[Federal Register Volume 75, Number 37 (Thursday, February 25, 2010)]
[Notices]
[Pages 8682-8683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3818]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID: DOD-2010-OS-0019]


U.S. Court of Appeals for the Armed Forces Proposed Rules Changes

ACTION: Notice of proposed changes to the Rules of Practice and 
Procedure of the United States Court of Appeals for the Armed Forces.

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SUMMARY: This notice announces the following proposed changes to Rules 
21(b) and 21(b)(5)(G), and proposed new Rule 21A of the Rules of 
Practice and Procedure, United States Court of Appeals for the Armed 
Forces for public notice and comment.

DATES: Comments on the proposed changes must be received within 30 days 
of the date of this notice.

ADDRESSES: Comments may be submitted, identified by docket number and 
title, by any of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov.
    <bullet> Mail: Federal Docket Management System Office, 1160 
Defense Pentagon,

[[Page 8683]]

OSD Mailroom 3C843, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and docket number for this Federal Register document. The general 
policy for comments and other submissions from members of the public is 
to make these submissions available for public viewing on the Internet 
at http://www.regulations.gov as they are received without change, 
including personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: William A. DeCicco, Clerk of the 
Court, telephone (202) 761-1448.

    Dated: February 19, 2010.
Mitchell S. Bryman,
Alternate OSD Federal Register Liaison Officer, Department of Defense.

Rule 21(b)

    A. Remove the first sentence of existing Rule 21(b) which currently 
reads:
    (b) The supplement to the petition shall be filed in accordance 
with the applicable time limit set forth in Rule 19(a)(5)(A) or (B), 
shall include an Appendix containing a copy of the decision of the 
Court of Criminal Appeals, unpublished opinions cited in the brief, 
relevant extracts of rules and regulations, and shall conform to the 
provisions of Rules 24(b), 35A, and 37.
    B. Add the following to Rule 21(b) in its place:
    (b) The supplement to the petition shall be filed in accordance 
with the applicable time limit set forth in Rule 19(a)(5)(A) or (B), 
shall include an Appendix containing a copy of the decision of the 
Court of Criminal Appeals, unpublished opinions cited in the brief, 
relevant extracts of rules and regulations, and shall conform to the 
provisions of Rules 35A and 37. Unless authorized by order of the Court 
or by motion of a party granted by the Court, the supplement and any 
answer thereto shall not exceed 25 pages, except that a supplement or 
answer containing no more than 9,000 words or 900 lines of text is also 
acceptable. Any reply to the answer shall not exceed 10 pages except 
that a reply containing 4,000 words or 400 lines of text is also 
acceptable.
    C. The remainder of Rule 21(b) is unchanged except as noted below 
regarding Rule 21(b)(5)(G).
    Comment: The proposal to reduce the length of supplements, answers 
and replies would follow the practice at the Supreme Court of the 
United States where different limits apply to petitions for certiorari 
(9,000 words) and briefs following a grant of certiorari (15,000 
words). In exceptional cases, counsel would still be able to request to 
exceed the limit by motion under Rule 30.

Rule 21(b)(5)(G)

    A. Rule 21(b)(5)(G) currently reads:
    (b) * * * The supplement shall contain:
    * * * (5) A direct and concise argument showing why there is good 
cause to grant the petition, demonstrating with particularity why the 
errors assigned are materially prejudicial to the substantial rights of 
the appellant. Where applicable, the supplement to the petition shall 
also indicate whether the court below has:
    * * * (G) taken inadequate corrective action after remand by the 
Court subsequent to grant of an earlier petition in the same case and 
that appellant wishes to seek review from the Supreme Court of the 
United States; * * *
    B. The proposed change is to remove subparagraph (G) and replace it 
with the following new subparagraph (G):
    * * * (G) taken inadequate corrective action after remand by the 
Court subsequent to grant of an earlier petition in the same case and 
that appellant wishes to seek review in the Supreme Court of the United 
States specifying the issue or issues on which certiorari review would 
be sought, whether related to the remand or to the original decision by 
this Court; * * *
    Comment: The recent practice of the Court has been to grant 
petitions for grant of review in cases that have been previously 
remanded to the convening authority or the Court of Criminal Appeals 
for corrective action and are returned to the Court on a second 
petition. The grant of review is intended to protect the right to seek 
certiorari review at the Supreme Court, and may be accompanied by a 
summary order of affirmance. The proposed change to the Rule would add 
a requirement that appellate defense counsel specify the issue or 
issues on which certiorari review would be sought, related to either 
the remand or the original decision of the Court. The amendment will 
make it clear that there is no right to further review in this Court in 
all remanded cases, and also provide a more orderly process for 
identifying the issues that are being preserved for review on petition 
for certiorari. The Court can then decide whether to grant and affirm 
or take other action it deems appropriate.

Rule 21A

    Adopt new Rule 21A as follows:

Rule 21A. Submissions Under United States v. Grostefon

    (a) Issues raised pursuant to United States v. Grostefon, 12 M.J. 
431 (C.M.A. 1982), shall be presented in a separate Appendix to the 
supplement not to exceed 15 pages.
    (b) Grostefon issues shall be identified by counsel with 
particularity, substantially in the following form:

Grostefon Issue Appendix

    Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), 
appellant, through appellate defense counsel, personally requests that 
this Court consider the following matters:
    [List issues and any argument for each issue.]
    (c) Grostefon issues raised within 30 days of the filing of the 
supplement under Rule 19(a)(5)(C) are subject to and included within 
the 15-page limit in this Rule.
    Comment: This new Rule is designed to fill a gap that currently 
exists in the Rules regarding page limits for submissions of personally 
asserted matters under Grostefon. The new Rule will allow counsel more 
than enough space to identify issues that the appellant wishes to raise 
and to attach any reasonably sized written submission that the 
appellant prepared. The 15-page limit is all-inclusive, i.e., all 
stated issues, argument, and written submissions from the appellant 
must not exceed a total of 15 pages. The Rule is consistent with 
Grostefon and allows counsel to describe the issues the appellant wants 
to raise, without needlessly burdening the Court with voluminous 
filings of material that would never be permitted for filings by 
counsel.

[FR Doc. 2010-3818 Filed 2-24-10; 8:45 am]
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