Federal Rules for Appellate Procedure Notice of Appeal

By Joseph Nicholson

The Federal Rules of Appellate Procedure are applicable to cases appealed to a federal appellate (circuit) court from a federal district court. The notice of appeal is filed in the lower court to indicate that a party to the case intends to file an appeal. The Federal Rules of Appellate Procedure, particularly rules 3 through 6, govern the timeliness and content of an appeal notice.

Timely Appeal

In a civil case, unless the United States is a party to the suit or certain motions are filed after the entry of an order, the notice of appeal must be filed with the district clerk within 30 days after the judgment or order appealed from is entered. If the United States is a party, any party can file the notice within 60 days of the order. Once an appeal has been filed, other parties have at least 14 days to file another appeal. In a criminal case, the notice of appeal must be filed in the district court within 10 days; the government has 30 days.

Filing

The notice of appeal is filed with the clerk of the district court. Enough copies must be provided for the clerk to serve a copy on the counsel of each party, excluding the party filing the appeal (called the appellant). Simply by filing the notice of appeal and doing nothing further, the appellant invokes the jurisdiction of the appellate court to at least act in a way it deems appropriate with regard to the appeal. This can include dismissing the case or providing additional time to file an appellate brief.

Service

As mentioned, the responsibility of serving the notice of appeal on the parties belongs with the district court clerk. The failure of the clerk to fulfill these duties does not affect the validity of the appeal. The clerk also furnishes the court of appeals named in the notice with a copy of the notice and of docket entries. The district court clerk collects any fees associated with filing the notice of appeal that are due at the time of filing.

Contents

The notice of appeal must identify the parties filing the appeal, the order or judgment being appealed and the court of appeals to which the appeal is taken. The rules take a lenient approach to the content of the appeal, specifying that an appeal should not be dismissed for informality of the notice or from failure to name as an appellant a party whose intent to appeal is evident from the content of the notice. The naming of a single individual capable of representing a class is sufficient in appeals of a class action, whether or not the class has been certified. See the Additional Resources section below for the recommended notice of appeal format.

Extension of Time

Any party can move the district court for an extension of time to file a notice of appeal. To do so, a motion for extension must be filed within 30 days of the normal deadline. The motion must show either a good cause for the extension or that the deadline was missed for "excusable neglect." The extension of time, in either a civil or criminal case, cannot exceed 30 days after the original deadline or 10 days after the extension is granted, whichever is later.

About the Author

Joseph Nicholson is an independent analyst whose publishing achievements include a cover feature for "Futures Magazine" and a recurring column in the monthly newsletter of a private mint. He received a Bachelor of Arts in English from the University of Florida and is currently attending law school in San Francisco.