Rule changes proposed at CAAF

The U.S. Court of Appeals for the Armed Forces has proposed changes to three of its rules. The text of the proposed changes and explanatory comments can be found here. Comments are due by Dec. 12, 2015 (30 days from the date of Federal Register publication). The affected provisions are Rules 5, 21(b)(5)(F) and 26. Here are the explanatory comments:

Rule 5 and 21(b)(5)(F) changes:

Documents have recently been filed with the Court citing to the supervisory power noted in the Court’s Rules 5 and 21(b)(5)(F). This is somewhat problematic because the references to supervisory power in these rules predate the Supreme Court’s decision in Clinton v. Goldsmith, 526 U.S. 529 (1999), which rejected an expansive view of the Court’s supervisory power over all aspects of military justice. Specifically the Court stated: “[T]he CAAF is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice or to act as a plenary administrator of final judgments it has affirmed.” 526 U.S. 529, 536. Given Goldsmith, the broad references to supervisory power in the rules should be deleted. That is not to say that supervisory authority does not exist, only that it is not as expansive as it was pre-Goldsmith, and its contours will need to be resolved in future cases. However, the Court’s Rules of Practice and Procedure should not be cited as a source for this authority in the absence of settled case law.

Rule 26 change:

The first part of new paragraph (b) tracks similar language in Supreme Court Rule 37. It advises that “me too” briefs are not favored, and this is generally the view of all appellate courts. The proposal goes on to require that motions for leave to file, as well as the amicus briefs themselves, contain a statement of the movant’s interest and explain why the matters asserted in the brief are relevant to the disposition of the case. The proposal operates differently from the practice in the Article III courts of appeal in that even with the consent of the parties, an amicus filer must still ask for leave of the Court to file an amicus curiae brief. In this way, the Court retains the authority to decide all requests to file amicus briefs based on its own determination that the brief will be helpful. It is believed that party consent may not be an adequate filter that ensures that amicus briefs are helpful to the Court. While party consent is not a guarantee that the brief will be accepted, lack of consent is not a guarantee that it will be rejected. Rather, the Court oversees all filings to be sure that amicus participation is warranted. Paragraph (b) also includes a requirement that only members of the Court’s Bar or attorneys appearing pro hac vice may file motions for leave to file amicus curiae briefs.

Paragraph (c) proposes a new rule to clarify that motions to file amicus curiae briefs can be filed in support of petitions for grant of review, petitions for extraordinary relief, writ-appeal petitions, petitions for new trial, and answers to such pleadings.