On Friday, August 26, 2016, the Tenth Circuit Court of Appeals released proposed changes to the Tenth Circuit Rules, effective January 1, 2017. These rule changes are in addition to the changes to the Federal Rules of Appellate Procedure that take effect December 1, 2016. The changes include a reduction in word count for briefs; primary brief word limits have been reduced from 14,000 to 13,000 and reply brief word limits have been reduced from 7,000 to 6,500. The word limit changes are summarized in a new Appendix to the Federal Rules of Appellate Procedure. The changes to the rules also address when filings are timely under F.R.A.P. 4, clarify service dates when filings are completed electronically, and require attorneys to explain the criminal process and right to object in a defendant’s native language.
The Tenth Circuit Court of Appeals has posted changes to its local rules and the Federal Rules of Appellate Procedure, which will take effect January 1, 2016. The changes to the Tenth Circuit Local Rules are outlined in a memo, which is available here. A redline of the changes to the Federal Rules of Appellate Procedure, including the corresponding Tenth Circuit Local Rules, is available here.
The Federal Rules of Civil Procedure are also changing, effective December 1, 2015. The most significant change in the new Rules is that the scope of discovery is changing, as outlined below:
Rule 26. Duty to Disclose; General Provisions Governing Discovery
(b) Discovery Scope and Limits.
(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.— including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
A redline of the proposed changes to the Federal Rules of Civil Procedure is available here.
On August 14, 2015, the Tenth Circuit Court of Appeals announced that changes to its local rules will take effect January 1, 2016. From August 14, 2015 to October 22, 2015, all interested parties are encouraged to review the changes and make comments to the clerk of the court. The changes are outlined in a memorandum explaining the proposals, and are excerpted here:
10th Cir. R. 8.3(A) (addressing applications for stay made to a single judge) This proposed change removes the language at the end of the current rule which states applications for stay made to single judges are disfavored “except in an emergency.” Given technical advancements, all emergency motions can be processed centrally.
10th Cir. R. 9.1(C) (regarding application of the Rule 46.3(B) motion requirement to bail appeals) This proposed change modifies the rule to make clear that the new motion practice announced in R. 46.3(B) does not apply to bail appeals.
10th Cir. R. 17.3 (regarding filing an appendix in agency cases) This proposed change modifies the rule to make clear that when an agency record is filed, the parties need not submit a separate appendix.
10th Cir. R. 25.6 (addressing CM technical failures) This new rule addresses procedures in the event of a CM/ECF system failure.
10th Cir. R. 27.1 (location of the “confer and consent” provision of the local rule on motions) The court’s “confer and consent” rule has been moved to the beginning of local rule 27 for greater visibility. In addition, the rule now makes clear that CJA counsel need not confer on motions filed to withdraw or for continued appointment.
10th Cir. R. 30.1(D)(6) (addressing motions to seal documents) This local rule addresses the submission of sealed materials. The proposed change to the rule requires parties submitting materials under seal (except for presentence reports, which are exempt) to file a motion to do so. The proposed change is made in accord with circuit case law emphasizing the presumption in favor of providing access to judicial records. See Eugene S. v. Horizon Blue Cross Blue Shield of New Jersey, 663 F.3d 1124, 1135-1136 (10th Cir. 2011).
10th Cir. R. 31.5 (addressing the number of hard copies required for briefs) This modification adds a specific clause regarding the court’s already existing requirement that 7 hard copies of briefs must be received in the clerk’s office within 2 business days of the electronic filing.
10th Cir. R. 33.2 (removal of the requirement to have a private settlement discussion) This modification deletes this local rule.
10th Cir. R. 46.3(B) and R. 46.4(B)(1) (incorporating the new motion requirement from the amended CJA Plan adopted effective July 8, 2015) This proposal includes a section memorializing the new motion requirement created by virtue of the court’s amendment of the circuit Criminal Justice Act Plan in July 2015. In addition, please note the language added to Rule 46.4(B)(1), which makes clear the new requirement is not a substitute for filing a motion to withdraw, as appropriate, in Anders cases. In addition, the court’s decision in United States v. Cervantes, ___F.3d___, 2015 WL 4636640 (10th Cir. May 22, 2015) has been incorporated into the rule. Finally, Addendum I of the rules, which is a copy of the CJA Plan, has been updated.
Addendum IV (removal of the Rules for Judicial Misconduct and Judicial Disability Proceedings) Because they are now available on the court’s website, the Rules on Judicial Misconduct have been deleted as an attachment to the Rules.
The Federal Rules of Appellate Procedure will not be updated January 1, 2016. A redline of the Tenth Circuit Local Rules including the proposed changes is available here.
Rule 6 of the Federal Rules of Appellate Procedure, “Bankruptcy Appeals,” was amended, effective December 1, 2014. The changes to the rule incorporates the most recent numeric amendments to the bankruptcy rules, language was incorporated to include reference to electronic records, and the rule has been updated to include references to discretionary bankruptcy appeals in the Tenth Circuit per 28 U.S.C. § 158(d)(2).
The Tenth Circuit Local Rules were also amended, effective January 1, 2015. The changes to the Tenth Circuit Local Rules include changing references to accommodate electronic filing, moving all specific requirement for appendices to a single rule (Rule 30), adding a requirement that agency petitions include a list of parties to be served by the circuit clerk, outlining procedures for obtaining exemptions from electronic filing requirements, clarifications regarding citations to the record on appeal, and, most significantly, adding a rule that delineates requirements for appendices. The goal in adding Rule 30 was to move all requirements for appendices into one unified rule. Rule 30 requires electronic appendices for all retained counsel cases after January 1, 2015, except that one hard copy must be filed in the clerk’s office. Requirements for content and time of filing are delineated in the new rule, as well as options for seeking exemptions from the electronic filing requirement.
The Tenth Circuit Court of Appeals has proposed changes to its local rules, effective January 1, 2015. From August 22 through October 20, the comment period for these proposed changes will be open to all interested parties. Comments are welcome on all rules, but practitioners are encouraged to carefully review the appendix requirement in counseled civil cases and criminal cases where there is retained counsel.
In addition to the changes to the 10th Circuit Local Rules, a change to Rule 6 of the Federal Rules of Appellate Procedure regarding bankruptcy appeals will take effect December 1, 2014. The change addresses three areas: (1) it has been updated to include the latest numeric revisions to the bankruptcy rules; (2) language has been changed to address electronic records; and (3) references have been added to discretionary bankruptcy appeals.
The changes to Fed. R. App. P. 6 and the 10th Circuit Local Rules are available in a clean version and a redline. Comments may be submitted to the clerk of the 10th Circuit via email at 10th_Circuit_Clerk@ca10.uscourts.gov. Interested parties are welcome to call the clerk’s office with questions at (303) 844-3157.
Revised Federal Rules of Appellate Procedure and Tenth Circuit Local Rules Available Now; Fees to Increase
On December 1, 2013, changes to the Federal Rules of Appellate Procedure will take effect. Primary changes are to Rules 28 and 28.1, which address briefing requirements. The changes allow parties to combine a statement of the case and the factual recitation for the appeal into a single section. The current rule(s) require separate sections. In addition, Rules 13, 14, and 24 have been updated to clarify procedures in cases coming from the Tax Court, including permissive interlocutory appeals.
The revised Tenth Circuit Local Rules will take effect January 1, 2014. A memorandum outlining the more substantive changes to the Local Rules and the FRAP is available on the court’s website here. A redline version of both revisions is available here and a link to the complete 2014 FRAP and Local Rules is available here.
The court also announced an increase in the fee schedule. Effective December 1, 2013, the docketing fee for filing an appeal or original proceeding will increase to $505 from $450. The filing fee will be $500 for Petitions for Review and other original proceedings which require a fee. The record retrieval fee for archived materials will increase on the same date to $64 from $53.
On December 1, 2013, changes to the Federal Rules of Appellate Procedure will take effect. The Tenth Circuit Court of Appeals has issued a memo outlining those changes. On January 1, 2014, changes to the 10th Circuit local rules will take effect. From August 15 through October 11, 2013, the court invites comment and feedback on this year’s proposed changes to the local rules.
For comment purposes, the court has posted on the website both a clean draft of the proposed rules and a redlined version. Comments may be emailed to 10th_Circuit_Clerk@ca10.uscourts.gov. In addition, interested parties are invited to call the office of the Clerk at 303-844-3157 with any questions they may have.
A final version of the rules will be posted on the court’s website on or around November 25, 2013.
On Wednesday, November 14, 2012, the Tenth Circuit Court of Appeals published new local rules that will take effect on January 1, 2013. The court reviews its rules annually to identify places where language can be updated for clarity and to reflect technical advances and requirements. Several such changes were made for 2013.
In addition to clarifications and technology-related changes, certain requirements regarding attaching materials to docketing statements have been eliminated, and a new streamlined form was developed. Several other rules have been changed as well; a summary of the changes is available here.
Tenth Circuit: A Reasonable Jury Could Find Defendant Officers’ Conduct to be the Proximate Cause of Plaintiffs’ Prolonged Detention
The Tenth Circuit Court of Appeals issued its opinion in Martinez v. Carson on Wednesday, October 18, 2012.
In these cross-appeals, the parties raise challenges to various rulings made by the district court in a § 1983 action arising out of an allegedly unlawful seizure.
The incident underlying this action began when Defendants Carson and Mangin, employees of the New Mexico Department of Corrections, observed Plaintiffs Martinez and Sarmiento sitting or standing with a third man in a poorly-lit area outside an apartment building in a high-crime neighborhood at night. Defendants, who had been patrolling the area, pulled up to the apartment building in an unmarked police car and turned on the emergency lights. The third man fled into the apartment building when Defendants approached, and Rio Rancho police officer Camacho pursued him. Meanwhile, Defendants forced Plaintiffs to the ground, handcuffed them, drew weapons, and conducted a pat-down search. When additional Rio Rancho officers arrived on the scene a few minutes later, Defendants transferred Plaintiffs into the custody of these officers. The Rio Rancho police officers arrested Plaintiffs, holding Mr. Martinez for twelve hours, and Mr. Sarmiento for five hours before their release.
The pertinent question for the jury to decide was whether Defendants had reasonable suspicion of criminal activity when they detained Plaintiffs—if so, the brief seizure was warranted as an investigative detention responsive to officer safety concerns; if not, it was an illegal seizure. The case proceeded to trial, where the jury found for Plaintiffs on their unlawful seizure claim, finding Defendants lacked reasonable suspicion to justify the initial seizure (not the subsequent seizure by the Rio Rancho officers), and awarded Plaintiffs damages.
Plaintiffs now appeal the district court’s orders limiting Defendants’ liability to the first few minutes of the seizure, as well as a discovery sanction. On cross-appeal, Defendants raise issues regarding the district court’s denial of summary judgment based on qualified immunity, and the district court’s denial of their Rule 50(b) motion for judgment as a matter of law.
Section 1983 imposes liability on a government official who subjects, or causes to be subjected, any citizen to the deprivation of any rights. Thus, anyone who “causes” any citizen to be subjected to a constitutional deprivation is also liable. The requisite causal connection is satisfied if Defendants set in motion a series of events that they knew or reasonably should have known would cause others to deprive Plaintiffs of their constitutional rights. The Tenth Circuit concluded that a reasonable jury could find Defendants’ conduct to be the proximate cause of at least some portion of Plaintiffs’ prolonged detention following Defendants’ transfer of custody to the Rio Rancho officers.
The Court next reviewed the district court’s discovery sanction against Plaintiffs. On June 22, 2009, the magistrate judge issued an order staying all discovery pending a ruling on Defendants’ summary judgment motion based on qualified immunity. Counsel did not simply conduct voluntary interviews of the Rio Rancho defendants for investigatory or settlement purposes; rather, counsel conducted a deposition-like proceeding with these defendants, using exhibits and asking extensive questions to obtain evidence against the other defendants whose counsel was not noticed to be present. In light of the magistrate judge’s order staying “all discovery” and stating that Plaintiffs would need to proceed under Rule 56(f) to obtain discovery from the Rio Rancho defendants, the district court concluded that the Stay Order was violated. The district court ordered the parties to proceed with the Rule 56(f) deposition of Lt. Camacho, with Plaintiffs bearing the costs they would already have expended had they complied with the magistrate judge’s order in the first place. The district court also required all parties to re-file any motions that included citations to the stricken interview. The Tenth Circuit saw no abuse of discretion in this discovery sanction.
Because Defendants failed to file a notice of appeal within thirty days following the dismissal of their first post-judgment motion, the Tenth Circuit dismissed the cross-appeal for lack of jurisdiction.
For the foregoing reasons, the Tenth Circuit AFFIRMED the district court’s sanctions order, REVERSED the district court’s summary judgment order limiting Defendants’ liability, and REMANDED to the district court for a new trial limited to the issue of whether and to what extent Defendants reasonably should have known their unlawful seizure of Plaintiffs would result in the prolonged detention and, if so, whether any additional damages are appropriate. Defendants’ cross-appeal was DISMISSED.
On January 1, 2013, new local rules for the United States Court of Appeals for the Tenth Circuit will take effect. From August 14 through October 17, the court invites comment and feedback from all interested parties on this year’s proposed changes. Please take a moment to review the changes below.
Comments may be emailed to the Court. In addition, interested parties are invited to call the office of the Clerk at (303) 844-3157 with any questions they may have. A final version of the rules will be posted on the court’s website on or around November 26, 2012.
Additionally, changes to Federal Rules of Appellate Procedure will take effect on December 1, 2012. These changes are also outlined in the documents below.
Tenth Circuit Proposed Local Rules Changes for 2013
Every year the court reviews the rules to identify places where language can be updated for clarity and to reflect technical advances and requirements. This year several changes are proposed in this regard. In addition, practitioners should note proposed changes for this year include eliminating certain requirements regarding attaching materials to docketing statements. The proposed rules call for eliminating all attachments except the order(s) on appeal. In addition, the docketing statement form has been streamlined. Practitioners will see all of the proposed language and form changes in the redline version of the rules.
Additional changes include:
1) 10th Cir. R. 3.4 (exempting pro se litigants from filing docketing statements)
This proposal eliminates the rule requirement that pro se parties file docketing statements.
2) 10th Cir. R. 29.1 (time for filing amici briefs on rehearing)
This proposal clarifies procedures for filing amici briefs on rehearing. Specifically, the proposal makes clear when those briefs must be filed. The language of the proposed local rule tracks the language found in Fed. R. App. P. 29(e).
3) 10th Cir. R. 30.1(C) (reminder regarding large appendices)
This proposal adds language to clarify and remind parties that large appendices should be broken down into manageable volumes.
4) 10th Cir. R. 31.3(B) (statement of separate briefs)
This proposed change clarifies the language already found in the local rule and notes that where there are multiple parties on one side, and only one of those parties is a nongovernmental entity, that party need not include a “separate brief” statement (because governmental entities are exempt from this requirement).
5) 10th Cir. R. 39.1 (maximum rates for bills of cost)
This proposed change relates to the “per page” amount the court will allow, under Federal Rule of Appellate Procedure 39, in awarding costs to a prevailing party for copying charges. The current rule allows parties to seek up to 50 cents per-page in copying charges. The proposal is to change the amount to $0.20 per page. The change puts the 10th Circuit into closer alignment with the rest of the circuits’ local rules in this area.
Click here to review a memorandum from the Tenth Circuit regarding the changes.
Click here to read a complete draft of the rules.
Click here to read a complete draft of the rules including red line edits.
On January 1, 2012, new local rules for the United States Court of Appeals for the Tenth Circuit will take effect. From August 26 through October 23, the court invites comment and feedback from all interested parties on this year’s proposed changes. Please take a moment to review the changes below.
Comments may be emailed to the Court. In addition, interested parties are invited to call the office of the Clerk at (303) 844-3157 with any questions they may have. A final version of the rules will be posted on the court’s website on or around November 21, 2011.
Additionally, changes to Federal Rules of Appellate Procedure 4(a)(1) and 40(a)(1) will take effect on December 1, 2011. These changes are also outlined below.
Federal Rules of Appellate Procedure (changes will take effect December 1, 2011)
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
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 proposed 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)
(These proposals include changes to Rule 22.1(A), Rules 22.2(B) and (C) plus the elimination of Rules 22.2(D) and (E)).
The proposed changes to these rules are in the nature of language updates, but are extensive. The proposed changes are necessary to conform the local rules to the current practices of the court.
3) 10th Cir. R. 28.2(C)(6) (proposed new rule re: glossary of terms)
This proposed rule requires parties to include a glossary of terms in briefs which are acronym-intensive. The proposed rule speaks specifically to agency proceedings.
4) 10th Cir. R. 29.1 (proposed addition re: page limits for amicus briefs on rehearing)
This proposed local rule would make, with respect to page limits, amicus briefs on rehearing consistent with principal amicus briefs filed per Fed. R. App. P. 29.
5) 10th Cir. R. 46.3(A) (prerequisites for filing a motion to withdraw in a criminal case)
The court’s current local rule requires counsel to perfect the appeal in a criminal case prior to filing a motion to withdraw. Perfecting the appeal includes 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 proposed change will allow counsel to file a motion to withdraw following submission of an entry of appearance and docketing statement (only). There will no longer be a requirement to perfect the appeal before filing the motion.
Click here to review a memorandum from the Tenth Circuit regarding the changes.
Click here to read a complete draft of the rules.
Click here to read a complete draft of the rules including red line edits.
The 2011 Federal Rules of Appellate Procedure (FRAP) and Local Rules are now available on the Rule, Forms and Jury Instructions page of the Tenth Circuit website. The new FRAP are effective December 1, 2010, and the new Local Rules are effective January 1, 2011.
The memorandum on the federal and local rules changes can be found here.
The full list of all rules applicable to the Tenth Circuit can be found here.