[Federal Register Volume 61, Number 242 (Monday, December 16, 1996)]
[Notices]
[Pages 66025-66026]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31756]
[[Page 66025]]
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DEPARTMENT OF DEFENSE
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
(italicized) to Rules 10, 26, 43 (new), 43A (new), and 44 of the Rules
of Practice and Procedure, United States Court of Appeals for the Armed
Forces for public notice and comment:
Rule 10. Docket
* * * * *
(d) Entry of Judgment. The Clerk shall prepare, sign, date and
enter the judgment immediately upon the filing of the opinion of the
Court. If a judgment is rendered without an opinion, the Clerk shall
prepare, sign, date and enter such judgment in an order following
instruction from the Court. The Clerk shall, on the date a judgment is
entered, distribute to all parties and the Judge Advocate General of
the service in which the case arose a copy of the judgment and opinion,
if any, or of the order if no opinion was written. See Rule 43.
Rule 26. Amicus Curiae Briefs
* * * * *
(e) [new] A member of the Bar of the Court who represents an amicus
curiae and is authorized to file a brief under paragraph (a) of this
rule may file a motion for leave to have a law student enter an
appearance on behalf of the amicus curiae. To be eligible to
participate under this rule, a law student must be acting under the
attorney's supervision and the attorney and the law student must
substantially comply with the requirements of Rule 13A (b)(1)-(5) and
(d)(1)-(3). Argument by a law student granted permission to appear on
behalf of an amicus curiae may be requested by motion filed under Rule
30.
Rule 42. Entry of Judgment [New]
(a) Immediately upon the filing of an opinion of the Court, the
Clerk shall prepare, sign, date and enter the judgment. The notation of
a judgment in the docket constitutes entry of the judgment. On the date
judgment is entered, the Clerk shall distribute to all parties and the
Judge Advocate General of the service in which the case arose a copy of
the opinion and judgment. See Rule 10(d).
(b) If a judgment is rendered without an opinion, the Clerk shall
prepare, sign, date and enter such judgment in an order following
instruction from the Court. Notation of such order in the docket
constitutes entry of the judgment and the effective date of the
judgment is the date of that order. On the date such order is entered,
the Clerk shall distribute to all parties and the Judge Advocate
General of the service in which the case arose a copy of the order. See
Rule 10(d).
Rule 43A. Issuance of Mandate [Old Rule 43 as changed]
(a) The mandate of the Court shall issue 7 days after the
expiration of the time for filing a petition for reconsideration under
Rule 31(a) unless such a petition is filed or the time is shortened or
enlarged by order. A certified dated copy of the judgment and a copy of
the opinion of the Court, if any, shall constitute the mandate, unless
the Court directs that a formal mandate issue. The timely filing of a
petition for reconsideration shall stay the mandate until disposition
of the petition unless otherwise ordered by the Court. If the petition
is denied, the mandate shall issue 7 days after entry of the order
denying the petition unless the time is shortened or enlarged by order.
In any case, the Court may order the mandate to issue forthwith.
(b) The effective date of any order shall be the date of that
order, and no mandate shall issue. The Clerk shall distribute copies of
all such orders to all parties and the Judge Advocate General of the
service in which the case arose.
Rule 44. Judicial Conference
[Delete from paragraph (a) the ``(a)'' and the section title
``Purpose'' and the second sentence, and delete paragraph (b) in its
entirety to read as follows:]
There shall be held annually, at such time and place as shall be
designated by the Court, a conference for the purpose of considering
the state of business of the Court and advising on ways and means of
improving the administration of military justice.
Rules Advisory Committee Comment on Proposed Rules 10, 43, and 43A
The Committee notes the absence in the Court's rules of any
provision for the entry of a judgment and the distribution of a copy of
the judgment to all parties when the Court issues an opinion. This
omission makes it presently impossible to determine with confidence the
beginning of the 90-day period within which a petition for a writ of
certiorari may be filed under Supreme Court Rule 13.1. To remedy this
situation, the Committee has drafted recommended changes to Rule 10(d)
(Entry of final decision) and Rule 43 (Issuance of Mandates) as well as
a new Rule (Entry of Judgment) which reflects the relevant provisions
of Rules 36 and 41 of the Federal Rules of Appellate Procedure (FRAP).
The Court's current practice differentiates between two types of
case dispositions when an opinion is issued: (1) opinions which finally
dispose of a case by affirmance or reversal, in whole or in part, or
the lower court's decision are followed as a ``mandate'' of the Court
issued under current Rule 43; and (2) opinions in which a case is
remanded to the lower court or to a convening authority or court-
martial for further interlocutory proceedings are followed by a
``Finality Order'' or ``Because Order'' which is issued in lieu of a
mandate. The Committee recommends that this distinction and practice be
discontinued and that a judgment and mandate be issued in all cases in
which an opinion is filed, since the present practice departs for no
reason from that of the geographical circuits. Indeed, the Committee
has determined that no matter what type or kind of dispositive action a
court of appeals directs in an opinion in a criminal case, a judgment
document is prepared and entered upon the filing of the opinion of the
court under FRAP 36, and a mandate of the court is issued separately as
required by FRAP 41.
The Committee considers it appropriate to promulgate the
recommended changes in order to conform the Court's practice to that of
the other courts of appeals and to remove the present uncertainty as to
when the 90-day period begins to run for filing a petition for a writ
of certiorari.
Rules Advisory Committee Comment on Proposed Rule 26
The Court has previously allowed students to appear on behalf of an
amicus curiae on an ad hoc basis. Although the Court will continue to
do so, the rule has been amended to provide some guidance to those
seeking leave of court to have law students appear in this capacity.
While literal compliance with the requirements for student practice on
behalf of parties is not necessarily, the rule reflects a desire to
limit amicus participation to students who have completed a substantial
portion of their legal studies and are undertaking representation with
appropriate supervision from a member of the Bar of this Court. Only
law students who substantially comply with the requirements of Rule
13A(b) (1)-(5) and who are under the supervision of attorneys who
substantially comply with Rule 13A(d) (1)-(3) will be
[[Page 66026]]
considered eligible for participation under this rule.
Rules Advisory Committee Comment on Proposed Rule 44
The purpose of the proposed rule change is to conform the rule more
closely to the Court's practice. Since the Court has not conducted a
Judicial Conference other than in the context of the Homer Ferguson
Conference, and has taken to referring to that annual proceeding as its
Judicial Conference, no purpose is served by distinguishing between the
two. In addition, the list of invitees currently set out in paragraph
(b) is unnecessary.
* * * * *
DATE: Comments on the proposed changes must be received by February 14,
1997.
ADDRESS: Forward written comments Thomas F. Granahan, Clerk of Court,
United States Court of Appeals for the Armed Forces, 450 E Street,
Northwest, Washington, DC 20442-0001.
FOR FURTHER INFORMATION CONTACT: Thomas F. Granahan, Clerk of Court,
telephone (202) 761-1448 (x600).
Dated: December 10, 1996.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 96-31756 Filed 12-13-96; 8:45 am]
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