UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
NATIONAL CABLE TELEVISION ASSOCIATION, INC., an
incorporated association CABLEVISION SYSTEMS DEVELOPMENT
Nos. 86-5552, 86-5553, 86-5554, 86-5597, 86-5635, 86-5636, 86-5637 1987.CDC.1
Appeals from the United States District Court for the District of Columbia, Civil Action Nos. 83-01655, 83-02785 and 84-03097.
Ruth B. Ginsburg and Williams, Circuit Judges, and McGowan, Senior Circuit Judge. On Motion to Dismiss.
Rule 4(a) (1) of the Federal Rules of Appellate Procedure generally allows 30 days after the entry of judgment in the district court for the filing of a notice of appeal; if the United States or an officer or agency thereof is a party, however, the notice of appeal filing time for any party to the action is enlarged to 60 days. The motion before us concerns the choice between these time limitations in a fully consolidated proceeding in which one or more of the actions involves no government party, and one or more includes the United States or an officer or agency thereof. We hold that in actions thus consolidated for adjudication, the longer, 60-day limit applies to all parties in each of the actions. I.
Cablevision Company ("Cablevision") brought two separate actions against the Motion Picture Association of America, Inc. and some of its member companies ("copyright owners"). Cablevision Co. v. Motion Picture Association of America, Inc., C.A. No. 83-1655 (D.D.C. filed June 8, 1983) (" Cablevision I"); Cablevision Co. v. Motion Picture Association of America, Inc., C.A. No. 84-3097 (D.D.C. filed Oct. 4, 1984) (" Cablevision II "). In addition, the National Cable Television Association filed an action against the same copyright owners. National Cable Television Association, Inc. v. Columbia Pictures Industries, Inc., C.A. No. 83-2785 (D.D.C. filed Sept. 21, 1983) . All three actions concern the proper interpretation of Section 111 of the Copyright Act of 1976, 17 U.S.C. § 111 (1982), which governs compulsory licenses for secondary transmissions by cable systems. Cablevision, a member of NCTA, was granted plaintiff-intervenor status in NCTA. The district court, on its own motion, ordered that NCTA join the Copyright Office and the Register of Copyrights as necessary party defendants in NCTA. The Copyright Office and the Register of Copyrights were not parties to the two actions brought by Cablevision.
The district court consolidated the three cases "for all purposes," and issued a final order disposing of all three. 641 F. Supp. 1154. Cablevision, in all three cases, filed notices of appeal 60 days after entry of the final order. The copyright owners moved to dismiss Cablevision's appeal in the two cases to which the Copyright Office and its Register are not parties. They argue that Cablevision had only 30 days after entry of the final order to notice its appeal in those cases. We reject the copyright owners' contention. II.
Rule 4(a) (1) of the Federal Rules of Appellate Procedure provides in pertinent part:
In a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days after such entry.
Neither Rule, nor advisory committee note, nor published court of appeals opinion answers the question before us: which limit -- 60 days or 30 days -- applies to a case between private parties that is consolidated for all purposes with an action involving a government party? We think it most sensible, fair, and efficient to apply a single time limit to the filing of appeal notices in such consolidations, and to hold open to all parties the 60-day prescription available to the government and those engaged in litigation with the government. Common sense suggests that if cases are so closely related as to be suitable for consolidation, *fn1 it is improbable that the appeal of any one case can practicably go forward until time for appeal in all the cases has passed (or until all parties with standing to appeal have done so).
The copyright owners argue that Johnson v. Manhattan Railway Co., 289 U.S. 479, 77 L. Ed. 1331, 53 S. Ct. 721 (1933), precludes this approach. Johnson held that a court could not extinguish applicable limitations on collateral attack by consolidating the first suit (in which the order under attack had been issued) with a ...