Notice2023-01527
U.S. Court of Appeals for the Armed Forces Proposed Rules Changes
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 26, 2023
Issuing agencies
Defense Department
Abstract
This notice announces proposed changes to the Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces. Although these rules of practice and procedure fall within the Administrative Procedure Act's exemptions for notice and comment, the Department, as a matter of policy, has decided to make these changes available for public review and comment before they are implemented.
Full Text
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<title>Federal Register, Volume 88 Issue 17 (Thursday, January 26, 2023)</title>
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[Federal Register Volume 88, Number 17 (Thursday, January 26, 2023)]
[Notices]
[Pages 4980-4986]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-01527]
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DEPARTMENT OF DEFENSE
Office of the Secretary
[Docket ID: DoD-2023-OS-0009]
U.S. Court of Appeals for the Armed Forces Proposed Rules Changes
AGENCY: Office of the Secretary, Department of Defense.
ACTION: Notice of proposed changes to the rules of practice and
procedure of the United States Court of Appeals for the Armed Forces.
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SUMMARY: This notice announces proposed changes to the Rules of
Practice and Procedure, United States Court of Appeals for the Armed
Forces. Although these rules of practice and procedure fall within the
Administrative Procedure Act's exemptions for notice and comment, the
Department, as a matter of policy, has decided to make these changes
available for public review and comment before they are implemented.
DATES: Comments on the proposed changes must be received by February
27, 2023.
ADDRESSES: You may submit comments, identified by docket number and
title by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
<bullet> Mail: Department of Defense, Office of the Assistant to
the Secretary of Defense for Privacy, Civil Liberties, and
Transparency, Regulatory Directorate, 4800 Mark Center Drive, Attn:
Mailbox 24, Suite 08D09, Alexandria, VA 22350-1700.
Instructions: All submissions received must include the agency name
and docket number for this Federal Register document. The general
policy for comments and other submissions from members of the public is
to make these submissions available for public viewing on the internet
at <a href="http://www.regulations.gov">http://www.regulations.gov</a> as they are received without change,
including personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Malcolm H. Squires, Jr., Clerk of the
Court, telephone (202) 761-1448.
SUPPLEMENTARY INFORMATION: This notice announces the following
[[Page 4981]]
proposed changes to Rules 3A, 13(b), 13A, 15(b), 19(a)(7)(B), 21,
24(b), 27(b), 36, 37(b)(2), 38(a), 39(a) and the Guidelines for
Electronic Filing of Pleadings of the Rules of Practice and Procedure,
United States Court of Appeals for the Armed Forces.
Dated: January 20, 2023.
Aaron T. Siegel,
Alternate OSD Federal Liaison Officer, Department of Defense.
Rule 3A
Rule 3A--Senior Judges--currently reads:
(a) With the Senior Judge's consent, and at the request of the
Chief Judge, a Senior Judge may perform judicial duties with the Court
if an active Judge of the Court is disabled or recused himself or if
there is a vacancy in an active judgeship on the Court. For the periods
of time when performing judicial duties with the Court, a Senior Judge
shall receive the same pay, per diem, and travel allowances as an
active Judge. The periods of performance of judicial duties shall be
certified by the Chief Judge and reported to the Court Executive who
shall take appropriate steps so that the Senior Judge is paid in
accordance with Article 142(e)(2), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. 942(e)(2).
(b) In addition to the performance of judicial duties with the
Court, a Senior Judge may, at the request of the Chief Judge and with
the Senior Judge's consent, perform such other duties as the Chief
Judge may request or the Court may direct. Such other duties may
include, but are not limited to, service as a special master or as an
adviser on Court operations, administration, and rules; representation
of the Court at conferences, seminars, committee meetings, or other
official or professional functions; coordination of or assistance with
conferences being conducted by the Court; and assistance in the
compilation of history or archives of the Court. A Senior Judge shall
not receive pay for the performance of such other duties with the Court
but may be paid per diem and travel allowance to reimburse expenses
incurred by the Senior Judge while performing such duties.
(c) Whether in the performance of judicial duties or other duties,
a Senior Judge shall be provided such administrative and secretarial
assistance, office space, and access to the courthouse, other public
buildings, court files, and related information, as the Chief Judge
considers appropriate for the performance of those duties by the Senior
Judge.
(d) The title of Senior Judge may not be used in any way for
personal gain or in connection with any business activity,
advertisement, or solicitation of funds. However, the title of a Senior
Judge may be referred to in any professional biography or listing and
may be used in connection with any judicial or other duties that the
Chief Judge requests the Senior Judge to perform.
(e) No Senior Judge of the Court may engage in the practice of law
in connection with any matter that involves an investigation or trial
for any matter arising under the UCMJ or appellate review of any court-
martial proceeding by a Court of Criminal Appeals, the United States
Court of Appeals for the Armed Forces, or the Supreme Court of the
United States.
(f) These rules shall apply to ``senior judges'' as defined by
Article 142(e)(1), UCMJ, 10 U.S.C. 942(e)(1), and are promulgated
pursuant to Article 142(e)(5), UCMJ, 10 U.S.C. 942(e)(5).
The proposed change to Rule 3A would read:
(a) With the Senior Judge's consent, and at the request of the
Chief Judge, a Senior Judge may perform judicial duties with the Court
if an active Judge of the Court is disabled or recused, or if there is
a vacancy in an active judgeship on the Court. For the periods of time
when performing judicial duties with the Court, a Senior Judge shall
receive the same pay, per diem, and travel allowances as an active
Judge. The periods of performance of judicial duties shall be certified
by the Chief Judge and reported to the Clerk of the Court who shall
take appropriate steps so that the Senior Judge is paid in accordance
with Article 142(e)(2), Uniform Code of Military Justice (UCMJ), 10
U.S.C. 942(e)(2).
(b) In addition to the performance of judicial duties with the
Court, a Senior Judge may, at the request of the Chief Judge and with
the Senior Judge's consent, perform such other duties as the Chief
Judge may request or the Court may direct. Such other duties may
include, but are not limited to, service as a special master or as an
adviser on Court operations, administration, and rules; representation
of the Court at conferences, seminars, committee meetings, or other
official or professional functions; coordination of or assistance with
conferences being conducted by the Court; and assistance in the
compilation of history or archives of the Court. A Senior Judge may not
receive pay for the performance of such other duties with the Court but
may be paid per diem and travel allowance to reimburse expenses
incurred by the Senior Judge while performing such duties.
(c) The title of Senior Judge may not be used in any way for
personal gain or in connection with any business activity,
advertisement, or solicitation of funds. However, the title of a Senior
Judge may be referred to in any professional biography or listing and
may be used in connection with any judicial or other duties that the
Chief Judge requests the Senior Judge to perform.
(d) No Senior Judge of the Court may engage in the practice of law
in connection with any matter that involves an investigation or trial
for any matter arising under the UCMJ or appellate review of any court-
martial proceeding by a Court of Criminal Appeals, the United States
Court of Appeals for the Armed Forces, or the Supreme Court of the
United States.
(e) These rules shall apply to ``senior judges'' as defined by
Article 142(e)(1), UCMJ, 10 U.S.C. 942(e)(1), and are promulgated
pursuant to Article 142(e)(5), UCMJ, 10 U.S.C. 942(e)(5).
Comment: Article 142(e)(5), UCMJ, requires that our Court
``prescribe rules for the use and conduct of senior judges. . .''
(emphasis supplied). The proposed revision removes the language
regarding the support and amenities provided to senior judges, which is
repetitive of Article 142(e)(3), UCMJ, and NOT required by Article
142(e)(5). The Court has not employed a Court Executive for some time
and the position's workload has largely been delegated to the Clerk of
the Court.
Rules 13(b)
Rules 13(b)--Qualifications to Practice--currently reads:
* * * * *
(b) It shall be a requisite to the admission of attorneys to the
Bar of this Court that they be a member of the Bar of a federal court
or of the highest court of a State, Territory, Commonwealth, or
Possession, and that their private and professional character shall
appear to be good.
* * * * *
The proposed change to Rule 13(b) would read:
* * * * *
(b) It shall be a requisite to the admission of attorneys to the
Bar of this Court that they be a member in good standing of the Bar of
the highest court of a State, the District of Columbia, Territory,
Commonwealth, or Possession of the United States.
* * * * *
Comment: Most federal courts are not bar licensing authorities.
Limiting the
[[Page 4982]]
requirement to ``the Bar of a State, the District of Columbia,
Territory, Commonwealth, or Possession of the United States'' will
allow the Court to know the applicant's standing because these bars are
licensing authorities and are notified of suspected or actual
misconduct.
Rule 13A
Rule 13A--Student Practice Rule--currently reads:
* * * * *
(c) Supervising Attorney Requirements. A supervising attorney must:
(1) be an attorney of record in the case;
(2) be a member in good standing of the Bar of this Court;
(3) have been admitted to practice for a minimum of 2 years and
have appeared and argued in at least 1 case before this Court or
appeared and argued in at least 3 cases before state or federal
appellate courts;
(4) not supervise more than 5 students at any one time;
(5) appear with the student in any oral presentations before this
Court;
(6) read, approve, and sign all documents filed with this Court;
(7) assume personal professional responsibility for the student's
work in matters before this Court;
(8) be responsible to supplement the oral or written work of the
student as necessary to ensure proper representation of the client;
(9) guide and assist the student in preparation to the extent
necessary or appropriate under the circumstances;
(10) be available to consult with the client; and
(11) neither ask for nor receive any compensation or remuneration
of any kind from the person on whose behalf the services are rendered.
(d) Authorization and Certification.
(1) The party on whose behalf the student appears must consent to
the representation by that student in writing.
(2) The supervising attorney must indicate in writing approval of
the appearance by the law student and consent to supervise the student.
(3) The law student must be certified by the dean of the student's
law school as being of good character and competent legal ability.
(4) Before commencing student representation in any case under this
rule, the supervising attorney shall file a motion for leave to allow
student representation in such case. The motion should put forth that
the provisions of this rule have been met and that in counsel's view
the case is an appropriate one for student representation. The written
consent, approval, and certification referred to above shall be
attached to the motion. A copy of the motion shall be served on
opposing counsel, but no answer will be allowed except with leave of
the Court. Once these documents are filed, the Court will decide, using
its discretion on a caseby-case basis, whether to allow the student
representation.
(e) Activities. Upon fulfilling the requirements of this rule, the
student may enter an appearance in a case and:
(1) assist in the preparation of briefs and other documents to be
filed in this Court, but such briefs or documents must also be signed
by the supervising attorney;
(2) participate in oral argument, but only in the presence of the
supervising attorney; and
(3) take part in other activities in connection with the case,
subject to the direction of the supervising attorney.
(f) Termination. The dean's certification of the student:
(1) shall remain in effect, unless sooner withdrawn, until the
publication of the results of the first bar examination taken by such
student following the student's graduation. For any student who passes
that examination, the certification shall continue in effect until the
date the student is admitted to the bar;
(2) may be withdrawn by the Court at any time; and
(3) may be withdrawn by the dean at any time.
(g) Exceptions.
(1) This rule does not apply to an appearance or an oral argument
by a law student on behalf of an amicus curiae. See Rule 26.
(2) Nothing in this rule shall preclude the Government or any
agency, firm, or organization from compensating a law student for
services rendered under such rule.
(3) The Court retains the authority, on good cause shown, to
establish exceptions to these procedures in any case. See Rule 33.
(h) Time for Filing. An amicus brief submitted under this Rule is
not subject to the time limitation in Rule 26, but such brief shall be
filed no less than 14 days before the scheduled date of oral argument.
Both the appellant and the appellee may file a reply to such brief
within 7 days of the filing thereof, subject to the limitations
specified in Rule 24 (b) and (c).
The proposed change to Rule 13A would read:
* * * * *
(c) Supervising Attorney Requirements. A supervising attorney must:
(1) be an attorney of record in the case;
(2) be a member in good standing of the Bar of this Court;
(3) have been admitted to practice for a minimum of 2 years and
have argued at least 1 case before this Court or argued at least 3
cases before state or federal appellate courts;
(4) approve in writing the appearance by the law student and agree
to supervise the student;
(5) not supervise more than 5 students at any one time;
(6) appear with the student in any oral presentations before this
Court;
(7) read, approve, and sign all documents filed with this Court;
(8) assume personal professional responsibility for the student's
work in matters before this Court;
(9) be available to consult with the client, if applicable; and
(10) neither ask for nor receive any compensation or remuneration
of any kind from the person on whose behalf the services are rendered.
(d) Authorization and Certification.
(1) The party on whose behalf the student appears must consent to
the representation by that student in writing.
(2) Before commencing student representation in any case under this
rule, the prospective supervising attorney must file a motion for leave
to allow student representation in such case. The motion must affirm
that the provisions of this rule have been met and that, in the
prospective counsel's view, the case is an appropriate one for student
representation. The written consent, approval, and certification
referred to above shall be attached to the motion. No answer will be
allowed except with leave of the Court. Once these documents are filed,
the Court will decide, using its discretion on a case-by-case basis,
whether to allow the student representation.
(e) Activities. Upon fulfilling the requirements of this rule, the
student may enter an appearance in a case and:
(1) assist in the preparation of briefs and other documents to be
filed in this Court; and
(2) participate in oral argument, but only in the presence of the
supervising attorney.
(f) Exceptions.
(1) Nothing in this rule shall preclude the Government or any
agency, firm, or organization from compensating a law student for
services rendered under such rule.
(2) The Court retains the authority, on good cause shown, to
establish
[[Page 4983]]
exceptions to these procedures in any case. See Rule 33.
Comment: The student practitioner rule should make no distinction
based on the route a student takes to participate in a case--whether
through some type of internship, externship, or through Project
Outreach. The nature of the Court's Project Outreach visit may make
meeting the standard requirements for filing briefs unworkable.
However, no rigid timeline or word limitation need be spelled out, as
this can be overcome by granting exceptions through what would become
Rule 13A(f)(2).
Rule 15(b)
Rule 15(b)--Disbarment and Disciplinary Actions--currently reads:
* * * * *
(b) Whenever a member of the Bar of this Court has been disbarred
or suspended from practice in any court of record, the Court will enter
an order suspending that member from practice before this Court and
affording the member an opportunity to show cause, within 30 days, why
a disbarment order should not be entered. Upon response, or if no
response is timely filed, the Court will enter an appropriate order.
* * * * *
The proposed change to Rule 15(b) would read:
* * * * *
(b) Attorneys must report suspension, disbarment, or final
disciplinary action in the bars of other courts to the Bar of this
Court within 30 days following said action. Whenever a member of the
Bar of this Court has been disbarred or suspended from practice in any
court of record, the Court must enter an order temporarily suspending
that member from practice before this Court and affording the member an
opportunity to show cause, within 30 days, why a disbarment order
should not be entered. Upon response, or if no response is timely
filed, the Court will enter an appropriate order.
* * * * *
Comment: There was no previously existing requirement for attorneys
to update this Court of any suspension, disbarment, or final
disciplinary action in the bars of other courts. Adding this language
will allow this Court to take appropriate action to maintain the
integrity of its bar.
Rule 19(a)(7)(B)
Rule 19(a)(7)(B)--Time Limits--currently reads:
(a) Petition for Grant of Review/Supplement/Answer/Reply
* * * * *
(7) Granted Petitions.
* * * * *
(B) Other Appeals. Where a petition has been granted in all other
appeal cases and briefs have been ordered, an appellant's brief shall
be filed in accordance with Rule 24 no later than 30 days after the
date of the order granting the petition. An appellee's answer shall be
filed no later than 30 days after the filing of an appellant's brief. A
reply may be filed by the appellant no later than 10 days after the
filing of the appellee's answer.
The proposed change to Rule 19(a)(7)(B) would read:
(a) Petition for Grant of Review/Supplement/Answer/Reply
* * * * *
(7) Granted Petitions.
* * * * *
(B) Other Appeals. Where a petition has been granted in all other
appeal cases, to include cases returned by mandate from the United
States Supreme Court, the Clerk of Court will issue a briefing order
within 30 days to provide the appropriate timing and sequence of
filings.
Comment: Due to the uncertain nature of ``other appeals'' it is
best to remove strict requirements on the order and timing of filings
and to place them under the discretion of the Clerk of the Court.
Rule 21
Rule 21--Supplement to Petition for Grant of Review--currently
reads:
* * * * *
(b) The supplement to the petition shall be filed in accordance
with the applicable time limit set forth in Rule 19(a)(5)(A) or (B),
shall include an Appendix containing a copy of the decision of the
Court of Criminal Appeals, unpublished opinions cited in the brief,
relevant extracts of rules and regulations, and shall conform to the
provisions of Rules 24(b), 35A, and 37. Unless authorized by Order of
the Court or by motion of a party granted by the Court, the supplement
and any answer thereto shall not exceed 25 pages, except that a
supplement or answer containing no more than 9,000 words or 900 lines
of text is also acceptable. Any reply to the answer shall not exceed 10
pages, except that a reply containing 4,000 words or 400 lines of text
is also acceptable. The supplement shall contain:
* * * * *
(f) An appellant or counsel for an appellant may move to withdraw
his petition at any time by filing a motion pursuant to Rule 30. Such a
motion shall substantially comply with the requirements of Rule for
Courts-Martial 1110, and be accompanied by a written request for
withdrawal that includes the following:
* * * * *
The proposed changes to Rules 21 would read:
* * * * *
(b) The supplement to the petition shall be filed in accordance
with the applicable time limit set forth in Rule 19(a)(5) and shall
include an Appendix containing a copy of the decision of the Court of
Criminal Appeals, unpublished opinions cited in the brief, relevant
extracts of rules and regulations, and shall conform to the provisions
of Rules 35A and 37. Unless authorized by Order of the Court or by
motion of a party granted by the Court, the supplement and any answer
thereto may not exceed 9,000 words. Any reply to the answer may not
exceed 4,500 words. The supplement shall contain:
* * * * *
(f) An appellant may move to withdraw a petition at any time by
filing a motion pursuant to Rule 30. Such a motion must be accompanied
by a written request for withdrawal that includes the following:
* * * * *
Comment: Rule 24(b) deals with the filing of briefs, and, as Rule
21 governs the supplement, all provisions governing the length of the
supplement should remain in Rule 21(b). The page and lines of text
requirements are removed to bring this Court in line with the trends of
other federal courts. Both the Rules of the Supreme Court and the
Federal Rules of Appellate Procedure are deemphasizing page limitations
and shifting focus to word counts. Presently, Rule 21(f) states that
such a motion shall comply with R.C.M. 1110, along with other
requirements specified in Rule 21(f)(1)-(3). The current version of
R.C.M. 1110 does not address this subject. The 2019 M.C.M. does address
petitions for withdrawal of appellate review in R.C.M. 1115, but not as
to C.A.A.F., only as to the C.C.A.s.
Rule 24
Rule 24(b)--Supplement to Petition for Grant of Review--currently
reads:
Rule 24(b)--Form, Content, and Page Limitations
* * * * *
(b) Page Limitations. Unless otherwise authorized by order of the
Court or by motion of a party granted by the Court (see Rule 30), or by
Rule 24(c), the page limitations for briefs filed with the Court, not
including appendices shall be as follows:
[[Page 4984]]
(1) Briefs of the appellants/petitioners shall not exceed 30 pages;
(2) Answers of the appellees/respondents shall not exceed 30 pages;
(3) Replies of the appellants/petitioners shall not exceed 15
(c) Type-Volume Limitations.
(1) A brief of the appellants/petitioners and an answer of the
appellees/respondents is acceptable if:
it contains no more than 14,000 words; or
it contains no more than 1,300 lines of text.
(2) A reply is acceptable if it contains no more than half of the
type-volume specified in Rule 24(c)(1).
(3) Headings, footnotes, and quotations count toward the word and
line limitations. The index, table of cases, statutes, and other
authorities, the appendix and any certificates of counsel do not count
toward the limitation.
(d) Certificate of Compliance. A brief submitted under Rule 24(c)
must include a certificate stating that the brief complies with the
type-volume limitation and Rule 37. The person preparing the
certificate may rely on the word or line count of the word-processing
system used to prepare the brief. The certificate must state either:
(i) the number of words in the brief; or (ii) the number of lines in
the brief.
(e) Form of Certificate of Compliance
Certificate of Compliance With Rule 24(d)
This brief complies with the type-volume limitation of Rule 24(b)
because:
[The principal brief may not exceed 14,000 words or 1,300 lines; a
reply or amicus brief may not exceed 7,000 words or 650 lines
This brief contains [state the number of] words.
* * * * *
(f) Joint Appendix. The appellant or petitioner shall be
responsible for filing eight copies of a joint appendix, which shall be
a separate document filed contemporaneously with the brief.
* * * * *
(2) Format. The joint appendix will be produced on 8.5 by 11 inch
white paper, be bound in a manner that is secure and does not obscure
the text, and will permit the contents to lie reasonably flat when
open. The cover must be white and contain the caption of the case and
docket number. The cover shall be followed by a table of contents.
Pages in the joint appendix shall be sequentially numbered in a manner
that does not obscure any page numbers reflected in the record of
trial. If the joint appendix consists of less than 100 pages, it may be
reproduced by single-sided or double-sided copying. If it consists of
100 pages or more, the joint appendix shall use double-sided copying.
Classified material or matters under seal that are to be included in a
joint appendix shall be submitted in a separate volume, clearly
designated as containing classified or sealed material. Classified
material will be handled in accordance with Rule 12.
* * * * *
The proposed change to Rule 24(b) would read:
Rule 24(b)--Form, Content, and Type-Volume Limitations
* * * * *
(b) Type-Volume limitations. Unless otherwise authorized by order
of the court or by motion of a party granted by the Court (see Rule
30), or by Rule 24(c), the type-volume limitations for briefs filed
with the Court, not including appendices shall be as follows:
(1) A brief of the appellants/petitioners and an answer of the
appellees/respondents may not exceed 14,000 words.
(2) A reply may not exceed more than half of the words (7,000)
specified in Rule 24(b)(1).
(3) Headings, footnotes, and quotations count toward the word
limitation. The index, table of cases, statutes, and other authorities,
the appendix and any certificates of counsel do not count toward the
limitation.
(c) Certificate of Compliance. A brief submitted under Rule 24(b)
must include a certificate stating that the number of words in the
brief complies with the type-volume limitation and Rule 37. The person
preparing the certificate may rely on the word count of the word-
processing system used to prepare the brief. The certificate must state
the number of words in the brief.
(d) Form of Certificate of Compliance.
Certificate of Compliance With Rule 24(b)
* * * This brief complies with the type-volume limitation of Rule
24(b) because:
This brief contains [state the number of] words.
* * * * *
(e) Joint Appendix. The appellant or petitioner shall be
responsible for filing eight copies of a joint appendix, which shall be
a separate document filed contemporaneously with the brief.
* * * * *
(2) Format. The Joint Appendix will be produced on 8.5 by 11 inch
white paper, be bound in a manner that is secure and does not obscure
the text, and will permit the contents to lie reasonably flat when
open. The cover must be white and contain the caption of the case and
docket number. The cover shall be followed by a table of contents.
Pages in the joint appendix shall be sequentially numbered in a manner
that does not obscure any page numbers reflected in the record of
trial. If the joint appendix consists of less than 100 pages, it may be
reproduced by single-sided or double-sided copying. If it consists of
100 pages or more, the joint appendix shall use double-sided copying.
Audio and video recordings may be filed electronically or produced on a
CD or DVD. See the Guidelines for Electronic Filing of Pleadings Sec.
1(e). Classified material or matters under seal that are to be included
in a joint appendix shall be submitted in a separate volume, clearly
designated as containing classified or sealed material. Classified
material will be handled in accordance with Rule 12.
* * * * *
Comment: The page and lines of text requirements are removed to
bring this Court in line with the trends of other federal courts. Both
the Rules of the Supreme Court and the Federal Rules of Appellate
Procedure are deemphasizing page limitations and shifting focus to word
counts. Additionally, stating a clear rule on the nature of audio and
video filing will provide clarity to filers.
Rule 27(b)
Rule 27(b)--Petition for Extraordinary Relief, Writ-Appeal
Petition, Answer, and Reply--currently reads:
* * * * *
(b) Writ-Appeal Petition, Answer, and Reply. A writ-appeal petition
for
review of a decision by a Court of Criminal Appeals acting on a
petition for extraordinary relief shall be filed by an appellant,
together with any available record, including the items specified in
subsection (a)(2)(C), within the time prescribed by Rule 19(e), shall
conform in length to Rule 24(b), shall be accompanied by proof of
service on the appellee in accordance with Rule 39, and shall contain
the information required by subsection (a)(2)(B). The appellee shall
file an answer no later than 10 days after the filing of the writ-
appeal petition. A reply may be filed by the appellant no later than 5
days after the filing of the appellee's answer. See Rules 28(b)(2) and
(c)(2). Upon the filing of pleadings by the parties, the Court may
grant or deny the writ-appeal petition or take such other action as the
circumstances may require.
The proposed change to Rule 27(b) would read:
* * * * *
(b) Writ-Appeal.
[[Page 4985]]
(1) Writ-Appeal Petition, Answer, and Reply. A writ-appeal petition
for review of a decision by a Court of Criminal Appeals acting on a
petition for extraordinary relief shall be filed by an appellant,
together with any available record, including the items specified in
subsection (a)(2)(C), within the time prescribed by Rule 19(e). The
petition must conform in length to Rule 24(b), shall be accompanied by
proof of service on the appellee in accordance with Rule 39, and shall
contain the information required by subsection (a)(2)(B). The appellee
may file an answer no later than 10 days after the filing of the writ-
appeal petition. A reply may be filed by the appellant no later than 5
days after the filing of the appellee's answer. See Rules 28(b)(2) and
(c)(2).
(2) Priority Writ-Appeal for Article 6b(e) Writs. To the extent
practicable, review of any decision of the Courts of Criminal Appeals
on a petition for mandamus, pursuant to Article 6b(e)(3)(C), UCMJ, 10
U.S.C. 806b(e)(3)(C), will have priority over all other proceedings
before this Court.
Comment: Adding Rule 27(b)(2) is necessary to recognize that
Article 6b(e) writs have priority as reflected in the Statute. The
exact language of Article 6b(e)(3)(C), UCMJ, 10 U.S.C. 806b is as
follows, and has been incorporated into the rule above:
(C) Review of any decision of the Court of Criminal Appeals on a
petition for a writ of mandamus described in this subsection shall have
priority in the Court of Appeals for the Armed Forces, as determined
under the rules of the Court of Appeals for the Armed Forces. Art.
6b(e)(3)(C), UCMJ, 10 U.S.C. 806b.
Rule 36
Rule 36--Filing of Pleadings--currently reads:
* * * * *
(b) Filing in Person. If a pleading or other paper is filed in
person, such filing shall consist of delivery to a member of the
Clerk's office during normal business hours. See Rule 9(e).
* * * * *
The proposed change to Rule 36 would read:
* * * * *
(b) Filing in Person. If a pleading or other paper is filed in
person, such filing shall consist of delivery pursuant to Rule 9(e).
* * * * *
(f) Pro Se Filings. A pro se filing is a filing that is made by a
person on his or her own behalf and that is not signed by at least one
counsel who is participating in the case. See Rule 38(a). Pro se
filings must include a statement indicating whether the filer is
currently represented by designated military or other counsel. A person
who is represented by counsel may make a pro se filing only if leave to
file is granted by the Court for good cause shown. To establish good
cause, a person who is represented by a counsel who has entered a
notice of appearance must explain why representation by that counsel is
inadequate. The Court and its employees cannot give legal help or
advice to any person. A person making a pro se filing must follow all
the Court's Rules of Practice and Procedure.
Comment: The ability for counsel and the accused party to file
separate documents is unfair to the other side and, if a represented
party can file separately, Grostefon is rendered meaningless.
Previously, the Court's rules have not defined pro se filings or put
forth their limitations. While a person who is represented by counsel
generally should not be permitted to file anything pro se, there may
exist some exceptions. The best way to handle the possibilities of
exceptions is to require a person to seek leave to file pro se and to
show good cause.
Rule 37(b)(2)
Rule 37(b)(2)--Printing, Copying, and Style Requirements--currently
reads:
* * * * *
(b) Copying
* * * * *
(2) Except for electronically filed pleadings, an original and 7
legible copies of all pleadings or other papers relative to a case
shall be filed. See Rule 35A concerning documents which contain
classified information.
* * * * *
The proposed change to Rule 37(b)(2) would read:
* * * * *
(b) Copying
* * * * *
(2) Except for electronically filed pleadings and audio and video
recordings, an original and 7 legible copies of all pleadings or other
documents relative to a case shall be filed. See Rule 35A concerning
documents which contain classified information.
* * * * *
Comment: This proposal reflects the changes needed to allow for the
electronic filing of audio and video recordings.
Rule 38(a)
Rule 38(a)--Signatures--currently reads:
(a) General. Except for documents filed in propria persona and
those provided for in subsection (b), all original pleadings or other
papers filed in a case will bear the signature of at least one counsel
who is a member of this Court's Bar and who is participating in the
case. The name, address, telephone number, Court Bar number, and rank,
if any, of the person signing, together with the capacity in which such
counsel signs the paper, will be included. This signature will
constitute a certificate that the statements made in the pleading or
paper are true and correct to the best of the counsel's knowledge,
information, or belief, and that the pleading or paper is filed in good
faith and not for the purpose of unnecessary delay. A counsel who signs
a pleading ``for'' some other counsel whose name is typed under such
signature must, in addition, affix their own signature in a separate
signature block with their own name, address, telephone number, Court
Bar number, and rank, if any, typed thereunder.
The proposed change to Rule 38(a) would read:
(a) General. Except for documents filed pro se and those provided
for in subsection (b), all original pleadings or other papers filed in
a case will bear the signature of at least one counsel who is a member
of this Court's Bar and who is participating in the case. The name,
address, telephone number, Court Bar number, and rank, if any, of the
person signing, together with the capacity in which such counsel signs
the paper, will be included. This signature will constitute a
certificate that the statements made in the pleading or paper are true
and correct to the best of the counsel's knowledge, information, or
belief, and that the pleading or paper is filed in good faith and not
for the purpose of unnecessary delay. A counsel who signs a pleading
``for'' some other counsel whose name is typed under such signature
must, in addition, affix their own signature in a separate signature
block with their own name, address, telephone number, Court Bar number,
and rank, if any, typed thereunder. An electronic filing shall contain
the digital signature of the attorney of record.
Comment: Rule 38 should be amended to include the guidance listed
in paragraph 3(e) of the appendix regarding signatures in electronic
filings.
Rule 39(a)
Rule 39(a)--Signatures--currently reads:
(a) In General. At or before the filing of any pleading or other
paper relative
[[Page 4986]]
to a case in the Clerk's office, a copy thereof shall be served on all
counsel of record, including amicus curiae counsel, in person, by mail,
by third-party commercial carrier, or by electronic means if the party
being served consents. See Rule 16(b). When a party is not represented
by counsel, service shall be made on such party in person, by mail, or
by third-party commercial carrier. When reasonable, considering such
factors as the immediacy of the relief sought, distance, and cost,
service must be at least as expeditious as the manner used to file the
pleading or other paper with the Court. See Rule 36.
* * * * *
The proposed change to Rule 39(a) would read:
(a) In General. At or before the filing of any pleading or other
paper relative to a case, a copy thereof shall be served on all counsel
of record, including amicus curiae counsel, in person, by mail, by
third-party commercial carrier, or by electronic means. When a party is
not represented by counsel, service shall be made on such party in
person, by mail, or by third-party commercial carrier. When reasonable,
considering such factors as the immediacy of the relief sought,
distance, and cost, service must be at least as expeditious as the
manner used to file the pleading or other paper with the Court. See
Rule 36.
* * * * *
Comment: The advent of electronic filings renders a consent
requirement unnecessary.
Guidelines for Electronic Filing of Pleadings
The Guidelines for Electronic Filing of Pleadings currently reads:
* * * * *
e. The Joint Appendix to the brief will be filed in paper form only
with the required number of paper copies rather than electronically. If
the appellant or petitioner files the brief electronically, the Joint
Appendix will be filed on the same day the brief is filed
electronically.
* * * * *
The proposed change to the Guidelines for Electronic Filing of
Pleadings would read:
* * * * *
e. The Joint Appendix to the brief, to include copies, will be
filed in paper form only. Audio and video recordings are exempt from
this paper requirement for the Joint Appendix to the brief. If the
appellant or petitioner files the brief electronically, the Joint
Appendix will be filed on the same day the brief is filed.
* * * * *
Comment: Electronically filing audio and video recordings will
allow for easier transmission and access to the recordings and
explicitly stating the Court's policy will provide clarity to filers.
[FR Doc. 2023-01527 Filed 1-25-23; 8:45 am]
BILLING CODE 5001-06-P
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</html>Indexed from Federal Register on January 26, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.