October 17, 2017

Public Comment Period Open for 2018 10th Circuit Local Rules

On Tuesday, September 5, 2017, the Tenth Circuit Court of Appeals released its 2018 local rules for public comment. Comments will be accepted through October 31, 2017. A final version of the new rules will be posted on the Tenth Circuit’s website on December 1, 2017, and the rules will be effective January 1, 2018. A memo describing the changes to the local rules is available here, and a redline of the rule change is available here.

Effective December 31, 2017, two changes will be made to the Federal Rules of Appellate Procedure. Rule 4(a)(4)(B)(iii) will be changed to re-insert a sentence confirming that no fees are due when an amended notice of appeal is filed. Additionally, Rule 28.1(e)(3) will be deleted to correct a scrivener’s error; the rule should have been deleted last year.

Comments regarding the rule change may be submitted to the court clerk via email.

Public Comment Period Open for Changes to 10th Circuit Local Rules

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.

Comments regarding any of the changes may be submitted via email to clerk@ca10.uscourts.gov. For a memo outlining the various amendments, click here. For a redline of the changes, click here.

F.R.A.P. 6 and Tenth Circuit Local Rules Amended

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.

A memorandum issued by the Tenth Circuit explaining the changes to F.R.A.P. 6 and the Local Rules is available here. For a redline of the changes, click here.

Comment Period Open for Changes to the Federal Rules of Civil, Appellate, Bankruptcy, and Criminal Procedure

The Judicial Conference Committee on Rules of Practice and Procedure has opened the public comment period for several proposed changes to the following rules and forms:

  • Appellate Rules 4, 5, 21, 25, 26, 27, 28.1, 29, 32, 35, and 40, and Forms 1, 5, 6, and New Form 7;
  • Bankruptcy Rules 1010, 1011, 2002, 3002, 3002.1, 3007, 3012, 3015, 4003, 5009, 7001, 9006, and 9009, and New Rule 1012, and Official Forms 11A, 11B, 106J, 201, 202, 204, 205, 206Sum, 206A/B, 206D, 206E/F, 206G, 206H, 207, 309A, 309B, 309C, 309D, 309E, 309F, 309G, 309H, 309I, 312, 313, 314, 315, 401, 410, 410A, 410S1, 410S2, 416A, 416B, 416D, 424, and Instructions, and new Official Forms 106J-2 and 113;
  • Civil Rules 4, 6, and 82; and
  • Criminal Rules 4, 41, and 45.

A PDF of the proposed changes may be found here.

The public comment period closes on Tuesday, February 17, 2015, at 11:59 p.m. Members of the public who wish to present testimony may appear at public hearings on the proposed amendments.

Comments and supporting files must be submitted electronically using the Regulations.gov portal. After choosing the appropriate link below, click the “Submit a Comment” link. This will display the comment web form. You can then enter your submitter information and attach your comment as a file (up to 10MB), or type your comment directly on the web form. When you have finished attaching or typing your comment, click the “Preview Comment” link to review. Once you are satisfied with your comment, click the “Submit” button to send your comment to the advisory committees. Upon completion, you will receive a tracking number for your submission.

Detailed instructions on how to submit a comment are given in the Regulations.gov FAQs.

Comment Period Open for Proposed Changes to 10th Circuit Local Rules

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.

Tenth Circuit Seeks Comments on Proposed Local Rule Changes

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.

Tenth Circuit: Appellant’s Failure to Provide an Adequate Record on Appeal Constituted Waiver of Claims Concerning Sufficiency of Evidence at Trial

The Tenth Circuit published its opinion in United States v. Brody on Tuesday, January 29, 2013.

Patrick Merrill Brody was convicted after a jury trial of willful failure to file a tax return. Brody was sentenced to ten months’ imprisonment and filed this appeal challenging both his conviction and sentence.

The claims Brody raised required a review of items that were not provided in the record. Under the Tenth Circuit’s Rules of Appellate Procedure, “[t]he appellant must provide all portions of the transcript necessary to give the court a complete and accurate record of the proceedings related to the issues on appeal.” 10th Cir. R. 10.1(A)(1). An appellant’s failure to file a trial transcript precludes review of a conviction for sufficiency of the evidence. By failing to file a copy of the trial transcript as part of the record on appeal, the appellant waives any claims concerning the sufficiency of the evidence at trial.

Here, all of Brody’s claims failed, because he failed to provide the Court with the record the Court needed to assess each claim.

AFFIRMED.

Tenth Circuit: Phrase “Entered on the Criminal Docket” Means Judgment Must be Entered Publicly to Trigger Deadline to Appeal

The Tenth Circuit issued its opinion in United States v. Mendoza on Wednesday, November 7, 2012.

The Tenth Circuit determined whether a judgment was “entered on the criminal docket”  for purposes of Fed. R. App. P. 4(b)(6) if it is noted only on an internal district court document that is not publicly accessible.

Francisco Mendoza pled guilty to conspiring to distribute methamphetamine. The district court sentenced him to 135 months’ imprisonment and sealed the judgment. This filing was not noted or reflected on the docket sheet available to the public. The only evidence in the record that judgment was entered is a supplemental appendix filed by the government which contains a “Criminal Docket” titled “Internal Use Only.” Mendoza later filed a pro se notice of appeal. The government moved to dismiss the appeal as untimely.

A defendant choosing to appeal a criminal case must file a notice of appeal within fourteen days after “the entry of either the judgment or the order being appealed.” Fed. R. App. P. 4(b)(1)(A)(i). The deadline to appeal begins to run upon entry of judgment. A judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket.

The government argues that judgment was “entered on the criminal docket” when the court filed a sealed judgment and noted this filing on a document titled “Criminal Docket . . . Internal Use Only.” Mendoza contends that judgment was never entered because the publicly available docket sheet contains no indication that a judgment has issued.

The Tenth Circuit concluded that the procedure followed in this case did not satisfy Rule 4(b)(6). Dockets and docket sheets have traditionally been considered public documents. Consistent with a centuries-long history of public access to dockets, the Court held that the phrase “entered on the criminal docket” contemplates public notation that judgment has been entered. Entry on a list of filings maintained for internal court use and inaccessible to the public did not qualify under the meaning of Rule 4(b)(6). Because judgment was never entered on Mendoza’s criminal docket, the Court rejected the government’s contention that his appeal was untimely. Nevertheless, the Court denied Mendoza’s substantive claim on the merits.

Government’s motion to dismiss the appeal DENIED and Mendoza’s sentence AFFIRMED.

Comment Period Open for Changes to Federal Rules of Practice and Procedure

The United States Courts has opened the public comment period for several proposed changes to the Federal Rules of Practice and Procedure. Comments must be submitted in writing by February 15, 2013.

The changes affect the Federal Appellate, Bankruptcy, Criminal, and Evidence rules. They were approved for publication by the Judicial Conference Advisory Committees on the Appellate, Bankruptcy, Criminal, and Evidence Rules on June 11, 2012, and the public comment period opened August 15, 2012.

The following rules were affected by the proposed changes:

  • Federal Rules of Appellate Procedure, Rule 6;
  • Federal Rules of Bankruptcy Procedure, Rules 1014(b), 7004(e), 7008, 7012, 7016, 7054, 8001-8028, 9023, 9024, 9027, and 9033, and Offiical Forms 3A, 3B, 6I, 6J, 22A-1, 22A-2, 22B, 22C-1, and 22C-2;
  • Federal Rules of Criminal Procedure, Rules 5(d) and 58;  and
  • Federal Rules of Evidence, Rules 801(d)(1)(B) and 803(6), (7), and (8).

A PDF of the changes can be found here. Comments must be submitted to the Advisory Committees in writing, and will be reviewed then made part of the public record. All comments can be viewed through the U.S. Courts website by clicking the links to the Rules sets.

Tenth Circuit Proposes Changes to Local Rules for 2013 and Seeks Comment

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.

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.