[Federal Register: September 14, 2005 (Volume 70, Number 177)]
[Notices]
[Page 54370-54372]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14se05-60]
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DEPARTMENT OF DEFENSE
Office of the Secretary
U.S. Court of Appeals for the Armed Forces Proposed Rule Changes
ACTION: Notice of Proposed Changes to the Rules of Practice and
Procedure of the United States Court of Appeals for the Armed Forces.
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SUMMARY: This notice announces the following proposed changes to Rules
36, 39, 21(b)(6), 24(a), 28(a), 32, 34(b), and 10(a)(3) of the Rules of
Practice and Procedure, United States Court of Appeals for the Armed
Forces for public notice and comment. New language is in bold print.
DATES: Comments on the proposed changes must be received by October 14,
2005.
FOR FURTHER INFORMATION CONTACT: William A. DeCicco, Clerk of Court,
telephone (202) 761-1448 (ext. 600).
Proposed Revision to Rule 36
Rule 36. Filing of Pleadings
(a) In general. Pleadings or other papers relative to a case shall
be filed in the Clerk's office, 450 E Street, Northwest, Washington, DC
20442-0001, either in person, by mail, or by third-party commercial
carrier. See Rule 37(b)(2).
(b) Filing in person. (no change).
(c) Filing by mail or third-party commercial carrier. If a pleading
or other paper is filed by mail, such filing shall consist of
depositing the pleading or other paper with the United States Postal
Service, with no less than first-class postage prepaid, properly
addressed to the Clerk's office. If a pleading or other paper is filed
through a third-party commercial carrier, such filing shall consist of
delivery to the commercial carrier for delivery within 3 calendar days.
(d) Time of filing. Pleadings or other papers shall be deemed to
have been filed on the date they are delivered to the Clerk's office
under subsection (b) or on the date they are mailed or delivered to a
commercial carrier under subsection (c). See Rules 37(b)(1) and 39(e).
(e) Non-compliant pleadings. (no change).
[[Page 54371]]
Explanatory Note for Rule 36 (Filing of Pleadings):
Rule 36 has been amended to allow for filing of pleadings and other
papers by ``third-party commercial carrier'' (e.g., FedEx or UPS). For
purpose of filing, if a commercial carrier is used it must be for
delivery within 3 calendar days. This rule change was made to reflect
the fact that third-party commercial carriers are well-established and
this means of delivery of documents should be available to counsel. The
rule is consistent with the Federal Rules of Appellate Procedure, Rule
25(B), relating to briefs. Those rules, however, would not deem other
pleadings or papers filed until they are received by the Clerk of the
Court.
Proposed Revision to Rule 39
Rule 39. Service of Pleadings
(a) In general. At or before the filing of any pleading or other
paper relative to a case in the Clerk's office, a copy thereof shall be
served on all counsel of record, including amicus curiae counsel, in
person, by mail, by third-party commercial carrier, or by electronic
means if the party being served consents. See Rule 16(b). When a party
is not represented by counsel, service shall be made on such party in
person, by mail, or by third-party commercial carrier. When reasonable,
considering such factors as the immediacy of the relief sought,
distance, and cost, service must be at least as expeditious as the
manner used to file the pleading or other paper with the Court. See
Rule 36.
(b) Personal service. (no change).
(c) Service by mail. (no change).
(d) Service by third-party commercial carrier. If service is made
by a third-party commercial carrier, it shall be for delivery within 3
calendar days.
(e) Time of service. Personal service is complete on delivery.
Service by mail or third-party commercial carrier is complete on
mailing or delivery to the carrier. Service by electronic means is
complete upon transmission.
(f) Certificate for review. (no change other than redesignation of
subparagraph).
(g) Form of certificate of filing and service. A certificate
indicating the specific manner of filing under Rule 36 and the specific
manner of service under this rule shall be included in any pleading or
other paper substantially in the following form:
Certificate of Filing and Service
I certify that the original and seven copies of the foregoing were
[delivered] (or) [mailed--specify class] (or) [delivered to--specify
the name of the third-party commercial carrier--for delivery-specify
within how many days delivery will be effected] to the Court on ------
-------------- (date) and -------- that a copy of the foregoing was
[delivered] (or) [mailed--specify class] (or [delivered to--specify the
name of the third-party commercial carrier-for delivery--specify within
how many days delivery will be effected] (or) [transmitted by
electronic means with the consent of the counsel being served--specify
the electronic mail address or facsimile number used] to (enter
specific name of each counsel of record or party, if not represented)
on -------------------- (date).
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(Typed name and signature of certifying person)
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(Address and telephone no. of certifying person)
Explanatory Note for Rule 39 (Service of Pleadings):
Rule 39 has been amended to allow for service of pleadings and
other papers by third-party commercial carrier. For purpose of service,
if a commercial carrier is used it must be for delivery within 3
calendar days. This rule change was made to reflect the fact that
third-party commercial carriers are well-established and this means of
delivery of documents should be available to counsel. A similar
provision can be found in the Federal Rules of Appellate Procedure,
Rule 25(c)(1)(C). Under the rule, generally, service should be as
expeditious as filing.
Rule 39 also allows for service of documents by electronic means
with the consent of the party being served, if the party is represented
by counsel. Service by facsimile or by e-mail is faster and more
economical. It also gives the party being served the opportunity to
start work on a reply (if any) and to share the document with others
(co-counsel, etc.) promptly and efficiently. The rule only applies when
both sides are represented by counsel. The Federal Rules of Appellate
Procedure, Rule 25(c)(1)(C), allows for electronic service with consent
but the consent must be in writing.
Other Rules Requiring Change Due To the Above
Proposed Revision To Rule 21(b)(6):
(6) A certificate of filing and service in accordance with Rule
39(g).
Proposed Revision To Rules 24(a), 28(a), and 32:
Rules 24(a), 28(a), and 32, pertaining to certificates of filing
and service for Briefs, Petitions for Extraordinary Relief, and
Petitions for Reconsideration:
Rule 24(a):
Certificate of Filing and Service
I certify that a copy of the foregoing was [delivered] (or)
[mailed--specify class] (or) [delivered to-specify the name of the
third-party commercial carrier--for delivery and specify within how
many days delivery will be effected] to the Court and [delivered] (or)
[mailed-specify class] (or) [delivered to--specify the name of the
third--party commercial carrier--for delivery and specify within how
many days delivery will be effected] (or) [transmitted by electronic
means with the consent of the counsel being served] to ----------------
-------------- (e-mail or facsimile no.) on --------------------
(date).
Where more than one counsel or party is being served, the
certificate should specify how each party or counsel was served.
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(Typed name and signature of certifying person)
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(Address and telephone no. of certifying person)
Rule 28(a):
Certificate of Filing and Service
I certify that a copy of the foregoing was [delivered] (or)
[mailed--specify class] (or) [delivered to-specify the name of the
third-party commercial carrier--for delivery and specify within how
many days delivery will be effected] to the Court, [delivered] (or)
[mailed-specify class] (or) [delivered to-specify the name of the
third-party commercial carrier--for delivery and specify within how
many days delivery will be effected] (or) to the [trial or appellate
military judge whose decision, judgment, or order is the subject of the
petition], and [delivered] (or) [mailed--specify class] (or) [delivered
to--specify the name of the third-party commercial carrier--for
delivery and specify within how many days delivery will be effected]
(or) [transmitted by electronic means with the consent of the counsel
being served--specify the electronic mail address or facsimile number
used] to ------------------------------ (e-mail or facsimile no.), the
[respondent] [appellee] on -------------------- (date).
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(Typed name and signature)
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(Address and telephone no.)
Rule 32:
[[Page 54372]]
Certificate of Filing and Service
I certify that a copy of the foregoing was [delivered] (or)
[mailed--specify class] (or) [delivered to--specify the name of the
third-party commercial carrier--for delivery and specify within how
many days delivery will be effected] to the Court and [delivered] (or)
[mailed-specify class] (or) [delivered to--specify the name of the
third-party commercial carrier--for delivery and specify within how
many days delivery will be effected] (or) [transmitted by electronic
means with the consent of counsel being served] to the [appellant]
[appellee] [petitioned] [respondent] on -------------------- (date).
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(Typed name and signature)
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(Address and telephone no.)
Rule 34(b):
(b) Additional time when service not made in person.
Whenever a party has the right or is required to do some act within
a prescribed period after the issuance of an order or the filing of a
notice, pleading, or other paper relative to a case when service
thereof is made upon him by mail, 5 days will be added to the
prescribed period if the party upon whom the service is made is within
the limits of the contiguous 48 States and the District of Columbia,
and 15 days will be added if the party is located outside these limits,
including the States of Alaska and Hawaii. If service is made by
delivery to commercial third-party carrier or electronically, an
additional 3 days will be added to the prescribed period, regardless of
the location where service is made. This provision for additional time
shall not apply, however, to the time limitations prescribed in Rule
19(a)(1) for the filing of a petition for grant of review.
Explanatory Note for Rules 21(b)(6), 24(a), 28(a), 32, and 34(b):
Rules 21(b)(6), 24(a), 28(a), 32, and 34(b) pertaining to
certificates of filing and service have been amended to reflect the
changes in Rules 36 and 39.
Rule 10(a)(3):
(3) a special docket to the matters arising under Rule 15
concerning complaints of unprofessional conduct against a member of the
Bar of this Court, and petitions and other correspondence that are not
docketed on another docket, and that are returned to the sender.
Explanatory Note for Rule 10(a)(3):
This amendment establishes a new special docket for documents that
are returned to the sender without the Court taking any action. The
reason for this change is to retain a record of the receipt by the
Court of the document as well as the decision to not take any action or
to docket the document on the regular docket kept by the Court.
Dated: September 8, 2005.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 05-18177 Filed 9-13-05; 8:45 am]
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