Judge Ripple called the meeting to order at 8:40 a.m. in Rooms B and C of the Education
Center in the Federal Judiciary Building, in Washington, D.C.. In addition to Judge Ripple the
Committee Chair, the following Committee members were present: Judge Danny Boggs, Mr.
Donald Froeb, Judge Cynthia Hall, Judge James Logan, Chief Justice Arthur A. McGiverin, Mr.
Luther Munford, and Judge Stephen Williams. Mr. Robert Kopp and Mr. Mark Levy attended
on behalf of Solicitor General Days. Judge Robert Keeton, Chair of the Standing Committee,
and Chief Judge Dolores Sloviter, Liaison from the Standing Committee to the Advisory
Committee, were present. Mr. Strubbe, the Clerk of the Seventh Circuit, attended on behalf of
the clerks. Professor Mooney, the Reporter, was present. Mr. Peter McCabe - the Secretary, Mr.
John Rabiej - Chief of the Rules Support Office, Mr. Paul Zingg - Mr. McCabe's assistant, Mr.
Jeff Hennemuth of the Administrative Office, and Mr. Joseph Spaniol were present along with
Ms. Judy McKenna of the Federal Judicial Center.
Judge Ripple began by introducing Judge Logan as the chair designate of the Committee.
Judge Ripple welcomed Mr. Levy, the Deputy Attorney General representing the Solicitor
General. Judge Ripple also welcomed Judge Keeton and Chief Judge Sloviter from the Standing
Committee, and Mr. Spaniol, the former Clerk of the Supreme Court of the United States and
long time secretary to the rules committees.
Judge Ripple stated that his objective at this meeting was to complete work on as many
items on the docket as possible.
Judge Ripple asked Judge Keeton to report on the Judicial Conference meeting held
earlier in the week. Judge Keeton reported that Chief Judge Breyer of the First Circuit had
placed appellate rules 28, 38, 40, and 41 on the discussion calendar for the Judicial Conference
meeting. Both Judge Keeton and Judge Ripple spoke with Chief Judge Breyer prior to the
Judicial Conference meeting and convinced him that the Advisory Committee had considered
suggestions that he had made early in the development of some of those rules. As a result of
those discussions, Chief Judge Breyer was persuaded that it was not necessary to retain the
appellate rules on the discussion calendar. The Chief Justice, however, said that the rules could
not be removed from the discussion calendar without unanimous consent. Unanimous consent
was forthcoming at the meeting as a result of which all appellate rules would be forwarded to the
Judge Keeton also reported that the Court Administration Committee had urged the
Judicial Conference to approve fax filing guidelines so that those courts desirous of permitting
fax filings on a routine basis my adopt local rules authorizing such filings. At last summer's
Standing Committee meeting, the Committee had discussed fax filing guidelines prepared by the
Court Administration Committee and the Committee on Automation. The Standing Committee
was troubled by the initial draft because it contained provisions that ordinarily would be
contained in the rules. For example, the guidelines defined "filing" in the context of fax filing.
As a result, a rump committee put together by Judge Keeton studied the guidelines and made
suggestions for change. It was those revised guidelines that were presented to the Judicial
Conference by the Court Administration Committee for approval.
In spite of the revisions made during the Standing Committee meeting, Judge Keeton had
urged the Judicial Conference not to approve even the revised guidelines. He noted that the
guidelines would impose procedural requirements (such as maintaining an original signed
document until the conclusion of the litigation) that are not found in the rules, and that adoption
of the guidelines would result in the imposition of those requirements without compliance with
the Rules Enabling Act procedures. Judge Keeton had pointed out that in light of the ongoing
struggle to convince Congress not to bypass the Rules Enabling Act process by passing direct
amendments to the rules, it could prove embarrassing to the Judicial Conference to approve what
are in effect rules amendments without following the Rules Enabling Act procedures. As a result
of Judge Keeton's arguments, the Judicial Conference passed a motion to delay action on the fax
filing guidelines until September 1994.
Judge Keeton pointed out to the Advisory Committee that in order to have a
recommendation ready for the Judicial Conference by fall 1994 and to comply with the Rules
Enabling Act procedures, any necessary rule amendments would need to be published before the
Standing Committee's January 1994 meeting. He further noted that drafts of the further revised
guidelines and rule amendments would need to be prepared in the next month or two and
approved on an expedited basis for publication.
Judge Keeton stated that the key task of the Advisory Committees would be to modify the
guidelines so that they do not conflict with the rules of procedure. Judge Keeton indicated that
he had a rough redraft of the guidelines that he would offer for the Committee's consideration
later in the meeting.
Judge Keeton further stated that in private conversation with Judge Boyle during the Judicial Conference meeting, Judge Boyle indicated that if fax transmissions to court clerks are going to be regulated, he hoped the rules also would address fax service.
Chief Judge Sloviter, who also had attended the Judicial Conference, stated that she was
reasonably convinced that the fax guidelines would have been approved but for Judge Keeton's
forceful arguments. In her opinion, the argument that approval of the guidelines would undercut
the Rules Enabling Act was the persuasive factor. Both Judge Keeton and Chief Judge Sloviter
stated that the Judicial Conference is impatient with the long length of time between generation
of an idea and its presentation to the Conference.
Judge Ripple indicated that in light of those developments the Committee would devote
whatever time was necessary the following morning to consideration of the guidelines and rule
Judge Ripple returned to Judge Keeton's opening remarks about the rules placed on the
discussion calendar for the Judicial Conference. During discussions preceding the meeting of the
Judicial Conference, Judge Ripple learned that there had been some confusion arising from the
fact that the Advisory Committee's GAP report did not summarize comments submitted to the
Committee when early drafts were circulated to the Chief Judges for comment. When it was
explained that a GAP report only summarizes the comments received during the formal comment
period and not those generated by initial consultation with the circuits during the process of
developing a proposal, Chief Judge Breyer stated that he hoped this experience would not cause
the committee to discontinue the process of consultation that it often uses. Judge Ripple stated
his belief that the process of consultation with the circuits has been extremely useful to the
Committee and should be continued in those instances where the Committee believes it would be
Judge Ripple stated that Chief Judge Breyer did express concern, however, about the
notice requirements in the proposed amendments to Rule 38. Chief Judge Breyer sees a need for
an expeditious way that a court of appeals can bring a misstep to the attention of an attorney
without the punitive aspects currently associated with "sanctions." Because imposition of
sanctions can have implications for an attorney's career, due process and fairness concerns enter
the picture; Chief Judge Breyer, however, believes that there should be some means by which a
court can bring matters to the attention of counsel that do not result in a mark against the
attorney's professional reputation. Judge Ripple stated that he had promised Chief Judge Breyer
that his concerns would be added to the Committee's docket and referred to Judge Boggs'
subcommittee on sanctions and would, in due course, be considered by the full committee.
Before turning to the items on the agenda for the meeting, Judge Ripple indicated that
items 91-6 and 91-15 had been circulated as possible "dead list" items and that all votes had
indicated that no further action was needed. He stated that unless a member voiced objection,
both items would be stricken from the docket. No objections were heard.
Item 91-28 is a proposal to redraft and update Rule 27, the rule governing motions.
Judge Ripple indicated that Item 91-28 was being taken out of turn because Judge Williams, who
chaired the sub-committee on this item, would need to leave before the close of the meeting that
afternoon in order to attend a reception for his colleague Judge Ginsburg.
Judge Ripple indicated that the Department of Justice had prepared a draft for the
Committee's consideration and he had assigned the draft to a subcommittee for study and
solicitation of the views of the circuits'. Judge Ripple stated that at this meeting the Committee
should be ready to make substantive decisions. He and Judge Logan agreed that once the
substantive decisions are made the subcommittee should work with the Reporter to come up with
a refined text for the Committee's next meeting. Because Judge Williams chaired the
subcommittee, Judge Ripple asked him to lead the discussion.
Judge Williams indicated that his memorandum of September 8 was a composite of all
the written comments he had received on the draft. The comments were arranged topically and
in the order that the topics appear in the draft. Judge Williams proposed that each topic be
addressed in turn.
1. Nature of Motions
The first suggestion, appearing at the top of page 3 of the memorandum, was that the rule
should state that "an application for . . . relief shall be made by filing a motion." The current
appellate rule and the civil rules include such statements. Because the suggestion was Mr.
Munford's, Judge Ripple asked him whether something like the first sentence of the existing rule
would be sufficient. Mr. Munford replied that it would except that it may not be necessary to
include the direction that a motion be accompanied by proof of service because Rule 25 generally
requires proof of service to accompany papers presented for filing. After a brief discussion, Mr.
Munford moved that the draft be amended to include such a statement; Mr. Kopp seconded the
motion. It passed by a vote of 7 in favor, two opposed.
2. The Question of Oral Motions
Judge Williams then asked the Committee to turn to pages 4 and 5 of his memorandum
and that portion of the draft rule stating that motions must be in writing except for motions made
in open court with opposing counsel present. Judge Williams indicated that there was general
approval of the requirement that motions be in writing but that the exception for motions made in
open court in the presence of opposing counsel had generated some opposition.
The First Circuit opposed the exception because the tapes of its proceedings are destroyed
and the court would have no record of the motion. Judge Williams stated that in his seven years
on the court of appeals the only motions made before him in open court have been for an attorney
to appeal pro hac vice. He further indicated, however, that if a more substantive motion were
made in open court, the court would be free to order that the tapes be preserved.
Judge Logan indicated that the Tenth Circuit's experience is that some motions do not
need to be reduced to writing. For example, if at oral argument the court wishes to discuss points
not developed in the parties' briefs, counsel often ask permission to file supplemental materials.
In such instances the court enters an order setting the date for the filing of such materials; no
other writing seems necessary.
Chief Judge Sloviter stated that in the Third Circuit when something such a Judge Logan
described occurs, the crier enters minutes and the docket reflects what has occurred.
Mr. Strubbe stated that the Seventh Circuit has a form that is given to the judges' law
clerks and the clerks note any order made by the court. The clerk of the court enters the order on
the docket so that the clerks' office knows to expect additional documents.
Mr. Munford indicated that in the Fifth Circuit counsel do not have access to the records
of the proceedings in court and if a provision as broad as the draft were used, all sorts of motions
would be made in open court.
Judge Ripple indicated that there are four possible approaches to the question:
1. no oral motions;
2. oral motions are permitted in open court but discouraged;
3. oral motions are permitted in open court but must be memorialized by submission in writing; or
4. motions must always be in writing.
Judge Sloviter suggested a fifth possibility: that oral motions be permitted only by leave
of the panel.
Mr. Levy suggested yet another possibility: that oral motions be limited to housekeeping
Mr. Froeb stated that he has never encountered a problem with oral motions and that the
rules should not be cluttered with provisions governing insignificant or non-existent problems.
Judge Ripple indicated that he would like to take a straw vote in order to advance the discussion.
1. The proposal that oral motions would never be permitted was opposed unanimously.
2. The proposal that oral motions be permitted only as to procedural matters was favored by two members and opposed by five.
3. The suggestion that the consent of the court be required for any oral motion was favored
by six members and opposed by two.
Mr. Kopp reminded the members that the draft was an attempt to create a national rule.
The DOJ draft was prepared in light of the fact that oral motions are permitted in some circuits
and reflects a belief that an umbrella rule should accommodate existing practices.
Judge Logan summarized the discussion by noting that there was consensus that there
should be some leeway so that trivial oral motions need not be reduced to writing. As an
example, he stated that a lawyer's request at oral argument to share argument time with co-counsel typically would be considered and acted upon at that time and there would be no need to
create a paper record on that issue. He suggested that the details of the drafting could be left to
the sub-committee and that perhaps the problem could be most satisfactorily addressed in the
The discussion pointed out that some circuits permit motions for extension of time to be
made over the telephone to the clerk. Mr. Munford stated that the 5th Circuit permits such
motions to be made over the telephone but must be followed up in writing. Mr. Kopp stated that
his draft did not intend to disturb such practices. The committee unanimously agreed that a court
should be able to delegate authority to the clerk to handle procedural or housekeeping matters
Mr. Munford questioned the need for the opening phrase of the draft rule which says
"[e]xcept where otherwise specifically provided by these Rules" motions shall be in writing.
Because there are no contrary provisions in the FRAP, he suggested that the phrase may be
3. Documents that Must Accompany a Motion
Judge Williams asked the Committee to turn to pages 6 and 7 of the memorandum
dealing that portion of the draft rule governing the documents that must accompany a motion.
He noted that Rule 27 currently says that a motion must "set forth the order or relief sought" and
that language can be read to imply that a moving party must provide a proposed order along with
the motion. The Justice Department's draft deletes the language without stating that a proposed
order is not desired. Judge Keeton pointed out that the Civil Rules strongly discourage
submission of proposed orders unless the court directs otherwise. The Committee agreed that it
should be made clear that no proposed order is desired.
With regard to "supporting papers" the DOJ draft includes the following three
(a) Affidavits should contain factual information only. Affidavits containing legal argument will be treated as memoranda of law.
(b) A copy of the lower court opinion or agency decision shall be included as a separately identified exhibit by a moving party seeking substantive relief.
(c) Exhibits attached should be only those necessary for determination of the motion.
Judge Williams asked whether it is appropriate to include such provisions in the national rules or whether they really are simply helpful suggestions to counsel.
Judge Ripple stated that a motion should be a self-contained packet of materials and that
if it is necessary to call the clerk's office to get a copy of the lower court opinion etc., the time for
deciding a motion may be significantly lengthened.
Mr. Froeb stated that he thought a lawyer would automatically include the necessary
supporting papers but that if that is not so, perhaps the sort of directions included in the draft are
Mr. Kopp stated once again that he attempted to develop a draft that would be complete
enough that the circuits would not feel a need to supplement it.
Judge Ripple summarized the options and asked the Committee to express its preliminary
1. The first option would be to stop after the statement that "[i]f a motion is supported by
affidavits or other papers, they shall be served and filed with the motion" and not provide any
further instructions. Three members favored that approach.
2. A second option would be to simply direct that all necessary supporting documents
should be appended. One member favored that approach.
3. A third option would be to put all such directions in the committee notes. No member
favored that approach.
4. A fourth option would be to take the approach taken in the DOJ draft. Five members
favored that approach.
Given the preference for the fourth option, Judge Ripple called for a vote on that
approach. Retention of the draft language was approved by a vote of six in favor and three
Judge Williams noted that Mr. Munford had suggested a slight adjustment in the
language of the DOJ draft (a)(2)(c) but Mr. Munford requested that his suggestion be referred to
the drafting subcommittee.
Judge Williams directed the Committee's attention to the comments on page 8 concerning
briefs. The DOJ draft deletes the language in the current rule stating that a motion may be
supported by a brief.
The Federal Circuit commented that it explicitly prohibits the filing of briefs and Mr.
Munford had suggested that if the intent is to ban separate briefs, then the rule should so state.
Judge Logan said that the Tenth Circuit had discussed this issue and concluded that a motion and
supporting arguments should be contained in a single document.
The single document approach was unanimously approved but several members indicated
that the committee note should explain that a motion itself may contain supporting arguments.
Mr. Spaniol noted that Supreme Court Rule 21 uses the single document approach and that its
language might prove helpful in the drafting process.
5. Page Limitation
Judge Williams moved onto the page limitation provisions and comments discussed on
pages 9 and 10 of his memorandum. Professor Mooney summarized the status of Rule 32,
noting that a new proposal would be published on November 1. The new proposal would include
a words per page limitation, although Judge Easterbrook had written to the Committee
suggesting that characters per brief or words per brief would be preferable to words per page.
During discussion of the status of Rule 32, Chief Judge Sloviter noted that if the members
of the Advisory Committee are confused about where certain rules proposals are in the pipeline,
that those circuits that are not represented on the Committee are even more confused. She
suggested that the table of agenda items should be circulated to the circuits or at least to the rules
committees in the circuits. Both Judge Ripple and Judge Logan agreed that circulation of the
table would be helpful. Judge Ripple further suggested that the Chair's letter to the Chief Judge
should suggest that it be circulated to the rules committee.
Judge Williams suggested that given the uncertain development of Rule 32, it may be
difficult to proceed with such provisions in Rule 27.
Judge Keeton suggested that the problem might be finessed by providing that a motion or
response to a motion cannot exceed 1/2 the length permitted for a principal brief under Rule 32
and that a reply to a response cannot exceed 1/4 of that length.
Judge Ripple suggested separating the discussion concerning the length of a reply from
that concerning the length of a motion or response. He thought that some members might take
the position that the rule should not authorize a reply to a response and that discussion of replies
might muddy the discussion of Judge Keeton's proposal. The Committee concurred.
Judge Hall noted that the Ninth Circuit has reduced the length of a brief from 50 pages to
35 pages. Judge Ripple stated that under Judge Keeton's proposal, to the extent that a circuit has
authority to limit the length of its briefs, it would correspondingly limit the length of its motions.
Judge Logan said that when the Tenth Circuit reviewed the DOJ draft, the Tenth thought
that the suggested twenty page limit was too long.
Mr. Kopp replied that motions vary from minor to very major (such as a motion for
summary affirmance or a motion to dismiss for lack of jurisdiction) so that in some contexts a
motion is more important than the brief. The twenty page limit was proposed as a fair
compromise. Mr. Kopp stated that Judge Keeton's draft is a good way to finesse the fact that
Rule 32 is in flux but Mr. Kopp further noted that if the committee consensus was that the limit
on a motion should be 20 pages, one would end up with a awkward fraction.
Chief Judge Sloviter said that the disadvantage of Judge Keeton's proposal is that the
motion rule would not be self-contained; one would need to refer to another rule to know the
limit. She also said that the number of pages for a motion has never posed the sort of problem
that has been encountered with the length limitations on briefs.
Mr. Froeb agreed that the motion rule should be as free-standing as possible. With regard
to the specific number of pages, he suggested that the real question is how many motions to
exceed the page limits do the courts want to receive. Because there are motions of the type that
may decide the appeal, if the page limit is set too low, there will be many requests to exceed the
limit. Mr. Froeb suggested that a mid-line number should be settled upon so that there will not
be an excessive number of motions to exceed the limit.
Mr. Munford stated that he liked separating the page limit question from the typeface
issue. He believes that it is preferable to have the motions rule as self-contained as possible and
that it would be good to have the page limit in Rule 27 but that the typeface question could await
the Rule 32 resolution.
Judge Hall stated that in her experience there has not been a problem with the length of
motions. In her experience, the length of a motion has generally been commensurate with the
difficulty of the issues presented. She has been more troubled by the attachments being either
excessive or insufficient. She expressed willingness to do without a page limit.
Judge Logan said that the Tenth Circuit was concerned that once a page limit is
established, lawyers would tend to use the maximum number of pages permitted. The Tenth
Circuit, therefore, favored a shorter limit which would force parties who wish to file a longer
motion to seek court permission to file a longer document.
Judge Williams said that lawyers do tend to use the entire 50 pages allowed for briefs
whether the issues warrant it or not, but that his experience has been different with motions and
that the D.C. Circuit has had a page limit on motions ever since he has been on the court. He
further stated that he rarely receives a motion to exceed the page limits.
Mr. Kopp stated that the draft includes a page limitation to eliminate the need for local
rules establishing limitations. He also believes that the existence of a limit usually provides an
incentive to carefully structure one's writing. He stated, however, that he would rather have no
limit than a 15 page limit. In his opinion, too many motions cannot be adequately supported in
15 pages but that 20 or 25 pages is usually sufficient.
Judge Ripple called for a straw vote on the three options posed:
1. Three members favored imposing no limit.
2. Two members favored using Judge Keeton's proportional approach.
3. Four members favored using a twenty page limit.
Given that outcome, Judge Ripple called for a final vote on options one and three. Four
members voted for no page limit. Five members voted for a twenty page limit.
Judge Williams noted that the DOJ proposed 27(a)(4), on page 11 of his memorandum,
deals with typeface questions. Judge Ripple suggested that the Committee not attempt to deal
with that issue until Rule 32 is resolved because Rules 27(a)(4) and 32 should use the same
approach. Mr. Spaniol noted that Rule 32(b) purports to establish format requirements for
motions. He suggested that the Committee should determine whether the format requirements
should be in both rules or only one, and which one and, if they are to be both places, they clearly
should use similar or identical language.
Judge Logan suggested that Rule 27(a)(4) should simply cross-reference Rule 32(b). Mr.
Munford countered by suggesting that it would be preferable to include the formatting
information for motions in Rule 27 and to eliminate Rule 32(b). Judge Ripple responded,
however, that Rule 32(b), deals with petitions for rehearing and other documents as well as with
motions. There was discussion about whether a cross-reference to 32(b) would make the binding
and cover requirements of Rule 32(a) applicable to motions. Judge Williams suggested that
removing motions from 32(b) might be preferable. Mr. Spaniol suggested using the language of
Supreme Court Rule 34 so that a motion would be "stapled or bound at the upper left hand
corner." The working out of this problem was left to the drafting subcommittee.
6. Responses that Request Affirmative Relief
Judge Williams asked the Committee to turn to page 13 of the memorandum dealing with
responses to motions. He noted that there are two issues that the Committee must address: the
first is whether the rule should allow a party to combine a response to a motion with a request for
affirmative relief and second, if the answer to the first question is yes, then page limits for such a
document must be established.
The DOJ proposal allowing combined documents was based upon a D.C. Circuit Rule.
Judge Williams stated, however, that such combined documents are rare and that he could not
cite any example where the D.C. rule either caused or solved any problem. Judge Williams said,
however, that the rule is useful because there often is substantial overlap of arguments in the
response and in the request for affirmative relief.
Mr. Kopp said that when a lawyer is not simply opposing a motion but also is asking for
summary affirmance, it is not clear how the documents should be structured. Because the
arguments overlap, it is not clear whether the response should be followed by a one page motion
or whether the response should conclude with a paragraph asking for summary affirmance. If it
is decided to include the request for relief in a response, Mr. Kopp noted that it is important that
the caption alert the court to the request for relief.
Mr. Munford stated that in his opinion, the problem is too obscure to address in a national
Judge Ripple called for a straw vote as to whether the rule should provide that a response
may include a request for affirmative relief. Four members voted in favor of doing so, and five
opposed. Given the opposition, Mr. Kopp suggested that the topic be addressed in the comment
saying either that there must be a separate motion for affirmative relief or that the motion may be
combined with the response. Mr. Levy pointed out that with a separate motion, the original
movant would have the opportunity to respond.
Because the previous vote had been that the rule need not specifically address the
combined document question, Judge Ripple asked for a clarifying vote on whether the
Committee substantively supports the idea of a combined response and request for cross-relief
even though the rule does not speak about it. Seven members indicated that they do support that
approach. Therefore, the drafting subcommittee should try to address the matter in the notes to
the extent appropriate. Mr. Froeb indicated that in drafting the rule it is important to keep in
mind that many lawyers want to be the last party to speak.
Judge Williams asked the Committee to turn to page 15 of his memorandum and to
proposed Rule 27(a)(6) dealing with a reply to a response. The DOJ draft allows a reply to be
filed within three days after service of a response.
Judge Williams indicated that he finds replies very useful to clarify a point that appears
for the first time in the response. He was surprised, therefore, to find opposition to the practice.
Judge Logan said that the Tenth Circuit's opposition was based upon its belief that most
motions are relatively simple and that a reply is not needed and simply delays the ruling on the
Mr. Kopp stated that if the rule does not authorize a reply and the party believes that it is
needed, the party will file a motion for permission to reply.
Mr. Strubbe said that his circuit has always refused to file a reply to a response to a
motion unless the panel wants a reply and orders one.
Mr. Levy said that a movant wants assurance that the court will not act before the movant
has a chance to reply or at least to move for permission to reply. He expressed the opinion that it
is only fair to provide the moving party with the last word.
Judge Keeton pointed out that although the draft says that a reply must be filed within
three days after service, the time for reply is really much longer -- probably a minimum of eight
days. Rule 26(c) provides three additional days after service by mail and that in some instances
there would be an additional two days because of the week-end. So, the delay is more significant
than the draft indicates.
Judge Williams pointed out, however, that the party with the right to reply is the moving
party. If there is urgency to decide the motion, the moving party could waive the right to reply or
act very quickly or the motion panel could shorten the time.
Judge Ripple asked the Committee to vote on whether the national rule should provide an
opportunity to reply. Five members favored having a provision for a reply; four opposed it.
Given that vote, he asked the Committee to vote on the three day period for filing a reply; all
members voted in favor of that time limit.
Judge Williams pointed out that the DOJ draft, page 9 of his memorandum, proposed a
seven page limit on a reply. Judge Williams suggested that if the motion and response are to be
limited to 20 pages, that the reply should be one-half of that or 10 pages. Judge Ripple treated
the suggestion as a motion and he seconded it; the Committee approved it unanimously.
8. Procedural Relief
The Committee then turned its attention to page 17 of the memorandum dealing with
procedural orders. The DOJ draft, like current Rule 27, permits the court to dispose of a motion
for procedural relief before a response to the motion is filed. The primary issue addressed in the
comments on the draft is how "timely opposition to the motion that is filed after the motion is
granted in whole or in part" should be treated. The DOJ draft said that it would be "treated as a
motion to vacate the order." The Federal Circuit and the Seventh Circuit treat such responses as
moot and the opposing party must file a motion to reconsider if he or she wants to the court to
reexamine the appropriateness of the relief granted.
Judge Ripple outlined the possible approaches to the question. First, the response to the
motion may be treated as a motion to vacate the order and ruled upon (the DOJ proposal).
Second, the response may be treated as moot and not ruled upon. Third, if the party wants to
press his or her opposition to the motion, the party must file a motion for reconsideration which
addresses the court's order granting the motion. A straw vote was taken and the approach taken
in the draft received no support. There was consensus, however, that the rule should address the
need to file a motion for reconsideration.
The Committee broke for lunch at noon.
The meeting resumed at 1:20 p.m.
Judge Williams indicated that with regard to the DOJ proposed Rule 27 subdivision (b),
governing procedural orders, there were some miscellaneous points to be discussed. Judge
Posner had asked whether the language on lines 8 and 9 of the draft requiring "[a]ny party
adversely affected by such action" to file a motion for reconsideration, referred only to decisions
made by the clerk or to any order on a motion. The Committee generally agreed that it should be
clarified that the requirement applies to all orders.
Judge Posner had also suggested that the rule clarify whether a party can suggest an in
banc hearing on a motions matter. Rule 35 states that there may be an in banc hearing on an
"appeal or other proceeding" and the general consensus of the Committee was that Rule 35
authorizes in banc consideration of a motion. The Committee, however, was hesitant to be more
specific about the ability of a party to request in banc consideration either in the text of Rules 35
or 27 or in Committee Notes. The Committee feared that such a change might be taken as an
invitation to request in banc consideration of motions. Judge Logan made a motion that the
Committee make no changes either in the text or the Committee Notes; Mr. Munford seconded
the motion. Six members voted in favor of the motion; no one opposed it.
Mr. Munford withdrew his suggestion (p. 17) that clerks be limited to deciding
9. Power of a Single Judge to Entertain Motions
Judge Williams directed the Committee's attention to DOJ proposed subdivision 27(c) (p.
19) dealing with the power of a single judge to entertain motions and noted that it had elicited no
unfavorable comments. The Committee also had no comments.
10. Number of Copies
Judge Williams asked the Committee to turn to page 20 and DOJ proposed subdivision
27(d) dealing with the number of copies of motion papers that must be filed. The Reporter
pointed out that the DOJ prepared its proposal prior to the time that the Committee had generally
addressed the number of copies problems. The Committee had made consistent changes in all of
the rules dealing with numbers of copies and those amendments, including an amendment to
Rule 27(d), were approved by the Judicial Conference earlier in the week and would be
forwarded to the Supreme Court for its consideration. The Committee decided that no further
changes should be made Rule 27(d).
11. Oral Argument
Judge Williams turned to page 22 of his memorandum and DOJ proposed subdivision
27(e) stating that motions will be decided without oral argument unless the court orders
otherwise. Once again, there was no opposition to this proposal and the Committee had no
suggestions to offer.
12. Preemption of Circuit Rules
Judge Williams then directed the Committee's attention to page 23 of the memorandum
and DOJ proposed subdivision 27(f) concerning preemption. The DOJ draft suggests that the
provisions of Rule 27 should preempt local rulemaking on motions. Judge Williams and Mr.
Munford noted that the Committee had rejected a similar preemption provision when it was
proposed for Rule 32. They said that whether the national rules should preempt local rulemaking
is a generic issue and saw no justification for treating it differently in the context of motions than
with regard to briefs. Judge Williams moved to delete subdivision (f); Chief Justice McGiverin
seconded the motion. Mr. Kopp stated that the issue had been given a thorough airing during the
discussions of Rule 32 and that he would defer to the Committee's earlier judgment. The
Committee passed the motion unanimously.
Mr. Munford pointed out that the Second Circuit requires that a party file a notice of
motion form. He suggested that the Rule be amended to state that a notice of motion is not
required. The members of the Committee generally agreed that it would be a good idea to
eliminate that practice. Mr. Munford moved that the Committee proposal include a provision
that no notice of motion should be required; he suggested that it might be placed with the
provision stating that briefs are not required. Judge Williams seconded the motion and it was
Judge Ripple thanked Judge Williams for all his work on this item and asked the subcommittee composed of Judge Williams, Mr. Froeb, and Mr. Munford, to remain in place to continue working on Rule 27.
Item 91-23 is a suggestion that each side file a single brief in consolidated or multi-party
appeals. The Reporter had prepared three basic drafts for the Committee's consideration and she
briefly explained them as follows:
1. Draft one simply encourages a single brief.
2. Draft two requires a single brief to the greatest extent practicable and requires a party
who files a separate brief to include a certificate stating the reasons it was necessary.
3. Draft three requires a single brief unless the court orders otherwise.
In the event that the Committee considers it appropriate to distinguish between civil and criminal
cases, she had drafted variations on drafts two and three that gave the parties greater discretion to
file separate briefs in criminal cases.
Chief Judge Sloviter stated that the Third Circuit has a variation requiring a party filing a
separate brief to pay a separate filing fee.
Mr. Munford opened the discussion by expressing his hesitation to support any of the
drafts. He stated that coordinating the preparation of briefs with other parties would be fraught
with problems. As an example he stated that in a medical malpractice case where a patient visits
four different hospitals and is misdiagnosed in all four, even though all the hospitals are on the
same side of the case they will have different interests and their attorneys may have conflict of
interest problems. In his experience when parties can file a single brief, they often do so. He
suggested that the Committee make no change or adopt the Eleventh Circuit's one lawyer, one
brief rule or the Third Circuit's rule that when a joint appeal is filed there be only one brief (a one
fee, one brief rule).
Mr. Froeb strongly concurred. He said that he would rather have the number of pages be
divided by the number of parties on one side than be forced to join in a brief that he considered
Chief Justice McGiverin said that the Iowa Rule of Appellate Procedure 14(j) is the same
as FRAP 28(i) and it works very well; therefore, he also favored making no changes.
Mr. Levy agreed. In many cases there are differences in the legal arguments made by
parties on the same side, as well as differences of strategies. Furthermore, he indicated that he
would be loathe to disclose publicly the reasons why the parties are unable to file a consolidated
brief because often they are matters of strategy that the parties should not be required to disclose
and upon which the judges should not be asked to rule.
Judge Williams stated his desire to join the practitioners based upon his experience in
attempting to do collaborative academic work. He did state that he finds Rule 28(i) a little chilly
in that it simply permits joinder in a single brief. For that reason he stated a preference for draft
one which encourages the filing of a single brief.
Judge Hall spoke in favor of draft three. The Ninth Circuit currently has a local rule
requiring parties in a civil case to file a joint brief to the greatest extent practicable and
encouraging the filing of a joint brief in criminal cases. She does not find those provisions
helpful and believes that something stronger is needed. She further stated that she believes the
problem is even greater in criminal cases than in civil cases.
Judge Ripple noted that in some cases the legal arguments may be virtually identical but
the real problem with cooperation is that the abilities of the lawyers are unequal and the reason
they do not collaborate is unspoken -- the better lawyer will not give in and allow the weaker one
to write any portion of the brief.
Mr. Kopp said that he understands why the court would not want to be drowned in
repetitive paper but that good advocates know that it is better to get together because their single
brief will have stronger impact. He suggested that there might be ways to address the problem
other than by rule. For example, he suggested that if parties file duplicative briefs that both of
them would not be awarded full costs. He further suggested that the Committee Note state that
the court expects that in the interest of good advocacy parties will cooperate in the preparation of
a single brief.
Mr. Munford said that Mississippi tried giving parties a choice between cooperating in
the preparation of a single brief or dividing the pages between the parties on the same side. The
problem with that approach is that there is nothing to bargain with; if a party wants his or her
own pages there is nothing you can do about it. In criminal cases, he believes that the 6th
Amendment and the increasingly stringent rules on conflicts of interest are the driving force that
require the defendants to have separate lawyers in the first place. He indicated that it would be
ironic for one set of rules to say that each criminal defendant must have his or her own lawyer
but when they get to the appellate court the defendants must file only one brief.
Judge Logan moved the adoption of draft one. Judge Boggs seconded the motion. Mr.
Kopp asked whether that was the proper juncture to discuss the treatment of the government. He
stated that he is not sure that it is appropriate even to encourage the government to file a single
brief with a private party because the government is supposed to represent an independent
interest. Encouraging the government to file a consolidated brief with a private party would send
the message that a private party has a role in shaping the position of the government.
Judge Boggs stated that there are cases in which the government is involved in litigation
as a property holder and in those cases the government is not unlike any other private party. In
his opinion, draft one would not say anything affirmatively improper.
Mr. Kopp suggested that a Committee Note might cure his hesitation. The note might
indicate that because of its duty to represent the public interest, a governmental party might find
it inappropriate in most instances to join in a brief with a private party and that must be taken
into consideration in applying the language of the rule.
Mr. Levy indicated that even when the government is a private property, it may be
inappropriate to treat the government like any other party. There are special limitations upon the
government. The government often does not assert certain arguments or defenses that a private
party would assert and the process of consultation concerning the arguments that will be made in
a government brief is quite different. In his opinion, it would send the wrong signal to encourage
the government to join in a brief with other parties.
Judge Hall stated that government briefs are not the problem but noted that there are
judges on her circuit who object to any special treatment for the government. For that reason,
she believes that it is better to leave it to the court to decide whether the government would be
required to join in a brief with a private party rather than flag the special treatment. She stated
that draft one is milder than the Ninth Circuit's rule which is ineffective and she questioned
whether it is worth making a change.
Judge Logan concurred that it may not be worth going through the whole rulemaking
process to change from a rule stating that the parties may file a single brief, to one that
encourages filing a single brief. Even after the change the rule would only include precatory
language. Judge Logan, therefore, withdrew his motion.
Mr. Munford made a motion to leave the rule as it stands; Mr. Froeb seconded the
motion. The motion passed by a vote of five in favor and four in opposition.
In its response to the Local Rules Project, the Fifth Circuit suggested that the Advisory
Committee on Appellate Rules consider amendment of Rule 29 governing a brief of an amicus
curiae. The Fifth Circuit suggested that Rule 29 should specify which of the items required by
Rule 28 for briefs of parties should be included in an amicus brief; that Rule 29 should establish
a page limit for an amicus brief, and that Rule 29 should permit an amicus brief to be filed later
than the brief of the party supported by the amicus.
The Reporter prepared two drafts for the Committee's consideration. Draft one was an
entire rewriting of Rule 29. In addition to specifying the items that must be included in an
amicus brief, draft one provided that an amicus brief may be filed 15 days after the brief of the
party supported by the amicus and may not exceed 20 pages. Allowing the amicus to file after
the party would avoid needless repetition of the party's arguments in the amicus brief and make
the shorter page limits realistic. The rest of the briefing schedule, however, would be extended.
Draft two was similar to draft one except that it required the amicus to file its brief at the same
time as the party supported.
As a preliminary matter Chief Judge Sloviter asked the Committee to consider whether it
wants to continue to permit an amicus brief to be filed with the consent of all parties. Sometimes
whether a court will permit participation by an amicus curiae is hotly contested and there have
been members of her court who have written dissents from decisions to permit participation of an
amicus curiae. The provision in Rule 35 that permits the filing of an amicus brief upon consent
of the parties imposes reading on a court even if there is no receptivity to it.
Mr. Munford also posed a number of questions:
1. He asked whether the rule should include standards for granting leave to participate as an amicus curiae. He noted that the Supreme Court Rule suggests that leave will be granted only if the amicus truly has something to add.
2. He noted that the Fifth Circuit rule states that an amicus brief should avoid repetition of facts and legal arguments contained in the principal brief. Since that is the purpose for the delay, he asked whether such language should be included at least in draft one.
3. With regard to draft one, he asked whether the time for the responsive brief should run
from the time the court grants the motion for leave to file the amicus brief rather than from the
filing date of the brief and motion for leave to file.
Judge Logan noted that the drafts pose four new questions: 1) whether an amicus should be able to file a reply brief;
2) whether there should be a page limitation for an amicus brief; 3) when the brief should be filed; and,
4) whether the brief should accompany the motion seeking leave to file.
Judge Hall stated that it also would be helpful to establish a standard for accepting an
amicus brief. Mr. Munford pointed out that Supreme Court Rules 37.1 and 37.4 attempt to do
that. Sup. Ct. R. 37.1 states:
An amicus curiae brief which brings relevant matter to the attention of the Court that has
not already been brought to its attention by the parties is of considerable help to the
Court. An amicus brief which does not serve this purpose simply burdens the staff and
facilities of the Court and its filing is not favored.
Sup. Ct. R. 37.4 requires that the motion for leave to file must:
concisely state the nature of the applicant's interest and set forth facts or questions of law
that have not been, or reasons for believing that they will not be, presented by the parties
and their relevancy to the disposition of the case.
Judge Ripple moved the adoption of language similar to Sup. Ct. R. 37.1 as prefatory to
FRAP Rule 29. Mr. Munford seconded the motion. The motion passed unanimously.
1. Time for Filing an Amicus Brief
Judge Ripple then suggested that the Committee address the question of the time for
filing an amicus brief. Draft one permits an amicus to file its brief 15 days after the principal
brief of the party supported. Draft two requires the amicus brief to be filed within the time for
filing the party's brief.
Judge Logan expressed a preference for requiring the amicus to file within the same time
as the party because that requirement leaves the briefing schedule undisturbed.
Judge Williams said that he had no preference as to the time for filing the brief but he
strongly urged that the rule establish a time for filing the motion for leave to file.
Mr. Kopp noted that the 15 day delay in draft one is modeled on the D.C. Circuit Rule
which was adopted in an attempt to shorten amicus briefs. If the amicus files after the party, the
amicus will know what the party has said and the amicus can focus its brief more closely. The
staggered filing schedule permits the court to have a tighter page limit than otherwise would be
Judge Logan stated that most amicus briefs do not attempt to cover ground not covered
by the party. Rather, they usually say in effect that there is a major interest group which concurs
with the position of the party. Usually they simply state their interest and argue their one major
Judge Boggs said that an amicus frequently propounds a legal theory that the litigant does
not believe is the most promising theory and as to which the litigant is unwilling to devote space.
Judge Ripple agreed and said that in such cases the efforts of the party and the amicus are
coordinated. In such cases the 15 day period is not necessary because the party and the amicus
are aware of each other's arguments.
Mr. Froeb indicated that in any event, fifteen days is not sufficient time for an amicus to
get the party's brief, read it, and write the amicus brief. The focusing that the staggered schedule
hopes to achieve may be unrealistic given the short interim period.
Mr. Levy countered by observing that the staggered period gives the party some
opportunity to have influence upon the amicus brief -- an opportunity that is effectively
foreclosed when both are busy preparing briefs on the same schedule.
Judge Ripple called for a preliminary vote on whether there should be a staggered
briefing schedule under which an amicus files later than the party he or she supports. Six
members favored a staggered schedule and one member opposed that approach.
Given that vote, Judge Ripple asked the Committee to address the length of the delay. He
noted that if the period is 15 days, when an amicus brief is filed in support of an appellee the
reply brief would be due before the amicus brief. An appellant would file his or her reply
without knowing whether an amicus brief will be filed in support of the appellee and without an
opportunity to address the arguments made by the amicus.
Discussion followed about using a 7, 10, or 14 day delay and the effect of Rule 26(a) on
time computation and about whether the responding party's time should begin to run from the
filing of the motion for leave to file, assuming that the brief must accompany the motion, or from
the time the court grants the motion.
Given that the Committee had not yet voted on whether the proposed brief must
accompany a motion for leave to file, Judge Keeton suggested that resolution of that issue might
ease the discussion about the running of the time for a responsive brief and thence about the
length of the stagger. Seven members indicated that if a staggered briefing schedule were used,
they would require that the proposed brief be filed with the motion.
Mr. Munford indicated that even with that requirement he believes the time should not
begin to run until the court grants the motion. In some circuits leave to file is not routinely
granted, the responding party, therefore, needs to know whether the amicus brief is accepted
before the party can finish its brief.
Chief Judge Sloviter expressed strong opposition to any proposal that would delay the
briefing schedule. Letting an amicus brief delay the briefing schedule would be, she observed,
letting the tail wag the dog.
Mr. Froeb noted that in his state system, the amicus must indicate that all the briefs are in
and that the amicus has read them before it moves for leave to file. If the party wants to respond
to something said by the amicus, the party must file a motion for leave to respond. He indicated
that the system seems to work fine and that there is no delay in the regular briefing schedule.
Mr. Kopp indicated that the staggered system can work but that there should be no more
than minimal delay in the briefing schedule. He concluded, therefore, that the responding party's
time should begin to run when the motion and proposed brief are lodged.
Mr. Levy pointed out that under that scenario, an appellee may need to respond before the
court grants an amicus leave to file. The party may use part of its brief to respond to an amicus
brief that may never be accepted.
Judge Logan moved that there should not be any delay in the briefing schedule even
though an amicus brief is filed on a staggered schedule. Most of the time the amicus brief will be
received early enough for the party to include a response in its brief. If, however, significant new
arguments are raised in the amicus brief, the party could file a motion requesting adequate time
to respond. Judge Hall seconded the motion. Mr. Munford opposed the motion because the
appellee will respond to the principal brief and use the filing of an amicus brief as an excuse to
get the last brief in the case. Judge Logan pointed out that the court need not permit the response
unless it thinks there is sufficient need for it. Judge Hall stated that in her experience the Ninth
Circuit does not permit anyone respond to an amicus brief other than at oral argument.
Judge Ripple pointed out that the purpose of the 15 day stagger period is to let everyone
know what everyone else is arguing in the case. If there is a 15 day stagger period but the
briefing schedule is not delayed, achievement of that goal is undercut substantially. He
suggested that the stagger period may be more accommodating to amicus briefs than is necessary
and that the Committee might reconsider the wisdom of the 15 day delay.
Mr. Munford moved that the time for filing a responsive brief should run from the filing
of the motion by the amicus for leave to file its brief. Specifically, he suggested that lines 60
through 62 of draft one, page 6, be amended to read: "Unless otherwise ordered, for purposes of
Rule 31(a), the time for filing the next brief runs from the filing of the motion for leave to file.
Mr. Munford stated that he would like to separate the stagger issue from the question of whether
the briefing schedule is otherwise extended. He would like to retain the stagger even if the
briefing schedule is not extended at all. His motion dealt only with the briefing schedule. Mr.
Kopp seconded the motion.
Judge Logan, however, moved for reconsideration of the 15 day stagger. He further
proposed adding a new sentence at the end of subdivision (e) of draft two on page 10 of the
memorandum. Subdivision (e) of the draft states that "[a]n amicus brief must be filed within the
time allowed for filing the principal brief of the party supported. If the amicus does not support
either party, the brief must be filed within the time allowed for filing the appellant's brief."
Judge Logan suggested adding: "A court may permit later filing, in which event it must specify
the period within which an opposing party may answer." That would make it clear that if a court
permits an amicus to file a brief after the party supported, it can allow additional time for any
responsive briefs. Mr. Froeb seconded the motion.
Judge Ripple called for a vote on Mr. Munford's motion. It was defeated; only two
members favored the motion and five opposed it.
Judge Ripple then asked the Committee to consider Judge Logan's motion. Mr. Levy
asked what would happen if an amicus brief is filed at the same time as the appellant's brief but
the motion for leave to file is not granted within the time for filing the appellee's brief. Mr. Levy
asked whether the appellee should respond to the arguments made by the amicus. Judge Logan
said that if the amicus brief raises an issue that is important enough that a response to the
argument is warranted, the appellee should treat the issue in his or her brief even though the court
has not yet ruled on the motion for leave to file. He recognized that the court may never admit
the amicus brief but stated that if the argument raised by the amicus is important, it needs to be
met in any event.
Mr. Munford asked for clarification as to whether Judge Logan intended only to require
that the motion for leave be filed within the time for filing the brief of the party supported, or
whether he also intended to require the brief to accompany the motion. Judge Logan, responded
that he intended the latter.
Mr. Munford also asked about the time for filing an amicus brief in support of a petition
for rehearing. He pointed out that the current rule does not tie the time for filing to the principal
brief, rather it requires an amicus brief to be filed within the time allowed the party whose
position the amicus supports. Judge Logan responded that he intended to require filing within
the time allowed for filing the principal brief of the party supported. He said that he has never
seen an amicus brief in support of a petition for rehearing and if one were submitted it should be
accompanied by a motion for leave to file it.
The discussion having concluded, Judge Ripple called for a vote on the motion. It passed
by a vote of seven in favor and one opposed.
Judge Ripple asked the Committee to consider lines 15 and 16 on page 9 which provide
that a motion for leave to file must state "the reasons why an amicus brief is desirable." He
suggested that the language from Sup. Ct. R. 37.4 should be substituted for lines 15 and 16. That
language is: "The motion shall concisely state the nature of the applicant's interest and set forth
facts or questions of law that have not been, or reasons for believing that they will not be,
presented by the parties and their relevancy to the disposition of the case." He suggested that the
Supreme Court language would provide the judge with some standards and also would guide the
lawyer in fulfilling the requirement on lines 15 and 16. Judge Hall seconded the motion.
The Committee discussed the extent to which an amicus can raise new issues. The
consensus was that an amicus cannot raise an issue not preserved by a party but that an amicus
can provide additional arguments supporting a party's position on an issue. The question before
a court of appeals, however, is usually much broader than that before the Supreme Court. Mr.
Munford suggested that the language should be altered so that the amicus need only show that
the facts or "arguments" have not been "adequately presented" by the party. Judge Keeton
pointed out, however, that the Supreme Court will hear only the issues on which it has granted
certiorari; whereas, the question before a court of appeals is whether the judgment of the district
court is correct. Judge Ripple pointed out that Mr. Munford's language retains the idea that an
amicus is subject to the laws of waiver and preservation of issues.
Judge Ripple's motion, as amended, passed unanimously.
3. Page Limitation
The next issue considered was the imposition of a page limit on amicus briefs. Both
drafts impose a twenty page limit. Judges Boggs and Hall moved adoption of that limit.
Judge Ripple asked the Justice Department representatives whether 20 pages is long
enough. Mr. Kopp said that in most instances it would be but that 25 might be more helpful.
Judge Logan spoke in favor of the motion noting that an amicus brief typically focuses on
one issue and 20 pages is sufficient.
The Reporter pointed out that the draft permits the court to order otherwise either by local
rule or by order in a particular case. Therefore, local rules such as the D.C. rule that permits 25
pages would not be in conflict with the national rule.
The motion passed by a vote of seven in favor, none in opposition, and one abstention.
Judge Logan requested that the Committee consider the language in the draft at the top of
page 10 concerning the items that must be included in an amicus brief. He noted that the draft
specifies the items that may be omitted but that he would prefer that the rule state positively
those items that should be included.
The Reporter stated that a positive statement could be modeled on Sup. Ct. R. 37.6 which
states that an amicus brief generally must comply with the requirements for parties' brief "except
that it shall be sufficient to set forth . . ." The Reporter indicated, however, that she probably
would advise adding a requirement that an amicus brief should include a table of contents and a
table of authorities.
Judge Logan moved that the rule should list the items that should be included in an
amicus brief in a fashion similar to that of Sup. Ct. R. 37.6. The items that he wanted included
were: the interest of the amicus, the argument, and the conclusion as well as a table of contents
and a table of authorities. Mr. Froeb seconded the motion. Judge Ripple suggested that
requiring a summary of argument would be helpful in screening the briefs. Judge Logan
amended his motion to include a summary of argument.
Mr. Munford remarked that the Sup. Ct. R. is confusing and does not clearly tell an
amicus what should be included or excluded. While he had no objection to using a positive
approach, he suggested that the rule should make it clear whether an amicus needs to do such
things as file a certificate of interest. He thought that the list given was incomplete because it
does not cover such topics as covers, typeface, form, etc. The Reporter responded that she
understood the motion to include the cross-references in the draft at lines 19 and 20, so that the
brief must comply with Rule 26.1, 28 and 32. Mr. Munford suggested that it would be clearer to
state that an amicus must comply with 26.1 and 32, but with respect to Rule 28 a brief need only
include . . .. Judge Logan and Mr. Froeb agreed to that amendment.
Mr. Levy asked whether an amicus actually needs to comply with Rule 26.1. He asked
whether it would be grounds for recusal if a judge had some interest in an amicus or its related
businesses? Chief Judge Sloviter stated that if participation of an amicus could cause
disqualification of a judge, that may serve as grounds for refusing to allow the amicus to file a
The discussion strayed into the question of whether the membership of a trade association
could disqualify a judge if the association participates as an amicus. Mr. Munford suggested that
26.1 was aimed at parties and that a national trade association with hundreds of members could
not be expected to list all of its members every time it files an amicus brief.
Judge Boggs asked whether the recusal rules are applied with respect to an amicus given
that the rules are aimed at disqualifying a judge with a financial interest in the outcome of the
case. Judge Ripple and Chief Judge Sloviter said that a number of judges in their circuits treat
the rules as applicable even though a judge may have no direct financial stake because of the
appearance of impropriety that may arise if a judge sits on a case and the judge has an interest in
an amicus or one of its affiliates. Of course, there is a difference between the participation of a
large association such as the National Association of Manufacturers and the participation of a
single corporation or small group of corporations. It is difficult to say that it would be improper
for a judge to sit if N.A.M. is the amicus and if the judge owns stock in any U.S. manufacturing
corporation. If however, the amicus group is composed of ten corporations and the judge owns
stock in one or two of them, the appearance of impropriety may well arise.
Mr. Munford suggested that the issue be delayed until the Committee discusses the
"affiliates" issue under 26.1. Chief Judge Sloviter suggested that the Advisory Committee
should check with the Ethics Committee. She believes that a ruling has been issued on the
question of whether the participation of an amicus may disqualify a judge.
Judge Hall stated that the Ninth Circuit believes that an amicus may disqualify a judge
and for that reason she believes it is important to require the amicus to provide a certificate of
interest with the brief.
Mr. Spaniol said that Sup. Ct. R. 29.1 exempts amicus briefs from the disclosure
requirement. The comment, however, prompted discussion about whether the Supreme Court is
required by law to obtain disclosure statements.
Mr. Munford moved that Judge Logan's motion be amended to delete the corporate
disclosure requirement for amicus briefs. The motion died for want of a second. Judge Logan
stated that he failed to second the motion because Rule 26.1 requires the naming only of parent
corporations, subsidiaries, and affiliates. In his opinion the language of the rule does not require
the naming of the members of a large trade association.
Judge Ripple called for a vote on Judge Logan's motion that the draft be amended to
positively state the items that must be included in an amicus brief. The motion passed
Mr. Levy stated that the discussion revealed a difference of opinion with regard to the
application of Rule 26.1 to trade associations. Judge Ripple asked the Reporter to add a
discussion of that issue to the Committee's docket.
5. Amicus Brief in Support of a Petition for Rehearing
The last issue discussed with respect to amicus briefs was whether a court should accept
an amicus brief offered in support of a petition for rehearing. Judge Ripple indicated that his
circuit receives such briefs. Little attention may be paid to a case until the court enters its
judgment. Thereafter, an amicus may join the party in trying to explain the error of the decision.
Judge Hall asked whether the question should be limited to petitions for rehearing or also
should include requests for an in banc hearing or rehearing. Judge Ripple responded that he
hoped the Committee would address all such issues.
Mr. Munford suggested amending the draft rule so that it uses the language in the current
rule requiring an amicus to file within the time allowed the party supported. There would be no
express reference to the party's principal brief or to petitions for rehearing, etc. but the language
would be broad enough to encompass all such instances. He further suggested that it is
unnecessary to discuss instances in which an amicus supports neither party. Several judges
responded, however, that there many instances in which an amicus takes no position as to
affirmance. Mr. Munford therefore suggested that the sentence be amended to state that in such
instances the amicus must file within the time allowed the appellant -- dropping the reference to
the appellant's principal brief.
Judge Logan expressed hesitation to specifically mention that an amicus brief may be
filed in support of a petition for rehearing. He feared that any such statement would encourage
the filing of such briefs. On the other hand, he expressed support for Mr. Munford's language
changes that would make the rule broad enough to cover the timing of such briefs. Judge Ripple
suggested that a vote be taken on whether specific mention should be made of the possibility of
filing an amicus brief in support of a petition for rehearing, etc. Five members supported that
approach and two members opposed it.
Mr. Munford suggested that the language of lines 33 and 34 should be amended in
accordance with his earlier suggestion. The Committee agreed. With regard to the second
sentence, Mr. Munford noted that there could be difficulty with simply requiring a party that
does not support either party to file within the time allowed the appellant. In some situations
there is no appellant; for example, in a petition for mandamus. He suggested that the amicus be
required to file within the time allowed the appellant or petitioner.
Mr. Froeb asked whether an amicus brief must confine itself to the record. He said that in
his experience an amicus often attempts to raise facts that are not part of the record. He asked
whether the rule should deter or prohibit the introduction of matters that are not part of the
Judge Ripple pointed out that the difference between constitutional facts and adjudicative
facts can become quite blurry with an amicus. Discussion of background or contextual facts is
permissible but that an amicus should not be talking about adjudicative facts that are part of the
cause of action.
Judge Keeton expressed strong hesitation to address the issue. He said that the typical,
useful amicus brief deals with constitutional facts or legislative facts -- facts about the economic,
social, or political realities that have a bearing on the law making decision. It would be a very
complex area to deal with in a rule.
Because she would not be able to attend the meeting the next day and was concluding her
term as liaison to the Committee, Chief Judge Sloviter thanked the Committee for its hospitality
and Judge Ripple thanked her for her valuable participation.
Judge Keeton distributed documents for the Committee's consideration in connection
with the discussion it would have the following morning concerning facsimile filing.
The meeting adjourned at 5:00 p.m..
The meeting resumed at 8:30 a.m. on September 23rd in rooms B & C of the Education
Center of the Federal Judiciary Building.
Judge Ripple opened the morning by outlining the matters he hoped to discuss during the
remainder of the meeting. He indicated that the first matter for discussion would be the special
assignment from the Judicial Conference dealing with filing by facsimile. Upon completion of
that discussion, he stated that he would take up items 91-25 and 92-4, both of which deal with
Rule 35 and suggestions for rehearing in banc. Because the Committee had already approved
some changes to Rule 35, Judge Ripple thought it would be desirable to complete all other items
bearing on the in banc rule so that all changes could move forward together. Judge Ripple
indicated that he would reserve some time at the end of the meeting for the Reporter to discuss
the items listed as "Report Items" on the agenda.
Judge Ripple then asked Judge Keeton to begin the discussion of the facsimile filing
Judge Keeton explained the need to get a proposal ready, if possible, for consideration by
the Judicial Conference in September 1994. That meant that if any rule amendments are needed,
they must be approved by the Advisory Committee at the September meeting and published by
November 1 along with the rules approved by the Standing Committee at its June meeting.
Judge Keeton stated that approval for publication of any proposed rule changes bearing on
facsimile filing would likely be handled by the Standing Committee by telephone.
In order to facilitate that process Judge Keeton had prepared and distributed the previous
evening a redraft of existing Rule 25. He worked from the draft of the rule just approved by the
Judicial Conference for submission to the Supreme Court. Judge Keeton's redraft read as
Rule 25. Filing and Service.
(1) A paper required or permitted to be filed in a court of appeals must be filed with the clerk. Filing may be accomplished
(A) by mail addressed to the clerk;
(B) by facsimile transmission, by means meeting the standards then in effect under Guidelines for Receiving Facsimile Transmissions promulgated by the Judicial Conference of the United States, if the court of appeals by local rule or by order in a particular case has approved facsimile transmission; or
(C) by filing with a single judge, with that judge's permission, a motion that may be granted by a single judge, in which event the judge must note thereon the filing date and give it to the clerk.
(2) Filing is not timely unless the paper is received by the clerk or the single judge, or the facsimile transmission is received by the clerk, within the time fixed for filing, except that briefs and appendices are treated as filed on the date of mailing if the most expeditious form of delivery by mail, other than special delivery, is used.
(3) A paper filed by an inmate confined in an institution is timely filed if deposited in the institution's internal mail system on or before the last day for filing. Timely filing of a paper by an inmate confined in an institution may be shown by a notarized statement or declaration (in compliance with 28 U.S.C. § 1746) setting forth the date of deposit and stating that first-class postage has been prepaid.
(4) The clerk must not refuse to accept for filing any paper presented for that
purposed solely because it is not presented in proper form as required by
these rules or by any local rule or practice.
(c) Manner of Service. Service may be personal, by mail, or by facsimile transmission if permitted by the court of appeals by local rule or by order in a particular case. Personal service is complete on delivery of a copy to a clerk or other responsible person at the office of counsel. Service by mail is complete on mailing. Service by facsimile transmission is complete upon electronic acknowledgement of receipt by means meeting the standards then in effect under Guidelines for Receiving Facsimile Transmissions promulgated by the Judicial Conference of the United States.
(d) Proof of Service.
[insert, in line 43 of the draft approved by the Judicial Conference in September
1993, after "Mailing" the words "or facsimile transmission," and in line 44, after
"mailed" the words "or transmitted."]
Judge Keeton indicated that he would ask the Committee to focus first on the redraft of
Rule 25. He noted, however, that the Committee also must look at the Guidelines for Facsimile
Filing that were presented to the Judicial Conference. Judge Keeton stated his belief that the
Guidelines need further revision.
Judge Keeton indicated that he would like the Committee to consider whether there are
any parts of the Guidelines that should be included in the rules. He stated that it would be
desirable to avoid inclusion of material in the rules that does not need to be there. Inclusion in
the rules of technical standards governing the types of machinery to be used, etc. would be
especially undesirable because amendment of the rules is both cumbersome and time consuming
and it would be difficult for the rules to keep pace with technological advancements.
Judge Keeton indicated that authorizing the Judicial Conference to amend the Guidelines
without review by the Supreme Court and Congress presents an issue similar to the one the
Committee previously discussed concerning delegation to the Administrative Office of printing
standards. He indicated, however, that he believes there is a strong argument that establishing
technical standards in Guidelines promulgated by the Judicial Conference is not inconsistent with
the Rules Enabling Act. Judge Keeton stated, however, that the Committee might want to
consider that issue.
In addition to any question about the Rules Enabling Act, Judge Keeton, said that he also
was concerned about accessibility of the Guidelines. He indicated that he would like the
Guidelines to be printed for public comment at the same time as the proposed rule amendments.
He also believes that the Guidelines should be transmitted to both the Supreme Court and
Congress. He further suggested that they might be printed as an appendix to the rules or in the
As a last matter, Judge Keeton suggested that he would like to further amend his redraft
of the Guidelines. His original objective had been to remove any mention of "filing" from the
Guidelines because he believes that all "filing" rules should be contained in the rules. As a
consequence, he had changed the title from "Guidelines for Filing by Facsimile" to "Guidelines
for Receiving by Facsimile." He indicated that he thought a better title would be "Guidelines for
For clarification Judge Logan asked about the origin of the Guidelines. Judge Keeton
responded that the original draft had been prepared by the Court Administration Committee.
Judge Logan then asked whether it would be appropriate for a rules committee to suggest
changes in the Guidelines. Judge Keeton responded that he believes such recommendations
would be appropriate. In fact, the draft from which he was working was altered last summer by a
working group composed of the advisory committee reporters who redrafted the Guidelines in an
attempt to minimize the conflicts between the Guidelines and the rules. Judge Keeton reported
that there had been some sentiment at the Standing Committee's June meeting to simply
disapprove the draft Guidelines because of the conflicts between the Guidelines and the rules.
Judge Keeton had opposed a simple rejection of the Guidelines because he feared that there
would be members of the Judicial Conference who favored getting the guidelines in place and
might adopt them as originally drafted rather than suffer any further delay. Therefore, he had
organized the drafting subgroup during the Standing Committee meeting.
Discussion followed concerning possible problems with the Rules Enabling Act. Judge
Keeton believes that delegation by rule to the Judicial Conference of power to fashion guidelines
differs from the Committee's earlier problems with delegation of printing standards. In this
instance, the Judicial Conference has already promulgated Guidelines. Those Guidelines permit
the courts to accept facsimile filings in emergencies. The current proposal is, therefore, simply
to amend those Guidelines. So, the Conference has already taken an affirmative position on its
power to promulgate guidelines.
With regard to the proposed amendments to Rule 25, Judge Keeton suggested that there be another change to Rule 25(e) to accommodate the fact that parties are often required to provide multiple copies of the document filed. Judge Keeton suggested adding the following language to Rule 25(e):
"and, when facsimile transmission is permitted, may allow extra copies to be presented within a reasonable time after the facsimile transmission is received."
That addition would allow a clerk to refuse to receive more than one copy by facsimile
transmission and require that the party follow the facsimile transmission with hard copies.
Judge Logan asked whether the style subcommittee would be able to review the draft
rules before publication. Judge Keeton stated that Mr. Brian Garner and the style subcommittee
would be occupied with the Civil Rules Committee until after that committee's meeting in late
October. Therefore, the amendments would be prepared for publication without review by the
Having finished its preliminary discussion, the Committee turned its attention to the task
of approving some version of Rule 25 and of the Guidelines.
2. Guidelines vs. Rules
Judge Ripple discussed the importance of the distinction between information that should
be in the Guidelines versus that which should be included the national rules. Judge Ripple
emphasized that he would like to keep everything that a practitioner needs to know in the rules.
In contrast, he stated that provisions regulating court conduct need not be in the rules and,
therefore, could appropriately be included in the Guidelines. Judge Ripple questioned whether
the material in parts V, VI, and VII of the draft Guidelines should be there. He stated that a
requirement that certain items be included on a cover sheet is so basic that it should be found in
either the national or local rules.
Judge Keeton suggested the possibility that some of the information in the Guidelines
could be placed in a form that would follow the rules. Mr. Munford suggested that placing the
Guidelines in an appendix to the rules might also serve the same purpose. Judge Keeton
indicated, however, that the drawback of either approach is that amendment of either a form or
appendix requires the full procedures under the Rules Enabling Act.
Judge Williams noted that if everything a practitioner needs to know should be in the
rules rather than the Guidelines, then even all the technical standards in part III of the draft
Guidelines would need to be in the rules.
Mr. Munford pointed out that not all information that practitioners need is included in the
rules. With regard to the fee for filing a notice of appeal, the rules simply refer to the statute
setting the fee. The amount of the fee is not included in the rules. Judge Keeton stated that the
statute actually does not set the fee; the statute authorizes the Judicial Conference to set the fee
schedule and, in fact, the fee schedule set by the Conference is not as readily accessible as he
would like. Parties and lawyers who are unfamiliar with the fee schedule usually receive the
information from the clerk's office.
Judge Ripple argued that the last sentence of existing Rule 25(a) means that the technical
standards need not be included in the rule. That sentence states: "A court of appeals may, by
local rule, permit papers to be filed by facsimile or other electronic means, provided such means
are authorized by and consistent with standards established by the Judicial Conference of the
United States." That sentence was approved by Congress and has the force and effect of law.
The intent of that sentence was to authorize the Judicial Conference to establish technical
standards. Further, the technical standards do not impact the daily practice of law. Rather, a
practitioner acquiring a piece of machinery has a one time question about whether the equipment
meets the federal standards. Judge Ripple argued that parts V, VI, VII, and VIII(1) & (2) should
be in the rules.
Mr. Froeb and Mr. Munford indicated agreement with Judge Ripple's basic principle that
directions to practitioners should be easily accessible. Mr. Froeb asked, however, whether it is
important that all the information enumerated in part VII of the Guidelines be on the cover page
of a fax transmission. Mr. Strubbe replied that the court probably needs all of that information.
Judge Keeton asked whether it is truly necessary that all of the information be included on the
fax cover sheet as distinguished from the rest of the document. Judge Keeton suggested that
perhaps all of part VII could be omitted.
Judge Logan suggested that both parts V (Original Signature) and VI (Transmission
Record) should be included in the national rules but that perhaps all other matters could be
covered by local rules.
Mr. Kopp suggested breaking the whole issue down into two tracks. The courts that are
interested in permitting fax filings on a routine basis need guidelines so that they can do so. As
soon as there are guidelines those courts can proceed by local rule. While there may be some
need for uniformity in this area as in others, the only matter as to which there is urgency is the
technical standards. Therefore, he suggested that the rules process may proceed to develop
uniform national rules but not on such a fast track as the guidelines.
Judge Keeton responded that it would be consistent with the objectives of the Court
Administration Committee to have a national rule that authorizes local facsimile filing rules. He
expressed continuing concern, however, about the possibility that there might be an intervening
standard (the Guidelines) that would restrict a local court's authority to develop such rules. In
other words, there remains the possibility that even if a national rule grants broad authority to
fashion local rules, the Guidelines could be adopted and narrow the scope of local rulemaking
authority on the topic.
Judge Keeton stated that it might be possible to retain parts I, II, and III of the Guidelines,
along with Rule 25(a)(1)(B), and recommend that the rest of the matters currently covered by
other parts of the Guidelines could be referred to the local courts for adoption as local rules.
Judge Logan agreed. Because Rule 25(a) requires a local rule, it can be the responsibility
of the circuit adopting such a rule to include in it all information needed by a lawyer who files by
fax. He suggested, therefore, that the national rule need do nothing more than authorize local
rules permitting fax filing. Eventually the Committee may feel ready to establish national
standards but because of the newness of the entire process this may be an appropriate topic for
Judge Keeton suggested that if the Committee favors such an approach it should make a
recommendation as to the limitations of the guidelines. That is, the Committee should identify
that material that it believes is appropriate for the Guidelines and recommend that all other
matters be covered either by national or local rule.
Judge Ripple then stated that the first question the Committee should address is whether,
as a matter of principle, matters that affect the conduct of practitioners should be in rules rather
than the Guidelines. If the vote is that such matters should be incorporated in the rules, then it
would be appropriate to discuss whether they should be in the national rules or local rules. If the
vote is that it is not necessary to include practitioner related directions in rules, then the
Committee could discuss simple coordination of all the information.
To move the discussion along Judge Ripple moved that all matters concerning the
conduct of litigation should be in either national or local rules. Judge Logan seconded the
motion. Judge Williams asked whether the motion was subject to Judge Ripple's earlier caveat
on technical requirements such as the type of machines. Judge Ripple replied affirmatively.
Mr. Kopp voiced strong agreement with the motion. He pointed to the original signature
provision in the proposed Guidelines. That provision says that if the original signed document is
not filed, it must be maintained until the litigation concludes. Mr. Kopp stated that any such
requirement should be as accessible as possible and, therefore, should be included in a rule.
Mr. Froeb agreed in principle but argued that there are many matters that practitioners
know intuitively and it may not be necessary to have all of the detailed directions currently found
in the Guidelines.
The discussion having concluded, Judge Ripple called for a vote on the motion to include
directions to practitioners in rules rather than the Guidelines. The motion passed unanimously.
3. National Rule vs. Local Rules
Following the decision-making matrix he had announced earlier, Judge Ripple stated that the next question was whether any necessary directions to practitioners should be in national or local rules. He suggested that Judge Keeton's draft of Rule 25 serve as a starting point and he specifically asked the Committee to focus on draft Rule 25(a)(1)(B). Judge Ripple noted that the language of that subparagraph differs from the corollary provision in current Rule 25(a) and he asked Judge Keeton whether he intended to accomplish something different. Judge Keeton stated that his intent was the same but that he had simply attempted to restructure the rule in the manner of the style subcommittee. Given that understanding, Judge Ripple suggested that the Committee discuss whether some matters should be governed by national rule and whether others (and which ones) could be subject to local variation.
On the basis of prior discussion, Judge Ripple suggested that one possibility would be to recommend that:
1. the national rules simply continue to authorize local rules;
2. the Guidelines include only parts I, II, and III of the current draft guidelines (i.e., all practitioner conduct should be excised from the Guidelines); and
3. local rules be used to regulate practitioner conduct.
Mr. Froeb moved that approach; the motion was seconded by Judge Hall.
Judge Hall suggested that the Committee might expedite the local rules process by
sending the circuits a model rule. The suggestion was taken as a friendly amendment to the
Judge Logan expressed support for the motion. He focused upon the original signature
requirement. While he had originally thought that such a requirement should be in the national
rule, upon reflection he had changed his mind. Because it is necessary to have a local rule
authorizing facsimile filing, he thought that it would not be inappropriate for some courts to say
that a person who files by fax must file the original by next mail while others might be content to
allow the party to simply retain the original until the conclusion of the litigation.
Vote was taken on the motion and it passed unanimously. Judge Ripple summarized the
Committee's understanding of that vote as follows: 1) the question of practitioner conduct with
respect to facsimile filing should be covered by local rule, at least for the near future; 2) the
Committee adopted that approach because local experimentation would provide an opportunity
to perfect the local rules before going to a national rule; and 3) the Committee would prepare a
model rule or checklist to be used by the circuits in the development of their local rules.
4. The Guidelines
The discussion then turned to the draft Guidelines and an effort to identify those
provisions that should remain in the Guidelines and those that should be excised.
Upon examining part I, Mr. Strubbe suggested that part I paragraph (3) might arguably govern attorney conduct and therefore should be excised from the Guidelines. That provision is entitled "Prohibited Documents" and provides:
Papers may not be sent by facsimile transmission to the court for filing unless the court
has expressly authorized such transmissions by local rule or by order in a particular case.
In addition, bankruptcy petitions and schedules may not be sent by facsimile
Judge Keeton offered a proposed modification of that provision which he thought could make its retention consistent with the Committee's intent:
A communication by facsimile transmission must not be treated by a clerk as received for
filing unless the court has expressly authorized facsimile transmission by local rule or by
order in a particular case.
Judge Ripple noted that even the amended provision comes close to the line that the
Committee had decided to draw. If the effort is to keep the Guidelines fairly stark, perhaps this
could be eliminated from them.
Mr. Munford stated that he believed that any such provision would conflict with the Rule
25 provision prohibiting a clerk from refusing to file a document because it is not in proper form.
Judge Ripple moved that part I paragraph (3) be deleted from the Guidelines. Judge Logan seconded the motion. It passed unanimously.
The discussion moved to part II of the Guidelines. Judge Keeton suggested that his handwritten material be substituted for part II paragraph (2). Judge Keeton's proposed part II paragraph (2) would define "Receive by facsimile" as follows:
(2) "receive by facsimile" means a clerk's receiving by one or the other of the following means:
(A) receiving by a facsimile machine in the clerk's office of a facsimile transmission of a document;
(B) receiving in the clerk's office a printed copy of a document sent by facsimile transmission to a facsimile machine located outside the clerk's office."
Judge Keeton indicated that the latter provision would allow a local rule to receive a document
lacking an original signature because it was sent to a fax machine outside the clerk's office and
that document was presented for filing.
Mr. Munford asked whether the provision for documents received by a facsimile machine
located outside the clerk's office has anything to do with facsimile filing. He stated that in his
view it makes no difference whether a document has a facsimile of a signature or an original
signature. Mr. Munford further indicated that in his opinion the clerk would not be free to refuse
a document under the new provision in Rule 25 prohibiting a clerk from refusing to file a
document because it fails to comply with a requirement of form. The Committee discussed the
issue and there was clear division of opinion. Judge Ripple concluded that the signature question
clearly must be addressed in the model local rule.
Judge Keeton's redraft of part II subparagraph (2)(B) was amended by deleting the words
"printed copy of a" so that it read, "receiving in the clerk's office a document sent by facsimile
transmission to a facsimile machine located outside the clerk's office." Having approved that
change, part II was unanimously approved for retention in the Guidelines.
The Committee then turned its attention to part III of the Guidelines, the technical
requirements provisions. Judge Logan noted that it governs sending as well as court receipt of
facsimile transmissions. Judge Ripple noted once again his belief that Rule 25 currently
authorizes the Judicial Conference to establish such technical standards and that Judge Keeton's
redraft of Rule 25(a)(1)(B) retains that provision.
Because Committee attention had returned to Rule 25, Judge Keeton noted that if the title
of the Guidelines is changed to Guidelines for Facsimile Transmission then there would need to
be a language change in Rule 25(a)(1)(B). In the second line of that paragraph the word
"receiving" should be stricken as well as the "s" at the end of the word transmission in the third
line. The same changes were approved in 25(c).
Mr. Kopp asked whether the technical requirements in Part III should apply to
transmission to an outside agency as well as those directly to a court. The Reporter stated that
clearly some of them should apply even to the outside agency because they affect the quality of
the document received. The Committee concluded that the provisions of part III should be
retained in the Guidelines.
The Committee considered part IV governing resource availability. Part IV indicates that
courts will not receive additional personnel or funds for equipment due to adoption of a fax filing
policy. Because that part of the Guidelines is so clearly addressed to the courts and not to
practitioners, there was agreement that it belongs in the Guidelines.
Judge Ripple moved that part V -- dealing with original signatures -- be made part of the
model rule because it deals with practitioner conduct; Judge Boggs seconded the motion. The
motion passed unanimously.
For clarification, Mr. Strubbe asked whether the rules should require, as the Guidelines
suggest, that in the absence of a local rule authorizing facsimile transmissions on a regular basis,
a court order would be necessary to permit facsimile filing. Mr. Strubbe noted that in his court
such requests are currently handled by the clerk's office rather than by a judge. Judge Ripple
suggested that when preparing a model local rule, that issue will need to be addressed, but that
the Committee's current concern was simply to determine which material should remain in the
Guidelines and which should be excised.
Judge Ripple moved that part VI -- dealing with transmission records -- should be deleted
from the Guidelines and considered as part of the rulemaking process. The motion was seconded
by Mr. Munford. Mr. Froeb suggested that such a requirement would be unnecessary even in the
rules. The motion passed unanimously.
Judge Ripple then moved that part VII -- dealing with cover sheets -- should be deleted
from the Guidelines and made part of the rulemaking process; Judge Hall seconded the motion.
It passed unanimously.
The Committee focused upon part VIII, dealing with collection of filing fees and
authorizing additional fees for facsimile filing. Mr. McCabe pointed out that the pertinent
statutes, §§ 1913, 1914, 1915, and 1930, say that the Judicial Conference shall prescribe all fees
and the clerks may only charge fees authorized by the Judicial Conference. Judge Keeton
concluded that the statutory directives make it unnecessary to include the provisions in part VIII
in either the national or local rules. Judge Ripple moved that part VIII be left intact and that it
be retained in the guidelines; the motion was seconded and passed unanimously.
At 10:30 a.m. the Committee took a 15 minute break.
Judge Ripple continued the discussion of facsimile filing by noting that although the
Guidelines make no mention of "service" by fax, some members of the Judicial Conference
anticipated that the rules would address the question of service by facsimile. Judge Ripple
suggested that in light of the decisions already made by the Advisory Committee, it would be
consistent to let local rules govern service by facsimile, at least in the first instance. He asked the
Committee, therefore, to turn to Judge Keeton's draft of Rule 25(c) and suggested that the first
sentence be adopted. "Service may be personal,
or by mail, or by facsimile transmission if
permitted by the court of appeals by local rule or by order in a particular case." The last sentence
of Judge Keeton's draft of that paragraph was considered unnecessary. Judge Keeton explained
that he had drafted the last sentence before the Committee's decision to omit from the Guidelines
any matter bearing on an attorney's conduct.
Judge Ripple moved adoption of the first amended sentence. It was seconded by Judge
Hall and unanimously approved.
Judge Logan volunteered to head the subcommittee to draft a model local rule. He
expressed the desire to complete the work within the next month. He asked the Reporter, Judge
Hall, and Judge Boggs to join him on the subcommittee.
Judge Logan asked whether the Committee had adopted the change in 25(c) and the
additional sentence in 25(e). Judge Keeton stated that in light of the items taken out of the
Guidelines, there were no substantive changes made by his draft except the one sentence in 25(c)
dealing with service. Therefore, it was concluded that only the one sentence change in Rule
25(c) needed to go out for publication.
At the conclusion of the discussion of the fax filing issues there was approximately one
hour remaining in the meeting time. Judge Ripple suggested that the Committee spend that time
discussing Item 91-25, regarding the contents of a suggestion for rehearing in banc, and Item 92-4, adding intercircuit conflict as a basis for granting hearing or rehearing in banc, because the
Committee had recently worked on other amendments to the in banc rule, Rule 35.
The Local Rules Project recommended that the Advisory Committee examine local rules adopted by nine circuits which outline the form of a suggestion for in banc determination. When responding to the Local Rules Project, the Fifth Circuit recommended that the Advisory Committee consider adoption of 5th Cir. R. 35. The Advisory Committee initially discussed both suggestions at its December 1991 meeting. At that time the Committee expressed no strong interest in specifying the contents of a suggestion for in banc consideration. Since that time, however, two members of the Advisory Committee had indicated interest in the earlier proposals.
The Reporter began the discussion by explaining the two drafts presented in her memorandum. Draft one, found at page 4, involved some reorganization of the rule as well as one major substantive change in subdivision (b). The heart of the draft was a new requirement that a petition for in banc review must begin with a statement demonstrating that the case meets the criteria for in banc consideration. It said that a petition must begin with a statement that either
(1) the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed (citations to the conflicting case or cases is required) and that consideration by the full court is necessary to secure and maintain uniformity of the court's decisions; or
(2) the appeal involves one or more questions of exceptional importance; each
such question must be concisely stated, preferably in a single sentence.
Draft two, beginning at page seven of the memorandum, would require the same
statement demonstrating that the case is appropriate for in banc consideration and also added a
list of items that must be included in any such petition, for example a corporate disclosure
statement, statements of the issues and of the case. It also included a length limitation applicable
to all such petitions.
Judge Ripple suggested that the Committee first consider whether it is interested in
making the sort of changes suggested in either of the Reporter's drafts and then address the
Solicitor General's suggestion.
Judge Logan expressed a preference for draft one if any changes are to be made. He
thinks that the detail specified in draft two is unnecessary. He questioned, however, the need to
make any changes. Mr. Munford agreed that the level of detail in draft two is unnecessary.
Judge Hall said that she likes draft one but would like to add to it the page limitation in
Consensus developed to concentrate on draft one but to include the page limitation in
With regard to moving the paragraph dealing with length from draft two, it was suggested
that subdivision (b) of draft one be structured in the same way as draft two. That is, that
subdivision (b) should have two paragraphs: paragraph (1) dealing with the contents of the
petition and paragraph (2) dealing with length. It was further suggested that if paragraph (b)(2)
(lines 34-38) were moved to draft one, that it be shortened so that it ends after the words "15
pages" on line 35. Several judges indicated, however, that they find a table of contents and
authorities important in such petitions and that those items should not count against the page
Judge Ripple indicated that the intent of a limitation on length is to limit the number of
pages that a judge must read and consider in deciding the case. He said that the items excepted
from the page limit in the draft generally are important to have in a petition for rehearing in banc
and help a judge to understand and organize the material in the text. Judge Logan asked whether
it would be sufficient to limit the petition to 15 pages "of text." He feared that the explicit
exceptions in the draft for corporate disclosure statements, tables of contents, and table of
authorities would raise an inference that a petition should contain those items and it is not the
practice in the Tenth Circuit to include them.
Mr. Munford suggested using the language in the petition for rehearing rule, Rule 40(b).
The limitation does not have any exclusions. It says:
The petition shall be in a form prescribed by Rule 32(a), and copies shall be served and
filed as prescribed by Rule 31(b) for the service and filing of briefs. Except by
permission of the court, or as specified by local rule of the court of appeals, a petition for
rehearing shall not exceed 15 pages.
The possibility of including no page limit in Rule 35 was also considered on the theory
that Rule 40(b) would govern because a request for in banc consideration is, in 99% of the cases,
a petition for rehearing. (The other 1% are those cases in which there is a request that the initial
hearing be in banc.)
Because Rule 40 focuses heavily on petition for panel rehearing, both Mr. Munford and
Judge Williams stated that there should be a separate length limitation in Rule 35 even if it were
only a cross-reference to Rule 40(b). Mr. Munford suggested, however, that Rule 35 may need
to require a corporate disclosure statement because new judges will be participating and they
need to be informed about the parties affiliates.
Judge Ripple summarized the alternatives before the Committee as follows:
1. the page limitation provisions in draft two could be moved in their entirety to draft one;
2. a petition could be limited simply to fifteen pages;
3. a petition could be limited to fifteen pages of text; or
4. the length provision could simply cross-reference or be modeled upon Rule 40(b).
Judge Ripple called for a straw vote indicating each member's preference. Alternative one received one vote; alternatives two and three each received two votes; and alternative four received four votes.
After additional discussion, a final vote was taken on the options receiving the most support during the discussion, options three and four. On final vote, a limitation to fifteen pages of text received four votes, and a provision modeled on Rule 40(b) received five votes. The provision approved specifically stated that
Except by permission of the court, or as specified by local rule of the court of appeals, a
petition for hearing or rehearing in banc may not exceed 15 pages excluding those pages
excluded by Rule 28(g).
The Committee then addressed the Solicitor General's suggestion that intercircuit conflict
should be made an explicit ground for granting an in banc hearing.
Mr. Kopp recounted the history of the proposal which has been narrowed since it was
originally submitted by Solicitor General Starr and which, in its present form, has the support of
current Solicitor General Days. He noted that four circuits already have rules or internal
operating procedures that recognize a conflict with another circuit as a legitimate basis for
granting a rehearing in banc. Existing Rule 35(a) provides that a matter of "exceptional
importance" is grounds for a rehearing in banc and that language allows a petitioner to argue that
intercircuit conflict raises an issue to the level of exceptional importance. Mr. Kopp noted that
the proposal would not require a court to grant an in banc hearing whenever there is an
intercircuit conflict. It would simply make it clear that the existence of such a conflict is an
appropriate consideration weighing in favor of granting in banc review and may help a lawyer to
focus his or her argument.
Mr. Kopp also used broader philosophical arguments to support the proposal. The
existence of an intercircuit conflict means that federal law is being interpreted differently in
different parts of the country simply because there is an administrative division of the federal
courts into circuits. Although the Supreme Court is the institution intended to resolve such
conflicts, given the limited ability of the Supreme Court to grant certiorari there are conflicts
among the circuits that are not being resolved by the Supreme Court. In an era when significant
structural reforms, such as the intercircuit tribunal, are being proposed to deal with this problem,
Mr. Kopp argued that it would be better for the existing courts to use every device they have at
their disposal to address the problem before there is consideration of major restructuring.
Mr. Kopp moved that the Solicitor's proposal be incorporated in draft one. Judge Ripple
seconded the motion.
Judge Logan indicated that he would include a reference to intercircuit conflict in (b)(2) -
that an appeal involving one or more questions of exceptional importance may be appropriate for
in banc hearing. He indicated, however, that he would not include such a reference in (b)(1) -
that when a panel decision is in conflict with a decision of the U.S. Supreme Court or of the court
to which the appeal is addressed an in banc rehearing is appropriate. The panel issuing a
decision, obviously does not believe that it conflicts with holdings of the United States Supreme
Court or of the circuit, because it would be inappropriate to issue such a decision. However, a
panel may enter a decision in direct conflict with a decision of another circuit. Because the
former are grey and the latter may be clear, Judge Logan stated that he feared inclusion of a
reference in (b)(1) to panel decisions in conflict with decisions in other circuits might give rise to
an inference that an in banc hearing must be granted whenever a panel decision conflicts with the
opinion of another circuit.
Judge Ripple expressed general support for the proposal but agreed with Judge Logan's
reservation. Mr. Kopp emphasized that the draft was not intended to make the granting of a
hearing in banc mandatory.
Because the draft had been prepared prior to the Item 91-24 drafts, it was not integrated
with those new drafts. The Reporter asked Mr. Kopp for clarification as to whether the proposal
was to amend Rule 35(a) or (b). Mr. Kopp responded that the proposal is to amend 35(a) but that
if it were accepted, some adjustments would need to be made to 35(b). He emphasized again that
the proposed amendment to 35(a) was not intended to create any category of mandatory in banc
review, and that any such implication should be avoided.
Judge Williams suggested that intercircuit conflict might be treated as a separate category
of cases as to which in banc review would be appropriate.
Judge Ripple indicated that there seemed to be a consensus that the Rule should include some reference to intercircuit conflict as grounds for granting rehearing in banc. Given the late hour and the fact that the Committee had decided upon a new draft of Rule 35, he suggested that the Committee take a vote in principle on the suggestion and ask the Reporter to work out the language for consideration at the next meeting. Judge Boggs so moved and Judge Hall seconded the motion. The motion passed unanimously.
Mr. Strubbe indicated that the caption to (a) probably should be changed from "When
Hearing or Rehearing in Banc Will Be Ordered" to "When Hearing or Rehearing in Banc May
Be Ordered." Judge Ripple also suggested that on page 6, line 40 probably also needs revision.
The provision that "a vote need not be taken to determine whether the cause will be heard or
reheard in banc unless a judge requests a vote" could permit a senior judge or a judge sitting by
designation to call for a vote on a rehearing in banc.
The Reporter noted that proposed amendments to Rule 35 were forwarded to the Standing
Committee last summer and are scheduled to be published this fall. She inquired whether it
would be appropriate to request that those proposals not be published at this time but be held
until these additional changes to Rule 35 are ready for publication; that would allow all changes
to be published at the same time and avoid confusion.
Mr. Rabiej stated that the Standing Committee had given the Chairman discretion to
determine the publication date of the proposed amendment so that Judge Keeton had authority to
withhold publication of any or all of the rules. Judge Keeton approved the withdrawal of the
Rule upon the request of the Advisory Committee.
The Reporter circulated the latest version of the "uniform" rules on technical amendments
and uniform numbering of local rules. She described the changes that had been made since the
last time the Advisory Committee reviewed the rules. The changes were made to conform the
appellate version to the versions approved by the Standing Committee last June. She asked that
if any members had any strong objections to any of the provisions, they contact her as soon as
possible in view of the November 1 publication date.
The Reporter also indicated that the November 1 publication packet would include a
FRAP proposal that had not been previously considered by the Advisory Committee. The
proposal conforms Rule 4(a)(4) to changes proposed in Civil Rules 52, 59, and 60. Those rules
are currently inconsistent as to whether posttrial motions must be "served" within 10 days,
"filed" within 10 days, or "served and filed" within 10 days. The Civil Rules Committee will
publish proposed amendments requiring that all ten day posttrial motions must be "filed" within
10 days. Conforming amendments to Fed. R. App. P. 4(a)(4) will also be published.
As the Committee prepared to adjourn, Judge Logan expressed his appreciation for Judge
Ripple who has served the Committee as Reporter, Member, and Chair, for fourteen or fifteen
years. Mr. Froeb was also concluding his six year term on the Committee, and Judge Logan
expressed his gratitude to him for all his work. There was a round of applause for both.
Judge Ripple wished Judge Logan good luck and thanked Mr. Rabiej for all his work.
Judge Ripple also thanked Judge Keeton for all of his support and all that he did to make the
Rules Committees run smoothly and effectively.
Carol Ann Mooney