Wednesday, January 25, 2023

CAAF proposes rule changes

Tomorrow's Federal Register will include a Notice of Proposed Rules Changes from the Department of Defense on behalf of the U.S. Court of Appeals for the Armed Forces. Can't wait? The Notice is available for public inspection here.  There is a 30-day comment period.

The proposed changes would affect Rules 3A, 13(b), 13A, 15(b), 19(a)(7)(B), 21, 24(b), 27(b), 36, 37(b)(2) and 39(a), as well as the Guidelines for Electronic Filing of Pleadings.

The court's current rules can be found here.

The summary observes:

Although these rules of practice and procedure fall within the Administrative Procedure Act's exemptions for notice and comment, the Department, as a matter of policy, has decided to make these changes available for public review and comment before they are implemented.

The court is, by law, located in the Defense Department for administrative purposes only. Which APA exemptions apply if the decision to make the proposed rules changes available for public review and comment was made by the Department ("as a matter of policy"), as the Notice recites, rather than by the court itself? The Department itself is not exempt from the APA. Should the court be taken out of the Department for all purposes? As described, the current arrangement needlessly raises a question of the court's independence.

Postscript: the Federal Register version of the Notice, 88 Fed. Reg. 4980, is now available here.

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