Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Department of Defense

###### Office of the Secretary

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

# ACTION:

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

# 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:
      - Federal eRulemaking Portal: http://www.regulations.gov.
      -  Mail:                          Federal Docket Management System Office, 1160 Defense Pentagon,                                ( print 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]

BILLING CODE 5001-06-P