Local Rules Conform to Federal Appellate Rule Amendments
Benjamin G. ShatzDaily JournalJanuary 3, 2003
This article was originally published in the January 3, 2003 issue of the Los Angeles Daily Journal.
More than a dozen amendments to the Federal Rules of Appellate Procedure took effect on Dec. 1, 2002. To integrate these changes into local practice, many of the Circuit Courts of Appeals promulgated amendments to their local rules that became effective the same day (4th, 5th and D.C. Circuits) or shortly thereafter (amendments effective Jan. 1, 2003 in the 10th and 11th Circuits).
Of particular importance to West Coast practitioners are the amendments to the 9th U.S. Circuit Court of Appeals' local rules, which became effective Dec. 1, 2002. This article highlights several of the more important changes that practitioners handling federal civil appeals immediately should incorporate into their practices.
This created an odd situation, because if the court never entered such judgment or order - which happens surprisingly often - the notice-of-appeal period never would begin to run. See In re Kilgus, 811 F.2d 1112 (7th Cir. 1987) ("A party safely may defer the appeal until Judgment Day if that is how long it takes to enter the document."); Cf. Fiore v. Wash. County Comm. Mental Health Ctr., 960 F.2d 229 (1st Cir. 1992) (en banc) (filling this gap with three-month waiver rule).
These rules now have been amended to address this problem. Now the notice-of-appeal period begins to run from entry of a judgment or appealable order that is contained in a separate document or 150 days after entry of the judgment or order, whichever occurs first. Similarly making inroads against requiring a separate document, under the amended rules, an order that disposes of a post-judgment motion no longer needs to be set forth in a separate document. The order now is deemed entered when entered on the civil docket sheet under Federal Rule of Civil Procedure 79(a).
To remedy this inconsistency, Rule 26(a) was amended to conform with the civil calendaring rules. As a result, various other appellate deadlines that otherwise would be enlarged by this amendment have been shortened accordingly. For example, under former Federal Rule of Appellate Procedure 27(a)(3)(A), responses to appellate motions were due 10 days after service. Under the new counting formula, this 10-day period otherwise would expand to at least 14 days.
To compensate for the extra time created by the new computation rule, amended Rule 27(a)(3)(A) reduces the period for filing responses to motions from 10 to eight days. See also amended Rule 27(a)(4) (reducing from seven to five days the time for replying to a response to a motion).
The 9th Circuit's local rules contain many periods that will be lengthened by the new calendaring rule. See, for example, 9th Circuit Rules 3-3, 10-3 (transcript designation time limits); 31-2.2(b) (seven-day advance filing period for extension of time requests). These are only a few examples. Prudent practitioners will ensure timely filings by checking and double-checking all calendaring against the new appellate and new local rules.
To avoid this lengthening effect and preserve deliberately tight time frames, the court may convert these deadlines to hard "calendar days," exempting them from the new counting method.
To alert the court to "significant authorities" that come to a litigant's attention during this period (or even between oral argument and disposition), Federal Rule of Appellate Procedure 28(j) allows the filing of a letter setting forth new citations.
Former Rule 28(j) severely limited the scope of such letters by precluding "argument" in supplemental authority letters. Thus, such letters typically were short and, in some advocates' view, ineffective missives saying little more than, "Appellants wish to draw the court's attention to the new opinion of Smith v. Jones, which supports arguments made at page X in Appellants' Opening Brief."
The good news for advocates is that amended Rule 28(j) removes the prohibition against "argument." Take heed, however, that the amended rule will not open the door to extensive letter-briefs, because although Rule 28(j) now permits argument, it restricts the body of such letters to 350 words (about the length of the first three paragraphs of this article).
This otherwise minor change prompts a change in 9th Circuit practice, which previously had designated tan covers for the Excerpts of Record. Record excerpts in the 9th Circuit now must have white covers. 9th Circuit Rule 30-1.5.
Similarly, amended Federal Rules of Appellate Procedure 36(b) and 45(c) now allow court clerks to provide electronic notification to parties who have consented to such notification.
In the 9th Circuit, electronic service will be allowed only when the parties sign the court's "Consent To Electronic Service" form, which appears in the appendix to the local rules and on the court's Web site (www.ca9.uscourts.gov) as Form 9. 9th Circuit Rule 24-3.3.
Moreover, a copy of the signed consent form must accompany all filings electronically served. The 9th Circuit rule also explains that consent may be revoked by letter served on opposing counsel and filed with the court and that a substitution of counsel automatically revokes consent.
The new and amended Federal Rules of Appellate Procedure and local rules now require added vigilance by counsel to ensure that filings are properly formatted and timely filed. Practitioners immediately should incorporate these new rules into their appellate practice to avoid potentially embarrassing mistakes or, even far worse, negative consequences to their clients' federal appeals.
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