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Pro Se Tips and Tactics (Civil Appeals)

If the judge or a jury rules against you, you may want to try to appeal to a higher court.   In this column, I will cover some basic information about what kinds of rulings against you in federal court can be appealed, and how to start an appeal.   In my next column, I will discuss whether you should appeal, that is, whether you have a reasonable chance of success on appeal.

As always, I assume that you have filed a federal civil rights action under 42 U.S.C. § 1983.   As used in this column, "Rule ...." means a rule of the Federal Rules of Civil Procedure, and "Appellate Rule...." means a rule of the Federal Rules of Appellate Procedure.  

Can I Appeal?

The general rule, applied in most cases in federal court, is that you cannot appeal unless your case is finished in the district court and a final judgment is entered.   The appellate courts usually want one appeal per case, not several appeals starting every time the district court makes a ruling. See: Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 107 S.Ct. 1177 (1987); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669 (1981).

This means, to take some common examples, that you can appeal if your whole case is over because:

the district court granted the defense's Rule 12(b)(6) motion to dismiss;
the district court granted the defense's summary judgment motion on all of your claims under Rule 56;
you lost your case (or some important part of it) at the end of a trial.

But this "final judgment rule" also means that you cannot normally appeal a ruling dismissing one or a few of your claims if you still have even one claim that remains alive in the district court.   It also means that you cannot appeal from other "interlocutory" (mid-case) rulings such as orders on discovery problems.   The appellate courts simply do not, in almost all cases, want to hear from you unless your case is completely over in the district court.

One exception to this rule that the case must be over is that a party can appeal immediately from a district court's grant, denial, or modification of an injunction.   28 U.S.C. §1292(a)(1).   This means that if you have a strong case for an immediate injunction while your case is going on in the district court, and the district court has refused to grant the injunction, you can appeal.   It also means, of course, that if you succeed in getting the district court to grant an injunction, the defendant can appeal immediately on this issue.

Defendants in prison cases sometimes have opportunities to appeal mid-case that you as a plaintiff will not have.   The most common example is that defendants who raise an issue of immunity from suit, including qualified immunity, can appeal immediately from a district court's denial of the claim of immunity.   Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806 (1985).   This rule, which I will not discuss in detail in this column, can be a big problem for plaintiffs, because this kind of appeal can hold up the case for months or sometimes years.  

For your information, there are other exceptions that might possibly apply in some § 1983 cases.   One is 28 U.S.C. §1292(b), which allows an interlocutory appeal of an issue of law that is unsettled and that could dramatically change the course of a case. The other is that in a case with multiple claims or multiple parties, the district court may find that even though all of the case is not decided, there is a good reason to allow an appeal on a claim that has been finally decided and is separable from the rest of the case.   Rule 54(b).   Both of these exceptions require the party wishing to appeal to get specific written court permission, which in most cases will not be granted.   There is not space here for a detailed discussion of these exceptions, and they are unlikely to come up in most cases.

How Do I Start An Appeal?

If you decide to appeal at a point in the case at which you can appeal, you must file a timely Notice of Appeal to get the appeal started.   If you don't file a timely Notice of Appeal, you will not be able to appeal.

 A Notice of Appeal is a document that does all of the following: names all parties appealing, names all parties on the other side, identifies the order or judgment that you want to appeal, makes clear the intention to appeal, states what court the appeal is to, and is signed by the party appealing (or the lawyer for the appealing party).   Appellate Rule 3(c).   If you want to appeal, make sure to name all of the parties by their individual names, including all of the plaintiffs if there are several.   Do not use "et al." or the like:   Name each party.  

Courts have held that failure to name a party who wants to appeal means that that party cannot appeal.   See Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405 (1988).   Appellate Rule 3(c)(4) seems to say that failure to name someone doesn't make the appeal invalid if it's obvious that the person left out intended to appeal, but it is best not to take chances.   Name everyone.

Some federal appellate rules require that where there are multiple pro se parties appealing, each one must not only be named, but must individually sign the notice of appeal.   United States v. Carter, 906 F.2d 1375 (9th Cir. 1990).   So, if there are multiple pro se's in your case, make sure everyone signs if at all possible.

Unless the Notice of Appeal is timely, the appellate court will not hear your appeal.   To be timely, a Notice of Appeal in a civil case against a state or local government must be filed (that is, it must arrive) in the district court within 30 days of the entry on the docket of the order or judgment which you are appealing.   Appellate Rule 4(a)(1)(A).   In cases in which the federal government is a party, the time is 60 days from the entry of the order or judgment.   Appellate Rule 4(a)(1)(B).  

There is an exception for prisoners:   If you are confined in an institution, your Notice of Appeal is timely "if it is deposited in the institution's internal mail system on or before the last day for filing."   Federal Rule of Appellate Procedure 4(c)(1).   Please be aware, however, that if you rely on this rule you may have to prove when you deposited your notice in the prison's internal mail.   The best course in all cases is to send the Notice of Appeal early so it can be filed well within the 30 days, and to rely on the "prison mailbox rule" only if your Notice of Appeal is lost or delayed in the prison system.   Depositing it in prison mail on the last day invites disaster unless you can prove you put it into the internal mail system that day.

So, don't file late.   Late filers are usually out of luck.   There is a rule that allows district courts to extend the time for filing if you ask soon enough (within 30 days after the Notice of Appeal was originally due), but late filing will only be granted if you can show "excusable neglect or good cause."   Appellate Rule 4(a)(5).   In some federal circuits, it is hard to make a showing of "excusable neglect."   See U.S. v. Douglas, 874 F.2d 1145 (7th Cir.), cert. denied, 493 U.S. 841 (1989).   Other circuits are a bit more forgiving and apply a more flexible standard.   U.S. v. Hooper, 9 F.3d 257 (2nd Cir. 1993); U.S. v. Clark, 51 F.3d 42 (5th Cir. 1995).   However, the best practice is not rely on this possible exception unless you must.   Always send in your Notice of Appeal early.

One good reason that you might not file a Notice of Appeal on time is if you were not given notice of the order or judgment that you want to appeal.   There is a special rule that allows you to file a late Notice of Appeal if you didn't get a copy of an order or judgment from the district court.   Appellate Rule 4(a)(6).   Note that the time to get this extension is also limited; you cannot ask for it after 180 days have gone by.

Filing a Notice of Appeal late can be disastrous, but filing early won't usually hurt you.   A Notice of Appeal filed after an appealable decision has been announced by the court, but before the decision has been made final by entry on the court docket,   is counted as being filed after entry on the docket.   Appellate Rule 4(a)(2).

The time for filing a Notice of Appeal is stopped if, after a decision that you want to appeal, you or the defendant files a motion for new trial or other similar motion.   Appellate Rule 4(a)(4) lists the motions to which this rule applies, and says that you don't have to file a Notice of Appeal until after the court resolves a motion made under this rule.   However, again you are not penalized for filing early:   Appellate Rule 4(a)(4)(B)(i).

But there is a catch on this one:   If you do file early, the Notice of Appeal will be effective, except as to the order on the post-trial motion.   This is easy to remedy if you want to appeal from the ruling on the post-trial motion as well:   Simply file an amended and timely Notice of Appeal making clear that you are also appealing from the later ruling.   Appellate Rule 4(a)(4)(B)(ii).

Because filing a Notice of Appeal before the entry of a judgment or order does not carry any penalty, it is a good idea to file a Notice of Appeal within 30 days after a final decision is announced.   That way you will be sure to timely appeal the final decision.   Then if a party files one of the motions that tolls (stops) the time from running under Appellate Rule 4(a), "the notice can be amended after the tolling motion is decided if the appellant wants to appeal from the order deciding that motion."   Ulrich, et al., Federal Appellate Practice Guide: Ninth Circuit (Lawyers Cooperative Publishing,1994).

Note that while under these rules you can file a Notice of Appeal after a decision is announced but before it is entered on the docket, you still have to make sure that the order or judgment from which you want to appeal does get entered on the docket at some point.   Without a final judgment or order entered on the docket, there can be no appeal.  

"Entered on the docket" means a separate document (usually called "judgment") formally entered in a judgment book by the clerk of the court.   Appellate Rule 4(a)(1);   Allah v. Superior Court, 871 F.2d 887, 890 (9th Cir. 1989).   The document sent to you should have a clerk's stamp that shows that the document has been "entered."

Another requirement for appealing is the payment of a fee for the appeal, or the filing of a motion to proceed in forma pauperis.   Appellate Rules 3(e), 24.   The fee or motion should be filed along with the Notice of Appeal.   However, unlike an untimely Notice of Appeal, an untimely fee will not necessarily mean the end of the appeal.   Parissi v. Telechron, Inc. 349 U.S. 46, 75 S.Ct. 577 (1955).   However, if you delay too long, the court of appeals can dismiss the appeal for failure to take care of the fee issue.   Appellate Rule 3(a).  

Appeals are a complicated subject.   In this column, I have been able to give only a very general overview of some issues related to appeals, and I have not intended to give you specific advice about your case.   You should do your own research based on the specific situation in your case.

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