The Seventh Circuit Warns That Appellate Practice Is A Minefield With Traps For The Unwary
by Melinda S. Kollross
The Seventh Circuit’s decision in Association of American Physicians and Surgeons, Inc. v. American Board of Medical Specialties, 15 4th 831 (7th Cir. 2021), is not remarkable for its ruling on the merits of the dispute. The Court affirmed the dismissal of a complaint alleging restraint of trade because it failed to meet the Iqbal/Twombly pleading standard. The decision, however, presented unusual procedural circumstances that enabled the Court to admonish litigants about the minefield of appellate practice.
Facts – The Problem
Consider this hypothetical scenario. A federal district court enters a minute order granting a party summary judgment for the reasons to be stated in a memorandum opinion and Federal Rule of Civil Procedure 58 judgment to follow. But the district court doesn’t enter its memorandum opinion and Rule 58 judgment immediately, or even shortly thereafter, but waits until 180 days pass to enter that opinion and judgment. The losing litigant will be shocked to learn that it no longer has any right to appeal the summary judgment as its time to appeal has elapsed, even though the district court just entered its memorandum opinion and judgment explaining the reasons for granting summary judgment. The reason: Federal Rule of Appellate Procedure 4(a)(7)(A)(ii) which provides that a judgment is deemed entered for purposes of triggering the 30-day notice of appeal period from the earlier of the entry of a proper Rule 58 judgment or 150 days after a dispositive order is entered on the civil docket. In the scenario above, the summary judgment was deemed entered 150 days after the court’s minute order entry—even without any explanatory memorandum opinion and judgment. The 30-day deadline to file a notice of appeal began at that time and not any time later when the court finally issued its opinion and judgment.
Analysis – Disaster Averted In American Board
American Board involved a near appellate disaster because the district court failed to immediately issue its opinion upon ruling on a motion to dismiss. On September 30, 2017, the district court granted the dismissal motion for the reasons to be stated in a memorandum opinion to follow. But, unlike our hypothetical scenario, that memorandum opinion was issued within the 150-day time period—75 days later on December 13, 2017—so an appellate disaster was averted. But the fact that the opinion did not immediately accompany the dismissal order and was issued so long after gave the Seventh Circuit the opportunity to warn litigants about this trap waiting for the unwary in the appellate minefield:
“Under Federal Rule of Appellate Procedure 4(a)(7)(A)(ii), judgment is deemed to be entered ‘on the earlier of the Rule 58 judgment or 150 days after a dispositive order is entered on the civil docket.’ (Citation omitted) Those 150 days start running when the district court actually dismisses the case— here, September 30—not when it later issues its reasoned opinion. If the opinion does not follow for more than 180 days—150 days plus the ordinary 30 days for an appeal—the appeal may be barred, ‘spell[ing] disaster for a litigant not versed in the appellate rules.’”
Learning Point: This appellate decision again illustrates the reasons why appellate counsel should be retained at the time of any dispositive ruling—if not before. Protecting appellate rights through the filing of a timely notice of appeal is no simple matter—and trained appellate counsel are best suited to ensure that the rights to appeal are protected. This author has governed her appellate practice by a simple rule: let an appellate tribunal say your appeal is too early rather than too late. In this scenario where a decision is made, but the opinion is to come later, a notice of appeal should be immediately filed, with request made to the appellate tribunal to stay briefing until the trial court issues its opinion explaining its judgment. And in fact, the Seventh Circuit has ruled this is the proper course of action to be taken in these circumstances. Walker v. Weatherspoon, 900 F.3d 354, 356 (7th Cir. 2018) (“[T]he loser may file a notice of appeal and ask the court of appeals to defer briefing until the district court has released its opinion.”)