Federal Rules of Appellate Procedure Tighten Word Limits and Ditch Mail Days for Electronic Service

A series of amendments to the Federal Rules of Appellate Procedure designed to lighten the burdens on appellate judges by tightening page limits and clarify due process procedures for inmates go into effect today. (Download the .pdf of the rules and redline here. Transmitted to Congress back in April, the changes affect Appellate Rules 4, 5, 21, 25, 26, 27, 28, 28.1, 29, 32, 35, and 40, Forms 1, 5, and 6, and create a new Form 7 for inmate filers and new Appendix to assist in determining the new, shorter, word limits for various filings. Notably, the rules also take away the so-called “mail days” from items served electronically. The rules also separate out procedures for amicus curiae participation at the merits stage of a case and on rehearing (more on this in a later blog post).

The biggest change for appellate practitioners is the complete shift to word limits rather than page limits for all filings prepared by a computer in appellate matters, and the tightening of word limits for briefs and other items already governed by word counts. While the rules committee recognized that counting words would be burdensome to inmates preparing handwritten or typed matters, and therefore left in place page limits for documents prepared by those methods, for the rest of us our filings must now comply with word limits. As explained in the committee notes:

The word limits were derived from the current page limits using the
assumption that one page is equivalent to 260 words.

But notably, this 260 word count is lower than the one used in previous rule changes. As the Committee Notes to Rule 28.1 points out, in 2005 the Committee had used a 280 words per page conversion, but “responding to concern about the length of briefs” has shaved 20 words per page from the conversion ratio. The Committee then applied this new standard to existing word counts:

Principal Brief: 13,000 words (formerly 14,000)
Reply Brief: 6,500 words (formerly 7,000)

To ensure that everyone is counting the same words, the amendments createed a new 32(f) to clarify what is excluded from the word count, deleting the former Rule 32(a)(7)(B)(iii). Don’t worry about your words in the following sections of your brief:

  • cover page
  • corporate disclosure statement
  • table of contents
  • table of citations
  • statement regarding oral argument
  • any addendum containing statutes, rules, or regulations
  • certificates of counsel
  • signature block
  • proof of service
  • any other item excluded by these rules or local rules
  • A certificate of compliance with these type-volume standards is required on most filings under new Rule 32(g) — it’s not much different than the old certificate, but it is located in a different subdivision of the rule now, so be sure to update your form briefs to make sure you are citing the correct rule in your certification and follow the updated Form 6 as your guide. The new form is more generic than the old, as it now refers to “document” rather than “brief” and must be used on all documents with type volume limit, not just briefs.

    The rule change also makes clear that local courts have the ability by local rule to enlarge these lengths, though the regional circuits must accept briefs that meet these lengths and can’t require shorter briefs. See FRAP 32(c).

    Finally, the drafters kindly put together a handy Appendix [.pdf] that includes a chart showing all of the new type-volume limitations, so there is an easy reference to knowing all the new volume limits.

    Eleventh Circuit Amends Rules on Extensions, Disclosures, and Admissions

    Eleventh Circuit Court of Appeals, Atlanta

    Eleventh Circuit Court of Appeals, Atlanta

    The 11th Circuit will now allow a first request for extension of time of up to 14 days (instead of 7) – without having to certify pursuant to 11th Circuit Rule 26-1 that the requestor conferred with opposing counsel about the extension – which can be granted by the Clerk on a telephonic request, so long as the Court hasn’t established a written briefing schedule. 11th Cir. R. 31.2. Any request for an extension greater than 14 days still requires consultation with opposing counsel and a written motion, and the first request must still be made at least 7 days in advance.

    The Court also amended the rules for filing a Certificate of Interested Persons and Corporate Disclosure Statement (CIP) to not only require the appellant or petitioner to file a CIP within 14 days of docketing of the appeal and to complete the web-based CIP form the same day, but to require all other parties to file a response to the CIP within 14 days either indicating the CIP is correct or adding additional interested persons or entities. 11th Cir. R. 26-1(a). The rule now clearly states that failure to complete the separate web form will subject a party to delay of the case and possible sanctions. 11th Cir. R. 26-1(b); 26.1-5. The rule change also clarifies the parties that need to be identified in various kinds of cases, speaking specifically to including the identity of the victims in criminal appeals, and the debtor, creditor’s committee members, and any entity which may be affected by the decision in bankruptcy appeals. 11th Cir. R. 26.1-2. Any amendments to the CIP must be brought to the Court’s attention, both in briefs and through the web-based CIP. 11th Cir. R. 26.1-4.

    Finally, the attorney admission rules now impose a continuing obligation to notify the Court if an attorney’s status with any other bar lapses, and makes clear that attorneys applying for admission to the bar or to appear pro hac vice must be in good standing elsewhere. 11th Cir. R. 46-1, 46-4; 46-7. Renewal fees may now be paid online.

    Download a copy of the new rules here. The Court’s summary table of the rule changes is available here.

    Crisis Averted in Eleventh Circuit

    The Eleventh Circuit is no longer in a state of emergency. At the end of last year, the Chief Judge had issued General Order 41 [.pdf], which allowed appeals to be heard by panels that did not include at least 2 11th Circuit judges. On Friday, the Court rescinded that emergency via General Order 42 [.pdf]. Panels that have already heard argument or had non-argument cases submitted prior to the issuance of Order 42 will consider the appeals as submitted, but all future panels will go back to having at least 2 11th Circuit Judges on them.