Analysis

One Thing Virus Won't Change: Deadlines To File Appeal

By Christopher Cole
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Law360 (April 8, 2020, 7:51 PM EDT) -- As they find the federal courthouse doors bolted and stay-at-home orders and staff quarantines trigger disruptions in their firms' usual work flow, lawyers all over the country are scrambling for reprieves to file key notices and briefs — and getting a bit more time more often than not. But they can't budge the legal deadline to file appeals.

Even as a panic-inducing public health crisis has courts doing contortions to help lawyers who need filing extensions, courthouses and appellate experts alike are sharing a crucial tip: heed the statutory dates to get the notice into the clerk's hands.

No Leeway on Statutory Deadlines

Several circuits have posted notices on their websites warning attorneys that while they could get flexibility in areas such as getting arguments filed because of coronavirus, any filing that confers jurisdiction on the court must hew to the deadline on the books — the big one being notice of appeal, which is required within 30 days of a district court's final judgment.

"Those deadlines are unaffected, and there's a risk that people are kind of blithely assuming that these general extensions of deadlines apply across the board to all deadlines, when in fact you've got statutory deadlines that are completely unaffected," said Burt Rublin, appellate practice leader at Ballard Spahr LLP.

Tim Droske, co-chair of the appellate practice group at Dorsey & Whitney LLP, recently flagged the need to file appeals on time, pointing out that there's nothing in the courts' pandemic-related orders that changes the legal cutoff.

Droske noted that by late March the Third Circuit put it specifically in writing that "the due date for a notice of appeal, petition for review or other document that confers jurisdiction on the court is not altered by the notice" announcing COVID-19 accommodations.

Courts are trying to work with lawyers in many cases, he said, but they lack discretion to do so where the cutoffs are statutory. "Those are then largely treated as jurisdictional deadlines. Because they're set by Congress, the court itself lacks authority ... as part of an exercise of their discretion," he said.

Courts' Other Accommodations Vary

Droske stressed that even when appellate courts have altered their deadlines and procedures, lawyers should check the court websites every day, as the fluidity of the crisis means they could change on a dime.

Appellate courts, including the U.S. Supreme Court, are trying to ease filing deadlines when possible — on briefing schedules, for example — with a view toward reducing the burdens of COVID-19. But aside from the statutory appeal deadlines, there's no uniform guidance across circuits.

"There doesn't seem to be any top-down guidance in the federal courts," said Bill McDaniel, a Maryland-based senior counsel at Ballard Spahr, who suggested that's "a symptom of how insulated courts are from real life." Generally each individual court says "we've got rules and you're supposed to follow them," though he said the district court in his state "has been pretty good" about dealing with coronavirus-related delays. The chief problem is that when it comes to appeals, "these jurisdictional items are clicking away," he said.

For meeting deadlines other than appeal notice, McDaniel offered advice similar to Droske's: constantly monitoring court orders whether at the trial or appellate level. "I would figure out what the rule requires of you in normal times and then scour the court's website," he said. "If you don't find positive relief ... then you'd better comply with those deadlines."

Rublin noted that as of midday Wednesday, several circuits had warned that appeals deadlines are unchanged, even if they may be flexible in other matters. The First, Second, Third, Fifth and Ninth circuits had all posted that admonition, worded one way or another.

A Patchwork of Accommodations

But there were added measures across the circuits to make things easier for firms in the new world of courthouse lockdowns.

The First Circuit automatically extended other deadlines in certain cases for 30 days, "as long as the deadline is one within the court's power to extend," while the Second Circuit ordered a 21-day extension for all filings and deadlines.

The Third Circuit relaxed its three-day time limits for requesting verbal extensions until the clerk's office resumes normal operations.

The Fourth Circuit in a March order suspended the requirement of paper copies of formal briefs and other materials pending further notice. The Fifth Circuit suspended the requirement to file paper copies of electronically filed pleadings and documents, but said "all current deadlines for attorney filers remain in effect, except for those regarding production of paper copies," though "extensions with justification" can be sought.

The Sixth Circuit postponed mid-March arguments but said it will "continue to otherwise operate in the normal course with clerk's office staff available in the office and seamlessly via telework." The Seventh Circuit suspended the paper copy requirements for electronic filings, including petitions for rehearing.

Similarly, the Eighth Circuit similarly suspended the requirement for paper copies of electronic filings and other papers.

The Ninth Circuit posted a broader order concerning deadlines. "Because the national response to the pandemic has disrupted services of all kinds, the court will extend non-jurisdictional filing dates as needed," it said. If an extension is needed to file a brief due to circumstances related to COVID-19, a notice must be filed. The order also automatically extended the circuit's briefing schedule by 60 days.

The Tenth and Eleventh circuits also suspended requirements to submit paper copies.

Droske underscored that since there's a patchwork of policies across the courts, and circumstances are changing all the time, it's crucial to stay on top of their websites.

"Make sure you're checking the home page daily," and don't assume any extensions are a given, he said. "The key point is that while courts are recognizing that the COVID-19 pandemic may be placing strains on attorneys that make it difficult for them to meet court-ordered deadlines, those are not necessarily being extended without an extension being expressly requested."

The Supreme Court has actually been leading the pack in COVID-19 response, for example by extending from 90 to 150 days the deadline to file a petition for justices' review, he said. Because the court sets its own deadlines, it has more leeway than the lower courts to adjust the cutoff point.

"Usually the Supreme Court is the one that waits to see what the courts of appeals are doing," Droske said, but it has been "extremely proactive" in light of this pandemic.

Rublin said the key remains that while courts are trying to provide some broad flexibility, attorneys will find no workaround to the time limits that are on the books, and must stay on top of things.

"Everybody has to be mindful of these statutory deadlines, and it's important to check the website of each court you're practicing in," he said.

--Editing by Brian Baresch.

For a reprint of this article, please contact reprints@law360.com.

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