[Federal Register Volume 70, Number 177 (Wednesday, September 14, 2005)]
[Notices]
[Pages 54370-54372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-18177]


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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]
BILLING CODE 5001-06-M