[House Report 112-199]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 112-199
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APPEAL TIME CLARIFICATION ACT OF 2011
_______
September 7, 2011.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Smith of Texas, from the Committee on the Judiciary,
submitted the following
R E P O R T
[To accompany H.R. 2633]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred 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, having
considered the same, report favorably thereon without amendment
and recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for the Legislation.......................... 2
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 4
New Budget Authority and Tax Expenditures........................ 4
Congressional Budget Office Cost Estimate........................ 4
Performance Goals and Objectives................................. 5
Advisory on Earmarks............................................. 5
Section-by-Section Analysis...................................... 5
Agency Views..................................................... 7
Changes in Existing Law Made by the Bill, as Reported............ 9
Purpose and Summary
The purpose of H.R. 2633 is twofold: First, the bill
clarifies that the deadline for filing a civil appeal under
Federal Rule of Appellate Procedure 4 is 60 days when one of
the litigants is the Federal Government; a Federal Government
agency; a Federal officer or employee sued individually in an
official capacity; or a current or former Federal officer or
employee sued individually in an official capacity for an act
or omission occurring in connection with duties performed on
behalf of the United States. And second, the legislation
``syncs'' this clarification under 28 U.S.C. Sec. 2107 with an
identical change to Appellate Rule 4 that is scheduled to take
effect on December 1, 2011, pursuant to a recommendation made
by the United States Judicial Conference.
Background and Need for the Legislation
The Rules Enabling Act\1\ authorizes the Judicial
Conference to 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.
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\1\28 U.S.C Sec. Sec. 2071-2077.
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In 2011, the Supreme Court submitted proposed amendments to
Appellate Rules 4 and 40 that 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 by Appellate Rule 4 as well as 28
U.S.C. Sec. 2107, the Advisory Committee on Appellate Rules
proposed that the Judicial Conference seek legislation to make
the same clarifying change to Sec. 2107.
Appellate Rule 4 and Sec. 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 in which the Federal party is a United States officer or
employee sued in an individual capacity. The proposed
amendments to Appellate Rule 4 and H.R. 2633 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 H.R. 2633 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 as well as H.R. 2633 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 enact H.R. 2633 on
a timetable that permits the statutory amendment to take effect
December 1, 2011, at the same time as the rule amendments. H.R.
2633 provides that the amendment to Sec. 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.
Finally, the Committee notes that the proposed amendments
to Appellate Rule 4, as proffered by the Judicial Conference
under the Rules Enabling Act, as well as the contents of H.R.
2633 apply to members of both houses of Congress and their
staffs. In other words, members of the United States House of
Representatives, the United States Senate, and their staffs are
considered United States officers or employees under Appellate
Rule 4 and 28 U.S.C. Sec. 2107. As argued by Professor
Catherine T. Struve,
the typical instance of representation by the United
States involves representation by the Department of
Justice. However, the legislative branch obviously is
as much a part of the United States government as the
executive branch. Representation by [Senate Legal
Counsel, or the ``SLC''] or [the House Office of
General Counsel, or ``OGC'']--i.e., by the government
counsel designated by statute (or by House rule) as the
official legal representative for the relevant
legislative house and its members, officers, and
employees--proceeds under the direct control of one of
the Houses of Congress. Thus, unless one is willing to
assert that the legislative branch is less eligible
than the executive branch for recognition as ``the
United States,'' representation by SLC or OGC should
count as representation by the United States.\2\
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\2\Memorandum from Catherine T. Struve to Judge Lee H. Rosenthal,
Judge Jeffrey S. Sutton, Professor Daniel R. Coquillette, and Andrea L.
Kuperman, Chief Counsel to the Judicial Counsel's Rules Committee,
regarding ``Proposed legislation amending 28 U.S.C. Sec. 2107'' (Feb.
20, 2011), in the files of the Committee on the Judiciary.
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Hearings
The Committee on the Judiciary held no hearings on H.R.
2633.
Committee Consideration
On July 28, 2011, the Committee met in open session and
ordered the bill H.R. 2633 favorably reported without
amendment, by voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H.R. 2633.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 2633, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 4, 2011.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2633, the ``Appeal
Time Clarification Act of 2011.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Martin von
Gnechten.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 2633--Appeal Time Clarification Act of 2011.
H.R. 2633 would codify a recent amendment to the Federal
Rules of Appellate Procedure. Current 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, it is unclear whether
this time period applies if current or former Federal employees
are sued in an individual capacity in connection to their
Federal employment. This legislation would clarify that it
does.
Based on information from the Administrative Office of the
United States Courts, CBO estimates that 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.
H.R. 2633 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of State, local, or tribal
governments.
The CBO staff contact for this estimate is Martin von
Gnechten. The estimate was approved by Theresa Gullo.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
2633 clarifies the fair treatment of litigants under the
Federal Rules of Appellate Procedure and assists the Federal
courts in correctly interpreting those rules.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2633 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short Title. This Act may be cited as the ``Appeal
Time Clarification Act of 2011.''
Sec. 2. Time for Appeals in Certain Cases. Section 2 makes
three edits to punctuation in existing subsection (a) of
Sec. 2107.
Section 2 also rewrites existing subsection (b) of
Sec. 2107 as follows: 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--
Lthe United States;
Lan agency of the United States;
Lan officer or an employee of the United
States who is sued in an official capacity; or
La 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.
Sec. 3. Effective Date. The amendments made by this Act
shall take effect on December 1, 2011.
Agency Views
__________
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SECTION 2107 OF TITLE 28, UNITED STATES CODE
Sec. 2107. Time for appeal to court of appeals
(a) Except as otherwise provided in this section, no appeal
shall bring any judgment, [order or decree]order, or decree in
an action, [suit or proceeding]suit, or proceeding of a civil
nature before a court of appeals for review unless notice of
appeal is [filed, within thirty]filed within 30 days after the
entry of such judgment, [order or decree]order, or decree.
[(b) In any such action, suit or proceeding in which the
United States or an officer or agency thereof is a party, the
time as to all parties shall be sixty days from such entry.]
(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.
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