Response to the Request by the United States Court of Appeals for the Second Circuit for Comments on Its Proposed Local Rules

14 Vesey Street

New York, NY 10007-2992

Response to the Request by the United States Court of Appeals
for the Second Circuit for Comments on Its Proposed Local Rules

This Report was approved by the Executive Committee of the New York County Lawyers’ Association at its meeting on October 27, 2009.

Prepared by a Joint Subcommittee formed by the New York County Lawyers’ Association’s Federal Courts Committee and the New York County Lawyers’ Association’s Appellate Courts Committee (collectively, the “Joint Subcommittee”)

The Joint Subcommittee has reviewed all of the proposed amendments, and we commend the Court for its successful effort to clarify and streamline the local rules and promote greater efficiency for both bench and bar. Our comments set forth below provide feedback regarding certain provisions that may guide the Court in determining how best to implement these changes.

Proposed Local Rule 4.1

Proposed Local Rule 4.1 clarifies the obligations of the district court attorney in a criminal case whose client seeks to appeal and usefully incorporates the obligations of appellate counsel with respect to certiorari petitions and Anders briefs now found in the Appendix, Part A of the Local Rules. The stylistic changes simplify the language in a way that vastly improves the rule. Further, the goal of expediting the handling of appeals and ensuring that there is no gap in representation is worthy.

Proposed Local Rule 4.1 also reinforces the existing presumption that the district court attorney should also handle the appeal. While the Joint Subcommittee recognizes that the laudable purpose of the presumption is to ensure continuous representation of an indigent defendant, there are often many reasons why a different attorney should handle an appeal from a criminal conviction. For example: (1) as a practical matter, many district court attorneys are not interested in handling appeals and move to be relieved; (2) a defendant may be better served by a fresh look at the facts and circumstances in the district court; (3) a new attorney may be better able to assess the viability of an ineffective assistance of counsel claim; and (4) appeals require special writing and advocacy experience that a district court attorney may not possess.

The Government certainly recognizes this, given that the state prosecutors’ offices have separate appeals bureaus and Assistant United States Attorneys, although they are expected to handle their own appeals, are supervised by an appellate attorney. Indeed, every staffed criminal defender office, state and federal, has a separate appeals bureau, and New York’s appellate courts assign counsel from a separate appellate panel.

Based on these considerations, the Joint Subcommittee encourages the Court to continue its current practice of routinely granting applications to be relieved by district court attorneys. The Joint Subcommittee also recommends that the Court adopt the following alternative (or its equivalent) to Rule 4.1(a), which would continue to ensure uninterrupted representation but, at the same time, acknowledge that a defendant’s best interests might be better served by the appointment of new counsel to represent him or her in the Court:

When a defendant represented by retained counsel in a criminal case seeks to appeal, the defendant’s attorney shall continue to represent his client, unless the client chooses to make other arrangements or the attorney is allowed to withdraw by this court. When a defendant represented by assigned counsel in a criminal case seeks to appeal, the defendant’s attorney shall inform his client of his right to appointed counsel on the appeal, and shall assist his client, if requested, to make an application to this court for appointed counsel, including an application for the district court attorney to be appointed if his client requests and the attorney is able and willing to provide such representation. In all cases, the district court attorney shall take prompt and effective steps to obtain transcription of whatever minutes are likely to be necessary to the perfection of the appeal.

Should this alternative be adopted, the present presumption of eligibility for assigned counsel without the need for “further proof of the defendant’s indigency” based on the assignment of counsel in the district court should be retained.

The Joint Subcommittee suggests that proposed new subdivision 4.1(c), which sets forth the attorney’s obligation to move to be relieved of the responsibility to file a certiorari petition within ten days of the decision if counsel believes the petition would have no likelihood of success, should be modified to provide a 30-day period for making the motion. Appendix, Part A, IX(C), requires appellate counsel to inform his or her client of the right to file a petition, giving his or her opinion as to its merits, and to file the petition if the client desires. With a ten-day time limit for filing the motion to be relieved, either a lawyer must file the motion promptly before he or she has heard from the client, or must file the motion to be relieved late. An extension of the time limit to 30 days will obviate this dilemma.

Proposed Interim Local Rule 25.1

Requirement that PDF Be Text-Searchable

Proposed Interim Local Rule 25.1(b)(3) provides “[e]ach PDF must be text-searchable.” Interim Local Rule 25.1 does not have this requirement. The Joint Subcommittee recognizes the benefits to the Court of receiving text-searchable PDFs. The cost of complying with Proposed Interim Local Rule 25.1(b)(3) is insignificant where the person creating the document already has the appropriate technology or software. Where, however, the person lacks the necessary office equipment or software, Proposed Interim Local Rule 25.1(b)(3) requires an investment in such office equipment or software. As technology advances and the bar at large catches up with today’s cutting edge, this should no longer pose a problem. In the interim, we hope that the “hardship” relief discussed below will be freely granted.

Evidence of Extreme Hardship

Proposed Interim Local Rule 25.1(b)(1) provides that a party need not submit a PDF where “counsel explains why submitting a PDF of the particular document would constitute extreme hardship.” The Joint Subcommittee opposes Proposed Interim Local Rule 25.1(b)(1), in favor of the current rule, which provides that a party need not submit a PDF where “counsel certifies that submission of the paper as a PDF document would constitute extreme hardship.” The Joint Subcommittee believes that the new “explanation” requirement imposed by Proposed Interim Local Rule 25.1(b)(1) is unnecessary in that counsel with the ability to provide a PDF will certainly choose to comply with the requirement, and inefficient in that it will require attorneys to draft separate explanations. The Joint Subcommittee believes that the certification requirement under the original rule adequately accomplishes the Court’s goal, without necessitating the expenditure of the extra legal resources required to draft an explanation. Accordingly, the Joint Subcommittee endorses the current version of the rule.

Electronic Mailbox Instructions

Current Interim Local Rule 25.1(a)(3) designates the electronic mailbox addresses to which PDFs should be sent. The rule specifies that the appropriate mailbox depends upon the case type, which “is determined by the two-letter code found at the end of the docket number assigned to a case.” The rule then identifies the various two-letter codes and the mailboxes for each code, and describes the types of the cases that fall within each code.

The Joint Subcommittee believes that the description of the types of cases for each code is superfluous since the appropriate mailbox is determined by the two-letter code. In addition, the Joint Subcommittee observes that an appeal of a federal criminal case arguably falls within the description of two different categories of cases: Interim Local Rule 25.1(a)(3)(A)(i) states that “cases in which the United States is a party” are within the “ag, bk, op” codes, and Interim Local Rule 25.1(a)(3)(A)(ii) states that criminal cases are within the “cr” code.

Proposed Interim Local Rule 25.1(d)(2) appears to correct the foregoing problems insofar as subsections (B) and (C)(i) make clear that appeals of federal criminal cases are distinguishable from civil cases in which one party is the United States. In addition, Proposed Interim Local Rule 25.1 (d)(2)’s statement that the description of the types of cases is a relevant consideration in deciding which mailbox to address the email will inform a party that “agencycases@ca2.uscourts.gov” is the appropriate address for civil cases in which one party is the United States, notwithstanding these cases are assigned “cv” for the two-letter code.

Accordingly, the Joint Subcommittee endorses Proposed Interim Local Rule 25.1(d)(2).

Single Email Attaching PDF Submission

Proposed Interim Local Rule 25.1(c)(2) provides that a single email should contain all PDFs of a set of documents that are intended to be considered together. Interim Local Rule 25.1 does not have a similar requirement. The Joint Subcommittee recognizes the administrative, benefit to the Court from receiving a single email where a party submits a set of documents. Where the party’s outgoing email capacity is insufficient to attach as PDFs the entire set of documents to a single email. Proposed Interim Local Rule 25.1(c)(2) may create a burden. The Joint Subcommittee recommends that the Court acknowledge this potential burden on some parties by authorizing multiple emails where the party certifies that his or her outgoing email capacity does not permit all PDFs to be attached to a single email.

Single PDF for Motion

Proposed Interim Local Rule 25.1(c)(3) provides that a party submitting a motion must incorporate all papers in support of the motion in a single PDF, Interim Local Rule 25.1(a)(4) appears to permit a party to attach to an email each document as a separate PDF.

The Joint Subcommittee notes one instance in which the Court’s computer files may be unnecessarily burdened by this requirement. In a case in which a party seeks permission to exceed the “word count” or page limitation, the party is required to file the brief and to simultaneously move for leave to file the “long” brief, while attaching the “proposed” brief to the motion. The result is that the brief is submitted twice. The Joint Subcommittee suggests that the Court consider excepting the foregoing from the proposed rule.

Email Service on Pro Se Parties

Interim Local Rule 25.1(a)(8) provides that a PDF “must be emailed to all parties represented by counsel and to those parties not represented by counsel who elected to submit PDF paper.” Proposed Interim Local Rule 25.1(g) contains a similar requirement, except that it replaces “parties not represented by counsel who elected to submit PDF paper” with “pro se parties who have submitted PDFs.” The Joint Subcommittee endorses Proposed Interim Local Rule 25.1(g).

Certificate of Virus Scanning

Interim Local Rule 25.1(a)(6) requires each party submitting a PDF to include a signed certificate certifying that the PDF has been scanned for viruses. Proposed Interim Local Rule 25.1 does not have a similar requirement.

The Joint Subcommittee endorses Proposed Interim Local Rule 25.1’s elimination of the requirement for a certificate that a PDF has been scanned for viruses.

Pro Se Parties Who Are Admitted to the Court

Both Interim Local Rule 25.1(a)(2) and Proposed Interim Local Rule 25.1(b)(2) exempt a pro se party from the requirement to submit a PDF to the Court.

The Joint Subcommittee recommends that the pro se exception in Proposed Interim Local Rule 25.1(b)(2) exclude pro se parties that are admitted to the Court.

Proposed Local Rule 34.1

The Court has proposed Local Rule 34.1 as a replacement for Interim Local Rule 34 (both governing oral argument). Proposed Local Rule 34.1 effects two changes from the prior rule that warrant comment.

The first change, contained in subsection (a), establishes a new procedure for requesting oral argument. In order to request oral argument under current Interim Local Rule 34(a), attorneys in all counseled appeals must confer and file, within 14 days after the due date of the last brief, a joint statement indicating whether any of the parties seeks oral argument. In cases in which at least one party is pro se, current Interim Local Rule 34(a) requires the Clerk of Court to mail to each party a questionnaire asking whether the party seeks oral argument. All parties must return the questionnaire within 14 days.

By contrast, in order to request oral argument under Proposed Local Rule 34.1(a), each party must, within 21 days after the filing of the final appellee brief, file a form entitled, “Oral Argument Statement.” The Oral Argument Statement requires each party to choose one of three options: “I want oral argument,” “I want oral argument only if at least one other party does,” or “I do not want oral argument.” Proposed Local Rule 34.1(a) draw’s no distinction between counseled appeals and appeals in which at least one party is pro se.

The Joint Subcommittee approves of this new procedure for requesting oral argument. The adoption of one procedure for requesting oral argument in both counseled and pro se appeals and, concomitantly, the elimination of the requirement that attorneys in counseled appeals confer and file a joint request for oral argument, will streamline the process and minimize any confusion that may have resulted from having two separate tracks. The extension of the time period to request oral argument from 14 days to 21 days is also a good change. With an additional week to request oral argument, the parties will be better able to review the full set of briefs and make informed decisions regarding whether oral argument is needed.

Another significant change in Local Rule 34.1 is the elimination of any opportunity for a party to file a statement explaining its reasons for requesting oral argument. If the Court contemplates deciding an appeal on the briefs, subsection (b) of the current Interim Local Rule 34 provides that each of the parties is permitted to file a statement setting forth reasons that the Court should hear oral argument. In contrast, under Proposed Local Rule 34.1, once the Court decides that oral argument is unnecessary, the parties have no opportunity to persuade the Court otherwise.

Although the Joint Subcommittee respects the Court’s discretion to decline to hear oral argument in cases where it finds it unnecessary and is mindful of the pressure on the Court’s docket, the Joint Subcommittee feels it is valuable for each party to have an opportunity to articulate why it believes oral argument is needed. As a result, the Joint Subcommittee proposes that the Court include a new section in the form Oral Argument Statement where each party requesting oral argument can explain why oral argument would benefit the Court. This small addition to the Oral Argument Statement – which the parties already will be filing if Local Rule 34.1 is adopted – would address the Joint Subcommittee’s concerns without increasing in any material way the burden on the Court.

Finally, although not currently addressed by Proposed Local Rule 34.1, the Joint Subcommittee proposes that the Court consider establishing a procedure for assigning the location of oral argument. The Joint Subcommittee has learned of several instances where a case has been scheduled for oral argument in Buffalo or Connecticut even though the lawyers on both sides were based in New York City. In order to minimize any unnecessary inconvenience, the Joint Subcommittee respectfully requests that to the extent possible, the Court take into account counsels’ preferences when assigning the location of argument. Again, we believe this can be accomplished with minimal burden to the Court by adding a question to the Oral Argument Statement that asks the parties to identify where they would prefer to argue and whether there is any reason that they cannot argue in an alternate location.

Proposed Local Rule 34.2

Proposed Local Rule 34.2 replaces current Interim Local Rule 0.29, both respecting the Non-Argument Calendar (NAC), and makes two revisions of concern to the Joint Subcommittee.

First, whereas Interim Local Rule 0.29(a) designates only immigration-related appeals as appropriate for placement on the NAC, proposed Local Rule 34.2(a)(2) creates as a second, catch-all class of NAC cases “any other class of cases that the court identifies as appropriate.” Although the Joint Subcommittee is cognizant of the volume of cases before the Court, if the Court contemplates placing new categories of cases on the NAC, or denying oral argument based on any reason other than those set forth in FRAP 34(a)(2), we respectfully request further guidance as to what criteria will govern that determination.

Second, the Joint Subcommittee is concerned that Proposed Local Rule 34.2 contains no mechanism for a party to request that an appeal be transferred from the NAC to the Regular Argument Calendar, Under the current Interim Local Rule 0.29(b), any party to an appeal that has been assigned to the NAC may request that the proceeding be transferred to the Regular Argument Calendar by including that request in the party’s brief. The Joint Subcommittee believes that this procedure should be included in Proposed Local Rule 34.2. Allowing each party the opportunity to include in its brief a statement explaining why the case should be transferred to the Regular Argument Calendar will help the Court to identify those NAC cases that raise novel or important issues without materially adding to the Court’s burden.

E. Forms C And C-A

The Joint Subcommittee proposes a minor change on Form C (Civil Appeal Pre- Argument Statement) and Form C-A (Agency Appeal Pre-Argument Statement). On these forms, the Joint Subcommittee proposes reversing the order of Addendum “A” and Addendum “B.” The reason is that Addendum “A” requires, among other things, a copy of various documents, including (on Form C) the Notice of Appeal and lower court docket sheet and (on both forms) a copy of all relevant opinions/orders forming the basis of the appeal or petition for review. The Addendum “B” attachment, on the other hand, is generally a page or two. The resulting practical difficulty is to differentiate the Addendum “A” attachments from Addendum “B,” solved best by a cumbersome combination of side tabs and bottom tabs, among other separators. Switching the two would allow a simple page or so as the first addendum, and then a page or so as the second addendum, with the attachments coming more naturally and more manageably at the end of the package.

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The Joint Subcommittee remains grateful for the Court’s continued commitment to improving the procedures of the Court to ensure that compliance with its directives is accomplished as simply as possible.

Thank you for your kind consideration of these comments.

Gregg H. Kanter, Chair

Federal Courts Committee

Megan P. Davis, Co-Chair

Appellate Courts Committee

Jay L. Weiner, Co-Chair

Appellate Courts Committee

Joint Subcommittee:

Justin T. Kelton and Richard S. Ciacci, Co-Chairs

Norman B. Arnoff Jillian Howell

Jacob Aronauer David Jaroslawicz

Jeremy C. Bates Carolyn A. Kubitschek

Peter Coll Jr. Monique J. Mulcare

Clement J. Colucci Malvina Nathanson

Brian D. Graifman Stuart White