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Lawyers face deadlines all the time. Some can be extended to accommodate conflicting demands. Others cannot. Two important deadlines for appellate practitioners are the time for filing post-judgment motions and the time for filing a notice of appeal. Because state practices vary so widely, this article focuses on the federal rules governing these deadlines. Federal rules severely circumscribe the power of federal courts to extend the time for filing post-judgment motions and for filing a notice of appeal. These are not deadlines to be taken lightly. Missing them will likely cost your client his or her appeal. A ‘MANDATORY AND JURISDICTIONAL’ REQUIREMENT In a private civil case in federal court, a party ordinarily must file its notice of appeal no later than 30 days after the date on which the judgment appealed from is entered. See28 U.S.C. � 1291; Fed. R. App. P. 4(a)(1). Unlike rules governing appeals in many state courts, this federal requirement is “mandatory and jurisdictional.” United States v. Robinson, 361 U.S. 220, 229 (1960). Although this rule is simple to state, the number of opinions it generates each year attest to the marvelous capacity of courts and lawyers to create complexity out of even the most straightforward of requirements. For, as the word “ordinarily” implies, this 30-day deadline has some exceptions. Two exceptions cause the most difficulties: the tolling rules governing the filing of post-judgment motions and the provisions permitting district courts to extend the time for filing a notice of appeal. Rule 4(a) of the Federal Rules of Appellate Procedure addresses the effect of post-judgment motions on the time period for filing an appeal. That rule provides that if any party “timely files” any one of six specified post-judgment motions under the Federal Rules of Civil Procedure, the 30-day appeal period will not begin to run for any party until entry of the district court’s order disposing of the last such remaining motion. Commonly filed post-judgment motions that toll the time for filing an appeal (referred to in this article as “post-judgment motions”) include a renewed motion for judgment as a matter of law under Rule 50(b), a motion for amended findings of fact by the district court under Rule 52(b), a motion for a new trial or to alter or amend the judgment under Rule 59, and certain Rule 60(b) motions. The Federal Rules of Civil Procedure state that each of these post-judgment motions must be filed with the federal district court within 10 days of the entry of judgment (computed by excluding intermediate Saturdays, Sundays and legal holidays, in accordance with Rule 6(a)). Courts often can extend deadlines, but not these. SeeFed. R. Civ. P. 6(b)(2). If you learn nothing else from this article, remember that district courts have no authority under any circumstances to extend the 10-day deadline for filing the post-judgment motions that toll the time for filing an appeal. Browder v. Director, Department of Corrections, 434 U.S. 257, 261 n.5 (1978) “Rule 6(b) prohibits enlargement of the time periods prescribed in … these Rules.”). Don’t even ask for an extension; an opponent’s agreement to extend the 10-day deadline, and even a district court’s order granting such an extension, are nullities. A post-judgment motion filed more than 10 days after judgment (as computed under the rules) is untimely, regardless of circumstances. More significant, an untimely post-judgment motion does not toll the 30-day period for filing an appeal, even if the district court rules on the merits of the untimely post-judgment motion. See FHC Equities Inc. v. MBL Life Assurance Corp., 188 F.3d 678, 682 (6th Cir. 1999). Despite the clarity of both the 10-day deadline and no-extension rule, horror stories abound. Pinion v. Dow Chemical, U.S.A., 928 F.2d 1522 (11th Cir. 1991), is typical. The district court, with the plaintiff’s consent, granted Dow two extensions of time to file its renewed Rule 50 motion for judgment after a jury verdict against it. Dow then filed its motion in accordance with the district court’s scheduling order 38 days after entry of the original judgment. Believing that its Rule 50 motion had tolled the time for taking an appeal, Dow waited for the district court’s decision before filing an appeal. Dow later filed a notice of appeal within 30 days of the court’s denial of the Rule 50 motion, but more than 100 days after entry of the original judgment. The 11th U.S. Circuit Court of Appeals dismissed Dow’s appeal for lack of jurisdiction. The court’s reasoning was straightforward. Dow’s Rule 50 motion was untimely because the district court had no authority to extend the time for its filing. The motion therefore had no tolling effect, and since Dow’s appeal was filed more than 30 days after the original judgment, it was too late. While acknowledging the harsh result, the 11th Circuit invoked the U.S. Supreme Court’s admonition in United States v. Locke, 471 U.S. 84, 102 (1985), that “[f]iling deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced.” 928 F.2d at 1534 n.13. OTHER CIRCUIT COURTS ARE AS TOUGH AS THE 11TH Other circuits are equally strict, even if an opponent has agreed to the extension and a district court explicitly granted it. See, e.g., Weitz v. Lovelace Health Systems Inc., 214 F.3d 1175 (10th Cir. 2000); ALPA v. Precision Valley Aviation Inc.,26 F.3d 220 (1st Cir. 1994); Smith v. Evans, 853 F.2d 155 (3d Cir. 1988). There is no nuance here. Courts uniformly believe that appellants have a duty to familiarize themselves with the rules and that “by asking for an extension that the rules expressly prohibit, the party invited the ensuing error.” Weitz, 214 F.3d at 1179 (internal quotation omitted). Even though they cannot extend the 10-day deadline for filing post-judgment motions, federal district courts have authority to enlarge the 30-day period for filing the notice of appeal in a civil case. That is a power that courts of appeals lack. SeeFed. R. App. P. 26(b)(1). The district courts’ authority is strictly limited, however. Rule 4(a)(5)(A) of the Federal Rules of Appellate Procedure allows district courts to extend the time for filing a notice of appeal, but only “if a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and that party shows excusable neglect or good cause.” BEWARE OF EXTENSIONS AND THEIR DEADLINES The standard for granting an extension for filing a notice of appeal has generated numerous circuit court decisions, as well as a recent proposal for change. SeePreliminary Draft of Federal Rules of Appellate Procedure at 16 (Aug. 2000). That is a subject for another article, however. Here, the focus is on deadlines. In that regard, it is important to recognize that Rule 4(a)(5)(C) explicitly says no extension may exceed “30 days after the prescribed time or 10 days after the date when the order granting the motion is entered, whichever is later.” As with the 10-day deadline governing post-judgment motions discussed above, courts of appeals hold, without exception, that district courts lack the power to grant an extension in excess of the time specified in Rule 4(a). Notwithstanding these decisions, lawyers have not stopped seeking (and district courts have not ceased granting) extensions of time beyond those permitted by Rule 4(a). As was the case with post-judgment motions, the consequences are equally draconian. Endicott Johnson Corp. v. Liberty Mutual Insurance Co., 116 F.3d 53 (2d Cir. 1997), is a cautionary tale for all of us. After the entry of final judgment, Liberty Mutual properly sought one 30-day extension of its time to appeal in order to allow the parties to engage in settlement discussions. Later, as settlement discussions and drafting dragged on, the court granted three other extensions, all but one with the plaintiff’s consent. Unfortunately, the settlement unraveled. Liberty Mutual then appealed, filing its notice of appeal four months after entry of the original judgment but well within the time provided by the district court’s fourth extension. The 2nd Circuit dismissed the appeal as untimely. As the court explained, Rule 4(a)(5)(C) sets forth the maximum extension of time allowed. Even though settlement is to be encouraged, the district court simply lacked the authority to extend the deadline further, as it had when it granted Liberty Mutual a second, third and fourth extension. Moreover, even though the plaintiff had agreed to the extensions, it was not estopped from challenging them as impermissible because the time period for filing a notice of appeal under Rule 4(a) is “mandatory and jurisdictional.” Id.at 55-56. The Federal Reports contain many similar stories. See, e.g., Fields v. Romer, 232 F. 3d 901 (10th Cir. 2000); Nye v. United States,60 F.3d 834 (9th Cir. 1995); and Riley v. Dow Corning Corp., 986 F.2d 1414 (4th Cir. 1993). The perceived unfairness of dismissing appeals when a party has relied on a court order extending a party’s deadlines led the Supreme Court in 1962 to fashion a limited judicial exception to the jurisdictional rules governing the filing of post-judgment motions and notices of appeal. This exception is known as the “unique circumstances” rule. Despite its early promise of providing relief to those who neglect established deadlines, the doctrine is of limited use today. The unique circumstances exception was first announced in Harris Truck Lines Inc. v. Cherry Meat Packers Inc., 371 U.S. 215 (1962). There, a court of appeals rejected a district court’s conclusion that an appellant had shown excusable neglect sufficient to warrant an extension of the 30-day deadline for filing a notice of appeal. “In view of the obvious hardship to a party who relies upon the trial judge’s finding of ‘excusable neglect,’ ” the Supreme Court found that “ unique circumstances sufficient that the Court of Appeals ought not” to have dismissed the appeal. Id.at 285. Two years later, the Supreme Court extended this doctrine in Thompson v. Immigration and Naturalization Service, 375 U.S. 384 (1964), to late-filed post-judgment motions if an appellant has relied on a district court’s “explicit statement that the motion was made ‘in ample time.’ ” Id.at 398. ‘HARRIS’ AND ‘THOMPSON’: TWO HIGH-WATER MARKS Harrisand Thompsonwere the high-water marks for the unique-circumstances exception. It has been all downhill since. In fact, in 1988, justices William H. Rehnquist, Sandra Day O’Connor, Anthony M. Kennedy and Antonin Scalia concluded that the Supreme Court had “effectively repudiate[d] the Harris Truck Linesapproach, reaffirming that the timely filing of a notice of appeal is ‘mandatory and jurisdictional.’ ” Houston v. Lack, 487 U.S. 266, 282 (1988). A year later, the Supreme Court declined to jettison the unique-circumstances doctrine entirely, but it did impose two conditions on its invocation that limit its use: first, the appellant must have done an act that, if properly done, would have postponed the deadline for filing the appeal; second, the appellant must have received specific assurance by a judicial officer that this act was properly done. Osterneck v. Ernst & Whinney, 489 U.S. 169, 193 (1989). Today, this discretionary doctrine is little more than a dead letter in most circuits. It is difficult to find any court that has used it recently to save an untimely appeal. Courts uniformly hold that a district court’s grant of a requested extension does not satisfy the “specific assurance” requirement of Osterneck. See, e.g., Weitz, 214 F.3d at 1180; Lichtenberg v. Besicorp Group Inc., 204 F.3d 397 (2d Cir. 2000) (“[T]he fact that a court signs orders presented to it, purporting to grant the parties’ joint requests for relief, does not constitute ‘unique circumstances.’”); Feinstein v. Moses, 951 F.2d 16 (1st Cir. 1991) (same); and Slimick v. Silva, 928 F.2d 304, 310 (9th Cir. 1990) (even implicitly misleading conduct by the district court is not sufficient). As most courts see it, there is “no unfairness in precluding parties from obtaining relief that the court had no power to grant by means of motions the parties were not authorized to make.” Lichtenberg, 204 F.3d at 403 (internal quotation omitted). The lesson of these cases is clear. When it comes to filing a post-judgment motion or notice of appeal in federal court, resist the temptation to try to extend your deadlines. You’ll sleep better. Mark Kravitz is the head of the appellate practice group at Wiggin & Danain New Haven, Conn. He can be reached with comments and suggestions at [email protected].

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