     Case: 17-11417   Document: 00514692408   Page: 1   Date Filed: 10/22/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                               United States Court of Appeals

                                No. 17-11417
                                                                        Fifth Circuit

                                                                      FILED
                              Summary Calendar                 October 22, 2018
                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                             Clerk


            Plaintiff - Appellee

v.

RONALD CONNER,

            Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      The United States petitioned the district court to enforce a summons of
Ronald Conner by the Internal Revenue Service. The district court twice found
Conner in contempt of court for failure to fully comply with the summons. He
appealed from the district court’s denial of his motion to vacate the second
contempt order, one granted on motion of the government.
      Conner seeks en banc rehearing of our decision to dismiss his appeal as
time-barred. He argues that because the United States is a party to the suit,
he had 60, not 30, days to file his notice of appeal under Federal Rule of
Appellate Procedure 4(a)(1)(B). Treating Conner’s petition for en banc
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                                       No. 17-11417
rehearing as a motion for panel reconsideration, we grant the motion for
reconsideration and withdraw our prior order dismissing Conner’s appeal.
                                              I
      Rule 4(a)(1) provides a 30-day time limit to file a notice of appeal in the
Court of Appeals from a district court, but extends that limit to 60 days when
the United States is a party. Conner filed his notice of appeal 43 days after the
entry of the district court’s order denying his motion, and on the government’s
motion we dismissed his appeal as time-barred. Conner acknowledges that
under this Court’s decision in United States v. Brumfield, 1 the United States
is not a party to a civil contempt proceeding for the purposes of the 60-day
rule—even if it is a party to the litigation that prompted the contempt order.
He urges that Brumfield no longer controls the deadline to appeal from civil
contempt orders, citing prior and intervening caselaw and statutory changes.
      Conner here asks the court to reconsider Brumfield given its tensions
with decisions of this court, an intervening decision by the Supreme Court, and
changes in the applicable federal rules of procedure. We agree and, with fealty
to our rule of orderliness, revisit Rule 4(a)(1)(B) in light of its current wording
and Brumfield’s inconsistency with prior caselaw from this circuit. We
conclude that the 60-day limit applies to appeals from civil contempt orders
where the United States was a party to the underlying lawsuit.
      Noting that the issue was “apparently an issue of first impression in this
circuit,” 2 Brumfield followed the Sixth Circuit’s United States v. Hallahan and,
in a single paragraph of a lengthy opinion addressing many issues, held that
“this is not a situation in which the United States’ participation in a contempt




      1   188 F.3d 303, 305–06 (5th Cir. 1999).
      2   Id. at 306.
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holding is in the traditional posture required for that sixty day provision to
apply.” 3
       When Brumfield turned to the Sixth Circuit, it fell in tension with prior
panel decisions from this circuit. In Montelongo v. Meese, we held that where
the United States was a party to the underlying suit but there were also other
parties involved, all parties would have sixty days to appeal, even if “the
government [was] not a party or . . . not interested in the appeal that [was]
actually taken.” 4 The panel observed that it saw “no reason to complicate the
already difficult task of attempting to determine the timeliness of appeals by
requiring that timeliness be determined separately on the basis of which party
is concerned with which issue.” 5 By Montelongo, the determinant is whether
the government was a party in the district court proceeding—regardless of
whether the actual issue being appealed is one to which the government stands
in an appropriate posture.
       Montelongo distinguished Virginia Land Co. v. Miami Shipbuilding
Corp.’s application of the 30-day limit to an interlocutory appeal from a case in
which the United States, though it had been a party, no longer had ongoing
concern with any of the issues in the case. 6 Virginia Land noted that “as to the
only controversy asserted by the United States, the suit was in effect




       3 Id. (quoting United States v. Hallahan, 768 F.2d 754, 756 (6th Cir. 1985) (internal
alterations omitted).
       4 777 F.2d 1097, 1099 (5th Cir. 1985) (per curiam).
       5 Id. at 1098.
       6 201 F.2d 506, 507–08 (5th Cir. 1953); see Montelongo, 777 F.2d at 1098–99

(discussing Virginia Land). In Virginia Land, the United States had previously reached a
settlement with a party that was then dismissed from the case. See Virginia Land, 201 F.2d
at 508. While it had filed an amended complaint against the appellant, it did so “merely
because the court had directed it to file such an amendment,” and the panel concluded that
this was not enough to show any remaining controversy between the United States and the
appellant. See id.
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determined and brought to an end; and . . . the United States was not, and
could not have been, a party at interest in the appeal.” 7
       Read together, Montelongo and Virginia Land index the trigger for the
60-day deadline to United States presence in the underlying case. In
Montelongo, government presence in the case at trial meant that all parties
were entitled to the 60-day limit, even though the ultimate appeal did not
concern the United States. In Virginia Land, the only controversy involving
the United States had been resolved. 8 Neither case suggests that the United
States need stand in the “traditional posture” to the appeal. Indeed,
Montelongo’s language suggests the opposite: that as long as the United States


       7 Virginia Land, 201 F.2d at 508.
       8 Other circuits to consider the Virginia Land decision concluded, as we do here, that
it addresses the rare context in which the United States’ interest in the underlying case was
entirely resolved long before the appeal, even if the United States nominally remained a
party. See S.E.C. v. Pension Fund of Am. L.C., 377 F. App’x 957, 960–61 (11th Cir. 2010) (per
curiam); In re Paris Air Crash of Mar. 3, 1974, 578 F.2d 264, 265 n.1 (9th Cir. 1978) (per
curiam); United States v. Am. Soc’y of Composers, Authors & Publishers (ASCAP), 331 F.2d
117, 119–20 (2d Cir. 1964); Am. Exp. Lines, Inc. v. Revel, 262 F.2d 122, 126 (4th Cir. 1958);
cf. Md. Cas. Co. v. Conner, 382 F.2d 13, 15 (10th Cir. 1967) (concluding that the Virginia
Land holding applied where “[t]he only connection of the United States with the litigation
was the attempt, at the outset of the litigation, to assert a lien upon the property of . . . a
corporation of the United States . . . . [that] went out of the case on an order of dismissal and
a summary judgment”). The Tenth Circuit recently adopted a similar approach, though it did
not cite Virginia Land. See Jones v. Propstone LLC, 726 F. App’x 718, 720 (10th Cir. 2018)
(“Although it was named in the caption, Jones’ complaint contains no factual allegations
against the Department of Justice. Moreover, the department was never served, never
entered an appearance, and never participated in the proceedings. Under the circumstances,
we cannot conclude the Department of Justice is a party to this action.” (citing United States
ex rel. Eisenstein, 556 U.S. 928, 935 (2009), for the proposition that being named in the
caption is not equivalent to participating in a case as a party)).
        But even if we take Virginia Land to impose a broader “real party in interest”
requirement on the United States’ involvement, in addition to the United States still being a
party to the case, this would not imply that the United States must stand in a particular
posture to the issue being appealed. Instead, it would only require that the United States
still have some real interest in the case at large—consistent with Montelongo’s recognition
that the 60-day limit could apply to an issue that did not ultimately concern the government,
as long as the government was a party to the case. Cf. Eisenstein, 556 U.S. at 934 (rejecting
the claim that the United States’ status as a real party in interest to a qui tam proceeding
was sufficient to transform the United States into an “actual ‘party’” for the 60-day limit to
apply).
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is a party to the case, it does not matter “which party is concerned with which
issue” in the appeal. The Brumfield opinion, relying on the Sixth Circuit
opinion in Hallahan, made no mention of these cases.
                                               II
       Conner further points to an intervening Supreme Court decision and
changes wrought in statute and rule. The tension between Brumfield and
earlier cases of this court aside, statutory developments require our turn to the
United States’ presence in the case—sans its “posture” relative to the appeal.
                                               A
       As an initial matter, Conner argues that United States ex rel. Eisenstein
v. City of New York overruled Brumfield. 9 Eisenstein was a qui tam suit under
the False Claims Act. 10 While the FCA allows the United States to intervene
in such suits, it declined to do so in Eisenstein’s suit. 11 The district court
dismissed Eisenstein’s complaint. He filed a notice of appeal within the 60-day
limit but outside the 30-day limit. 12 The Supreme Court concluded that based
on Black’s Law Dictionary definitions of “party” and “intervention” and prior
caselaw on the nature of intervention, the United States was not a “party” for
the purposes of the 60-day deadline when it had declined to intervene, had not
brought the litigation, and was not being sued as a defendant—despite its
significant economic interest in the case. 13
       Conner argues that this holding steps on Brumfield’s treatment of the
United States’ “posture” in the appeal as a trigger for the 60-day time limit—



       9 See 556 U.S. 928 (2009).
       10 Id. at 929.
       11 Id. at 930, 932.
       12 Id. at 930.
       13 Id. at 932–33. The cited definition of “party” was “[o]ne by or against whom a lawsuit

is brought,” and the cited definition of “intervention” was “[t]he legal procedure by which . . .
a third party is allowed to become a party to the litigation.” See id. at 933 (citing Black’s Law
Dictionary 840, 1154 (8th ed. 2004)).
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hence Brumfield’s grant of only 30 days to notice appeal in a contempt
proceeding. 14 Eisenstein held at a minimum that the government’s presence as
a party was required; that its “interest” alone was not enough, even though by
definition it had a plain economic interest in the qui tam suit at issue. 15 Conner
urges us to read this to further hold that the 60-day deadline is exclusively
indexed to whether the United States was a party to the underlying litigation.
      We do not read Eisenstein as overruling Brumfield. Brumfield held that
even though the United States was a party, it did not trigger the 60-day period
as the government was not in the “traditional posture” relative to the appeal.
Eisenstein only held that a government interest in a case to which it was not a
party does not trigger the 60-day period. The decision resolved a circuit split
as to whether the 60-day limit applied where the United States had a distinct
interest, but was not a party. 16 It did not answer whether the United States’
party status is always sufficient to trigger the 60-day deadline.
                                        B
      Even though Eisenstein did not resolve the issue, we conclude that by a
fair reading of the 2011 amendments to Federal Rule of Appellate Procedure 4
and 28 U.S.C. section 2107, Brumfield’s holding cannot stand.
      In 1999, the year Brumfield was decided, the relevant portion of Rule
4(a)(1) read as follows:


            (A) In a civil case, except as provided in Rules
                4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal
                required by Rule 3 must be filed with the district
                clerk within 30 days after the judgment or order
                appealed from is entered.


      14 Brumfield, 188 F.3d at 306.
      15 Eisenstein, 556 U.S. at 933–36.
      16 16A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 3950.2 & n.60 (4th ed.).
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                                  No. 17-11417
            (B) When the United States or its officer or agency is
                a party, the notice of appeal may be filed by any
                party within 60 days after the judgment or order
                appealed from is entered. 17


      The 2011 Rules Advisory Committee Notes focused upon “the greater
need for clarity of application when appeal rights are at stake,” and proposed
amending Rule 4(a)(1)(B) to include “safe harbor provisions that parties can
readily apply and rely upon.” 18 To do so the Committee undertook to clarify the
reach of the Rule in application to suits against United States officers. After
those amendments, Rule 4(a)(1)(B) reads:


            (B) The notice of appeal may be filed by any party
                within 60 days after entry of the judgment or
                order appealed from if one of the parties is:

                        (i)     the United States;
                        (ii)    a United States agency;
                        (iii)   a United States officer or
                                employee sued in an official
                                capacity; or
                        (iv)    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—including all
                                instances in which the
                                United States represents
                                that person when the
                                judgment or order is entered


      17 Fed. R. App. P. 4(a)(1) (1999).
      18  Fed. R. App. P. 4(a)(1)(B) advisory committee’s note to 2011 amendments
[hereinafter Advisory Committee Note].
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                                        No. 17-11417
                                     or files the appeal for that
                                     person. 19


The Rules change came hand in hand with a congressional amendment to 28
U.S.C. section 2107 substantially tracking Rule 4(a)(1)(B)’s language. 20
       In keeping with their goal of clarity for all parties, the 2011 amendments
establish when the 60-day rule applies to appeals from suits against United
States officers or employees sued in their individual capacities—cases where
the government may or may not have an interest in the appeal. The Rules
Committee could have qualified the party-status rule to apply only to suits
against United States officers or employees in their individual capacities where
the government has an interest writ large, which would have been consistent
with the principles underlying Brumfield and Hallahan. Instead, recognizing
the need for precision, the Rules Committee hewed to party status as the
determinant of the 60-day deadline. It used presence as a party, sans any
element of case issues on appeal, to create a sharply defined category: the 60-
day rule applies where the United States represents an officer or employee, in
addition to cases where the officer or employee was otherwise sued for acts or
omissions performed on the United States’ behalf. And, tellingly, the
amendments preserved the right of any party to file a notice of appeal within
the expanded 60-day deadline. In the context of these amendments, which were
designed to eliminate traps for the unwary, we read Rule 4(a)(1)(B) to mean




       19 Fed. R. App. P. 4(a)(1)(B).
       20 28 U.S.C. § 2107(b) (2011) (“[T]he time as to all parties shall be 60 days from such
entry if one of the parties is— (1) the United States; (2) a United States agency; (3) a United
States officer or employee sued in an official capacity; or (4) 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 behalf of the United States, including all instances in
which the United States represents that officer or employee when the judgment, order, or
decree is entered or files the appeal for that officer or employee.”).
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                                     No. 17-11417
what it says 21: that the 60-day deadline applies if the United States was a party
to the lawsuit being appealed, without any additional mandate that it be in a
certain posture or possess a certain interest. Brumfield’s insertion of a
“posture” requirement is in the teeth of the language of the rule.
                                          * * *
       As we have explained, this court reached effectively the same conclusion
in Montelongo based on a prior version of the rule, and Brumfield was in
tension with that holding. The plain text of Rule 4 after its “safe harbor”
provisions were introduced in 2011 only sharpens our conviction that the rule
does not smuggle in a “posture” or “interest” requirement—when the
government is a party, the 60-day deadline applies, full stop.
       The argument that these authorities do not conflict with Brumfield loses
force in the face of the imperative of clarity—of the command of Rule 1 of the
Federal Rules that they be read to guide away from the high risk of
unfairness. 22 Faithful to our rule of orderliness, we abandon Brumfield and
conclude that Conner’s notice of appeal within the 60-day limit in Rule
4(a)(1)(B) was timely.
                                           III
      This conclusion places this court on the same footing as our fellow
circuits, which largely treat the party status of the United States as
determinative of whether appeals from a case are controlled by the 60-day
deadline. 23 Other courts have applied the longer timeframe in a number of
cases where the United States, while a party to the district court proceeding,



      21  See Simmons v. Himmelreich, 136 S. Ct. 1843, 1848 (2016).
      22  Fed. R. Civ. P. 1.
       23 The Sixth Circuit does not appear to have abandoned Hallahan, but neither have

any subsequent Sixth Circuit cases cited Hallahan for its conclusion that the 60-day limit
does not apply to appeals from civil contempt orders where the United States was a party to
the underlying lawsuit.
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                                         No. 17-11417
was not in the “traditional posture” relative to another party’s appeal. These
include appeals between private parties regarding consent decrees that the
United States was involved in establishing and monitoring. 24 They also include
appeals from portions of bifurcated or otherwise divided trial proceedings
where the United States’ role was confined to a different portion of the
proceeding not at issue in the appeal. 25 Treating the United States’
involvement as a party in the underlying proceeding as dispositive, these
courts rejected invitations to focus on the government’s interest in the specific
claims made on appeal. 26
       It is similarly consistent with treatment of the 60-day limit in the context
of consolidated or multidistrict litigation. We looked to the longer deadline


       24  See In re Burlington N., Inc. Emp’t Practices Litig., 810 F.2d 601, 606 (7th Cir. 1986)
(applying the 60-day deadline to the appeal of an attorney’s fees determination that would
not affect the United States directly, but where the Equal Employment Opportunity
Commission had been involved as a party in the underlying case and remained a party to
proceedings monitoring a consent decree); ASCAP, 331 F.2d at 119–20 (doing the same in an
action brought under a consent decree to which the United States was a party, but the only
issue being appealed did not concern the United States’ prior antitrust claims that prompted
the consent decree).
        25 See In re Paris Air Crash, 578 F.2d at 265 (applying the 60-day deadline where the

appeal was from the portion of a bifurcated trial that did not directly concern the United
States); Corning Glass Works v. P.R. Water Res. Auth., Inc., 396 F.2d 421, 423 n.1 (1st Cir.
1968) (doing the same where the United States was a cross-defendant with a potential
obligation of contribution); Revel, 262 F.2d at 126 (doing the same for an appeal between two
non-government parties, where the United States was an impleaded third-party defendant
and could be liable to one of the parties involved in the appeal).
        26 See, e.g., In re Paris Air Crash, 578 F.2d at 265 (“We agree . . . that a literal reading

of the 60-day exception is the preferred view in order to eliminate the element of uncertainty
. . . in a critical procedural rule.”); ASCAP, 331 F.2d at 119 (“It is in the last degree
undesirable to read into a procedural statute or rule, fixing the time within which action may
be taken, a hidden exception or qualification that will result in the rights of clients being
sacrificed when capable counsel have reasonably relied on the language . . . . The stated
criterion is whether the United States is a party to the action, a test clearly satisfied here,
and not whether the United States is concerned with the particular order sought to be
appealed—something that often cannot be accurately determined when the order is made.”);
see also Wright & Miller, supra, § 3950.2 (approving of a focus on party status rather than
the United States’ interest in the issue being appealed); cf. Revel, 262 F.2d at 126–27
(explaining the absurdity that might result from the opposite approach and concluding that
“[n]othing in the governing provisions of the statute and rule requires this solecism”).
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                                       No. 17-11417
where the Equal Employment Opportunity Commission and several private
parties sued the same defendants, the district court consolidated the lawsuits,
and some of the private plaintiffs appealed from a consent decree between all
parties. 27 Indeed, circuits have squarely concluded that the 60-day deadline
operates any time the government was a party to one of the consolidated
lawsuits, even where the appeal solely concerns a different lawsuit and the
government is not a party to the appeal. 28
                                           * * *
       Brumfield was inconsistent with our prior caselaw on the 60-day limit,
and its tension with governing law grew in the face of the 2011 Rules and
statutory revisions. Today we bring our treatment of the 60-day deadline in
civil contempt proceedings in line with these authorities.
                                             IV
       We grant Conner’s motion for reconsideration and withdraw our
dismissal of Conner’s appeal.




       27  See In re MDL 262, 799 F.2d 1076, 1077–78 (5th Cir. 1986) (per curiam). There, the
Commission had filed a motion to dismiss the private plaintiffs’ appeal from the consent
decree, but the panel did not indicate that the Commission’s actual involvement in the appeal
was what triggered the 60-day deadline. See id. at 1079.
        28 See In re Adams Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987) (holding that the

60-day limit applied where three cases were treated as consolidated by the district court and
resolved together, and the Small Business Administration was a party to one of the cases);
Cablevision Sys. Dev. Co. v. Motion Picture Ass’n of Am., Inc., 808 F.2d 133, 134 (D. C. Cir.
1987) (per curiam) (holding the same where one of the consolidated cases had been required
to join the Copyright Office and Register of Copyrights as necessary parties, but the others
had not, and the appellant appealed from all three after the 30-day deadline had passed);
Donovan v. Tierra Vista, Inc., 796 F.2d 1259, 1260 (10th Cir. 1986) (holding the same where
a private party and the Secretary of Labor brought separate suits against the same employer,
those suits were consolidated for trial, and the private party appealed); cf. In re Burlington
N., 810 F.2d at 606 (7th Cir. 1986) (applying the 60-day deadline where the Equal
Employment Opportunity Commission had intervened in a consolidated set of lawsuits
against an employer, but the appeal was solely based on lead counsel contesting their
attorney’s fees).
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