Prior to 1968, most federal appellate procedures were left to the discretion of the individual U.S. courts of appeals. The Supreme Court first regulated the procedure of those courts in 1934 but did so in a limited fashion by adopting a small set of rules. The impetus for these initial rules was a congressional grant of authority to the Court to set forth procedures following a plea or verdict of guilty in a U.S. district court. Most of the thirteen rules applied to postconviction procedures in the trial court, but a few of them delimited preliminary procedures in the U.S. courts of appeals, such as hearing a motion to dismiss an appeal, granting bail pending an appeal, and scheduling oral argument. In 1938, the Federal Rules of Civil Procedure went into effect. Rules 72–76 covered posttrial matters—including filing a notice of appeal, posting bond, and compiling the record—but their reach extended only to the docketing of the appeal. The civil rules could not have gone further, because the Rules Enabling Act of 1934 had authorized the Supreme Court to regulate civil procedure in the U.S. district courts, but not in the U.S. courts of appeals. When the Federal Rules of Criminal Procedure went into effect in 1946, only Rules 37–39 covered appeals. Similar in scope to the 1934 postconviction rules, these dealt only with preliminary matters.

In the 1960s, many in the legal profession felt dissatisfied with the variance in appellate procedure between the judicial circuits. For one thing, federal appellate caseloads had been on the rise for some time. After a dip in the late 1940s, the number of cases docketed annually in the U.S. courts of appeals rose steadily, from 2,982 in 1951 to 6,023 in 1964. Larger caseloads made it more important to have procedures in place that would expedite the movement of cases through the courts. Litigation had also become more national in scope, so that lawyers with large practices might represent clients in multiple judicial circuits, making compliance with varying procedural rules frustrating.

Some circuits were known for employing inefficient and expensive procedures, causing many appellate lawyers and judges to covet the procedural uniformity that had existed in the federal trial courts since 1938. For example, as a Georgetown law professor pointed out in 1966, the Second Circuit required oral argument to be held on every motion filed, including those that were unopposed. This policy resulted in higher fees for clients whose lawyers might be forced to travel a long distance to New York City simply to ask for an extension of time. Other inconsistent rules caused complication for litigators, such as requirements that covers of briefs be certain colors, which differed between circuits, and the Tenth Circuit’s mandate that briefs be printed on a special kind of paper known as India eggshell.

In part due to the influence of Chief Justice Earl Warren, Congress in 1958 authorized the Judicial Conference of the United States (JCUS)—the national policy-making body for the federal courts—to “carry on a continuous study” of the rules of practice and procedure throughout the federal judiciary. As a result, the Conference established a Standing Committee on Rules of Practice and Procedure, which in turn created five advisory committees, including one devoted to studying appellate procedure. The thirteen-member Advisory Committee on Appellate Rules, chaired by Judge E. Barrett Prettyman of the U.S. Court of Appeals for the District of Columbia Circuit, included federal judges, lawyers, and legal scholars who were appointed to either two- or four-year terms. Professor Bernard Ward of Notre Dame Law School was appointed as reporter for the committee.

The Advisory Committee initially focused on creating procedural rules for the review of decisions of the Tax Court of the United States, but soon put this task on hold to begin a more comprehensive study aimed at developing uniform rules for appeals from the U.S. district courts and administrative agencies. At its first plenary meeting in January 1961, the committee made it clear that it planned to draw extensively from existing appellate rules. To begin, the committee collected the appellate rules of all states, the eleven federal courts of appeals, and foreign countries with comparable legal systems, such as Canada and the United Kingdom, with the aim of making a comparative study. At that first meeting, the members of the Advisory Committee discussed the need for congressional legislation enabling the Supreme Court to promulgate civil appellate rules, but the majority preferred to focus on preparing a set of proposed rules before formally requesting congressional action.

The day following that meeting, the Advisory Committee met with the clerks of all eleven U.S. courts of appeals as well as the Clerk of the Supreme Court. The clerks spoke about appellate procedures in their courts and discussed several other specific issues: possible methods of reducing the costs of appeals; in forma pauperis cases; appeals involving collateral attacks on criminal sentences; the printing of records; and appeals filed in two or more circuits.

By July 1962, the committee had a working outline composed of 47 rule headings—not yet accompanied by text—grouped into eight titles. A three-step procedure was followed for each proposed heading, consisting of a general discussion of principles and content, the preparation of a tentative draft of the text of the rule, and, following discussion of the tentative draft, the preparation and adoption of a preliminary draft. The Advisory Committee in late 1963 submitted its preliminary draft of the full set of Proposed Uniform Rules of Federal Appellate Procedure to the Standing Committee, which then circulated the draft to judges and attorneys throughout the country, requesting that they return comments and suggestions by the spring of 1965.

The Advisory Committee continued to work on the proposed rules, considering comments as they arrived and making changes, from 1964 until 1966. It was not until August 1966 that the Advisory Committee submitted a final draft of the rules to the Standing Committee for consideration at its September meeting. The Standing Committee approved the rules with two exceptions, requesting (1) revisions to Rule 9 on the release of prisoners on bail to make it consistent with the Bail Reform Act of 1966, and (2) a more detailed study of Rule 30 regarding the appendix to the parties’ briefs. Because the procedure for compiling the appendix in the Advisory Committee’s draft differed from the practice in most of the circuits (as is explained below), the Standing Committee wished to have all four methods that had been considered circulated for public comment before the Advisory Committee made its final recommendation. It took approximately another year for the Advisory Committee to solicit and review comments on Rule 30, after which it adhered to its original recommendation.

In November 1966, while the Advisory Committee made its revisions, Congress passed an act permitting the Supreme Court to promulgate procedural rules for civil cases in the U.S. courts of appeals. The law eliminated a major barrier to the implementation of uniform appellate rules. In introducing the bill in April 1966, Senator Joseph Tydings of Maryland called the lack of such legislation “an apparent oversight,” pointing out that the Court already had the authority to prescribe appellate rules for criminal cases, admiralty and maritime cases, and cases from the Tax Court. The absence of uniform appellate rules that included civil cases represented “the only gap in the Supreme Court’s rulemaking power.”

In September 1967, the Standing Committee submitted the Advisory Committee draft to the full JCUS, which signed off on the proposed rules and sent them to the Supreme Court. The Court consented in December and transmitted the rules to Congress in January 1968. Congress declined to exercise its veto power over any aspect of the rules, and on July 1, 1968, more than seven years after the Advisory Committee began its study, the Federal Rules of Appellate Procedure (FRAP) went into effect.

The final draft that was adopted contained forty-eight individual rules grouped into seven titles. Title I covered the applicability and scope of the rules, while Titles II, III, and IV contained provisions for appeals from the U.S. district courts, the Tax Court, and administrative proceedings, respectively. After Titles V and VI, dealing with extraordinary writs and habeas corpus proceedings, the rules concluded with the general provisions contained in Title VII. An appendix contained model forms for the use of counsel. The new rules provided procedures covering every aspect of appellate practice, including filing the notice of appeal, filing a bond for costs, obtaining a stay of a lower court judgment, reproducing the portions of the trial record to be used on appeal, filing motions and briefs, computing filing deadlines, conducting oral argument, and the entry of judgment. While the procedure for getting a matter into a court of appeals varied slightly depending on its source, postdocketing procedures were uniform.

The new appellate rules did not draw much public commentary, but those who did express their opinions generally praised them. Law professor Harvey Zuckman, a former civil attorney in the Department of Justice, wrote in the Saint Louis University Law Journal that the rules were “long overdue in coming.” “Besides possessing the virtues of greater uniformity and completeness,” he continued, “they represent a reasonably successful effort on the part of the drafters to choose the best procedures developed by the individual circuits over the years.” Likewise, Thomas Strubbe, the chief deputy clerk in the Seventh Circuit, predicted that the rules would “refine procedural practice greatly and offer help, not hindrance, to attorneys involved in the federal appellate practice.”

The most controversial new rule was Rule 30, which concerned the appendix to the parties’ briefs. Prior to the adoption of uniform appellate rules, most federal judicial circuits employed some form of a “fragmented” appendix procedure, whereby the appellant and appellee each reproduced and filed with their briefs those portions of the record they believed to be necessary to the court’s review. Only the District of Columbia Circuit permitted the appellant to file a joint appendix, the content of which was determined by agreement of the parties or by the designation of certain portions of the record by the appellant and the counterdesignation of additional material by the appellee. The federal rules adopted the joint appendix approach, resulting in a significant procedural change in ten of the eleven judicial circuits. The Advisory Committee recommended this approach in part because the Supreme Court had in June 1967 adopted the same procedure. Some attorneys were critical of the new rule, believing it to be cumbersome and expensive.

First amended in 1970, the FRAP were amended on many subsequent occasions. Other than three changes made pursuant to statutes, amendments have originated from the Advisory Committee, which publishes proposed amendments and solicits public comment. As with the original rules, the amendments are adopted by the JCUS, forwarded to the Supreme Court for its approval, and finally reviewed by Congress before taking effect. While many amendments to the rules have been substantive, others have been more technical in nature. In 1998, all federal court procedural rules were redrafted to harmonize language and terminology and make the rules more easily understood. The Advisory Committee notes on the 1998 amendments made explicit that these changes were intended to be stylistic only.