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Advisory Committee on Appellate Rules ADVISORY COMMITTEE ON APPELLATE RULES October 20, 2020 ADVISORY COMMITTEE ON APPELLATE RULES Meeting of October 20, 2020 Via Microsoft Teams Table of Contents 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 Meeting of the Standing Committee (June 2020) Tab 2A: Draft minutes of Standing Committee meeting Tab 2B: September 2020 Judicial Conference Rules Report III. Approval of minutes of April 4, 2020 meeting (Action Item) Tab 3: Draft Minutes of the April 4, 2020 Meeting IV. Discussion of Matters Published for Public Comment Tab 4A: Memo Regarding Rule 42 (17-AP-G) Tab 4B: Memo Regarding Rule 25 (18-AP-E) Tab 4C: Rule 25 as Published (pages 13-14) V. Discussion of Matters before Subcommittees A. CARES Act Tab 5A: Subcommittee Report B. Rules 35 and 40 (18-AP-A) Tab 5B: Subcommittee Report Tab 5C: Working Draft Tab 5D: Line-by-Line Redline Advisory Committee on Appellate Rules | October 20, 2020 Page 2 of 210 C. IFP Standards (19-AP-C) Tab 5E: Subcommittee Report Tab 5F: Hammond Form Tab 5G: Ohio Form D. Relation Forward of Notices of Appeal (20-AP-A) Tab 5H: Subcommittee Report Tab 5I: Lammon Suggestion VI. Discussion of Matters before Joint Subcommittees A. Electronic Filing Deadlines (19-AP-E) Tab 6A: Reporter’s Memo B. Finality in Consolidated Cases after Hall Tab 6B: Cooper Memo VII. Discussion of Recent Suggestions A. Titles in Official Capacity Actions (19-AP-G) Tab 7A: Reporter’s Memo B. Incorporate Civil Rule 11 (20-AP-B) Tab 7B: Sai Suggestion Tab 7C: Reporter’s Memo C. Pro Se Electronic Filing (20-AP-C) Tab 7D: Jain Suggestion Tab 7E: Reporter’s Memo D. IFP Forms (20-AP-D) Tab 7F: Sai Suggestion Tab 7G: Reporter’s Memo E. Rule 3 (20-AP-E) Tab 7H: Sai Suggestion 2 Advisory Committee on Appellate Rules | October 20, 2020 Page 3 of 210 Tab 7I: Reporter’s Memo VIII. Review of Impact and Effectiveness of Recent Rule Changes IX. New Business X. Next meeting: April 7, 2021, San Diego, CA Advisory Committee on Appellate Rules | October 20, 2020 Page 4 of 210 TAB 1 Advisory Committee on Appellate Rules | October 20, 2020 Page 5 of 210 TAB 1A Advisory Committee on Appellate Rules | October 20, 2020 Page 6 of 210 RULES COMMITTEES — CHAIRS AND REPORTERS Committee on Rules of Practice and Procedure (Standing Committee) Chair Reporter Honorable John D. Bates Professor Catherine T. Struve United States District Court University of Pennsylvania Law School E. Barrett Prettyman U.S. Courthouse 3501 Sansom Street 333 Constitution Avenue, N.W. Philadelphia, PA 19104 Washington, DC 20001 Secretary Rebecca A. Womeldorf, Esq. Secretary, Standing Committee and Rules Committee Chief Counsel Administrative Office of the U.S. Courts Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 7-300 Washington, DC 20544 Advisory Committee on Appellate Rules Chair Reporter Honorable Jay S. Bybee Professor Edward Hartnett United States Court of Appeals Richard J. Hughes Professor of Law Lloyd D. George U.S. Courthouse Seton Hall University School of Law 333 Las Vegas Boulevard South, Suite 7080 One Newark Center Las Vegas, NV 89101-7065 Newark, NJ 07102 Effective: October 1, 2020 to December 31, 2020 Page 1 Revised: September 11, 2020 Advisory Committee on Appellate Rules | October 20, 2020 Page 7 of 210 RULES COMMITTEES — CHAIRS AND REPORTERS Advisory Committee on Bankruptcy Rules Chair Reporter Honorable Dennis R. Dow Professor S. Elizabeth Gibson United States Bankruptcy Court University of North Carolina at Chapel Hill Charles Evans Whittaker U.S. Courthouse 5073 Van Hecke-Wettach Hall, C.B. #3380 400 East Ninth Street, Room 6562 Chapel Hill, NC 27599-3380 Kansas City, MO 64106 Associate Reporter Professor Laura B. Bartell Wayne State University Law School 471 W. Palmer Detroit, MI 48202 Advisory Committee on Civil Rules Chair Reporter Honorable Robert M. Dow, Jr. Professor Edward H. Cooper United States District Court University of Michigan Law School Everett McKinley Dirksen U.S. Courthouse 312 Hutchins Hall 219 South Dearborn Street, Room 1978 Ann Arbor, MI 48109-1215 Chicago, IL 60604 Associate Reporter Professor Richard L. Marcus University of California Hastings College of the Law 200 McAllister Street San Francisco, CA 94102-4978 Effective: October 1, 2020 to December 31, 2020 Page 2 Revised: September 11, 2020 Advisory Committee on Appellate Rules | October 20, 2020 Page 8 of 210 RULES COMMITTEES — CHAIRS AND REPORTERS Advisory Committee on Criminal Rules Chair Reporter Honorable Raymond M. Kethledge Professor Sara Sun Beale United States Court of Appeals Duke Law School Federal Building 210 Science Drive 200 East Liberty Street, Suite 224 Durham, NC 27708-0360 Ann Arbor, MI 48104 Associate Reporter Professor Nancy J. King Vanderbilt University Law School 131 21st Avenue South, Room 248 Nashville, TN 37203-1181 Advisory Committee on Evidence Rules Chair Reporter Honorable Patrick J. Schiltz Professor Daniel J. Capra United States District Court Fordham University United States Courthouse School of Law 300 South Fourth Street, Room 14E 150 West 62nd Street Minneapolis, MN 55415 New York, NY 10023 Effective: October 1, 2020 to December 31, 2020 Page 3 Revised: September 11, 2020 Advisory Committee on Appellate Rules | October 20, 2020 Page 9 of 210 ADVISORY COMMITTEE ON APPELLATE RULES Chair Reporter Honorable Jay S. Bybee Professor Edward Hartnett United States Court of Appeals Richard J. Hughes Professor of Law Lloyd D. George U.S. Courthouse Seton Hall University School of Law 333 Las Vegas Boulevard South, Suite 7080 One Newark Center Las Vegas, NV 89101-7065 Newark, NJ 07102 Members Honorable Judith L. French Honorable Stephen J. Murphy III Ohio Supreme Court United States District Court 65 South Front Street Theodore Levin U.S. Courthouse Columbus, OH 43215 231 West Lafayette Boulevard, Room 235 Detroit, MI 48226 Professor Stephen E. Sachs Danielle Spinelli, Esq. Duke Law School Wilmer Cutler Pickering Hale and Dorr LLP 210 Science Drive 1875 Pennsylvania Avenue, N.W. Box 90360 Washington DC 20006 Durham, NC 27708-0360 Honorable Jeffrey B. Wall* Honorable Paul J. Watford Acting Solicitor General (ex officio) United States Court of Appeals United States Department of Justice Richard H. Chambers Building 950 Pennsylvania Avenue, N.W. 125 South Grand Avenue, 6th Floor Washington, DC 20530 Pasadena, CA 91105-1621 *Alternate Representative: H. Thomas Byron III, Esq. United States Department of Justice 950 Pennsylvania Ave, N.W. Washington, DC 20530 Lisa B. Wright, Esq. Office of the Federal Public Defender 625 Indiana Avenue, NW, Suite 550 Washington, DC 20004 Effective: October 1, 2020 to December 31, 2020 Page 1 Revised: September 11, 2020 Advisory Committee on Appellate Rules | October 20, 2020 Page 10 of 210 ADVISORY COMMITTEE ON APPELLATE RULES Liaisons Honorable Bernice B. Donald Honorable Frank M. Hull (Bankruptcy) (Standing) United States Court of Appeals United States Court of Appeals Clifford Davis and Odell Horton Elbert P. Tuttle Court of Federal Building Appeals Building 167 North Main Street, Room 1132 56 Forsyth Street, N.W., Room 300 Memphis, TN 38103 Atlanta, GA 30303 Clerk of Court Representative Molly Dwyer, Esq. Clerk United States Court of Appeals James R. Browning U.S. Courthouse 95 Seventh Street, Room 125 San Francisco, CA 94103-1518 Secretary, Standing Committee and Rules Committee Chief Counsel Rebecca A. Womeldorf, Esq. Administrative Office of the U.S. Courts One Columbus Circle, N.E., Room 7-300 Washington, DC 20544 Effective: October 1, 2020 to December 31, 2020 Page 2 Revised: September 11, 2020 Advisory Committee on Appellate Rules | October 20, 2020 Page 11 of 210 Advisory Committee on Appellate Rules Members Position District/Circuit Start Date End Date Jay S. Bybee Member: 2017 ---- Chair C Ninth Circuit Chair: 2020 2023 Judith L. French JUST Ohio 2016 2022 Stephen J. Murphy III D Michigan (Eastern) 2015 2021 Stephen E. Sachs ACAD North Carolina 2016 2022 Danielle Spinelli ESQ Washington, DC 2017 2020 Jeffrey B. Wall* DOJ Washington, DC ---- Open Paul J. Watford C Ninth Circuit 2018 2021 Assistant Federal Public Defender Lisa B. Wright ESQ (Appellate) (DC) 2019 2022 Edward Hartnett Reporter ACAD New Jersey 2018 2023 Principal Staff: Rebecca Womeldorf 202-502-1820 Bridget Healy 202-502-1820 __________ * Ex-officio - Solicitor General Advisory Committee on Appellate Rules | October 20, 2020 Page 12 of 210 RULES COMMITTEE LIAISON MEMBERS Liaisons for the Advisory Committee on Hon. Frank M. Hull Appellate Rules (Standing) Hon. Bernice B. Donald (Bankruptcy) Liaison for the Advisory Committee on Hon. William J. Kayatta, Jr. Bankruptcy Rules (Standing) Liaisons for the Advisory Committee on Peter D. Keisler, Esq. Civil Rules (Standing) Hon. A. Benjamin Goldgar (Bankruptcy) Liaison for the Advisory Committee on Hon. Jesse M. Furman Criminal Rules (Standing) Liaisons for the Advisory Committee on Hon. James C. Dever III Evidence Rules (Criminal) Hon. Carolyn B. Kuhl (Standing) Hon. Sara Lioi (Civil) Effective: October 1, 2020 to December 31, 2020 Page 1 Revised: September 11, 2020 Advisory Committee on Appellate Rules | October 20, 2020 Page 13 of 210 ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS Staff Rebecca A. Womeldorf, Esq. Chief Counsel Administrative Office of the U.S. Courts Office of General Counsel – Rules Committee Staff Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room 7-300 Washington, DC 20544 Bridget M. Healy, Esq. Brittany Bunting Counsel Administrative Analyst (Appellate, Bankruptcy, Evidence) S. Scott Myers, Esq. Shelly Cox Counsel Management Analyst (Bankruptcy, Standing) Julie M. Wilson, Esq. Counsel (Civil, Criminal, Standing) Effective: October 1, 2020 to December 31, 2020 Page 1 Revised: September 11, 2020 Advisory Committee on Appellate Rules | October 20, 2020 Page 14 of 210 FEDERAL JUDICIAL CENTER Staff Hon.
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