An astute observer has pointed out that the Federal Circuit Clerk’s Office seemingly has abandoned the notice-and-comment procedures for promulgating and amending the local rules. Without announcement, a “best practices” document was posted last week (http://www.cafc.uscourts.gov/sites/default/files/rules-of-practice/notices/AttorneyAppendixCitationFormattingBestPractices.pdf), which purports to be a “guide” for appendix citations. Notably, the “best practices” for citing a page range (i.e., Appx123-125 vs. Appx123-25) conflicts with Blue Book Rule 3.2(a).
Bouncing Briefs: Perhaps this would not be an issue if this were truly a “best practices guide,” but an observer has said that he had had a brief bounced for precisely the range citation issue. This source says that it was told by the Clerk’s Office that it has been directed to bounce any briefs not in compliance with this new “best practices guide.”
Sounds like a “rule!”
Question: Is the new policy in violation of FRAP 47(a)(1) that requires “notice-and-comment” and prohibits generally applicable directives outside of local rules)? Does this violate FRAP 32(e) that requires appeals courts to accept documents in compliance with Rule 32, which says nothing about Appendix citations?
Fed. R. App. P. 47(a):
(a) Local Rules. (1) Each court of appeals acting by a majority of its judges in regular active service may, after giving appropriate public notice and opportunity for comment, make and amend rules governing its practice. A generally applicable direction to parties or lawyers regarding practice before a court must be in a local rule rather than an internal operating procedure or standing order. A local rule must be consistent with — but not duplicative of — Acts of Congress and rules adopted under 28 U.S.C. § 2072 and must conform to any uniform numbering system prescribed by the Judicial Conference of the United States. Each circuit clerk must send the Administrative Office of the United States Courts a copy of each local rule and internal operating procedure when it is promulgated or amended.
Fed. R. App. P. 32(e): ***
(e) Local Variation. Every court of appeals must accept documents that comply with the form requirements of this rule. By local rule or order in a particular case a court of appeals may accept documents that do not meet all of the form requirements of this rule.