FAQs - Appellate Procedure

More information on the Appeals Process is available at www.uscourts.gov.

Q.  What orders can be appealed?

In general, appeal may be taken only from a final judgment or order disposing of all claims against all parties, and leaving nothing for the district court to do but execute the judgment. 28 U.S.C. § 1291. The following exceptions exist to the final judgment rule:

  • Collateral order doctrine under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949) (order determining important collateral rights that cannot be protected on appeal from final judgment).
  • Rule 54(b) order directing entry of final judgment as to fewer than all claims or parties and finding no just reason for delay.
  • Orders granting, denying, or modifying injunctions under 28 U.S.C. § 1292(a).
  • Orders that may be appealed if the court of appeals grants permission under 28 U.S.C. § 1292(b), 1453(c), or 158(d), or under Fed. R. Civ. P. 23(f).

Q.  What is the deadline to file an appeal in a civil case?

Under Fed. R. App. P. 4(a), notice of appeal in a civil case must be filed:

  • within 30 days after entry of judgment if the United States, its agency or officer is not a party;
  • within 60 days after entry of judgment if the United States, its agency or officer is a party; or
  • within 14 days after the filing of a notice of appeal by any other party.

Q.  Can the civil appeal period be extended?

Under Fed. R. App. P. 4(a)(5), upon motion filed no more than 30 days after expiration of the appeal period, showing excusable neglect or good cause, the district court may extend the time for filing a notice of appeal.

Q. What effect do post-trial motions have on the time to appeal in a civil case?

Under Fed. R. App. P. 4(a)(4), the time to appeal does not begin to run and any notice of appeal filed does not become effective until disposition of the following post-judgment motions:

  • Motions for judgment under Fed. R. Civ. P. 50(b) filed within 28 days of entry of judgment;
  • Motions to amend or make additional findings of fact under Fed. R. Civ. P. 52(b) filed within 28 days of entry of judgment;
  • Motions to alter or amend the judgment or to grant a new trial under Fed. R. Civ. P. 59 filed within 28 days of entry of judgment;
  • Motions for attorney's fees under Fed. R. Civ. P. 54 filed within 14 days of entry of judgment if a district court extends the time for appeal under Rule 58;
  • Motions for relief under Fed. R. Civ. P. 60 if the motion is filed within 28 days of entry of judgment.

Q.  What is the deadline to appeal in a criminal case?

Under Fed. R. App. P. 4(b):

  • the defendant's notice of appeal must be filed within 14 days after entry of judgment or within 14 days after filing of a notice of appeal by the United States;
  • an appeal by the United States must be filed within 30 days after entry of judgment or within 30 days after filing of a notice of appeal by the defendant.

Q.  Can the criminal appeal period be extended?

Under Fed. R. App. P. 4(b)(4), upon a finding of excusable neglect or good cause, the district court may extend the time for filing a notice of appeal for a period not to exceed 30 days from expiration of the appeal period.

Q.  What is the effect of a motion to correct sentence?

The filing of a motion to correct a sentence under Fed. R. Crim. P. 35 does not toll the time to appeal the judgment of conviction. Fed. R. App. P. 4(b)(5).

Q.  What effect do post-judgment motions have on criminal cases?

Under Fed. R. App. P. 4(b)(3), a notice of appeal is ineffective until the date of entry of the order disposing of any of the following motions, or until the date of entry of the judgment of conviction, whichever is later:

  • Motion for judgment of acquittal filed under Fed. R. Crim. P. 29 within 14 days after guilty verdict;
  • Motion for arrest of judgment filed under Fed. R. Crim. P. 34 within 14 days after verdict or plea of guilty;
  • Motion for a new trial on any ground other than newly discovered evidence filed under Fed. R. Crim. P. 33 within 14 days after guilty verdict;
  • Motion for a new trial based on the ground of newly discovered evidence if the motion is made before or within 14 days after entry of judgment.

Q.  What is the time period for filing a petition for rehearing or rehearing en banc?

Under Fed. R. App. P. 40(a)(1), a petition for rehearing and/or rehearing en banc must be filed within 14 days after entry of judgment unless the time is shortened or enlarged by order. However, in all civil cases in which the United States or an agency or officer thereof is a party, the time within which any party may seek rehearing is 45 days after entry of judgment. 

Q.  Will the court grant an extension of time to file a petition for rehearing or rehearing en banc?

The court strictly enforces the time limits for filing a petition for rehearing or rehearing en banc. An extension of time to file a petition is generally granted only for (i) the death or serious illness of counsel, or of a member of counsel's immediate family (or in the case of a party proceeding without counsel, the death or serious illness of the party or a member of the party's immediate family); or (ii) an extraordinary circumstance wholly beyond the control of counsel or a party proceeding without counsel. Loc. R. 40(c).

Q.  When is an answer filed to the petition for rehearing or rehearing en banc?

No answer may be filed unless requested by the court and, if requested, must be filed within the deadline set by the court. Fed. R. App. P. 35(e); 40(a)(3).