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###### Department of Defense

###### Office of the Secretary

# 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 36, 39, 21(b)(6), 24(a), 28(a), 32, 34(b), and 10(a)(3) of the Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces for public notice and comment. New language is in bold print.

# DATES:

Comments on the proposed changes must be received by October 14, 2005.

# FOR FURTHER INFORMATION CONTACT:

William A. DeCicco, Clerk of Court, telephone (202) 761-1448 (ext. 600).

## Proposed Revision to Rule 36

### Rule 36. Filing of Pleadings

                        (a) In general. Pleadings or other papers relative to a case shall be filed in the Clerk's office, 450 E Street, Northwest, Washington, DC 20442-0001, either in person, by mail, or by third-party commercial carrier.                         *See*                         Rule 37(b)(2).                    

(b) Filing in person. (no change).

(c) Filing by mail or third-party commercial carrier. If a pleading or other paper is filed by mail, such filing shall consist of depositing the pleading or other paper with the United States Postal Service, with no less than first-class postage prepaid, properly addressed to the Clerk's office. If a pleading or other paper is filed through a third-party commercial carrier, such filing shall consist of delivery to the commercial carrier for delivery within 3 calendar days.

                        (d) Time of filing. Pleadings or other papers shall be deemed to have been filed on the date they are delivered to the Clerk's office under subsection (b) or on the date they are mailed or delivered to a commercial carrier under subsection (c).                         *See*                         Rules 37(b)(1) and 39(e).                    

                        (e) Non-compliant pleadings. (no change).                              ( print page 54371)    

*Explanatory Note for Rule 36 (Filing of Pleadings):*

Rule 36 has been amended to allow for filing of pleadings and other papers by “third-party commercial carrier” (e.g., FedEx or UPS). For purpose of filing, if a commercial carrier is used it must be for delivery within 3 calendar days. This rule change was made to reflect the fact that third-party commercial carriers are well-established and this means of delivery of documents should be available to counsel. The rule is consistent with the Federal Rules of Appellate Procedure, Rule 25(B), relating to briefs. Those rules, however, would not deem other pleadings or papers filed until they are received by the Clerk of the Court.

## Proposed Revision to Rule 39

### Rule 39. Service of Pleadings

                        (a) In general. At or before the filing of any pleading or other paper relative to a case in the Clerk's office, a copy thereof shall be served on all counsel of record, including                         *amicus curiae*                         counsel, in person, by mail, by third-party commercial carrier, or by electronic means if the party being served consents.                         *See*                         Rule 16(b). When a party is not represented by counsel, service shall be made on such party in person, by mail, or by third-party commercial carrier. When reasonable, considering such factors as the immediacy of the relief sought, distance, and cost, service must be at least as expeditious as the manner used to file the pleading or other paper with the Court.                         *See*                         Rule 36.                    

(b) Personal service. (no change).

(c) Service by mail. (no change).

(d) Service by third-party commercial carrier. If service is made by a third-party commercial carrier, it shall be for delivery within 3 calendar days.

(e) Time of service. Personal service is complete on delivery. Service by mail or third-party commercial carrier is complete on mailing or delivery to the carrier. Service by electronic means is complete upon transmission.

(f) Certificate for review. (no change other than redesignation of subparagraph).

(g) Form of certificate of filing and service. A certificate indicating the specific manner of filing under Rule 36 and the specific manner of service under this rule shall be included in any pleading or other paper substantially in the following form:

#### Certificate of Filing and Service

I certify that the original and seven copies of the foregoing were [delivered] (or) [mailed—specify class] (or) [delivered to—specify the name of the third-party commercial carrier—for delivery-specify within how many days delivery will be effected] to the Court on __________ (date) and ____ that a copy of the foregoing was [delivered] (or) [mailed—specify class] (or [delivered to—specify the name of the third-party commercial carrier-for delivery—specify within how many days delivery will be effected] (or) [transmitted by electronic means with the consent of the counsel being served—specify the electronic mail address or facsimile number used] to (enter specific name of each counsel of record or party, if not represented) on __________ (date).

(Typed name and signature of certifying person)

(Address and telephone no. of certifying person)

*Explanatory Note for Rule 39 (Service of Pleadings):*

Rule 39 has been amended to allow for service of pleadings and other papers by third-party commercial carrier. For purpose of service, if a commercial carrier is used it must be for delivery within 3 calendar days. This rule change was made to reflect the fact that third-party commercial carriers are well-established and this means of delivery of documents should be available to counsel. A similar provision can be found in the Federal Rules of Appellate Procedure, Rule 25(c)(1)(C). Under the rule, generally, service should be as expeditious as filing.

Rule 39 also allows for service of documents by electronic means with the consent of the party being served, if the party is represented by counsel. Service by facsimile or by e-mail is faster and more economical. It also gives the party being served the opportunity to start work on a reply (if any) and to share the document with others (co-counsel, etc.) promptly and efficiently. The rule only applies when both sides are represented by counsel. The Federal Rules of Appellate Procedure, Rule 25(c)(1)(C), allows for electronic service with consent but the consent must be in writing.

## Other Rules Requiring Change Due To the Above

*Proposed Revision To Rule 21(b)(6):*

(6) A certificate of filing and service in accordance with Rule 39(g).

*Proposed Revision To Rules 24(a), 28(a), and 32:*

Rules 24(a), 28(a), and 32, pertaining to certificates of filing and service for Briefs, Petitions for Extraordinary Relief, and Petitions for Reconsideration:

*Rule 24(a):*

#### Certificate of Filing and Service

I certify that a copy of the foregoing was [delivered] (or) [mailed—specify class] (or) [delivered to-specify the name of the third-party commercial carrier—for delivery and specify within how many days delivery will be effected] to the Court and [delivered] (or) [mailed-specify class] (or) [delivered to—specify the name of the third—party commercial carrier—for delivery and specify within how many days delivery will be effected] (or) [transmitted by electronic means with the consent of the counsel being served] to _______________ (e-mail or facsimile no.) on __________ (date).

Where more than one counsel or party is being served, the certificate should specify how each party or counsel was served.

(Typed name and signature of certifying person)

(Address and telephone no. of certifying person)

*Rule 28(a):*

#### Certificate of Filing and Service

I certify that a copy of the foregoing was [delivered] (or) [mailed—specify class] (or) [delivered to-specify the name of the third-party commercial carrier—for delivery and specify within how many days delivery will be effected] to the Court, [delivered] (or) [mailed-specify class] (or) [delivered to-specify the name of the third-party commercial carrier—for delivery and specify within how many days delivery will be effected] (or) to the [trial or appellate military judge whose decision, judgment, or order is the subject of the petition], and [delivered] (or) [mailed—specify class] (or) [delivered to—specify the name of the third-party commercial carrier—for delivery and specify within how many days delivery will be effected] (or) [transmitted by electronic means with the consent of the counsel being served—specify the electronic mail address or facsimile number used] to _______________ (e-mail or facsimile no.), the [respondent] [appellee] on __________ (date).

(Typed name and signature)

(Address and telephone no.)

*Rule 32:*      ( print page 54372)    

#### Certificate of Filing and Service

I certify that a copy of the foregoing was [delivered] (or) [mailed—specify class] (or) [delivered to—specify the name of the third-party commercial carrier—for delivery and specify within how many days delivery will be effected] to the Court and [delivered] (or) [mailed-specify class] (or) [delivered to—specify the name of the third-party commercial carrier—for delivery and specify within how many days delivery will be effected] (or) [transmitted by electronic means with the consent of counsel being served] to the [appellant] [appellee] [petitioned] [respondent] on __________ (date). 

(Typed name and signature)

(Address and telephone no.)

*Rule 34(b):*

(b) Additional time when service not made in person.

Whenever a party has the right or is required to do some act within a prescribed period after the issuance of an order or the filing of a notice, pleading, or other paper relative to a case when service thereof is made upon him by mail, 5 days will be added to the prescribed period if the party upon whom the service is made is within the limits of the contiguous 48 States and the District of Columbia, and 15 days will be added if the party is located outside these limits, including the States of Alaska and Hawaii. If service is made by delivery to commercial third-party carrier or electronically, an additional 3 days will be added to the prescribed period, regardless of the location where service is made. This provision for additional time shall not apply, however, to the time limitations prescribed in Rule 19(a)(1) for the filing of a petition for grant of review.

*Explanatory Note for Rules 21(b)(6), 24(a), 28(a), 32, and 34(b):*

Rules 21(b)(6), 24(a), 28(a), 32, and 34(b) pertaining to certificates of filing and service have been amended to reflect the changes in Rules 36 and 39.

*Rule 10(a)(3):*

(3) a special docket to the matters arising under Rule 15 concerning complaints of unprofessional conduct against a member of the Bar of this Court, and petitions and other correspondence that are not docketed on another docket, and that are returned to the sender.

*Explanatory Note for Rule 10(a)(3):*

This amendment establishes a new special docket for documents that are returned to the sender without the Court taking any action. The reason for this change is to retain a record of the receipt by the Court of the document as well as the decision to not take any action or to docket the document on the regular docket kept by the Court.

Dated: September 8, 2005.

L.M. Bynum,

Alternate OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. 05-18177  Filed 9-13-05; 8:45 am]

BILLING CODE 5001-06-M