COMMITTEE ON RULES OF PRACTICE AND PROCEDURE
OF THE
JUDICIAL CONFERENCE OF THE UNITED STATES
W ASHINGTON, D.C. 20544
LEE H. ROSENTHAL
CHAIRS OF ADVISORY COMMITTEES
C H A IR
JEFFREY S. SUTTON
PETER G. McCABE
A PPELLA TE RU LES
S EC RETA RY
LAURA TAYLOR SWAIN
BA N K RU PTC Y RU LES
MARK R. KRAVITZ
C IV IL RU LES
RICHARD C. TALLMAN
C RIM IN A L RU LES
ROBERT L. HINKLE
EV ID EN C E RU LES
MEMORANDUM
TO:
Honorable Lee H. Rosenthal, Chair
Standing Committee on Rules of Practice and Procedure
FROM:
Honorable Jeffrey S. Sutton, Chair
Advisory Committee on Appellate Rules
RE:
Report of the Advisory Committee on Appellate Rules
DATE:
May 28, 2010 (revised June 14, 2010)
I.
Introduction
The Advisory Committee on Appellate Rules met on April 8 and 9, 2010, in Asheville, North
Carolina. The Committee gave final approval to proposed amendments to Appellate Rules 4 and
40,1 removed one item from its study agenda, and discussed a number of other items.
Part II of this report discusses the proposals for which the Committee seeks final approval:
proposed amendments to Rules 4 and 40, accompanied by a proposed legislative amendment to 28
U.S.C. § 2107. Part III covers other matters.
1
The wording of the proposed amendments was finalized and approved after the meeting
by an email vote in May 2010.
Report to Standing Committee
Appellate Rules Advisory Committee
Page 2
*****
II.
Action Item
The Committee is seeking final approval of proposed amendments to Rules 4 and 40. The
Committee also proposes seeking a legislative amendment to 28 U.S.C. § 2107. The proposed
amendments would clarify the treatment of the time to appeal or to seek rehearing in cases to which
a United States officer or employee is a party.
The Rule 4 and Rule 40 proposals were published for comment in 2007. However, the
Committee subsequently noted that the Supreme Court’s decision in Bowles v. Russell, 551 U.S. 205
(2007), raised questions concerning the advisability of pursuing the proposed amendment to Rule
4(a)(1)(B). That amendment addresses the scope of the 60-day appeal period in Rule 4(a)(1)(B) –
a period that is also set by 28 U.S.C. § 2107. Because Bowles indicates that statutory appeal time
periods are jurisdictional, concerns were raised that amending Rule 4(a)(1)(B)’s 60-day period
without a similar statutory amendment to Section 2107 would not remove any uncertainty that exists
concerning the scope of the 60-day appeal period. The Department of Justice (which initially
proposed the Rule 4(a)(1)(B) and Rule 40(a)(1) amendments) withdrew its proposal to amend Rule
4(a)(1)(B). As a result, the Committee initially decided to pursue the Rule 40(a)(1) amendment
without the Rule 4(a)(1) amendment.
The proposed Rule 40(a)(1) amendment was placed before the Standing Committee for
discussion rather than action at its January 2009 meeting. Shortly thereafter, the Supreme Court
granted certiorari in United States ex rel. Eisenstein v. City of New York, 129 S. Ct. 988 (2009) – a
case that concerned the applicability of Rule 4’s and Section 2107’s 60-day appeal periods in qui tam
actions under the False Claims Act. At its June 2009 meeting, the Standing Committee remanded
the Rule 40 proposal to the Appellate Rules Committee for further consideration in light of the
Eisenstein decision.
After further discussion, the Committee decided to pursue both the Rule 4 and the Rule 40
amendments, along with a proposed legislative amendment to Section 2107. Amending all three of
these provisions will render uniform their treatment of cases in which a United States officer or
employee is a party. It will bring clarity to these provisions and allow the United States (and other
parties) to rely upon the longer appeal and rehearing periods in many cases where uncertainty
(concerning the applicable time period) may currently exist.
There was unanimous support among the Committee members for the general goal of the
proposed amendments. There was some division among the Committee members concerning one
aspect of the proposals. As discussed below, the proposals set a general principle – namely, that the
longer periods apply in cases where a current or former United States officer or employee is sued in
an individual capacity for an act or omission occurring in connection with duties performed on the
United States’ behalf. For the reasons discussed in Part II.A.2 below, the Committee decided to
Report to Standing Committee
Appellate Rules Advisory Committee
Page 3
specify certain safe harbors that ensure the application of the longer time periods. All members
supported the inclusion of two safe harbors – one that applies when the United States represents the
officer or employee at the time of the entry of the relevant judgment, and another that applies when
the United States files the appeal or petition for the officer or employee. The Department of Justice
also supported including a third safe harbor, which would apply if the United States had paid for
private representation for the officer or employee. However, the Committee voted 7-2 in favor of
adopting the proposed amendments without that third safe harbor. The two members voting in the
minority indicated that even if the third safe harbor were excluded they would support the proposed
amendments.2
A.
Rule 4
The proposed amendment to Rule 4 will clarify the applicability of Rule 4(a)(1)(B)’s 60-day
appeal deadline. A corresponding proposed amendment to 28 U.S.C. § 2107 is discussed in Part II.C
of this report.
1.
Text of Proposed Amendment and Committee Note
The Committee recommends final approval of the proposed amendment to Rule 4 as set out
in the enclosure to this report.
2.
Changes Made After Publication and Comment
The public comments on the proposed amendment are summarized in the enclosure to this
report. The Committee made two changes to the proposal after publication and comment.
First, the Committee inserted the words “current or former” before “United States officer or
employee.” This insertion causes the text of the proposed Rule to diverge slightly from that of Civil
Rules 4(i)(3) and 12(a)(3), which refer simply to “a United States officer or employee [etc.].” This
divergence, though, is only stylistic. The 2000 Committee Notes to Civil Rules 4(i)(3) and 12(a)(3)
make clear that those rules are intended to encompass former as well as current officers or
employees. It is desirable to make this clarification in the text of Rule 4(a)(1) because that Rule’s
appeal time periods are jurisdictional.
Second, the Committee added, at the end of Rule 4(a)(1)(B)(iv), the following new language:
“– including all instances in which the United States represents that person when the judgment or
order is entered or files the appeal for that person.” During the public comment period, concerns
were raised that a party might rely on the longer appeal period, only to risk the appeal being held
untimely by a court that later concluded that the relevant act or omission had not actually occurred
2
At the Standing Committee’s request, the Committee Note was revised to recognize
that the two safe harbors mentioned in the rule were not exclusive.
Report to Standing Committee
Appellate Rules Advisory Committee
Page 4
in connection with federal duties. The Committee decided to respond to this concern by adding two
safe harbor provisions. These provisions make clear that the longer appeal periods apply in any case
where the United States either represents the officer or employee at the time of entry of the relevant
judgment or files the notice of appeal on the officer or employee’s behalf.
B.
Rule 40
The proposed amendment to Rule 40 will clarify the applicability of Rule 40(a)(1)’s 45-day
period for seeking rehearing.
1.
Text of Proposed Amendment and Committee Note
The Committee recommends final approval of the proposed amendment to Rule 40 as set out
in the enclosure to this report.
2.
Changes Made After Publication and Comment
The public comments on the proposed amendment are summarized in the enclosure to this
report. The Committee made two changes to the proposal after publication and comment.
The two changes to the Rule 40(a) proposal correspond to those discussed in Part II.A.2 of
this report with respect to the Rule 4(a)(1) proposal. First, the Committee inserted the words
“current or former” before “United States officer or employee.” Second, the Committee added, at
the end of new Rule 40(a)(1)(D), the following new language: “– including all instances in which
the United States represents that person when the judgment or order is entered or files the petition
for that person.”
C.
28 U.S.C. § 2107
As noted above, to ensure achievement of the goals of the proposed amendment to Rule 4,
it is desirable to request a corresponding statutory amendment to 28 U.S.C. § 2107.
1.
Text of Proposed Amendment
The Committee recommends that the Standing Committee approve the goal of seeking
legislative amendment of 28 U.S.C. § 2107 as set out in the enclosure to this report.
2.
Tentative Draft of Proposed Bill
A tentative draft bill that would accomplish the proposed amendment to Section 2107 is set
out in the enclosure to this report.
*****
PROPOSED AMENDMENTS TO THE FEDERAL
RULES OF APPELLATE PROCEDURE*
Rule 4. Appeal as of Right — When Taken
1
2
(a) Appeal in a Civil Case.
(1) Time for Filing a Notice of Appeal.
3
(A) In a civil case, except as provided in Rules
4
4(a)(1)(B), 4(a)(4), and 4(c), the notice of
5
appeal required by Rule 3 must be filed with
6
the district clerk within 30 days after entry of
7
the judgment or order appealed from is
8
entered.
9
(B) When the United States or its officer or
10
agency is a party, t The notice of appeal may
11
be filed by any party within 60 days after
12
entry of the judgment or order appealed from
13
is entered. if one of the parties is:
14
(i)
the United States;
*New material is underlined; matter to be omitted is lined through.
2
FEDERAL RULES OF APPELLATE PROCEDURE
15
(ii) a United States agency;
16
(iii) a United States officer or employee
17
sued in an official capacity; or
18
(iv) a current or former United States officer
19
or employee sued in an individual
20
capacity for an act or omission
21
occurring in connection with duties
22
performed on the United States’ behalf
23
– including all instances in which the
24
United States represents that person
25
when the judgment or order is entered
26
or files the appeal for that person.
27
*****
Committee Note
Subdivision (a)(1)(B). Rule 4(a)(1)(B) has been amended to
make clear that the 60-day appeal period applies in cases in which an
officer or employee of the United States is sued in an individual
capacity for acts or omissions occurring in connection with duties
performed on behalf of the United States. (A concurrent amendment
FEDERAL RULES OF APPELLATE PROCEDURE
3
to Rule 40(a)(1) makes clear that the 45-day period to file a petition
for panel rehearing also applies in such cases.)
The amendment to Rule 4(a)(1)(B) is consistent with a 2000
amendment to Civil Rule 12(a)(3), which specified an extended
60-day period to respond to complaints when “[a] United States
officer or employee [is] sued in an individual capacity for an act or
omission occurring in connection with duties performed on the
United States’ behalf.” The Committee Note to the 2000 amendment
explained: “Time is needed for the United States to determine
whether to provide representation to the defendant officer or
employee. If the United States provides representation, the need for
an extended answer period is the same as in actions against the
United States, a United States agency, or a United States officer sued
in an official capacity.” The same reasons justify providing
additional time to the Solicitor General to decide whether to file an
appeal.
However, because of the greater need for clarity of application
when appeal rights are at stake, the amendment to Rule 4(a)(1)(B),
and the corresponding legislative amendment to 28 U.S.C. § 2107
that is simultaneously proposed, include safe harbor provisions that
parties can readily apply and rely upon. Under new subdivision
4(a)(1)(B)(iv), a case automatically qualifies for the 60-day appeal
period if (1) a legal officer of the United States has appeared in the
case, in an official capacity, as counsel for the current or former
officer or employee and has not withdrawn the appearance at the time
of the entry of the judgment or order appealed from or (2) a legal
officer of the United States appears on the notice of appeal as
counsel, in an official capacity, for the current or former officer or
employee. There will be cases that do not fall within either safe
harbor but that qualify for the longer appeal period. An example
would be a case in which a federal employee is sued in an individual
capacity for an act occurring in connection with federal duties and the
4
FEDERAL RULES OF APPELLATE PROCEDURE
United States does not represent the employee either when the
judgment is entered or when the appeal is filed but the United States
pays for private counsel for the employee.
CHANGES MADE AFTER PUBLICATION AND COMMENT
The Committee made two changes to the proposal after
publication and comment.
First, the Committee inserted the words “current or former”
before “United States officer or employee.” This insertion causes the
text of the proposed Rule to diverge slightly from that of Civil Rules
4(i)(3) and 12(a)(3), which refer simply to “a United States officer or
employee [etc.].” This divergence, though, is only stylistic. The
2000 Committee Notes to Civil Rules 4(i)(3) and 12(a)(3) make clear
that those rules are intended to encompass former as well as current
officers or employees. It is desirable to make this clarification in the
text of Rule 4(a)(1) because that Rule’s appeal time periods are
jurisdictional.
Second, the Committee added, at the end of Rule 4(a)(1)(B)(iv),
the following new language: “– including all instances in which the
United States represents that person when the judgment or order is
entered or files the appeal for that person.” During the public
comment period, concerns were raised that a party might rely on the
longer appeal period, only to risk the appeal being held untimely by
a court that later concluded that the relevant act or omission had not
actually occurred in connection with federal duties. The Committee
decided to respond to this concern by adding two safe harbor
provisions. These provisions make clear that the longer appeal
periods apply in any case where the United States either represents
FEDERAL RULES OF APPELLATE PROCEDURE
5
the officer or employee at the time of entry of the relevant judgment
or files the notice of appeal on the officer or employee’s behalf.
*****
Rule 40. Petition for Panel Rehearing
1
(a) Time to File; Contents; Answer; Action by the Court
2
if Granted.
3
(1) Time. Unless the time is shortened or extended by
4
order or local rule, a petition for panel rehearing
5
may be filed within 14 days after entry of
6
judgment. But in a civil case, if the United States
7
or its officer or agency is a party, the time within
8
which any party may seek rehearing is 45 days
9
after entry of judgment, unless an order shortens or
10
extends the time., the petition may be filed by any
11
party within 45 days after entry of judgment if one
12
of the parties is:
13
(A) the United States;
14
(B) a United States agency;
6
15
16
FEDERAL RULES OF APPELLATE PROCEDURE
(C) a United States officer or employee sued in
an official capacity; or
17
(D) a current or former United States officer or
18
employee sued in an individual capacity for
19
an act or omission occurring in connection
20
with duties performed on the United States’
21
behalf – including all instances in which the
22
United States represents that person when the
23
court of appeals’ judgment is entered or files
24
the petition for that person.
25
*****
Committee Note
Subdivision (a)(1). Rule 40(a)(1) has been amended to make
clear that the 45-day period to file a petition for panel rehearing
applies in cases in which an officer or employee of the United States
is sued in an individual capacity for acts or omissions occurring in
connection with duties performed on behalf of the United States. (A
concurrent amendment to Rule 4(a)(1)(B) makes clear that the 60-day
period to file an appeal also applies in such cases.) In such cases, the
Solicitor General needs adequate time to review the merits of the
panel decision and decide whether to seek rehearing, just as the
Solicitor General does when an appeal involves the United States, a
FEDERAL RULES OF APPELLATE PROCEDURE
7
United States agency, or a United States officer or employee sued in
an official capacity.
To promote clarity of application, the amendment to Rule
40(a)(1) includes safe harbor provisions that parties can readily apply
and rely upon. Under new subdivision 40(a)(1)(D), a case
automatically qualifies for the 45-day period if (1) a legal officer of
the United States has appeared in the case, in an official capacity, as
counsel for the current or former officer or employee and has not
withdrawn the appearance at the time of the entry of the court of
appeals’ judgment that is the subject of the petition or (2) a legal
officer of the United States appears on the petition as counsel, in an
official capacity, for the current or former officer or employee. There
will be cases that do not fall within either safe harbor but that qualify
for the longer petition period. An example would be a case in which
a federal employee is sued in an individual capacity for an act
occurring in connection with federal duties and the United States
does not represent the employee either when the court of appeals’
judgment is entered or when the petition is filed but the United States
pays for private counsel for the employee.
CHANGES MADE AFTER PUBLICATION AND COMMENT
The Committee made two changes to the proposal after
publication and comment.
First, the Committee inserted the words “current or former”
before “United States officer or employee.” This insertion causes the
text of the proposed Rule to diverge slightly from that of Civil Rules
4(i)(3) and 12(a)(3), which refer simply to “a United States officer or
employee [etc.].” This divergence, though, is only stylistic. The
2000 Committee Notes to Civil Rules 4(i)(3) and 12(a)(3) make clear
8
FEDERAL RULES OF APPELLATE PROCEDURE
that those rules are intended to encompass former as well as current
officers or employees.
Second, the Committee added, at the end of Rule 40(a)(1)(D),
the following new language: “– including all instances in which the
United States represents that person when the court of appeals’
judgment is entered or files the petition for that person.” During the
public comment period, concerns were raised that a party might rely
on the longer period for filing the petition, only to risk the petition
being held untimely by a court that later concluded that the relevant
act or omission had not actually occurred in connection with federal
duties. The Committee decided to respond to this concern by adding
two safe harbor provisions. These provisions make clear that the
longer period applies in any case where the United States either
represents the officer or employee at the time of entry of the relevant
judgment or files the petition on the officer or employee’s behalf.
*****
FEDERAL RULES OF APPELLATE PROCEDURE
9
PROPOSED AMENDMENT TO
28 U.S.C. § 2107
1
§ 2107. Time for appeal to court of appeals
2
(a) Except as otherwise provided in this section, no appeal shall
3
bring any judgment, order or decree in an action, suit or proceeding
4
of a civil nature before a court of appeals for review unless notice of
5
appeal is filed, within thirty days after the entry of such judgment,
6
order or decree.
7
(b) In any such action, suit or proceeding in which the United
8
States or an officer or agency thereof is a party, the time as to all
9
parties shall be sixty days from such entry if one of the parties is:
10
(1) the United States;
11
(2) a United States agency;
12
(3) a United States officer or employee sued in an official
13
capacity; or
14
(4) a current or former United States officer or employee
15
sued in an individual capacity for an act or omission occurring
16
10
FEDERAL RULES OF APPELLATE PROCEDURE
16
in connection with duties performed on the United States’
17
behalf – including all instances in which the United States
18
represents that person when the judgment, order, or decree is
19
entered or files the appeal for that person.
20
(c) The district court may, upon motion filed not later than 30
21
days after the expiration of the time otherwise set for bringing appeal,
22
extend the time for appeal upon a showing of excusable neglect or
23
good cause. In addition, if the district court finds –
24
(1) that a party entitled to notice of the entry of a
25
judgment or order did not receive such notice from the clerk or
26
any party within 21 days of its entry, and
27
(2) that no party would be prejudiced,
28
the district court may, upon motion filed within 180 days after entry
29
of the judgment or order or within 14 days after receipt of such
30
notice, whichever is earlier, reopen the time for appeal for a period
31
of
FEDERAL RULES OF APPELLATE PROCEDURE
11
31
14 days from the date of entry of the order reopening the time for
32
appeal.
33
34
35
(d) This section shall not apply to bankruptcy matters or other
proceedings under Title 11.
*****
A BILL
To clarify appeal time limits in civil cases to which United States
officers or employees are parties.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘Appeal Time Clarification Act of
2011.’
SEC. 2. AMENDMENT RELATED TO TITLE 28, UNITED
STATES CODE.
Section 2107(b) is amended by striking its current contents and
substituting the following: ‘In any such action, suit or proceeding, the
time as to all parties shall be sixty days from such entry if one of the
parties is:
12
FEDERAL RULES OF APPELLATE PROCEDURE
(1) the United States;
(2) a United States agency;
(3) a United States officer or employee sued in an official
capacity; or
(4) a current or former United States officer or employee sued
in an individual capacity for an act or omission occurring in
connection with duties performed on the United States’ behalf
– including all instances in which the United States represents
that person when the judgment, order, or decree is entered or
files the appeal for that person.
SEC. 3. EFFECTIVE DATE.
The amendment made by this Act shall take effect on December
1, 2011, and shall govern appeals from judgments, orders, or decrees
entered on or after November 1, 2011.
