99–006 

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 


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1 28 U.S.C §§ 2071–2077. 

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. § 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. 

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. § 2107, the Advisory Committee on Appellate Rules 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 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. 


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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 § 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. § 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 


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2Memorandum 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. § 2107’’ (Feb. 20, 

2011), in the files of the Committee on the Judiciary. 

States,’’ representation by SLC or OGC should count as 

representation by the United States.2

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.’’ 


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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-yougo 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 § 2107. 

Section 2 also rewrites existing subsection (b) of § 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— 


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• 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. 

Sec. 3. Effective Date. The amendments made by this Act shall 

take effect on December 1, 2011. 


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Agency Views 


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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): 


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SECTION 2107 OF TITLE 28, UNITED STATES CODE 

§ 2107. Time for appeal to court of appeals 

(a) Except as otherwise provided in this section, no appeal shall 

bring any judgment, øorder or decree¿order, or decree in an action, 

øsuit or proceeding¿suit, or proceeding of a civil nature before a 

court of appeals for review unless notice of appeal is øfiled, within 

thirty¿filed within 30 days after the entry of such judgment, øorder 

or decree¿order, or decree. ø(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. 

* * * * * * * 

Æ 


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