Ninth Circuit Clarifies Appeal Deadlines on Collateral Orders

When to file a notice of appeal is an issue that plagues appellate lawyers. Notices of appeal are subject to strict jurisdictional deadlines—meaning that if the deadline is not met, an appellate court cannot consider the appeal at all. Therefore, parties, and by extension their lawyers, must be careful to ensure that notices of appeal are timely filed to preserve their appellate rights.

As a general matter, parties have 30 days from the entry of an appealable order to file a notice of appeal. File your notice of appeal 31 days from the entry of an appealable order and the appellate courts will lack jurisdiction and cannot consider your appeal. But the Federal Rules of Appellate Procedure alleviate an added complication: What is the “entry” of an appealable order?

Under the Federal Rules of Civil Procedure 54, appealable orders are defined as “judgments”—“‘Judgment’ as used in these rules includes a decree and any order from which an appeal lies.” To clarify when such an appealable order is “entered,” Federal Rule of Civil Procedure 58 requires that all judgments be entered as separate, stand-alone documents. Recognizing this separate document requirement, the Federal Rules of Appellate Procedure sets the timeline for an appeal as either: (1) 30 days from the date that the separate document is filed; or (2) if no separate document is filed, 150 days from the date the original order was entered.

These rules may seem simple, but the Ninth Circuit Court of Appeals recently added an additional layer of complexity to the analysis in Michael McNeil v. William L. Gittere et al., 150 F.4th 1205 (2025). The complexity surrounds so-called “collateral orders,” which are orders that are not final orders. As a general rule, only final orders are appealable, but collateral orders are an exception to that rule.

In McNeil, the appellant filed a notice of appeal on a collateral order 150 days after the order was entered. Appellants waited 150 days to appeal because there was no separate order entered as required by the Federal Rules of Civil Procedure. This would seem to be entirely proper under the procedural rules as written, but the Ninth Circuit Court of Appeals disagreed and dismissed the appeal as untimely.

The Ninth Circuit Court of Appeals explained that while the procedural rules allowed for 150 days when there is not a separate document for a judgment, collateral orders are different. For collateral orders, no separate document needs to be filed to initiate the appeal, and therefore, the 150-day deadline did not apply. As a result, the appellant in McNeil missed the deadline and could not proceed with an appeal.

McNeil creates added complications for appellants and their lawyers. McNeil is one of the only circuit court decisions to address these issues. Now, there is clear case law in the Ninth Circuit that deadlines for filing a notice of appeal can shift depending on the type of order being appealed. Parties must carefully evaluate whether an order is a collateral order, or just an ordinary judgment, to determine when the notice of appeal deadline starts and expires.

This document is intended to provide you with general information regarding federal rules for appeal deadlines. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.