Case: 15-2356
Document: 00117002734
Page: 1
Date Filed: 05/23/2016
Entry ID: 6001553
should announce a national rule instead of leaving the matter to local rules or court orders. The Committee decided that this is a matter appropriately left to the discretion of local circuits. Second, a member of the Standing Committee also asked whether Rule 29(a) should be simplified so that it allows filing of an amicus brief only by leave of court. The Committee believes that the United States or a State should be permitted to file without leave of court and thus does not favor adding a universal requirement to obtain leave of court. Third, a consultant to the Standing Committee raised a policy objection to allowing a court to prohibit the filing of an amicus brief that would cause a judge’s disqualification. The objection was that a court might block an amicus brief that raises an awkward but important issue about disqualification that the parties themselves do not wish to raise. In such situations, the parties may consent to having an amicus curiae raise the issue. The Advisory Committee considered this potential objection but concluded that local circuits should be permitted to conclude that the benefits of avoiding recusals in a three-judge panel or an en banc court outweigh the potential benefits of an amicus brief. Fourth, the Style Consultants suggested a revision to the clause beginning with the word “except” in line 5. They proposed ending the second sentence with the word “filing” and creating a new sentence beginning with the word “But.” At its April 2016 meeting, the Committee discussed the matter at length and rejected the proposed revision. The Committee believed that the proposed third sentence (beginning with “But”) contradicted the categorical grant of permission in the proposed second sentence. See Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393, 398-99 (2010) (“The Federal Rules regularly use ‘may’ to confer categorical permission, as do federal statutes that establish procedural entitlements.”) (citations omitted). Another proposed alternative of breaking the section into subdivisions would add unnecessary complexity. The Committee thus decided to approve the original a version with the “except” clause. This formulation is consistent with existing Appellate Rules, e.g., Fed. R. App. P. 25(a)(5), 28(b), 28.1(a), (c)(2), (c)(3), (d), and other respected texts, e.g., U.S. Const. Art. I, § 6, cl.1, Art. III, § 3, cl. 2. C.
Form 4: Removal of Question Asking Petitioners Seeking to Proceed in forma Pauperis to Provide the Last Four Digits of their Social Security Numbers [Item 15-AP-E]
Litigants seeking permission to proceed in forma pauperis must complete Appellate Form 4. Question 12 of Appellate Form 4 currently asks litigants to provide the last four digits of their social security numbers. The clerk representative to the Advisory Committee has investigated the matter and reports that the general consensus of the clerks of court is that the last four digits of a social security number are not needed for any purpose and that the question could be eliminated. Given the potential security and privacy concerns associated with social security numbers, and the
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Case: 15-2356
Document: 00117002734
Page: 2
Date Filed: 05/23/2016
Entry ID: 6001553
lack of need for obtaining the last four-digits of social security numbers, the Committee proposes to amend Form 4 by deleting this question. The proposed deletion is as follows: 1
Form 4. Affidavit Accompanying Motion for Permission to Appeal In Forma
2
Pauperis
3
***
4
12. State the city and state of your legal residence.
5
Your daytime phone number: (___) ____________
6
Your age: _______ Your years of schooling: ______
7
Last four digits of your social-security number: _____ D.
Revision of Appellate Rule 25 to address Electronic Filing, Signatures, Service, and Proof of Service [Items 08-AP-A, 11-AP-C, 11-AP-D, 15-AP-A, 15-AP-D, 15-AP-H]
At its April 2016 meeting, the Appellate Rules Committee reviewed the Civil Rules Committee’s progress on revising Civil Rule 5 to address electronic filing, signatures, service, and proof of service. The Committee then decided to propose revisions of Appellate Rule 25 that would follow the proposed revisions of Civil Rule 5 as closely as possible while maintaining the current structure of Appellate Rule 25. The proposed revision of Appellate Rule 25 has four key features. First, proposed Rule 25(a)(2)(B)(i) addresses electronic filing by generally requiring a person represented by counsel to file papers electronically. This provision, however, allows everyone else to file papers nonelectronically and also provides for exceptions for good cause and by local rule. Second, proposed Rule 25(a)(2)(B)(iii) addresses electronic signatures by specifying that when a paper is filed electronically, the “user name and password of an attorney of record, together with the attorney’s name on a signature block, serves as the attorney’s signature.” Third, proposed Rule 25(c)(2) addresses electronic service by saying that such service “may be made by sending it to a registered user by filing it with the court’s electronic-filing system or by using other electronic means that the person consented to in writing.” Fourth, proposed Rule 25(d)(1) is revised to make proof of service of process required only for papers that are not served electronically. 1
Appellate Rule 25. Filing and Service (a) Filing.
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