New Federal Civil and Appellate Rules Effective Due to Congressional Inaction

A host of rule amendments became effective on December 1, 2005 as a result of the failure of Congress to take any action on those changes approved by the Supreme Court earlier this year:

Civil Rules:

Civil Rule 5.1 (Constitutional Challenge to a Statute - Notices, Certification, and Intervention) and 24 (Intervention)(sets forth the process when a party draws into question the constitutionality of a federal or state statute)

Civil Rule 6 (Time) (clarifies the method of counting the additional three days provided to respond if service is by mail or one of the methods in Civil Rule 5(b)(2)(C) or (D))

Civil Rule 27 (Depositions Before Action or Pending Appeal) (corrects the outdated cross-reference to former Civil Rule 4(d))

Civil Rule 45 (Subpoena) (requires that a deposition subpoena state the manner for recording testimony)

Admiralty Rule B (In Personam Actions: Attachment and Garnishment) (fixes the time for determining whether a defendant is "found" in the district at the time the verified complaint and the accompanying affidavit are filed)

Admiralty Rule C (In Rem Actions: Special Provisions) (technical amendments that correct amendments made in 2000)

Appellate Rules:

Appellate Rule 4 (Appeal as of Right — When Taken) (clarifies the conditions for reopening the time to appeal a district court's judgment or order)

Appellate Rule 26 (Computing and Extending Time) and Appellate Rule 45 (Clerk's Duties) (replaces the phrase "Presidents' Day" with "Washington's Birthday" to conform to statute)

Appellate Rule 27 (Motions) (a motion, a response to a motion, and a reply to a response to a motion must comply with typeface and type-style requirements of Appellate Rule 32) New

Appellate Rule 28.1 (Cross-Appeals) (consolidates provisions regarding briefing in cross-appeals and adds several new provisions dealing with cross-appeals). Appellate Rule 32 (Forms of Briefs, Appendices, and Other Papers) and Appellate Rule 34 (Oral Argument) (amended to cross reference new Rule 28.1). Appellate Rule 28 (Briefs) (provisions dealing with cross-appeals are transferred to new Rule 28.1)

Appellate Rule 35 (En Banc Determination) (adopts "case majority" approach, in which disqualified judges are not counted in the base in calculating whether a majority of judges have voted to hear a case en banc)