The Fifth Circuit applied Rule 4(a)(4) to hold that a motion for reconsideration was too late to reset the deadline for an appeal under the collateral-order doctrine.
March 31, 2021
Civil litigants normally have 30 days after the district court’s final judgment to file their notice of appeal. But several kinds of motions—like those for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), to alter or amend the judgment under Rule 59, or for relief under Rule 60—can reset that 30-day deadline. Federal Rule of Appellate Procedure 4(a)(4) says that these motions stop the appeal clock, which restarts once the district court disposes of the last motion. To reset that clock, however, most of these motions must be filed within 28 days of the judgment.
The motions listed in Rule 4(a)(4) are largely, if not entirely, post-judgment motions. But in Frew v. Young, the Fifth Circuit applied Rule 4(a)(4) to an appeal under the collateral-order doctrine. The district court denied an award of attorneys’ fees in its supervision of a consent decree. The plaintiffs then moved for reconsideration 30 days later—within the time to file a notice of appeal, but 2 days later than allowed for any of the motions listed in Rule 4(a)(4). The Fifth Circuit said that this was too late to reset the appeal deadline. Whether regarded as a motion under Rule 54(d), 59(e), or 60, the plaintiffs had at most 28 days to file their motion. With no timely motion, the notice of appeal—filed shortly after the district court denied reconsideration—was untimely as to the initial fee decision.
I’m not too sure about Frew. Again, the motions in Rule 4(a)(4) are post-judgment motions. So the rules for those motions—including the time limits on their filing—would not seem to apply to motions for reconsideration filed after an interlocutory decision, even one deemed “final” under the collateral-order doctrine. That means no rule expressly governs how these other motions for reconsideration affect the interlocutory-appeal deadline. What’s left is the longstanding practice of saying that a motion for reconsideration that is filed within the time to appeal resets the deadline for an appeal, interlocutory or otherwise. Granted, that means you get two extra days to seek reconsideration of interlocutory decisions. But the lack of any rules expressly governing these sorts of motions and appeals should weigh in favor of some leniency.
The Frew Litigation
The appeal in Frew arose from a nearly 30-year lawsuit over Texas’s implementation of a Medicaid program. Simplifying a fair bit, the parties in that suit ultimately agreed to a consent decree. But a dispute eventually arose as to some specifics of how that decree would be implemented. That required involving the district court. And the district court sided with the state on the disputed issues.
The plaintiffs—being the overall prevailing parties in the litigation—sought fees for their efforts in resolving this dispute. The district court denied any award. Thirty days later, the plaintiffs sought reconsideration of this fee decision. The district court denied reconsideration. The plaintiffs then appealed.
Resetting the Deadline for an Interlocutory Appeal
Post-judgment enforcement proceedings like those in Frew are often treated as a separate piece of litigation for finality purposes, with the final judgment coming once the district court is done supervising enforcement. So the fee decision in Frew was not a final judgment; more remained to be done in the district court. But the Fifth Circuit had held in an earlier appeal that denials of interim fees awards are immediately appealable via the collateral-order doctrine. That doctrine’s requirements are irrelevant to the present discussion. It’s enough to say that the collateral-order doctrine deems certain district court decisions “final” and immediately appealable for the purposes of 28 U.S.C. § 1291.
But the appeal in Frew, the Fifth Circuit concluded, was untimely insofar as the plaintiffs sought review of the original fee decision. The plaintiffs filed their appeal well outside the 30-day appeal deadline for that decision. And the plaintiffs’ motion for reconsideration did not reset that deadline.
Federal Rule of Appellate Procedure 4(a)(4) says that certain post-judgment motions can reset the time to appeal. These motions stop the running of the appeal clock and restart it once the district court resolves the last motion. But to reset the appeal clock, the post-judgment motion must be timely filed. And regardless of how the Fifth Circuit characterized the plaintiffs’ motion, it was not timely filed. For example, motions for attorneys fees under Federal Rule of Civil Procedure 54(d) must come within 14 days of the entry of judgment. Motions for reconsideration under Rule 59(e) must come within 28 days of the judgment. The same 28-day deadline applies to motions under Rule 60. The plaintiffs’ motion—filed 30 days after the initial fee decision—was accordingly untimely.
Rule 4(a)(4) and Appeals Before a Final Judgment
I’m not sure about Frew’s application of Rule 4(a)(4) to an appeal under the collateral-order doctrine. The motions mentioned in Rule 4(a)(4) concern trials and judgments. Appeals via the collateral-order doctrine are not appeals from judgments; they’re appeals from final decisions. It’s accordingly not clear that, for example, Rule 59(e) governs a motion to reconsider an order that is appealable via the collateral-order doctrine. And the long-standing rule has been that motions for reconsideration filed within the time to take an appeal is sufficient to reset the appeal deadline. Rule 4(a)(4) slightly alters that long-standing rule for certain post-judgment motions, shortening the time for filing them. But if Rule 4(a)(4) doesn’t apply to appeals under the collateral-order doctrine, the plaintiff’s motion in Frew—filed within the 30-day appeal deadline—should have been enough to reset that deadline.
Rule 4(a)(4) & Interlocutory Appeals
Let’s start with Rule 4(a)(4)’s application to interlocutory appeals. (I’m using interlocutory to describe all appeals that come well before the end of district court proceedings, even those from decisions that are deemed “final” for purposes of § 1921. That’s not technically correct—a “final” decision is not an interlocutory one—but being technically correct on this point has a tendency to distract from the real issues.)
Federal Rule of Appellate Procedure 4(a)(4) applies when litigants file a variety of motions, each of which is governed by a Federal Rule of Civil Procedure. As I read the rules governing those motions, they describe post-judgment motions—motions that come at or near the actual end of district court proceedings, after trial or entry of a judgment. A Rule 50(b) motion, for example, comes only after a trial and must be filed within 28 days of the judgment’s entry or discharging the jury. A motion for attorneys’ fees under Rule 54(d) must be filed within 14 days of the judgment’s entry. And a Rule 59 motion seeks a new trial or to alter a judgment, which must come after a trial or judgment.
Perhaps there’s some wiggle room in Rule 60. A Rule 60 motion—which can seek relief from a “final . . . order”—could come after an interlocutory order that is deemed final for purposes of § 1291. But I can’t recall ever seeing that.
So it seems like Rule 4(a)(4)’s listed motions aren’t terribly relevant to an interlocutory appeal. There might be a highly technical argument to the contrary. Rule 54(a) says that a “judgment” is “any order from which an appeal lies.” So maybe one could consider all appeals—interlocutory and otherwise—to be appeals from judgments. But nowadays we seem to more or less ignore Rule 54(a) and the idea any appealable order is a “judgment.”
Generally Resetting Appeal Deadlines & Interlocutory Appeals
Still, the principle underlying Rule 4(a)(4) should apply to all appeals. I think that the Seventh Circuit’s decision in Blair v. Equifax Check Services, Inc. provided a really good explanation of this:
Perhaps Rule 4(a)(4) could be read (rewritten?) so that “judgment” comes to mean “any order from which an appeal lies,” but this linguistic exercise is unnecessary. Rule 4(a)(4) just restates an accepted rule of practice: federal courts long have held that a motion for reconsideration tolls the time for appeal, provided that the motion is made within the time for appeal. The practice is independent of Rule 4(a)(4), or any other rule.
For this proposition, the opinion cites (among other cases) United States v. Dieter. In Dieter, the Supreme Court noted “that the consistent practice in civil and criminal cases alike has been to treat timely petitions for rehearing as rendering the original judgment nonfinal for purposes of appeal for as long as the petition is pending.” Granted, Dieter spoke in terms of a “judgment.” But the Seventh Circuit thought that the decision’s underlying rationale—“the wisdom of giving district courts the opportunity promptly to correct their own alleged errors”—applied just as much to interlocutory appeals (in the case of Blair, Rule 23(f) appeals).
So it would seem that a motion for reconsideration filed within the time to take an interlocutory appeal should reset the appeal deadline. The motion in Frew—filed 30 days after the initial fees decision—should have reset the appeal clock.
Granted, there’s some tension in this approach. To reset the appeal deadline, a Rule 59(e) motion—which seeks reconsideration of a judgment—must be filed within 28 days of the judgment. So a Rule 59(e) motion filed 29 or 30 days after a final judgment would not reset the appeal deadline. Motions to reconsider an interlocutory decision must be filed within the appeal deadline: normally 30 days, or 60 days in a case involving the United States. That means there’s extra time to reset the interlocutory appeal clock.
I’m not terribly bothered by this tension. For whatever reason, the rules limit the traditional practice for resetting the appeal deadline, shortening the applicable time by two days. Given that the 28-day limit on Rule 59(e) motions does not clearly apply to interlocutory appeals, I’d side with greater allowance of resetting the appeal clock. Also of note, the Supreme Court recently avoided weighing in on whether timely motions for reconsideration reset the time for filing a petition to appeal under Rule 23(f). The Court recognized, however, that the courts of appeals are unanimous in holding that they do.
Frew v. Young, 2021 WL 1153007 (5th Cir. Mar. 26, 2021), available at the Fifth Circuit and Westlaw.