[Federal Register Volume 60, Number 16 (Wednesday, January 25, 1995)]
[Notices]
[Pages 4893-4896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1879]



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DEPARTMENT OF DEFENSE

Proposed Changes to U.S. Court of Appeals for the Armed Forces 
Rules

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 Rule 4(b), Rule 19(d), Rule 27(a)(1)(E), Rule 30 and 
Rule 31 of the Rules of Practice and Procedure, United States Court of 
Appeals for the Armed Forces, and the proposed addition of a Student 
Practice Rule for public notice and comment:

Rule 4. Jurisdiction

* * * * *
    (b) Extraordinary Writs.
    (1) The Court may, in its discretion, entertain original petitions 
for extraordinary relief including, but not limited to, writs of 
mandamus, writs of prohibition, writs of habeas corpus, and writs of 
error coram nobis. See 28 USC 1651(a) and Rules 18(b), 27(a), and 28. 
Absent good cause, no such petition shall be filed unless relief has 
first been sought in the appropriate Court of Criminal Appeals. 
Original writs are rarely granted. [[Page 4894]] 
    (2) The Court may, in its discretion, entertain a writ appeal 
petition to review a decision of a Court of Criminal Appeals on a 
petition for extraordinary relief. See Rules 18(a)(4), 27(b), and 28.
* * * * *

Rule 19. Time Limits

* * * * *
    (d) Petition for extraordinary relief. A petition for extraordinary 
relief under Rule 4(b)(1) shall be filed, with a supporting brief and 
any available record, as soon as possible but, in any event, no later 
than 20 days after the petitioner learns of the action complained of. 
However, a petition for writ of habeas corpus or writ of error coram 
nobis may be filed at any time. See Rules 27(a) and 28.
* * * * *

Rule 27. Petition for Extraordinary Relief, Writ Appeal Petition, 
Answer, and Reply

    (a) Petition for extraordinary relief. (1) A Petition for 
extraordinary relief, together with any available record, shall be 
filed within the time prescribed by Rule 19(d), shall be accompanied by 
proof of service on all named respondents, and shall contain:
* * * * *
    (E) The jurisdictional basis for the relief sought, including an 
explanation of how the writ will be in aid of the Court's jurisdiction; 
the reasons the relief sought cannot be obtained during the ordinary 
course of trial or appellate review or through administrative 
procedures; and the reasons relief has not been sought from the 
appropriate Court of Criminal Appeals, if that is the case, see Rule 
4(b)(1); and
* * * * *

Rule 30. Motions

* * * * *
    (b) An answer to a motion may be filed no later than 5 days after 
the filing of the motion.
    (c) [New] A reply to an answer to a motion may be filed no later 
than 5 days after the filing of the answer.
* * * * *
    [Subsections (c) through (f) to be redesignated as subsections (d) 
through (g), respectively.]
    (g) [As redesignated] Notwithstanding any other provision of these 
rules, the Court may immediately act on any motion without awaiting an 
answer or a reply, if it appears that the relief sought ought to be 
granted. * * *
* * * * *

Rule 31. Petition for Reconsideration

* * * * *
    (c) [New] A reply to an answer to a petition may be filed no later 
than 5 days after the filing of the answer.
    [Subsections (c) and (d) to be redesignated subsections (d) and 
(e), respectively.]

Proposed Student Practice Rule

a. Appearance by Law Student
    With leave of this Court, an eligible law student acting under a 
supervising attorney may appear in a particular case, except a case in 
which any party is under or is potentially subject to a sentence of 
death, on behalf of any party, including the United States, provided 
that the student and supervising attorney comply with the provisions of 
this rule.
b. Eligibility of Student
    To be eligible to appear and participate in any case, a law student 
must:
    (1) Be a student in good standing in a law school approved by the 
American Bar Association, or be a recent graduate of such school 
awaiting the result of a state bar examination;
    (2) Have completed legal studies amounting to at least four 
semesters, or the equivalent if the school is on some basis other than 
a 3 year, 6 semester basis;
    (3) Have completed and received a passing grade in courses in 
criminal procedure and criminal law;
    (4) Neither ask for nor receive any compensation or remuneration of 
any kind from the person on whose behalf the services are rendered; and
    (5) Be familiar with the Uniform Code of Military Justice and the 
rules of this Court.
c. Supervising Attorney Requirements
    A supervising attorney must:
    (1) Be an attorney of record in the case;
    (2) Be a member in good standing of the bar of this Court;
    (3) Have been admitted to practice for a minimum of two years and 
have appeared and argued in at least one case before this Court or 
appeared and argued in at least three cases before state or Federal 
appellate courts;
    (4) Not supervise more than five (5) students at any one time;
    (5) Appear with the student in any oral presentations before this 
Court;
    (6) Read, approve and sign all documents filed with this Court;
    (7) Assume personal professional responsibility for the student's 
work in matters before this Court;
    (8) Be responsible to supplement the oral or written work of the 
student as necessary to ensure proper representation of the client;
    (9) Guide and assist the student in preparation to the extent 
necessary or appropriate under the circumstances;
    (10) Be available to consult with the client; and
    (11) Neither ask for nor receive any compensation or remuneration 
of any kind from the person on whose behalf the services are rendered.
d. Authorization and Certification
    (1) The party on whose behalf the student appears must consent to 
the representation by that student in writing.
    (2) The supervising attorney must indicate in writing approval of 
the appearance by the law student and consent to supervise the law 
student.
    (3) The law student must be certified by the dean of the student's 
law school as being of good character and competent legal ability.
    (4) Before commencing student representation in any case under this 
rule, the supervising attorney shall file a motion for leave to allow 
student representation in such case. The motion should put forth that 
the provisions of this rule have been met and that in counsel's view 
the case is an appropriate one for student representation. The written 
consent, approval and certification referred to above shall be attached 
to the motion. A copy of the motion shall be served on opposing 
counsel, but no answer will be allowed except with leave of the Court. 
Once these documents are filed, the Court will decide, using its 
description on a case-by-case basis, whether to allow the student 
representation.
e. Activities
    Upon fulfilling the requirements of this rule, the student may 
enter an appearance in a case and:
    (1) assist in the preparation of briefs and other documents to be 
filed in this Court, but such briefs or documents must also be signed 
by the supervising attorney;
    (2) participate in oral argument, but only in the presence of the 
supervising attorney; and
    (3) take part in other activities in connection with the case, 
subject to the direction of the supervising attorney.
f. Termination
    The dean's certification of the student:
    (1) shall remain in effect, unless sooner withdrawn, until the 
publication of the results of the first bar examination taken by such 
student following the student's graduation. For any student 
[[Page 4895]] who passes that examination the certification shall 
continue in effect until the date the student is admitted to the bar;
    (2) may be withdrawn by the Court at any time; and
    (3) may be withdrawn by the dean at any time.
g. Exceptions
    (1) This rule does not apply to an appearance or an oral argument 
by a law student on behalf of an amicus curiae. A law student may 
appear on behalf of an amicus curiae on motion and in accordance with 
the provisions of Rules 26 and 40(b)(2).
    (2) Nothing in this rule shall preclude the Government or any 
agency, firm, or organization from compensating a law student for 
services rendered under such rule.
    (3) The Court retains the authority, on good cause shown, to 
establish exceptions to these procedures in any case. See Rule 33.

DATES: Comments on the proposed changes and addition must be received 
by February 24, 1995.

ADDRESSES: Forward written comments to Thomas F. Granahan, Clerk of the 
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 the Court, telephone (202) 272-1448 
(x600).

SUPPLEMENTARY INFORMATION: The Rules Advisory Committee Report on the 
proposed changes to Rule 4(b), Rule 19(d), Rule 27(a)(1)(E), Rule 30, 
and Rule 31 and the Proposed Student Practice Rule is included as an 
attachment to this notice.
Committee Report on Proposed Rules 4(b) and 27(a)(1)(E)
    The purpose of the proposed changes to Rules 4(b) and 27(a)(1)(E) 
is to make clear to practitioners that a petition for extraordinary 
relief should not be filed with the Court unless efforts to obtain the 
requested relief from the appropriate Court of Criminal Appeals 
(formerly Court of Military Review) have been unavailing. See, e.q., 
United States v. Coffey, 38 MJ 290, 291 (CMA 1993) (per curiam). Since 
those courts have All Writs Act powers, and share with the Judge 
Advocates General responsibility for the administration of military 
justice in their branch of the service, it is only sensible that they 
be afforded an opportunity to address extraordinary writ issues before 
they reach the United States Court of Appeals for the Armed Forces 
(formerly Court of Military Appeals). This will give those closest to 
the issues a chance to bring their experience to bear, and in some 
number of cases may make it unnecessary for the Court of Appeals for 
the Armed Forces to become involved. Even if relief is denied by the 
Court of Criminal Appeals, their consideration may help to frame the 
issues and develop a record. Both of these factors will facilitate 
efficient and intelligent review by the Court of Appeals for the Armed 
Forces. It is presumed, on the other hand, that extraordinary writ 
cases will be addressed expeditiously by the Courts of Criminal 
Appeals.
    In keeping with the policy underlying Article 36(a), that military 
practice should conform to the extent practicable with civilian federal 
practice, these proposed rule changes take into account the practice of 
the Supreme Court and the Article III courts of appeals. Fed.R.App.P. 
22(a) requires that original habeas corpus petitions be filed in the 
district court. (The part of Fed.R.App.P. 22(a) that calls for resort 
to the district court merely made former practice explicit. 9 Moore's 
Federal Practice  222.01[2], at 22-3 (James Wm. Moore, Bernard J. Ward 
& Jo Desha Lucas 2d ed. 1993) (Advisory Committee Note).)
    The Supreme Court discourages the filing of original extraordinary 
writ petitions with it. S.Ct.R. 20.1, 20.3, 20.4; Robert L. Stern, 
Eugene Gressman, Stephen M. Shapiro & Kenneth S. Geller, Supreme Court 
Practice Sec. 11.3, at 501-03 (7th ed. 1993) (last time Court granted 
original habeas petition was in 1925); see also 28 USC 2242 (1988) 
(habeas application directed to a Justice ``shall state the reasons for 
not making application to the district court of the district in which 
the applicant is held'').
    Because courts-martial are not standing bodies, requiring resort to 
the trial court is not feasible in the military context. Requiring 
resort to the intermediate courts serves similar purposes.
    These proposed rule changes permit a petitioner to petition the 
Court of Appeals for the Armed Forces without having first sought 
relief from the Court of Criminal Appeals only if there is good cause 
to do so. This exception has been included only because it is 
impossible to anticipate all eventualities. It is intended that a 
stringent standard would be applied in this connection. The Committee 
believes that what constitutes good cause for this purpose will be 
spelled out by the Court in its opinions. While we have used the term 
already used by the Court for requests to suspend the Rules, see Rule 
33, and by Congress in Article 67(a)(3) with respect to petitions for 
grant of review, we do not, by so doing, mean to imply that the 
standards would be comparable. Extraordinary writs are and should 
remain extraordinary, and bypassing the Courts of Criminal Appeals 
should be permitted sparingly and only for compelling reasons.
    The Committee considered inserting in Rule 27(a)(1)(E) a clause 
requiring counsel to state the exceptional circumstances that are 
believed to warrant an exercise of the Court's discretionary powers. 
This proposal was not adopted because the Committee believes that such 
a requirement is already implicit in Rule 27(a)(1)(F), which requires 
counsel to state the ``[r]easons for granting the writ.'' Subdivision 
(E) speaks to jurisdiction, rather than the divers prudential factors 
that bear on whether the Court's All Writs Act authority should be 
exercised.
    These proposed rule changes originated with a version proposed by 
Judge Richard M. Mollison of the United States Navy-Marine Corps Court 
of Criminal Appeals.
Committee Report on Proposed Rule 19(d)
    The Court's Rules Advisory Committee, with one member dissenting, 
recommends that Rule 19(d) be changed to eliminate the apparent 20-day 
time limit for petitioning the Court for a writ of error coram nobis.
    Noting that only petitions for writ of habeas corpus are expressly 
exempted from the 20-day time limit established by Rule 19(d), the 
Committee suggests the failure also to exempt petitions for writ of 
error coram nobis may be due to an oversight by the drafters of Rule 
19.
    The All Writs Act, 28 USC 1651(a), which is the basis for the 
Court's extraordinary relief jurisdiction, establishes no fixed time 
limit for applications for writs of error coram nobis. See United 
States v. Morgan, 346 U.S. 502 (1954) (writ available after sentence 
already served when the conviction was sought to be used to enhance 
sentence on a later conviction).
    When Rule 19 was drafted, the Court of Appeals for the Armed Forces 
had not previously suggested any time limit for the filing of a 
petition for writ of error coram nobis. See Del Prado v. United States, 
 23 USCMA 132, 48 CMR 748, 749 (1974) (citing United States v. Morgan, 
supra). Nor has the Court strictly enforced its present rule. Cf. 
Garrett v. Lowe, 39 MJ 293, 295 and n.2 (CMA 1994). Coincidentally, the 
joint Courts of Criminal Appeals (formerly Courts of Military Review) 
Rules do not impose a time limit on any petitions for extraordinary 
relief, including those for [[Page 4896]] writs of error coram nobis. 
Joint Ct. Crim. App. R. 20, 22 MJ at cxxxv (1985); see Tillman v. 
United States, 32 MJ 962 (ACMR 1991); but see AFCMR R. 5-2b (1992) 
(time limits same as Ct. Crim. App. r. 19(d)). Accordingly, the Rules 
Advisory Committee recommends that the last sentence of Rule 19(d) be 
amended to read as follows: ``However, a petition for writ of habeas 
corpus or writ of error coram nobis may be filed at any time.''
Committee Report on Proposed Rules 30 and 31
    The purpose of these proposed rule changes is to eliminate the need 
for counsel to seek leave of court when filing replies to answers to 
motions generally and petitions for reconsideration. E.g., D.C. Cir. R. 
27(d); 4th Cir. IOP 27.3; D.D.C.R. 108(d); Fed. C1. R. 83.2; see Robert 
L. Stern, Eugene Gressman, Stephen M. Shapiro & Kenneth S. Geller, 
Supreme Court Practice Sec. 16.6, at 642 n.6 (7th ed. 1993). The 
changes will bring motion and reconsideration practice into line with 
the Court's normal practice of permitting replies. See C.A.A.F.R. 
19(a)(5)(A)-(B), 19(a)(7)(B), 19(b), 19(c), 19(e), 19(f), 21(c)(1)-(2), 
22(b), 23(b), 27(b), 28(c), 29(c).
Committee Report on Proposed Student Practice Rule
    The Court Rules Advisory Committee, with one member dissenting, 
recommends adoption of a Student Practice Rule. The proposed rule 
allows for the entry of appearance on behalf of a party by a third-year 
law student under the guidance of a supervising attorney who must also 
be the counsel of record. This rule is a natural extension of the 
Court's current policy allowing law students to argue on behalf of 
amici curiae. It facilitates the interest of the Court and the Armed 
Forces in training future judge advocates. The rule is similar to 
student practice rules in force in over half of the other Federal 
courts of appeals.
    The rule provides a structure that will assure that parties receive 
appropriate representation. It permits third-year law students who have 
been certified by the dean of their law school as being in good 
standing to enter an appearance on behalf of a party in any case except 
a capital case, under the guidance of the supervising attorney. In 
order to supervise participating law students, the supervising attorney 
must be an attorney of record for the case, must have been admitted to 
practice for at least two years, must be a member of the bar of this 
Court, and must have appeared and argued in at least one case before 
this Court or appeared and argued in at least three cases before state 
or Federal appellate courts.
    The rule is not self-executing. Permission of the Court to allow 
the student to participate in a case is always required. This 
discretion should allow the Court to monitor the progress of student 
practice under the rule as well as to adapt to unforeseen circumstances 
as they arise.

    Dated: January 20, 1995.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 95-1879 Filed 1-24-95; 8:45 am]
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