Post-judgment Day: a Guide to Filing Timely Notices of Appeal in Federal Court
| Publication year | 2009 |
| Pages | 24 |
By Matt Corbin and Casey Tourtillott
I. Introduction
In law, as in life, timing is everything. Kansas practitioners in the federal litigation world often operate at a frenetic pace to preserve their clients' right to trial by a judge or jury: When does the statute of limitations run? What remedies must be exhausted before filing suit? Which discovery deadline passes this week? When the day of trial finally arrives, a litigator is likely to have survived a gauntlet of these familiar "timing tests."
But what about post-judgment day? For the losing side, the most pressing issue becomes whether it is in the client's best interest to pursue an appeal. An attorney must advise the client about a myriad of factors, such as the likelihood of success on the merits, the cost of prosecuting the appeal, and the client's need for closure or vindication. Although counseling the client on these matters is key, the lawyer must also remain mindful of the next chapter of "timing tests" affecting the client's right to appeal to the Tenth Circuit and exercise of available post-judgment remedies before the district court.
The purpose of this article is to steer Kansas civil practitioners through the labyrinth of deadlines that surface on postjudgment day in federal court. When does the clock for filing a notice of appeal start? What extensions of time are available for filing a notice of appeal or post-judgment motion? Which post-judgment motions toll the time for filing a notice of appeal? These are just a few examples of issues covered in this article that lawyers needs to address when representing their clients on post-judgment day.
II. The Ins and Outs of Filing a Timely Notice of Appeal
A. What is the general rule?
The general rule is this: If a party wants to appeal a decision of the district court, he must file his notice of appeal within 30 days after the entry of judgment or the order he wants to appeal.[1] The party files this notice with the district court, not the appellate court.[2] If a case involves the United States or if one of its officers or agencies is a party, there is twice as much time—the deadline is 60 days instead of 30 days.[3]
B. When does the clock begin?
The date used to calculate when the time to appeal begins to run depends on how the district court clerk enters judgment pursuant to Federal Rules of Civil Procedure (Fed. R. Civ. P./Rule) 58. Rule 58 requires the clerk to enter judgment on a separate document except for orders disposing of qualifying motions under Rules 50(b), 52(b), 54, 59, or 60.[4]Where Rule 58 requires a separate document, the date of judgment is when the judgment is entered in the civil docket pursuant to Rule 79(a) and either it is set forth on a separate document or 150 days have run from entry, whichever is sooner.[5] Where Rule 58 does not require a separate document, the date of judgment is the date the judgment is entered in the civil docket.[6] Note that litigants must look to the docket entry date of the judgment, not the date the judge signed the underlying order. Beginning on this date, utilize the guidelines for calculating time found in Federal Rules of Appellate Procedure (Fed. R. App. P.) 26, which generally mirror those in Fed. R. Civ. P. 6.[7]
C. How about jumping the gun?
No need to worry if a party files the notice of appeal before the district court enters judgment or an order formalizing a decision the court previously announced. Fed. R. App. P. 4(a)(2) provides that the notice of appeal will be "treated as filed on the date of and after the entry" of judgment or the order sought to be appealed.[8] Likewise, if a party files a notice of appeal after entry of judgment, but before the district court rules on a post-judgment motion listed in Fed. R. App. P. 4(a)(4)(A), then the notice becomes effective "when the order disposing of the last such remaining motion is entered."[9]
D. Are extensions of time available?
On the opposite end of the spectrum, suppose a litigant finds herself in a situation where the time for appeal has run. If she is within 30 days of the missed deadline, she may not be entirely without recourse: Fed. R. App. P. 4(a)(5) authorizes a district court to grant an extension of time upon a showing of excusable neglect or good cause.[10] But the court will not grant greater than either (1) 30 days after expiration of the original appeal time or (2) 10 days after the date of the order granting the motion.[11]
An extension for excusable neglect is reserved for extraordinary circumstances,[12] not for a lawyer's mistake of law, lack of familiarity with the rules of procedure, or a mere calendaring error.[13] Relevant considerations for the district court include: (1) prejudice to the nonmovant, (2) the length of the delay and its potential impact on efficient judicial proceedings, (3) the reason for the delay, and (4) whether the movant acted in good faith.[14] The third factor is viewed as the most significant.[15] The alternative justification of good cause under Fed. R. App. P. 4(a)(5) is narrower, limited to situations where the movant's tardiness results entirely from forces beyond the movant's control.[16] In such situations there is no fault—excusable or otherwise—to assess.[17]
The request for an extension must be filed with the district court; the Tenth Circuit has no authority to enlarge the time for filing a notice of appeal.[18] And while the denial of a motion under Fed. R. App. P. 4(a)(5) is an appealable final judgment, it is subject to the deferential abuse of discretion standard.[19]
In even more limited circumstances, a litigant may be able to persuade the district court to reopen the time to file an appeal under Fed. R. App. P. 4(a)(6). This relief is only available if: (1) the court clerk did not give the party proper notice of the judgment or order within 21 days of entry, (2) the movant files a motion to reopen the time for appeal within (a) 180 days of entry of the judgment or order or (b) seven days of receiving notice—whichever is earlier, and (3) no party will suffer prejudice.[20] Where the court grants relief, the litigant has only 14 days in which to file his appeal.[21]
Some district courts have tried re-entering judgment for the purpose of extending the time to appeal. The Tenth Circuit has rejected this practice and held that the district court may not use Fed. R. Civ. P. 60(b)(6) to justify re-entering judgment in order to allow a party to file a timely appeal.[22]
Given the high threshold for justifying an extension of time, a lawyer should consult with the client, review the record, and prepare the notice of appeal soon after entry of the final judgment. Waiting until the deadline for filing a notice of appeal will only increase the risk that an unforeseen event might jeopardize the client's right to appeal.
E. Have mercy, pretty please?
If a litigant files the notice of appeal late, it won't do her any good to plead with the appellate court to hear her case in the interest of justice. The U.S. Supreme Court recently confirmed that the filing deadlines are mandatory and jurisdictional, and that the lower courts lack the authority to create equitable exceptions.[23] This is true even where a district court erroneously grants a litigant an extension of time in violation of the Federal Rules of Civil Procedure[24] or otherwise induces a party to file an untimely notice of appeal based upon its affirmative statements. The bottom line: A federal practitioner must be familiar with the time limits set forth in the rules of appellate and civil procedure, including the availability of extensions of time.[25] Reliance on a judicial officer's assurances[26]could result in a phone call to the firm's malpractice carrier.[27]
F. Don't forget the contents of the notice!
Even if a lawyer timely files a document purporting to be a notice of appeal, she needs to make sure that it contains certain information to be valid. She must identify (1) the specific party taking the appeal, (2) the order being appealed, and (3) the name of the court to which the appeal is taken.[28] The purpose of this requirement is to give all parties and the court notice of one's intent to seek appellate review.
In a few situations, the Tenth Circuit has recognized the "functional equivalent" of a notice of appeal, but it has still required that these three items be included in the document in order to qualify as a nonprejudicially misnamed notice of appeal.[29] For example, the Tenth Circuit has found the following motions could be or were "functional equivalents" of a notice of appeal: a combined notice of appeal and motion for reconsideration,[30] a motion to certify,[31] and a motion for a certificate of probable cause and for a certificate of appealability.[32] Bear in mind that this list is not exhaustive and that the pleadings considered often were drafted by pro se litigants.
If a party designates the final judgment as the order being appealed, such designation is sufficient to support the review of all earlier interlocutory orders.[33] She will not need to amend this notice of appeal later if the district court rules unfavorably on a "tolling motion," which is explained below. But she will need to amend her notice or file a separate notice of appeal if the district court rules unfavorably on a "nontolling motion."
III. The Ins and Outs of Exercising Post-Judgment Remedies
A. Which post-judgment motions toll?
Fed. R. App. P 4(a)(4)(A) contemplates six motions that will "toll"[34] the time to appeal until the court has ruled on the motions: (1) a Rule 50(b) motion for judgment as a matter of law, (2) a motion to amend findings of fact pursuant to Rule 52(b), (3) a...
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