Time Is on My Side:  Extensions of Time at the Appellate Level
David Neil McCarty, David Neil McCarty Law Firm, PLLC, dnmlaw@gmail.com


Time can be a shield as much as a weapon. Knowing how to get a little more time on your side can make the difference between a successful appeal and a happy client or a notch in the loss column and a call to your malpractice carrier. As a rule, the appellate courts often grant an extension for time when you ask for it—as long as you ask in a timely fashion and can demonstrate good cause for why you need the time. If you wait too long, you may be out of luck—and your appeal or ability to respond might be dismissed. 

The state and federal appellate courts handle requests for time differently, so here are a few guidelines for the busy trial lawyer. 

State Supreme Court and Court of Appeals
Requests for time are routinely granted at the state appellate level. See MRAP 26(b) (governing enlargement of time). Rule 27 governs motions and requires the filing of an original and four copies of your motion for time plus the motion filing fee. Look closely: while most motions go before a single justice, a panel, or the whole court, motions for time can be ruled on by the Clerk.  MRAP 27(b). When unopposed, the Clerk can grant an extension for up to 60 days.  MRAP 27(b)(1). The motions often do not necessarily have to specify a reason for the extension—you just need to ask for it in a timely fashion.

After you have gotten the “free” 60 days, you have to file another motion if you need more time, which the Court itself will rule on, not the Clerk. This one will need to include good cause for why the extension of time is necessary. While you will routinely obtain this one further extension, the Court will normally include language in its order that you will not be able to receive further extensions.

What’s the risk in not asking in a timely manner? Your case may be dismissed. Failure to tender a brief on time will get you a Rule 2 deficiency letter. And after that point, the previously relaxed rules for obtaining more time are gone: Rule 2(a)(2) states that “[m]otions for additional time in which to file briefs will not be entertained after the notice of the deficiency has issued.”

ProTip: Because the Clerk can immediately grant an unopposed and initial motion for time, in a crunch you might file it very close to your brief deadline and still obtain relief. But if you’ve exhausted your “freebie” extensions, your motion will be deliberated by a panel of the Court—which can take time you may not have. File early, because there is always the chance the Court will not rule on your motion for time before your brief is actually due. You don’t want that sick feeling in the pit of your stomach as you watch the clock on the day your brief is due. 

When in doubt, call an MAJ member who handles appeals—your MAJ directory lists several well-qualified appellate attorneys who can give you tips and tricks to help you meet deadlines and perform your best for your client.

Fifth Circuit Court of Appeals
The Fifth Circuit has several distinct differences in granting an extension of time, and in general is much stingier than the state courts with extensions. 

Like its state counterpart, FRAP 26(b) governs the extension of time. What’s the danger of failing to get an extension? Unlike the slightly more lenient state court rules which provide notice of a deficiency, Fifth Circuit Rule 26.2 cautions that “[a]ppeals which are not processed timely will be dismissed for want of prosecution without further notice under 5TH CIR. R. 42.”

Rule 26(b) requires “good cause” for an extension, and the Fifth Circuit means it—and they don’t like granting them. There are a host of local rules and internal operating procedures for obtaining an extension, and the IOPs note (in all caps) that extensions for time “are disfavored and should be made only in exceptional circumstances where ‘good cause’ exists.” In general, the Fifth Circuit “expects briefs to be filed timely and without extensions in the vast majority of cases,” and cautions that “[n]o extensions are automatic, even where the request is unopposed.” Rule 31.4.1. Also, “[t]he clerk must receive a request for extension at least 7 calendar days before the due date” unless there are unusual circumstances. Rule 31.4.1(a).

Importantly, you have to contact all other parties and indicate whether the motion is opposed.  Rule 31.4.1(b); see generally Local Rule 27.4. You also can “request only as much time as is absolutely needed.” Rule 31.4.1(b). Like the state court, beware that “[t]he pendency of a motion for extension does not toll the time for compliance.” Rule 31.4.1(b). 

Rule 31.4.2 sets out the grounds for extensions—and if you are claiming you’re busy with other cases, they want to know the case number and court and why you are claiming it’s more important than your appeal. 

Complicating things are the types of extensions: Level 1 and Level 2. The former governs requests for 1 to 30 more days of time, the latter requests for more than 30 days. Rule 31.4.3.  Level 1 works like the Mississippi appellate court—the Clerk can grant it, and relatively fast. Critically, an unopposed motion for time can be obtained by phone call—in fact, “[t]he court prefers that an unopposed request be made by telephone, but it may be by written motion or letter.” Rule 31.4.3.1.  You have to explain why good cause is warranted, but the Clerk can then immediately grant the relief on the telephone. Rule 31.4.3.1. If the request is opposed you have to file a motion. Rule 31.4.3.1.

Level 2 extensions can also be ruled on by the Clerk, but the motion must be in writing. Rule 31.4.3.2. Be aware that “[m]ore than ordinary good cause is required for a Level 2 extension, and Level 2 extensions will be granted only under the most extraordinary of circumstances.” Rule 31.4.3.2. “The movant must demonstrate diligence and substantial need and must show in detail what special circumstances exist that make a Level 1 extension insufficient.” Rule 31.4.3.2. 

ProTip:  Avoid extensions at the Fifth Circuit when possible.  Once I was called in on a case shortly before a brief was due.  I was hired by a formerly pro se appellant and needed time to not only draft the appeal but absorb the complex trial record.  Counsel opposite did not oppose the motion, so I called the Clerk and asked for 30 days.  I was given 21.  Nobody gave me a reason why I couldn’t have 30—and I didn’t ask.  It’s the Fifth Circuit—you take what you’re given, and acknowledge they don’t have to give you any time at all. 

Even under a time crunch, we obtained a reversal for the client, but a good Rule book, a PDF of the Local Rules, and lots of advice from MAJ members helped.  As always, when in doubt check your MAJ directory and run it by a member who does appellate work or consider retaining them to help on the case.

United States Supreme Court
The most common need for most practitioners is an extension of time to file a Petition for Writ of Certiorari.  If you thought the Fifth Circuit was rough, they don’t even come close to the strict requirements of the Supremes. 

Supreme Court Rule 13.1 states that a single Justice might extend time for filing the Petition up to 60 days—but that such “[a]n application to extend the time to file a petition for a writ of certiorari is not favored.”  You have to request the time “at least 10 days before the date the petition is due, except in extraordinary circumstances.” Rule 13.1; see also Rule 30.2-3.

Before I bore you to death with citations to what type of paper you can use and how you serve the motion and so forth, understand that the Supremes divide their work up by Circuit, and the Fifth Circuit is overseen by Justice Antonin Scalia. Further understand that Justice Scalia generally does not smile on requests for more time. As in, it might not be worth the amount of time to scour the Rules and figure out even how to ask. 

ProTip: Assume no extension of time will be granted, and govern yourself accordingly. 

We all need a little play in the joints every now and then. Use your time to your advantage to best protect the interests of your client. Just don’t get so behind that you can’t even get an extension for time. 

David focuses his practice in appellate law and complex litigation. He is a former law clerk at the Mississippi Supreme Court and teaches appellate advocacy at Mississippi College School of Law.