This article discusses recent amendments and proposed amendments to the federal rules of practice and procedure other than the Federal Rules of Bankruptcy Procedure.
In October 2021, the Judicial Conference of the United States sent its annual package of proposed amendments to the federal rules of practice and procedure to the U.S. Supreme Court. See 28 U.S.C. § 331. As usual, the Supreme Court adopted all of the proposed amendments without change. These amendments became effective on December 1, 2022. For information about the process and timetable for enacting and amending federal rules of practice and procedure, see Steven Finell, Appellate Rules and Statutes Focus: Amendments to the Federal Rules of Appellate Procedure, App. Prac. J., Fall 2009, at 4.
Appellate Rule 25(a)(5) was amended to add the following language at the end: “The provisions on remote electronic access in Federal Rule of Civil Procedure 5.2(c)(l) and (2) apply in a petition for review of a benefits decision of the Railroad Retirement Board under the Railroad Retirement Act.” As the committee note explains, the Social Security Act and the Railroad Retirement Act are similar in many ways. One difference, though, is that judicial review of a Social Security decision lies in the district court, but review of a Railroad Retirement Act decision goes directly to a court of appeals. To preserve privacy, Civil Rule 5.2 limits remote electronic access to the court’s file in a Social Security review proceeding. The amendment to Appellate Rule 25 now provides the same protection to review of Railroad Retirement Act decisions in a court of appeals.
An amendment of Appellate Rule 42(b) clarifies procedures for voluntary dismissal of an appeal. First, it provides that the clerk must dismiss an appeal “if the parties file a signed dismissal agreement specifying how costs are to be paid and must pay any court fees that are due.” Fed. R. App. P. 42(b)(1). Second, it clarifies that the only fees that must be paid for dismissal are court fees, not attorney fees. Third, it requires a court order for any relief beyond dismissal of the appeal. Fed. R. App. P. 42(b)(3). Fourth, and somewhat redundantly, it reaffirms that “Rule 42 does not alter the legal requirements governing court approval of a settlement, payment, or other consideration.” Fed. R. App. P. 42(c). Fifth, it provides that a court of appeals “may, by local rule, impose requirements to confirm that a defendant has consented to the dismissal of an appeal in a criminal case.” Fed. R. App. P. 42(d).
The Federal Rules of Civil Procedure were amended by adding new Supplemental Rules for Social Security Actions Under 42 U.S.C. § 405(g). Section 405(g) authorizes an individual party to obtain judicial review of a final decision of the commissioner of Social Security by commencing a civil action in a district court. This review is appellate in nature as it is based entirely upon the administrative record in the Social Security proceeding. The new supplemental rules provide a uniform, simplified procedure for these reviews by a district court.
Civil Rule 7.1, which requires specified types of parties to file a disclosure statement with the first paper they file, was broadened in two respects. A nongovernmental corporation that moves to intervene in a civil action must now file the same disclosure statement as a nongovernmental corporation that is a party, and it must update its disclosure statement in the same circumstances as a party. Fed. R. Civ. P. 7.1(a)(1). In addition, in an action in which jurisdiction is founded on diversity of citizenship, a party or intervenor must, unless the court orders otherwise, file a disclosure statement that names and states the citizenship of every individual or entity whose citizenship is attributed to that party or intervenor. This disclosure statement must be filed when the action is filed in or removed to a federal court, and also when any later event occurs that could affect the court’s jurisdiction under 28 U.S.C. § 1332(a). Fed. R. Civ. P. 7.1(a)(2).
Criminal Rules 16(a)(1)(G) and 16(b)(1)(C), which prescribe disclosures regarding prosecution and defense expert witnesses upon the opposing party’s request, were largely rewritten.
The amended rules address the timing of expert disclosure. They require the district court, either by order or local rule, to set a deadline for each party’s expert disclosures. The deadline “must be sufficiently before trial to provide a fair opportunity for the [receiving party] to meet the [opponent’s] evidence.” Fed. R. Crim. P. 16(a)(1)(G)(ii), 16(b)(1)(C)(ii). The committee note points out that the expert disclosure schedule may need to allow time for a party to locate and hire an expert based on the opponent’s expert disclosure.
The amendment is both more expansive and more explicit about what the parties must disclose upon request. Where the former rules required the disclosing party to provide a “summary” of the expert’s intended testimony, the amendment requires, for each expert, “a complete statement of all opinions that the [party] will elicit from the witness in its case-in-chief or during its rebuttal to” the opponent’s timely disclosed expert testimony. Fed. R. Crim. P. 16(a)(1)(G)(iii), 16(b)(1)(C)(iii). Explicitly requiring disclosure of anticipated rebuttal expert testimony is new. In disclosing the expert’s qualifications, the disclosing party now must provide “a list of all publications authored in the previous 10 years and a list of all other cases in which, during the previous 4 years,” the expert testified at trial or by deposition. Id.
The amendment adds the requirement that each expert witness sign the disclosure, with stated exceptions. Fed. R. Crim. P. 16(a)(1)(G)(v), (b)(1)(C)(v).
As usual, the Judicial Conference sent its annual package of proposed amendments to the federal rules to the Supreme Court in October 2022. By May 1, 2023, the Supreme Court must transmit the adopted amendments to Congress. The rules become effective on December 1, 2023, unless Congress passes legislation that affects the rules. 28 U.S.C. § 2074(a).
The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) authorized the federal court system to adopt emergency rules that helped the courts to function during the coronavirus pandemic. Pub. L. No. 116–136 (enacted and effective Mar. 27, 2020). The pandemic also led the judiciary’s rulemaking apparatus to develop court rules for use in future emergencies. This round of amendments to the federal rules is largely devoted to new rules for emergencies. The emergency rules for appeals, civil cases, and criminal cases are similar.
Federal Rules of Appellate Procedure. Appellate Rule 2, Suspension of Rules, adopted in 1967, authorized a court of appeals to “suspend any provision of these rules in a particular case . . . , except as otherwise provided in Rule 26(b).” (Rule 26(b) forbids extending the deadlines for taking an appeal or seeking judicial relief from an administrative order.) In this round of amendments, Rule 2 becomes the scaffolding for suspending normal rules in a widespread emergency. Current Rule 2, without change, becomes Appellate Rule 2(a), with the new subheading “In a Particular Case.” New Appellate Rule 2(b), “In an Appellate Rules Emergency,” has five main subdivisions. Rule 2(b)(1) provides:
The Judicial Conference of the United States may declare an Appellate Rules emergency if it determines that extraordinary circumstances relating to public health or safety, or affecting physical or electronic access to a court, substantially impair the court’s ability to perform its functions in compliance with these rules.
The Judicial Conference’s declaration must designate the circuit(s) affected and be for a stated period of up to 90 days. Fed. R. App. P. 2(b)(2). The conference may end the emergency declaration early or may issue additional emergency declarations.Fed. R. App. P. 2(b)(3)–(4). During a rules emergency, “the court of appeals may suspend in all or part of that circuit any provision of these rules, other than time limits imposed by statute and described in Rule 26(b)(1)–(2),” and “order proceedings as it directs.” Fed. R. App. P. 2(b)(5).
In addition, language in Appellate Rule 4(a)(4)(vi) is amended to better align with the civil emergency rules.
Federal Rules of Civil Procedure. New Federal Rule of Civil Procedure 87 addresses future emergencies. Civil Rules 87(a) and 87(b) authorize the Judicial Council to declare a Civil Rules emergency in substantially the same circumstances as new Appellate Rule 2(b)(1), quoted above. The emergency declaration must designate the court(s) affected, adopt all of the emergency rules in Civil Rule 87(c) unless it excepts any of them, and “must be limited to a stated period of no more than 90 days.” Fed. R. Civ. P. 87(b)(1). The Judicial Council may terminate an emergency declaration before the stated period ends and may make additional declarations of a rules emergency. Fed. R. Civ. P. 87(b)(2)–(3).
Civil Rule 87(c)(1) sets forth Emergency Civil Rules 4(e), (h)(1), (i), and (j)(2), and an unnumbered rule for serving a minor or incompetent person in a judicial district of the United States. In a declared rules emergency, a court may authorize service on a defendant described in Civil Rules 4(e), (h)(1), (i), or (j)(2), or a minor or incompetent person in a judicial district of the United States, “by a method that is reasonably calculated to give notice.” Fed. R. Civ. P. 87(c)(1). The committee note observes that judges already have substantial discretion to fashion procedures in exigent circumstances to manage the cases before them without a Judicial Council declaration of a rules emergency.
Civil Rule 87(c)(2) sets forth Emergency Civil Rule 6(b)(2). During a rules emergency, it authorizes a court to apply Civil Rule 6(b)(1)(A) to extend for a period of no more than 30 days after entry of the order the time to act under Rules 50(b) and (d); 52(b); 59(b), (d), and (e); and 60(b). If the court denies a motion for an extension, “the time to file an appeal runs for all parties from the date the order denying the motion to extend is entered,” unless the time to appeal would otherwise be longer. Fed. R. Civ. P. 87(c)(2). If the court grants a motion for an extension, “a motion authorized by the court and filed within the extended period is, for purposes of Appellate Rule 4(a)(4)(A), filed ‘within the time allowed by’ the Federal Rules of Civil Procedure.” Id. If the court grants an extension “and no motion authorized by the court is made within the extended period, the time to file an appeal runs for all parties from the expiration of the extended period.” Id.
Federal Rules of Criminal Procedure. For the Judicial Council to declare a Federal Rules of Criminal Procedure emergency, it must determine that extraordinary circumstances exist, based on public health or safety or affecting physical or electronic access to a court, that substantially impair the court’s ability to perform its functions in compliance with the rules. Fed. R. Crim. P. 62(a)(1) (similar to new Appellate Rule 2(b)(1) and new Civil Rule 87(a)). Furthermore, the Judicial Council must determine that “no feasible alternative measures would sufficiently address the impairment within a reasonable time.” Fed. R. Crim. P. 62(a)(2). This additional requirement reflects a defendant’s constitutional right to a speedy trial. The committee note to paragraph (a) stresses that “authority to depart from the rules must be strictly limited. Compliance with the rules cannot be cast aside because of cost or convenience, or without consideration of alternatives that would permit compliance [with the rules] to continue.” Id. comm. note.
The Judicial Council’s declaration of a Criminal Rules emergency may also limit the use of the emergency powers in paragraphs (d) and (e) of Rule 62. The committee note to paragraph (d)(1) states that the Judicial Council, when considering the declaration of a Criminal Rules emergency for a specific district court, should individually determine whether each subparagraph of paragraphs (d) and (e) is necessary for the particular emergency and, even if necessary, whether to limit its use in some manner.
The emergency Criminal Rules 62(d) and 62(e) are also more explicit than the emergency Appellate and Civil Rules about how the courts may, and may not, depart from the normal rules. In doing so, the emergency Criminal Rules are sensitive to preserving defendants’ constitutional and statutory rights.
“If emergency conditions substantially impair the public’s in-person attendance at a public proceeding, the court must provide reasonable alternative access, contemporaneous if feasible.”Fed. R. Crim. P. 62(d)(1). A criminal defendant has a constitutional right to a public trial.
Where emergency conditions prevent a defendant from providing a required signature, Rule 62(d)(2) provides alternate means of ensuring the defendant’s assent.
“A court may impanel more than 6 alternate jurors.” Fed. R. Crim. P. 62(d)(3).
“Despite Rule 45(b)(2), if emergency conditions provide good cause, a court may extend the time to take action under Rule 35 [to correct or reduce a sentence] as reasonably necessary.” Fed. R. Crim. P. 62(d)(4).
Rule 62 “does not modify a court’s authority to use videoconferencing for a proceeding under Rules 5, 10, 40, or 43(b)(2), except that if emergency conditions substantially impair the defendant’s opportunity to consult with counsel, the court must ensure that the defendant will have an adequate opportunity to do so confidentially before and during those proceedings.” Id. r. 62(e)(1).
“Except for felony trials and as otherwise provided under (e)(1) and (3), for a proceeding at which a defendant has a right to be present, a court may use videoconferencing if: (A) the district’s chief judge finds that emergency conditions substantially impair a court’s ability to hold in person proceedings in the district within a reasonable time; (B) the court finds that the defendant will have an adequate opportunity to consult confidentially with counsel before and during the proceeding; and (C) the defendant consents after consulting with counsel.” Fed. R. Crim. P. 62(e)(2) (paragraph breaks omitted).
In felony pleas and sentencings, “a court may use videoconferencing only if, in addition to the requirement in (2)(B): (A) the district’s chief judge finds that emergency conditions substantially impair a court’s ability to hold in person felony pleas and sentencings in the district within a reasonable time; (B) the defendant, before the proceeding and after consulting with counsel, consents in a writing signed by the defendant that the proceeding be conducted by videoconferencing; and (C) the court finds that further delay in that particular case would cause serious harm to the interests of justice.” Fed. R. Crim. P. 62(e)(3) (paragraph breaks omitted).
“A court may conduct a proceeding, in whole or in part, by teleconferencing if: (A) the requirements under any applicable rule, including this rule, for conducting the proceeding by videoconferencing have been met; (B) the court finds that: (i) videoconferencing is not reasonably available for any person who would participate by teleconference; and (ii) the defendant will have an adequate opportunity to consult confidentially with counsel before and during the proceeding if held by teleconference; and (C) the defendant consents.” Fed. R. Crim. P. 62(e)(4) (paragraph breaks omitted).
Juneteenth, a portmanteau of June and nineteenth, commemorates the freeing of the last slaves in the United States by U.S. Army Major General Gordon Granger in Texas on June 19, 1865—two and a half years after President Abraham Lincoln’s Emancipation Proclamation. Black Americans began celebrating Juneteenth in 1866 as their independence day.
The Juneteenth National Independence Day Act was enacted on June 17, 2021. Pub. L. No. 117–17 (amending 5 U.S.C. § 6103(a)). Two and a half years later, on December 1, 2023, amendments adding Juneteenth National Independence Day to the list of federal holidays in Appellate Rule 45(a)(2), Civil Rule (6)(a)(6)(A), and Criminal Rule 56(c) will become effective on December 1, 2023.
Civil Rule 15(a)(1), which governs when a party may amend a pleading once as a matter of course, is amended to changing within to no later than. The committee note explains that reading within literally—which is usually the best way to read a rule—in some circumstances “would lead to an untoward practice.”
When a magistrate judge enters a recommended disposition of a dispositive motion or prisoner petition, Rule 72(b)(1) requires the clerk to mail a copy to each party. An amendment requires the clerk to serve a copy to each party by any means that Rule 5(b) provides.
Rule 16(b)(1)(v) is amended to correct an erroneous cross-reference in the amended rule that took effect on December 1, 2022.
Rule 106 provides that if a party introduces all or part of a written or recorded statement, an opponent may immediately require introduction of another part or another written or recorded statement “that in fairness ought to be considered at the same time.” It is amended in two respects.
The rule is amended to cover all statements, including oral statements.
The opponent’s statement is admissible even if it is hearsay. According to the committee note, courts have split on whether the opponent can introduce a hearsay statement. This amendment should end that conflict.
Amendments to Rule 615 broaden the court’s power to prevent potential witnesses from obtaining access to trial testimony, beyond excluding potential witnesses during trial testimony.
Proposed amendments to Rule 702, which concerns experts and expert testimony, are very controversial. Some believe that the amendments favor businesses by making it more difficult for plaintiffs to use expert testimony to bolster their lawsuits against businesses. This may be one of the rare occasions when Congress steps in and legislates before this amendment takes effect on December 1, 2023.
