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Advisory Committee on Appellate Rules ADVISORY COMMITTEE ON APPELLATE RULES Denver, CO April 5-6, 2016 UTABLE OF CONTENTS MEETING AGENDA ......................................................................................................................... 7 TAB 1 Table of Agenda Items (April 2016) ........................................................................ 19 TAB 2 Opening Business A. ACTION ITEM: Approval of Minutes Draft Minutes of the Fall 2015 Meeting of the Advisory Committee on Appellate Rules ....................................................................................... 27 B. Information Item: Draft Minutes of the January 2016 Meeting of the Committee on Rules of Practice and Procedure ....................................... 43 TAB 3 ACTION ITEM: For Publication - Item No. 12-AP-D (Civil Rule 62: Bonds and Other Security) A. Reporter’s Memorandum (March 13, 2016) ............................................. 61 B. Additional Materials: Draft Report of the Civil-Appellate Subcommittee (February 25, 2016)...................................................................................... 69 TAB 4 Discussion Item: Item No. 12-AP-F (Civil Rule 23: Class Action Settlement Objectors) A. Reporter’s Memorandum (March 13, 2016) ............................................. 83 B. Additional Materials: Draft Report of the Civil Rule 23 Subcommittee (February 26, 2016)...................................................................................... 89 Memorandum to Judge John D. Bates, Chair of the Advisory Committee on Civil Rules, from Derek Webb, Law Clerk to Judge Jeffery S. Sutton, Regarding Class Action Objector Appeals Jurisdictional Question (January 6, 2016) ................................ 109 TAB 5 Discussion Item: Item No. 16-AP-A (Appellate Rule 4(b)(1) and Criminal Case Notice of Appeals) A. Reporter’s Memorandum (March 12, 2016) ........................................... 123 April 5-6, 2016 Page 3 of 264 B. Additional Materials: Suggestion 16-AP-A (Thomas L. Wright) ................................................ 129 Excerpt from the Minutes of the Spring 2012 Meeting of the Advisory Committee on Appellate Rules ................................................. 131 Excerpt from the Minutes of the Fall 2012 Meeting of the Advisory Committee on Appellate Rules ................................................. 135 TAB 6 ACTION ITEM: For Publication - Item No. 14-AP-D (Appellate Rule 29(a) on Amicus Briefs Filed with Party Consent) Reporter’s Memorandum (March 13, 2016) ........................................................ 139 TAB 7 ACTION ITEM: For Publication - Item No. 08-AP-R (Appellate Rules 26.1 and 29(c) on Disclosures) A. Reporter’s Memorandum (March 14, 2016) ........................................... 149 B. Additional Materials: Reporter’s Memorandum (Professor Daniel J. Capra) (March 31, 2015) ........................................................................................ 159 TAB 8 Discussion Item: Item No. 12-AP-B (Appellate Form 4 and Institutional Account Statement) A. Reporter’s Memorandum (March 14, 2016) ........................................... 187 B. Additional Materials: Reporter’s Memorandum (Professor Catherine T. Struve) (August 29, 2012)........................................................................................ 193 TAB 9 ACTION ITEM: For Publication - Item No. 15-AP-E (Appellate Form 4 and Social Security Numbers) A. Reporter’s Memorandum (March 14, 2016) ........................................... 215 B. Additional Materials: Reporter’s Memorandum (October 14, 2015) ......................................... 221 Email from Sai (January 5, 2016) ............................................................. 227 Email from Sai (January 6, 2016) ............................................................. 233 April 5-6, 2016 Page 4 of 264 TAB 10 Discussion Item: Item No. 15-AP-F (Appellate Rule 39(e) and Recovery of Appellate Fees) A. Reporter’s Memorandum (March 14, 2016) ........................................... 243 B. Additional Materials: Reporter’s Memorandum (October 15, 2015) ........................................ 249 TAB 11 Discussion Item: Item Nos. 08-AP-A, 11-AP-C, 11-AP-D, 15-AP-A, 15-AP-D, and 15-AP-H (Electronic Filing and Service) A. Reporter’s Memorandum (March 14, 2016) ........................................... 255 B. Additional Materials: Criminal Rule 49 Discussion Draft (March 4, 2016)............................... 261 April 5-6, 2016 Page 5 of 264 THIS PAGE INTENTIONALLY BLANK April 5-6, 2016 Page 6 of 264 Agenda for the Spring 2016 Meeting of Advisory Committee on Appellate Rules April 5 and 6, 2016 Denver, CO I. Introductions II. Approval of Minutes of the October 2015 Meeting III. Report on the January 2016 Meeting of the Standing Committee IV. Other Information Items V. Action Item – For Publication A. Item No. 12-AP-D (Civil Rule 62: Bonds) VI. Discussion Items A. Item No.12-AP-F (Civil Rule 23: Class Action Settlement Objectors) B. Item No. 16-AP-A (Appellate Rule 4(b)(1) and Criminal Case Notice of Appeals) VII. Action Items – For Publication A. Item No. 14-AP-D (Appellate Rule 29(a) on Amicus Briefs Filed with Party Consent) B. Item No. 08-AP-R (Appellate Rules 26.1 and 29(c) on Disclosures) VIII. Discussion Item A. Item 12-AP-B (Appellate Rules Form 4 and Institutional Account Statement) IX. Action Item – For Publication A. Item No. 15-AP-E (Appellate Rules Form 4 and Social Security Numbers) X. Discussion Items A. Item No. 15-AP-F (Appellate Rule 39(e) and Recovery of Appellate Fees) B. Item Nos. 08-AP-A, 11-AP-C, 11-AP-D, 15-AP-A, 15-AP-D, 15-AP-H (Electronic Filing and Service) XI. Adjournment April 5-6, 2016 Page 7 of 264 THIS PAGE INTENTIONALLY BLANK April 5-6, 2016 Page 8 of 264 ADVISORY COMMITTEE ON APPELLATE RULES Chair, Advisory Committee on Appellate Rules Honorable Steven M. Colloton United States Court of Appeals U.S. Courthouse Annex, Suite 461 110 East Court Avenue Des Moines, IA 50309-2044 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 Professor Amy Coney Barrett on Appellate Rules University of Notre Dame Law School 3165 Eck Hall of Law Notre Dame, IN 46556 Honorable Michael A. Chagares United States Court of Appeals United States Post Office and Courthouse Two Federal Square, Room 357 Newark, NJ 07102-3513 Honorable Allison H. Eid Colorado Supreme Court 2 East 14th Avenue Denver, CO 80203 Gregory G. Katsas Jones Day 51 Louisiana Avenue, N.W. Washington, D.C. 20001-2113 Neal Katyal, Esq. Hogan Lovells US LLP Columbia Square 555 Thirteenth Street, N.W. Washington, DC 20004 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 Effective: October 1, 2015 Advisory Committee on Appellate Rules Page 1 Revised: October 16, 2015 April 5-6, 2016 Page 9 of 264 Members, Advisory Committee Honorable Stephen Joseph Murphy III on Appellate Rules (cont’d) United States District Court Theodore Levin United States Courthouse 231 West Lafayette Boulevard, Room 235 Detroit, MI 48226 Kevin C. Newsom, Esq. Bradley Arant Boult Cummings LLP One Federal Place 1819 Fifth Avenue North Birmingham, AL 35203 Honorable Donald Verrilli Solicitor General (ex officio) United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Clerk of Court Representative, Michael Ellis Gans Advisory Committee on Appellate Rules United States Court of Appeals Thomas F. Eagleton United States Courthouse 111 South Tenth Street, Room 24.329 St. Louis, MO 6312-1116 Liaison Member, Advisory Committee Gregory G. Garre, Esq. (Standing) on Appellate Rules Latham & Watkins LLP 555 Eleventh Street, N.W. Washington, DC 20004-1304 Secretary, Standing Committee Rebecca A. Womeldorf and Rules Committee Officer Secretary, Committee on Rules of Practice & Procedure and Rules Committee Officer 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, 2015 Advisory Committee on Appellate Rules Page 2 Revised: October 16, 2015 April 5-6, 2016 Page 10 of 264 Advisory Committee on Appellate Rules Members Position District/Circuit Start Date End Date Steven M. Colloton Chair C Eighth Circuit 2012 2016 Amy Coney Barrett ACAD Indiana 2010 2016 Michael A. Chagares C Third Circuit 2011 2017 Allison Eid JUST Colorado 2010 2016 Gregory G. Katsas ESQ Washington, DC 2013 2016 Neal K. Katyal ESQ Washington, DC 2011 2017 Brett M. Kavanaugh C DC Circuit 2015 2018 Stephen J. Murphy DC Michigan (Eastern) 2015 2018 Kevin C. Newsom ESQ Alabama 2011 2017 Donald B. Verrilli, Jr.* DOJ Washington, DC ---- Open Gregory Maggs Reporter ACAD Washington, DC 2015 2020 Principal Staff: Rebecca Womeldorf 202-502-1820 __________ * Ex-officio April 5-6, 2016 Page 11 of 264 LIAISON MEMBERS Liaison for the Advisory Committee Gregory G. Garre, Esq. (Standing) on Appellate Rules Liaison for the Advisory Committee Roy T. Englert, Jr., Esq. (Standing) on Bankruptcy Rules Liaison for the Advisory Committee Judge Arthur I. Harris (Bankruptcy) on Civil Rules Liaison for the Advisory Committee Judge Neil M. Gorsuch (Standing) on Civil Rules Liaison for the Advisory Committee Judge Amy J. St. Eve (Standing) on Criminal Rules Liaison for the Advisory Committee Judge James C. Dever III (Criminal) on Evidence Rules
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