U.S. Court of Appeals for the Fifth Circuit -- Internal Operating Procedures

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INTERNAL OPERATING PROCEDURES 

OCTOBER 1, 1981 

Revisions and additions can be obtained upon request from 
the Clerk, Room 102, 600 Camp Street, New Orleans, LA 70130.  



INTRODUCTION 
  

1. COURT STRUCTURE 

a) 

b) 

  

Office of Staff Attorneys 

Libraries 

c) JUDICIAL COUNCIL 

ATTORNEYS 
  

Admission and Fees 

Disciplinary Action 

PRE-DOCKETING PROCEDURES 
  

a) FILING FEE 

Filing Fee - Appeals 

Filing Fee - Agency Proceedings 

COURT REPORTER AND REPORTER'S TRANSCRIPT 

Ordering the Transcript 

Duties of Court Reporters; Extensions of 

c) 

d) 

e) PRO SE PRISONER APPLICATION 

PROCEDURES FROM DOCKETING TO ORAL ARGUMENT 
  

a) TELEPHONE INQUIRIES 4 

October 1, 1981  



EMERGENCY TELEPHONE INQUIRIES AFTER HOURS 

DOCKETING AN APPEAL 

BRIEFING NOTICE 

MOTION PRACTICE 

Form of Motion 

Acknowledgment 

Motions Panels 

Distribution 

Clerk's Authority 

To Judges 

Emergency Motion Procedure 

Emergency Motions 

Procedure 

Motion to Expedite Appeal 

Reconsideration 

Motions After Assignment to Calendar 

Post-Decision Motions 

Extension of Time to File Petition for 
Rehearing or Leave to File Out of Time... 

Stay or Recall of Mandate 

Motion to Extend Time to File Bill 

of Costs 

Motion to Amend, Correct or 
Settle the Judgment 

Remand from Supreme Court of the 
United States 

f) BRIEFS, RECORDS AND APPENDICES 

Appendix - Appeals From District Court 
and the Tax Court 

October 1, 1981  



Appendix - Agency Review Proceedings 

Briefs - Contents 

Briefs 

Briefs 

Briefs 

Legibility 

Briefs - Reply-Supplemental-Cross Appeal 

Reply Briefs - Extension of Time 

Supplemental Briefs 

Briefs in Cross-Appeals 

Briefs - Time 

Time for Filing 

Computing Time 

Extensions of Time 

Briefs - Miscellaneous Information 

Certificate of Service 

Acknowledgment of Briefs 

Sample Briefs and Appendices 

Checklist available 

8) 

Screening 

Decision without Oral Argument 

PROCEDURES FROM ORAL ARGUMENT THROUGH ISSUANCE OF MANDATE 
  

a) ORAL ARGUMENT 

Court Year Schedule 

October 1, 1981  



  

    

  

Judge ASSignments... ee. divine denn diiie vies visie 12      

  

      

    

Panel Selection Procedure.........c...... 12 

  

Separation of Assignment of Judges and 

Calendaring Of Cases. ...civcvveveneininenss 12     

      
     

    

Preparation and Publishing Calendars.......... 12 

    BRIBE A oa einieinin vinnie varia bie hv wih oe Sie sie ee te ie 12 

     

    
    

    

    

Calendaring Dy Case Type... cue erieniae. 12 

Preference Cases. oe: iveivieis siete oasis viainie ss 12     

    Non-Preference Cases... .ccceicescnnssonse 13 

     
      

Number of Cases Assigned................. 13 

    Advance Notice..... ARI Bh TL REG ry 13 

    
   

Forwarding Briefs to Judges. .....ccivevvvniess 13 

     
   

Pre-Argument Preparation: «... cece ives snens 13 

     

  

Identity of Panel, civuvisnsnvviniviisidnioininsss 13 

     

  

Checking in with Clerk's Office... ..vsvecress 13 i» 

     

   
Continuance of Oral Argument... .... cs cevencsne 13 

     

     

    
   

Submission Without Argument... .eceeccveveesenes 13 

  

Time for Oral ‘Argumentl..... cece sven nssivnseons 14 

  

    Additional Time for Oral Argument............. 14 

     

    

   

Calling the Calendar... .. cunt devas snsinisnsios 14 

  

Presenting Argument... ccs esenvovresinevssins 14 

  

     
   

Lighting Signal Procedure. ....... civ visicanns 14 

     
   

Appellant's Argument... ove. vievivinsinins 14 

     
   

Appelleea's Argument. .ocvevivieinensinine 14 

     

       

  

Appellant's Rebuttal. ..... . cco nsrervens 14 

    

Case Conferences and Designation of Writing 

Cae alas elaine Ev Tei 4 ahalaiunel wiey wine te tuderie niet 14 

     
    

  

   

DY i OPINIONS. .covssivss evsieinssiessvnininbesiynsiosssenneinseins 15 

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     October 1, 1981



Time Schedule for Concurrence or Dissent 

Circulation to Non-Panel Members 

Publication of Opinions 

Release of Opinions 

c) PETITIONS FOR REHEARING OR REHEARING EN BANC 

Necessity for Filing 

Petition for Panel Rehearing 

Response to Petitions 

Time for Filing--Extensions 

Composition of En Banc Court 

Suggestion for Rehearing En Banc 

Extraordinary Nature of Suggestions 

for Rehearing En Banc 

The Most Abused Prerogative 

Rule Requirements 

Handling of Petitions by the Judges 

Panel Has Control 

Requesting a Poll 

Requesting a Poll on Court's Own Motion.. 

Polling the Court 

Negative Poll 

Affirmative Poll 

No Poll Request 

Effect of Granting Rehearing En Banc 

d) ISSUANCE OR STAY OF MANDATE 

MISCELLANEOUS INFORMATION   

a) CERTIFIED RECORDS FOR SUPREME COURT OF THE 
UNITED STATES 

October 1, 1981  



b) RECUSAL OR DISQUALIFICATION OF JUDGES 

Grounds 

Procedure 

Administrative Motions 

Summary Calendar Cases 

Hearing Calendar Cases 

c) SPECIAL PANELS AND CASES REQUIRING SPECIAL 

Corporate Reorganization 

Federal Energy Regulatory Commission Cases.... 

Labor Board Original Contempt Proceedings 

Assignment to Panel 

Where Evidentiary Hearing Required 

Proceedings after Master's Report 

d) JUDICIAL CONFERENCE 

e) DISMISSAL OF APPEALS 

f) FRIVOLOUS APPEALS 

g) WRITS OF MANDAMUS AND PROHIBITION 

h) PROCEDURES FOR PROCESSING COMPLAINTS OF JUDICIAL 

MISCONDUCT 

i) DIRECT APPEALS FROM BANKRUPTCY COURTS 

i) STATISTICS 

k) CRIMINAL JUSTICE ACT PLAN AND PLAN FOR 

EXPEDITING CRIMINAL APPEALS 

LAWYERS ADVISORY COMMITTEE 
  

FIFTH CIRCUIT COURT OF APPEALS REORGANIZATION ACT 

OF 1980 (PUBLIC LAW 96-4452-OCTOBER 14, 1980) 
  

  

October 1, 1981  



UNITED STATES COURT OF APPEALS 

FIFTH CIRCUIT 

INTERNAL OPERATING PROCEDURES 

INTRODUCTION   

This outline of internal operating procedures describes the responsi- 

bilities, functions, organization, and procedures of the Clerk's Office in 

day-to-day administration of the Court's rules and policies in the processing of 

appeals. It also sets out the work of the judges, judge assignments, calendar- 

ing, processing of opinions, and other operating procedures of the Court. 

The large volume of filings requires that the Court's procedures be organized 
to increase efficiency both of judges and supporting personnel. New procedures 

are continually being tested and adopted. 

1. COURT STRUCTURE   

a) PHYSICAL FACILITIES - The headquarters of the Court is located at 

600 Camp Street, New Orleans, Louisiana 70130. 
  

The building which houses the Court is the renovated "0ld United 
States Post Office". It contains three courtrooms and chambers for all active 

judges. Additionally, the building houses the Circuit Executive's Office, the 

Clerk's Office, Office of Staff Attorneys, and the Library. 

b) JUDGES AND SUPPORTING PERSONNEL 
  

Judges - The Fifth Circuit is authorized to have 14 active judges. 

Each active judge's office is authorized to have 3 law clerks and 2 secretaries. 
The Chief Judge is authorized 1 additional secretary. The Court is also served 

by a number of senior and visiting judges who sit with panels of the Court. 

Circuit Executive - The Circuit Executive has 2 staff assistants, 

and 2 secretaries. 
  

The Circuit Executive operates as an arm of the Judicial Council 

of the circuit and provides administrative support to the Court. His services 

are designed to assist judges, particularly the Chief Judge, in administration 

of Court procedures to free judges for their primary duty of adjudication. 

Clerk's Office. The Clerk's Office is divided into two divisions, 
the Judicial Support Division and the Administrative Support Division. 

  

October 1, 1981  



Office hours are from 8:00 a.m. to 5:00 p.m. central time Monday 

through Friday. The names of employees who should be contacted by telephone, 

and for filings after hours are in Section 4(a) and (b). 

Office of Staff Attorneys - With an authorized strength of 13 
attorneys and a Director, the office serves as the Court's central law staff. 

The office handles prisoner petitions, prepares memoranda in all but agency 

review, bankruptcy, and diversity cases, and monitors decisions in areas of law 

which frequently come before the court. See Sections 3(e) and 4(g). 

  

Libraries - The Library system is staffed by an attorney who 

serves as Supervisory Librarian-Law, an associate Librarian, an assistant 

Librarian, and 3 Library assistants. Library hours are from 7:30 a.m. to 

5:00 p.m., Monday through Friday. 

Satellite libraries are maintained in Brownsville, Houston and 

Baton Rouge. 

Although the libraries are primarily for the use of the judges, 

members of the Bar of the Court and other court personnel, they also provide 

services to students, governmental agencies and other libraries. 

c¢) JUDICIAL COUNCIL - The Judicial Council established by 28 U.S.C. Section 
332 is composed of all judges of the Court in regular active service, and one 

district judge from each state in the Circuit elected to staggered three year 

terms. The Judicial Council meets on call of the Chief Judge pursuant to statute. 

  

2. ATTORNEYS 
  

Admission and Fees - All attorneys desiring to practice before 

the Court must be formally admitted in the manner required by the Court. If 
not previously admitted, counsel must file with the Clerk immediately upon 

docketing the appeal a written application for admission to practice on the 

form to be supplied. 

  

An applicant for admission to practice shall meet the requirements 

set forth in FRAP 46(a) and Local Rule 5. 

Disciplinary Action - FRAP 46(b) and (c) govern the procedures to 

be followed to invoke disciplinary action against any member of the Bar of this 
Court for failure to comply with the rules of this Court, or for conduct unbecom- 

ing a member of the Bar. 

  

3. PRE-DOCKETING PROCEDURES 
  

a) FILING FEE 
  

Filing Fee - Appeals - When the notice of appeal is filed counsel 
must pay to the district court clerk, pursuant to FRAP 3(e), the court of appeals 
  

October 1, 1981  



docketing fee of $65 required by 28 U.S.C. §1913. Upon receipt of a duplicate 

copy of a notice of appeal the Clerk of the Fifth Circuit will transmit to 

counsel a notice advising of other requirements of the rule. No additional fees 

are thereafter required. 

Filing Fee - Agency Proceedings - The $65 docketing fee provided 

by 28 U.S.C. §1913 for filing an agency review proceeding under FRAP 15, must be 

tendered along with the petition for review. 

  

b) COURT REPORTER AND REPORTER'S TRANSCRIPT 
  

Ordering the Transcript - It is the responsibility of the appel- 

lant (under FRAP 10(b)) to order, from the reporter, within 10 days after filing 

the notice of appeal, a transcript of such parts of the proceedings, not already 

on file, as he deems necessary for inclusion in the record. The order for the 

transcript must be in writing and adequate financial arrangements with the 

reporter must also be made. The district court will furnish a purchase order 

form as required by this Court. In criminal appeals the district court will 

furnish a special form at the time of sentencing. Once the purchase order 

has been completed and forwarded to the reporter, with adequate financial 

arrangements made, counsel's responsibility under the 1979 amendments to 

FRAP 10 and 11 will have been fulfilled. 

  

Duties of Court Reporters; Extensions of Time - Under the amend- 

ments to FRAP 10 and 11, the appellant will no longer be required to seek exten- 

sions of time for filing the transcript if the reporter cannot prepare it within 

30 days from receipt of the appellant's purchase order. The monitoring of all 

outstanding transcripts, and the problems of delay in filing, will be done by 

the Clerk. Counsel will be kept informed when extensions of time 

are allowed on requests made by the court reporters. 

  

Transmission of Record - Under Local Rule 8.2.3, it is the responsi- 

bility of the clerk of the district court to determine when the record on appeal 

is complete for purposes of the appeal. 

  

c) DUTIES OF COURT APPOINTED COUNSEL - The Court has adopted a plan under 

the Criminal Justice Act which details the duties and responsibilities of court 

appointed counsel. A copy of this plan is available upon request to the Clerk. 

  

d) MONITORING CRIMINAL APPEALS - The Court has adopted a Plan for Expediting 

Criminal Appeals which is designed to accomplish the speedy final disposition of 

criminal appeals. The plan strives to accomplish this goal by (1) adoption of 
special procedures for handling criminal appeals; (2) providing individualized 

supervision and processing of each criminal case. A copy of the plan is available 

upon request to the Clerk. 

  

e) PRO SE PRISONER APPLICATION - Pro se prisoner motions and applications 

are handled by the Staff Attorneys Office. This section processes, and makes 

recommendations to the Court, on all motions for leave to appeal in forma pauperis, 

  

October 1, 1981  



applications for certificates of probable cause, motions for appointment of 

counsel, etc. A memorandum on the merits of the case is prepared on those cases 

in which the party is not represented by counsel. For other duties of the 

Office of Staff Attorneys see Part I, Section B, sub-paragraph 4. 

4. PROCEDURES FROM DOCKETING TO ORAL ARGUMENT 
  

a) TELEPHONE INQUIRIES - The Clerk's Office welcomes telephone inquiries 

from counsel concerning rules and procedures. The Clerk, Gilbert F. Ganucheau, 

is available to confer with counsel on special problems or upon request. Telephone 

No. (504) 589-3864, FTS 682-3864. 

  

On matters requiring special handling or interpretation of the rules, 

counsel may contact the following parties on the appropriate case management 

team: 

FTS COMM. HOME 
682- (504)589- (504) 
  

Richard E. Windhorst, Jr., Chief 3875 137-5315 

Teams A and B 
  

COMM. HOME 
(504)589~ (504) 
  

LOUISIANA APPEALS 
Case Management Team A 
  

Joan Perkins, Case Manager 288-7870 

Mary Beth Breaux - Docket Clerk 

Sarah Holmes 

Andrew Rondeno 

NORTHERN & WESTERN TEXAS APPEALS 

Case Management Team B 
  

Susan Vaughn, Case Manager 467-1921 

Betty Martinez - Docket Clerk 

Henry Adams 

Barry W. Stiebing, Chief 737-7692 

Teams C and D 
  

EASTERN & SOUTHERN TEXAS 

Case Management Team C 
  

Rosalie Varino, Case Manager 486-1382 
Peggy Keller - Docket Clerk 

Linda Johnson 

October 1, 1981  



MISSISSIPPI APPEALS & AGENCY PROCEEDINGS 

Case Management Team D 
  

George G. Bauer, Jr., Case Manager 3893 277-6186 
Fred Alfortish - Docket Clerk 3892 

Adeline Barnes 

b) EMERGENCY TELEPHONE INQUIRIES AFTER HOURS - In emergency situations 

arising after normal office hours, or on weekends, the name of the deputy clerk 

who has the emergency duty can be obtained by dialing (504)589-6514. However, 
if the deputy with the emergency duty cannot be reached, a back-up name is 
available on the recording, or the division chief or case manager of the appro- 

priate team may be contacted at home and they will be able to advise the procedure 
for handling the problem. 

  

c) DOCKETING AN APPEAL - Appeals are immediately docketed upon receipt of 
the notice of appeal. 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 Local Rule 9.2.2. 

  

  d) BRIEFING NOTICE - As soon as the record has been received and processed 

a notice to all counsel as to the time for filing briefs is issued by the Clerk. 
The notice sets forth the rules and procedures governing the form of 
briefs. 

The original record is usually sent to counsel with the briefing 

notice for counsel's convenience and to avoid delay. 

e) MOTION PRACTICE   

Form of Motion - Motions to the Court must be in the form pres- 

cribed by FRAP 27. Non-procedural motions require the inclusion of a certificate 

of interested person similar to that required by Local Rule 13.6.1. Consult 
Local Rule 10 to determine which motions are considered by a single judge or by 

the Clerk. On such motions only an original and one copy need be filed. All 

motions requiring panel action by the Court require the filing of an original 

and three copies. 

  

Acknowledgment - Except for procedural motions, the Clerk 

will notify counsel that a motion has been received and filed. This 

notice will fix the time period for filing any response and inform counsel of 

the approximate date when the motion must be submitted to the Court. Requests 

for extensions of time are handled ex parte by the Clerk. 

  

Motions Panels - Motions panels are drawn by lot from the active 

judges. These motions panels also operate as screening panels hereafter discussed 
  

October 1, 1981  



    

     
    
    

  

    
    
       

   
     
    

      

         
    

   
   in sub-section (g). Composition of motions panels is changed at the beginning 

of each court year in July to permit the judges to sit with other judges in B 

screening and handling administrative motions. 

Distribution 
  

Clerk's Authority =- Pursuant to Local Rule 10.1, the Clerk 
is authorized to act for the Court on a large number of unopposed procedural 

motions. This delegation has greatly facilitated the work of the Court. 

  

   
To Judges - Motions requiring consideration by the judges 

are assigned in rotation to all active judges on a routing log. Unless ordered 
by the Court, motions are not orally argued. 

  

    

The Clerk assembles a complete set of the motion papers, 

including the record and any briefs on file and submits them with a routing form 

to the initiating judge. In single judge matters the initiating judge acts on 

the motion and returns it to the Clerk with an appropriate order. For those 

motions requiring panel action, a single set of papers is still prepared, but 

the initiating judge transmits the files to the next judge with his recommend- 

ation. - The second judge in turn sends it on to the third judge. The latter 
judge returns the file and an appropriate order to the Clerk. 

          
    
    
   
     
        
      
    
    

  

        
       

    

Emergency Motion Procedure 
  

    

Emergency Motions - Local Rule 10.4 provides that counsel 
having emergency motions or applications, whether addressed to the Court or to 
an individual judge, ordinarily shall file such petitions with the Clerk = 

rather than with an individual judge. In matters where time does not 

permit the filing of a motion or application in person, by mail or by wire, 

contact with the Clerk may be made by telephone and thereafter counsel shall 

file the motion in writing with the Clerk as promptly as possible. The motion, 

application or contact shall contain a brief account of the prior actions of 

this or any other court or judge to which the motion or application, or a substan- 

tially similar or related petition for relief, has been submitted. An applica- 

tion for habeas corpus relief ordinarily will be transferred to the appropriate 

District Court. After reference to the initiating judge next in rotation on the 

routing log maintained by the Clerk, the party making application for habeas 

corpus relief may request the Clerk to renew the same to any other judge of the 

court. Except where the denial has been without prejudice, such renewed applica- 

tions are not favored. 

  

         
      

   
       
    

        

(For other provisions regarding motions, see FRAP 27 and 

Local Rule 10. For other provisions regarding habeas corpus proceedings, see 28 

U.S.C.A. §2243 and FRAP 22. See also Supreme Court Rule 50.) 

Procedure - The Clerk will immediately assign the matter to 

the next judge in rotation on the administrative-interim routing log and to his 

panel members. If the matter requires that counsel contact the initiating judge 
         

    

    

October 1, 1981



or panel’ members personally, the Clerk will advise the name of the initiating 

judge and the panel members tc whom the case is assigned, after first getting 

approval from the initiating judge. 

The motion papers are distributed as described in paragraph 

4(b) above, except that a complete set of the papers is forwarded to all members 

of the panel at their home offices. 

Motion to Expedite Appeal - Motions for this relief should be 

presented in the same manner as other motions. An appeal may be expedited only 

by the Court and for good cause shown. If an appeal is ordered expedited, the 

Clerk will fix a briefing schedule which will permit the appeal to be set for 

oral argument at an early date, unless an earlier hearing date is directed by a 

judge. The Clerk will usually have some idea of the approximate date of the 

hearing and will so advise counsel when the order is issued. 

Reconsideration - A panel may reconsider its own action or the 

action of a single judge upon the filing by a party of a motion for reconsidera- 

tion. (See Local Rule 10.2) 

  

Motions After Assignment to Calendar - After cases are assigned 
to the oral argument calendar, motions in these cases are circulated to the 

hearing panel rather than to the standard motions panels. The senior active 

judge on the panel is considered to be the initiating judge. 

  

Post-Decision Motions 

Extension of Time to File Petition for Rehearing or Leave to 

File Out of Time - The Clerk may grant a timely motion for an extension of time 

to file a petition for rehearing for a period not longer than 30 days. Any 

motions for additional time beyond 30 days, or to file out of time, are referred 

to the judge who authored the opinion, as a single judge matter, unless the 

author judge is a non-active circuit judge, in which event the matter is 

referred to the senior active judge on the panel. If the senior active judge 

dissented, the matter is referred to the other active judge on the panel. 

  

  

Stay or Recall of Mandate - A motion for stay or recall of 

mandate is decided by a single judge and is routed and disposed of in the same 

manner as in the preceding paragraph. (See Local Rule 17). 

  

Motion to Extend Time to File Bill of Costs - This motion 

may be considered by “the Clerk. 
    

Motion to Amend, Correct, or Settle the Judgment - These   
motions are referred to the VELL ing judge with copies to the panel members. 

  

Remand from Supreme Court of the United States - Remands 

from the Supreme Court of the United States are referred back to the panel for 

disposition, without the necessity of counsel filing a formal motion. 

  

October 1, 1981  



   
         
   BRIEFS, RECORDS AND APPENDICES      
    
    
    

£) 
  

Appendix - Appeals From District Courts and the Tax Court 
  

Mandatory Contents ~- See Local Rule 13.1. 
  

Optional Contents - Appellant may add to the mandatory Record 

Excerpts brief extracts from the pleadings, charge, transcript or exhibits if 

they are essential to an understanding of the issues raised. 

  

    
     

  

         

      
      
      

    
    

  

     
    

    

  

           At the time appellees' brief is filed, appellee may add 

other such extracts thereto. All parties are cautioned that over-designation 

of materials for inclusion in the appendix so impaired that document's useful- 

ness that the Court decided to dispense with it and consider all appeals on 

the original record. If non-essential materials are included in the record 

excerpts, its usefulness to the Court as a convenient adjunct to study of the 

briefs will be diminished. The fact that parts of the record are not included 

in the record excerpts shall not prevent the parties or the Court from relying 

on such parts. 

    

Such copies shall be reproduced on white paper by any 

duplicating or copying process capable of producing a clear black image, with a 

cover sheet bearing the case number and style and captioned "RECORD EXCERPTS". 

   

        

        

      
    
   

Appendix - Agency Review Proceedings - Petitions for review of 

orders of an administrative agency, board, commission or officer shall also 

proceed on the original record on review, without the requirement of the appendix 

prescribed by FRAP 30. $ 

  

However, if a certified list of documents comprising the record 

is filed in lieu of the formal record, petitioner must 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 suitably covered, numbered and indexed and 

filed within 21 days from the date of filing of respondent's brief. 

Also, except in review proceedings covered by Local Rule 11.4, at 

the time of filing petitioner's brief, petitioner must file separately four 

copies of "Record Excerpts'" consisting of any orders sought to be reviewed and 

any supporting opinion, findings of fact or conclusions of law filed by the 

agency, board, commission or officer. 

  

    

        
    

    

      

Briefs - Contents - See Local Rule 13.6. 
  

Briefs - Length - Briefs in excess of the page length provided by 

the rules are seldom permitted. Local Rule 13.3 limits all opening briefs to 50 

pages, regardless of the form of printing or reproduction used, and provides 

that ''the Court looks with disfavor upon motions to exceed the page limitation 

and such a motion will only be granted for extraordinary and compelling reasons." 

  

       
       

        October 1, 1981



If a motion to file an extra length brief is submitted, a 

i draft copy of the brief should be submitted with the motion if available. 

Briefs - Number of Copies - Seven copies of briefs shall be filed 
in all cases. See Local Rule 13.5. 
  

  

Briefs - Form   

Color of Covers of Briefs - The covers of briefs operate for 

a busy court like traffic signals. It assists the Court for those signals to be 

correct. FRAP 32(a) requires that the cover of the brief of the appellant should 

be blue, that of the appellee red, and that of reply brief gray. Intervenor and 

amicus briefs are green. 

  

In cross-appeals, where the parties are proceeding under the 

method suggested in paragraph 6(c) of this section, the color of briefs shall be 

as follows: 

Brief for Appellant -- Blue 
Brief of Appellee-Cross-Appellant -- Red 

Brief of Cross-Appellee and Reply Brief 

for Appellant -- Red 
Reply Brief of Cross-Appellant -- Gray 

Legibility - While the court encourages cheap 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, whether counsel 

types the brief for reproduction or has it done elsewhere, that the size type be 

at least 11 point as required by FRAP 11. Local Rule 13.4 prescribes the number 

of lines on a page and spacing between lines. 

  

Briefs produced by any duplicating process in 8% x 11 inch size 

shall use only one side of each sheet. 
  

For other provisions as to the form of briefs, see Local Rule 

13.4 and FRAP 32. 

Briefs - Reply-Supplemental-Cross Appeal 
  

Reply Briefs - Extension of Time - Extensions of time for 
filing reply briefs are not looked upon with favor. If the right to file a reply 
brief is waived, immediate notice to the Clerk will expedite submission of the 
case to the Court. 

  

Supplemental Briefs - While the rules do not permit the 
filing of supplemental briefs without leave of Court, there will be some occasions, 

  

October 1, 1981  



    

  

   
       

& a - 

: 

particularly after a case is orally argued or submitted on the summary calendar, 

in which the Court will call for supplemental briefs on particular issues. 

  

Also, where intervening decisions or new developments should 

be brought to the Court's attention, counsel may direct a letter to the Clerk 

with citations and succinct comment. See FRAP 28(j). Supplemental briefs may 
         

       

      

  

  

      

not be filed. If a new case is not reported copies should be appended. The 

letter should be filed in four typewritten copies, with service on opposing 
counsel. 

    Briefs in Cross-Appeals - FRAP 28(h) provides that in a case 

with a cross-appeal the plaintiff below will be considered the appellant for the 
purposes of the briefing and appendix rules. However, it is more common practice 

for counsel to agree that the party filing the first notice of appeal should 

file the opening brief, and that within 30 days thereafter, the party filing the 

second notice of appeal should file a single brief containing both the argument 

as an appellant and the response to the opening brief. The first appellant then 

has 30 days thereafter to file his brief in response. 

time then applies. 

  

     
      

         
    

  

The usual reply brief 

       

    
   

  

      

Briefs - Time 
  

Time for Filing ~- See FRAP 31(a). 
  

      

Computing Time - Under FRAP 26, Saturdays, Sundays, and 

legal holidays are included in computing any period of time prescribed by the 

rules, except that when the last day falls on a Saturday, Sunday, or legal Ss 

holiday, the period is extended until the end of the next working day. : 
             

  

         
   

      

Except for briefs and appendices, all other papers, including 

petitions for rehearing, shall not be timely unless they are actually received 

by the Clerk within the time fixed for filing. Briefs and appendices 

shall be deemed filed on the day of mailing if the most expeditious form of 

delivery by mail is utilized.       

      
          

  

   
Appellant's brief must be mailed to the Clerk not later than 40 

days after the date of the filing of the record. Appellee has 33 days from the 

date of the certificate of service to place the brief in the mail. 
  

Extensions of Time - The Court's policy requires the timely 

filing of all papers within the period of time allowed by the rules, without 

granting extensions of time, except in those circumstances where it is shown to 

be impossible to file the necessary document on time. Failure to process appeals 

timely will cause such cases to be promptly dismissed for want of prosecution, 

without further notice, under the provisions of Local Rule 9.2. 

  

        
      
         
   

  

      

  

   Briefs - Miscellaneous Information 

  

  

Certificate of Service - The certificate of service required 

by FRAP 25(d) must be shown at the conclusion of the brief. 
  

  

October 1, 1981    



Acknowledgment of Briefs - The Clerk does not 

acknowledge the filing of briefs unless counsel make a special request. 
  

Sample Briefs dnd Appendices - Upon request, the Clerk 
will loan to counsel sample briefs and appendices which comply with the 
form prescribed for printed or offset briefs and appendices. 

  

Checklist available - A copy of the checklist used by 
the Clerk in examining briefs is available on request. 
  

g) SCREENING AND DECISIONS WITHOUT ORAL ARGUMENT 
  

Screening - Screening is the name given to the method used by the 
Court to determine whether cases should be orally argued or decided on briefs. 

This is done under FRAP 34, supplemented by Local Rule 18. 

  

Screening is performed by judges of the Court with assistance 

from the Office of Staff Attorney. When the last brief is filed, a case is sent 

to the Office of Staff Attorney for pre-screening classification. If the staff 

attorney concludes that the case does not warrant oral argument, a brief memo- 

randum is prepared and the case returned to the Clerk. The Clerk then routes 

the case to one of the Court's active judges, selected in rotation. If that 
judge agrees that the case does not warrant oral argument, the briefs, together 

with a proposed opinion, are forwarded to the two other judges on the screening 

panel. If any party requests oral argument, all panel judges must concur not 

only that the case does not warrant oral argument, but also in the panel opinion 

as a proper disposition without any special concurrence or dissent. If no party 
requests oral argument, all panel judges must concur that the case does not 

warrant oral argument. However, absent a party's request for oral argument, 

summary disposition may include a concurrence or a dissent by panel members. 

If the staff attorney concludes that oral argument is required, 

the case is still routed to the next active judge for screening. If the 

screening judge agrees, the case is placed on the next appropriate calendar, 

consistent with the Court's calendaring priorities. If the screening judge 

disagrees with the recommendation for oral argument, the case is disposed of 

by that judge's screening panel under the summary calendar procedure. 

Decision Without Oral Argument - When all panel members 
agree that oral argument of a case is not needed, the Clerk is advised 

that the case has been placed on the summary calendar in accordance with Local 

Rule 18. The decision of the Court usually accompanies the notice to the Clerk. 
The assignment of a case to the summary calendar does not mean that it is con- 

sidered to be an appeal of less importance than regular oral argument calendared 

cases. 

  

October 1, 1981  



    
      

PROCEDURES FROM ORAL ARGUMENT THROUGH ISSUANCE OF MANDATE 

  

     

  

5. 

  

  

     

          

      
    
    

    

    

     
      
    
    

    

a) ORAL ARGUMENT 
  

Court Year Schedule - A proposed Court schedule for an entire 

year is prepared by the Circuit Executive in collaboration with the Clerk and 

then approved by the Scheduling Committee of the Court, which consists of three 

active judges. The Court schedule does not consider what specific cases are to 

be heard, but only sets the weeks of Court in relation to the probable volume of 

cases and judge power availability for the year. 

  

Judge Assignments 
  

     

  

Panel Selection Procedure - Based on the number of weeks 

each active judge is to sit and the number of sittings available from the Court's 

senior judges, and visiting circuit or senior district judges, the Scheduling 

Committee creates panels of judges for the sessions of the Court for the entire 

Court year. The Scheduling Committee schedules judges so as to avoid repetitive 

scheduling of panels composed of the same members. 

  

The judge assignment schedule is made available only to the 

judges for their advance planning of their workload for the forthcoming Court 

year. 

  

       

  

  

Separation of Assignment of Judges and Calendaring of Cases - 
To insure complete objectivity in the assignment of judges and the calendaring 

of cases, the two functions of (1) judge assignment to panels and (2) calendaring 

of cases are carefully separated. Judge assignment is performed by the Scheduling = 

Committee. The Clerk is not furnished with the names of the panel members for 

any sessions until the Court calendars of cases are actually prepared and approved. 

  

     
    
        

    
    
   

  

Preparation and Publishing Calendars 
  

General - Calendars of cases are prepared by the Clerk under 

calendaring guidelines established by the Court. Calendars are prepared ‘for the 

number of sessions (usually between 3 and 4) scheduled for a month. After 

calendars of cases for the month are prepared by the Clerk, the Clerk is furnished 

for the first time with the names of the panel members assigned so that briefs 

and other materials can be distributed. 

     
    
    
       

    

Calendaring by Case Type - The Clerk balances the calendars 
by dividing the cases evenly among the panels by case type so that each panel 

for a particular month has more or less an equal number of different types of 

litigation for consideration. 

  

    
    
    

    

  

Preference Cases - The categories of cases listed in Local 

Rule 19 will be given preference in processing and disposition. To assist the 

Clerk in implementing this rule, any party to a civil appeal or review proceeding 

  

       

    October 1, 1981



requiring priority status, should notify the Clerk and cite the statutory support 
for the preference. 

Non-Preference Cases - All other cases are calendared for 
hearing in accordance with the Court's "first-in first-out" rule. Absent special 
priority assigned by the the court, those cases that are oldest in point of 
time of availability of briefs are ordinarily calendared first for hearing. 

  

Number of Cases Assigned - Unless special provision is made 

a regular session of a panel of the Court will hear 5 cases per day for 4 days, 

Monday through Thursday. 

  

Advance Notice ~- The Court seeks to give 60 days advance 
notice to counsel of assignment of cases for oral argument. 

  

Forwarding Briefs to Judges - Immediately after the issuance of 
the printed calendar and receipt by the Clerk of the names of the panel members, 
the Clerk forwards to the panel members copies of the briefs for the cases set 

on the calendar. : 

  

Pre-Argument Preparation - It is the invariable practice of the 
judges to read all briefs prior to oral argument. 
  

Identity of Panel - The Clerk may not disclose the names 
of the panel members for a particular session until one week in advance of the 

session. 

  

Checking In With Clerk's Office - As provided in the printed 
calendar, on the day of hearing counsel should first check in with the Clerk 
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. 

At that time the names of the judges who will hear the case will also be made 
known. 

  

Continuance of Oral Argument - As Local Rule 15.5 provides, after 

a case 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. 

An engagement of counsel in other courts will not be considered good cause 

except in extraordinary and unusual circumstances. 

  

Submission Without Argument - When a case is placed on the oral 
argument calendar, a judge of the Court has determined that oral argument would 

be helpful in that particular case. Therefore, requests of 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. See Local Rule 15.2. Attorneys appointed by 

the Court under the Criminal Justice Act must appear for oral argument unless 
excused by the Court for good cause shown. 

  

October 1, 1981  



If appellant fails to appear in a criminal appeal from conviction, 

the Court will not hear argument from the United States. 

Time for Oral Argument - The time for oral argument will be 

indicated on the printed calendar. Most cases are allowed 20 minutes to the 

side. For advance information of the judges, before the call of the calendar, 

counsel should be prepared to advise the Courtroom deputy when checking in, of 

the minimum time required for oral argument, and how appellant wishes to divide 

the time between opening and rebuttal arguments. 

  

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 or letter to the Clerk filed well in advance of 

the oral argument. 

  

Calling the Calendar - Usually the Court will not call the calendar 

unless there are some special problems requiring attention, and the Court proceeds 

to hear the cases in the order in which they appear on the calendar. But all 

counsel must be present at the beginning of the Court session for the day. 

  

Presenting Argument - Counsel should prepare their 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 circum- 

stances. Counsel should be prepared to answer questions by the Court. The 

Court will consider a motion to extend the time allotted for argument if ques- 

tions by the Court have prevented completion of counsel argument. 

  

Lighting Signal Procedure - The Courtroom Deputy will keep track 
of the time with the use of lighting signals: 
  

Appellant's Argument - A green light signals the beginning of the 
opening argument of appellant. Two minutes prior to the 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. : 

  

Appellee's Argument - The same procedure as outlined above for 
appellant is used. 
  

Appellant's Rebuttal - A green light signals commencement of 
time; a red light comes on when the time expires. No yellow caution light is 

used for this argument. 

  

Case Conferences and Designation of Writing Judge - At the con- 
clusion of each day's arguments a conference is usually held on the cases heard 

by the panel. A tentative decision is reached and opinion writing is assigned 

by the presiding judge. There is no pre-argument assignment of opinion writing. 

Judges do not specialize. Assignments are made so as to equalize the workload 

of the entire session. 

  

October 1, 1981  



    

      
      

    

  

    
    b) OPINIONS 

® Processing of Opinions - After the draft opinion has been pre- 

pared, the opinion writing judge circulates the proposed opinion to each of the 

other two judges on the panel for the purpose of obtaining their concurrence, 

dissent, or special concurrence. Under the Court's policy, 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 dissents, or special concurrences, sufficient to constitute a 

majority, he then sends to the Clerk the original typewritten copy and the 

concurrences of both judges, and any dissent or special concurrence. 

  

         
           
   

    

   

       
        
    

    

   Time Schedule for Concurrence or Dissent - A member of a panel 

must within 30 days after receipt of a proposed opinion notify the other panel 

members whether he will concur, dissent, or write a special comment. Following 

such notice the judge has an additional 30 days to prepare a special or dis- 

senting opinion. Upon expiration of this 60-day period, the majority opinion 

must be filed showing, if requested, a notation that the specified judge may 

later file a dissent or special concurrence if one has not been received. 

  

Circulation to Non-Panel Members - Because of the large number of 

opinions being issued annually, it is impractical for the Court to circulate 

among the 14 active judges and the senior judges on the Court copies of all 

proposed opinions. In special cases, a panel or member thereof may circulate an 

opinion to all the members of the Court. 

  

     
        
    

  

       
    
     
   

  

     

  

Publication of Opinions - Opinions that the writing judge 

= believes have precedential value are published. The style of all non-published 

per curiams and affirmances without opinions under Local Rule 21 is published in 

(See for example 507 F.2d 1278). 

  

table form in the Federal Reporter.     
Release of Opinions - The median period for rendering an opinion 

after a case has been orally argued, or placed on the summary calendar is 60 

days. The Clerk's Office is not given advance notice as to when a decision will 

be rendered and, therefore, this information is not available to counsel. 

  

      
      

    

    

          
     
   
   

  

   
All opinions are announced by the Clerk in New Orleans, and the 

opinions are then made available to the press and copies sent to all counsel by 

priority mail. On request, the Clerk will notify counsel who desire immediate 

collect telephonic notification. 

    

     
    
   

Printed slip opinions are subject to typographical and printing 

errors. The cooperation of the Bar in calling apparent errors to the attention 

of the Clerk is solicited. 

     
    

    

c) PETITIONS FOR REHEARING OR REHEARING EN BANC 
  

Necessity for Filing - It is not necessary to file a petition for 
  

October 1, 1981



rehearing in the Court of Appeals as a prerequisite to the filing of a petition 

for certiorari in the Supreme Court of the United States. 

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 issue previously presented 

or to attack the Court's well settled summary calendar procedures. Petitions 

for rehearing are reviewed by panel members only. Four copies of all petitions 

for rehearing shall be filed. 

  

Response to Petitions - No response to a petition for rehearing 

or rehearing en banc should be filed unless requested by the Court. 
  

Time for Filing--Extensions - The petition (panel or en banc) 

must be filed within 14 days after the date of the opinion. Counsel should not 

request extensions of time except for the most compelling reasons. Printing 

delays will not be considered a sufficient reason, as clear and legible repro- 

duced copies of typewritten petitions are authorized in the form prescribed by 

FRAP 40(b). 

  

Composition of En Banc Court - The en banc Court is composed of 

all active judges of the Court. 
  

Suggestion for Rehearing En Banc 
  

Extraordinary Nature of Suggestions for Rehearing En Banc - 

A suggestion for rehearing en banc is an extraordinary procedure which is intended 

to bring to the attention of the entire Court a precedent-setting error of 

exceptional public importance or an opinion which directly conflicts with prior 

Supreme Court or Fifth Circuit precedent. Alleged errors in the determination 

of state law, or in the facts of the case (including sufficiency of the evidence), 

or error asserted in the misapplication of correct precedent to the facts of the 

case, are matters for panel rehearing but not for rehearing en banc. 

  

  

The Most Abused Prerogative - Suggestions for rehearing en 

banc are the most abused prerogative of appellate advocates in the Fifth Circuit. 

While such suggestions were filed in 15% of the cases decided by this circuit 

last year, less than 1% of the cases decided by the Court are reheard en banc; 

and frequently rehearings granted result from a request for en banc reconsidera- 

tion by a judge of the Court initiated independent of any petition. 

  

Rule Requirements - The form, contents and other rule require- 

ments of a suggestion for rehearing en banc are set out in FRAP 35 and Local 

Rule 16. 

  

The suggestion shall not be incorporated in the petition 

for rehearing before the panel if one is filed, but shall be complete in itself 

to or adopt by reference any matter from other briefs or motions in the case. 

  

  

October 1, 1981  



Handling of Petition by the Judges 
  

Panel Has Control - Although a copy of the suggestion for 
rehearing en banc is distributed to each panel judge and every active judge of 
the Court, the filing of a suggestion for rehearing en banc does not take the 
case out of the plenary control of the panel deciding the case. A suggestion 
for rehearing en banc will be treated as a petition for rehearing by the panel 
if no petition is filed. The panel may grant rehearing without action by the 
full Court. 

  

Requesting a Poll - Within 10 days of the filing of the 
suggestion (30 days during the period from July to September), any active 
circuit judge of the Court or any member of the panel rendering the decision, 
desiring that the case be reheard en banc may notify the writing judge (the 
senior active Fifth Circuit judge if the writing judge is a non-active member) 
to this effect on or before the date shown on the Clerk's form which transmits 
the suggestion. This is also notice that in the event the panel declines to 
grant rehearing an en banc poll is desired. 

  

If the panel, after such notice, concludes not to grant the 
rehearing it notifies the Chief Judge of that fact and the Chief Judge then 
polls the Court by written ballot on whether en banc rehearing should be granted. 

Requesting a Poll on Court's Own Motion =- Any active member 
of the Court or any member of the panel rendering the decision may request that 
the active members of the Court be polled on whether rehearing en banc should be 

granted whether or not a suggestion 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 judges of the Court and any other 

panel member. 

  

Polling the Court - When a request to poll the Court is 

made, each active Judge of the Court casts a form ballot and sends a copy to all 

other active judges of the Court and panel members. The ballot form indicates 

whether the judge voting desires oral argument if en banc is granted. 

  

Negative Poll - If the vote on the poll is unfavorable to 
the grant of en banc consideration, the writing judge is so advised by the Chief 

Judge. In this event, the panel originally hearing the case then enters the 

appropriate order. 

  

Affirmative Poll - If a majority of the judges in regular 

active service vote for en banc hearing or rehearing, the Chief Judge instructs 

the Clerk as to the appropriate order to be entered. This order indicates that 

a rehearing en banc with or without oral argument has been granted, and specifies 

a briefing schedule for the filing of supplemental briefs. 

  

Every party must then furnish to the Clerk 15 additional 

copies of every brief the party previously filed. 

October 1, 1981  



No Poll Request - If after expiration of the specified time 

for requesting a poll the writing judge of the panel has not received a request 

from any active member of the Court, the panel, without further notice, may take 

such action as it deems appropriate on the suggestion. However, in its order 

disposing of the case and the suggestion, the panel must enter an order denying 

suggestion for rehearing en banc showing no poll was requested by any judge. 

  

Effect of Granting Rehearing En Banc - Unless otherwise 

expressly provided, the effect of granting a rehearing en banc is to vacate the 

previous opinion and judgment of the Court and to stay the mandate. 

  

d) ISSUANCE OR STAY OF MANDATE - In the absence of a motion for stay or a 

stay by operation of order, rule or procedure, mandates are issued promptly on 

the 22nd day after the opinion is rendered. 

  

The original record and any exhibits are returned to the Clerk of the 

District Court with the mandate. (See procedures outlined in FRAP 41 and Local 

Rule 17). 

6. MISCELLANEOUS INFORMATION 
  

a) CERTIFIED RECORDS FOR SUPREME COURT OF THE UNITED STATES -~ While Rule 
19.1 of the Supreme Court provides for the filing of the record at the time a 
petition for certiorari is docketed, the policy of that Court is to discourage 

the filing thereof unless 'the record is deemed essential to a proper under- 
standing of the case." Therefore the Clerk's Office does not prepare a certi- 

fied record unless specifically requested by counsel. However, if certiorari is 

granted, a certified record will automatically be prepared. (See 38 U.S.L.W. 

3501 wherein the procedure for filing a petition for certiorari and the certi- 

fied records are discussed). 

  

b) RECUSAL OR DISQUALIFICATION OF JUDGES 
  

Grounds - A judge may recuse himself under any circumstances he 

considers sufficient to require such action. A judge shall disqualify himself 

under circumstances set forth in 28 U.S.C. 8455 or in accordance with Canon 3C, 

Code of Judicial Conduct for United States Judges as approved by the Judicial 

Conference of the United States, April 1973. 

Procedure 

Administrative Motions - If a judge who is the initiating 

judge recuses himself from considering or is disqualified to consider an adminis- 

trative motion, the file is returned to the Clerk who then sends it to the next 

initiating judge. 

  

Summary Calendar Cases - The same procedure is followed as 
  

October 1, 1981  



in paragraph 2a above, except that the substitute or backup judge is called upon 

since the Court's practice is that cases are not ordinarily disposed of on the 

merits by only two judges. 

Hearing Calendar Cases - Prior to the formal publication of 

the Court calendar, each judge on the panel is furnished with a copy of the 

Local Rule 13 certificate of interested persons for each judge's advance study 

to determine if he should recuse himself or is disqualified in any of the cases. 

  

If a judge recuses himself, or is disqualified, he 

immediately notifies the other members of the panel and arrangements are made 

for a substitute judge. 

c) SPECIAL PANELS AND CASES REQUIRING SPECIAL HANDLING 
  

Corporate Reorganization. Chapter 11.   

The first appeal is handled in the usual manner. Counsel shall 

in their briefs state 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 thus making the handling of future appeals 

more expeditious and economical for litigants, counsel and the Court. (For the 

local rule regarding direct appeals in bankruptcy matters see Local Rule 23). 

Federal Energy Regulatory Commission Cases - Because these pro- 

ceedings often involve multiple parties before the Commission and on appeal, 

the Court has adopted special procedures for the purpose 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 Local Rule 11. 

  

To avoid disqualification problems in the selection of panels 

on a routing basis, panels to handle cases involving regulation of natural gas 

companies by the Federal Energy Regulatory Commission are drawn by lot on a 

yearly basis from the active judges of the Court. All administrative motions 

filed in such pending cases during that panel's period of service and any cases 

that may be readied on the merits prior to the expiration of that panel's period 

of service are referred to the panel originally drawn. 

Labor Board Original Contempt Proceedings   

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 to the original panel which 

previously heard or decided the case on its merits. That panel, through the 

initiating or writing judge, is then responsible for issuance of all prelimi- 

nary orders including among others the order to show cause fixing the time for 

filing a response to the pleadings or answer. 

  

October 1, 1981  



If the former panel determines that good reason exists for not 

assuming direction of the case (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. 

Where Evidentiary Hearing Required - If the case 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, usually one selected on recommendation of the Director, Office of Admin- 

istrative Law Judge of the Civil Service Commission. 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. 

  

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 routinely handled by the Court under its screening 

procedures. 

  

d) JUDICIAL CONFERENCE - Pursuant to 28 U.S.C. 8333 there is held annu- 

ally, at such time and place, usually the second full week in May, as designated 

by the Chief Judge of the Circuit, a conference of all circuit, district and 

bankruptcy judges of the circuit for the purpose of considering the state of 

  

business of the Courts and advising means of improving the administration of » 

justice within the circuit. A copy of the Court's rule for representation and 
active participation of the member of the bar of the circuit is available from 

the Clerk upon request. 

e) DISMISSAL OF APPEALS - Whenever an appellant or petitioner fails to 

file a brief or otherwise fails to comply with the rules of the Court, the Clerk 

will enter an order dismissing the appeal for want of prosecution, without 

notice, except in direct criminal appeals, habeas corpus proceeding under 28 

U.S.C. §2254 and 2255 cases and prisoner cases brought under 42 U.S.C. § 1983. 
In those latter cases the Clerk issues a notice to counsel or the appellant of 

the impending action to be taken unless the default is remedied within a given 

time period. 

  

f) FRIVOLOUS APPEALS - If upon the consideration of any interlocutory 

motion it shall appear to the Court that the appeal is frivolous and entirely 
without merit, the appeal may be dismissed. See Local Rule 20. 

  

  

g) WRITS OF MANDAMUS AND PROHIBITION - See Local Rule 12 as a supplement 

to FRAP 21, 25(b) and 25(c). : 

October 1, 1981  



    

  

h) PROCEDURES FOR PROCESSING COMPLAINTS OF JUDICIAL MISCONDUCT - A com- 
plaint against any federal judge or magistrate in this circuit as to the exercise 

% of his judicial duties must be made in writing by a party or counsel and verified 
under oath based on personal knowledge. In lieu of such oath, all facts alleged 

must be supported by affidavit based on personal knowledge. All complaints 
shall be filed with the Clerk's office. Procedures to be followed shall be 
conducted in accordance with the provisions of 28 U.S.C. § 372(c) 

i) DIRECT APPEALS FROM BANKRUPTCY COURTS ~- The Federal Rules of Appellate 

Procedure and Local Rule 23 apply to all appeals from Bankruptcy Courts to this 
Court. 

     

       

   

   
        

     
    

     
     

      
        

         

     

      

  

     

See Local Rule 23.2 governing procedures for direct appeal. 

  

   
j) STATISTICS - The Clerk prepares a large number of statistical reports 

periodically as requested by the Court and the Administrative Office of the 
United States Courts. In addition to recording historical facts for purposes of 

determining personnel and equipment needs, these reports are used for internal 
management of the Court's affairs. They are distributed regularly to the judges 

of the Court and the Circuit Executive and are the topic of discussion at court 

meetings. In addition, they are used by the judges, the Circuit Executive, and 

the Clerk's Office for purposes of determining future scheduling of cases, 

sessions of Court, needs for judicial manpower, workload of the judges, and 
other management requirements. 

  

     
         

      

    

       

    

    
       

    

    k) CRIMINAL JUSTICE ACT PLAN AND PLAN FOR EXPEDITING CRIMINAL APPEALS - 
The Court has adopted a plan and guidelines under the Criminal Justice Act, and 
a plan for expediting criminal appeals. Copies are available from the Clerk. 

  

    

   7. LAWYERS ADVISORY COMMITTEE 
  

   
The Court is assisted in its rule-making function and in the drafting of 

these Internal Operating Procedures by a committee composed of two lawyers from 
each state in the circuit. These lawyers are chosen by resident active circuit 

judges in such states. Their terms are for three years. They examine and 
comment upon suggested rule and procedure changes.         

   8. 

  

    

       
    
   
       
     
     

    

FIFTH CIRCUIT COURT OF APPEALS REORGANIZATION ACT 
OF 1980 (PUBLIC LAW 96-452-OCTOBER 14, 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 a case assigned to the oral argument calendar is submitted for 

decision, is the date on which the initial argument of the case is heard. The 
date a case 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 non-argu- 
ment calendar disposition. 

October 1, 1981 [||69ed1846-f111-466a-905a-748776d44924||]