Rehearing Denial. The last required appendix document may or may not exist, but if it does, it goes at the end of the required category. This would be an order denying rehearing by the court that issued the final judgment you are directly challenging. Rule 14.1(i)(iii). Or the last document may be something else, depending on circumstances.
It is not necessary to request rehearing to preserve the right to petition for certiorari, but if you do, and if the request was timely, then the court’s denial of rehearing sets starting date for the 90 days allowed for filing a certiorari petition. The proper slot in the appendix for a rehearing denial order is following all of the required decisions. This puts it out of reverse chronological order, but that is where the rule and standard practice place it.
Along the same lines, the challenged decision may be one issued on the merits by an intermediate appellate court in a jurisdiction where the higher appellate court may simply deny review without considering the merits. In that instance, the last slot in the sequence of required orders would be the denial of discretionary review, which also would set the date for counting 90 days to the deadline for the certiorari petition.
If rehearing was not timely requested, or if no rehearing was requested, then the petition’s due date normally counts from the challenged decision at the start of the appendix. But if the date of entry of that final judgment is later than the explanatory opinion’s date, then the entry date starts the 90-day clock ticking, and the entry order comes at the end of the required orders. Rule 14.1(i)(iv).
Nothing else should be included in this sequence of required court or agency orders. If a document doesn’t fit under subparagraphs (i) through (iv), it would have to fit one of the next two provisions to be included at all, and would have to follow all of the required orders. The first, easy category is discussed next. The tougher category appears in the next part of this Guide.
Spillover from the Brief. Next up are two specific subcategories that are listed under provisions for required sections of the brief part of the petition, but the rule makes you place them in the appendix instead if they are “lengthy” or “voluminous.” Rule 14.1(i)(v) refers back to two required sections of the brief, one involving the text of law involved in the case, Rule 14.1(f), and the other involving quotations from state-court records showing the timing and manner of raising federal questions and how the state courts dealt with them, Rule 14.1(g)(i). If the provisions under (f) are “lengthy” or the record portions under (g)(i) are “voluminous,” they “shall be” included in the appendix, and “citation alone” in the brief suffices for the law provisions.
These two categories differ for a sometimes important tactical reason. When you move “lengthy” text of laws from the brief to the appendix, you do not gain anything under the word-limit provision in Rule 33 applicable to the brief. That is because verbatim quotations of laws required to be in an early section of the brief under Rule 14.1(f) do not count against the brief’s word limit anyway. Rule 33.1(d).
However, the word-limit provision makes no mention of excluding from the count anything required to be included in the brief under Rule 14.1(g)(i). As such, if you pull a “voluminous” amount of 14(g)(1) text out of the brief and move it to the appendix, you don’t have to include it in the brief’s word count.
Next: The tempting catchall.