Appellate Procedure,  Federal Procedure,  Notice of Appeal

Everyone Got It Wrong on the Deadline to Appeal

It is a critical question, and one that can occasionally confound: what is the deadline to appeal? 

In Hearns v. San Bernardino Police Department, case no 05-56214 (9th Cir. July 1, 2008), neither the parties nor the trial court got it right. Believing his deadline to appeal an order dismissing his compaint had already passed, Plaintiff filed a Rule 60(b)(6) motion for relief from the order.  The district court denied the motion, but granted a 10-day extension of time to appeal.  After plaintiff appealed, defendants cross-appealed the order granting the extension.

Clearly, all of the parties and the district court thought that the extension was necessary.

It wasn’t! Plaintiff’s appeal was timely even without the extension, and the Ninth therefore dismisses the cross-appeal as moot.

Determining the deadline to appeal is the very first thing I do when talking to a client — even before I determine whether the order is appealable — because the consequences of missing it are so severe.  This is especially important in California state court, where the deadline is jurisdictional.  This is why readers who click on the “Need a Lawyer on Appeal?” link at the top right of this blog are directed to a page with big, bold, capital, red letters near the top telling them to “act fast!”

UPDATE (7/1/08): As if to prove my point, the Third District Court of Appeal dismissed an appeal yesterday because the notice of appeal was untimely.  See California Appellate Law for details.