Handbook III.B: Appeals from the District Court as of Right

1. How Taken (See Fed. R. App. P. 3, 7.)

Appeals from district court judgments are taken by filing a notice of appeal with the Clerk of the district court, at which time the fees for filing and docketing the appeal must be paid to the district court Clerk. The notice must state the court to which the appeal is taken, the ruling being appealed, and the party who is appealing. The Clerk of the district court notifies the other parties when the notice of appeal has been filed. As a matter of courtesy, however, the party taking an appeal also should serve all other parties a copy of the notice of appeal. In civil cases, the district court may require a bond or other security to cover the costs of appeal.

2. Timing (See Fed. R. App. P. 4.)

(a) General Rules

The time for noting an appeal in civil and criminal cases is set forth in Federal Rule of Appellate Procedure 4. Upon a showing of excusable neglect or good cause, however, the district court may enlarge the time for filing a notice of appeal in civil and criminal cases, but only for limited periods. See Fed. R. App. P. 4(a)(5), (b)(4).

In addition, the district court may reopen the time to appeal in a civil case if (1) the district court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry; (2) the motion to reopen is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and (3) the district court finds that no party would be prejudiced by reopening the appeal period. See Fed. R. App. P. 4(a)(6).

(b) Civil Cases

Regardless of which party is appealing, if a party to a case in district court is the United States, one of its agencies, a federal officer or employee sued in an official capacity, or, under certain circumstances, a federal officer or employee sued in an individual capacity, the notice of appeal must be filed within 60 days after entry of the judgment or order, unless a statute provides otherwise. If no party fits into one of these categories, the notice of appeal must be filed within 30 days.

A notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order will ordinarily be treated as filed on the date of and after the entry. If any party has filed a timely motion in the district court for relief under Federal Rules of Civil Procedure 50(b), 52(b), 59, or 60(b) (if filed within the time allowed for filing a motion under Rule 59), however, the time for appeal begins to run from the entry of the order granting or denying that motion. A notice of appeal filed before the disposition of any of these motions has a limited effect, and a notice or an amended notice of appeal must be filed within the prescribed time measured from entry of the order disposing of the motion if the party wishes to appeal from an aspect of the judgment affected by the resolution of such a motion. See Fed. R. App. P. 4(a)(4).

If Federal Rule of Civil Procedure 58(a)(1) does not require the district court to set forth its judgment on a separate document, the district court’s judgment or order is deemed entered for purposes of Federal Rule of Appellate Procedure 4(a) when it is entered on the civil docket under Federal Rule of Civil Procedure 79(a). If Federal Rule of Civil Procedure 58(a)(1) does require the district court to set forth its judgment on a separate document, the district court’s judgment or order is deemed entered for purposes of Federal Rule of Appellate Procedure 4(a) when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when either: (1) the judgment or order is set forth on a separate document or (2) 150 days have passed since the entry of the judgment or order in the civil docket, whichever occurs first.

The Clerk of the district court is required to provide notice of the entry of judgment to all parties not in default for failure to appear. A party also may serve an adversary with notice of entry. Lack of notice does not suspend the running of the time prescribed.

If one party files a timely notice of appeal, any other party may file a notice within 14 days thereafter if the usual time to appeal has expired. Thus, if one party files a notice of appeal on the 29th day in a case in which the federal government is not a party, another party may file a notice of appeal on the 43rd day. If one party files a notice of appeal on the 5th day, however, the other party may still wait until the 30th day to file a notice of appeal. If more than one timely appeal is filed, the 14-day period begins to run from the time the first appeal is filed.

(c) Criminal Cases

The defendant must appeal within 14 days after entry of the judgment or order being appealed or within 14 days of the government’s notice of appeal. The government has 30 days to appeal in those limited situations when it is allowed to do so by statute. See 18 U.S.C. §§ 3731, 3742.

A timely motion for judgment of acquittal, arrest of judgment, or for a new trial on any ground other than newly discovered evidence, terminates the running of the time prescribed for appealing from a criminal conviction. A motion for a new trial on the ground of newly discovered evidence also terminates the running of time to file a notice of appeal, if the motion is made within 14 days of the entry of judgment. A new 14-day period within which to appeal from the judgment, as well as from the denial of any of the enumerated motions, begins to run after entry of the order disposing of the last such remaining motion or after entry of the judgment, whichever is later. See Fed. R. App. P. 4(b); Fed. R. Crim. P. 33, 34.

Absent extraordinary circumstances, direct criminal appeals will not be held in abeyance pending the filing and disposition of a postconviction motion in the district court. See D.C. Cir. Rule 47.5.

(d) Collateral Challenges in Criminal Proceedings

Petitions for writs of habeas corpus and motions attacking sentence under 28 U.S.C. § 2255 are civil cases for purposes of computing the time for appeal. Parties should consult appropriate authorities to determine whether other proceedings are deemed civil or criminal in nature to determine the appropriate filing period.