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Amendments to the Federal Rules of Appellate Procedure

By Steven Finell

The Rules Enabling Act, 28 U.S.C. §§ 2071–2077, [1] structures the rulemaking process for all federal courts except the Supreme Court. The Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, usually referred to as the “Standing Committee,” coordinates the process. [2]


Judicial rulemaking is transparent and provides for public participation, including open meetings of the Standing Committee and the advisory committees, publication of all proposed rules, an ample period for submitting written comments, and an opportunity for anyone to testify at public hearings. There is a Federal Rulemaking website with a wealth of resources, both historical and current, on all aspects of judicial rulemaking and information about how one can participate most effectively.


While many bar association committees and interest groups are active in submitting comments, individual lawyers, law professors, and judges also submit them. There is every indication that all submitted comments are considered on their merits. [3] To testify at a public hearing, one must request permission at least one month before the date of the hearing; permission is granted liberally.


Typically, new rules or amendments are first developed and then proposed by one of the five advisory committees, including the Advisory Committee on Appellate Rules. [4] While the process can be accelerated in cases of urgency, the usual timetable is about two and a half years from an advisory committee’s recommendation of an amendment until it becomes effective:


  1. In the spring of Year 1, the advisory committees issue reports to the Standing Committee with the text of recommended rules or amendments, notes to accompany each rule when enacted, and discussion of the reasons for each recommended rule or amendment.
  2. In June of Year 1, the Standing Committee authorizes publication of the proposed amendments to the various rules of practice and procedure.
  3. In mid-August of Year 1, the proposed amendments are published, with six months for submission of written comments by the public.
  4. From November of Year 1 through February of Year 2, public hearings are held around the country separately for each set of rules.
  5. In mid-February of Year 2, the public comment period ends.
  6. In the spring of Year 2, the advisory committees meet, consider the written comments and testimony at public hearings, and issue reports to the Standing Committee with their final proposals for amendments.
  7. In June of Year 2, the Standing Committee issues its report to the Judicial Conference recommending a package of amendments to the federal rules of practice and procedure.
  8. In September of Year 2, the Judicial Conference submits a package of amendments to the U.S. Supreme Court.
  9. By May 1 of Year 3, the Supreme Court transmits proposed amendments to both houses of Congress. [5]
  10. On December 1 of Year 3, the amendments take effect unless an act of Congress provides otherwise. [6]

At every stage in this process, the proposed amendments and the accompanying comments and reports can be, and often are, revised.


The Proposed Amendments
In August 2008, on the recommendation of the Advisory Committee on Appellate Rules [PDF], the Standing Committee published for comment four proposed amendments to the Federal Rules of Appellate Procedure. Three are technical amendments and not controversial. The fourth, which would require amicus curiae briefs to disclose outside authorship or financial sponsorship, may generate some controversy. Public hearings were held in January and early February, and the deadline for public comment was February 17, 2009.


Definition of “State”
A new Rule 1(b) would define the term “state” to include the District of Columbia and federal territories, commonwealths, and possessions. Correspondingly, Rule 29(a), which now provides “The United States or its officer or agency, or a State, Territory, Commonwealth, or the District of Columbia may file an amicus-curiae brief without the consent of the parties or leave of court,” would be amended to delete “Territory, Commonwealth, or the District of Columbia” as redundant based on the new definition.


Form 4
Section 205(c)(3)(A) of the E-Government Act of 2002 required the Supreme Court to “prescribe rules . . . to protect privacy and security concerns relating to electronic filing of documents and the public availability under this subsection of documents filed electronically or converted to electronic form.” [7] In August 2005, the Standing Committee published for comment a package of rules amendments to comply with this mandate. It included the addition Fed. R. App. P. 25(a)(5), which incorporates the new privacy provisions of Fed. R. Bankr. P. 9037, Fed. R. Civ. P. 5.2, and Fed. R. Crim. P. 49.1 that were proposed at the same time. Final versions of these amendments became effective without action by Congress on December 1, 2007. [8]


Those amendments did not revise Fed. R. App. P. Form 4, the affidavit to accompany a motion for permission to appeal in forma pauperis. Form 4 requires information that Rule 25(a)(5) forbids: the applicant’s Social Security number (only the last 4 digits are permitted), the full names of minors (only a minor’s initials are allowed), and street addresses (only city and state are permitted). Two rounds of amendments later, on recommendation of the Advisory Committee on Appellate Practice, the current package of proposed amendments revises Form 4 to comply with the privacy requirements. In the interim, the Administrative Office of the United States Courts revised the form of in forma pauperis affidavit that it has available for download on the federal courts’ website [9] to conform to these requirements. [10]


New Disclosures in Briefs by Amici Curiae
The most significant of the proposed amendments to the appellate rules in this round is the addition of new disclosure requirements in briefs filed by amici curiae other than amici listed in the first sentence of Rule 29(a), that is, the United States, a federal officer or agency, or a state as defined in the proposed Rule 1(b). A new subdivision (7) to Rule 29(c) would require the amicus brief to contain a statement that, in the first footnote on the first page:


  • (A) indicates whether a party’s counsel authored the brief in whole or in part
  • (B) indicates whether a party or a party’s counsel contributed money that was intended to fund preparing or submitting the brief
  • (C) identifies every person—other than the amicus curiae, its members, or its counsel—who contributed money that was intended to fund preparing or submitting the brief

The rule would require every brief filed by a nonexempt amicus to contain the prescribed footnote, thereby preventing an amicus who has something to disclose from omitting the required footnote in ignorance of the new rule.


The new disclosure rule is closely modeled on Sup. Ct. R. 37.6, which was enacted in 1997. [11] According to the committee note to the amendment to Rule 29, the “new disclosure requirement . . . serves to deter [a party’s] counsel from using an amicus brief to circumvent page limits on the parties’ briefs,” citing an observation by one court “that amicus briefs are often used as a means of evading the page limitations on a party’s briefs.” [12] The committee note further states that the new rule also “may help judges to assess whether the amicus itself considers the issue important enough to sustain the cost and effort of filing an amicus brief.”


It is difficult to argue with the proposition that a court is entitled to know whether a brief is submitted by a friend of the court or the friend of a party. To that end, knowing who is paying the piper or writing the tune is essential.


One obvious question about the proposed text is what it means to author an amicus brief “in part.” According to the committee note, the rule does not reach coordination between an amicus and a party, including “sharing drafts of briefs.” [13] However, proposing specific language is a normal part of coordination between lawyers. If a party’s counsel sends the amicus’s counsel a proposed point of 10 pages for inclusion in the amicus brief and the amicus includes it, either verbatim or with editorial revisions, did the party “author” the amicus brief “in part” within the meaning of the proposed rule? If not, then the rule will be toothless. By contrast, what about proposing one paragraph? Or a sentence?


The interpretation of Sup. Ct. R. 37.6 should be instructive in interpreting the proposed amendment to Fed. R. App. P. 29. According to the leading treatise on Supreme Court practice, authoring an amicus brief “in part” should be interpreted to apply where a party’s “counsel takes an active role writing or in rewriting a substantial or important ‘part’ of the amicus brief, . . . something more substantial than editing a few sentences.” [14]


Writing amicus briefs is a significant part of the practice of many appellate specialists. Practitioners, naturally, would like a much brighter line than this proposed rule provides. The drafters of the rule, however, must be wary of adopting a rule so specific that it is easily evaded, and which therefore serves no purpose.


Keywords: Appellate practice, amendments, Federal Rules of Appellate Procedure, Supreme Court


Steven Finell has a boutique practice concentrated in commercial civil litigation and appeals, with offices in California and New York.


This article appears in the Winter 2009 issue of Appellate Practice Journal.


 

End Notes


  1. An argument could be made that the act prescribes the judicial rulemaking process in such detail that it infringes upon the constitutional independence of the Judicial Branch. However, since the Administrative Office of the United States Courts and the Judicial Conference of the United States were created by statute and are funded by Congress, this issue is not likely to be adjudicated anytime soon. 
  2. 28 U.S.C. § 2073(b). A separate statute, 28 U.S.C. § 331, requires the Judicial Conference of the United States to “carry on a continuous study of the operation and effect of the general rules of practice and procedure,” to simplify procedures, assure fairness, and reduce unnecessary expense and delay.
  3. All comments submitted are categorized, summarized, and published on the federal rulemaking website. In the author’s experience, the Standing Committee carefully responds to the submitted comments. For example, when the Council of Appellate Lawyers last submitted comments, the council received a response that specifically addressed the points it raised.
  4. There are also advisory committees on the bankruptcy, civil, criminal, and evidence rules. See 28 U.S.C. § 2073(a)(2) (requiring the appointment of a standing committee and authorizing the creation of advisory committees).
  5. 28 U.S.C. §§ 2072, 2074.
  6. 28 U.S.C. § 2074.
  7. Pub. L. No. 107-347, 116 Stat. 2914, as amended by Pub. L. No. 108-281, 118 Stat. 889.
  8. See generally Paul K. Sun, Jr., New Federal Rule of Appellate Procedure 25(a) Adopts Privacy Provisions of Bankruptcy, Civil, and Criminal Rules, App. Prac. J., Winter 2008, at 19 (ABA Section of Litigation).
  9. Affidavit Accompanying Motion for Permission To Appeal in Forma Pauperis.
  10. E-Government Act of 2002 § 205(c)(3)(B), Pub. L. No. 107-347, 116 Stat. 2914, as amended by Pub. L. No. 108-281, 118 Stat. 890, authorizes the Administrative Office to take such interim actions to protect privacy until the required federal rules are enacted.
  11. As enacted in 1997, Sup. Ct. R. 37.6 required disclosure of those who contributed to the preparation or submission of the amicus brief. An amendment in 2007 required disclosure of those who made a monetary contribution to fund the amicus brief. Eugene Gressman et al., Supreme Court Practice 738 (9th ed. 2007). Unlike the rules of practice and procedure in other federal courts, the history of the Supreme Court’s rules other than the most recent revision is not readily available.
  12. Glassroth v. Moore, 347 F.3d 916, 919 (11th Cir. 2003).
  13. The committee note cites Robert L. Stern et al., Supreme Court Practice 662 (8th ed. 2002), interpreting the Supreme Court’s rule.
  14. Eugene Gressman, supra n. 12, at 739.

 

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