[House Report 112-199]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    112-199

======================================================================



 
                 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.
---------------------------------------------------------------------------
    \1\28 U.S.C Sec. Sec. 2071-2077.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

                                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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