Your Probability of Success Drops To Zero If You Miss Your Appeal Deadline

I’m sometimes surprised by the number of appeals that are dismissed simply because the appellant filed its notice of appeal too late. But then I remember that I was a law clerk for a federal appellate judge and spent a year checking – for every case I was assigned – whether the notice of appeal had been filed on time.

For civil cases in federal court, filing a notice of appeal after your applicable deadline – the deadline that is set within the confines of the rules – means the appellate court doesn’t have jurisdiction over the appeal, and it will be dismissed. You’re done – outta there. Need proof? Read Bowles v. Russell, 551 U.S. 205 (2007).

The general rule in federal courts is that you have 30 days “after entry of the judgment or order appealed from” to appeal; 60 if the United States, a United States agency, or a United States officer or employee sued in his official capacity is a party. Fed. R. App. P. 4(a)(1). This seems simple enough, but it’s made a whole lot more complicated by the operation of other rules and principles. The best way to deal with the situation is to use a checklist, or to have a list of questions to go through to figure out your deadline. Here’s a list that I’ve used for cases involving district court orders and judgments:

  • Is the order a “final order” – that is, is there anything that still needs to be decided? Have all claims against all parties been disposed of? [If the adverse decision is not a final order, the clock hasn’t started running yet.]
  • Are attorney fees and costs part of the damages being sought, or are they separate from those damages? [If separate, not having a decision on those fees and costs does not stop the clock from running.]
  • Is Federal Rule of Civil Procedure 58 applicable, and if so, does the order comply with that Rule? What does case law in the circuit say about what complies, and what does not comply, with Rule 58? [If Rule 58 applies, but the trial court’s order doesn’t comply with that Rule, the clock doesn’t start running for 150 days. Fed. R. App. P. 4(a)(7).]
  • Has anyone filed a motion under any of the rules in Fed. R. App. P. 4(a)(4)(A)? If so, has that motion been timely filed? [Generally, the motion will stop the clock from running only if it was timely filed. If, for example, a Rule 59 motion has been filed seeking a new trial, but it was filed outside the time limit for that Rule (28 days) the motion will not stop the clock from running.] Has there been a decision on the motion(s) that were timely filed? [The clock starts running on the date of entry of the order disposing of the motion. If more than one motion has been timely filed, the clock starts when the last motion is decided.]
  • If I have missed my deadline, can I still make use of Fed. R. App. P. 4(a)(5)? [It’s not a good idea to look at Rule 4(a)(5) as a safety net – showing “excusable neglect or good cause” in this context is not easy.]

You may also want to check out the checklists on the Eleventh Circuit’s website (under Forms/Documents). A number of state courts have jurisdictional checklists too.

One way to get a sense of how the Court of Appeals for the circuit you’re in handles cases that involve more than one rule operating at the same time (e.g., Rule 58 and Rule 59) is to read unpublished decisions. Often, they show how applicable deadlines can be missed (including how certain events can cause confusion); sometimes they also explain in detail how the rules apply to the particular facts at hand. See, for example, Washington v. Showalter, No. 10-3513 (3rd Cir., August 27, 2012)  and Cumberland Mutual Fire Ins. Co. v. Express Prods., Inc., No. 11-3919 (3rd Cir., June 24, 2013).

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