[Federal Register Volume 74, Number 93 (Friday, May 15, 2009)]
[Notices]
[Pages 22898-22900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11324]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID: DOD-2009-OS-0061]


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

AGENCY: Department of Defense.

ACTION: Notice of Proposed Changes to the Rules of Practice and 
Procedure of the United States Court of Appeals for the Armed Forces 
and Implementation of a New Electronic Filing Program.

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SUMMARY: This notice announces the following proposed changes to Rules 
19(a)(5), 20(e), 21(c)(2), 37(a), 37(b)(2), and 40(b)(3) of the Rules 
of Practice and Procedure, United States Court of Appeals for the Armed 
Forces and implementation of a new electronic filing program for public 
notice and comment. On April 30, 2009, at 74 FR 19947, the Department 
of Defense published a notice of this same title. The SUMMARY section 
stated that ``new language is in bold print'' but the notice did not 
contain bold print. This notice identifies those changes made.

DATES: Comments on the proposed changes must be received within 30 days 
of the date of this corrected notice.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) and title by any of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
     Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, OSD Mailroom 3C843, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this Federal Register document. The 
general policy for comments and other submissions from members of the 
public is to make these submissions available for public viewing on the 
Internet at http://www.regulations.gov as they are received without 
change, including personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: William A. DeCicco, Clerk of the 
Court, telephone (202) 761-1448.

    Dated: May 12, 2009.
Morgan E. Frazier,
Alternate OSD Federal Liaison Officer, Department of Defense.

    Rule 19(a)(5):
    Amend Rule 19 (a)(5) by:
    A. Removing the existing paragraphs (A) and (B) which currently 
read:
    ``(A) Article 62, UCMJ, appeals. In cases involving a decision by a 
Court of Criminal Appeals on appeal by the United States under Article 
62, UCMJ, 10 USC Sec.  862, a supplement to the petition establishing 
good cause in accordance with Rule 21 shall be filed no later than 20 
days after the issuance by the Clerk of a notice of docketing of such a 
petition for grant of review. See Rule 10(c). An appellee's answer to 
the supplement to the petition for grant of review shall be filed no 
later than 10 days after the filing of such supplement. A reply may be 
filed by the appellant no later than 5 days after the filing of the 
appellee's answer.
    (B) Other appeals. In all other appeal cases, a supplement to the 
petition establishing good cause in accordance with Rule 21 shall be 
filed no later than 30 days after the issuance by the Clerk of a notice 
of docketing of a petition for grant of review. See Rule 10(c). An 
appellee's answer to the supplement to the petition for grant of review 
may be filed no later than 30 days after the filing of such supplement. 
See Rule 21(e). A reply may be filed by the appellant no later than 10 
days after the filing of the appellee's answer.''
    B. And by adding new paragraphs (A) and (B) in their place, to read 
as follows:
    (A) In all cases where the petition is filed by counsel, a 
supplement to the petition establishing good cause in accordance with 
Rule 21 shall be filed contemporaneously with the petition. Motions for 
enlargement of time to file the supplement, while disfavored, will be 
granted for good cause shown. An appellee's answer to the supplement to 
the petition, except for cases on appeal by the United States under 
Article 62, UCMJ, 10 U.S.C. Sec.  862 (2000), may be filed no later 
than 20 days after the filing of the supplement. See Rule 21(e). A 
reply may be filed by the appellant no later than 5 days after the 
filing of appellee's answer. An appellee's answer to the supplement in 
a case under appeal by the United States under Article 62, UCMJ, may be 
filed no later than 10 days after the filing of the supplement; an 
appellant may file a reply no later than 5 days after the filing of 
appellee's answer.
    (B) In all cases where the petition is filed by the appellant, a 
supplement to the petition shall be filed by counsel no later than 20 
days after the issuance by the Clerk of a notice of docketing of the 
petition. See Rule 10(c). An appellee's answer to the supplement to the 
petition and an appellant's reply may be filed in accordance with the 
time limits contained in Rule 19(a)(5)(A).
    Comment: The changes will accelerate the case disposition process. 
The accelerated time limits are accompanied with a provision to obtain 
extensions for good cause shown to address concerns that there may be 
circumstances where additional time may be justified.
    Rule 20(e):
    Amend Rule 20(e) by:
    A. Removing the existing paragraph (e) which currently reads:
    ``(e) Upon issuance by the Clerk under Rule 10(c) of a notice of 
docketing of a petition for grant of review counsel for the appellant 
shall file a supplement to the petition in accordance with the 
applicable time limit set forth in Rule 19(a)(5)(A) or(B), and the 
provisions of Rule 21.''
    B. And by adding new paragraph (e) in its place, to read as 
follows:
    (e) Upon issuance by the Clerk under Rule 10(c) of a notice of 
docketing of a petition for grant of review filed personally by an 
appellant, counsel for the appellant shall file a supplement to the 
petition in accordance with the applicable time limit set forth in Rule

[[Page 22899]]

19(a)(5)(B), and the provisions of Rule 21.
    Comment: This change is a conforming amendment to bring Rule 20(e) 
into alignment with the change in Rule 19(a)(5).
    Rule 21(c)(2):
    Amend Rule 21(c)(2) by:
    A. Removing the existing paragraph (c)(2) which currently reads:
    ``(2) Answer/reply in other appeals. An appellee's answer to the 
supplement to the petition for grant of review in all other appeal 
cases may be filed no later than 30 days after the filing of the 
supplement; see Rule 21(e); (remainder of paragraph is unchanged).''
    B. And by adding new paragraph (c)(2) in its place, to read as 
follows:
    (2) Answer/reply in other appeals. An appellee's answer to the 
supplement to the petition for grant of review in all other appeal 
cases may be filed no later than 20 days after the filing of the 
supplement; see Rule 21(e); (remainder of paragraph is unchanged).
    Comment: This change conforms Rule 21(c)(2) to the change in Rule 
19(a)(5).
    Rules 37(a) and 37(b)(2):
    Amend Rules 37(a) and 37(b)(2) by:
    A. Removing the existing paragraphs 37(a) and 37(b)(2) which 
currently read:
    ``(a) Printing. Except for records of trial and as otherwise 
provided by Rules 24(f) and 27(a)(4), all pleadings and other papers 
relative to a case shall be typewritten and double-spaced, printed on 
one side only on white unglazed paper, 8.5 by 11 inches in size, 
securely fastened in the top left corner.
    (b)(2) An original and 7 legible copies of all pleadings or other 
papers relative to a case shall be filed.''
    B. And by adding new paragraphs 37(a) and 37(b)(2) in their place, 
to read as follows:
    (a) Printing. Except for records of trial and as otherwise provided 
by Rules 24(f) and 27(a)(4) or any order of the Court regarding the 
electronic filing of pleadings, all pleadings and other papers relative 
to a case shall be typewritten and double-spaced, printed on one side 
only on white unglazed paper, 8.5 by 11 inches in size, securely 
fastened in the top left corner.
    (b)(2) Except for electronically filed pleadings, an original and 7 
legible copies of all pleadings or other papers relative to a case 
shall be filed.
    Comment: These changes are proposed to account for orders of the 
Court pertaining to electronic filing of pleadings.
    Rule 40(b)(3):
    Amend Rule 40(b)(3) by:
    A. Removing the existing paragraph 40(b)(3) which currently reads:
    ``(3) Time allowed. Each side will normally be allotted 30 minutes 
to present oral argument.''
    B. And by adding new paragraph 40(b)(3) in its place, to read as 
follows:
    (3) Time allowed. Each side will normally be allotted 20 minutes to 
present oral argument.
    Comment: This change is proposed to bring the rule into conformance 
with recent court practice.
    And also by adding the following:

Proposed Order on Electronic Filing

    Effective (date), the following pleadings may be filed on paper or 
electronically in accordance with the guidelines attached to this 
Order:
    (a) petitions for grant of review filed by counsel under Rule 
18(a)(1);
    (b) supplements to petitions for grant of review filed under Rule 
21;
    (c) answers (including 10-day letters to the Clerk) and replies 
filed under Rule 21(c); and
    (d) motions filed under Rule 30 that concern the pleadings 
described in paragraphs (a)-(c), and replies thereto, when such motions 
are filed prior to the Court's action granting or denying a petition 
for grant of review.
    It is further ordered that the Orders pertaining to electronic 
filing issued on May 8, 2003 (58 M.J. 282) and August 5, 2004 (60 M.J. 
308) are hereby rescinded, effective (date).

Proposed Guidelines for Electronic Filing of Pleadings

1. Scope

    The United States Court of Appeals for the Armed Forces adopts the 
following provisions to govern the filing of the documents described in 
paragraphs (a)-(d) of the order (hereinafter collectively referred to 
as ``petition documents''):
    a. This Order applies to all petition documents filed 
electronically on or after (date). An appendix to the supplement to the 
petition for grant of review (containing the decision of the Court of 
Criminal Appeals, matters submitted pursuant to United States v. 
Grostefon, 12 M.J. 431 (C.M.A. 1982) and other required matter) is 
included in this requirement to be filed electronically unless it 
consists of more than 50 pages. In such a case, the appendix may be 
submitted on paper and the supplement submitted electronically. In lieu 
of submitting an appendix in excess of 50 pages on paper, counsel may 
submit it in a CD or DVD format and note in the supplement that it is 
being filed in that format under separate cover. Record matters in the 
form of video media on CD-ROM or DVD may be submitted in a separate 
volume of the appendix that is filed in accordance with Rule 21(b).
    b. A petition for grant of review filed personally by an appellant 
shall be filed on paper as provided under Rule 20(a). All subsequent 
petition documents filed by counsel in such a case may be filed on 
paper or electronically except as provided in section 1.c of these 
guidelines.
    c. This Order does not provide for electronic filing of documents 
concerning other matters, such as documents concerning certified cases; 
mandatory review cases; writ-appeal petitions; petitions for 
extraordinary relief; petitions for new trial; and petitions for 
reconsideration. In a case arising under Article 67(a)(3), UCMJ, 
(petitions for grant of review), the Order permits electronic filing 
only with respect to documents filed before the Court issues an order 
granting or denying review.

2. Electronic Filing Address

    Counsel shall file petition and motion documents at the following 
e-mail address: (to be filled in)@armfor.uscourts.gov.
    For questions or help concerning the electronic filing of 
pleadings, counsel should contact the Clerk's Office at (202) 761-1448.

3. Procedure

    a. The electronic filing of a petition document shall be deemed 
filed as of the date and time of the transmission of the electronic 
mail message.
    b. The electronic mail message shall contain the following in the 
subject block: (1) The name of the case; (2) the docket number if a 
docket number has been assigned; and (3) the words ``electronic 
filing.'' A description of what is being attached will be included in 
the body of the electronic mail message.
    c. The pleading shall be attached to the electronic mail message in 
Portable Document Format (PDF), and, when printed, shall be in 
compliance with the Rules of Practice and Procedure of the Court.
    d. Counsel shall send an electronic copy of the message and all 
attachments to opposing counsel to accomplish service of the pleading 
under Rule 39. This may be accomplished by listing opposing counsel as 
a ``cc'' recipient of the electronic message.
    e. The pleading attached to an electronic filing shall contain the 
conformed signature (``/s/'') or digital signature of the attorney of 
record. This will comply with Rule 38.

[[Page 22900]]

    f. If a pleading is filed electronically in accordance with this 
Order, the party is not required to prepare and file printed copies 
under Rules 37(a) and 37(b)(2). The Court will send a reply electronic 
message to the sender indicating receipt of the electronic filing.
    g. Classified material and material under seal will not be filed 
electronically. If such matters need to be filed, they will be 
submitted to the Court on paper as a supplemental filing to the 
document in which they would otherwise appear. In such cases, counsel 
will include in the text of the electronic mail message a notation that 
classified or sealed material is being separately submitted. The 
classified or sealed material will be appropriately packaged, marked 
and delivered, and will include a notation that it accompanies an 
electronic filing in the case. All classified material will be handled 
in accordance with Rule 12.
    h. Counsel must refrain from including and shall redact the 
following personal data identifiers from documents filed with the 
Court:
     Social security numbers
     Names of minors
     Dates of birth
     Financial account numbers
     Home addresses.
    i. Upon the entry of an order granting or denying an electronically 
filed petition for grant of review, the Clerk will electronically 
transmit a copy of the order to counsel.
    Comment: Appellate courts are increasingly providing for electronic 
filing of pleadings. This proposal will permit electronic filing of 
pleadings at the petition stage of cases before the Court. By making 
the program optional, the rules provide for circumstances in which 
counsel may find it necessary to file on paper.

[FR Doc. E9-11324 Filed 5-14-09; 8:45 am]
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