Appeal Deadline Alert: Don’t count on Rule 58, 9th Circuit says

Appealing in the 9th Circuit? Your deadline is 30 days. But sometimes the court makes certain rulings that are appealable but without a formal order—and that’s where FRCP 58 comes in, which says that those rulings are not deemed “entered,” and so the 30-day appeal deadline doesn’t yet run, until 150 days later.

But in McNeil v. Gittere (9th Cir., Sept. 2, 2025, No. 23-3080), the 9th Circuit now holds that the additional 150 days under Rule 58 conflicts with the statutory 30-day deadline. So the state official’s appeal from an order denying its summary judgment on qualified immunity grounds—which is appealable as a collateral order—was untimely. The defendant said that FRAP 4(a)(7)(A)(ii) says if Rule 58(a) requires a separate document and none is issued, “entry” occurs 150 days after the judgment or order is put on the civil docket. And the appeal was filed within that time.

But the panel disagreed that Rule 58 can operate as to appealable collateral orders. So the appeal was filed longer than 30 days after the collateral order, so it was untimely.

The panel explains that Rule 58 was designed to interpret 28 U.S.C. § 2107(a), which sets the appeal deadline as “thirty days after the entry of [a] judgment, order or decree.” The panel reasoned that Rule 58 properly interprets § 2107(a) when it comes to “entry of [a] judgment,” because sometimes that can be hard: for example, after an order granting summary judgment, but before a formal judgment is entered, is the case over? The clerk is supposed to promptly enter a formal judgment, but sometimes it just doesn’t happen So Rule 58 gives the district court time to take whatever additional actions are necessary, but at 150 days, enough is enough, and the § 2107(a) 30-day period starts to run.

But no such ambiguity exists, says the panel, for entry of orders. We know what entry means: it means it appears on the docket. And we know what an order is. So in absence of any room for interpretation of those words, the panel concludes, apply the Rule 58 extension is simply improperly rewriting the statute.

Takeaways

Bookmark these key rules:

1. For collateral orders (like a denial of qualified immunity), the 30-day clock under 28 U.S.C. § 2107(a) starts when the order is filed on the civil docket. Any rule reading that gives more time is invalid as applied, because rules can’t enlarge statutory jurisdiction.
2. Where Rule 58 still applies (separate document + 150-day deeming can matter)?
   1. Final judgments that dispose of all claims/parties: If no separate judgment issues, calendar day 150 (deemed entry) + 30 days to notice the appeal.
   • Judgment-like, case-ending dispositions (e.g., grants that end the action, like grants of summary judgment or motions to dismiss) should culminate in a Rule 58 judgment. If the clerk doesn’t enter one, ask for it; otherwise, the 150-day deeming rule will set “entry.”
3. Where Rule 58 does not apply (calendar 30 days from docketing):
   1. Collateral orders—especially denials of qualified immunity.
   2. Likely other immediately appealable “orders.” McNeil’s text-first reasoning that “entry” of an order = docketing, logically travels to appealable interlocutory orders like injunctions.

If you need more time you’re unsure whether Rule 58 applies, file a FRAP 4(a)(5) motion to extend your time to appeal, up to 30 days.