Effect on Appeal Timing

Effect on Appeal Timing

Rule 59(e) itself speaks only to the trial court: a motion to alter or amend a judgment must be filed no later than 28 days after entry of the judgment.¹ The appellate rules supply the consequence for appeals. They list a timely Rule 59 motion among the filings that postpone the time to appeal until the district court rules.² That link explains why the 28-day deadline and the classification of a filing matter so much. A paper that qualifies as a timely Rule 59(e) motion changes the appeal calendar; a paper that does not leaves the calendar where it was.

An appeal presupposes a finished decision. A granted Rule 59(e) motion rewrites the very judgment an appeal would examine, so an appeal begun while the motion is pending aims at a target that may move. The appellate rules therefore let the trial judge act first and hold the appeal period in suspense until the judge has done so. The arrangement protects the movant, too: asking the trial court for a correction does not shorten the time to appeal.

Two questions follow. How does a timely motion postpone the time to appeal, and what must the motion satisfy for the postponement to occur? And what becomes of a notice of appeal that a party files while a timely motion is still pending? Both answers rest on points made earlier in this chapter: whether the filing is a Rule 59(e) motion at all, and whether it came within the 28 days.

Tolling the Appeal Period

Appellate Rule 4(a)(4)(A), not Rule 59(e), postpones the appeal period. When a party timely files a motion “to alter or amend the judgment under Rule 59,” the time to file an appeal “runs for all parties from the entry of the order disposing of the last such remaining motion.”³ Because the period runs for all parties, the opponent’s time to appeal moves along with the movant’s.

Rule 59(e) is not the only motion with this effect. A timely motion for judgment under Rule 50(b), a motion under Rule 52(b) to amend or make additional findings (whether or not granting it would alter the judgment), and a Rule 59 motion for a new trial all postpone the period in the same way, as does a Rule 60 motion filed within the short period the appellate rule specifies. A Rule 54 motion for attorney’s fees does so only if the district court has extended the time to appeal under Rule 58.⁴

The ordinary period for a civil appeal is 30 days after entry of the judgment or order appealed from.⁵ A timely Rule 59(e) motion means that period does not begin at the original entry of judgment. Courts often describe the effect as tolling: the “time period to appeal is tolled pending resolution of that motion.”⁶ The rule’s own wording says when the count begins, which is at the order disposing of the motion.⁷

The postponement exists because an appeal and a pending Rule 59 motion would otherwise put one judgment before two courts. In Griggs v. Provident Consumer Discount Co., the Supreme Court recounted that the district court was given express authority to entertain a timely Rule 59 motion even after a notice of appeal had been filed, “in order to prevent unnecessary appellate review.” Had that been the only change, district courts and courts of appeals “would both have had the power to modify the same judgment.” The 1979 amendments avoided the conflict by depriving the courts of appeals of jurisdiction in such situations.⁸ The design gives the trial judge the first word and ties the appeal period to the order that ends the motion.

State practice follows the same idea. An Alabama court, applying that state’s appellate rules, said that a proper Rule 59(e) motion extends the time for filing a notice of appeal.⁹ The decision illustrates the principle without controlling federal practice.

The postponement is available only when the motion is itself timely, and the Federal Rules of Civil Procedure set the measure of timeliness. Appellate Rule 4(a)(4) was amended to settle a circuit split over what “timely” means; as amended, it requires that a post-judgment motion be timely under the time the civil rules allow before it restarts the appeal clock.¹⁰ For a Rule 59(e) motion, that time is 28 days after entry of the judgment.¹¹ A court’s later deadline, a party’s consent, or an opponent’s failure to object does not make a motion timely.¹² “A posttrial motion must itself be timely if it is to extend the time for appeal,”¹³ so a late motion leaves the appeal period running from the original judgment, whatever the court later does with the motion.

Each of those excluded sources of timeliness would give someone other than the rules control over the appeal calendar. If a judge’s willingness to hear a late motion paused the clock, a party that had let both the 28 days and the 30-day appeal period run could revive its appeal by filing late and finding a receptive judge. An opponent’s silence would produce the same result. Tying the pause to a deadline that no one in the case can change lets each lawyer compute the last day to appeal from the docket alone. As the discussion of the 28-day deadline showed, a district court cannot enlarge that deadline; letting the court’s later deadline count here would give the court indirectly a power the civil rules withhold directly.

The timing of the motion matters as well as its filing. In Havensight, a motion for reconsideration was resolved before the judgment was “deemed entered” under Rule 4(a)(7)(A)(ii), so no motion was pending on the date the judgment was deemed entered.¹⁴ The appellant’s October 15 notice could be timely only if the 62 days the motion had been pending counted as tolled, which would have carried the deadline to October 18.¹⁵ Havensight is cited for the point that prematurely filing a motion for reconsideration “will not extend the otherwise applicable time to appeal.”¹⁶

Exam answers go wrong in two opposite directions. One counts the appeal period from the original judgment even though a timely Rule 59(e) motion was pending, which ends the count too early. The other assumes that any motion a court is willing to decide pauses the clock, which keeps the count open for a party whose motion never qualified. In either direction, ask whether the motion met the civil-rules deadline when it was filed. A motion filed on the twenty-eighth day qualifies, and a motion filed on the twenty-ninth does not, whatever the court later does with it.

Premature Notices of Appeal

A notice of appeal can arrive while a Rule 59(e) motion is pending, because the 28 days the rule allows overlap the period in which a party may appeal.¹⁸ An appellant in a hurry may file before an opponent’s motion is decided, or before it is even filed. What the early notice accomplishes has depended on the text of Appellate Rule 4(a)(4).

Under the rule as amended in 1979, which Griggs quotes, “[a] notice of appeal filed before the disposition of [such motion] shall have no effect,” and “[a] new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above.”¹⁹ The early notice was a dead letter, and a party who still wanted review had to file again after the district court ruled.

The “no effect” sentence closes a gap that the other 1979 changes opened. The district court gained express authority to rule on a timely Rule 59 motion even after a notice of appeal had been filed, and without more, both courts would have had power to modify the same judgment. The amendments resolved the overlap by depriving the courts of appeals of jurisdiction in that situation.²⁰ Had the early notice stayed alive, the court of appeals could have been reviewing a judgment that the district judge was rewriting the same week. Making it ineffective keeps one court in charge of the judgment at a time, and requiring a fresh notice measured from the disposing order points the appeal at the judgment as it finally stands.

The current rule no longer treats an early notice as a nullity. “A notice of appeal filed early—that is, before the time specified in FRAP 4(a)(4)—is valid.”²¹ The early notice does not reach what happens on the motion, however. To challenge a ruling made on one of the listed motions, for instance where the motion alters or amends the judgment or awards attorney’s fees, a party must file “a new timely notice of appeal (or amended notice of appeal).” FRAP 4(a)(4)(B)(ii).²²

One court, writing when Rule 59(e) allowed only ten days, gave counsel this advice: wait until the ten days have passed before filing the notice of appeal, “so that the notice will be indefeasible.”²³ The advice belongs to the era of the “no effect” text, when a notice filed inside the motion window risked being wiped out. A party deciding when to file today works from the 28-day window of Rule 59(e) and from the current requirement of a new or amended notice to challenge the ruling on the motion.

These rules operate on timely motions only. A motion filed after the 28 days of Rule 59(e) cannot affect an earlier notice, because a court’s later deadline, a party’s consent, or an opponent’s silence does not make it timely.²⁴ A fee motion under Rule 54 is also a poor candidate for disturbing anything: it postpones the time to appeal only if the district court has extended that time under Rule 58.²⁵ The tempting mistake is to treat every post-judgment paper as if it triggered the rule.