2012-1187. U.S. Court of Appeals for the Armed Forces Proposed Rules Changes

ACTION:

Notice of Proposed Changes to the Rules of Practice and Procedure of the United States Court of Appeals for the Armed Forces.

SUMMARY:

This notice announces the following proposed changes to Rules 13A, 19(b), and 27(a)(4) of the Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces.

DATES:

Comments on the proposed change must be received within 30 days of the date of this notice.

ADDRESSES:

You may submit comments, identified by docket number and title by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov.
• Mail: Federal Docket Management System Office, 4800 Mark Center Drive East Tower, 2nd floor, Suite 02G09, Alexandria, VA 22350-3100.

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 http://regulations.gov as they are received without change, including personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT:

William A. DeCicco, Clerk of the Court, telephone [phone].

Dated: January 18, 2012.

Aaron Siegel,

Alternate OSD Federal Liaison Officer, Department of Defense.

Rule 13A

The proposed change to Rule 13A would add a new subparagraph (h) as follows:

(h) Time Limitation. An amicus curiae brief submitted under this Rule is not subject to the time limitation in Rule 26(b), but such brief shall be filed no less than 14 days before the scheduled date for 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).

Comment: The proposed change to Rule 13A would provide that a brief submitted under the Student Practice Rule would not fall under the normal deadline for filing amicus curiae briefs provided in Rule 26(b) (requiring filing within 10 days of the filing of the brief of the party supported), but rather would be due for filing no less than 14 days before the scheduled date for oral argument. The proposal is intended to eliminate the problem posed in Project Outreach cases that are often selected and/or calendared well beyond the date for filing amicus curiae briefs. The amended rule will allow these briefs to be timely filed.

The proposal would not apply only to Project Outreach cases. Rather, as a general matter, law school clinical programs do not operate continuously through the year and may only become aware of cases where they with to file an amicus curiae brief well after the brief can be timely filed. This rule will better allow these programs to file briefs with the Court and, thereby, the rules will facilitate this vital part of law school training for appellate advocates.

The proposed rule also gives the Court and the parties sufficient time to react to the student brief by requiring that it be filed no less than 14 days before oral argument and by allowing the parties the opportunity to respond within 7 days of the filing of the amicus curiae brief.

Rule 19(b)

The first sentences of Rule 19(b)(1), (2), and (3) currently read:

(b) Certificate for review/brief/answer/reply.

(1) Article 62, UCMJ, cases. In cases involving a decision by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 U.S.C. 862, a certificate for review, together with a supporting brief in accordance with Rule 24 on behalf of the appellant, shall be filed with the Court by the Judge Advocate General no later than 30 days after the date of the decision of the Court of Criminal Appeals.

(2) Extraordinary relief cases. In cases involving a decision by a Court of Criminal Appeals on application for extraordinary relief filed therein, a certificate for review, together with a supporting brief in accordance with Rule 24 on behalf of the appellant, shall be filed with the Court by the Judge Advocate General no later than 30 days after the date of the decision of the Court of Criminal Appeals.

(3) Other cases. In all other cases involving a decision by a Court of Criminal Appeals, a certificate for review filed by the Judge Advocate General shall be filed either (a) no later than 30 days after the date of the decision of the Court of Criminal Appeals, or (b) no later than 30 days after a petition for grant of review is granted.

The proposed changes to the first sentences of Rule 19(b)(1), (2) and (3) would read:

(1) Article 62, UCMJ, cases. In cases involving a decision by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 U.S.C. 862, a certificate for review, together with a supporting brief in accordance with Rule 24 on behalf of the appellant, shall be filed with the Court by the Judge Advocate General no later than 60 days after the date of the decision of the Court of Criminal Appeals.

(2) Extraordinary relief cases. In cases involving a decision by a Court of Criminal Appeals on application for extraordinary relief filed therein, a certificate for review, together with a supporting brief in accordance with Rule 24 on behalf of the appellant, shall be filed with the Court by the Judge Advocate General no later than 60 days after the date of the decision of the Court of Criminal Appeals.

(3) Other cases. In all other cases involving a decision by a Court of Criminal Appeals, a certificate for review filed by the Judge Advocate General shall be filed either (a) no later than 60 days after the date of the decision of the Court of Criminal Appeals, or (b) no later than 30 days after a petition for grant of review is granted.

Comment: Rule 19(b) currently allows 30 days for the filing of certificates for review by the Judge Advocate General, although a service member is given 60 days to file a petition for grant of review. Extension requests are filed in nearly all of the cases in which a certificate is to be filed, and the Rules Advisory Committee has determined that the 30 days allowed by this rule is insufficient time to obtain the necessary approvals and to file the certificate.

This change to 60 days will not apply in those cases where the Court grants a petition for grant of review, and the government wishes to request the Judge Advocate General to file a certificate for review. In that event, the Judge Advocate General will continue to have 30 days from the date the petition is granted to file the certificate for review. The 30-day deadline in these cases should not be extended because it will slow the processing of the case by the Court, and it will be less onerous because the case is already before the Court, making it easier for the services to determine whether they wish to bring additional issues before the Court in those cases.

Rule 27(a)(4)

The proposed change would delete Rule 27(a)(4) in its entirety:

(4) Electronic message petitions. The Court will not docket petitions for extraordinary relief submitted by means of an electronic message or by facsimile without prior approval of the Clerk.

Comment: This rule has become obsolete. It permits the filing of “electronic message” petitions for extraordinary relief with the permission of the Clerk. This provision contemplated the use of military message traffic or facsimile to file such petitions. However, with the use of the current electronic filing program, the filing of pleadings by military message or facsimile is no longer necessary.