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Advisory Committee on Appellate Rules ADVISORY COMMITTEE ON APPELLATE RULES Washington, D.C. October 26, 2018 THIS PAGE INTENTIONALLY BLANK Advisory Committee on Appellate Rules, Fall 2018 Meeting 2 ADVISORY COMMITTEE ON APPELLATE RULES Meeting of October 26, 2018 Washington, DC I. Greetings and Background Material Tab 1A: Committee Roster Tab 1B: Table of Agenda Items Tab 1C: Rules Tracking Chart Tab 1D: Pending Legislation Chart II. Report on Actions by the Standing Committee (June 2018) and the Judicial Conference (September 2018) A. Standing Committee Final Approval of Proposed Amendments to Rules 3, 5, 13, 25, 26, 26.1, 28, 32, and 39 B. Judicial Conference Approval of Proposed Amendments to Rules 3, 5, 13, 25, 26, 26.1, 28, 32, and 39 C. Standing Committee Approval for Publication of Proposed Amendments to Rules 35 and 40 Tab 2A: Standing Committee Report to Judicial Conference Tab 2B: Draft minutes of Standing Committee meeting III. Approval of minutes of April 6, 2018 meeting (Action Item) Tab 3: Draft minutes IV. Discussion of Matters Before Subcommittees A. Rule 3 and the merger rule (16-AP-D) Tab 4A: Subcommittee Report B. Rule 42(b) and agreed dismissals (17-AP-G) Tab 4B: Subcommittee Report C. Rules 35 & 40 comprehensive review (18-AP-A) Tab 4C: Subcommittee Report D. Rule 4(a)(5)(C) and Hamer (no # yet) Tab 4D: Subcommittee Report Advisory Committee on Appellate Rules, Fall 2018 Meeting 3 V. Discussion of Recent Suggestions A. Use of names in Social Security and immigration opinions (18-AP-C) Tab 5A: Hodges Memo of May 1, 2018 Tab 5B: Reporter’s Memo B. Counting of votes by departed judges (18-AP-D) Tab 5C: Sachs Letter of August 13, 2018 Tab 5D: Reporter’s Memo VI. New Business VII. Next meeting: April 5, 2019, in San Antonio, Texas 2 Advisory Committee on Appellate Rules, Fall 2018 Meeting 4 TAB 1 Advisory Committee on Appellate Rules, Fall 2018 Meeting 5 THIS PAGE INTENTIONALLY BLANK Advisory Committee on Appellate Rules, Fall 2018 Meeting 6 TAB 1A Advisory Committee on Appellate Rules, Fall 2018 Meeting 7 THIS PAGE INTENTIONALLY BLANK Advisory Committee on Appellate Rules, Fall 2018 Meeting 8 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 Edward Hartnett on Appellate Rules Richard J. Hughes Professor of Law Seton Hall University School of Law One Newark Center Newark, NJ 07102 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. Quinn Emanuel Urquhart & Sullivan, LLP 1300 I Street, N.W., Suite 900 Washington DC 20005 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, 2018 Advisory Committee on Appellate Rules Page 1 Revised: October 1, 2018 Advisory Committee on Appellate Rules, Fall 2018 Meeting 9 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. Patricia S. Dodszuweit 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, 2018 Advisory Committee on Appellate Rules Page 2 Revised: October 1, 2018 Advisory Committee on Appellate Rules, Fall 2018 Meeting 10 TAB 1B Advisory Committee on Appellate Rules, Fall 2018 Meeting 11 THIS PAGE INTENTIONALLY BLANK Advisory Committee on Appellate Rules, Fall 2018 Meeting 12 FRAP Item Proposal Source Current Status 7 11-AP-B Consider amending FRAP Form Peter Goldberger, Discussed and retained on agenda 09/12 4's directive concerning Esq., on behalf of Discussed and retained on agenda 10/15 institutional-account statements the National Draft approved 04/16 for submission to Standing Committee for IFP applicants Association of Approved for publication by Standing Committee 06/16 Criminal Defense Draft approved 05/17 for resubmission to Standing Lawyers Committee following public comments (NACDL) Revised draft approved by the Standing Committee 06/17 Draft approved by the Judicial Conference and submitted to the Supreme Court 09/17 Approved by the Supreme Court 4/18 7 12-AP-D Consider the treatment of Kevin C. Newsom, Discussed and retained on agenda 09/12 appeal bonds under Civil Rule Esq. Discussed and retained on agenda 04/15 62 and Appellate Rule 8 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 Approved by the Supreme Court 4/18 7 13-AP-H Consider possible amendments Hon. Steven M. Discussed and retained on agenda 04/14 to FRAP 41 in light of Bell v. Colloton Discussed and retained on agenda 10/14 Thompson, 545 U.S. 794 Discussed and retained on agenda 04/15 (2005), and Ryan v. Schad, 133 Draft approved 10/15 for submission to Standing Committee S. Ct. 2548 (2013) Approved for publication by Standing Committee 01/16 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 Approved by the Supreme Court 4/18 7 14-AP-D Consider possible changes to Standing Draft approved 10/15 for submission to Standing Committee Rule 29's authorization of Committee Discussed by Standing Committee 1/16 but not approved amicus filings based on party Draft approved 04/16 for submission to Standing Committee Advisory Committee on Appellate Rules, Fall 2018 Meeting 13 FRAP Item Proposal Source Current Status consent 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 Approved by the Supreme Court 4/18 7 15-AP-A/H Consider adopting rule Robert M. Miller, Discussed and retained on agenda 10/15 presumptively permitting pro se Ph.D. Draft approved 04/16 for submission to Standing Committee litigants to use CM/ECF 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 Approved by the Supreme Court 4/18 7 15-AP-C Consider amendment to Rule Appellate Rules Draft approved 10/15 for submission to Standing Committee 31(a)(1)’s deadline for reply Committee Approved for publication by Standing Committee 01/16 briefs 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 Approved by the Supreme Court 4/18 7 15-AP-E Amend the FRAP (and other Sai Discussed and retained on agenda 10/15 sets of rules) to address Partially removed from Agenda and draft approved for submission concerns relating to social to Standing Committee 4/16 security numbers; sealing of Approved for publication by Standing Committee 06/16 affidavits on motions under 28 Revised draft approved 05/17 for resubmission to Standing U.S.C. § 1915 or 18 U.S.C. § Committee following public comments 3006A; provision of authorities Revised draft approved by the Standing Committee 06/17 to pro se litigants; and Draft approved by the Judicial Conference and submitted to the electronic filing by pro se Supreme Court 09/17 litigants Approved by the Supreme Court 4/18 Advisory Committee on Appellate Rules, Fall 2018 Meeting 14 FRAP Item Proposal Source Current Status 6 08-AP-A Amend FRAP 3(d) concerning Hon. Mark R. Discussed and retained on agenda 11/08 service of notices of appeal Kravitz 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 Final approval for submission to Standing Committee 4/18 Approved by Standing Committee 6/18 6 08-AP-R Consider amending FRAP 26.1 Hon.
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