3CBA summarizes the appellate-rules changes

Peter Goldberger, President of the Third Circuit Bar Association, has summarized for 3CBA members the changes to the federal appellate rules that went into effect last week. It’s a tremendously helpful overview, and he’s generously given permission to post it here.

(If there’s a better legal-practice bargain than 3CBA’s $40-a-year dues, I don’t know of it.)

Goldberger writes:

Effective December 1, 2016, two important changes in the Federal Rules of Appellate Procedure went into effect, which I wanted to be sure you knew about.  First, the rule has changed by which the time periods are measured for responding to certain filings by another party.  Second, the word-limits for briefs, motions and some other filings have changed.  In addition, the Third Circuit has recently changed its electronic-filing rule as regards the Appendix to briefs.  Finally, some clerk’s office fees have increased. The details of these changes can be found in recent notices posted at the Court’s official website under the heading “News & Announcements.”  This email provides the highlights:

  1. All of us have grown familiar with the time-counting rule under which 3 days were added to the time otherwise set for responding to a document, such as a brief or motion, that was not hand-delivered to us, whenever by rule or order that time period was to be measured from “service” of that document.  This additional allowance was based on the typical time that it was understood it takes for first-class mail to be delivered. As of December 1, the federal appellate rule is amended (in parallel with changes in the civil and criminal rules) to treat electronically filed documents as if they had been hand-delivered; that is, three days will no longer be added to the time to respond to motions and briefs that are served through the court’s electronic filing system.  Since this effectively shortens the time for responding in many instances, it is important to be aware and plan accordingly.
  1. As of December 1, the allowable length of briefs and certain other documents, as measured by word-count, has been reduced.  Most notably, the permissible length of a principal brief is reduced from 14,000 words to 13,000 words, and for reply briefs from 7000 words to 6500 words.  The allow­able length of a petition for mandamus changes to 7800 words. An amicus brief is limited to ½ of the size of a principal brief. For a motion or response to a motion, the limit is 5200 words (or 20 pages). (This will sometimes be an increase over the previous rule.)  Rehearing petitions will now have a 3900-word limit.  As mentioned, there are other details in the Court’s notice.

Notably, unlike some other Circuits, the Third Circuit has neither opted out of any of the national changes, nor will it alter its existing practice or standards for judicial review of motions to exceed these new and reduced word limits.

The revised limits apply to pending cases, except that where the appellant’s opening brief was filed prior to December 1, the new limits do not apply to the appellee’s brief or appellant’s reply.

  1. The Court has also rescinded the previously-available option (“Option B”) of filing the appendix entirely on paper, and not via ECF.  All appendices must now be filed electronically.
  1. Certain of the Clerk’s fees for services have increased as of 12/1/16. Notably, the list of changes does not include the filing and docketing fees for appeals and petitions.

Most of these changes will be discussed in more detail in the 3CBA’s forthcoming newsletter.  As always, the Board thanks you for your membership and participation in our Association.