March 27, 2003Honorable J. Dennis Hastert
Dear Mr. Speaker:
/s/ William H. Rehnquist
March 27, 2003Honorable Dick Cheney
Dear Mr. President:
/s/ William H. Rehnquist
March 27, 2003
SUPREME COURT OF THE UNITED STATES
AMENDMENTS TO THE
FEDERAL RULES OF CIVIL PROCEDURE
Rule 23. Class Actions* * * * *
(c) Determining by Order Whether to Certify a Class Action; Appointing Class Counsel; Notice and Membership in Class; Judgment; Multiple Classes and Subclasses.
- (1)(A) When a person sues or is sued as a representative of a class, the court must at an early practicable time determine by order whether to certify the action as a class action. (B) An order certifying a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g). (C) An order under Rule 23(c)(1) may be altered or amended before final judgment.
(2) (A) For any class certified under Rule 23(b)(1) or (2), the court may direct appropriate notice to the class. (B) For any class certified under Rule 23(b)(3), the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must concisely and clearly state in plain, easily understood language: the nature of the action, the definition of the class certified, the class claims, issues, or defenses, that a class member may enter an appearance through counsel if the member so desires, that the court will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded, and the binding effect of a class judgment on class members under Rule 23(c)(3). (3) The judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2), whether or FEDERAL RULES OF CIVIL PROCEDURE 3 not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subdivision (b)(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c)(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class. (4) When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly. * * * * * (e) Settlement, Voluntary Dismissal, or Compromise. (1) (A) The court must approve any settlement, voluntary dismissal, or compromise of the claims, issues, or defenses of a certified class. 4 FEDERAL RULES OF CIVIL PROCEDURE (B) The court must direct notice in a reasonable manner to all class members who would be bound by a proposed settlement, voluntary dismissal, or compromise. (C) The court may approve a settlement, voluntary dismissal, or compromise that would bind class members only after a hearing and on finding that the settlement, voluntary dismissal, or compromise is fair, reasonable, and adequate. (2) The parties seeking approval of a settlement, voluntary dismissal, or compromise under Rule 23(e)(1) must file a statement identifying any agreement made in connection with the proposed settlement, voluntary dismissal, or compromise. (3) In an action previously certified as a class action under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so. FEDERAL RULES OF CIVIL PROCEDURE 5 (4) (A) Any class member may object to a proposed settlement, voluntary dismissal, or compromise that requires court approval under Rule 23(e)(1)(A). (B) An objection made under Rule 23(e)(4)(A) may be withdrawn only with the courts approval. * * * * * (g) Class Counsel. (1) Appointing Class Counsel. (A) Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. (B) An attorney appointed to serve as class counsel must fairly and adequately represent the interests of the class. (C) In appointing class counsel, the court (i) must consider: the work counsel has done in identifying or investigating potential claims in the action, 6 FEDERAL RULES OF CIVIL PROCEDURE counsels experience in handling class actions, other complex litigation, and claims of the type asserted in the action, counsels knowledge of the applicable law, and the resources counsel will commit to representing the class; (ii) may consider any other matter pertinent to counsels ability to fairly and adequately represent the interests of the class; (iii) may direct potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney fees and nontaxable costs; and (iv) may make further orders in connection with the appointment. FEDERAL RULES OF CIVIL PROCEDURE 7 (2) Appointment Procedure. (A) The court may designate interim counsel to act on behalf of the putative class before determining whether to certify the action as a class action. (B) When there is one applicant for appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1)(B) and (C). If more than one adequate applicant seeks appointment as class counsel, the court must appoint the applicant best able to represent the interests of the class. (C) The order appointing class counsel may include provisions about the award of attorney fees or nontaxable costs under Rule 23(h). (h) Attorney Fees Award. In an action certified as a class action, the court may award reasonable attorney fees and nontaxable costs authorized by law or by agreement of the parties as follows: 8 FEDERAL RULES OF CIVIL PROCEDURE (1) Motion for Award of Attorney Fees. A claim for an award of attorney fees and nontaxable costs must be made by motion under Rule 54(d)(2), subject to the provisions of this subdivision, at a time set by the court. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner. (2) Objections to Motion. A class member, or a party from whom payment is sought, may object to the motion. (3) Hearing and Findings. The court may hold a hearing and must find the facts and state its conclusions of law on the motion under Rule 52(a). (4) Reference to Special Master or Magistrate Judge. The court may refer issues related to the amount of the award to a special master or to a magistrate judge as provided in Rule 54(d)(2)(D). FEDERAL RULES OF CIVIL PROCEDURE 9 Rule 51. Instructions to Jury; Objections; Preserving a Claim of Error (a) Requests. (1) A party may, at the close of the evidence or at an earlier reasonable time that the court directs, file and furnish to every other party written requests that the court instruct the jury on the law as set forth in the requests. (2) After the close of the evidence, a party may: (A) file requests for instructions on issues that could not reasonably have been anticipated at an earlier time for requests set under Rule 51(a)(1), and (B) with the courts permission file untimely requests for instructions on any issue. (b) Instructions. The court: (1) must inform the parties of its proposed instructions and proposed action on the requests before instructing the jury and before final jury arguments; 10 FEDERAL RULES OF CIVIL PROCEDURE (2) must give the parties an opportunity to object on the record and out of the jurys hearing to the proposed instructions and actions on requests before the instructions and arguments are delivered; and (3) may instruct the jury at any time after trial begins and before the jury is discharged. (c) Objections. (1) A party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds of the objection. (2) An objection is timely if: (A) a party that has been informed of an instruction or action on a request before the jury is instructed and before final jury arguments, as provided by Rule 51(b)(1), objects at the opportunity for objection required by Rule 51(b)(2); or (B) a party that has not been informed of an instruction or action on a request before the time for objection provided under Rule 51(b)(2) FEDERAL RULES OF CIVIL PROCEDURE 11 objects promptly after learning that the instruction or request will be, or has been, given or refused. (d) Assigning Error; Plain Error. (1) A party may assign as error: (A) an error in an instruction actually given if that party made a proper objection under Rule 51(c), or (B) a failure to give an instruction if that party made a proper request under Rule 51(a), and unless the court made a definitive ruling on the record rejecting the request also made a proper objection under Rule 51(c). (2) A court may consider a plain error in the instructions affecting substantial rights that has not been preserved as required by Rule 51(d)(1)(A) or (B). Rule 53. Masters (a) Appointment. (1) Unless a statute provides otherwise, a court may appoint a master only to: (A) perform duties consented to by the parties; 12 FEDERAL RULES OF CIVIL PROCEDURE (B) hold trial proceedings and make or recommend findings of fact on issues to be decided by the court without a jury if appointment is warranted by (i) some exceptional condition, or (ii) the need to perform an accounting or resolve a difficult computation of damages; or (C) address pretrial and post-trial matters that cannot be addressed effectively and timely by an available district judge or magistrate judge of the district. (2) A master must not have a relationship to the parties, counsel, action, or court that would require disqualification of a judge under 28 U.S.C. 455 unless the parties consent with the courts approval to appointment of a particular person after disclosure of any potential grounds for disqualification. (3) In appointing a master, the court must consider the fairness of imposing the likely expenses on the FEDERAL RULES OF CIVIL PROCEDURE 13 parties and must protect against unreasonable expense or delay. (b) Order Appointing Master. (1) Notice. The court must give the parties notice and an opportunity to be heard before appointing a master. A party may suggest candidates for appointment. (2) Contents. The order appointing a master must direct the master to proceed with all reasonable diligence and must state: (A) the masters duties, including any investigation or enforcement duties, and any limits on the masters authority under Rule 53(c); (B) the circumstances if any in which the master may communicate ex parte with the court or a party; (C) the nature of the materials to be preserved and filed as the record of the masters activities; (D) the time limits, method of filing the record, other procedures, and standards for reviewing 14 FEDERAL RULES OF CIVIL PROCEDURE the masters orders, findings, and recommendations; and (E) the basis, terms, and procedure for fixing the masters compensation under Rule 53(h). (3) Entry of Order. The court may enter the order appointing a master only after the master has filed an affidavit disclosing whether there is any ground for disqualification under 28 U.S.C. 455 and, if a ground for disqualification is disclosed, after the parties have consented with the courts approval to waive the disqualification. (4) Amendment. The order appointing a master may be amended at any time after notice to the parties, and an opportunity to be heard. (c) Masters Authority. Unless the appointing order expressly directs otherwise, a master has authority to regulate all proceedings and take all appropriate measures to perform fairly and efficiently the assigned duties. The master may by order impose upon a party any noncontempt sanction provided by Rule 37 or 45, and FEDERAL RULES OF CIVIL PROCEDURE 15 may recommend a contempt sanction against a party and sanctions against a nonparty. (d) Evidentiary Hearings. Unless the appointing order expressly directs otherwise, a master conducting an evidentiary hearing may exercise the power of the appointing court to compel, take, and record evidence. (e) Masters Orders. A master who makes an order must file the order and promptly serve a copy on each party. The clerk must enter the order on the docket. (f) Masters Reports. A master must report to the court as required by the order of appointment. The master must file the report and promptly serve a copy of the report on each party unless the court directs otherwise. (g) Action on Masters Order, Report, or Recommendations. (1) Action. In acting on a masters order, report, or recommendations, the court must afford an opportunity to be heard and may receive evidence, and may: adopt or affirm; modify; wholly or partly 16 FEDERAL RULES OF CIVIL PROCEDURE reject or reverse; or resubmit to the master with instructions. (2) Time To Object or Move. A party may file objections to or a motion to adopt or modify the masters order, report, or recommendations no later than 20 days from the time the masters order, report, or recommendations are served, unless the court sets a different time. (3) Fact Findings. The court must decide de novo all objections to findings of fact made or recommended by a master unless the parties stipulate with the courts consent that: (A) the masters findings will be reviewed for clear error, or (B) the findings of a master appointed under Rule 53(a)(1)(A) or (C) will be final. (4) Legal Conclusions. The court must decide de novo all objections to conclusions of law made or recommended by a master. (5) Procedural Matters. Unless the order of appointment establishes a different standard of FEDERAL RULES OF CIVIL PROCEDURE 17 review, the court may set aside a masters ruling on a procedural matter only for an abuse of discretion. (h) Compensation. (1) Fixing Compensation. The court must fix the masters compensation before or after judgment on the basis and terms stated in the order of appointment, but the court may set a new basis and terms after notice and an opportunity to be heard. (2) Payment. The compensation fixed under Rule 53(h)(1) must be paid either: (A) by a party or parties; or (B) from a fund or subject matter of the action within the courts control. (3) Allocation. The court must allocate payment of the masters compensation among the parties after considering the nature and amount of the controversy, the means of the parties, and the extent to which any party is more responsible than other parties for the reference to a master. An interim allocation may be amended to reflect a decision on the merits. 18 FEDERAL RULES OF CIVIL PROCEDURE (i) Appointment of Magistrate Judge. A magistrate judge is subject to this rule only when the order referring a matter to the magistrate judge expressly provides that the reference is made under this rule. Rule 54. Judgments; Costs * * * * * (d) Costs; Attorneys Fees. * * * * * (2) Attorneys Fees. * * * * * (D) By local rule the court may establish special procedures by which issues relating to such fees may be resolved without extensive evidentiary hearings. In addition, the court may refer issues relating to the value of services to a special master under Rule 53 without regard to the provisions of Rule 53(a)(1) and may refer a motion for attorneys fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter. * * * * * FEDERAL RULES OF CIVIL PROCEDURE 19 Rule 71A. Condemnation of Property * * * * * (h) Trial. * * * * * In the event that a commission is appointed the court may direct that not more than two additional persons serve as alternate commissioners to hear the case and replace commissioners who, prior to the time when a decision is filed, are found by the court to be unable or disqualified to perform their duties. An alternate who does not replace a regular commissioner shall be discharged after the commission renders its final decision. Before appointing the members of the commission and alternates the court shall advise the parties of the identity and qualifications of each prospective commissioner and alternate and may permit the parties to examine each such designee. The parties shall not be permitted or required by the court to suggest nominees. Each party shall have the right to object for valid cause to the appointment of any person as a commissioner or alternate. If a commission is appointed it shall have the 20 FEDERAL RULES OF CIVIL PROCEDURE authority of a master provided in Rule 53(c) and proceedings before it shall be governed by the provisions of Rule 53(d). Its action and report shall be determined by a majority and its findings and report shall have the effect, and be dealt with by the court in accordance with the practice, prescribed in Rule 53(e), (f), and (g). Trial of all issues shall otherwise be by the court. * * * * *