U.S. Court of Appeals for the Armed Forces Proposed Rules Changes, 69949-69951 [2015-28598]
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Federal Register / Vol. 80, No. 218 / Thursday, November 12, 2015 / Notices
relating to swaps entered into before the
date of enactment of the Dodd-Frank
Act, the terms of which had not expired
as of the date of enactment of the DoddFrank Act (‘‘pre-enactment swaps’’) and
data relating to swaps entered into on or
after the date of enactment of the DoddFrank Act and prior to the compliance
date specified in the the CFTC’s final
swap data reporting rules (‘‘transition
swaps’’). On May 17, 2012, the CFTC
adopted regulation 46, which imposes
recordkeeping and reporting
requirements relating to pre-enactment
and historical swaps.
With respect to the collection of
information, the CFTC invites
comments on:
• Whether the proposed collection of
information is necessary for the proper
performance of the functions of the
CFTC, including whether the
information will have a practical use;
• The accuracy of the CFTC’s
estimate of the burden of the proposed
collection of information, including the
validity of the methodology and
assumptions used;
• Ways to enhance the quality,
usefulness, and clarity of the
information to be collected; and
• Ways to minimize the burden of
collection of information on those who
are to respond, including through the
use of appropriate automated electronic,
mechanical, or other technological
collection techniques or other forms of
information technology; e.g., permitting
electronic submission of responses.
All comments must be submitted in
English, or if not, accompanied by an
English translation. Comments will be
posted as received to https://
www.cftc.gov. You should submit only
information that you wish to make
available publicly. If you wish the CFTC
to consider information that you believe
is exempt from disclosure under the
Freedom of Information Act, a petition
for confidential treatment of the exempt
information may be submitted according
to the procedures established in § 145.9
of the CFTC’s regulations.1 The CFTC
reserves the right, but shall have no
obligation, to review, pre-screen, filter,
redact, refuse or remove any or all of
your submission from https://
www.cftc.gov that it may deem to be
inappropriate for publication, such as
obscene language. All submissions that
have been redacted or removed that
contain comments on the merits of the
information collection request will be
retained in the public comment file and
will be considered as required under the
Administrative Procedure Act and other
117
CFR 145.9.
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applicable laws, and may be accessible
under the Freedom of Information Act.
Burden Statement: Provisions of
CFTC Regulations 46.2, 46.3, 46.4, 46.8,
46.10, and 46.11 result in information
collection requirements within the
meaning of the PRA. These regulations
required SDs, MSPs and non-SD/MSP
counterparties to incur one-time costs to
establish systems and processes
associated with swaps data
recordkeeping and reporting. The CFTC
estimates that SDs, MSPs, and non-SD/
MSP counterparties incurred a one-time
burden of 91,250 hours associated with
part 46 recordkeeping and reporting
requirements. With respect to the
ongoing reporting and recordkeeping
burdens associated with pre-enactment
and transition swaps, the CFTC believes
that SDs, MSPs, and non-SD/MSP
counterparties incur an annual timeburden of 18,903 hours. This timeburden represents a proportion of the
burden responents incur to operate and
maintain their swap data recordkeeping
and reporting systems.
17 CFR 45 imposes swap
recordkeeping and reporting
requirements on respondents related to
swaps that are not pre-enactment or
transition swaps. The CFTC believes
that respondents use the same
recordkeeping and reporting systems to
compy with both parts 45 and 46. The
CFTC has computed the estimated
burden for 17 CFR 46 by estimating the
burden incurred by respondents to
operate and maintain their swap data
recordkeeping and reporting systems
and then estimating the percentage of
that burden associated with preenactment and transition swaps. Since
the enactment of 17 CFR 45, the vast
majority of pre-enactment and transition
swaps have been terminated by the
parties to the swaps or are otherwise no
longer in existence. As 17 CFR 46 only
requires respondents to make ongoing
reports regarding pre-enactment and
transition swaps that continue to be in
existence, the number of reports being
made pursuant to 17 CFR 46 has
declined significantly over time. As the
volume of reports made pursuant to 17
CFR 46 is estimated to be very small
releative to the estimated volume of
reports made pursuant to 17 CFR 45, the
CFTC’s burden estimate has allocated
the vast majority of the estimated
burden to operate and maintain
respondents’ swap data recordkeeping
and reporting systems to the burden
estimate associated with 17 CFR 45.
Respondents/Affected Entities: Swap
Dealers, Major Swap Participants, and
other counterparties to a swap
transaction (i.e., end-user, non-SD/nonMSP counterparties).
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69949
Estimated number of respondents:
30,125.
Estimated total annual burden on
respondents: 18,903 hours.
Frequency of collection: Ongoing.
Authority: 44 U.S.C. 3501 et seq.
Dated: November 6, 2015.
Robert N. Sidman,
Deputy Secretary of the Commission.
[FR Doc. 2015–28729 Filed 11–10–15; 8:45 am]
BILLING CODE 6351–01–P
DEPARTMENT OF DEFENSE
Office of the Secretary
[Docket ID DoD–2015–OS–0124]
U.S. Court of Appeals for the Armed
Forces Proposed Rules Changes
Notice of Proposed Changes to
the Rules of Practice and Procedure of
the United States Court of Appeals for
the Armed Forces.
ACTION:
This notice announces the
following proposed changes to Rules 5,
21(b)(5)(F), and 26 of the Rules of
Practice and Procedure, United States
Court of Appeals for the Armed Forces.
SUMMARY:
Comments on the proposed
changes must be received by December
14, 2015.
DATES:
You may submit comments,
identified by docket number and title by
any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Department of Defense, Office
of the Deputy Chief Management
Officer, Directorate of Oversight and
Compliance, Regulatory and Audit
Matters Office, 9010 Defense Pentagon,
Washington, DC 20301–9010.
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 https://
www.regulations.gov as they are
received without change, including
personal identifiers or contact
information.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
William A. DeCicco, Clerk of the Court,
telephone (202) 761–1448.
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Federal Register / Vol. 80, No. 218 / Thursday, November 12, 2015 / Notices
mstockstill on DSK4VPTVN1PROD with NOTICES
Dated: November 5, 2015.
Aaron Siegel,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
Rules 5 and 21(b)(5)(F):
Rule 5ÐScope of ReviewÐcurrently
reads:
The Court acts only with respect to
the findings and sentence as approved
by reviewing authorities, and as
affirmed or set aside as incorrect in law
by a Court of Criminal Appeals, except
insofar as it may take action on a
certificate for review or a petition for
review of a decision by a Court of
Criminal Appeals on appeal by the
United States under Article 62, UCMJ,
10 U.S.C. 862, or to grant extraordinary
relief in aid of its jurisdiction, including
the exercise of its supervisory powers
over the administration of the UCMJ.
The Court may specify or act on any
issue concerning a matter of law which
materially affects the rights of the
parties.
The proposed change to Rule 5 would
read:
The Court acts only with respect to
the findings and sentence as approved
by reviewing authorities, and as
affirmed or set aside as incorrect in law
by a Court of Criminal Appeals, except
insofar as it may take action on a
certificate for review or a petition for
review of a decision by a Court of
Criminal Appeals on appeal by the
United States under Article 62, UCMJ,
10 U.S.C. 862, or to grant extraordinary
relief in aid of its jurisdiction. The Court
may specify or act on any issue
concerning a matter of law which
materially affects the rights of the
parties.
Rule 21(b)(5)(F)ÐSupplement to
Petition for Grant of ReviewÐcurrently
reads:
(b) The supplement to the petition
shall be filed in accordance with the
applicable time limit set forth in Rule
19(a)(5)(A) or (B), shall include an
Appendix containing a copy of the
decision of the Court of Criminal
Appeals, unpublished opinions cited in
the brief, relevant extracts of rules and
regulations, and shall conform to the
provisions of Rules 24(b), 35A, and 37.
Unless authorized by Order of the Court
or by motion of a party granted by the
Court, the supplement and any answer
thereto shall not exceed 25 pages,
except that a supplement or answer
containing no more than 9,000 words or
900 lines of text is also acceptable. Any
reply to the answer shall not exceed 10
pages, except that a reply containing 4,
000 words or 400 lines of text is also
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acceptable. The supplement shall
contain:
. . . (5) A direct and concise
argument showing why there is good
cause to grant the petition,
demonstrating with particularity why
the errors assigned are materially
prejudicial to the substantial rights of
the appellant. Where applicable, the
supplement to the petition shall also
indicate whether the court below has:
. . . (F) so far departed from the
accepted and usual course of judicial
proceedings, or so far sanctioned such a
departure by a court-martial or other
person acting under authority of the
UCMJ, as to call for an exercise of this
Court’s power of supervision; or . . .
The proposed change to Rule
21(b)(5)(F) would read:
. . . (F) so far departed from the
accepted and usual course of judicial
proceedings or so far sanctioned such a
departure by a court-martial or other
person acting under authority of the
UCMJ, as to warrant review by the
Court; or . . .
Comment: Documents have recently
been filed with the Court citing to the
supervisory power noted in the Court’s
Rules 5 and 21(b)(5)(F). This is
somewhat problematic because the
references to supervisory power in these
rules predate the Supreme Court’s
decision in Clinton v. Goldsmith, 526
U.S. 529 (1999), which rejected an
expansive view of the Court’s
supervisory power over all aspects of
military justice. Specifically the Court
stated: ‘‘[T]he CAAF is not given
authority, by the All Writs Act or
otherwise, to oversee all matters
arguably related to military justice or to
act as a plenary administrator of final
judgments it has affirmed.’’ 526 U.S.
529, 536. Given Goldsmith, the broad
references to supervisory power in the
rules should be deleted. That is not to
say that supervisory authority does not
exist, only that it is not as expansive as
it was pre-Goldsmith, and its contours
will need to be resolved in future cases.
However, the Court’s Rules of Practice
and Procedure should not be cited as a
source for this authority in the absence
of settled case law.
Rule 26:
Rule 26ÐAmicus Curiae BriefsÐ
currently reads:
(a) A brief of an amicus curiae may be
filed (1) by an appellate government or
defense division of an armed service
other than that in which the case has
arisen, (2) by invitation of the Court, or
(3) by motion for leave to file granted by
the Court.
(b) Unless otherwise ordered by the
Court, a brief of an amicus curiae in
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support of a party may be filed no later
than 10 days after that party has filed its
brief. If neither party is supported, the
brief of an amicus curiae shall be filed
no later than 10 days after the first brief
is filed.
(c) Neither the hearing nor the
disposition of a case will be delayed
pending action on a motion for leave to
file an amicus curiae brief or a motion
of an amicus curiae to participate in a
hearing, or to await the filing of a brief
of an amicus curiae under this rule.
(d) Except by the Court’s permission,
a brief of an amicus curiae may be no
more than one-half the maximum length
authorized by Rule 24 for a brief for an
appellant/petitioner. If the Court grants
a party permission to file a longer brief,
that extension does not affect the length
of an amicus brief.
(e) 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 (c)(1)–(11). Argument
by a law student granted permission to
appear on behalf of an amicus curiae
may be requested by motion filed under
Rule 30.
The proposed change to Rule 26
would read:
(a) A brief of an amicus curiae may be
filed (1) by an appellate government or
defense division of an armed service
other than that in which the case has
arisen, (2) by invitation of the Court, or
(3) by motion for leave to file granted by
the Court.
(b) All motions and briefs filed under
Rule 26(a)(3) must contain a statement
of the movant’s interest and why the
matters asserted are relevant to the
disposition of the case. Amicus curiae
briefs filed pursuant to Rule 26(a)(3)
that bring relevant matter to the
attention of the Court not already
brought to its attention by the parties
may be of considerable help to the
Court. An amicus curiae brief that does
not serve this purpose burdens the
Court, and its filing is not favored. The
motion must also provide a statement as
to whether the parties consent to the
filing of the amicus curiae brief. Only an
attorney admitted to practice as a
member of the Bar of the Court or an
attorney appearing pro hac vice may file
an amicus curiae brief.
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Federal Register / Vol. 80, No. 218 / Thursday, November 12, 2015 / Notices
(c) An amicus curiae brief submitted
before the Court’s consideration of a
petition for grant of review, petition for
extraordinary relief, writ-appeal
petition, or petition for new trial may be
filed under subparagraphs (a)(1) or
(a)(2), or if the Court grants leave to file
under subparagraph (a)(3) of this rule.
(d) Unless otherwise ordered by the
Court, a brief of an amicus curiae in
support of a party shall be filed no later
than 10 days after that party has filed its
brief, supplement to the petition for
grant of review, petition for
extraordinary relief, writ-appeal
petition, or answer. If neither party is
supported, the brief of an amicus curiae
shall be filed no later than 10 days after
the first brief, supplement to the
petition for grant of review, petition for
extraordinary relief, or writ-appeal
petition is filed. In the case of a petition
for new trial, the brief of an amicus
curiae shall be filed no later than 10
days after the petitioner’s brief in
support of the petition has been filed
with the Court. Motions for leave to file
an amicus curiae brief under Rule
26(a)(3) must be filed within the time
allowed for the filing of the brief and
contemporaneously with the amicus
curiae brief itself. Requests for
extensions of time to file an amicus
curiae brief will not be granted. A party
may file a motion under Rule 30 for
leave to reply to the brief of an amicus
curiae.
(e) Neither the hearing nor the
disposition of a case will be delayed
pending action on a motion for leave to
file an amicus curiae brief or a motion
of an amicus curiae to participate in a
hearing, or to await the filing of a brief
of an amicus curiae under this rule.
(f) Except by the Court’s permission,
a brief of an amicus curiae may be no
more than one-half the maximum length
authorized by Rule 24 for a brief for an
appellant/petitioner. If the Court grants
a party permission to file a longer brief,
that extension does not affect the length
of an amicus brief.
(g) 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 (c)(1)–(11). Argument
by a law student granted permission to
appear on behalf of an amicus curiae
may be requested by motion filed under
Rule 30.
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Comment: The first part of new
paragraph (b) tracks similar language in
Supreme Court Rule 37. It advises that
‘‘me too’’ briefs are not favored, and this
is generally the view of all appellate
courts. The proposal goes on to require
that motions for leave to file, as well as
the amicus briefs themselves, contain a
statement of the movant’s interest and
explain why the matters asserted in the
brief are relevant to the disposition of
the case. The proposal operates
differently from the practice in the
Article III courts of appeal in that even
with the consent of the parties, an
amicus filer must still ask for leave of
the Court to file an amicus curiae brief.
In this way, the Court retains the
authority to decide all requests to file
amicus briefs based on its own
determination that the brief will be
helpful. It is believed that party consent
may not be an adequate filter that
ensures that amicus briefs are helpful to
the Court. While party consent is not a
guarantee that the brief will be accepted,
lack of consent is not a guarantee that
it will be rejected. Rather, the Court
oversees all filings to be sure that
amicus participation is warranted.
Paragraph (b) also includes a
requirement that only members of the
Court’s Bar or attorneys appearing pro
hac vice may file motions for leave to
file amicus curiae briefs.
Paragraph (c) proposes a new rule to
clarify that motions to file amicus curiae
briefs can be filed in support of
petitions for grant of review, petitions
for extraordinary relief, writ-appeal
petitions, petitions for new trial, and
answers to such pleadings.
[FR Doc. 2015–28598 Filed 11–10–15; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Department of the Navy
Notice of Intent To Prepare an
Environmental Impact Statement/
Overseas Environmental Impact
Statement for Navy Atlantic Fleet
Training and Testing
Department of the Navy, DoD.
ACTION: Notice.
AGENCY:
Pursuant to section 102(2)(c)
of the National Environmental Policy
Act (NEPA) of 1969, as implemented by
the Council on Environmental Quality
Regulations (40 Code of Federal
Regulations [CFR] Parts 1500–1508),
and Executive Order (EO) 12114, the
Department of the Navy (Navy)
announces its intent to prepare an
Environmental Impact Statement (EIS)/
SUMMARY:
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69951
Overseas EIS (OEIS) to evaluate the
potential environmental effects
associated with continuing to conduct
military readiness activities, which
consist of training activities and
research, development, testing, and
evaluation (hereinafter referred to as
‘‘testing’’) activities in the Atlantic Fleet
Training and Testing (AFTT) Study
Area. The Study Area consists of sea
space in and airspace over the Atlantic
Ocean along the eastern coast of North
America, portions of the Caribbean Sea,
and the Gulf of Mexico. The AFTT
Study Area begins seaward from the
mean high water line and moves east to
the 45 degree longitude line. The Study
Area covers approximately 2.6 million
square nautical miles of ocean area,
including designated Navy operating
areas, warning areas, select Navy
pierside locations, and associated port
transit channels.
In order to both achieve and maintain
military readiness, the Navy proposes
to:
• Conduct training and testing
activities at levels required to support
Navy military readiness requirements
beginning in 2018 into the reasonably
foreseeable future; and
• Accommodate evolving mission
requirements associated with force
structure changes, including those
resulting from the development, testing,
and ultimate introduction of new
platforms (vessels, aircraft, and weapon
systems) into the fleet; thereby ensuring
critical Navy requirements are met.
As part of this process the Navy will
seek to obtain authorization and
permitting, as required under the
Marine Mammal Protection Act and
Endangered Species Act, respectively.
The Navy invites comments on the
scope and content of the EIS/OEIS from
all interested parties. Comments may be
provided by mail and through the EIS/
OEIS Web site at: https://
www.AFTTEIS.com. Mailed comments
must be postmarked no later than
January 16, 2016 and mailed to the
address below to ensure they are
considered.
FOR FURTHER INFORMATION CONTACT:
Lesley Dobbins-Noble, Naval Facilities
Engineering Command, Code EV22LDN
(AFTT EIS/OEIS Project Manager), 6506
Hampton Boulevard, Norfolk, Virginia
23508–1278. 703–322–4625.
SUPPLEMENTARY INFORMATION: The
Navy’s lead action proponent is
Commander, U.S. Fleet Forces
Command. Additional action
proponents include Naval Sea Systems
Command (NAVSEA), Naval Air
Systems Command (NAVAIR), and the
Office of Naval Research (ONR). The
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]]>Agencies
[Federal Register Volume 80, Number 218 (Thursday, November 12, 2015)]
[Notices]
[Pages 69949-69951]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28598]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Office of the Secretary
[Docket ID DoD-2015-OS-0124]
U.S. Court of Appeals for the Armed Forces Proposed Rules Changes
ACTION: Notice of Proposed Changes to the Rules of Practice and
Procedure of the United States Court of Appeals for the Armed Forces.
-----------------------------------------------------------------------
SUMMARY: This notice announces the following proposed changes to Rules
5, 21(b)(5)(F), and 26 of the Rules of Practice and Procedure, United
States Court of Appeals for the Armed Forces.
DATES: Comments on the proposed changes must be received by December
14, 2015.
ADDRESSES: You may submit comments, identified by docket number and
title by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Department of Defense, Office of the Deputy Chief
Management Officer, Directorate of Oversight and Compliance, Regulatory
and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-
9010.
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 https://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.
[[Page 69950]]
Dated: November 5, 2015.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
Rules 5 and 21(b)(5)(F):
Rule 5--Scope of Review--currently reads:
The Court acts only with respect to the findings and sentence as
approved by reviewing authorities, and as affirmed or set aside as
incorrect in law by a Court of Criminal Appeals, except insofar as it
may take action on a certificate for review or a petition for review of
a decision by a Court of Criminal Appeals on appeal by the United
States under Article 62, UCMJ, 10 U.S.C. 862, or to grant extraordinary
relief in aid of its jurisdiction, including the exercise of its
supervisory powers over the administration of the UCMJ. The Court may
specify or act on any issue concerning a matter of law which materially
affects the rights of the parties.
The proposed change to Rule 5 would read:
The Court acts only with respect to the findings and sentence as
approved by reviewing authorities, and as affirmed or set aside as
incorrect in law by a Court of Criminal Appeals, except insofar as it
may take action on a certificate for review or a petition for review of
a decision by a Court of Criminal Appeals on appeal by the United
States under Article 62, UCMJ, 10 U.S.C. 862, or to grant extraordinary
relief in aid of its jurisdiction. The Court may specify or act on any
issue concerning a matter of law which materially affects the rights of
the parties.
Rule 21(b)(5)(F)--Supplement to Petition for Grant of Review--
currently reads:
(b) The supplement to the petition shall be filed in accordance
with the applicable time limit set forth in Rule 19(a)(5)(A) or (B),
shall include an Appendix containing a copy of the decision of the
Court of Criminal Appeals, unpublished opinions cited in the brief,
relevant extracts of rules and regulations, and shall conform to the
provisions of Rules 24(b), 35A, and 37. Unless authorized by Order of
the Court or by motion of a party granted by the Court, the supplement
and any answer thereto shall not exceed 25 pages, except that a
supplement or answer containing no more than 9,000 words or 900 lines
of text is also acceptable. Any reply to the answer shall not exceed 10
pages, except that a reply containing 4, 000 words or 400 lines of text
is also acceptable. The supplement shall contain:
. . . (5) A direct and concise argument showing why there is good
cause to grant the petition, demonstrating with particularity why the
errors assigned are materially prejudicial to the substantial rights of
the appellant. Where applicable, the supplement to the petition shall
also indicate whether the court below has:
. . . (F) so far departed from the accepted and usual course of
judicial proceedings, or so far sanctioned such a departure by a court-
martial or other person acting under authority of the UCMJ, as to call
for an exercise of this Court's power of supervision; or . . .
The proposed change to Rule 21(b)(5)(F) would read:
. . . (F) so far departed from the accepted and usual course of
judicial proceedings or so far sanctioned such a departure by a court-
martial or other person acting under authority of the UCMJ, as to
warrant review by the Court; or . . .
Comment: Documents have recently been filed with the Court citing
to the supervisory power noted in the Court's Rules 5 and 21(b)(5)(F).
This is somewhat problematic because the references to supervisory
power in these rules predate the Supreme Court's decision in Clinton v.
Goldsmith, 526 U.S. 529 (1999), which rejected an expansive view of the
Court's supervisory power over all aspects of military justice.
Specifically the Court stated: ``[T]he CAAF is not given authority, by
the All Writs Act or otherwise, to oversee all matters arguably related
to military justice or to act as a plenary administrator of final
judgments it has affirmed.'' 526 U.S. 529, 536. Given Goldsmith, the
broad references to supervisory power in the rules should be deleted.
That is not to say that supervisory authority does not exist, only that
it is not as expansive as it was pre-Goldsmith, and its contours will
need to be resolved in future cases. However, the Court's Rules of
Practice and Procedure should not be cited as a source for this
authority in the absence of settled case law.
Rule 26:
Rule 26--Amicus Curiae Briefs--currently reads:
(a) A brief of an amicus curiae may be filed (1) by an appellate
government or defense division of an armed service other than that in
which the case has arisen, (2) by invitation of the Court, or (3) by
motion for leave to file granted by the Court.
(b) Unless otherwise ordered by the Court, a brief of an amicus
curiae in support of a party may be filed no later than 10 days after
that party has filed its brief. If neither party is supported, the
brief of an amicus curiae shall be filed no later than 10 days after
the first brief is filed.
(c) Neither the hearing nor the disposition of a case will be
delayed pending action on a motion for leave to file an amicus curiae
brief or a motion of an amicus curiae to participate in a hearing, or
to await the filing of a brief of an amicus curiae under this rule.
(d) Except by the Court's permission, a brief of an amicus curiae
may be no more than one-half the maximum length authorized by Rule 24
for a brief for an appellant/petitioner. If the Court grants a party
permission to file a longer brief, that extension does not affect the
length of an amicus brief.
(e) 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
(c)(1)-(11). Argument by a law student granted permission to appear on
behalf of an amicus curiae may be requested by motion filed under Rule
30.
The proposed change to Rule 26 would read:
(a) A brief of an amicus curiae may be filed (1) by an appellate
government or defense division of an armed service other than that in
which the case has arisen, (2) by invitation of the Court, or (3) by
motion for leave to file granted by the Court.
(b) All motions and briefs filed under Rule 26(a)(3) must contain a
statement of the movant's interest and why the matters asserted are
relevant to the disposition of the case. Amicus curiae briefs filed
pursuant to Rule 26(a)(3) that bring relevant matter to the attention
of the Court not already brought to its attention by the parties may be
of considerable help to the Court. An amicus curiae brief that does not
serve this purpose burdens the Court, and its filing is not favored.
The motion must also provide a statement as to whether the parties
consent to the filing of the amicus curiae brief. Only an attorney
admitted to practice as a member of the Bar of the Court or an attorney
appearing pro hac vice may file an amicus curiae brief.
[[Page 69951]]
(c) An amicus curiae brief submitted before the Court's
consideration of a petition for grant of review, petition for
extraordinary relief, writ-appeal petition, or petition for new trial
may be filed under subparagraphs (a)(1) or (a)(2), or if the Court
grants leave to file under subparagraph (a)(3) of this rule.
(d) Unless otherwise ordered by the Court, a brief of an amicus
curiae in support of a party shall be filed no later than 10 days after
that party has filed its brief, supplement to the petition for grant of
review, petition for extraordinary relief, writ-appeal petition, or
answer. If neither party is supported, the brief of an amicus curiae
shall be filed no later than 10 days after the first brief, supplement
to the petition for grant of review, petition for extraordinary relief,
or writ-appeal petition is filed. In the case of a petition for new
trial, the brief of an amicus curiae shall be filed no later than 10
days after the petitioner's brief in support of the petition has been
filed with the Court. Motions for leave to file an amicus curiae brief
under Rule 26(a)(3) must be filed within the time allowed for the
filing of the brief and contemporaneously with the amicus curiae brief
itself. Requests for extensions of time to file an amicus curiae brief
will not be granted. A party may file a motion under Rule 30 for leave
to reply to the brief of an amicus curiae.
(e) Neither the hearing nor the disposition of a case will be
delayed pending action on a motion for leave to file an amicus curiae
brief or a motion of an amicus curiae to participate in a hearing, or
to await the filing of a brief of an amicus curiae under this rule.
(f) Except by the Court's permission, a brief of an amicus curiae
may be no more than one-half the maximum length authorized by Rule 24
for a brief for an appellant/petitioner. If the Court grants a party
permission to file a longer brief, that extension does not affect the
length of an amicus brief.
(g) 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
(c)(1)-(11). Argument by a law student granted permission to appear on
behalf of an amicus curiae may be requested by motion filed under Rule
30.
Comment: The first part of new paragraph (b) tracks similar
language in Supreme Court Rule 37. It advises that ``me too'' briefs
are not favored, and this is generally the view of all appellate
courts. The proposal goes on to require that motions for leave to file,
as well as the amicus briefs themselves, contain a statement of the
movant's interest and explain why the matters asserted in the brief are
relevant to the disposition of the case. The proposal operates
differently from the practice in the Article III courts of appeal in
that even with the consent of the parties, an amicus filer must still
ask for leave of the Court to file an amicus curiae brief. In this way,
the Court retains the authority to decide all requests to file amicus
briefs based on its own determination that the brief will be helpful.
It is believed that party consent may not be an adequate filter that
ensures that amicus briefs are helpful to the Court. While party
consent is not a guarantee that the brief will be accepted, lack of
consent is not a guarantee that it will be rejected. Rather, the Court
oversees all filings to be sure that amicus participation is warranted.
Paragraph (b) also includes a requirement that only members of the
Court's Bar or attorneys appearing pro hac vice may file motions for
leave to file amicus curiae briefs.
Paragraph (c) proposes a new rule to clarify that motions to file
amicus curiae briefs can be filed in support of petitions for grant of
review, petitions for extraordinary relief, writ-appeal petitions,
petitions for new trial, and answers to such pleadings.
[FR Doc. 2015-28598 Filed 11-10-15; 8:45 am]
BILLING CODE 5001-06-P
