The Notice of Appeal and the Deadline That Cannot Be Extended
The document that begins an appeal is short and rarely disputed. The deadline attached to it is neither. It is measured from an event the parties sometimes misidentify, and the court of appeals has no power to forgive a late filing.
The rule in short
Federal Rule of Appellate Procedure 3 requires an appeal as of right to be taken by filing a notice of appeal with the district clerk, specifying the party appealing, designating the judgment or order appealed from, and naming the court to which the appeal is taken. Rule 4 fixes the time: thirty days after entry in an ordinary civil case, sixty days where the United States or a federal officer or agency is a party, and fourteen days for a criminal defendant.
An appeal as of right begins with a single document. Federal Rule of Appellate Procedure 3 provides that it is taken by filing a notice of appeal with the district clerk within the time allowed by Rule 4. Nothing else is required to confer jurisdiction on the court of appeals, and nothing else can substitute for it.
The three things a notice has to say
Rule 3(c) requires the notice to specify the party or parties taking the appeal, to designate the judgment, or the appealable order, or part of it, being appealed, and to name the court to which the appeal is taken. The rule directs that the notice encompasses the final judgment even where it designates only an order that merged into that judgment.
Naming parties has caused difficulty in cases with many appellants. The rule permits a description such as all plaintiffs or all defendants, and an attorney representing more than one party may describe those parties collectively. What the rule does not permit is silence: an unnamed party who is not covered by a collective description is not an appellant, and the court of appeals has no jurisdiction over that party's appeal.
The filing goes to the district clerk. A notice mistakenly filed in the court of appeals is noted by the circuit clerk and sent to the district clerk, and it is treated as filed on the date the circuit clerk received it. The district clerk then serves notice on the other parties, but failure to serve does not affect the validity of the appeal.
When the period runs and from what
In a civil case the notice must be filed within thirty days after entry of the judgment or order appealed from. Where the United States, a United States agency, or a United States officer or employee sued in an official capacity is a party, the period is sixty days and it applies to every party in the case, not only to the government.
In a criminal case a defendant's notice is due within fourteen days after entry of the judgment or the order being appealed, or after the government files its notice, whichever is later. A government appeal, where authorized by statute, is due within thirty days. Entry means entry on the civil or criminal docket in accordance with the applicable rules, which can fall days after the order was signed.
Rule 26(b) states plainly that the court may not extend the time to file a notice of appeal, except as authorized by Rule 4. In a civil case the deadline is set by statute as well as by rule, and courts have treated it as jurisdictional rather than as a claim-processing rule that an opponent can waive. The only relief available is the extension and reopening machinery inside Rule 4 itself, and both must be sought in the district court.
Postjudgment motions and their effect
Rule 4(a)(4) lists motions that, if filed within the time allowed by the civil rules, cause the appeal period to run from entry of the order disposing of the last such motion remaining. They include motions for judgment as a matter of law, to amend or make additional findings, to alter or amend the judgment, for a new trial, and for relief from a judgment where filed within the shorter period.
Two points cause trouble. Timeliness of the underlying motion is a condition; an untimely motion has no tolling effect however it is captioned. And a notice of appeal filed before the motions are resolved becomes effective only when the last one is decided, which means a party wanting to appeal a ruling on the motion must file an amended notice.
| Situation | Period to file | Measured from | Relief if missed |
|---|---|---|---|
| Ordinary civil case | Thirty days | Entry of the judgment or order | Extension or reopening under Rule 4(a) |
| Civil case with a federal party | Sixty days | Entry of the judgment or order | Extension or reopening under Rule 4(a) |
| Criminal defendant | Fourteen days | Entry of judgment or the government's notice | Extension for excusable neglect or good cause |
| After a tolling motion | The applicable period | Entry of the order disposing of the last motion | Same as the underlying category |
| Inmate filing | The applicable period | Deposit in the institution's mail system | Declaration of timely deposit |
Extension and reopening
Rule 4(a)(5) allows the district court to extend the time on a motion filed no later than thirty days after the ordinary period expires, where the party shows excusable neglect or good cause. Good cause addresses circumstances outside the party's control; excusable neglect addresses fault that a court may nonetheless forgive after weighing the delay, the reason, the prejudice and the movant's good faith.
Rule 4(a)(6) allows reopening where a party did not receive notice of entry of the judgment within the period the rule specifies, moves within the outer limit the rule allows, and no party would be prejudiced. Both provisions are administered by the district court, both are discretionary, and neither is available from the court of appeals.
After the notice is filed
Filing the notice transfers jurisdiction over the matters appealed to the court of appeals, though the district court retains authority over collateral matters such as costs and, in some circumstances, fees. Rule 4(a)(2) treats a notice filed after the court announces a decision but before entry as filed on the date of entry, which rescues an eager filing but not a premature one made before any decision.
The appeal then moves onto the schedule set by the rules. Assembling the materials the court will review is governed by the composition of the record and the transcript order, and the merits are presented under the required sections and length limits for briefs. Whether the order appealed from was appealable at all is a separate question, answered by the final judgment rule and its exceptions.
Points to carry away
- The notice is filed with the district clerk, not with the court of appeals.
- Rule 3(c) requires the notice to identify the party, the order and the receiving court.
- A civil notice is due thirty days after entry of the judgment or order appealed from.
- The period is sixty days when the United States or a federal agency or officer is a party.
- Certain postjudgment motions restart the period from the order disposing of the last one.
- The court of appeals may not extend the time to file a notice of appeal.
Questions readers ask
What happens if the notice designates the wrong order?
It depends on what the notice conveys as a whole. Rule 3(c) requires the notice to designate the judgment or the appealable order appealed from, and the rule directs that a notice encompasses the final judgment even if it names only an earlier order merged into it. Courts read a notice liberally where the intent is clear and the opposing party is not misled. What courts will not do is treat a notice as covering an order that was separately appealable, was not named, and was not merged into the judgment.
Does filing a motion for reconsideration always extend the time?
No. Rule 4(a)(4) lists the motions that restart the period, and a motion must be timely under the civil rules to have that effect. A motion for a new trial, to alter or amend the judgment, for judgment as a matter of law, for amended findings, and for attorney fees where the court so orders are among them. A motion styled as reconsideration but filed outside the period allowed for the underlying motion does not restart anything, and the appeal clock continues to run from entry of the judgment.
Can an appeal be saved if the party never learned of the judgment?
Rule 4(a)(6) allows the district court to reopen the time to appeal for fourteen days if the party did not receive notice of entry within twenty-one days of entry, the motion is filed within a fixed outer period after entry or within fourteen days of receiving notice, whichever is earlier, and no party would be prejudiced. It is narrow relief and it is discretionary. The safer course is to check the docket rather than to rely on receiving a notice.
Sources
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 3, Appeal as of RightHow an appeal is taken, what the notice must contain, and the clerk's duties.
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 4, Appeal as of Right TimeThe civil and criminal periods, tolling motions, extensions and reopening.
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 26, Computing and Extending TimeHow periods are computed and the prohibition on extending the notice period.
- Cornell Legal Information Institute — 28 U.S.C. 1291, Final Decisions of District CourtsThe jurisdictional grant the notice invokes.
- Cornell Legal Information Institute — Federal Rule of Civil Procedure 54, Judgment and CostsWhat entry of judgment means and when a partial judgment starts the period.
- United States Courts — AppealsThe court system's description of how an appeal is commenced.
Liberty Law Library is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Appellate Practice
The Record on Appeal and How Gaps Are Filled
Federal Rule of Appellate Procedure 10(a) defines the record on appeal as the original papers and exhibits filed in the district court, the transcript of proceedings, and a certified copy of the docket entries. Rule 10(b) requires the appellant to order a transcript or certify that none will be ordered, and to serve a statement of issues where only part is ordered. Rules 10(c) and 10(d) supply a prepared statement or an agreed statement where no transcript is available.
Rehearing and Rehearing En Banc
Federal Rule of Appellate Procedure 40 allows a petition for panel rehearing stating with particularity each point of law or fact the petitioner believes the court overlooked or misapprehended. Rule 35 governs rehearing en banc, which is not favored and is ordered only where necessary to secure or maintain uniformity of the court's decisions or where the proceeding involves a question of exceptional importance. Rule 41 controls when the mandate issues and how it may be stayed.
Brief Requirements and the Argument Section
Federal Rule of Appellate Procedure 28(a) lists what an appellant's brief must contain, including a corporate disclosure statement, tables, a jurisdictional statement, a statement of the issues, a statement of the case with record references, a summary of the argument, the argument itself with the standard of review for each issue, a conclusion, and the required certificates. Rule 32 governs form, typeface and the word limits, and requires a certificate of compliance.