Professional Documents
Culture Documents
No. 08-2044
Nelson L. Jones
Office of United States Attorney
United States Courthouse
5500 Veterans Building, Suite 260
Charlotte Amalie, St. Thomas, Virgin Islands, 00802
Counsel for Appellee
Joseph A. DiRuzzo, III
Law Office of Marjorie Roberts
1 Hibiscus Alley
St. Thomas, Virgin Islands, 00802
Counsel for Appellant
OPINION
II.
In a civil case involving the United States, a notice of
appeal must be filed within 60 days after the judgment or order
appealed from is entered. Fed. R. App. P. 4(a)(1)(B). In some
circumstances, where a party has timely filed a post-judgment
motion in the district court, the deadline for filing a notice of
appeal may be tolled until that motion has been decided:
(4) Effect of a Motion on a Notice of Appeal.
(A) If a party timely files in the district court any
of the following motions under the Federal Rules
of Civil Procedure, the time to file an appeal runs
for all parties from the entry of the order
disposing of the last such remaining motion:
(i) for judgment under Rule 50(b);
(ii) to amend or make additional
factual findings under Rule 52(b),
whether or not granting the motion
would alter the judgment;
(iii) for attorneys fees under Rule
54 if the district court extends the
2253(c)(3); Villot v. Varner, 373 F.3d 327, 337 n.13 (3d Cir.
2004); 3d Cir. L.A.R. 22.1(b); see Fed. R. App. P. 28(a)(5).
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February 8, 2008
April 7, 2008
4(a)(4)(A)(vi).
In addition, the Sixth Circuits approach creates
uncertainty in the appeal timeline. The 2009 amendments to the
Federal Rules of Civil Procedure, which, inter alia, extended the
time for filing a Rule 59(e) motion from ten to twenty-eight
days, show that Rule 4 is intended to enforce the deadlines
provided in the Federal Rules of Civil Procedure, not vary them
based on the happenstance of a particular litigation. In
discussing the extension of time for filing a Rule 59(e) motion,
the Advisory Committee Notes explain that the time period to
file such a motion is particularly sensitive because Appellate
Rule 4 integrates the time to appeal with a timely motion under
[Rule 59]. Fed. R. Civ. P. 59 (2010) (Notes of Advisory
Committee on 2009 Amendments). Indeed, Rule 4s main
purpose is to set a definite point of time when litigation shall
be at an end[.] Browder, 434 U.S. at 264 (internal quotation
marks omitted). In furtherance of this purpose, the 2009
amendment extending the filing deadline for a Rule 59(e)
motion from ten to twenty-eight days was partially motivated by
the desire to provide additional time to file the motion while not
injecting uncertainty into the appeal timeline by granting the
district court discretion to set any deadline for the motions
filing. Rather than introduce the prospect of uncertainty in
appeal time by amending Rule 6(b) to permit additional time,
Fed. R. Civ. P. 59 (2010) (Notes of Advisory Committee on
2009 Amendments)by, say, permitting an extension of time to
file a Rule 59(e) motion for good cause, as district courts are
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jurisdiction.9
February 8, 2008:
April 7, 2008:
In Bowles, the Supreme Court held that the time for filing
a notice of appeal in civil cases, set forth in Appellate Rule
4(a)(6), is mandatory and jurisdictional and thus not waivable.
551 U.S. at 209 (quotations omitted). The Supreme Court
grounded its holding in the fact that the time limitation in
Appellate Rule 4(a)(6) is set forth in a statute, 28 U.S.C.
2107. Id. at 213. The Court expressly noted the
jurisdictional distinction between court-promulgated rules,
which are not statute-driven, and limits enacted by Congress,
such as Appellate Rule 4(a)(6). Id. at 211-12. The Court
referred to the court-promulgated rules as claims-processing
or nonjurisdictional rules and it concluded that those rules
may be waived. Id. at 212, 216. On the other hand, the Court
held that a litigant subject to a time frame set by statute cannot
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within which the filing of a Rule 60(b) motion will toll the
period of filing a notice of appeal with respect to the final
judgment. Otherwise, as a technical matter, a party could file a
Rule 60(b) motion years after entry of a final judgment, and then
argue upon disposition of that motion that they had a right to
appeal the original judgment.
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II.
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