Have You Filed Your Appeal on Time?

If a court order is stamped "filed" but no one sees it, is it really filed?

This is more than a philosophical riddle. It's a critical question for anyone affected by the order because filing affects the time to appeal, and in both state and federal court, the deadline to appeal is jurisdictional. A lawyer who doesn't realize that the court has filed an appealable order may inadvertently but irrevocably forfeit his client's opportunity to challenge that order.

Two recently published appellate decisions drive home the importance of promptly identifying an appealable order. One has a happy ending for the appellant, and one does not.

First, the unhappy ending: Harmston v. City and County of San Francisco, 2010 DJDAR 18507 (9th Cir. 2010), involved a plaintiff's challenge to an order imposing sanctions for contempt. The 9th U.S. Circuit Court of Appeals held that the plaintiff lost his chance to appeal by first appealing too early, and then appealing too late.

Harmston was a suit by police officers against the city and county. The district court held a plaintiff and his attorney in contempt for violating a discovery protective order. They promptly appealed to the 9th Circuit, but the appeal was dismissed on the ground that a civil contempt order is not immediately appealable. The district court subsequently declined to exercise supplemental jurisdiction over state law claims and remanded the case to state court. Approximately nine months later, the state court granted summary judgment. The plaintiff and his attorney then appealed again to the 9th Circuit.

Noting that it could not reach the merits of the appeal unless it had jurisdiction, the 9th Circuit focused on two questions: Whether there was an appealable order that allowed it to review the contempt ruling, and if so, whether the appeal was timely.

On the appealable order issue, the 9th Circuit emphasized that it only has jurisdiction to consider appeals from the final decision of a federal district court or from a small class of collateral, non-final orders. Neither the civil contempt order nor the state court's grant of summary judgment fell within these categories. But there was another order that fit the bill: the district court order declining to exercise supplemental jurisdiction and remanding the case to state court.

The presence of an appealable order did not end the inquiry, however. The 9th Circuit also had to consider the scope of the appeal. The general rule is that the court can review earlier interlocutory rulings, like the sanctions ruling, only on appeal from a final order or judgment. The 9th Circuit held that the remand order was "final" because even though it did not end the suit, it ended the federal court proceedings. The sanctions ruling thus was before the court.

The 9th Circuit then turned to the last critical jurisdictional question: timeliness. Federal Rule of Appellate Procedure 4(a) provides that in a civil case, the notice of appeal must be filed within 30 days (or 60 days, if the United States is a party) after the judgment or order is "entered." An order that must be set forth in a separate document under the Federal Rules of Civil Procedure is "entered" on the earlier of two dates: when it is set forth in a separate document, or 150 days from its entry in the civil docket.

Here, the district court did not enter a separate document containing the remand order. The last day to appeal thus came 180 days after entry of the remand order. The plaintiff did not meet that deadline, which passed while his claims were still pending in state court. The appeal therefore was untimely.

The 9th Circuit observed that if the result was inequitable, Congress could authorize courts to excuse compliance with statutory time limits. Absent that authorization, however, the appeal had to be dismissed for lack of jurisdiction.

A party who missed the presumptive time to appeal fared better in the California Court of Appeal in the recent decision of Marriage of Mosley, 2010 DJDAR 18598 (Cal.Ct.App. 2010). That decision addressed the philosophical puzzle stated above, framing the issue as "what happens when a file-stamped appealable order disappears into the juridical equivalent of a sock drawer?"

Mosley involved an order regarding child and spousal support. The order was file-stamped April 1, 2010. But it was not served on the parties at the time, nor did it appear in the court file. The clerk located the order sometime after mid-August 2010, and thereafter sent the husband's counsel a copy. He served it on the wife, who filed a notice of appeal on Oct. 1, 2010. The Court of Appeal notified the parties that it was considering dismissing the appeal as untimely.

In state court, California Rule of Court 8.104 establishes the deadline to file a notice of appeal from an appealable order. If the clerk or a party serves notice of entry of the order or a file-stamped copy of the order, the notice of appeal is due 60 days later. Where there is no notice, the outside time limit to appeal is 180 days after the date of entry of the order. An order is "entered" on the date it is entered in the written minutes or filed in the public record. The effect of this rule is that the time to appeal can run even if the parties do not actually know that the court has issued the order or judgment.

In Mosley, the wife filed a notice of appeal 193 days after the file-stamped date on the challenged support order. The question, then, was whether the file-stamped date was the date of "entry of judgment." The Court of Appeal concluded that it was not.

Mosley held that "an order is not 'filed' unless it is filed in a public place where its presence is capable of being known." There is a presumption that an order is placed in the public record on the file-stamped date. But an appellant may rebut this presumption with evidence that the document was not a public record on that date.

The wife made this showing. She established (through her own declaration and that of the clerk) that the order had not been filed in a public place until more than five months after the "file-stamped" date. She therefore was as vigilant as she could have been, and the court deemed her appeal timely.

Mosley observed that its conclusion was consistent with the California policy of resolving ambiguities as to appellate jurisdiction in favor of the right to appeal. That policy may help appellants in close cases. But in general, as Harmston teaches, the rule remains: be vigilant in identifying appealable orders or judgments, carefully calculate the time to appeal, and make sure to file the notice of appeal within the deadline.