III. C.A.M.P. RELATED FORMS

(A.) Form C (Rev. April 2006)
(B.) Form C-A (Rev. April 2006)
(C.) Form D (Rev. April 2005)
(D.) Form T-1080
(E.) Stipulation for Withdrawal Forms

1. Stipulation Withdrawing Appeal for Lack of 54(b) Certification
2. Stipulation Withdrawing Appeal Pursuant to Rule 42(b)
3. Stipulation Withdrawing Petition for Review Pursuant to Rule 42(b)
4. Stipulation Withdrawing Appeal Without Prejudice With Leave
    to Reactivate
5. Stipulation Withdrawing Petition for Review from active consideration,
    Without Prejudice, With Leave to Reactivate.

 

CIVIL APPEAL MANAGEMENT PLAN FAQ

(a.) What happens procedurally if a case settles as a result of the mediation?
(b.) What happens procedurally if a case does not settle after mediation?

CIVIL APPEAL MANAGEMENT PLAN OVERVIEW

I. Civil Appeal Management Plan (C.A.M.P.) background

A. History

1. The Civil Appeals Management Plan (C.A.M.P.) was inaugurated in the Second Circuit on April 15, 1974. It was then in the vanguard of the Alternative Dispute Resolution movement.

2. The Office of the Staff Counsel conducts mediation of civil appeals under the Civil Appeals Management Plan of the Second Circuit pursuant to Federal Rule of Appellate Procedure 33. The Court’s mediation process provides confidential, risk-free opportunities for parties to resolve their dispute with the help of a neutral third party. The mediations are conducted by the Staff Counsel who are full-time employees of the 2nd Circuit and have extensive mediation and appellate practice training and experience.

B. Purpose

C.A.M.P. promotes speedy and deliberate justice in civil appeals by:

1. providing a forum for amicable resolution of disputes that fosters settlement,

2. allowing parties to arrange for creative and flexible solutions in an informal and private setting, and

3.expediting processing of civil appeals by effecting tight scheduling controls and reducing motion practice.

C. Authority

1. The authority for administering C.A.M.P. is pursuant to Rule 33 of the Federal Rules of Appellate Procedure (FRAP), and

2. The Local Rules of the Second Circuit: Part C to the Local Rules (The Civil Appeals Management Plan) and Part D to the Local Rules (The Guidelines for Conduct of Pre-Argument Conference Under the Civil Appeals Management Plan).

D. Scope

1. Most fully-counseled civil appeals from the United States District Courts in the Second Circuit including appeals from Administrative Agency Orders and Tax Court Decisions.

2. Asylum and Immigration:

a.   Effective July 6, 2004 Conferences in counseled       immigration appeals will no longer be automatic. If a party thinks that a conference would be beneficial, that party will be permitted to request a conference. A request for mediation will not extend the briefing schedule.
b.   Pursuant to Local Rule 0.29. Any appeal or petition for review in which a party seeks a review of a denial of a claim for asylum will be initially placed on the Non-Argument Calendar. The Civil Appeals Management Plan shall not apply mandatorily to proceedings on the NAC, however, any party may request a conference, by written notice to the Office of Staff Counsel..

3. Cases that are not referred to C.A.M.P. are non-counseled pro-se appeals, petitions for mandamus, prohibition or habeas corpus cases brought pursuant to 28 U.S.C. § 2255.

4. Attendance of Counsel at C.A.M.P. conferences is mandatory. Neither counsel nor parties may opt-out of C.A.M.P.  If feasible, counsel should have their clients available by telephone at the time of mediation.  Ordinarily, attorneys are expected to attend the conference without their clients.  However, when appropriate and WITH THE PERMISSION OF STAFF COUNSEL, clients may attend with their attorneys.

5. If you have not been notified that your appeal has been selected or referred to mediation but you believe mediation would be beneficial, you may request mediation by written notice to the Office of the Staff Counsel. Such requests are treated as confidential.  Requesting mediation does not toll or alter the time in which a brief is to be filed.

 

E. Benefit of C.A.M.P.

1. Savings in time and money for litigants, the Court and the public.

2. Resolutions are consensual and amicable.

3. Avoids imposition of result by third party.

4. Parties can arrange more creative and flexible solutions than the Court can provide.

5. Procedure is informal and private.

6. Substance remains confidential.

7. Serves “healing” function

 

The Pre-Argument Conference is informal but not perfunctory. All matters discussed are confidential to the parties at the conference. See Calka v. Kucker Kraus & Bruh, 167 F.3d 144 (2d Cir. 1999).

A. Scheduling the Conferences

1. Timing of Conferences
The Staff Counsel Office schedules most cases for mediation approximately four to six weeks after the case is filed with the Clerk's Office.

2. Scheduling Process
Two to three weeks before the conference date, the Staff Counsel sends lead counsel written notice of the initial conference and scheduling order.

3. In Person Conferences
 The initial Pre-Argument Conference is typically held in person at the Offices of the Staff Counsel located in the Woolworth Building, 233 Broadway, NYC.

4. Teleconferences
Where considerable distances, or other substantial reasons warrant, Staff Counsel may arrange for telephonic conferences with the appellant’s counsel initiating the call in most instances.

B. Purpose of Pre-Argument Conference Sessions 

The conferences are designed to maximize the prospect of amicable resolutions that are custom tailored to the needs of the parties and to reduce the time and expense of the appellate process.

1. Topics Addressed
Expect serious and thorough exploration of the law relevant to the appeal. To better facilitate amicable resolution of the appeal, lawyers with the assistance of Staff Counsel must be prepared to:

(a) narrow issues;
(b) eliminate meritless arguments; and
(c) objectively assess the bargaining leverage of the parties and realistic parameters of any possible settlements.

2. Expect serious negotiations which require complete settlement authority from the client. Avoid rigid predetermined “bottom lines” which inhibit the development of new and creative settlement options at the conference.

3. Lead Counsel must be prepared to:

(a) negotiate in good faith;
(b) negotiate with awareness of the full range of their client’s short term and long term interests; and
(c) express their views on the merits of the case with appropriate citations to supporting case law.

4. Scheduling of mediation does not automatically toll the running of time periods for filing briefs, transcripts or other matters. However, Staff Counsel has authority to extend deadlines when warranted.

C. Proceedings Strictly Confidential

All matters discussed at the C.A.M.P. proceedings are strictly confidential. The Staff Counsel may not reveal the information disclosed at the proceedings to any members of the Court. Likewise, the parties are prohibited from advising members of the Court or any unauthorized third parties of discussions or actions taken at the proceedings. See Calka v. Kucker Kraus & Bruh, 167 F.3d 144 (2d Cir. 1999). Thus, the Court never knows what transpired at the conference(s).

D. Nature of Conference Sessions

The Staff Counsel typically conducts the conferences in a series of joint and sometimes separate sessions, talking with both sides together and then with each side separately.

1. Initial conferences generally begin with an explanation by each party of the issues on appeal. The purpose of this discussion is not to decide the case or reach a conclusion about the issues, but to understand the issues and evaluate the risks to both sides. Often a candid examination of these issues is helpful in reaching a consensus on the settlement value of the case.

2. The Staff Counsel inquires about settlement and probes for each party’s interests, often in private discussion with each side. Every effort is made to generate offers, counteroffers and alternative settlement options until the parties either settle or know the case cannot be settled. The Staff Counsel may also mediate related cases, frequently in an attempt to achieve global settlement of multiple proceedings or to efficiently manage the Court’s docket through case consolidation or scheduling briefing orders and argument dates in tandem with related appeals.

3. Discussion includes inquiry about jurisdictional and procedural issues which usually can be resolved by Staff Counsel during the Pre-Argument Conference but would otherwise require written motions. At the conference(s) the Staff Counsel may also, among other things, consolidate or recommend in tandem consideration of related appeals, establish the briefing schedule, authorize stipulations to withdraw the appeal without prejudice with leave to reactivate and stipulations to withdraw the appeal pursuant to FRAP Rule 42(b), and deal with other procedural matters that may aid in the handling or disposition of the appeal. 

E. Number and Length of Pre-Argument Conference Sessions

The initial Pre-Argument Conference typically lasts anywhere from 1 to 3 hours. A follow-up conference with the parties may be necessary to fully pursue all opportunities for negotiated settlement. Typically there is extensive follow-up activity such as additional telephone calls, in-person conference, or caucuses with each side separately to discuss settlement, requests for relief/motion practice and procedural questions.

F. Important Legal Issues In All Appeals

1. Basis of Court of Appeals Jurisdiction 

(a) Is the judgment below final as to all the parties and all the claims?
(b) Has there been Rule 54(b) or Rule 1292(b) certification?
(c) Is this a permissible appeal from an interlocutory order? Why?
(d) Is there another basis for jurisdiction?2. Standard of Review on Appeal

(a) De Novo Review standard?
(b) Clearly erroneous standard?
(c) Substantial evidence rule?
(d) Abuse of discretion standard?
(e) Other?

F. Pre-Argument Conference Preparation Suggestions

1. Prepare carefully on the law. Make realistic informed judgment on likely outcomes of appeal. Avoid “ADVOCATITIS”.

2. Prepare carefully for the negotiation - not only what but how you will negotiate. Failure to do this is the most common mistake lawyers make. This can seriously disserve your client.

3. Make careful analysis of your client’s needs, interests and concerns, etc. Distinguish needs from desires and also client’s basic interests from the positions s/he takes to serve those interests.

4. Make same analysis for yourself as the attorney.

5. As best you can, ascertain needs, interests and concerns of the other side – both attorney and client.

6. Be an agent of reality for your client. Do hard headed cost-benefit analysis for your client on:

(a) Whether to proceed with the appeal. (When does “WINNING” mean losing for the client? Consider costs and benefits of possible remand.)

(b) Whether to accept a particular settlement proposal. (Counsel your client not to weigh the proposal based on his hopes and desires but rather on a realistic assessment or his position not only after an appeal but also after any possible remand.)

7. Develop problem-solving orientation for the pre-argument conference. Adopt a “win-win” mind-set rather than an adversarial “win-lose” orientation. Remember you must get the other side to agree to a settlement.

8. Be creative in generating new settlement options.

9. Be realistic about what kind of agreement is feasible given the respective bargaining leverage of the parties.

10. Avoid the “tyranny of assumptions”. Don’t assume the other side is acting in bad faith. Don’t assume the other side will be unreasonable. Experience shows these adversarial assumptions are very often unfounded and seriously impede settlement.

H. Function of Staff Counsel at the Pre-Argument Conference

1. To be an agent of reality for all counsel and parties.

2. To act as an impartial mediator seeking agreement acceptable to all parties.

3. To educate parties on law and practice in the Second Circuit.

4. When appropriate, to give non-binding advisory opinion on the merits of the appeal.

5. To encourage each side to hear and understand the arguments, needs and concerns of the other side.

6. To meet privately with each side, whenever appropriate, to get beyond postured positions.

7. May hold more than one conference and may require clients to participate.

8. Strives for “healing” effect, (i.e., restore social harmony between feuding parties).

9. Resolves procedural problems informally and expeditiously.

I. Sanctions

Upon failure of a party or attorney to comply with the provisions of the conference program rules, the Court may:

1. Assess reasonable expenses (including attorney’s fees) caused by their failure,

2. Assess all or a portion of appellate costs,

3. Dismiss the appeal, or

4. Take such other appropriate action as the circumstances warrant. 

A. Assignment of Cases

All cases referred to C.A.M.P. are randomly assigned to one of the Staff Counsel, a circuit mediator employed by the Court. Normal recusal policies apply. The pre-argument conference is conducted by a Staff Counsel.

B. Qualifications and Training

1. The Staff Counsel are practicing attorneys who have extensive appellate experience and highly trained and experienced negotiators.

C. The Office Staff Counsel Personnel

     As of  2/27/06 the Office of the Staff Counsel consists of

1.  Staff Counsel who are circuit mediators:

Senior Staff Counsel Frank J. Scardilli, Esq.
Frank_Scardilli@ca2.uscourts.gov

Staff Counsel Stanley Bass, Esq.
Stanley_Bass@ca2.uscourts.gov

Staff Counsel Lisa Greenberg, Esq.
Lisa_Greenberg@ca2.uscourts.gov

Associate Staff Counsel Vidya Kurella, Esq.
Vidya Kurella@ca2.uscourts.gov

2. Conference Administrative Supervisor:

David Paris
David_Paris@ca2.uscourts.gov

3. Conference Legal Assistant:

Andrew Smith
Andrew_Smith@ca2.uscourts.gov

4. Administrative Assistant:

Erin Goodman
Erin_Goodman@ca2.uscourts.gov

5. Administrative Assistant:

Katherine Lora
Katherine_Lora@ca2.uscourts.gov

D. Location, Telephone and Fax Numbers

1. The Location of the Staff Counsel Office is on the 6th floor of the

Woolworth Building, 233 Broadway, New York City, New York 10279.

2. The Telephone Number for the Staff Counsel Office is 212-857-8760. The Fax Number is 212-857-8756