Time to Appeal


28 USCS § 2101 provides that an appeal must be taken within 30 days after entry of the interlocutory or final order, judgment, or decree, when an appeal is taken from a decision of a three-judge district court holding unconstitutional in whole or in part any act of Congress.  The statute further provides that any other direct appeal to the supreme court which is authorized by law from a district court decision in any civil action, suit, or proceeding must be taken within 30 days from the judgment, order, or decree appealed from, if interlocutory, and within 60 days if final.

Pursuant to Fed. R. App. P. 4(a)(1)(A), a notice of appeal to a federal court of appeals from an order entered by a district court in a civil case which may be appealed as of right must be filed within 30 days after the date of entry of the judgment or order to be appealed except when:

  • the time for appeal has been extended by the filing of a postjudgment motion; or
  • the United States or an officer or agency of the United States is a party. 

28 U.S.C.A. § 2107(a), (b) set forth the same time limits for civil appeals to a court of appeals

Federal Rule of Appellate Procedure 5(a)(2) provides that where permission is required to bring an appeal to a federal court of appeals, the petition for leave to appeal must be filed within the time required by the statute or rule authorizing the appeal, or within the time provided for filing a notice of appeal, if no such time is specified.  Pursuant to Fed. R. App. P. 4(b)(1), where a criminal defendant appeals to a federal court of appeals, the defendant must file the notice of appeal within 10 days after the entry of the judgment or order appealed from or the filing of the government’s notice of appeal.  This 10-day period has been held applicable to appeals from an order of the District court enforcing a subpoena duces tecum issued by a grand jury, a denial of a motion to reduce or correct a sentence, and a motion to correct a presentence investigation report[i].

However, motions that are considered to be civil rather than criminal are not subject to the 10-day time limitation[ii].  Time limits are strictly enforced in the state court system, by time limits for appeal established by statute or rule of court.

 

[i] In re Grand Jury Proceedings, 835 F.2d 237 (10th Cir. 1987); U.S. v. Zuleta-Molina, 840 F.2d 157 (1st Cir. 1988); U.S. v. Grana, 864 F.2d 312 (3d Cir. 1989).

[ii] Hunt v. U.S. Dept. of Justice, 2 F.3d 96 (5th Cir. 1993)