Though I gotta say that's pretty much crystal clear from just the text of the rules themselves, at least as they have existed for the past quarter century. FRAP 4 says you've got to appeal from a judgment within 30 days of its entry, and FRAP 4(a)(4) pretty darn clearly says that that deadline is only extended by the filing of specific motions, and that a motion for attorney's fees only extends the deadline if the district court so orders under FRCP 58 (which itself makes it point clearly yet again). So if you wan the deadline to appeal to be extended while the district court hears your fee motion, you gotta ask (and the judge has to say yes). If that's not the case, you've only got your 30 days, so you gotta appeal now.
And, lest the text of the rules themselves leave any doubt (and they don't), the Advisory Committee to the FRCP also made the various deadlines crystal clear, saying in the Notes:
"This revision permits, but does not require, the court to delay the finality of the
judgment for appellate purposes under revised Fed. R. App.
P. 4(a) until the fee dispute is decided.” Fed. R. Civ. P. 58,
adv. comm. note (1993). To obtain such an extension
“requires entry of an order by the district court before the
time a notice of appeal becomes effective for appellate
purposes.” Id. The upshot is that a motion for attorneys’
fees does not extend the time to appeal “unless a district
court, acting under Rule 58, enters an order extending the
time for appeal.” Fed. R. App. P. 4, adv. comm. note (1993);
see also Stephanie-Cardona, 476 F.3d at 705 (“The time to
appeal is not extended unless the district court, pursuant to
its authority under Fed. R. Civ. P. 58[(e)], orders that an
attorney’s fees motion has the effect of delaying the clock
for filing the notice of appeal.”); Moody, 383 F.3d at 252 (“In
1993, Appellate Rule 4(a)(4) was amended to include among
the motions that will toll the time for filing a notice of appeal
motions for attorney’s fees under Rule 54 if the district court
extends the time to appeal under Rule 58.”)."
Pretty darn clear, no? (Which is perhaps why the panel decided they were fully capable of resolving the appeal without oral argument -- which indeed they did.)
Anyway, Judge Bress says all of this and more. Which is yet another reminder, in addition to all the text and the comments and the prior cases. And more reminders never hurt.
Though, again, I would have thought the point would be obvious just from what already existed. (But apparently not, since you've got the plaintiff here filing way too late. Still, given what already exists, I doubt that one more reminder is going to make much of a difference; if you didn't see the old ones, you probably won't see this latest one either.)
Regardless, a long opinion that sets forth the rule, and one that lawyers should definitely follow.
(As for style, the opinion is very clear, though I'm not a huge fan of the opening line, which reads: "Although appellant did not file this appeal to present the
question whether its notice of appeal was timely, that is now
the principal issue we must resolve." A bit clunky, perhaps.)
