What should an appellate lawyer do when he or she has missed the deadline for filing a civil appeal in federal court but with reasonable justification for the error? Most people think that there is only one answer to that question—call the malpractice insurer—because courts have held that the deadline is jurisdictional and thus not subject to any equitable exceptions.
This article proposes that appellate courts and practitioners have overlooked another potential answer: A court lacking jurisdiction to decide the merits of an appeal nevertheless has the equitable discretion to dispose of the appeal by vacating the judgment below with instructions to reenter a fresh judgment and thereby restart the clock for filing a new timely appeal. This appellate remedy of equitable vacatur is a settled practice of the Supreme Court in the narrow context of its direct-appeal jurisdiction. And there is no reason in law or logic why the practice cannot be more broadly employed by the circuit courts of appeals.