Current Developments in Federal Appellate Practice
This article was prepared for a speech to be given by Susan M. Freeman at the 2001 Federal Bar Association Convention, which was cancelled in the aftermath of 9/11. The article has been updated to reflect recent rule changes.
The circuit courts of appeals are meeting the burden of increasing workloads with procedures and local rules that take advantage of the Internet and other computer technology. They vary in their approaches to the availability of unpublished case law resulting from that technology. They also attempt to address their burdensome caseloads – and the hardship caused to the bar and public – through various settlement and mediation alternatives and through publicly available information on the delay inherent in the appellate process.
All of the circuit courts of appeal now have Web sites, where at least the local rules, forms, and recent opinions can be found. Most enable access to case dockets through PACER and current hearing calendars. A few circuits allow e-mail contact with the court, although not for purposes of case-specific inquiries. The Fifth, Seventh, Eighth, and D.C. Circuits each have Practitioner's Handbooks online, setting forth that court's rules and case law on various appellate procedures in a conversational format. The Ninth Circuit has an extensive outline presenting its cases on applicable standards of review. That circuit is considering an electronic mailbox to provide trial judges and lawyers with a vehicle for calling conflicts among Ninth Circuit decisions (published or unpublished) to the court's attention.
Videoconferencing of arguments is available in the Third, Ninth, and Tenth Circuits, at the request of the parties or at the request of the court, if neither party objects. The Tenth Circuit Web site includes a detailed explanation of the procedures for arguing by videoconference. The Third Circuit directs parties to file a joint statement requesting a videoconferenced argument 14 days after the filing of the appellee's brief1. The third Circuit has discretion whether to grant the request. If allowed, the argument is made from a local district court with the circuit judges sitting in Philadelphia.
Federal Rule of Appellate Procedure 25(a)(2)(D) now provides that a circuit court may, by local rules, permit papers to be filed by electronic means consistent with any technical standards the Judicial Conference of the United States establishes. The Ninth Circuit began allowing briefs to be filed electronically in June 2001 on an experimental basis, with the consent to all parties. The notification of the experiment, on the court's Web site, explains that only one such brief needs to be filed Â– in PDF format on a PC-readable CD-ROM. Excerpts of records may also be submitted in electronic format and can be hyperlinked with the brief. Electronic filing, however, does not reduce the number of paper copies of the briefs and excerpts to be filed.
The Eleventh Circuit gives parties the option of filing briefs in an electronic format, in addition to paper briefs if there are no pro se parties (or if all parties consent in pro se appeals)2. Parties can either submit an IBM-formatted disk that may include hyperlinks to cases, statutes, and other materials publicly available on the Internet, or they can file a CD-ROM with hyperlinks not only to Internet-available material but also to record documents included on the CD-ROM in PDF format. If the party chooses the CD-ROM method, a CD-ROM is to be attached to each copy of the paper briefs filed with the court. Alternatively, the Eleventh Circuit's local rule authorizes filing by Internet upload by prior arrangement with the clerk.
The First, Fifth, Seventh, and Eighth Circuits outright require one copy of each brief to be filed on a 3.5-inch floppy disk if the brief is prepared by computer. They also require service of a disk on opposing counsel3. The Fifth and Seventh Circuits' local rules require the brief to be prepared in PDF format. The First Circuit's local rule requires all papers exceeding 10 pages in length to be submitted on disk as well as on paper and requires that they be saved in WordPerfect 5.1 or higher file. It also requires a party to submit a motion to be relieved of the obligation to file papers on disk, unless the party is pro se4. The Eighth Circuit requires counsel to certify the name and version of the word processing software used to prepare the brief, and states that the clerk will convert it to PDF format and place the document on the court's Web site5.
The Seventh Circuit amended its local rule on electronic briefs to enable filing over the Internet or by CD-ROM, in addition to filing by disk. The rule provides for appendix and record filing in digital form as well, but this is not required. If counsel uses a CD-ROM record with hyperlinks to the brief or record, four copies are to be filed with the court. That enables the clerk and all the panel judges to use a copy. The Seventh Circuit's Web page sets forth the technical requirements for digital filing, and thus can change without further rule changes.
The First Circuit allows CD-ROM submissions supplementary to paper and disk filing; encourages joint submissions of all the briefs on a single CD-ROM; and includes requirements for content, packaging, and format in its local rule6. Parties are encouraged to file the entire record on the CD-ROM. The files are to be configured to allow selecting and printing. Hyperlinks to the table of contents are required, and hyperlinks to other documents on the CD-ROM are authorized. The Federal Circuit similarly authorizes CD-ROM briefs and encourages parties to cooperate in filing a single CD-ROM with all briefs and the record with hyperlinks7.
For the most part, judges prefer to read hard copies of briefs. The great benefit of digital briefs lies in providing hyperlinks to a digital record and citations. Without that, the drawbacks of delays in loading separate documents (especially a series of PDF files) and locating the right (unlabeled) PDF file may be more annoying than they are worthwhile. Digitizing the record, however, entails time and expense, and no circuit has required it. It is important that all electronic filings be scanned for viruses before submission and be both Mac- and PC-readable if created on a Macintosh system.
Eleventh Circuit Local Rule 25-3 authorizes emergency motions to be filed electronically with advance permission from the clerk.
A proposed amendment to FRAP 25(d), effective Dec. 1, 2002, absent congressional action, would provide that proof of electronic service state the e-mail address of the party served. And an amendment to FRAP 26(c) would provide for the addition of three calendar days to any prescribed period for response after Service when a paper is served electronically. The amendment treats e-mail service as equivalent to service by mail, rather than hand delivery. That is particularly useful when service is made on a Friday afternoon and the e-mail may not be read until Monday. Proposed FRAP 25(c) also provides that electronic service is not complete when the party making service is notified of nonreceipt and is not permitted at all without the party's written consent. It is unclear whether that applies only to a computer-generated notice that a message did not go through to the recipient, versus a message that the intended recipient will not read it (automated "out of the office" message), versus a later call or e-mail message that the document was not readable technologically (that formatting or other problems precluded opening). It is also unclear what the litigant is to inform the court if he or she avows service by e-mail, then learns it was not received or not readable or read. The proposed Rule 25 amendments include a committee note that reads in part as follows:
Subdivision (c)(4). The second sentence of a new subdivision (c((4) has been added to provide that electronic service is complete upon transmission. Transmission occurs when the sender performs the last act that he or she must perform to transmit a paper electronically; typically, it occurs when the sender hits the "send" or "transmit" button on an electronic mail program. There is one exception to the rule that electronic service is complete upon transmission: If the sender is notified Â– by the sender's e-mail program or otherwise Â– that the paper was not received, service is not complete, and the sender must take additional steps to effect service. A paper has been "received" by the party on which it has been served as long as the party has the ability to retrieve it. A party cannot defeat service by choosing not to access electronic mail on its server.
A proposed amendment to FRAP 36(b) would enable the court clerk to use electronic means to serve a copy of an opinion or judgment or serve notice of the date when judgment was entered upon parties who have consented to electronic service. The Fifth Circuit's local rule specifies that parties must agree that electronic service is the only notice the clerk will provide if the clerk is to be authorized to serve that way8. The Eighth Circuit has a local rule providing for electronic notice of all papers to be served on counsel9. The Eighth Circuit's local rule also authorizes electronic filing of any required document if the clerk of court so directs, including the transmittal of record documents from the district court10.
Word Processing Issues
FRAP 32 now requires limits to briefs to be determined by word count instead of page number when the brief is prepared by computer with proportional spacing. As the Seventh Circuit explained in DeSilva v. DiLeonardi, 185 F.3d 815 (7th Cir. 1999), different kinds of software used in preparing briefs vary in the way they count words. The maximum word count may be exceeded when footnotes are not counted, yet lawyers using Word instead of WordPerfect may easily and inadvertently omit counting footnotes. The Seventh Circuit wards practitioners of this problem in communications with counsel when the appeal is docketed and is in the Practitioner's Handbook on its Web site, and the clerk spot checks briefs that appear close to the limit. The Fifth Circuit's counterpart includes the same warning.
The Seventh Circuit's Web site includes a memo on Requirements and Suggestions for Typography in Briefs and Other Papers. Among other things, it cautions against using Times New Roman or any sans serif typeface, all capital letters, and underlined or bold type, and explains why they make briefs less readable. The Second Circuit requires 12-point or larger type, 2 points or more between lines, and 6 points or more between paragraphs.11 The First Circuit prohibits sans serif type except in headings and captions.12
Citation of Unpublished Dispositions
The Citation Controversy
Online databases of officially unpublished dispositions by courts are readily available, except for dispositions from the Fifth and Eleventh Circuits. Those circuits have banned electronic dissemination of unpublished opinions, and they are not added to Westlaw or LEXIS nor available on those circuits' Web sites.13 Otherwise, such cases are not only online but also are relatively easy to search for decisions on point. In fact, the West Publishing Group began printing the Federal Appendix in September 2001, consisting entirely of "unpublished" decisions from the federal circuit courts of appeal except the Fifth and Eleventh Circuits.14 This motivates lawyers and district and bankruptcy judges to request re-evaluation of long-standing prohibitions against citing to unpublished dispositions. Polls at bench-bar conferences show that district courts and bankruptcy courts cite these rulings, and circuit courts acknowledge that staff attorneys use them. Lawyers naturally want to cite to and comment on the same cases.
Most of the circuit courts have chosen to allow citation to unpublished dispositions for their persuasive, albeit not precedential, value, while also discouraging such citations. (See accompanying sidebar.) Some courts use language that is more troubling than others. The Tenth Circuit, for example, allows citation to unpublished dispositions only when the issue "has not been addressed in a published opinion."15 The topic might well have been addressed in published opinions, but not in quite the same context or with the perspective that counsel wishes to advocate. That requirement might spawn satellite litigation over whether there was or was not a case on point, because the line between precedential and persuasive value used in the Tenth Circuit rule is not always clear. The rule also places practitioners in a quandary of evaluating whether to cite and argue the applicability of a published decision that is less directly on point than an unpublished disposition. The Fourth Circuit's language that "there is no published opinion that would serve as well" alleviates these concerns.16
Most of the citation restrictions address only unpublished dispositions from the court issuing the local rules. They may not restrict parties from citing unpublished dispositions from other courts. Nor do they always bind other courts by their own restrictions. Thus, courts in other circuits and lower courts may not be prevented from citing the restrictive court's unpublished rulings. The D.C. Circuit recently adopted a local rule, however that authorizes citations to unpublished dispositions of other courts of appeals and district courts when the binding or preclusive effect of the disposition is relevant. Otherwise, unpublished opinions by other courts of appeals may be cited only under the circumstances and for the purposes permitted by the court issuing the disposition, and unpublished dispositions of district courts may not be cited.17
The Case Against Citing Unpublished Dispositions
Ninth Circuit Judges Alex Kozinski and Stephen Reinhardt explained judicial opposition to citing memorandum dispositions (which they call memdispos") in a June 2000 California Lawyer article titled "Please Don't Cite This!" and more recently in an opinion discussed below.18 Their principal point is that opinion writing is time-consuming and exacting. Memdispos are simply explanations of who won and lost, and why, without announcing a rule general enough to apply to future cases. Opinions require facts to be set forth in sufficient detail that lawyers and judges unfamiliar with the case will understand, while omitting irrelevant facts that should not form a basis for distinguishing the holding. The legal discussion must be broad enough to provide useful guidance in future cases. If an opinion is written at all, the law is unclear. Thus, the opinion must explain why it adopts one rule and rejects others and why it does not conflict with existing precedent or sweep too broadly. Other judges must scrutinize the draft, and it is then refined, differences are ironed out, and concurrences or dissents are written.
If judges thought memdispos could be cited as precedent, they would have to pay closer attention to their precise wording. Not only might language acceptable for one case be unacceptable if applied to other fact patterns, but judges would also have to clarify differences in reasoning. With a nonprecedential memdispo, the judges who do not prepare the draft can agree to a result without agreeing on the reasoning. Often, memdispos are prepared by law clerks or staff attorneys with judicial editing. Given appellate judges' workloads, they simply cannot take the time to devote more attention to their own and their colleagues' memdispos.
The Constitutional Arguments
In the summer of 2000, the Eighth Circuit published an opinion concluding that dispositions have precedential effect Â– even the unpublished ones Â– as a matter of constitutional law, then vacated the decision as moot on rehearing.19 In its ruling on rehearing, the court expressly noted that the constitutionality of unpublished dispositions remains an open question in the Eighth Circuit. In another case, that circuit may well agree with Judge Richard S. Arnold's reasoning that a declaration and interpretation of a legal principle is inherent in every judicial decision. To declare some decisions as nonprecedential effectively allows the court to avoid the effect of its prior decisions, which is an impermissible expansion of Article III power as historically intended when the Constitution was written and adopted.
The Ninth Circuit strongly disagreed with Judge Arnold in an opinion by Judge Kozinski.20 It concludes that the Constitution's framers did not intend to make all judicial decisions binding. The opinion does, however, recognize that, while the concept of binding precedent did not develop until later, case precedent was considered persuasive authority at time the Constitution was written.21 Several circuits now allow citations to unpublish dispositions for just that purpose.22 In two other circuits, the panel majorities refused to follow unpublished opinions, and a third judge dissented, relying in part on unpublished cases, albeit not as binding precedent.23
Two articles Â– "The Unpublished, Non-Precedential Decision: An Uncomfortable Legality?" by Melissa H. Weresh (Journal of Appellate Practice and Process, Spring 2001 at 175), and "Constitutionality of Â‘No Citation' Rules" by Salem M. Katsh and Alex V. Chachkes (id. At 287) Â– suggest other constitutional arguments for the inherent precedential value of all appellate dispositions. Weresh argues for a due process right to freedom from arbitrary adjudication and for the opportunity to present every available defense, including those in unreported decisions. She also asserts in equal protection right to have similarly situated federal litigants treated similarly, not with procedural shortcuts in matters deemed trivial.
In their article, Katsh and Chachkes argue the First Amendment rights of speech and petition. A party is entitled to discuss relevant and important historical facts, including the issuance of opinions resolving disputes on specific facts and for stated reasons, in the court of advocating his or her cause before the federal judiciary. Second, the authors contend that prohibiting citations violates the separation of powers and is ultra vires the courts' Article III powers. Courts have the inherent power to issue rules of practice and procedure but not to issue rules that affect disposition of the merits of a case. Those can only be promulgated by a legislative body.
The Ninth Circuit's Experiment
At the 1999 Ninth Circuit Judicial Conference, the following resolution passed by a majority of both lawyers' votes and judges' votes:
The judges who participated in the conference approved the recommendation by a narrow majority, but for the first time, they did approve it, with the district and bankruptcy judges providing most of the judicial votes.
The Ninth Circuit Advisory Committee on Rules investigated the practice of other circuits, including Ninth Circuit judges' discussions with judges from other circuits. The principal response from the other circuits' judges was that citations to unpublished decisions are infrequent and not a matter for concern.
The Rules Committee unanimously adopted a proposed amendment to Local Rule 36-3 on an experimental basis. It would have made clear that citation to unpublished dispositions is "disfavored" but not absolutely prohibited in those limited circumstances where a litigant believes that an unpublished disposition or order "has persuasive value in relation to a material issue" in the case and that no published decision "would serve as well." The Rules Committee further urged the court, at a minimum, to adopt a rule that would allow citation to unpublished dispositions in petitions for rehearing and rehearing en banc and requests for publication. Counsel could thereby alert the court to the existence of conflicts in circuit law or the importance of an issue and an existing void in the law, as demonstrated by unpublished dispositions.
The Rules Committee recognized the concerns of many in the court that adoption of this rule could result in undue reliance on unpublished dispositions and agreed that the significance that litigants or judges attach to unpublished decisions should not change. But computer access to these decisions makes them readily available, resulting in the reality that they are being read by the bench and bar. It was also important to the Rules Committee that, based on the experience of judges and practitioners in other parts of the country, such citations occur infrequently and in some instances are of benefit to the court. The committee accordingly did not believe the proposed change to circuit practice would lead to the feared misuse or overuse of these decisions and concluded that the benefits outweighed the detriments.
The proposed amendment was rejected by a divided vote of the full court. The reasons some of the judges gave for rejecting the amendment were: (1) the desire to avoid promulgating bad law when a decision resulted from poor advocacy; (2) the adverse impact on the court's speed in addressing its caseload because of concerns that all decisions may be cited and examined; (3) the possibility that, to avoid citation, opinions may become terser, and thus of less value to the litigants as they review the court's understanding of the case; and (4) the problematic nature of the distinction between mandatory and persuasive authority. The court did agree to experimental adoption of a rule that would allow citation to unpublished dispositions in petitions for rehearing, rehearing en banc, and requests for publication. The court can evaluate the existence of conflicts in circuit law (even if only in unpublished memorandums) or the import of an issue and an existing void in the law, as demonstrated by unpublished dispositions, when evaluating rehearing petitions and requests for publication.
Judges and lawyers are invited to comment on the experimental rule, and may do so through the Ninth Circuit's web site. After the rule has been in effect for 24 months, the Advisory Committee on Rules will study and report to the court on the frequency of citations and recommend that the rule be made permanent, modified, or abandoned.
Affirmances Without Opinion
All of the federal appellate courts distinguish between opinions they intend to serve as precedent and less extensive dispositions intended to decide only the case at hand. For example, the Fourth Circuit provides in its local rules that the court may give a statement of reasons for its decision without reciting all the facts and background and may adopt the lower court's reasoning.24 The Ninth Circuit's memorandum dispositions and orders track that policy, with some reasoning provided to the parties.25
Several circuits truncate the latter category of cases further than others, expressly providing by local rule for summarily disposing of any appeal without notice, when the court determines an opinion would have no precedential value and the judgment is based on sufficient findings and evidence, or there is no error of law.26 The Eighth Circuit's local rule also authorizes summary reversal. The Sixth Circuit authorizes disposition orally after argument, with the reasons for the decision set forth only on the record.27
It is often easier for litigants to accept adverse rulings when the court presents the rationale underlying its decision. Even a statement that the judgment is affirmed for the reasons given by the district court is generally preferable to one-word affirmances or reversals. Affirmances without opinions (AWOPs) create problems in criminal cases by making it difficult to know exactly which issues can be raised on collateral review. A decision on direct appeal that an issue has no merit, for example, makes it impossible to later raise an incompetence of counsel argument with respect to that issue. Since by definition an AWOP does not specify whether particular issues have been decided on the merits, determining whether to raise an incompetence argument on collateral review can be difficult. Yet citeability of memdispos increases the pressure on judges to dispose of cases by AWOPs, to avoid unintended consequences of the disposition in the future.
Lost of Stalled Cases
Counsel sometimes perceive the decision of a case, motion, or some other court action to have remained pending for an inordinately lengthy period. Practitioners are often reluctant, however, to call this problem to the court's attention in the absence of some directive or invitation to do so. The Ninth Circuit has issued an Advisory Committee Note to Ninth Circuit Local Rule 25-2, which describes how to communicate with the court. The note states:
Notice of Delay: If an appeal or petition has been pending before the court of any period in excess of those set forth below, the party is encouraged to communicate this fact to the court. Such notice can be accomplished by a letter to the Clerk identifying the case and the nature of the delay. Generally, such a letter would be appropriate if:
(1) a motion has been pending for longer than four (4) months;
(2) the parties have not received notice of oral argument or submission on the briefs within fifteen (15) months after the completion of the briefing;
(3) a decision on the merits has not been issued within nine(9) months after submission;
(4) the mandate has not issued within twenty-eight (28) days after the time to file a petition for rehearing has expired; or
(5) a petition for rehearing has been pending for longer than six (6) months.
Litigants are advised that the complexity of a given matter may preclude court action within the noted time period.
The Advisory Committee discussed the possibility of shielding the communicating party's identify. Ninth Circuit judges assured members of the committee that inquiries would not be considered an affront, nor would they reflect adversely on the decision to be made. The committee also considered the additional clerical burden that a masking procedure would place on staff resources, and possible contravention of FRAP 25 (any paper for the court must be filed with the clerk), Ninth Circuit Rule 25-2 ("When it is intended that a communication come to the personal attention of a judge or judges, sufficient copies, not including the original, shall be supplied to the Clerk so that the Clerk can furnish a copy to each jusge.") and FRAP 45 (clerk's custody and preservation of documents filed). The final decision was that setting forth expected time periods to guide practitioners would reduce the need for inquiries and would justify them when the time periods are exceeded. Also, express encouragement from the court to inquire should help persuade lawyers to do so.
The only other circuit to inform parties of expected time frames for decision is the Seventh Circuit. That court's Operating Procedures memo, available on its Web site, includes Presumptive Times for Action, which explains the internal expectations for drafting, circulating for comment, and issuing opinions. The memo does not indicate how long parties should expect to wait before their cases are set for argument or their motions are decided.
Settlement and Mediation at the Circuit Level
FRAP 33 provides that the court may direct attorneys and parties to participate in conferences to aid in disposing their proceedings, including discussing settlement. The circuit courts have used this rule to assist in settling a significant portion of their caseloads. Each circuit has a local rule on this subject. The simplest is Federal Circuit Local Rule 33, which directs all parties represented by counsel to discuss settlement and either file a joint statement that they have done so or that they agree to dismiss the appeal within a week after briefing is completed.
The other circuits arrange for mediation conferences through their respective Local Rule 33 counterparts or general orders, nearly always by telephone conference call. Parties may request mediation, or court staff may prompt it, generally based upon review of Civil Appeals Docketing Statements. Parties are required to participate when directed by the court, and counsel is obligated to obtain as much settlement authority as feasible before the conference. Conferences are confidential and conducted by trained staff mediators or judges who will not participate in deciding the case (often retired or senior judges). In some circuits, briefing deadlines are tolled by mediation is pending and are reinstated by court staff after mediation efforts conclude without dismissal of the case. Parties are subject to sanctions if they willfully refuse to cooperate in good faith. First Circuit Local Rule 33(d) and Sixth Circuit Local Rule 33(e) expressly provide that sanctions for noncompliance with settlement procedures include dismissal by the clerk without further notice. Eleventh Circuit Local Rule 33-1(f) provides for such dismissal after appropriate notice.
Some circuits require counsel to certify that they have conducted settlement conferences whenever court mediation is not used. Tenth Circuit Local Rule 33.2 imposes that obligation in all civil matters except those involving pro se litigants, relief from criminal convictions, and Social Security appeals.
Effective July 1, 2001, the Ninth Circuit issued a local rule advising that, in the context of a settlement or mediation of an appeal, the parties could stipulate to having one or more issues referred for a binding determination by an appellate commissioner. That determination would have no precedential effect and would be final and nonreviewable. Thus, if the parties want an appellate determination of some issues to completely resolve the case, they can use the Ninth Circuit's appellate commissioner as the equivalent of an arbitrator. The parties may have an abbreviated and accelerated briefing and an in-person or telephonic oral argument.28
The Third Circuit recently adopted Local Rule 33.6 to enable mediation in pro se cases. The director of the mediation program may request counsel to represent pro se litigants for the purposes of mediation. The assistance must be on a pro bono basis, unless an applicable statute authorizes the award of attorneys' fees, in which case counsel may enter into a written agreement assigning any such amount awarded. If mediation proves unsuccessful, counsel has the option to discontinue the representation or may continue to represent the litigant through the rest of the appeal.
1Third Circuit Local Rule 34.1(e).
2Eleventh Circuit Local Rule 31-5.
3First Circuit Local Rule 32; Fifth Circuit Local Rule 31.1; Seventh Circuit Local Rule 31(e); Eighth Circuit Local Rule 28(A)(d)
4First Circuit Local Rule 32 (as amended January 2001).
5Eighth Circuit Local Rule 28A.
6First Circuit Local Rule 32.1.
7Federal Circuit Local Rule 32(e)
8Fifth Circuit Local Rule 25.3.
9Eighth Circuit Local Rule 25A(a).
10Eighth Circuit Local Rule 25A(a)
11Second Circuit Local Rule 32(a), (b).
12First Circuit Local Rule 32(4).
13Michael Hannon, A Closer Look at Unpublished Opinions in the United States Court of Appeals, 3 JOURNAL OF APPELLATE PRACTICE AND PROCESS 199 (Spring 2001).
14Stephen R. Barnett, From Anastasoff to Hart to West's Federal Appendix: The Ground shifts Under No-Citation Rules, 4 JOURNAL OF APPELLATE PRACTICE AND PROCESS 1, 2 (Spring 2002).
15Tenth Circuit Local Rule 36.3.
16Fourth Circuit Local Rule 36(c).
17D.C. Cir. Local Rule 28(c)(2).
18Hart v. Massanari, 266 F.3d 1155, 1176-78 (9th Cir. 2001).
19Anatasoff v. United States, 223 F.3d 898, 899-905 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000).
20Hart v. Massanari, supra note 18.
21Id., 266 F.3d at 1163-67, 1180.
22Id., 266 F.3d at 1174-75; see analysis in Barnett, supra note 14, 4 JOURNAL OF APPELLATE PRACTICE AND PROCESS at 14.
23Williams v. Dallas Area Rapid Transit, 242 F.3d 315, 318 n. 1 (5th Cir. 2001) (cases neither binding nor persuasive), pet. For reh. En banc denied, 256 F.3d 260 (5th Cir. 2001); Symbol Techs. Inc. v. Lemelson Med., Educ. & Research Found., 277 F.3d 1361, 1366-68, 1370 (Fed. Cir. 2002).
24Fourth Circuit Local Rule 36(b).
25Ninth Circuit Local Rule 36.
26Fifth Circuit Local Rule 47.6; Eighth Circuit Local Rule 47A; Tenth Circuit Local Rule 36; Eleventh Circuit Local Rule 36-1; D.C. Circuit Local Rule 36(b); Federal Circuit Local Rules 36, 47 .6(a).
27Sixth Circuit Local Rule 36.
28Ninth Circuit Local Rule 33-1(c).