Second Circuit Procedure: How to Reinstate an Appeal Dismissed for Failure to Adhere to a Briefing Order

Jacquelyn L. Mouquin, Esq. In the last year, the Second Circuit amended its rules to include automatic dismissal language in every appellant’s briefing order. See Second Circuit Procedure for Dismissing an Appeal or Sanctioning Counsel When the Court Sets a Brief Filing Date and a Brief is Not Timely Filed - Effective April 1, 2014. See also US Court of Appeals for the Second Circuit Scheduling Orders: “Automatic Dismissal” Language Actually Means What It Says.

Counsel Press strongly recommends adhering to all briefing orders. However, for appellants, who have indeed failed to file their briefs and appendices by their ordered deadlines, the United States Court of Appeals for the Second Circuit has given guidance on how to reinstate the appeal pursuant to Local Rule 27.1(i).

The motion to reinstate must be filed within 14 days of the order dismissing the appeal. Although the dismissal is guaranteed if you fail to file on time, a dismissal order must be added to the docket before the time to file this motion is triggered. This generally occurs on the business day following the actual due date, but it is important to count the 14 days from the actual order.

What to include
The motion to reinstate requires both the T-1080 form (the Court’s general motion form) and an affirmation in support of the motion, explaining the reasons for the party’s failure to adhere to the briefing order. These two documents should be filed as one event in ECF. Unless there are exhibits to this motion which cause it to exceed 50 pages, no hard copies of these documents are required to be filed in cases where all parties are ECF-registered.

Immediately after filing the motion, under a separate event, the final brief and appendix1 must be filed. Paper copies of the brief and appendix must be filed according to the Court’s usual practices and procedures.

If you have any confusion with these guidelines or any other Second Circuit procedure, please feel free to e-mail me.

Please contact me with any questions regarding preparing and filing any appeal. Counsel Press provides a full spectrum of appellate services. Our New York office focuses on rule-compliant appellate filings in the New York State Court of Appeals, New York State Appellate Division (First-Fourth Departments), New York State Appellate Term (First-Second Departments) and the US Court of Appeals for the Second Circuit. Through our local offices, we offer in-depth knowledge of rules and procedures in all state and federal appellate courts nationwide.
1Although Local Rule 27.1 does not mention the appendix, the Court expects the final version to be filed the same day as the motion and brief.

Tagged: Appellate Practice, Appellate Procedure, United States Court of Appeals for the Second Circuit, Litigation