[Federal Register Volume 87, Number 164 (Thursday, August 25, 2022)]
[Notices]
[Pages 52376-52378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18259]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID: DOD-2022-OS-0107]


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

AGENCY: Office of the Secretary, 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.

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SUMMARY: This notice announces a proposed addition and changes to the 
Rules of Practice and Procedure, United States Court of Appeals for the 
Armed Forces. Although these rules of practice and procedure fall 
within the Administrative Procedure Act's exemptions for notice and 
comment, the Department, as a matter of policy, has decided to make 
these changes available for public review and comment before they are 
implemented.

DATES: Comments on the proposed changes must be received by September 
26, 2022.

ADDRESSES: You may submit comments, identified by docket number and 
title by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
     Mail: Department of Defense, Office of the Assistant to 
the Secretary of Defense for Privacy, Civil Liberties, and 
Transparency, Regulatory Directorate, 4800 Mark Center Drive, Attn: 
Mailbox 24, Suite 08D09, Alexandria, VA 22350-1700.
    Instructions: All submissions received must include the agency name 
and docket number 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: Malcolm H. Squires, Jr., Clerk of the 
Court, telephone (202) 761-1449.

SUPPLEMENTARY INFORMATION: This notice announces the following proposed 
addition of Rule 36B and changes to Rules 9(e), 21A, 30A(c), and 36(a) 
of the Rules of Practice and Procedure, United States Court of Appeals 
for the Armed Forces.

    Dated: August 19, 2022.
Aaron T. Siegel,
Alternate OSD Federal Liaison Officer, Department of Defense.

Rule 9(e)

    Rule 9(e)--Clerk--currently reads:
    (e) Hours. The Clerk's office shall be open from 8:00 a.m. to 5:00 
p.m. every day except Saturdays, Sundays, and legal holidays, or as 
otherwise ordered by the Court. See Rule 36(a). The Court is always 
open for filing of pleadings and other papers. A pleading or other 
paper may be filed outside of normal operating hours of the Clerk's 
office by delivery to Court security personnel on duty in the front 
lobby of the courthouse. Pleadings will be deemed filed on the date and 
time delivered to Court security personnel. Court security

[[Page 52377]]

personnel will notify the Clerk of the filing in accordance with 
procedures provided by the Clerk.
    The proposed change to Rule 9(e) would read:
    (e) Hours. The Clerk's office shall maintain regular operating 
hours every day except Saturdays, Sundays, and legal holidays, or as 
otherwise ordered by the Court. See Rule 36(a). A pleading or other 
paper may be filed at any time by delivery to Court security personnel 
on duty in the front lobby of the courthouse or by electronically 
filing in accordance with the ``Guidelines for Electronic Filings of 
Pleadings'' available on the Court's website. Pleadings will be deemed 
filed on the date and time delivered to Court security personnel or 
filed electronically. Court security personnel will notify the Clerk of 
the filing in accordance with procedures established by the Clerk.
    Comment: Currently, Rule 9 makes no reference to the electronic 
filing system as a means of filing outside of the Court's regular 
operating hours. Electronic filing is the most common means by which 
counsel file outside of work hours. The proposed revision will make 
attorneys unfamiliar with the e-filing procedures of the Court aware of 
it and direct them to the proper guidelines. The operating hours have 
been removed because they do not accurately represent the hours during 
which an attorney may file directly with the Clerk's office.

Rules 21A

    Rules 21A--Submissions Under U.S. v. Grostefon--currently reads:
    (b) Grostefon issues shall be identified by counsel with 
particularity substantially in the following form:
* * * * *
    (c) Grostefon issues raised within 30 days of the filing of the 
supplement under Rule 19(a)(5)(c) are subject to and included within 
the 15-page limit in Rule 21A(a).
    The proposed change to Rule 21A would read:
    (b) Grostefon issues shall be identified by counsel with 
particularity and, where pertinent, references to the record of trial 
must be to the specific page in the record. Grostefon issues shall be 
presented substantially in the following form:
* * * * *
    (c) Grostefon issues raised within 30 days of the filing of the 
supplement under Rule 19(a)(5)(c) are subject to and included within 
the 15-page limit in Rule 21A(a). An appellee's answer to Grostefon 
issues may be filed no later than 20 days after the filing of such 
issues.
    Comment: The addition of pertinent page citations to the record for 
Grostefon submissions would greatly facilitate the analysis of the 
issue; the rule change recognized that certain Grostefon issues, such 
as sentence severity and general claims of innocence, are not amenable 
to citation to specific pages of the record. Presently, Rule 21A(c) 
does not provide a time frame within which the government must file its 
answer. The inclusion of such a time frame will create consistency for 
counsel and timely review by the Court.

Rule 30A(c)

    Rule 30A(c)--Factfinding--currently reads:
    (c) Remand for Factfinding. If an issue concerning an unresolved 
material fact may affect the Court's resolution of the case, a party 
may request, or the Court may sua sponte order, a remand of the case or 
the record to the Court of Criminal Appeals. If the record is remanded, 
the Court retains jurisdiction over the case. If the case is remanded, 
the Court does not retain jurisdiction, and a new petition for grant of 
review or certificate for review will be necessary if a party seeks 
review of the proceedings conducted on remand.
    The proposed change to Rule 30A(c) would read:
    (c) Remand for Factfinding. If an issue concerning an unresolved 
material fact may affect the Court's resolution of the case, a party 
may request, or the Court may sua sponte order, a remand of the case or 
the record to the Court of Criminal Appeals. If the record is remanded, 
the Court retains jurisdiction over the case. See Article 66(f)(3), 
UCMJ, 10 U.S.C. 866(f)(3) (2018). If the case is remanded, the Court 
does not retain jurisdiction, and a new petition for grant of review or 
certificate for review will be necessary if a party seeks review of the 
proceedings conducted on remand.
    Comment: The cite to Article 66(f)(3) reflects legislation 
regarding DuBay hearings. See United States v. DuBay, 37 C.M.R. 411 
(C.M.A. 1967).

Rule 36(a)

    Rule 36(a)--Filing of Pleadings--currently reads:
    (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 
20442-001, either in person, by mail, by third-party commercial 
carrier. See Rule 37(b)(2).
    The proposed change to Rule 21(b) would read:
    (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 
20442-001, either in person, by mail, by third-party commercial 
carrier, or by electronic filing. See Rule 37(b)(2). Documents 
submitted online must conform to the ``Guidelines for Electronic 
Filings of Pleadings'' available on the Court's website.
    Comment: Presently, Rule 36 makes no reference to electronic 
filing--the most common method utilized by attorneys--or the Court's 
guidelines for e-filing. The most common practice for e-filing 
procedures is to have a separate handbook available online, as the 
Court does, rather than included in the Rules of Practice and Procedure 
of the Court or as a separate rule. The U.S. Court of Appeals for the 
Federal Circuit has no numerical rule, but the Foreword to the Rules of 
Appellate Procedure provides a link to a separate handbook. Rule 29.7 
of the Rules of the Supreme Court of the United States references 
separate electronic filing guidelines. Rule 29.7 states only: ``. . . . 
all filers who are represented by counsel must submit documents to the 
Court's electronic filing system in conformity with the `Guidelines for 
the Submission of Documents to the Supreme Court's Electronic Filing 
System.''' Additionally, Rule 25(a)(1) of the U.S. Court of Veterans 
Claims' Rules of Practice and Procedure directs to that Court's E-
Rules. Updating Rule 36(a) to include the information on e-filing will 
bring our Court in line with the Article III and other Article I 
courts, and will provide the reader with clear and accurate 
instructions on filing with this Court.

Rule 36B

    The proposed Rule 36B would read:
    Any reference to the Uniform Code of Military Justice or the Manual 
for Courts-Martial, United States, in any pleading or other paper filed 
with the Court, shall cite the relevant version of the statute, rule, 
or other provision, by date of edition.
    Comment: As the UCMJ and the MCM continue to change, it is 
imperative that it is clear exactly which version of the statute the 
parties are relying upon. Including this new rule will allow the Court 
to proceed with certainty on whether the law put forth by counsel has 
changed since the initial pleading, whether counsel is relying on an 
outdated version of the statute, and

[[Page 52378]]

whether it may now be inappropriate or inapplicable.

[FR Doc. 2022-18259 Filed 8-24-22; 8:45 am]
BILLING CODE 5001-06-P