THE
FEDERAL RULES OF PRACTICE AND PROCEDURE
ADMINISTRATIVE
OFFICE OF THE U.S. COURTS
JAMES
C. DUFF, DIRECTOR
The federal
rules govern procedure, practice, and evidence in the federal
courts. They set forth the procedures for the conduct of court
proceedings and serve as a pattern for the procedural rules adopted
by many state court systems.
Authority
The Congress
has authorized the federal judiciary to prescribe the rules of
practice, procedure, and evidence for the federal courts, subject
to the ultimate legislative right of the Congress to reject, modify,
or defer any of the rules. The authority and procedures for promulgating
rules are set forth in the Rules Enabling Act. 28 U.S.C. §§ 2071-2077.
The Judicial
Conference of the United States is also required by statute to
"carry on a continuous study of the operation and effect of the
general rules of practice and procedure." 28 U.S.C. § 331. As
part of this continuing obligation, the Conference is authorized
to recommend amendments and additions to the rules to promote:
- simplicity
in procedure,
- fairness
in administration,
- the just
determination of litigation, and
- the elimination
of unjustifiable expense and delay.
The
Rules Committees
The Judicial
Conference's responsibilities as to rules are coordinated by its
Committee on Rules of Practice and Procedure, commonly referred
to as the "Standing Committee." 28 U.S.C. § 2073(b). The Judicial
Conference has authorized the appointment of five advisory committees
to assist the Standing Committee, dealing respectively with the
appellate, bankruptcy, civil, criminal, and evidence rules. 28
U.S.C. § 2073(a)(2). The Standing Committee reviews and coordinates
the recommendations of the five advisory committees, and it recommends
to the Judicial Conference proposed rules changes "as may be necessary
to maintain consistency and otherwise promote the interests of
justice." 28 U.S.C. § 2073(b).
The Standing Committee and the advisory committees are composed
of federal judges, practicing lawyers, law professors, state chief
justices, and representatives of the Department of Justice. Each
committee has a reporter, a prominent law professor, who is responsible
for coordinating the committee's agenda and drafting appropriate
amendments to the rules and explanatory committee notes.
The Assistant
Director for Judges Programs of the Administrative Office of the
United States Courts currently serves as secretary to the Standing
Committee, coordinates the operational aspects of the rules process,
and maintains the records of the committees. The Rules Committee
Support Office of the Administrative Office provides the day to
day administrative and legal support for the secretary and the
committees.
Open
Meetings and Records
Meetings
of the rules committees are open to the public and are widely
announced. All records of the committees, including minutes of
committee meetings, reports of the committees, suggestions and
comments submitted by the public, statements of witnesses, transcripts
of public hearings, and memoranda prepared by the reporters, are
public and are maintained by the secretary. Copies of the rules
and proposed amendments are available from the Rules Committee
Support Office. The proposed amendments are also published on
the Judiciary's website <http:\\www.uscourts.gov>.
HOW
THE RULES ARE AMENDED
The pervasive
and substantial impact of the rules on the practice of law in
the federal courts demands exacting and meticulous care in drafting
rule changes. The rulemaking process is time consuming and involves
a minimum of seven stages of formal comment and review. From beginning
to end, it usually takes two to three years for a suggestion to
be enacted as a rule.
The process,
however, may be expedited when there is an urgent need to amend
the rules.
All interested
individuals and organizations are provided an opportunity to comment
on proposed rules amendments and to recommend alternative proposals.
The comments received from this extensive and thorough public
examination are studied very carefully by the committees and generally
improve the amendments. The committees actively encourage the
submission of comments, both positive and negative, to ensure
that proposed amendments have been considered by a broad segment
of the bench and bar.
STEP
1. INITIAL CONSIDERATION BY THE ADVISORY COMMITTEE
Making
suggestions for changes
Proposed
changes in the rules are suggested by judges, clerks of court,
lawyers, professors, government agencies, or other individuals
and organizations. They are considered in the first instance by
appropriate advisory committees (appellate, bankruptcy, civil,
criminal, or evidence). Suggestions for changes, additions, or
deletions must be submitted in writing to the secretary, who acknowledges
each letter and distributes it to the chair of the Standing Committee
and the chair and reporter of the advisory committee.
The reporter
normally analyzes the suggestions and makes appropriate recommendations
to the advisory committee. The suggestions from the public and
the recommendations of the reporter are placed on the advisory
committee's agenda and are normally discussed at its next meeting.
The advisory committees usually meet twice a year in the spring
and fall, and they also conduct business by telephone and correspondence.
Consideration
of suggestions
In considering
a suggestion for a change in the rules, the advisory committee
may take several courses of action, including:
1. Accepting
the suggestion, either completely or with modifications or limitations;
2. Deferring
action on the suggestion or seeking additional information regarding
its operation and impact;
3. Rejecting
a suggestion because it does not have merit or would be inconsistent
with other rules or a statute; or
4. Rejecting
a suggestion because, although it may be meritorious, it simply
is not necessary or important enough to warrant the significant
step of an amendment to the federal rules.
The secretary
is required, to the extent feasible, to advise the person making
a suggestion of the action taken on it by the advisory committee.
Drafting
Rules Changes
When an
advisory committee decides initially that a particular change
in the rules would be appropriate, it normally asks its reporter
to prepare a draft amendment to the rules and an explanatory committee
note. The draft amendment and committee note are discussed and
voted upon at a committee meeting.
The Standing
Committee has a style subcommittee that works with the respective
advisory committees in reviewing proposed amendments to ensure
that the rules are written in clear and consistent language. In
addition, the reporter of the Standing Committee and the reporters
of the five advisory committees are encouraged to work together
to promote clarity and consistency among the various sets of federal
rules.
STEP
2. PUBLICATION AND PUBLIC COMMENT
Once an
advisory committee votes initially to recommend an amendment to
the rules, it must obtain the approval of the Standing Committee,
or its chair, to publish the proposed amendment for public comment.
In seeking publication, the advisory committee must explain to
the Standing Committee the reasons for its proposal, including
any minority or separate views.
After publication
is approved, the secretary arranges for printing and distribution
of the proposed amendment to the bench and bar, to publishers,
and to the general public. More than 10,000 persons and organizations
are on the mailing list, including
- federal
judges and other federal court officers,
- United
States attorneys,
- other
federal government agencies and officials,
- state
chief justices,
- state
attorneys general,
- legal
publications,
- law schools,
- bar associations,
and
- interested
lawyers, individuals, and organizations requesting distribution.
In order
to promote public comment, the proposed amendments are sent to
points of contact that have been established with 53 state bar
associations.
The public
is normally given 6 months to comment in writing to the secretary
regarding the proposed amendment. In an emergency, a shorter time
period may be authorized by the Standing Committee.
During the
6-month comment period, the advisory committee schedules one or
more public hearings on the proposed amendments. Persons who wish
to appear and testify at the hearings are required to contact
the secretary at least 30 days before the hearings.
STEP
3. CONSIDERATION OF THE PUBLIC COMMENTS AND FINAL APPROVAL
BY THE ADVISORY COMMITTEE
At the conclusion
of the public comment period, the reporter is required to prepare
a summary of the written comments received from the public and
the testimony presented at the hearings. The advisory committee
then takes a fresh look at the proposed rule changes in light
of the written comments and testimony.
If the advisory
committee decides to make a substantial change in its proposal,
it may provide a period for additional public notice and comment.
Once the
advisory committee decides to proceed in final form, it submits
the proposed amendment to the Standing Committee for approval.
Each proposed amendment must be accompanied by a separate report
summarizing the comments received from the public and explaining
any changes made by the advisory committee following the original
publication. The advisory committee's report must also include
minority views of any members who wish to have their separate
views recorded.
STEP
4. APPROVAL BY THE STANDING COMMITTEE
The Standing
Committee considers the final recommendations of the advisory
committee and may accept, reject, or modify them. If the Standing
Committee approves a proposed rule change, it will transmit it
to the Judicial Conference with a recommendation for approval,
accompanied by the advisory committee's reports and the Standing
Committee's own report explaining any modifications it made. If
the Standing Committee makes a modification that constitutes a
substantial change from the recommendation of the advisory committee,
the proposal will normally be returned to the advisory committee
with appropriate instructions.
STEP
5. JUDICIAL CONFERENCE APPROVAL
The Judicial
Conference normally considers proposed amendments to the rules
at its September session each year. If approved by the Conference,
the amendments are transmitted promptly to the Supreme Court.
STEP
6. SUPREME COURT APPROVAL
The Supreme
Court has the authority to prescribe the federal rules, subject
to a statutory waiting period. 28 U.S.C. §§ 2072, 2075. The Court
must transmit proposed amendments to Congress by May 1 of the
year in which the amendment is to take effect. 28 U.S.C. §§ 2074,
2075.
STEP
7. CONGRESSIONAL REVIEW
The Congress
has a statutory period of at least 7 months to act on any rules
prescribed by the Supreme Court. If the Congress does not enact
legislation to reject, modify, or defer the rules, they take effect
as a matter of law on December 1. 28 U.S.C. §§ 2074, 2075.
SUMMARY
OF PROCEDURES
Action |
Date
|
STEP 1 |
|
- Suggestion for a change in the rules.
(Submitted in writing to the secretary.)
|
At
any time. |
- Referred by the secretary to the appropriate
advisory committee.
|
Promptly
after receipt. |
- Considered by the advisory committee.
|
Normally
at the next committee meeting. |
- If approved, the advisory committee
seeks authority from the Standing Committee to circulate
to bench and bar for comment.
|
Normally
at the same meeting or the next committee meeting. |
STEP 2 |
|
|
6
months. |
|
During
the public comment period. |
STEP 3 |
|
- Advisory committee considers the amendment
afresh in light of public comments and testimony at
the hearings.
|
About
one or two months after the close of the comment period.
|
- Advisory committee approves amendment
in final form and transmits it to the Standing Committee.
|
About
one or two months after the close of the comment period.
|
STEP 4
|
|
- Standing Committee approves amendment,
with or without revisions, and recommends approval by
the Judicial Conference.
|
Normally
at its June meeting. |
STEP 5
|
|
- Judicial Conference approves amendment
and transmits it to the Supreme Court.
|
Normally
at its September session. |
STEP 6
|
|
- The Supreme Court prescribes the amendment.
|
By
May 1. |
STEP 7
|
|
- Congress has statutory time period
in which to enact legislation to reject, modify, or
defer the amendment.
|
By
December 1. |
- Absent Congressional action, the amendment
becomes law.
|
December
1. |
To suggest changes or comment on proposed
changes in the rules, write to:
Peter G. McCabe, Secretary
Committee on Rules of Practice and Procedure
of the Judicial Conference of the United States
Washington, D.C. 20544
For further information and materials, contact:
John K. Rabiej, Chief
Rules Committees Support Office
Administrative Office of the U.S. Courts
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E.
Washington, D.C. 20544
(202) 502-1820
JUDICIAL CONFERENCE
RULES COMMITTEE CHAIRS
AND REPORTERS
- Standing Committee on Rules of Practice and
Procedure
Honorable Lee H. Rosenthal, Chair
Prof. Daniel R. Coquillette, Reporter
- Advisory Committee on Appellate Rules
Honorable Carl E. Stewart, Chair
Prof. Catherine T. Struve, Reporter
- Advisory Committee on Bankruptcy Rules
Honorable Laura Taylor Swain, Chair
Prof. Jeffrey W. Morris, Reporter
- Advisory Committee on Civil Rules
Honorable Mark R. Kravitz, Chair
Prof. Edward H. Cooper, Reporter
- Advisory Committee on Criminal Rules
Honorable Richard C. Tallman, Chair
Prof. Sara Sun Beale, Reporter
- Advisory Committee on Evidence Rules
Honorable Robert L. Hinkle, Chair
Prof. Daniel J. Capra, Reporter