Federal Judicial Center Exploratory Study of the Appellate

Cost Bond Provisions of 

Rule 7 of the Federal Rules of Appellate Procedure

Results of a Three District Exploratory Study and Proposal for Further Study

Presented to the

The Advisory Committee on Appellate Rules

of the Judicial Conference of the United States

Marie Leary

Federal Judicial Center

April 2008

This report was undertaken at the request of the Judicial Conference’s Advisory Committee on Appellate

Rules and is in furtherance of the Center’s statutory mission to conduct and stimulate research and

development for the improvement of judicial administration. The views expressed are those of the author

and not necessarily those of the Federal Judicial Center.
Federal Judicial Center FRAP 7 Exploratory Study for the Advisory Committee on Appellate Rules April 2008

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Contents

I. Introduction 1

II. Limitations of Exploratory Study and Possible Questions

for Further Research 1

III. The Exploratory Study: The Research Data Collection Protocol 3

IV. Exploratory Study: Summary of Findings 5

A. FRAP 7 Motions Brought and Granted 7

B. Types of Cases with FRAP 7 Activity 7

C. Parties Moving for FRAP 7 Bond (Identity of Appellee) 8

D. Parties Subject to FRAP 7 Motion (Identify of Appellant) 10

E. Amounts Requested in Motions for FRAP 7 Bond 11

F. Components of Bond in FRAP 7 Motion 12

G. Amount of FRAP 7 Bonds Granted 13

H. Components of Granted FRAP 7 Bond Amounts 14

I. Appeal of the Bond Order 16

J. Posting of FRAP 7 Bond 16

K. Final Outcome of Appeal 17

V. Conclusions and Possible Options for Committee Action 19

Appendix I: Exploratory Study Methods 21

Appendix II: Draft Protocol for Further FJC Study of FRAP 7 

Appellate Cost Bonds [on file with the author]
Federal Judicial Center FRAP 7 Exploratory Study for the Advisory Committee on Appellate Rules April 2008

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I. Introduction

At its Fall 2007 meeting, the Appellate Rules Advisory Committee [the Committee]

discussed the current circuit split over whether Federal Rule of Appellate Procedure 7

[FRAP 7] authorizes the inclusion of attorney fees in a bond for costs on appeal. This

item has been brought back before the Committee as it determines whether, in light of

recent case law developments, to proceed with a proposed amendment approved by the

Committee in 2003 which made clear that FRAP 7 bond “costs” do not include attorney 

fees.

Before proceeding, the Committee requested that the Federal Judicial Center

[FJC] consider the possibility of empirical research on FRAP 7 bond activity in the

federal courts. This report

1 describes an exploratory study undertaken by the FJC of

FRAP 7 bond activity in three federal district courts: the Southern District of New York 

[NYS], the Central District of California [CAC], and the Eastern District of Michigan 

[MIE]. These districts are in circuits that permit attorney fees to be included in FRAP 7

cost bonds.

Although data from only three districts were examined, we learned that data

pertaining to the bond amount, the components comprising the bond amount including

attorney fees, and the authority for their inclusion cannot be retrieved from docket

reports alone. Thus, one of the first lessons of the exploratory study is that the best

approach to conducting empirical research on this issue is to sample cases with FRAP 7 

bonds in a sample of the districts selected based on FRAP 7 circuit law. Focusing on a

limited number of districts will facilitate obtaining motions papers and orders from the

courts, without which many of the questions raised by the Committee cannot be

answered.

II. Limitations of Exploratory Study and Possible Questions for Further

Research

In order to decide whether or not to adopt the Center’s recommendation for

further research, the Committee must first decide which type of empirical data on FRAP

7 cost bonds will be most useful to it as it moves forward in its deliberations on this issue.

The first step in the exploratory study was to identify cases with at least one

motion or sua sponte order to impose a FRAP 7 bond for anticipated costs on appeal. An

electronic search of the CM/ECF replication databases

2 for NYS, CAC and MIE for fiscal

years 1996 through 2006 produced relatively low numbers of cases in each district: 20

cases in NYS, 9 in CAC, and 13 in MIE. In terms of overall appellate activity in these

districts, these figures represent much less than one percent of all appeals in the study 

period. The search also identified a few cases in each district that were possible FRAP 7

 1 Other members of the Research Division of the Federal Judicial Center who have contributed to this

report include Emery G. Lee III, George Cort, and Thomas E. Willging. 2 The search terms used were “FRAP 7” OR “F.R.A.P. 7” OR “Rule 7” OR “F.R.App. P. 7” OR “Fed. R.

App. P. 7” OR (“Bond” AND “Cost”) OR (“Bond” AND “Appeal”) OR (“Bond” AND “Appell”) OR

“Federal Rule of Appellate Procedure 7” (with a “hit” for any docket entry including any of the terms or

pairs of terms). For a detailed description of the process used to identify the sample of cases in the

exploratory study, see Appendix I Methods.
Federal Judicial Center FRAP 7 Exploratory Study for the Advisory Committee on Appellate Rules April 2008

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cases, but these cases could not be positively identified as including FRAP 7 motions

without access to case documents.

Automated docket-level data was then collected for this small sample of cases,

employing the protocol described in this report. However, much of the information 

needed to answer the Committee’s questions with respect to FRAP 7 bonds was not

available from the brief docket entries. For example, questions with respect to the

reasons for the bond offered in FRAP 7 motions and the authority judges relied upon to 

include components such as attorney fees in the FRAP 7 bond amount can only be

answered if the specifics of the motions and rulings are available. In most cases, the

motions papers and orders were not available in CM/ECF.

Assuming that it is this more substantive data on FRAP 7 motions and bonds that

the Committee is ultimately interested in, the FJC would recommend limiting the number

of districts studied to a manageable sample of districts purposefully chosen on the bases

of FRAP 7 bond-specific considerations. The selection of the study would begin by

including districts in circuits permitting attorney fees to be included in a FRAP 7 bond

amount3, districts in circuits that do not permit attorney fees to be included in a FRAP 7

bond4, and districts in circuits that have not addressed whether attorney fees should be

included in a FRAP 7 bond. Selection of districts could also take into account the number

of appeals and the prevalence of class action filings in the district to name a few relevant

considerations. For this limited sample, the Center would then attempt to obtain all of the

needed documents not available through PACER from the districts. This would allow for

a more in-depth comprehensive study of the FRAP 7 activity in these chosen districts in

order to best address the Committee’s primary question of whether and when attorney

fees are included in bonds and what are the rationales for including such fees.

Keeping in mind the Center’s resource limitations and the Committee’s time

constraints, it may also make sense to decrease the study period to FRAP 7 activity in

cases filed between fiscal years 2001 and 2006. Recent cases are more likely to produce

data on contemporary conditions and practices and are also more likely to have electronic

document links available under CM/ECF. One obvious drawback to proceeding in this

manner is the time that it will take for the sample districts to respond to the requests for

documents.

This proposal assumes that the Committee’s primary interest is to learn about

whether attorney fees were included in bond requests and the reasons for including or not

including attorney fees in FRAP 7 bonds and to compare the experiences of districts in

circuits with different rules. On the other hand, the Committee’s ultimate goal may be to

gain comprehensive national data on procedural issues associated with FRAP 7 bonds,

such as:

• the frequency with which FRAP 7 motions have been made and granted in the

district courts,

• the types of cases where FRAP 7 activity arise,

• the types of parties making motions for and subject to FRAP 7 bond, or

• the final outcomes of the appeals for which a FRAP 7 bond was granted or

 3 Second Circuit, Sixth Circuit, Ninth Circuit, and Eleventh Circuit. 4 D.C. Circuit and Third Circuit.
Federal Judicial Center FRAP 7 Exploratory Study for the Advisory Committee on Appellate Rules April 2008

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denied.

An alternative approach then would be to design a study that focuses on the requests and

orders for a FRAP 7 bond and that describes the procedural progress of the appeal, rather

than one that focuses on the rationale for and the components of the bond that was

requested and ordered. Following this approach, we would include the majority of or all

of the districts in the initial phase one search for cases with FRAP 7 activity. Once our

database of cases is identified, we would limit the data collection in phase two (as was

done in the exploratory study) to information found in docket entries and any documents

available through PACER. The advantages of this approach are that it would be less

resource intensive in that the information would all be derived from PACER and since

the data collected is procedural in nature, the error rate due to inter-coder reliability

would be relatively lower.

III. The Exploratory Study: The Research Data Collection Protocol5

In addition to the question of the frequency of FRAP 7 activity, other issues raised at the

Committee’s discussion at the Fall 2007 meeting included:

• the types of cases FRAP 7 bonds are required in,

• types of litigants required to pay a FRAP 7 bond,

• the frequency with which a court imposes a FRAP 7 bond,

• the total amount of the bond and what components comprise this total, and

• whether attorney fees were included in the bond amount.

After identifying cases in the three exploratory study districts that appeared to

have FRAP 7 bond activity, we then collected as much relevant data as were

electronically available on each case for further analysis using the protocol described 

below. A FileMaker® database was created from this protocol to allow the coder to

record the information in a database for further analysis.

Part One of the protocol collects identifying information for each case such as

caption, district, docket number, nature of suit, filing and closing dates, case origin,

jurisdiction, disposition of the case and procedural progress at disposition.

Part Two of the protocol relies upon information derived from docket entries as

well as available relevant documents such as motions, responses and rulings. Given the

time constraints, the data inputted for the exploratory study from the cases identified in 

NYS, CAC and MIE came exclusively from docket entries and relevant documents

immediately available through PACER. We found that the information needed to answer

the questions of most interest to the Committee is usually found in the full motions and

rulings and cannot be adequately derived from docket entries alone. Thus, the exploratory

study was limited in its access to key documents for most of the cases analyzed.

Part Two of the protocol focused on the motion for a FRAP 7 bond6. Information 

was gathered on the identity of the party (ies) who filed the motion and whether the party

 5 See Appendix II: Draft Protocol for Further FJC Study of FRAP 7 Appellate Cost Bonds [on file with the

author].
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sought IFP status in either the district or appellate court. We captured information about

the party opposing the motion. We also coded whether the case was filed as a class

action, if so whether it was certified, and the type of judgment that was appealed. Where

available, we also coded reasons for bringing the FRAP 7 bond motion. The response

categories include those factors most courts list when deciding whether or not to impose a

FRAP 7 bond. The final series of questions pertaining to the motion relate to the

requested bond amount and whether the motion indicated if the amount requested 

included or should include: (1) costs attributable to a possible stay of the judgment being

appealed (such as costs, attorney fees, and sanctions included in or interest on the

underlying judgment)

7

; and/or (2) anticipated costs attributable to the appeal itself (such 

as specific costs, attorney fees, and sanctions incurred as a result of the appeal or

additional costs from delay/disruption of settlement fund administration). If the

information was available, we coded, the amount attributable to and authority cited for

each separate component of the total requested bond amount.

Section C pertains to the ruling on the motion and includes questions on the bond 

amount. A final question asks whether the court stated its reasons for its ruling—either

denying the request, granting the request for the amount stated in the motion, or granting

the motion but increasing or decreasing the amount of the bond required.

If the ruling on the FRAP 7 bond motion was appealed by either party, our data

protocol contained the same series of questions on the court of appeals ruling as

pertained to the district court’s ruling on the original motion. Finally, we coded 

information regarding:

• whether or not the bond was ever filed (if ordered), what the final outcome of the

appeal was for which the FRAP 7 cost bond was requested,

• how costs were treated at the end of the appeal, and 

• whether any sanctions were imposed against either party to the FRAP 7 cost bond

before, during or after the appellate proceedings.

 6 If more than one motion or sua sponte order for a FRAP 7 cost bond is filed with respect to a given

appeal, only the information from the last motion or order filed and ruled on is used to answer the questions

in Part Two of the protocol. However, if FRAP 7 bonds were either required or requested with respect to

more than one appeal in the same case, a separate record will be created for each appeal. 7 Technically, this first set of costs attributable to a possible stay of judgment should not be included in

FRAP 7 cost bonds, though they might be eligible for inclusion in a bond required under Federal Rule of

Civil Procedure 62 and/or FRAP 8. But in her extremely helpful and thorough review of the protocol in its

draft stages, Professor Struve pointed out that it makes sense to code for both sets of costs since some

courts erroneously include some items in FRAP 7 bonds that they technically shouldn’t include (because

they are not costs “on appeal”). Further, she noted that if a party moves for a stay of the underlying

judgment pending appeal, and a court requires both a supersedeas bond in connection with the stay under

FRCP 62 and/or FRAP 8 and a FRAP 7 bond for costs on appeal, the court might include the amounts

attributable to both of these in one single bond.
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IV. Exploratory Study: Summary of Findings

Given the small number of FRAP 7 cases identified in the exploratory study8, the

following findings are limited to a description of the sampled cases only. These findings

cannot be generalized to the population of FRAP 7 cases, even in the three study districts.

In other words, the following discussion is intended only to illustrate the kind of data and

questions that an expanded research proposal might address.

The most consistent finding is that motions and sua sponte show cause orders to

impose FRAP 7 bonds were rare in the three districts, both in absolute numbers (43) and 

in percentage of appeals that involved FRAP 7 motions. The percentage of appeals that

involved such requests or orders ranged from 0.05 percent to 0.15 percent. In other

words, FRAP 7 activity occurred at a rate of between 5 and 15 times per 10,000 appeals

in the three districts over the ten-year period from 1996 to 2006.

Again, bearing in mind the limitations of our exploratory study, the small number

of appeals (N=43) with definite FRAP 7 activity and the lack of available documents,

other findings were:

• FRAP 7 bonds were more likely to be imposed in response to requests in class

action litigation (80% of requests (N= 8)) than in all appeals (51% (N=17)).

• Securities, intellectual property, civil rights, and contracts cases were the largest

categories of cases with FRAP 7 motions or sua sponte orders; securities and

antitrust cases accounted for eight of the ten class actions examined.

• Defendants were slightly more likely than plaintiffs to be the party moving for a

FRAP 7 bond in non-class action appeals; in class action appeals, FRAP 7 activity 

most often took the form of a motion by plaintiffs or a joint motion.

• Represented individual litigants and corporate entities comprised most of the

FRAP 7 movants. Individual litigants were slightly more likely to have their

requests granted. Class representatives had by far the highest success rate, with 

86% of their motions granted.

• Targets of motions in class actions were most often interveners or objectors (80%

(N=8)). In non-class litigation, plaintiffs were more than twice as likely as

defendants to be the targets of FRAP 7 motions. Three appellants subject to FRAP

7 motions filed for IFP status in both the district and appellate courts; two motions

were granted and one was denied in both courts.

• Three motions targeted prisoners proceeding pro se and two of those motions

were granted—again as with IFP motions, the numbers are too small to support

any generalizable conclusion.

• The average bond amount sought was $65,869 for all cases for which information 

was available (56% (N= 24)) and the average sought for seven certified class

action appeals was $113,378. Components of those requests were most often 

attorney fees and other costs incurred or anticipated as a result of the appeal.

• For the twelve cases in which information was available, courts granted the full

request in three cases; reduced the request in seven cases; and doubled the request

 8 For a detailed description of the process used to identify the sample of cases in the exploratory study, see

Appendix I Exploratory Study Methods.
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in two cases. All but one of those bonds was based on anticipated costs and

attorney fees during the appeal. In two class action appeals, substantial portions of

bonds of hundreds of thousands of dollars were attributable to anticipated delays

and increased costs in administering a class settlement.

• Judges cited fee-shifting statutes as the authority for five of seven cases for which

information was available. Judges cited sanctioning power as the authority in two

cases.

• FRAP 7 bonds were challenged on appeal in six instances. None of the appeals

was successful in overturning the imposition of the bond itself.

• Evidence regarding posting of bonds was only available in about half of the cases.

In cases with available information the bond was usually posted in full, but in a

few instance, a partial bond was posted without explanation.

• Only one of the underlying appeals resulted in vacating an order and remanding 

the case to the district court. All other appeals concluded with affirmances of the

district court, dismissal on procedural grounds, or voluntary dismissal. Cases in

which a bond had been imposed fared no better or worse than cases in which no

bond was imposed. In one class action appeal, an objector voluntarily dismissed

the appeal after being ordered to pay a $1,240,500 bond.
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A. FRAP 7 Motions Brought and Granted

FRAP 7 bonds were more likely to be imposed in response to requests in class action

litigation than in all appeals. Table 1 below presents a breakdown of the number of FRAP

7 motions brought and granted in all three districts in the exploratory study and by

individual district. The data appear to show that in 25 appeals from all three districts

(58%), the court granted a party’s motion or sua sponte ordered a FRAP 7 cost bond:

55% of the appeals from NYS, 46% from MI-E and 80% of the appeals from CAC. In the

ten certified class actions in the exploratory study, FRAP 7 motions or show cause orders

were granted in 80% of the appeals as opposed to 51% of the non-class action appeals.

Table 1. FRAP 7 Motions and Show Cause Orders, by District and Class

Certification Status

Motions/Show

Cause Orders

Sua Sponte

Granted

Motion Granted Percentage

1

All 432 4 21 58

NY-S 20 4 7 55

MI-E 13 0 6 46

CA-C 10 0 8 80

Class Actions

3 10 1 7 80

NY-S 5 1 3 80

MI-E 2 0 1 50

CA-C 3 0 3 100

Non-Class

Actions

33 3 14 51

NY-S 15 3 4 47

MI-E 11 0 5 45

CA-C 7 0 5 71

1 Percentage of appeals in the category in which a FRAP 7 motion was granted or in which the court

ordered a FRAP 7 bond sua sponte. 2 There were 41 unique cases with FRAP 7 motions associated with one appeal per case. One case in CAC

involved FRAP 7 motions associated with two unique appeals, thus this case is counted twice since the

studies’ unit for analysis is the appeal and not the case. 3 There were class allegations in 11 of the cases giving rise to the sampled appeals, but class certification

was granted in 10 of the underlying cases.

B. Types of Cases with FRAP 7 Activity

Securities, intellectual property, civil rights, and contracts cases were the largest

categories of cases with FRAP 7 motions or sua sponte orders; securities and antitrust

cases accounted for eight of the ten class actions examined. As shown in Table 2 below,

securities and intellectual property cases comprise the largest nature of suit groupings of

cases identified as having FRAP 7 activity in our three pilot districts (a combined 38% of

all appeals). Civil rights and contract cases are the next large categories (28% combined).

This pattern is also present in the individual district breakdowns, except for MIE where

torts and “other” cases share in the largest nature of suit categories with civil rights cases.

For the ten certified class actions among the 43 cases identified as having FRAP 7 

activity, six (60%) of them were securities cases followed by two antitrust cases and one
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each civil rights and torts case. Focusing on the 25 appeals in which a FRAP 7 bond was

ordered, the largest single nature of suit grouping is securities cases (24%) followed by 

civil rights and contracts cases (16% each) and intellectual property cases (12%).

Table 2. Nature of Suit by District of Cases with FRAP 7 Activity

NY-S MI-E CA-C Percentage

1

All appeals 20 13 10 100

Antitrust 1 1 5

Bankruptcy Appeal 1 2

Civil Rights 3 2 1 14

Contracts 3 1 2 14

ERISA 1 2

Fraud 1 2

Intellectual Property 6 2 19

Prisoner Civil Rights 1 1 5

Prison Conditions 1 2

RICO 1 1 5

Securities 4 1 3 19

Torts 1 2 7

Other 2 5

Class Actions

3 5 2 3 100

Antitrust 1 1 0 20

Civil Rights 1 0 0 10

Securities 3 0 3 60

Torts 0 1 0 10

FRAP 7 Bonds Ordered 11 6 8 100

Antitrust 1 1 0 8

Civil Rights 1 2 1 16

Contracts 3 0 1 16

Intellectual Property 2 0 1 12

Prisoner Civil Rights 0 1 1 8

RICO 0 1 1 8

Securities 3 0 3 24

Torts 1 0 0 4

Other 0 1 0 4

1 Percentage of appeals in the nature of suit category from all appeals with FRAP 7 activity, from only

certified class actions with FRAP 7 activity, and from only cases where a FRAP 7 bond was ordered. 2 There were class allegations in 11 of the cases giving rise to the sampled appeals, but class certification

was granted in 10 of the underlying cases.

C. Parties Moving for FRAP 7 Bond (Identity of Appellee)

Defendants were slightly more likely than plaintiffs to be the party moving for a FRAP 7

bond in non-class action appeals; in class action appeals, FRAP 7 activity most often took

the form of a motion by plaintiffs or a joint motion. Our preliminary data from the 43 

appeals with FRAP 7 activity identified from NYS, MIE and CAC shows that the

defendant was the party moving for the FRAP 7 bond in 58% of these appeals, 63 percent

if one includes joint motions. Further, the defendant was the moving party in 67% of non-
Federal Judicial Center FRAP 7 Exploratory Study for the Advisory Committee on Appellate Rules April 2008

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class actions. For class actions, the plaintiff brought the FRAP 7 motion in half of the

appeals and the defendant was the moving party in 20% of them; 40% if joint motions are

included.

Excluding two joint motions which were granted, the bond was granted in 56% of

the appeals in which the defendant was the movant (fourteen out of twenty-five appeals).

When the plaintiff was the moving party, the FRAP 7 bond motion was granted in 45%

of the appeals (five out of eleven appeals). In class actions, the bond was granted in half

of the appeals in which the defendant was the moving party (one out of two appeals)

while 80% of the appeals were granted in which the plaintiff was the movant (four out of

five appeals). For FRAP 7 bonds ordered in non-class actions, the bond was granted in

59% of the appeals for which the defendant was the movant (thirteen out of twenty-two

appeals), and the plaintiff was the movant in 17% of these appeals resulting in a FRAP 7

bond being ordered (one out of six appeals).

Table 3. Parties Moving for FRAP 7 Bond, by District and Class Certification

NY-S MI-E CA-C All

Total 20 13 10 431

Sua Sponte/Show

Cause Order

4 0 0 4

Plaintiff 5 4 2 11

Defendant 11 9 5 25

Joint Motion 0 0 2 2

Intervener/Objector 0 0 0 0

Other 0 0 1 1

Class Actions Total

2 5 2 3 10

Sua Sponte/Show

Cause Order

1 0 0 1

Plaintiff(s) 2 2 1 5

Defendant(s) 2 0 0 2

Joint Motion 0 0 2 2

Intervener/Objector 0 0 0 0

Other 0 0 0 0

Non-Class Actions

Total

15 11 7 33

Sua Sponte/Show

Cause Order

3 0 0 3

Plaintiff(s) 3 2 1 6

Defendant(s) 9 9 5 22

Joint Motion 0 0 0 0

Intervener/Objector 0 0 0 0

Other 0 0 1 1

1 There were 41 unique cases with FRAP 7 motions associated with one appeal per case. One case in CAC

involved FRAP 7 motions associated with two unique appeals, thus this case is counted twice since the

studies’ unit for analysis is the appeal and not the case. 2 There were class allegations in 11 of the cases giving rise to the sampled appeals, but class certification

was granted in 10 of the underlying cases.
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What types of plaintiffs, defendants, or other parties brought the FRAP 7 bond 

motions? Represented individual litigants and corporate entities comprised most of the

FRAP 7 movants. Individual litigants were slightly more likely to have their requests

granted. Class representative had by far the highest success rate, with 86% of their

motions granted. Taking into account that more than one party may join a FRAP 7

motion, data for the three pilot districts show that corporate entities (40%) and 

represented individuals (32%) were the largest groupings by party type moving for a

FRAP 7 bond. In the motions where at least one party was a represented individual(s),

52.9% of these motions were granted; 86% of the motions brought by class

representatives (all in class action appeals) were granted; 43% of the appeals where the

moving party included a corporate entity were granted; and 80% of the motions involving 

a government party were granted.

D. Parties Subject to FRAP 7 Motion (Identity of Appellant)

Targets of motions in class actions were most often interveners or objectors (80%). In

non-class litigation, plaintiffs were more than twice as likely as defendants to be the

targets of FRAP 7 motions. The party or parties subject to a FRAP 7 motion in 53% of

the 43 unique appeals identified in the pilot districts was the plaintiff(s) followed by the

defendant(s) in 26% of the appeals. In the ten certified class actions in the study, it was

the intervener or objector as the appellant subject to the bond in 80% of these appeals.

Keeping in mind the caveats stated earlier about not extrapolating the findings from these

three pilot districts to the broader universe of FRAP 7 motions, our data for the three

districts show that in class actions, six of the eight motions brought “against” an 

intervener/objector party(ies) were granted, for a 75% grant rate. In non-class actions, 12

of the motions “against” plaintiffs were granted, for a 52% grant rate. Two motions

“against” defendants were granted, for a 20% grant rate.

Table 4. Parties Subject to FRAP 7 Motion, by District and Class Certification

NY-S MI-E CA-C All

All appeals 20 13 10 431

Plaintiff(s) 10 8 5 23

Defendant(s) 6 3 2 11

Intervener/Objector(s) 4 2 2 8

Other 0 0 1 1

Class Actions Total

2 5 2 3 10

Plaintiff(s) 0 0 0 0

Defendant(s) 1 0 0 1

Intervener/Objector(s) 4 2 2 8

Other 0 0 1 1

Non-Class Actions Total 15 11 7 33

Plaintiff(s) 10 8 5 23

Defendant(s) 5 3 2 10

Intervener/Objector 0 0 0 0

Other 0 0 1 0
Federal Judicial Center FRAP 7 Exploratory Study for the Advisory Committee on Appellate Rules April 2008

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1 There were 41 unique cases with FRAP 7 motions associated with one appeal per case. One case in CAC

involved FRAP 7 motions associated with two unique appeals, thus this case is counted twice since the

studies’ unit for analysis is the appeal and not the case. 2 There were class allegations in 11 of the cases giving rise to the sampled appeals, but class certification

was granted in 10 of the underlying cases.

Looking at the types of parties asked to post a FRAP 7 bond from our small

universe of districts and keeping in mind that more than one type of party can bring an 

appeal in a case, it appears that represented individuals (42%), corporate entities (12%)

and pro se individuals (19%) were the most likely subject to the bond motion. When the

appellant was a represented individual, the bond motion was granted in 45.5% of the

appeals; 50% of the appeals in which a pro se individual was the appellant were granted;

and 68% of the appeals (two out of three appeals) involving a pro se prisoner subject to

the bond were granted. Three appellants subject to the FRAP 7 motion filed for IFP status

in both the district and appellate courts. Two of these motions for IFP status filed in the

district and appellate court were granted in both courts; one was denied in both courts.

Again, we caution against reaching any conclusions from this small number of cases. The

fact that two of three FRAP 7 motions “against” pro se prisoners were granted cannot be

taken as evidence that this is how often such motions “against” prisoners are typically

granted. Three cases is only anecdotal evidence.

E. Amounts Requested in Motions for FRAP 7 Bond

As depicted in Table 5 below, the mean overall bond amount was $65,869 for all cases

for which information was available (56% (N=24)), while the overall mean for the seven

certified class actions requesting a specific bond amount was $113,378. Components of

those requests were most often attorney fees and other costs incurred or anticipated as a

result of the appeal.

From the 43 appeals we identified in the three pilot districts as having at least one

motion for a FRAP 7 bond, 24 of these appeals (56%) requested that the court require the

appellant to post a bond in a specific named amount. Remember that only documents

accessible through PACER were relied upon, thus it must be noted that in ten of these 24 

cases the information on the bond amount request was obtained solely from the docket

not the motion itself.

Table 5. Requested Bond Amounts in FRAP 7 Motions

Number of appeals

requesting specific bond

amount

Mean Bond Amount

Requested

(Overall) Appeals 24 $65,869

NYS 11 $56,627

MIE 8 $73,343

CAC 5 $74,240

(Overall) Class Actions 7 $113,378

NYS 3 $42,636

MIE 2 $223,871

CAC 2 $109,000
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F. Components of Bond in FRAP 7 Motion

The protocol asks whether the appellee’s FRAP 7 bond motion indicates whether the

amount requested included or should include a number of listed components. Responses

to this inquiry are very limited because “unable to determine because motion not

available” was checked for this question in 67.4% of the 43 FRAP 7 appeals identified in

the pilot districts. In those appeals where information about what the movant included in

the requested bond amount, or proposed should be included in a bond amount, was

discernable from docket information or available motions, costs attributable to a possible

stay of the judgment being appealed was a component of the requested bond in only three

occurrences. Two of these bond motions included attorney fees awarded in the

underlying judgment, and one requested bond amount included sanctions awarded in the

underlying judgment.

Bond motions including anticipated costs attributable to the appeal itself were

more numerous in comparison. The two components of this category that movants

included most often in their bond motions were specific costs incurred or anticipated will

be incurred as a result of the appeal itself such as printing or copying costs for trial

transcripts (9 or 21% of total appeals) and attorney fees incurred or anticipated as a result

of the appeal (11 or 26% of total appeals). When broken out by district and limited to the

one-third of all cases for which information was available, 20% of the NYS bond 

requests included anticipated attorney fees in the bond amount, as did 31% of MIE

appeals and 30% of CAC appeals.

Table 6. Components of Requested Bond in FRAP 7 Motions

NYS (20) MIE(13) CAC(10)

Costs attributable to possible stay

of judgment being appealed:

(1) specific costs included in

underlying judgment

0 0 0

(2) attorney fees included in

underlying judgment

1 1 0

(3) sanctions included in underlying

judgment

0 1 0

(4) interest on underlying judgment 0 0 0

(5) other 0 0 0

Anticipated costs attributable to

appeal itself:

(1) Specific costs incurred due to

appeal

1 6 2

(2) attorney fees incurred as result

of appeal

4 4 3

(3) sanctions incurred as result of

appeal

1 2 0

(4) additional costs from

delay/disruption

1 2 0

(5) other 0 2 2
Federal Judicial Center FRAP 7 Exploratory Study for the Advisory Committee on Appellate Rules April 2008

13

G. Amount of FRAP 7 Bonds Granted

What was the correlation between the bond amount requested in the appellee’s motion 

and the amount the court ordered the appellant to pay? For the twelve cases in which

information was available, courts granted the full request in three cases; reduced the

request in seven cases; and doubled the request in two cases. All but one of those bonds

was based on anticipated costs and attorney fees during the appeal. In two class action

appeals, substantial portions of bonds of hundreds of thousands of dollars were

attributable to anticipated delays and increased costs in administering a class settlement.

Although the court granted a bond request in 25 out of 43 of the appeals identified 

in the three pilot districts, we only have information on bond amounts granted and

ordered for twelve appeals. In NYS, two bond motions were granted at the requested 

amount, and three were reduced (from $75,000 to $25,000; from $75,000 to $50,000; and 

from $30,000 to $25,000)9. In MIE, one bond was granted in the requested amount, and

two were reduced (one substantially from $427,743 to $174,429)10. In CAC, two bond

requests were reduced (from $50,000 to $6,00011and from $100,000 to $5,00012), and 

two were doubled (from $104,000 to $208,000, and from 114,000 to $228,000)13.

 9 Because the rulings were not available for these appeals, we were unable to research the reasons for the

reductions. 10 Although the amount of the appeal bond granted by the court included specified costs ($1,000),

anticipated attorneys fees ($50,000) and administrative costs for delay ($123,000), the court reduced the

requested bond amount in light of the plaintiffs motion for an expedited appeal that the objector/appellant

assured the court she would not oppose which decreased the anticipated delay from 16-months to a

projected 6-months. See Sams v. Hoechst, No. 99-73190 (E.D. Mich. June 25, 1999) (Corrected Order

No.82 Granting Plaintiffs’ Motion for Imposition of an Appeal Bond Under FRAP 7) (part of In re:

Cardizem CD Antitrust Litig., No. 99-1278 (E.D. Mich. June 25, 1999). On appeal, the Sixth Circuit upheld

the $174,000 appeal bond that included anticipated attorneys’ fees and administrative costs for delay. In re

Cardizem CD Antitrust Litig., 391 F.3d 812 (6th Cir. 2004). 11 Even though court alluded to frivolousness of the appeal in granting the bond request, court refused to

order plaintiff to post a $50,000 appeal bond as requested because it would not serve the interests of justice

since the court denied the plaintiff’s motion to proceed ifp on appeal. Lewis v. Bayh, No. 04-2950 (C. D.

Cal. Feb. 26, 2007) (Order Granting Defendant’s Motion to Require Appellant to File a Bond to Ensure

Payment of Costs on Appeal). 12 The party who brought FRAP 7 motion requested a $100,000 bond amount including: (1) $20,000 in

anticipated attorney fees; (2) $1,697.20 for transcripts for the appeal already incurred; (3) $500 for

anticipated costs for an additional transcript; (4) $10,000 for anticipated costs of the appeal. The court ruled

that the bond amount could not include attorneys’ fees because they are not defined as costs under the

Lanham Act thus these anticipated fees can't be included in a FRAP 7 bond. The court further found that

defendants did not prove how they came up with the requested bond amount. BRWC LLC v. Van De

Water, No. 04-466 (C.D. Cal. July 28, 2006) (Order Granting Defendant’s Motion to Require Appellant to

Post Bond for Costs and Attorney’s Fees on Appeal). 13 In both appeals the court doubled the requested bond amount as sanctions against the objector and the cocounsel law firm for filing meritless and frivolous appeals. In re Heritage Bond Litig., 2005 WL 2401111

(C.D. Cal. Sept. 12, 2005). The inclusion of attorney’s fees in the FRAP 7 bond amount was overturned on

appeal since the court found the underlying statutes (provisions of PSLRA) were not fee-shifting statutes

that defined costs as including attorney’s fees. 233 Fed.Appx. 627, 2007 WL 1340633 (9th Cir. May 8,

2007).
Federal Judicial Center FRAP 7 Exploratory Study for the Advisory Committee on Appellate Rules April 2008

14

H. Components of Granted FRAP 7 Bond Amounts

We had access to the ruling in only eleven of the 43 appeals in which the court ordered a

bond so our ability to present an accurate summary of what courts included in the final

bond amount is very limited. Only one appeal from NYS included costs attributable to 

the underlying judgment in the final bond amount

14

. Anticipated costs on appeal (seven

appeals) and attorney fees anticipated on appeal (all eleven appeals) were the two

components included most often in the bond amount ordered. When specified in the

ruling, authority for including specific costs in the bond amount was FRAP 39 in all three

districts. Anticipated named costs on appeal included printing and copying costs, filing 

and brief preparation costs, and costs for the trial transcript.

Table 7. Components of FRAP 7 Bonds Ordered by Court

NYS (20) MIE(13) CAC(10)

Costs attributable to possible stay

of judgment being appealed:

(1) specific costs included in

underlying judgment

1 0 0

(2) attorney fees included in

underlying judgment

0 0 0

(3) sanctions included in underlying

judgment

0 0 0

(4) interest on underlying judgment 0 0 0

(5) other 0 0 0

Anticipated costs attributable to

appeal itself:

(1) Specific costs incurred due to

appeal

2 2 3

(2) attorney fees incurred as result

of appeal

3 3 5

(3) sanctions incurred as result of

appeal

0 0 3

(4) additional costs from

delay/disruption

0 1 1

(5) other 1 1 0

Judges cited fee-shifting statutes as the authority for five of seven cases for which

information was available. Judges cited sanctioning power as the authority in two cases.

In NYS, the authority cited in the only ruling available among the three appeals which

included attorney fees in the bond amount was Title VII as the fee-shifting statute

authorizing attorney fees as part of recoverable costs under the rational of Adsani v.

 14 The court ordered the plaintiff to post a $7,500 bond to cover the judgment for the costs already incurred

($4,057) and anticipated costs of opposing the appeal. Green v. Doukas, No. 97-8288 (S.D. N.Y. Nov. 7,

1997) (information obtained from docket). The Second circuit refused to vacate the district court’s order

holding that the district court did not act improperly in including these costs in the amount of the bond to be

posted pursuant to FRAP 7. Green v. Doukas, No. 02-7136 (2d Cir. July 1, 2003) (information from

docket).
Federal Judicial Center FRAP 7 Exploratory Study for the Advisory Committee on Appellate Rules April 2008

15

Miller

15

. In MIE, one case relied on the fee-shifting statute rationale explained in Adsani

and Pedraza; however, one case included attorney fees under the court’s inherent power

to sanction a party for acting in bad faith. The court stated that it is within the court's

discretion to include attorney fees in a cost bond when district court judge has determined

the appeal to be frivolous.

16 In CAC, the fee-shifting statute rationale was the authority

cited in three of the available rulings including attorneys’ fees in the FRAP 7 bond.

However, one case included attorney fees resulting from the appeal to cover a potential

FRAP 38 award following a potential finding of frivolousness under 28 USC 1927.17

After a settlement was reached in this securities fraud class action, class plaintiffs moved

to require the objectors to post an appeal bond after objectors appealed the court's

judgment. The court ordered a bond of $1,240,500, which was never posted; the appeal

was voluntarily dismissed by the appellant. Note that the Ninth Circuit has since held in 

Azizian v. Federated Dep’t Stores, Inc.

18 that a district court cannot include appellate

attorneys’ fees that might be awarded if the court of appeals holds that the appeal was

frivolous under FRAP 38.19 Thus, the three CAC appeals where the court included

amounts for sanctions the court anticipated would be awarded against the appellant on 

appeal under FRAP 38 and 28 USC 1927 would no longer be permitted20.

Two accessible rulings granting FRAP 7 bonds included anticipated additional

costs from delay or disruption of the settlement fund administration in the bond amount.

A MIE appeal bond of $174,429 included $123,429 for increased administrative costs

incurred in the disbursement of the settlement funds due to the delay caused by objector’s

appeal.

21 The CAC district court decided that costs of delay and disruption of the

settlement administration process (determined to be $517, 700) should be included in the

FRAP 7 bond amount under a broad interpretation of FRAP 7 in the class settlement

 15 139 F.3d 67 (2d Cir. 1998). Watson v. E.S. Sutton, Inc., No. 02-2739 (S.D. N.Y. Dec. 6, 2006) (Interim

Order). 16 Horacek v. Hawkey, No. 01-71674 (E.D. Mich. Aug. 18, 2003) (Order Granting Defendant’s Motion For

Bond For Costs on Appeal). 17 Kurtz v. Broadcom, No. 01-275 (C.D. Cal. Dec. 5, 2005) (Order Granting Class Plaintiff’s Motion To

Require Appeal Bond). The court decided the amount of bond should include attorney's fees to defend the

appeal under FRAP 38 (to cover a potential FRAP 38 award) and under a potential finding of frivolousness

under 28 USC Sec. 1927 and an amount to secure potential double costs for frivolous appeal under FRAP

38. 18 2007 WL 2389841 (9th Cir. Aug. 23, 2007). 19 Id., at *1. 20 In re Heritage Bond Litig., 2005 WL 2401111 (C.D. Cal. Sept. 12, 2005) (The district court granted the

lead plaintiffs motion (in a securities class action that had settled) to impose a FRAP 7 bond on : (1) cocounsel law firms that had appealed the award of attorneys’ fees to ensure payment of the anticipated award

of fees and costs on appeal and as a sanction of filing an unfounded and meritless appeal; court awarded

two times requested amount of $104,000=$208,000; (2) an objector to the global settlement in the class

action to provide some level of security to lead plaintiffs in light of frivolousness of objector's appeal; court

awarded two times requested amount of $114,000=$228,000.); Kurtz v. Broadcom, No. 01-275 (C.D. Cal.

Dec. 5, 2005) (Order Granting Class Plaintiff’s Motion To Require Appeal Bond) (Court decided amount

of bond should include, in addition to other components, an amount ($620,250) to secure potential double

costs for a frivolous appeal under FRAP 38.) 21 See Sams v. Hoechst, No. 99-73190 (E.D. Mich. June 25, 1999) (Corrected Order No.82 Granting

Plaintiffs’ Motion for Imposition of an Appeal Bond Under FRAP 7) (part of In re: Cardizem CD Antitrust

Litig., No. 99-1278 (E.D. Mich. June 25, 1999). On appeal, the Sixth Circuit upheld the $174,000 appeal

bond that included anticipated attorneys’ fees and administrative costs for delay. Court found that the

FRAP 7 bond serves purpose of a supersedeas bond since objector's appeal stays judgment. In re Cardizem

CD Antitrust Litig., 391 F.3d 812 (6th Cir. 2004).
Federal Judicial Center FRAP 7 Exploratory Study for the Advisory Committee on Appellate Rules April 2008

16

context. Adopting the rationale of In re Cardizem, the court found that the FRAP 7 bond

serves the purpose of a supersedeas bond since the objector's appeal effectively postpones

distribution of the entire judgment over a year.

22

I. Appeal of the Bond Order

FRAP 7 bonds were challenged on appeal in six instances. None of the appeals was

successful in overturning the imposition of the bond, although the amount was

successfully challenged in one case. The courts’ order for appellants to post a FRAP 7 

bond before proceeding with their underlying appeal was itself appealed in six of the 25

underlying appeals where such a ruling was made. A pro se plaintiff was the appellant in

three of these six appeals. In five of the six appeals, the district court’s decision to impose

the bond was upheld; in one case the appeal of the bond and the underlying appeal were

dismissed on other procedural grounds and the bond was not paid. In three of the five

cases where the bond was upheld on appeal, the appellate court upheld the amount of the

bond as ordered by the district court. In one case, the Federal Circuit upheld the bond in

the amount of $500, reduced significantly from the $25,000 plaintiff was ordered to pay

in the district court. However, this reduction did not occur as a result of an appeal of the

bond by the appellant but as a result of a motion to dismiss by appellees’ for plaintiff’s

failure to pay the bond as ordered. The appellant paid the $500 bond and the underlying 

appeal proceeded. The reasoning behind the reduction of the bond was not discernible

because the appellate court order was not available.

23

The appellate court’s reasoning for upholding the bond on appeal was available in

only two of the appeals, both of which focused on analysis of whether the underlying 

statute allowed fee-shifting. In a MIE class action, the Sixth Circuit upheld the district

court’s decision ordering an objector to pay a $174,429 bond, including anticipated 

attorneys’ fees.

24 When the appellant failed to pay the bond, the appeal was dismissed.

After an objector in a class action appealed the order by the CAC district court to pay a

$228,000 FRAP 7 bond, the Ninth Circuit upheld the imposition of the bond but vacated 

and remanded for recalculation of the FRAP 7 bond without inclusion of attorneys’ fees

holding that FRAP 7 does allow a district court to impose a bond that includes attorneys’

fees as "costs" if there is an applicable fee-shifting statute in the underlying action that

specifically defines costs to include attorney fees. However, the court found that

provisions of the PSLRA that contemplated award of attorney fees to a successful

plaintiffs' attorney were not fee-shifting statutes that defined costs as including attorney

fees.

25 The underlying appeal is still pending.

J. Posting of FRAP 7 Bond

Evidence regarding posting of bonds was only available in about half of the cases. In 

cases with available information the bond was usually posted in full, but in a few

instance, a partial bond was posted without explanation. Our data shows that in ten 

 22 Kurtz v. Broadcom, No. 01-275 (C.D. Cal. Dec. 5, 2005) (Order Granting Class Plaintiff’s Motion To

Require Appeal Bond). 23 Abraskin v. Caldor-Store 75, No. 98-3835 (S.D. N.Y. May 29, 1998), affirmed on appeal sub nom.

Abraskin v. Entrecap Corp., No. 99-1510 (Fed. Ct. App. Aug. 1, 2000). 24 In re Cardizem CD Antitrust Litig., 391 F.3d 812 (6th Cir. 2004). 25 In re Heritage Bond Litig., 233 Fed.Appx. 627, 2007 WL 1340633 (9th Cir. May 8, 2007).
Federal Judicial Center FRAP 7 Exploratory Study for the Advisory Committee on Appellate Rules April 2008

17

appeals out of the 12 appeals where information was available and where the court

ordered a bond to be paid, the appellant posted the bond in full. In two appeals, the bond

was paid in less than the full amount ordered26. No evidence regarding payment was

found in the docket or other available documents in the other thirteen cases where a

FRAP 7 bond was ordered. See Table 8 below for a district breakdown of the payment of

ordered bonds. For the eight appeals identified as certified class actions in which the

court ordered a FRAP 7 bond, the appellant posted the bond in full as ordered in three

appeals; and paid an amount less then the amount ordered in two appeals. No evidence of

payment was available for the remaining three class actions ordered to post an appellate

bond.

Table 8. Posting of FRAP 7 Bond

NYS MIE CAC

Overall FRAP 7 Bonds Ordered: 11 6 8

Bond Posted in Full 6 2 2

Bond Posted in Less Than Full

Amount

2 0 0

FRAP 7 Bonds Ordered in Class

Actions:

4 1 3

Bond Posted in Full 2 1 0

Bond Posted in Less Than Full

Amount

2 0 0

K. Final Outcome of Appeal

Overall, 19 (44%) of the 43 appeals for which a FRAP 7 cost bond was requested

proceeded to a decision on appeal—18 (42%) of these were affirmed by the appellate

court and one was vacated and remanded to the district court. Overall, 18 (42%) of all

appeals were dismissed. Four of these were dismissed because the appellant failed to pay

the bond as ordered.27 The other fourteen appeals (33%) were dismissed on other

procedural grounds (4), on appellee’s motion (2) or voluntarily by the appellant (8). Of

the eight cases voluntarily dismissed by the appellant, a FRAP 7 bond was ordered in

three cases, the court denied the FRAP 7 motion in three cases, the FRAP 7 motion was

withdrawn in one case and it is unclear from the docket or available records whether the

 26 In one NYS appeal, a $70,000 bond was ordered; the defendant posted a $50,000 bond (no reason given

for reduced payment in record or available documents). In another NYS case, plaintiff and his attorney

were ordered to pay a $65,000 bond; the attorney paid his ordered portion of $15,000 but the plaintiff did

not post the remaining $50,000 (no reason given for reduced payment in record or available documents). 27 Second Circuit dismissed a NYS appeal (class action) after objector failed to pay the $25,000 FRAP 7

bond as ordered. The Sixth Circuit dismissed a MIE appeal after plaintiff failed to pay a $9,810 FRAP 7

bond. Another MIE appeal (class action) was dismissed after the objector failed to pay the $174,429 FRAP

7 appeal bond as ordered. See In re Cardizem CD Antitrust Litig., 391 F.3d 812 (6th Cir. 2004) (appellant

made no effort in district court to justify her failure to post the bond and failed to demonstrate the bond

amount would constitute a barrier to her appeal). After upholding a $5,000 appeal bond imposed by MIE

district court, Sixth Circuit dismissed the appeal for plaintiff’s failure to post the bond. Id.
Federal Judicial Center FRAP 7 Exploratory Study for the Advisory Committee on Appellate Rules April 2008

18

motion was granted or denied, although the docket shows that appellants posted a FRAP

7 bond. The appeal is still pending final ruling in six cases (14%).

Table 9. Final Outcome of FRAP 7 Appeals

NYS MIE CAC

Overall appeals with FRAP 7

Activity

20 13 10

Appeal dismissed for appellant’s

failure to pay bond

1 3 0

Appeal dismissed on other

procedural grounds

3 0 1

Appeal dismissed on appellee’s

motion

2 0 0

Appeal voluntarily dismissed by

appellant

6 1 1

Appeal proceeded to decision on

merits (affirmed, reversed,

vacated and remanded)

7 8 4

Appeal still pending 1 1 4

FRAP 7 Bonds Ordered 11 6 8

Appeal dismissed for appellant’s

failure to pay bond

1 3 0

Appeal dismissed on other

procedural grounds

2 0 1

Appeal dismissed on appellee’s

motion

1 0 0

Appeal voluntarily dismissed by

appellant

2 0 1

Appeal proceeded to decision on

merits (affirmed, reversed,

vacated and remanded)

4 3 2

Appeal still pending 1 0 4

FRAP 7 Appeals Bond Paid in

Full or Less Than Full Amount:

8 2 2

Appeal dismissed for appellant’s

failure to pay bond

0 0 0

Appeal dismissed on other

procedural grounds

0 0 1

Appeal dismissed on appellee’s

motion

0 0 0

Appeal voluntarily dismissed by

appellant

2 0 0

Appeal proceeded to decision on

merits (affirmed, reversed,

vacated and remanded)

51 1 1

Appeal still pending 1 1 0

1

In NYS, there are 5 appeals which proceeded to a decision on the merits after the appellant posted a

bond even though the table shows only 4 appeals from the 11 NYS cases where the court ordered a bond

paid; only 4 cases were ruled on because in 1 case the docket showed the appellant posted a FRAP 7

bond even though it didn’t show whether the motion was granted or denied.
Federal Judicial Center FRAP 7 Exploratory Study for the Advisory Committee on Appellate Rules April 2008

19

Only one of the underlying appeals produced an outcome that could be

characterized as a victory for the appellant. Focusing on the 25 appeals for which the

court ordered the appellant to post a FRAP 7 bond, (11) 44% of these appeals were

dismissed, (9) 36% proceeded to a decision on the merits of the appeal, and (5) 20% are

still pending. Of those appeals dismissed, four were dismissed due to the appellant’s

failure to pay the bond, three were dismissed on other procedural grounds, one on the

appellee’s motion, and three were voluntarily dismissed by the appellant. In two of the

cases in which the appellant voluntarily dismissed the appeal, the appellant paid the bond

in full prior to dismissing the appeal. The third appeal was a CAC class action in which

the objector voluntarily dismissed the appeal after being ordered to pay a $1,240,500 

bond.28 The data also shows that in the twelve cases from our study where the appellant

posted the bond in full or in part, half of these appeals were decided on the merits, 34%

were dismissed (one on other procedural grounds and two voluntarily by the appellant)

and 16% are still pending.

V. Conclusions and Possible Options for Committee Action

One of the purposes of this report is to focus the Committee’s attention on the options

available for further Center research on the FRAP 7 bond question, as well as to obtain

the Committee’s direction for such research. The results of the exploratory study lead us

to recommend different approaches for further empirical research depending upon the

type of additional FRAP 7 data the Committee deems most important for its further

deliberations. Gathering data on FRAP 7 issues of a substantive nature (i.e., reasons for

FRAP 7 bond motions and rulings, amount of bond requested and granted, components of

and authority for the bond amount including attorney fees) requires access to motions

papers and orders. To obtain this data from a sufficient sample of cases, we must narrow

the study to a limited number of districts chosen based upon current FRAP 7 circuit law.

The above study would include for those districts FRAP 7 procedural data such as type of

case, type and identify of parties, ruling on the motion, payment of the bond, appeal of

FRAP 7 bond orders, and final outcome of the underlying appeal can be derived from the

docket report alone. If, however, the Committee wants to emphasize procedural data, the

Center would be able to obtain such data from a majority or perhaps all of the districts.

The Center cannot due to resource constraints, however, pursue an option that would

entail collecting both procedural and substantive data from all cases in all districts. We

ask the Committee to express its preference.

More specifically, the options for further Center research are:

1) Conduct in-depth research, like the exploratory study described above, in a larger

sample of districts representing circuits with one of the three types of rules

(attorney fees allowed; attorney fees not allowed; and no rulings on attorney fees

in FRAP 7 bonds). Such a study would produce data of the type generated in the

exploratory study, plus additional data on motions, opinions, and orders

documenting the reasons for the rulings and would provide insight into the

elements that are included in the bonds that were imposed. The Center

 28 Kurtz v. Broadcom, No. 01-275 (C.D. Cal. Dec. 5, 2005) (Order Granting Class Plaintiff’s Motion To

Require Appeal Bond).
Federal Judicial Center FRAP 7 Exploratory Study for the Advisory Committee on Appellate Rules April 2008

20

recommends pursuing this type of study to collect data on factors that the

Committee has expressed interest in collecting and analyzing.

2) Conduct a study in more than a sample of districts, perhaps all districts, but

limiting such a study to procedural information that can be obtained from the

automated docket records. Thus, such a study would not include information 

about reasons for which the bonds were ordered, nor would the study generate

findings about the specific elements included in the bonds that were imposed. The

Center recommends that the Committee ask the Center to conduct such a study 

only if the Committee’s interest is limited to procedural information.

3) That the Center design a variation of the studies proposed in 1 and 2.

After discussing the nature of the data the Committee would find most helpful, the

FJC would like the Committee’s input on the general two-part structure of the proposed 

empirical study in general and on the structure and content of the protocol in specific. Are

there any additional issues related to the imposition of a FRAP 7 cost bond not captured

by the topics covered in the protocol? Does the line of questioning in the protocol

sufficiently address the issues that are covered? Is the protocol over-inclusive in that it

covers topics the Committee has no interest in at this time thus warranting a scaled down

version to be used in further research? Of course, the answer to many of these inquiries

will depend on the empirical approach followed.
Federal Judicial Center FRAP 7 Exploratory Study for the Advisory Committee on Appellate Rules April 2008

21

Appendix I:

Exploratory Study Methods

In order to identify cases filed or removed in a district court between fiscal year 1996 and

2006 in which FRAP 7-related activities occurred required the use of a text-based search 

of the Case Management Electronic Case Filing [CM/ECF] replication databases

maintained by the courts. This targeted CM/ECF search produced a list of cases in a

particular district for the time period identified in which the following terms occurred in

at least one docket entry: “FRAP 7” OR “F.R.A.P. 7” OR “Rule 7” OR “F.R.App. P. 7”

OR “Fed. R. App. P. 7” OR (“Bond” AND “Cost”) OR (“Bond” AND “Appeal”) OR

(“Bond” AND “Appell”) OR “Federal Rule of Appellate Procedure 7” (with a “hit” for

any docket entry including any of the terms or pairs of terms). Next, PACER was used to

pull up the full docket report of those cases identified to verify that the case indeed

included a motion or order for a cost bond pursuant to Federal Rule of Appellate

Procedure 7. This review/reading of docket records allowed for the elimination of false

positives from the sample, i.e., a request for a bond pending appeal in a habeas case, a

request for a supersedeas bond under FRCP 62, imposition of a bond in cases involving

injunctive relief and seizure of property, etc.

This method of identifying all discussions of FRAP 7 bond requests, whether or

not the court ultimately imposes a bond requirement enables us to identify all (or at least

a very high percentage of all) FRAP 7 activity in the federal courts in the study period.

To escape this search, a case with FRAP 7 activity would have to be a case in which the

search terms listed above never appeared in a docket entry. Thus, using Pacer to further

refine this list as described above, for each district searched we were left with a database

of two types of cases: (1) cases with definite activity related to a motion or order for a

FRAP 7 cost bond on appeal

29

; and (2) cases which involved activity related to a cost

bond but because the relevant documents were not available through PACER it was not

possible to determine whether or not the cost bond discussion involved FRAP 7. Only the

first type of cases (i.e., those with definite FRAP 7 activity) were included in the final

database of cases for a particular district

30

.

For the exploratory study, the text-based search described above was conducted in

the CM/ECF replication databases for three districts—NYS, CAC, and MIE. For each of

the three districts, the number of cases in the final database representing definitive FRAP

7 activity was surprisingly low.

In NYS, the original search of the CM/ECF replication database produced 485

potential “hits” (cases with at least one of the search terms in at least one docket entry).

After eliminating false positives, only 20 cases with definitive FRAP 7 activity remain 

with three cases falling into the “uncertain” category because the documents needed to

make a correct determination were not accessible on PACER. There were 15,161 cases

31

 29 A case with definitive FRAP 7 activity is defined for purposes of this study as one that includes at least

one motion (by a party or sua sponte) for a cost bond on appeal brought pursuant to FRAP 7 and may

include opposition to the motion, a ruling on the motion, appeal of that ruling, or other similar FRAP 7-

related motions or orders. 30 The last step in arriving at the final database for each district involves the elimination of member cases

involved in inter-and intra- district consolidations, leaving only single cases or lead cases. 31 These data are taken from the Federal Judicial Center’s Integrated DataBase for Federal Appeals.
Federal Judicial Center FRAP 7 Exploratory Study for the Advisory Committee on Appellate Rules April 2008

22

appealed to the Second Circuit from NYS between fiscal year 1996 and 2006. Thus, in

NYS, 0.13% of appeals involved cases with FRAP 7 activity.

The original CM/ECF search of the CAC replication database identified 875 

potential “hits”. Eliminating false positives and two member cases, only nine definitive

FRAP 7 cases remain in the final population for analysis. Three cases were listed as

“uncertain”. Between fiscal year 1996 and 2006, 18,463 cases

32

were appealed to the

Ninth Circuit from CAC. Thus, cases with FRAP 7 activity comprised 0.05% of appeals

in CAC.

In MIE, the original search of the CM/ECF replication database produced 226 

potential “hits” dwindled down to 13 cases positive for FRAP 7 activity after eliminating

false positives and 16 member cases. Seven cases were categorized as “uncertain”

because key documents were unlinked in PACER. There were 8,615 cases

33 appealed to

the Sixth Circuit from MIE between fiscal year 1996 and 2006. Thus, in MIE 0.15% of

appeals involved cases with FRAP 7 activity.

 32 Id. 33 Id.