[Congressional Record (Bound Edition), Volume 157 (2011), Part 9]
[House]
[Pages 13339-13341]
[From the U.S. Government Publishing Office, www.gpo.gov]




                 APPEAL TIME CLARIFICATION ACT OF 2011

  Mr. COBLE. Mr. Speaker, I move to suspend the rules and pass the bill 
(H.R. 2633) to amend title 28, United States Code, to clarify the time 
limits for appeals in civil cases to which United States officers or 
employees are parties, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 2633

       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. FINDINGS.

       Congress finds that--
       (1) section 2107 of title 28, United States Code, and rule 
     4 of the Federal Rules of Appellate Procedure provide that 
     the time to appeal for most civil actions is 30 days, but 
     that the appeal time for all parties is 60 days when the 
     parties in the civil action include the United States, a 
     United States officer, or a United States agency;
       (2) the 60-day period should apply if 1 of the parties is--
       (A) the United States;
       (B) a United States agency;
       (C) a United States officer or employee sued in an official 
     capacity; or
       (D) 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 behalf of 
     the United States;
       (3) section 2107 of title 28, United States Code, and rule 
     4 of the Federal Rules of Appellate Procedure (as amended to 
     take effect on December 1, 2011, in accordance with section 
     2074 of that title) should uniformly apply the 60-day period 
     to those civil actions relating to a Federal officer or 
     employee sued in an individual capacity for an act or 
     omission occurring in connection with Federal duties;
       (4) the civil actions to which the 60-day periods should 
     apply include all civil actions in which a legal officer of 
     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 officer or employee; and
       (5) the application of the 60-day period in section 2107 of 
     title 28, United States Code, and rule 4 of the Federal Rules 
     of Appellate Procedure--
       (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 
     of the United States is provided by a Federal legal officer 
     acting in an official capacity, such as civil actions in 
     which a Member, officer, or employee of the Senate or the 
     House of Representatives is represented by the Office of 
     Senate Legal Counsel or the Office of General Counsel of the 
     House of Representatives.

     SEC. 3. TIME FOR APPEALS IN CERTAIN CASES.

       Section 2107 of title 28, United States Code, is amended--
       (1) in subsection (a)--
       (A) by striking ``order or decree'' each place it appears 
     and inserting ``order, or decree'';
       (B) by striking ``suit or proceeding'' and inserting 
     ``suit, or proceeding''; and

[[Page 13340]]

       (C) by striking ``filed, within thirty'' and inserting 
     ``filed within 30''; and
       (2) by amending subsection (b) to read as follows:
       ``(b) In any such action, suit, or proceeding, the time as 
     to all parties shall be 60 days from such entry if one of the 
     parties is--
       ``(1) the United States;
       ``(2) an agency of the United States;
       ``(3) an officer or employee of the United States who is 
     sued in an official capacity; or
       ``(4) a current or former officer 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.''.

     SEC. 4. EFFECTIVE DATE.

       The amendments made by this Act shall take effect on 
     December 1, 2011.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
North Carolina (Mr. Coble) and the gentleman from Michigan (Mr. 
Conyers) each will control 20 minutes.
  The Chair recognizes the gentleman from North Carolina.


                             General Leave

  Mr. COBLE. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days within which to revise and extend their remarks 
and include extraneous material on H.R. 2633, as amended, currently 
under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from North Carolina?
  There was no objection.
  Mr. COBLE. Mr. Speaker, I yield myself such time as I may consume.
  I want to thank the ranking member of the Courts Subcommittee, Mr. 
Cohen, the distinguished gentleman from Tennessee, and the ranking 
member of the full committee, Mr. Conyers, the distinguished gentleman 
from Michigan, for their having cosponsored the bill.
  I introduced the bill, H.R. 2633, at the behest of the United States 
Judicial Conference. It addresses a small problem that must be fixed or 
attended to prior to December 1 of this year.
  Under the existing 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, as part of its rules package, the Supreme Court submitted 
proposed amendments to Appellate Rule 4 that clarify the treatment of 
the time to appeal in civil cases involving a United States officer or 
employee. Because the time to appeal in a civil case is set not only by 
Appellate Rule 4 but also by section 2107 of title 28 of the U.S. Code, 
the Advisory Committee on Appellate Rules has proposed that the 
Judicial Conference seek legislation to make the same clarifying change 
to section 2107.
  Appellate Rule 4 and section 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.'' The problem is that current law is not clear concerning the 
applicability of the longer period in cases in which the Federal party 
is a United States officer or employee sued in an individual capacity. 
The proposed amendments in H.R. 2633 simply clarify that the longer 
period applies to such an individual or employee, just as it does to 
the United States Government or a United States agency.
  A lawsuit against a Federal officer or employee under these 
conditions requires the Federal Government to decide whether to 
represent that individual. This requires time, as the government must 
evaluate the case, determine whether an appeal should be taken, and 
ultimately obtain the Solicitor General's approval.
  The proposed revisions to Appellant Rule 4 are on a glide path to 
December 1. It's important to promote the consistency between the rules 
and title 28 by ensuring that we enact H.R. 2633, which also takes 
effect on December 1.
  The only change to the bill as reported by our committee is the 
inclusion of ``findings'' language developed by the Senate Judiciary 
Committee. The main point of this text is to clarify that the 60-day 
period applies to cases involving article I litigants, including 
Members of the House of Representatives and Senators. This addition is 
entirely consistent with the legislative history of the bill and is 
fully supported by the Judicial Conference. This will also help to 
expedite passage of H.R. 2633 by the other body.
  Mr. Speaker, this is bipartisan legislation devoid of controversy. It 
treats Federal litigants fairly under the Appellate Rules and assists 
the courts in correctly interpreting those rules. I urge my colleagues 
to support H.R. 2633, and I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  I begin by congratulating Howard Coble of North Carolina, a senior 
member of the Judiciary Committee, who is the sponsor of this bill, and 
agree with him entirely. It was reported by our committee by voice vote 
and no amendment. His explanation was thorough, and I appreciate his 
inclination for detail which had us make this important modification of 
appeal time clarification.
  Mr. Speaker, I rise in support of H.R. 2633, the ``Appeal Time 
Clarification Act of 2011,'' as amended.
  This noncontroversial legislation simply clarifies the time for 
filing an appeal in federal civil cases.
  It does so by amending section 2107 of title 28 of the United States 
Code to provide that current or former officers or employees of the 
United States who are sued in their individual capacities for acts or 
omissions in connection with the performance of their federal duties 
are entitled to 60 days from the entry of a judgment, order, or decree 
to file their appeals, rather than the normal 30 days.
  The bill resolves an ambiguity in current law as to whether officers 
or employees of the United States who are sued in their individual 
capacities--as opposed to their official capacities--are entitled to 
the 60-day period.
  The amendments made by H.R. 2633 would make it clear that they are 
indeed entitled to the longer appeal period.
  This change would also bring section 2107 in line with a pending 
revision to Federal Rule of Appellate Procedure 4, which also governs 
the time for appeals in civil cases.
  The amendment to Rule 4 was approved by the Supreme Court in April 
and is set to take effect on December 1, 2011.
  H.R. 2633's amendment to section 2107 will avoid confusion and 
inconsistency between the two provisions that pertain to the time to 
file an appeal in civil cases.
  Finally, the change made by H.R. 2633 is consistent with the policy 
that underlies the longer appeal period involving federal parties 
generally.
  If the United States represents a federal party, the government 
typically needs time to review the case, determine whether an appeal 
should be taken, and secure the Solicitor General's approval for that 
appeal.
  The same concern applies when the United States--through the Justice 
Department or some other federal litigating entity such as the House 
Office of General Counsel or the Senate Office of Legal Counsel--
decides to represent a current or former officer or employee sued in 
his or her individual capacity.
  Therefore, making it clear that the 60-day time period to file an 
appeal is available in such cases serves that policy goal.
  H.R. 2633 was reported by the Judiciary Committee without amendment 
by voice vote. The version of the bill we are considering today is 
identical, but for the addition of certain findings made at the 
Senate's recommendation.
  For these reasons, I urge my colleagues to support this commonsense 
legislation.
  I yield back the balance of my time.
  Ms. JACKSON LEE of Texas. Mr. Speaker, I rise today in support of 
H.R. 2633, the Appeal Time Clarification Act of 2011. This legislation 
provides an important clarification to the law.
  Under the Federal Rules of Appellate Procedure, the law allows 60 
days to file a notice of appeal for civil cases if the United States or 
a federal officer is a party. However, the legislation fails to 
disclose whether the 60 day period applies to current and/or former 
federal employees who are sued in an individual capacity.
  The Appeal Time Clarification Act of 2011 performs as a means to 
clarify the discrepancies created by the initial policy. It essentially 
amends the federal judicial code requirements concerning the time 
limits for the filing

[[Page 13341]]

of appeals to any judgment, order, or decree in a civil action, suit, 
or proceeding.
  According to the Congressional Budget Office Cost Estimate, as 
ordered by the House Committee on the Judiciary, H.R. 2633 would have 
no significant impact on the federal budget. The CBO estimates that 
enacting the bill ``would not affect direct spending or revenues; 
therefore, pay-as-you-go procedures do not apply.''
  There are no solid concerns that have been raised in the House 
regarding this legislation. However, the Senate Judiciary Committee has 
expressed its observation that the bill's language regarding individual 
capacity lawsuits may be read in such a way as to exclude those cases 
where the individual is represented by the Senate Legal Counsel or the 
House Office of General Counsel rather than the Department of Justice 
(for example, in a lawsuit between the legislative and executive 
branches concerning executive privilege).
  Summarily H.R. 2633 extends the 60 day filing deadline to any civil 
action, suit, or proceeding in which one of the parties is ``a current 
or former U.S. officer or employee sued in an individual capacity for 
an act. This amendment provides the government with the time it needs 
to review the case, determine whether an appeal should be taken, and 
secure the Solicitor General's approval for that appeal. These same 
policy reasons apply in a case where the United States--through DOJ or 
some other federal litigating entity--decides to represent a current or 
former officer or employee sued in his or her individual capacity.
  I applaud my friend from Michigan, Ranking Member of the Judiciary 
Committee for introducing this important legislation to protect past 
and present federal employees. I urge my colleagues to lend their 
support to the bill.
  Mr. COBLE. I thank my friend from Michigan for his kind words.
  Mr. Speaker, I also yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from North Carolina (Mr. Coble) that the House suspend the 
rules and pass the bill, H.R. 2633, as amended.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Mr. CONYERS. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this question will be postponed.

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