H.R. 2633: Appeal Time Clarification Act of 2011

H.R. 2633

Appeal Time Clarification Act of 2011

Date
September 13, 2011 (112th Congress, 1st Session)

Staff Contact
Sarah Makin

Floor Situation

On Monday, September 12, 2011, the House is scheduled consider H.R. 2633 under a suspension of the rules, requiring a two-thirds majority vote for passage.  The resolution was introduced by Rep. Howard Coble (R-NC) on July 25, 2011, and referred to the Committee on the Judiciary. 

Bill Summary

H.R. 2633 includes findings that would clarify that the 60-day period under 28 USC §2107 and Appellate Rule 4 (a) is not limited to civil actions in which representation of the United States is provided by the Department of Justice and (b) includes all civil actions in which the representation is provided by a federal legal officer acting in an official capacity.  This would specifically include civil actions involving a House Member, officer, or employee represented by the House General Counsel; and those involving a Senator or Senate officer or employee represented by the Office of Senate Legal Counsel.          

H.R. 2633 would state that in any civil action, suit, or proceeding, the time for all parties to appeal shall be 60 days from the entry of judgment, order, or decree, if one of the parties is –

•           The United States;

•           An agency of the United States:

•           An officer or an employee of the United States who is sued in an official capacity; or 

•           A current or former office or employee of the United States who is sued in an individual capacity for an act or omission occurring in connection with duties performed on behalf of the United States, including any instance in which the United States represents that person when the judgment, order, or decree is entered or files the appeal for that person.

Background

Pursuant to the Rules Enabling Act,  the Judicial Conference may develop changes to existing federal rules of procedure and evidence.  The Supreme Court submits any agreed-upon amendments to Congress no later than May 1 of a given calendar year.  The changes take effect on December 1, unless Congress intervenes during the interim.  

This year, the Supreme Court submitted proposed amendments to Appellate Rules 4 and 40 that will clarify the treatment of the time to appeal or to seek rehearing in civil cases to which a United States officer or employee is a party. Because the time to appeal in a civil case is set not only by Appellate Rule 4 but also by 28 U.S.C. §2107, the Advisory Committee on Appellate Rules has proposed that the Judicial Conference seek legislation to make the same clarifying change to §2107.

Appellate Rule 4 and §2107 currently provide that the time to appeal is 30 days for most civil cases, but that the appeal time (for all parties) is 60 days when the parties to the case include “the United States,” a United States “officer,” or a United States “agency.” Current law is not clear concerning the applicability of the longer period in cases where the federal party is a United States officer or employee sued in an individual capacity. The proposed amendments will clarify that the longer period applies when one of the parties is the United States itself; a United States agency; a United States officer or employee sued in an official capacity; or 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.

When a current or former federal officer or employee is sued in an individual capacity for an act or omission in connection with the officer or employee’s federal duties, the United States must decide whether to represent the officer or employee. If the United States decides to represent this defendant, then the policy arguments in favor of applying the 60-day appeal period are the same as in other cases involving federal parties: The Department of Justice needs time to review the case, determine whether an appeal should be taken, and secure the Solicitor General’s approval for that appeal. This is true of cases in which the United States has already represented the officer or employee prior to the entry of judgment in the trial court, and it is also true of cases in which the United States has not yet represented the officer or employee but decides to do so by the time the appeal is taken.

The proposed amendments bring Appellate Rules 4 and 40 into line with Civil Rule 12(a)(3), which gives a federal officer or employee sued in an individual capacity for an act or omission occurring in connection with federal duties extra time to answer the complaint. Similar to Civil Rule 12(a)(3), the proposed amendments to Rules 4 and 40 and §2107 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.

Because of special concerns relating to the significance of appeal deadlines, the proposed amendments to Appellate Rules 4 and 40 and §2107 also specify two safe harbors that ensure the application of the longer periods: The cases to which the extended periods will apply include all instances in which the United States represents the relevant officer or employee when the judgment or order is entered or in which the United States files the appeal for that person. The proposed amendments 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.

The proposed amendments to Appellate Rules 4 and 40 are currently on track to take effect December 1, 2011, if Congress takes no contrary action. It is important to seek the legislative amendment to §2107 on a timetable that will permit the statutory amendment to take effect December 1, 2011, at the same time as the rule amendments. The proposed draft legislation provides that the amendment to §2107 “shall take effect on December 1, 2011,” which accords with the effective date provision in the Supreme Court’s order promulgating the rule amendments and covers judgments, orders, and decrees that could be timely appealed on or after December 1, 2011.

Cost

According to the Congressional Budget Office, implementing H.R. 2633 would have no significant impact on the federal budget.  Enacting the bill would not affect direct spending or revenues; therefore, pay-as-you-go procedures do not apply.