Howard J. Bashman's appellate columns, etc.

December 2002 Brings Significant Changes To The Federal Rules Of Appellate Procedure

By Howard J. Bashman
Monday, April 8, 2002
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.