Source(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 26, 2009, eff. Dec. 1, 2009.)
Notes of Advisory Committee on Rules—1967
This rule is derived in the main from Third Circuit Rule 11 (2), which is similar to the rule governing appeals under 28 U.S.C. § 1292 (b) in a majority of the circuits. The second sentence of subdivision (a) resolves a conflict over the question of whether the district court can amend an order by supplying the statement required by § 1292(b) at any time after entry of the order, with the result that the time fixed by the statute commences to run on the date of entry of the order as amended. Compare Milbert v. Bison Laboratories, 260 F.2d 431 (3d Cir., 1958) with Sperry Rand Corporation v. Bell Telephone Laboratories, 272 F.2d (2d Cir., 1959), Hadjipateras v. Pacifica, S.A., 290 F.2d 697 (5th Cir., 1961), and Houston Fearless Corporation v. Teter, 313 F.2d 91 (10th Cir., 1962). The view taken by the Second, Fifth and Tenth Circuits seems theoretically and practically sound, and the rule adopts it. Although a majority of the circuits now require the filing of a notice of appeal following the grant of permission to appeal, filing of the notice serves no function other than to provide a time from which the time for transmitting the record and docketing the appeal begins to run.
Notes of Advisory Committee on Rules—1979 Amendment
The proposed amendment adapts to the practice in appeals from interlocutory orders under 28 U.S.C. § 1292 (b) the provisions of proposed Rule 3 (e) above, requiring payment of all fees in the district court upon the filing of the notice of appeal. See Note to proposed amended Rule 3 (e), supra.
Notes of Advisory Committee on Rules—1994 Amendment
Subdivision (c). The amendment makes it clear that a court may require a different number of copies either by rule or by order in an individual case. The number of copies of any document that a court of appeals needs varies depending upon the way in which the court conducts business. The internal operation of the courts of appeals necessarily varies from circuit to circuit because of differences in the number of judges, the geographic area included within the circuit, and other such factors. Uniformity could be achieved only by setting the number of copies artificially high so that parties in all circuits file enough copies to satisfy the needs of the court requiring the greatest number. Rather than do that, the Committee decided to make it clear that local rules may require a greater or lesser number of copies and that, if the circumstances of a particular case indicate the need for a different number of copies in that case, the court may so order.
Committee Notes on Rules—1998 Amendment
In 1992 Congress added subsection (e) to 28 U.S.C. § 1292. Subsection (e) says that the Supreme Court has power to prescribe rules that “provide for an appeal of an interlocutory decision to the courts of appeals that is not otherwise provided for” in section 1292. The amendment of Rule 5 was prompted by the possibility of new rules authorizing additional interlocutory appeals. Rather than add a separate rule governing each such appeal, the Committee believes it is preferable to amend Rule 5 so that is will govern all such appeals.
In addition the Federal Courts Improvement Act of 1996, Pub. L. 104–317, abolished appeals by permission under 28 U.S.C. § 636 (c)(5), making Rule 5.1 obsolete.
This new Rule 5 is intended to govern all discretionary appeals from district-court orders, judgments, or decrees. At this time that includes interlocutory appeals under 28 U.S.C. § 1292 (b), (c)(1), and (d)(1) & (2). If additional interlocutory appeals are authorized under § 1292(e), the new Rule is intended to govern them if the appeals are discretionary.
Subdivision (a). Paragraph (a)(1) says that when granting an appeal is within a court of appeals’ discretion, a party may file a petition for permission to appeal. The time for filing provision states only that the petition must be filed within the time provided in the statute or rule authorizing the appeal or, if no such time is specified, within the time provided by Rule 4 (a) for filing a notice of appeal.
Section 1292 (b), (c), and (d) provide that the petition must be filed within 10 days after entry of the order containing the statement prescribed in the statute. Existing Rule 5 (a) provides that if a district court amends an order to contain the prescribed statement, the petition must be filed within 10 days after entry of the amended order. The new rule similarly says that if a party cannot petition without the district court’s permission or statement that necessary circumstances are present, the district court may amend its order to include such a statement and the time to petition runs from the entry of the amended order.
The provision that the Rule 4 (a) time for filing a notice of appeal should apply if the statute or rule is silent about the filing time was drawn from existing Rule 5.1.
Subdivision (b). The changes made in the provisions in paragraph (b)(1) are intended only to broaden them sufficiently to make them appropriate for all discretionary appeals.
In paragraph (b)(2) a uniform time—7 days—is established for filing an answer in opposition or cross-petition. Seven days is the time for responding under existing Rule 5 and is an appropriate length of time when dealing with an interlocutory appeal. Although existing Rule 5.1 provides 14 days for responding, the Committee does not believe that the longer response time is necessary.
Subdivision (c). Subdivision (c) is substantively unchanged.
Subdivision (d). Paragraph (d)(2) is amended to state that “the date when the order granting permission to appeal is entered serves as the date of the notice of appeal” for purposes of calculating time under the rules. That language simply clarifies existing practice.
Committee Notes on Rules—2002 Amendment
Subdivision (c). A petition for permission to appeal, a cross-petition for permission to appeal, and an answer to a petition or cross-petition for permission to appeal are all “other papers” for purposes of Rule 32 (c)(2), and all of the requirements of Rule 32 (a) apply to those papers, except as provided in Rule 32 (c)(2). During the 1998 restyling of the Federal Rules of Appellate Procedure, Rule 5 (c) was inadvertently changed to suggest that only the requirements of Rule 32 (a)(1) apply to such papers. Rule 5 (c) has been amended to correct that error.
Changes Made After Publication and Comments. No changes were made to the text of the proposed amendment or to the Committee Note.
Committee Notes on Rules—2009 Amendment
Subdivision (b)(2). Subdivision (b)(2) is amended in the light of the change in Rule 26 (a)’s time computation rules. Subdivision (b)(2) formerly required that an answer in opposition to a petition for permission to appeal, or a cross-petition for permission to appeal, be filed “within 7 days after the petition is served.” Under former Rule 26 (a), “7 days” always meant at least 9 days and could mean as many as 11 or even 13 days. Under current Rule 26 (a), intermediate weekends and holidays are counted. Changing the period from 7 to 10 days offsets the change in computation approach. See the Note to Rule 26.
Subdivision (d)(1). The time set in the former rule at 10 days has been revised to 14 days. See the Note to Rule 26.
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