November 18, 2010
Time Limits for Filing a Notice of Appeal Are Mandatory and Jurisdictional—Really
By Lawrence A. Kasten
Most appellate practitioners are familiar with the rigid time limits for filing notices of appeal in federal court and the harsh consequences for missing appeal deadlines. The Supreme Court has held that statutory appellate time limits are no different from subject-matter restrictions on the power of federal courts to hear cases and thus are “mandatory and jurisdictional.” More recently, the Court has made clear that the burden of ascertaining and complying with notice-of-appeal time limits rests squarely and solely on the shoulders of the appellant and its counsel. Even where a party is misled by a court about the time to appeal, or has relied on a published opinion establishing the time for appeal that is later overturned, no relief from an out-of-time appeal will be given.
In light of these inflexible rules, courts of appeals have considered whether they have discretion to interpret other rules of procedure, or their own circuit rules, as warranting exceptions from appellate time limits or providing a basis for nunc pro tunc extensions. This article discusses recent Supreme Court law and a recent case from the Ninth Circuit, United States ex rel. Haight v. Catholic Healthcare West,1 which held that courts’ discretion in this area is exceptionally narrow.
The Jurisdictional Nature of Federal Appellate Deadlines
The time limits for filing a notice of appeal in federal court are set forth in Federal Rule of Appellate Procedure (FRAP) 4.2 Several of the requirements in Rule 4 are based on statutes. For example, Rule 4(a)(1)’s requirement that a notice of appeal must be filed no more than 30 days after entry of a judgment or appealable order in a civil case—or within 60 days if the United States is a party—derives from 28 U.S.C. § 2107(a) and (b). Similarly, Rule 4(a)(5)’s procedure permitting a district court, within 30 days after the time for appeal has expired, to grant an extension for “excusable neglect” or good cause is authorized by 28 U.S.C. § 2107(c). Likewise, the rule permitting a district court to reopen the time for appeal in certain circumstances in which the appellant did not receive notice of the entry of judgment, Rule 4(a)(6), is echoed by 28 U.S.C. § 2107(c).
That these provisions in Rule 4 have a statutory underpinning implicates a fundamental principle of federal jurisdiction. Under Article III of the Constitution, lower federal courts are courts of limited jurisdiction and have only those powers vested in them by Congress.3 The Supreme Court has held that Congress’s power to decide “whether federal courts can hear cases at all” necessarily implies the power to determine “under what conditions” federal courts may hear cases, including authority to set mandatory time limits for appeals.4
Thus, in contrast to some filing periods in the federal rules, which may be extended by courts pursuant to their inherent discretion to manage cases, the time limits established by Rule 4 and section 2107 are “mandatory and jurisdictional.”5 Among other things, this means that courts have no discretion to extend these time limits, except as expressly and exactly allowed by statute or applicable federal rule.6 Moreover, the jurisdictional nature of appellate time limits means that whenever the Supreme Court issues a new opinion construing appellate deadlines, its ruling has retroactive effect, even with respect to pending cases on direct appeal previously thought to have been timely under prior law.7
The Bowles and Eisenstein Decisions
In Bowles v. Russell,8 the appellant failed to file a notice of appeal from a final judgment within 30 days, as required by Rule 4(a)(1) and section 2107(a). Thereafter, however, he filed a timely motion under Rule 4(a)(6) and section 2107(c), which give district courts discretion to reopen the time for appeal for a period of 14 days if the appellant did not receive notice of the judgment and certain other conditions are present. The district court granted the motion but, in the order, gave Bowles until “February 27” to file the notice of appeal. That was a mistake. February 27 was 17, not 14, days after the date of the court’s order. After receiving the order, Bowles filed his notice of appeal on February 26—16 days after the district court’s order. The court of appeals rejected the appeal as untimely. The Supreme Court granted review, and Bowles argued, among other things, that he had been justified in relying on the district court’s order. The Supreme Court rejected the argument as immaterial. It held that the 14-day window is established by statute and thus is a jurisdictional limitation on the power of courts of appeals to hear cases.9 The Court rejected Bowles’s argument for an “equitable exception,” finding that whether Bowles had been justifiably misled by the trial court could not be taken into account, because the court lacked any power on any grounds to extend the 14-day period established by Congress.10
In 2009, in United States ex rel. Eisenstein v. City of New York,11 the Court reaffirmed these principles in a different context. Eisenstein addressed the time limit for appeals in False Claims Act cases. That act permits non-government entities (known as relators) to file actions for fraud on behalf of and in the name of the United States. 31 U.S.C. § 3730(b). The government may, within 60 days, intervene and assume responsibility for the action. If the government does not intervene, the relator may proceed on its own in the United States’ name, and may share in any monetary recovery. Id. § 3730 (a–d). The Court granted certiorari to resolve a circuit split on the question of whether a relator must file a notice of appeal from an adverse judgment within 30 days under Rule 4(a)(1)(A) or instead may use the 60-day appeal period of Rule 4(a)(1)(B), which applies “[w]hen the United States or its officer or agency is a party.”
The Court held that if the United States declines to intervene in a False Claims Act case, it is not a “party” within the meaning of Rule 4 and section 2107, and the relator therefore must appeal within 30 days. Importantly, the Court expressly rejected the petitioner’s argument that this would create a “trap for the unwary” for relators in pending appeals in those circuits that had adopted a 60-day limit. In a footnote, the Court held that the 30-day requirement is jurisdictional and that the Court, therefore, is without power to take into account “the possibility of harsh consequences” to appellants in pending cases.12
The Haight Decision
Haight was one of the very cases anticipated by the Supreme Court in its footnote in Eisenstein. Prior to Eisenstein, the Ninth Circuit had, in United States ex rel. Haycock v. Hughes Aircraft Co.,13 held that a relator may use the 60-day period for appeal in a False Claims Act case, even if the United States had declined to intervene. In other words, the Ninth Circuit was on the side of the circuit split rejected by the Supreme Court in Eisenstein. Relying on Haycock, the relator in Haight filed a notice of appeal 51 days after entry of an adverse judgment in the district court. While the appeal was pending, the Supreme Court issued its opinion in Eisenstein and the threshold issue for the Ninth Circuit, accordingly, became whether it was required to dismiss the appeal for lack of jurisdiction in light of Eisenstein.
The court held the appeal was untimely. Although appellants argued they had relied on then-extant Ninth Circuit authority in determining the time for appeal, the court noted, “the Supreme Court has instructed us that concerns of equity must give way before the ‘rigorous rules’ of statutory jurisdiction.”14 And since pronouncements from the Supreme Court about appellate jurisdiction can never be applied only prospectively,15 the court concluded it was obligated to give Eisenstein retroactive effect even though it had been decided after the appellants filed the notice of appeal.16
The court next considered whether there might be some other basis in the appellate rules to grant appellants a retroactive extension of the time for appeal, which would allow the court to treat as timely a notice of appeal filed 51 days after final judgment. It rejected all of the arguments offered by appellants.
First, the court considered whether a 21-day extension could be granted under Rule 4(a)(5), which permits extensions of up to 30 days for “excusable neglect” or good cause. The court held this rule did not apply on two grounds: (1) By its plain terms, Rule 4(a)(5) only permits a “district court,” and not a court of appeals, to grant an extension; and (2) in any event, under the rule’s plain language and section 2107(c), a motion for extension must be brought “no later than 30 days after” the expiration of the time for appeal.17 The appellants had not brought a motion for extension until many months later.
The court next judged whether FRAP 26(b) or FRAP 2 provided authority to grant a retroactive extension of the time to appeal. Rule 26(b) authorizes a court of appeals to “extend the time prescribed by these rules or by its order to perform any act” for good cause. The rule also, however, goes on to prohibit a court from extending the time for “a notice of appeal (except as authorized in Rule 4).” Since appellants had not filed a motion for extension within 30 days, as required by Rule 4, the court held Rule 26(b) afforded no relief.18 Rule 2 similarly permits a court of appeals (again for good cause) to “suspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b)” (emphasis added). The court held that the emphasized language precluded appellants from relying on Rule 2, because Rule 26(b) prohibits extensions beyond those allowed by Rule 4 itself.19 Moreover, because the requirement that a motion for extension must be filed within 30 days appears not only in Rule 4 but also in section 2107(c), the court held that, under Bowles, the requirement of filing a motion within 30 days was a jurisdictional prerequisite that “could not be waived under Rule 2, even if Rule 2 purported to authorize such action.”20
Finally, the court considered the appellants’ argument that the court could simply construe the late notice of appeal as a timely motion for an extension under Rule 4(a)(5). The court noted that even if it did so, it would be powerless to grant the motion, because only a district court can grant such a motion.21 Moreover, the court found it was constrained by prior Ninth Circuit precedent holding that a late notice of appeal may not be construed as a motion for extension.22 Every other circuit that has considered the same question has reached a similar result.23
Bowles and Eisenstein establish that an appellant and its counsel are solely responsible for calculating and docketing appellate time limits. They may not rely on dates set forth in orders or even rely with confidence on existing opinions about the time for appeal, because those opinions are at risk of being overturned, and any subsequent decision will have retroactive effect. Equitable exceptions are not permitted, and assuming (as is likely) that other courts of appeals follow an approach similar to that of the Ninth Circuit in Haight, those courts will construe judicial discretion to grant extensions very narrowly and will demand precise compliance with applicable rules and statutes.
Busy lawyers tend to file documents on the last permitted filing date, and this practice is reinforced by docketing or calendaring software that issues reminders based on the final due date. This practice is not advisable for appeals. A notice of appeal or cross-appeal is usually a one-sentence document that is easy to prepare and easier to file. Careful appellate practitioners should consider filing at the earliest opportunity after the decision to appeal has been made. If more than one arguable time limit is suggested by a rule, statute or decision (even in another circuit), counsel should consider always assuming the shortest period will apply. If an appellate time limit has been missed, but there is still time to move for an extension or to reopen under Rule 4(a)(5) or (6), counsel should comply with the rules precisely and be sure to file in the correct court.
Lawrence A. Kasten is a partner at Lewis and Roca LLP in Phoenix, Arizona, and was one of the lawyers for the appellees in United States ex rel. Haight v. Catholic Healthcare West.
- 602 F.3d 949 (9th Cir. 2010).
- The time limits for filing a permissive appeal petition under FRAP 5 are outside the scope of this article.
- E.g., Stevenson v. Fain, 195 U.S. 165, 167 (1904); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239–40 (1937).
- Bowles v. Russell, 551 U.S. 205, 212–13 (2007); see United States v. Curry, 47 U.S. (6 How.) 106, 113 (1848).
- Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978) (internal quotation omitted).
- For example, Rule 4(a)(4) provides that certain timely, post-judgment motions filed in the district court (e.g., a motion for new trial or to alter or amend the judgment) will suspend the time period for filing a notice of appeal. An appellant must comply with precision. If such a motion is untimely, it will be deemed not to have suspended the time for appeal and the court of appeals will lack jurisdiction to consider the case (assuming Rule 4's 30- or 60-day period from entry of judgment has expired). See Browder, 434 U.S. at 264–65.
- See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379 (1981); see generally Harper v. Va. Dep't of Taxation, 509 U.S. 86, 97 (1993).
- 551 U.S. 205 (2007).
- Id. at 208–13.
- Id. at 213–15.
- ___ U.S. ___, 129 S. Ct. 2230 (2009).
- Id. at 2236 n.4.
- 98 F.3d 1100, 1102 (9th Cir. 1996).
- Haight, 602 F.3d at 953 (quoting Bowles, 551 U.S. at 214).
- See supra note 8, and accompanying text.
- 602 F.3d at 953.
- Id. at 954.
- Id. at 955.
- Id. at 955–56.
- Id. (citing Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 (1988)).
- Id. at 956.
- Id. (citing Pettibone v. Cupp, 666 F.2d 333, 335 (9th Cir. 1981).
- Wyzik v. Emp. Benefit Plan of Crane Co., 663 F.2d 348, 348 (1st Cir. 1981); Campos v. Le Fevre, 825 F.2d 671, 675–76 (2d Cir. 1987); Herman v. Guardian Life Ins. Co. of Am., 762 F.2d 288, 289–90 (3d Cir. 1985); Myers v. Stephenson, 748 F.2d 202, 204 (4th Cir. 1984); Bond v. W. Auto Supply Co., 654 F.2d 302, 303–04 (5th Cir. 1981); Pryor v. Marshall, 711 F.2d 63, 64–65 (6th Cir. 1983); United States ex rel. Leonard v. O'Leary, 788 F.2d 1238, 1239–40 (7th Cir. 1986); Campbell v. White, 721 F.2d 644, 645–46 (8th Cir. 1983); Mayfield v. United States Parole Comm'n, 647 F.2d 1053, 1055 (10th Cir. 1981); Brooks v. Britton, 669 F.2d 665, 667 (11th Cir. 1982).