What You Don’t Know Can Hurt You (and Your Client’s Appeal): Understanding Recent Amendments to the Federal Rules of Appellate Procedure
Change is inevitable. That is as true in law as in all other facets of life. For appellate practitioners, one of the primary agents of change involves amendments to the rules of appellate procedure. And, just like changes in other parts of life, changes to the appellate rules can strike fear in many lawyers’ hearts. Fortunately, this article is here to help.
Let’s start with the basics. What’s changed? Effective December 1, 2016, the Federal Rules of Appellate Procedure and the rules for the 11th Circuit Court of Appeals look a little different. Some of the amendments were fairly mundane, such as changing the timeline for filing the dreaded certificate of interested persons and corporate disclosure statement (CIP).1 Others were more significant, such as eliminating the extra three days of mailing time when service is by electronic means.2 Cutting short a lawyer’s deadline is a big deal, indeed. Still, other amendments fall somewhere in between, such as a variety of new or reduced word limits for briefs,3 writs,4 and motions.5
Regardless of their everyday significance, though, these amendments are all important because each one has the potential, on some level, to impact your client’s appeal. As regular federal practitioners know, the federal courts (and the 11th Circuit in particular) are sticklers about ensuring compliance with the rules. For example, even a failure to timely file the CIP can result in the 11th Circuit dismissing your case.6 In federal court, rules are not meant to be broken.
With that in mind, this article highlights several of the most recent changes to the federal appellate rules to help you navigate and avoid procedural landmines in your federal appeal. As the saying goes, change is hard at the beginning, messy in the middle, and gorgeous at the end. With any luck, this article will allow you to skip the beginning and middle and get right to the end. Change may be inevitable, but it doesn’t have to be so scary.
Keep it Short and Sweet
For years, judges and their law clerks have been telling lawyers that appellate briefs are too long. Apparently, they weren’t kidding. The December 2016 amendments brought a whole slew of reduced word limits to the federal appellate rules. Indeed, if there is one theme that is pervasive throughout the amendments, it is an emphasis on shorter filings. From briefs on down to motions, the federal rules are now very specific about how many words you can use to make your point. Here’s a hint: It’s fewer than you probably want, but still more than most judges would probably prefer.
Briefs, as the most critical type of document most lawyers will file, are a natural place to begin. Prior to the 2016 amendments, Fed. R. App. P. 32 contained a 14,000-word limit on opening briefs and a 7,000-word limit on reply briefs.7 Those word limits were instituted in 1998 after considerable debate to bring the old page limits, which were established when most briefs were produced on typewriters, up to speed with word processing technology.8 At the time, the commentary to Rule 32 noted that the “widespread use of personal computers” — and all the spacing and formatting tricks they allow — had made the prior 50-page limit “virtually meaningless.”9 Thus, the federal rules switched from page limits to word limits, with the stated goal of giving “every party the same opportunity to present an argument without regard to the typeface used.”10
Now, having the benefit of almost two decades’ worth of experience with word limits, the federal courts have decided that the time has come for an update. The 2016 amendment to Rule 32 reduces the word limits by 7 percent: from 14,000 words to 13,000 words for principal briefs, and from 7,000 words to 6,500 words for reply briefs.11 This change was initiated, in large part, as a “respon[se] to concern about the length of briefs.”12 Similar reductions apply to cross-appeal briefs.13
Briefs are not alone, however. Petitions, writs, and motions also did not escape the wrath of the reduced word limits. Rule 5, which governs appeals by permission, was amended to add a 5,200-word limit on any “paper produced using a computer.”14 (Handwritten or typewritten petitions retain a page limitation and must not exceed 20 pages.15) Word limits for petitions for panel rehearing, under Rule 40, and for an en banc hearing or rehearing, under Rule 35, are even more strict: 3,900 words for petitions produced using a computer,16 or 15 pages for those that are handwritten.17 In light of the new word limit in Rule 35, the 11th Circuit has deleted its prior internal operating procedure specifying the length of such en banc-related filings, instead simply absorbing Rule 35’s content.18
Rule 21, which applies to extraordinary writs, now includes a 7,800-word limit on computer-generated filings.19 (Again, a separate page limit, this time of 30 pages, was retained for handwritten papers.20) Rule 27, concerning motions, provides a 5,200-word limit for all motions and responses produced with a computer,21 and a 2,600-word limit for replies.22 (The corresponding page limits for handwritten filings are 20 pages23 and 10 pages.24)
Nonetheless, the word limits are not entirely inflexible. The committee notes explain that federal appellate courts retain wide discretion to grant leave to exceed the word limits “as appropriate,”25 and can even, under Rule 32(e), increase the limits by local rule.26 Just don’t count on it, unless you have a particularly complex case,27 because the judiciary actually encouraged an even greater reduction in the word limits than was ultimately adopted.28 The 11th Circuit (along with the First, Fourth, Eighth, and D.C. circuits) has explicitly embraced the lower word limits, though some other circuits (such as the Second, Seventh, Ninth, and federal circuits) have decided to retain the old limits for briefs.29
Get It Done Faster
Reducing the length of appellate filings means that lawyers may have to work just a little bit harder in some cases to tighten and streamline their writing. Somewhat counterintuitively, writing shorter often takes longer: “If I had more time,” the French philosopher Blaise Pascal famously said, “I would have written a shorter letter.”30 Unfortunately, the other big new change to the Federal Rules of Appellate Procedure — eliminating the extra three days of mailing time for documents served electronically — means that lawyers will now have even less time, not more, to write those shorter briefs.31
The elimination of mailing days for electronic service has been a long time coming. Describing the three extra days as an “indulgence,” the committee notes accompanying the 2016 amendment to Rule 26 explain the two principal reasons for making this change.32 The first is that advances in technology have rendered the extra three days a relic of the past. As the committee notes explain, even when service by electronic means was added to the rules in 2002, “electronic transmission seemed virtually instantaneous.”33 At that time, though, there were still some “concerns that the transmission might be delayed…and particular concerns that incompatible systems might make it difficult or impossible to open attachments.”34 To ensure that lawyers had sufficient notice and time to respond, when a deadline ran from the date of service of a document, three days were added to the end of that deadline if service was accomplished by electronic means.
Today, the technological concerns that led to the three added days no longer exist. To the contrary, those concerns “have been substantially alleviated by advances in technology and widespread skill in using electronic transmission.”35 Because electronic transmission is now so reliable, lawyers receive electronic filings as soon as they are submitted. There is, thus, no longer any need to allow three added days for a party to act after being served.
The second reason animating the decision to eliminate the extra three days was a practical one. Many of the federal rules either already use or are moving toward “day-of-the-week” intervals for computing deadlines, setting forth seven-, 14-, 21-, or 28-day periods of time to act following service.36 Those deadlines, unlike five- or 10-day intervals, allow for easy time computation: If a document is filed on a Wednesday, the response will be due on a Wednesday. But adding three days at the end complicates things, especially if the last day falls on a Saturday, Sunday, or legal holiday, which have additional rules.37 No more. With the elimination of the three extra days, calculating deadlines is now straightforward.
So, what is the practical result? The simple answer is that time periods are shortened for some of the most common deadlines appellate lawyers face. For example, eliminating the three extra days for electronic service shortens the deadline for filing a response brief after electronic service of the opening brief and correspondingly shortens the deadline for filing a reply brief after electronic service of the response brief.38 Likewise, eliminating the extra three days for electronic service shortens the deadline for filing responses and replies to motions — a big deal considering the already quick turnaround under Rule 27 for getting those documents on file.39 Indeed, given the federal courts’ general distaste for lengthy or successive extensions of time, the elimination of mailing days is a change that has the potential to drastically alter the way appellate lawyers work. Federal appellate practitioners not only now have to work smarter to more effectively organize their writing, they have to work a little bit harder to get it done on time, too.
The Devil Is in the Details
The reduced word limits and reduced timeframe to respond are certainly the most significant, and high-profile, of the 2016 rule amendments. However, they are by no means the only ones worth knowing about. Other notable changes include:
• Speaking of shortening deadlines, the 11th Circuit has changed the time for the appellee to file the required certificate of interested persons and corporate disclosure statement (CIP). Instead of requiring the appellee to file the CIP 14 days after the appellant, 11th Circuit Rule 26.1-1 now provides that “all appellees, intervenors, respondents, and all other parties to the case or appeal must file a CIP within 28 days after the date the case or appeal is docketed.”40 This 28-day requirement applies “regardless of whether appellants and petitioners have filed a CIP.”41 However, if the appellant has already filed the CIP, Rule 26.1-1 makes the appellee’s life a little bit easier, allowing the appellee to simply indicate agreement with the appellant’s CIP or to just add any omitted parties.42
• The 11th Circuit has also made another procedural change to its rules, adding a requirement under Rule 27 for withdrawing motions. Specifically, 11th Circuit internal operating procedure 27.7 now provides that “[i]f a party no longer requires a ruling by the court on a pending motion, the filing party should file a motion to withdraw the motion.”43
• The appellate rule governing amicus briefs, Fed. R. App. P. 29, was amended to address a growing trend of “amicus filings in connection with requests for panel rehearing and rehearing en banc.”44 Essentially, the prior version of Rule 29 was renumbered as Rule 29(a), with language added that this subdivision applies to amicus filings during the court’s initial consideration of a case on the merits, whereas new subdivision (b), added in 2016, applies to amicus filings in connection with a petition for rehearing or rehearing en banc.45 Practitioners would be well-advised to consult Rule 29’s specific requirements before submitting any amicus brief in federal court.
• Rule 32 now provides that a certificate of compliance, in a form substantially similar to Form 6 in the appendix of forms accompanying the rules, must be included with any document filed under the new word limits in Rules 5, 21, 27, 29, 35, and 40.46 This means that even motions and responses now have to include a certificate of compliance with the type-volume limitations.
• Last but not least, a very helpful appendix has been added to the end of the rules that sets forth the length limits for all types of filings. This is a user-friendly, one-stop-shop for quickly checking the word, page, and line limits that apply to whatever type of document will be filed. Even if you are not happy about having fewer words, at least you can easily find out exactly how many words you have.
The Bottom Line
Lawyers have a lot of rules to remember. There are black-letter rules of law. Local rules of court. General rules of civil and criminal procedure. Rules governing professional behavior. Bluebook rules. The list goes on.
For appellate practitioners, no set of rules has a more direct impact on the daily practice of law than the Rules of Appellate procedure. When those rules change in any meaningful way, as the federal rules did in December 2016, there is bound to be some consternation. That is where this article comes in. Through the above discussion of the recent amendments to the federal appellate rules, this article attempts to put lawyers’ minds at ease. Change is going to come whether we’re ready for it or not. At least with respect to federal appellate practice, you are now ready to embrace the change and ensure that your client’s appeal is positioned for success.
1 11th Cir. R. 26.1-1(a)(3).
2 Fed. R. App. P. 26(c).
3 Fed. R. App. P. 28.1, 29, 32(a)(7)(B).
4 Fed. R. App. P. 21.
5 Fed. R. App. P. 27.
6 The 11th Circuit will likely reinstate the appeal once the CIP is on file. As Hala Sandridge astutely noted during her CLE presentation on this issue, what lawyer wants to have that awkward conversation with the client?
7 Fed. R. App. P. 32 (Cmte. Notes, 1998 Amd.).
11 Fed. R. App. P. 32(a)(7)(B).
12 Fed. R. App. P. 32 (Cmte. Notes, 2016 Amd.).
13 Fed. R. App. P. 28.1(e)(2) and accompanying committee notes.
14 Fed. R. App. P. 5(c)(1).
15 Fed. R. App. P. 5(c)(2).
16 Fed. R. App. P. 35(b)(2)(A); Fed. R. App. P. 40(b)(1).
17 Fed. R. App. P. 35(b)(2)(B); Fed. R. App. P. 40(b)(2).
18 11th Cir. R. 35-1.
19 Fed. R. App. P. 21(d)(1).
20 Fed. R. App. P. 21(d)(2).
21 Fed. R. App. P. 27(d)(2)(A).
22 Fed. R. App. P. 27(d)(2)(C).
23 Fed. R. App. P. 27(d)(2)(B).
24 Fed. R. App. P. 27(d)(2)(D).
25 Fed. R. App. P. 28.1 (Cmte. Notes, 2016 Amd.); Fed. R. App. P. 32 (Cmte. Notes, 2016 Amd.).
26 Fed. R. App. P. 32 (Cmte. Notes, 2016 Amd.) (“Subdivision (e) is amended to make clear a court’s ability (by local rule or order in a case) to increase the length limits for briefs and other documents. Subdivision (e) already established this authority as to the length limits in Rule 32(a)(7); the amendment makes clear that this authority extends to all length limits in the [a]ppellate [r]ules.”).
27 Fed. R. App. P. 32 (Cmte. Notes, 2016 Amd.).
28 Casey C. Sullivan, Judges Want Your Briefs to Be Shorter — Much Shorter, Strategist (Oct. 5, 2016), available at blogs.findlaw.com/strategist/2016/10/judges-want-your-briefs-to-be-shorter—-much-shorter.html.
29 Melissa Heelan Stanzione, Short & Sweet? Judge Wood: Lower Word Limits Unnecessary, U.S. Law Week (Nov. 16, 2016), available at http://www.bna.com/short-sweet-judge-n57982082873/.
30 Fred R. Shapiro, The Yale Book of Quotations 583 (Yale Univ. Press 2006).
31 A parallel change was made to Fed. R. Civ. P. 6(d).
32 Fed. R. App. P. 26 (Cmte. Notes, 2016 Amd.).
36 See, e.g., Fed. R. App. P. 5(d)(1) (setting forth 14-day deadlines in appeals by permission); Fed. R. App. P. 10 (setting forth various 14-day deadlines regarding the record on appeal); Fed. R. App. P. 27(a)(4) (setting forth seven-day deadline for replies to responses); Fed. R. App. P. 31(a)(1) (setting forth 14-day deadline for reply briefs); Fed. R. App. P. 40(a)(1) (setting forth 14-day deadline for seeking panel rehearing).
37 Fed. R. App. P. 26 (Cmte. Notes, 2016 Amd.).
38 See Fed. R. App. P. 31(a)(1) (appellee’s brief due within 30 days after service of appellant’s brief, and appellant’s reply brief due within 14 days after service of appellee’s brief).
39 See Fed. R. App. P. 27(a)(3) (response due within 10 days after service of motion); Fed. R. App. P. 27(a)(4) (reply due within seven days after service of response).
40 11th Cir. R. 26.1-1(a)(3).
43 Fed. R. App. P. 27, 11th Cir. IOP 7, withdrawing motions.
44 Fed. R. App. P. 29 (Cmte. Notes, 2016 Amd.).
46 Fed. R. App. P. 32(g) and accompanying committee notes.
Joseph T. Eagleton is an appellate associate with Brannock & Humphries in Tampa. He previously served as the senior staff attorney for Florida Supreme Court Justice Barbara J. Pariente, after graduating with honors from the University of Florida Levin College of Law.
The author extends his sincere gratitude to two former chairs of the Appellate Practice Section, Matthew Conigliaro of Carlton Fields and Hala Sandridge of Buchanan Ingersoll & Rooney, both of whom presented informative continuing legal education programs discussing the recent amendments that are the focus of this article. The analysis contained in those programs was of enormous help in developing this article’s content. Any errors or omissions are, of course, solely attributable to the author.
This column is submitted on behalf of the Appellate Practice Section, Kristin A. Norse, chair, and Brandon Christian and Thomas Seider, editors.