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Have No Fear, New Federal Rules of Appellate Procedure Are Here

By Aditi Mukherji, JD on December 03, 2013 | Last updated on March 21, 2019

On Sunday, December 1st, 2013, a handful of amendments to the Federal Rules of Appellate Procedure are scheduled to go into effect. The most significant change entails consolidation of Rule 28.

Here's a summary of the changes:

  • Briefing Requirements. Rule 28 in its current form requires an appellant's brief to include both a statement of the case and a statement of facts, in two separate sections. The new Rule 28(a)(6) consolidates these two sections into one section that calls for a single "statement of the case." It sets forth the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record." As the Committee explains, this change "allows a lawyer to present the factual and procedural history of a case chronologically, but also provides flexibility to depart from chronological ordering." There are conforming changes to Rule 28(b), which discusses the appellee's brief, and Rule 28.1, which addresses briefing on cross-appeals.
  • Appeals from the U.S. Tax Court. Rule 13 has been amended to clarify that permissive interlocutory appeals from the U.S. Tax Court under 26 U.S.C. § 7482(a)(2) are governed by the same appellate rule that applies to other appeals by permission. Rule 14 has been changed to make clear that references to a district court and district clerk include the Tax Court and its clerk. The amendment to Rule 24 more accurately reflects the status of the Tax Court as a court.
  • Leave to Proceed In Forma Pauperis. Form 4 -- the form of affidavit that must be filed when moving for permission to appeal in forma pauperis -- to replace Questions 10 and 11 with a new Question 10 that reads: "Have you spent - or will you be spending - any money for expenses or attorney fees in connection with this law suit? If yes, how much?" They also added minor technical changes to Rule 24(b) (the in forma pauperis rule) to bring it into conformance with changes approved by the Judicial Conference in 1997, but (apparently due to an oversight) not subsequently transmitted to Congress.

How do you feel about the new changes? Tweet your musings @FindlawLP.

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