Proposed Amendments to the Federal Rules of Appellate Procedure

The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has proposed amendments to various sets of federal procedural rules.  The entire set of proposals can be viewed here.  Of particular interest to appellate practitioners are the proposed amendments to the Federal Rules of Appellate Procedure.

Those proposed amendments fall into five general categories.  First, there is a proposed amendment to Rule 4(a)(4) that would make clear that post-judgment motions under Federal Rules of Civil Procedure 50, 52, and 59, which those rules state are governed by non-extendable deadlines, are untimely if filed after those deadlines, even if a district judge has mistakenly granted an extension of time to file such motions.  The Circuits are currently split on whether motions filed in that particular circumstance are untimely.  The proposed rule amendment would adopt the position of the majority of Circuits (including the Third Circuit, in Lizardo v. United States, 619 F.3d 273, 278-80 (3d Cir. 2010)).

Second, a number of appellate rules, and an appellate form, would be amended to reduce the word limit for briefs prodcued by a computer.  For example, currently, the word limit under Rule 32 for a main brief is 14,000 words.  Under the proposed amendment, the word limit would drop to 12,500 words, but only for briefs produced by a computer.  Briefs prepared by a typewriter or in handwriting, which in general are fewer and fewer, would continue to be governed by the existing page limits.  The backdrop for this change was the previous assumption that a brief averages 280 words per page, so that a 50-page brief would require 14,000 words, when experience has shown that briefs in fact average roughly 250 words per page, so that a 50-page brief would include only 12,500 words. 

Third, Rule 29 would be amended to provide explicitly for default rules applicable to the filing of amicus curiae briefs in connection with petitions for rehearing.  Currently, there are no such rules, and attorneys have no firm way to know what the rules are in any given Circuit.

Fourth, Rule 26(c) would be amended to make the “three day rule,” which adds three days to given deadlines that are measured from the date of service of a paper, inapplicable to briefs served electronically.  Currently, the three day rule applies not only to briefs served by mail or in various other ways, but also to briefs served electronically, even though electronic service is instantaneous in all instances.  Now that electronic filing is well-established and reliable, the proposed amendment would remove the three day rule as to briefs filed electronically since the three day addition is unnecessary.

The final category of proposed amendments deals with filings by incarcerated prisoners.  Those who are interested in the details should review the link.

Persons interested in commenting on the proposed rule amendments are invited to do so by the Committee.  The deadline for written comments is February 17, 2015.