Appeal Case Analysis

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The trap for the unwary created by the district court’s actions in "vacating" the judgment to purportedly extend the time for filing an appeal, can be easily avoided, merely by moving for reconsideration within 10 days of the judgment.

Having failed to do so, however, the question is whether it is nevertheless possible to toll the time for filing an appeal.

Twice, the court suggested that this could be done. The court stated, "We … have no occasion to address here what might happen if a district court decided truly to vacate a final judgment like the one entered here on May 28 and to restore a case to its docket, all before anyone had filed a Notice of Appeal to this court."

Later, the court wrote, "We express no opinion on the possibility that there still may be time for the judge to enter a proper Rule 58 judgment, and thus to open a new window for appeal. See United States v. Indrelunas, 411 U.S. 216 (1973); but see FED. R. APP. P. 4(a)(7)(A)(ii), as amended Dec. 1, 2003, which limit’s the window provided by Indrelunas to 150 days.)"

However, it seems unlikely that an appellant could meaningfully distinguish the case at bar. Numerous cases from other jurisdictions have held that, once the time for filing a notice of appeal has expired, the time cannot begin anew by the district court vacating the judgment. See Cody, Inc. v. Town of Woodbury, 179 F.3d 52 (2nd Cir.1999).

In the case at bar, the court found the manner in which the vacation was handled in this case to be illegitimate, frequently using the word, "vacating," in quotations. The court noted that, when the court denied the motion to reconsider, it did not even formally reinstate the original order. The court concluded, "we have only a series of moves designed to give a longer period of time for filing an appeal than that provided for in Appellate Rule 4."

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In fact, however, this conclusion is insupportable. The district court stated, in justifying the vacation, "we were convinced that the motion for reconsideration merited careful consideration and, if we were to change our views, it made no sense to burden the Court of Appeals with an unnecessary appeal. … It was our intention to vacate any appealable order and to postpone any appeal until the ruling upon the motion for reconsideration determined whether the dismissal would stand."

While the motion for reconsideration was filed on June 13, 2002, it was not decided by the court until Sept. 25. Under these circumstances, the only logical inference is that the actions of the district court were designed to give it more time to decide what it deemed a motion of arguable merit, rather than to give the appellant a longer time to file an appeal, as was clearly the intent in Cody.

Thus, it is difficult to imagine what circumstances could possibly result in the Seventh Circuit allowing a vacation of judgment prior to the expiration of the appeal period to have any effect, and it would be folly for any nonprevailing party to think the court’s dicta could assist it.

– David Ziemer

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David Ziemer can be reached by email.