Changes to Federal Rules 2005

Changes to Federal Rules 2005 - Appellate
In effect on December 1, 2006

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DAVID F. LEV1
CHAIR
PETER G. McCABE
SECRETARY
COMMITTEE ON RULES OF PRACTICE AND PROCEDURE Agenda E-18 (Appendix A)
OF THE Rules
JUDICIAL CONFERENCE OF THE UNITED STATES September 2005
WASHINGTON, D.C. 20544
MEMORANDUM
DATE: May 6,2005
CHAIRS OF ADVISORY COMMITTEES
SAMUEL A. ALITO, JR.
APPELLATE RULES
THOMAS S. ZlLLY
BANKRUPTCY RULES
LEE H. ROSENTHAL
CIVIL RULES
SUSAN C. BUCKLEW
CRIMINAL RULES
JERRY E. SMITH
EVIDENCE RULES
TO: Judge David F. Levi, Chair
Standing Committee on Rules of Practice and Procedure
FROM: Judge Samuel A. Alito, Jr., Chair
Advisory Committee on Appellate Rules
RE : Report of Advisory Committee on Appellate Rules
The Advisory Committee on Appellate Rules met on April 18, 2005, in Washington, D.C.
The Committee gave final approval to two amendments, approved another amendment for publication, and removed two items from its study agenda.
11. Action Items
A. Items for Final Approval
1. New Rule 32.1
a. Introduction
The Committee proposes to add a new Rule 32.1 that will require courts to permit the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as "unpublished" or "non-precedential" by a federal court. New Rule 32.1 will also require parties who cite unpublished or non-precedential opinions that are not available in a publicly accessible electronic database (such as Westlaw) to provide copies of those opinions to the court and to the other parties.
b. Text of Proposed Amendment and Committee Note
PROPOSED AMENDMENTS TO THE FEDERAL RULES OF APPELLATE PROCEDURE*
Rule 32.1. Citing Judicial Dispositions
@ Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions. orders, judgments. or other written dispositions that have been designated as "unpublished." "not for publication." "nonprecedential." "not precedent." or the like.
(b) Coaies Required. If a party cites a federal judicial opinion, order. judgment. or other written disposition that is not available in a publicly accessible electronic database. the party must file and s ewe a c ovv of that opinion, order. judgment, or disposition with the brief or other paper in which it is cited.
New material is underlined; matter to be omitted is lined through.
Committee Note
Rule 32.1 is a new rule addressing the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated by a federal court as "unpublished," "not for publication," "non-precedential," "not precedent," or the like. This Committee Note will refer to these dispositions collectively as "unpublished" opinions.
Rule 32.1 is extremely limited. It does not require any court to issue an unpublished opinion or forbid any court from doing so. It does not dictate the circumstances under which a court may choose to designate an opinion as "unpublished" or specify the procedure that a court must follow in making that determination. It says nothing about what effect a court must give to one of its unpublished opinions or to the unpublished opinions of another court. Rule 32.1 addresses only the citation of federal judicial dispositions that have been designated as "unpublished" or "non-precedential" - whether or not those dispositions have been published in some way or are precedential in some sense.
Subdivision (a). Every court of appeals has allowed unpublished opinions to be cited in some circumstances, such as to support a contention of issue preclusion or claim preclusion. But the circuits have differed dramatically with respect to the restrictions that they have placed on the citation of unpublished opinions for their persuasive value. Some circuits have freely permitted such citation, others have discouraged it but permitted it in limited circumstances, and still others have forbidden it altogether.
Rule 32.l(a) is intended to replace these inconsistent standards with one uniform rule. Under Rule 32.l(a), a court of appeals may not prohibit a party from citing an unpublished opinion of a federal court for its persuasive value or for any other reason. In addition, under Rule 32.l(a), a court may not place any restriction on the citation, of such opinions. For example, a court may not instruct parties that the citation of unpublished opinions is discouraged, nor may a court forbid parties to cite unpublished opinions when a published opinion addresses the same issue.
Subdivision (b). Under Rule 32.l(b), a party who cites an opinion of a federal court must provide a copy of that opinion to the court of appeals and to the other parties, unless that opinion is available in a publicly accessible electronic database - such as a commercial database maintained by a legal research service or a database maintained by a court. A party who is required under Rule 32.1 (b) to provide a copy of an opinion must file and serve the copy with the brief or other paper in which the opinion is cited.
c. Changes Made After Publication and Comment* .
The changes made by the Advisory Committee after publication are described in my May 14,2004 report to the Standing Committee.
At its April 2005 meeting, the Advisory Committee directed that two additional changes be made.
First, the Committee decided to add "federal" before judicial opinions" in subdivision (a) and before "judicial opinion" in subdivision (b) to make clear that Rule 32.1 applies only to the unpublished opinions of federal courts. Conforming changes were
At its June 15-16,2005, meeting, the Standing Rules Committee with the advisory committee chair's concurrence agreed to delete sections of the Committee Note, which provided background information on the justification of the proposal.
made to the Committee Note. These changes address the concern of some state court judges - conveyed by Chief Justice Wells at the June 2004 Standing Committee meeting- that Rule 32.1 might have an impact on state law.
Second, the Committee decided to insert into the Committee Note references to the studies conducted by the Federal Judicial Center ("FJC") and the Administrative Office ("AO). (The studies are described below.) These references make clear that the arguments of Rule 32.1 's opponents were taken seriously and studied carefully, but ultimately rejected because they were unsupported by or, in some instances, actually refuted by the best available empirical evidence.
d. Summary of Public Comments
The 500-plus comments that were submitted regarding Rule 32.1 were summarized in my May 14, 2004 report to the Standing Committee. I will not again describe those comments. Rather, I will describe the empirical work that has been done at the request of the Advisory Committee.
You no doubt recall that, at its June 2004 meeting, the Standing Committee returned Rule 32.1 to the Advisory Committee with the request that the proposed rule be given further study. The Standing Committee was clear that its decision did not signal a lack of support for Rule 32.1. Rather, given the strong opposition to the proposed rule expressed by many commentators, and given that some of the arguments of those commentators could be tested empirically, the Standing Committee wanted to ensure that every reasonable step was taken to gather information before Rule 32.1 was considered for final approval.
Over the past year, Dr. Timothy Reagan and several of his colleagues at the FJC have conducted an exhaustive - and, I am sure, exhausting - study of the citation of unpublished opinions.
A copy of the FJC's lengthy report has been distributed under separate cover. Before I summarize that report, I again want to thank Dr. Reagan and his colleagues at the FJC for their extraordinarily thorough and helpful research.
The FJC's study involved three components: (1) a survey of all 257 circuit judges (active and senior); (2) a survey of the attorneys who had appeared in a random sample of fully briefed federal appellate cases; and (3) a study of the briefs filed and opinions issued in that random sample of cases. I will focus on the results of the two surveys, for those are the components of the research that are most relevant to the question of whether Rule 32.1 should be approved.
The attorneys received identical surveys. The judges did not.
Rather, the questions asked of a judge depended on whether the judge was in a restrictive circuit (that is, the Second, Seventh, Ninth, and Federal Circuits, which altogether forbid citation to unpublished opinions in unrelated cases), a discouraging circuit (that is, the First, Fourth, Sixth, Eighth, Tenth, and Eleventh Circuits, which discourage citation to unpublished opinions in unrelated cases, but permit it when there is no published opinion on point), or a permissive circuit (that is, the Third, Fifth, and D.C. Circuits, which permit citation to unpublished opinions in unrelated cases, whether or not there is a published opinion on point). Moreover, special questions were asked of judges in the First and D.C. Circuits, which recently liberalized their no-citation rules. The response rate for both judges and attorneys was very high.
The FJC's survey of judges revealed the following, among other things:
1. The FJC asked the judges in the nine circuits that now permit the citation of unpublished opinions - that is, the discouraging and permissive circuits - whether changing their rules to bar the citation of unpublished opinions would affect the length of those opinions or the time that judges devote to preparing those opinions. A large majority of judges said that neither would change. Similarly, the FJC asked the judges in the three permissive circuits whether changing their rules to discourage the citation of unpublished opinions would have an impact on either the length of the opinions or the time spent drafting them. Again, a large majority said "no." Opponents of Rule 32.1 have argued that, the more freely unpublished opinions can be cited, the more time judges will have to spend drafting them.
Opponents of Rule 32.1 have also predicted that, if the rule is approved, unpublished opinions will either increase in length (as judges make them "citable") or decrease in length (as judges make them "uncitable"). The responses of the judges in the circuits that now permit citation provide no support for these contentions.
2. The FJC asked the judges in the four restrictive circuits and in the six discouraging circuits whether approval of Rule 32.1 (a "permissive" rule) would result in changes to the length of unpublished opinions. A substantial majority of the judges in the six discouraging circuits - that is, judges who have some experience with the citation of unpublished opinions - replied that it would not.
A large majority of the judges in the four restrictive circuits - that is, judges who do not have experience with the citation of unpublished opinions - predicted a change, but, interestingly, they did not agree about the likely direction of the change. For example, in the Second Circuit, ten judges said the length of opinions would decrease, two judges said it would stay the same, and eight judges said it would increase. In the Seventh Circuit, three judges predicted shorter opinions, five no change, and four longer opinions.
3. The FJC also asked the judges in the four restrictive circuits and in the six discouraging circuits whether approval of Rule 32.1 would result in judges having to spend more time preparing unpublished opinions - a key claim of those who oppose Rule 32.1.
Again, the responses varied, depending on whether the circuit had any experience with permitting the citation of unpublished opinions in unrelated cases.
A majority of the judges in the six discouraging circuits said that there would be no change, and, among the minority of judges who predicted an increase, most predicted a "very small," "small," or "moderate" increase. Only a small minority agreed with the argument of Rule 32.1's opponents that the proposed rule would result in a "great" or "very great" increase in the time devoted to preparing unpublished opinions.
The responses from the judges in the four restrictive circuits were more mixed, but, on the whole, less gloomy than opponents of Rule 32.1 might have predicted. In the Seventh Circuit, a majority of judges - 8 of 13 - predicted that the time devoted to unpublished opinions would either stay the same or decrease. Only four Seventh Circuit judges predicted a "great" or "very great" increase. Likewise, half of the judges in the Federal Circuit - 7 of 14 - predicted that the time devoted to unpublished opinions would not increase, and four other judges predicted only a "moderate" increase. Only three Federal Circuit judges predicted a "great" or "very great" increase.
The Second Circuit was split almost in thirds: seven judges predicted no impact or a decrease, six judges predicted a "very small," "small," or "moderate" increase, and six judges predicted a "great" or "very great" increase. Even in the Ninth Circuit, 17 of 43 judges predicted no impact or a decrease - almost as many as predicted a "great" or "very great" increase (20).
4. The FJC asked the judges in the four restrictive circuits whether Rule 32.1 would be uniquely problematic for them because of any "special characteristics" of their particular circuits. A majority of Seventh Circuit judges said "no." A majority of Second, Ninth, and Federal Circuit judges said "yes." In response to a request that they describe those "special circumstances," most respondents cited arguments that would seem to apply to all circuits, such as the argument that, if unpublished opinions could be cited, judges would spend more time drafting them. Only a few described anything that was unique to their particular circuit.
5. The FJC asked judges in the nine circuits that permit citation of unpublished opinions how much additional work is created when a brief cites unpublished opinions. A large plurality (57) - including half of the judges in the permissive circuits - said that the citation of unpublished opinions in a brief creates only "a very small amount" of additional work. A large majority said that it creates either "a very small amount" (57) or "a small amount" (28). Only two judges - both in discouraging circuits - said that the citation of unpublished opinions creates "a great amount" or "a very great amount" of additional work. (That, of course, is what opponents of Rule 32.1 contend.)
6. The FJC asked judges in the nine circuits that p emit the citation of unpublished opinions how often such citations are helpful.
A majority (68) said "never" or "seldom," but quite a large minority (55) said "occasionally," "often," or "very often." Only a small minority (14) agreed with the contention of some of Rule 32.1's opponents that unpublished opinions are "never" helpful.
7. The FJC asked judges in the nine circuits that permit the citation of unpublished opinions how often parties cite unpublished opinions that are inconsistent with the circuit's published opinions.
According to opponents of Rule 32.1, unpublished opinions should almost never be inconsistent with published circuit precedent. The FJC survey provided support for that view, as a majority of judges responded that unpublished opinions are "never" (1 9) or "seldom" (67) inconsistent with published opinions. Somewhat surprisingly, though, a not insignificant minority (36) said that unpublished opinions are "occasionally," "often," or "very often" inconsistent with published precedent.
8. The FJC directed a couple of questions just to the judges in the First and D.C. Circuits. Both courts have recently liberalized their citation rules, the First Circuit changing from restrictive to discouraging, and the D .C. Circuit from restrictive to p emissive (although the D.C. Circuit is permissive only with respect to unpublished opinions issued on or after January 1,2002). The FJC asked the judges in those circuits how much more often parties cite unpublished opinions after the change. A majority of the judges -7 of 11 - said "somewhat" more often. (Three said "as often as before" and one said "much more often.") The judges were also asked what impact the rule change had on the time needed to draft unpublished opinions and on their overall workload. Again, opponents of Rule 32.1 have consistently claimed that, if citing unpublished opinions becomes easier, judges will have to spend more time drafting them, and that, in general, the workload of judges will increase. The responses of the judges in the First and D.C. Circuits did not support those claims. All of the judges - save one - said that the time they devote to preparing unpublished opinions had "remained unchanged." Only one reported a "small increase" in work. And all of the judges - save one - said that liberalizing their rule had caused "no appreciable change" in the difficulty of their work. Only one reported that the work had become more difficult, but even that judge said that the change had been "very small." As noted, the FJC also surveyed the attorneys that had appeared in a random sample of fully briefed federal appellate cases. The first few questions that the FJC posed to those attorneys related to the particular appeal in which they had appeared.
1. The FJC first asked attorneys whether, in doing legal research for the particular appeal, they had encountered at least one unpublished opinion of the forum circuit that they wanted to cite but could not, because of a no-citation rule. Just over a third of attorneys (39%) said "yes." It was not surprising that the percentage of attorneys who said "yes" was highest in the restrictive circuits (50%) and lowest in the permissive circuits (32%). What was surprising was that almost a third of the attorneys in the permissive circuits responded "yes." Given that the Third and Fifth Circuits impose no restriction on the citation of unpublished opinions - and given that the D.C. Circuit restricts the citation only of unpublished opinions issued before January 1, 2002 - the number of attorneys in those circuits who found themselves barred from citing an unpublished opinion should have been considerably less than 32%. When pressed by the Advisory Committee to explain this anomaly, Dr. Reagan responded that the FJC found that, to a surprising extent, judges and lawyers were unaware of the terms of their own citation rules. He speculated that some attorneys in permissive circuits may be more influenced by the general culture of hostility to unpublished opinions than by the specific terms of their circuit's local rules.
2. The FJC asked attorneys, with respect to the particular appeal, whether they had come across an unpublished opinion of another circuit that they wanted to cite but could not, because of a no-citation rule. Not quite a third of attorneys (29%) said "yes." Again, the affirmative responses were highest in the restrictive circuits (39%).
3. The FJC asked attorneys, with respect to the particular appeal, whether they would have cited an unpublished opinion if the citation rules of the circuit had been more lenient. Nearly half of the attorneys (47%) said that they would have cited at least one unpublished opinion of that circuit, and about a third (34%) said that they would have cited at least one unpublished opinion of another circuit. Again, affirmative responses were highest in the restrictive circuits (56% and 36%, respectively), second highest in the discouraging circuits (45% and 34%), and lowest in the permissive circuits (40% and 30%).
4. The FJC asked attorneys to predict what impact the enactment of Rule 32.1 would have on their overall appellate workload. Their choices were "substantially less burdensome" (1 point), "a little less burdensome" (2 points), "no appreciable impact" (3 points), "a little bit more burdensome" (4 points), and "substantially more burdensome" (5 points). The average "score" was 3.1. In other words, attorneys as a group reported that a rule freely permitting the citation o f unpublished opinions would not have an "appreciable impact" on their workloads - contradicting the predictions of opponents of Rule 32.1.
5. Finally, the FJC asked attorneys to provide a narrative response to an open-ended question asking them to predict the likely impact of Rule 32.1. If one assumes that an attorney who predicted a negative impact opposes Rule 32.1 and that an attorney who predicted a positive impact supports Rule 32.1, then 55% of attorneys favored the rule, 24% were neutral, and only 21% opposed it. In every circuit - save the Ninth - the number of attorneys who predicted that Rule 32.1 would have a positive impact outnumbered the number of attorneys who predicted that Rule 32.1 would have a negative impact. The difference was almost always at least 2 to 1, often at least 3 to 1, and, in a few circuits, over 4 to 1. Only in the Ninth Circuit - the epicenter of opposition to Rule 32.1 - did opponents outnumber supporters, and that was by only 46% to 38%.
The A0 also did research for us -research for which we are also very grateful. The A0 identified, with respect to the nine circuits that do not forbid the citation of unpublished opinions, the year that each circuit liberalized or abolished its no-citation rule. The A0 examined data for that base year, as well as for the two years preceding and (where possible) the two years following that base year. The A0 focused on median case disposition times and on the number of cases disposed of by one-line judgment orders (referred to by the A0 as "summary dispositions"). The AO's report is attached.
As you will see, the A0 found little or no evidence that liberalizing a citation rule affects median case disposition times or the frequency of summary dispositions. The AO's study thus failed to support two of the key arguments made by opponents of Rule 32.1 : that permitting citation of unpublished opinions results in longer case disposition times and in more cases being disposed of by one-line orders.
The Advisory Committee discussed the FJC and A0 studies at great length at our April meeting. All members of the Committee - both supporters and opponents of Rule 32.1 -agreed that the studies were well done and, at the very least, fail to support the main arguments against Rule 32.1. Some Committee members - including one of the two opponents of Rule 32.1 - went further and contented that the studies in some respects actually refute those arguments. Needless to say, for the seven members of the Advisory Committee who have supported Rule 32.1, the studies confirmed their views. But I should note that, even for the two members of the Advisory Committee who have opposed Rule 32.1, the studies were influential. Both announced that, in light of the studies, they were now prepared to support a national rule on citing unpublished opinions. Those two members still do not support Rule 32.1 - they prefer a discouraging citation rule to a permissive citation rule - but it is worth emphasizing that, in the wake of the FJC and A0 studies, not a single member of the Advisory Committee now believes that the no-citation rules of the four restrictive circuits should be left in place.
2. Rule 25(a)(2)(D)
a. Introduction
At the request of the Committee on Court Administration and Case Management ("CACM"), the Appellate Rules Committee has proposed amending Appellate Rule 25(a)(2)(D) to authorize the circuits to use their local rules to mandate that all papers be filed electronically. Virtually identical amendments to Bankruptcy Rule 5005(a)(2) and Civil Rule 5(e) (which is incorporated by reference into the Criminal Rules) - accompanied by virtually identical Committee Notes -were published for comment at the same time as the proposed amendment to Appellate Rule 25(a)(2)@).
b. Text of Proposed Amendment and Committee Note
Rule 25. Filing and Service
(a) Filing.
(2) Filing: Method and Timeliness.
* * * * *
(D) Electronic filing. A court of appeals may by local rule permit or require papers to be filed, signed, or verified by electronic means that are consistent with technical standards, if any, that the Judicial Conference of the United States establishes. A local rule may require filing by electronic means only if reasonable exceptions are allowed. A paper filed by electronic means in compliance with a local rule constitutes a written paper for the purpose of applying these rules.
Committee Note
Subdivision (a)(2)(D). Amended Rule 25(a)(2)(D) acknowledges that many courts have required electronic filing by means of a standing order, procedures manual, or local rule. These local practices reflect the advantages that courts and most litigants realize from electronic filing. Courts that mandate electronic filing o recognize the need to make exceptions when requiring electronic filing imposes a hardship on a party. Under Rule 25(a)(2)(D), a local rule that requires electronic filing must include reasonable exceptions, but Rule 25(a)(2)(D) does not define the scope of those exceptions.
Experience with the local rules that have been adopted and that will emerge will aid in drafting new local rules and will facilitate gradual convergence on uniform exceptions, whether in local rules or in an amended Rule 25(a)(2)(D).
A local rule may require that both electronic and "hard" copies of a paper be filed. Nothing in the last sentence of Rule 25(a)(2)(D) is meant to imply otherwise.
c. Changes Made After Publication and Comment
Rule 25(a)(2)(D) has been changed in one significant respect:
It now authorizes the courts of appeals to require electronic filing only "if reasonable exceptions are allowed."* The published version of Rule 25(a)(2)(D) did not require "reasonable exceptions." The change was made in response to the argument of many commentators that the national rule should require that the local rules include exceptions for those for whom mandatory electronic filing would pose a hardship.
Although Rule 25(a)(2)(D) requires that hardship exceptions be included in any local rules that mandate electronic filing, it does not attempt to define the scope of those exceptions. Commentators were largely in agreement that the local rules should include hardship exceptions of some type. But commentators did not agree about the
*A( its June 15-16, 2005, meeting, the Standing Rules Committee with the concurrence of the advisory committee chair agreed to set out the "reasonable exception" clause as a separate sentence in the rule, consistent with drafting conventions of the Style Project.
perimeters of those exceptions. The Advisory Committee believes that, at this point, it does not have enough experience with mandatory electronic filing to impose specific hardship exceptions on the circuits. Rather, the Advisory Committee believes that the circuits should be free for the time being to experiment with different formulations.
The Committee Note has been changed to reflect the addition of the "reasonable exceptions" clause to the text of the rule. The Committee Note has also been changed to add the final two sentences. Those sentences were added at the request of Judge Sandra L. Lynch, a member of CACM. Judge Lynch believes that there will be few appellate judges who will want to receive only electronic copies of briefs, but there will be many who will want to receive electronic copies in addition to hard copies. Thus, the local rules of most circuits are likely to require a "written" copy or "paper" copy, in addition to an electronic copy. The problem is that the last sentence of Rule 25(a)(2)(D) provides that "[a] paper filed by electronic means in compliance with a local rule constitutes a written paper for the purpose of applying these rules." Judge Lynch's concern is that this sentence may leave attorneys confused as to whether a local rule requiring a "written" or "paper" copy of a brief requires anything in addition to the electronic copy. The final two sentences of the Committee Note are intended to clarify the matter. ,
d. Summary of Public Comments
Leroy White, Esq. (04-AP-001) is concerned that requiring mandatory electronic filing may be "premature." He senses "no enthusiasm" for electronic filing among lawyers and asserts that only one court of appeals (the Eleventh Circuit) requires it. "Congress should take the lead" on this issue.
The Office of General Counsel of the Department of Defense (04-AP-002) does not have any suggested changes.
The American Bar Association (04-AP-003) is "concerned that the proposed rules may impede full access because they do not require that local rules make some provision for those who might be unable to use an electronic filing system." The ABA believes that the amendments should be revised to require that local rules mandating electronic filing include accommodations for indigent, disabled, and pro se litigants. Specifically, the ABA urges that the amendments incorporate the safeguards of ABA Standard 1.65(c)(ii): Mandatory Electronic Filing Processes: Court rules may mandate use of an electronic filing process if the court provides a free electronic filing process or a mechanism for waiving electronic filing fees in appropriate circumstances, the court allows for the exceptions needed to ensure access to justice for indigent, disabled or self-represented litigants, the court provides adequate advanced notice of the mandatory participation requirements, and the court (or its representative) provides training for filers in the use of the process.
Mr. Eliot S. Robinson (04-AP-004) is concerned about the impact of the amendment on pro se litigants. He believes that pro se litigants should be exempt from mandatory electronic filing and that those who want to file electronically should receive assistance, such as training and "remote pro se system access." He also urges that "[only non-proprietary files standards [such as PDF] shall be used." The Access to Justice Technology Bill of Rights Committee of the Washington State Access to Justice Board (04-AP-005) opposes the amendments. The Committee believes that permitting courts to mandate electronic filing is "premature" and argues that, "if mandatory filing is allowed, then there must be exceptions provided for in accordance with nationally applicable standards that assure equal and full access to the courts." Without such exceptions, the Committee asserts, the amendments "are a recipe for inconsistency, inequality, and inaccessibility." The Committee is particularly concerned about the impact of the amendments on pro se litigants, the disabled, the elderly, the incarcerated, those without access to technology, and those who may have access to technology but do not know how to use it. The Committee is concerned not only with the absence of any hardship exception, but with the lack of "requirements . . . for in forma pauperis sta[tus]."
HALT: An Organization of Americans for Legal Reform (04-AP-006) recommends that the following sentence be added at the end of Rule 25(a)(2)(D): "Courts requiring electronic filing must make exceptions for parties such as pro se litigants who cannot easily file by electronic means, allowing such parties to file manually upon showing of good cause." HALT asserts that it is not enough to encourage a hardship exception in the Committee Note; rather, such an exception should be required by the rule itself.
The Self Help Committee of the Northwest Women's Law Center (04-AP-007) reports that a significant percentage of its clientele does not have access to technology and expresses concern that the amendments "do not take into account the probability that mandatory electronic filing will pose yet another hurdle for individuals representing themselves." The Committee urges that the amendments be revised to "include a mandate for all federal courts to ensure access for pro se litigants."
The Committee on Federal Courts of the State Bar of California (04-AP-008) supports the proposed amendments.
The Standing Committee on the Delivery of Legal Services of the State Bar of California (04-AP-009) argues that the amendments should require exceptions for "pro se litigants who lack resources and/or the ability to comply, such as incarcerated individuals" and "attorneys who lack the technological resources to file papers electronically such as some legal aid attorneys and some pro bono attorneys."
Richard Zorza, Esq. (04-AP-010) is concerned that the amendments will "add[] an additional barrier to access to self represented litigants." Local rules may not include hardship exceptions or may include hardship exceptions that are inadequate.
He urges that mandatory filing be imposed only on those represented by counsel.

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Changes to Federal Rules 2005 - Appellate In effect on December 1, 2006

Changes to Federal Rules 2005 - Appellate
In effect on December 1, 2006