules and IOPs.

David J. Smith LIST OF REPLACEMENT PAGES

Replacement Pages to the Rules of the U.S. Court of Appeals for the Eleventh Circuit

Discard Insert

Cover Page (January 2019) Cover Page (August 2019)

Table of Contents: 13 and 14 Table of Contents: 13 and 14

49 and 50 49 and 50

97 through 104 97 through 104

107 and 108 107 and 108

147 and 148 147 and 148

161 and 162 161 and 162

171 and 172 171 and 172

Index: 197 and 198 Index: 197 and 198

Index: 201 through 206 Index: 201 through 206

2 UNITED STATES

COURT OF APPEALS

for the

ELEVENTH CIRCUIT

! FEDERAL RULES OF APPELLATE PROCEDURE

! ELEVENTH CIRCUIT RULES

! INTERNAL OPERATING PROCEDURES

August 2019 This page left blank intentionally. RULES OF THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT (cite as 11th Cir. R.)

Both the court of appeals, by action of a majority of the circuit judges in regular service (see generally 28 U.S.C. chapters 3, 13, 15, 21, 47, 57, and Federal Rules of Appellate Procedure 47), and the judicial council of the circuit (membership of which has been fixed pursuant to statute to include nine active circuit judges, one active judge from each of the nine district courts, and the circuit chief judge) have certain responsibilities for the effective and expeditious administration of justice within the circuit. Contained herein are rules relevant to the court of appeals adopted by the court and by action of the judicial council.

The United States Court of Appeals for the Eleventh Circuit has adopted these rules pursuant to Federal Rules of Appellate Procedure (FRAP) 47. They supplement the provisions of law and FRAP. To properly proceed in this court, counsel should read and follow FRAP, these rules, and the court’s Internal Operating Procedures (IOP) which describe the internal workings of the clerk’s office and the court. Although there are necessary exceptions, an effort has been made by the court not to duplicate in the Circuit Rules or the IOPs either FRAP or each other. Circuit rules not inconsistent with FRAP govern. The word “appeal” as used in these rules and IOPs includes, where appropriate, any proceeding in this court, including petitions for review and applications for enforcement of agency orders, and writs of mandamus and prohibition, and other extraordinary writs.

Available addenda as adopted by the court are:

ONE: Rules for Conduct of and Representation and Participation at the Eleventh Circuit Judicial Conference

TWO: Procedures in Proceedings for Review of Orders of the Federal Energy Regulatory Commission

FIVE: Non-Criminal Justice Act Counsel Appointments

SEVEN: Regulations of the United States Court of Appeals for the Eleventh Circuit for the Selection and Appointment or the Reappointment of Federal Public Defenders

EIGHT: Rules Governing Attorney Discipline in the U.S. Court of Appeals for the Eleventh Circuit

NINE: Regulations of the U.S. Court of Appeals for the Eleventh Circuit for the Selection and Appointment or the Reappointment of Bankruptcy Administrators

The judicial council of the Eleventh Circuit pursuant to its statutory authority has appointed a circuit executive (11th Cir. R. 47-2), adopted rules for the conduct of complaint

Rev.: 12/13 5 Introduction proceedings under 28 U.S.C. §§ 351-364 (Addendum Three), adopted a plan and guidelines under the Criminal Justice Act (11th Cir. R. 24-1 and Addendum Four), and adopted rules and regulations for selection and appointment of bankruptcy judges (Addendum Six).

Available addenda as adopted by the judicial council are:

THREE: Rules for Judicial-Conduct and Judicial-Disability Proceedings with Eleventh Circuit Judicial Conduct and Disability Rules

FOUR: Eleventh Circuit Plan under the Criminal Justice Act and Guidelines for Counsel Supplementing the Eleventh Circuit Plan under the Criminal Justice Act

SIX: Rules and Regulations of the Judicial Council and the United States Court of Appeals for the Eleventh Circuit for the Selection of Nominees, the Appointment of Bankruptcy Judges, and the Reappointment of Bankruptcy Judges

The rules, internal operating procedures, and addenda are available on the Internet at www.ca11.uscourts.gov.

Rev.: 12/13 6 Introduction FEDERAL RULES OF APPELLATE PROCEDURE with ELEVENTH CIRCUIT RULES and INTERNAL OPERATING PROCEDURES

Table of Contents

Page

TITLE I. APPLICABILITY OF RULES

FRAP 1. SCOPE OF RULES; DEFINITION; TITLE 27 1(a) Scope of Rules 27 1(b) Definition 27 1(c) Title 27

FRAP 2. SUSPENSION OF RULES 28

11th Cir. R. 2-1 Court Action 28

TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

FRAP 3. APPEAL AS OF RIGHT–HOW TAKEN 29 3(a) Filing the Notice of Appeal 29 3(b) Joint or Consolidated Appeals 29 3(c) Contents of the Notice of Appeal 29 3(d) Serving the Notice of Appeal 30 3(e) Payment of Fees 30

11th Cir. R. 3-1 Failure to Object to a Magistrate Judge’s Findings or Recommendations 30

IOP 1. Payment of Fees 31 IOP 2. Opportunity to Seek Extension of Time to File Objections 31 IOP 3. Notice to Accompany Magistrate Judge’s Findings or Recommendations 31

FRAP 4. APPEAL AS OF RIGHT–WHEN TAKEN 32 4(a) Appeal in a Civil Case 32 4(b) Appeal in a Criminal Case 34 4(c) Appeal by an Inmate Confined in an Institution 36 4(d) Mistaken Filing in the Court of Appeals 36

IOP Timely Filing Required 37

Rev.: 12/14 7 Table of Contents Page

FRAP 5. APPEAL BY PERMISSION 38 5(a) Petition for Permission to Appeal 38 5(b) Contents of the Petition; Answer or Cross-Petition; Oral Argument 38 5(c) Form of Papers; Number of Copies; Length Limits 39 5(d) Grant of Permission; Fees; Cost Bond; Filing the Record 39

11th Cir. R. 5-1 Certificate Required 39

IOP 1. Appeals by Permission 39 IOP 2. Pro Hac Vice Admission 40

FRAP 6. APPEAL IN A BANKRUPTCY CASE 41 6(a) Appeal from a Judgment, Order, or Decree of a District Court Exercising Original Jurisdiction in a Bankruptcy Case 41 6(b) Appeal from a Judgment, Order, or Decree of a District Court or Bankruptcy Appellate Panel Exercising Appellate Jurisdiction in a Bankruptcy Case 41 6(c) Direct Review by Permission Under 28 U.S.C. § 158(d)(2) 43

IOP Direct Appeal 43

FRAP 7. BOND FOR COSTS ON APPEAL IN A CIVIL CASE 44

FRAP 8. STAY OR INJUNCTION PENDING APPEAL 45 8(a) Motion for Stay 45 8(b) Proceeding Against a Security Provider 46 8(c) Stay in a Criminal Case 46

11th Cir. R. 8-1 Motions 46 11th Cir. R. 8-2 Motion for Reconsideration 46

IOP Proof of Service Required 46

FRAP 9. RELEASE IN A CRIMINAL CASE 47 9(a) Release Before Judgment of Conviction 47 9(b) Release After Judgment of Conviction 47 9(c) Criteria for Release 47

11th Cir. R. 9-1 Motions 47

IOP Proof of Service Required 47

FRAP 10. THE RECORD ON APPEAL 48 10(a) Composition of the Record on Appeal 48

Rev.: 12/18 8 Table of Contents Page

10(b) The Transcript of Proceedings 48 10(c) Statement of the Evidence When the Proceedings Were Not Recorded or When a Transcript Is Unavailable 49 10(d) Agreed Statement as the Record on Appeal 49 10(e) Correction or Modification of the Record 49

11th Cir. R. 10-1 Ordering the Transcript - Duties of Appellant and Appellee 50

IOP Ordering the Transcript 50

FRAP 11. FORWARDING THE RECORD 51 11(a) Appellant’s Duty 51 11(b) Duties of Reporter and District Clerk 51 11(c) Retaining the Record Temporarily in the District Court for Use in Preparing the Appeal 51 11(d) [Abrogated] 51 11(e) Retaining the Record by Court Order 52 11(f) Retaining Parts of the Record in the District Court by Stipulation of the Parties 52 11(g) Record for a Preliminary Motion in the Court of Appeals 52

11th Cir. R. 11-1 Duties of Court Reporters; Extensions of Time 52 11th Cir. R. 11-2 Certification and Transmission of Record - Duties of District Court Clerk 53 11th Cir. R. 11-3 Preparation and Transmission of Exhibits - Duties of District Court Clerk 53 11th Cir. R. 11-4 Form of Paper Record 54

IOP 1. Duties of Court Reporters; Extensions of Time 54 IOP 2. Preparation of Paper Record; Duties of District Court Clerk 54

FRAP 12. DOCKETING THE APPEAL; FILING A REPRESENTATION STATEMENT; FILING THE RECORD 56 12(a) Docketing the Appeal 56 12(b) Filing a Representation Statement 56 12(c) Filing the Record, Partial Record, or Certificate 56

11th Cir. R. 12-1 Filing the Record 56 11th Cir. R. 12-2 Clerk’s Consolidation of Appeals 56

IOP 1. Docketing an Appeal 56 IOP 2. Appearance of Counsel Form 57

Rev.: 8/18 9 Table of Contents Page

FRAP 12.1. REMAND AFTER AN INDICATIVE RULING BY THE DISTRICT COURT ON A MOTION FOR RELIEF THAT IS BARRED BY A PENDING APPEAL 58 12.1(a) Notice to the Court of Appeals 58 12.1(b) Remand After an Indicative Ruling 58

11th Cir. R. 12.1-1 Indicative Ruling by the District Court 58

TITLE III. APPEALS FROM THE UNITED STATES TAX COURT

FRAP 13. APPEALS FROM THE TAX COURT 60 13(a) Appeal as of Right 60 13(b) Appeal by Permission 60

IOP Payment of Fees 61

FRAP 14. APPLICABILITY OF OTHER RULES TO APPEALS FROM THE TAX COURT 62

11th Cir. R. 14-1 Applicability of Other Circuit Rules to Appeals from the Tax Court 62

TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE AGENCY, BOARD, COMMISSION, OR OFFICER

FRAP 15. REVIEW OR ENFORCEMENT OF AN AGENCY ORDER –HOW OBTAINED; INTERVENTION 63 15(a) Petition for Review; Joint Petition 63 15(b) Application or Cross-Application to Enforce an Order; Answer; Default 63 15(c) Service of the Petition or Application 64 15(d) Intervention 64 15(e) Payment of Fees 64

11th Cir. R. 15-1 Procedures in Proceedings for Review of Orders of the Federal Energy Regulatory Commission 64 11th Cir. R. 15-2 Petitions for Review and Applications for Enforcement 64 11th Cir. R. 15-3 Answer to Application for Enforcement 64 11th Cir. R. 15-4 Motion for Leave to Intervene 64

IOP 1. Payment of Fees 65 IOP 2. Notice of Origin 65 IOP 3. Federal Energy Regulatory Commission Proceedings 65 IOP 4. National Labor Relations Board Original Contempt Proceedings 65

Rev.: 8/18 10 Table of Contents Page

FRAP 15.1. BRIEFS AND ORAL ARGUMENT IN A NATIONAL LABOR RELATIONS BOARD PROCEEDING 66

11th Cir. R. 15.1-1 Failure to Prosecute 66

FRAP 16. THE RECORD ON REVIEW OR ENFORCEMENT 67 16(a) Composition of the Record 67 16(b) Omissions From or Misstatements in the Record 67

11th Cir. R. 16-1 Form of Paper Record 67

FRAP 17. FILING THE RECORD 68 17(a) Agency to File; Time for Filing; Notice of Filing 68 17(b) Filing What Constitutes 68

11th Cir. R. 17-1 Certified Extracts of the Record 68

FRAP 18. STAY PENDING REVIEW 69 18(a) Motion for a Stay 69 18(b) Bond 69

11th Cir. R. 18-1 Motions 69 11th Cir. R. 18-2 Motion for Reconsideration 69

IOP Proof of Service Required 70

FRAP 19. SETTLEMENT OF A JUDGMENT ENFORCING AN AGENCY ORDER IN PART 71

FRAP 20. APPLICABILITY OF RULES TO THE REVIEW OR ENFORCEMENT OF AN AGENCY ORDER 72

11th Cir. R. 20-1 Applicability of Other Circuit Rules to the Review or Enforcement of an Agency Order 72

TITLE V. EXTRAORDINARY WRITS

FRAP 21. WRITS OF MANDAMUS AND PROHIBITION, AND OTHER EXTRAORDINARY WRITS 73 21(a) Mandamus or Prohibition to a Court: Petition, Filing, Service and Docketing 73 21(b) Denial; Order Directing Answer; Briefs; Precedence 73 21(c) Other Extraordinary Writs 74 21(d) Form of Papers; Number of Copies; Length Limits 74

Rev.: 8/18 11 Table of Contents Page

11th Cir. R. 21-1 Writs of Mandamus and Prohibition and Other Extraordinary Writs 74

IOP Payment of Fees 74

TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS

FRAP 22. HABEAS CORPUS AND SECTION 2255 PROCEEDINGS 75 22(a) Application for the Original Writ 75 22(b) Certificate of Appealability 75

11th Cir. R. 22-1 Certificate of Appealability 75 11th Cir. R. 22-2 Length of Application for a Certificate of Appealability 76 11th Cir. R. 22-3 Application for Leave to File a Second or Successive Habeas Corpus Petition or Motion to Vacate, Set Aside or Correct Sentence 76 11th Cir. R. 22-3(a) Form 76 11th Cir. R. 22-3(b) Finality of Determination 76 11th Cir. R. 22-4 Petitions in Capital Cases Pursuant to 28 U.S.C. §§ 2254 and 2255 76 11th Cir. R. 22-4(a) Stay Cases 76 11th Cir. R. 22-4(b) Non-Stay Cases 77 11th Cir. R. 22-4(c) Application for an Order Authorizing Second or Successive Habeas Corpus Petition 77

IOP 1. Certificate of Appealability 77 IOP 2. Oral Argument in Capital Cases 77

FRAP 23. CUSTODY OR RELEASE OF A PRISONER IN A HABEAS CORPUS PROCEEDING 78 23(a) Transfer of Custody Pending Review 78 23(b) Detention or Release Pending Review of Decision Not to Release 78 23(c) Release Pending Review of Decision Ordering Release 78 23(d) Modification of the Initial Order on Custody 78

FRAP 24. PROCEEDING IN FORMA PAUPERIS 79 24(a) Leave to Proceed In Forma Pauperis 79 24(b) Leave to Proceed In Forma Pauperis on Appeal from the United States Tax Court or on Appeal or Review of an Administrative-Agency Proceeding 80 24(c) Leave to Use Original Record 80

11th Cir. R. 24-1 Appeals In Forma Pauperis and Under the Criminal Justice Act 80 11th Cir. R. 24-2 Motion for Leave to Proceed on Appeal In Forma Pauperis 80

Rev.: 8/18 12 Table of Contents Page

IOP Prison Litigation Reform Act 80

TITLE VII. GENERAL PROVISIONS

FRAP 25. FILING AND SERVICE 82 25(a) Filing 83 25(b) Service of All Papers Required 83 25(c) Manner of Service 83 25(d) Proof of Service 84 25(e) Number of Copies 84

11th Cir. R. 25-1 Filings from Party Represented by Counsel 85 11th Cir. R. 25-2 Filing of Papers Transmitted by Alternate Means 85 11th Cir. R. 25-3 Electronic Case Files (ECF) System 85 11th Cir. R. 25-3(a) Electronic Filing and Service 85 11th Cir. R. 25-3(b) Exemption 85 11th Cir. R. 25-4 Information and Signature Required 85 11th Cir. R. 25-5 Maintaining Privacy of Personal Data 85 11th Cir. R. 25-6 Court Action with Respect to Impermissible Language or Information in Filings 87 11th Cir. R. 25-7 Obligation to Notify Court of Change of Addresses 87

IOP 1. Timely Filing of Papers 88 IOP 2. Acknowledgment of Filings 88 IOP 3. Filing with the Clerk 88 IOP 4. Papers Sent Directly to Judges’ Chambers 88 IOP 5. Miami Satellite Office 88

FRAP 26. COMPUTING AND EXTENDING TIME 89 26(a) Computing Time 89 26(b) Extending Time 90 26(c) Additional Time after Certain Kinds of Service 90

11th Cir. R. 26-1 Motion for Extension of Time 91

IOP 1. Extensions of Time 91 IOP 2. Inaccessibility of Clerk's Office 91

FRAP 26.1. CORPORATE DISCLOSURE STATEMENT 92 26.1(a) Who Must File 92 26.1(b) Time for Filing; Supplemental Filing 92 26.1(c) Number of Copies 92

11th Cir. R. 26.1-1 Certificate of Interested Persons and Corporate

Rev.: 12/18 13 Table of Contents Page

Disclosure Statement (CIP): Filing Requirements 92 11th Cir. R. 26.1-1(a) Paper or E-Filed CIPs 92 11th Cir. R. 26.1-1(b) Web-based CIP 92 11th Cir. R. 26.1-2 CIP: Contents 93 11th Cir. R. 26.1-2(a) General 93 11th Cir. R. 26.1-2(b) CIPs in Briefs 93 11th Cir. R. 26.1-2(c) CIPs in Motions or Petitions 93 11th Cir. R. 26.1-2(d) CIPs in Petitions for En Banc Consideration 93 11th Cir. R. 26.1-3 CIP: Form 93 11th Cir. R. 26.1-4 CIP: Amendments 94 11th Cir. R. 26.1-5 Failure to Submit a CIP or Complete the Web-based CIP 94

FRAP 27. MOTIONS 95 27(a) In General 95 27(b) Disposition of a Motion for a Procedural Order 96 27(c) Power of a Single Judge to Entertain a Motion 96 27(d) Form of Papers; Length Limits; Number of Copies 96 27(e) Oral Argument 97

11th Cir. R. 27-1 Motions 97 11th Cir. R. 27-1(a) Number of Copies and Form of Motion 97 11th Cir. R. 27-1(b) Emergency Motions 98 11th Cir. R. 27-1(c) Motions for Procedural Orders Acted Upon by the Clerk 99 11th Cir. R. 27-1(d) Motions Acted Upon by a Single Judge 101 11th Cir. R. 27-1(e) Two-Judge Motions Panels 101 11th Cir. R. 27-1(f) Motions Shall Not Be Argued 101 11th Cir. R. 27-1(g) Effect of a Ruling on a Motion 101 11th Cir. R. 27-2 Motion for Reconsideration 101 11th Cir. R. 27-3 Successive Motions for Reconsideration Not Permitted 102 11th Cir. R. 27-4 Sanctions for Filing a Frivolous Motion 102

IOP 1. Routing Procedures to Judges 102 IOP 2. Emergency Motion Procedure 102 IOP 3. Motions to Expedite Appeals 102 IOP 4. Motions After Assignment of Appeal to Calendar 103 IOP 5. Signature Required 103 IOP 6. Acknowledgment of Motions 103 IOP 7. Withdrawing Motions 103

FRAP 28. BRIEFS 104 28(a) Appellant’s Brief 104 28(b) Appellee’s Brief 105 28(c) Reply Brief 105 28(d) References to Parties 105

Rev.: 8/19 14 Table of Contents Page

28(e) References to the Record 105 28(f) Reproduction of Statutes, Rules, Regulations, etc. 105 28(g) [Reserved] 106 28(h) [Reserved] 106 28(i) Briefs in a Case Involving Multiple Appellants or Appellees 106 28(j) Citation of Supplemental Authorities 106

11th Cir. R. 28-1 Briefs - Contents 106 11th Cir. R. 28-1(a) Cover Page 106 11th Cir. R. 28-1(b) Certificate of Interested Persons and Corporate Disclosure Statement 106 11th Cir. R. 28-1(c) Statement Regarding Oral Argument 106 11th Cir. R. 28-1(d) Table of Contents 106 11th Cir. R. 28-1(e) Table of Citations 107 11th Cir. R. 28-1(f) Statement Regarding Adoption of Briefs of Other Parties 107 11th Cir. R. 28-1(g) Statement of Subject-Matter and Appellate Jurisdiction 107 11th Cir. R. 28-1(h) Statement of the Issues 107 11th Cir. R. 28-1(i) Statement of the Case 107 11th Cir. R. 28-1(j) Summary of the Argument 107 11th Cir. R. 28-1(k) Argument and Citations of Authority 107 11th Cir. R. 28-1(l) Conclusion 108 11th Cir. R. 28-1(m) Certificate of Compliance 108 11th Cir. R. 28-1(n) Certificate of Service 108 11th Cir. R. 28-2 Appellee’s Brief 108 11th Cir. R. 28-3 Reply Brief 108 11th Cir. R. 28-4 Briefs from Party Represented by Counsel 108 11th Cir. R. 28-5 References to the Record 108

IOP 1. Signature Required 108 IOP 2. “One Attorney, One Brief” 108 IOP 3. Adoption of Briefs of Other Parties 108 IOP 4. Waiver of Reply Brief 108 IOP 5. Supplemental Briefs 108 IOP 6. Citation of Supplemental Authorities 109 IOP 7. Briefs in Consolidated Cases and Appeals 109 IOP 8. Corporate Reorganization - Chapter 11 109 IOP 9. Requesting Copies of the Record 109

FRAP 28.1. CROSS-APPEALS 110 28.1(a) Applicability 110 28.1(b) Designation of Appellant 110 28.1(c) Briefs 110 28.1(d) Cover 110 28.1(e) Length 111

Rev.: 8/18 15 Table of Contents Page 28.1(f) Time to Serve and File a Brief 111

11th Cir. R. 28.1-1 Briefs in Cross-Appeals 112 11th Cir. R. 28.1-2 Briefing Schedule in Cross-Appeals 112

IOP 1. Designation of Appellant in Cross-Appeals 112 IOP 2. Color of Covers of Briefs in Cross-Appeals 112

FRAP 29. BRIEF OF AN AMICUS CURIAE 113 29(a) During Initial Consideration of a Case on the Merits 113 29(b) During Consideration of Whether to Grant Rehearing 114

11th Cir. R. 29-1 Motions for Leave 115 11th Cir. R. 29-2 Amicus Brief 115 11th Cir. R. 29-3 Motion for Leave to File Amicus Brief in Support of Petition for Rehearing En Banc 115 11th Cir. R. 29-4 Motion for Leave to File Amicus Brief in Support of Petition for Panel Rehearing 115

IOP 1. Citation of Supplemental Authorities 115 IOP 2. Length of Amicus Brief in a Cross-Appeal 115

FRAP 30. APPENDIX TO THE BRIEFS 116 30(a) Appellant’s Responsibility 116 30(b) All Parties’ Responsibilities 116 30(c) Deferred Appendix 117 30(d) Format of the Appendix 117 30(e) Reproduction of Exhibits 117 30(f) Appeal on the Original Record Without an Appendix 117

11th Cir. R. 30-1 Appendix - Appeals from District Court and Tax Court 118 11th Cir. R. 30-1(a) Contents 118 11th Cir. R. 30-1(b) Appellee’s Responsibility 119 11th Cir. R. 30-1(c) Time for Filing 119 11th Cir. R. 30-1(d) Number of Copies 119 11th Cir. R. 30-1(e) Form 120 11th Cir. R. 30-2 Appendix - Agency Review Proceedings 120 11th Cir. R. 30-3 Electronic Appendix Submission 120

IOP 1. Indexing Tabs on an Appendix 121 IOP 2. Appendices in Cross-Appeals 121

FRAP 31. SERVING AND FILING BRIEFS 122 31(a) Time to Serve and File a Brief 122 31(b) Number of Copies 122 Rev.: 8/18 16 Table of Contents Page

31(c) Consequence of Failure to File 122

11th Cir. R. 31-1 Briefs - Time for Serving and Filing 122 11th Cir. R. 31-1(a) Briefing Schedule 122 11th Cir. R. 31-1(b) Pending Motions 122 11th Cir. R. 31-1(c) Effect of Other Pending Motions on Time for Serving and Filing Brief 123 11th Cir. R. 31-1(d) Jurisdictional Question 124 11th Cir. R. 31-2 Briefs and Appendices - Motion to Extend Time 124 11th Cir. R. 31-2(a) First Request for an Extension of Time 124 11th Cir. R. 31-2(b) First Request Filed 14 or More Days in Advance 124 11th Cir. R. 31-2(c) Seven Days in Advance Requirement 124 11th Cir. R. 31-2(d) Second Request for an Extension of Time 124 11th Cir. R. 31-2(e) Extension of Time Must Be Requested Prior to Expiration of Due Date 124 11th Cir. R. 31-3 Briefs - Number of Copies 125 11th Cir. R. 31-4 Expedited Briefing in Criminal Appeals 125 11th Cir. R. 31-5 Electronic Brief Submission 125

IOP Briefing Schedule 125

FRAP 32. FORM OF BRIEFS, APPENDICES, AND OTHER PAPERS 126 32(a) Form of a Brief 126 32(b) Form of an Appendix 127 32(c) Form of Other Papers 127 32(d) Signature 128 32(e) Local Variation 128 32(f) Items Excluded from Length 128 32(g) Certificate of Compliance 128

11th Cir. R. 32-1 Binding of Papers 129 11th Cir. R. 32-2 Briefs - Cover 129 11th Cir. R. 32-3 Briefs - Form 129 11th Cir. R. 32-4 Briefs - Page Numbering and Length 129

IOP 1. Color of Covers of Briefs 130 IOP 2. Form of Printing - Legibility 130 IOP 3. Briefs - Miscellaneous Information 130 IOP 4. Brief Binding 130

FRAP 32.1. CITING JUDICIAL DISPOSITIONS 131 32.1(a) Citation Permitted 131 32.1(b) Copies Required 131

FRAP 33. APPEAL CONFERENCES 132

Rev.: 1/19 17 Table of Contents Page

11th Cir. R. 33-1 Kinnard Mediation Center 132 11th Cir. R. 33-1(a) Filing Civil Appeal Statement 132 11th Cir. R. 33-1(b) [Rescinded] 133 11th Cir. R. 33-1(c) Mediation 133 11th Cir. R. 33-1(d) Confidential Mediation Statement 133 11th Cir. R. 33-1(e) Filing Deadlines 134 11th Cir. R. 33-1(f) Noncompliance Sanctions 134 11th Cir. R. 33-1(g) Use of Private Mediators 134

FRAP 34. ORAL ARGUMENT 135 34(a) In General 135 34(b) Notice of Argument; Postponement 135 34(c) Order and Contents of Argument 135 34(d) Cross-Appeals and Separate Appeals 135 34(e) Nonappearance of a Party 135 34(f) Submission on Briefs 135 34(g) Use of Physical Exhibits at Argument; Removal 135

11th Cir. R. 34-1 Sessions 136 11th Cir. R. 34-2 Quorum 136 11th Cir. R. 34-3 Non-Argument Calendar 137 11th Cir. R. 34-4 Oral Argument Calendar 138 11th Cir. R. 34-4(a) General 138 11th Cir. R. 34-4(b) Waiver or Submission Without Argument 138 11th Cir. R. 34-4(c) Failure to Appear for Oral Argument 138 11th Cir. R. 34-4(d) Number of Counsel to Be Heard 138 11th Cir. R. 34-4(e) Expediting Appeals 138 11th Cir. R. 34-4(f) Continuance of Hearing 138 11th Cir. R. 34-4(g) Sealing Oral Arguments 138 11th Cir. R. 34-4(h) Recording Oral Arguments 138 11th Cir. R. 34-4(i) Citation of Supplemental Authorities During Oral Argument 138

IOP 1. Non-Argument Calendar 139 IOP 2. Oral Argument 139 IOP 3. Preparation and Issuing of Calendars 140 IOP 4. Location of Court Sessions - Convenience of Counsel 140 IOP 5. Forwarding Briefs to Judges 140 IOP 6. Pre-Argument Preparation 140 IOP 7. Identity of Panel 140 IOP 8. Checking In with Clerk’s Office 140 IOP 9. Submission Without Argument 141 IOP 10. Time for Oral Argument 141 IOP 11. Additional Time for Oral Argument 141

Rev.: 8/18 18 Table of Contents Page IOP 12. Calling the Calendar 141 IOP 13. Presenting Argument 141 IOP 14. Timer and Lighting Signal Procedure 141 IOP 15. Appeals Conference and Designation of Writing Judge 141 IOP 16. CD Recordings of Oral Arguments 142 IOP 17. Posting of Oral Argument Recordings on the Website 142

FRAP 35. EN BANC DETERMINATION 143 35(a) When Hearing or Rehearing En Banc May Be Ordered 143 35(b) Petition for Hearing or Rehearing En Banc 143 35(c) Time for Petition for Hearing or Rehearing En Banc 143 35(d) Number of Copies 143 35(e) Response 144 35(f) Call for a Vote 144

11th Cir. R. 35-1 Number of Copies and Length 144 11th Cir. R. 35-2 Time - Extensions 144 11th Cir. R. 35-3 Extraordinary Nature of Petitions for En Banc Consideration 144 11th Cir. R. 35-4 Matters Not Considered En Banc 145 11th Cir. R. 35-5 Form of Petition 145 11th Cir. R. 35-6 Response to Petition 146 11th Cir. R. 35-7 En Banc Briefs 146 11th Cir. R. 35-8 En Banc Amicus Briefs 146 11th Cir. R. 35-9 Senior Circuit Judges’ Participation 146 11th Cir. R. 35-10 Effect of Granting Rehearing En Banc 146

IOP 1. Time 146 IOP 2. Panel Has Control 147 IOP 3. Requesting a Poll 147 IOP 4. No Poll Request 147 IOP 5. Requesting a Poll on Court’s Own Motion 147 IOP 6. Polling the Court 147 IOP 7. Effect of Recusal or Disqualification on Number of Votes Required 147 IOP 8. Negative Poll 148 IOP 9. En Banc Rehearing Procedures Following Affirmative Poll 148

FRAP 36. ENTRY OF JUDGMENT; NOTICE 149 36(a) Entry 149 36(b) Notice 149

11th Cir. R. 36-1 [Rescinded] 149 11th Cir. R. 36-2 Unpublished Opinions 149 11th Cir. R. 36-3 Publishing Unpublished Opinions 149

Rev.: 8/18 19 Table of Contents Page IOP 1. Motion to Amend, Correct, or Settle the Judgment 149 IOP 2. Effect of Mandate on Precedential Value of Opinion 149 IOP 3. Processing of Opinions 150 IOP 4. Circulation of Opinions to Non-Panel Members 150 IOP 5. Publication of Opinions 150 IOP 6. Unpublished Opinions 150 IOP 7. Citation to Unpublished Opinions by the Court 150 IOP 8. Release of Opinions 150 IOP 9. Citation to Internet Materials in an Opinion 151

FRAP 37. INTEREST ON JUDGMENT 152 37(a) When the Court Affirms 152 37(b) When the Court Reverses 152

FRAP 38. FRIVOLOUS APPEAL–DAMAGES AND COSTS 153

11th Cir. R. 38-1 Time for Filing Motions 153

IOP Motions for Damages and Costs 153

FRAP 39. COSTS 154 39(a) Against Whom Assessed 154 39(b) Costs For and Against the United States 154 39(c) Costs of Copies 154 39(d) Bill of Costs; Objections; Insertion in Mandate 154 39(e) Costs on Appeal Taxable in the District Court 154

11th Cir. R. 39-1 Costs 155 11th Cir. R. 39-2 Attorney’s Fees 155 11th Cir. R. 39-2(a) Time for Filing 155 11th Cir. R. 39-2(b) Required Documentation 155 11th Cir. R. 39-2(c) Objection to Application 155 11th Cir. R. 39-2(d) Motion to Transfer 155 11th Cir. R. 39-2(e) Remand for Further Proceedings 156 11th Cir. R. 39-3 Fee Awards to Prevailing Parties Under the Equal Access to Justice Act 156

IOP 1. Time - Extensions 156 IOP 2. Costs for or Against the United States 156 IOP 3. Reproduction of Statutes, Rules, and Regulations 156

FRAP 40. PETITION FOR PANEL REHEARING 157 40(a) Time to File; Contents; Answer; Action by the Court if Granted 157 40(b) Form of Petition; Length 157

Rev.: 8/18 20 Table of Contents Page 11th Cir. R. 40-1 Contents 158 11th Cir. R. 40-2 Number of Copies 158 11th Cir. R. 40-3 Time - Extensions 158 11th Cir. R. 40-4 [Rescinded] 158 11th Cir. R. 40-5 Supplemental Authorities 158

IOP 1. Necessity for Filing 158 IOP 2. Petition for Panel Rehearing 158 IOP 3. Time 158 IOP 4. Form of Petition for Panel Rehearing 159

FRAP 41. MANDATE: CONTENTS; ISSUANCE AND EFFECTIVE DATE; STAY 160 41(a) Contents 160 41(b) When Issued 160 41(c) Effective Date 160 41(d) Staying the Mandate Pending a Petition for Certiorari 160

11th Cir. R. 41-1 Stay or Recall of Mandate 161 11th Cir. R. 41-2 Expediting Issuance of Mandate 161 11th Cir. R. 41-3 Published Order Dismissing Appeal or Disposing of a Petition for a Writ of Mandamus or Prohibition or Other Extraordinary Writ 161 11th Cir. R. 41-4 Non-Published Order Dismissing Appeal or Disposing of a Petition for a Writ of Mandamus or Prohibition or Other Extraordinary Writ 161

IOP 1. Stay or Recall of Mandate 161 IOP 2. Return of Record 162 IOP 3. Certified Records for Supreme Court of the United States 162

FRAP 42. VOLUNTARY DISMISSAL 163 42(a) Dismissal in the District Court 163 42(b) Dismissal in the Court of Appeals 163

11th Cir. R. 42-1 Dismissal of Appeals 163 11th Cir. R. 42-1(a) Motions to Dismiss by Appellants or Petitioners and Joint Motions to Dismiss 163 11th Cir. R. 42-1(b) Dismissal for Failure to Prosecute 163 11th Cir. R. 42-2 Dismissal in a Civil Appeal for Appellant’s Failure to File Brief or Appendix by Due Date 164 11th Cir. R. 42-2(a) Applicability of Rule 164 11th Cir. R. 42-2(b) Notice of Due Date for Filing Brief and Appendix 164 11th Cir. R. 42-2(c) Dismissal Without Further Notice 164 11th Cir. R. 42-2(d) Effect of Pending Motion to Extend Time 164 11th Cir. R. 42-2(e) Motion to Set Aside Dismissal and Remedy Default 164

Rev.: 12/18 21 Table of Contents Page 11th Cir. R. 42-2(f) Failure of Appellee to File Brief by Due Date 165 11th Cir. R. 42-3 Dismissal in a Civil Appeal for Appellant’s Failure to Correct a Deficiency in Briefs or Appendices Within 14 Days of Notice 165 11th Cir. R. 42-3(a) Applicability of Rule 165 11th Cir. R. 42-3(b) Notice to Correct a Deficiency in Briefs or Appendices 165 11th Cir. R. 42-3(c) Dismissal Without Further Notice 165 11th Cir. R. 42-3(d) Effect of Pending Motion to Extend Time 165 11th Cir. R. 42-3(e) Motion to Set Aside Dismissal and Remedy Default 165 11th Cir. R. 42-3(f) Failure of Appellee to File Corrected Brief Within 14 Days of Notice 166 11th Cir. R. 42-4 Frivolous Appeals 166

IOP Dismissal Rules Apply to Principal Briefs 166

FRAP 43. SUBSTITUTION OF PARTIES 167 43(a) Death of a Party 167 43(b) Substitution for a Reason Other Than Death 167 43(c) Public Officer; Identification; Substitution 167

FRAP 44. CASE INVOLVING A CONSTITUTIONAL QUESTION WHEN THE UNITED STATES OR THE RELEVANT STATE IS NOT A PARTY 168 44(a) Constitutional Challenge to Federal Statute 168 44(b) Constitutional Challenge to State Statute 168

FRAP 45. CLERK’S DUTIES 169 45(a) General Provisions 169 45(b) Records 169 45(c) Notice of an Order or Judgment 169 45(d) Custody of Records and Papers 169

11th Cir. R. 45-1 Clerk 170 11th Cir. R. 45-1(a) Location 170 11th Cir. R. 45-1(b) Office to Be Open 170

IOP 1. Telephone Inquiries 170 IOP 2. Emergency Telephone Inquiries After Hours 170 IOP 3. Miami Satellite Office 170

FRAP 46. ATTORNEYS 171 46(a) Admission to the Bar 171 46(b) Suspension or Disbarment 171 46(c) Discipline 171

Rev.: 8/18 22 Table of Contents Page 11th Cir. R. 46-1 Bar Admission and Fees 172 11th Cir. R. 46-2 Renewal of Bar Membership; Inactive Status 172 11th Cir. R. 46-3 Admission for Particular Proceeding 172 11th Cir. R. 46-4 Pro Hac Vice Admission 173 11th Cir. R. 46-5 Entry of Appearance 173 11th Cir. R. 46-6 Clerk’s Authority to Accept Filings 173 11th Cir. R. 46-6(a) Filings from an Attorney Who Is Not a Member of the Eleventh Circuit Bar 173 11th Cir. R. 46-6(b) Filings from an Attorney Who Has Not Filed an Appearance of Counsel Form Within 14 Days After Notice Is Mailed by the Clerk 174 11th Cir. R. 46-7 Active Membership in Good Standing with State Bar Required to Practice; Changes in Status of Bar Membership Must Be Reported 174 11th Cir. R. 46-8 Certificate of Admission 175 11th Cir. R. 46-9 Attorney Discipline 175 11th Cir. R. 46-10 Appointment or Withdrawal of Counsel 175 11th Cir. R. 46-10(a) Appellate Obligations of Retained Counsel 175 11th Cir. R. 46-10(b) Habeas Corpus or 28 U.S.C. § 2255 Pauper Appeals 175 11th Cir. R. 46-10(c) Relieving Court Appointed Counsel on Appeal 175 11th Cir. R. 46-10(d) Criminal Justice Act Appointments 175 11th Cir. R. 46-10(e) Non-Criminal Justice Act Appointments 175 11th Cir. R. 46-11 Appearance and Argument by Eligible Law Students 175 11th Cir. R. 46-11(a) Scope of Legal Assistance 175 11th Cir. R. 46-11(b) Law Student Eligibility Requirements 176 11th Cir. R. 46-11(c) Supervisory Attorney of Record Requirements 176

IOP 1. Admissions 177 IOP 2. Payment Returned or Denied for Insufficient Funds 177 IOP 3. Components of Attorney Admission Fee 177

FRAP 47. LOCAL RULES BY COURTS OF APPEALS 178 47(a) Local Rules 178 47(b) Procedure When There Is No Controlling Law 178

11th Cir. R. 47-1 Name, Seal, and Process 178 11th Cir. R. 47-1(a) Name 178 11th Cir. R. 47-1(b) Seal 178 11th Cir. R. 47-1(c) Writs and Process 178 11th Cir. R. 47-2 Circuit Executive 179 11th Cir. R. 47-3 Circuit Librarian 179 11th Cir. R. 47-4 Staff Attorneys 179 11th Cir. R. 47-5 Judicial Conference 179 11th Cir. R. 47-6 Restrictions on Practice by Current and Former Employees 179

Rev.: 8/18 23 Table of Contents Page

IOP 1. Physical Facilities 179 IOP 2. Judges 179 IOP 3. Circuit Executive 180 IOP 4. Office of Staff Attorneys 180 IOP 5. Library 180 IOP 6. Judicial Conference 180 IOP 7. Judicial Council 180 IOP 8. Fifth Circuit Court of Appeals Reorganization Act of 1980 (P.L. 96-452, October 4, 1980) 180 IOP 9. Recusal or Disqualification of Judges 180 IOP 10. Complaints Against Judges 181 IOP 11. Pro Se Applications 181 IOP 12. Statistics 181

FRAP 48. MASTERS 182 48(a) Appointment; Powers 182 48(b) Compensation 182

APPENDIX OF FORMS

Form 1. Notice of Appeal to a Court of Appeals From a Judgment or Order of a District Court 183

Form 2. Notice of Appeal to a Court of Appeals From a Decision of the United States Tax Court 184

Form 3. Petition for Review of Order of an Agency, Board, Commission or Officer 185

Form 4. Affidavit Accompanying Motion for Permission to Appeal In Forma Pauperis 186

Form 5. Notice of Appeal to a Court of Appeals From a Judgment or Order of a District Court or a Bankruptcy Appellate Panel 192

Form 6. Certificate of Compliance with Type-Volume Limit 193

Form 7. Declaration of Inmate Filing 194

Appendix: Length Limits Stated in the Federal Rules of Appellate Procedure 195

INDEX 197

Rev.: 12/16 24 Table of Contents ADDENDA TO ELEVENTH CIRCUIT RULES

ONE Rules for Conduct of and Representation and Participation at the Eleventh Circuit Judicial Conference (4/91)

TWO Procedures in Proceedings for Review of Orders of the Federal Energy Regulatory Commission (4/91)

THREE Rules for Judicial-Conduct and Judicial-Disability Proceedings with Eleventh Circuit Judicial Conduct and Disability Rules (9/15)

FOUR Eleventh Circuit Plan under the Criminal Justice Act and Guidelines for Counsel Supplementing the Eleventh Circuit Plan under the Criminal Justice Act (12/09)

FIVE Non-Criminal Justice Act Counsel Appointments (8/07)

SIX Rules and Regulations of the Judicial Council and the United States Court of Appeals for the Eleventh Circuit for the Selection of Nominees, the Appointment of Bankruptcy Judges, and the Reappointment of Bankruptcy Judges (11/12)

SEVEN Regulations of the United States Court of Appeals for the Eleventh Circuit for the Selection and Appointment or the Reappointment of Federal Public Defenders (10/12)

EIGHT Rules Governing Attorney Discipline in the U.S. Court of Appeals for the Eleventh Circuit (1/02)

NINE Regulations of the U.S. Court of Appeals for the Eleventh Circuit for the Selection and Appointment or the Reappointment of Bankruptcy Administrators (10/12)

Rev.: 12/15 25 Addenda This page left blank intentionally. FEDERAL RULES OF APPELLATE PROCEDURE

Effective July 1, 1968, as amended to December 1, 2016

with

ELEVENTH CIRCUIT RULES and INTERNAL OPERATING PROCEDURES

TITLE I. APPLICABILITY OF RULES

FRAP 1. Scope of Rules; Definition; Title

(a) Scope of Rules.

(1) These rules govern procedure in the United States courts of appeals.

(2) When these rules provide for filing a motion or other document in the district court, the procedure must comply with the practice of the district court.

(b) Definition. In these rules, ‘state’ includes the District of Columbia and any United States commonwealth or territory.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 28, 2010, eff. Dec. 1, 2010.)

Rev.: 12/16 27 FRAP 1 FRAP 2. Suspension of Rules

On its own or a party’s motion, a court of appeals may—to expedite its decision or for other good cause—suspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b).

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

* * * *

11th Cir. R. 2-1 Court Action. In lieu of the procedures described in the Eleventh Circuit Rules and Internal Operating Procedures, the court may take such other or different action as it deems appropriate.

Rev.: 12/10 28 FRAP 2 TITLE II. APPEAL FROM A JUDGMENT OR ORDER OF A DISTRICT COURT

FRAP 3. Appeal as of Right—How Taken

(a) Filing the Notice of Appeal.

(1) An appeal permitted by law as of right from a district court to a court of appeals may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4. At the time of filing, the appellant must furnish the clerk with enough copies of the notice to enable the clerk to comply with Rule 3(d).

(2) An appellant’s failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal.

(3) An appeal from a judgment by a magistrate judge in a civil case is taken in the same way as an appeal from any other district court judgment.

(4) An appeal by permission under 28 U.S.C. § 1292(b) or an appeal in a bankruptcy case may be taken only in the manner prescribed by Rules 5 and 6, respectively.

(b) Joint or Consolidated Appeals.

(1) When two or more parties are entitled to appeal from a district court judgment or order, and their interests make joinder practicable, they may file a joint notice of appeal. They may then proceed on appeal as a single appellant.

(2) When the parties have filed separate timely notices of appeal, the appeals may be joined or consolidated by the court of appeals.

(1) The notice of appeal must:

(A) specify the party or parties taking the appeal by naming each one in the caption or body of the notice, but an attorney representing more than one party may describe those parties with such terms as “all plaintiffs,” “the defendants,” “the plaintiffs A, B, et al.,” or “all defendants except X”;

(B) designate the judgment, order, or part thereof being appealed; and

Rev.: 12/10 29 FRAP 3 (2) A pro se notice of appeal is considered filed on behalf of the signer and the signer’s spouse and minor children (if they are parties), unless the notice clearly indicates otherwise.

(3) In a class action, whether or not the class has been certified, the notice of appeal is sufficient if it names one person qualified to bring the appeal as representative of the class.

(4) An appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice.

(5) Form 1 in the Appendix of Forms is a suggested form of a notice of appeal.

(d) Serving the Notice of Appeal.

(1) The district clerk must serve notice of the filing of a notice of appeal by mailing a copy to each party’s counsel of record—excluding the appellant’s—or, if a party is proceeding pro se, to the party’s last known address. When a defendant in a criminal case appeals, the clerk must also serve a copy of the notice of appeal on the defendant, either by personal service or by mail addressed to the defendant. The clerk must promptly send a copy of the notice of appeal and of the docket entries—and any later docket entries—to the clerk of the court of appeals named in the notice. The district clerk must note, on each copy, the date when the notice of appeal was filed.

(2) If an inmate confined in an institution files a notice of appeal in the manner provided by Rule 4(c), the district clerk must also note the date when the clerk docketed the notice.

(3) The district clerk’s failure to serve notice does not affect the validity of the appeal. The clerk must note on the docket the names of the parties to whom the clerk mails copies, with the date of mailing. Service is sufficient despite the death of a party or the party’s counsel.

(e) Payment of Fees. Upon filing a notice of appeal, the appellant must pay the district clerk all required fees. The district clerk receives the appellate docket fee on behalf of the court of appeals.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.)

* * * *

11th Cir. R. 3-1 Failure to Object to a Magistrate Judge’s Findings or Recommendations. A party failing to object to a magistrate judge’s findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to

Rev.: 12/14 30 FRAP 3 challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.

* * * * I.O.P. -

1. Payment of Fees. When the notice of appeal is filed in the district court, counsel must pay to the district court clerk, pursuant to FRAP 3(e), the court of appeals docketing fee prescribed by the Judicial Conference of the United States in the Court of Appeals Miscellaneous Fee Schedule issued pursuant to 28 U.S.C. § 1913, plus the district court filing fee required by 28 U.S.C. § 1917. Upon receipt of a copy of a notice of appeal, the clerk of the court of appeals will transmit to counsel a notice advising of other requirements of the rules. See FRAP 13, 15, and 21 for information on payment of fees for Tax Court appeals, petitions for review of agency orders or writs of mandamus or other writs.

2. Opportunity to Seek Extension of Time to File Objections. The parties may seek an extension of time to file written objections to a magistrate judge’s report and recommendation, provided they do so before the deadline for filing written objections passes.

3. Notice to Accompany Magistrate Judge’s Findings or Recommendations. A magistrate judge’s findings or recommendations under 28 U.S.C. § 636(b)(1) must be accompanied by clear notice to the parties of the time period for objecting or seeking an extension of time to file written objections and notice that failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions.

Cross-Reference: FRAP 12, 13, 15, 21

Rev.: 12/14 31 FRAP 3 FRAP 4. Appeal as of Right—When Taken

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.

(B) The notice of appeal may be filed by any party within 60 days after entry of the judgment or order appealed from if one of the parties is:

(i) the United States;

(ii) a United States agency;

(iii) a United States officer or employee sued in an official capacity; or

(iv) a current or former United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf—including all instances in which the United States represents that person when the judgment or order is entered or files the appeal for that person.

(C) An appeal from an order granting or denying an application for a writ of error coram nobis is an appeal in a civil case for purposes of Rule 4(a).

(2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.

(3) Multiple Appeals. If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.

(4) Effect of a Motion on a Notice of Appeal.

(A) If a party files in the district court any of the following motions under the Federal Rules of Civil Procedure—and does so within the time allowed by those rules—the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:

(i) for judgment under Rule 50(b);

Rev.: 12/16 32 FRAP 4 (ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;

(iii) for attorney’s fees under Rule 54 if the district court extends the time to appeal under Rule 58;

(iv) to alter or amend the judgment under Rule 59;

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the motion is filed no later than 28 days after the judgment is entered.

(B) (i) If a party files a notice of appeal after the court announces or enters a judgment—but before it disposes of any motion listed in Rule 4(a)(4)(A)—the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.

(ii) A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or a judgment’s alteration or amendment upon such a motion, must file a notice of appeal, or an amended notice of appeal—in compliance with Rule 3(c)—within the time prescribed by this Rule measured from the entry of the order disposing of the last such remaining motion.

(iii) No additional fee is required to file an amended notice.

(5) Motion for Extension of Time.

(A) The district court may extend the time to file a notice of appeal if:

(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and

(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.

(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.

Rev.: 12/16 33 FRAP 4 (C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.

(6) Reopening the Time to File an Appeal. The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:

(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;

(B) the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and

(7) Entry Defined.

(A) A judgment or order is entered for purposes of this Rule 4(a):

(i) if Federal Rule of Civil Procedure 58(a) does not require a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a); or

(ii) if Federal Rule of Civil Procedure 58(a) requires a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the earliest of these events occurs:

• the judgment or order is set forth on a separate document, or

• 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a).

(B) A failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a) does not affect the validity of an appeal from that judgment or order.

(b) Appeal in a Criminal Case.

(1) Time for Filing a Notice of Appeal.

(A) In a criminal case, a defendant’s notice of appeal must be filed in the district court within 14 days after the later of:

Rev.: 12/16 34 FRAP 4 (i) the entry of either the judgment or the order being appealed; or

(ii) the filing of the government’s notice of appeal.

(B) When the government is entitled to appeal, its notice of appeal must be filed in the district court within 30 days after the later of:

(i) the entry of the judgment or order being appealed; or

(ii) the filing of a notice of appeal by any defendant.

(2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision, sentence, or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.

(3) Effect of a Motion on a Notice of Appeal.

(A) If a defendant timely makes any of the following motions under the Federal Rules of Criminal Procedure, the notice of appeal from a judgment of conviction must be filed within 14 days after the entry of the order disposing of the last such remaining motion, or within 14 days after the entry of the judgment of conviction, whichever period ends later. This provision applies to a timely motion:

(i) for judgment of acquittal under Rule 29;

(ii) for a new trial under Rule 33, but if based on newly discovered evidence, only if the motion is made no later than 14 days after the entry of the judgment; or

(iii) for arrest of judgment under Rule 34.

(B) A notice of appeal filed after the court announces a decision, sentence, or order—but before it disposes of any of the motions referred to in Rule 4(b)(3)(A)—becomes effective upon the later of the following:

(i) the entry of the order disposing of the last such remaining motion; or

(ii) the entry of the judgment of conviction.

(C) A valid notice of appeal is effective—without amendment—to appeal from an order disposing of any of the motions referred to in Rule 4(b)(3)(A).

(4) Motion for Extension of Time. Upon a finding of excusable neglect or good cause, the district court may—before or after the time has expired, with or without motion and notice—extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).

Rev.: 12/16 35 FRAP 4 (5) Jurisdiction. The filing of a notice of appeal under this Rule 4(b) does not divest a district court of jurisdiction to correct a sentence under Federal Rule of Criminal Procedure 35(a), nor does the filing of a motion under 35(a) affect the validity of a notice of appeal filed before entry of the order disposing of the motion. The filing of a motion under Federal Rule of Criminal Procedure 35(a) does not suspend the time for filing a notice of appeal from a judgment of conviction.

(6) Entry Defined. A judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket.

(1) If an institution has a system designed for legal mail, an inmate confined there must use that system to receive the benefit of this Rule 4(c)(1). If an inmate files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution’s internal mail system on or before the last day for filing and:

(A) it is accompanied by:

(i) a declaration in compliance with 28 U.S.C. § 1746—or a notarized statement—setting out the date of deposit and stating that first-class postage is being prepaid; or

(ii) evidence (such as a postmark or date stamp) showing that the notice was so deposited and that postage was prepaid; or

(B) the court of appeals exercises its discretion to permit the later filing of a declaration or notarized statement that satisfies Rule 4(c)(1)(A)(i).

(2) If an inmate files the first notice of appeal in a civil case under this Rule 4(c), the 14-day period provided in Rule 4(a)(3) for another party to file a notice of appeal runs from the date when the district court dockets the first notice.

(3) When a defendant in a criminal case files a notice of appeal under this Rule 4(c), the 30-day period for the government to file its notice of appeal runs from the entry of the judgment or order appealed from or from the district court’s docketing of the defendant’s notice of appeal, whichever is later.

(d) Mistaken Filing in the Court of Appeals. If a notice of appeal in either a civil or a criminal case is mistakenly filed in the court of appeals, the clerk of that court must note on the notice the date when it was received and send it to the district clerk. The notice is then considered filed in the district court on the date so noted.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; May 1, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff.

Rev.: 12/16 36 FRAP 4 Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 28, 2010, eff. Dec. 1, 2010; Apr. 26, 2011, eff. Dec. 1, 2011; Apr. 28, 2016, eff. Dec. 1, 2016.)

* * * *

I.O.P. - Timely Filing Required. Except for notices of appeal filed by inmates of correctional institutions as provided in FRAP 4(c), notices of appeal must be timely filed in the office of the clerk of the district court.

Cross-Reference: Fed.R.Civ.P. 54, 58, 79(a); 28 U.S.C. § 1292

Rev.: 12/16 37 FRAP 4 FRAP 5. Appeal by Permission

(a) Petition for Permission to Appeal.

(1) To request permission to appeal when an appeal is within the court of appeals’ discretion, a party must file a petition for permission to appeal. The petition must be filed with the circuit clerk with proof of service on all other parties to the district court action.

(2) The petition must be filed within the time specified by the statute or rule authorizing the appeal or, if no such time is specified, within the time provided by Rule 4(a) for filing a notice of appeal.

(3) If a party cannot petition for appeal unless the district court first enters an order granting permission to do so or stating that the necessary conditions are met, the district court may amend its order, either on its own or in response to a party’s motion, to include the required permission or statement. In that event, the time to petition runs from entry of the amended order.

(b) Contents of the Petition; Answer or Cross-Petition; Oral Argument.

(1) The petition must include the following:

(A) the facts necessary to understand the question presented;

(B) the question itself;

(D) the reasons why the appeal should be allowed and is authorized by a statute or rule; and

(E) an attached copy of:

(i) the order, decree, or judgment complained of and any related opinion or memorandum, and

(ii) any order stating the district court’s permission to appeal or finding that the necessary conditions are met.

(2) A party may file an answer in opposition or a cross-petition within 10 days after the petition is served.

Rev.: 12/16 38 FRAP 5 (3) The petition and answer will be submitted without oral argument unless the court of appeals orders otherwise.

(c) Form of Papers; Number of Copies; Length Limits. All papers must conform to Rule 32(c)(2). An original and 3 copies must be filed unless the court requires a different number by local rule or by order in a particular case. Except by the court’s permission, and excluding the accompanying documents required by Rule 5(b)(1)(E):

(1) a paper produced using a computer must not exceed 5,200 words; and

(2) a handwritten or typewritten paper must not exceed 20 pages.

(d) Grant of Permission; Fees; Cost Bond; Filing the Record.

(1) Within 14 days after the entry of the order granting permission to appeal, the appellant must:

(A) pay the district clerk all required fees; and

(B) file a cost bond if required under Rule 7.

(2) A notice of appeal need not be filed. The date when the order granting permission to appeal is entered serves as the date of the notice of appeal for calculating time under these rules.

(3) The district clerk must notify the circuit clerk once the petitioner has paid the fees. Upon receiving this notice, the circuit clerk must enter the appeal on the docket. The record must be forwarded and filed in accordance with Rules 11 and 12(c).

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 28, 2016, eff. Dec. 1, 2016.)

* * * * 11th Cir. R. 5-1 Certificate Required. The petition and answer shall contain a Certificate of Interested Persons and Corporate Disclosure Statement as described in FRAP 26.1 and the accompanying circuit rules. * * * * I.O.P. -

1. Appeals by Permission. When the petition is granted, counsel must pay to the district court clerk the court of appeals docketing fee prescribed by the Judicial Conference of the United States in the Court of Appeals Miscellaneous Fee Schedule issued pursuant to 28 U.S.C. § 1913, plus the district court filing fee required by 28 U.S.C. § 1917.

Rev.: 12/16 39 FRAP 5 2. Pro Hac Vice Admission. When an application to appear pro hac vice is granted while a petition for permission to appeal is pending, the attorney’s pro hac vice admission continues in effect for the appeal if the petition is granted. See 11th Cir. R. 46-4.

Cross-Reference: FRAP 3, 26.1

Rev.: 12/16 40 FRAP 5 FRAP 6. Appeal in a Bankruptcy Case

(a) Appeal From a Judgment, Order, or Decree of a District Court Exercising Original Jurisdiction in a Bankruptcy Case. An appeal to a court of appeals from a final judgment, order, or decree of a district court exercising jurisdiction under 28 U.S.C. § 1334 is taken as any other civil appeal under these rules.

(b) Appeal From a Judgment, Order, or Decree of a District Court or Bankruptcy Appellate Panel Exercising Appellate Jurisdiction in a Bankruptcy Case.

(1) Applicability of Other Rules. These rules apply to an appeal to a court of appeals under 28 U.S.C. § 158(d)(1) from a final judgment, order, or decree of a district court or bankruptcy appellate panel exercising appellate jurisdiction under 28 U.S.C. § 158(a) or (b), but with these qualifications:

(A) Rules 4(a)(4), 4(b), 9, 10, 11, 12(c), 13-20, 22-23, and 24(b) do not apply;

(B) the reference in Rule 3(c) to “Form 1 in the Appendix of Forms” must be read as a reference to Form 5;

(C) when the appeal is from a bankruptcy appellate panel, “district court,” as used in any applicable rule, means “appellate panel”; and

(D) in Rule 12.1, “district court” includes a bankruptcy court or bankruptcy appellate panel.

(2) Additional Rules. In addition to the rules made applicable by Rule 6(b)(1), the following rules apply:

(A) Motion for Rehearing.

(i) If a timely motion for rehearing under Bankruptcy Rule 8022 is filed, the time to appeal for all parties runs from the entry of the order disposing of the motion. A notice of appeal filed after the district court or bankruptcy appellate panel announces or enters a judgment, order, or decree—but before disposition of the motion for rehearing—becomes effective when the order disposing of the motion for rehearing is entered.

(ii) If a party intends to challenge the order disposing of the motion—or the alteration or amendment of a judgment, order, or decree upon the motion —then the party, in compliance with Rules 3(c) and 6(b)(1)(B), must file a notice of appeal or amended notice of appeal. The notice or amended notice must be filed within the time prescribed by Rule 4—excluding Rules 4(a)(4) and 4(b)—measured from the entry of the order disposing of the motion.

(iii) No additional fee is required to file an amended notice.

Rev.: 12/14 41 FRAP 6 (B) The Record on Appeal.

(i) Within 14 days after filing the notice of appeal, the appellant must file with the clerk possessing the record assembled in accordance with Bankruptcy Rule 8009—and serve on the appellee—a statement of the issues to be presented on appeal and a designation of the record to be certified and made available to the circuit clerk.

(ii) An appellee who believes that other parts of the record are necessary must, within 14 days after being served with the appellant’s designation, file with the clerk and serve on the appellant a designation of additional parts to be included.

(iii) The record on appeal consists of:

C the redesignated record as provided above;

C the proceedings in the district court or bankruptcy appellate panel; and

C a certified copy of the docket entries prepared by the clerk under Rule 3(d).

(i) When the record is complete, the district clerk or bankruptcy-appellate- panel clerk must number the documents constituting the record and promptly make it available to the circuit clerk. If the clerk makes the record available in paper form, the clerk will not send documents of unusual bulk or weight, physical exhibits other than documents, or other parts of the record designated for omission by local rule of the court of appeals, unless directed to do so by a party or the circuit clerk. If unusually bulky or heavy exhibits are to be made available in paper form, a party must arrange with the clerks in advance for their transportation and receipt.

(ii) All parties must do whatever else is necessary to enable the clerk to assemble the record and make it available. When the record is made available in paper form, the court of appeals may provide by rule or order that a certified copy of the docket entries be made available in place of the redesignated record. But any party may request at any time during the pendency of the appeal that the redesignated record be made available.

(D) Filing the Record. When the district clerk or bankruptcy-appellate-panel clerk has made the record available, the circuit clerk must note that fact on the docket. The date noted on the docket serves as the filing date of the record. The circuit clerk must immediately notify all parties of the filing date.

Rev.: 12/14 42 FRAP 6 (c) Direct Review by Permission Under 28 U.S.C. § 158(d)(2).

(1) Applicability of Other Rules. These rules apply to a direct appeal by permission under 28 U.S.C. § 158(d)(2), but with these qualifications:

(A) Rules 3-4, 5(a)(3), 6(a), 6(b), 8(a), 8(c), 9-12, 13-20, 22-23, and 24(b) do not apply;

(B) as used in any applicable rule, “district court” or “district clerk” includes—to the extent appropriate—a bankruptcy court or bankruptcy appellate panel or its clerk; and

(2) Additional Rules. In addition, the following rules apply:

(A) The Record on Appeal. Bankruptcy Rule 8009 governs the record on appeal.

(B) Making the Record Available. Bankruptcy Rule 8010 governs completing the record and making it available.

(D) Duties of the Circuit Clerk. When the bankruptcy clerk has made the record available, the circuit clerk must note that fact on the docket. The date noted on the docket serves as the filing date of the record. The circuit clerk must immediately notify all parties of the filing date.

(E) Filing a Representation Statement. Unless the court of appeals designates another time, within 14 days after entry of the order granting permission to appeal, the attorney who sought permission must file a statement with the circuit clerk naming the parties that the attorney represents on appeal.

(As amended Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 25, 2014, eff. Dec. 1, 2014.)

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I.O.P. - Direct Appeal. The Judicial Council of the Eleventh Circuit has not established a bankruptcy appellate panel. A direct appeal from a bankruptcy court to the court of appeals is available only as authorized by statute. See 28 U.S.C. § 158(d).

Cross-Reference: FRAP 3, 4

Rev.: 12/14 43 FRAP 6 FRAP 7. Bond for Costs on Appeal in a Civil Case

In a civil case, the district court may require an appellant to file a bond or provide other security in any form and amount necessary to ensure payment of costs on appeal. Rule 8(b) applies to a surety on a bond given under this rule.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 24, 1998, eff. Dec. 1, 1998.)

Rev.: 12/10 44 FRAP 7 FRAP 8. Stay or Injunction Pending Appeal

(a) Motion for Stay.

(1) Initial Motion in the District Court. A party must ordinarily move first in the district court for the following relief:

(A) a stay of the judgment or order of a district court pending appeal;

(B) approval of a bond or other security provided to obtain a stay of judgment; or

(2) Motion in the Court of Appeals; Conditions on Relief. A motion for the relief mentioned in Rule 8(a)(1) may be made to the court of appeals or to one of its judges.

(A) The motion must:

(i) show that moving first in the district court would be impracticable; or

(ii) state that, a motion having been made, the district court denied the motion or failed to afford the relief requested and state any reasons given by the district court for its action.

(B) The motion must also include:

(i) the reasons for granting the relief requested and the facts relied on;

(ii) originals or copies of affidavits or other sworn statements supporting facts subject to dispute; and

(iii) relevant parts of the record.

(D) A motion under this Rule 8(a)(2) must be filed with the circuit clerk and normally will be considered by a panel of the court. But in an exceptional case in which time requirements make that procedure impracticable, the motion may be made to and considered by a single judge.

(E) The court may condition relief on a party’s filing a bond or other security in the district court.

Rev.: 12/18 45 FRAP 8 (b) Proceeding Against a Security Provider. If a party gives security with one or more security providers, each provider submits to the jurisdiction of the district court and irrevocably appoints the district clerk as its agent on whom any papers affecting its liability on the security may be served. On motion, a security provider’s liability may be enforced in the district court without the necessity of an independent action. The motion and any notice that the district court prescribes may be served on the district clerk, who must promptly send a copy to each security provider whose address is known.

(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 26, 2018, eff. Dec. 1, 2018.)

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11th Cir. R. 8-1 Motions. Motions for stay or injunction pending appeal must include a copy of the judgment or order from which relief is sought and of any opinion or findings of the district court, and shall otherwise comply with the rules.

11th Cir. R. 8-2 Motion for Reconsideration. A motion to reconsider, vacate, or modify an order granting or denying relief under FRAP 8 must be filed within 21 days of the entry of such order. No additional time shall be allowed for mailing.

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I.O.P. - Proof of Service Required. Motions for stay or injunction pending appeal must include proof of service on all parties appearing below.

Cross-Reference: FRAP 27

Rev.: 12/18 46 FRAP 8 FRAP 9. Release in a Criminal Case

(a) Release Before Judgment of Conviction.

(1) The district court must state in writing, or orally on the record, the reasons for an order regarding the release or detention of a defendant in a criminal case. A party appealing from the order must file with the court of appeals a copy of the district court’s order and the court’s statement of reasons as soon as practicable after filing the notice of appeal. An appellant who questions the factual basis for the district court’s order must file a transcript of the release proceedings or an explanation of why a transcript was not obtained.

(2) After reasonable notice to the appellee, the court of appeals must promptly determine the appeal on the basis of the papers, affidavits, and parts of the record that the parties present or the court requires. Unless the court so orders, briefs need not be filed.

(3) The court of appeals or one of its judges may order the defendant’s release pending the disposition of the appeal.

(b) Release After Judgment of Conviction. A party entitled to do so may obtain review of a district court order regarding release after a judgment of conviction by filing a notice of appeal from that order in the district court, or by filing a motion in the court of appeals if the party has already filed a notice of appeal from the judgment of conviction. Both the order and the review are subject to Rule 9(a). The papers filed by the party seeking review must include a copy of the judgment of conviction.

(c) Criteria for Release. The court must make its decision regarding release in accordance with the applicable provisions of 18 U.S.C. §§ 3142, 3143, and 3145(c).

(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Oct. 12, 1984; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.) * * * *

11th Cir. R. 9-1 Motions. Parties seeking review of a district court’s order on release in a criminal case under FRAP 9(a) must file a motion with this court setting out the reasons why the party believes the order should be reversed. The clerk shall set expedited deadlines for the filing of the motion, the response, and any reply. All motions for release or for modification of the conditions of release, whether filed under FRAP 9(a) or 9(b), must include a copy of the judgment or order from which relief is sought and of any opinion or findings of the district court.

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I.O.P. - Proof of Service Required. Motions for release or for modification of the conditions of release must include proof of service on all parties appearing below.

Cross-Reference: FRAP 23, 27

Rev.: 8/18 47 FRAP 9 FRAP 10. The Record on Appeal

(a) Composition of the Record on Appeal. The following items constitute the record on appeal:

(1) the original papers and exhibits filed in the district court;

(2) the transcript of proceedings, if any; and

(3) a certified copy of the docket entries prepared by the district clerk.

(b) The Transcript of Proceedings.

(1) Appellant’s Duty to Order. Within 14 days after filing the notice of appeal or entry of an order disposing of the last timely remaining motion of a type specified in Rule 4(a)(4)(A), whichever is later, the appellant must do either of the following:

(A) order from the reporter a transcript of such parts of the proceedings not already on file as the appellant considers necessary, subject to a local rule of the court of appeals and with the following qualifications:

(i) the order must be in writing;

(ii) if the cost of the transcript is to be paid by the United States under the Criminal Justice Act, the order must so state; and

(iii) the appellant must, within the same period, file a copy of the order with the district clerk; or

(B) file a certificate stating that no transcript will be ordered.

(2) Unsupported Finding or Conclusion. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to that finding or conclusion.

(3) Partial Transcript. Unless the entire transcript is ordered:

(A) the appellant must—within the 14 days provided in Rule 10(b)(1)—file a statement of the issues that the appellant intends to present on the appeal and must serve on the appellee a copy of both the order or certificate and the statement;

Rev.: 12/10 48 FRAP 10 (B) if the appellee considers it necessary to have a transcript of other parts of the proceedings, the appellee must, within 14 days after the service of the order or certificate and the statement of the issues, file and serve on the appellant a designation of additional parts to be ordered; and

(C) unless within 14 days after service of that designation the appellant has ordered all such parts, and has so notified the appellee, the appellee may within the following 14 days either order the parts or move in the district court for an order requiring the appellant to do so.

(4) Payment. At the time of ordering, a party must make satisfactory arrangements with the reporter for paying the cost of the transcript.

(c) Statement of the Evidence When the Proceedings Were Not Recorded or When a Transcript Is Unavailable. If the transcript of a hearing or trial is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection. The statement must be served on the appellee, who may serve objections or proposed amendments within 14 days after being served. The statement and any objections or proposed amendments must then be submitted to the district court for settlement and approval. As settled and approved, the statement must be included by the district clerk in the record on appeal.

(d) Agreed Statement as the Record on Appeal. In place of the record on appeal as defined in Rule 10(a), the parties may prepare, sign, and submit to the district court a statement of the case showing how the issues presented by the appeal arose and were decided in the district court. The statement must set forth only those facts averred and proved or sought to be proved that are essential to the court’s resolution of the issues. If the statement is truthful, it—together with any additions that the district court may consider necessary to a full presentation of the issues on appeal—must be approved by the district court and must then be certified to the court of appeals as the record on appeal. The district clerk must then send it to the circuit clerk within the time provided by Rule 11. A copy of the agreed statement may be filed in place of the appendix required by Rule 30.

(e) Correction or Modification of the Record.

(1) If any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly.

(2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded:

(A) on stipulation of the parties;

Rev.: 12/10 49 FRAP 10 (B) by the district court before or after the record has been forwarded; or

(3) All other questions as to the form and content of the record must be presented to the court of appeals.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; May 1, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009.)

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11th Cir. R. 10-1 Ordering the Transcript - Duties of Appellant and Appellee. Appellant’s written order for a transcript or certification that no transcript will be ordered, as required by FRAP l0(b), shall be on a form prescribed by the court of appeals. Counsel and pro se parties shall file the form with the district court clerk and the clerk of the court of appeals, and send copies to the appropriate court reporter(s) and all parties, in conformance with instructions included on the form. The form must be filed and sent as indicated above within 14 days after filing the notice of appeal or after entry of an order disposing of the last timely motion of a type specified in FRAP 4(a)(4).

If an appellee designates additional parts of the proceedings to be ordered, orders additional parts of the proceedings, or moves in the district court for an order requiring appellant to do so, as provided by FRAP 10(b), a copy of such designation, transcript order, or motion shall be simultaneously sent to the clerk of this court in addition to being filed and served on other parties as provided by FRAP l0(b).

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I.O.P.- Ordering the Transcript. The transcript order form prescribed by the court of appeals may be obtained from the court’s website at www.ca11.uscourts.gov. Financial arrangements for payment of the costs of the transcript which are satisfactory to the reporter must be made before the transcript order is complete and signed by appellant.

Rev.: 8/19 50 FRAP 10 FRAP 11. Forwarding the Record

(a) Appellant’s Duty. An appellant filing a notice of appeal must comply with Rule 10(b) and must do whatever else is necessary to enable the clerk to assemble and forward the record. If there are multiple appeals from a judgment or order, the clerk must forward a single record.

(b) Duties of Reporter and District Clerk.

(1) Reporter’s Duty to Prepare and File a Transcript. The reporter must prepare and file a transcript as follows:

(A) Upon receiving an order for a transcript, the reporter must enter at the foot of the order the date of its receipt and the expected completion date and send a copy, so endorsed, to the circuit clerk.

(B) If the transcript cannot be completed within 30 days of the reporter’s receipt of the order, the reporter may request the circuit clerk to grant additional time to complete it. The clerk must note on the docket the action taken and notify the parties.

(C) When a transcript is complete, the reporter must file it with the district clerk and notify the circuit clerk of the filing.

(D) If the reporter fails to file the transcript on time, the circuit clerk must notify the district judge and do whatever else the court of appeals directs.

(2) District Clerk’s Duty to Forward. When the record is complete, the district clerk must number the documents constituting the record and send them promptly to the circuit clerk together with a list of the documents correspondingly numbered and reasonably identified. Unless directed to do so by a party or the circuit clerk, the district clerk will not send to the court of appeals documents of unusual bulk or weight, physical exhibits other than documents, or other parts of the record designated for omission by local rule of the court of appeals. If the exhibits are unusually bulky or heavy, a party must arrange with the clerks in advance for their transportation and receipt.

(c) Retaining the Record Temporarily in the District Court for Use in Preparing the Appeal. The parties may stipulate, or the district court on motion may order, that the district clerk retain the record temporarily for the parties to use in preparing the papers on appeal. In that event the district clerk must certify to the circuit clerk that the record on appeal is complete. Upon receipt of the appellee’s brief, or earlier if the court orders or the parties agree, the appellant must request the district clerk to forward the record.

(d) [Abrogated.]

Rev.: 12/18 51 FRAP 11 (e) Retaining the Record by Court Order.

(1) The court of appeals may, by order or local rule, provide that a certified copy of the docket entries be forwarded instead of the entire record. But a party may at any time during the appeal request that designated parts of the record be forwarded.

(2) The district court may order the record or some part of it retained if the court needs it while the appeal is pending, subject, however, to call by the court of appeals.

(3) If part or all of the record is ordered retained, the district clerk must send to the court of appeals a copy of the order and the docket entries together with the parts of the original record allowed by the district court and copies of any parts of the record designated by the parties.

(f) Retaining Parts of the Record in the District Court by Stipulation of the Parties. The parties may agree by written stipulation filed in the district court that designated parts of the record be retained in the district court subject to call by the court of appeals or request by a party. The parts of the record so designated remain a part of the record on appeal.

(g) Record for a Preliminary Motion in the Court of Appeals. If, before the record is forwarded, a party makes any of the following motions in the court of appeals:

! for dismissal; ! for release; ! for a stay pending appeal; ! for additional security on the bond on appeal or on a bond or other security provided to obtain a stay of judgment; or ! for any other intermediate order—

the district clerk must send the court of appeals any parts of the record designated by any party.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 26, 2018, eff. Dec. 1, 2018.)

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11th Cir. R. 11-1 Duties of Court Reporters; Extensions of Time. In each case in which a transcript is ordered, the court reporter shall furnish the following information on a form prescribed by the clerk of this court:

(a) acknowledge that the reporter has received the order for the transcript and the date of the order;

(b) state whether adequate financial arrangements have been made under CJA or otherwise;

Rev.: 12/18 52 FRAP 11 (c) state the number of trial or hearing days involved in the transcript and an estimate of the number of pages;

(d) give the estimated date on which the transcript is to be completed.

The court reporter shall notify the ordering party and the clerk of this court at the time that ordered transcripts are filed in the district court. A court reporter who requests an extension of time for filing the transcript beyond the 30 day period fixed by FRAP 11(b) shall file a written application with the clerk of the court of appeals on a form provided by the clerk of this court and shall specify in detail the amount of work that has been accomplished on the transcript, list all outstanding transcripts due to this and other courts and the due date for filing each and set forth the reasons which make an extension of time for filing the transcript appropriate. The court reporter shall certify that the court reporter has sent a copy of the application to both the Chief District Judge of that district, to the district judge who tried the case, and to all counsel of record. In some cases this court may require written approval of the request by the appropriate district judge. The clerk of the court of appeals shall also send a copy of the clerk’s action on the application to both the appropriate Chief District Judge and the district judge. If the court reporter files the transcript beyond the 30 day period fixed by FRAP 11(b) without having obtained an extension of time to do so, the clerk of the court of appeals shall so notify the appropriate Chief District Judge as well as the district judge.

11th Cir. R. 11-2 Certification and Transmission of Record - Duties of District Court Clerk. The clerk of the district court is responsible for determining when the record on appeal is complete for purposes of the appeal. Upon completion of the record the clerk of the district court shall temporarily retain the record for use by the parties in preparing appellate papers. Whether the record is in electronic or paper form, the clerk of the district court shall certify to the parties on appeal and to the clerk of this court that the record (including the transcript or parts thereof designated for inclusion, and all necessary exhibits) is complete for purposes of appeal. Unless the required certification can be transmitted to the clerk of this court within 14 days from the filing by appellant of a certificate that no transcript is necessary or 14 days after the filing of the transcript of trial proceedings if one has been ordered, whichever is later, the clerk of the district court shall advise the clerk of this court of the reasons for delay and request additional time for filing the required certification. Upon notification from this court that the brief of the appellee has been filed, the clerk of the district court shall forthwith transmit those portions of the original record that are in paper.

11th Cir. R. 11-3 Preparation and Transmission of Exhibits - Duties of District Court Clerk. The clerk of the district court is responsible for transmitting with the record to the clerk of this court a list of exhibits correspondingly numbered and identified with reasonable definiteness. The district court clerk must include in the electronic record on appeal electronic versions of all documentary exhibits admitted into evidence at trial or any evidentiary hearing. The district court clerk must ensure that no such documentary exhibits are returned to the parties before electronic versions of those exhibits have been entered into the electronic record on appeal.

If any documentary exhibits have been sealed or marked confidential by the district court or the district court clerk, the district court clerk must transmit any such sealed or confidential documentary exhibits to this court either in their original form or in electronic form provided the electronic access is appropriately restricted, unless otherwise directed by the clerk of this court. If audio or video files

Rev.: 4/18 53 FRAP 11 were entered into evidence at trial or any evidentiary hearing, such files and any transcripts must be retained by the district court clerk during the period in which a notice of appeal may be timely filed and transmitted to this court as part of the record on appeal. However, the district court clerk must not transmit to this court any exhibits containing child pornography unless requested to do so by the clerk of this court.

As to non-documentary physical exhibits, the parties are required to include photographs or other reproductions of such exhibits in the electronic record on appeal. The parties may submit such photographs or other reproductions in paper or electronic form. The district court clerk must make advance arrangements with the clerk of this court prior to sending any exhibit containing wiring or electronic components (such as a beeper, cellular phone, etc.). Exhibits of unusual size or weight which are contained in a box larger than 14 3/4" x 12" x 9 1/2" shall not be transmitted by the district court clerk until and unless directed to do so by the clerk of this court. A party must make advance arrangements with the clerks for the transportation and receipt of exhibits of unusual size or weight. If transmittal has been authorized, a party may be requested to personally transfer oversized exhibits to the clerk of this court.

11th Cir. R. 11-4 Form of Paper Record. When the record on appeal is in paper, the record shall be bound securely with durable front and back covers in a manner that will facilitate reading. The clerk of the district court or bankruptcy court as applicable shall index the record by means of document numbers in consecutive order. In civil appeals, including bankruptcy and prisoner (civil and habeas) appeals, to facilitate use of the record by the court and by counsel, the district court or bankruptcy court as applicable shall affix indexing tabs bearing those document numbers to identify orders and significant filings. Indexing tabs are not required to be affixed to records in criminal appeals.

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I.O.P. -

1. Duties of Court Reporters; Extensions of Time. The appellant is not required to seek extensions of time for filing the transcript if the reporter cannot prepare it within 30 days from receipt of the appellant’s purchase order. The matter of filing the transcript is between the reporter, the clerk of the Eleventh Circuit, the clerk of the district court, and the district judge. Counsel will be informed when an extension of time is allowed on request made by the court reporter.

2. Preparation of Paper Record; Duties of District Court Clerk. When the record on appeal is in paper, at the time that the record is complete for purposes of appeal and before transmitting certification that the record is complete, the district court will assemble the record into one or more volumes, and identify by a separate document number each filing contained therein. Each volume of the record should generally contain less than 250 pages. The district court docket sheet, so numbered, will be provided to the parties upon request to facilitate citation to the original record by reference to the file copies maintained by the parties. Prior to transmitting the record to the clerk of the court of appeals, the district court docket sheet shall be marked to identify by number the volume into which documents have been placed, and the cover of each volume of the record shall indicate the volume number and the document numbers of the first and last document contained therein (e.g., Vol. 2, Documents 26 - 49). The district court docket sheet, so marked, will be included

Rev.: 8/18 54 FRAP 11 in the record transmitted to the clerk of the court of appeals. Transcripts will be sequentially arranged in separate numbered volumes, with volume numbers noted on the docket sheet index. In civil appeals, including bankruptcy and prisoner (civil and habeas) appeals, standard commercially- available indexing tabs or their equivalent which extend beyond the edge of the page shall be affixed to the first page of orders and of significant filings in the record to identify and assist in locating the papers. Tabs should be visible and staggered in sequence from top to bottom along the right-hand side. Tab numbers should correspond to the document numbers assigned by the district court.

Cross-Reference: FRAP 16

Rev.: 8/18 55 FRAP 11 FRAP 12. Docketing the Appeal; Filing a Representation Statement; Filing the Record

(a) Docketing the Appeal. Upon receiving the copy of the notice of appeal and the docket entries from the district clerk under Rule 3(d), the circuit clerk must docket the appeal under the title of the district court action and must identify the appellant, adding the appellant’s name if necessary.

(b) Filing a Representation Statement. Unless 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.

(c) Filing the Record, Partial Record, or Certificate. Upon receiving the record, partial record, or district clerk’s certificate as provided in Rule 11, the circuit clerk must file it and immediately notify all parties of the filing date.

(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009.)

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11th Cir. R. 12-1 Filing the Record. In an appeal from a district court in which a transcript is ordered, the record is deemed completed and filed on the date the court reporter files the transcript with the district court. In an appeal from a district court in which there was no hearing below (including an appeal from summary judgment), or all necessary transcripts are already on file, or a transcript is not ordered, the record is deemed completed and filed on the date the appeal is docketed in the court of appeals pursuant to FRAP 12(a). The provisions of this rule also apply to the review of a Tax Court decision. [See 11th Cir. R. 31-1 for the time for serving and filing briefs.]

11th Cir. R. 12-2 Clerk’s Consolidation of Appeals. The clerk may, at the time of docketing or thereafter, notify the affected parties that it has determined, sua sponte, that consolidation of appeals is either required by statute or is in the interest of judicial economy, such as when multiple appeals raise the same or similar issues, and shall direct the parties in the notice to file written objections, if any, to the proposed consolidation within 14 days of the notice. If no party objects to the proposed consolidation within the allotted 14 days, the clerk may consolidate the appeals; if the clerk receives a timely objection, the matter shall be referred to the Court for decision.

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I.O.P.-

1. Docketing an Appeal. Appeals are immediately docketed upon receipt of the notice of appeal and district court docket entries. A general docket number is assigned and all counsel and pro se parties are so advised. Failure to pay the docket fee does not prevent the appeal from being docketed but is grounds for dismissal of the appeal by the clerk under the authority of 11th Cir. R. 42-1.

Rev.: 8/18 56 FRAP 12 2. Appearance of Counsel Form. An Appearance of Counsel Form is the required form for the Representation Statement required to be filed by FRAP 12(b). See 11th Cir. R. 46-5.

Cross-Reference: FRAP 3, 13, 46

Rev.: 8/18 57 FRAP 12 FRAP 12.1. Remand After an Indicative Ruling by the District Court on a Motion for Relief That Is Barred by a Pending Appeal

(a) Notice to the Court of Appeals. If a timely motion is made in the district court for relief that it lacks authority to grant because of an appeal that has been docketed and is pending, the movant must promptly notify the circuit clerk if the district court states either that it would grant the motion or that the motion raises a substantial issue.

(b) Remand After an Indicative Ruling. If the district court states that it would grant the motion or that the motion raises a substantial issue, the court of appeals may remand for further proceedings but retains jurisdiction unless it expressly dismisses the appeal. If the court of appeals remands but retains jurisdiction, the parties must promptly notify the circuit clerk when the district court has decided the motion on remand.

(As added Mar. 26, 2009, eff. Dec. 1, 2009.)

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11th Cir. R. 12.1-1 Indicative Ruling by the District Court.

(a) A party who files a motion in the district court that the district court lacks authority to grant because an appeal is pending must, within 14 days after filing the motion, serve and file a motion in this court to stay the appeal until the district court rules on the motion before it. If this court stays the appeal, the party who filed the motion in the district court must, unless this court orders otherwise, file written status reports at 30-day intervals from the date of this court’s order informing this court of the status of the district court proceedings.

(b) If the motion filed in the district court is one that does not request substantive relief from the order or judgment under appeal, such as a motion to correct a clerical error pursuant to Fed.R.Civ.P. 60(a), any party to the appeal may file a motion for a limited remand to give the district court authority to rule on the motion, without waiting for the district court to signify its intentions on the motion. A response and reply may be filed in compliance with FRAP 27 and the corresponding local rules of this court.

(c) If the motion filed in the district court requests substantive relief from the order or judgment under appeal, such as a motion to modify a preliminary injunction or a motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b), the district court may consider whether to grant or deny the motion without obtaining a remand from this court.

(1) If the district court determines that the motion should be denied, the district court may deny the motion without a remand by this court.

(2) If the district court determines that the motion should be granted, the district court should enter an order stating that it intends to grant the motion if this court returns jurisdiction to it.

Rev.: 12/10 58 FRAP 12.1 (i) Any appellant or cross-appellant may file an objection to remand with this court within 14 days after entry of the district court’s order.

(ii) If no objection to remand is filed with this court within 14 days after entry of the district court’s order, this court may remand the case in full to the district court for entry of an order granting relief and will direct the clerk to close the appeal. Any such order shall constitute an express dismissal of the appeal for purposes of FRAP 12.1.

(iii) If an objection to remand is filed with this court within 14 days after entry of the district court’s order, that objection will be treated as a motion for the court to retain jurisdiction. A response and reply may be filed in compliance with FRAP 27 and the corresponding local rules of this court. Upon consideration of the objections and any responses and replies, the court will determine whether to retain jurisdiction over the appeal.

(iv) If the district court enters an order on remand that fails to grant the relief the district court had stated it would grant, any appellant or cross-appellant may, within 30 days after entry of the district court’s order, file a motion in this court to reopen and reinstate the closed appeal.

(d) With respect to any motion described in section (c) of this rule, if the district court determines that the motion raises a substantial issue that warrants further consideration, the district court should enter an order so stating. The district court may without a remand conduct such further proceedings as are necessary to determine whether the motion should be granted or denied.

(1) While such proceedings are pending in the district court, the appeal will remain stayed unless this court orders otherwise.

(2) If the district court thereafter determines that the motion should be denied, the district court may deny the motion without a remand by this court.

(3) If the district court thereafter determines that the motion should be granted, the provisions of section (c)(2) of this rule apply.

(e) Upon the district court’s entry of any order addressing any motion described in FRAP 12.1, the parties must promptly notify this court of such order.

Rev.: 12/10 59 FRAP 12.1 TITLE III. APPEALS FROM THE UNITED STATES TAX COURT

FRAP 13. Appeals from the Tax Court

(a) Appeal as of Right.

(1) How Obtained; Time for Filing a Notice of Appeal.

(A) An appeal as of right from the United States Tax Court is commenced by filing a notice of appeal with the Tax Court clerk within 90 days after the entry of the Tax Court’s decision. At the time of filing, the appellant must furnish the clerk with enough copies of the notice to enable the clerk to comply with Rule 3(d). If one party files a timely notice of appeal, any other party may file a notice of appeal within 120 days after the Tax Court’s decision is entered.

(B) If, under Tax Court rules, a party makes a timely motion to vacate or revise the Tax Court’s decision, the time to file a notice of appeal runs from the entry of the order disposing of the motion or from the entry of a new decision, whichever is later.

(2) Notice of Appeal; How Filed. The notice of appeal may be filed either at the Tax Court clerk’s office in the District of Columbia or by mail addressed to the clerk. If sent by mail the notice is considered filed on the postmark date, subject to § 7502 of the Internal Revenue Code, as amended, and the applicable regulations.

(3) Contents of the Notice of Appeal; Service; Effect of Filing and Service. Rule 3 prescribes the contents of a notice of appeal, the manner of service, and the effect of its filing and service. Form 2 in the Appendix of Forms is a suggested form of a notice of appeal.

(4) The Record on Appeal; Forwarding; Filing.

(A) Except as otherwise provided under Tax Court rules for the transcript of proceedings, the appeal is governed by the parts of Rules 10, 11, and 12 regarding the record on appeal from a district court, the time and manner of forwarding and filing, and the docketing in the court of appeals.

(B) If an appeal is taken to more than one court of appeals, the original record must be sent to the court named in the first notice of appeal filed. In an appeal to any other court of appeals, the appellant must apply to that other court to make provision for the record.

(b) Appeal by Permission. An appeal by permission is governed by Rule 5.

(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 16, 2013, eff. Dec. 1, 2013.)

Rev. 12/13 60 FRAP 13 * * * *

I.O.P. - Payment of Fees. When the notice of appeal is filed in the Tax Court, counsel must pay to the Tax Court the court of appeals docketing fee prescribed by the Judicial Conference of the United States in the Court of Appeals Miscellaneous Fee Schedule issued pursuant to 28 U.S.C. § 1913. Upon receipt of a copy of a notice of appeal, the clerk of the court of appeals will transmit to counsel a notice advising of other requirements of the rules.

Cross-Reference: FRAP 3, 10, 11, 12

Rev.: 8/14 61 FRAP 13 FRAP 14. Applicability of Other Rules to Appeals from the Tax Court

All provisions of these rules, except Rules 4, 6-9, 15-20, and 22-23, apply to appeals from the Tax Court. References in any applicable rule (other than Rule 24(a)) to the district court and district clerk are to be read as referring to the Tax Court and its clerk.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 16, 2013, eff. Dec. 1, 2013.)

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11th Cir. R. 14-1 Applicability of Other Circuit Rules to Appeals from the Tax Court. All provisions of the Eleventh Circuit Rules, except any Eleventh Circuit Rules accompanying FRAP 4, 6-9, 15-20, and 22-23, apply to appeals from the Tax Court. Except as otherwise indicated, as used in any applicable Eleventh Circuit Rule the term “district court” includes the Tax Court, the term “district judge” includes a judge of the Tax Court, and the term “district court clerk” includes the Tax Court clerk.

Rev.: 4/16 62 FRAP 14 TITLE IV. REVIEW OR ENFORCEMENT OF AN ORDER OF AN ADMINISTRATIVE AGENCY, BOARD, COMMISSION, OR OFFICER

FRAP 15. Review or Enforcement of an Agency Order—How Obtained; Intervention

(a) Petition for Review; Joint Petition.

(1) Review of an agency order is commenced by filing, within the time prescribed by law, a petition for review with the clerk of a court of appeals authorized to review the agency order. If their interests make joinder practicable, two or more persons may join in a petition to the same court to review the same order.

(2) The petition must:

(A) name each party seeking review either in the caption or the body of the petition —using such terms as “et al.,” “petitioners,” or “respondents” does not effectively name the parties;

(B) name the agency as a respondent (even though not named in the petition, the United States is a respondent if required by statute); and

(3) Form 3 in the Appendix of Forms is a suggested form of a petition for review.

(4) In this rule “agency” includes an agency, board, commission, or officer; “petition for review” includes a petition to enjoin, suspend, modify, or otherwise review, or a notice of appeal, whichever form is indicated by the applicable statute.

(b) Application or Cross-Application to Enforce an Order; Answer; Default.

(1) An application to enforce an agency order must be filed with the clerk of a court of appeals authorized to enforce the order. If a petition is filed to review an agency order that the court may enforce, a party opposing the petition may file a cross-application for enforcement.

(2) Within 21 days after the application for enforcement is filed, the respondent must serve on the applicant an answer to the application and file it with the clerk. If the respondent fails to answer in time, the court will enter judgment for the relief requested.

(3) The application must contain a concise statement of the proceedings in which the order was entered, the facts upon which venue is based, and the relief requested.

Rev.: 12/10 63 FRAP 15 (c) Service of the Petition or Application. The circuit clerk must serve a copy of the petition for review, or an application or cross-application to enforce an agency order, on each respondent as prescribed by Rule 3(d), unless a different manner of service is prescribed by statute. At the time of filing, the petitioner must:

(1) serve, or have served, a copy on each party admitted to participate in the agency proceedings, except for the respondents;

(2) file with the clerk a list of those so served; and

(3) give the clerk enough copies of the petition or application to serve each respondent.

(d) Intervention. Unless a statute provides another method, a person who wants to intervene in a proceeding under this rule must file a motion for leave to intervene with the circuit clerk and serve a copy on all parties. The motion—or other notice of intervention authorized by statute—must be filed within 30 days after the petition for review is filed and must contain a concise statement of the interest of the moving party and the grounds for intervention.

(e) Payment of Fees. When filing any separate or joint petition for review in a court of appeals, the petitioner must pay the circuit clerk all required fees.

(As amended Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009.)

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11th Cir. R. 15-1 Procedures in Proceedings for Review of Orders of the Federal Energy Regulatory Commission. This court has adopted special rules for these proceedings. See Addendum Two.

11th Cir. R. 15-2 Petitions for Review and Applications for Enforcement. A copy of the order(s) sought to be reviewed or enforced shall be attached to each petition or application which is filed. In an immigration appeal, the petitioner or applicant shall also attach a copy of the Immigration Judge’s order and the Notice to Appear.

11th Cir. R. 15-3 Answer to Application for Enforcement. An answer to an application for enforcement may be served on the petitioner and filed with the clerk within 21 days after the application is filed.

11th Cir. R. 15-4 Motion for Leave to Intervene. A motion for leave to intervene or other notice of intervention authorized by applicable statute may be filed within 30 days of the date on which the petition for review is filed.

* * * *

Rev.: 12/10 64 FRAP 15 I.O.P. -

1. Payment of Fees. The court of appeals docketing fee prescribed by the Judicial Conference of the United States in the Court of Appeals Miscellaneous Fee Schedule issued pursuant to 28 U.S.C. § 1913, is due upon filing of the petition. Checks should be made payable to Clerk, U.S. Court of Appeals, Eleventh Circuit. If the petition is being filed electronically, payments must be made using this court’s Electronic Case Files (ECF) system. Applications to file a petition in forma pauperis are governed by FRAP 24(b).

2. Notice of Origin. Counsel are requested to advise the clerk, at the time of filing, of the petitioner’s place of residence, principal place of business, domicile, or other information concerning place of origin.

3. Federal Energy Regulatory Commission Proceedings. Because these matters usually involve multiple parties before the court, it has adopted special procedures of (a) simplifying and defining issues, (b) agreeing on an appendix and record, (c) assigning joint briefing responsibilities and scheduling briefs, and (d) such other matters as may aid in the disposition of the proceeding. See 11th Cir. R. 15-1 and Addendum Two.

4. National Labor Relations Board Original Contempt Proceedings.

a. Assignment to Panel - When the Board files a petition for adjudication of a respondent for civil contempt of a previously issued order or mandate of this court, the clerk normally refers it back to the original panel which previously heard or decided the matter on its merits. That panel, through the initiating judge, is then responsible for issuance of all preliminary orders including among others the order to show cause fixing the time for filing a response to the pleadings or answer.

If the former panel determines that good reason exists for not assuming direction of the matter (e.g., death or retirement of a panel member or serious legal issue warranting all active judge determination in the event of a visiting judge on the panel), the clerk is notified and under the direction of the chief judge selects by lot a panel of active judges.

b. Where Evidentiary Hearing Required - If the matter indicates that disputed issues of fact are involved requiring an evidentiary hearing, the initiating judge of the panel at that stage usually enters for the panel the Board’s proposed order of reference of the matter for hearing before a special master. The order specifies the nature of the conditions, the hearing, the master’s powers and duties, the filing of the master’s report, including findings of fact, conclusions, and recommendations of the special master.

c. Proceedings After Master’s Report - Once the special master’s report is filed, the parties are advised thereof and of the order of reference fixing the time for filing of any objections, responses to objections, and supporting briefs in support or opposition thereto. When ripe for submission the matter is usually then handled by the court under its usual procedures.

Rev.: 8/18 65 FRAP 15 FRAP 15.1. Briefs and Oral Argument in a National Labor Relations Board Proceeding

In either an enforcement or a review proceeding, a party adverse to the National Labor Relations Board proceeds first on briefing and at oral argument, unless the court orders otherwise.

(As added Mar. 10, 1986, eff. July 1, 1986; amended Apr. 24, 1998, eff. Dec. 1, 1998.)

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11th Cir. R. 15.1-1 Failure to Prosecute. In an enforcement proceeding, if a party adverse to the National Labor Relations Board fails to file or correct the brief or appendix within the time permitted by the rules, the court may take such action as it deems appropriate including, but not limited to, entry of judgment enforcing the Board’s order.

Rev.: 12/13 66 FRAP 15.1 FRAP 16. The Record on Review or Enforcement

(a) Composition of the Record. The record on review or enforcement of an agency order consists of:

(1) the order involved;

(2) any findings or report on which it is based; and

(3) the pleadings, evidence, and other parts of the proceedings before the agency.

(b) Omissions From or Misstatements in the Record. The parties may at any time, by stipulation, supply any omission from the record or correct a misstatement, or the court may so direct. If necessary, the court may direct that a supplemental record be prepared and filed.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

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11th Cir. R. 16-1 Form of Paper Record. When the record on appeal is in paper, the record shall be bound securely with durable front and back covers in a manner that will facilitate reading. The agency shall index the record by means of document numbers in consecutive order.

Cross-Reference: FRAP 10

Rev.: 4/16 67 FRAP 16 FRAP 17. Filing the Record

(a) Agency to File; Time for Filing; Notice of Filing. The agency must file the record with the circuit clerk within 40 days after being served with a petition for review, unless the statute authorizing review provides otherwise, or within 40 days after it files an application for enforcement unless the respondent fails to answer or the court orders otherwise. The court may shorten or extend the time to file the record. The clerk must notify all parties of the date when the record is filed.

(b) Filing—What Constitutes.

(1) The agency must file:

(A) the original or a certified copy of the entire record or parts designated by the parties; or

(B) a certified list adequately describing all documents, transcripts of testimony, exhibits, and other material constituting the record, or describing those parts designated by the parties.

(2) The parties may stipulate in writing that no record or certified list be filed. The date when the stipulation is filed with the circuit clerk is treated as the date when the record is filed.

(3) The agency must retain any portion of the record not filed with the clerk. All parts of the record retained by the agency are a part of the record on review for all purposes and, if the court or a party so requests, must be sent to the court regardless of any prior stipulation.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

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11th Cir. R. 17-1 Certified Extracts of the Record. If a certified list of documents comprising the record is filed in lieu of the formal record, petitioner shall obtain from the agency, board, or commission a certified copy of the portions of the record relied upon by the parties in their briefs, to be numbered and indexed and filed within 21 days from the date of filing of respondent’s brief, with a front and back durable (at least 90#) cover. The front cover shall contain the information specified in 11th Cir. R. 28-1(a) and be captioned “Certified Extracts of the Record.”

Rev.: 12/10 68 FRAP 17 FRAP 18. Stay Pending Review

(a) Motion for a Stay.

(1) Initial Motion Before the Agency. A petitioner must ordinarily move first before the agency for a stay pending review of its decision or order.

(2) Motion in the Court of Appeals. A motion for a stay may be made to the court of appeals or one of its judges.

(A) The motion must:

(i) show that moving first before the agency would be impracticable; or

(ii) state that, a motion having been made, the agency denied the motion or failed to afford the relief requested and state any reasons given by the agency for its action.

(B) The motion must also include:

(i) the reasons for granting the relief requested and the facts relied on;

(ii) originals or copies of affidavits or other sworn statements supporting facts subject to dispute; and

(iii) relevant parts of the record.

(D) The motion must be filed with the circuit clerk and normally will be considered by a panel of the court. But in an exceptional case in which time requirements make that procedure impracticable, the motion may be made to and considered by a single judge.

(b) Bond. The court may condition relief on the filing of a bond or other appropriate security.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

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11th Cir. R. 18-1 Motions. Motions for stay or injunction pending review must include a copy of the decision or order from which relief is sought and of any opinion or findings of the agency.

11th Cir. R. 18-2 Motion for Reconsideration. A motion to reconsider, vacate, or modify an order granting or denying relief under FRAP 18 must be filed within 21 days of the entry of such order. No additional time shall be allowed for mailing.

Rev.: 12/10 69 FRAP 18 * * * *

I.O.P. - Proof of Service Required. Motions for stay or injunction pending review must include proof of service on all parties appearing below.

Cross-Reference: FRAP 27

Rev.: 12/10 70 FRAP 18 FRAP 19. Settlement of a Judgment Enforcing an Agency Order in Part

When the court files an opinion directing entry of judgment enforcing the agency’s order in part, the agency must within 14 days file with the clerk and serve on each other party a proposed judgment conforming to the opinion. A party who disagrees with the agency’s proposed judgment must within 10 days file with the clerk and serve the agency with a proposed judgment that the party believes conforms to the opinion. The court will settle the judgment and direct entry without further hearing or argument.

(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009.)

Rev.: 12/10 71 FRAP 19 FRAP 20. Applicability of Rules to the Review or Enforcement of an Agency Order

All provisions of these rules, except Rules 3-14 and 22-23, apply to the review or enforcement of an agency order. In these rules, “appellant” includes a petitioner or applicant, and “appellee” includes a respondent.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

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11th Cir. R. 20-1 Applicability of Other Circuit Rules to the Review or Enforcement of an Agency Order. All provisions of the Eleventh Circuit Rules, except any Eleventh Circuit Rules accompanying FRAP 3-14 and 22-23, apply to the review or enforcement of any agency order. Except as otherwise indicated, as used in any applicable Eleventh Circuit Rule the term “appellant” includes a petitioner, applicant, or movant, the term “appellee” includes a respondent, and the term “appeal” includes a petition for review or enforcement.

Rev.: 4/16 72 FRAP 20 TITLE V. EXTRAORDINARY WRITS

FRAP 21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs

(a) Mandamus or Prohibition to a Court: Petition, Filing, Service, and Docketing.

(1) A party petitioning for a writ of mandamus or prohibition directed to a court must file a petition with the circuit clerk with proof of service on all parties to the proceeding in the trial court. The party must also provide a copy to the trial court judge. All parties to the proceeding in the trial court other than the petitioner are respondents for all purposes.

(2) (A) The petition must be titled “In re [name of petitioner].”

(B) The petition must state:

(i) the relief sought;

(ii) the issues presented;

(iii) the facts necessary to understand the issue presented by the petition; and

(iv) the reasons why the writ should issue.

(C) The petition must include a copy of any order or opinion or parts of the record that may be essential to understand the matters set forth in the petition.

(3) Upon receiving the prescribed docket fee, the clerk must docket the petition and submit it to the court.

(b) Denial; Order Directing Answer; Briefs; Precedence.

(1) The court may deny the petition without an answer. Otherwise, it must order the respondent, if any, to answer within a fixed time.

(2) The clerk must serve the order to respond on all persons directed to respond.

(3) Two or more respondents may answer jointly.

(4) The court of appeals may invite or order the trial court judge to address the petition or may invite an amicus curiae to do so. The trial court judge may request permission to address the petition but may not do so unless invited or ordered to do so by the court of appeals.

Rev.: 12/16 73 FRAP 21 (5) If briefing or oral argument is required, the clerk must advise the parties, and when appropriate, the trial court judge or amicus curiae.

(6) The proceeding must be given preference over ordinary civil cases.

(7) The circuit clerk must send a copy of the final disposition to the trial court judge.

(c) Other Extraordinary Writs. An application for an extraordinary writ other than one provided for in Rule 21(a) must be made by filing a petition with the circuit clerk with proof of service on the respondents. Proceedings on the application must conform, so far as is practicable, to the procedures prescribed in Rule 21(a) and (b).

(d) Form of Papers; Number of Copies; Length Limits. All papers must conform to Rule 32(c)(2). An original and 3 copies must be filed unless the court requires the filing of a different number by local rule or by order in a particular case. Except by the court’s permission, and excluding the accompanying documents required by Rule 21(a)(2)(C):

(1) a paper produced using a computer must not exceed 7,800 words; and

(2) a handwritten or typewritten paper must not exceed 30 pages.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 28, 2016, eff. Dec. 1, 2016.)

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11th Cir. R. 21-1 Writs of Mandamus and Prohibition and Other Extraordinary Writs.

(a) As part of the required showing of the reasons why the writ should issue, the petition should include a showing that mandamus is appropriate because there is no other adequate remedy available.

(b) The petition shall include a Certificate of Interested Persons and Corporate Disclosure Statement as described in FRAP 26.1 and the accompanying circuit rules.

(c) The petition shall include a proof of service showing that the petition was served on all parties to the proceeding in the district court, and that a copy was provided to the district court judge. Service is the responsibility of the petitioner, not the clerk.

* * * *

I.O.P. - Payment of Fees. The court of appeals docketing fee prescribed by the Judicial Conference of the United States in the Court of Appeals Miscellaneous Fee Schedule issued pursuant to 28 U.S.C. § 1913, is due upon filing of the petition. Checks should be made payable to Clerk, U.S. Court of Appeals, Eleventh Circuit. If the petition is being filed electronically, payments must be made using this court’s Electronic Case Files (ECF) system.

Cross-Reference: FRAP 26.1 Rev.: 8/18 74 FRAP 21 TITLE VI. HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS

FRAP 22. Habeas Corpus and Section 2255 Proceedings

(a) Application for the Original Writ. An application for a writ of habeas corpus must be made to the appropriate district court. If made to a circuit judge, the application must be transferred to the appropriate district court. If a district court denies an application made or transferred to it, renewal of the application before a circuit judge is not permitted. The applicant may, under 28 U.S.C. § 2253, appeal to the court of appeals from the district court’s order denying the application.

(b) Certificate of Appealability.

(1) In a habeas corpus proceeding in which the detention complained of arises from process issued by a state court, or in a 28 U.S.C. § 2255 proceeding, the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c). If an applicant files a notice of appeal, the district clerk must send to the court of appeals the certificate (if any) and the statement described in Rule 11(a) of the Rules Governing Proceedings Under 28 U.S.C. § 2254 or § 2255 (if any), along with the notice of appeal and the file of the district court proceedings. If the district judge has denied the certificate, the applicant may request a circuit judge to issue it.

(2) A request addressed to the court of appeals may be considered by a circuit judge or judges, as the court prescribes. If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals.

(3) A certificate of appealability is not required when a state or its representative or the United States or its representative appeals.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009.)

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11th Cir. R. 22-1 Certificate of Appealability. In all cases brought pursuant to 28 U.S.C. §§ 2241, 2254, or 2255, a timely notice of appeal must be filed.

(a) A party must file a timely notice of appeal even if the district court issues a certificate of appealability. The district court or the court of appeals will construe a party’s filing of an application for a certificate of appealability, or other document indicating an intent to appeal, as the filing of a notice of appeal. If the notice of appeal or its equivalent is filed in the court of appeals, the clerk of that court will note the date it was received and send it to the district court, pursuant to FRAP 4(d).

(b) If the district court denies a certificate of appealability, a party may seek a certificate of appealability from the court of appeals. In the event that a party does not file an application for such

Rev.: 12/10 75 FRAP 22 a certificate, the court of appeals will construe a party’s filing of a timely notice of appeal as an application to the court of appeals for a certificate of appealability.

(c) An application to the court of appeals for a certificate of appealability may be considered by a single circuit judge. The denial of a certificate of appealability, whether by a single circuit judge or by a panel, may be the subject of a motion for reconsideration but may not be the subject of a petition for panel rehearing or a petition for rehearing en banc.

11th Cir. R. 22-2 Length of Application for a Certificate of Appealability. An application to the court of appeals for a certificate of appealability and a brief in support thereof (whether or not they are combined in a single document) collectively may not exceed the maximum length authorized for a party’s principal brief [See FRAP 32(a)(7)]. A response and brief opposing an application is subject to the same limitations.

11th Cir. R. 22-3 Application for Leave to File a Second or Successive Habeas Corpus Petition or Motion to Vacate, Set Aside or Correct Sentence.

(a) Form. An applicant seeking leave to file a second or successive habeas corpus petition or motion to vacate, set aside or correct sentence should use the appropriate form provided by the clerk of this court. In a death sentence case, the use of the form is optional.

(b) Finality of Determination. Consistent with 28 U.S.C. § 2244(b)(3)(E), the grant or denial of an authorization by a court of appeals to file a second or successive habeas corpus petition or a motion pursuant to 28 U.S.C. § 2255 is not appealable and shall not be the subject of a motion for reconsideration, a petition for panel rehearing, or a petition for rehearing en banc.

11th Cir. R. 22-4 Petitions in Capital Cases Pursuant to 28 U.S.C. §§ 2254 and 2255.

(a) Stay Cases

(1) The following rules shall apply to cases brought pursuant to 28 U.S.C. §§ 2254 and 2255 in which a court has imposed a sentence of death, execution has been ordered, a United States District Court has denied a motion to stay execution pending appeal, and the petitioner has appealed to this court and has applied for a stay of execution. Except as changed by these rules the provisions of 11th Cir. R. 27-1 shall apply.

(2) Upon the filing of the notice of appeal in a case where the district court has denied a stay, the clerk of the district court shall immediately notify the clerk of this court by telephone of such filing.

(3) A motion for stay of execution and application for a certificate of appealability (if not granted by the district court) shall be filed with the clerk of this court together with documents required by 11th Cir. R. 27-1.

(4) Upon receipt of the notice of appeal and motion for stay (and application for a certificate of appealability, if not granted by the district court), the clerk shall docket the appeal and assign it to a panel constituted by the court from a roster of the active judges of the court maintained for the

Rev.: 8/17 76 FRAP 22 purposes of these rules. The clerk shall notify the judges of the panel of their assignment by telephone or other expeditious means. The panel to which the appeal is assigned shall handle all matters pertaining to the motion to stay, application for a certificate of appealability, the merits, second or successive petitions, remands from the Supreme Court of the United States, and all incidental and collateral matters, including any separate proceedings questioning the conviction or sentence.

(5) The panel shall consider an application for a certificate of appealability, shall determine whether oral argument will be heard on the motion to stay, and shall determine all other matters pertaining to the appeal.

(6) If the district court has refused to grant a certificate of appealability, and this court also denies a certificate of appealability, no further action need be taken by the court.

(7) If a certificate of appealability is granted by the district court or by this court, the panel may grant a temporary stay pending consideration of the merits of the appeal if necessary to prevent mooting the appeal.

(b) Non-Stay Cases

(1) Applications, petitions, and appeals in capital cases that are not governed by section (a) of this rule shall proceed under the Federal Rules of Appellate Procedure, the Eleventh Circuit Rules, and the usual policies of this court. The ordinary briefing schedule for appeals will be followed to the extent feasible.

(c) Application for an Order Authorizing Second or Successive Habeas Corpus Petition. An application in the court of appeals for an order authorizing the district court to consider a second or successive habeas corpus petition shall be assigned to the panel constituted under section (a)(4) of this Rule to consider habeas corpus appeals, petitions or other related matters with respect to the same petitioner.

* * * * I.O.P. -

1. Certificate of Appealability. Consistent with FRAP 2, the court may suspend the provisions of 11th Cir. R. 22-1(c) and order proceedings in accordance with the court’s direction.

2. Oral Argument in Capital Cases. The presiding judge of the panel will notify the clerk at the appropriate time whether or not there will be oral argument in the case, and if so, the date for oral argument and the amount of oral argument time allotted to each side. A capital case appeal will include oral argument on the merits unless the panel decides unanimously that oral argument is not needed.

Cross-Reference: FRAP 27; 28 U.S.C. §§ 2244, 2254, 2255; Rules 9 and 11 of the Rules Governing Section 2254 and Section 2255 Cases in the United States District Courts.

Rev.: 4/14 77 FRAP 22 FRAP 23. Custody or Release of a Prisoner in a Habeas Corpus Proceeding

(a) Transfer of Custody Pending Review. Pending review of a decision in a habeas corpus proceeding commenced before a court, justice, or judge of the United States for the release of a prisoner, the person having custody of the prisoner must not transfer custody to another unless a transfer is directed in accordance with this rule. When, upon application, a custodian shows the need for a transfer, the court, justice, or judge rendering the decision under review may authorize the transfer and substitute the successor custodian as a party.

(b) Detention or Release Pending Review of Decision Not to Release. While a decision not to release a prisoner is under review, the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court, may order that the prisoner be:

(1) detained in the custody from which release is sought;

(2) detained in other appropriate custody; or

(3) released on personal recognizance, with or without surety.

(c) Release Pending Review of Decision Ordering Release. While a decision ordering the release of a prisoner is under review, the prisoner must—unless the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court orders otherwise—be released on personal recognizance, with or without surety.

(d) Modification of the Initial Order on Custody. An initial order governing the prisoner’s custody or release, including any recognizance or surety, continues in effect pending review unless for special reasons shown to the court of appeals or the Supreme Court, or to a judge or justice of either court, the order is modified or an independent order regarding custody, release, or surety is issued.

(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998.)

Cross-Reference: FRAP 9

Rev.: 12/10 78 FRAP 23 FRAP 24. Proceeding in Forma Pauperis

(a) Leave to Proceed in Forma Pauperis.

(1) Motion in the District Court. Except as stated in Rule 24(a)(3), a party to a district- court action who desires to appeal in forma pauperis must file a motion in the district court. The party must attach an affidavit that:

(A) shows in the detail prescribed by Form 4 of the Appendix of Forms, the party’s inability to pay or to give security for fees and costs;

(B) claims an entitlement to redress; and

(2) Action on the Motion. If the district court grants the motion, the party may proceed on appeal without prepaying or giving security for fees and costs, unless a statute provides otherwise. If the district court denies the motion, it must state its reasons in writing.

(3) Prior Approval. A party who was permitted to proceed in forma pauperis in the district-court action, or who was determined to be financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization, unless:

(A) the district court—before or after the notice of appeal is filed—certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis and states in writing its reasons for the certification or finding; or

(B) a statute provides otherwise.

(4) Notice of District Court’s Denial. The district clerk must immediately notify the parties and the court of appeals when the district court does any of the following:

(A) denies a motion to proceed on appeal in forma pauperis;

(B) certifies that the appeal is not taken in good faith; or

(5) Motion in the Court of Appeals. A party may file a motion to proceed on appeal in forma pauperis in the court of appeals within 30 days after service of the notice prescribed in Rule 24(a)(4). The motion must include a copy of the affidavit filed in the district court and the district court’s statement of reasons for its action. If no affidavit

Rev.: 12/10 79 FRAP 24 was filed in the district court, the party must include the affidavit prescribed by Rule 24(a)(1).

(b) Leave to Proceed in Forma Pauperis on Appeal from the United States Tax Court or on Appeal or Review of an Administrative-Agency Proceeding. A party may file in the court of appeals a motion for leave to proceed on appeal in forma pauperis with an affidavit prescribed by Rule 24(a)(1):

(1) in an appeal from the United States Tax Court; and

(2) when an appeal or review of a proceeding before an administrative agency, board, commission, or officer proceeds directly in the court of appeals.

(c) Leave to Use Original Record. 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.

(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 16, 2013, eff. Dec. 1, 2013.)

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11th Cir. R. 24-1 Appeals In Forma Pauperis and Under the Criminal Justice Act.

(a) To meet the requirements of the Criminal Justice Act of 1964, as amended, 18 U.S.C. § 3006A, the judicial council of this circuit has adopted a plan that supplements the various plans that have been adopted by the United States district courts of this circuit by providing for representation on appeal of parties financially unable to obtain adequate representation. The circuit’s CJA plan, and the guidelines for counsel, appear as Addendum Four to these rules.

(b) If counsel was appointed for a party in the district court under the Criminal Justice Act, the party may appeal without prepaying costs and without establishing the right to proceed in forma pauperis. 18 U.S.C. § 3006A(d)(6). This policy also applies to all in forma pauperis appeals from judgments of conviction.

11th Cir. R. 24-2 Motion for Leave to Proceed on Appeal In Forma Pauperis. A motion for leave to proceed on appeal in forma pauperis may be filed in the court of appeals within 30 days after service of notice of the action of the district court denying leave to proceed on appeal in forma pauperis.

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I.O.P. - Prison Litigation Reform Act. In all civil appeals by prisoners, the Prison Litigation Reform Act of 1995 (hereinafter “the Act”), 28 U.S.C. § 1915 (as amended), requires payment of the court of appeals docketing fee prescribed by the Judicial Conference of the United States in the Court of Appeals Miscellaneous Fee Schedule issued pursuant to 28 U.S.C. § 1913, plus the district court filing fee required by 28 U.S.C. § 1917, payable to the clerk of the United States District Court

Rev.: 8/14 80 FRAP 24 where the prisoner/appellant filed the notice of appeal. Likewise, prior to the filing of a petition for a writ of mandamus (or other writ) the Act requires payment of the court of appeals docketing fee prescribed by the Judicial Conference of the United States in the Court of Appeals Miscellaneous Fee Schedule issued pursuant to 28 U.S.C. § 1913, payable to Clerk, U.S. Court of Appeals, Eleventh Circuit. If a prisoner is unable to pay the required fee in full at the time of filing a notice of appeal or petition for a writ, the appropriate district court (if a notice of appeal is filed) or this court (if a petition for a writ is filed) may allow the prison or other institution of confinement to pay the fee in installments from the prisoner’s account.

Rev.: 8/14 81 FRAP 24 TITLE VII. GENERAL PROVISIONS

FRAP 25. Filing and Service

(a) Filing.

(1) Filing with the Clerk. A paper required or permitted to be filed in a court of appeals must be filed with the clerk.

(2) Filing: Method and Timeliness.

(A) Nonelectronic Filing.

(i) In General. For a paper not filed electronically, filing may be accomplished by mail addressed to the clerk, but filing is not timely unless the clerk receives the papers within the time fixed for filing.

(ii) A Brief or Appendix. A brief or appendix not filed electronically is timely filed, however, if on or before the last day for filing, it is:

• mailed to the clerk by first-class mail, or other class of mail that is at least as expeditious, postage prepaid; or

• dispatched to a third-party commercial carrier for delivery to the clerk within 3 days.

(iii) Inmate Filing. If an institution has a system designed for legal mail, an inmate confined there must use that system to receive the benefit of this Rule 25(a)(2)(A)(iii). A paper not filed electronically by an inmate is timely if it is deposited in the institution’s internal mail system on or before the last day for filing and:

• it is accompanied by: a declaration in compliance with 28 U.S.C. § 1746—or a notarized statement—setting out the date of deposit and stating that first-class postage is being prepaid; or evidence (such as a postmark or date stamp) showing that the paper was so deposited and that postage was prepaid; or

• the court of appeals exercises its discretion to permit the later filing of a declaration or notarized statement that satisfies Rule 25(a)(2)(A)(iii).

(B) Electronic Filing and Signing.

(i) By a Represented Person—Generally Required; Exceptions. A person represented by an attorney must file electronically, unless nonelectronic

Rev.: 12/18 82 FRAP 25 filing is allowed by the court for good cause or is allowed or required by local rule.

(ii) By an Unrepresented Person—When Allowed or Required. A person not represented by an attorney:

• may file electronically only if allowed by court order or by local rule; and

• may be required to file electronically only by court order, or by a local rule that includes reasonable exceptions.

(iii) Signing. A filing made through a person’s electronic-filing account and authorized by that person, together with that person’s name on a signature block, constitutes the person’s signature.

(iv) Same as a Written Paper. A paper filed electronically is a written paper for purposes of these rules.

(3) Filing a Motion with a Judge. If a motion requests relief that may be granted by a single judge, the judge may permit the motion to be filed with the judge; the judge must note the filing date on the motion and give it to the clerk.

(4) Clerk’s Refusal of Documents. The clerk must not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or by any local rule or practice.

(5) Privacy Protection. An appeal in a case whose privacy protection was governed by Federal Rule of Bankruptcy Procedure 9037, Federal Rule of Civil Procedure 5.2, or Federal Rule of Criminal Procedure 49.1 is governed by the same rule on appeal. In all other proceedings, privacy protection is governed by Federal Rule of Civil Procedure 5.2, except that Federal Rule of Criminal Procedure 49.1 governs when an extraordinary writ is sought in a criminal case.

(b) Service of All Papers Required. Unless a rule requires service by the clerk, a party must, at or before the time of filing a paper, serve a copy on the other parties to the appeal or review. Service on a party represented by counsel must be made on the party’s counsel.

(1) Nonelectronic service may be any of the following:

(A) personal, including delivery to a responsible person at the office of counsel;

(B) by mail; or

Rev.: 12/18 83 FRAP 25 (C) by third-party commercial carrier for delivery within 3 days.

(2) Electronic service of a paper may be made (A) by sending it to a registered user by filing it with the court’s electronic-filing system or (B) by sending it by other electronic means that the person to be served consented to in writing.

(3) When reasonable considering such factors as the immediacy of the relief sought, distance, and cost, service on a party must be by a manner at least as expeditious as the manner used to file the paper with the court.

(4) Service by mail or by commercial carrier is complete on mailing or delivery to the carrier. Service by electronic means is complete on filing or sending, unless the party making service is notified that the paper was not received by the party served.

(d) Proof of Service.

(1) A paper presented for filing must contain either of the following:

(A) an acknowledgment of service by the person served; or

(B) proof of service consisting of a statement by the person who made service certifying:

(i) the date and manner of service;

(ii) the names of the persons served; and

(iii) their mail or electronic addresses, facsimile numbers, or the addresses of the places of delivery, as appropriate for the manner of service.

(2) When a brief or appendix is filed by mailing or dispatch in accordance with Rule 25(a)(2)(A)(ii), the proof of service must also state the date and manner by which the document was mailed or dispatched to the clerk.

(3) Proof of service may appear on or be affixed to the papers filed.

(e) Number of Copies. When these rules require the filing or furnishing of a number of copies, a court may require a different number by local rule or by order in a particular case.

(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 26, 2018, eff. Dec. 1, 2018.)

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Rev.: 12/18 84 FRAP 25 11th Cir. R. 25-1 Filings from Party Represented by Counsel. When a party is represented by counsel, the clerk may not accept filings from the party.

11th Cir. R. 25-2 Filing of Papers Transmitted by Alternate Means. The clerk may specially authorize the filing of papers transmitted by alternate means in emergencies and for other compelling circumstances. In such cases, signed originals must thereafter also be furnished by conventional means. Provided that the clerk had given prior authorization for transmission by alternate means and the papers conform to the requirements of FRAP and circuit rules, the signed originals will be filed nunc pro tunc to the receipt date of the papers transmitted by alternate means. The court may act upon the papers transmitted by alternate means prior to receipt of the signed originals.

11th Cir. R. 25-3 Electronic Case Files (ECF) System.

(a) Electronic Filing and Service. It is mandatory that all counsel of record use the court’s Electronic Case Files (ECF) system. Documents must be filed and served electronically by counsel in accordance with the procedures adopted by the court and set forth in the Eleventh Circuit Guide to Electronic Filing. The Eleventh Circuit Guide to Electronic Filing, and information and training materials related to electronic filing, are available on the court’s website at www.ca11.uscourts.gov.

The notice generated and e-mailed by the ECF system constitutes service of all electronically filed documents on attorneys registered to use the ECF system. Independent service, either by paper or otherwise, need not be made on those attorneys. Pro se litigants and attorneys who are exempt from electronic filing must be served by the filing party through the conventional means of service set forth in FRAP 25. A document filed electronically through the ECF system still must contain a certificate of service conforming to the requirements of FRAP 25.

(b) Exemption. Upon motion and a showing of good cause, the court may exempt an attorney from the electronic filing requirements and authorize filing and service by means other than the use of the ECF system. The motion, which need not be filed or served electronically, must be filed at least 14 days before the brief, petition, or other document is due. Also see 11th Cir. R. 31-5.

11th Cir. R. 25-4 Information and Signature Required. All papers filed, including motions and briefs, must contain the name, office address, and telephone number of an attorney or a party proceeding pro se, and be signed by an attorney or by a party proceeding pro se. Inmate filings must be signed by the inmate and should contain name, prisoner number, institution, and street address.

11th Cir. R. 25-5 Maintaining Privacy of Personal Data. In order to promote electronic access to case files while also protecting personal privacy and other legitimate interests, parties shall refrain from including, or shall partially redact where inclusion is necessary, the following personal data identifiers from all pleadings filed with the court, including exhibits thereto, whether filed electronically or in paper, unless otherwise ordered by the court.

a. Social Security numbers and Taxpayer Identification numbers. If an individual’s social security number or taxpayer identification number must be included in a pleading, only the last four digits of that number should be used.

Rev.: 8/13 85 FRAP 25 b. Names of minor children. If the involvement of a minor child must be mentioned, only the initials of that child should be used. For purposes of this rule, a minor child is any person under the age of eighteen years, unless otherwise provided by statute or court order.

c. Dates of birth. If an individual’s date of birth must be included in a pleading, only the year should be used.

d. Financial account numbers. If financial account numbers are relevant, only the last four digits of these numbers should be used.

e. Home addresses. If a home address must be included, only the city and state should be used.

Subject to the exemptions from the redaction requirement contained in the Federal Rules of Civil, Criminal, and Bankruptcy Procedure, as made applicable to the courts of appeals through FRAP 25(a)(5), a party filing a document containing the personal data identifiers listed above shall file a redacted document for the public file and either:

(1) a reference list under seal. The reference list shall contain the complete personal data identifier and the redacted identifier used in its place in the redacted filing. All references in the filing to the redacted identifiers included in the reference list will be construed to refer to the corresponding complete personal data identifiers. The reference list must be filed under seal, may be amended as of right, and shall be retained by the court as part of the record. A motion to file the reference list under seal is not required. Or

(2) an unredacted document under seal, along with a motion to file the unredacted document under seal specifying the type of personal data identifier included in the document and why the party believes that including it in the document is necessary or relevant. If permitted to be filed, both the redacted and unredacted documents shall be retained by the court as part of the record.

The responsibility for redacting these personal data identifiers rests solely with counsel and the parties. The clerk will not review each pleading for compliance with this rule. A person waives the protection of this rule as to the person’s own information by filing it without redaction and not under seal.

Consistent with FRAP 25(a)(5), electronic public access is not provided to pleadings filed with the court in social security appeals and immigration appeals. Therefore, parties in social security appeals and immigration appeals are exempt from the requirements of this rule.

In addition to the foregoing, a party should exercise caution when filing a document that contains any of the following information. A party filing a redacted document that contains any of the following information must comply with the rules for filing an unredacted document as described in numbered paragraph (2) above.

• Personal identifying number, such as driver’s license number; • medical records, treatment and diagnosis; • employment history;

Rev.: 12/15 86 FRAP 25 • individual financial information; • proprietary or trade secret information; • information regarding an individual’s cooperation with the government; • national security information; • sensitive security information as described in 49 U.S.C. § 114(s).

11th Cir. R. 25-6 Court Action with Respect to Impermissible Language or Information in Filings.

(a) When any paper filed with the court, including motions and briefs, contains:

(1) ad hominem or defamatory language; or

(2) information the public disclosure of which would constitute a clearly unwarranted invasion of personal privacy; or

(3) information the public disclosure of which would violate legally protected interests,

the court on motion of a party or on its own motion, may without prior notice take appropriate action.

(b) The appropriate action the court may take in the circumstances described above includes ordering that: the document be sealed; specified language or information be stricken from the document; the document be struck from the record; the clerk be directed to remove the document from electronic public access; the party who filed the document either explain why including the specified language or disclosing the specified information in the document is relevant, necessary, and appropriate or file a redacted or replacement document.

(c) When the court takes such action under this rule without prior notice, the party may within 14 days from the date the court order is issued file a motion to restore language or information stricken or removed from the document or file the document without redaction, setting forth with particularity any reasons why the action taken by the court was unwarranted. The timely filing of such motion will postpone the due date for filing any redacted or replacement document until the court rules on the motion.

11th Cir. R. 25-7 Obligation to Notify Court of Change of Addresses. Each pro se party and attorney exempt from electronic filing requirements has a continuing obligation to notify this court of any changes to the party’s or attorney’s mailing address and e-mail address, if any, during the pendency of the case in which the party or attorney is participating. Every attorney registered to use the ECF system has a continuing obligation to notify the PACER Service Center of any changes to the attorney’s e-mail address, mailing address, telephone number, and fax number. The transmission of court documents to a previous address is effective if the pro se party or attorney has failed to comply with this rule.

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Rev.: 8/18 87 FRAP 25 I.O.P. -

1. Timely Filing of Papers. Except as otherwise provided by FRAP 25(a) for inmate filings and for briefs and appendices, all other papers, including petitions for rehearing, shall not be timely unless they are actually received in the clerk’s office within the time fixed for filing.

2. Acknowledgment of Filings. The clerk will acknowledge paper filings if a stamped self-addressed envelope is provided.

3. Filing with the Clerk. The clerk’s office in Atlanta is the proper place for the filing of all court documents that are exempt from electronic filing. It is open for business from 8:30 a.m. until 5:00 p.m., Eastern time, Monday through Friday (except legal holidays). Staff is available during these hours to receive filings and to respond to over-the-counter and telephone inquiries. Outside of normal business hours, an emergency telephone message system is available through which a deputy clerk may be reached by dialing the main clerk’s office telephone number and following recorded instructions.

4. Papers Sent Directly to Judges’ Chambers. When an attorney or party sends papers related to a pending appeal directly to a judge’s chambers without having received prior approval from the court to do so, the judge shall forward the papers to the clerk for appropriate processing. The clerk will advise the attorney or party that the papers have been received by the clerk, and that the clerk’s office in Atlanta is the proper place for the filing of appellate papers.

5. Miami Satellite Office. The clerk maintains a satellite office in Miami, Florida, to assist parties and counsel to access the record on appeal in appeals being briefed, and to provide other related assistance. It is open for business from 8:30 a.m. until 5:00 p.m., Eastern time, Monday through Friday (except legal holidays).

All filings and case-related inquiries should be directed to the clerk’s principal office in Atlanta, except that counsel who receive a calendar assigning an appeal to a specific day of oral argument in Miami should direct filings and case-related inquiries up to the date of oral argument to the Miami satellite office. Inquiries concerning bar membership, renewal of bar membership, and application for admission to the bar are to be directed to the clerk’s principal office in Atlanta.

Cross-Reference: FRAP 26, 45, “E-Government Act of 2002,” Pub. L. No. 107-347 Cross-Reference for 11th Cir. R. 25-6(a)(2): See 5 U.S.C. § 552b(c)(6) [personal privacy exception to the Freedom of Information Act]

Rev.: 8/18 88 FRAP 25 FRAP 26. Computing and Extending Time

(a) Computing Time. The following rules apply in computing any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time.

(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time:

(A) exclude the day of the event that triggers the period;

(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and

(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.

(2) Period Stated in Hours. When the period is stated in hours:

(A) begin counting immediately on the occurrence of the event that triggers the period;

(B) count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and

(C) if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday.

(3) Inaccessibility of the Clerk’s Office. Unless the court orders otherwise, if the clerk’s office is inaccessible:

(A) on the last day for filing under Rule 26(a)(1), then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday; or

(B) during the last hour for filing under Rule 26(a)(2), then the time for filing is extended to the same time on the first accessible day that is not a Saturday, Sunday, or legal holiday.

(4) “Last Day” Defined. Unless a different time is set by a statute, local rule, or court order, the last day ends:

(A) for electronic filing in the district court, at midnight in the court’s time zone;

Rev.: 12/18 89 FRAP 26 (B) for electronic filing in the court of appeals, at midnight in the time zone of the circuit clerk’s principal office;

(C) for filing under Rules 4(c)(1), 25(a)(2)(A)(ii), and 25(a)(2)(A)(iii)—and filing by mail under Rule 13(a)(2)—at the latest time for the method chosen for delivery to the post office, third-party commercial carrier, or prison mailing system; and

(D) for filing by other means, when the clerk’s office is scheduled to close.

(5) “Next Day” Defined. The “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.

(6) “Legal Holiday” Defined. “Legal holiday” means:

(A) the day set aside by statute for observing New Year’s Day, Martin Luther King Jr.’s Birthday, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, or Christmas Day;

(B) any day declared a holiday by the President or Congress; and

(C) for periods that are measured after an event, any other day declared a holiday by the state where either of the following is located: the district court that rendered the challenged judgment or order, or the circuit clerk’s principal office.

(b) Extending Time. For good cause, the court may extend the time prescribed by these rules or by its order to perform any act, or may permit an act to be done after that time expires. But the court may not extend the time to file:

(1) a notice of appeal (except as authorized in Rule 4) or a petition for permission to appeal; or

(2) a notice of appeal from or a petition to enjoin, set aside, suspend, modify, enforce, or otherwise review an order of an administrative agency, board, commission, or officer of the United States, unless specifically authorized by law.

(c) Additional Time after Certain Kinds of Service. When a party may or must act within a specified time after being served, 3 days are added after the period would otherwise expire under Rule 26(a), unless the paper is delivered on the date of service stated in the proof of service. For purposes of this Rule 26(c), a paper that is served electronically is treated as delivered on the date of service stated in the proof of service.

(As amended Mar. 1, 1971, eff. July 1, 1971; Mar. 10, 1986, eff. July 1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 26, 2018, eff. Dec. 1, 2018.)

Rev.: 12/18 90 FRAP 26 * * * *

11th Cir. R. 26-1 Motion for Extension of Time. A motion for extension of time made pursuant to FRAP 26(b) shall contain a statement that movant’s counsel has consulted opposing counsel and that either opposing counsel has no objection to the relief sought, or will or will not promptly file an objection. In criminal appeals, counsel must state whether the party they represent is incarcerated.

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I.O.P. -

1. Extensions of Time. The court expects the timely filing of all papers within the period of time allowed by the rules, without granting extensions of time. Requests for extensions of time to file the brief or appendix are governed by 11th Cir. R. 31-2. Failure to timely file required documents may cause the appeal to be dismissed for want of prosecution, under the provisions of 11th Cir. R. 42-1, 42-2, or 42-3, or may result in possible disciplinary action against counsel as described in Addendum Eight, or both.

2. Inaccessibility of Clerk’s Office. The court, by order of the chief judge, may determine that inclement weather or other extraordinary conditions have made the clerk’s office inaccessible. If such a determination is made, any filings due to be made on such a day will automatically be processed as timely if received on the day that the clerk’s office reopens for business. Counsel need not make any special application or request for such treatment. Further, parties and their counsel should note that ordinarily local conditions at the place from which filings are sent do not trigger the additional time for filing provisions of FRAP 26(a) except upon application to the clerk and order of court.

Cross-Reference: FRAP 25, 27, 31, 42, 45

Rev.: 12/13 91 FRAP 26 FRAP 26.1. Corporate Disclosure Statement

(a) Who Must File. Any nongovernmental corporate party to a proceeding in a court of appeals must file a statement that identifies any parent corporation and any publicly held corporation that owns 10% or more of its stock or states that there is no such corporation.

(b) Time for Filing; Supplemental Filing. A party must file the Rule 26.1(a) statement with the principal brief or upon filing a motion, response, petition, or answer in the court of appeals, whichever occurs first, unless a local rule requires earlier filing. Even if the statement has already been filed, the party’s principal brief must include the statement before the table of contents. A party must supplement its statement whenever the information that must be disclosed under Rule 26.1(a) changes.

(c) Number of Copies. If the Rule 26.1(a) statement is filed before the principal brief, or if a supplemental statement is filed, the party must file an original and 3 copies unless the court requires a different number by local rule or by order in a particular case.

(As added Apr. 25, 1989, eff. Dec. 1, 1989; amended April 30, 1991, eff. Dec. 1, 1991; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)

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11th Cir. R. 26.1-1 Certificate of Interested Persons and Corporate Disclosure Statement (CIP): Filing Requirements.

(a) Paper or E-Filed CIPs.

(1) Every party and amicus curiae (“filers”) must include a certificate of interested persons and corporate disclosure statement (“CIP”) within every motion, petition, brief, answer, response, and reply filed.

(2) In addition, appellants and petitioners must file a CIP within 14 days after the date the case or appeal is docketed in this court.

(3) Also, all appellees, intervenors, respondents, and all other parties to the case or appeal must file a CIP within 28 days after the date the case or appeal is docketed in this court, regardless of whether appellants and petitioners have filed a CIP. If appellants and petitioners have already filed a CIP, appellees, intervenors, respondents, and all other parties may file a notice either indicating that the CIP is correct and complete, or adding any interested persons or entities omitted from the CIP.

(b) Web-based CIP. On the same day any filer represented by counsel first files its paper or e-filed CIP, that filer must also complete the court’s web-based CIP at www.ca11.uscourts.gov. At the website, counsel for filers will log into the web-based CIP where they will enter stock (“ticker”) symbol information for publicly traded corporations to be used by the court in electronically

Rev.: 12/16 92 FRAP 26.1 checking for recusals. If there is no publicly traded corporation involved, and thus no stock ticker symbol to enter, the filer still must complete the web-based CIP by entering “nothing to declare.”

Failure to complete the web-based CIP will delay processing of the motion, case, or appeal, and may result in other sanctions under 11th Cir. R. 26.1-5(c).

The e-filing of a CIP by an attorney registered to use the ECF system does not relieve that attorney of the requirement to complete and keep updated the web-based CIP. Pro se filers (except attorneys appearing in particular cases as pro se parties) are not required or authorized to complete the web-based CIP.

11th Cir. R. 26.1-2 CIP: Contents.

(a) General. A CIP must contain a complete list of all trial judges, attorneys, persons, associations of persons, firms, partnerships, or corporations that have an interest in the outcome of the particular case or appeal, including subsidiaries, conglomerates, affiliates, parent corporations, any publicly held corporation that owns 10% or more of the party’s stock, and other identifiable legal entities related to a party.

In criminal and criminal-related appeals, the CIP must also disclose the identity of any victims. In bankruptcy appeals, the CIP must also identify the debtor, the members of the creditor’s committee, any entity which is an active participant in the proceedings, and other entities whose stock or equity value may be substantially affected by the outcome of the proceedings.

(b) CIPs in Briefs. The CIP contained in the first brief filed must include a complete list of all persons and entities known to that filer to have an interest in the outcome of the particular case or appeal. The CIP contained in the second and all subsequent briefs filed may include only persons and entities omitted from the CIP contained in the first brief filed and in any other brief that has been filed. Filers who believe that the CIP contained in the first brief filed and in any other brief that has been filed is complete must certify to that effect.

(c) CIPs in Motions or Petitions. The CIP contained in each motion or petition filed must include a complete list of all persons and entities known to that filer to have an interest in the outcome of the particular case or appeal. The CIP contained in a response or answer to a motion or petition, or a reply to a response, may include only persons and entities that were omitted from the CIP contained in the motion or petition. Filers who believe that the CIP contained in the motion or petition is complete must certify to that effect.

(d) CIPs in Petitions for En Banc Consideration. In a petition for en banc consideration, the petitioner’s CIP must also compile and include a complete list of all persons and entities listed on all CIPs previously filed in the case or appeal prior to the date of filing of the petition for en banc consideration. Eleventh Circuit Rule 26.1-2(b) applies to all en banc briefs.

11th Cir. R. 26.1-3 CIP: Form.

(a) The CIP must list persons (last name first) and entities in alphabetical order, have only one column, and be double-spaced. Rev.: 12/15 93 FRAP 26.1 (b) A corporate entity must be identified by its full corporate name as registered with a secretary of state’s office and, if its stock is publicly listed, its stock (“ticker”) symbol must be provided after the corporate name. If no publicly traded company or corporation has an interest in the outcome of the case or appeal, a statement certifying to that effect must be included at the end of the CIP and must be entered into the web-based CIP.

(c) At the top of each page, the court of appeals docket number and short style must be noted (name of first-listed plaintiff or petitioner v. name of first-listed defendant or respondent). Each page of the CIP must be separately sequentially numbered to indicate the total number of pages comprising the CIP (e.g., C-1 of 3, C-2 of 3, C-3 of 3). These pages do not count against any length limitations imposed on the papers filed.

(d) When being included in a document, the CIP must immediately follow the cover page within a brief, and must precede the text in a petition, answer, motion, response, or reply.

11th Cir. R. 26.1-4 CIP: Amendments. Every filer is required to notify the court immediately of any additions, deletions, corrections, or other changes that should be made to its CIP. A filer must do so by filing an amended CIP with the court and by including an amended CIP with all subsequent filings. A filer:

C must prominently indicate on the amended CIP the fact that the CIP has been amended;

C must clearly identify the person or entity that has been added, deleted, corrected, or otherwise changed; and

C if represented by counsel, must update the web-based CIP to reflect the amendments on the same day the amended CIP is filed.

If an amended CIP that deletes a person or entity is filed, every other party must, within 10 days after the filing of the amended CIP, file a notice indicating whether or not it agrees that the deletion is proper.

11th Cir. R. 26.1-5 Failure to Submit a CIP or Complete the Web-based CIP.

(a) The court will not act upon any papers requiring a CIP, including emergency filings, until the CIP is filed and the web-based CIP is completed, except to prevent manifest injustice.

(b) The clerk is not authorized to submit to the court any brief, petition, answer, motion, response, or reply that does not contain the CIP, or any of those papers in a case or appeal where the web-based CIP has not been completed, but may receive and retain the papers pending supplementation of the papers with the required CIP and pending completion of the web-based CIP.

(c) The failure to comply with 11th Cir. Rules 26.1-1 through 26.1-4 may result in dismissal of the case or appeal under 11th Cir. R. 42-1(b), return of deficient documents without action, or other sanctions on counsel, the party, or both.

Cross-Reference: FRAP 5, 5.1, 21, 27, 28, 29, 35 Rev.: 12/16 94 FRAP 26.1 FRAP 27. Motions

(a) In General.

(1) Application for Relief. An application for an order or other relief is made by motion unless these rules prescribe another form. A motion must be in writing unless the court permits otherwise.

(2) Contents of a Motion.

(A) Grounds and relief sought. A motion must state with particularity the grounds for the motion, the relief sought, and the legal argument necessary to support it.

(B) Accompanying documents.

(i) Any affidavit or other paper necessary to support a motion must be served and filed with the motion.

(ii) An affidavit must contain only factual information, not legal argument.

(iii) A motion seeking substantive relief must include a copy of the trial court’s opinion or agency’s decision as a separate exhibit.

(i) A separate brief supporting or responding to a motion must not be filed.

(ii) A notice of motion is not required.

(iii) A proposed order is not required.

(3) Response.

(A) Time to file. Any party may file a response to a motion; Rule 27(a)(2) governs its contents. The response must be filed within 10 days after service of the motion unless the court shortens or extends the time. A motion authorized by Rules 8, 9, 18, or 41 may be granted before the 10-day period runs only if the court gives reasonable notice to the parties that it intends to act sooner.

(B) Request for affirmative relief. A response may include a motion for affirmative relief. The time to respond to the new motion, and to reply to that response, are governed by Rule 27(a)(3)(A) and (a)(4). The title of the response must alert the court to the request for relief.

Rev.: 12/16 95 FRAP 27 (4) Reply to Response. Any reply to a response must be filed within 7 days after service of the response. A reply must not present matters that do not relate to the response.

(b) Disposition of a Motion for a Procedural Order. The court may act on a motion for a procedural order—including a motion under Rule 26(b)—at any time without awaiting a response, and may, by rule or by order in a particular case, authorize its clerk to act on specified types of procedural motions. A party adversely affected by the court’s, or the clerk’s, action may file a motion to reconsider, vacate, or modify that action. Timely opposition filed after the motion is granted in whole or in part does not constitute a request to reconsider, vacate, or modify the disposition; a motion requesting that relief must be filed.

(c) Power of a Single Judge to Entertain a Motion. A circuit judge may act alone on any motion, but may not dismiss or otherwise determine an appeal or other proceeding. A court of appeals may provide by rule or by order in a particular case that only the court may act on any motion or class of motions. The court may review the action of a single judge.

(d) Form of Papers; Length Limits; Number of Copies.

(1) Format.

(A) Reproduction. A motion, response, or reply may be reproduced by any process that yields a clear black image on light paper. The paper must be opaque and unglazed. Only one side of the paper may be used.

(B) Cover. A cover is not required, but there must be a caption that includes the case number, the name of the court, the title of the case, and a brief descriptive title indicating the purpose of the motion and identifying the party or parties for whom it is filed. If a cover is used, it must be white.

(C) Binding. The document must be bound in any manner that is secure, does not obscure the text, and permits the document to lie reasonably flat when open.

(D) Paper size, line spacing, and margins. The document must be on 8½ by 11 inch paper. The text must be double-spaced, but quotations more than two lines long may be indented and single-spaced. Headings and footnotes may be single- spaced. Margins must be at least one inch on all four sides. Page numbers may be placed in the margins, but no text may appear there.

(E) Typeface and type styles. The document must comply with the typeface requirements of Rule 32(a)(5) and the type-style requirements of Rule 32(a)(6).

(2) Length Limits. Except by the court’s permission, and excluding the accompanying documents authorized by Rule 27(a)(2)(B):

Rev.: 12/16 96 FRAP 27 (A) a motion or response to a motion produced using a computer must not exceed 5,200 words;

(B) a handwritten or typewritten motion or response to a motion must not exceed 20 pages;

(D) a handwritten or typewritten reply to a response must not exceed 10 pages.

(3) Number of Copies. An original and 3 copies must be filed unless the court requires a different number by local rule or by order in a particular case.

(e) Oral Argument. A motion will be decided without oral argument unless the court orders otherwise.

(As amended Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 28, 2016, eff. Dec. 1, 2016.)

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11th Cir. R. 27-1 Motions.

(a) Number of Copies and Form of Motion.

(1) When a motion is filed in paper, an original and three copies of the motion and supporting papers must be filed if the motion requires panel action. An original and one copy of the motion and supporting papers must be filed if the motion may be acted upon by a single judge or by the clerk [see 11th Cir. R. 27-1(c) and (d)].

(2) A motion filed in paper must contain proof of service on all parties, and should ordinarily be served on other parties by means which are as equally expeditious as those used to file the motion with the court.

(3) A motion shall be accompanied by, and the opposing party shall be served with, supporting documentation required by FRAP 27, including relevant materials from previous judicial or administrative proceedings in the case or appeal. A party moving for a stay must include a copy of the judgment or order from which relief is sought and any opinion and findings of the district court.

(4) In addition to matters required by FRAP 27, a motion shall contain a brief recitation of prior actions of this or any other court or judge to which the motion, or a substantially similar or related application for relief, has been made.

(5) A motion for extension of time made pursuant to FRAP 26(b) shall, and other motions where appropriate may, contain a statement that movant’s counsel has consulted opposing counsel and that

Rev.: 12/16 97 FRAP 27 either opposing counsel has no objection to the relief sought, or will or will not promptly file an objection.

(6) In criminal appeals, counsel must state whether the party they represent is incarcerated.

(7) Both retained and appointed counsel who seek leave to withdraw from or to dismiss a criminal appeal must recite in the motion that the party they represent has been informed of the motion and either approves or disapproves of the relief sought and show service of the motion on the party they represent.

(8) Appointed counsel who seek leave to withdraw from representation in a criminal appeal must follow procedures set forth by the Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). It is counsel’s responsibility to ensure that the record contains transcripts of relevant proceedings in the case, including pre-trial proceedings, trial proceedings (including opening and closing arguments and jury instructions), and sentencing proceedings. Counsel’s brief in support of a motion to withdraw under Anders must contain a certificate of service indicating service on the party represented as well as on the other parties to the appeal.

(9) All motions filed with the court shall include a Certificate of Interested Persons and Corporate Disclosure Statement as described in FRAP 26.1 and the accompanying circuit rules.

(10) A motion must comply with the typeface and type style requirements of FRAP 32(a)(5) and 32(a)(6).

(11) A motion must comply with the requirement for references to the record found at 11th Cir. R. 28-5.

(b) Emergency Motions.

(1) Except in capital cases in which execution has been scheduled, a motion will be treated as an emergency motion only when both of the following conditions are present:

1. The motion will be moot unless a ruling is obtained within seven days; and

2. If the order sought to be reviewed is a district court order or action, the motion is being filed within seven days of the filing of the district court order or action sought to be reviewed.

Motions that do not meet these two conditions but in which a ruling is required by a date certain may be treated as “time sensitive” motions.

(2) A party requesting emergency action shall label the motion as “Emergency Motion” and state the nature of the emergency and the date by which action is necessary. The motion or accompanying memorandum shall state the reasons for granting the requested relief and must specifically discuss:

(i) the likelihood the moving party will prevail on the merits;

(ii) the prospect of irreparable injury to the moving party if relief is withheld; Rev.: 8/19 98 FRAP 27 (iii) the possibility of harm to other parties if relief is granted; and

(iv) the public interest.

Counsel filing the motion shall make every possible effort to serve the motion personally; if this is not possible, counsel shall notify opposing counsel promptly by telephone.

(3) If the emergency motion raises any issue theretofore raised in a district court, counsel for the moving party shall furnish copies of all pleadings, briefs, memoranda or other papers filed in the district court supporting or opposing the position taken by the moving party in the motion and copies of any order or memorandum decision of the district court relating thereto. If compliance is impossible or impractical due to time restraints or otherwise, the reason for non-compliance shall be stated.

(4) To expedite consideration by the court in a genuine emergency, the movant or his or her counsel must telephone the clerk at the earliest practical time and describe a motion that has not yet been filed in writing. This is not a substitute for the filing required by FRAP 27(a). Failure to notify the clerk via telephone in advance may delay the processing of the motion.

(5) Except in capital cases in which execution has been scheduled, counsel will be permitted to file an emergency motion outside of normal business hours only when both of the following conditions are present:

1. The motion will be moot unless a ruling is obtained prior to noon [Eastern Time] of the next business day; and

2. If the order or action sought to be reviewed is a district court order or action, the motion is being filed within two business days of the filing of the district court order or action sought to be reviewed.

The clerk is authorized, subject to review by the court, to act for the court on the following unopposed procedural motions:

(1) to extend the time for filing briefs or other papers in appeals not yet assigned or under submission;

(2) to withdraw appearances except for court-appointed counsel;

(3) to make corrections at the request of counsel in briefs or pleadings filed in this court;

(4) to extend the time for filing petitions for rehearing for not longer than 28 days, but only when the court’s opinion is unpublished;

Rev.: 8/18 99 FRAP 27 (5) to abate or stay further proceedings in appeals, provided that the requesting party files a written status report with the clerk at 30-day intervals, indicating whether the abatement or stay should continue;

(6) to supplement or correct records;

(7) to consolidate appeals from the same district court;

(8) to incorporate records or briefs from former appeals;

(9) to grant leave to file further reply or supplemental briefs before argument in addition to the single reply brief permitted by FRAP 28(c);

(10) to reinstate appeals dismissed by the clerk;

(11) to enter orders continuing on appeal district court appointments of counsel for purposes of compensation;

(12) to file briefs in excess of the page and type-volume limitations set forth in FRAP 32(a)(7), but only upon a showing of extraordinary circumstances;

(13) to extend the time for filing Bills of Costs.

(14) to permit the release of the record from the clerk’s custody but only upon a showing of extraordinary circumstances;

(15) to grant leave to adopt by reference any part of the brief of another;

(16) to intervene in a proceeding seeking review or enforcement of an agency order;

(17) to intervene pursuant to 28 U.S.C. § 2403;

(18) for substitution of parties.

The clerk is authorized, subject to review by the court, to act for the court on the following opposed procedural motions:

(19) to grant moderate extensions of time for filing briefs or other papers in appeals not yet assigned or under submission unless substantial reasons for opposition are advanced;

(20) to expedite briefing in a direct appeal of a criminal conviction and/or sentence when it appears that an incarcerated defendant’s projected release is expected to occur prior to the conclusion of appellate proceedings.

The clerk is also authorized to carry a motion with the case where there is no need for court action prior to the time the matter is considered on the merits by a panel.

Rev.: 12/13 100 FRAP 27 (d) Motions Acted Upon by a Single Judge. Under FRAP 27(c), a single judge may, subject to review by the court, act upon any request for relief that may be sought by motion, except to dismiss or otherwise determine an appeal or other proceeding. Without limiting this authority, a single judge is authorized to act, subject to review by the court, on the following motions:

(1) where opposed, motions that are subject to action by the clerk under part (c) of this rule;

(2) for certificates of appealability under FRAP 22(b) and 28 U.S.C. § 2254;

(3) to appeal in forma pauperis pursuant to FRAP 24 and 28 U.S.C. § 1915(a);

(4) to appoint counsel for indigent persons appealing from judgments of conviction or from denial of writs of habeas corpus or petitions filed under 28 U.S.C. § 2255, or to permit court appointed counsel to withdraw;

(5) to extend the length of briefs except in capital cases, and to extend the length of petitions for rehearing or rehearing en banc;

(6) to extend the times prescribed by the rules of this court for good cause shown (note that FRAP 26(b) forbids the court to enlarge the time for taking various actions, including the time for filing a notice of appeal); in criminal appeals, counsel requesting an extension of time to file a brief must state whether the party they represent is incarcerated;

(7) to exercise the power granted in FRAP 8 and 9 with respect to stays or injunctions or releases in criminal cases pending appeal but subject to the restrictions set out therein, and under FRAP 18 with respect to stays pending review of decisions or orders of agencies but subject to the restrictions on the power of a single judge contained therein;

(8) to stay the issuance of mandates or recall mandates pending certiorari;

(9) to expedite appeals;

(10) to file briefs as amicus curiae prior to issuance of a panel opinion.

(e) Two-Judge Motions Panels. Specified motions as determined by the court may be acted upon by a panel of two judges.

(f) Motions Shall Not Be Argued. Unless ordered by the court no motion shall be orally argued.

(g) Effect of a Ruling on a Motion. A ruling on a motion or other interlocutory matter, whether entered by a single judge or a panel, is not binding upon the panel to which the appeal is assigned on the merits, and the merits panel may alter, amend, or vacate it.

11th Cir. R. 27-2 Motion for Reconsideration. A motion to reconsider, vacate, or modify an order must be filed within 21 days of the entry of such order. No additional time shall be allowed for mailing.

Rev.: 12/13 101 FRAP 27 11th Cir. R. 27-3 Successive Motions for Reconsideration Not Permitted. A party may file only one motion for reconsideration with respect to the same order. Likewise, a party may not request reconsideration of an order disposing of a motion for reconsideration previously filed by that party.

11th Cir. R. 27-4 Sanctions for Filing a Frivolous Motion. When a party or an attorney practicing before this court files a frivolous motion, the court may, on motion of a party, or on its own motion after notice and a reasonable opportunity to respond, impose an appropriate sanction on the party, the attorney, or both. For purposes of this rule, a motion is frivolous if:

(a) it is without legal merit and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law, or the establishment of new law; or

(b) it contains assertions of material facts that are false or unsupported by the record; or

(c) it is presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

Sanctions may be monetary or nonmonetary in nature. Monetary sanctions may include an order to pay a penalty into the court, or an order directing payment to another party of some or all of the attorney’s fees and expenses incurred by that party as a result of the frivolous motion, or both.

When a motion to impose sanctions is filed under this rule, the court may, if warranted, award to the party prevailing on the motion reasonable attorney’s fees and expenses incurred in presenting or opposing the motion.

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I.O.P. -

1. Routing Procedures to Judges. Pre-submission motions requiring consideration by judges are assigned to motions panels. Composition of these panels is changed at the beginning of each court year in October, and upon a change in the court’s membership. The clerk submits the motion papers to the judges assigned in rotation from a routing log, the effect of which is to route motions randomly to judges based on filing date. In matters requiring panel action, the papers are sent to the first judge (initiating judge), who will transmit them to the second judge with a recommendation. The second judge in turn sends them on to the third judge who returns the file and an appropriate order to the clerk.

2. Emergency Motion Procedure. Emergency motions are assigned in rotation from a separate emergency routing log. The papers are forwarded to all panel members simultaneously. If the matter requires that counsel contact panel members individually, the clerk after first securing panel approval will advise counsel (or parties) of the identity of the panel members to whom the appeal is assigned.

3. Motions to Expedite Appeals. Except as otherwise provided in these rules, and unless the court directs otherwise, an appeal may be expedited only by the court upon motion and for good cause

Rev.: 4/16 102 FRAP 27 shown. Unless the court otherwise specifies, the clerk will fix an appropriate briefing schedule which will permit the appeal to be heard at an early date.

4. Motions after Assignment of Appeal to Calendar. After an appeal is assigned to a non-argument or oral argument calendar, motions in that appeal are circulated to that panel rather than to an administrative motions panel.

5. Signature Required. 11th Cir. R. 25-4 requires motions to be signed by an attorney or by a party proceeding pro se.

6. Acknowledgment of Motions. The clerk will acknowledge filing of a motion if a stamped self- addressed envelope is provided.

7. Withdrawing Motions. If a party no longer requires a ruling by the court on a pending motion, the filing party should file a motion to withdraw the motion.

Cross-Reference: FRAP 8, 9, 18, 26, 26.1, 32, 43; U.S. Sup. Ct. Rule 43

Rev.: 12/16 103 FRAP 27 FRAP 28. Briefs

(a) Appellant’s Brief. The appellant’s brief must contain, under appropriate headings and in the order indicated:

(1) a corporate 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;

(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);

Rev.: 12/16 104 FRAP 28 (9) a short conclusion stating the precise relief sought; and

(10) the certificate of compliance, if required by Rule 32(g)(1).

(b) Appellee’s Brief. 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.

(c) Reply Brief. The appellant may file a brief in reply to the appellee’s brief. Unless the court permits, no further briefs may be filed. A reply brief must contain a table of contents, with page references, and a table of authorities—cases (alphabetically arranged), statutes, and other authorities—with references to the pages of the reply brief where they are cited.

(d) References to Parties. In briefs and at oral argument, counsel should minimize use of the terms “appellant” and “appellee.” To make briefs clear, counsel should use the parties’ actual names or the designations used in the lower court or agency proceeding, or such descriptive terms as “the employee,” “the injured person,” “the taxpayer,” “the ship,” “the stevedore.”

(e) References to the Record. References to the parts of the record contained in the appendix filed with the appellant’s brief must be to the pages of the appendix. If the appendix is prepared after the briefs are filed, a party referring to the record must follow one of the methods detailed in Rule 30(c). If the original record is used under Rule 30(f) and is not consecutively paginated, or if the brief refers to an unreproduced part of the record, any reference must be to the page of the original document. For example:

• Answer p. 7; • Motion for Judgment p. 2; • Transcript p. 231.

Only clear abbreviations may be used. A party referring to evidence whose admissibility is in controversy must cite the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected.

(f) Reproduction of Statutes, Rules, Regulations, etc. If the court’s determination of the issues presented requires the study of statutes, rules, regulations, etc., the relevant parts must be set out in the brief or in an addendum at the end, or may be supplied to the court in pamphlet form.

Rev.: 12/16 105 FRAP 28 (g) [Reserved]

(h) [Reserved]

(i) Briefs in a Case Involving Multiple Appellants or Appellees. In a case involving more than one appellant or appellee, including consolidated cases, any number of appellants or appellees may join in a brief, and any party may adopt by reference a part of another’s brief. Parties may also join in reply briefs.

(j) Citation of Supplemental Authorities. If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989; May 1, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 16, 2013, eff. Dec. 1, 2013; Apr. 28, 2016, eff. Dec. 1, 2016.)

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11th Cir. R. 28-1 Briefs - Contents. Each principal brief shall consist, in the order listed, of the following:

(a) Cover Page. Elements to be shown on the cover page include the court of appeals docket number centered at the top; the name of this court; the title of the case [see FRAP 12(a)]; the nature of the proceeding [e.g., Appeal, Petition for Review]; the name of the court, agency, or board below; the title of the brief, identifying the party or parties for whom the brief is filed; and the name, office address, and telephone number of the attorney. See FRAP 32(a)(2).

(b) Certificate of Interested Persons and Corporate Disclosure Statement. A Certificate of Interested Persons and Corporate Disclosure Statement (“CIP”) is required of every party and amicus curiae. The CIP shall comply with FRAP 26.1 and the accompanying circuit rules, and shall be included within each brief immediately following the cover page.

(c) Statement Regarding Oral Argument. Appellant’s brief shall include a short statement of whether or not oral argument is desired, and if so, the reasons why oral argument should be heard. Appellee’s brief shall include a similar statement. The court will accord these statements due, though not controlling, weight in determining whether oral argument will be heard. See FRAP 34(a) and (f) and 11th Cir. R. 34-3(c).

(d) Table of Contents. The table of contents shall include page references to each section required by this rule to be included within the brief. The table shall also include specific page references to each heading or subheading of each issue argued. Rev.: 12/16 106 FRAP 28 (e) Table of Citations. The Table of Citations shall show the locations in the brief of citations, and shall contain asterisks in the margin identifying the citations upon which the party primarily relies.

(f) Statement Regarding Adoption of Briefs of Other Parties. A party who adopts by reference any part of the brief of another party pursuant to FRAP 28(i) shall include a statement describing in detail which briefs and which portions of those briefs are adopted.

(g) Statement of Subject-Matter and Appellate Jurisdiction. The jurisdictional statement must contain all information required by FRAP 28(a)(4)(A) through (D).

(h) Statement of the Issues.

(i) Statement of the Case. In the statement of the case, as in all other sections of the brief, every assertion regarding matter in the record shall be supported by a reference to the volume number (if available), document number, and page number of the original record where the matter relied upon is to be found. The statement of the case shall briefly recite the nature of the case and shall then include:

(i) the course of proceedings and dispositions in the court below. IN CRIMINAL APPEALS, COUNSEL MUST STATE WHETHER THE PARTY THEY REPRESENT IS INCARCERATED;

(ii) a statement of the facts. A proper statement of facts reflects a high standard of professionalism. It must state the facts accurately, those favorable and those unfavorable to the party. Inferences drawn from facts must be identified as such;

(iii) a statement of the standard or scope of review for each contention. For example, where the appeal is from an exercise of district court discretion, there shall be a statement that the standard of review is whether the district court abused its discretion. The appropriate standard or scope of review for other contentions should be similarly indicated, e.g., that the district court erred in formulating or applying a rule of law; or that there is insufficient evidence to support a verdict; or that fact findings of the trial judge are clearly erroneous under Fed.R.Civ.P. 52(a); or that there is a lack of substantial evidence in the record as a whole to support the factual findings of an administrative agency; or that the agency’s action, findings and conclusions should be held unlawful and set aside for the reasons set forth in 5 U.S.C. § 706(2).

(j) Summary of the Argument. The opening briefs of the parties shall also contain a summary of argument, suitably paragraphed, which should be a clear, accurate and succinct condensation of the argument actually made in the body of the brief. It should not be a mere repetition of the headings under which the argument is arranged. It should seldom exceed two and never five pages.

(k) Argument and Citations of Authority. Citations of authority in the brief shall comply with the rules of citation in the latest edition of either the “Bluebook” (A Uniform System of Citation) or the “ALWD Guide” (Association of Legal Writing Directors’ Guide to Legal Citation). Citations shall reference the specific page number(s) which relate to the proposition for which the case is cited. Rev.: 12/10 107 FRAP 28 For state reported cases the national reporter series should be cross referenced (e.g., Southern Reporter, Southeast Reporter).

(l) Conclusion.

(m) Certificate of Compliance. The certificate described in FRAP 32(g), if required by that rule.

(n) Certificate of Service.

11th Cir. R. 28-2 Appellee’s Brief. An appellee’s brief need not contain items (g), (h), and (i) of 11th Cir. R. 28-1 if the appellee is satisfied with the appellant’s statement.

11th Cir. R. 28-3 Reply Brief. A reply brief need contain only items (a), (b), (d), (e), (k), (m) and (n) of 11th Cir. R. 28-1.

11th Cir. R. 28-4 Briefs from Party Represented by Counsel. When a party is represented by counsel, the clerk may not accept a brief from the party.

11th Cir. R. 28-5 References to the Record. References to the record in a brief shall be to document number and page number. The page number in a transcript is the page number that appears in the header generated by the district court’s electronic filing system (and not the page number assigned by the court reporter). A reference may (but need not) contain the full or abbreviated name of a document.

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I.O.P. -

1. Signature Required. 11th Cir. R. 25-4 requires briefs to be signed by an attorney or by a party proceeding pro se.

2. “One Attorney, One Brief”. Unless otherwise directed by the court, an attorney representing more than one party in an appeal may only file one principal brief (and one reply brief, if authorized), which will include argument as to all of the parties represented by that attorney in that appeal, and one (combined) appendix. A single party responding to more than one brief, or represented by more than one attorney, is similarly bound.

3. Adoption of Briefs of Other Parties. The adoption by reference of any part of the brief of another party pursuant to FRAP 28(i) does not fulfill the obligation of a party to file a separate brief which conforms to 11th Cir. R. 28-1, except upon written motion granted by the court.

4. Waiver of Reply Brief. A party may waive the right to file a reply brief. Immediate notice of such waiver to the clerk will expedite submission of the appeal to the court.

5. Supplemental Briefs. Supplemental briefs may not be filed without leave of court. The court may, particularly after an appeal is orally argued or submitted on the non-argument calendar, call for supplemental briefs on specific issues. Rev.: 8/19 108 FRAP 28 6. Citation of Supplemental Authorities. After a party’s brief has been filed, counsel may direct a letter to the clerk with citations to supplemental authorities. See FRAP 28(j). The body of the letter must not exceed 350 words, including footnotes. If a new case is not reported, copies should be appended. When such a letter is filed in paper, four copies must be filed, with service on opposing counsel.

7. Briefs in Consolidated Cases and Appeals. Unless the parties otherwise agree or the court otherwise orders, the party who filed the first notice of appeal shall be deemed the appellant for purposes of FRAP 28, 30, and 31 and the accompanying circuit rules.

8. Corporate Reorganization - Chapter 11. The first appeal is handled in the usual manner. Counsel shall state in their briefs whether the proceeding is likely to be complex and protracted so that the panel can determine whether it should enter an order directing that it will be the permanent panel for subsequent appeals in the same matter. If there are likely to be successive appeals, a single panel may thus become fully familiar with the case making the handling of future appeals more expeditious and economical for litigants, counsel and court.

9. Requesting Copies of the Record. Pursuant to FRAP 45(d), where there is an original paper record on appeal, that record may not be circulated to counsel or parties. Counsel or parties may obtain copies of specified portions of the record upon payment of the per page copy fee prescribed by the Judicial Conference of the United States in the Court of Appeals Miscellaneous Fee Schedule issued pursuant to 28 U.S.C. § 1913. The copy fee is not automatically waived simply because a party has been allowed to proceed on appeal in forma pauperis, but may be waived by court order upon an appropriate motion supported by an affidavit of indigency which substantially complies with Form 4 in the Appendix to the FRAP Rules.

Requests for copies must be in writing and should identify the items to be copied by reference to the district court docket sheet or the agency’s list of documents comprising the record. Upon receipt of such a written request, this office will advise the requesting party of the total number of pages to be copied and the cost. Upon payment of the required copying fee, the requested copies will be sent.

Cross-Reference: FRAP 26.1, 32.1, 36

Rev.: 12/13 109 FRAP 28 FRAP 28.1. Cross-Appeals

(a) Applicability. This rule applies to a case in which a cross-appeal is filed. Rules 28(a)-(c), 31(a)(1), 32(a)(2), and 32(a)(7)(A)-(B) do not apply to such a case, except as otherwise provided in this rule.

(b) Designation of Appellant. The party who files a notice of appeal first is the appellant for the purposes of this rule and Rules 30 and 34. If notices are filed on the same day, the plaintiff in the proceeding below is the appellant. These designations may be modified by the parties’ agreement or by court order.

(1) Appellant’s Principal Brief. The appellant must file a principal brief in the appeal. That brief must comply with Rule 28(a).

(2) Appellee’s Principal and Response Brief. The appellee must file a principal brief in the cross-appeal and must, in the same brief, respond to the principal brief in the appeal. That appellee’s brief must comply with Rule 28(a), except that the brief need not include a statement of the case unless the appellee is dissatisfied with the appellant’s statement.

(3) Appellant’s Response and Reply Brief. The appellant must file a brief that responds to the principal brief in the cross-appeal and may, in the same brief, reply to the response in the appeal. That brief must comply with Rule 28(a)(2)-(8) and (10), except that none of the following need appear unless the appellant is dissatisfied with the appellee’s statement in the cross-appeal:

(A) the jurisdictional statement;

(B) the statement of the issues;

(D) the statement of the standard of review.

(4) Appellee’s Reply Brief. The appellee may file a brief in reply to the response in the cross-appeal. That brief must comply with Rule 28(a)(2)-(3) and (10) and must be limited to the issues presented by the cross-appeal.

(5) No Further Briefs. Unless the court permits, no further briefs may be filed in a case involving a cross-appeal.

(d) Cover. Except for filings by unrepresented parties, the cover of the appellant’s principal brief must be blue; the appellee’s principal and response brief, red; the appellant’s response and reply brief, yellow; the appellee’s reply brief, gray; an intervenor’s or amicus

Rev.: 12/18 110 FRAP 28.1 curiae’s brief, green; and any supplemental brief, tan. The front cover of a brief must contain the information required by Rule 32(a)(2).

(e) Length.

(1) Page Limitation. Unless it complies with Rule 28.1(e)(2), the appellant’s principal brief must not exceed 30 pages; the appellee’s principal and response brief, 35 pages; the appellant’s response and reply brief, 30 pages; and the appellee’s reply brief, 15 pages.

(2) Type-Volume Limitation.

(A) The appellant’s principal brief or the appellant’s response and reply brief is acceptable if it:

(i) contains no more than 13,000 words; or

(ii) uses a monospaced face and contains no more than 1,300 lines of text.

(B) The appellee’s principal and response brief is acceptable if it:

(i) contains no more than 15,300 words; or

(ii) uses a monospaced face and contains no more than 1,500 lines of text.

(C) The appellee’s reply brief is acceptable if it contains no more than half of the type volume specified in Rule 28.1(e)(2)(A).

(f) Time to Serve and File a Brief. Briefs must be served and filed as follows:

(1) the appellant’s principal brief, within 40 days after the record is filed;

(2) the appellee’s principal and response brief, within 30 days after the appellant’s principal brief is served;

(3) the appellant’s response and reply brief, within 30 days after the appellee’s principal and response brief is served; and

(4) the appellee’s reply brief, within 21 days after the appellant’s response and reply brief is served, but at least 7 days before argument unless the court, for good cause, allows a later filing.

(As amended Apr. 25, 2005, eff. Dec. 1, 2005; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 16, 2013, eff. Dec. 1, 2013; Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 26, 2018, eff. Dec. 1, 2018.)

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Rev.: 12/18 111 FRAP 28.1 11th Cir. R. 28.1-1 Briefs in Cross-Appeals. In addition to the requirements of FRAP 28.1, briefs in cross-appeals are also governed by 11th Cir. R. 28-1 through 28-5 and the Internal Operating Procedures corresponding to those rules.

11th Cir. R. 28.1-2 Briefing Schedule in Cross-Appeals. Except as otherwise provided by 11th Cir. R. 31-1, the initial brief of appellant/cross-appellee shall be served and filed within 40 days after the date on which the record is deemed filed as provided by 11th Cir. R. 12-1. The brief of appellee/cross-appellant shall be served and filed within 30 days after service of the last appellant’s brief. The second brief of appellant/cross-appellee shall be served and filed within 30 days after service of the last appellee/cross-appellant’s brief. Appellee/cross-appellant’s reply brief shall be served and filed within 21 days after service of the last appellant/cross-appellee’s second brief.

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I.O.P. -

1. Designation of Appellant in Cross-Appeals. If parties agree to modify the designation of appellant pursuant to FRAP 28.1(b), counsel are expected to advise the clerk in writing, upon commencement of the briefing schedule, which party will file the first brief.

2. Color of Covers of Briefs in Cross-Appeals. In cross-appeals the color of the covers of briefs shall be as follows:

brief of appellant blue brief of appellee-cross-appellant red brief of cross-appellee and reply brief for appellant yellow reply brief of cross-appellant gray amicus green appellate intervenor green

If supplemental briefs are allowed to be filed by order of the court, the color of their covers shall be tan.

Rev.: 12/18 112 FRAP 28.1 FRAP 29. Brief of an Amicus Curiae

(a) During Initial Consideration of a Case on the Merits.

(1) Applicability. This Rule 29(a) governs amicus filings during a court’s initial consideration of a case on the merits.

(2) When Permitted. The United States or its officer or agency or a state may file an amicus brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court or if the brief states that all parties have consented to its filing, but a court of appeals may prohibit the filing of or may strike an amicus brief that would result in a judge’s disqualification.

(3) Motion for Leave to File. The motion must be accompanied by the proposed brief and state:

(A) the movant’s interest; and

(B) the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.

(4) Contents and Form. An amicus brief must comply with Rule 32. In addition to the requirements of Rule 32, the cover must identify the party or parties supported and indicate whether the brief supports affirmance or reversal. An amicus brief need not comply with Rule 28, but must include the following:

(A) if the amicus curiae is a corporation, a disclosure statement like that required of parties by Rule 26.1;

(B) a table of contents, with page references;

(C) a table of authorities—cases (alphabetically arranged), statutes, and other authorities—with references to the pages of the brief where they are cited;

(D) a concise statement of the identity of the amicus curiae, its interest in the case, and the source of its authority to file;

(E) unless the amicus curiae is one listed in the first sentence of Rule 29(a)(2), a statement that indicates whether:

(i) a party’s counsel authored the brief in whole or in part;

(ii) a party or a party’s counsel contributed money that was intended to fund preparing or submitting the brief; and

Rev.: 12/18 113 FRAP 29 (iii) a person—other than the amicus curiae, its members, or its counsel— contributed money that was intended to fund preparing or submitting the brief and, if so, identifies each such person;

(F) an argument, which may be preceded by a summary and which need not include a statement of the applicable standard of review; and

(G) a certificate of compliance under Rule 32(g)(1), if length is computed using a word or line limit.

(5) Length. Except by the court’s permission, an amicus brief may be no more than one-half the maximum length authorized by these rules for a party’s principal brief. If the court grants a party permission to file a longer brief, that extension does not affect the length of an amicus brief.

(6) Time for Filing. An amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed. An amicus curiae that does not support either party must file its brief no later than 7 days after the appellant’s or petitioner’s principal brief is filed. A court may grant leave for later filing, specifying the time within which an opposing party may answer.

(7) Reply Brief. Except by the court’s permission, an amicus curiae may not file a reply brief.

(8) Oral Argument. An amicus curiae may participate in oral argument only with the court’s permission.

(b) During Consideration of Whether to Grant Rehearing.

(1) Applicability. This Rule 29(b) governs amicus filings during a court’s consideration of whether to grant panel rehearing or rehearing en banc, unless a local rule or order in a case provides otherwise.

(3) Motion for Leave to File. Rule 29(a)(3) applies to a motion for leave.

(4) Contents, Form, and Length. Rule 29(a)(4) applies to the amicus brief. The brief must not exceed 2,600 words.

(5) Time for Filing. An amicus curiae supporting the petition for rehearing or supporting neither party must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the petition is filed. An amicus curiae opposing the petition must

Rev.: 12/18 114 FRAP 29 file its brief, accompanied by a motion for filing when necessary, no later than the date set by the court for the response.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 28, 2010, effective Dec. 1, 2010; Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 26, 2018, eff. Dec. 1, 2018.) * * * *

11th Cir. R. 29-1 Motions for Leave. Motions for leave to file a brief of amicus curiae must comply with FRAP 27 and 11th Cir. R. 27-1, including the requirement of a Certificate of Interested Persons and Corporate Disclosure Statement as described in FRAP 26.1 and the accompanying circuit rules.

11th Cir. R. 29-2 Amicus Brief. In addition to the requirements of FRAP 29(a)(4), an amicus brief must contain items (a), (b), (d), (e), (h), (j), (k), (l), (m) and (n) of 11th Cir. R. 28-1.

11th Cir. R. 29-3 Motion for Leave to File Amicus Brief in Support of Petition for Rehearing En Banc. A request for leave to file an amicus brief in support of a petition for rehearing en banc must be made by motion accompanied by the proposed brief in conformance with 11th Cir. R. 35-5, except that subsections (f) and (k) may be omitted. The proposed amicus brief must not exceed the length limits set out in FRAP 29(b)(4), exclusive of items required by 11th Cir. R. 35-5(a), (b), (c), (d), and (j). The cover must be green. An amicus curiae must file its proposed brief, accompanied by a motion for filing when necessary, no later than seven days after the petition for rehearing en banc being supported is filed. Unless the court directs otherwise, no response to the motion may be filed.

11th Cir. R. 29-4 Motion for Leave to File Amicus Brief in Support of Petition for Panel Rehearing. A request for leave to file an amicus brief in support of a petition for panel rehearing must be made by motion accompanied by the proposed brief in conformance with FRAP 29(a)(3) and (a)(4) and the corresponding circuit rules. The proposed amicus brief must not exceed the length limits set out in FRAP 29(b)(4), exclusive of items that do not count towards page limitations as described in 11th Cir. R. 32-4. The cover must be green. An amicus curiae must file its proposed brief, accompanied by a motion for filing when necessary, no later than seven days after the petition for panel rehearing being supported is filed. Unless the court directs otherwise, no response to the motion may be filed.

* * * * I.O.P. -

1. Citation of Supplemental Authorities. After an amicus brief has been filed, counsel for amicus may direct a letter to the clerk with citations to supplemental authorities. See FRAP 28(j). The body of the letter must not exceed 350 words, including footnotes. If a new case is not reported, copies should be appended. When such a letter is filed in paper, four copies must be filed, with service on counsel for the parties and other amicus curiae in the appeal.

2. Length of Amicus Brief in a Cross-Appeal. The maximum length of an amicus brief in a cross-appeal, regardless of the party supported, is one-half the maximum length authorized by FRAP 28.1(e) for an appellant/cross-appellee’s principal brief.

Cross-Reference: FRAP 26.1

Rev.: 12/18 115 FRAP 29 FRAP 30. Appendix to the Briefs

(a) Appellant’s Responsibility.

(1) Contents of the Appendix. The appellant must prepare and file an appendix to the briefs containing:

(A) the relevant docket entries in the proceeding below;

(B) the relevant portions of the pleadings, charge, findings, or opinion;

(D) other parts of the record to which the parties wish to direct the court’s attention.

(2) Excluded Material. Memoranda of law in the district court should not be included in the appendix unless they have independent relevance. Parts of the record may be relied on by the court or the parties even though not included in the appendix.

(3) Time to File; Number of Copies. Unless filing is deferred under Rule 30(c), the appellant must file 10 copies of the appendix with the brief and must serve one copy on counsel for each party separately represented. An unrepresented party proceeding in forma pauperis must file 4 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.

(b) All Parties’ Responsibilities.

(1) Determining the Contents of the Appendix. The parties are encouraged to agree on the contents of the appendix. In the absence of an agreement, the appellant must, 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. 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. The appellant must include the designated parts in the appendix. The parties must not engage in unnecessary designation of parts of the record, because the entire record is available to the court. This paragraph applies also to a cross-appellant and a cross-appellee.

(2) Costs of Appendix. Unless the parties agree otherwise, the appellant must pay the cost of the appendix. If the appellant considers parts of the record designated by the appellee to be unnecessary, the appellant may advise the appellee, who must then advance the cost of including those parts. The cost of the appendix is a taxable cost. But 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. 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. Rev.: 12/10 116 FRAP 30 (c) Deferred Appendix.

(1) Deferral Until After Briefs Are Filed. 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. Even though the filing of the appendix may be deferred, Rule 30(b) applies; except that a party must designate the parts of the record it wants included in the appendix when it serves its brief, and need not include a statement of the issues presented.

(2) References to the Record.

(A) 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 must be indicated by inserting record page numbers, in brackets, at places in the appendix where those pages of the record appear.

(B) A party who wants to refer directly to pages of the appendix may serve and file copies of the brief within the time required by Rule 31(a), containing appropriate references to pertinent pages of the record. In that event, within 14 days after the appendix is filed, the party must 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.

(d) Format of the Appendix. The appendix must begin with a table of contents identifying the page at which each part begins. The relevant docket entries must follow the table of contents. Other parts of the record must 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. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial formal matters (captions, subscriptions, acknowledgments, etc.) should be omitted.

(e) Reproduction of Exhibits. Exhibits designated for inclusion in the appendix may be reproduced in a separate volume, or volumes, suitably indexed. Four copies must be filed with the appendix, and one copy must be served on counsel for each separately represented party. 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 must be placed in the appendix as an exhibit.

(f) Appeal on the Original Record Without an Appendix. 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.

(As amended Mar. 10, 1986, eff. July 1, 1986; May 1, 1991, eff. Dec. 1, 1991; Apr. 29, 1994; eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009.) Rev.: 8/14 117 FRAP 30 * * * *

11th Cir. R. 30-1 Appendix - Appeals from District Court and Tax Court.

(a) Contents. In appeals from district courts and the tax court, the appellant must file an appendix containing those items required by FRAP 30(a)(1), which are:

C the relevant docket entries in the proceeding below;

C the relevant portions of the pleadings, charge, findings, or opinion;

C the judgment, order, or decision in question; and

C other parts of the record to which the parties wish to direct the court’s attention.

Other than FRAP 30(a)(1), the requirements in FRAP 30 do not apply in this circuit.

Consistent with the requirements of FRAP 30(a)(1) that the appendix contain relevant docket entries and relevant portions of the record, this court has determined that the following items are either relevant docket entries or relevant portions of the record in the types of appeals specified below and thus must be included in the appendix:

(1) the district court or tax court docket sheet, including, in bankruptcy appeals, the bankruptcy court docket sheet;

(2) in an appeal in a criminal case, the indictment, information, or petition as amended;

(3) in an appeal in a civil case, the complaint, answer, response, counterclaim, cross-claim, and any amendments to such items;

(4) those parts of any pretrial order relevant to the issues on appeal;

(5) the judgment or interlocutory order appealed from;

(6) any other order or orders sought to be reviewed, including, in bankruptcy appeals, the order(s) of the bankruptcy court appealed to the district court;

(7) in an appeal from the grant or denial of a petition for a writ of habeas corpus under 28 U.S.C. § 2254, all opinions by any state court previously rendered in the criminal prosecution and related collateral proceedings and appeals, and any state court orders addressing any claims and defenses brought by the petitioner in the federal action. This requirement applies whether or not the state court opinions and orders are contained in the district court record;

(8) any supporting opinion, findings of fact and conclusions of law filed or delivered orally by the court;

Rev.: 12/13 118 FRAP 30 (9) if the correctness of a jury instruction is in issue, the instruction in question and any other relevant part of the jury charge;

(10) a magistrate’s report and recommendation, when appealing a court order adopting same in whole or in part;

(11) findings and conclusions of an administrative law judge, when appealing a court order reviewing an administrative agency determination involving same;

(12) the relevant parts of any document, such as an insurance policy, contract, agreement, or ERISA plan, whose interpretation is relevant to the issues on appeal;

(13) in an appeal in a criminal case in which any issue is raised concerning the guilty plea, the transcript of the guilty plea colloquy and any written plea agreement;

(14) in an appeal in a criminal case in which any issue is raised concerning the sentence, the transcript of the sentencing proceeding, and the presentence investigation report and addenda (under seal in a separate envelope); and

(15) any other pleadings, affidavits, transcripts, filings, documents, or exhibits that any one of the parties believes will be helpful to this court in deciding the appeal.

Except as otherwise permitted by subsection (a)(7) of this rule, under no circumstances should a document be included in the appendix that was not submitted to the trial court.

(b) Appellee’s Responsibility. If the appellant’s appendix is deficient or if the appellee’s brief, to support its position on an issue, relies on parts of the record not included in appellant’s appendix, the appellee must file its own supplemental appendix within seven days of filing its brief. The appellee’s supplemental appendix must not duplicate any documents in the appellant’s appendix.

In an appeal by an incarcerated pro se party, counsel for appellee must submit an appendix that includes the specific pages of any record materials referred to in the argument section of appellee’s brief and those referred to in the argument section of the appellant’s brief that are relevant to the resolution of an issue on appeal.

(c) Time for Filing. A party must file an appendix or supplemental appendix within seven days of filing the party’s brief.

(d) Number of Copies. A pro se party proceeding in forma pauperis may file only one paper copy of the appendix or supplemental appendix, except that an incarcerated pro se party is not required to file an appendix.

Every other party must file two paper copies of the appendix or supplemental appendix within seven days of filing the party’s brief, and if the appeal is classed for oral argument, such party must file an additional three identical paper copies of the appendix previously filed within seven days after the date on the notice from the clerk that the appeal has been classed for oral argument. One copy

Rev.: 12/18 119 FRAP 30 shall be served on counsel for each party separately represented, and on each pro se party. Where multiple parties are on one side of an appeal, they are strongly urged to file a joint appendix.

For counsel using the ECF system, the electronically filed appendix is the official record copy of the appendix. Use of the ECF system does not modify the requirement that counsel must provide to the court the required number of paper copies of the appendix. Counsel will be considered to have complied with this requirement if, on the day the electronic appendix is filed, counsel sends two paper copies to the clerk using one of the methods outlined in FRAP 25(a)(2)(A)(ii). If the appeal is classed for oral argument, counsel must file an additional three identical paper copies of the appendix in accordance with the preceding paragraph. Also see 11th Cir. R. 25-3(a).

(e) Form. The paper appendix shall be reproduced on white paper by any duplicating or copying process capable of producing a clear black image, with a cover containing the information specified in 11th Cir. R. 28-1(a) and captioned “Appendix.” The appendix shall be assembled with a front and back durable (at least 90#) white covering and shall be bound across the top with a secure fastener. Indexing tabs shall be affixed to the first page of each document in the appendix to identify and assist in locating the document. An index identifying each document contained in the appendix and its tab number shall be included immediately following the cover page. The appendix shall include a certificate of service consistent with FRAP 25(d).

11th Cir. R. 30-2 Appendix - Agency Review Proceedings. Except in review proceedings covered by 11th Cir. R. 15-1, in proceedings for review of orders of an agency, board, commission or officer, the petitioner must file an appendix containing those items required by FRAP 30(a)(1), which are:

C the relevant docket entries in the proceeding below;

C the relevant portions of the pleadings, charge, findings, or opinion;

C the judgment, order, or decision in question; and

C other parts of the record to which the parties wish to direct the court’s attention.

Other than FRAP 30(a)(1), the requirements in FRAP 30 do not apply in this circuit.

The requirements concerning the time for filing, number of copies, and form, set out in 11th Cir. R. 30-1(c), (d), and (e), also apply in agency proceedings. In a National Labor Relations Board enforcement proceeding, the party adverse to the Board shall be considered a petitioner for purposes of this rule.

11th Cir. R. 30-3 Electronic Appendix Submission. This rule only applies to attorneys who have been granted an exemption from the use of the ECF system under 11th Cir. R. 25-3(b). On the day the attorney’s paper appendix is served, the attorney must provide the court with an electronic appendix in accordance with directions provided by the clerk. The time for serving and filing an appendix is determined by service and filing of the paper appendix. If corrections are required to be made to the paper appendix, a corrected copy of the electronic appendix must be provided. The certificate of service shall indicate the date of service of the appendix in paper format.

Rev.: 12/18 120 FRAP 30 * * * * I.O.P. - 1. Indexing Tabs on an Appendix. For paper appendices, standard commercially-available indexing tabs or their equivalent which extend beyond the edge of the page should be staggered in sequence from top to bottom along the right-hand side. Tab numbers should correspond to the original document numbers assigned by the district court and noted on the district court docket sheet. The district court docket sheet should also be tabbed and identified. For electronic appendices, separator pages showing the appropriate tab numbers should be used in place of indexing tabs.

2. Appendices in Cross-Appeals. In cross-appeals the appellee-cross-appellant may (but is not required to) file an appendix within seven days of filing their first brief.

Rev.: 8/14 121 FRAP 30 FRAP 31. Serving and Filing Briefs

(a) Time to Serve and File a Brief.

(1) The appellant must serve and file a brief within 40 days after the record is filed. The appellee must serve and file a brief within 30 days after the appellant’s brief is served. The appellant may serve and file a reply brief within 21 days after service of the appellee’s brief but a reply brief must be filed at least 7 days before argument, unless the court, for good cause, allows a later filing.

(2) A court of appeals that routinely considers cases on the merits promptly after the briefs are filed may shorten the time to serve and file briefs, either by local rule or by order in a particular case.

(b) Number of Copies. Twenty-five copies of each brief must be filed with the clerk and 2 copies must be served on each unrepresented party and on counsel for each separately represented party. An unrepresented party proceeding in forma pauperis must file 4 legible copies with the clerk, and one copy must be served on each unrepresented party and 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.

(c) Consequence of Failure to File. If an appellant fails to file a brief within the time provided by this rule, or within an extended time, an appellee may move to dismiss the appeal. An appellee who fails to file a brief will not be heard at oral argument unless the court grants permission.

(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 10, 1986, eff. July 1, 1986; Apr. 29, 1994; eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 26, 2018, eff. Dec. 1, 2018.)

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11th Cir. R. 31-1 Briefs - Time for Serving and Filing.

(a) Briefing Schedule. Except as otherwise provided herein, the appellant shall serve and file a brief within 40 days after the date on which the record is deemed filed as provided by 11th Cir. R. 12-1. The appellee shall serve and file a brief within 30 days after service of the brief of the last appellant. The appellant may serve and file a reply brief within 21 days after service of the brief of the last appellee.

(b) Pending Motions. If any of the following motions or matters are pending in either the district court or the court of appeals at the time the appeal is docketed in the court of appeals or thereafter, the appellant (or appellant/cross-appellee) shall serve and file a brief within 40 days after the date on which the district court or the court of appeals rules on the motion or resolves the matter, and the appeal is allowed to proceed, or within 40 days after the date on which the record is deemed filed as provided by 11th Cir. R. 12-1, whichever is later:

Rev.: 12/18 122 FRAP 31 C Motion to proceed In Forma Pauperis

C Motion for a Certificate of Appealability or to expand a Certificate of Appealability

C Motion of a type specified in FRAP 4(a)(4)(A) or FRAP 4(b)(3)(A)

• Determination of excusable neglect or good cause as specified in FRAP 4(a)(5)(A) or FRAP 4(b)(4)

C Assessment of fees pursuant to the Prisoner Litigation Reform Act

C Appointment and/or withdrawal of counsel

C Request for transcript at government expense

C Designation by appellee of additional parts of the proceedings to be ordered from the court reporter, order by appellee of such parts, or motion by appellee for an order requiring appellant to order such parts, as provided by FRAP 10(b)(3)(B) and (C)

C Motion to consolidate appeals, provided that such motion is filed on or before the date the appellant’s brief is due in any of the appeals which are the subject of such motion

Except as otherwise provided below, if any of the foregoing motions or matters are pending in either the district court or the court of appeals after the appellant (or appellant/cross-appellee) has served and filed a brief, the appellee (or appellee/cross-appellant) shall serve and file a brief within 30 days after the date on which the district court or the court of appeals rules on the motion or resolves the matter, and the appeal is allowed to proceed, or within 30 days after the date on which the supplemental record is deemed filed as provided by 11th Cir. R. 12-1, whichever is later.

When a motion to consolidate appeals is filed or is pending after an appellant has served and filed a brief in any of the appeals which are the subject of such motion, the due date for filing appellee’s brief shall be postponed until the court rules on such motion. If the motion is granted, the appellee (or appellee/cross-appellant) shall serve and file a brief in the consolidated appeals within 30 days after the date on which the court rules on the motion, or within 30 days after service of the last appellant’s brief, whichever is later. If the motion is denied, the appellee (or appellee/cross- appellant) shall serve and file a brief in each separate appeal within 30 days after the date on which the court rules on the motion, or within 30 days after service of the last appellant’s brief in that separate appeal, whichever is later.

(c) Effect of Other Pending Motions on Time for Serving and Filing Brief. Except as otherwise provided in this rule, a pending motion does not postpone the time for serving and filing any brief. However, the filing of a motion to dismiss a criminal appeal based on an appeal waiver in a plea agreement shall postpone the due date for filing appellee’s brief until the court rules on such motion. In addition, a motion to file a brief out-of-time, a motion to file a brief that does not comply with the court’s rules, or a motion to file a replacement brief shall postpone the due date for filing an opposing party’s response brief or reply brief until the court rules on such motion.

Rev.: 8/18 123 FRAP 31 (d) Jurisdictional Question. If, upon review of the district court docket entries, order and/or judgment appealed from, and the notice of appeal, it appears that this court may lack jurisdiction over the appeal or cross-appeal, the court may request the parties to advise the court in writing of their position with respect to the jurisdictional question(s) raised. The issuance of a jurisdictional question does not stay the time for filing appellant’s brief otherwise provided by this rule. Unless otherwise ordered by the court, the due date for filing appellee’s or appellee-cross-appellant’s brief shall be postponed until the court determines that the appeal or cross-appeal shall proceed or directs the parties to address the jurisdictional question(s) in their briefs on the merits. When the court rules on a jurisdictional question, a new due date will be set for filing appellee’s or appellee-cross- appellant’s brief if the appeal or cross-appeal is allowed to proceed.

11th Cir. R. 31-2 Briefs and Appendices - Motion to Extend Time.

(a) First Request for an Extension of Time. A party’s first request for an extension of time to file its brief or appendix or to correct a deficiency in the brief or appendix must set forth good cause. A first request for an extension of 14 days or less may be made by telephone or in writing, is not subject to 11th Cir. R. 26-1, and may be granted by the clerk. A first request for an extension of more than 14 days must be made by written motion setting forth with particularity the facts demonstrating good cause, and will only be acted upon by the court. When a briefing schedule has been established by court order, a first request for an extension must be made by written motion and will only be acted upon by the court. Any motion for extension of time by the court shall be subject to 11th Cir. R. 26-1.

(b) First Request Filed 14 or More Days in Advance. When a party’s first request for an extension of time to file its brief or appendix is filed 14 or more days in advance of the due date for filing the brief or appendix and the requested extension of time is denied in full on a date that is seven or fewer days before the due date or is after the due date has passed, the time for filing the party’s brief or appendix will be extended an additional seven days beyond the initial due date or the date the court order is issued, whichever is later, unless the court orders otherwise.

(c) Seven Days in Advance Requirement. If a party’s first request for an extension of time to file its brief or appendix seeks an extension of more than 14 days, the motion must be filed at least seven days in advance of the due date for filing the brief or appendix. Such a motion received by the clerk less than seven days in advance of the due date for filing the brief or appendix will generally be denied by the court, unless the motion demonstrates that the good cause on which the motion is based did not exist earlier or was not and with due diligence could not have been known earlier or communicated to the court earlier.

(d) Second Request for an Extension of Time. A party’s second request for an extension of time to file its brief or appendix or to correct a deficiency in its brief or appendix is extremely disfavored and is granted rarely. A party’s second request for an extension will be granted only upon a showing of extraordinary circumstances that were not foreseeable at the time the first request was made. A second request must be made by written motion and will only be acted upon by the court.

(e) Extension of Time Must Be Requested Prior to Expiration of Due Date. A request for an extension of time to file the brief or appendix pursuant to this rule must be made or filed prior to the expiration of the due date for filing the brief or appendix. The clerk is without authority to file an Rev.: 8/18 124 FRAP 31 appellant’s motion for an extension of time to file the brief or appendix received by the clerk after the expiration of the due date for filing the brief or appendix. A request for an extension of time to correct a deficiency in the brief or appendix pursuant this rule must be made or filed within 14 days of the clerk’s notice as provided in 11th Cir. R. 42-3. The clerk is without authority to file an appellant’s motion for an extension of time to correct a deficiency in the brief or appendix received by the clerk after the expiration of the 14-day period provided by that rule. [See 11th Cir. R. 42-2 and 42-3 concerning dismissal for failure to prosecute in a civil appeal.]

11th Cir. R. 31-3 Briefs - Number of Copies. One originally signed brief and six copies (total of seven) shall be filed in all appeals, except that pro se parties proceeding in forma pauperis may file one originally signed brief and three copies (total of four). One copy must be served on counsel for each party separately represented.

For counsel using the ECF system, the electronically filed brief is the official record copy of the brief. Use of the ECF system does not modify the requirement that counsel must provide to the court seven paper copies of a brief. Counsel will be considered to have complied with this requirement if, on the day the electronic brief is filed, counsel sends seven paper copies to the clerk using one of the methods outlined in FRAP 25(a)(2)(A)(ii). Also see 11th Cir. R. 25-3(a).

11th Cir. R. 31-4 Expedited Briefing in Criminal Appeals. The clerk is authorized to expedite briefing when it appears that an incarcerated defendant’s projected release is expected to occur prior to the conclusion of appellate proceedings.

11th Cir. R. 31-5 Electronic Brief Submission. This rule only applies to attorneys who have been granted an exemption from the use of the ECF system under 11th Cir. R. 25-3(b). On the day the attorney’s paper brief is served, the attorney must provide the court with an electronic brief in accordance with directions provided by the clerk. The time for serving and filing a brief is determined by service and filing of the paper brief. If corrections are required to be made to the paper brief, a corrected copy of the electronic brief must be provided. The certificate of service shall indicate the date of service of the brief in paper format.

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I.O.P. - Briefing Schedule. The clerk’s office will send counsel and pro se parties a letter confirming the due date for filing appellant’s brief consistent with the provisions of 11th Cir. R. 12-1 and 11th Cir. R. 31-1, but delay in or failure to receive such a letter does not affect the obligation of counsel and pro se parties to file the brief within the time permitted by 11th Cir. R. 31-1. The clerk’s office will also advise counsel and pro se parties of the rules and procedures governing the form of briefs.

Cross-Reference: FRAP 25, 26, 27; “E-Government Act of 2002,” Pub. L. No. 107-347

Rev.: 12/18 125 FRAP 31 FRAP 32. Form of Briefs, Appendices, and Other Papers

(a) Form of a Brief.

(1) Reproduction.

(A) A brief may be reproduced by any process that yields a clear black image on light paper. The paper must be opaque and unglazed. Only one side of the paper may be used.

(B) Text must be reproduced with a clarity that equals or exceeds the output of a laser printer.

(C) Photographs, illustrations, and tables may be reproduced by any method that results in a good copy of the original; a glossy finish is acceptable if the original is glossy.

(2) Cover. Except for filings by unrepresented parties, the cover of the appellant’s brief must be blue; the appellee’s, red; an intervenor’s or amicus curiae’s, green; any reply brief, gray; and any supplemental brief, tan. The front cover of a brief must contain:

(A) the number of the case centered at the top;

(B) the name of the court;

(D) the nature of the proceeding (e.g., Appeal, Petition for Review) and the name of the court, agency, or board below;

(E) the title of the brief, identifying the party or parties for whom the brief is filed; and

(F) the name, office address, and telephone number of counsel representing the party for whom the brief is filed.

(3) Binding. The brief must be bound in any manner that is secure, does not obscure the text, and permits the brief to lie reasonably flat when open.

(4) Paper Size, Line Spacing, and Margins. The brief must be on 8 ½ by 11 inch paper. The text must be double-spaced, but quotations more than two lines long may be indented and single-spaced. Headings and footnotes may be single-spaced. Margins must be at least one inch on all four sides. Page numbers may be placed in the margins, but no text may appear there.

Rev.: 12/16 126 FRAP 32 (5) Typeface. Either a proportionally spaced or a monospaced face may be used.

(A) A proportionally spaced face must include serifs, but sans-serif type may be used in headings and captions. A proportionally spaced face must be 14-point or larger.

(B) A monospaced face may not contain more than 10 ½ characters per inch.

(6) Type Styles. A brief must be set in a plain, roman style, although italics or boldface may be used for emphasis. Case names must be italicized or underlined.

(7) Length.

(A) Page limitation. A principal brief may not exceed 30 pages, or a reply brief 15 pages, unless it complies with Rule 32(a)(7)(B).

(B) Type-Volume Limitation.

(i) A principal brief is acceptable if it:

• contains no more than 13,000 words; or

• uses a monospaced face and contains no more than 1,300 lines of text.

(ii) A reply brief is acceptable if it contains no more than half of the type volume specified in Rule 32(a)(7)(B)(i).

(b) Form of an Appendix. An appendix must comply with Rule 32(a)(1), (2), (3), and (4), with the following exceptions:

(1) The cover of a separately bound appendix must be white.

(2) An appendix may include a legible photocopy of any document found in the record or of a printed judicial or agency decision.

(3) When necessary to facilitate inclusion of odd-sized documents such as technical drawings, an appendix may be a size other than 8 ½ by 11 inches, and need not lie reasonably flat when opened.

(1) Motion. The form of a motion is governed by Rule 27(d).

(2) Other Papers. Any other paper, including a petition for panel rehearing and a petition for hearing or rehearing en banc, and any response to such a petition, must be reproduced in the manner prescribed by Rule 32(a), with the following exceptions:

Rev.: 12/16 127 FRAP 32 (A) A cover is not necessary if the caption and signature page of the paper together contain the information required by Rule 32(a)(2). If a cover is used, it must be white.

(B) Rule 32(a)(7) does not apply.

(d) Signature. Every brief, motion, or other paper filed with the court must be signed by the party filing the paper or, if the party is represented, by one of the party’s attorneys.

(e) Local Variation. Every court of appeals must accept documents that comply with the form requirements of this rule and the length limits set by these rules. By local rule or order in a particular case, a court of appeals may accept documents that do not meet all the form requirements of this rule or the length limits set by these rules.

(f) Items Excluded from Length. In computing any length limit, headings, footnotes, and quotations count toward the limit but the following items do not:

• the cover page;

• a corporate disclosure statement;

• a table of contents;

• a table of citations;

• a statement regarding oral argument;

• an addendum containing statutes, rules, or regulations;

• certificates of counsel;

• the signature block;

• the proof of service; and

• any item specifically excluded by these rules or by local rule.

(g) Certificate of Compliance.

(1) Briefs and Papers That Require a Certificate. A brief submitted under Rules 28.1(e)(2), 29(b)(4), or 32(a)(7)(B)—and a paper submitted under Rules 5(c)(1), 21(d)(1), 27(d)(2)(A), 27(d)(2)(C), 35(b)(2)(A), or 40(b)(1)—must include a certificate by the attorney, or an unrepresented party, that the document complies with the type-volume limitation. The person preparing the certificate may rely on the word or line count of the word-processing system used to prepare the document. The certificate must state the number of words—or the number of lines of monospaced type—in the document.

Rev.: 12/16 128 FRAP 32 (2) Acceptable Form. Form 6 in the Appendix of Forms meets the requirements for a certificate of compliance.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 28, 2016, eff. Dec. 1, 2016.)

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11th Cir. R. 32-1 Binding of Papers. Except as otherwise provided by 11th Cir. R. 30-1(e) for appendices, all papers shall be stapled or bound on the left. All copies presented to the court must be legible.

11th Cir. R. 32-2 Briefs - Cover. The cover of the brief must clearly indicate the name of the party on whose behalf the brief is filed. Each copy must comply with FRAP, have a cover of durable quality (at least 90#) on both front and back sides, and be securely bound along the left-hand margin so as to insure that the bound copy will not loosen or fall apart or the cover be detached by shipping and use. Exposed metal prong paper fasteners are prohibited on briefs.

11th Cir. R. 32-3 Briefs - Form.

Only the cover page, the certificate of service, direct quotes, headings and footnotes may be single-spaced. All other typed matter must be double-spaced, including the Table of Contents and the Table of Citations. The court may reject or require recomposition of a brief for failure to comply.

The clerk may exercise very limited discretion to permit the filing of briefs in which the violation of FRAP and circuit rules governing the format of briefs is exceedingly minor if in the judgment of the clerk recomposition of the brief would be unwarranted.

Except as otherwise provided in the preceding paragraph, unless each copy of the brief, in the judgment of the clerk, conforms to this rule and to provisions of FRAP 32(a), the clerk may conditionally file the brief, subject to the requirement that the party file in the office of the clerk a complete set of replacement briefs which comply with FRAP and circuit rules within 14 days of issuance of notice by the clerk that the briefs have been conditionally filed. The clerk’s notice shall specify the matters requiring correction. No substantive changes may be made to the brief. The time for filing of the opposing party’s brief runs from the date of service of the conditionally filed brief and is unaffected by the later substitution of corrected copies pursuant to this rule.

11th Cir. R. 32-4 Briefs - Page Numbering and Length. The pages of each brief shall be consecutively numbered except that materials referred to in 11th Cir. R. 28-1(a), (b), (c), (d), (e), (f), (g), (m) and (n) and any addendum containing statutes, rules, or regulations need not be numbered and do not count towards page limitations or type-volume limitations. Motions for leave to file briefs which do not comply with the limitations set forth in FRAP 28.1(e) or FRAP 32(a)(7), as applicable, must be filed at least seven days in advance of the due date of the brief. The court looks with disfavor upon such motions and will only grant such a motion for extraordinary and compelling reasons.

* * * * Rev.: 12/16 129 FRAP 32 I.O.P. -

1. Color of Covers of Briefs. The covers of briefs operate for a busy court like traffic signals. It is important to efficient paper flow for those signals to be correct. The color of the covers of briefs shall be as follows:

brief of appellant -- blue brief of appellee -- red reply brief of appellant -- gray amicus -- green appellate intervenor -- green

If supplemental briefs are allowed to be filed by order of the court, the color of their covers shall be tan.

For cross-appeals, see I.O.P. 2, Color of Covers of Briefs in Cross-Appeals, following FRAP 28.1.

2. Form of Printing- Legibility. While the court encourages inexpensive forms of reproduction to minimize costs, counsel should personally check each copy of the brief for legibility, completeness, and a proper binding since copies distributed to the court are selected at random. It is also essential that the size type conform to the requirements of FRAP 32(a).

3. Briefs - Miscellaneous Information.

a. Certificate of Service - The certificate of service required by FRAP 25(d) must be shown at the conclusion of the brief.

b. Acknowledgment of Briefs - The clerk will acknowledge filing of a brief if a stamped self-addressed envelope is provided.

c. Sample Briefs and Appendices - Upon request, the clerk’s office will loan to counsel sample briefs and appendices that comply with the prescribed form.

4. Brief Binding. Federal Rule of Appellate Procedure 32(a)(3) requires that briefs be bound in a “manner that is secure, does not obscure the text, and permits the brief to lie reasonably flat when open.” In the Court’s view, only spiral and wire binding permit briefs to lie flat when open. For that reason, although the Court does not require any particular type of binding, it prefers that parties file briefs which are either spiral- or wire-bound instead of comb-bound, velo-strip-bound, tape-bound, metal-fastener-bound, thermal-bound, or stapled.

Rev.: 1/19 130 FRAP 32 FRAP 32.1. Citing Judicial Dispositions

(a) Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:

(i) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and

(ii) issued on or after January 1, 2007.

(b) Copies Required. If a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in which it is cited.

(As added Apr. 12, 2006, eff. Dec. 1, 2006.)

Cross-Reference: FRAP 28, 36

Rev.: 12/10 131 FRAP 32.1 FRAP 33. Appeal Conferences

The court may direct the attorneys—and, when appropriate, the parties—to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement. A judge or other person designated by the court may preside over the conference, which may be conducted in person or by telephone. Before a settlement conference, the attorneys must consult with their clients and obtain as much authority as feasible to settle the case. The court may, as a result of the conference, enter an order controlling the course of the proceedings or implementing any settlement agreement.

(As amended Apr. 29, 1994; eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.)

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11th Cir. R. 33-1 Kinnard Mediation Center.

(a) Filing Civil Appeal Statement.

A Civil Appeal Statement is required in all civil appeals, except as provided in section (a)(3) below.

(1) Civil appeals from United States district courts. When notice of the filing of a notice of appeal is served pursuant to FRAP 3(d), the clerk of the district court shall notify the appellant(s) (and cross-appellant(s)) that a Civil Appeal Statement form is available as provided in section (a)(4) below. The appellant(s) (and cross-appellant(s)) shall file with the clerk of the court of appeals, with service on all other parties, a completed Civil Appeal Statement within 14 days after the date the appeal is docketed in this court. The completed Civil Appeal Statement shall set forth information necessary for an understanding of the nature of the appeal. Any appellee may file a response with the court of appeals within 10 days of the receipt of the completed Civil Appeal Statement and shall serve a copy of the response on all other parties.

(2) Review of administrative agency orders and appeals from the United States Tax Court. When the clerk of the court of appeals notifies the parties that an appeal or petition has been docketed, the clerk shall also notify the appellant(s)/petitioner(s) (and cross-appellant(s)/cross- petitioner(s)) that a Civil Appeal Statement form is available as provided in section (a)(4) below. The appellant(s)/petitioner(s) (and cross-appellant(s)/cross-petitioner(s)) shall file with the clerk of the court of appeals, with service on all other parties, a completed Civil Appeal Statement within 14 days from the date the notice was transmitted by the clerk of the court of appeals. The completed Civil Appeal Statement shall set forth information necessary for an understanding of the nature of the appeal or petition. Any appellee/respondent may file a response with the court of appeals within 10 days of the receipt of the completed Civil Appeal Statement and shall serve a copy of the response on all other parties.

(3) A Civil Appeal Statement is not required to be filed in (1) appeals or petitions in which any party is proceeding without the assistance of counsel or in which any party is incarcerated; (2)

Rev.: 4/18 132 FRAP 33 appeals from habeas corpus actions filed under 28 U.S.C. §§ 2241, 2254, and 2255; and (3) immigration appeals.

(4) Availability of Civil Appeal Statement forms. The Civil Appeal Statement form is available on the Internet at www.ca11.uscourts.gov. Copies may also be obtained from the clerk of the court of appeals and from the clerk of each district court within the Eleventh Circuit.

(b) [Rescinded]

(1) An active or senior judge of the court of appeals, a panel of judges (either before or after oral argument), or the Kinnard Mediation Center, by appointment of the court, may direct counsel and parties in an appeal to participate in mediation conducted by the court’s circuit mediators. Mediations are official court proceedings and the Kinnard Mediation Center circuit mediators act on behalf of the court. Counsel for any party may request mediation in an appeal in which a Civil Appeal Statement is required to be filed if he or she thinks it would be helpful. Such requests will not be disclosed by the Kinnard Mediation Center to opposing counsel without permission of the requesting party. The purposes of the mediation are to explore the possibility of settlement of the dispute, to prevent unnecessary motions or delay by attempting to resolve any procedural problems in the appeal, and to identify and clarify issues presented in the appeal. Mediation sessions are held in person or by telephone. Counsel must, except as waived by the mediator in advance of the mediation date, have the party available during the mediation. Should waiver of party availability be granted by the mediator, counsel must have the authority to respond to settlement proposals consistent with the party’s interests. The mediator may require the physical presence of the party at an in-person mediation or the telephone participation of the party in a telephone mediation. For a governmental or other entity for which settlement decisions must be made collectively, the availability, presence, or participation requirement may be satisfied by a representative authorized to negotiate on behalf of that entity and to make recommendations to it concerning settlement.

(2) A judge who participates in the mediation or becomes involved in the settlement discussions pursuant to this rule will not sit on a judicial panel that deals with that appeal.

(3) Communications made during the mediation and any subsequent communications related thereto shall be confidential. Such communications shall not be disclosed by any party or participant in the mediation in motions, briefs, or argument to the Eleventh Circuit Court of Appeals or to any court or adjudicative body that might address the appeal’s merits, except as necessary for enforcement of Rule 33-1 under paragraph (f)(2), nor shall such communications be disclosed to anyone not involved in the mediation or otherwise not entitled to be kept informed about the mediation by reason of a position or relationship with a party unless the written consent of each mediation participant is obtained. Counsel’s motions, briefs, or argument to the court shall not contain any reference to the Kinnard Mediation Center.

(d) Confidential Mediation Statement. The court requires, except as waived by the circuit mediator, that counsel in appeals selected for mediation send a confidential mediation statement assessing the appeal to the Kinnard Mediation Center before the mediation. The Kinnard Mediation

Rev.: 4/18 133 FRAP 33 Center will not share the confidential mediation statement with the other side, and it will not become part of the court file.

(e) Filing Deadlines. The filing of a Civil Appeal Statement or the scheduling of mediation does not extend the time for ordering any necessary transcript (pursuant to 11th Cir. R. 10-1) or for filing briefs (pursuant to 11th Cir. R. 31-1). Such time may be extended by a circuit mediator to comply with these rules if there is a substantial probability the appeal will settle and the extension will prevent the unnecessary expenditure of time and resources by counsel, the parties, and the court.

(f) Noncompliance Sanctions.

(1) If the appellant or petitioner has not taken the action specified in paragraph (a) of this rule within the time specified, the appeal or petition may be dismissed by the clerk of the court of appeals after appropriate notice pursuant to 11th Cir. R. 42-1.

(2) Upon failure of a party or attorney to comply with the provisions of this rule or the provisions of the court’s notice of mediation, the court may assess reasonable expenses caused by the failure, including attorney’s fees; assess all or a portion of the appellate costs; dismiss the appeal; or take such other appropriate action as the circumstances may warrant.

(g) Use of Private Mediators.

(1) Upon agreement of all parties, a private mediator may be employed by the parties, at their expense, to mediate an appeal that has been selected for mediation by the Kinnard Mediation Center.

(2) Such private mediator (i) shall have been certified or registered as a mediator by either the State of Alabama, Florida, or Georgia for the preceding five years; (ii) shall have been admitted to practice law in either the State of Alabama, Florida, or Georgia for the preceding fifteen years and be currently in good standing; and (iii) shall be currently admitted to the bar of this court.

(3) All persons while employed as private mediators shall follow the private mediator procedures as set forth by the Kinnard Mediation Center.

(4) The provisions of this subsection (g) shall be in effect until discontinued by the Chief Circuit Mediator or by the court.

Rev.: 4/18 134 FRAP 33 FRAP 34. Oral Argument

(a) In General.

(1) Party’s Statement. Any party may file, or a court may require by local rule, a statement explaining why oral argument should, or need not, be permitted.

(2) Standards. Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of the following reasons:

(A) the appeal is frivolous;

(B) the dispositive issue or issues have been authoritatively decided; or

(C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.

(b) Notice of Argument; Postponement. The clerk must advise all parties whether oral argument will be scheduled, and, if so, the date, time, and place for it, and the time allowed for each side. A motion to postpone the argument or to allow longer argument must be filed reasonably in advance of the hearing date.

(c) Order and Contents of Argument. The appellant opens and concludes the argument. Counsel must not read at length from briefs, records, or authorities.

(d) Cross-Appeals and Separate Appeals. If there is a cross-appeal, Rule 28.1(b) determines which party is the appellant and which is the appellee for purposes of oral argument. Unless the court directs otherwise, a cross-appeal or separate appeal must be argued when the initial appeal is argued. Separate parties should avoid duplicative argument.

(e) Nonappearance of a Party. If the appellee fails to appear for argument, the court must hear appellant’s argument. If the appellant fails to appear for argument, the court may hear the appellee’s argument. If neither party appears, the case will be decided on the briefs, unless the court orders otherwise.

(f) Submission on Briefs. The parties may agree to submit a case for decision on the briefs, but the court may direct that the case be argued.

(g) Use of Physical Exhibits at Argument; Removal. Counsel intending to use physical exhibits other than documents at the argument must arrange to place them in the courtroom on the day of the argument before the court convenes. After the argument, counsel must remove the exhibits from the courtroom, unless the court directs otherwise. The clerk may destroy or dispose of the exhibits if counsel does not reclaim them within a reasonable time after the clerk gives notice to remove them.

Rev.: 12/10 135 FRAP 34 (As amended Mar. 10, 1986, eff. July 1, 1986; May 1, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 25, 2005, eff. Dec. 1, 2005.)

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11th Cir. R. 34-1 Sessions.

(a) At least one session of the court shall ordinarily be held each court year in each state of the circuit. Sessions may be scheduled at any location having adequate facilities. The court may assign the hearing of any appeal to another time or place of sitting.

(b) Regular and special sessions of the court may be held at the following places: Atlanta, Jacksonville, Miami, Montgomery, Tallahassee and Tampa.

11th Cir. R. 34-2 Quorum. Unless otherwise directed, a panel of the court shall consist of three judges. When an appeal is assigned to an oral argument panel, at least two judges shall be judges of this court unless such judges cannot sit because recused or disqualified or unless the chief judge certifies that there is an emergency including, but not limited to, the unavailability of a judge of the court because of illness. Any two judges of a panel constitute a quorum. If a judge of a panel that has taken an appeal or matter under submission is not able to participate in a decision, the two remaining judges, whether or not they are both judges of this court, may decide the appeal or may request the chief judge or a delegate of the chief judge to designate another judge to sit in place of the judge unable to participate. No further argument will be had or briefs received unless ordered.

Prior to oral argument, if a judge of an oral argument panel to which an appeal has been assigned determines that he or she cannot sit for reasons other than recusal or disqualification, the two remaining judges, whether or not they are both judges of this court, may hear oral argument. If the third judge is thereafter able to participate as a panel member, the third judge may listen to the oral argument recording and participate in the decision. If the third judge is thereafter not able to participate as a panel member, the two remaining judges may proceed as provided in the paragraph above.

Prior to oral argument, if a judge of an oral argument panel to which an appeal has been assigned determines that he or she cannot sit because recused or disqualified, the two remaining judges, whether or not they are both judges of this court, may: (1) proceed by quorum to hear oral argument and decide the appeal; (2) return the appeal to the clerk for placement on another calendar; or (3) request the chief judge or a delegate of the chief judge to designate another judge to sit in place of the recused or disqualified judge. For purposes of this rule, an appeal is considered assigned to an oral argument panel when the clerk notifies counsel of the specific day of the week on which oral argument in the appeal is scheduled to be heard. Prior to that time, a recusal or disqualification will ordinarily result in the appeal being transferred to another calendar.

Following the issuance of an opinion by a panel of three judges, if a judge of the panel recuses or is disqualified, the two remaining judges, whether or not they are both judges of this court, may proceed by quorum to take such further actions as are deemed appropriate.

Rev.: 12/10 136 FRAP 34 11th Cir. R. 34-3 Non-Argument Calendar.

(a) The court maintains a two-calendar system for consideration and decision of appeals in the interest of efficient and appropriate use of judicial resources, control of the docket by the court, minimizing unnecessary expenditure of government funds, and lessening delay in decisions.

(b) When a panel of judges of the court unanimously determines, after an examination of the briefs and records, that an appeal of a party falls within one of the three categories of FRAP 34(a)(2):

(l) the appeal is frivolous; or

(2) the dispositive issue or set of issues has been authoritatively determined; or

(3) the facts and legal arguments are adequately presented in the briefs and record and the decisional process will not be significantly aided by oral argument; that appeal will be placed on the non-argument calendar for submission and decision without oral argument. If at any time before decision a judge on the non-argument panel concludes that oral argument is desired, that appeal will be transferred to the oral argument calendar. Except as provided in subparagraphs (d) and (f) of this rule, decision without oral argument must be unanimous, and no dissenting or special concurring opinion may be filed.

(d) Pursuant to FRAP 34(f), if parties state that they do not desire oral argument or otherwise agree that an appeal shall be submitted on briefs, that appeal may be placed on the non-argument calendar even though it does not fall within one of the requirements of FRAP 34(a). The decision in that appeal need not be unanimous and a dissent or special concurrence may be filed.

(e) Panels of three judges are drawn to serve as non-argument panels to determine whether appeals should be placed on the non-argument calendar and to receive submission of and decide non-argument appeals. In appeals involving multiple parties, a non-argument panel judge may determine that the appeals of fewer than all parties shall be scheduled for oral argument, and that the appeals of the remaining parties shall be submitted to the assigned oral argument panel for decision on the briefs. Or, a non-argument panel may decide the appeals of fewer than all parties without oral argument and may schedule the appeals of the remaining parties for oral argument.

(f) When an appeal is assigned to an oral argument panel, the oral argument panel, whether or not composed of only active judges, may by unanimous vote determine that the appeal will be decided by the panel without oral argument, or transfer the appeal to the non-argument calendar. In appeals involving multiple parties, an oral argument panel may by unanimous vote determine that the appeals of fewer than all parties will be decided by the panel without oral argument, and that the appeals of the remaining parties will be scheduled for oral argument.

Rev.: 8/12 137 FRAP 34 11th Cir. R. 34-4 Oral Argument Calendar.

(a) General. All appeals not assigned to the non-argument calendar shall be assigned to the oral argument calendar. Appeals to be orally argued will be calendared by the clerk based upon the court’s calendaring priorities. Counsel for each party scheduled to present oral argument to the court must appear for oral argument unless excused by the court for good cause shown. The oral argument calendar will show the time the court has allotted for each argument.

(b) Waiver or Submission Without Argument. After an appeal has been scheduled for oral argument, argument may only be waived by the court upon motion filed in advance of the date set for hearing. If counsel for parties agree to submit the appeal on briefs, that appeal will be governed by FRAP 34(f).

(c) Failure to Appear for Oral Argument. If counsel for appellant fails to appear in an appeal from criminal conviction, the court will not hear argument from the United States; in all other appeals, the court may hear argument from counsel present.

(d) Number of Counsel to Be Heard. Only two counsel will be heard for each party whose appeal is scheduled to be argued, and the time allowed may be apportioned between counsel at their discretion.

(e) Expediting Appeals. The court may, on its own motion or for good cause shown on motion of a party, advance an appeal for hearing and prescribe an abbreviated briefing schedule.

(f) Continuance of Hearing. After an appeal has been set for hearing it may not be continued by stipulation of the parties or their counsel but only by an order of the court on good cause shown. Usually the engagement of counsel in other courts will not be considered good cause.

(g) Sealing Oral Arguments. Any motion to seal argument must be filed at least five days before oral argument, unless the court extends that period upon a showing of good cause. Recordings of sealed oral arguments will not be released absent an order of the court.

(h) Recording Oral Arguments. With advance approval of the court, counsel may arrange and pay for a qualified court reporter to be present to record and transcribe the oral argument for counsel’s personal use. When counsel has received such approval, counsel must provide the court with a copy of the transcript without delay and at no expense to the court. Except as otherwise provided in this rule, recording of court proceedings by anyone other than the court is prohibited. Also see I.O.P. 16, CD Recordings of Oral Arguments and I.O.P. 17, Posting of Oral Argument Recordings on the Website, following this rule.

(i) Citation of Supplemental Authorities During Oral Argument. If counsel intend to cite supplemental authorities during oral argument that were not provided to the court and opposing counsel prior to the day of oral argument, counsel must bring to oral argument a sufficient number of paper copies of the opinion(s) or other authorities being cited to permit distribution to panel members and opposing counsel.

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Rev.: 4/17 138 FRAP 34 I.O.P. -

1. Non-Argument Calendar. When the last brief is filed an appeal is sent to the office of staff attorney for classification. If the staff attorney is of the opinion that the appeal of a party does not warrant oral argument, a brief memorandum is prepared and the appeal is returned to the clerk for routing to one of the court’s active judges, selected in rotation. In appeals involving multiple parties, the staff attorney may recommend that appeals of fewer than all parties be decided without oral argument but that the appeals of the remaining parties be scheduled for oral argument. If the judge to whom an appeal is directed for such consideration agrees that the appeal of a party does not warrant oral argument, that judge forwards the briefs, together with a proposed opinion, to the two other judges on the non-argument panel. If a party requests oral argument, all panel judges must concur not only that the appeal of that party does not warrant oral argument, but also in the panel opinion as a proper disposition without any special concurrence or dissent. If a party does not request oral argument, all panel judges must concur that the appeal of that party does not warrant oral argument.

In other appeals, when oral argument is requested by a party and the staff attorney is of the opinion that oral argument should be heard, the staff attorney may recommend that an appeal be assigned to the oral argument calendar, subject to later review by the assigned oral argument panel.

If a determination is made that oral argument should be heard, the appeal is placed on the next appropriate calendar, consistent with the court’s calendaring priorities. At that time a determination is made of the oral argument time to be allotted to each side.

The assignment of an appeal to the non-argument calendar does not mean that it is considered to be an appeal of less importance than an orally argued appeal.

2. Oral Argument.

a. Court Year Schedule - A proposed court schedule for an entire year is prepared by the circuit executive in collaboration with the clerk’s office, and then approved by the scheduling committee of the court which consists of active judges. The court schedule does not consider what specific appeals are to be heard, but only sets the weeks of court in relation to the probable volume of appeals and judgeship availability for the year.

b. Separation of Assignment of Judges and Calendaring of Appeals - To insure complete objectivity in the assignment of judges and the calendaring of appeals, the two functions of judge assignment to panels and calendaring of appeals are intentionally separated. The circuit executive and the scheduling committee take into account a fixed number of weeks for each active judge and the available sittings from the court’s senior judges, visiting circuit judges, and district judges. After this determination, names of the active judges for the sessions of the court are drawn by lot from a matrix for the entire court year.

This schedule is available only to judges and the circuit executive for their advance planning, not to the clerk. The clerk is not furnished with names of the panel members for any session until after the court calendars of appeals have been prepared and approved as described below.

Rev.: 12/10 139 FRAP 34 3. Preparation and Issuing of Calendars.

a. General - The clerk’s office prepares oral argument calendars approximately one month in advance of oral argument.

b. Calendaring by Case Type - The clerk attempts to balance the calendars by dividing the appeals scheduled for oral argument among the panels by case type so that each panel for a particular week has an equitable number of different types of litigation for consideration.

c. Non-Preference Appeals - Appeals are calendared for hearing in accordance with the court’s “first-in first-out” rule. Absent special priority, those appeals which are oldest in point of time of availability of briefs are calendared first for hearing, insofar as practicable with other requirements of the docket.

d. Number of Appeals Assigned - Ordinarily the court hears argument Tuesday through Friday. A regular oral argument session consists of up to 22 appeals with up to 6 appeals scheduled per day.

e. Advance Notice - Counsel are provided the maximum advance notice of scheduling for oral argument practicable. Ordinarily counsel will receive notice of oral argument at least three weeks in advance. Counsel are expected to make all reasonable efforts to adjust conflicts in their schedule which will permit them to attend oral argument as scheduled. Motions for continuance are disfavored in recognition of the difficulty in scheduling panels and the commitment of the court to dispose of appeals as promptly as possible and of the fact that there is no backlog of appeals awaiting oral argument.

4. Location of Court Sessions - Convenience of Counsel. Appeals to be assigned to oral argument sessions are, if possible, selected from the area where the session is to be held.

5. Forwarding Briefs to Judges. Immediately after issuance of the calendar and receipt by the clerk of names of the panel members, the clerk forwards to panel members copies of the briefs for the appeals set on the calendar.

6. Pre-Argument Preparation. The judges read the briefs prior to oral argument.

7. Identity of Panel. The clerk’s office may disclose the names of the panel members for a particular session two weeks in advance of the session, or earlier as determined by the court. At the time the clerk issues a calendar assigning an appeal to a specific day of oral argument, the clerk will advise counsel of when the clerk’s office may be contacted to learn the identity of the panel members.

8. Checking In with Clerk’s Office. On the day of hearing counsel should check in with the clerk’s office at least 30 minutes in advance of the convening of court to advise the courtroom deputy of the name of the attorney or attorneys who will present argument for each party and how the argument time will be divided between opening and rebuttal. Timely check-in is necessary so that the clerk can inform the panel of the names of attorneys presenting argument and their time division.

Rev.: 4/14 140 FRAP 34 9. Submission Without Argument. When an appeal is placed on the oral argument calendar, a judge of the court has determined that oral argument would be helpful in that particular appeal. Therefore, requests by the parties to waive oral argument are not looked upon with favor, and counsel may be excused only by the court for good cause shown. Attorneys appointed by the court under the Criminal Justice Act must personally appear for oral argument unless excused by the court for good cause shown.

10. Time for Oral Argument. The time for oral argument will be indicated on the calendar. The time specified is per side. In the event that more than one attorney will present oral argument per side, arrangements among counsel regarding the division of time and the order of presentation should be made before counsel check in with the clerk’s office.

11. Additional Time for Oral Argument. Additional time for oral argument is sparingly permitted. Requests for additional time for oral argument should be set forth in a motion to the clerk filed well in advance of the oral argument.

12. Calling the Calendar. Usually the court hears the appeals in the order in which they appear on the calendar, and will not call the calendar unless there are some special problems requiring attention. All counsel, however, must be present at the beginning of the court session for the day.

13. Presenting Argument. Counsel should prepare oral arguments with the knowledge that the judges have already studied the briefs. Reading from briefs, decisions or the record is not permitted except in unusual circumstances. Counsel should be prepared to answer questions by the court. The essay Twenty Pages and Twenty Minutes Revisited by Judge John C. Godbold is available from the clerk on request.

14. Timer and Lighting Signal Procedure. The courtroom deputy will monitor time and use lighting signals. In Atlanta, Miami, and Montgomery, and sometimes in other locations where court is held, an easily readable timer visible both to counsel and the court is also used.

a. Appellant’s Argument - A green light signals the beginning of the opening argument of appellant. Two minutes prior to expiration of the time allowed for opening argument, the green light goes off and a yellow light comes on. When the time reserved for opening has expired, the yellow light goes off and a red light comes on.

b. Appellee’s Argument - The same procedure as outlined above for appellant is used.

c. Appellant’s Rebuttal - A green light signals commencement of time; a red light comes on when the time expires. No yellow caution light is displayed for this argument.

15. Appeals Conference and Designation of Writing Judge. At the conclusion of each day’s arguments the panel usually has a conference on the appeals heard that day. A tentative decision is usually reached, a tentative determination is made as to the kind of opinion necessary and the presiding judge, when in the majority, makes opinion writing assignments. Judges do not specialize. Writing assignments are made so as to equalize the workload of the entire session.

Rev.: 8/12 141 FRAP 34 16. CD Recordings of Oral Arguments. Copies of the court’s audio recordings of oral arguments are available for purchase on CD upon payment of the fee prescribed by the Judicial Conference of the United States in the Court of Appeals Miscellaneous Fee Schedule issued pursuant to 28 U.S.C. § 1913, payable to Clerk, U.S. Court of Appeals, Eleventh Circuit. CD recordings of oral arguments are available for oral arguments held after August 1, 2012. The court makes no representations about the quality of the CD recordings or about how quickly they will become available.

17. Posting of Oral Argument Recordings on the Website. Recordings of oral arguments held after April 1, 2017 are available on this court’s website. Recordings are posted as soon as practicable after the date of argument. The court makes no representations about the quality of the posted recordings.

Cross-Reference: FRAP 45; 28 U.S.C. §§ 46, 48

Rev.: 4/17 142 FRAP 34 FRAP 35. En Banc Determination

(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or 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.

(b) Petition for Hearing or Rehearing En Banc. A party may petition for a hearing or rehearing en banc.

(1) 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 court to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the court’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 every other United States Court of Appeals that has addressed the issue.

(2) Except by the court’s permission:

(A) a petition for an en banc hearing or rehearing produced using a computer must not exceed 3,900 words; and

(B) a handwritten or typewritten petition for an en banc hearing or rehearing must not exceed 15 pages.

(3) For purposes of the limits in Rule 35(b)(2), if a party files both a petition for panel rehearing and a petition for rehearing en banc, they are considered a single document even if they are filed separately, unless separate filing is required by local rule.

(c) Time for Petition for Hearing or Rehearing En Banc. A petition that an appeal be heard initially en banc must be filed by the date when the appellee’s brief is due. A petition for a rehearing en banc must be filed within the time prescribed by Rule 40 for filing a petition for rehearing.

(d) Number of Copies. The number of copies to be filed must be prescribed by local rule and may be altered by order in a particular case.

Rev.: 12/16 143 FRAP 35 (e) Response. No response may be filed to a petition for an en banc consideration unless the court orders a response.

(f) Call for a Vote. A vote need not be taken to determine whether the case will be heard or reheard en banc unless a judge calls for a vote.

(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 28, 2016, eff. Dec. 1, 2016.)

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11th Cir. R. 35-1 Number of Copies and Length. Fifteen copies of a petition for en banc consideration pursuant to FRAP 35 shall be filed whether for initial hearing or rehearing. A petition for en banc consideration shall not exceed the length limitations set out in FRAP 35(b)(2), exclusive of items required by 11th Cir. R. 35-5(a), (b), (c), (d), (j), and (k). If a petition for en banc consideration is made with a petition for rehearing (whether or not they are combined in a single document) the combined documents shall not exceed the length limitations set out in FRAP 35(b)(2), exclusive of items required by 11th Cir. R. 35-5(a), (b), (c), (d), (j), and (k).

Use of the ECF system does not modify the requirement that counsel must provide to the court 15 paper copies of a petition for en banc consideration, whether for initial hearing or rehearing. Counsel will be considered to have complied with this requirement if, on the day the electronic petition is filed, counsel sends 15 paper copies to the clerk using one of the methods outlined in FRAP 25(a)(2)(A)(ii).

11th Cir. R. 35-2 Time - Extensions. A petition for en banc rehearing must be filed within 21 days of entry of judgment, except that a petition for en banc rehearing in a civil appeal in which the United States or an agency or officer thereof is a party must be filed within 45 days of entry of judgment. Judgment is entered on the opinion filing date. No additional time is allowed for mailing. Counsel should not request extensions of time except for the most compelling reasons. For purposes of this rule, a “civil appeal” is one that falls within the scope of 11th Cir. R. 42-2(a).

11th Cir. R. 35-3 Extraordinary Nature of Petitions for En Banc Consideration. A petition for en banc consideration, whether upon initial hearing or rehearing, is an extraordinary procedure intended to bring to the attention of the entire court a precedent-setting error of exceptional importance in an appeal or other proceeding, and, with specific reference to a petition for en banc consideration upon rehearing, is intended to bring to the attention of the entire court a panel opinion that is allegedly in direct conflict with precedent of the Supreme Court or of this circuit. Alleged errors in a panel’s determination of state law, or in the facts of the case (including sufficiency of the evidence), or error asserted in the panel’s misapplication of correct precedent to the facts of the case, are matters for rehearing before the panel but not for en banc consideration.

Counsel are reminded that the duty of counsel is fully discharged without filing a petition for rehearing en banc if the rigid standards of FRAP 35(a) are not met, and that the filing of a petition for rehearing or rehearing en banc is not a prerequisite to filing a petition for writ of certiorari.

Rev.: 12/18 144 FRAP 35 11th Cir. R. 35-4 Matters Not Considered En Banc. A petition for rehearing en banc tendered with respect to any of the following orders will not be considered by the court en banc, but will be referred as a motion for reconsideration to the judge or panel that entered the order sought to be reheard:

(a) Administrative or interim orders, including but not limited to orders ruling on requests for the following relief: stay or injunction pending appeal; appointment of counsel; leave to appeal in forma pauperis; and, permission to appeal when an appeal is within the court’s discretion.

(b) Any order dismissing an appeal that is not published including, but not limited to, dismissal for failure to prosecute or because an appeal is frivolous.

11th Cir. R. 35-5 Form of Petition. A petition for en banc consideration shall be bound in a white cover which is clearly labeled with the title “Petition for Rehearing (or Hearing) En Banc.” A petition for en banc consideration shall contain the following items in this sequence:

(a) a cover page as described in 11th Cir. R. 28-1(a);

(b) a Certificate of Interested Persons and Corporate Disclosure Statement as described in FRAP 26.1 and the accompanying circuit rules;

(c) where the party petitioning for en banc consideration is represented by counsel, one or both of the following statements of counsel as applicable:

I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decision(s) of the Supreme Court of the United States or the precedents of this circuit and that consideration by the full court is necessary to secure and maintain uniformity of decisions in this court: [cite specifically the case or cases]

I express a belief, based on a reasoned and studied professional judgment, that this appeal involves one or more questions of exceptional importance: [set forth each question in one sentence]

/s/

ATTORNEY OF RECORD FOR

(d) table of contents and citations;

(e) statement of the issue(s) asserted to merit en banc consideration;

(f) statement of the course of proceedings and disposition of the case;

(g) statement of any facts necessary to argument of the issues;

Rev.: 12/15 145 FRAP 35 (h) argument and authorities. These shall concern only the issues and shall address specifically not only their merit but why they are contended to be worthy of en banc consideration;

(i) conclusion;

(j) certificate of service;

(k) a copy of the opinion sought to be reheard.

11th Cir. R. 35-6 Response to Petition. A response to a petition for en banc consideration may not be filed unless requested by the court.

11th Cir. R. 35-7 En Banc Briefs. An en banc briefing schedule shall be set by the clerk for all appeals in which rehearing en banc is granted by the court. Twenty copies of en banc briefs are required, and must be filed in the clerk’s office, and served on counsel, according to the schedule established. En banc briefs should be prepared in the same manner and form as opening briefs and conform to the requirements of FRAP 28 and 32. The covers of all en banc briefs shall be of the color required by FRAP 32 and shall contain the title “En Banc Brief.” Unless otherwise directed by the court, the page and type-volume limitations described in FRAP 32(a)(7) apply to en banc briefs. Counsel are also required to furnish 20 additional copies of each brief previously filed by them.

11th Cir. R. 35-8 En Banc Amicus Briefs. The United States or its officer or agency or a state may file an en banc amicus brief without the consent of the parties or leave of court. Any other amicus curiae must request leave of court by filing a motion accompanied by the proposed brief in conformance with FRAP 29(a)(3) through (a)(5) and the corresponding circuit rules. An amicus curiae must file its en banc brief, accompanied by a motion for filing when necessary, no later than the due date of the principal en banc brief of the party being supported. An amicus curiae that does not support either party must file its en banc brief, accompanied by a motion for filing when necessary, no later than the due date of the appellant’s or petitioner’s principal en banc brief. An amicus curiae must also comply with 11th Cir. R. 35-7.

11th Cir. R. 35-9 Senior Circuit Judges’ Participation. Senior circuit judges of the Eleventh Circuit assigned to duty pursuant to statute and court rules may sit en banc reviewing decisions of panels of which they were members and may continue to participate in the decision of a case that was heard or reheard by the court en banc at a time when such judge was in regular active service.

11th Cir. R. 35-10 Effect of Granting Rehearing En Banc. Unless otherwise expressly provided, the effect of granting a rehearing en banc is to vacate the panel opinion and the corresponding judgment.

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I.O.P. -

1. Time. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing en banc whether or not combined with a petition for rehearing is timely only if received by the clerk within the time specified in 11th Cir. R. 35-2.

Rev.: 8/18 146 FRAP 35 2. Panel Has Control. A petition for rehearing en banc will also be treated as a petition for rehearing before the original panel. Although a copy of the petition for rehearing en banc is distributed to each panel judge and every active judge of the court, the filing of a petition for rehearing en banc does not take the appeal out of plenary control of the panel deciding the appeal. The panel may, on its own, grant rehearing by the panel and may do so without action by the full court. A petition for rehearing will not be treated as a petition for rehearing en banc.

3. Requesting a Poll. Within 30 days of the date that the clerk transmits the petition for rehearing en banc, any active Eleventh Circuit judge may advise the “notify judge” that in the event the panel declines to grant rehearing, the judge requests that a poll be taken regarding en banc consideration. The “notify judge” is the writing judge if that judge is a member of this court. If the writing judge is a visiting judge, the notify judge will be the senior active judge of this court on the panel or, if none, the senior non-active judge of this court on the panel. At the same time the judge shall notify the clerk to withhold the mandate, and the clerk will enter an order withholding the mandate.

If the panel, after such notice, concludes not to grant rehearing, the notify judge will inform the chief judge of that fact and that a request was made that a poll be taken regarding en banc consideration. The chief judge then polls the court by written ballot on whether rehearing en banc is to be granted.

4. No Poll Request. If after expiration of the specified time for requesting a poll, the notify judge has not received a poll request from any active member of the court, the panel, without further notice, may take such action as it deems appropriate on the petition for rehearing en banc. In its order disposing of the appeal or other matter and the petition, the panel must note that no poll was requested by any judge of the court in regular active service.

5. Requesting a Poll on Court’s Own Motion. Any active Eleventh Circuit judge may request that the court be polled on whether rehearing en banc should be granted whether or not a petition for rehearing en banc has been filed by a party. This is ordinarily done by a letter from the requesting judge to the chief judge with copies to the other active and senior judges of the court and any other panel member. At the same time the judge shall notify the clerk to withhold the mandate, and the clerk will enter an order withholding the mandate. The identity of the judge will not be disclosed in the order.

6. Polling the Court. Upon request to poll, the chief judge conducts a poll. Each active judge receives a form ballot that is used to cast a vote. A copy of each judge’s ballot is sent to all other active judges. The ballot form indicates whether the judge voting desires oral argument if en banc is granted.

7. Effect of Recusal or Disqualification on Number of Votes Required. A recused or disqualified judge is not counted in the base when calculating whether a majority of circuit judges in regular active service have voted to rehear an appeal en banc. If, for example, there are 12 circuit judges in regular active service on this court, and five of them are recused or disqualified in an appeal, rehearing en banc may be granted by affirmative vote of four judges (a majority of the seven non-recused and non-disqualified judges).

Rev.: 8/19 147 FRAP 35 8. Negative Poll. If the vote on the poll is unfavorable to en banc consideration, the chief judge enters the appropriate order.

9. En Banc Rehearing Procedures Following Affirmative Poll.

a. Appeal Managers. When an appeal is voted to be reheard en banc, the chief judge shall designate as appeal managers a group of active judges of this court. The chief judge will ordinarily designate the judge who authored the panel opinion, the judge who requested that the court be polled regarding whether the appeal should be reheard en banc, and a judge who dissented from or specially concurred in the panel opinion, if they are active circuit judges of this court. The chief judge may, however, designate other active circuit judges as appeal managers.

b. Initial Notice to Counsel. The clerk meanwhile notifies counsel that rehearing en banc has been granted but that they should not prepare en banc briefs until they are advised of the issue(s) to be briefed and length limitations on briefs.

c. Notice of Issue(s) to be Briefed. The appeal managers prepare and circulate to the other members of the en banc court a proposed notice to the parties advising which issue(s) should be briefed to the en banc court, length limitations on briefs, and whether the appeal will be orally argued or submitted on briefs. The notice may also set the time limits for oral argument. In appeals with multiple appellants or appellees, the notice may direct parties to file a single joint appellants’ or appellees’ en banc brief. In such cases the side directed to file a single joint brief may be allotted some extension of the length limitations that would otherwise apply to the brief. Members of the en banc court thereafter advise the appeal managers of any suggested changes in the proposed notice. Provided that no member of the en banc court objects, counsel may be advised that the en banc court will decide only specified issues, and after deciding them, remand other issues to the panel. Once the form of the notice has been approved by the court, the clerk issues the notice to counsel.

d. Oral Argument. Appeals to be reheard en banc will ordinarily be orally argued unless fewer than three of the judges of the en banc court determine that argument should be heard.

Cross-Reference: FRAP 40, 41

Rev.: 12/16 148 FRAP 35 FRAP 36. Entry of Judgment; Notice

(a) Entry. A judgment is entered when it is noted on the docket. The clerk must prepare, sign, and enter the judgment:

(1) after receiving the court’s opinion—but if settlement of the judgment’s form is required, after final settlement; or

(2) if a judgment is rendered without an opinion, as the court instructs.

(b) Notice. On the date when judgment is entered, the clerk must serve on all parties a copy of the opinion—or the judgment, if no opinion was written—and a notice of the date when the judgment was entered.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)

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11th Cir. R. 36-1 [Rescinded]

11th Cir. R. 36-2 Unpublished Opinions. An opinion shall be unpublished unless a majority of the panel decides to publish it. Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority. If the text of an unpublished opinion is not available on the internet, a copy of the unpublished opinion must be attached to or incorporated within the brief, petition, motion or response in which such citation is made. But see I.O.P. 7, Citation to Unpublished Opinions by the Court, following this rule.

11th Cir. R. 36-3 Publishing Unpublished Opinions. At any time before the mandate has issued, the panel, on its own motion or upon the motion of a party, may by unanimous vote order a previously unpublished opinion to be published. The timely filing of a motion to publish shall stay issuance of the mandate until disposition thereof unless otherwise ordered by the court. The time for issuance of the mandate and for filing a petition for rehearing or petition for rehearing en banc shall begin running anew from the date of any order directing publication.

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I.O.P. -

1. Motion to Amend, Correct, or Settle the Judgment. These motions are referred to the panel members.

2. Effect of Mandate on Precedential Value of Opinion. Under the law of this circuit, published opinions are binding precedent. The issuance or non-issuance of the mandate does not affect this result. See Martin v. Singletary, 965 F.2d 944, 945 n.1 (11th Cir. 1992). For information concerning the precedential value of opinions of the former Fifth Circuit, see Bonner v. City of Prichard, Alabama, 661 F.2d 1206 (11th Cir. 1981) (en banc) and Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). Rev.: 12/10 149 FRAP 36 3. Processing of Opinions. After the draft opinion has been prepared, the opinion writing judge circulates the proposed opinion to each of the other two judges on the panel. Review of another judge’s proposed opinion is given high priority by the other members of the panel. When the writing judge has received concurrences from the other judges or in the case of dissent, or special concurrences, sufficient concurrence(s) to constitute a majority, the writing judge then sends the opinion to the clerk , along with the concurrences, dissent, or special concurrence, as the case may be.

4. Circulation of Opinions to Non-Panel Members. Copies of proposed opinions are not normally circulated to non-panel members. In special cases, however, a panel or member thereof may circulate a proposed opinion to other members of the court.

5. Publication of Opinions. The policy of the court is: The unlimited proliferation of published opinions is undesirable because it tends to impair the development of the cohesive body of law. To meet this serious problem it is declared to be the basic policy of this court to exercise imaginative and innovative resourcefulness in fashioning new methods to increase judicial efficiency and reduce the volume of published opinions. Judges of this court will exercise appropriate discipline to reduce the length of opinions by the use of those techniques which result in brevity without sacrifice of quality.

6. Unpublished Opinions. A majority of the panel determine whether an opinion should be published. Opinions that the panel believes to have no precedential value are not published. Although unpublished opinions may be cited as persuasive authority, they are not considered binding precedent. The court will not give the unpublished opinion of another circuit more weight than the decision is to be given in that circuit under its own rules. Parties may request publication of an unpublished opinion by filing a motion to that effect in compliance with FRAP 27 and the corresponding circuit rules.

7. Citation to Unpublished Opinions by the Court. The court generally does not cite to its “unpublished” opinions because they are not binding precedent. The court may cite to them where they are specifically relevant to determine whether the predicates for res judicata, collateral estoppel, or double jeopardy exist in the case, to ascertain the law of the case, or to establish the procedural history or facts of the case.

8. Release of Opinions. Prior to issuance of an opinion, information concerning the date a decision by the court may be expected is not available to counsel.

Opinions are generally released from the clerk’s office in Atlanta. Upon release of an opinion, a copy is mailed to counsel and made available to the press and public at the clerk’s office and at the circuit libraries. On request, the clerk will also notify counsel by telephone. Opinions are available on the Internet at www.ca11.uscourts.gov.

Opinions are subject to typographical and printing errors. Cooperation of the bar in calling apparent errors to the attention of the clerk’s office is solicited.

Rev.: 12/10 150 FRAP 36 9. Citation to Internet Materials in an Opinion. When an opinion of the court includes a citation to materials available on a website, the writing judge will send a copy of the cited internet materials to the clerk for placement on the docket.

Cross-Reference: FRAP 28, 32.1, 41

Rev.: 4/16 151 FRAP 36 FRAP 37. Interest on Judgment

(a) When the Court Affirms. Unless the law provides otherwise, if a money judgment in a civil case is affirmed, whatever interest is allowed by law is payable from the date when the district court’s judgment was entered.

(b) When the Court Reverses. If the court modifies or reverses a judgment with a direction that a money judgment be entered in the district court, the mandate must contain instructions about the allowance of interest.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

Rev.: 12/10 152 FRAP 37 FRAP 38. Frivolous Appeal—Damages and Costs

If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.)

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11th Cir. R. 38-1 Time for Filing Motions. Motions for damages and costs pursuant to FRAP 38 must be filed no later than the filing of appellee’s brief.

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I.O.P. - Motions for Damages and Costs. Such motions shall not be contained in appellee’s brief but shall be filed separately consistent with the requirements of FRAP 27 and the corresponding circuit rules. When the motion is filed in paper, an original and three copies must be filed.

Cross-Reference: FRAP 42; 28 U.S.C. § 1927

Rev.: 8/13 153 FRAP 38 FRAP 39. Costs

(a) Against Whom Assessed. The following rules apply unless the law provides or the court orders otherwise:

(1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise;

(2) if a judgment is affirmed, costs are taxed against the appellant;

(3) if a judgment is reversed, costs are taxed against the appellee;

(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.

(b) Costs For and Against the United States. Costs for or against the United States, its agency, or officer will be assessed under Rule 39(a) only if authorized by law.

(c) Costs of Copies. Each court of appeals must, by local rule, fix the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records authorized by Rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerk’s office is located and should encourage economical methods of copying.

(d) Bill of Costs: Objections; Insertion in Mandate.

(1) A party who wants costs taxed must—within 14 days after entry of judgment—file with the circuit clerk, with proof of service, an itemized and verified bill of costs.

(2) Objections must be filed within 14 days after service of the bill of costs, unless the court extends the time.

(3) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs. If the mandate issues before costs are finally determined, the district clerk must—upon the circuit clerk’s request—add the statement of costs, or any amendment of it, to the mandate.

(e) Costs on Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs under this rule:

(1) the preparation and transmission of the record;

(2) the reporter’s transcript, if needed to determine the appeal;

(3) premiums paid for a bond or other security to preserve rights pending appeal; and

Rev.: 12/18 154 FRAP 39 (4) the fee for filing the notice of appeal.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 26, 2018, eff. Dec. 1, 2018.)

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11th Cir. R. 39-1 Costs. In taxing costs for printing or reproduction and binding pursuant to FRAP 39(c) the clerk shall tax such costs at rates not higher than those determined by the clerk from time to time by reference to the rates generally charged for the most economical methods of printing or reproduction and binding in the principal cities of the circuit, or at actual cost, whichever is less.

Unless advance approval for additional copies is secured from the clerk, costs will be taxed only for the number of copies of the brief and appendix required by the rules to be filed and served, plus two copies for each party signing the brief.

All costs shall be paid and mailed directly to the party to whom costs have been awarded. Costs should not be mailed to the clerk of the court.

11th Cir. R. 39-2 Attorney’s Fees.

(a) Time for Filing. Except as otherwise provided herein or by statute or court order, an application for attorney’s fees must be filed with the clerk within 14 days after the time to file a petition for rehearing or rehearing en banc expires, or within 14 days after entry of an order disposing of a timely petition for rehearing or denying a timely petition for rehearing en banc, whichever is later. For purposes of this rule, the term “attorney’s fees” includes fees and expenses authorized by statute, but excludes damages and costs sought pursuant to FRAP 38, costs taxed pursuant to FRAP 39, and sanctions sought pursuant to 11th Cir. R. 27-4.

(b) Required Documentation. An application for attorney’s fees must be supported by a memorandum showing that the party seeking attorney’s fees is legally entitled to them. The application must also include a summary of work performed, on a form available from the clerk, supported by contemporaneous time records recording all work for which a fee is claimed. An affidavit attesting to the truthfulness of the information contained in the application and demonstrating the basis for the hourly rate requested must also accompany the application. Exceptions may be made only to avoid an unconscionable result. If contemporaneous time records are not available, the court may approve only the minimum amount of fees necessary, in the court’s judgment, to adequately compensate the attorney.

(c) Objection to Application. Any party from whom attorney’s fees are sought may file an objection to the application. An objection must be filed with the clerk within 14 days after service of the application. The party seeking attorney’s fees may file a reply to the objection within 10 days after service of the objection.

(d) Motion to Transfer. Any party who is or may be eligible for attorney’s fees on appeal may, within the time for filing an application provided by this rule, file a motion to transfer consideration

Rev.: 12/18 155 FRAP 39 of attorney’s fees on appeal to the district court or administrative agency from which the appeal was taken.

(e) Remand for Further Proceedings. When a reversal on appeal, in whole or in part, results in a remand to the district court for trial or other further proceedings (e.g., reversal of order granting summary judgment, or denying a new trial), a party who may be eligible for attorney’s fees on appeal after prevailing on the merits upon remand may, in lieu of filing an application for attorney’s fees in this court, request attorney’s fees for the appeal in a timely application filed with the district court upon disposition of the matter on remand.

11th Cir. R. 39-3 Fee Awards to Prevailing Parties Under the Equal Access to Justice Act.

(a) An application to this court for an award of fees and expenses pursuant to 28 U.S.C. § 2412(d)(1)(B) must be filed within the time specified in the statute. The application must identify the applicant, show the nature and extent of services rendered, that the applicant has prevailed, and shall identify the position of the United States Government or an agency thereof which the applicant alleges was not substantially justified.

(b) An application to the court pursuant to 5 U.S.C. § 504(c)(2) shall be upon the factual record made before the agency, which shall be filed with this court under the procedures established in FRAP 11 and associated circuit rules. Unless the court establishes a schedule for filing formal briefs upon motion of a party, such proceedings shall be upon the application papers, together with such supporting papers, including memorandum briefs, as the appellant shall submit within 14 days of filing of the record of agency proceedings and upon any response filed by the United States in opposition thereto within the succeeding 14 days.

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I.O.P. -

1. Time - Extensions. Except as otherwise provided by FRAP 25(a) for inmate filings, a bill of costs is timely only if received by the clerk within 14 days of entry of judgment. Judgment is entered on the opinion filing date. The filing of a petition for rehearing or petition for rehearing en banc does not extend the time for filing a bill of costs. A motion to extend the time to file a bill of costs may be considered by the clerk.

2. Costs for or Against the United States. When costs are sought for or against the United States, the statutory or other authority relied upon for such an award must be set forth as an attachment to the Bill of Costs.

3. Reproduction of Statutes, Rules, and Regulations. Costs will be taxed for the reproduction of statutes, rules, and regulations in conformity with FRAP 28(f). Costs will not be taxed for the reproduction of papers not required or allowed to be filed pursuant to FRAP 28 and 30 and the corresponding circuit rules, even though the brief or appendix within which said papers are included was accepted for filing by the clerk.

Rev.: 12/13 156 FRAP 39 FRAP 40. Petition for Panel Rehearing

(a) Time to File; Contents; Answer; Action by the Court if Granted.

(1) Time. Unless the time is shortened or extended by order or local rule, a petition for panel rehearing may be filed within 14 days after entry of judgment. But in a civil case, unless an order shortens or extends the time, the petition may be filed by any party within 45 days after entry of judgment if one of the parties is:

(A) the United States;

(B) a United States agency;

(D) a current or former United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf—including all instances in which the United States represents that person when the court of appeals’ judgment is entered or files the petition for that person.

(2) Contents. The petition must state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition. Oral argument is not permitted.

(3) Answer. Unless the court requests, no answer to a petition for panel rehearing is permitted. But ordinarily rehearing will not be granted in the absence of such a request.

(4) Action by the Court. If a petition for panel rehearing is granted, the court may do any of the following:

(A) make a final disposition of the case without reargument;

(B) restore the case to the calendar for reargument or resubmission; or

(b) Form of Petition; Length. The petition must comply in form with Rule 32. Copies must be served and filed as Rule 31 prescribes. Except by the court’s permission:

(1) a petition for panel rehearing produced using a computer must not exceed 3,900 words; and

(2) a handwritten or typewritten petition for panel rehearing must not exceed 15 pages.

Rev.: 12/16 157 FRAP 40 (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 26, 2011, eff. Dec. 1, 2011; Apr. 28, 2016, eff. Dec. 1, 2016.)

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11th Cir. R. 40-1 Contents. A copy of the opinion sought to be reheard shall be included as an addendum to each petition for rehearing, following the certificate of service. This addendum does not count towards length limitations.

11th Cir. R. 40-2 Number of Copies. Four copies of a petition for rehearing pursuant to FRAP 40 shall be filed. Use of the ECF system does not modify the requirement that counsel must provide to the court four paper copies of a petition for rehearing. Counsel will be considered to have complied with this requirement if, on the day the electronic petition is filed, counsel sends four paper copies to the clerk using one of the methods outlined in FRAP 25(a)(2)(A)(ii).

11th Cir. R. 40-3 Time - Extensions. A petition for rehearing must be filed within 21 days of entry of judgment, except that a petition for rehearing in a civil appeal in which the United States or an officer or agency thereof is a party must be filed within 45 days of entry of judgment. Judgment is entered on the opinion filing date. No additional time shall be allowed for mailing. Counsel should not request extensions of time except for the most compelling reasons. For purposes of this rule, a “civil appeal” is one that falls within the scope of 11th Cir. R. 42-2(a).

11th Cir. R. 40-4 [Rescinded]

11th Cir. R. 40-5 Supplemental Authorities. If pertinent and significant authorities come to a party’s attention while a party’s petition for rehearing or petition for rehearing en banc is pending, a party may promptly advise the clerk by letter, with a copy to all other parties. The body of the letter must not exceed 350 words, including footnotes. If a new case is not reported, copies should be appended. When such a letter is filed in paper, four copies must be filed.

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1. Necessity for Filing. As indicated in 11th Cir. R. 35-3, it is not necessary to file a petition for rehearing or petition for rehearing en banc in the court of appeals as a prerequisite to the filing of a petition for writ of certiorari in the Supreme Court of the United States. Counsel are also reminded that the duty of counsel is fully discharged without filing a petition for rehearing en banc if the rigid standards of FRAP 35(a) are not met.

2. Petition for Panel Rehearing. A petition for rehearing is intended to bring to the attention of the panel claimed errors of fact or law in the opinion. It is not to be used for reargument of the issues previously presented or to attack the court’s non-argument calendar procedures. Petitions for rehearing are reviewed by panel members only.

3. Time. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing is timely only if received by the clerk within the time specified in 11th Cir. R. 40-3.

Rev.: 12/18 158 FRAP 40 4. Form of Petition for Panel Rehearing. The form of a petition for panel rehearing is governed by FRAP 32(c)(2).

Cross-Reference: FRAP 35

Rev.: 12/11 159 FRAP 40 FRAP 41. Mandate: Contents; Issuance and Effective Date; Stay

(a) Contents. Unless the court directs that a formal mandate issue, the mandate consists of a certified copy of the judgment, a copy of the court’s opinion, if any, and any direction about costs.

(b) When Issued. The court’s mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. The court may shorten or extend the time by order.

(d) Staying the Mandate Pending a Petition for Certiorari.

(1) Motion to Stay. A party may move to stay the mandate pending the filing of a petition for a writ of certiorari in the Supreme Court. The motion must be served on all parties and must show that the petition would present a substantial question and that there is good cause for a stay.

(2) Duration of Stay; Extensions. The stay must not exceed 90 days, unless:

(A) the period is extended for good cause; or

(B) the party who obtained the stay notifies the circuit clerk in writing within the period of the stay:

(i) that the time for filing a petition has been extended, in which case the stay continues for the extended period; or

(ii) that the petition has been filed, in which case the stay continues until the Supreme Court’s final disposition.

(3) Security. The court may require a bond or other security as a condition to granting or continuing a stay of the mandate.

(4) Issuance of Mandate. The court of appeals must issue the mandate immediately on receiving a copy of a Supreme Court order denying the petition, unless extraordinary circumstances exist.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 26, 2018, eff. Dec. 1, 2018.)

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Rev.: 12/18 160 FRAP 41 11th Cir. R. 41-1 Stay or Recall of Mandate.

(a) A motion filed under FRAP 41 for a stay of the issuance of a mandate in a direct criminal appeal shall not be granted simply upon request. Ordinarily the motion will be denied unless it shows that it is not frivolous, not filed merely for delay, and shows that a substantial question is to be presented to the Supreme Court or otherwise sets forth good cause for a stay.

(b) A mandate once issued shall not be recalled except to prevent injustice.

(c) When a motion to recall a mandate is tendered for filing more than one year after issuance of the mandate, the clerk shall not accept the motion for filing unless the motion states with specificity why it was not filed sooner. The court will not grant the motion unless the movant has established good cause for the delay in filing the motion.

(d) Unless otherwise expressly provided, the effect of granting a petition for rehearing en banc is to vacate the panel opinion and the corresponding judgment.

11th Cir. R. 41-2 Expediting Issuance of Mandate. In any appeal in which a published opinion has issued, the time for issuance of the mandate may be shortened only after all circuit judges in regular active service who are not recused or disqualified have been provided with reasonable notice and an opportunity to notify the clerk to withhold issuance of the mandate.

11th Cir. R. 41-3 Published Order Dismissing Appeal or Disposing of a Petition for a Writ of Mandamus or Prohibition or Other Extraordinary Writ. When any of the following orders is published, the time for issuance of the mandate is governed by FRAP 41(b):

(a) An order dismissing an appeal.

(b) An order disposing of a petition for a writ of mandamus or prohibition or other extraordinary writ.

11th Cir. R. 41-4 Non-Published Order Dismissing Appeal or Disposing of a Petition for a Writ of Mandamus or Prohibition or Other Extraordinary Writ. When any of the following orders is not published, the clerk shall issue a copy to the district court clerk or agency as the mandate:

(a) An order dismissing an appeal, including an order dismissing an appeal for want of prosecution.

(b) An order disposing of a petition for a writ of mandamus or prohibition or other extraordinary writ.

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I.O.P. -

1. Stay or Recall of Mandate. A motion for stay or recall of mandate is disposed of by a single judge. See 11th Cir. R. 27-1(d).

Rev.: 8/19 161 FRAP 41 2. Return of Record. The original record and any exhibits are returned to the clerk of the district court or agency with the mandate.

3. Certified Records for Supreme Court of the United States. Pursuant to Rule 12.7 of the Rules of the Supreme Court of the United States, the clerks of the courts of appeals are deemed to be the custodial agents of the record pending consideration of a petition for a writ of certiorari. Therefore, the clerk’s office does not prepare a certified record unless specifically requested to do so by the Clerk of the Supreme Court. If certiorari is granted, the Clerk of the Supreme Court will request the clerk of the court of appeals to certify and transmit the record. See Rule 16.2 of the Rules of the Supreme Court of the United States.

Cross-Reference: FRAP 35, 36, 40

Rev.: 12/10 162 FRAP 41 FRAP 42. Voluntary Dismissal

(a) Dismissal in the District Court. Before an appeal has been docketed by the circuit clerk, the district court may dismiss the appeal on the filing of a stipulation signed by all parties or on the appellant’s motion with notice to all parties.

(b) Dismissal in the Court of Appeals. The circuit clerk may dismiss a docketed appeal if the parties file a signed dismissal agreement specifying how costs are to be paid and pay any fees that are due. But no mandate or other process may issue without a court order. An appeal may be dismissed on the appellant’s motion on terms agreed to by the parties or fixed by the court.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)

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11th Cir. R. 42-1 Dismissal of Appeals.

(a) Motions to Dismiss by Appellants or Petitioners and Joint Motions to Dismiss. If an appellant or petitioner files an unopposed motion to dismiss an appeal, petition, or agency proceeding, or if both parties file a joint motion to dismiss an appeal, petition, or agency proceeding, and the matter has not yet been assigned to a panel on the merits, the clerk may clerically dismiss the appeal, petition, or agency proceeding and in such circumstances will issue a copy of the order as and for the mandate. By issuing such a dismissal, the clerk expresses no opinion on the effect of that dismissal. If the appeal, petition, or agency proceeding has been assigned to a panel on the merits, any motion to dismiss will be submitted to that panel.

A joint motion to dismiss must be signed by counsel for each party encompassed by the motion, or by the party itself if proceeding pro se. All motions to dismiss must contain a Certificate of Interested Persons and Corporate Disclosure Statement in compliance with FRAP 26.1 and the accompanying circuit rules. If an appellant’s or petitioner’s motion to dismiss is opposed, it will be submitted to the court. For motions to dismiss criminal appeals, see also 11th Cir. R. 27-1(a)(7) and 27-1(a)(8).

(b) Dismissal for Failure to Prosecute. Except as otherwise provided for briefs and appendices in civil appeals in 11th Cir. R. 42-2 and 42-3, when appellant fails to file a brief or other required papers within the time permitted, or otherwise fails to comply with the applicable rules, the clerk shall issue a notice to counsel, or to pro se appellant, that upon expiration of 14 days from the date thereof the appeal will be dismissed for want of prosecution if the default has not been remedied by filing the brief or other required papers and a motion to file documents out of time. Within that 14-day notice period a party in default must seek leave of the court, by appropriate motion, to file documents out of time or otherwise remedy the default. Failure to timely file such motion will result in dismissal for want of prosecution.

The clerk shall not dismiss an appeal during the pendency of a timely filed motion for an extension of time to file appellant’s brief or appendix, but if the court denies such leave after the expiration of the due date for filing the brief or appendix, the clerk shall dismiss the appeal Rev.: 8/16 163 FRAP 42 forthwith. The clerk shall not dismiss an appeal during the pendency of a timely filed motion to file documents out of time or otherwise remedy the default which is accompanied by the brief or other required papers, but if the court denies such leave the clerk shall dismiss the appeal forthwith.

If an appellant is represented by appointed counsel, the clerk may refer the matter to the Chief Judge for consideration of possible disciplinary action against counsel in lieu of dismissal.

11th Cir. R. 42-2 Dismissal in a Civil Appeal for Appellant’s Failure to File Brief or Appendix by Due Date.

(a) Applicability of Rule. The provisions of this rule apply to all civil appeals, including Tax Court appeals, bankruptcy appeals, appeals in cases brought pursuant to 28 U.S.C. §§ 2254 and 2255, review of agency orders, and petitions for extraordinary writs when briefing has been ordered, but not including appeals of orders revoking supervised release or of orders entered pursuant to Rule 35 of the Federal Rules of Criminal Procedure or 18 U.S.C. § 3582.

(b) Notice of Due Date for Filing Brief and Appendix. Eleventh Circuit Rules 30-1(c) and 31-1 establish the due dates for filing the brief and appendix. To facilitate compliance, the clerk will send counsel and pro se parties a notice confirming the due date for filing appellant’s brief and appendix consistent with 11th Cir. R. 30-1(c) and 31-1. However, delay in or failure to receive such notice does not affect the obligation of counsel and pro se parties to file the brief and appendix within the time permitted by the rules.

(c) Dismissal Without Further Notice. When an appellant has failed to file the brief or appendix by the due date as established by 11th Cir. R. 30-1(c) and 31-1 and set forth in the clerk’s notice, or, if the due date has been extended by the court, within the time so extended, an appeal shall be treated as dismissed for failure to prosecute on the first business day following the due date. The clerk thereafter will enter an order dismissing the appeal and mail a copy of that order to counsel and pro se parties. If an appellant is represented by appointed counsel, the clerk may refer the matter to the Chief Judge for consideration of possible disciplinary action against counsel in lieu of dismissal.

(d) Effect of Pending Motion to Extend Time. The clerk shall not dismiss an appeal during the pendency of a timely filed motion for an extension of time to file appellant’s brief or appendix, but if the court denies such leave after the expiration of the due date for filing the brief or appendix, the clerk shall dismiss the appeal.

(e) Motion to Set Aside Dismissal and Remedy Default. An appeal dismissed pursuant to this rule may be reinstated only upon the timely filing of a motion to set aside the dismissal and remedy the default showing extraordinary circumstances, accompanied by the required brief or appendix. Such a motion showing extraordinary circumstances, accompanied by the required brief or appendix, must be filed within 14 days of the date the clerk enters the order dismissing the appeal. The timely filing of such a motion, accompanied by the required brief or appendix, and a showing of extraordinary circumstances, is the exclusive method of seeking to set aside a dismissal entered pursuant to this rule. An untimely filed motion to set aside dismissal and remedy default must be denied unless the motion demonstrates extraordinary circumstances justifying the delay in filing the motion, and no further filings shall be accepted by the clerk in that dismissed appeal. The time to file a responsive

Rev.: 8/18 164 FRAP 42 brief runs from the date the court’s order granting a motion to set aside dismissal and remedy default is entered on the docket.

(f) Failure of Appellee to File Brief by Due Date. When an appellee fails to file a brief by the due date as established by 11th Cir. R. 31-1, or, if the due date has been extended by the court, within the time so extended, the appeal will be submitted to the court for decision without further delay, and the appellee will not be heard at oral argument (if oral argument is scheduled to be heard) unless otherwise ordered by the court.

11th Cir. R. 42-3 Dismissal in a Civil Appeal for Appellant’s Failure to Correct a Deficiency in Briefs or Appendices Within 14 Days of Notice.

(b) Notice to Correct a Deficiency in Briefs or Appendices. If briefs or appendices do not comply with the rules governing the form of briefs and appendices, the clerk will send counsel and pro se parties a notice specifying the matters requiring correction. A complete corrected set of replacement briefs or appendices must be filed in the office of the clerk within 14 days of the date of the clerk’s notice.

(c) Dismissal Without Further Notice. When an appellant has failed to correct the brief or appendix within 14 days of the clerk’s notice, or, if the due date has been extended by the court, within the time so extended, an appeal shall be treated as dismissed for failure to prosecute on the first business day following the due date. The clerk thereafter will enter an order dismissing the appeal and mail a copy of that order to counsel and pro se parties. If an appellant is represented by appointed counsel, the clerk may refer the matter to the Chief Judge for consideration of possible disciplinary action against counsel in lieu of dismissal.

(d) Effect of Pending Motion to Extend Time. The clerk shall not dismiss an appeal during the pendency of a timely filed motion for an extension of time to correct a deficiency in appellant’s brief or appendix, but if the court denies such leave after the expiration of the due date for correcting a deficiency in the brief or appendix, the clerk shall dismiss the appeal.

(e) Motion to Set Aside Dismissal and Remedy Default. An appeal dismissed pursuant to this rule may be reinstated only upon the filing of a motion to set aside the dismissal and remedy the default showing extraordinary circumstances, accompanied by the required corrected brief or appendix. Such a motion showing extraordinary circumstances, accompanied by the required corrected brief or appendix, must be filed within 14 days of the date the clerk enters the order dismissing the appeal. The timely filing of such a motion, accompanied by the required corrected brief or appendix, and a showing of extraordinary circumstances, is the exclusive method of seeking to set aside a dismissal entered pursuant to this rule. An untimely filed motion to set aside dismissal and remedy default must be denied unless the motion demonstrates extraordinary circumstances justifying the delay in filing the motion, and no further filings shall be accepted by the clerk in that dismissed appeal. The

Rev.: 8/18 165 FRAP 42 time to file a responsive brief runs from the date the court’s order granting a motion to set aside dismissal and remedy default is entered on the docket.

(f) Failure of Appellee to File Corrected Brief Within 14 Days of Notice. When an appellee fails to file a corrected brief within 14 days of the clerk’s notice, or, if that date has been extended by the court, within the time so extended, the appeal will be submitted to the court for decision without further delay, and the appellee will not be heard at oral argument (if oral argument is scheduled to be heard) unless otherwise ordered by the court.

11th Cir. R. 42-4 Frivolous Appeals. If it shall appear to the court at any time that an appeal is frivolous and entirely without merit, the appeal may be dismissed.

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I.O.P. - Dismissal Rules Apply to Principal Briefs. The rules that provide for dismissal of an appeal for appellant’s failure to file a brief by the due date, or to correct deficiencies in a brief within 14 days of notice, apply to appellant’s or cross-appellant’s principal (first) brief only, unless the court orders otherwise.

Cross-Reference: FRAP 3, 38; 28 U.S.C. § 1927

Rev.: 8/18 166 FRAP 42 FRAP 43. Substitution of Parties

(a) Death of a Party.

(1) After Notice of Appeal Is Filed. If a party dies after a notice of appeal has been filed or while a proceeding is pending in the court of appeals, the decedent’s personal representative may be substituted as a party on motion filed with the circuit clerk by the representative or by any party. A party’s motion must be served on the representative in accordance with Rule 25. If the decedent has no representative, any party may suggest the death on the record, and the court of appeals may then direct appropriate proceedings.

(2) Before Notice of Appeal Is Filed—Potential Appellant. If a party entitled to appeal dies before filing a notice of appeal, the decedent’s personal representative—or, if there is no personal representative, the decedent’s attorney of record—may file a notice of appeal within the time prescribed by these rules. After the notice of appeal is filed, substitution must be in accordance with Rule 43(a)(1).

(3) Before Notice of Appeal Is Filed—Potential Appellee. If a party against whom an appeal may be taken dies after entry of a judgment or order in the district court, but before a notice of appeal is filed, an appellant may proceed as if the death had not occurred. After the notice of appeal is filed, substitution must be in accordance with Rule 43(a)(1).

(b) Substitution for a Reason Other Than Death. If a party needs to be substituted for any reason other than death, the procedure prescribed in Rule 43(a) applies.

(1) Identification of Party. A public officer who is a party to an appeal or other proceeding in an official capacity may be described as a party by the public officer’s official title rather than by name. But the court may require the public officer’s name to be added.

(2) Automatic Substitution of Officeholder. When a public officer who is a party to an appeal or other proceeding in an official capacity dies, resigns, or otherwise ceases to hold office, the action does not abate. The public officer’s successor is automatically substituted as a party. Proceedings following the substitution are to be in the name of the substituted party, but any misnomer that does not affect the substantial rights of the parties may be disregarded. An order of substitution may be entered at any time, but failure to enter an order does not affect the substitution.

(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998.)

Rev.: 12/10 167 FRAP 43 FRAP 44. Case Involving a Constitutional Question When the United States or the Relevant State Is Not a Party

(a) Constitutional Challenge to Federal Statute. If a party questions the constitutionality of an Act of Congress in a proceeding in which the United States or its agency, officer, or employee is not a party in an official capacity, the questioning party must give written notice to the circuit clerk immediately upon the filing of the record or as soon as the question is raised in the court of appeals. The clerk must then certify that fact to the Attorney General.

(b) Constitutional Challenge to State Statute. If a party questions the constitutionality of a statute of a State in a proceeding in which that State or its agency, officer, or employee is not a party in an official capacity, the questioning party must give written notice to the circuit clerk immediately upon the filing of the record or as soon as the question is raised in the court of appeals. The clerk must then certify that fact to the attorney general of the State.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)

Rev.: 12/10 168 FRAP 44 FRAP 45. Clerk’s Duties

(a) General Provisions.

(1) Qualifications. The circuit clerk must take the oath and post any bond required by law. Neither the clerk nor any deputy clerk may practice as an attorney or counselor in any court while in office.

(2) When Court Is Open. The court of appeals is always open for filing any paper, issuing and returning process, making a motion, and entering an order. The clerk’s office with the clerk or a deputy in attendance must be open during business hours on all days except Saturdays, Sundays, and legal holidays. A court may provide by local rule or by order that the clerk’s office be open for specified hours on Saturdays or on legal holidays other than New Year’s Day, Martin Luther King, Jr.’s Birthday, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, and Christmas Day.

(b) Records.

(1) The Docket. The circuit clerk must maintain a docket and an index of all docketed cases in the manner prescribed by the Director of the Administrative Office of the United States Courts. The clerk must record all papers filed with the clerk and all process, orders, and judgments.

(2) Calendar. Under the court’s direction, the clerk must prepare a calendar of cases awaiting argument. In placing cases on the calendar for argument, the clerk must give preference to appeals in criminal cases and to other proceedings and appeals entitled to preference by law.

(3) Other Records. The clerk must keep other books and records required by the Director of the Administrative Office of the United States Courts, with the approval of the Judicial Conference of the United States, or by the court.

(c) Notice of an Order or Judgment. Upon the entry of an order or judgment, the circuit clerk must immediately serve a notice of entry on each party, with a copy of any opinion, and must note the date of service on the docket. Service on a party represented by counsel must be made on counsel.

(d) Custody of Records and Papers. The circuit clerk has custody of the court’s records and papers. Unless the court orders or instructs otherwise, the clerk must not permit an original record or paper to be taken from the clerk’s office. Upon disposition of the case, original papers constituting the record on appeal or review must be returned to the court or agency from which they were received. The clerk must preserve a copy of any brief, appendix, or other paper that has been filed.

Rev.: 12/10 169 FRAP 45 (As amended Mar. 1, 1971, eff. July 1, 1971; Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005.)

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11th Cir. R. 45-1 Clerk.

(a) Location. The clerk’s principal office shall be in the city of Atlanta, Georgia.

(b) Office to Be Open. The office of the clerk, with the clerk or a deputy in attendance, shall be open for business from 8:30 a.m. to 5:00 p.m., Eastern time, on all days except Saturdays, Sundays, New Year’s Day, Birthday of Martin Luther King, Jr., Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, and Christmas Day.

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I.O.P. -

1. Telephone Inquiries. The clerk’s office welcomes telephone inquiries from counsel concerning rules and procedures. Counsel may contact the appropriate deputy clerk by calling the clerk’s office. The clerk is also available to confer with counsel on special problems.

2. Emergency Telephone Inquiries After Hours. In emergency situations arising outside normal office hours, or on weekends, the deputy clerk on duty may be reached by dialing the clerk’s office and following recorded instructions.

3. Miami Satellite Office. The clerk maintains a satellite office in Miami, Florida. See I.O.P. 5, Miami Satellite Office, following FRAP 25.

Cross-Reference: FRAP 25, 26, 34; 28 U.S.C. §§ 452, 711, 956

Rev.: 4/14 170 FRAP 45 FRAP 46. Attorneys

(a) Admission to the Bar.

(1) Eligibility. An attorney is eligible for admission to the bar of a court of appeals if that attorney is of good moral and professional character and is admitted to practice before the Supreme Court of the United States, the highest court of a state, another United States court of appeals, or a United States district court (including the district courts for Guam, the Northern Mariana Islands, and the Virgin Islands).

(2) Application. An applicant must file an application for admission, on a form approved by the court that contains the applicant’s personal statement showing eligibility for membership. The applicant must subscribe to the following oath or affirmation:

“I, _____, do solemnly swear [or affirm] that I will conduct myself as an attorney and counselor of this court, uprightly and according to law; and that I will support the Constitution of the United States.”

(3) Admission Procedures. On written or oral motion of a member of the court’s bar, the court will act on the application. An applicant may be admitted by oral motion in open court. But, unless the court orders otherwise, an applicant need not appear before the court to be admitted. Upon admission, an applicant must pay the clerk the fee prescribed by local rule or court order.

(b) Suspension or Disbarment.

(1) Standard. A member of the court’s bar is subject to suspension or disbarment by the court if the member:

(A) has been suspended or disbarred from practice in any other court; or

(B) is guilty of conduct unbecoming a member of the court’s bar.

(2) Procedure. The member must be given an opportunity to show good cause, within the time prescribed by the court, why the member should not be suspended or disbarred.

(3) Order. The court must enter an appropriate order after the member responds and a hearing is held, if requested, or after the time prescribed for a response expires, if no response is made.

(c) Discipline. A court of appeals may discipline an attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with any court rule. First, however, the court must afford the attorney reasonable notice, an opportunity to show cause to the contrary, and, if requested, a hearing.

(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998.) Rev.: 8/12 171 FRAP 46 * * * *

11th Cir. R. 46-1 Bar Admission and Fees. Only attorneys admitted to the bar of this court may practice before the court, except as otherwise provided in these rules. Admission is governed by FRAP 46 and this Eleventh Circuit Rule, and attorneys must also meet the requirements of 11th Cir. R. 46-7. To request admission to the bar, an attorney must complete an application form, available on the court’s website. The application form must be accompanied by a certificate of good standing issued within the previous six months establishing that the attorney is admitted to practice before a court described in FRAP 46(a)(1). Upon admission, the attorney must pay the non-refundable attorney admission fee, which is composed of: (1) the national admission fee prescribed by the Judicial Conference of the United States in the Court of Appeals Miscellaneous Fee Schedule issued pursuant to 28 U.S.C. § 1913; and (2) the local admission fee prescribed pursuant to FRAP 46(a)(3) and posted on the court’s website. Failure to pay the fee within 14 days of admission will require that the attorney submit a new application form. All attorneys must apply for admission and submit attorney admission fees through PACER.

Each member of the bar has a continuing obligation to keep this court informed of any changes to addresses, phone numbers, fax numbers, and e-mail addresses.

11th Cir. R. 46-2 Renewal of Bar Membership; Inactive Status. Each attorney admitted to the bar of this court shall pay the bar membership renewal fee prescribed by the court and posted on the court’s website every five years from the date of admission. A new certificate of admission will not issue upon payment of this fee. During the first week of the month in which an attorney’s renewal fee is due, the clerk shall send by mail, e-mail, or other means a notice to the attorney using the contact information on the roll of attorneys admitted to practice before this court (attorney roll), and advise the attorney that payment of the renewal fee is due by the last day of that month. If the notice is returned undelivered due to incorrect or invalid contact information, no further notice will be sent. If the renewal fee is not paid by the last day of the month in which the notice is sent, the attorney’s membership in the bar of this court will be placed in inactive status for a period of 12 months, beginning on the first day of the next month. An attorney whose bar membership is in inactive status may not practice before the court. To renew a bar membership, including one in inactive status, an attorney must complete a bar membership renewal form, available at www.ca11.uscourts.gov. The renewal form must be accompanied by the non-refundable bar membership renewal fee. All attorneys must use the court’s Electronic Case Files (ECF) system to submit their renewal forms and payments.

After 12 months in inactive status, if an attorney has not paid the bar membership renewal fee, the clerk shall strike the attorney’s name from the attorney roll. An attorney whose name is stricken from the attorney roll due to nonpayment of the renewal fee who thereafter wishes to practice before the court must apply for admission to the bar pursuant to 11th Cir. R. 46-1, unless the attorney is eligible to be admitted for a particular proceeding pursuant to 11th Cir. R. 46-3.

11th Cir. R. 46-3 Admission for Particular Proceeding. The following attorneys shall be admitted for the particular proceeding in which they are appearing without the necessity of formal application or payment of the admission fee: an attorney appearing on behalf of the United States, a federal public defender, an attorney appointed by a federal court under the Criminal Justice Act, and any attorney appointed by this court.

Rev.: 8/19 172 FRAP 46 11th Cir. R. 46-4 Pro Hac Vice Admission. An attorney who does not reside in the circuit but is otherwise eligible for admission to the bar pursuant to FRAP 46 and these rules, and also meets the requirements of 11th Cir. R. 46-7, may apply to appear pro hac vice in a particular proceeding. The following items must be provided:

• a completed Application to Appear Pro Hac Vice form, available on the Internet at www.ca11.uscourts.gov, with proof of service; • a certificate of good standing issued within the previous six months establishing that the attorney is admitted to practice before a court described in FRAP 46(a)(1); and • a non-refundable pro hac vice application fee prescribed by the court and posted on the court’s website.

An attorney may apply to appear before this court pro hac vice only two times.

To practice before the court, an attorney who resides in the circuit or who has two times previously applied to appear before this court pro hac vice, must apply for admission to the bar pursuant to 11th Cir. R. 46-1, unless the attorney is eligible to be admitted for a particular proceeding pursuant to 11th Cir. R. 46-3.

The clerk is authorized to grant an application to appear pro hac vice in an appeal not yet assigned or under submission, in such circumstances as determined by the court, when an attorney meets the requirements of the rules.

11th Cir. R. 46-5 Entry of Appearance. Every attorney, except one appointed by the court for a specific case, must file an Appearance of Counsel Form in order to participate in a case before the court. The form must be filed within 14 days after the date on the notice from the clerk that the Appearance of Counsel Form must be filed. With a court-appointed attorney, the order of appointment will be treated as the appearance form.

Except for those who are court-appointed, an attorney who has not previously filed an Appearance of Counsel Form in a case will not be permitted to participate in oral argument of the case until the appearance form is filed.

11th Cir. R. 46-6 Clerk’s Authority to Accept Filings.

(a) Filings from an Attorney Who Is Not a Member of the Eleventh Circuit Bar.

(1) Subject to the provisions of this rule, the clerk may conditionally file the following papers received from an attorney who is not a member of the circuit bar and who is not admitted for the particular proceeding pursuant to 11th Cir. R. 46-3:

• a petition or application that initiates a proceeding in this court;

• an emergency motion as described in 11th Cir. R. 27-1(b);

• a motion or petition that is treated by the clerk as “time sensitive” as that term is used in 11th Cir. R. 27-1(b). Rev.: 8/18 173 FRAP 46 (2) Upon filing the petition, application, or motion, the clerk will mail a notice to the attorney, stating that in order to participate in the appeal the attorney must be properly admitted either to the bar of this court or for the particular proceeding pursuant to 11th Cir. R. 46-4, and that the attorney must submit an appropriate application for admission within fourteen (14) days from the date of such notice.

(3) Within the 14-day notice period, the clerk may conditionally file motions and other papers received from the attorney, subject to receipt of an appropriate application for admission within that period. At the expiration of the 14-day notice period, if an appropriate application for admission has not been received, the clerk will return any such motions and other papers to the attorney and enter that action on the docket, and the motions and other papers will be treated as though they were never filed.

(4) When an appropriate application for admission is received within the 14-day notice period, the clerk may continue to conditionally file motions and other papers received from the attorney, subject to the court’s approval of the attorney’s application for admission. If the attorney’s application is denied, the clerk will return any such motions and other papers to the attorney and enter that action on the docket, and the motions and other papers will be treated as though they were never filed. Before taking that action, the clerk may stay further proceedings in the appeal for 30 days, if necessary, to allow the attorney’s client to seek new counsel.

(b) Filings from an Attorney Who Has Not Filed an Appearance of Counsel Form Within 14 Days After Notice is Mailed by the Clerk. When an attorney fails to file a required Appearance of Counsel Form within 14 days after notice of that requirement is mailed by the clerk, the clerk may not accept any further filings (except for a brief) from the attorney until the attorney files an Appearance of Counsel Form. When an attorney who has not filed an Appearance of Counsel Form tenders a brief for filing, the clerk will treat the failure to file an Appearance of Counsel Form as a deficiency in the form of the brief. An Appearance of Counsel Form need not be accompanied by a motion to file out of time.

11th Cir. R. 46-7 Active Membership in Good Standing with State Bar Required to Practice; Changes in Status of Bar Membership Must Be Reported. In addition to the requirements of FRAP 46 and the corresponding circuit rules, and Addendum Eight, an attorney may not practice before this court if the attorney is not an active member in good standing with a state bar or the bar of the highest court of a state, or the District of Columbia (hereinafter, “state bar”). When an attorney’s active membership in good standing with a state bar lapses for any reason, including but not limited to retirement, placement in inactive status, failure to pay bar membership fees, or failure to complete continuing education requirements, the attorney must notify the clerk of this court within 14 days. That notification must also list every other state bar and federal bar of which the attorney is a member, including state bar numbers and the attorney’s status with that bar (e.g., active, inactive, retired, etc.). Members of the Eleventh Circuit bar have a continuing obligation to provide such notification, and attorneys appearing pro hac vice in a particular case or appeal must provide such notification while that case or appeal is pending. Upon receipt of that notification, the court may take any action it deems appropriate, including placing the attorney’s bar membership in inactive status until the attorney provides documentation of active membership in good standing with a state bar. Rev.: 12/15 174 FRAP 46 11th Cir. R. 46-8 Certificate of Admission. Upon admission to the bar of this court, the clerk will send the attorney a certificate of admission. A duplicate certificate of admission is available for purchase upon payment of the fee prescribed by the Judicial Conference of the United States in the Court of Appeals Miscellaneous Fee Schedule issued pursuant to 28 U.S.C. § 1913, payable to Clerk, U.S. Court of Appeals, Eleventh Circuit.

11th Cir. R. 46-9 Attorney Discipline. This court has adopted rules governing attorney conduct and discipline. See Addendum Eight.

11th Cir. R. 46-10 Appointment or Withdrawal of Counsel.

(a) Appellate Obligations of Retained Counsel. Retained counsel for a criminal defendant has an obligation to continue to represent that defendant until successor counsel either enters an appearance or is appointed under the Criminal Justice Act, and may not abandon or cease representation of a defendant except upon order of the court.

(b) Habeas Corpus or 28 U.S.C. § 2255 Pauper Appeals. When any pro se appeal for either habeas corpus or 2255 relief is classified for oral argument, counsel will normally be appointed under the Criminal Justice Act before the appeal is calendared. The non-argument panel that classifies the appeal for oral argument will advise the clerk who will then obtain counsel under the regular procedure.

(c) Relieving Court Appointed Counsel on Appeal. Counsel appointed by the trial court shall not be relieved on appeal except in the event of incompatibility between attorney and client or other serious circumstances.

(d) Criminal Justice Act Appointments. The Judicial Council of this circuit has adopted the Eleventh Circuit Plan under the Criminal Justice Act and Guidelines for Counsel Supplementing the Eleventh Circuit Plan under the Criminal Justice Act. See Addendum Four.

(e) Non-Criminal Justice Act Appointments. This court has adopted rules governing Non-Criminal Justice Act Appointments. See Addendum Five.

11th Cir. R. 46-11 Appearance and Argument by Eligible Law Students.

(a) Scope of Legal Assistance.

(1) Notice of Appearance. An eligible law student, as described below, acting under a supervising attorney of record, may enter an appearance in this court on behalf of any indigent person, the United States, or a governmental agency in any civil or criminal case, provided that the party on whose behalf the student appears and the supervising attorney of record has consented thereto in writing. The written consent of the party (or the party’s representative) and the supervising attorney of record must be filed with this court.

(2) Briefs. An eligible law student may assist in the preparation of briefs and other documents to be filed in this court, but such briefs or documents must be reviewed, approved

Rev.: 12/10 175 FRAP 46 entirely, and signed by the supervising attorney of record. Names of students participating in the preparation of briefs may, however, be added to the briefs.

(3) Oral Argument. Except, on behalf of the accused, in a direct appeal from a criminal prosecution, an eligible law student may also participate in oral argument, but only in the presence of the supervising attorney of record.

(b) Law Student Eligibility Requirements.

In order to appear before this court, the law student must:

(1) Be enrolled in a law school approved by the American Bar Association;

(2) Have completed legal studies for which the student has received at least 48 semester hours or 72 quarter hours of academic credit or the equivalent if the school is on some other basis;

(3) Be certified by the dean of the law student’s law school as qualified to provide the legal representation permitted by this rule. This certification, which shall be filed with the clerk, may be withdrawn by the dean at any time by mailing a notice to the clerk or by termination by this court without notice or hearing and without any showing of cause;

(4) Neither ask for nor receive any compensation or remuneration of any kind for the student’s services from the person on whose behalf the student renders services, but this shall not prevent an attorney, legal aid bureau, law school, public defender agency, a State, or the United States from paying compensation to the eligible law student, nor shall it prevent these entities from making proper charges for its services;

(5) Certify in writing that the student has read and is familiar with the Code of Professional Responsibility of the American Bar Association, the Federal Rules of Appellate Procedure, and the rules of this court; and

(6) File all of the certifications and consents necessary under this rule with the clerk of this court prior to the submission of any briefs or documents containing the law student’s name and the law student’s appearance at oral argument.

(1) The supervising attorney of record must be a member in good standing of the bar of this court.

(2) With respect to the law student’s appearance, the supervising attorney of record shall certify in writing to this court that he or she:

(A) consents to the participation of the law student and agrees to supervise the law student;

Rev.: 8/14 176 FRAP 46 (B) assumes full, personal professional responsibility for the case and for the quality of the law student’s work;

(D) will appear with the student in all written and oral proceedings before this court and be prepared to supplement any written or oral statement made by the student to this court or opposing counsel.

* * * * I.O.P. -

1. Admissions. There is no formal swearing-in ceremony.

2. Payment Returned or Denied for Insufficient Funds. When a payment of a fee is returned unpaid or denied by a financial institution due to insufficient funds, counsel must thereafter pay the fee by money order or cashier’s check made payable to the same entity or account as the returned check or denied payment. In addition, counsel must also remit by separate money order or cashier’s check the returned-or-denied-payment fee prescribed by the Judicial Conference of the United States in the Court of Appeals Miscellaneous Fee Schedule issued pursuant to 28 U.S.C. § 1913, payable to Clerk, U.S. Court of Appeals, Eleventh Circuit.

3. Components of Attorney Admission Fee. The attorney admission fee is composed of two separate fees. A national admission fee has been prescribed by the Judicial Conference of the United States in the Court of Appeals Miscellaneous Fee Schedule issued pursuant to 28 U.S.C. § 1913. This fee is remitted to the federal judiciary. A local admission fee has been prescribed by this court pursuant to FRAP 46(a)(3), and is posted on the court’s website. This fee is deposited in the court’s non-appropriated fund account to be used for the benefit of the bench and bar in the administration of justice.

Rev.: 8/14 177 FRAP 46 FRAP 47. Local Rules by Courts of Appeals

(a) Local Rules.

(1) Each court of appeals acting by a majority of its judges in regular active service may, after giving appropriate public notice and opportunity for comment, make and amend rules governing its practice. A generally applicable direction to parties or lawyers regarding practice before a court must be in a local rule rather than an internal operating procedure or standing order. A local rule must be consistent with—but not duplicative of—Acts of Congress and rules adopted under 28 U.S.C. § 2072 and must conform to any uniform numbering system prescribed by the Judicial Conference of the United States. Each circuit clerk must send the Administrative Office of the United States Courts a copy of each local rule and internal operating procedure when it is promulgated or amended.

(2) A local rule imposing a requirement of form must not be enforced in a manner that causes a party to lose rights because of a nonwillful failure to comply with the requirement.

(b) Procedure When There Is No Controlling Law. A court of appeals may regulate practice in a particular case in any manner consistent with federal law, these rules, and local rules of the circuit. No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local circuit rules unless the alleged violator has been furnished in the particular case with actual notice of the requirement.

(As amended Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 24, 1998, eff. Dec. 1, 1998.)

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11th Cir. R. 47-1 Name, Seal, and Process.

(a) Name. The name of this court is “United States Court of Appeals for the Eleventh Circuit.”

(b) Seal. Centered upon a blue disc a representation of the American eagle in its proper colors with wings displayed and inverted standing upon a closed book with gold page ends and maroon cover; also standing upon the book and in front of the eagle’s right wing a gold balance embellished with three white stars, one above each of the pans and one atop the centerpost and below the book on a gold semi-circular scroll in blue letters the inscription EQUAL JUSTICE UNDER LAW; all enclosed by a gold-edged white border inscribed in blue with the words UNITED STATES COURT OF APPEALS above two gold rosettes of blue and gold and the words ELEVENTH CIRCUIT also in blue.

Rev.: 12/10 178 FRAP 47 11th Cir. R. 47-2 Circuit Executive. The judicial council has appointed a circuit executive pursuant to 28 U.S.C. § 332 as secretary of the judicial council and of the judicial conference.

The circuit executive is designated as the court’s manager for all matters pertaining to administrative planning, organizing and budgeting. The clerk, the director of the staff attorney’s office, and the circuit librarian shall coordinate fully with the circuit executive on those administrative matters pertaining to their areas of responsibility that appropriately warrant judicial attention or administrative action.

The circuit executive shall maintain an office in Atlanta, Georgia.

11th Cir. R. 47-3 Circuit Librarian. Under the direction of a circuit librarian the court will maintain a library in Atlanta, Georgia, and approve regulations for its use. All persons admitted to practice before the court shall be authorized to use the library. Libraries may be maintained at other places in the circuit designated by the judicial council.

11th Cir. R. 47-4 Staff Attorneys. Under the supervision of a senior staff attorney, a central staff of attorneys shall be maintained at Atlanta, Georgia, to assist the court in legal research, analysis of appellate records and study of particular legal problems, and such other duties as the court directs.

11th Cir. R. 47-5 Judicial Conference. The rules of this court for having and conducting the conference and for representation and active participation at the conference by judges and members of the bar appear as Addendum One.

11th Cir. R. 47-6 Restrictions on Practice by Current and Former Employees. Consistent with the Consolidated Code of Conduct for Judicial Employees adopted by the Judicial Conference of the United States, no employee of the court shall engage in the practice of law. A former employee of the court may not participate by way of representation, consultation, or assistance, in any matter which was pending in the court during the employee’s term of employment.

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I.O.P. -

1. Physical Facilities. The headquarters of the United States Court of Appeals for the Eleventh Circuit is located at 56 Forsyth Street, N.W., Atlanta, Georgia 30303, in the Elbert P. Tuttle U.S. Court of Appeals Building. The courthouse contains three courtrooms, chambers for judges, the Kinnard Mediation Center, and the library. The John C. Godbold Federal Building, which contains the circuit executive’s office, the clerk’s office, and the office of the staff attorneys, is located at 96 Poplar Street, N.W., Atlanta, Georgia 30303, and is directly behind the Elbert P. Tuttle U.S. Court of Appeals Building.

2. Judges. The Eleventh Circuit has 12 authorized active judges. Each active judge’s office, maintained in the place of residence, is authorized three law clerks and two secretaries or four law clerks and one secretary. The chief judge is authorized one additional law clerk or secretary. Several senior judges maintain offices and staffs commensurate with the judicial work they choose

Rev.: 8/13 179 FRAP 47 to do, and sit on oral argument panels several times during the year. Senior judges do not normally participate in the administrative work of the court, although they are authorized by law to do so.

3. Circuit Executive. The circuit executive is the chief administrative officer of the court. The circuit executive’s office contains staff assistants and secretaries. See 28 U.S.C. § 332.

4. Office of Staff Attorneys. The office is comprised of a senior staff attorney, staff attorneys, and supporting clerical personnel. This office assists the court in legal research, analysis of appellate records, and studies of particular legal problems. It also assists in handling pro se prisoner matters. In many cases the office prepares memoranda to assist the judges.

5. Library. The library is staffed by the circuit librarian and assistant librarians. Library hours are from 8:30 a.m. to 4:30 p.m., Monday through Friday.

All persons admitted to practice before the court are authorized to use the library. Under regulations approved by the court, others may use the library by special permission only. Books and materials may not be removed from the library without permission of the librarian.

6. Judicial Conference. Pursuant to 28 U.S.C. § 333 there is held biennially, and may be held annually, at such time and place as designated by the chief judge of the court, a conference of all circuit, district and bankruptcy judges of the circuit for the purpose of considering the business of the courts and advising means of improving the administration of justice within the circuit. See Addendum One to the circuit rules.

7. Judicial Council. The judicial council established by 28 U.S.C. § 332 is composed of nineteen members: one active judge from each of the nine district courts, nine active circuit judges, and the circuit chief judge. The judicial council meets on call of the chief judge approximately three times a year to consider and to make orders for the effective and expeditious administration of the courts within the circuit. The council is responsible for considering complaints against judges.

8. Fifth Circuit Court of Appeals Reorganization Act of 1980 (P.L. 96-452, October 4, 1980). Section 9 of the Fifth Circuit Court of Appeals Reorganization Act of 1980 determines appellate case processing after October 1, 1981, in terms of the “submitted for decision” date of each appeal.

The date an appeal assigned to the oral argument calendar is submitted for decision, is the date on which the initial argument of the appeal is heard. The date an appeal decided on the summary or non-argument calendar is submitted for decision, is the date on which the last panel judge concurs in summary or nonargument calendar disposition.

9. Recusal or Disqualification of Judges.

a. Grounds - A judge may recuse himself or herself under any circumstances considered sufficient to require such action. A judge is disqualified under circumstances set forth in 28 U.S.C. § 455 or in accordance with Canon 3C, Code of Conduct for United States Judges as approved by the Judicial Conference of the United States, April 1973, as amended.

Rev.: 12/15 180 FRAP 47 b. Administrative Motions Procedure -

(1) single judge matter - If a judge who is the initiating judge recuses himself or herself from considering or is disqualified to consider an administrative motion, the file is returned to the clerk who then sends it to the next initiating judge listed on the administrative routing log.

(2) panel matter - If a judge who is the initiating judge recuses himself or herself from considering or is disqualified to consider an administrative motion, the file is forwarded by the recused judge directly to the next judge (who then becomes the initiating judge) for decision by quorum of the panel. If these remaining judges cannot agree as to disposition of the matter or if the appeal is deemed more appropriate for a full panel, the quorum may submit the matter to the backup judge. If at any point there are insufficient, unrecused judges on a panel to constitute a quorum, the file is returned to the clerk for appointment of a new panel from the administrative routing log.

c. Non-Argument Calendar Appeals - The same procedure is followed as in paragraph (b)(2) above, except that a backup judge is ordinarily called in since the court’s practice is that appeals are not ordinarily disposed of on the merits by only two judges.

d. Oral Argument Calendar Appeals - Prior to issuance of the court calendar, each judge on the panel is furnished with a copy for each appeal of the Certificate of Interested Persons and Corporate Disclosure Statement described in FRAP 26.1 and the accompanying circuit rules, for each judge’s advance study to determine if the judge should recuse himself or herself or is disqualified in any of the appeals.

10. Complaints Against Judges. This court’s rule for the conduct of complaint proceedings under 28 U.S.C. §§ 351-364 is outlined in Addendum Three.

11. Pro Se Applications. The clerk’s office processes and answers prisoner and other pro se correspondence with the assistance of the staff attorneys’ office. When a pro se petition is in the proper form for docketing and processing, it is routed to the staff attorneys’ office. This office prepares legal memoranda for the court on such interlocutory matters as applications for leave to appeal in forma pauperis, certificates of appealability, and appointment of counsel, and on other pro se matters.

12. Statistics. The clerk periodically prepares statistical reports for the court and for the Administrative Office of the United States Courts. These reports are used to manage the internal affairs of the court and to provide information for purposes of determining personnel and equipment needs, the number of oral argument sessions to be scheduled, the workload of the judges and staff, and other management concerns. The reports are distributed to the judges and the circuit executive, and are discussed at judicial council meetings.

Cross-Reference: 28 U.S.C. §§ 41-48, 57, 291-296, 332, 333, 372, 455, 713, 1691

Rev.: 12/10 181 FRAP 47 FRAP 48. Masters

(a) Appointment; Powers. A court of appeals may appoint a special master to hold hearings, if necessary, and to recommend factual findings and disposition in matters ancillary to proceedings in the court. Unless the order referring a matter to a master specifies or limits the master’s powers, those powers include, but are not limited to, the following:

(1) regulating all aspects of a hearing;

(2) taking all appropriate action for the efficient performance of the master’s duties under the order;

(3) requiring the production of evidence on all matters embraced in the reference; and

(4) administering oaths and examining witnesses and parties.

(b) Compensation. If the master is not a judge or court employee, the court must determine the master’s compensation and whether the cost is to be charged to any party.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.)

Rev.: 12/10 182 FRAP 48 APPENDIX OF FORMS

Form 1. Notice of Appeal to a Court of Appeals From a Judgment or Order of a District Court

United States District Court for the

District of

File Number

A. B., Plaintiff

v. Notice of Appeal

C. D., Defendant

Notice is hereby given that (here name all parties taking the appeal) , (plaintiffs) (defendants) in the above named case,* hereby appeal to the United States Court of Appeals for the Circuit (from the final judgment) (from an order (describing it)) entered in this action on the day of , 20 .

(s)

Attorney for

Address:

[Note to inmate filers: If you are an inmate confined in an institution and you seek the timing benefit of Fed. R. App. P. 4(c)(1), complete Form 7 (Declaration of Inmate Filing) and file that declaration along with this Notice of Appeal.]

* See Rule 3(c) for permissible ways of identifying appellants.

(As amended Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff. Dec. 1, 2003; Apr. 28, 2016, eff. Dec. 1, 2016.)

Rev.: 12/16 183 Form 1 Form 2. Notice of Appeal to a Court of Appeals From a Decision of the United States Tax Court

UNITED STATES TAX COURT Washington, D.C.

A. B., Petitioner

v. Docket No.

Commissioner of Internal Revenue, Respondent

Notice of Appeal

Notice is hereby given that (here name all parties taking the appeal)* , hereby appeal to the United States Court of Appeals for the Circuit from (that part of) the decision of this court entered in the above captioned proceeding on the day of , (relating to ).

(s)

Counsel for

Address:

* See Rule 3(c) for permissible ways of identifying appellants.

(As amended Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff. Dec. 1, 2003.)

Rev.: 12/10 184 Form 2 Form 3. Petition for Review of Order of an Agency, Board, Commission or Officer

United States Court of Appeals for the Circuit

A. B., Petitioner

v. Petition for Review

XYZ Commission, Respondent

(here name all parties bringing the petition)* hereby petition the court for review of the Order of the XYZ Commission (describe the order) entered on , .

(s)

Attorney for Petitioners

Address:

*See Rule 15

(As amended Apr. 22, 1993, eff. Dec. 1, 1993; Mar. 27, 2003, eff. Dec. 1, 2003.)

Rev.: 12/10 185 Form 3 Form 4. Affidavit Accompanying Motion for Permission to Appeal In Forma Pauperis

UNITED STATES DISTRICT COURT for the <______> DISTRICT OF <______>

, ) ) Plaintiff(s) ) ) v. ) ) Case No. , ) ) Defendant(s) ) )

Affidavit in Support of Motion Instructions

I swear or affirm under penalty of perjury Complete all questions in this application and that, because of my poverty, I cannot prepay then sign it. Do not leave any blanks: if the the docket fees of my appeal or post a bond for answer to a question is "0," "none," or "not them. I believe I am entitled to redress. I swear applicable (N/A)," write that response. If you or affirm under penalty of perjury under need more space to answer a question or to United States laws that my answers on this explain your answer, attach a separate sheet of form are true and correct. (28 U.S.C. § 1746; paper identified with your name, your case's 18 U.S.C. § 1621.) docket number, and the question number.

Signed: ______Date: ______

My issues on appeal are:

1. For both you and your spouse estimate the average amount of money received from each of the following sources during the past 12 months. Adjust any amount that was received weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross amounts, that is, amounts before any deductions for taxes or otherwise.

Rev.: 12/18 186 Form 4 Income source Average monthly amount Amount expected next during the past 12 months month You Spouse You Spouse Employment $ $ $ $ Self-employment $ $ $ $ Income from real property (such as $ $ $ $ rental income) Interest and dividends $ $ $ $ Gifts $ $ $ $ Alimony $ $ $ $ Child support $ $ $ $ Retirement (such as social security, $ $ $ $ pensions, annuities, insurance) Disability (such as social security, $ $ $ $ insurance payments) Unemployment payments $ $ $ $ Public-assistance (such as welfare) $ $ $ $ Other (specify): $ $ $ $

Total monthly income: $ $ $ $

2. List your employment history for the past two years, most recent employer first. (Gross monthly pay is before taxes or other deductions.)

Employer Address Dates of employment Gross monthly pay $ $ $

3. List your spouse's employment history for the past two years, most recent employer first. (Gross monthly pay is before taxes or other deductions.)

Rev.: 12/18 187 Form 4 Employer Address Dates of employment Gross monthly pay $ $ $

4. How much cash do you and your spouse have? $______

Below, state any money you or your spouse have in bank accounts or in any other financial institution.

Financial Institution Type of Account Amount you have Amount your spouse has $ $ $ $ $ $

If you are a prisoner seeking to appeal a judgment in a civil action or proceeding, you must attach a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months in your institutional accounts. If you have multiple accounts, perhaps because you have been in multiple institutions, attach one certified statement of each account.

5. List the assets, and their values, which you own or your spouse owns. Do not list clothing and ordinary household furnishings.

Home Other real estate Motor vehicle #1 (Value) $ (Value) $ (Value) $ Make and year: Model: Registration #:

Motor vehicle #2 Other assets Other assets (Value) $ (Value) $ (Value) $ Make and year: Model: Rev.: 12/18 188 Form 4 Registration #:

6. State every person, business, or organization owing you or your spouse money, and the amount owed.

Person owing you or your spouse Amount owed to you Amount owed to your money spouse $ $ $ $ $ $ $ $

7. State the persons who rely on you or your spouse for support.

Name [or, if under 18, initials only] Relationship Age

8. Estimate the average monthly expenses of you and your family. Show separately the amounts paid by your spouse. Adjust any payments that are made weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate.

You Your Spouse Rent or home-mortgage payment (including lot rented for mobile $ $ home) Are real estate taxes included? [ ] Yes [ ] No Is property insurance included? [ ] Yes [ ] No Utilities (electricity, heating fuel, water, sewer, and telephone) $ $ Home maintenance (repairs and upkeep) $ $ Food $ $ Clothing $ $ Laundry and dry-cleaning $ $ Medical and dental expenses $ $

Rev.: 12/18 189 Form 4 Transportation (not including motor vehicle payments) $ $ Recreation, entertainment, newspapers, magazines, etc. $ $ Insurance (not deducted from wages or included in mortgage payments) Homeowner's or renter's: $ $ Life: $ $ Health: $ $ Motor vehicle: $ $ Other: $ $ Taxes (not deducted from wages or included in mortgage $ $ payments) (specify): Installment payments Motor Vehicle: $ $ Credit card (name): $ $ Department store (name): $ $ Other: $ $ Alimony, maintenance, and support paid to others $ $ Regular expenses for operation of business, profession, or farm $ $ (attach detailed statement) Other (specify): $ $ Total monthly expenses: $ $

9. Do you expect any major changes to your monthly income or expenses or in your assets or liabilities during the next 12 months?

[ ] Yes [ ] No If yes, describe on an attached sheet.

10. Have you spent or will you be spending any money for expenses or attorney fees in connection with this lawsuit? [ ] Yes [ ] No

If yes, how much? $ ______

11. Provide any other information that will help explain why you cannot pay the docket fees for your appeal.

Rev.: 12/18 190 Form 4 12. State the city and state of your legal residence.

Your daytime phone number: (____) ______

Your age: ______Your years of schooling: ______

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 28, 2010, eff. Dec. 1, 2010; Apr. 16, 2013, eff. Dec. 1, 2013; Apr. 26, 2018, eff. Dec. 1, 2018.)

Rev.: 12/18 191 Form 4 Form 5. Notice of Appeal to a Court of Appeals From a Judgment or Order of a District Court or a Bankruptcy Appellate Panel

United States District Court for the

District of

In re:

, Debtor File No.

, Plaintiff

. Defendant

Notice of Appeal to United States Court of Appeals for the Circuit

, the plaintiff [or defendant or other party] appeals to the United States Court of Appeals for the Circuit from the final judgment [or order or decree] of the district court for the district of [or bankruptcy appellate panel of the circuit], entered in this case on , 20 [here describe the judgment, order, or decree] ______

The parties to the judgment [or order or decree] appealed from and the names and addresses of their respective attorneys are as follows:

Dated Signed Attorney for Appellant Address:

(As added Apr. 25, 1989, eff. Dec. 1, 1989; amended Mar. 27, 2003, eff. Dec. 1, 2003; Apr. 28, 2016, eff. Dec. 1, 2016.)

Rev.: 12/16 192 Form 5 Form 6. Certificate of Compliance With Type-Volume Limit

Certificate of Compliance With Type-Volume Limit, Typeface Requirements, and Type-Style Requirements

1. This document complies with [the type-volume limit of Fed. R. App. P. [insert Rule citation; e.g., 32(a)(7)(B)]] [the word limit of Fed. R. App. P. [insert Rule citation; e.g., 5(c)(1)]] because, excluding the parts of the document exempted by Fed. R. App. P. 32(f) [and [insert applicable Rule citation, if any]]:

G this document contains [state the number of] words, or

G this brief uses a monospaced typeface and contains [state the number of] lines of text.

2. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because:

G this document has been prepared in a proportionally spaced typeface using [state name and version of word-processing program] in [state font size and name of type style], or

G this document has been prepared in a monospaced typeface using [state name and version of word-processing program] with [state number of characters per inch and name of type style].

(s)______

Attorney for ______

Dated: ______

(As added Apr. 29, 2002, eff. Dec. 1, 2002; amended Apr. 28, 2016, eff. Dec. 1, 2016.)

Rev.: 12/16 193 Form 6 Form 7. Declaration of Inmate Filing

______[insert name of court; for example, United States District Court for the District of Minnesota]

A.B., Plaintiff

v. Case No. ______

C.D., Defendant

I am an inmate confined in an institution. Today, ______[insert date], I am depositing the ______[insert title of document; for example, “notice of appeal”] in this case in the institution’s internal mail system. First-class postage is being prepaid either by me or by the institution on my behalf.

I declare under penalty of perjury that the foregoing is true and correct (see 28 U.S.C. § 1746; 18 U.S.C. § 1621).

Sign your name here______

Signed on ______[insert date]

[Note to inmate filers: If your institution has a system designed for legal mail, you must use that system in order to receive the timing benefit of Fed. R. App. P. 4(c)(1) or Fed. R. App. P. 25(a)(2)(A)(iii).]

(As added Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 26, 2018, eff. Dec. 1, 2018.)

Rev.: 12/18 194 Form 7 Appendix: Length Limits Stated in the Federal Rules of Appellate Procedure

This chart summarizes the length limits stated in the Federal Rules of Appellate Procedure. Please refer to the rules for precise requirements, and bear in mind the following:

• In computing these limits, you can exclude the items listed in Rule 32(f).

• If you use a word limit or a line limit (other than the word limit in Rule 28(j)), you must file the certificate required by Rule 32(g).

• For the limits in Rules 5, 21, 27, 35, and 40:

- You must use the word limit if you produce your document on a computer; and

- You must use the page limit if you handwrite your document or type it on a typewriter.

• For the limits in Rules 28.1, 29(a)(5), and 32:

- You may use the word limit or page limit, regardless of how you produce the document; or

- You may use the line limit if you type or print your document with a monospaced typeface. A typeface is monospaced when each character occupies the same amount of horizontal space.

Rule Document type Word limit Page limit Line limit Petition for permission to Permission to 5(c) · 5,200 20 Not appeal appeal applicable · Answer in opposition · Cross-petition Extraordinary 21(d) · Petition for writ of 7,800 30 Not writs mandamus or prohibition applicable or other extraordinary writ · Answer

Rev.: 12/16 195 Appendix Motion Motions 27(d)(2) · 5,200 20 Not · Response to a motion applicable Reply to a response to a 27(d)(2) · 2,600 10 Not motion applicable

Parties’ briefs 32(a)(7) · Principal brief 13,000 30 1,300 (where no cross-appeal) 32(a)(7) · Reply brief 6,500 15 650 Appellant’s principal Parties’ briefs 28.1(e) · 13,000 30 1,300 (where cross- brief appeal) · Appellant’s response and reply brief Appellee’s principal and 28.1(e) · 15,300 35 1,500 response brief Appellee’s reply brief 28.1(e) · 6,500 15 650 Letter citing Party’s 28(j) · 350 Not Not supplemental supplemental authorities applicable applicable letter Amicus briefs 29(a)(5) · Amicus brief during One-half One-half One-half initial consideration of the length the length the length case on merits set by the set by the set by the Appellate Appellate Appellate Rules for a Rules for Rules for party’s a party’s a party’s principal principal principal brief brief brief 29(b)(4) · Amicus brief during 2,600 Not Not consideration of whether applicable applicable to grant rehearing Petition for hearing en Rehearing and 35(b)(2) · 3,900 15 Not en banc filings & 40(b) banc applicable · Petition for panel rehearing; petition for rehearing en banc

Rev.: 12/16 196 Appendix INDEX

The Index is primarily automated. As a result, many headings and subheadings are the same as the title of the rule or subsection that pertains to that topic. We welcome comments concerning the Index, whether to advise us of any errors or omissions, or to recommend improvements. Comments should be submitted in writing to: Rules Index Clerk, U.S. Court of Appeals, 11th Circuit, 56 Forsyth Street, N.W., Atlanta, GA 30303.

Page numbers in bold type indicate primary rules references, if any.

Addendum to Brief 105, 128, 129 Administrative Agency Orders, see Petition for Review Admission to Bar, see Attorneys Amicus Curiae Acted Upon by a Single Judge 97, 101 Amicus Brief in Support of Petition for Panel Rehearing 115 Amicus Brief in Support of Petition for Rehearing En Banc 115 Bar Admission and Fees 23, 172 Citation of Supplemental Authorities 106, 109, 115, 138 En Banc Amicus Briefs 146 Generally 113-115 Pro Hac Vice Admission 40, 173 Writs of Mandamus and Prohibition 73, 74 Anders v. California 98 Appeals Appeal as of Right 29, 32, 60, 183 Appeal by Permission 29, 38, 43, 60 Appeal by an Inmate Confined in an Institution 30, 36, 82, 183, 192, 194 Appeal in a Bankruptcy Case 29, 41-43, 192 Appeal in a Civil Case 32, 36, 44, 118 Appeal in a Criminal Case 34, 118, 119 Appeals from the Tax Court 60, 62, 184 Contents of the Notice of Appeal 29, 60 Docketing an Appeal 56 Effect of a Motion on a Notice of Appeal 32, 35 Expediting Appeals 101, 102, 125, 138 Immigration Appeal 64, 86, 133 Joint or Consolidated Appeals 29 Appearance and Argument by Eligible Law Students 175 Appearance of Counsel Form 57, 173, 174 Appendix Agency Review Proceedings 120 Appendices in Cross-Appeals 121 Binding of Papers 129 Contents 116, 118-120 Costs, see main heading on that subject

Rev.: 8/19 197 Index Dismissal, see main heading on that subject Electronic Appendix Submission 120 Extensions of Time - Briefs and Appendices, see main heading on that subject Generally 116-121 Habeas Corpus 118 Indexing Tabs on an Appendix 121 National Labor Relations Board 65, 66, 120 Number of Copies 119, 120 “One Attorney, One Brief” 108 Sample Briefs and Appendices 130 State Court Opinions and Orders 118 Application for Enforcement 63, 64, 68 Answer to Application for Enforcement 64 Attorneys Admission for Particular Proceeding 172 Appearance of Counsel Form 57, 173, 174 Appointment or Withdrawal of Counsel 98, 123, 173, 175, Addendum Four, Addendum Five Attorney Discipline 164, 165, 171, 175, Addendum Eight Bar Admission and Fees 171-177 Certificate of Admission 172, 175 Changes in Status of Bar Membership Must Be Reported 174 Clerk’s Authority to Accept Filings 173 Clerk’s Refusal of Documents 83 Components of Attorney Admission Fee 177 Entry of Appearance 173 Inactive Status 172, 174 Payment Returned or Denied for Insufficient Funds 177 Pro Hac Vice Admission 40, 173 Renewal of Bar Membership 88, 172 State Bar Required to Practice 174 Attorney’s Fees 33, 102, 134, 155, 156 Equal Access to Justice Act 156 Sanctions for Filing a Frivolous Motion 102 Bankruptcy Appeal in a Bankruptcy Case 29, 41-43 Certificate of Interested Persons (CIP) 92-94 Civil Appeal Statement 132-134 Considered Civil Appeals 164, 165 Corporate Reorganization 109 Direct Review by Permission 43 Form of Paper Record 54 Privacy of Personal Data 85 Selection and Appointment of Bankruptcy Administrators, Addendum Nine Selection and Appointment of Bankruptcy Judges, Addendum Six Bill of Costs 100, 154, 156

Rev.: 12/18 198 Index For or Against the United States 154, 156 Objections 49, 59, 65, 154 Bond Civil Case 44, 46 Clerk’s Duties 169 Petition for Permission to Appeal 39 Record for a Preliminary Motion 52 Stay of the Mandate 160 Stay or Injunction Pending Appeal 45, 46, 145 Stay Pending Review 69 Taxable in the District Court 154 Briefs Acknowledgment of Briefs 130 Addendum to Brief 105, 128, 129 Adoption of Briefs of Other Parties 107, 108 Amicus Brief 113-115, 146, 196 Amicus Brief in Support of Petition for Panel Rehearing 115 Amicus Brief in Support of Petition for Rehearing En Banc 115 Appearance and Argument by Eligible Law Students 175 Appellee’s Brief 105-110, 117, 119-123, 143, 153 Binding of Briefs 129, 130 Briefing Schedule 77, 102, 112, 122-125, 138, 146 Briefing Schedule in Cross-Appeals 112 Briefs and Appendices 88, 124, 130, 163, 165 Briefs from Party Represented by Counsel 108 Briefs in a Case Involving Multiple Appellants or Appellees 106 Briefs in Consolidated Cases 109 Certificate of Compliance, see main heading on that subject Certificate of Interested Persons (CIP) 92-94, 104, 106 Citations of Authority 105, 107-109, 115, 128, 129, 145 Citations to the Record 104-109 Color of Covers of Briefs 112, 130 Consequence of Failure to File 122 Contents 106 Cover 129 Cross-Appeals 110, 112, 121, 135 Dismissal, see main heading on that subject Due Date 111, 122-125 Electronic Brief Submission 125 Electronic Public Access 86, 87 Extensions of Time - Briefs and Appendices, see main heading on that subject Form of a Brief 126 Impermissible Language or Information in Filings 87 Information and Signature Required 85 National Labor Relations Board 65, 66, 120 Number of Copies 125 “One Attorney, One Brief” 108 Rev.: 1/19 199 Index Page Numbering and Length 129 Pending Motions 122, 123 Privacy of Personal Data 83, 85, 86 Redacted Document 85, 86 Reference List Under Seal 86 References to Parties 105 References to the Record 104, 105, 108, 117 Replacement Briefs 129, 165 Sample Briefs and Appendices 130 Supplemental Authorities 106, 109, 115, 138, 158 Supplemental Briefs 100, 108, 112, 130 Time for Filing 114, 122-125 Waiver of Reply Brief 108 Calendar, see Oral Argument Capital Cases 76, 77, 98, 99, 101 Oral Argument in Capital Cases 77 CD Recordings of Oral Arguments 138, 142 Certificate of Appealability 75-77, 123 Length of Application 76 Certificate of Compliance 105, 108, 114, 128, 129, 193 Briefs and Papers That Require a Certificate 128, 129 Form of Certificate 129, 193 Certificate of Interested Persons (CIP) Briefs 92, 93, 106, 115 Generally 92-94 Motions 92-94, 98 Motions to Dismiss by Appellants or Petitioners and Joint Motions to Dismiss 163 Oral Argument Calendars 181 Petition for En Banc Consideration 93, 145 Petition for Permission to Appeal 39 Web-based CIP 92-94 Writs of Mandamus and Prohibition 74 Certified List 68 Certiorari, see Supreme Court of the United States Change of Addresses 87 Circuit Executive 139, 179-181 Citations Citation of Supplemental Authorities 106, 109, 115, 138 Citation to Internet Materials in an Opinion 151 Citation to Unpublished Opinions 149, 150 Citations of Authority 104, 106, 107, 109, 115, 128, 129, 145 Citations to the Record 104-108 Civil Appeal Statement 132-134 When Not Required to be Filed 132-133 CJA, see Criminal Justice Act Clerk’s Duties 169

Rev.: 12/18 200 Index Office to be Open 170 Telephone Inquiries 88, 170 COA, see Certificate of Appealability Consolidation 56, 100 Constitutional Question 168 Corporate Disclosure Statement, see Certificate of Interested Persons (CIP) Corporate Reorganization 109 Costs Bill of Costs 100, 154, 156 Bond for 44 Dismissal, Agreement Specifying Costs 163 For or Against the United States 154, 156 Frivolous Appeal 153 Generally 152-156 In Forma Pauperis 79, 80 Mandate, Included in 160 Mediation Noncompliance Sanctions 134 Court Appointed Counsel 98, 123, 173, 175, Addendum Four, Addendum Five Criminal Justice Act Admission for Particular Proceeding 172 Appointment or Withdrawal of Counsel 175 CJA Plan 80, 175, Addendum Four Submission Without Argument 138, 141 Voucher for Payment of Transcript 50 Cross-Appeals 110, 112, 121, 135 Damages 153, 155 Death Penalty, see Capital Cases Direct Review by Permission 43 Dismissal Dismissal by Appellant or Petitioner 163 Dismissal for Failure to Prosecute 125, 145, 163 Dismissal in a Civil Appeal 164, 165 Dismissal in a Criminal Appeal 98, 164 Dismissal Rules Apply to Principal Briefs 166 Frivolous Appeals 166 Joint Motion to Dismiss 163 Non-Published Order Dismissing Appeal 161 Published Order Dismissing Appeal 161 Voluntary Dismissal 163 Docketing an Appeal 56 EAJA, see Equal Access to Justice Act Elbert P. Tuttle U.S. Court of Appeals Building 179 Electronic Appendix Submission 120 Electronic Brief Submission 125 Electronic Case Files (ECF) System 65, 74, 85, 120, 125, 144, 172 Exemption 85, 120, 125 Electronic Filing and Service 85 Rev.: 12/18 201 Index Electronic Public Access 86 Emergency Motions 98, 102 Emergency Telephone Inquiries After Hours 170 Employees 179 Restrictions on Practice by Current and Former Employees 179 En Banc Determination 143 Amicus Brief in Support of Petition for Rehearing En Banc 115 Certificate of Interested Persons (CIP) 92-94, 145 Effect of Granting Rehearing En Banc 146 Effect of Recusal or Disqualification 147 En Banc Amicus Briefs 146 En Banc Briefs 93, 146, 148 En Banc Rehearing Procedures Following Affirmative Poll 148 Extensions of Time 144 Form of Petition 145, 157, 159 In Appeals with Multiple Appellants or Appellees 148 Matters Not Considered En Banc 145 Number of Copies and Length 144 Petition for Hearing or Rehearing En Banc 127, 143 Response to Petition 146 Time for Petition for Hearing or Rehearing En Banc 143 Equal Access to Justice Act 156 Excusable Neglect or Good Cause 33, 35, 123 Exhibits Agency 68 Bankruptcy 42 Record on Appeal 48, 51, 53-55, 162 Redacted Document 85, 86 Use of Physical Exhibits at Argument 135 Expediting Appeals 101, 102, 125, 138 Expediting Issuance of Mandate 161 Extensions of Time - Briefs and Appendices Effect of Denial of Motion 164, 165 Effect of Pending Motion 164, 165 First Request Filed 14 or More Days in Advance 124 First Request for an Extension of Time 124 Must be Requested Prior to Expiration of Due Date 124 Second Request for an Extension of Time 124 Seven Days in Advance Requirement 124 Extensions of Time - Generally Acted Upon by a Single Judge 97, 101 Acted Upon by the Clerk 99 Bill of Costs 100, 154, 156 Duties of Court Reporters 52, 54 Form of Motion 97 Motion for Extension of Time 91

Rev.: 8/19 202 Index Notice of Appeal 90 Number of Copies 97 Objections to a Magistrate Judge’s Report and Recommendation 31 Petition for En Banc Rehearing 144 Petition for Panel Rehearing 157-160 Extraordinary Writs 73, 74, 164, 165, 195 Failure to Object to a Magistrate Judge’s Findings or Recommendations 30 Federal Energy Regulatory Commission 64, 65 Federal Public Defenders, Selection and Appointment, Addendum Seven Fees Attorneys, see main heading on that subject Attorney’s Fees, see main heading on that subject Payment of Fees, see main heading on that subject Filing Acknowledgment of Filings 88 Alternate Means 85 Clerk’s Authority to Accept Filings 173 Clerk’s Refusal of Documents 83 Electronic Appendix Submission 120 Electronic Brief Submission 125 Electronic Case Files (ECF) System 65, 74, 85, 120, 125, 144, 172 Filing with the Clerk 82, 88 Filings from Party Represented by Counsel 85 Impermissible Language or Information in Filings 87 Information and Signature Required 85, 103, 108 Inmate Filing 82, 85, 88, 146, 156, 158, 183, 192, 194 Miami Satellite Office 88, 170 Papers Sent Directly to Judges’ Chambers 88 Timely Filing of Papers 88 Under Seal 119 Form of Other Papers 127 Frivolous Appeals 135, 137, 153, 166 Frivolous Motion 102 Habeas Corpus 75-78, 101, 118, 133, 175 Appendices, State Court Orders and Opinions In 118 Application for Leave to File a Second or Successive Habeas 76 Certificate of Appealability 75-77, 123 Civil Appeal Statement Not Required 132, 133 Considered Civil Appeal 164, 165 Custody or Release of a Prisoner 78 Finality of Determination 76 Generally 75-78, 175 Release in a Habeas Corpus Proceeding 78 Holidays 88, 89, 169 Immigration Appeal 64, 86, 133 Impermissible Language or Information in Filings 87 Indicative Ruling by the District Court 58 Rev.: 12/18 203 Index In Forma Pauperis Acted Upon by a Single Judge 101 Admission for Particular Proceeding 172 Affidavit Accompanying Motion 186 Appeals In Forma Pauperis and Under the Criminal Justice Act 80 Appendix, Number of Copies 119 Briefs, Number of Copies 122, 125 Effect of Pending Motion to Proceed In Forma Pauperis 122, 123 Generally 79-81 Leave to Proceed in Forma Pauperis 79, 80 Not Considered En Banc 145 Petition for Review 65 Prison Litigation Reform Act 80 Requesting Copies of the Record 109 Staff Attorney’s Office 179 Injunction, see Stay Inmate Filings 82, 85, 88, 146, 156, 158, 183, 192, 194 Interest on Judgment 152 Internet Materials in an Opinion 151 Intervention Agency Review Proceedings 63, 64, 100 Certificate of Interested Persons (CIP) 92 Color of Covers of Briefs 112, 130 John C. Godbold Federal Building 179 Judges Assignment of Judges 139 Complaints Against Judges 180, 181, Addendum Three Identity of Panel 140 Papers Sent Directly to Judges’ Chambers 88 Recusal or Disqualification of Judges 136, 147, 180 Routing Procedures to Judges 102 Judgment Costs, see main heading on that subject District Court 32-36 Entry of Judgment 32, 35, 66, 71, 144, 149, 156-158 Settlement of a Judgment 71 Judicial Conference 80-82, 169, 172, 175, 177-180, Addendum One Judicial Council 43, 80, 175, 179-181 Jurisdiction Jurisdiction to Correct a Sentence 36 Jurisdictional Question 124 Jurisdictional Statement 104, 105, 107, 110 Statement of Subject-Matter and Appellate Jurisdiction 107 Jurisdictional Question 124 Kinnard Mediation Center 132-134, 179 Civil Appeal Statement 132-134 Confidential Mediation Statement 133, 134 Rev.: 8/19 204 Index Filing Deadlines 134 Noncompliance Sanctions 134 Use of Private Mediators 134 Law Students, Appearance and Argument by Eligible 175, 176 Length Limits 39, 74, 96, 114, 128, 195, 196 Acted Upon by a Single Judge 101 Acted Upon by the Clerk 99, 100 Amicus Briefs 113-115, 146, 196 Application for a Certificate of Appealability 75-77 Briefs 127, 129 Briefs in Cross-Appeals 111 Certificate of Compliance, see main heading on that subject Certificate of Interested Persons (CIP) 94 En Banc Briefs 146 Motions 96, 97 Petition for Panel Rehearing 157 Petition for Rehearing En Banc 143, 144 Library 179, 180 Local Rules by Courts of Appeals 178 Local Variation 128 Magistrate Judge’s Findings or Recommendations Failure to Object 7, 30, 31 Notice to Accompany 7, 31 Opportunity to Seek Extension of Time to File Objections 7, 31 Magistrate Judge’s Findings or Recommendations 30, 31 Failure to Object 30, 31 Notice to Accompany 31 Opportunity to Seek Extension of Time to File Objections 31 Mandamus, see Writs Mandate Costs, see main heading on that subject Effect of Granting Rehearing En Banc 146 Effect of Mandate on Precedential Value of Opinion 149 Expediting Issuance of Mandate 161 Generally 160-162 Interest on Judgment 152 Issuance Not Delayed for Taxing Costs 154 Judge May Notify the Clerk to Withhold the Mandate 147 Non-Published Order Dismissing Appeal 161 Published Order Dismissing Appeal 161 Masters 182 Mediation, see Kinnard Mediation Center Miami Satellite Office 88, 170 Minor Child 30, 85 Motions Acted Upon by a Single Judge 97, 101, 161 Acted Upon by the Clerk 99 Rev.: 8/19 205 Index Certificate of Compliance 128 Certificate of Interested Persons (CIP) 92-94, 98 Citations to the Record 105 Effect of a Motion on a Notice of Appeal 32, 35 Effect of a Ruling on a Motion 101 Emergency Motions 98, 102 Extensions of Time - Briefs and Appendices, see main heading on that subject Extensions of Time - Generally, see main heading on that subject Filing, see main heading on that subject Form of Motion 96, 97, 127 Frivolous Motion 102 Impermissible Language or Information in Filings 87 Information and Signature Required 85 Joint Motions to Dismiss 163 Length Limits 96, 97 Motion for Continuance 140 Motion for Damages and Costs 153 Motion for Leave to File Amicus Brief 113-115, 146 Motion for Leave to Intervene 64, 100 Motion for Leave to Proceed on Appeal in Forma Pauperis 80 Motion for Release 47 Motion to Dismiss 163 Motion to Expedite Appeal 102 Motion to File a Replacement Brief 123 Motion to File Under Seal 85-87 Motion to Set Aside Dismissal and Remedy Default 164-166 Number of Copies 97 Pending Motions 122, 123, 164, 165 Privacy of Personal Data 83, 85, 86 Reconsideration, see main heading on that subject Reply to Response 96 Response to a Motion 95, 97, 196 Sanctions for Filing a Frivolous Motion 102 Stay, see main heading on that subject Successive Motions for Reconsideration Not Permitted 101 “Time Sensitive” Motions 98 Two-Judge Motions Panels 101 Typeface and Type Styles 96 Withdrawing Motions 103 National Labor Relations Board 65, 66, 120 Non-Argument Calendar 108, 137-139, 158, 180, 181 Appeals Involving Multiple Parties 137, 139 Notice of Appeal, see Appeals Notice to Accompany Magistrate Judge’s Findings or Recommendations 31 Objections to a Magistrate Judge’s Findings or Recommendations 31 “One Attorney, One Brief” 108 Opinions 149-151 Rev.: 12/18 206 Index Available on the Internet 150 Citation to Internet Materials in an Opinion 151 Citation to Unpublished Opinions 149, 150 Effect of Mandate on Precedential Value of Opinion 149 Judgment, see main heading on that subject Publication of Opinions 150 Published Order Dismissing Appeal 161 Publishing Unpublished Opinions 149 Release of Opinions 150 Unpublished Opinions 149, 150 Oral Argument Appeals Involving Multiple Parties 137, 139 Appearance and Argument by Eligible Law Students 175 Appearance of Counsel Form 173, 174 By Amicus Curiae 114 Capital Cases, Oral Argument in 77 CD Recordings of Oral Arguments 138, 142 Continuance of Hearing 138 Failure to Appear for Oral Argument 138 Identity of Panel 140 Motions After Assignment of Appeal to Calendar 103 National Labor Relations Board 65, 66, 120 Number of Counsel to Be Heard 138 Oral Argument Calendar 103, 137-139, 141, 180, 181 Oral Argument in Capital Cases 77 Oral Argument in Miami 88 Posting of Oral Argument Recordings on the Website 142 Preparation and Issuing of Calendars 140 Quorum 136, 181 Recording Oral Arguments 138 Sealing Oral Arguments 138 Statement Regarding Oral Argument 106, 128 Submission Without Argument 138, 141 Supplemental Authorities During Oral Argument 138 Time for Oral Argument 141 Timer and Lighting Signal Procedure 141 Twenty Pages and Twenty Minutes Revisited 141 Use of Physical Exhibits at Argument 135 PACER, see Electronic Public Access Page Limits, see Length Limits Papers Sent Directly to Judges’ Chambers 88 Payment of Fees Appeal as of Right 29-31, 60, 61 Appeal by Permission 39 Petition for Review 64, 65 Tax Court 60, 61 Writs of Mandamus and Prohibition 73, 74 Rev.: 12/18 207 Index Petition for a Writ of Mandamus or Prohibition 73, 74, 161 Petition for Hearing or Rehearing En Banc, see En Banc Determination Petition for Panel Rehearing 76, 115, 127, 143, 157-160, 196 Amicus Brief in Support of Petition for Panel Rehearing 115 Extensions of Time 157, 158 Petition for Permission to Appeal 38, 40, 90, 195 Petition for Review 63, 64, 68, 72, 104, 126, 185 Considered Civil Appeal 164, 165 Filing the Record 68 Posting of Oral Argument Recordings on the Website 138, 142 Prison Litigation Reform Act 80 Privacy of Personal Data 83, 85, 86 Pro Hac Vice Admission 40, 173 Prohibition, see Writs Proof of Service, see Service Pro Se Applications 181 Published Opinions, see Opinions Published Orders 161 Quorum 136, 181 Reconsideration Denial of a Certificate of Appealability 76 Motion to Reconsider, Vacate, or Modify an Order 46, 69, 101, 145 Successive Motions for Reconsideration Not Permitted 101 Record Excerpts, see Appendix Record on Appeal Correction or Modification of the Record 49 Duties of Court Reporters 52, 54 Duties of District Court Clerk 53, 54 Exhibits, see main heading on that subject Filing the Record 39, 42, 56, 68 Form of Paper Record 54, 67 Forwarding the Record 42, 51 Requesting Copies of the Record 109 Return of Record 162 Supplemental Record 49, 67, 123 Transcripts, see main heading on that subject Record on Review or Enforcement 67 Certified Extracts of the Record 68 Certified List 68 Recording Oral Arguments 138 CD Recordings of Oral Arguments 138, 142 Posting of Oral Argument Recordings on the Website 142 Recusal or Disqualification of Judges 136, 180 Effect on En Banc Determination 147 Redacted Document 85, 86 Reference List Under Seal 86 Rehearing By Panel, see Petition for Panel Rehearing Rev.: 12/18 208 Index Rehearing En Banc, see En Banc Determination Reinstatement, see Motions Release in a Criminal Case 47 Release in a Habeas Corpus Proceeding 78 Remand After an Indicative Ruling by the District Court 58, 59 Replacement Briefs 129, 165 Representation Statement, see Appearance of Counsel Form Responses Answer to a Petition for a Writ 73 Answer to a Petition for Panel Rehearing 157 Answer to a Petition for Permission to Appeal 38, 39 Answer to a Petition for Review or Application to Enforce an Agency Order 63, 64 Filing, see main heading on that subject Impermissible Language or Information in Filings 87 Reply to Response to a Motion 96 Response to a Motion 95, 97 Response to a Petition for Rehearing En Banc 144, 146 Rules Applicability of Rules 41, 43, 62, 72 Local Rules by Courts of Appeals 178 Scope of Rules 27 Suspension of Rules 28 Sanctions Attorney Discipline 164, 165, 171, 175, Addendum Eight Frivolous Appeal 153 Frivolous Motion 102 Sealing Oral Arguments 138 Section 2255 Proceedings, see Habeas Corpus Service Additional Time after Certain Kinds of Service 90 Attorneys Registered to Use the ECF System 85 Electronic Filing and Service 85 Manner of Service 60, 64, 83, 84 Proof of Service - Contents 83, 84 Proof of Service Required 46, 47, 70, 83, 84 Service of All Papers Required 84 Service of Emergency Motions 98, 99 Signature 85, 103, 108, 128 Social Security Appeals 86 Social Security Number 85 Staff Attorney 139, 179, 180 State Bar Required to Practice 174 Changes in Status of Bar Membership Must Be Reported 174 Statistics 181 Stay Capital Cases 76, 77, 98, 99, 101 Emergency Motions 98, 102 Rev.: 12/18 209 Index Mandate, see main heading on that subject Proceeding Against a Surety 46 Stay in a Criminal Case 46 Stay or Injunction Pending Appeal 45, 46, 145 Stay Pending Review 69 Supporting Documentation 97 Substitution of Parties 100, 167 Successive Applications, Motions, and Petitions 76, 77, 101 Supplemental Authorities Amicus Curiae 115 During Oral Argument 138 Generally 106, 109 While Petition for Rehearing or Petition for Rehearing En Banc is Pending 158 Supplemental Briefs 100, 108, 112, 130 Supreme Court of the United States Admission to Bar, Eligibility 171 Capital Cases 77 Certified Records for Supreme Court 162 Conflict with Precedent 144, 145 Writ of Certiorari 144, 158, 160, 162 Suspension of Rules 28 Tax Court Appeals from the Tax Court 60, 62, 184 Applicability of Other Rules 62 Civil Appeal Statement 132-134 Considered Civil Appeal 164, 165 Filing the Record 60 Generally 60-62 In Forma Pauperis, see main heading on that subject Telephone Inquiries 88, 170 Time Additional Time after Certain Kinds of Service 90 Briefing Schedule 77, 102, 112, 122, 124, 125, 138, 146 Computing Time 89 Extensions of Time, see main heading on that subject Inaccessibility of Clerk’s Office 89, 91 Inmate Filing 82, 85, 88, 146, 156, 158, 183, 192, 194 “Time Sensitive” Motions 98 Transcripts Anders v. California 98 Certified List 68 Citations to the Record 104-108 Effect of Mediation 133 Filing the Record 56 Generally 48-55 Ordering the Transcript 50

Rev.: 12/18 210 Index Recording Oral Arguments 138 References to the Record 104, 105, 108, 117 Release Before Judgment of Conviction 47 Requesting Copies of the Record 109 Taxable in the District Court 154 Twenty Pages and Twenty Minutes Revisited 141 Under Seal 85-87, 119 Reference List 86 Sealing Oral Arguments 138 Unredacted Document 86 United States Tax Court, see Tax Court Unpublished Opinions, see Opinions Waiver of Right to Challenge on Appeal 30-31 Withdrawal of Counsel 98, 123, 175, Addendum Four Anders v. California 98 Withdrawing Motions 103 Writs Extraordinary Writs 73, 74, 164, 165, 195 Writ of Certiorari 144, 158, 160, 162 Writs and Process 178 Writs of Mandamus and Prohibition 73, 74, 161

Rev.: 12/18 211 Index CRIMINAL APPEALS JURISDICTION CHECKLIST

1. Appealable orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute.

(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Subject to certain limited exceptions, a defendant must await the entry of a final judgment of conviction following sentencing prior to taking an appeal. United States v. Curry, 760 F.2d 1079, 1079 (11th Cir. 1985); United States v. Gulledge, 739 F.2d 582, 584 (11th Cir. 1984). A notice of appeal filed after the announcement of sentence but before the entry of the judgment and commitment order becomes effective upon the entry of the judgment and commitment order. Fed.R.App.P. 4(b)(2).

(b) Appeals pursuant to 18 U.S.C. § 3145: Orders regarding bail prior to judgment may be appealed.

(c) Appeals pursuant to judicially created exceptions to the finality rule: Orders denying motions to dismiss an indictment on grounds of double jeopardy or the “speech and debate clause” are appealable. Flanagan v. United States, 465 U.S. 259, 266, 104 S.Ct. 1051, 1055, 79 L.Ed.2d 288 (1984).

2. Time for filing: In criminal appeals filed by the government, the time limits governing the government’s time to appeal are based on a federal statute, and are therefore mandatory and jurisdictional. 18 U.S.C. § 3731; Fed.R.App.P. 4(b)(1)(B); see Bowles v. Russell, 551 U.S. 205, 210-13, 127 S.Ct. 2360, 2364-66, 168 L.Ed.2d 96 (2007). However, in criminal appeals filed by a defendant, Federal Rule of Appellate Procedure 4(b)(1)(A) is not jurisdictional, but rather, is a claims processing rule that may be waived by the government. United States v. Lopez, 562 F.3d 1309 (11th Cir. 2009). Accordingly, an untimely appeal filed by a defendant in a criminal case may be dismissed as untimely if the government raises the issue of untimeliness. Id. at 1313. Fed.R.App.P. 4(b) and (c) set forth the following time limits:

(a) Fed.R.App.P. 4(b): A defendant’s notice of appeal must be filed in the district court within 14 days after the entry of either the judgment or order appealed from, or the filing of the government’s notice of appeal. If a defendant makes a timely motion in the district court under the Federal Rules of Criminal Procedure of a type specified in Fed.R.App.P. 4(b)(3), the notice of appeal from a judgment of conviction must be filed within 14 days after the entry of the order disposing of the last such motion, or within 14 days after the entry of the judgment of conviction, whichever period ends later. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.

(b) Fed.R.App.P. 4(b)(1)(B): A notice of appeal by the United States must be filed within 30 days after the entry of the judgment or order being appealed, or the filing of a notice of appeal by any defendant, whichever period is later.

(c) Fed.R.App.P. 4(b)(4): The district court may, upon a finding of excusable neglect or good cause, extend the time to file a notice of appeal for up to 30 days from the expiration of the time otherwise prescribed in Fed.R.App.P. 4(b).

(d) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.

Rev.: 3/2011 APPENDIX CHECKLIST

AGENCY CASES

Required Contents. In proceedings for review of orders of an agency, board, commission, or officer, the petitioner must file an Appendix containing:

1. Relevant docket entries in the proceeding below; 2. Relevant portions of the pleadings, charge, findings, or opinion; 3. Judgment, order, or decision filed by the agency, board, commission, or officer 4. Other parts of the record to which the petitioner wishes to direct the Court’s attention.

Note: The respondent is not required to file an appendix in agency cases.

Form:

[ ] Durable White Covers (front & back) [ ] Indexing Tabs (Tab numbers corresponding to agency document numbers) [ ] No more than 250 single-sided sheets of paper in each volume

Number Required:

( ) Prisoner Pro Se: None ( ) Pro Se IFP: 1 paper copy ( ) Other: 2 paper copies ( ) Counsel using the ECF system must also file electronically

Rev. 3/17

APPENDIX CHECKLIST

CIVIL CASES

Required Contents. If appealing from the denial or grant of summary judgment, the appellant must file an Appendix containing:

1. Index 2. District Court or Tax Court docket sheet (including, in bankruptcy appeals, the bankruptcy court docket sheet)

Items 3-13 to be arranged chronologically by date of entry into the record:

3. Complaint, answer, response, counterclaim, cross-claim, and any amendments to such items 4. Parts of any pretrial order relevant to issues on appeal 5. Judgment or interlocutory order appealed from 6. Other order(s) sought to be reviewed (including bankruptcy court orders) 7. In an appeal from the grant or denial of a petition for a writ of habeas corpus under 28 U.S.C. § 2254, all opinions by any state court previously rendered in the criminal prosecution and related collateral proceedings and appeals, and any state court orders addressing any claims and defenses brought by the petitioner in the federal action 8. Supporting opinion, findings of fact and conclusions of law filed or delivered orally by the court 9. Jury instruction (if correctness in issue) 10. Magistrate’s report and recommendation, when appealing a court order adopting same in whole or in part 11. Findings and conclusions of administrative law judge, when appealing a court order reviewing administrative agency determination 12. Relevant parts of any document whose interpretation is central to the issues on appeal 13. Any other pleadings, affidavits, transcripts, filings, documents, or exhibits that appellant believes will be helpful to this Court in deciding the appeal 14. Certificate of Service

Form: [ ] Durable White Covers (front & back) [ ] Indexing Tabs (Tab numbers corresponding to district court or tax court document numbers) [ ] No more than 250 single-sided sheets of paper in each volume

Number Required: ( ) Prisoner Pro Se: None ( ) Pro Se IFP: 1 paper copy ( ) Other: 2 paper copies ( ) Counsel using the ECF system must also file electronically

Rev. 3/17

APPENDIX CHECKLIST

CRIMINAL CASES

Required Contents. In an appeal in a criminal case, the appellant must file an Appendix containing:

1. Index 2. District Court docket sheet

Items 3-13 to be arranged chronologically by date of entry into the record:

3. Indictment, information, or petition as amended 4. Parts of any pretrial order relevant to issues on appeal 5. Judgment or interlocutory order appealed from 6. Other order(s) sought to be reviewed 7. Supporting opinion, findings of fact and conclusions of law filed or delivered orally by the court 8. Jury instruction (if correctness in issue) 9. Magistrate’s report and recommendation, when appealing a court order adopting same in whole or in part 10. Relevant parts of any document whose interpretation is central to the issues on appeal 11. If any issue concerns the guilty plea, the transcript of the guilty plea colloquy and any written plea agreement 12. If any issue concerns the sentence, the transcript of the sentencing proceeding, and the presentence investigation report and addenda, under seal in a separate envelope 13. Any other pleadings, affidavits, transcripts, filings, documents, or exhibits that appellant believes will be helpful to this Court in deciding the appeal 14. Certificate of Service

Form:

[ ] Durable White Covers (front & back) [ ] Indexing Tabs (Tab numbers corresponding to district court document numbers) [ ] No more than 250 single-sided sheets of paper in each volume

Number Required:

( ) Prisoner Pro Se: None ( ) Pro Se IFP: 1 paper copy ( ) Other: 2 paper copies ( ) Counsel using the ECF system must also file electronically

Rev. 3/17

INSTRUCTIONS FOR PREPARING AN APPENDIX See 11th Cir. Rules 30-1 and 30-2

Required Contents of Appendix. Within seven days of filing appellant’s or petitioner’s principal brief, the appellant or petitioner must file an Appendix containing those items required by FRAP 30(a)(1), which are:

• the relevant docket entries in the proceeding below; • the relevant portions of the pleadings, charge, findings, or opinion; • the judgment, order, or decision in question; and • other parts of the record to which the parties wish to direct the court’s attention.

Other than FRAP 30(a)(1), the requirements in FRAP 30 do not apply in this circuit.

Consistent with the requirements of FRAP 30(a)(1), this Court has determined that the following items are either relevant docket entries or relevant portions of the record in appeals from district courts and the tax court and thus must be included in the appendix:

(1) the district court or tax court docket sheet, including, in bankruptcy appeals, the bankruptcy court docket sheet;

(2) in an appeal in a criminal case, the indictment, information, or petition as amended;

(3) in an appeal in a civil case, the complaint, answer, response, counterclaim, cross-claim, and any amendments to such items;

(4) those parts of any pretrial order relevant to the issues on appeal;

(5) the judgment or interlocutory order appealed from;

(6) any other order or orders sought to be reviewed, including, in bankruptcy appeals, the order(s) of the bankruptcy court appealed to the district court;

Rev.: 8/17 (8) any supporting opinion, findings of fact and conclusions of law filed or delivered orally by the court;

(9) if the correctness of a jury instruction is in issue, the instruction in question and any other relevant part of the jury charge;

(10) a magistrate’s report and recommendation, when appealing a court order adopting same in whole or in part;

(11) findings and conclusions of an administrative law judge, when appealing a court order reviewing an administrative agency determination involving same;

(12) the relevant parts of any document, such as an insurance policy, contract, agreement, or ERISA plan, whose interpretation is relevant to the issues on appeal;

(13) in an appeal in a criminal case in which any issue is raised concerning the guilty plea, the transcript of the guilty plea colloquy and any written plea agreement;

(15) any other pleadings, affidavits, transcripts, filings, documents, or exhibits that any one of the parties believes will be helpful to this Court in deciding the appeal.

Except as otherwise permitted by section (7) above, under no circumstances should a document be included in the appendix that was not submitted to the trial court.

No Appendix by Respondent in Agency Cases. In agency cases, the respondent is not required to file an appendix.

Appellee’s Supplemental Appendix. Within seven days of filing appellee’s principal brief, appellee must file a Supplemental Appendix if the appellee’s brief references parts of the record not contained in appellant’s Appendix, or if the appellee believes that appellant’s Appendix is deficient.

2 Rev.: 8/17 • The appellee’s Supplemental Appendix should not duplicate any documents in the appellant’s Appendix.

Appellee Must Submit an Appendix in an Appeal by an Incarcerated Pro Se Party. In an appeal by an incarcerated pro se party, counsel for appellee must submit an Appendix that includes the specific pages of any record materials (if materials are sealed, please follow instructions for Presentence Investigation Reports) referred to in the argument section of appellee’s brief and those referred to in the argument section of the appellant’s brief that are relevant to the resolution of an issue on appeal.

Appellant’s Reply Brief. Within seven days of filing appellant’s reply brief, appellant must file a Supplemental Appendix if the reply brief references parts of the record not contained in the appendix previously filed by any party.

Appendices in Appeals with Multiple Appellants or Appellees. In an appeal with multiple appellants or appellees, including consolidated appeals, any number of appellants or appellees may file a Joint Appendix or a Joint Supplemental Appendix and are strongly urged to do so. A party need not duplicate any material contained in the appendix filed by another party.

Appendices in Cross-Appeals. Appellant must file an Appendix as described above. Appellee/Cross-Appellant must file a Supplemental Appendix that includes record materials referred to in the argument section of its brief or relevant to the issues raised on cross-appeal, but need not duplicate any material contained in the appellant’s Appendix. Within seven days of filing its second brief, Appellant/Cross-Appellee must file a Supplemental Appendix if the brief references parts of the record not contained in the appendix previously filed by any party.

Presentence Investigation Reports. In an appeal in a criminal case in which any issue is raised concerning the sentence, the appellant (or appellee in the case of an appeal by an incarcerated pro se party), or the party filing the brief, must forward one copy of the PSI under seal to the Clerk of this Court. The party must place one copy of the PSI into a separate sealed envelope marked “SEALED” and labeled with the appeal number, short style, and a notation that a copy of a PSI is enclosed. The sealed envelope must accompany the appendix.

Form of the Appendix and Supplemental Appendix. The Appendix must be labeled Appendix or Supplemental Appendix, as appropriate. The Appendix must conform to the requirements of 11th Cir. Rules 30-1 and 30-2, including the following:

1) The first item in the Appendix must be an Index (see attached sample).

3 Rev.: 8/17 2) The second item in the Appendix must be the district court or tax court docket sheet including, in bankruptcy appeals, the bankruptcy court docket sheet, or in agency cases, the relevant docket entries in the proceeding below.

3) All other documents in the Appendix must be arranged chronologically by date of entry into the record.

4) The last document in the Appendix must be a certificate of service consistent with FRAP 25(d).

5) Standard commercially-available indexing tabs or their equivalent that extend beyond the edge of the page should be staggered in sequence from top to bottom along the right-hand side.

• Tab numbers should correspond to the original document numbers assigned by the originating court or agency and noted on the originating court or agency docket sheet.

• The originating court or agency docket sheet should also be tabbed and identified.

• For electronic appendices filed by counsel, separator pages showing the appropriate tab numbers should be used in place of indexing tabs.

6) If the Appendix exceeds 250 sheets of paper, it must be filed in multiple volumes, with each volume containing no more than 250 sheets of paper; when multiple volumes are filed, the Index must indicate the volume in which a document is located.

Number of Copies to Be Filed and Served.

• A pro se party proceeding in forma pauperis may file only one paper copy of an Appendix or Supplemental Appendix, except that an incarcerated pro se party is not required to file an Appendix.

• Every other party must file two paper copies of the Appendix or Supplemental Appendix within seven days of filing the party’s brief, and if the appeal is classed for oral argument, an additional three identical paper copies of the Appendix previously filed by the party within seven days after the date on the notice from the Clerk that the appeal has been classed for oral argument. One copy must be served on counsel for each party separately represented, and on each pro se party.

4 Rev.: 8/17 • In agency cases, the respondent is not required to file an appendix.

Electronic Filing of Appendices

• Counsel using the ECF system must file appendices electronically, as well as in paper. See 11th Cir. Rules 30-1(d) and 30-2; Section 11.1 of the Guide to Electronic Filing.

• Counsel should upload the appendix as a single docket event, with separate PDF attachments for each volume of the appendix. If a volume is too large to be uploaded as a single PDF, that volume should be uploaded as separate PDFs and labeled accordingly (e.g., Vol. 1, Part 1 of 2, Vol. 1, Part 2 of 2, Vol. 2, Vol. 3).

5 Rev.: 8/17 APPENDIX CHECKLIST

CIVIL CASES

Required Contents. If appealing from the denial or grant of summary judgment, the appellant must file an Appendix containing:

1. Index 2. District Court or Tax Court docket sheet (including, in bankruptcy appeals, the bankruptcy court docket sheet)

Items 3-13 to be arranged chronologically by date of entry into the record:

Number Required: ( ) Prisoner Pro Se: None ( ) Pro Se IFP: 1 paper copy ( ) Other: 2 paper copies ( ) Counsel using the ECF system must also file electronically

Rev. 3/17

APPENDIX CHECKLIST

CRIMINAL CASES

Required Contents. In an appeal in a criminal case, the appellant must file an Appendix containing:

1. Index 2. District Court docket sheet

Items 3-13 to be arranged chronologically by date of entry into the record:

Form:

[ ] Durable White Covers (front & back) [ ] Indexing Tabs (Tab numbers corresponding to district court document numbers) [ ] No more than 250 single-sided sheets of paper in each volume

Number Required:

( ) Prisoner Pro Se: None ( ) Pro Se IFP: 1 paper copy ( ) Other: 2 paper copies ( ) Counsel using the ECF system must also file electronically

Rev. 3/17

APPENDIX CHECKLIST

AGENCY CASES

Required Contents. In proceedings for review of orders of an agency, board, commission, or officer, the petitioner must file an Appendix containing:

Note: The respondent is not required to file an appendix in agency cases.

Form:

[ ] Durable White Covers (front & back) [ ] Indexing Tabs (Tab numbers corresponding to agency document numbers) [ ] No more than 250 single-sided sheets of paper in each volume

Number Required:

( ) Prisoner Pro Se: None ( ) Pro Se IFP: 1 paper copy ( ) Other: 2 paper copies ( ) Counsel using the ECF system must also file electronically

Rev. 3/17

INDEX of APPENDIX

Docket/Tab #

District Court Docket Sheet ...... A

Superseding Indictment ...... 8

Motion for Change of Venue ...... 46

Order Denying Motion for Change of Venue ...... 52

CJA 20: Appointment of Attorney John/Jane Doe ...... 55

Motion to Dismiss ...... 61

Notice Re Uncharged Misconduct ...... 70

Order Denying Motion to Dismiss ...... 79

Notice of Appeal ...... 138

Notice of Appeal ...... 140

Trial Transcript (proceedings held 4/26/05) ...... 160

Trial Transcript (proceedings held 4/27/05 & 4/28/05) ...... 161

Sentencing Transcript ...... 162

Certificate of Service

9 Rev.: 8/11 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT (CIP) FORMAT CHECKLIST

1. Alphabetical listing (last name first)

2. One column

3. Double-spaced

4. Full corporate name is followed by stock (“ticker”) symbol

5. Court of Appeals docket number at top of each page

6. Short style at top of each page

7. Pagination indicates total number of pages comprising Certificate

*Note: All attorneys are also required to complete the web-based CIP at www.ca11.uscourts.gov. See 11th Cir. R. 26.1-1(b).

Date Checked: Checked by:

Rev.: 12/15

Yarbrough v. Decatur Housing Authority, 931 F.3d 1322 (2019) 28 Fla. L. Weekly Fed. C 78

Regulations can join with statute to give rise to private cause of action under § 1983 so 931 F.3d 1322 long as regulations define content of specific United States Court of Appeals, Eleventh Circuit. right conferred upon plaintiffs by Congress. 42 Sheena YARBROUGH, Plaintiff - Appellant, U.S.C.A. § 1983. v. Cases that cite this headnote DECATUR HOUSING AUTHORITY, Defendant - Appellee. [3] Civil Rights No. 17-11500 Rights Protected | Plaintiffs seeking to sue under § 1983 for (August 2, 2019) violations of agency regulations must prove that regulation in question merely fleshes out content Synopsis of or further defines right created by statute, but Background: Tenant filed § 1983 action alleging that if statute creates no federal rights or if regulation alleging that city housing authority's termination of her is too far removed from statute that does create Section 8 housing voucher violated Due Process Clause and federal rights, § 1983 does not provide means of Housing Act and regulations promulgated thereunder. The redress and plaintiff’s suit must fail. 42 U.S.C.A. United States District Court for the Northern District of § 1983. Alabama, No. 5:15-cv-02325-AKK, Abdul K. Kallon, J., 2017 WL 897636, entered summary judgment in authority's Cases that cite this headnote favor, and tenant appealed. The Court of Appeals, 905 F.3d 1222, vacated and remanded. Rehearing en banc was granted. [4] Civil Rights Public housing; public assistance Department of Housing and Urban Development [Holding:] The Court of Appeals, Martin, Circuit Judge, held (HUD) regulation providing that, in Section 8 that Department of Housing and Urban Development (HUD) termination proceedings, factual determinations regulation providing for preponderance of evidence standard relating to family's individual circumstances in Section 8 termination proceedings did not create private were to be based on preponderance of evidence right enforceable under § 1983, overruling Basco v. Machin, presented at hearing did not create private 514 F.3d 1177. right enforceable under § 1983; Housing Act provision creating federal right to written Remanded to panel. decision in Section 8 termination proceedings addressed means by which decision was to be communicated, but said nothing about decision's substance, overruling Basco v. Machin, 514 F.3d West Headnotes (4) 1177. United States Housing Act of 1937 § 6, 42 U.S.C.A. § 1437d(k)(6); 42 U.S.C.A. § 1983; 24 C.F.R. § 982.555(e). [1] Federal Courts Summary judgment Cases that cite this headnote Court of Appeals reviews de novo district court’s grant of summary judgment.

Cases that cite this headnote Attorneys and Law Firms

[2] Civil Rights Michael Lee Forton, Holly Nicole Ray-Kirby, Legal Services Rights Protected Alabama, Huntsville, AL, Farahbin Majid, Legal Services of Alabama, Birmingham, AL, for Plaintiff-Appellant.

Sandoval, 532 U.S. 275, 291, 121 S. Ct. 1511, 1522, 149 Charles A. Stewart, III, Stanley Blackmon, Jake Michael L.Ed.2d 517 (2001). By this opinion, our Court restores the Gipson, Jonathan C. Rudy Hill, Bradley Arant Boult apprentice to its rightful place. Cummings, LLP, Montgomery, AL, for Defendant-Appellee. Our Court granted rehearing en banc to consider whether Charles R. Bliss, Atlanta Legal Aid Society, Inc., ATLANTA, Basco was correct in granting a private right of action under GA, Jeffrey M. Hearne, Legal Services of Greater Miami, § 1983 to people contesting the termination of their housing Inc., MIAMI, FL, Lindsey Meredith Siegel, Atlanta Legal Aid benefits, with the requirement that the termination decision Society, Inc., Decatur, GA, for Amicus Curiae Atlanta Legal be based on a preponderance of the evidence. The regulation Aid Society, Inc. establishing the authorities’ burden of proof in termination Jeffrey M. Hearne, Legal Services of Greater Miami, Inc., proceedings neither defines nor fleshes out a right established Miami, FL, Lisa J. Krisher, Georgia Legal Services Program, by the Housing Act. We thus conclude Basco was wrongly Atlanta, GA, for Amicus Curiae Georgia Legal Services. decided in this regard. As a result, we overrule Basco and its progeny inasmuch as those cases held that the Housing Act Jeffrey M. Hearne, Legal Services of Greater Miami, Inc., or its implementing regulations create a right enforceable by Miami, FL, for Amicus Curiae Housing Umbrella Group of § 1983 to a termination decision made by the preponderance Florida Legal Services. of the evidence.

Eric Dunn, National Housing Law Project, Richmond, VA, for Amicus Curiae National Housing. I. Katherine E. Walz, Militza Marie Pagan Lopez, Sargent Shriver National Center on Poverty Law, Chicago, IL, for The Housing Act assists low-income families in getting a safe Amicus Curiae Sargent Shriver National Center on Poverty and affordable place to live. See 42 U.S.C. § 1437(a). To that Law. end, one section of the Act provides relief through “what is known as the Section 8 housing program.” Cisneros v. Alpine Appeal from the United States District Court for the Northern Ridge Grp., 508 U.S. 10, 12, 113 S. Ct. 1898, 1900, 123 District of Alabama, D.C. Docket No. 5:15-cv-02325-AKK L.Ed.2d 572 (1993). The Section 8 program subsidizes private landlords who rent to low-income tenants by authorizing Before ED CARNES, Chief Judge, TJOFLAT , MARCUS , housing authorities to pay the difference between the tenant’s WILSON, WILLIAM PRYOR, MARTIN, JORDAN, contribution and the full cost of rent. Id. ROSENBAUM, JILL PRYOR, BRANCH , and GRANT, * Circuit Judges. *1324 Sheena Yarbrough, the plaintiff in this case, was a beneficiary of the Section 8 housing program. While she was Opinion living in Section 8 housing, during September of 2012, the MARTIN, Circuit Judge: police arrested Ms. Yarbrough on drug-related charges. The Decatur Housing Authority (the “Authority”) learned about *1323 For years, this Court has allowed district courts her arrest from a newspaper and notified Ms. Yarbrough it to entertain 42 U.S.C. § 1983 suits alleging wrongful intended to terminate her Section 8 housing benefits. Ms. termination of housing benefits under the Housing Act of Yarbrough requested and received an informal hearing, and a 1937, 42 U.S.C. § 1437 et seq., where the housing authority hearing officer upheld the Authority’s decision to terminate failed to prove its case for termination by a preponderance of her benefits. the evidence. See Basco v. Machin, 514 F.3d 1177, 1183–84 (11th Cir. 2008). But today we recognize that neither Basco Despite the decision in its favor, counsel advised the nor its progeny explained how a regulation establishing the Authority to continue to subsidize Ms. Yarbrough’s rent preponderance of the evidence standard can give rise to a until her criminal charges were resolved. Roughly six private cause of action under § 1983. With regard to agency months after her arrest, Ms. Yarbrough was indicted on two regulations, the Supreme Court has been clear that although charges of unlawful distribution of a controlled substance, in “[a]gencies may play the sorcerer’s apprentice,” they cannot violation of Ala. Code § 13A-12-211. These charges remained usurp the role of “the sorcerer himself.” Alexander v. outstanding a little less than two years when the State agreed

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 Yarbrough v. Decatur Housing Authority, 931 F.3d 1322 (2019) 28 Fla. L. Weekly Fed. C 78 to dismiss them “upon payment of court costs.” But Ms. law, “[t]hree probable-cause determinations [supporting one Yarbrough was not out of the woods yet. arrest and two indictments] *1325 do not add up to a finding that a person more likely than not committed a drug-related Around the same time as the State’s agreement, the Authority crime.” 1 Yarbrough v. Decatur Hous. Auth., 905 F.3d 1222, received a tip accusing Ms. Yarbrough of new violations of 1226 (11th Cir. 2018) (per curiam), reh’g en banc granted, op. the Section 8 housing program. And on October 8, 2015, the vacated, 914 F.3d 1290 (11th Cir. 2019). Authority sent Ms. Yarbrough a new notice advising her of its intent to terminate her Section 8 housing benefits. This time, The Authority soon filed a petition for rehearing en banc the Authority sought to terminate Ms. Yarbrough’s benefits urging our Court to revisit Basco ’s holding. A majority of based on her indictments as well as her alleged failures to the voting judges on this Court granted the petition, and notify the Authority of a change in family composition, to the panel opinion was vacated as a result. See Yarbrough report her household income, and to make required payments. v. Decatur Hous. Auth., 914 F.3d 1290 (11th Cir. 2019) (en banc). The only question now before this en banc Court Ms. Yarbrough again requested a hearing, and one was held is whether to overrule Basco’s holding that there is an on November 10, 2015. The Authority was represented by individual right under the Housing Act and its implementing a caseworker named Kenyetta Gray, who introduced copies regulations, enforceable through § 1983, to a decision based of Ms. Yarbrough’s indictments into evidence. Ms. Gray on a preponderance of the evidence when a local housing also testified about the Authority’s communications with authority terminates housing benefits. Our survey of the Ms. Yarbrough. The Hearing Officer reviewed the testimony applicable law convinces us that we must. and the record, then affirmed the Authority’s decision to terminate Ms. Yarbrough’s benefits. The Hearing Officer rejected three of the four grounds offered by the Authority in support of termination. However, the Officer found that II. Ms. Yarbrough’s indictments and arrest were enough to prove [1] We review de novo a District Court’s grant of summary by a preponderance of the evidence that she “violated her judgment. See Galvez v. Bruce, 552 F.3d 1238, 1241 (11th agreement with the Authority and her lease by engaging in Cir. 2008). drug-related criminal activity.”

Less than a month later, Ms. Yarbrough filed the 42 U.S.C. § 1983 suit that resulted in this appeal. She asked the U.S. III. District Court to restore her benefits and enjoin the Authority [2] [3] Section 1983 “provides a cause of action to a from evicting her. She alleged that the Authority’s decision plaintiff who can prove that a defendant acting under color to terminate her benefits violated both federal regulations as of state law deprived [her] of a right, privilege, or immunity well as her due process rights because the decision was based protected by the laws or Constitution of the United States.” on legally insufficient evidence and unreliable hearsay. The Lane v. Philbin, 835 F.3d 1302, 1307 (11th Cir. 2016). District Court allowed discovery, and once that was done, the Here we address the argument that the Housing Act and its parties filed cross-motions for summary judgment. The Court implementing regulations create a privately enforceable right granted the Authority’s motion for summary judgment and to a preponderance standard. In doing so, we begin with the denied Ms. Yarbrough’s motion for the same. The District principle that congressional intent is the keystone of federal Court rejected Ms. Yarbrough’s argument that the indictments rights creation. Gonzaga Univ. v. Doe, 536 U.S. 273, 283– were unreliable hearsay and found that they were “legally 84, 122 S. Ct. 2268, 2275, 153 L.Ed.2d 309 (2002). Under sufficient to establish by a preponderance of the evidence ... this principle, regulations can join with a statute to give rise that Yarbrough engaged in the alleged drug-related criminal to a private cause of action under § 1983 so long as the activity.” regulations “define the content of a[ ] specific right conferred upon the plaintiffs by Congress.” Harris v. James, 127 F.3d Ms. Yarbrough timely appealed the District Court’s decision 993, 1010 (11th Cir. 1997). Thus, plaintiffs seeking to sue to our Court. Relying on Basco, a panel of this Court agreed under § 1983 for violations of agency regulations must prove with Ms. Yarbrough and reversed the District Court’s grant of that the regulation in question “merely ... fleshes out the summary judgment. The panel opinion held that as a matter of content of” or further defines a right created by statute. Id. at

1009–10; see also Wright v. City of Roanoke Redev. & Hous. The regulatory requirement that “[f]actual determinations ... Auth., 479 U.S. 418, 430–31, 107 S. Ct. 766, 773–75, 93 be based on a preponderance of the evidence,” 24 C.F.R. L.Ed.2d 781 (1987) (concluding plaintiffs had an enforceable § 982.555(e)(6), plainly imposes a “distinct obligation[ ],” right “within the meaning of § 1983” because the Department Harris, 127 F.3d at 1009, from that of 42 U.S.C. § 1437d(k) of Housing and Urban Development’s regulation interpreted (6), which requires public housing agencies to issue a “written the meaning of “rent” as it was set forth in the statute). If the decision” regarding any proposed adverse action. The rule statute creates no federal rights or if the regulation is too far in our Court says a regulation that “goes beyond explicating removed from a statute that does create federal rights, § 1983 the specific content of the statutory provision” and speaks does not provide a means of redress and the plaintiff’s suit to an altogether different requirement cannot create a federal must fail. right cognizable through § 1983. Harris, 127 F.3d at 1009. Ms. Yarbrough’s case was not a challenge to the Authority’s [4] With these principles in mind, we turn to Ms. Yarbrough’s failure to provide a written decision. To the contrary, she sued argument that the Housing Act and its implementing because the hearing officer issued a written decision that she regulations create a privately enforceable right under § 1983 says failed to meet the preponderance standard. Thus, even to a termination decision based on a preponderance of the accepting her allegation as true, the hearing officer violated evidence. No one disputes that the Housing Act is devoid of the regulation but not the statute. Her case fails as a result. any references to a preponderance-of-the-evidence standard in termination proceedings. Ms. Yarbrough thus *1326 Ms. Yarbrough nonetheless contends that because a written argues that the regulation establishing the preponderance decision must necessarily be reasoned, the regulation clarifies standard, 24 C.F.R. § 982.555(e), merely fleshes out a the standard of proof for a “reasoned” decision. Her argument federal right created by 42 U.S.C. § 1437d(k)(6). We are not is consistent with several district court decisions. See, e.g., persuaded. Stevenson v. Willis, 579 F. Supp. 2d 913, 922–23 (N.D. Ohio 2008); Gammons v. Mass. Dep’t of Hous. & Cmty. Section 1437d(k) states that “the Secretary [of Housing Dev., 523 F. Supp. 2d 76, 84 (D. Mass. 2007) (“The and Urban Development] shall by regulation require each HUD regulations clarify what constitutes a proper written public housing agency receiving assistance ... to establish decision by specifying that ... factual determinations shall be and implement an administrative grievance procedure under based on a preponderance of the evidence presented at the which tenants will” be entitled to a number of procedural hearing.” (quotation marks and alterations omitted)). But this protections. One of these procedural protections is the right theory relies on defining words Congress did not use. Section “to receive a written decision by the public housing agency 1437d(k) does not entitle tenants to a “properly” written on the proposed action.” Id. § 1437d(k)(6). Ms. Yarbrough decision or a “well-reasoned” decision or even a “reasoned” seizes upon this language to argue that 24 C.F.R. § 982.555(e) decision—it entitles them to a “written decision.” And the (6), which provides that “[f]actual determinations relating to regulation’s reference to a preponderance standard *1327 the individual circumstances of the family shall be based on neither defines nor elaborates on the meaning of a “written” a preponderance of the evidence presented at the hearing,” decision. Because 24 C.F.R. § 982.555(e)(6) is unmoored merely “clarifies what constitutes a proper written decision” from any federal right, we conclude it cannot be the basis for under the statute. But this argument fails. a cause of action under 42 U.S.C. § 1983. We overrule Basco to the extent it held otherwise. Even if we were to accept that § 1437d(k)(6) creates a federal right to a written decision in Section 8 termination proceedings, there is nothing in the statute for the IV. preponderance standard to define. 2 As the Authority rightly notes, the statute addresses the means by which a decision Ms. Yarbrough argues, in the alternative, that the Authority should be communicated. It says nothing about the substance violated her procedural due process rights by relying on of the decision. Thus the regulation, which speaks to unreliable hearsay to terminate her housing benefits. Given substance, cannot “flesh out” a statutory provision that the narrow question presented for en banc review and the addresses only the form of a decision. fact that the panel never had the opportunity to address this argument, we will leave this issue and any other procedural due process arguments for the panel to resolve.

All Citations REMANDED TO THE PANEL WITH INSTRUCTIONS. 931 F.3d 1322, 28 Fla. L. Weekly Fed. C 78

Footnotes * Judge Newsom, having recused himself, did not participate in this decision. 1 Because the panel concluded the evidence was legally insufficient, it did not reach Ms. Yarbrough alternative argument that “the hearing officer’s decision to credit unreliable hearsay violated the Due Process Clause of the Fourteenth Amendment.” Yarbrough, 905 F.3d at 1225. 2 We therefore do not address the Authority’s alternative argument that § 1437d(k)’s grievance procedures are limited to public housing recipients as opposed to Section 8 voucher recipients like Ms. Yarbrough. For similar reasons, we decline to address the Authority’s argument that § 1437d(k) does not create any privately enforceable federal rights.

Cases that cite this headnote KeyCite Red Flag - Severe Negative Treatment On Rehearing en Banc Yarbrough v. Decatur Housing Authority, 11th Cir. (Ala.), August 2, 2019 [2] Landlord and Tenant 905 F.3d 1222 Evidence United States Court of Appeals, Eleventh Circuit. Hearing officer’s determination that Section 8 participant engaged in drug-related criminal Sheena YARBROUGH, Plaintiff-Appellant, activity was legally insufficient to establish a v. prima facie case that participant had actually DECATUR HOUSING done so, as required to terminate Section AUTHORITY, Defendant-Appellee. 8 voucher under preponderance standard in Department of Housing and Urban Development No. 17-11500 regulation; hearing officer relied exclusively on | grand jury indictments for two felony counts of (October 3, 2018) unlawful distribution of a controlled substance and evidence of participant's associated arrest, Synopsis which were based only on finding of probable Background: Tenant, who was Section 8 participant, brought cause. U.S. Const. Amend. 4; United States civil rights action against city housing authority, alleging that Housing Act of 1937 § 8, 42 U.S.C.A. § 1437f; termination of her Section 8 housing voucher violated Due 24 C.F.R. § 982.555(e)(6). Process Clause of the Fourteenth Amendment and regulations promulgated by United States Department of Housing and 2 Cases that cite this headnote Urban Development. Cross-motions for summary judgment were filed. The United States District Court for the Northern [3] Indictments and Charging Instruments District of Alabama, No. 5:15-cv-02325-AKK, Abdul K. Degree of proof in general Kallon, J., 2017 WL 897636, granted housing authority's motion. Tenant appealed. A facially valid indictment is undoubtedly competent evidence of a grand jury's finding of probable cause to think that a person committed a crime, but proof of a crime under [Holding:] The Court of Appeals held that hearing officer’s a preponderance standard requires more than a determination that tenant engaged in drug-related criminal finding of probable cause. U.S. Const. Amend. 4. activity was legally insufficient to establish prima facie case that tenant had actually done so. Cases that cite this headnote

Vacated and remanded. [4] Indictments and Charging Instruments Probable cause William Pryor, Circuit Judge, filed a concurring opinion. A probable-cause determination does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands, and credibility West Headnotes (6) determinations are seldom crucial in deciding whether the evidence supports a reasonable [1] Federal Courts belief in guilt. U.S. Const. Amend. 4. Summary judgment Cases that cite this headnote The Court of Appeals reviews a summary judgment de novo, applying the same legal standards used by the district court. [5] Indictments and Charging Instruments Probable cause

Probable cause requires only the kind of fair nothing more than evidence that Yarbrough had been arrested probability on which reasonable and prudent and copies of the indictments. people act; but an affirmative answer to the question of fair probability does not mean that Yarbrough filed a civil-rights complaint against the Authority, the person more likely than not committed the 42 U.S.C. § 1983, in which she alleged that the termination charged crime. U.S. Const. Amend. 4. of her housing voucher violated the Due Process Clause of the Fourteenth Amendment and regulations promulgated Cases that cite this headnote by the United States Department of Housing and Urban Development. The district court granted summary judgment [6] Indictments and Charging Instruments in favor of the Authority. It ruled that the indictments and Probable cause the evidence that Yarbrough had been arrested were sufficient to prove that she engaged in drug-related criminal activity Even if it is certain that there is probable cause under a preponderance-of-the-evidence standard, and that to believe that a person committed a crime, it Yarbrough failed to establish that the Authority’s procedures still does not follow that the preponderance of violated due process. We vacate and remand. the evidence proves that he actually did so. U.S. Const. Amend. 4.

Cases that cite this headnote I. BACKGROUND

Sheena Yarbrough was a qualified participant in the Section 8 Housing Assistance program operated in Decatur, Attorneys and Law Firms Alabama, by the Authority under the administration of the Department of Housing and Urban Development. The Section Michael Lee Forton, Holly Nicole Ray-Kirby, Legal Services 8 program provides low income families assistance with Alabama, Huntsville, AL, for Plaintiff-Appellant. rental payments. Public housing authorities have the power to terminate assistance under Section 8 if any member of a Charles A. Stewart, III, Jonathan C. Rudy Hill, Bradley Arant participating family engages in drug-related criminal activity. Boult Cummings, LLP, Montgomery, AL, for Defendant- 24 C.F.R. § 982.551(l); see also id. § 982.553(b)(1)(iii). Appellee. Indeed, the regulatory requirement to refrain from drug- Appeal from the United States District Court for the Northern related criminal activity was incorporated into the terms of District of Alabama, D.C. Docket No. 5:15-cv-02325-AKK Yarbrough’s agreement with the Authority. On April 6, 2011, she signed a copy of a document issued by the Department of Before WILLIAM PRYOR and MARTIN, Circuit Judges, Housing and Urban Development entitled “Obligations of the and VRATIL, * District Judge. Participating Family,” which provided that “members of the family may not engage in drug-related criminal activity.” Opinion In September 2012, the Authority learned from a newspaper PER CURIAM: article that Yarbrough had been arrested on state charges for unlawful distribution of a controlled substance. The Authority *1223 This appeal requires us to decide whether indictments notified Yarbrough that it intended to terminate her program and evidence of an arrest constitute sufficient evidence to assistance for participation in drug-related criminal activity. support the decision of a public housing authority to terminate Yarbrough denied any involvement in unlawful activity housing subsidies provided under Section 8 of the Housing *1224 and requested a hearing. A hearing officer found that and Community Development Act of 1937, 42 U.S.C. § the allegations were true and determined that Yarbrough’s 1437f. The Decatur Housing Authority terminated Sheena housing voucher should be terminated. But based on legal Yarbrough’s housing voucher after it learned that she had been advice, the Authority decided that it would postpone its arrested and indicted on two counts of unlawful distribution decision to terminate Yarbrough’s housing assistance “until a of a controlled substance. A hearing officer found that there court date or decision was rendered.” was sufficient evidence to support the termination based on

On April 11, 2013, a grand jury for the Circuit Court of Limestone County, Alabama, returned two indictments against Yarbrough on charges of unlawful distribution of II. STANDARD OF REVIEW controlled substances sold to an undercover police informant. After Yarbrough reached an agreement with the prosecution [1] We review a “summary judgment de novo, applying the to drop the charges, the Circuit Court issued an order same legal standards used by the district court.” Galvez v. stating that “upon payment of court costs, [the] case will be Bruce, 552 F.3d 1238, 1241 (11th Cir. 2008). dismissed.” But Yarbrough’s agreement with the state did not deter the Authority from resuming its proceedings to terminate her voucher. On October 8, 2015, the Authority sent Yarbrough a second notice of its intent to terminate her III. DISCUSSION participation in the Section 8 program. The notice alleged Yarbrough challenges the summary judgment in favor of several grounds for termination, including Yarbrough’s arrest the Authority on two grounds. First, she contends that the and indictment for distribution of a controlled substance. hearing officer’s determination was premised on insufficient evidence because the probable-cause determination reflected At Yarbrough’s request, the Authority held a second hearing in an indictment *1225 or an arrest does not prove that a to determine whether her voucher should be terminated. After person engaged in drug-related criminal activity under the the hearing concluded, the hearing officer issued a written applicable preponderance-of-the-evidence standard. Second, decision that the Authority failed to establish violations on she argues that the hearing officer’s decision to credit all counts alleged in the notice except for the allegation unreliable hearsay violated the Due Process Clause of the that Yarbrough “violated her agreement with the Authority Fourteenth Amendment. We conclude that Yarbrough’s first and her lease by engaging in drug-related criminal activity.” argument mandates reversal, so we need not reach her Based on the latter ruling, the hearing officer upheld the alternative argument. Authority’s decision to terminate Yarbrough’s participation in the Section 8 program. His decision explained that the Under the governing regulation, “[f]actual determinations evidence of Yarbrough’s arrest and indictments for two felony relating to the individual circumstances of the family” counts of unlawful distribution of a controlled substance in a Section 8 termination hearing “shall be based on a was sufficient to establish that Yarbrough engaged in drug- preponderance of the evidence presented at the hearing.” 24 related criminal activity. The hearing officer stated that C.F.R. § 982.555(e)(6). In Basco v. Machin, 514 F.3d 1177 Yarbrough presented “credible evidence that the cases will be (11th Cir. 2008), we interpreted this regulation to establish dismissed on payment of court costs.” But the hearing officer that, in a proceeding to terminate benefits received through determined that because the charges remained pending and the Section 8 program, a public housing authority “has the the indictments were issued by a “duly impaneled grand jury,” burden of persuasion and must initially present sufficient the evidence was sufficient to establish that “more likely than evidence to establish a prima facie case” that the recipient not, i.e. by a preponderance of the evidence, Ms. Yarbrough committed an act that licenses termination of his Section 8 engaged in drug related criminal activity in violation of the voucher. Id. at 1182. Based on this interpretation, we held that terms of her agreement with the Authority.” a hearing officer’s determination that Section 8 participants permitted an unauthorized individual to reside in their unit Yarbrough filed a civil-rights suit against the Authority, 42 was legally insufficient to establish a prima facie case that U.S.C. § 1983, in which she alleged that the Authority the participant had actually done so. Id. at 1183–84. The only violated federal regulations and the Due Process Clause of evidence considered by the hearing officer consisted in two the Fourteenth Amendment by basing its termination decision unauthenticated police reports that failed even to use the same on legally insufficient evidence and relying exclusively on name to identify the unauthorized individual who allegedly hearsay. After discovery, both parties moved for summary resided with the Basco family. Id. at 1183. judgment. The district court granted summary judgment in favor of the Authority on the grounds that the indictments [2] Yarbrough maintains that the hearing officer’s established that Yarbrough engaged in drug-related criminal determination that her voucher should be terminated is invalid activity under a preponderance-of-the-evidence standard and under Basco . The hearing officer charged with reviewing that relying on the indictments comported with due process. the decision to terminate her voucher relied exclusively on

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 Yarbrough v. Decatur Housing Authority, 905 F.3d 1222 (2018) 27 Fla. L. Weekly Fed. C 1400 her indictments for unlawful distribution of a controlled an affirmative answer to the question of fair probability does substance and evidence of her associated arrest. Yarbrough not mean that the person more likely than not committed the argues that because an indictment or valid arrest is based charged crime. Even if it is certain that there is probable cause only on a finding of probable cause, the evidence considered to believe that a person committed a crime, it still does not by the hearing officer was insufficient to support a factual follow that the preponderance of the evidence proves that he finding that she engaged in drug-related criminal activity actually did so. under the preponderance-of-the-evidence standard applicable to Section 8 termination proceedings. Nor are we persuaded by the Authority’s response to Yarbrough’s challenge. The Authority concedes that “the The district court rejected this argument based on the burden of proof in grand jury proceedings is probable endorsement in Kaley v. United States, 571 U.S. 320, cause,” but argues that this fact “does not mean that 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014), of the principle indictments—tested under cross examination at an informal that a facially valid indictment “ ‘conclusively determines hearing—cannot also establish that, more likely than not, the existence of probable cause’ to believe the defendant a recipient engaged in impermissible drug-related criminal perpetrated the offense alleged.” Id. at 328, 134 S.Ct. 1090 activity.” Cross-examination cannot transmute a document (quoting Gerstein v. Pugh, 420 U.S. 103, 117, n.19, 95 S.Ct. attesting only to the existence of probable cause into 854, 43 L.Ed.2d 54 (1975)). Based on this premise alone, the evidence sufficient to ground a finding under a preponderance district court inferred that the indictments against Yarbrough standard unless the testimony of the witness adds some new “are legally sufficient to establish by a preponderance of information over and above the bare fact that a probable-cause the evidence, as the hearing officer found, that Yarbrough determination was made. engaged in the alleged drug-related criminal activity.” We reject this reasoning. We hold that the evidence before the hearing officer was legally insufficient to sustain the Authority’s decision [3] [4] A facially valid indictment is undoubtedly to terminate Yarbrough’s Section 8 voucher under the competent evidence of “a grand jury's finding of probable preponderance standard in the applicable regulation, 24 cause to think that a person committed a crime,” Kaley, 571 C.F.R. § 982.555(e)(6). Under Basco , we must vacate the U.S. at 338, 134 S.Ct. 1090, but proof of a crime under summary judgment in favor of the Authority. a preponderance standard requires more than a finding of probable cause. A probable-cause determination “does not require the fine resolution of conflicting evidence that a IV. CONCLUSION reasonable-doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding We VACATE the summary judgment in favor of the whether the evidence supports a reasonable belief in guilt.” Authority and REMAND for further proceedings. Gerstein, 420 U.S. at 121, 95 S.Ct. 854. That a grand jury determined that the evidence against Yarbrough was sufficient to support a reasonable belief in guilt cannot *1226 in itself WILLIAM PRYOR, Circuit Judge, concurring: prove that she more likely than not committed the charged I join the panel’s opinion in full because our precedent offenses, any more than an indictment for a criminal offense in Basco v. Machin, 514 F.3d 1177 (11th Cir. 2008), can conclusively prove liability for a civil offense with the requires us to vacate the summary judgment in favor of the same elements. Decatur Housing Authority. I write separately to explain why Basco is inconsistent with Supreme Court precedent and our [5] [6] It makes no difference that the hearing officer relied precedents and why it should be overruled en banc. on two indictments and evidence that Yarbrough had been arrested instead of a single indictment. Three probable-cause Basco invalidated the termination decision of a hearing officer determinations do not add up to a finding that a person more of a local public housing authority in a civil-rights action, likely than not committed a drug-related crime. Probable 42 U.S.C. § 1983, on the ground that the evidence was cause “requires only the kind of fair probability on which legally insufficient under the preponderance-of-the-evidence reasonable and prudent people ... act.” Kaley, 571 U.S. at 338, standard for Section 8 termination hearings. Since then, we 134 S.Ct. 1090 (citations and quotation marks omitted). But have overturned the termination decisions of local housing

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 Yarbrough v. Decatur Housing Authority, 905 F.3d 1222 (2018) 27 Fla. L. Weekly Fed. C 1400 authorities on the same ground on a semi-regular basis in regulation can create a right enforceable under § 1983,” so unpublished opinions. See, e.g., Lane v. Fort Walton Beach this regulation cannot in itself supply a right enforceable Hous. Auth., 518 Fed. App'x 904 (11th Cir. 2013); Ervin through section 1983. Harris v. James, 127 F.3d 993, 1011 v. Hous. Auth. of the Birmingham Dist., 281 Fed. App'x (11th Cir. 1997). Instead, our precedents dictate that a right 938 (11th Cir. 2008). The district courts in our Circuit have created by regulation is enforceable through section 1983 followed our lead and done so as well. See, e.g., Goodman only if there is a federal statute that “itself confers a specific v. Hous. Auth. of DeKalb Cty., No. 1:17-CV-504-TWT, 2018 right” and the regulation “merely further defines or fleshes WL 3972364 (N.D. Ga. Aug. 20, 2018); Taylor v. City of out the content of that right.” Id. at 1009. If a regulation Decatur, No. CV-09-S-1279-NE, 2010 WL 8781926 (N.D. “defines the content of a statutory provision that creates no Ala. Dec. 2, 2010); Carter v. Montgomery Hous. Auth., No. federal right” or “if the regulation goes beyond explicating 2:09-cv-971-MEF-CSC, 2009 WL 3711565 (M.D. Ala. Nov. the specific content of the statutory provision and imposes 3, 2009). But we have yet to articulate *1227 an explanation distinct obligations in order to further the broad objectives of why we are entitled to review the garden-variety errors of underlying the statutory provision,” the regulation is “too far local housing authorities under section 1983, which provides removed from Congressional intent to constitute a ‘federal a cause of action to redress violations of rights created by the right’ enforceable under § 1983.” Id. Constitution and federal statutes, not a freestanding grant of appellate jurisdiction to review the decisions of local agencies It follows that the right established by the applicable for any and all errors. regulation, 24 C.F.R. § 982.555(e)(6), is enforceable through section 1983 only if it explicates a federal right conferred by We have failed to provide an account of why we are entitled the text of the Housing Act. One provision in the Housing to review the factual findings of public housing authorities Act addresses the procedures governing voucher termination because there is no explanation to be found. No provision hearings, 42 U.S.C. § 1437d(k). And it provides that “[t]he in the Housing Act of 1937, 42 U.S.C. §§ 1437–1437z-10 Secretary [of Housing and Urban Development] shall by creates an individual right to a termination decision based on regulation require each public housing agency receiving a finding under a preponderance standard. And no principle of assistance under this chapter to establish and implement an constitutional law licenses a federal court to set aside a local administrative grievance procedure” in which tenants will (1) housing authority’s welfare-termination decisions for want of “be advised of the specific grounds of any proposed adverse legally sufficient evidence. It follows that there is no cause of public housing agency action”; (2) “have an opportunity for action to challenge the adequacy of the factual determinations a hearing before an impartial party upon timely request”; of the hearing officers of public housing authorities under (3) “have an opportunity to examine any documents or section 1983. We were wrong in Basco to presume otherwise. records or regulations related to the proposed action”; (4) “be entitled to be represented by another person of their choice at any hearing”; (5) “be entitled *1228 to ask questions of witnesses and have others make statements on their behalf”; A. The Housing Act Does Not Create an Individual and (6) “be entitled to receive a written decision by the public Right to A Hearing Enforceable Through Section 1983. housing agency on the proposed action.” Id. The Supreme Court explained decades ago that “[i]n order to seek redress through § 1983 ... a plaintiff must assert Section 1437d(k) does not create a right to a hearing before the violation of a federal right, not merely a violation of a housing authority may terminate a recipient’s voucher. A federal law.” Blessing v. Freestone, 520 U.S. 329, 340, 117 statute can create an individual right enforceable through S.Ct. 1353, 137 L.Ed.2d 569 (1997). The source of the right section 1983 only if it “unambiguously impose[s] a binding to a determination founded on the preponderance of the obligation on the States.” Blessing, 520 U.S. at 341, 117 evidence in Section 8 termination hearings is a regulation, S.Ct. 1353. But section 1437d(k) of the Housing Act does 24 C.F.R. § 982.555(e)(6), which provides that “[f]actual not lay any duty on any state actor. Instead, it lays a determinations relating to the individual circumstances of duty on the Secretary . True, the obligation imposed on the family” in a termination hearing “shall be based on a the Secretary is a duty to develop regulations “requir[ing] preponderance of the evidence presented at the hearing.” each public housing agency ... to establish and implement But we have rejected the proposition that “in the absence an administrative grievance procedure” that satisfies the of a federal right created by Congress, an implementing statutorily mandated criteria, 42 U.S.C. § 1437d(k), which

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 Yarbrough v. Decatur Housing Authority, 905 F.3d 1222 (2018) 27 Fla. L. Weekly Fed. C 1400 means that the duty imposed on the Secretary is a duty his decision based on the preponderance of the evidence. So to impose obligations on state actors. But that formula is on the assumption that there is a federal right to a termination not enough. Rights enforceable through section 1983 must hearing established by section *1229 1437d of the Housing be the correlates of obligations imposed on state actors by Act, the corresponding regulation, 24 C.F.R. § 982.555(e)(6), Congress. As the Supreme Court has explained, “the initial is best understood as one that “imposes distinct obligations in inquiry” in determining whether a statute creates an individual order to further the broad objectives underlying the statutory right enforceable through section 1983 “is no different from provision.” Harris, 127 F.3d at 1009. the initial inquiry in an implied right of action case, the express purpose of which is to determine whether or not a Simply put, the Housing Act does not create a federal statute ‘confer[s] rights on a particular class of persons.’ ” right to a termination hearing in which decisions must Gonzaga v. Doe, 536 U.S. 273, 285, 122 S.Ct. 2268, 153 be based on the preponderance of the evidence. The Act L.Ed.2d 309 (2002) (quoting California v. Sierra Club, 451 neither does so in itself nor does so in conjunction with the U.S. 287, 294, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981)). And applicable regulation, 24 C.F.R. § 982.555(e)(6). If Basco has “[l]ike substantive federal law itself, private rights of action to a foundation, it must be found elsewhere. enforce federal law must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). “Language in a regulation may invoke a private B. Basco’s Holding Is Not Grounded right of action that Congress through statutory text created, in the Due Process Clause. but it may not create a right that Congress has not.” Id. at 291, 121 S.Ct. 1511. “Agencies may play the sorcerer’s apprentice The problems attendant to an attempt to explain Basco as a but not the sorcerer himself.” Id. decision grounded in a statutory right created by the Housing Act might lead one to wonder whether its holding might A congressional instruction to impose a duty on a state actor is be saved by locating a rationale for it in the Due Process not itself an act of imposing a duty on the states. In declining Clause. Indeed, our unpublished opinions applying Basco to impose a duty directly on public housing authorities in the have taken steps down this path. In Ervin, we suggested that text of the Housing Act, Congress also declined to create any Basco is grounded in the principle that a housing authority statutory right to a termination hearing that could be enforced violates “procedural due process rights under the Fourteenth through section 1983. So the corresponding regulation, 24 Amendment” when it “fail[s] to comply with” federal C.F.R. § 982.555(e)(6), “defines the content of a statutory “regulations governing benefits termination procedures.” 281 provision that creates no federal right,” Harris, 127 F.3d at Fed. App'x at 939. Lane took a different tack and proposed 1009, instead of fleshing out the content of a right conferred that Basco applied an apparently sui generis “due process by Congress. principle” prohibiting adverse administrative determinations based on evidence that is obviously insufficient to satisfy the Even if we were to assume that section 1437d(k) of the burden of proof applicable in an administrative hearing. 518 Housing Act creates an individual right to a hearing that Fed. App'x at 912. But neither of these theories is workable, comports with the statutory criteria it enumerates, it would and there is no realistic prospect of salvaging Basco by not follow that the preponderance standard created by the reinterpreting it as a decision grounded in the Due Process applicable regulation, 24 C.F.R. § 982.555(e)(6), “merely Clause. There is no principle of due process that guards further defines or fleshes out the content of that right.” Harris, against an agency decision that deprives a claimant of welfare 127 F.3d at 1009. The statutory criteria require (1) notice of benefits based on insufficient evidence. Allow me to explain. the grounds for the housing authority’s proposed action, (2) an opportunity for a hearing before an impartial officer, (3) In basing a decision on evidence that is insufficient under an opportunity to examine any documentary evidence related the applicable regulation, 24 C.F.R. § 982.555(e)(6), a public to the proposed action, (4) an entitlement to be represented housing authority commits two analytically distinct errors: in the hearing by a person of one’s choice, (5) an entitlement (1) depriving a person of a benefit based on insufficient to confront adverse witnesses and to present the testimony of evidence under a preponderance standard, and (2) violating one’s own witnesses, and (6) a written decision. 42 U.S.C. the regulation that requires it to render a decision that is § 1437d(k). None of these provisions could plausibly be valid under that standard of proof. Our attempts to work out “fleshed out” into a requirement that the hearing officer render a due process rationale for Basco have seized upon one of

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 Yarbrough v. Decatur Housing Authority, 905 F.3d 1222 (2018) 27 Fla. L. Weekly Fed. C 1400 these errors or the other. In Lane, we emphasized the first in lieu of those required by its regulations failed to provide error and held that allegations that “the evidence relied on by what the Due Process Clause itself requires: “notice and an the Hearing Officer was not legally sufficient and could not, opportunity to be heard.” ACLU of Fla., 557 F.3d at 1229. So consistent with procedural due process principles, support an the theory we floated in Ervin could support our holding in administrative decision” were sufficient to survive a motion Basco only if rendering an adverse determination in a welfare to dismiss. 518 Fed. App'x at 912. In Ervin we focused on the hearing based on insufficient evidence is itself a violation of second error and held that there was a triable issue of fact as procedural due process. This idea, of course, is the same one to whether the termination hearing at issue “did not comply we proposed in Lane. So at bottom, the theory we outlined in with the administrative regulations applicable to Section 8 Ervin reduces to a variant of the theory proposed in Lane. It proceedings.” 281 Fed. App'x at 939. fails for the same reason: there is no procedural-due-process right to error-free adjudication. Neither of these regulatory errors constitutes a violation of the Due Process Clause. There is no principle of procedural There is another potential constitutional foundation for Basco due process prohibiting an agency’s hearing officers from that we have not considered in our decisions—substantive predicating an adverse administrative determination on due process—but it is a nonstarter. Under that doctrine, “the insufficient evidence. A welfare claimant who alleges that he Due Process Clause specially protects those fundamental was deprived of welfare benefits on the basis of insufficient rights and liberties which are, objectively, ‘deeply rooted evidence does not “claim[ ] that he was denied adequate in this Nation's history and tradition.’ ” Washington v. process,” but instead “that he was improperly denied his Glucksberg, 521 U.S. 702, 720–21, 117 S.Ct. 2258, 138 property interest, despite the fact that he received process.” L.Ed.2d 772 (1997) (quoting Moore v. City of East Cleveland, Caswell v. City of Detroit Hous. Comm’n, 418 F.3d 615, 621 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (6th Cir. 2005). But as the Supreme Court has explained, (plurality opinion)). But the Supreme Court has made clear “the Due Process Clause has never been construed to require that “[w]elfare benefits are not a fundamental right, and that the procedures used to guard against an erroneous neither the State nor Federal Government is under any sort deprivation of a protectible ‘property’ or ‘liberty’ interest be of constitutional obligation to guarantee minimum levels of so comprehensive as to preclude *1230 any possibility of support.” Lavine v. Milne, 424 U.S. 577, 584 n.9, 96 S.Ct. error.” Mackey v. Montrym, 443 U.S. 1, 13, 99 S.Ct. 2612, 1010, 47 L.Ed.2d 249 (1976). So there is no sense in which the 61 L.Ed.2d 321 (1979). In other words, “[t]he Due Process substantive protections of the Due Process Clause can guard Clause simply does not mandate that all governmental a welfare recipient from termination based on erroneous decisionmaking comply with standards that assure perfect, application of the requisite standard of proof. error-free determinations.” Id. In short, not one of the potential constitutional rationales Nor would it help to pivot to the second error, as we for our holding in Basco is at all plausible. The failure did in Ervin , and adopt the view that a housing authority of our attempts to find a secure footing for Basco in the violates “procedural due process rights under the Fourteenth text of the Housing Act and principles of due process Amendment” when it “fail[s] to comply with” federal suggests that in the final analysis, our decision in that “regulations governing benefits termination procedures.” 281 appeal was lawless. Undoubtedly, an injustice is done when Fed. App'x at 939. This rationale is an application of a theory a housing authority terminates the benefits of a deserving that we have repeatedly rejected, namely, that an agency claimant on the basis of manifestly inadequate evidence. violates due process if it fails to abide by its own procedural But in the absence of a congressional decision to confer regulations in an administrative adjudication. See ACLU of an individual entitlement to a termination decision based Fla., Inc. v. Miami-Dade Cty. Sch. Bd., 557 F.3d 1177, 1229 on legally sufficient evidence, the correction of the garden- (11th Cir. 2009) (The doctrine “that ‘an agency must follow variety mistakes of local housing authorities is not within its own rules in order to avoid infringing due process rights,’ our authority. There is no constitutional principle that secures cannot be grounded in the law of this circuit.”) (citation a person against the risk that he will be deprived of a omitted); Smith v. Georgia, 684 F.2d 729, 732 n.6 (11th Cir. benefit based on an erroneous factual determination. A claim 1982). Under our precedents, an agency’s failure to follow *1231 alleging that a deprivation of a protected property its own procedural regulations gives rise to a due process interest was not proven to the legally-mandated standard violation only if the procedures the agency actually applied of proof is quintessentially substantive, not procedural, and

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 Yarbrough v. Decatur Housing Authority, 905 F.3d 1222 (2018) 27 Fla. L. Weekly Fed. C 1400 there is no fundamental right to receive welfare benefits that welfare benefits who have no cause of action under section could ground a substantive-due-process challenge to such an 1983. Instead, we should overrule our decision in Basco en administrative decision. banc.

We should clean up our jurisprudence in this area because it All Citations cannot be squared with the Supreme Court’s precedent or our own. We should stop entertaining complaints by recipients of 905 F.3d 1222, 27 Fla. L. Weekly Fed. C 1400

Footnotes * Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation.

RICHARD A. CULBERTSON, PETITIONER v.

NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

III

TABLE OF CONTENTS Page(s)

TABLE OF AUTHORITIES Page(s)

VII

TABLE OF AUTHORITIES Page(s)

VIII

TABLE OF AUTHORITIES Page(s)

PETITION FOR A WRIT OF CERTIORARI

CONCLUSION The petition for a writ of certiorari should be granted.

Respectfully submitted.

NOVEMBER 2017

[PUBLISH] IN THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

______No. 16-13664 ______D.C. Docket No. 6:12-cv-00915-DAB

KATRINA F. WOOD, Plaintiff-Appellant, versus COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. ______No. 16-13665 ______

D.C. Docket No. 6:12-cv-01882-KRS

CELALETTIN AKARCAY, Plaintiff-Appellant, versus COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

______No. 16-13666 ______D.C. Docket No. 6:14-cv-00784-DAB BILL J. WESTFALL, Plaintiff-Appellant, versus COMMISSIONER OF SOCIAL SECURITY, Defendant–Appellee. ______

No. 16-14004 ______

2 The parties consented to jurisdiction by a U.S. Magistrate Judge in each case. We refer to the Magistrate Judges’ orders as those of the District Court.

10a

4 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Id. at 1209.

13a

15a

17a

18a

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

KATRINA F. WOOD,

Plaintiff,

Case No. 6:12-cv-915-Orl-DAB

-vs-

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

______

ORDER This cause came on for consideration with oral argument on the following motion filed herein:

MOTION: AMENDED CONSENT MOTION FOR ATTORNEY’S FEES (Doc. 40)

FILED: December 17, 2015

THEREON it is ORDERED that the motion is GRANTED in part.

19a

1In Bonner v. City of Pritchard, 661 F.2d 1206, 1209-11 (11th Cir. 1981), the Eleventh Circuit adopted as binding precedent the law of the former Fifth Circuit.

2In the Eleventh Circuit, unpublished decisions are not binding, but are persuasive authority. See 11th Cir. R. 36-2.

21a

22a

23a

24a

25a

26a

4This is not to say that the Court must order the refund or oversee payment. Jackson makes clear that it is counsel’s obligation under penalty of law to effectuate the offset.

29a

30a

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

BILL WESTFALL, Plaintiff, -vs- Case No. 6:14-cv-784-Orl-DAB COMMISSIONER OF SOCIAL SECURITY, Defendant. ______

ORDER

This cause came on for consideration without oral argument on the following motion filed herein:

MOTION: UNOPPOSED REQUEST FOR AUTHORIZATION TO CHARGE A REASONABLE FEE UNDER 42 U.S.C 406(B) (Doc. No. 25)

FILED: November 9, 2015

THEREON it is ORDERED that the motion is GRANTED, with a caveat, as set forth herein.

Counsel’s motion for authorization to charge a reasonable fee follows the issuance of an Order and Judgment reversing the decision of the Commissioner

32a

1In Bonner v. City of Pritchard, 661 F.2d 1206, 1209-11 (11th Cir. 1981), the Eleventh Circuit adopted as binding precedent the law of the former Fifth Circuit.

34a

36a

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

BILL WESTFALL,

Plaintiff,

-vs- Case No. 6:14–cv–784–Orl–DAB

COMMISSIONER OF SOCIAL SECURITY,

Defendant. ______

ORDER

This cause came on for consideration with oral argument on the following motion filed herein:

MOTION: DEFENDANT’S MOTION FOR RELIEF FROM ORDER PURSUANT TO RULE 60 (Doc. No. 27)

FILED: November 24, 2015

THEREON it is ORDERED that the motion is DENIED.

37a

38a

1In Bonner v. City of Pritchard, 661 F.2d 1206, 1209-11 (11th Cir. 1981), the Eleventh Circuit adopted as binding precedent the law of the former Fifth Circuit.

2In the Eleventh Circuit, unpublished decisions are not binding, but are persuasive authority. See 11th Cir. R. 36-2.

39a

41a

43a

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5Judge Dalton has also affirmed this interpretation, and Dawson’s status as controlling and binding precedent. Bibber, supra.

46a

under §406(a) . . .” 390 Fed. Appx. 873, n. 1. The Eleventh Circuit did not reach that argument “because the Commissioner failed to file a cross-appeal raising the issue.” Id.

48a

49a

50a

51a

8The parties cite no other case which follows White with respect to this conclusion.

52a

53a

54a

99This is not to say that the Court must order the refund or oversee payment. Jackson makes clear that it is counsel’s obligation under penalty of law to effectuate the offset.

56a

58a

Relevant Statutory Provisions

61a

62a

CIVIL APPEALS JURISDICTION CHECKLIST

1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:

(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate’s jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327- 28 (11th Cir. 2001).

(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).

(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are permitted from the following types of orders: i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986); ii. Orders appointing receivers or refusing to wind up receiverships; and iii. Orders determining the rights and liabilities of parties in admiralty cases.

(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable.

(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).

2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits: (a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.

(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”

(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.

(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.

(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

Rev.: 3/2011

4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

Rev.: 3/2011

DRAFTING THE BRIEFS

<< Back to Table of Contents

CRAFTING THE APPELLATE BRIEFS

Prepared for:

ICLE PROGRAM: GEORGIA APPELLATE PRACTICE September 13, 2019

Darren Summerville The Summerville Firm, LLC 1226 Ponce de Leon Avenue NE Atlanta, GA 30361 770.635.0030 [email protected]

Jennifer Auer Jordan Shamp Jordan Woodward 1718 Peachtree Street NW Suite 660 Atlanta, GA 30309 404.893.9400 [email protected]

So, assume that you have successfully navigated the appellate statutes and rules and find your self in the Court of Appeals (or, depending upon jurisdiction, the Supreme Court). What next?

Comprehensively outlining suggestions as to prosecuting appeals is well beyond the scope of this paper (after all, textbooks are devoted to the issue), but a few basic thoughts might assist. First, know the appellate court rules and adhere to them. Georgia’s courts of appeal are amongst the busiest in the country. The latest statistics, available on the Court of

Appeals’ website, indicate that each Judge is responsible for disposing of over 200 cases per year – almost one every business day.1 While some of those cases are disposed of somewhat easily – an untimely petition for discretionary review, or something similar – the majority require written opinion. It does not assist to format your brief incorrectly, to abandon the protocols for record citation, or to ignore requirements as to motions or

1 Georgia Court of Appeals “Caseload Statistics,” available at http://www.gaappeals.us/stats/index.php (last visited September 10, 2019). The expansion of the Court of Appeals from twelve Judges to fifteen seems to have helped in reducing the number of cases per jurist, to be sure, even though the Court’s jurisdiction changed to add certain types of cases simultaneously.

1 other forms of pleading. Instead, parties that know and respect the rules are appreciated.2

Second, pick and choose appeals and sub-issues carefully. The standard for review should always be considered. Broad categories of consideration exist, of course, and should shape your decisionmaking process. De novo review is the most exacting – appellate courts owe no deference to the trial court, at all, under that standard. Common appellate issues that recur under such a standard include the summary judgment battleground. More lenient standards include abuse of discretion, which encompasses a wide swath of trial practice, including evidentiary rulings.

Even more deferential standards exist that make appeals within such a framework quite difficult, include traditional “any evidence” or “clear legal error” standards.

2 As one rather important example, the Court of Appeals has recently handed down a comprehensive revamping of its own Rules, including significant shifts in the way discretionary and interlocutory appeals are handled. Pragmatically, the wise practitioner would also review the rules to drive home the new formatting requirements for briefs, lest a filing be kicked back for failure to abide by the governing standards. For example, failure to satisfy Rule 24 word-count representations will almost certainly get you a rejected filing.

2 The standard of review not only is the framework for decision, but should shape your enumeration of errors as well. Obviously, claims of error that fall under highly deferential standards will fail much more often than not; if your appeal can be carried under a de novo standard, though, your chances are markedly better.

Another thing about enumerations of error – pick and choose carefully. Dilution is a real risk, should you decide to include every conceivable claim of error. The most I’ve seen lodged in a brief (at least written by a lawyer) is an astounding seventeen enumerations of error, amounting to a claim that essentially every ruling the trial court ever made in a case was absolutely wrong. That sort of scattershot approach not only diminishes the overall credibility of your argument to the appellate court, but also likely impedes your ability to effectively and comprehensively prove your “better” arguments. Though no rule is etched in stone, somewhere between one and four enumerations should be the norm.

Also, just as importantly, know your audience. In the Georgia Court of

Appeals, the docketing notice provides key information – the three Judges that will decide your case. And in the Georgia Supreme Court, as in the nation’s highest Court, each case is heard by the entire roster of Justices.

3 So, one highly valuable task is to scour the existing caselaw for opinions authored by your current Judges and Justices, and cite to those decisions first and foremost (for general principles, at least, and certainly on issues that might touch upon your particular appeal).3

And above all, remember: it’s about the writing. The vast majority of an appellate judge’s time (and staff attorney time) is spent reading. To stand out, your writing needs to be clear and persuasive, entertaining but respectful. To many, writing is a chore; to a few – often appellate specialists – writing is an art, and to be embraced. Most practitioners can get by just knowing an appellate specialist to call on in the event a case goes up; for other practitioners that must undertake their own appeals, though, a few useful resources are out there.4

3 One rather colorful explanation has survived the ages. “Supposing fishes had the gift of speech, who would listen to a fisherman’s weary discourse on fly casting, the shape and color of the fly, the size of the tackle, the length of the line, the merit of different rod makers, and all the other boring stuff fishermen talk about, if the fish himself could be induced to give his views on the most effective method of approach? For after all it is the fish that the angler is after and all his recondite learning is but the hopeful means to that end.” John W. Davis, “The Argument of An Appeal” (1940), 26 A.B.A.J. 895. 4 I highly recommend Bryan Garner’s works, including The Winning Brief (Oxford, 1999). Just as good is Garner’s collaboration with Justice Antonin Scalia, Making Your Case: the Art of Persuading Judges (Thompson-West 2008).

4 An example or two hopefully assists. Each of us is a strong adherent of powerful, but readable writing that abandons many of the stale “rules” that have governed legal writing classes and CLEs for decades. Gone are words that you never heard of before law school – “heretofore,” “whereas” and all their cousins. Also cast out are staid, generic introductions: “Comes now, Appellant Joe Smith, by and through his undersigned counsel, and respectfully asks this Honorable Court to reverse. . . .” If in the first paragraph you cannot determine what this particular case is about, we would urge you to try again.

Instead, your writing needs to capture the reader’s attention and interest immediately. Take this example of a “first paragraph” from an actual case and appeal. The underlying facts were remarkably straightforward: a plaintiff timely mailed to the local clerk for filing a

Complaint, a Summons, filing fees, and checks to the local Sheriff sufficient to cover the costs of service. All of that happened a few days before the applicable statute of limitations was to run. In other words, the plaintiff’s counsel did what was expected, and required.

One defendant was served by the Sheriff just after the statute, but the other never was. The litigation proceeded for almost a year when the

5 ”served” defendant moved to dismiss on statute of limitations grounds. The rather strained argument was that service was only perfected after the statute had run, and the plaintiff had not demonstrated diligence in pursuing service. For some inexplicable reason, the trial court latched onto the idea that the service fee had never been paid, and, accordingly, the efforts at service had not been diligent. The trial court, naturally enough, then dismissed and a direct appeal followed.

The first draft of the Appellant’s brief contained the following introductory paragraph:5

Appellant, Irene Adler (“Adler”), was injured in a motor vehicle accident that occurred on August, 2010. Complaint, R-6. Suit was initiated in this matter on August 7, 2012 within the two year statute of limitations for such actions. Complaint, R-3. The Summons for Defendant, James Moriarty, was included with the Complaint and checks for filing fee and service fees delivered to the court clerk on or about August 7, 2012. R-35-36. The Sheriffs Service fee check, dated July 31, 2012, in the amount of $50.00 cleared associated counsel’s bank account on or about August 23, 2012 indicating that it was accepted by the London County Sheriff and credited to Plaintiff for service of process. R-31. Service was returned by the Sheriff of London County per the Sheriff’s Entry of Service on August 22, 2012, 15 days after the filing of the suit. R-19. At the hearing on Defendants’ motion to dismiss, the Court, in a conference with the clerk’s officer, was informed that the Plaintiff had not tendered the sheriff’s service fee with the Complaint and filing fee at the time of the

5 I’ve altered the identifying information of the parties and venue, but otherwise this is word-for-word the draft introduction. As always, I turn to Arthur Conan Doyle’s work on Sherlock Holmes for naming emphasis.

6 initiation of the case. MT -10. Pursuant to Defendant’s Motion to Dismiss, the London County Superior Court entered an Order Granting Defendants’ Motion to Dismiss on or about August 12, 2013, citing Plaintiff’s lack of diligence as the reason for the dismissal. R- 19-20. Thereafter, Plaintiff filed her Motion to Reconsider with exhibits reflecting the payment of the sheriff’s service fee at the time of the initiation of the case on August 7, 2012 along with bank records reflecting that the sheriff’s service fee check had cleared the bank. R-31-36. No order was entered on the Motion to Reconsider as the appeal, in order to be timely, was filed before a hearing could be set for the Motion. This Appeal was timely filed with the London Superior Court Clerk on September 11, 2013. R-1-3.

That’s exactly how it looked, too – one long block paragraphs.

There’s a lot going on here. Some of the must-edits are obvious.

• The intro does little to “grab,” as it has no underlying theme or prevailing story. Nor does it even explain what is glaringly obvious: the trial court got it wrong, and that is, in reality, the end of the inquiry.

• Stylistically, there are too many passive voice sentences (though a few are perfectly fine, for variance and readability’s sake).

• There’s too much overchronicling, which means that the Court is presented with a morass of dates that don’t really matter.

• Personalization is absent, with the passage focused on generic “Plaintiff” and “Defendant” with no personality whatsoever.

• One long paragraph is just tough on the eyes and concentration. Even though an introduction can certain creep up to two pages or so in the right case, it needs to be readable at the same time.

• There is a retreat to the record cite for support, when quotes and actual snippets are much more interesting and persuasive. Also, overciting without context just requires the reader to bounce back and

7 forth between your brief and the record, which breaks focus and saps interest.

To be fair, the substance is almost all here, but the message gets lost in somewhat pedestrian writing. Something like this seems a lot better:

This is about as straightforward an appeal as there one might find. The dispute here is whether the Plaintiff in the underlying litigation, Irene Adler, was diligent in attempting to serve the defendant, James Moriarty. Adler did all that Georgia law requires: filed a Complaint within the statute of limitations, attached a proper Summons to that pleading, and paid the requisite filing and service fees. As was her right, Adler elected the London County Sherriff’s Office to serve the Complaint on Adler.

And service was obtained, just 15 days after the filing of the Complaint. There is no dispute about timely filing of the Complaint, actual service, notice, or (absence of any) prejudice. For reasons that are, in a fair use of the word, impossible to understand, the trial court granted a Motion to Dismiss based upon Adler’s supposed failure to exercise diligence in serving Moriarty. So reasoning, the trial court found that Adler had not submitted the proper funds to the Sheriff’s Office for service, when the uncontradicted record establishes otherwise. Simply, the trial court just got the facts wrong. This appeal followed, as should a reversal.

While far from perfect, this is certainly more impactful and persuasive. It’s more succinct, but actually contains the same substantive information.

There is no clutter with record cites (there will be a time and place for that, later in the brief). And most importantly, there is a clear theme introduced early: the trial court made an inexplicable factual error that merits reversal.

8 Framing secured, the remainder of the brief should be easy to envision. For something more visually arresting that a sentence explaining that the service checks were in fact delivered and cashed, the brief included a PDF of the checks cut-and-pasted into the text of the argument section. If the entire argument underlying the trial court’s dismissal was that no check was sent and no fee was paid, the key “fact” is a front-and-back copy of the cashed check. After that, there was virtually nothing to be said on the issue.

Of course, this is but one example (and a cherry-picked one, true).

But, you see where we’re going. Legal writing doesn’t have to be, and shouldn’t be, pedantic and linear. Start sentences with “and” and “but”; dismiss “pursuant” as archaic; learn that transition sentences are your friend. One other global bit of advice: better writing is obtained when you read good writing yourself. Find a world-class source (preferably non-legal) and dive in every once in a while. We suspect you’ll notice a difference in your ultimate work product somewhat quickly.

One more example: we attach a full brief that is of comparatively recent vintage, including what might be good examples of the above (the introductory statement/story; use of “actual” evidence” to demonstrate

9 visually important concepts) and some less-than-perfect ones (overuse of lengthy footnotes and block quotes, both bad habits which Darren in particular can’t seem to shake). Take from it what you will, and please feel free to contact us with any questions or thoughts.

10 IN THE COURT OF APPEALS FOR THE STATE OF GEORGIA

JUSTIN MILLER et al. ) ) Case No. A16A1403 Appellants/Plaintiffs, ) ) v. ) Appeal from the State ) Court of Fulton County TURNER BROADCASTING SYSTEM, ) Civil Action No. INC. et al. ) 11–EV-013482 ) Appellees/Defendants. )

APPELLANTS’ INITIAL BRIEF

Darren Summerville Peter A. Law GA Bar No. 691978 GA Bar No. 439655 [email protected] [email protected] Angela R. Fox E. Michael Moran GA Bar No. 131077 GA Bar No. 521602 [email protected] [email protected]

The Summerville Firm, LLC Law & Moran 400 Colony Square, Suite 2000 563 Spring Street, NW 1201 Peachtree Street, NW Atlanta, GA 30308 Atlanta, GA 30361 T: 404.814.3700 T: 770.635.0030 F: 404.842.7710 F: 770.635.0029

This tort case arises from the near-fatal electrocution of Appellant Justin

Miller back in 2009. Miller, an electrician’s assistant, was permanently disabled

(left blinded, brain damaged, uncommunicative, and immobile, with millions in past medical expenses) when he encountered a live junction box during a renovation project at a property owned by Appellee Turner Broadcasting

System, Inc. (“TBS”). TBS’s co-Appellee, Turner Properties, Inc., managed the property. The specific project included offices on the fourth floor of a building within a larger cluster, commonly referred to as the Techwood Campus, or, more simply, “the Campus.” V23 6520 (9-10);V32 9253 (42).1 The junction box and the corresponding circuit breaker boxes were originally installed at the property by the third Appellee, Inglett & Stubbs, LLC.

Miller’s claims are that he took all necessary steps during his labors to assure himself that the junction box was de-energized, including locating and activating the proper circuit breaker that would interrupt the flow of electricity to

1 The citations to the record will often include reference to a “miniscript” deposition transcript, which is broken out into four separate “pages” per standard page. For ease of reference, the cite V23 6520 (9-10) would be read, then, as Volume 23, page 6520, at internal deposition pages 9-10. 2 Miller’s ultimate injuries have left him unable to speak or communicate in any meaningful fashion, so accounts of the incident are from others. 3 A “tic tracer” (sometimes identified in the record as a voltage meter) was

1 the junction box, making it safe to manipulate. Unbeknownst to Miller, though, the junction box itself and the corresponding circuit breaker were mislabeled, meaning that the actual circuit breaker that could interrupt electrical current to the box during Miller’s labors went ignored (a fact that Appellees knew or certainly should have known). Therefore, when Miller turned off the circuit breaker, it did not de- energize the junction box. Believing the box to be inert, Miller attempted to examine it and was horrifically electrocuted.

On summary judgment, the trial court held that Miller – despite identifying the circuit number written on the junction box cover and turning off that circuit breaker – completely disregarded his own safety, barring any claims. But those types of “what is reasonable under the circumstances?” questions are almost always for a jury, and this case is no different. Reversal is required, as well as remand for jury determination.

I. THE GENESIS OF THIS DISPUTE: HOW WE GOT HERE

A. The Relevant Factual Background

Miller’s near-fatal injuries did not have to happen. As an employee of

Gallagher Electric, a long-standing onsite subcontractor, Miller and others addressed the small-scale renovation piecemeal, since shutting down power to the

2 entire fourth floor was impossible or infeasible. V21 5986 (24-26); V20 5800-01

(99-102). Essentially, instead of shutting down an entire floor’s worth of circuits, the task had to be accomplished by finding and shutting off the governing electrical circuit.

On the morning of the incident – the first one in which Miller was onsite – he and coworker Paul Nipper were instructed to move a wall-mounted light fixture.

V21 6157 (18-19); V20 5792 (66-67).2 Miller and Nipper had worked at other locations in the Complex without incident, however. V21 6169 (68-69). To accomplish their given task on that day, the two were to reroute electrical wires from a junction box located in the ceiling of the office space. V21 6157 (18-19).

To safely de-energize the line, the circuit breaker controlling the line would have to be located and activated, effectively cutting electricity flow through the line.

V21 6157 (20); V20 5797 (87).

Since shutting off the entire floor’s current was not on the radar, Miller and

Nipper took a more directed approach. Industry standard for such procedures is to visually identify the label or circuit number on the outside cover of the junction

2 Miller’s ultimate injuries have left him unable to speak or communicate in any meaningful fashion, so accounts of the incident are from others.

3 box, go to the circuit panel breaker board (here, located in a separate room), and find the matching numbered circuit breaker and turn it off. At that point, the

“break” would be engaged, cutting off electricity to the line and junction box.

What Miller saw was straightforward: the junction box cover plate was quite clearly marked as controlled by Circuit 15 in breaker panel SP4:

V26 7446; V21 6157-58 (21-22). And that certainly made sense, as the circuit breaker control room contained an identically-labeled set of breakers. V26 7447

(breaker schedule for “Lighting panel SP4”). The circuit breaker panel schedule, located immediately below the panel itself, confirmed that SP4 15 was a live circuit (the “break/conference” area) controlled by the corresponding breaker.

V26 7448; V27 7686.

Miller here climbed a ladder, identified the circuit breaker control label, and then went to the circuit breaker room and flipped SP4 15. V21 6157-58 (19-23).

Returning to the work area, Miller told his co-worker that he had shut off the circuit breaker, closed and locked the breaker panel door, and closed the electrical control room door. V21 6157-58 (22-23), 6167 (59).

Based on Miller’s actions, Nipper then ascended the work ladder and began to unscrew a wire nut from wires leading to the junction box when he thought he felt a shock. He climbed back down the ladder and told Miller that he had been

“hit” and that the “circuit wasn’t off.” V21 6158 (24), 6164 (49), 6165 (52-53).

Miller reaffirmed that the circuit was off, because he “had turned it off” – a position in which Miller was “positive.” V21 6158 (24-25), 6165 (52-53). At that

5 point, Miller informed Nipper that he would inspect the area “to see what had hit”

Nipper, as the question was an open one. V21 6158 (25).

After a very short period of time – thirty seconds or so – Miller called down to Nipper and told his co-worker “a neutral had got” him (that is, a neutral wire instead of the main circuit line). V21 6159 (26, 28), 6170 (73), 6171-72 (77-78)

V25 7265 (30) & 7308 (Exh. 5). To have determined that a neutral wire or other conductor was the source of Nipper’s “hit,” Miller would have had to have utilized a voltage meter or a “Tic Tracer.” V27 7685-87, 7775; V20 5746-47 (54-57).3 Put slightly differently, determining whether a neutral wire or another source had been the source of live current that “hit” Nipper would invariably have required someone to ascend the ladder with the proper hand tools to determine the location of a line carrying current. V20 5745 (52), 5757 (100); V25 7287 (116-17).

At the same time as he informed Nipper of his findings, Miller was hit with a tremendous surge of electricity that necessitated Nipper and others kicking the ladder from under Miller, to break the circuit of electricity through his body. V21

3 A “tic tracer” (sometimes identified in the record as a voltage meter) was required equipment for Miller. V25 7264 (25-26). In his over a year with his company, Miller was never disciplined or otherwise criticized for having the incorrect, or not having the correct, equipment.

6 6159 (26-28), 6171 (77). When asked whether Miller knew the circuit was energized before climbing the ladder, Nipper straightforwardly explained “[h]e didn’t have the evidence.” V21 6165 (51-53) (emphasis added).

Neither Nipper nor Miller “had the evidence” as to what really happened.

In reality, the junction box was mislabeled. The box cover indicated that the circuit was controlled by breaker SP4 15, but the circuit was actually SP4 13. Worse, the circuit breaker panel schedule itself was also wrong, as it had Circuit 13 labeled as a “Spare” circuit that was not in use. V26 7448; V27 7686. There is no dispute that only the named Defendants could have mislabeled the box; the record below was completely devoid of evidence that Miller (or Nipper, for that matter) knew anything about those two errors.

Though this appeal is primarily about what Justin Miller knew and when he knew it, the events immediately after the electrocution bear some pause. After

Miller was electrocuted and medical personnel were summoned, site foreperson

Bobby Darnell entered the electrical room where the circuit breakers were and, upon exiting, told Nipper that the circuit that injured Miller was mislabeled. V21

6159 (27-28), 6167-68 (60-63). Darnell repeated to multiple personnel on scene that the electrical circuit was incorrectly labeled and identified. V21 6167-68 (60-

7 62). Mislabeling a panel schedule, with its obvious implications for safety, is a violation of the industry standard of care. V25 7125 (72:1-25).

Those findings and conclusions were soon confirmed by Turner Properties personnel. Responding to the incident were James “Tex” Walters, the Director of

Facility Operations, along with electricians Randy Duke and Tommy Byrd. V22

6249-50 (68-71);V20 5858(42-43). Walters, the senior Turner representative on the scene at that point, ordered the others to “safe it off,” an informal code to shut down the energized junction box, cap any exposed wires, and then re-energize the circuit. V22 6250 (70-72). Byrd climbed a ladder to determine which circuit it actually was that powered the junction box. He remained there atop the ladder while Duke went down the hall to the electrical room to the circuit breaker box.

V20 5860-61 (54-58); V20 5726-27 (33-37). One by one, Duke began shutting off the circuit breakers; Byrd would then test the junction box for current. V20 5860

(57); V20 5727 (35-36). If the junction remained energized, Duke would flip another breaker. Id. By this process of elimination, Duke confirmed that the circuit breaker controlling current to the junction box labeled SP4 15 was, in fact, SP4 13, which itself was mislabeled on the breaker panel as a “Spare.” V20 5861 (58);

5863 (67). Thus the junction box cover and the breaker panel schedule were

8 mislabeled, meaning “the circuit Justin Miller was working on was mislabeled.”

V20 5863(67-68). Duke made those conclusions clear to other Turner electricians onsite on the day of the incident, as well as his superiors then and thereafter. V20

5864 (70:21 - 72:18).

Based upon that conclusion, Duke used a pen to strike out the reference to

“Spare” on the panel schedule for Circuit 13 and corrected it to indicate “east conference” – the office where Miller was working and injured.

V20 5861-62 (60-63); & internal Exh. 12.4

4 Notably, that was not the first time such a potentially egregious error had been discovered; electricians Byrd and Duke had previously found other mislabeled electrical circuits on Turner’s campus. V20 5724 (22-23); V20 5853 (26-27). Evidence from other Turner maintenance staff, including maintenance

9 Immediately after the incident, the Turner Defendants’ security personnel intervened and ordered all construction crews to leave the scene. V21 5999-6000

(77-78); V20 5866 (80-81). Jan Hoover, the Project Manger for the site, soon ordered that caution tape and a “Do Not Enter” sign be placed over the office entry doors. V21 5999-6000 (77-79). Hours later, Hoover took a handful of very blurry photographs of the junction box and circuit breaker panel, well after Duke, Byrd and others had materially altered the condition of both the box and breaker panel.

V21 6000 (80), 6004 (94), 6013 (131). Hoover also soon informed the general contracting firm, and Turner Properties brass, to “[p]lease make sure the room is secured for no access.” V21 6009 (116); V29 8516.

For two weeks, no one except Turner personnel were allowed to enter the scene, effectively stunting any investigation of the incident. V20 5743-44 (41-47)

(“Gallagher was not allowed to go back in, say, the day of the incident or . . . within a short time frame after to determine exactly what happened”); V25 7265

(32), 7273 (64); V20 5790 (57-58), 5801 (102-03).5 That did not prevent the

manager Keith Turner, revealed prior knowledge of yet more mislabeled circuits on the property. V23 6522-23 (21-22). 5 In fact, Gallagher, Miller’s employer, did not perform any investigation because the Turner Defendants were supposedly doing so. V25 7273 (64:9-17).

10 “mislabeling” rumors from making the rounds, as to all involved. V20 5740 (30-

31). (“[I]t was talked about by everybody.”).

Nearly three weeks later, work on the project resumed, including the junction box where Miller was electrocuted (which, at the risk of being obvious, would require correctly identifying the appropriate circuit breaker to disable current to the circuit). V20 5802 (105-06). The delay seemed unnecessary, as determining what electrocuted Miller, and what circuit breaker might have been involved, should have taken minutes, not weeks. CV20 5744 (46-47) (estimating

10 or 15 minutes to determine the relevant details). The puzzling nature of the delay was compounded by the Turner Defendants’ complete lack of effort to determine what actually happened to cause the incident:

Q: Well, Gallagher and [the general contractor] were prevented from doing any work or doing anything at the scene for some period of time, correct?

A: That is correct.

Q: And, during that time, the Turner Defendants did not do anything to figure out exactly what Mr. Miller came in contact with; is that correct?

A: We did not.

V32 9250 (30:18-25) (30(b)(6) testimony).

11 When the project was complete, Gallagher employees completed “as built” drawings for the office to memorialize the electrical configuration that existed.

V20 5785 (39). Those drawings, perhaps unsurprisingly, confirmed that the junction box involved in Miler’s injury was controlled by Circuit 13, and not

Circuit 15. V20 5788 (52), 5790 (58-59). To assist in future work involving the junction box, the outside cover originally labeled SP4 15 was merely flipped over, and relabeled “SP4 13”:

V20 5748 (63), V20 5817 (166), V26 7449.

12 B. The Relevant Procedural Posture

Miller’s lawsuit followed, along with truly extensive discovery. Part of the record includes the Affidavit and Deposition of Leonard Greene, an expert in electrical engineering, electrical systems, and investigation of electrocution accidents. E.g., V26 7450-59. Most pertinently to the errors enumerated here,

Greene testified that Miller conformed with industry and expected standards for electrical workers approaching a potentially live juncture box.

Specifically, Greene explained that Miller took the required steps to de- energize the junction box: determining all possible sources of current; reviewing the box cover to identify the corollary circuit breaker; and locating and activating the governing breaker. V26 7450-59, ¶¶ 11, 14, 17, 28; V27 7682-85, 7689-90

(“standard of practice” “common throughout the industry” is “if an attempt has been made to de-energize the circuit and you have in the past found that method successful, then I know from my own experience in understanding human behavior, frequently an electrician will start working without testing”), 7775-79,

7793. Greene also explained that after Nipper was “hit” atop the ladder, Miller had a duty to investigate to determine the actual state of affairs, as well as determine if

13 there were alternative sources of current (besides the “shut off” circuit) that might need to be addressed. V27 7706.

Simply because Nipper received a shock did not mean the attempted de- energizing of the circuit had failed (or that he knew the attempt to de-energize the line had failed), since there were other possible sources of electrical current that might have been the source of a shock.

[I]f I had sent someone up the ladder, I had turned off the circuit breaker and they told me they got a shock, I would believe them that they got a shock, but I would believe also that I had turned off the power. I would want to go up and see if there’s another circuit that might be feeding that box or if there was another live conductor in the area that he could have come in contact with.

V27 7781:12-19, 7777-79 (when encountering an unexpected energized source, electrician should determine the existence and voltage of the source, to better to determine the best method to shut down any secondary or other energy source);

7793:11-20 (ambiguous situation required ascent of ladder to determine situation);

V25 7287 (117-18) (same).6

6 Greene, following a site visit and inspection years after the incident, also opined that the wiring for Circuits 13 and 15 had been tampered with in that the wiring that went to Circuit 13 on the day Miller was injured was subsequently moved to Circuit 15 to make it appear that the Circuit was never mislabeled in the first place. V27 7717-18.

14 Divisions appeared during the litigation as to which of the several

Defendants/Appellees were responsible for the circuit installation and labeling.

Turner, via corporate representative, pointed the finger at Inglett & Stubbs, the entity responsible for wiring and labeling during the initial construction of the building. V32 9251-52 (37-38). More specifically, the Turner Defendants testified that no changes were made between the original construction of the building and

Miller’s injury. V32 9252 (38-39). If that is true, then Inglett and Stubbs mislabeled the junction box and circuit breaker when they did the original installation. That said, the record also reflects evidence that even if that were the case, the Turner Defendants were obligated to confirm the accuracy of all panel schedules and circuit breakers at the time of the building’s initial occupancy; annually; or at any time following changes or modifications to the electrical systems. V27 7713-14, 7720, 7730, 7734-36, 7758.

Those disputes and others manifested in each Defendant seeking summary judgment on a variety of grounds, including first-year Torts favorites (1) failure to exercise due care as a matter of law; (2) assumption of the risk; (3) Miller’s equal or superior knowledge of the hazard; and (4) unique to Turner, lack of control over

15 the premises. V18 5193 – 5281 (Turner MSJ); V23 6722-71 (Inglett).7 Miller opposed those Motions, preserving the arguments he now raises in this Court. V26

7466-7544 (Opposition to Turner MSJ); V26 7561-7626 (Inglett).

Ultimately the trial court granted each of the Defendants’ Motions in a bit of a hodgepodge manner, drawing from aspects of each of the raised grounds.

Under the above cases, Plaintiff’s actions in disregarding Mr. Nipper’s warning and proceeding to work on a line that he had reason to believe was live were the sole proximate cause of his injuries. Moreover, while Plaintiff has argued that the circuit was mislabeled, Plaintiff’s decision to ascend the ladder and continue working without confirming that the line was de- energized renders immaterial any contention that the circuit was mislabeled.

V31 9051. Whether characterized as proximate cause, sole proximate cause, failure to exercise due care, or another label, the trial court improperly credited and weighed the evidence at summary judgment, when material disputes of fact demanded a jury’s resolution of the differing takes on the available proof.

II. ENUMERATIONS OF ERROR

The trial court erred, most generally, in granting the Defendants’ Motions for Summary Judgment. Broken out, the trial court improperly construed the

7 In separate briefing below, defendant Leapley Construction sought and received summary judgment, based upon the worker’s compensation bar. Miller does not challenge that ruling as part of this appeal

16 evidence in Defendants’ favor (or at least, failed to credit Plaintiff’s evidence).

Secondly, the trial court improperly rejected Plaintiff’s expert opinion evidence as to Miller’s compliance with the standard of care under the circumstances.8

III. ARGUMENT AND CITATION TO AUTHORITIES

A. The Governing Standard of Review

Appeals from a grant of summary judgment are reviewed de novo, which means that the traditional summary judgment framework is in play. As such, trial and appellate courts are obliged to “view the pleadings and evidence in the light most favorable to the nonmoving party, accept the credibility of the evidence upon which the nonmoving party relies, afford that evidence as much weight as it reasonably can bear, and to the extent that the moving party points to conflicting evidence, discredit that evidence for purposes of the motion.” Sanders v. Riley,

296 Ga. 693, 700 n.5 (2015) (internal punctuation omitted; emphasis added);

Layfield v. Dep’t of Transportation, 280 Ga. 848, 850 (2006) (“Furthermore, while a movant’s evidence is to be carefully scrutinized, a respondent’s evidence is to be treated with indulgence.”) (internal citations omitted).

8 Plaintiff preserved these enumerations of error in the extensive summary judgment briefing at the trial court level, as noted.

17 Given the importance of a jury’s ultimate decision on disputed facts, summary judgment is (and should be) a high hurdle, and especially so in tort cases like this one. “Negligence is not susceptible to summary adjudication except where the evidence is plain, palpable, and indisputable that the respondent cannot present any slight evidence on each essential element of the action in rebuttal to create a jury issue.” Hite v. Anderson, 284 Ga. App. 156, 159 (2007) (emphasis added); Ontario Sewing Mach. Co. v. Smith, 275 Ga. 683, 687 (2002) (same principle). Given those legal guidelines, the trial court’s weighing and parsing of the evidence was erroneous.

B. The Trial Court Incorrectly Weighed and Interpreted the Evidence

What is “plain” in proximate cause disputes comprises two distinct considerations:

Proximate cause is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy and precedent. [W]hether proximate cause exists in a given case is a mixed question of law and fact. It requires both fact-finding in the “what happened” sense, and an evaluation of whether the facts measure up to the legal standard set by precedent. Ordinarily, both determinations are most appropriately made by a jury upon appropriate instructions from the judge. The decision may be made by the trial judge or appellate court only if reasonable persons could not differ as to both the relevant facts and the evaluative application of legal standards to the facts.

18 Atlanta Affordable Hous. Fund L.P. v. Brown, 253 Ga. App. 286, 288 (2002)

(emphasis added). Here, there are factual disputes (particularly involving Miller’s own actions) and different potential outcomes on the applications of those facts.

Here, the trial court relied upon a line of cases9 for the proposition that

“[w]hen one is injured by electricity while working near power lines that are known to be energized, it is clear that a plaintiff is unable to establish that a defendant had knowledge of the hazard that is superior to his own.” V31 9049-50

(emphasis added). To be fair, the trial court did cite to a contrary line of authority recognizing that “summary judgment is inappropriately granted where the Plaintiff was either unaware that electrical lines were nearby or was unsure whether the line was energized.” V31 9050 (emphasis added).10

Construing this record as closer to the former line of authority, the trial court granted summary judgment:

9 See V31 9050-51 (citing S. Orchard Supply v. Boyer, 221 Ga. App. 626 (1996), Callaway v. Crown Crafts, Inc., 223 Ga. App. 297 (1996), and Leonardson v. Ga. Power Co., 210 Ga. App. 574 (1993)). 10 The Order referred to Bossard v. Atlanta N’hood Dev. P’Ship, Inc., 254 Ga. App 799 (2002) and Williams v. NICO Indus., 157 Ga. App. 814 (1981).

19 has argued that the circuit was mislabeled, Plaintiff’s decision to ascend the ladder and continue working without confirming that the line was de- energized renders immaterial any contention that the circuit was mislabeled.

V31 9051 (emphasis added). That conclusion ignored substantial record evidence as to Miller’s very purposes and actions in ascending the ladder. For one, there is no record evidence that Miller “ignored a warning” so that he could “continue working.” Instead, and certainly as must be construed as summary judgment, the evidence was that Miller believed in his own mind – was “positive” that he has cut off the electricity to the junction box, since he had activated the correct breaker associated with the circuit. E.g., V21 6158 (23-25). The trial court’s takeaway – that Miller continued working, regardless of the “known” danger – flatly ignores the only eyewitness testimony on the point:

Q: All right. And then [Miller] – After he told you that he had turned the circuit breaker off, then what did he say or do?

A: He went up to see what --- [objection ] – what had hit me.

Q: And that’s what he told you he was going to do?

A: Yes, sir.

Q: Did he say – Did he say that he was going up there to complete the work?

A: No.

Q: Or did he say he was going up there to do any work of any kind?

A: No. [Objection]

Q: All he said is that he was going to go up there and see –

A: -- what hit me. [Comment]. He was going up to see what hit me.

Q: Okay. So I want to cover that again. He didn’t tell you he was going up there to finish the project or do any work?

A: No, sir. [Objection].

Q: All right. What happened after that? Did Justin go up the ladder?

A: Yes, sir.

Q: And then what happened?

A: He told me that a neutral had got me. And just instantly his knees buckled on him . . .

V21 6158-59 (25:10 – 26:22) (emphasis added).

To emphasize the point, Nipper explained that Miller’s entire assessment of the situation lasted only seconds, and was not part of some effort to continue working in the face of a known danger:

Q: I’m sure you didn’t time it out how long Justin was up there when he went up the ladder. I want you to re-cover that with you a little bit. So he goes – Justin went up the ladder. And can you estimate how long he was up there before he got shocked?

A: A very short time, very short. He was just up there long enough to say I got hit with a neutral, and then I seen his knees buckle. Less than a minute, maybe thirty seconds or so.

Q: Okay. And when he – Was he up there long enough to do any work up there?

A: No, sir.

V21 6159 (28:14-25), 6162 (38-39) (“He didn’t say nothing about he was going up to work. He was just going to see what got a hold of me”; “He was going up to see what shocked me. He didn’t go up to work. He went up to see what had got a hold of me.”). Far from an oblivious or careless worker determined to plow through a known danger, Miller was attempting to assess alternative sources of any danger, since he was “positive” ‘the correct circuit breaker had been activated.11 The trial

11 That makes all the difference as compared to the plaintiffs in Boyer, 221 Ga. App. at 626, who were taking actions known to be dangerous, but not keeping a lookout when a highly-conductive metal pipe was being raised near knowingly- energized power lines. So to these facts are different than those of Callaway (which aside from being nonprecedential given Judge Beasley’s special concurrence), where a worker continued to assume the risk of working around a live wire by lowering a metal gutter near those lines. 223 Ga. App. at 298. Finally, Leonardson is no greater help, since that case, too, involved an admission of negligence (and unsurprisingly so, since the plaintiff admitted knowledge of the dangers, and that no efforts were made to de-energize the live line in the vicinity of his work space). N. Ga. EMC v. Webb, 246 Ga. App. 316, 320 (2000) (distinguishing Leonardson on admitted liability grounds). Just as importantly,

22 court’s contrary read on the evidence hardly grants the necessary “indulgence” given that evidence at summary judgment.12

And legally, the trial court’s conclusion that Miller was the sole proximate cause of his injuries appears to mean that the basis for decision was Miller’s alleged “failure to use ordinary care for his own safety.” See, e.g., Webb, 246 Ga.

App. at 319; accord V31 9051 (citing cases “in determining whether the Plaintiff exercised due care as a matter of law”).

Generally, of course, questions of contributory negligence and proximate cause are for the jury. Here, there is direct evidence as to Miller’s compliance with the standard of care – that is, the reasonability of his actions when confronting a potentially energized line. V26 7454-59 ¶¶ 11, 14, 17, 28; V27 7682-85, 7689-90.

In the situation presented him, there is a clash of evidence as to what Miller supposedly did and did not do wrong. There is record evidence to support the argument that Miller was positive about switching the circuit breaker that matched

none of those decisions involved some pinpoint act of alleged negligence like the mislabeling at issue here. 12 Tellingly, after the litigation ensued, the Turner Defendants prepared a draft Affidavit for Nipper’s execution. The Affidavit was riddled with overreaches as to Miller’s purported actions, which forced Nipper to call out the errors in his deposition. V21 6162 (38-39).

23 the label on the junction box, as the standard of care required. And even after

Nipper complained of a shock, Miller acted to assess and determine the existence and source of that potential danger; there is nothing unreasonable about that, and hardly sufficient to proclaim Miller’s actions the sole source of his injuries.

Simply because Miller was in the electrical trade does not mean that every task he undertook was essentially a concession of strict comparative liability. Webb, 246

Ga. App. at 319-20 (jury questions as to contributory negligence when plaintiffs

“experienced linemen . . . aware of the risk of electric shock when working” were injured on the job).

The evidence further revealed that the only way Miller could have determined if the “neutral” had been the source of Nipper’s shock would be to utilize a tool designed to determine the existence of a live line (a “tic tracer” or voltage meter) – hardly the type of reckless approach that would paint Miller as the responsible party as a matter of law. E.g., V27 7775. Instead, the mislabeling obviously played a role and likely the predominant one. The evidence construed in

Miller’s favor was that the junction box was mislabeled, as was the breaker

24 schedule, causing Miller to activate the incorrect breaker.13 V27 7694 (entitled to rely on circuit schedules in commercial properties, given the more rigorous standards involved). When Nipper was “hit,” Miller – based upon his “positive” belief that the circuit was de-energized – did what was, according to Plaintiff’s expert, reasonable under the circumstances. V27 7778-79 (investigation of possible alternative sources of current was necessary), 7781, 7793 (must identify energy source, before efforts to shut down source can occur); 7794 (same).

Given the strong evidence of mislabeling (confirmed by contemporaneous testing by Turner employees, and memorialized in as-built drawings), a jury could easily conclude that the deviation from the standard of care created a foreseeable danger that someone would be electrocuted, based upon the misidentification. A jury could also conclude that if the Defendants had originally labeled the circuits correctly, or done so as part of an inspection that industry standard commanded, then there never would have been an incident in the first place (really, it is hard to imagine a scenario in which the mislabeling would not be a cause in fact, and proximate cause, of Miller’s injuries).

13 That Nipper did not test the line before starting his labors is of no relevancy as to Miller’s potential negligence.

25 Particularly puzzling (and incorrect) is the trial court’s conclusion that the extensive mislabeling evidence was “immaterial” given “Plaintiff’s decision to ascend the ladder and continue working without confirming that the line was de- energized.” V31 9051. For one, Miller ascended the ladder (believing he had turned off the circuit) to assess for other possible dangers, not to “continue working” in the face of a live line. Second, the court’s conclusion is something of a non sequitur, as the reason Miller ascended the ladder in the first place is because the mislabeling of the junction box and panel schedule, which rendered the situation out of the ordinary. Miller, once he learned that Nipper was “hit,” had duties to investigate – after all, that would be the only way to assess for hidden, unknown dangers.14 E.g., V25 7278 (81-82) (even after Nipper was shocked, a necessary step would be going up ladder to determine if line or other conductor was energized). There is nothing negligent about ascending the ladder after

Nipper’s complaint to see what was going on. V21 6160 (32-33) (if Circuit 15’s

14 That is no mere lawyer’s claim as to what had to happen next – that is what the Turner Defendants did when they arrived at the scene in the immediate aftermath of Miller’s electrocution. To “safe off” the circuit, a Turner electrician ascended the ladder and checked the circuit for current, remaining there while another electrician went to the breaker room to methodically switch breaker after breaker, in an effort to determine which circuit powered the junction box. V20 5860-61 (54-58); V20 5726 (31-32).

26 breaker was “off,” then next investigatory step would be to go up and test for current). That is what Miller did, and a jury should determine whether that was so outside the available range of reasonable options that his claims are barred – not the trial court, and not this Court.

C. The Trial Court Erroneously Discredited Expert Testimony from Leonard Greene

The trial court’s treatment of the expert opinion evidence was also erroneous. In toto, the trial court disregarded dozens of pages of opinion evidence as to the propriety of Miller’s actions as measured by industry standards by concluding that:

Plaintiff has advanced the expert testimony of Leonard Greene who contends that Plaintiff exercised due care for his own safety by taking appropriate steps to de-energize the circuit before beginning work. Greene also opines that Plaintiff reasonably relied on the labeling of the circuit and proceeded under the reasonable belief that the line was not energized. However, Mr. Green also acknowledges in his deposition that Plaintiff should have known something was wrong based upon the shock experienced by Mr. Nipper and that Plaintiff therefore knew that the line could be energized (Greene deposition, page 48-49). Mr. Greene’s testimony therefore fails to create a question of fact and confirms the proximate causation of Plaintiff’s actions.

V31 9051. Though not perfectly clear, it appears that the trial court “canceled out” the differing portions of Greene’s expert opinions. If that was the analytical path

27 followed, it was an erroneous one, since the so-called “Prophecy Rule” does not apply to expert testimony. Thompson v. Ezor, 272 Ga. 849, 853 (2000) (“[T]he self-contradictory testimony rule of Prophecy Corp. v. Charles Rossignol, Inc.,[] does not apply to the testimony of a non-party expert witness.”).

Moreover, if that was not the ultimate rationale, the other record evidence created issues of fact as to Miller’s actions, and the cause of his injuries. The trial court seemingly overlooked the follow-on testimony that Greene provided: that even if Miller should have been put on alert by Nipper’s claim of a “hit,” that his actions still were proper (i.e., non-negligent):

Q: [ ] Miller knew what he had done or not done to deenergize the wires, and he knew that there was something up there that was energized, because Nipper had gotten shocked. . . . Would you agree with that?

A: I would say that Miller knew something was wrong, because Nipper should not have gotten shocked. And if he takes Nipper’s word at face value, he realizes that something’s wrong and feels a duty to figure out what it is.

V27 7709 (48:18-23). That testimony, relied on by the trial court in its dispositive

Order, was followed by several discussions of why Miller’s actions met the prevailing standard of care. 7707:22 – 7708:12 (after realizing that Nipper was shocked “I think your assumption is that yes, it’s energized, but I have to check it

28 out and see what’s going on.”); 77778-79 (confirmation of current’s existence and source was necessary to ultimately de-energize circuit), 7781, 7793 (must identify energy source, before efforts to shut down source can occur); 7794 (same).

The evidence was that Miller had a range of options available to him, after learning of Nipper’s “hit,” thus raising a classic jury question as to whether his chosen path was contained in that reasonable range of options. Accord V27

7710:22 – 7712:6 (outlining range of available options), 7805-07 (same).

To be clear, Greene’s testimony is alone enough to create a material issue of fact. “[E]ven though summary judgment may not be granted to a plaintiff based solely upon opinion evidence . . . opinion evidence presented by the respondent to a motion is sufficient to create a jury issue.” Brookview Holdings, LLC v. Suarez,

285 Ga. App. 90, 96 (2007) (internal citations omitted). While his opinions are obviously subject to cross-examination, the trial court was not free to disregard the import of his opinions regarding Miller’s actions, or the implications of the

Defendants’ mislabeling of Circuit 13 and failure to remedy that oversight.

CONCLUSION

This case is a sparking example of why questions of reasonability are almost always reserved for the collective experiential knowledge of a jury. Miller

29 unquestionably did what many in his circumstance would do, in identifying the

Circuit apparently controlling the junction box that was the subject of his work.

He then activated the matching breaker, and returned to find his coworker initiating the job they both were assigned. When questions arose about whether other sources of current might be in play, Miller sought to investigate – and nothing more (and certainly not to “continue working” as the court concluded in shoehorning this matter into the existing caselaw). The trial court’s attribution of more ignorance, more carelessness, and more wrongdoing than the record would support was error. Given the evidence available, and the governing summary judgment standards, the grant of the Defendants’ Motions was incorrect. Miller asks that this Court reverse and remand for trial.

Respectfully submitted this 11th day of May, 2016.

/s/ Darren Summerville Darren Summerville Georgia Bar No. 691978

30 CERTIFICATE OF SERVICE

I hereby certify that I have filed a copy of this Initial Merits Brief with the

Court’s eFile system, making it available to the Court and Clerk. I further certify that I have this day served a true and correct copy of the foregoing document to all parties of record by placing same in the United States Mail with adequate postage affixed thereto addressed as follows:

Edward H. Lindsey, Jr., Esq. Michael A. Melonakos, Esq. Goodman, McGuffey, Lindsey & Johnson, LLP 3340 Peachtree Road NE Suite 2100 Atlanta, GA 30326-1084

Daniel S. Reinhardt, Esq. Courtney E. Ferrell, Esq. Troutman Sanders, LLP 600 Peachtree Street NE Suite 5200 Atlanta, GA 30308-2216

Christopher E. Penna, Esq. Penna & Mendicino 1902 Old Covington Highway Conyers, GA 30012-3920

In addition, to ensure immediate receipt, I have also served opposing counsel with a PDF copy of this Motion via email, to [email protected];

31 [email protected]; [email protected]; and [email protected].

Respectfully submitted this 11th day of May, 2016.

/s/ Darren Summerville Darren Summerville Georgia Bar No. 691978

32 ORAL ARGUMENT

<< Back to Table of Contents

APPELLATE ORAL ARGUMENTS

MICHAEL B. TERRY BONDURANT, MIXSON & ELMORE, LLP 1201 West Peachtree Street, NW Suite 3900 Atlanta, GA 30309 404-881-4100 [email protected]

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APPELLATE ORAL ARGUMENTS

MICHAEL B. TERRY BONDURANT, MIXSON & ELMORE, LLP 1201 West Peachtree Street, NW Suite 3900 Atlanta, GA 30309 404-881-4100 [email protected]

TABLE OF CONTENTS

THE TEN COMMANDMENTS OF PREPARING FOR ORAL ARGUMENT ...... 1

1. Know Your Court ...... 1

2. Know Your Judges or Justices ...... 2

3. Know Your Material ...... 4

4. Know Your Technology ...... 4

5. Know Yourself ...... 5

6. Organize Your Time ...... 6

7. Prepare for Questions ...... 7

8. Practice ...... 7

9. Remove Unnecessary Words ...... 8

10. Practice Again ...... 8

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EFFECTIVE ORAL ADVOCACY

This paper addresses how to prepare for a complex oral argument to a trial or appellate court. It is, to a great degree, not specific to the appellate courts of Georgia. Instead, the suggestions apply to appellate oral argument in any court (and to a great degree to oral arguments in trial courts as well).

In assisting our associates to prepare for their first complex oral argument, I have developed a ten-step process. I have unimaginatively labeled those steps “The Ten

Commandments of Preparing for Oral Argument.” Each of the Ten Commandments is explained below. Although some are primarily directed towards the attorney preparing for his or her first appellate oral argument, others would be helpful to attorneys with some appellate experience preparing for a first argument in the appellate courts of Georgia. Hopefully, even the more experienced Georgia appellate lawyers will find something of worth in the Ten Commandments.

THE TEN COMMANDMENTS OF PREPARING FOR ORAL ARGUMENT

1. Know Your Court 2. Know Your Judges or Justices 3. Know Your Material 4. Know Your Technology 5. Know Yourself 6. Organize Your Time 7. Prepare for Questions 8. Practice 9. Remove Unnecessary Words 10. Practice Again

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1. Know Your Court

Proper preparation for oral argument requires a thorough knowledge of the rules and procedures, as well as the customs, of the court in which the argument will occur. To avoid embarrassing or harmful moments, understanding sign-in, timing, sequence of arguments, modes of address, norms of dress and decorum are crucial. Even knowing in advance of the day of argument where to park and how to find the courtroom is important.1 A thorough understanding of these matters will not only avoid unfortunate missteps: it will increase your confidence level going into the argument.

The first step in this process is to read the court rules governing oral argument. The second step is to attend and observe oral arguments in that court in advance of your own argument. Finally, discuss with practitioners experienced in that court any peculiarities with which they are familiar.

2. Know Your Judges or Justices

In addition to understanding the court in which you are preparing to argue, it is important to become familiar with the individual judges or justices before whom you will be arguing. In the Supreme Court of Georgia, in the absence of a recusal, it is the same seven justices for each argument. In the Court of Appeals, you receive the identity of panel members upon docketing

1 The Courtrooms of both the Supreme Court and the Court of Appeals are located on the Sixth Floor of the State Judicial Building at 40 Mitchell Street, Atlanta, Georgia 30334. If you look up the address of the Court of Appeals online, it will come up as 47 Trinity Avenue S.W., Suite 501, Atlanta, GA 30334. That is the address of the Court of Appeals Clerk’s office, which is in a different building than the courtroom. Similarly, if you look up the address of the Supreme Court, it will come up as 244 Washington Street, Room 572, State Office Annex Building, Atlanta, Georgia 30334. That is the address of the Supreme Court Clerk’s office, which is in a different building from the courtroom. Don’t go to the Clerk’s office for your oral argument!

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(quite different from the federal practice of disclosing the panel members shortly before argument).

You should learn the professional background of each judge. For example, if the appellate judge was a trial judge, that can influence her understanding of jury dynamics, trial procedures and the importance of the harmless error doctrine in a way that may not be shared by appellate judges with no experience on the trial bench. If your appellate judge was a legislator, again they bring a different set of experiences and viewpoints to the appellate bench. They may exhibit either greater or less deference to the General Assembly. The substantive law areas in which the appellate judge practiced are also important to know. A judge who has practiced extensively in the subject matter at issue in your case may have preconceived ideas arising out of their experience that either need to be addressed or taken advantage of. Certainly they will understand the vocabulary and be more familiar with the concepts.

It is also important to locate and read opinions that the judges on your panel have written on the issues in your case. Of course, in the Supreme Court, that would include every recent

Supreme Court opinion on point, which you should have read anyway.2 But in the Court of

Appeals, it is important to read what each judge on the panel has written on point. This should actually occur long before oral argument, in drafting the brief. To the extent possible, it can be useful to rely on cases written by your panel members for every disputed legal issue in the case.

Judges, like everyone else, like to be quoted and relied upon, and are more likely to accept a legal principal that you show them they have accepted before. They also don’t want to be perceived as being inconsistent.

2 See Commandment 3, below.

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The practice of relying as much as possible on opinions written by your panel members can be helpful both in the briefs and at oral argument.

3. Know Your Material

This commandment may be the most self-evident. It is absolutely crucial that you master the trial record in your case. You should know where in the record key evidence was tendered, admitted or excluded. You should know which witness or document proved (or disproved) the elements of the claim. You should know where the arguments you advance on appeal were preserved below.

It is also crucial that you master the substantive and procedural law controlling the issues on appeal. You should know the controlling statutes and be familiar with the most important cases. This includes not only the law supporting your position, but also that supporting your opponent. You should study not only the appellate briefs, but also trial court briefs. Because of draconian page limitations in the appellate courts, you may find a lot more law with which you should be familiar by reading their summary judgment or new trial briefs from the trial court.

4. Know Your Technology

The Georgia appellate courtrooms are both equipped with media presentation technology.

There are document cameras built-in to the podiums, and the podiums are equipped for connection to a laptop with PowerPoint or other presentation software. There is a VCR and a

DVD player. All of these devices allow presentation on monitors built into the bench (and onto each counsel table).

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If you intend to use any of the courtroom technology, it is important that you familiarize yourself with it in advance.3 You should try your presentation on the actual equipment. Make sure it works. Make sure you can integrate it smoothly into your presentation.4 The courts do not allow extra time for loading, booting-up, focusing or de-bugging the equipment or your presentation. The clerk’s offices for both courts are extremely accommodating to allow attorneys into the courtrooms on non-argument days and to assist you in working with the equipment. Take advantage of that generosity and try out the equipment before the day of your argument. The equipment is also available for the 30 minutes prior to the start of each argument calendar.5

5. Know Yourself

In preparing for your first oral argument, it is of immense value to attend oral arguments and watch others argue. The Supreme Court of Georgia actually has recent arguments available online.6 In particular, it is helpful to watch experienced and expert appellate advocates argue cases. You can learn much from their style and technique.

At the same time, it is a mistake to attempt to copy the argument style of even the most accomplished oral advocate. The argument style of experienced advocates is generally something that has developed and evolved over years, if not decades. It may evidence personal

3 See Commandments 9 and 10.

4 “It is important to note that media presentations will neither extend the time allotted for oral argument, nor will they be allowed to detract from the dignity of the Court’s proceedings.” https://www.gasupreme.us/event-directory/ . 5 Id.

6 https://www.gasupreme.us/court-information/oral-arguments/

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familiarity with the judges or justices. It may depend upon years of established credibility. An attempt to copy wholesale someone else’s style will ring false, and may offend. It will not be your own most effective style.

Your argument style must reflect your personality. It must reflect your strengths as an attorney and oral advocate. It must also reflect the realities of your case. Learn from watching others, but synthesize your own style using what seems comfortable and credible for you. If you feel like you are acting a part, that is not your style.

6. Organize Your Time

Time management is crucial for appellate arguments. In the Supreme Court, each side gets only 20 minutes, except in domestic relations cases where each side gets only 10 minutes.

The Court of Appeals allows 15 minutes per side. Given such short time limits to address the issues in your appeal, you must carefully plan your time.

The first thing to understand is that you don’t need to argue every issue addressed in the briefs. The courts are used to deciding cases with no argument at all. They are perfectly capable of addressing issues not mentioned at oral argument. Although you must be prepared to address in oral argument every material issue raised in the briefs in case your opponent or the court brings it up, you should select one or two issues to affirmatively present to the court. This is, of course, easier to do if you are the appellant.

You should allocate time to each issue you intend to argue, and be prepared to transition to the next issue at the right time in the argument. You should practice the transitions. Of course, the court is ultimately in charge of your use of time. If the court wants to keep you on a single topic the whole time, you must honor that preference. You should try to transition when

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the time is right, but if the court insists on staying on any point, you must do it. After all, the main point of the oral argument is to satisfy the court’s concerns.

7. Prepare for Questions

It is not enough to have a “canned” presentation. You must be prepared to answer questions from the bench. Both Georgia appellate courts have become much more active with questions over the past few years. Thus, preparing for questions is more important than it has ever been. This is how I go about it.

First, I make two lists of questions. I make a list of the most likely questions. And I make a list of the questions that seem the toughest to answer – the questions that make me worry.

I ask the other attorneys working on the case to contribute to both lists. I usually run the facts of the case by a couple of other people and add to the lists any questions they ask.

Then I write an answer to each question. I edit the answers and practice them out loud. I run them by other lawyers to obtain their reactions. I continue to refine and revise these answers until the day of the argument.

8. Practice

It is very helpful to practice your argument. Whether done as a full-blown moot court with prepared “judges,” or simply practicing your argument out loud alone in your office, it is extremely useful to say the words out loud. Arguments that may read well may sound stilted or artificial when spoken aloud. Outlines, notes and answers to questions should be edited to

“sound” right when spoken aloud.

If the case is large or complex enough, a real moot court is best. Of course, not every case has enough at stake to justify the time and expense of a real moot court. But a good practice

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can be held with just your legal assistant or your spouse serving as the “court.” A video camera also can be very useful.

A timed run-through is also important to help with time management. An argument or answer may take more time than you think. It is also useful to work on transitioning from one argument to another.

9. Remove Unnecessary Words

After your practice (and at all times during your preparation) you should look to remove unnecessary words both from your planned presentation and from your answers to questions.

Unnecessary words eat up precious time and distract from the point of your argument. Phrases such as “as I mentioned earlier” or “as we argued in our brief” add little to the argument but consume time. Most adjectives can be removed. The courts tend to disregard most adjectives as irrelevant attorney opinion and vouching. State what happened, not your opinion of it. It is not only shorter, it is ultimately more persuasive. It conveys to the court the impression that you need only the unvarnished objective facts (or description of a case) to win.

Edit your spoken remarks as if they were a brief you are trying to cut to the page limits, and you will both save time and make a more persuasive argument.

10. Practice Again

The importance of practice cannot be overstated. A final moot court or practice session after all of the “fine-tuning” of your argument builds confidence and leads to a better oral argument.

1402605.1 8 APPENDIX

<< Back to Table of Contents ICLE BOARD

NAME POSITION TERM EXPIRES

Ms. Carol V. Clark Member 2022

Mr. Harold T. Daniel, Jr. Member 2022

Ms. Laverne Lewis Gaskins Member 2021

Hon. Kenneth Bryant Hodges, III Member 2020

Ms. Allegra J. Lawrence Member 2022

Mr. C. James McCallar, Jr. Member 2021

Mrs. Jennifer Campbell Mock Member 2020

Mr. Kenneth L. Shigley Member 2020

Mr. A. James Elliott Emory University 2020

Mr. Buddy M. Mears John Marshall 2020

Dean Daisy Hurst Floyd Mercer University 2020

Mr. Cassady Vaughn Brewer Georgia State University 2020

Ms. Carol Ellis Morgan University of Georgia 2020

Hon. John J. Ellington Liaison 2020

Mr. Jeffrey Reese Davis Staff Liaison 2020

Ms. Michelle E. West Staff Liaison 2020 GEORGIA MANDATORY CLE FACT SHEET

Every “active” attorney in Georgia must attend 12 “approved” CLE hours of instruction annually, with one of the CLE hours being in the area of legal ethics and one of the CLE hours being in the area of professionalism. Furthermore, any attorney who appears as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case in 1990 or in any subsequent calendar year, must complete for such year a minimum of three hours of continuing legal education activity in the area of trial practice. These trial practice hours are included in, and not in addition to, the 12 hour requirement. ICLE is an “accredited” provider of “approved” CLE instruction.

Excess creditable CLE hours (i.e., over 12) earned in one CY may be carried over into the next succeeding CY. Excess ethics and professionalism credits may be carried over for two years. Excess trial practice hours may be carried over for one year. A portion of your ICLE name tag is your ATTENDANCE CONFIRMATION which indicates the program name, date, amount paid, CLE hours (including ethics, professionalism and trial practice, if any) and should be retained for your personal CLE and tax records. DO NOT SEND THIS CARD TO THE COMMISSION!

ICLE will electronically transmit computerized CLE attendance records directly into the Official State Bar Membership computer records for recording on the attendee’s Bar record. Attendees at ICLE programs need do nothing more as their attendance will be recorded in their Bar record.

Should you need CLE credit in a state other than Georgia, please inquire as to the procedure at the registration desk. ICLE does not guarantee credit in any state other than Georgia. If you have any questions concerning attendance credit at ICLE seminars, please call: 678-529-6688 Follow ICLE on Social Media facebook.com/iclega linkedin.com/company/iclega twitter.com/iclega

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