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New Federal Rules Will Govern Indicative Rulings

By Josh Jacobson

Absent congressional action, new Federal Rule of Appellate Procedure 12.1 and new Federal Rule of Civil Procedure 62.1 both will take effect on December 1, 2009, and together will control the long-standing (if informal) practice of so-called indicative rulings by a district court while a case is on appeal.

Indicative rulings most often arise in civil cases in the context of post-appeal Federal Rule of Civil Procedure 60(b) motions, where the appeal has divested the district court of jurisdiction to rule on that motion. Because Rule 60(b) motions necessarily are filed in the district court, the filing of Rule 60(b) motion while an appeal is pending has presented somewhat of a jurisdictional quandary in the past. Where the district court was inclined to deny the Rule 60(b) motion, most circuits have allowed the district court to proceed even though the appeal theoretically had abrogated its jurisdiction over the action. In fact, it appears that the Ninth Circuit is the only circuit court that consistently has barred its constituent district courts from denying a Rule 60(b) motion under these circumstances.

Until now, things were a little more complicated when the district court was favorably disposed to the Rule 60(b) motion, or where the district court indicated that the motion might well be meritorious. Most circuits have avoided this obvious jurisdictional conundrum by having the district court issue a ruling indicating that it was favorably disposed to the underlying motion or that the motion might well have merit (the so-called indicative ruling), accompanied by a request by the district court for a remand to allow it to formally rule on the motion over which it would otherwise lack jurisdiction. The new rules will replace these makeshift procedures and are, for the most part, intended to formalize the current prevailing process.

In combination, the rules will require several basic steps by the parties and the courts. When presented with a motion that would otherwise be barred by a pending appeal, Federal Rule of Civil Procedure 62.1(a) will allow a district court to “(1) defer consideration of the motion; (2) deny the motion; or (3) state that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.” It is only when the district court selects the third “indicative” option that Federal Rule of Appellate Procedure 12.1 will come into play.

First, both Federal Rule of Appellate Procedure 12.1(a) and Federal Rule of Civil Procedure 62.1(b) will require that the movant in the district court “promptly” notify the circuit clerk of the district court’s indicative ruling. While “promptly” is not defined in either of the rules, it would not be unreasonable to expect the movant to communicate with the circuit clerk within 10 calendar days of its receipt of the district court’s indicative ruling.

Second, Federal Rule of Appellate Procedure 12.1(b) will permit (but will not require) the court of appeals to remand the case for further proceedings. In the event of a remand, the court of appeals automatically will retain jurisdiction over the appeal unless it expressly dismisses the appeal in its remand order. The Advisory Committee notes accompanying Federal Rule of Appellate Procedure 12.1 strongly suggest that the court of appeals should retain jurisdiction to avoid any possibility of a subsequent finding that the initial appeal somehow was abandoned in the course of the remand.

Assuming the matter has been remanded, Federal Rule of Civil Procedure 62.1(c) then authorizes the district court to decide the pending motion.

Finally, Federal Rule of Appellate Procedure 12.1(b) will require all the parties (as opposed to only the movant) to again “promptly” notify the circuit clerk once the district court has decided the motion. “Promptly” is not defined in this instance either, but it would likely benefit all parties to communicate with the circuit clerk in an expeditious manner following their receipt of an order from the district court.

The Advisory Committee notes further acknowledge the authority of the circuit courts to promulgate local rules governing both the form of the required notifications to the clerk and the form of the district court’s “indicative” ruling itself under Federal Rule of Appellate Procedure 47(a)(1). Those notes also acknowledge the “likelihood” that a separate notice of appeal will be required in the event that either party intends to challenge the district court’s disposition of the Rule 60(b) motion on appeal.

Other than a change in current Ninth Circuit practice, these rules likely will have little impact on the current practice in the circuit courts. Nevertheless, these rules undoubtedly will offer comfort to litigants who, until now, have had to rely on circuit case law rather than the Federal Rules of Appellate Procedure and the Federal Rules of Civil Procedure in ascertaining the competing jurisdiction of the circuit and district courts.

Key words: federal rules of civil procedure, federal rules of appellate procedure, rule 60(b), indicative rulings, appeals, circuit case law

Josh Jacobson is a member of the Law Office of Josh Jacobson, P.A., in Minneapolis.


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