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Bar News - December 18, 2009


US Court of Appeals for the First Circuit

NOTICE OF ADOPTION OF AMENDMENTS TO LOCAL RULES

The United States Court of Appeals for the First Circuit previously provided notice of proposed minor amendments to Local Rules 3.0(a)(3) and (b), 10.0(a) and (d), 32.4, 33.0(a)(1), 35.0(d), 40.0(b), and 45.0(a) and (c). The amendments are being made to maintain consistency with time-computation amendments to the Federal Rules of Appellate Procedure effective December 1, 2009.

The court also provided notice of amendments to Local Rules 22.1, 22.2, and 48.0(c)(1), addressing certificates of appealability. These amendments are necessary to maintain consistency with amendments to Rule 11 of the Rules Governing Proceedings Under § 2254 or § 2255, and related amendments to Fed. R. App. P. 22(b)(1), effective December 1, 2009. As amended, Rule 11 requires the district judge to rule on the certificate of appealability when a final order issues.

Finally, the court provided notice of the deletion of Local Rule 22.0, an outdated provision regarding certificates of probable cause. The provision is no longer necessary as certificates of appealability have replaced certificates of probable cause for habeas appeals initiated on or after April 24, 1996.

The court solicited comments on the proposed amendments. No comments were received. The court hereby provides notice of the adoption of the amendments. A copy of the relevant provisions of the local rules with the amendments incorporated is attached.

The effective date of the amendments is December 1, 2009.

November 17, 2009

Richard Cushing Donovan, Clerk

Local Rule 3.0. Docketing Statement Required; Dismissals for Want of Diligent Prosecution

(a) Docketing Statement Required. To provide the clerk of the Court of Appeals at the commencement of an appeal with the information needed for effective case management, within 14 days after the case is docketed in the court of appeals, the person or persons taking the appeal must submit a separate statement listing all parties to the appeal, the last known counsel, and last known addresses and email addresses for counsel and unrepresented parties. Errors or omissions in this separate statement alone shall not otherwise affect the appeal if the notice of appeal itself complies with this rule.

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(3) Duty of Opposing Party. If an opposing party concludes that the docketing statement is in any way inaccurate, incomplete, or misleading, the clerk’s office must be informed in writing of any errors and any proposed additions or corrections within fourteen days of service of the docketing statement, with copies to all other parties.

(b) If appellant does not pay the docket fee within 14 days of the filing of the notice of appeal, or does not file the docketing statement or any other document within the time set by the court, the appeal may be dismissed for want of diligent prosecution.

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Local Rule 10.0. Ordering Transcripts

(a) Timely Filing. Fed. R. App. P. 10(b) requires that the transcript be ordered within 14 days of the filing of the notice of appeal. Parties are nevertheless urged to order any necessary transcript immediately after the filing of the notice. If the appellant fails totimely order a transcript in writing from the court reporter, the appeal may be dismissed for want of diligent prosecution.

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(d) Caveat. The court is of the opinion that in many cases a transcript is not really needed, and makes for delay and expense, as well as unnecessarily large records. The court urges counsel to endeavor, in appropriate cases, to enter into stipulations that will avoid or reduce transcripts. See Fed. R. App. P. 30(b). However, if an agreed statement of the evidence is contemplated, counsel are reminded of Fed. R. App. P. 10(c) requiring submission to the district court for approval. The fourteen-day ordering rule will not be suspended because of such activity, however, except by order of the court for good cause shown.

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Local Rule 22.0. Habeas Corpus; Certificate of Appealability

(a) General Procedures: In this circuit, ordinarily neither the court nor a judge thereof will act on a request for a certificate of appealability if the district judge who refused the writ is available and has not ruled first. The general procedures regarding certificates of appealability are set forth in Fed. R. App. P. 22 and Rule 11 of the Rules Governing Proceedings Under 28 U.S.C. § 2254 or § 2255. These latter rules require the district judge to rule on the issuance of a certificate of appealability when a final order issues. If the district court denies a certificate, the petitioner may not appeal the denial but may file a motion for a certificate of appealability before this court. A petitioner wishing to challenge the denial of a § 2254 or § 2255 petition must file a timely notice of appeal whether or not the district court issues a certificate of appealability.

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Local Rule 22.1 Habeas Corpus; Successive Petitions

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Local Rule 32.4. Motions for Leave to File Oversized Briefs

The First Circuit encourages short, concise briefs. A motion for leave to file an oversized opening brief must be filed at least ten days in advance of the brief’s due date, must specify the additional length sought, and must be supported by a detailed statement of grounds. A motion for leave to file an oversized reply brief must be filed at least seven days in advance. Such motions will be granted only for compelling reasons.

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Local Rule 33.0. Civil Appeals Management Plan

Pursuant to Rule 47 of the Federal Rules of Appellate Procedure, the United States Court of Appeals for the First Circuit adopts the following plan to establish a Civil Appeals Management Program, said Program to have the force and effect of a local rule.

(a) Pre-Argument Filing; Ordering Transcript.

(1) Upon receipt of the Notice of Appeal in the Court of Appeals, the Clerk of the Court of Appeals shall send notice of the Civil Appeals Management Plan to the appellant. Upon receipt of further notice from the Clerk of the Court of Appeals, appellant shall, within fourteen days:

(A) file with the Clerk of the Court of Appeals, and serve on all other parties a statement, in the form of the Docketing Statement required by Local Rule 3.0(a), detailing information needed for the prompt disposition of an appeal;

(B) certify and file with the Clerk of the Court of Appeals a statement, in the form required by Local Rule 10.0(b), that satisfactory arrangements have been made with the court reporter for payment of the cost of the transcript.

The Parties shall thereafter provide Settlement Counsel with such information about the appeals as Settlement Counsel may reasonably request.

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Local Rule 35.0. En Banc Determination

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(d) Motions for Leave to File Oversized Petitions. A motion for leave to file a petition in excess of the page length limitations of Fed. R. App. P. 35(b)(2) and Local Rule 35.0(b) must be filed at least five days in advance of the petition’s due date, must specify the additional length sought, and must contain a detailed statement of grounds. Such motions will be granted only for compelling reasons.

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Local Rule 40.0. Petition for Panel Rehearing

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(b) Motions for Leave to File Oversized Petitions. A motion for leave to file a petition for panel rehearing in excess of the page length limitations of Fed. R. App. P. 40(b) must be filed at least five days in advance of the petition’s due date, must specify the additional length sought, and must contain a detailed statement of grounds. Such motions will be granted only for compelling reasons.

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Local Rule 45.0. Defaults

(a) Appellant. When a cause is in default as to the filing of the brief for appellant or petitioner, and the appendix, if one is required, the clerk must enter an order dismissing the appeal for want of diligent prosecution. The party in default may have the appeal reinstated upon showing special circumstances justifying the failure to comply with the time limit.The motion to set aside the dismissal must be filed within fourteen days.

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(c) Local Rule 3.0. Counsel are reminded of Local Rule 3.0 providing for the dismissal of the appeal for want of diligent prosecution if the docket fee is not paid within 14 days of the filing of the notice of appeal.

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Local Rule 48.0 Capital Cases

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(c) Certificates of Appealability and Stays

(1) Certificates of Appealability and Motions for Stays. Certificates of appealability for all habeas matters are addressed in Fed. R. App. P. 22 and Rule 11 of the Rules Governing Proceedings Under 28 U.S.C. § 2254 or § 2255.


NOTICE OF ADOPTION OF
AMENDMENTS TO INTERNAL
OPERATING PROCEDURES

The United States Court of Appeals for the First Circuit previously provided notice of proposed amendments to Internal Operating Procedures III.B and VI.D. The amendments are being made to maintain consistency with the time-computation amendments to the Federal Rules of Appellate Procedure effective December 1, 2009. The court solicited comments. No comments were received.

The court hereby provides notice of the adoption of the amendments. A copy of the relevant provisions of the internal operating procedures with the amendments incorporated is attached.

The effective date of the amendments is December 1, 2009.

November 17, 2009

Richard Cushing Donovan, Clerk

Internal Operating Procedure III. Initial Procedures

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B. Ordering Transcripts. The transcripts must be ordered from the court reporter(s) on Transcript Order/Report Form which is available from the district court clerks and from the Clerk of the Court of Appeals. The order for the transcript must be given within 14 days after the filing of the notice of appeal and satisfactory financial arrangements must be made with the court reporter. See Fed. R. App. P. 10, 11; Local Rule 10.0. Counsel are required to complete these arrangements before the copy of the Transcript Order/Report is filed with the Court of Appeals. If counsel are being paid under the Criminal Justice Act ("CJA"), the CJA form must first be approved and then attached to the Transcript Order/Report Form.

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Internal Operating Procedure VI. Briefs and Appendices

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D. Defaults. If the appellant fails to file the brief and appendix on time, the Clerk is authorized to enter an order dismissing the appeal, and when an appellee is in default as to filing a brief, the appellee will not be heard at oral argument. The party in default may remove the default by showing special circumstance justifying the failure to comply. Any motion to set aside a dismissal should be filed within fourteen days. See Local Rule 45.0.


NOTICE OF PROPOSED
AMENDMENTS TO LOCAL RULE 34.0 AND INTERNAL OPERATING
PROCEDURE VIII

The United States Court of Appeals for the First Circuit hereby provides notice that it proposes to amend Local Rule 34.0(c)(2) ("Rebuttal") to conform to current practice. The court also provides notice that it proposes to delete Internal Operating Procedure VIII.D. ("Rebuttal") to eliminate any inconsistency and because it is unnecessary given the rule. The subsections of Internal Operating Procedure VIII will be renumbered accordingly.

A copy of the proposed amended local rule and the proposed amended internal operating procedure is attached. Deletions are indicated in strike-out print; additions are indicated in italic print, and omitted sections are indicated by "* * *".

The Court of Appeals invites public comments on the proposed amendments. Comments should be submitted by December 17, 2009, and addressed to:

Office of the Clerk

U.S. Court of Appeals for the First Circuit

United States Courthouse

1 Courthouse Way, Suite 2500

Boston, Massachusetts 02210

November 17, 2009

Richard Cushing Donovan, Clerk

Local Rule 34.0. Oral Argument

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(c) Argument.

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(2) Rebuttal. Although Fed. R. App. P. 34(c) permits an appellant both to open and conclude the argument, the court holds the view that seldom is counsel well served by an advance reservation of time for rebuttal. Not only does such action reduce the limited time allotted but is likely merely to allow repetitious argument. Counsel are expected to cover all anticipated issues in their arguments in chief. Should unexpected matters arise, such as the need for factual correction, the court is prepared to give counsel who have not reserved time a brief additional period for real rebuttal. Allowance of time for rebuttal is within the discretion of the presiding judge, but often appellant will be allowed to reserve a few minutes on request made at the outset of opening argument. However, counsel is expected to cover all anticipated issues in opening argument. Reserved rebuttal time is for the purpose of answering contentions made in the other side’s oral argument. Any time allowed to be reserved by the presiding judge will be deducted from that party’s allotted time for opening argument.

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Internal Operating Procedure VIII. Oral Argument

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D. Rebuttal. Extended rebuttal is not encouraged, and the court normally expects rebuttal to be used only where an unexpected matter has been raised and then usually not more than a minute is allowed.

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Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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