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ADVISORY COMMITTEE ON APPELLATE RULES Washington, D.C. November 9, 2017 THIS PAGE INTENTIONALLY BLANK Advisory Committee on Appellate Rules, Fall 2017 Meeting 2 TABLE OF CONTENTS MEETING AGENDA…………………………………………………………………………5 TAB 1 OPENING BUSINESS 1A. TABLE OF AGENDA ITEMS…………………………………………………11 TAB 2 APPROVAL OF MINUTES 2A. DRAFT MINUTES OF MAY 2017 COMMITTEE MEETING …………………17 TAB 3 REPORT ON JUNE 2017 MEETING OF STANDING COMMITTEE 3A. REPORT BY GREGORY MAGGS REGARDING THE STANDING COMMITTEE’S ACTIONS ON THE COMMITTEE’S RECENT PROPOSALS, DATED OCTOBER 17, 2017……………………………………………………………………31 3B. EXCERPT OF THE REPORT OF THE STANDING COMMITTEE TO THE JUDICIAL CONFERENCE …………………………………………………35 3C. PROPOSED AMENDMENTS TO RULES 8, 11, 25, 26, 28, 28.1, 29, 31, 39, AND 41, AND FORMS 4 AND 7 ………………………………………………… 45 3D. PROPOSED AMENDMENTS TO RULES 3, 13, 26.1, 28, AND 32, AS PUBLISHED FOR PUBLIC COMMENT IN AUGUST 2017…………………………………83 3E. DRAFT MINUTES OF JUNE 2017 STANDING COMMITTEE MEETING ……95 TAB 4 ITEM 09-AP-B (RULE 29) 4A. MEMO BY GREGORY MAGGS REGARDING PROPOSAL TO AMEND RULE 29 TO ALLOW INDIAN TRIBES AND CITIES TO FILE AMICUS BRIEFS WITHOUT LEAVE OF COURT OR CONSENT OF PARTIES, DATED OCTOBER 13, 2017..131 4B. LETTER FROM JUDGE SUTTON TO JUDGE LYNCH DATED MAY 29, 2012...137 4C. MEMO BY CATHERINE STRUVE REGARDING ITEM 09-AP-B, DATED MARCH 28, 2012…………………………………………………………..141 4D. EXCERPT FROM THE MINUTES OF THE APRIL 2012 MEETING …………173 Advisory Committee on Appellate Rules, Fall 2017 Meeting 3 TAB 5 POTENTIAL AMENDMENTS TO RULE 5(A)(1), 21(A)(1) AND (C), 26(C), 32(F), AND 39(D)(1) REGARDING PROOF OF SERVICE 5A. MEMORANDUM BY PROFESSOR MAGGS REGARDING NEW DISCUSSION ITEM REGARDING REFERENCES TO “PROOF OF SERVICE” IN APPELLATE RULES 5(A)(1), 21(A)(1) AND (C), 26(C), 32(F), AND 39(D)(1), DATED OCTOBER 14, 2017………………………………………………………179 TAB 6 SUGGESTION FOR POSSIBLE AMENDMENT TO RULE 3(C)(1)(B) 6A. MEMORANDUM BY GREGORY MAGGS REGARDING NEW DISCUSSION ITEM REGARDING APPELLATE RULE 3(C)(1)(B) AND THE MERGER RULE, DATED OCTOBER 17, 2017………………………………………………………189 6B. MEMORANDUM BY NEAL KATYAL REGARDING APPELLATE RULE 3(C)(1)(B) AND THE MERGER RULE, DATED OCTOBER 15, 2016………191 TAB 7 SUGGESTION FOR POSSIBLE AMENDMENTS TO RULES 10, 11, AND 12 7A. MEMORANDUM BY GREGORY MAGGS REGARDING NEW DISCUSSION ITEM REGARDING ELECTRONIC RECORDS AND RULES 10, 11, AND 12, DATED OCTOBER 14, 2017……………………………………………197 7B. PROPOSED AMENDMENTS TO RULE 6……………………………………205 TAB 8 POSSIBLE AMENDMENT TO RULE 7 BASED ON CIRCUIT SPLIT ON WHETHER ATTORNEY’S FEES ARE “COSTS ON APPEAL” 8A. MEMORANDUM BY GREGORY MAGGS REGARDING NEW DISCUSSION ITEM REGARDING A CIRCUIT SPLIT ON WHETHER ATTORNEY’S FEES ARE “COSTS ON APPEAL” UNDER RULE 7, DATED OCTOBER 15, 2017……….223 8B. MEMORANDUM BY LAUREN GAILEY REGARDING WHETHER ATTORNEY’S FEES ARE “COSTS ON APPEAL” UNDER RULE 7, DATED JULY 28, 2017.. 227 Advisory Committee on Appellate Rules, Fall 2017 Meeting 4 Agenda for Fall 2017 Meeting of Advisory Committee on Appellate Rules November 8, 2017 – Washington, D.C. 1. Introductions and Opening Business 2. Approval of Minutes of May 2017 Meeting 3. Report on June 2017 Meeting of Standing Committee 4. Item 09-AP-B (Rule 29) 5. Potential Amendments to Rule 5(a)(1), 21(a)(1) and (c), 26(c), 32(f), and 39(d)(1) Regarding Proof of Service 6. Suggestion for Possible Amendment to Rule 3(c)(1)(B) 7. Suggestion for Possible Amendments to Rules 10, 11, and 12 8. Possible Amendment to Rule 7 Based on Circuit Split on Whether Attorney’s Fees are “Costs on Appeal” Advisory Committee on Appellate Rules, Fall 2017 Meeting 5 THIS PAGE INTENTIONALLY BLANK Advisory Committee on Appellate Rules, Fall 2017 Meeting 6 ADVISORY COMMITTEE ON APPELLATE RULES Chair, Advisory Committee on Appellate Rules Honorable Michael A. Chagares United States Court of Appeals United States Post Office and Courthouse Two Federal Square, Room 357 Newark, NJ 07102-3513 Reporter, Advisory Committee Professor Gregory E. Maggs on Appellate Rules The George Washington University Law School 2000 H Street, N.W. Washington DC 20052 Members, Advisory Committee Honorable Jay S. Bybee on Appellate Rules United States Court of Appeals Lloyd D. George United States Courthouse 333 Las Vegas Boulevard South, Suite 7080 Las Vegas, NV 89101-7065 Honorable Noel Francisco Solicitor General (ex officio) United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Honorable Judith L. French Ohio Supreme Court 65 South Front Street Columbus, OH 43215 Honorable Brett M. Kavanaugh United States Court of Appeals William B. Bryant United States Courthouse Annex 333 Constitution Avenue, N.W., Room 3004 Washington, DC 20001 Christopher Landau, Esq. Kirkland & Ellis LLP 655 Fifteenth Street, N.W. Washington DC 20005-5793 Honorable Stephen Joseph Murphy III United States District Court Theodore Levin United States Courthouse 231 West Lafayette Boulevard, Room 235 Detroit, MI 48226 Effective: October 1, 2017 Advisory Committee on Appellate Rules Page 1 Revised: October 1, 2017 Advisory Committee on Appellate Rules, Fall 2017 Meeting 7 Members, Advisory Committee Professor Stephen E. Sachs on Appellate Rules (cont’d) Duke Law School 210 Science Drive Box 90360 Durham, NC 27708-0360 Danielle Spinelli, Esq. Wilmer Cutler Pickering Hale and Dorr LLP 1875 Pennsylvania Avenue, N.W. Washington DC 20006 Clerk of Court Representative, Ms. Marcia M. Waldron Advisory Committee on Appellate Rules Clerk United States Court of Appeals James A. Byrne United States Courthouse 601 Market Street, Room 21400 Philadelphia, PA 19106-1729 Liaison Members, Advisory Committee Honorable Frank Mays Hull (Standing) on Appellate Rules United States Court of Appeals Elbert P. Tuttle Court of Appeals Building 56 Forsyth Street, N.W., Room 300 Atlanta, GA 30303 Honorable Pamela Pepper (Bankruptcy) United States District Court United States Courthouse and Federal Building 517 East Wisconsin Avenue, Room 271 Milwaukee, WI 53202 Secretary, Standing Committee Rebecca A. Womeldorf and Rules Committee Chief Counsel Secretary, Committee on Rules of Practice & Procedure and Rules Committee Chief Counsel Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 7-240 Washington, DC 20544 Phone 202-502-1820 Fax 202-502-1755 [email protected] Effective: October 1, 2017 Advisory Committee on Appellate Rules Page 2 Revised: October 1, 2017 Advisory Committee on Appellate Rules, Fall 2017 Meeting 8 TAB 1 Advisory Committee on Appellate Rules, Fall 2017 Meeting 9 TAB 1A Advisory Committee on Appellate Rules, Fall 2017 Meeting 10 Advisory Committee on Appellate Rules Table of Agenda Items —May 2017 FRAP Item Proposal Source Current Status 08-AP-A Amend FRAP 3(d) concerning service of notices of Hon. Mark R. Kravitz Discussed and retained on agenda 11/08 appeal. Discussed and retained on agenda 10/15 Discussed and retained on agenda 04/16 Discussed and retained on agenda 10/16 Draft approved for submission to Standing Committee 05/17 Draft approved for publication by Standing Committee 06/17 Draft published for public comment 08/17 08-AP-R Consider amending FRAP 26.1 (corporate disclosure) Hon. Frank H. Easterbrook Discussed and retained on agenda 04/09 and the corresponding requirement in FRAP 29(c) Discussed and retained on agenda 04/14 Discussed and retained on agenda 10/14 Discussed and retained on agenda 04/15 Discussed and retained on agenda 10/15 Discussed and retained on agenda 04/16 Discussed and retained on agenda 10/16 Discussed and retained on agenda 10/16 Draft approved for submission to Standing Committee 05/17 Draft approved for publication by Standing Committee 06/17 Draft published for public comment 08/17 09-AP-B Amend FRAP 1(b) to include federally recognized Daniel I.S.J. Rey-Bear, Esq. Discussed and retained on agenda 04/09 Indian tribes within the definition of “state” Discussed and retained on agenda 11/09 Discussed and retained on agenda 04/10 Discussed and retained on agenda 10/10 Discussed and retained on agenda 10/11 Discussed and retained on agenda 04/12; Committee will revisit in 2017 11-AP-C Amend FRAP 3(d)(1) to take account of electronic filing Harvey D. Ellis, Jr., Esq. Discussed and retained on agenda 04/13 Discussed and retained on agenda 10/15 Discussed and retained on agenda 04/16 Discussed and retained on agenda 10/16 Discussed and retained on agenda 10/16 Draft approved for submission to Standing Committee 05/17 Draft approved for publication by Standing Committee 06/17 Draft published for public comment 08/17 Advisory Committee on Appellate Rules, Fall 2017 Meeting 11 2 FRAP Item Proposal Source Current Status 11-AP-D Consider changes to FRAP in light of CM/ECF Hon. Jeffrey S. Sutton Discussed and retained on agenda 10/11 Discussed and retained on agenda 09/12 Discussed and retained on agenda 04/13 Discussed and retained on agenda 04/14 Discussed and retained on agenda 10/14 Discussed and retained on agenda 04/15 Discussed and retained on agenda 10/15 Draft approved 04/16 for submission to Standing Committee Approved for publication by Standing Committee 06/16 Revised draft approved 05/17 for resubmission to Standing Committee following public comments Revised draft approved by the Standing Committee 06/17 Draft approved by the Judicial Conference and submitted to the Supreme Court 09/17 12-AP-B Consider amending FRAP Form 4's directive concerning Peter Goldberger, Esq., on Discussed and retained on agenda 09/12 institutional-account statements for IFP applicants behalf of the National Discussed and retained on agenda 10/15 Association of Criminal Draft approved 04/16 for submission to Standing Committee Defense Lawyers (NACDL) Approved for publication by Standing Committee 06/16 Draft approved 05/17 for resubmission to Standing Committee following public comments Revised draft approved by the Standing Committee 06/17 Draft approved by the Judicial Conference and submitted to the Supreme Court 09/17 12-AP-D Consider the treatment of appeal bonds under Civil Rule Kevin C.
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