Navigating the New Changes to the
Federal Rules of Appellate Procedure
Tips and Best Practices
Adam Hansen
Jeff Justman
Overview
►Changes
to the Federal Rules of Appellate Procedure
► Reduction
in word limits for briefs
► Changes to certificates of compliance
► Elimination of three-day service period
► Amicus briefs
►Tips
and tricks for navigating the new rules
► Variations
► Eighth
to these rules by circuit
Circuit rules
► Other traps for the unwary
New Rules Effective December 1, 2016
SUPREME COURT OF THE UNITED STATES
ORDERED:
“That the foregoing amendments to the Federal Rules of Appellate
Procedure shall take effect on December 1, 2016, and shall govern in all
proceedings in appellate cases thereafter commenced and, insofar as
just and practicable, all proceedings then pending.”
Reduction in Word Limits for Filings
►The
Big Change (Rule 32(a)(7)):
►Principal
briefs (where there is no cross appeal) must be no
more than 13,000 words
► Used
to be 14,000
►Reply
briefs (where there is no cross appeal) must be no
more than 6,500 words
► Used
to be 7,000
Reduction in Word Limits for Filings
►But
the Committee Notes Contemplate Longer Briefs for
Complex Cases:
►
“In a complex case, a party may need to file a brief that exceeds the type-volume
limitations specified in these rules, such as to include unusually voluminous
information explaining relevant background or legal provisions or to respond to
multiple briefs by opposing parties or amici. The Committee expects that courts will
accommodate those situations by granting leave to exceed the type-volume
limitations as appropriate.”
►Should
cases?
counsel seek brief length extensions in complex
But Some Circuits Vary The Rules on Brief Length
►Some
circuits have maintained the 14,000 word limit on
briefs, as a matter of local rules
► Second,
Seventh, Ninth Circuits
Word Counts Abound
►The
New Rules Systematically Replace Page Limits with
Word Limits for Electronically-Filed Documents
►
Motions (Rule 27(d)(2)):
►
►
Petitions for Hearing or Rehearing (Rule 35(b)(2)(A) and 40(b)(1)):
►
►
7,800 words (used to be 30 pages)
Appellee Brief in Cross-Appeal (Rule 28.1(e)(2)(B)(i)):
►
►
5,200 words (used to be 20 pages)
Writs (Rule 21(d)):
►
►
3,900 words (used to be 15 pages)
Permission to Appeal (Rule 5(c)):
►
►
5,200 words (used to be 20 pages)
15,300 words (used to be 16,500 words)
Handy New Appendix: Length Limits Stated in the Federal Rules of Appellate
Procedure
Word Count: What Counts?
►Signature
Blocks No Longer Need To Be Counted (Rule
32(f)):
► Items
Excluded from Length. In computing any length limit,
headings, footnotes, and quotations count toward the limit but the
following items do not:
►
the cover page;
►
a corporate disclosure statement;
►
a table of contents;
►
a table of citations;
►
a statement regarding oral argument;
►
an addendum containing statutes, rules, or regulations;
►
certificates of counsel;
►
the signature block;
the proof of service; and
►
any item specifically excluded by these rules or by local rule.
►
Time To Appeal: Eliminating Uncertainty
►New
Rules Clarify that the Filing of Untimely Post-Trial
Motions Will Not Toll the Notice of Appeal Deadline
► Rule 4(a)(4)(a): “If a party files in the district court any of the following motions under the
Federal Rules of Civil Procedure—and does so within the time allowed by those rules—the time to
file an appeal runs for all parties from the entry of the order disposing of the last such remaining
motion”
► Old
Rule: “[i]f a party timely files in the district court” certain post-judgment motions, “the
time to file an appeal runs for all parties from the entry of the order disposing of the last such
remaining motion.”
► Committee Notes: A motion made after the time allowed by the Civil Rules will not qualify
as a motion that, under Rule 4(a)(4)(A), re-starts the appeal time—and that fact is not altered by, for
example, a court order that sets a due date that is later than permitted by the Civil Rules, another
party’s consent or failure to object to the motion’s lateness, or the court’s disposition of the
motion without explicit reliance on untimeliness.
► Bottom Line: You need to file your post-trial motions on time (28 days after judgment under
FRCP Rules 50 and 59) in order to toll the notice of appeal deadline
No More 3-day Mailing Rule
►New
Rules Eliminate 3-day Mailing Rule For Documents
Served Electronically
► Rule 26(c): “Additional Time after Certain Kinds of Service. When a party may or must act
within a specified time after being served service, 3 days are added after the period would
otherwise expire under Rule 26(a), unless the paper is delivered on the date of service stated in the
proof of service. For purposes of this Rule 26(c), a paper that is served electronically is not treated
as delivered on the date of service stated in the proof of service.”
► Rationale
(from the Committee Notes): “[C]oncerns [about the
reliability of electronic service] have been substantially alleviated
by advances in technology and widespread skill in using
electronic transmission.”
► Bottom Line: When served electronically, you no longer get to add 3 days to respond
New Rule for Rehearing Stage Amicus Briefs
►New
Rule 29 (b) Governs Amicus Filings During A
Court’s Consideration of Whether to Grant Panel
Rehearing or Rehearing En Banc
►
Private Parties Still Must Seek Leave of Court (Rule 29 (b)(2))
►
Briefs Limited to 2,600 Words (Rule 29 (b)(4))
►
Due 7 Days After the Petition or Response (Rule 29 (b)(5))
►
Committee Notes: “A court remains free to adopt different rules governing whether amicus filings
are permitted in connection with petitions for rehearing, and governing the procedures when such filings
are permitted.”
New Eighth Circuit Rules—effective Dec. 2016
►Rule
3B—Appeal Information Form (deleted)
►Rule
33A—Prehearing Conference Program (deleted)
►Rule
25A(b)—Documents that must be filed electronically
► CJA vouchers
►Rule
and attachments
25A(c)—Documents that may be filed electronically
► Documents
initiating proceedings under FRAP 5, 15, or 21
► Petitions for review in the first instance
Tips for Navigating The Appellate Rules
►Check
the appellate websites for jurisdiction-specific guidance
► Local
►Contact
►Send
the clerk’s office
your briefs to confirm compliance with the rules
►Review
►Ask
rules, internal operating procedures, checklists
recently filed briefs and the docket—inquiry notice
others who have filed briefs recently
Circuit-Specific Tips
►Second
► Font
►Fifth
Circuit
size of case number, PDF pagination
Circuit
► Certificate
►Seventh
► Verify
of interested persons, electronic record on appeal
Circuit
procedural compliance: [email protected]
► Jurisdiction and documents under seal
► Table of Authorities
Circuit-Specific Tips
►Eighth
Circuit Tips:
► Ask
your case manager
► Extensions of time policy
► Citation to appendix v. district court docket
►Eleventh
Circuit Tips:
► Certificate
of interested persons
► Oral argument record
Questions?
►Any
Questions?
►Adam
Hansen, Apollo Law
► [email protected]
► (612)
►Jeff
927-2969
Justman
► [email protected]
► (612)
766-7133