Surprise, Surprise, Surprise: The Limits on Extensions in Federal Appeals

Appellate counsel well-versed in state court rules can be blind-sided by the tight deadlines and limits on extensions for filing briefs in federal court. The appellant’s Initial Brief is typically due within 40 days after record is docketed. Fed. R. App. P. 28.1 (f). An appellee will have thirty days after the initial brief is served to file an Answer Brief. Id. Motions for the extensions are generally disfavored in the Eleventh Circuit. If an attorney waits to long before seeking an extension they may be faced with a denial and find themselves scrambling to finish the brief before the deadline.

Carefully review both the Eleventh Circuit’s local rules and internal operating procedures (referred to by the court as “I.O.P. s”). These are updated regularly and can be found on the Eleventh Circuit’s website. As to extensions, the Eleventh Circuits I.O.P. states, “The court expects timely filing of all papers within the period of time allowed by the rules, without granting extensions of time.” Once you have reviewed the rules, get ready to do some math.

If a party wishes for an extension of fourteen days or less they may do so by calling the clerk. This shorter extension does not require that the party provide good cause. If a party wishes for a longer extension they must file a motion with the court demonstrate good cause for an extension with “sufficient particularity.”

If a party seeks and extension greater than fourteen days, the court requires that it be filed at least seven days before the appeal is due. The court warns that if the motion is received less than seven days before the filing deadline, it is likely to be denied. 11th Cir. R. 31-2©. The court will only grant a motion filed on short notice if the good cause was not known to the parties before the seven day deadline. Second requests for extensions of time are “extremely disfavored.” 11th Cir. R. 31-2(d).

It is also important to note that requests for extension are not permitted on the date the brief or appendix is due. 11th Cir. R. 31-2(e). The rules actually instruct the clerk that they do not have the authority to even file an extension for time on the due date. Likewise, the clerk is not permitted to file a brief or an appendix submitted after the due date. The filing will simply be returned back to you with a notice that it is untimely. The best practice is not to run the risk of missing the window for the extension. Look at your briefing schedule and seek the appropriate relief as soon as possible.