Effective Dec. 1, 2009, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, and the Federal Rules of Appellate Procedure will be amended. A companion statute, whose changes also become effective on Dec. 1, 2009, has been passed by Congress and signed into law by the President. The changes affect time deadlines and are important to all lawyers practicing in federal courts. These changes address two related matters: the method for calculating or counting time periods set out in the rules, such as deadlines for actions; and the specific time periods set out in the various federal rules.
The current rules exclude intermediate weekends and holidays for some short time periods, resulting in inconsistency and unnecessary complication. The amended rules are consistent and simple: they count every day, including intermediate weekends and holidays, for all time periods. Under the pre-December 2009 version of the federal rules, the methods used for calculating time periods vary depending on whether the time period in question is 10 days or fewer or 11 days or more. For periods of 10 days or fewer, weekend days and legal holidays that occur during the period are not counted. For periods of 11 days or more, these intermediate weekend days and legal holidays are counted. This has made calculating time periods unnecessarily complex. As the drafters have noted, while a 10-day period and a 14-day period that started on the same day usually ended on the same day, the 10-day period not infrequently ended later than the 14-day period.
Under the proposed amended rules, this distinction is completely eliminated. As amended, the rules explicitly state that every day, including intermediate Saturdays, Sundays, and legal holidays will be counted. The drafters recognize that the change requiring all time periods to be counted the same way will effectively shorten periods of 10 days or fewer, which, under the old rules, would have almost always been stretched out to more than the equivalent number of calendar days because the intermediate weekend days and holidays were excluded. This phenomenon prompted the drafters to adjust the many short time periods and deadlines in the rules, and to seek comparable changes to the relevant statutes.
Under all the federal rules, both as currently existing and as proposed to be amended effective Dec. 1, 2009, the most basic counting rule remains the same. In calculating or counting any time period, the first day, the day of the act or event that starts the period running, is not counted. The last day of the period is included, unless it is a Saturday, Sunday, or legal holiday. If the last day falls on a Saturday, Sunday, or legal holiday, the last day of the period extends to the next day that is not a Saturday, Sunday, or legal holiday. The proposed amendments clarify this basic counting rule in two significant ways. Under the current rules, a time period is extended to the next day when the last day falls on a day when the clerk's office is inaccessible. The provision applies expressly to filing a paper.
The proposed amendments expand the provision to explicitly address electronic filings. The provision extending the last day of a time period for making a paper filing is preserved in the proposed amended rules. In this era of electronic service and filing, this may seem anachronistic. However, a significant number of filings in the federal courts continues to be made by persons filing pro se, including incarcerated persons, who typically do not have access to a computer. But in most other cases, the crucial test should be whether the electronic filing system is available, rather than whether the clerk's office is or is not physically accessible. Subscribers can access the complete commentary on lexis.com. Additional fees may be incurred. (Approx. 30 pages.)