Last Thursday’s Federal Register included a proposed change to CAAF’s rules, available here. The principal proposal is to reform Rule 36A, governing citation of supplemental authority, which is CAAF’s equivalent of FRAP Rule 28(j).
The proposal would amend Rule 36A in four ways: (1) it would better accord with reality by deleting the provision that the Rule 36A letter may not contain argument, in favor of a provision that “the letter must state why the supplemental citations are pertinent and significant”; (2) it would limit the body of a Rule 36A letter to 350 words; (3) it would require that the supplemental authority be attached to the letter; and (4) it would require that letters filed less than 5 days before an argument be submitted and served by overnight carrier or a faster method.
To paraphrase Meatloaf, three out of four ain’t bad. The first change makes great sense, since as the Rules Advisory Committee notes, the line between explaining why the supplemental authority is relevant and “argument” is non-existent. In light of the first change, the second change also makes great sense to ensure that the letter doesn’t become a vehicle for smuggling a supplemental brief into the courthouse. The fourth change is also sensible, though it will likely affect only civilian counsel since all of the military appellate shops probably send runners to E Street in this situation — and walk the letter across the hall to serve their opposing counsel.
That leaves the third change. The Rules Advisory Committee tells us that this change has no counterpart in FRAP Rule 28(j). And little wonder, since its main effect will be to kill trees. I will bet you that most of the supplemental authority cited in Rule 36A letters consists of military justice cases that counsel come across during the moot court process. Why would the rules require counsel to attach copies of cases that every judge and CAAF staffer already has a copy of? If the supplemental authority is something esoteric, then the wise advocate will provide a copy even in the absence of a rule requiring it. If there is any need for a rule requiring counsel to append a copy of the supplemental authority, how about expressly exempting cases published in the Military Justice Reporter, Court-Martial Reports, the Supreme Court Reporter, the Federal Reporter (1, 2, or 3), and the Federal Supplement (1 and 2)? That could save a forest.