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Home | Case-Filing | Appealing a Case in the Second Circuit | How to Appeal an Agency Case


Briefing schedule

 

Within 14 days of the date the petitioner receives the certified record, the petitioner must notify the Court in writing of the date by which the petitioner's brief will be filed. Unless the case involves a voluminous transcript, the petitioner must select a filing date that is within 91 days of receipt of the certified record. Petitioner's proposed filing date will be so-ordered unless the Court determines the selected filing date is unacceptable. See LR 31.1(a)(1). In a counseled agency appeal, when the Court orders a petitioner's briefing deadline pursuant to a scheduling notification, the order will specify that the appeal is dismissed effective the due date if the brief is not filed by that date. A motion to extend the time to file the brief or to seek other relief will not toll the previously ordered filing date. See LRs 27.1(f)(1); cf. RLI Insurance Co. v. JDJ Marine, Inc., 716 F.3d 41, 43-45 (2d Cir. 2013). If a case is dismissed for failure to timely file a brief, a party who moves to reinstate the appeal must file the motion within 14 days of the date of the order dismissing the appeal and must attach the party's brief as an exhibit to the motion. See LR 27.1(i).

 

Within 14 days of receipt of petitioner's brief or the last petitioner's brief in a consolidated or multi-petitioner case, the respondent must notify the Court in writing of the date by which the respondent's brief will be filed. Unless the case involves a voluminous transcript, the respondent must select a filing date that is within 91 days of receipt of the last petitioner's brief. Respondent's proposed filing date will be so-ordered unless the Court determines the selected filing date is unacceptable. See LR 31.2(a)(2). When the Court orders an appellee's briefing deadline pursuant to a scheduling notification, the order will specify that the appeal will proceed to a merits panel for determination forthwith if the brief is not filed by the due date. Appellee will be required to file a motion for permission to file the brief and appear at oral argument. A motion to extend the time to file the brief or to seek other relief will not toll the previously ordered filing date. See LRs 27.1(f)(1); cf. RLI Insurance Co., 716 F.3d at 43-45.

 

If a cross-petition has been filed, within 14 days of receipt of the last cross-petitioner's brief, the petitioner-cross-respondent must notify the Court in writing of the date by which the petitioner-cross-respondent's response brief will be due. The petitioner-cross-respondent must select a filing date that is within 60 days of receipt of the last cross-petitioner's brief.

 

Absent extraordinary circumstances, a petitioner or respondent's failure to submit a scheduling letter will result in a briefing deadline of 40 days from the date the certified record is filed. A respondent's or petitioner-cross-respondent's failure to submit a scheduling letter will result in a briefing deadline of 30 days from the date the petitioner's or cross-petitioner's brief is filed. If a reply brief is filed, it must be served and filed within 14 days after service of the last respondent's brief (or cross-respondent's brief if a crosspetition has been filed) but not less than 3 days before argument unless the Court allows a later filing. See LR 31.2(a)(2).

 

A party's filing of a potentially dispositive motion, a motion for IFP status, or a FRAP 42 stipulation for dismissal without prejudice at any time prior to one of the briefing schedule deadlines set forth above tolls the time period for the filing of scheduling notifications and briefs until the Court decides the motion or the case is reinstated.

 

An extension of time to file a brief will not be granted in the absence of a most extraordinary circumstance.

 

 

Last modified at 4/1/2014