Navigating the New Changes to the Federal Rules of Appellate Procedure Tips and Best Practices Adam Hansen Jeff Justman Navigating the New Changes to the Federal Rules of Appellate Procedure: Tips and Best Practices

Overview Changes to the Federal Rules of Appellate Procedure Reduction in word limits for briefs Changes to certificates of compliance Elimination of three-day service period Amicus briefs Tips and tricks for navigating the new rules Variations to these rules by circuit Eighth Circuit rules Other traps for the unwary

New Rules Effective December 1, 2016 SUPREME COURT OF THE UNITED STATES ORDERED: “That the foregoing amendments to the Federal Rules of Appellate Procedure shall take effect on December 1, 2016, and shall govern in all proceedings in appellate cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.”

Reduction in Word Limits for Filings The Big Change (Rule 32(a)(7)): Principal briefs (where there is no cross appeal) must be no more than 13,000 words Used to be 14,000 Reply briefs (where there is no cross appeal) must be no more than 6,500 words Used to be 7,000

Reduction in Word Limits for Filings But the Committee Notes Contemplate Longer Briefs for Complex Cases: “In a complex case, a party may need to file a brief that exceeds the type-volume limitations specified in these rules, such as to include unusually voluminous information explaining relevant background or legal provisions or to respond to multiple briefs by opposing parties or amici. The Committee expects that courts will accommodate those situations by granting leave to exceed the type-volume limitations as appropriate.” Should counsel seek brief length extensions in complex cases?

But Some Circuits Vary The Rules on Brief Length Some circuits have maintained the 14,000 word limit on briefs, as a matter of local rules Second, Seventh, Ninth Circuits

Word Counts Abound The New Rules Systematically Replace Page Limits with Word Limits for Electronically-Filed Documents Motions (Rule 27(d)(2)): 5,200 words (used to be 20 pages) Petitions for Hearing or Rehearing (Rule 35(b)(2)(A) and 40(b)(1)): 3,900 words (used to be 15 pages) Permission to Appeal (Rule 5(c)): Writs (Rule 21(d)): 7,800 words (used to be 30 pages) Appellee Brief in Cross-Appeal (Rule 28.1(e)(2)(B)(i)): 15,300 words (used to be 16,500 words) Handy New Appendix: Length Limits Stated in the Federal Rules of Appellate Procedure

Word Count: What Counts? Signature Blocks No Longer Need To Be Counted (Rule 32(f)): Items Excluded from Length. In computing any length limit, headings, footnotes, and quotations count toward the limit but the following items do not: the cover page; a corporate disclosure statement; a table of contents; a table of citations; a statement regarding oral argument; an addendum containing statutes, rules, or regulations; certificates of counsel; the signature block; the proof of service; and any item specifically excluded by these rules or by local rule.

Time To Appeal: Eliminating Uncertainty New Rules Clarify that the Filing of Untimely Post-Trial Motions Will Not Toll the Notice of Appeal Deadline Rule 4(a)(4)(a): “If a party files in the district court any of the following motions under the Federal Rules of Civil Procedure—and does so within the time allowed by those rules—the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion” Old Rule: “[i]f a party timely files in the district court” certain post-judgment motions, “the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion.” Committee Notes: A motion made after the time allowed by the Civil Rules will not qualify as a motion that, under Rule 4(a)(4)(A), re-starts the appeal time—and that fact is not altered by, for example, a court order that sets a due date that is later than permitted by the Civil Rules, another party’s consent or failure to object to the motion’s lateness, or the court’s disposition of the motion without explicit reliance on untimeliness. Bottom Line: You need to file your post-trial motions on time (28 days after judgment under FRCP Rules 50 and 59) in order to toll the notice of appeal deadline

No More 3-day Mailing Rule New Rules Eliminate 3-day Mailing Rule For Documents Served Electronically Rule 26(c): “Additional Time after Certain Kinds of Service. When a party may or must act within a specified time after being served service, 3 days are added after the period would otherwise expire under Rule 26(a), unless the paper is delivered on the date of service stated in the proof of service. For purposes of this Rule 26(c), a paper that is served electronically is not treated as delivered on the date of service stated in the proof of service.” Rationale (from the Committee Notes): “[C]oncerns [about the reliability of electronic service] have been substantially alleviated by advances in technology and widespread skill in using electronic transmission.” Bottom Line: When served electronically, you no longer get to add 3 days to respond

New Rule for Rehearing Stage Amicus Briefs New Rule 29 (b) Governs Amicus Filings During A Court’s Consideration of Whether to Grant Panel Rehearing or Rehearing En Banc Private Parties Still Must Seek Leave of Court (Rule 29 (b)(2)) Briefs Limited to 2,600 Words (Rule 29 (b)(4)) Due 7 Days After the Petition or Response (Rule 29 (b)(5)) Committee Notes: “A court remains free to adopt different rules governing whether amicus filings are permitted in connection with petitions for rehearing, and governing the procedures when such filings are permitted.”

New Eighth Circuit Rules—effective Dec. 2016 Rule 3B—Appeal Information Form (deleted) Rule 33A—Prehearing Conference Program (deleted) Rule 25A(b)—Documents that must be filed electronically CJA vouchers and attachments Rule 25A(c)—Documents that may be filed electronically Documents initiating proceedings under FRAP 5, 15, or 21 Petitions for review in the first instance

Tips for Navigating The Appellate Rules Check the appellate websites for jurisdiction-specific guidance Local rules, internal operating procedures, checklists Contact the clerk’s office Send your briefs to confirm compliance with the rules Review recently filed briefs and the docket—inquiry notice Ask others who have filed briefs recently

Circuit-Specific Tips Second Circuit Font size of case number, PDF pagination Fifth Circuit Certificate of interested persons, electronic record on appeal Seventh Circuit Verify procedural compliance: ca07_frontdesk@ca7.uscourts.gov Jurisdiction and documents under seal Table of Authorities

Circuit-Specific Tips Eighth Circuit Tips: Ask your case manager Extensions of time policy Citation to appendix v. district court docket Eleventh Circuit Tips: Certificate of interested persons Oral argument record

Questions? Any Questions? Adam Hansen, Apollo Law Jeff Justman adam@apollo-law.com (612) 927-2969 Jeff Justman Jeff.Justman@faegrebd.com (612) 766-7133