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Appellate Litigation

Calculating the Deadline for a Notice of Appeal in Federal Court

August 31, 2020

Federal appellate courts review judgments and orders of U.S. district courts and administrative courts. The 13 Circuit Courts of Appeal are the intermediate courts between trial courts and the U.S. Supreme Court. Filing an appeal requires meeting strict deadlines, starting with filing a notice of appeal. The Federal Rules of Appellate Procedure (FRAP) set out the deadlines and other procedures for filing an appeal.

Federal law identifies two types of appeals, with two sets of procedures and deadlines for filing. An appeal of a final judgment is known as an “appeal as of right.” In order to appeal a judgment or order that is not final according to the Federal Rules of Civil Procedure (FRCP), the would-be appellant must obtain permission from the appellate court. This is known as an “appeal by permission.”

What Is a Final Judgment?

In a civil case filed in federal court, a party can file an appeal as of right after the entry of a final judgment under FRAP 4. The FRCP does not exactly define the term “final judgment,” but it explains when a judgment is not final.

FCRP 54(b) states that a judgment or order is not final when it “adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties” in a lawsuit. In other words, if any part of the lawsuit is not resolved after the entry of the order or judgment, that order or judgment is not “final.” This is also known as an interlocutory order. FRAP 5 establishes the procedure for requesting permission from the appellate court to file an interlocutory appeal.

How Long Does a Party Have to File?

A party to a civil lawsuit usually has 30 days from the entry of the judgment or order to file a notice of appeal under FRAP 4, or a petition for permission to appeal under FRAP 5.

Appeals in Cases Involving the United States

The time period is extended to 60 days if any of the following is a party to the lawsuit:

  • The United States government;
  • An agency of the U.S. government;
  • A current federal officer or employee who has been sued in their official capacity; or
  • A current or former federal officer or employee who was not sued in an official capacity, but whose alleged conduct “occurr[ed] in connection with duties performed on the United States' behalf.”

Appeals by Multiple Parties

If one party to a lawsuit files a notice of appeal within the applicable time limit, another party to the lawsuit can file a notice of appeal within the later of:

  • Fourteen days from the date when the first notice was filed; or
  • The time limit described above.

For example, if one party to a lawsuit with a 30-day deadline files a notice of appeal 29 days after the entry of a judgment, other parties to the lawsuit can file a notice of appeal up to 43 days after the entry of the judgment.

Extension of Time to Appeal

A party may file a motion for extension of time to appeal with the district court. This must be filed within 30 days after the deadline for filing a notice of appeal. The district court can grant an extension of time only if the moving party can show “excusable neglect or good cause.”

Reopening Time to Appeal

A district court can reopen the time period for filing an appeal upon the motion of a party. The moving party must show that:

  • They did not receive notice of the judgment that they want to appeal within 21 days of its entry; and
  • They have filed the motion within the earlier of 14 days after receiving notice of the judgment or 180 days after the entry of the judgment.

The court must also find that “no party would be prejudiced” by reopening the time to appeal.

When Does the Clock Start Ticking?

As mentioned before, FRAP 4 states that the deadline clock begins on the date when the court enters a final order or judgment. It also identifies exceptions that apply when a party files certain motions after the entry of the judgment. These include the following motions, assuming that they are filed in a timely manner:

  • Motion for judgment as a matter of law, filed after entry of judgment under FRCP 50(b);
  • Motion for amended or additional findings under FRCP 52(b);
  • Motion for attorney’s fees under FRCP 54 in certain situations;
  • Motion for a new trial, or to alter or amend the judgment under FCRP 59; or
  • Motion for relief under FRCP 60.

The 30- to 60-day deadline clock begins to run on the date when the court enters an order “disposing of the last such remaining motion.”

How Are Days Counted?

FRAP 26 provides further instructions for calculating the deadline. The “day of the event that triggers the period” is not included, so if a court enters a judgment on a Monday, the first day of the 30-day period is the next day, Tuesday.

The time period includes weekends and court holidays, unless the last day of the period falls on a weekend or holiday. In that case, the final day of the period would be on the next day that is not a weekend or holiday. If the 30th day of the period is on a Saturday, the following Monday would be the last day to file a notice of appeal. If the 30th day is on Tuesday, July 4, a national holiday, the final day would be on Wednesday, July 5.

What Must Be Included in a Notice of Appeal?

FRAP 3 states that a notice of appeal must:

  1. Provide the names of all the parties who are filing the appeal;
  2. Identify the order or judgment that they are appealing; and
  3. Specify the court to which they are appealing.

Federal appellate courts may not dismiss an appeal “for informality of form or title of the notice of appeal.”

In an appeal by permission, FRAP 5 identifies the elements that must be included in a petition to the appellate court. These include the question on appeal, the relief sought by the appellant, a statement of relevant facts, and “the reasons why the appeal should be allowed and is authorized by a statute or rule.” If the court grants permission to appeal, the appellant does not need to file a notice of appeal under FRAP 3. The order granting permission to appeal counts as the notice of appeal.

Where Is a Notice of Appeal Filed?

The appellant must file the notice of appeal with the clerk of the district court that entered the judgment or order that they are appealing. FRAP 3(d) directs the district court clerk to serve copies of the notice on all parties, and to send copies of the notice of appeal and all docket entries to the appellate court clerk.

Who Must Receive a Copy of the Notice of Appeal?

As noted above, serving copies of the notice of appeal is the district court clerk’s responsibility under FRAP 3(d). If a party to a lawsuit files a motion for permission to appeal under FRAP 5, however, they must serve copies on all the parties to the lawsuit.

Can You Appeal a Trial Court Order on Class Certification?

Yes, in class action cases, Federal Rule of Civil Prcoedure 23(f) governs appeals of class certification orders. You can read more about appealing class certification orders through FRCP 23(f) here.

Gelboim v. Bank of America Corp.

In Gelboim v. Bank of America Corp, the US Supreme Court held that cases “consolidated for MDL pretrial proceedings ordinarily retain their separate identities, so an order disposing of one of the discrete cases in its entirety should qualify under Section 1291 as an appealable final decision.” You can read more about Gelboim v. Bank of America Corp. at the Antitrust Attorney Blog.