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Deadline for Commenting on Federal Appellate Rule Amendments Is Fast Approaching
Special to Law.com
February 04, 2008
Howard J. Bashman
Related: Bashman Archive
Although the next wave of significant proposed amendments to the Federal Rules of Appellate Procedure are not likely to go into effect until December 2009, now is the time to focus on the details of these changes. The deadline for public comment on the proposals is this month -- Feb. 15, to be precise.
The most significant change under consideration to the federal appellate rules, and the rules governing procedure before the federal district courts, would alter the method of calculating deadlines. Currently, relatively short time periods -- say 10 days -- are calculated by omitting intervening weekends and holidays. That means a supposed 10-day period actually gives a litigant at least two weeks to complete the task in question. By contrast, longer periods, such as a 30-day period, are calculated without omitting intervening weekends and holidays.
The rule changes under consideration would simplify the math by requiring that all days be counted in calculating deadlines, regardless of the period's length. To make up for the issue of intervening weekends and holidays, shorter deadlines will be lengthened, in an effort to render the net impact of the rule change essentially neutral.
Some trial court deadlines of importance to appellate advocates will be significantly lengthened. Currently, in civil cases, the deadline for filing post-judgment motions for a new trial, to change a trial judge's non-jury factual findings, for judgment as a matter of law, and to alter or amend the judgment is 10 days after entry of the judgment. Because this period is calculated without counting weekends and holidays, it translates into at least a two-week window in which to prepare and file these motions.
The rule amendments under consideration would change the Federal Rule of Civil Procedure to allow a period 30 days after the entry of judgment in which to file these motions. This substantially expanded time in which to file post-judgment motions will allow for those motions to be better researched and reasoned, and may encourage more attorneys who represent parties who lost at the trial court level to obtain appellate counsel's assistance in preparing those motions.
One concern relating to this change is that the deadline for appeal in civil cases in which the federal government is not a party is also 30 days after the trial court's entry of judgment. Thus, once these rule changes take effect, the deadline for filing a timely notice of appeal in many civil cases will be the same as the deadline for filing a timely post-judgment motion. What makes this problematic, in my view, is that a timely-filed post-judgment motion in a civil case postpones the deadline for all parties to file a notice of appeal until 30 days after the district court rules on the post-judgment motion.
Imagine a civil case in which both the plaintiff and the defendant have reason to appeal. Under the rules as they now stand, if the plaintiff does not need to file a post-judgment motion in order to preserve the issues it intends to raise for appeal, the plaintiff can wait until the 10-day deadline for timely post-judgment motions has expired to see whether the defendant has filed such a motion. If the defendant did file a timely post-judgment motion, the deadline for the plaintiff's notice of appeal would be postponed until 30 days after the district court rules on the defendant's motion. And if the defendant did not file a timely post-judgment motion, then the plaintiff still has plenty of time before the original deadline for its notice of appeal is due to expire.
Once the proposed rule changes take effect, however, if the defendant waits until the last possible moment to file a timely post-judgment motion, the plaintiff will have no choice but to file its notice of appeal within 30 days of the district court's original entry of judgment. Yet a timely post-judgment motion that one party files prevents another party's notice of appeal from taking immediate effect, placing the notice of appeal instead into a form of suspended animation. The previously filed notice of appeal then springs back into action once the district court decides the other party's post-judgment motion. If the deadline for post-judgment motions is the same 30-day period as the deadline for a notice of appeal, federal appellate courts will have to carry on their dockets many more of these "premature" appeals in suspended animation until district courts have ruled on timely filed post-judgment motions.
The proposed time calculation amendments to the FRAP also define the allowable deadline for taking an action. Where electronic filing is allowed, a filing due in a federal district court is due by midnight in that court's time zone. Similarly, where an electronic filing is due in a federal appellate court, the deadline is midnight at the federal appellate court's principal office.
A separate set of amendments that do not principally concern time calculation are also subject to the Feb. 15 comment deadline. These amendments include a proposal, Federal Rule of Appellate Procedure 12.1, that would set forth the procedure that parties should follow if a federal district court indicates it would grant a party's motion but lacks the power to do so after control over the case is vested in a federal appellate court because an appeal has been taken.
This set of proposed rule changes also clarifies how to calculate the three-day period added to existing deadlines for responding to documents that other parties have served by means other than hand delivery.
For more information on the proposed FRAP changes, you may access the material as follows:
-- FRAP changes dealing principally with calculation of time
-- FRAP changes not dealing principally with calculation of time
-- FRCP changes of interest to appellate practitioners
Comments on any or all of these rule changes can be submitted via e-mail to Rules_Comments@ao.uscourts.gov.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.
