Judicial Notice
The most common way to expand the record on appeal is also the most familiar: judicial notice. Judicial notice “allows a circuit court to review information not available at the time of the district court proceeding, but which nevertheless is relevant to a determination of the appeal.” Moore’s Federal Practice § 310.10[5][b]; see also George Harris & Xiang Li, “Supplementing the Record in the Federal Courts of Appeals: What If the Evidence You Need Is Not in the Record,” 14 J. App. Prac. & Process 317 (2013). Although courts have stressed the limited nature of this exception, every circuit has recognized its authority to take judicial notice for the first time on appeal.
Courts are most likely to take judicial notice for the first time on appeal to resolve questions regarding subject-matter jurisdiction, such as standing and mootness. In Winzler v. Toyota Motor Sales U.S.A., Inc., for example, Toyota asked the U.S. Court of Appeals for the Tenth Circuit to take judicial notice of publicly available documents filed with the National Highway Traffic Safety Administration after final judgment, which demonstrated that the case was moot. 681 F.3d 1208, 1212–13 (10th Cir. 2012). The court granted Toyota’s request and remanded the case with instructions to dismiss. Id. at 1215.
Circuit courts have also commonly taken judicial notice of proceedings and records in their own court and in other courts, such as the entry of a guilty plea or the dismissal of a civil action. Other subject matter appropriate for judicial notice on appeal includes foreign political changes (as relevant to immigration appeals), geographic locations, and whether a crime occurred within a federal jurisdiction.
The same procedures that govern judicial notice in the district court also apply on appeal: the fact to be judicially noticed either must be “generally known within the trial court’s territorial jurisdiction” or must be “accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1), (2). It also remains true, as it does in the district court, that judicial notice cannot be used to establish the truth of the matters asserted; it can only be used to establish their existence. This limitation prevents appellate courts from evaluating the veracity of documents offered for the first time on appeal.
A party seeking to have an appellate court take judicial notice of certain facts should file a motion, to which the opposing party may then respond. Alternatively, a party can ask the court to take judicial notice in its appellate brief, and the opposing party may then respond to that request in its opposition brief. A party on “timely request” is “entitled to be heard on the propriety of taking judicial notice and the nature of the facts to be noticed.” Fed. R. Evid. 201(e). If the court takes judicial notice before notifying an adverse party, that party, on request, is still entitled to be heard. The “opportunity to be heard” requirement may be satisfied by a written opposition to a request to take judicial notice.
Federal Rule of Appellate Procedure 10(e)
Circuit courts have also recognized their authority to expand the record under Federal Rule of Appellate Procedure 10(e). Rule 10(e)(2) allows a court to supplement the appellate record “if anything material to either party is omitted from or misstated in the record by error or accident.” Although Rule 10(e), by its terms, applies only to omissions from the record due to “error or accident,” courts have applied the rule in other circumstances. Courts have used Rule 10(e) to supplement the record when the materials bear heavily on the merits of the appellate issues or when the parties have stipulated to the introduction of the proffered materials.
For example, the court in United States v. Aulet used Rule 10(e) to supplement the record with materials bearing on the merits of the appellant’s argument that his counsel was ineffective for failing to file a motion to suppress evidence. 618 F.2d 182 (2d Cir. 1980). In its response, the government moved to supplement the record under Rule 10(e) with information that was before the defense counsel in the trial court and led to his decision to forgo the suppression motion. The U.S. Court of Appeals for the Second Circuit granted the motion to supplement, as it could see “no justification . . . for ignoring these materials which bear heavily on the merits of appellant’s claim.” Id. at 186. The court explained that “[w]here anything material to a claim on appeal is omitted from the record, this Court, under authority of Rule 10(e) . . . may, on proper suggestion or of its own initiative direct that a supplemental record be certified and transmitted.” Id.
Other courts have similarly used Rule 10(e) to consider new evidence on appeal. The court in Castle v. Cohen, for example, employed Rule 10(e) to supplement the record with new evidence—a bank’s letter regarding its commitment to provide financing for a leveraged buyout—that the district court had not considered, and remanded the case to the district court to decide the admissibility and effect of the new evidence. 840 F.2d 173 (3d Cir. 1988). And in Crockett v. Hulick, the court in a habeas corpus case supplemented the record with material that provided helpful “context” to the petitioner’s claim based on an improper jury instruction—specifically, jurors’ affidavits regarding their deliberations and the jury instruction at issue. 542 F.3d 1183 (7th Cir. 2008).
Nevertheless, courts and commentators have been skeptical of attempts to use Rule 10(e) to expand the appellate record where the omission was not due to an error or accident. Wright and Miller argue that “ordinarily Rule 10(e) should not be used to insert in the record items that are not properly a part of it—such as materials that were not presented to the district court during the litigation that led to the challenged district-court ruling.” Wright & Miller, 16A Federal Practice and Procedure § 3956.4. Similarly, the court in Hyde & Hyde, Inc. v. Mount Franklin Foods, LLC, denied the appellants’ request to supplement the record with a new settlement agreement executed after entry of judgment, reasoning that the agreement was not “omitted from the record by error or accident” but instead “amounts to a new factual basis for pursuing a claim already decided by the district court on the record then before it.” 523 F. App’x 301, 303 (5th Cir. 2013). Other courts have agreed, cautioning that Rule 10(e) allows for “amendment of the record on appeal only to correct inadvertent omissions, not to introduce new evidence.” In re Application of Adan, 437 F.3d 381, 388 n.3 (3d Cir. 2006) (emphasis added).
Parties seeking to supplement the record under Rule 10(e) can do so in three ways: (1) on stipulation of the parties; (2) through the district court, “before or after the record has been forwarded” to the court of appeals; or (3) through the court of appeals. Certain circuits, including the Fourth and Seventh Circuits, have established procedures governing requests to supplement the record under Rule 10(e), under which a party must seek to supplement the record in the district court in the first instance. Practitioners seeking to employ Rule 10(e) should consult the local circuit court rules to determine the best way to proceed.
Inherent Equitable Authority
As an alternative to judicial notice and Rule 10(e), a party may request that an appellate court use its inherent authority to supplement the record. This equitable doctrine is derived from the U.S. Supreme Court’s decision in Singleton v. Wulff, which recognized that a federal appellate court may be justified in resolving issues not decided by the lower court “where ‘injustice might otherwise result.’” 428 U.S. 106, 121 (1976).
Appellate courts have recognized their inherent equitable authority to expand the record, particularly when “the interests of justice demand it.” Although this inherent power is understood to exceed the power provided in Rule 10(e), appellate courts have been careful about exercising this authority in light of the general rule against expansion of the appellate record. Several circuits utilize a multifactor test to determine whether to exercise the inherent equitable power to supplement the record. That test evaluates three factors:
(1) whether “acceptance of the proffered material into the record would establish beyond any doubt the proper resolution of the pending issue[]” . . . ; (2) whether remand of the case would be contrary to the interests of justice and judicial economy; (3) whether the inherent judicial powers of the court in habeas corpus actions dictate supplementation.
Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1555 (11th Cir. 1989) (quoting and citing Ross v. Kemp, 785 F.2d 1467, 1474–75 (11th Cir. 1986)). The U.S. Court of Appeals for the Sixth Circuit has added a fourth factor: whether the opposing party had notice of the existence of the disputed evidence. Nonetheless, these factors are only guidelines, and courts generally “evaluate all of the factors, issues, and circumstances of each request on a case-by-case basis.” Cabalceta, 883 F.2d at 1555.
Applying this test, the court in Gibson v. Blackburn supplemented the record with a photograph, reasoning that it was better to do so rather than “remand this case to the district court and prolong a case which has wound its way through courts for the past six years.” 744 F.2d 403, 405 n.3 (5th Cir. 1984). The court further acknowledged that “[t]he proper resolution of th[e] issue [was] not in doubt, and a remand ‘would be contrary to both the interests of justice and the efficient use of judicial resources.’” Id. (quoting Dickerson v. Alabama, 667 F.2d 1364, 1367 (11th Cir. 1982)).
In practice, courts have been more likely to exercise their inherent authority to supplement the record if at least one of the following factors existed:
[1] the item added to the record establishes a fact that both parties concede to be true, [2] if supplementation of the record permits disposition of the appeal based on a pure point of law, thus making a remand appear superfluous, [3] if the item goes to the court’s subject-matter jurisdiction, . . . or [4] if it would be illogical not to supplement the record given the nature of the contention at issue.
Wright & Miller, 16A Federal Practice and Procedure § 3956.4.
A request to supplement the record should be made by motion, and should be made independently or as an alternative to a request to supplement the record under Rule 10(e). Practitioners should attempt to obtain the opposing party’s consent to the relief requested. Although the appellate court must still determine whether such relief is warranted, the opposing party’s failure to object has in some cases persuaded an appellate court to exercise its discretionary power to permit supplementation.
Supplementation “in Aid of the Appeal” Exception
The final exception to the rule against expanding the appellate record is also the narrowest: the supplementation “in aid of the appeal” exception. Under this exception, the “district court retains jurisdiction to proceed with matters that are in aid of the appeal,” even after a notice of appeal is filed. See Cochran v. Birkel, 651 F.2d 1219, 1221 (6th Cir. 1981). This judge-made doctrine is designed to avoid the confusion and waste of time that might flow from putting the same issues before two courts at the same time.
Circuit courts have authorized district courts to expand the record after a notice of appeal is filed by, for example, filing a written decision that memorializes an earlier oral opinion. However, this exception is very limited—it does not permit a trial court to develop additional or supplemental filings after the notice of appeal has been filed.
As with the other procedures, a request that a court allow supplementation in aid of the appeal should be made by motion.
Conclusion
In sum, the record on appeal is (usually) closed. Expanding the record on appeal is not commonplace, nor is it easily accomplished. Attorneys who nonetheless seek to expand the appellate record should determine which of the procedures discussed above is best suited to their case, their jurisdiction, and the evidence that they seek to introduce.
Even when the evidence appears to fit within one of the exceptions discussed in this article, appellate courts remain reluctant to review evidence that was not before the district court and have complete discretion to decide whether to do so. The best advice: Request permission to admit the evidence and hope for the best.
William Feldman is an associate with Haynes and Boone, LLP in New York, New York. He thanks Rachel Koehn for her valuable contributions to this article.