MEMORANDUM
DATE: May
22, 2003
TO: Judge
Anthony J. Scirica, Chair
Standing Committee on Rules of Practice and
Procedure
FROM: Judge
Samuel A. Alito, Jr., Chair
Advisory Committee on Appellate Rules
RE: Report
of Advisory Committee on Appellate Rules
I. Introduction
The Advisory Committee on Appellate Rules met
on May 15, 2003, in Washington, D.C. At its meeting, the Advisory Committee
approved three proposed amendments, removed two proposals from its study
agenda, and agreed to continue to study several other proposals. Detailed information about the Advisory
Committee’s activities can be found in the minutes of the May 15 meeting
and in the Advisory Committee’s study agenda, both of which are attached to
this report.
II. Action Items
Pursuant to the request of the Standing
Committee, the Advisory Committee has not forwarded proposed amendments to the
Standing Committee in a piecemeal fashion, but instead has collected proposed
amendments to present to the Standing Committee at one time. The last group of proposed amendments to the
Appellate Rules were published in August 2000 and took effect in December
2002. The Advisory Committee now seeks
the Standing Committee’s approval to publish another group of proposed
amendments in August 2003.
A. Rule
4(a)(6)
Rule 4(a)(6) provides a safe harbor for
litigants who fail to bring timely appeals because they do not receive notice
of the entry of judgments against them.
A district court is authorized to reopen the time to appeal a judgment
if the district court finds that several conditions have been satisfied,
including that the appellant did not receive notice of the entry of the
judgment within 21 days and that the appellant moved to reopen the time to
appeal within 7 days after learning of the judgment’s entry.
The Advisory Committee proposes to amend Rule
4(a)(6) to clarify what type of notice must be absent before an appellant is
eligible to move to reopen the time to appeal.
That issue has been cast into doubt by the 1998 restyling of the
Appellate Rules. Prior to 1998, it was
clear that a party was precluded from moving to reopen the time to appeal a
judgment only when the party received formal notice of that judgment under
Civil Rule 77(d). Under restyled Rule
4(a)(6), it appears that some kind of notice, in addition to Civil Rule
77(d) notice, precludes a party from later moving to reopen, but the rule does
not make clear what kind of notice qualifies. The proposed amendment to Rule 4(a)(6) would restore pre-1998
clarity on this issue.
The Advisory Committee also proposes to amend
Rule 4(a)(6) to specify what type of notice triggers the 7-day period to move
to reopen the time to appeal. As the
Committee Note discusses, a four-way circuit split has developed over this
issue. The proposed amendment would
provide that only written notice triggers the 7-day period, and the Committee
Note would define “written” broadly to include, for example, notice observed by
checking a court docket or a website.
The Advisory Committee unanimously approved
this amendment at our May 2003 meeting.
_____________________________________________________
Rule 4.
Appeal as of Right — When Taken
(a) Appeal in a Civil Case.
*
* * * *
(6) Reopening the Time
to File an Appeal. The district
court may reopen the time to file an appeal for a period of 14 days after the
date when its order to reopen is entered, but only if all the following
conditions are satisfied:
(A) the court finds that
the moving party did not receive notice under Federal Rule of Civil Procedure
77(d) of the entry of the judgment or order sought to be appealed within 21
days after entry;
(B) the motion is filed within 180 days after
the judgment or order is entered or within 7 days after the moving party
receives or observes written notice of the entry from any source,
whichever is earlier;
(B) the court finds that the
moving party was entitled to notice of the entry of the judgment or order
sought to be appealed but did not receive the notice from the district court or
any party within 21 days after entry; and
(C) the court finds that no
party would be prejudiced.
*
* * * *
Committee
Note
Rule 4(a)(6) has
permitted a district court to reopen the time to appeal a judgment or order
upon finding that four conditions were satisfied. First, the district court had to find that the appellant did not
receive notice of the entry of the judgment or order from the district court or
any party within 21 days after the judgment or order was entered. Second, the district court had to find that
the appellant moved to reopen the time to appeal within 7 days after the
appellant received notice of the entry of the judgment or order. Third, the district court had to find that
the appellant moved to reopen the time to appeal within 180 days after the
judgment or order was entered. Finally,
the district court had to find that no party would be prejudiced by the
reopening of the time to appeal.
Rule 4(a)(6) has been
amended to specify more clearly what kind of “notice” of the entry of a
judgment or order precludes a party from later moving to reopen the time to
appeal. In addition, Rule 4(a)(6) has
been amended to address confusion about what kind of “notice” triggers the
7-day period to bring a motion to reopen.
Finally, Rule 4(a)(6) has been reorganized to set forth more logically
the conditions that must be met before a district court may reopen the time to
appeal.
Subdivision (a)(6)(A).
Former subdivision (a)(6)(B) has been redesignated as subdivision
(a)(6)(A), and one important substantive change has been made.
Prior to 1998, former
subdivision (a)(6)(B) permitted a district court to reopen the time to appeal
if it found “that a party entitled to notice of the entry of a judgment or
order did not receive such notice from the clerk or any party within 21 days of
its entry.” The rule was clear that the
“notice” to which it referred was the notice required under Civil Rule 77(d),
which must be served by the clerk pursuant to Civil Rule 5(b) and may also be
served by a party pursuant to that same rule.
In other words, prior to 1998, former subdivision (a)(6)(B) was clear
that, if a party did not receive formal notice of the entry of a judgment or
order under Civil Rule 77(d), that party could later move to reopen the time to
appeal (assuming that the other requirements of subdivision (a)(6) were met).
In 1998, former
subdivision (a)(6)(B) was amended to change the description of the type of
notice that would preclude a party from moving to reopen the time to
appeal. As a result of the amendment,
former subdivision (a)(6)(B) no longer referred to the failure of the moving
party to receive “such notice” — that is, the notice required by Civil
Rule 77(d) — but instead referred to the failure of the moving party to receive
“the notice.” And former
subdivision (a)(6)(B) no longer referred to the failure of the moving party to
receive notice from “the clerk or any party,” both of whom are explicitly
mentioned in Civil Rule 77(d). Rather,
former subdivision (a)(6)(B) referred to the failure of the moving party to
receive notice from “the district court or any party.”
The 1998 amendment meant,
then, that the type of notice that precluded a party from moving to reopen the
time to appeal was no longer limited to Civil Rule 77(d) notice. Under the 1998 amendment, some kind
of notice, in addition to Civil Rule 77(d) notice, precluded a party. But the text of the amended rule did not
make clear what kind of notice qualified.
This was an invitation for litigation, confusion, and possible circuit
splits.
To avoid such problems,
former subdivision (a)(6)(B) — new subdivision (a)(6)(A) — has been amended to
restore its pre-1998 simplicity. Under
new subdivision (a)(6)(A), if the court finds that the moving party was not
notified under Civil Rule 77(d) of the entry of the judgment or order that the
party seeks to appeal within 21 days after that judgment or order was entered,
then the court is authorized to reopen the time to appeal (if all of the other
requirements of subdivision (a)(6) are met).
Because Civil Rule 77(d) requires that notice of the entry of a judgment
or order be formally served under Civil Rule 5(b), any notice that is not so
served will not operate to preclude the reopening of the time to appeal under
new subdivision (a)(6)(A).
Subdivision (a)(6)(B).
Former subdivision (a)(6)(A) has been redesignated as subdivision
(a)(6)(B), and one important substantive change has been made.
New subdivision (a)(6)(B)
makes clear that only written notice of the entry of a judgment or order
will trigger the 7-day period for a party to move to reopen the time to appeal
that judgment or order. However, all
that is required is that a party receive or observe written notice of the entry
of the judgment or order, not that a party receive or observe a copy of the
judgment or order itself. Moreover,
nothing in new subdivision (a)(6)(B) requires that the written notice be
received from any particular source, and nothing requires that the written
notice be served pursuant to Civil Rules 77(d) or 5(b). “Any written notice of entry received by the
potential appellant or his counsel (or conceivably by some other person),
regardless of how or by whom sent, is sufficient to open [new] subpart [(B)’s]
seven‑day window.” Wilkens v.
Johnson, 238 F.3d 328, 332 (5th Cir. 2001) (footnotes omitted). Thus, a person who checks the civil docket
of a district court action and learns that a judgment or order has been entered
has observed written notice of that entry.
And a person who learns of the entry of a judgment or order by fax, by
e-mail, or by viewing a website has also received or observed written notice. However, an oral communication is not written
notice for purposes of new subdivision (a)(6)(B), no matter how specific,
reliable, or unequivocal.
Courts had difficulty
agreeing upon what type of “notice” was sufficient to trigger the 7-day period
to move to reopen the time to appeal under former subdivision (a)(6)(A). The majority of circuits held that only
written notice was sufficient, although nothing in the text of the rule
suggested such a limitation. See,
e.g., Bass v. United States Dep't of Agric., 211 F.3d 959, 963 (5th
Cir. 2000). By contrast, the Ninth
Circuit held that while former subdivision (a)(6)(A) did not require written
notice, “the quality of the communication [had to] rise to the functional
equivalent of written notice.” Nguyen
v. Southwest Leasing & Rental, Inc., 282 F.3d 1061, 1066 (9th Cir.
2002). It appeared that oral
communications could be deemed “the functional equivalent of written notice” if
they were sufficiently “specific, reliable, and unequivocal.” Id.
Other circuits suggested in dicta that former subdivision (a)(6)(A)
required only “actual notice,” which, presumably, could have included oral
notice that was not “the functional equivalent of written notice.” See, e.g., Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 464 (8th
Cir. 2000). And still other circuits
read into former subdivision (a)(6)(A) restrictions that appeared only in
former subdivision (a)(6)(B) (such as the requirement that notice be received
“from the district court or any party,” see Benavides v. Bureau of
Prisons, 79 F.3d 1211, 1214 (D.C. Cir. 1996)) or that appeared in neither
former subdivision (a)(6)(A) nor former subdivision (a)(6)(B) (such as the
requirement that notice be served in the manner prescribed by Civil Rule 5, see
Ryan v. First Unum Life Ins. Co., 174 F.3d 302, 305 (2d Cir. 1999)).
New subdivision (a)(6)(B)
resolves this circuit split by making clear that only receipt or observation of
written notice of the entry of a judgment or order will trigger the
7-day period for a party to move to reopen the time to appeal.
_____________________________________________________
B. Washington’s Birthday
Package: Rules 26(a)(4) and 45(a)(2)
During the
1998 restyling of the Appellate Rules, the phrase “Washington’s Birthday” was
replaced with “Presidents’ Day.” The
Advisory Committee has concluded that this was a mistake. A federal statute — 5 U.S.C. § 6103(a)
— officially designates the third Monday in February as “Washington’s
Birthday,” and the other rules of practice and procedure — including the newly
restyled Criminal Rules — use “Washington’s Birthday.”
The
Advisory Committee proposes to amend Rules 26(a)(4) and 45(a)(2) to replace
“Presidents’ Day” with “Washington’s Birthday.” The Advisory Committee unanimously approved these amendments at
our April 2002 meeting.
_____________________________________________________
Rule 26.
Computing and Extending Time
(a) Computing Time. The
following rules apply in computing any period of time specified in these rules
or in any local rule, court order, or applicable statute:
*
* * * *
(4) As used in this rule,
“legal holiday” means New Year’s Day, Martin Luther King, Jr.’s Birthday, Presidents’
Day Washington’s Birthday, Memorial Day, Independence Day, Labor
Day, Columbus Day, Veterans’ Day, Thanksgiving Day, Christmas Day, and any
other day declared a holiday by the President, Congress, or the state in which
is located either the district court that rendered the challenged judgment or
order, or the circuit clerk’s principal office.
*
* * * *
Committee
Note
Subdivision (a)(4). Rule
26(a)(4) has been amended to refer to the third Monday in February as
“Washington’s Birthday.” A federal
statute officially designates the holiday as “Washington’s Birthday,”
reflecting the desire of Congress specially to honor the first president of the
United States. See 5 U.S.C.
§ 6103(a). During the 1998
restyling of the Federal Rules of Appellate Procedure, references to
“Washington’s Birthday” were mistakenly changed to “Presidents’ Day.” The amendment corrects that error.
_____________________________________________________
Rule 45.
Clerk’s Duties
(a) General Provisions.
*
* * * *
(2) When Court Is Open. The court of appeals is always open for
filing any paper, issuing and returning process, making a motion, and entering
an order. The clerk’s office with the
clerk or a deputy in attendance must be open during business hours on all days
except Saturdays, Sundays, and legal holidays.
A court may provide by local rule or by order that the clerk’s office be
open for specified hours on Saturdays or on legal holidays other than New
Year’s Day, Martin Luther King, Jr.’s Birthday, Presidents’ Day Washington’s
Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day,
Veterans’ Day, Thanksgiving Day, and Christmas Day.
*
* * * *
Committee
Note
Subdivision (a)(2). Rule
45(a)(2) has been amended to refer to the third Monday in February as
“Washington’s Birthday.” A federal
statute officially designates the holiday as “Washington’s Birthday,”
reflecting the desire of Congress specially to honor the first president of the
United States. See 5 U.S.C.
§ 6103(a). During the 1998
restyling of the Federal Rules of Appellate Procedure, references to
“Washington’s Birthday” were mistakenly changed to “Presidents’ Day.” The amendment corrects that error.
_____________________________________________________
C. New Rule 27(d)(1)(E)
The Advisory Committee
proposes to add a new subdivision (E) to Rule 27(d)(1) to make it clear that
the typeface requirements of Rule 32(a)(5) and the type-style requirements of
Rule 32(a)(6) apply to motion papers.
Applying these restrictions to motion papers is necessary to prevent
abuses — such as litigants using very small typeface to cram as many words as
possible into the pages that they are permitted.
The Advisory Committee
unanimously approved this amendment at our November 2002 meeting.
_____________________________________________________
Rule 27.
Motions
*
* * * *
(d) Form of Papers; Page
Limits; and Number of Copies.
(1) Format.
(A) Reproduction. A motion, response, or reply may be reproduced by any process that yields a
clear black image on light paper. The
paper must be opaque and unglazed. Only
one side of the paper may be used.
(B) Cover. A cover is not required, but there must be a
caption that includes the case number, the name of the court, the title of the
case, and a brief descriptive title indicating the purpose of the motion and
identifying the party or parties for whom it is filed. If a cover is used, it must be white.
(C) Binding. The document must be bound in any manner
that is secure, does not obscure the text, and permits the document to lie
reasonably flat when open.
(D) Paper size, line
spacing, and margins. The document
must be on 8½ by 11 inch paper. The
text must be double-spaced, but quotations more than two lines long may be
indented and single-spaced. Headings
and footnotes may be single-spaced.
Margins must be at least one inch on all four sides. Page numbers may be placed in the margins,
but no text may appear there.
(E) Typeface and type styles. The document must comply with the typeface
requirements of Rule 32(a)(5) and the type-style requirements of Rule 32(a)(6).
*
* * * *
Committee
Note
Subdivision (d)(1)(E). A
new subdivision (E) has been added to Rule 27(d)(1) to provide that a motion, a
response to a motion, and a reply to a response to a motion must comply with
the typeface requirements of Rule 32(a)(5) and the type-style requirements of
Rule 32(a)(6). The purpose of the
amendment is to promote uniformity in federal appellate practice and to prevent
the abuses that might occur if no restrictions were placed on the size of
typeface used in motion papers.
_____________________________________________________
D. Cross-Appeals Package: Rules 28(c) and
28(h), new Rule 28.1, and Rules 32(a)(7)(C) and 34(d)
The Appellate Rules say
very little about briefing in cases involving cross-appeals. This omission has been a continuing source
of irritation for judges and attorneys, and most courts have filled the
national vacuum by enacting local rules regarding such matters as the number
and length of briefs, the colors of the covers of briefs, and the deadlines for
serving and filing briefs. Not
surprisingly, there are many inconsistencies among these local rules.
The Advisory Committee
proposes to add a new Rule 28.1 that would collect in one place the few
existing provisions regarding briefing in cases involving cross-appeals and add
several new provisions to fill the gaps in the existing rules. Each of the new provisions reflects the
practices of a large majority of circuits.
The Advisory Committee
unanimously approved these amendments at our November 2002 meeting.
_____________________________________________________
Rule 28.
Briefs
*
* * * *
(c) Reply Brief. The
appellant may file a brief in reply to the appellee’s brief. An appellee who has cross-appealed may
file a brief in reply to the appellant’s response to the issues presented by
the cross-appeal. Unless the court
permits, no further briefs may be filed.
A reply brief must contain a table of contents, with page references,
and a table of authorities — cases (alphabetically arranged), statutes, and
other authorities — with references to the pages of the reply brief where
they are cited.
*
* * * *
(h) Briefs in a Case
Involving a Cross-Appeal. If a cross-appeal is filed,
the party who files a notice of appeal first is the appellant for the purposes
of this rule and Rules 30, 31, and 34.
If notices are filed on the same day, the plaintiff in the proceeding
below is the appellant. These
designations may be modified by agreement of the parties or by court
order. With respect to appellee’s cross-appeal
and response to appellant’s brief, appellee’s brief must conform to the
requirements of Rule 28(a)(1)–(11). But
an appellee who is satisfied with appellant’s statement need not include a
statement of the case or of the facts. [Reserved]
*
* * * *
Committee
Note
Subdivision (c).
Subdivision (c) has been amended to delete a sentence that authorized an
appellee who had cross-appealed to file a brief in reply to the appellant’s
response. All rules regarding briefing
in cases involving cross-appeals have been consolidated into new Rule 28.1.
Subdivision (h).
Subdivision (h) — regarding briefing in cases involving cross-appeals —
has been deleted. All rules regarding
such briefing have been consolidated into new Rule 28.1.
_____________________________________________________
Rule
28.1. Cross-Appeals
(a) Applicability. This
rule applies to a case in which a cross-appeal is filed. Rules 28(a)-(c), 31(a)(1), 32(a)(2), and
32(a)(7)(A)-(B) do not apply to such a case, except as otherwise provided in
this rule.
(b) Designation of Appellant. The
party who files a notice of appeal first is the appellant for the purposes of
this rule and Rules 30 and 34. If
notices are filed on the same day, the plaintiff in the proceeding below is the
appellant. These designations may be
modified by agreement of the parties or by court order.
(c) Briefs. In a
case involving a cross-appeal:
(1) Appellant’s Principal Brief. The appellant must file a principal brief in
the appeal. That brief must comply with
Rule 28(a).
(2) Appellee’s Principal and Response
Brief. The appellee must
file a principal brief in the cross-appeal and must, in the same brief, respond
to the principal brief in the appeal.
That appellee’s brief must comply with Rule 28(a), except that the brief
need not include a statement of the case or a statement of the facts unless the
appellee is dissatisfied with the appellant’s statement.
(3) Appellant’s Response and Reply
Brief. The appellant must
file a brief that responds to the principal brief in the cross-appeal and may,
in the same brief, reply to the response in the appeal. That brief must comply with Rule
28(a)(2)–(9) and (11), except that none of the following need appear unless the
appellant is dissatisfied with the appellee’s statement in the cross-appeal:
(A) the jurisdictional statement;
(B) the statement of the issues;
(C) the statement of the case;
(D) the statement of the facts; and
(E) the statement of the standard of
review.
(4) Appellee’s Reply Brief. The appellee may file a brief in reply to
the response in the cross-appeal. That
brief must comply with Rule 28(a)(2)–(3) and (11). That brief must also be limited to the issues presented by the
cross‑appeal.
(5) No Further Briefs. Unless the court permits, no further briefs
may be filed in a case involving a cross-appeal.
(d) Cover.
Except for filings by unrepresented parties, the cover of the
appellant’s principal brief must be blue; the appellee’s principal and response
brief, red; the appellant’s response and reply brief, yellow; and the
appellee’s reply brief, gray. The front
cover of a brief must contain the information required by Rule 32(a)(2).
(e) Length.
(1) Page Limitation. Unless it complies with Rule 28.1(e)(2) and
(3), the appellant’s principal brief must not exceed 30 pages; the appellee’s
principal and response brief, 35 pages; the appellant’s response and reply
brief, 30 pages; and the appellee’s reply brief, 15 pages.
(2) Type-Volume Limitation.
(A) The appellant’s principal brief or the
appellant’s response and reply brief is acceptable if:
(i) it contains no more than 14,000
words; or
(ii) it uses a monospaced face and
contains no more than 1,300 lines of text.
(B) The appellee’s principal and response
brief is acceptable if:
(i) it contains no more than 16,500
words; or
(ii) it uses a monospaced face and
contains no more than 1,500 lines of text.
(C) The appellee’s reply brief is
acceptable if it contains no more than half of the type volume specified in
Rule 28.1(e)(2)(A).
(3) Certificate of Compliance. A brief submitted under Rule 28(e)(2) must
comply with Rule 32(a)(7)(C).
(f) Time to Serve and File a Brief. The
appellant’s principal brief must be served and filed within 40 days after the
record is filed. The appellee’s
principal and response brief must be served and filed within 30 days after the
appellant’s principal brief is served.
The appellant’s response and reply brief must be served and filed within
30 days after the appellee’s principal and response brief is served. The appellee’s reply brief must be served
and filed within 14 days after the appellant’s response and reply brief is
served, but the appellee’s reply brief must be filed at least 3 days before
argument, unless the court, for good cause, allows a later filing.
Committee
Note
The Federal Rules of Appellate Procedure have
said very little about briefing in cases involving cross-appeals. This vacuum has frustrated judges,
attorneys, and parties who have sought guidance in the rules. More importantly, this vacuum has been
filled by conflicting local rules regarding such matters as the number and
length of briefs, the colors of the covers of briefs, and the deadlines for
serving and filing briefs. These local
rules have created a hardship for attorneys who practice in more than one
circuit.
New Rule 28.1 provides a comprehensive set of
rules governing briefing in cases involving cross-appeals. The few existing provisions regarding
briefing in such cases have been moved into new Rule 28.1, and several new
provisions have been added to fill the gaps in the existing rules. The new provisions reflect the practices of
the large majority of circuits and, to a significant extent, the new provisions
have been patterned after the requirements imposed by Rules 28, 31, and 32 on
briefs filed in cases that do not involve cross-appeals.
Subdivision (a).
Subdivision (a) makes clear that, in a case involving a cross-appeal,
briefing is governed by new Rule 28.1, and not by Rules 28(a), 28(b), 28(c),
31(a)(1), 32(a)(2), 32(a)(7)(A), and 32(a)(7)(B), except to the extent that
Rule 28.1 specifically incorporates those rules by reference.
Subdivision (b).
Subdivision (b) defines who is the “appellant” and who is the “appellee”
in a case involving a cross-appeal.
Subdivision (b) is taken directly from former Rule 28(h), except that
subdivision (b) refers to a party being designated as an appellant “for the
purposes of this rule and Rules 30 and 34,” whereas former Rule 28(h) also
referred to Rule 31. Because the matter
addressed by Rule 31(a)(1) — the time to serve and file briefs — is now
addressed directly in new Rule 28(f), the cross-reference to Rule 31 is no
longer necessary.
Subdivision (c). Subdivision
(c) provides for the filing of four briefs in a case involving a
cross-appeal. This reflects the
practice of every circuit except the Seventh.
See 7th Cir. R. 28(d)(1)(a).
The first brief is the “appellant’s principal
brief.” That brief — like the
appellant’s principal brief in a case that does not involve a cross-appeal —
must comply with Rule 28(a).
The second brief is the “appellee’s principal
and response brief.” Because this brief
serves as the appellee’s principal brief on the merits of the cross-appeal, as
well as the appellee’s response brief on the merits of the appeal, it must also
comply with Rule 28(a), with the limited exceptions noted in the text of the
rule.
The third brief is the “appellant’s response
and reply brief.” Like a response brief
in a case that does not involve a cross-appeal — that is, a response brief that
does not also serve as a principal brief on the merits of a cross-appeal — the
appellant’s response and reply brief must comply with Rule 28(a)(2)-(9) and
(11), with the exceptions noted in the text of the rule. See Rule 28(b). The one difference between the appellant’s
response and reply brief, on the one hand, and a response brief filed in a case
that does not involve a cross-appeal, on the other, is that the latter must
include a corporate disclosure statement.
See Rule 28(a)(1) and (b).
An appellant filing a response and reply brief in a case involving a
cross-appeal has already filed a corporate disclosure statement with its principal
brief on the merits of the appeal.
The fourth brief is the “appellee’s reply
brief.” Like a reply brief in a case
that does not involve a cross-appeal, it must comply with Rule 28(c), which
essentially restates the requirements of Rule 28(a)(2)–(3) and (11). (Rather than restating the requirements of
Rule 28(a)(2)-(3) and (11), as Rule 28(c) does, Rule 28.1(c)(4) includes a
direct cross-reference.) The appellee’s
reply brief must also be limited to the issues presented by the cross‑appeal.
Subdivision (d).
Subdivision (d) specifies the colors of the covers on briefs filed in a
case involving a cross-appeal. It is
patterned after Rule 32(a)(2), which does not specifically refer to
cross-appeals.
Subdivision (e).
Subdivision (e) sets forth limits on the length of the briefs filed in a
case involving a cross-appeal. It is
patterned after Rule 32(a)(7), which does not specifically refer to
cross-appeals. Subdivision (e) permits
the appellee’s principal and response brief
to be longer than a typical principal brief on the merits because this
brief serves not only as the principal brief on the merits of the cross-appeal,
but also as the response brief on the merits of the appeal. Likewise, subdivision (e) permits the
appellant’s response and reply brief to be longer than a typical reply brief
because this brief serves not only as the reply brief in the appeal, but also
as the response brief in the cross-appeal.
Subdivision (f).
Subdivision (f) provides deadlines for serving and filing briefs in a
cross-appeal. It is patterned after
Rule 31(a)(1), which does not specifically refer to cross-appeals.
_____________________________________________________
Rule 32.
Form of Briefs, Appendices, and Other Papers
(a) Form of a Brief.
*
* * * *
(7) Length.
*
* * * *
(C) Certificate of
Compliance.
(i) A brief submitted
under Rules 28.1(e)(2) or 32(a)(7)(B) must include a certificate by the
attorney, or an unrepresented party, that the brief complies with the
type-volume limitation. 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:
•
the number of
words in the brief; or
•
the number of
lines of monospaced type in the brief.
(ii) Form 6 in the Appendix
of Forms is a suggested form of a certificate of compliance. Use of Form 6 must be regarded as sufficient
to meet the requirements of Rules 28.1(e)(3) and 32(a)(7)(C)(i).
*
* * * *
Committee
Note
Subdivision (a)(7)(C). Rule
32(a)(7)(C) has been amended to add cross-references to new Rule 28.1, which
governs briefs filed in cases involving cross-appeals. Rule 28.1(e)(2) prescribes type-volume
limitations that apply to such briefs, and Rule 28.1(e)(3) requires parties to
certify compliance with those type-volume limitations under Rule 32(a)(7)(C).
_____________________________________________________
Rule 34.
Oral Argument
*
* * * *
(d) Cross-Appeals and
Separate Appeals. If there is a cross-appeal, Rule 28(h)
28.1(b) determines which party is the appellant and which is the
appellee for purposes of oral argument.
Unless the court directs otherwise, a cross-appeal or separate appeal
must be argued when the initial appeal is argued. Separate parties should avoid duplicative argument.
*
* * * *
Committee
Note
Subdivision (d). A
cross-reference in subdivision (d) has been changed to reflect the fact that,
as part of an effort to collect within one rule all provisions regarding
briefing in cases involving cross-appeals, former Rule 28(h) has been abrogated
and its contents moved to new Rule 28.1(b).
_____________________________________________________
E. New Rule 32.1
The Advisory Committee proposes to add a new
Rule 32.1 that would require courts to permit the citation of judicial
opinions, orders, judgments, or other written dispositions that have been
designated as “unpublished,” “non‑precedential,” or the like. New Rule 32.1 would also require parties who
cite “unpublished” or “non-precedential” opinions that are not available in a
publicly accessible electronic database (such as Westlaw) to provide copies of
those opinions to the court and to the other parties. The Advisory Committee makes this proposal for two reasons:
First, the local rules of the circuits differ
dramatically in their treatment of the citation of “unpublished” or
“non-precedential” opinions for their persuasive value. Some circuits freely permit such citation,
some circuits disfavor such citation but permit it in limited circumstances,
and some circuits do not permit such citation under any circumstances. These conflicting rules create a hardship
for practitioners, especially those who practice in more than one circuit.
Second, the Advisory Committee believes that
restrictions on the citation of “unpublished” or “non-precedential” opinions —
the violation of which can lead to sanctions or to formal charges of unethical
conduct — are wrong as a policy matter.
The Advisory Committee defends its position at length in the Committee
Note, so I will say no more about it here.
Needless to say, this is a controversial
matter. Many attorneys and bar
organizations are strongly opposed to no-citation rules; indeed, Dean Schiltz
tells me that no issue has generated more correspondence to the Advisory
Committee over the past six years.
Although many judges have also expressed their opposition to no-citation
rules — in fact, several circuits do not have such rules — other judges are
passionate in defending such rules. If
the Standing Committee approves proposed Rule 32.1 for publication, we will
undoubtedly receive a substantial number of comments.
I want to stress here — as I have stressed in
prior communications to the Standing Committee — that proposed Rule 32.1 is
extremely limited. It takes no position
on whether designating opinions as “unpublished” or “non-precedential” is
constitutional. It does not require any
court to issue an “unpublished” or “non-precedential” opinion, nor does it
forbid any court from doing so. It does
not dictate the circumstances under which a court may choose to designate an
opinion as “unpublished” or “non-precedential.” Most importantly, it says nothing whatsoever about the effect
that a court must give to one of its own “unpublished” or “non-precedential”
opinions or to the “unpublished” or “non-precedential” opinions of another
court. The one and only issue addressed
by proposed Rule 32.1 is the ability of parties to cite opinions
designated as “unpublished” or “non-precedential.”
The Advisory Committee approved proposed Rule
32.1 at our May 2003 meeting by vote of 7 to 1, with one abstention.
_____________________________________________________
Rule 32.1.
Citation of Judicial Dispositions
(a) Citation Permitted. No
prohibition or restriction may be imposed upon the citation of judicial
opinions, orders, judgments, or other written dispositions that have been
designated as “unpublished,” “not for publication,” “non-precedential,” “not
precedent,” or the like, unless that prohibition or restriction is generally
imposed upon the citation of all judicial opinions, orders, judgments, or other
written dispositions.
(b) Copies Required. A
party who cites a judicial opinion, order, judgment, or other written
disposition that is not available in a publicly accessible electronic database
must file and serve a copy of that opinion, order, judgment, or other written
disposition with the brief or other paper in which it is cited.
Committee
Note
Rule 32.1 is a new rule addressing the
citation of judicial opinions, orders, judgments, or other written dispositions
that have been designated as “unpublished,” “not for publication,”
“non-precedential,” “not precedent,” or the like. This Note will refer to these dispositions collectively as
“unpublished” opinions. This is a term
of art that, while not always literally true (as many “unpublished” opinions
are in fact published), is commonly understood to refer to the entire group of
judicial dispositions addressed by Rule 32.1.
The citation of “unpublished” opinions is an
important issue. The thirteen courts of
appeals have cumulatively issued tens of thousands of “unpublished” opinions,
and about 80% of the opinions issued by the courts of appeals in recent years
have been designated as “unpublished.”
Administrative Office of the United States Courts, Judicial Business of
the United States Courts 2001, tbl. S-3 (2001). Although the courts of appeals differ somewhat in their treatment
of “unpublished” opinions, most agree that an “unpublished” opinion of a
circuit does not bind panels of that circuit or district courts within that
circuit (or any other court).
State courts have also issued countless
“unpublished” opinions in recent years.
And, again, although state courts differ in their treatment of
“unpublished” opinions, they generally agree that “unpublished” opinions do not
establish precedent that is binding upon the courts of the state (or any other
court).
Rule 32.1 is extremely limited. It takes no position on whether refusing to
treat an “unpublished” opinion as binding precedent is constitutional. See Symbol Tech., Inc. v. Lemelson Med.,
Educ. & Research Found., 277 F.3d 1361, 1366-68 (Fed. Cir. 2002); Hart
v. Massanari, 266 F.3d 1155, 1159-80 (9th Cir. 2001); Williams v. Dallas
Area Rapid Transit, 256 F.3d 260 (5th Cir. 2001) (Smith, J., dissenting
from denial of reh'g en banc); Anastasoff v. United States, 223 F.3d
898, 899-905, vacated as moot on reh’g en banc 235 F.3d 1054 (8th Cir.
2000). It does not require any court to
issue an “unpublished” opinion or forbid any court from doing so. It does not dictate the circumstances under
which a court may choose to designate an opinion as “unpublished” or specify
the procedure that a court must follow in making that decision. It says nothing about what effect a court
must give to one of its “unpublished” opinions or to the “unpublished” opinions
of another court. The one and only
issue addressed by Rule 32.1 is the citation of judicial dispositions
that have been designated as “unpublished” or “non-precedential” by a
federal or state court — whether or not those dispositions have been published
in some way or are precedential in some sense.
Subdivision (a).
Every court of appeals has allowed “unpublished” opinions to be cited in
some circumstances, such as to support a claim of claim preclusion, issue
preclusion, law of the case, double jeopardy, sanctionable conduct, abuse of
the writ, notice, or entitlement to attorney’s fees. Not all of the circuits have specifically mentioned all of these
claims in their local rules, but it does not appear that any circuit has ever
sanctioned an attorney for citing an “unpublished” opinion under these
circumstances.
By contrast, the circuits have differed
dramatically with respect to the restrictions that they have placed upon the
citation of “unpublished” opinions for their persuasive value. An opinion cited for its “persuasive value”
is cited not because it is binding on the court or because it is relevant under
a doctrine such as claim preclusion.
Rather, it is cited because the party hopes that it will influence the
court as, say, a law review article might — that is, simply by virtue of the
thoroughness of its research or the persuasiveness of its reasoning.
Some circuits have freely permitted the
citation of “unpublished” opinions for their persuasive value, some circuits
have disfavored such citation but permitted it in limited circumstances, and
some circuits have not permitted such citation under any circumstances. These conflicting rules have created a
hardship for practitioners, especially those who practice in more than one
circuit. Rule 32.1(a) is intended to
replace these conflicting practices with one uniform rule.
Under Rule 32.1(a), a court of appeals may
not prohibit a party from citing an “unpublished” opinion for its persuasive
value or for any other reason. In
addition, under Rule 32.1(a), a court of appeals may not place any restriction
upon the citation of “unpublished” opinions, unless that restriction is generally
imposed upon the citation of all judicial opinions — “published” and
“unpublished.”
It is difficult to justify prohibiting or
restricting the citation of “unpublished” opinions. Parties have long been able to cite in the courts of appeals an
infinite variety of sources solely for their persuasive value. These sources include the opinions of
federal district courts, state courts, and foreign jurisdictions, law review
articles, treatises, newspaper columns, Shakespearian sonnets, and advertising jingles. No court of appeals places any restriction
on the citation of these sources (other than restrictions that apply generally
to all citations, such as requirements relating to type styles). Parties are free to cite them for their
persuasive value, and judges are free to decide whether or not to be persuaded.
There is no compelling reason to treat
“unpublished” opinions differently. It
is difficult to justify a system under which the “unpublished” opinions of the
D.C. Circuit can be cited to the Seventh Circuit, but the “unpublished”
opinions of the Seventh Circuit cannot be cited to the Seventh Circuit. D.C. Cir. R. 28(c)(1)(B); 7th Cir. R.
53(b)(2)(iv) & (e). And, more
broadly, it is difficult to justify a system that permits parties to bring to a
court’s attention virtually every written or spoken word in existence except
those contained in the court’s own “unpublished” opinions.
Some have argued that permitting citation of
“unpublished” opinions would lead judges to spend more time on them, defeating
their purpose. This argument would have
great force if Rule 32.1(a) required a court of appeals to treat all of its
opinions as precedent that binds all panels of the court and all district
courts within the circuit. The process
of drafting a precedential opinion is much more time consuming than the process
of drafting an opinion that serves only to provide the parties with a basic
explanation of the reasons for the decision.
As noted, however, Rule 32.1(a) does not require a court of appeals to
treat its “unpublished” opinions as binding precedent. Nor does the rule require a court of appeals
to increase the length or formality of any “unpublished” opinions that it
issues.
It should also be noted, in response to the
concern that permitting citation of “unpublished” opinions will increase the
time that judges devote to writing them, that “unpublished” opinions are
already widely available to the public, and soon every court of appeals will be
required by law to post all of its decisions — including “unpublished”
decisions — on its website. See
E-Government Act of 2002, Pub. L. 107-347, § 205(a)(5), 116 Stat. 2899,
2913. Moreover, “unpublished” opinions
are often discussed in the media and not infrequently reviewed by the United
States Supreme Court. See, e.g.,
Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826
(2002) (reversing “unpublished” decision of Federal Circuit); Swierkiewicz
v. Sorema N.A., 534 U.S. 506 (2002) (reversing “unpublished” decision of Second
Circuit). If this widespread scrutiny
does not deprive courts of the benefits of “unpublished” opinions, it is
difficult to believe that permitting a court’s “unpublished” opinions to be
cited to the court itself will have that effect. The majority of the courts of appeals already permit their own
“unpublished” opinions to be cited for their persuasive value, and “the sky has
not fallen in those circuits.” Stephen
R. Barnett, From Anastasoff to Hart to West’s Federal
Appendix: The Ground Shifts Under No-Citation Rules, 4 J. App. Prac. & Process 1, 20
(2002).
In the past, some have also argued that,
without no-citation rules, large institutional litigants (such as the
Department of Justice) who can afford to collect and organize “unpublished”
opinions would have an unfair advantage.
Whatever force this argument may once have had, that force has been
greatly diminished by the widespread availability of “unpublished” opinions on
Westlaw and Lexis, on free Internet sites, and now in the Federal Appendix. In almost all of the circuits, “unpublished”
opinions are as readily available as “published” opinions. Barring citation to “unpublished” opinions
is no longer necessary to level the playing field.
Unlike many of the local rules of the courts
of appeals, Rule 32.1(a) does not provide that citing “unpublished” opinions is
“disfavored” or limited to particular circumstances (such as when no
“published” opinion adequately addresses an issue). Again, it is difficult to understand why “unpublished” opinions
should be subject to restrictions that do not apply to other sources. Moreover, given that citing an “unpublished”
opinion is usually tantamount to admitting that no “published” opinion supports
a contention, parties already have an incentive not to cite “unpublished”
opinions. Not surprisingly, those
courts that have liberally permitted the citation of “unpublished” opinions
have not been overwhelmed with such citations.
Finally, restricting the citation of “unpublished” opinions may spawn
satellite litigation over whether a party’s citation of a particular
“unpublished” opinion was appropriate.
This satellite litigation would serve little purpose, other than further
to burden the already overburdened courts of appeals.
Rule 32.1(a) will further the administration
of justice by expanding the sources of insight and information that can be
brought to the attention of judges and making the entire process more
transparent to attorneys, parties, and the general public. At the same time, Rule 32.1(a) will relieve
attorneys of several hardships.
Attorneys will no longer have to pick through the conflicting
no-citation rules of the circuits in which they practice, nor worry about being
sanctioned or accused of unethical conduct for improperly citing an
“unpublished” opinion. See Hart,
266 F.3d at 1159 (attorney ordered to show cause why he should not be
disciplined for violating no-citation rule); ABA Comm. on Ethics and Prof’l
Responsibility, Formal Op. 94-386R (1995) (“It is ethically improper for a
lawyer to cite to a court an ‘unpublished’ opinion of that court or of another
court where the forum court has a specific rule prohibiting any reference in
briefs to [‘unpublished’ opinions].”).
In addition, attorneys will no longer be barred from bringing to the
court’s attention information that might help their client’s cause; whether or
not this violates the First Amendment (as some have argued), it is a
regrettable position in which to put attorneys. Finally, game-playing should be reduced, as attorneys who in the
past might have been tempted to find a way to hint to a court that it has
addressed an issue in an “unpublished” opinion can now directly bring that
“unpublished” opinion to the court’s attention, and the court can do whatever
it wishes with that opinion.
Subdivision (b).
Under Rule 32.1(b), a party who cites an “unpublished” opinion must
provide a copy of that opinion to the court and to the other parties, unless
the “unpublished” opinion is available in a publicly accessible electronic
database — such as in Westlaw or on a court’s website. A party who is required under Rule 32.1(b)
to provide a copy of an “unpublished” opinion must file and serve the copy with
the brief or other paper in which the opinion is cited.
It should be noted that, under Rule 32.1(a),
a court of appeals may not require parties to file or serve copies of all
of the “unpublished” opinions cited in their briefs or other papers (unless the
court generally requires parties to file or serve copies of all of the
judicial opinions that they cite).
“Unpublished” opinions are widely available on free websites (such as
those maintained by federal and state courts), on commercial websites (such as
those maintained by Westlaw and Lexis), and even in published compilations
(such as the Federal Appendix). Given
the widespread availability of “unpublished” opinions, parties should be
required to file and serve copies of such opinions only in the circumstances
described in Rule 32.1(b).
_____________________________________________________
F. Rule
35(a)
Two national standards — 28 U.S.C.
§ 46(c) and Rule 35(a) — provide that a hearing or rehearing en banc may
be ordered by “a majority of the circuit judges who are in regular active
service.” Although these standards
apply to all of the courts of appeals, the circuits follow three very different
approaches when one or more active judges are disqualified. Those approaches are the “absolute majority”
approach (disqualified judges count in the base in considering whether a
“majority” of judges have voted for hearing or rehearing en banc), the “case
majority” approach (disqualified judges do not count in the base), and the
“qualified case majority” approach (disqualified judges do not count in the base,
but a majority of all judges — disqualified or not — must be eligible to
participate in the case).
The Advisory Committee unanimously believes
that Rule 35(a) should be amended so that all circuits treat disqualified
judges in the same manner under 28 U.S.C. § 46(c) and Rule 35(a). The Advisory Committee also unanimously
believes that either the absolute majority approach or the case majority
approach can be defended as a reasonable interpretation of the statute and the
rule. The Advisory Committee was
divided 5-3 (with one abstention) on whether Rule 35(a) should be amended to
impose the absolute majority approach or the case majority approach. The majority of the Advisory Committee
prefer the case majority approach (for the reasons given in the Committee
Note), but even those who favor the absolute majority approach believe that
amending Rule 35(a) to adopt the case majority approach is preferable to not
amending Rule 35(a) at all — that is, to permitting the circuits to continue to
follow three very different approaches.
The Advisory Committee unanimously approved
this amendment at our May 2003 meeting.
_____________________________________________________
Rule 35.
En Banc Determination
(a) When Hearing or
Rehearing En Banc May Be Ordered. A majority of the circuit
judges who are in regular active service and who are not disqualified
may order that an appeal or other proceeding be heard or reheard by the court
of appeals en banc. An en banc hearing
or rehearing is not favored and ordinarily will not be ordered unless:
(1) en banc consideration
is necessary to secure or maintain uniformity of the court’s decisions; or
(2) the proceeding involves
a question of exceptional importance.
*
* * * *
Committee
Note
Subdivision (a). Two
national standards — 28 U.S.C. § 46(c) and Rule 35(a) — provide that a
hearing or rehearing en banc may be ordered by “a majority of the circuit
judges who are in regular active service.”
Although these standards apply to all of the courts of appeals, the
circuits are deeply divided over the interpretation of this language when one
or more active judges are disqualified.
The Supreme Court has never addressed this
issue. In Shenker v. Baltimore &
Ohio R.R. Co., 374 U.S. 1 (1963), the Court rejected a petitioner’s claim
that his rights under § 46(c) had been violated when the Third Circuit
refused to rehear his case en banc. The
Third Circuit had eight active judges at the time; four voted in favor of rehearing
the case, two against, and two abstained.
No judge was disqualified. The
Supreme Court ruled against the petitioner, holding, in essence, that § 46(c)
did not provide a cause of action, but instead simply gave litigants “the right
to know the administrative machinery that will be followed and the right to
suggest that the en banc procedure be set in motion in his case.” Id. at 5. Shenker did stress that a court of appeals has broad
discretion in establishing internal procedures to handle requests for
rehearings — or, as Shenker put it, “‘to devise its own administrative
machinery to provide the means whereby a majority may order such a
hearing.’” Id. (quoting Western
Pac. R.R. Corp. v. Western Pacific R.R. Co., 345 U.S. 247, 250 (1953)
(emphasis added)). But Shenker
did not address what is meant by “a majority” in §46(c) (or Rule 35(a), which
did not yet exist) — and Shenker certainly did not suggest that the
phrase should have different meanings in different circuits.
In interpreting that phrase, a majority of
the courts of appeals follow the “absolute majority” approach. Marie Leary, Defining the “Majority” Vote
Requirement in Federal Rule of Appellate Procedure 35(a) for Rehearings En Banc
in the United States Courts of Appeals 8 tbl.1 (Federal Judicial Center
2002). Under this approach,
disqualified judges are counted in the base in calculating whether a majority
of judges have voted to hear a case en banc.
Thus, in a circuit with 12 active judges, 7 must vote to hear a
case en banc. If 5 of the 12 active
judges are disqualified, all 7 non-disqualified judges must vote to hear the
case en banc. The votes of 6 of the 7
non-disqualified judges are not enough, as 6 is not a majority of 12.
A substantial minority of the courts of
appeals follow the “case majority” approach.
Id. Under this approach,
disqualified judges are not counted in the base in calculating whether a
majority of judges have voted to hear a case en banc. Thus, in a case in which 5 of a circuit’s 12 active judges are
disqualified, only 4 judges (a majority of the 7 non-disqualified judges) must
vote to hear a case en banc. (The Third
Circuit alone qualifies the case majority approach by providing that a case
cannot be heard en banc unless a majority of all active judges — disqualified
and non-disqualified — are eligible to participate in the case.)
Rule 35(a) has been amended to adopt the case
majority approach as a uniform national interpretation of the phrase “a
majority of the circuit judges . . . who are in regular active
service” in § 46(c). The federal
rules of practice and procedure exist to “maintain consistency,” which Congress
has equated with “promot[ing] the interest of justice.” 28 U.S.C. § 2073(b). The courts of appeals should not follow two
inconsistent approaches in deciding whether sufficient votes exist to hear a
case en banc, especially when there is a governing statute and governing rule
that apply to all circuits and that use identical terms, and especially when
there is nothing about the local conditions of each circuit that justifies
conflicting approaches.
Both the absolute majority approach and the
case majority approach are reasonable interpretations of § 46(c), but the
absolute majority approach has at least two major disadvantages. First, under the absolute majority approach,
a disqualified judge is, as a practical matter, counted as voting against
hearing a case en banc. To the extent
possible, the disqualification of a judge should not result in the equivalent
of a vote for or against hearing a case en banc. Second, the absolute majority approach can leave the en banc
court helpless to overturn a panel decision with which almost all of the
circuit’s active judges disagree. For
example, in a case in which 5 of a circuit’s 12 active judges are disqualified,
the case cannot be heard en banc even if 6 of the 7 non-disqualified judges
strongly disagree with the panel opinion.
This permits one active judge — perhaps sitting on a panel with a
visiting judge — effectively to control circuit precedent, even over the
objection of all of his or her colleagues.
See Gulf Power Co. v. FCC, 226 F.3d 1220, 1222-23 (11th Cir.
2000) (Carnes, J., concerning the denial of reh’g en banc), rev’d sub nom.
National Cable & Telecomm. Ass’n, Inc. v. Gulf Power Co., 534 U.S. 327
(2002). For these reasons, Rule 35(a)
has been amended to adopt the case majority approach.
_____________________________________________________
III. Information Items
We have no information
items to report.