Along with changes to the federal civil procedure and bankruptcy rules, the Federal Rules of Appellate Procedure will likely see a significant change in less than a month. Unless Congress decides otherwise, the revisions will provide new page and word count limits for certain filings and clarify which items are to be included in the word count. Importantly, under revised Rule 32, principal briefs will be limited to 13,000 words (rather than 14,000), and reply briefs will be limited to 6,500 words (rather than 7,000). Get out your scissors!
The change in the word count limits will not apply in all federal circuits. For example, the Ninth Circuit has adopted a local rule that will maintain the current word count limits. The Fourth Circuit, however, plans to follow the new limits.
The effective date of the amended rules is December 1, 2016, and the revised rules will apply to “all proceedings in appellate cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.” That ambiguous language has created some confusion. The Third Circuit has stated that, in most cases, “[b]riefs filed after December 1, 2016 must conform to the new word limits.” In contrast, the Fourth Circuit’s most recent Brief & Appendix Requirements state that the new word count limits apply to cases in which the briefing order is issued on or after December 1, 2016. For cases with earlier briefing orders, the current word count limits still apply in the Fourth Circuit.
One other change that may be of interest to readers here: Rule 4(a)(4) (governing the effect of certain post-trial motions) has been amended to clarify that only timely motions will toll the deadline for a notice of appeal. Under the former rule, the Sixth Circuit had found that a Rule 59 motion was still “timely” when the district court granted an extension of time beyond the normal ten-day limit to file the motion and the other party did not challenge the timing below. Nat’l Ecological Found. v. Alexander, 496 F.3d 466, 476 (6th Cir. 2007). The majority of circuits disagreed, however, and found that a post-trial motion only tolled the appeal deadline if it was brought within the specific time period proscribed by the Federal Rules of Civil Procedure—even if a district court granted an extension, and even if the other party did not object to the timing. See, e.g., Blue v. Int’l Bros. of Elec. Workers Local Union 159, 676 F.3d 579, 582-84 (7th Cir. 2012); Lizardo v. United States, 619 F.3d 273, 278-80 (3d Cir. 2010). The Advisory Committee adopted the majority approach and rejected the Sixth Circuit approach. Going forward, only post-trial motions that are brought within the times allotted by the Federal Rules of Civil Procedure will toll the appeal deadline. As the commentary explains, “that fact is not altered by, for example, a court order that sets a due date that is later than permitted by the Civil Rules, another party’s consent or failure to object to the motion’s lateness, or the court’s disposition of the motion without explicit reliance on untimeliness.”
**Update on November 14, 2016: the Fourth Circuit has issued additional guidance on how the new rules will be implemented. Notice that for briefing orders issued after December 1, parties will not have the benefit of the three extra days for mail service.