July 28, 2014

2012 Federal Rules of Appellate Procedure and Tenth Circuit Local Rules Published

On December 1, 2011, changes to Federal Rules of Appellate Procedure 4(a)(1) and 40(a)(1) will take effect. In addition, effective January 1, 2012, new local rules for the United States Court of Appeals for the Tenth Circuit will take effect. All changes are outlined below. Litigants and counsel are encouraged to call the clerk’s office with any questions.

Federal Rules of Appellate Procedure

1)  Federal Rule of Appellate Procedure 4(a)(1)

This rule was changed to clarify language regarding the entry of judgment, and to define more precisely which entities are included for purposes of defining “United States” under Rule 4(a)(1)(B).

2)  Federal Rule of Appellate Procedure 40(a)(1)

This rule change is similar to the change made to Rule 4. Specifically, the change clarifies language and also defines more precisely which entities are included for purposes of defining “United States.”

Tenth Circuit Proposed Local Rules Changes for 2012

This year, in addition to the changes outlined below, the court has approved several non-substantive changes to update language found in several sections in the rules. Substantive changes include the following:

1)  10th Cir. R. 5.1 (filing reply briefs in Fed. R. App. P. 5 cases)

Federal Rule of Appellate Procedure 5 outlines the process for filing petitions for permission to appeal. The addition to the local rule addresses reply briefs, which were not addressed previously. Proposed local rule 5.1 allows parties to file a reply in these cases upon motion to the court.

2)  10th Cir. R. 22.1 and 22.2 (certificates of appealability and procedures in death penalty cases) (Specifically, this includes changes to Rule 22.1(A), Rules 22.2(B) and (C) plus the elimination of Rules 22.2(D) and (E)).

The changes to these rules are in the nature of language updates, but are extensive. The changes are necessary to conform the local rules with the current practices of the court.

3)  10th Cir. R. 28.2(C)(6) and 10th Cir. R. 32(b) (new rules re: glossary of terms)

Rule 28.2(C)(6) requires parties to include a glossary of terms in briefs which are acronym-intensive. The rule speaks specifically to agency proceedings. New local 32(b) includes language confirming that any glossary filed will not count for purposes of counting “words” under the court’s briefing length limitations.

4)  10th Cir. R. 29.1 (addition re: page limits for amicus briefs on rehearing)

This addition to the local rule addresses page limits for amicus briefs on rehearing. Effective January 1, 2012, those briefs will be limited to 3,000 words in length and must include a certification of the word count.

5)  10th Cir. R. 46.3(A) (prerequisites for filing a motion to withdraw in a criminal case)

The court’s former local rule required counsel to perfect the appeal in a criminal case prior to filing a motion to withdraw. Perfecting the appeal included filing a designation of record and transcript order form (or notice that no transcript is necessary), along with the entry of appearance and docketing statement. The change to this rule allows counsel to file a motion to withdraw following submission of (only) an entry of appearance and docketing statement. Effective January 1, 2012, there will no longer be a requirement to perfect the appeal fully before filing the motion.

6)  10th Cir. R. 46.4(C) (attorney withdrawal in civil cases [non-habeas])

This new rule notes that if, in a non-habeas civil case, counsel files a motion to withdraw after the mandate has issued, it will be treated as a “notice” rather than a motion. As a consequence, no order on the request will be required.

Click here to view the full memorandum from the Tenth Circuit regarding the rule changes.

Click here to view the rule changes in their entirety.

Click here to view the red line changes to the rules.

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