June 26, 2019

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: State Employment and Tort Claims Barred by Federal Enclave Doctrine

The Tenth Circuit Court of Appeals published its opinion in Allison v. Boeing Laser Tech. Servs. on Friday, August 10, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner “was a civilian employee of [Respondent], a federal contractor located on Kirtland Air Force Base. Kirtland Air Force Base is a federal enclave: it is located on land that New Mexico ceded to the federal government in 1952 and 1954. Since that time the federal government has exercised exclusive jurisdiction within the boundaries of the Base. [Petitioner] was terminated . . . [and] filed suit in state court, alleging that [Respondent] discharged him in retaliation for reporting corporate fraud to the Air Force. His claims were all based on state law theories—wrongful discharge, breach of implied contract, breach of covenant of good faith and fair dealing, retaliatory discharge, prima facie tort, and defamation.”

“It is well-established that after a state has transferred authority over a tract of land creating a federal enclave, the state may no longer impose new state laws on these lands. But state laws enacted before the cession continue to apply unless Congress specifically overrides them. The question here is whether state common law causes of action recognized after the state ceded the enclave to the federal government are available on federal enclaves. This question is governed by a long string of Supreme Court precedent that makes it clear that the law on a federal enclave is the state law that governed the land at the time the federal government established the enclave, not state law enacted thereafter—unless that law was expressly adopted by the enclave’s new sovereign, the federal government.”

“[Petitioner]’s causes of action arose from conduct on Kirtland Air Force Base, a federal enclave established in 1954. Because [Petitioner]’s state law claims are based on legal theories created by common law after that date, they are barred unless federal statutory law allows them to go forward. Because no federal statute authorizes state employment and tort claims of the sort here to be asserted against federal contractors, [Petitioner]’s suit is barred by the federal enclave doctrine.”

Colorado Court of Appeals: Regulation Rendering Canadian Offenders Serving Life Sentences Ineligible for Transfer Conflicts with Treaty

The Colorado Court of Appeals issued its decision in Gandy v. Colorado Dep’t of Corrs. on June 21, 2012.

Life Sentence—Transfer of Offenders Treaty Between the United States and Canada on the Execution of Penal Sentences—Regulation 550-05(IV)(C)(7)—Supremacy Clause of the U.S. Constitution.

Plaintiff Robert Gandy, a Canadian citizen serving a life sentence, appealed the district court’s dismissal of his suit against the Colorado Department of Corrections (DOC). The order was vacated and the case was remanded.

Gandy applied to the DOC, pursuant to the Transfer of Offenders Treaty Between the United States and Canada on the Execution of Penal Sentences (Treaty), to be transferred to the Canadian penal system to serve the remainder of his sentence. The DOC denied the application on the basis that Gandy was serving a life sentence, which, it asserted, rendered him ineligible for transfer under Regulation 550-05(IV)(C)(7) (Regulation). Gandy sued, alleging, among other things, that the basis of the DOC’s denial was contrary to a federal treaty. Gandy’s suit was dismissed.

On appeal, Gandy argued that the trial court erred in dismissing his suit because the Regulation conflicts with the Treaty and thereby violates the Supremacy Clause of the U.S. Constitution. Under the Treaty, offenders serving life sentences are eligible for transfer. Thus, applying the Regulation to render Canadian offenders serving life sentences ineligible for transfer conflicts with the Treaty and is an obstacle to the accomplishment and execution of its full purposes. Therefore, the DOC impermissibly applied its administrative regulation in contravention of the applicable federal treaty. Accordingly, Gandy stated a claim for which relief can be granted, and the district court erred when it ruled otherwise and dismissed Gandy’s claim on that basis.

Summary and full case available here.

HB 12-1175: Colorado Agencies Bound by Federal Law Encouraged to Seek Waiver of Federal Law and Instead Promulgate Colorado Laws

On January 20, 2012, Rep. Amy Stephens and Sen. Bill Cadman introduced HB 12-1175 – Concerning the Encouragement of a State Agency to Pursue Colorado-Specific Solutions in Lieu of Federal Regulation Whenever Possible, and, in Connection Therewith, Requiring a State Agency to Report Annually Regarding Opportunities for Waiver from Newly Adopted Federal Regulations. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill encourages a Colorado state agency that is potentially impacted by, subject to, or charged with administering federal rules and regulations that expressly allow a state to opt out of the regulations to seek the waiver. An agency is required to report annually to the general assembly regarding the agency’s opportunities for and attempts at obtaining such waivers. On February 28, the bill cleared the Economic and Business Development Committee and is now awaiting action on 2nd Reading on the House floor.

Since this summary, the bill passed the Second Reading and was laid over daily for the Third Reading in the House.

Summaries of other featured bills can be found here.