On December 1, 2002, sixteen
amendments to the Federal Rules
of Appellate Procedure (FRAP)
are scheduled to take effect.
One of these amendments will
be of major significance both
to appellate practitioners and
to lawyers who handle civil
cases in federal trial courts.
Two other amendments, while
less significant, also deserve
mention.
After explaining the rule amendment
process, this column describes
the two less significant amendments
and then provides a detailed
examination of the most significant
of these forthcoming changes.
The Advisory Committee on Appellate
Rules of the Judicial Conference
of the United States is the
body with principal responsibility
for formulating amendments to
the FRAP. Third Circuit Judge
Samuel A. Alito, Jr. chairs
that committee, which consists
of appellate and trial judges,
a law professor, and experienced
appellate practitioners. Before
any rule changes leave this
committee, there is a six-month
period for the public to review
and comment on the proposed
amendments.
Once the Appellate Rules Advisory
Committee approves proposed
changes, they are next considered
by the Judicial Conference's
Standing Committee on Rules
of Practice and Procedure. Third
Circuit Judge Anthony J. Scirica
chairs this committee, which
is responsible for examining
and approving changes to all
of the federal rules of procedure
and evidence.
After the Standing Committee
approves proposed amendments,
they are next considered by
the Judicial Conference of the
United States. The Judicial
Conference consists of the Chief
Justice of the United States,
the chief judge of each federal
court of appeals and of the
Court of International Trade,
and one district judge from
each circuit.
Following approval from the
Judicial Conference, rule amendments
are transmitted to the Supreme
Court of the United States.
The Supreme Court officially
promulgates the rules governing
procedure and evidence in federal
courts. If the Supreme Court
approves of the rule amendments
as submitted, they are transmitted
to Congress. Congress then has
seven months in which to reject,
modify or defer the proposed
amendments. In the absence of
such action, the rule amendments
go into effect.
The rule amendments described
herein were submitted to the
Supreme Court in November 2001
and will take effect on December
1, 2002 barring any unforeseen
rejection by the Court or by
Congress.
Current FRAP 28 (j)
-- the problem: FRAP
28(j) allows a party to bring
supplemental authorities to
the court's attention in a letter
sent to the court after the
party's appellate brief has
been filed. The rule provides
that "[t]he letter must state
without argument the reasons
for the supplemental citations."
Many have struggled to distinguish
between "argument," which current
FRAP 28(j) prohibits, and a
"state[ment]" of "the reasons
for the supplemental citations,"
which is allowed.
New FRAP 28(j) -- the
solution: Effective
December 2002, FRAP 28(j) will
no longer prohibit argument.
The new rule imposes a 350-word
limit on the body of both the
letter and any response thereto,
whereas the current rule contains
no word limit.
Current FRAP 26(a) --
the problem: The method
for computing time in federal
trial courts currently differs
from the method used in federal
appellate courts. In trial courts,
intermediate Saturdays, Sundays
and legal holidays are excluded
when computing periods of fewer
than eleven days. In appellate
courts, weekends and holidays
are excluded only if the period
being computed is fewer than
seven days.
New FRAP 26(a) -- the
solution: The federal
appellate courts in December
2002 will begin using the same
method for calculating time
that the federal district courts
have been using. Thus, in the
trial court and on appeal, intermediate
Saturdays, Sundays and legal
holidays will be excluded when
computing periods of fewer than
eleven days. The time periods
specified in certain other federal
appellate rules are being shortened
to reflect this change.
Current FRAP 4(a)(7)
-- the problem: The
most important change by far
to the FRAP that will occur
in December 2002 results from
an amendment to FRAP 4(a)(7)
and a simultaneous, complementary
amendment to Federal Rule of
Civil Procedure (FRCP) 58.
FRCP 54(a) defines the term
"judgment" as "any order from
which an appeal lies." FRCP
58, in its current form, consists
of a single, lengthy paragraph
that contains in its middle
the following two sentences:
"Every judgment shall be set
forth on a separate document.
A judgment is effective only
when so set forth."
Current FRCP 58's requirement
that federal district courts
set forth judgment on a separate
document, or else no judgment
exists, has given rise to very
serious problems on appeal.
The problems stem from the failure
of district courts to comply
rigorously with FRCP 58's separate
document requirement.
Under current FRAP 4(a)(1),
the thirty days (or sixty days
if the federal government is
a party) in which to take an
appeal in a civil case never
begins to run unless judgment
is entered in the trial court.
Similarly, the ten-day period
in which to file post-judgment
motions under FRCP 50, 52 and
59 never begins to run.
Thus, under the current rules,
where no judgment is entered
on a separate document in the
trial court, the time for appeal
and for filing post-judgment
motions in the trial court extends
indefinitely. As Seventh Circuit
Judge Frank H. Easterbrook has
explained, "A party safely may
defer the appeal until Judgment
Day if that is how long it takes
to enter the document." In
re Kilgus, 811 F.2d 1112,
1117 (7th Cir. 1987).
New FRAP 4(a)(7) --
the solution: To avoid
the endless opportunity to appeal
in a civil case in which judgment
has not been entered on a separate
document, current FRCP 58 is
being entirely rewritten effective
December 1, 2002. New FRCP 58(b)
provides that a ruling that
otherwise qualifies as a final,
appealable decision, except
that no judgment has been entered
on a separate document, will
become a judgment (subject to
appeal or post-judgment motions)
upon the expiration of 150 days
from the entry of the decision.
Thus, 150 days after the entry
of a final decision in a case
in which no judgment has been
entered on a separate document,
new FRCP 58(b) and new FRAP
4(a)(7) dispense with current
FRCP 58's requirement that judgment
be entered on a separate document.
Under these new rules, the thirty
days (or sixty days if the federal
government is a party) in which
to file a timely appeal will
begin to run 150 days after
entry of a final decision in
a civil case in which no judgment
on a separate document was entered.
New FRAP 4(a)(7) also allows
a party that wishes to appeal
sooner, even in the absence
of a judgment on a separate
document, to waive the separate
document requirement and appeal
before the 150 days have expired.
The Advisory Committee on Appellate
Rules deserves praise for eliminating
the endless period in which
to appeal or file post-judgment
motions in civil cases in which
final judgment has not been
entered on a separate document.
Unfortunately, however, the
rule amendments accomplishing
this result likely will give
rise to several new concerns.
Potential problems with
new FRAP 4(a)(7): The
first difficult question that
federal courts will have to
grapple with is the impact of
new FRCP 58 and new FRCP 4(a)(7)
on civil cases in which a final
decision was entered without
a judgment on a separate document
more than 180 days (or 210 days
if the federal government was
a party) before December 1,
2002, when the new rules take
effect.
The Supreme Court's orders amending
the FRAP and FRCP usually provide
that rule amendments shall apply
to pending cases "insofar as
just and practicable." This
paraphrases 28 U.S.C. sec. 2074(a)
of the Rules Enabling Act, which
provides that new procedural
rules may be applied to pending
cases unless it "would not be
feasible or would work injustice,
in which event the former rule
applies."
First, courts could conclude
that the amendments to FRAP
4(a)(7) and FRCP 58 do not apply
to cases in which a final decision
without a judgment on a separate
document was entered before
December 1, 2002. Such a conclusion
would preserve the endless opportunity
to appeal that had previously
existed in those cases, which
makes this approach unlikely
to be adopted.
Second, on December 1, 2002,
when the amendments take effect,
courts could start the 150-day
clock running toward the entry
of an appealable, final judgment
in pending civil cases that
have a final decision but no
judgment on a separate document.
This would give all parties
in such cases at least 180 days
from December 1, 2002 in which
to file an appeal.
Third, the rule could be applied
in a fully retroactive manner,
so that as of December 1, 2002
appeals could no longer be filed
in civil cases lacking a judgment
on a separate document in which
the final decision was reached
more than 180 days (or 210 days
if the federal government is
a party) earlier. Parties in
such cases who have reason to
fear the consequences of this
third option should file their
notices of appeal or post-judgment
motions before December 1, 2002,
not after.
Two other, very significant
problems arise from the opportunity
new FRAP 4(a)(7) gives to parties
to appeal immediately in the
absence of judgment entered
on a separate document.
The first problem involves the
interplay between appeal and
timely-filed post-judgment motions.
While new FRAP 4(a)(7) allows
a party desiring to appeal to
waive the requirement of a judgment
on a separate document, a party
seeking to file a timely post-judgment
motion does not seem to have
that option. Thus, in a case
in which neither the plaintiff
nor the defendant is entirely
satisfied with the result, one
party could appeal promptly
from the decision, while the
other could wait five months
for an actual judgment to exist,
which would then allow the filing
of timely post-judgment motions
in the trial court.
A similar problem arises where
the opposing parties both wish
to file an appeal. One party
could appeal promptly, while
the opposing party could wait
the full 180 days to file a
timely appeal. In the interim,
should the federal appellate
court move ahead with the pending
appeal or delay proceedings,
perhaps unnecessarily, to see
if the opposing party will appeal
some six months later?
One way to cure both of these
problems would be to amend new
FRCP 58(b) to provide that the
requirement that judgment be
entered on a separate document
is also eliminated within the
150-day period following the
entry of an otherwise appealable
decision lacking a separate
judgment once any party files
either a notice of appeal or
a motion in which the moving
party expressly seeks relief
under FRCP 50, 52, 59 or 60.
This would start the time for
all parties to appeal, or to
file post-judgment motions,
as soon as any party appeals
or files one of the specified
motions in the 150-day period
following the entry of a final
decision that is unaccompanied
by the entry of judgment on
a separate document. Under my
proposal, as under the current
rules, if a timely post-judgment
motion were filed, the time
for appeal would not begin to
run until entry of an order
deciding the motion.
This article is reprinted
with permission from the April
8, 2002 issue of The Legal Intelligencer
© 2002 NLP IP Company.