Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 14, 2003 Decided January 16, 2004
No. 02–7086
THE ENGLISH–SPEAKING UNION,
APPELLANT
v.
JAMES JOHNSON, ET AL.,
APPELLEES
–————
Appeal from the United States District Court
for the District of Columbia
(No. 02cv00605)
–————
Frederic W. Schwartz Jr. argued the cause and filed the
briefs for appellant.
M. Bradley Blommer argued the cause for appellee. With
him on the brief was Roger A. Hayden II.
Before: HENDERSON, TATEL, and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
TATEL, Circuit Judge: Exercising its appellate jurisdiction
to review orders of the bankruptcy court, the district court
dismissed an appeal for want of prosecution after the appel-
lant missed the deadline for filing its brief. This appeal
presents two questions: whether the district court had juris-
diction to dismiss the case in view of the fact that appellant
had previously filed an appeal to this court, and if so, whether
the district court properly exercised its discretion to dismiss
for failure to prosecute. We conclude that the district court
retained jurisdiction, but because it failed to explain why the
harsh sanction of dismissal was necessary under the circum-
stances of this case, we reverse.
I.
In 1993, The English-Speaking Union (ESU), an organiza-
tion established to promote strong relations among Common-
wealth nations, sold its Washington, D.C. branch headquar-
ters to James and Geraldine Johnson, who, before paying
ESU its note for part of the building’s purchase price, filed
for bankruptcy. In November 2001, the United States Bank-
ruptcy Court for the District of Columbia entered a settle-
ment order dismissing ESU’s claim to funds from the estate
and favoring appellee The Elm Company (Elm). See En-
glish-Speaking Union v. Johnson, No. 99–10076, slip op. at 1
(Bankr. D.D.C. Nov. 29, 2001).
Dissatisfied with the bankruptcy court’s conclusions, ESU
appealed to the United States District Court for the District
of Columbia. The district court, exercising its appellate
jurisdiction over final orders of the bankruptcy court, see 28
U.S.C. § 158(a) (2000 & Supp. III 2003), docketed ESU’s
appeal on March 29, 2002, starting the clock ticking on the
fifteen days allotted for ESU to file its brief. See Fed. R.
Bankr. P. 8009(a)(1) (‘‘Unless the district court TTT excuses
the filing of briefs or specifies different time limits TTT [t]he
appellant shall serve and file a brief within 15 days after
entry of the appeal on the docketTTTT’’). Before that dead-
line arrived, ESU filed a motion for an extension of time,
explaining that the transcript of the bankruptcy court pro-
ceedings was not yet complete. The district court granted
3
ESU’s request and gave it until June 12, warning ‘‘[t]here will
be no further extensions.’’ English-Speaking Union v. John-
son, No. 02–605, slip op. at 2 (D.D.C. Apr. 25, 2002).
On June 12, with the transcript still unavailable, ESU filed
a second motion requesting an additional extension of time.
Eight days later, the district court, unaware that ESU had
submitted such a motion, dismissed ESU’s appeal with preju-
dice for failure to prosecute. English-Speaking Union v.
Johnson, No. 02–605, slip op. at 3 (D.D.C. June 20, 2002)
(June Dismissal Order). In that order, the district court also
dismissed ESU’s ‘‘Second Amended Appeal,’’ which ESU had
filed after its original appeal to the district court in order to
include in its appeal a May 2002 bankruptcy court order
requiring ESU to pay certain costs incurred by its adversar-
ies. The district court found that it lacked jurisdiction over
this cost appeal because ESU had failed to file a timely notice
of appeal. Id. at 2–3. On July 1, ESU filed a motion to
vacate the June Dismissal Order pursuant to Federal Rule of
Civil Procedure 60, arguing that it had in fact filed a pleading
by the June 12 deadline and that its cost appeal was timely.
On July 19, while its motion to vacate was still pending in
the district court, ESU appealed to this court, seeking rever-
sal of the district court’s June Dismissal Order. In August,
after the appeal was docketed, the district court granted part
of ESU’s motion:
For a reason unknown to the Court, counsel, or the
Clerk’s Office staff, Appellant’s motion to amend the
briefing schedule never appeared on the docket in
this action, nor was the Court’s copy sent to Cham-
bers. As such, when the Court issued its June 20,
2002, Order dismissing the appeal for want of prose-
cution, it was without Appellant’s motion to extend
the time in which to file its brief. Despite the
Court’s admonition in its April 25, 2002, Order to
counsel that no further extensions of the briefing
schedule would be permitted, the Court would have
allowed Appellant the opportunity to late file its
brief, had it received Appellant’s motion, because
counsel should have a certified transcript when pre-
paring briefing for an appeal.
4
English-Speaking Union v. Johnson, No. 02–605, slip op. at 2
(D.D.C. Aug. 27, 2002). The court thus resurrected ESU’s
appeal (but not its cost appeal) and gave the organization
until September 9 to submit its brief. Id. at 2–4.
The September 9 deadline passed without ESU filing a
brief. On September 12, the district court—on its own
initiative—again dismissed ESU’s appeal for want of prosecu-
tion. English-Speaking Union v. Johnson, No. 02–605, slip
op. at 5 (D.D.C. Sept. 12, 2002) (September Dismissal Order).
In response, ESU amended its appeal to this court to include
this second dismissal order. Because that order constitutes a
final judgment, we have jurisdiction to consider ESU’s chal-
lenge here. See 28 U.S.C. § 158(d).
II.
We begin with ESU’s challenge to the district court’s
dismissal of its appeal. In ESU’s view, the district court
lacked jurisdiction to enter its September Dismissal Order
because the organization’s July notice of appeal to this court
divested the district court of authority to issue orders in this
case. Whether the district court retained jurisdiction to
dismiss ESU’s appeal following the organization’s appeal to
this court turns on whether ESU’s motion to vacate was
governed by Bankruptcy Rule 8015 (as the district court
ruled) or Federal Rule of Civil Procedure 60 (as ESU ar-
gues)—a legal question that we review de novo. See Herbert
v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).
Bankruptcy Rule 8015 expressly authorizes litigants to ask
district courts exercising bankruptcy appellate jurisdiction to
reconsider unfavorable rulings and tolls the time for seeking
further review in the courts of appeals. It states:
Unless the district court TTT by local rule or by
court order otherwise provides, a motion for rehear-
ing may be filed within 10 days after entry of the
judgment of the district courtTTTT If a timely mo-
tion for rehearing is filed, the time for appeal to the
court of appeals for all parties shall run from the
entry of the order denying rehearing or the entry of
a subsequent judgment.
5
Fed. R. Bankr. P. 8015. If despite this tolling provision a
litigant files an appeal while the Rule 8015 motion is pending,
the rules of appellate procedure postpone appellate review
until the district court decides the motion: ‘‘A notice of
appeal filed after the district court TTT announces or enters a
judgment, order, or decree—but before disposition of the
motion for rehearing [under Bankruptcy Rule 8015]—be-
comes effective when the order disposing of the motion for
rehearing is entered.’’ Fed. R. App. P. 6(b)(2)(A)(i). There-
fore, district courts retain jurisdiction over pending Rule 8015
motions whether or not the litigant simultaneously seeks
appellate court review.
Federal Rule of Civil Procedure 60 also enables parties to
challenge adverse district court decisions. It authorizes dis-
trict courts to correct clerical errors, see Fed. R. Civ. P. 60(a),
or to relieve parties from judgments in cases of mistake,
inadvertence, surprise, excusable neglect, newly discovered
evidence, or fraud, among other reasons, see Fed. R. Civ. P.
60(b). Like Bankruptcy Rule 8015 motions, Rule 60 motions
filed within ten days of judgment toll the time for appealing
to the court of appeals and preclude appellate review during
their pendency. Federal Rule of Appellate Procedure 4
provides:
If a party timely files in the district court [a Rule 60
motion within ten days after judgment is entered],
the time to file an appeal runs for all parties from
the entry of the order disposing of the TTT mo-
tionTTTT If a party files a notice of appeal after the
[district] court announces or enters a judgment—but
before it disposes of any motion [for relief under
Rule 60 if the motion is filed no later than ten days
after judgment is entered]—the notice becomes ef-
fective to appeal a judgment or order, in whole or in
part, when the order disposing of the last such
remaining motion is entered.
Fed. R. App. P. 4(a)(4). This rule, however, does not apply to
challenges to district court bankruptcy appellate orders. See
Fed. R. App. P. 6(b)(1)(A) (stating that Federal Rule of
Appellate Procedure 4(a)(4) does not apply to appeals from
6
district court orders when the court acts in its bankruptcy
appellate capacity). As a result, appeals court review could
begin, at least in theory, before the district court disposes of
the Rule 60 motion, which in turn would divest the district
court of jurisdiction to grant the motion. See Hoai v. Vo, 935
F.2d 308, 312 (D.C. Cir. 1991) (stating that a district court
may consider but not grant a pending Rule 60(b) motion while
appellate review is ongoing unless the court of appeals re-
mands the case).
In this case, even though ESU filed its motion to vacate
pursuant to Rule 60, the district court held that Bankruptcy
Rule 8015 represented the only post-judgment mechanism
available to the organization. See September Dismissal Or-
der, No. 02–605, slip op. at 3 n.3. Treating ESU’s filing as a
Rule 8015 motion, the court therefore concluded that ESU’s
July notice of appeal never took effect and that the court
retained jurisdiction to decide ESU’s motion to vacate, estab-
lish a new briefing schedule, and again dismiss ESU’s appeal.
Id. at 3–4.
Objecting to the district court’s decision, ESU argues that
Rule 8015 cannot be the exclusive vehicle for challenging
district court judgments because Bankruptcy Rule 9024,
which provides that ‘‘Rule 60 F.R. Civ. P. applies in cases
under the [Bankruptcy] Code,’’ allows disappointed litigants
to file Rule 60 motions in the district court. Fed. R. Bankr.
P. 9024. According to ESU, because its motion to vacate was
based on clerical error—the disappearance of its June 12
filing—Rule 60 represented the organization’s only option for
seeking district court reconsideration.
Although it is true that Rule 9024 refers to ‘‘cases under
the Code,’’ Fed. R. Bankr. P. 9024, the advisory committee
note suggests that Rule 60 applies in narrower circumstances
in the bankruptcy context: ‘‘For the purpose of this rule all
orders of the bankruptcy court are subject to Rule 60 F.R.
Civ. P.’’ Fed. R. Bankr. P. 9024 advisory committee’s note
(emphasis added); see also In re Conn Aire, Inc., 91 B.R.
462, 462 n.2 (M.D. Tenn. 1988) (concluding that Rule 9024
applies Rule 60 only to challenges to bankruptcy court or-
7
ders). Our review of the cases, moreover, indicates that Rule
9024 is generally used in bankruptcy court proceedings, not in
district courts. Reading Rule 9024 to apply only to bankrupt-
cy court proceedings is also supported by Bankruptcy Rule
8002, which postpones the time for appealing from the bank-
ruptcy court to the district court when a Rule 9024 post-trial
motion is pending—just as Federal Rule of Appellate Proce-
dure 6 tolls appeals court review when a Rule 8015 motion is
pending in the district court acting in its bankruptcy appellate
capacity. Compare Fed. R. Bankr. P. 8002(b)(4), with Fed.
R. App. P. 6(b)(2)(A)(i). And as the district court pointed out,
the Fifth Circuit has squarely held that Bankruptcy Rule
8015 offers litigants the only means for challenging district
court bankruptcy appellate orders. See Butler v. Merchants
Bank & Trust Co., 2 F.3d 154, 155 (5th Cir. 1993) (‘‘When the
district court is acting as an appellate court in a bankruptcy
case, ‘Bankruptcy Rule 8015 provides the sole mechanism for
filing a motion for rehearing.’ ’’ (quoting In re Eichelberger,
943 F.2d 536, 538 (5th Cir. 1991))).
In the end, we need not resolve this issue because no
matter how ESU styled its motion to vacate, circuit precedent
prevents litigants from creating the kind of gap in appellate
tolling rules that ESU advocates. As discussed above, ESU’s
jurisdictional argument exploits a purported opening created
by the appellate rules—specifically Federal Rule of Appellate
Procedure 6, which renders Federal Rule of Appellate Proce-
dure 4(a)(4) inapplicable to bankruptcy appeals. We filled a
similar void in Moy v. Howard University, 843 F.2d 1504
(D.C. Cir. 1988) (per curiam), holding that ‘‘the timing of [a
post-judgment] filing, without more, determines whether it
tolls the time limit on filing an appeal.’’ Id. at 1506. We
think that resolution applies here as well.
In Moy, we considered the timeliness of an appellant’s
notice of appeal in the non-bankruptcy context under the pre–
1993 procedural rules. At that time, Federal Rule of Appel-
late Procedure 4 tolled the time for seeking appellate review
while a Rule 59(e) motion to amend a judgment—but not a
Rule 60(b) motion for relief from judgment—was pending in
the district court. See Fed. R. App. P. 4(a)(4) advisory
8
committee’s note (1993 Amendment). Because of this omis-
sion, the timing of appellate review could have turned on how
a post-trial motion was characterized. If the motion was
considered a Rule 59 motion, the party had to file it within
ten days, see Fed. R. Civ. P. 59(e), and the motion’s pendency
tolled the time for seeking appellate review, see Moy, 843
F.2d at 1505. By contrast, if the motion was considered a
Rule 60(b) filing, the litigant had one year or more to file the
post-judgment motion, see Fed. R. Civ. P. 60(b), but the
pendency of the motion neither tolled the time for filing a
notice of appeal, see Moy, 843 F.2d at 1505, nor precluded
appellate review, see Hoai, 935 F.2d at 312. Thus, litigants
could argue endlessly over whether the court of appeals had
jurisdiction (or, more important for purposes of this case,
whether the district court retained jurisdiction) based on
whether a motion challenging the correctness of the district
court order had a ‘‘Rule 59’’ or ‘‘Rule 60’’ label. Because ‘‘the
particular label given to such a motion is of no consequence,’’
we held that ‘‘if a post-judgment motion that properly could
be construed as a Rule 59(e) motion satisfies the 10–day
service requirement, it is to be treated as a Rule 59(e) motion
for tolling purposes.’’ Moy, 843 F.2d at 1505–06 (footnote
omitted).
ESU’s decision to file under Rule 60 rather than Bankrupt-
cy Rule 8015 seeks to re-create the kind of void that Moy
(and later the 1993 amendment to FRAP 4) closed. Applying
Moy to the bankruptcy context, then, we hold that irrespec-
tive of how parties characterize their motions for reconsidera-
tion in bankruptcy appeals, a motion for reconsideration filed
within Bankruptcy Rule 8015’s ten-day limit should be treated
as an 8015–motion that postpones appellate review during its
pendency. Because ESU filed its motion to vacate within ten
days of the district court’s June Dismissal Order, we will
therefore consider it a Rule 8015 motion that tolls the time
for seeking appellate review. Thus, ESU’s notice of appeal
did not take effect while its motion to vacate remained
pending in the district court, leaving that court with jurisdic-
tion to grant ESU’s motion for post-judgment relief and again
to dismiss the organization’s appeal.
9
III.
Both Bankruptcy Rule 8001 and Local Rule 8009–1 author-
ize district courts in this jurisdiction to dismiss bankruptcy
appeals when appellants fail to file briefs on time. See Fed.
R. Bankr. P. 8001(a) (‘‘An appellant’s failure to take any step
other than timely filing a notice of appeal TTT is ground only
for such action as the district court TTT deems appropriate,
which may include dismissal of the appeal.’’); D.D.C. Local
Bankr. R. 8009–1 (‘‘If, after an appeal has been noted TTT, the
appellant fails to serve and file a brief within the time
required by Bankruptcy Rule 8009, the District Court may,
upon motion of the appellee TTT, or upon its own order,
dismiss the appeal for failure to comply with [the time
limit].’’). We review dismissals for failure to prosecute for
abuse of discretion. See Trakas v. Quality Brands, Inc., 759
F.2d 185, 186 (D.C. Cir. 1985).
In reviewing ESU’s challenge to the district court’s dis-
missal of its case, we balance two important yet competing
interests. On the one hand, ‘‘our judicial system[ ] [reflects a]
strong presumption in favor of adjudications on the merits.’’
Shepherd v. Am. Broad. Cos., 62 F.3d 1469, 1475 (D.C. Cir.
1995). As the Supreme Court has explained, ‘‘[i]t is too late
in the day and entirely contrary to the spirit of the Federal
Rules of Civil Procedure for decisions on the merits to be
avoided on the basis of TTT mere technicalities.’’ Foman v.
Davis, 371 U.S. 178, 181 (1962). Therefore, dismissal, ‘‘the
death knell of the lawsuit,’’ Aoude v. Mobil Oil Corp., 892
F.2d 1115, 1118 (1st Cir. 1989) (internal quotation marks
omitted), should be used only as a last resort. See Trakas,
759 F.2d at 186–87.
On the other hand, district courts need powerful tools to
manage their dockets, prevent undue delay, and sanction
those who abuse the system. See Link v. Wabash R.R. Co.,
370 U.S. 626, 629–30 (1962); Shea v. Donohue Constr. Co.,
795 F.2d 1071, 1074 (D.C. Cir. 1986). Strictly enforcing
procedural rules ensures both that cases are adjudicated
efficiently and that litigants argue their causes on a level
playing field. Moreover, district courts need authority to
10
dispense severe sanctions ‘‘not merely to penalize those whose
conduct may be deemed to warrant such a sanction, but to
deter those who might be tempted to such conduct in the
absence of such a deterrent.’’ Nat’l Hockey League v. Metro.
Hockey Club, Inc., 427 U.S 639, 643 (1976) (per curiam).
In the context of dismissals of bankruptcy appeals for non-
jurisdictional procedural violations, as here, several of our
sister circuits have reconciled these goals by recognizing a
district court’s power to dismiss appeals for want of prosecu-
tion, but at the same time requiring district courts to justify
dismissal under the particular circumstances of each case. In
In re Scheri, 51 F.3d 71 (7th Cir. 1995), for example, the
Seventh Circuit held that district courts could dismiss appeals
under Bankruptcy Rule 8001 for failure to comply with Bank-
ruptcy Rule 8009’s time deadlines for filing briefs only upon a
showing of bad faith, negligence, or indifference, and only
after adequately explaining the basis for the dismissal. Id. at
74–75. The court noted that ‘‘[w]hen district courts have
found dismissal to be the appropriate sanction because the
record demonstrates a consistent pattern of dilatoriness or
multiple failures to comply with deadlines, courts of appeals
have not hesitated to affirm the district court’s exercise of
discretion.’’ Id. at 74. In that case, the court vacated the
dismissal because the district court failed to describe the
appellant’s misconduct adequately and to assess its effect on
the case. Id. at 75–76. Without sufficient explanation from
the district court—the court ‘‘in the best position to assess
the nature of the delay, the motivations of the parties and
their attorneys, and the impact of the delay on the court’s
calendar,’’ id. at 75—the Seventh Circuit found itself unable
to determine whether the district court’s conclusions could
survive even highly deferential abuse of discretion review, id.
at 76.
The Fourth Circuit requires district courts to channel their
Rule 8001 discretion to dismiss in a similar manner. See In
re SPR Corp., 45 F.3d 70, 74 (4th Cir. 1995). According to
the Fourth Circuit, ‘‘a district court [normally must] consider
and balance all relevant factors, including the good faith of
the appellant TTT and possible prejudice to other partiesTTTT
11
[T]hroughout the process a district court should bear in mind
that, although dismissal is an option, less drastic alternatives
must be consideredTTTT’’ Id. Other courts of appeals apply
like standards. See, e.g., In re Fitzsimmons, 920 F.2d 1468,
1474 (9th Cir. 1990) (finding that a district court must consid-
er a party’s possible bad faith and the availability of alterna-
tive sanctions except in egregious circumstances); In re
Beverly Mfg. Corp., 778 F.2d 666, 667 (11th Cir. 1985) (hold-
ing that the dismissal of a bankruptcy appeal is proper only
when the appellant shows bad faith, negligence, or indiffer-
ence).
While the factors identified by these decisions are relevant,
we are reluctant to impose on district courts any hard-and-
fast rule that compels them to mechanically apply a multi-
element test before dismissing bankruptcy appeals. We
think that district courts can achieve the proper balance
between trying cases on the merits and managing their
dockets efficiently by considering the circumstances before
them and explaining why it is in the interest of justice to
dismiss rather than to proceed to the merits. For example,
was counsel’s failure to file on time part of a pattern of
negligent or willful disregard of court orders? Did the failure
to file adversely affect the court’s docket or prejudice other
parties? And perhaps most important, would less drastic
sanctions such as fining counsel be ineffective? As part of
this inquiry, moreover, district courts will generally need to
provide notice of the potential dismissal and an opportunity
for the errant litigant to explain its conduct. Based on that
explanation, the court can then determine the appropriate
sanction and articulate its reasons for selecting its chosen
course of action.
In our view, this approach not only properly calibrates the
importance of deciding cases on the merits and preserving
district courts’ authority to control their dockets, but also
ensures that this court is able to exercise its highly deferen-
tial review. As the Seventh Circuit explained:
The district judge should be presumed to have acted
reasonably, and reversal is warranted therefore only
12
if it is plain either that the dismissal was a mistake
or that the judge did not consider factors essential
to the exercise of a sound discretionTTTT We ask
only for a sufficient explanation from the district
court to permit us to fulfill our limited, but impor-
tant, responsibilities. Deferential review cannot
mean no review at all.
Scheri, 51 F.3d at 76 (citation and internal quotation marks
omitted).
Requiring district courts to give notice and consider the
circumstances underlying the procedural violation conforms
to our own practice. When a party fails to file a brief on
time, we ordinarily issue a show cause order, offering it an
opportunity to explain. Based on that explanation, we decide
whether to accept the late-filed brief or to impose a sanction,
which can include dismissal. Compare Piccolo v. Executive
Office for the United States Attorneys, No. 03–5004 (D.C. Cir.
Nov. 25, 2003) (per curiam) (order accepting appellees’ late-
filed brief despite counsel’s ‘‘inattentive TTT handling of [the]
appeal [because] appellant has not shown any prejudice re-
sulting from the tardy submission of appellees’ brief’’), with
Samuels v. Providence Hosp., No. 98–7013, 1999 WL 1215780,
at *1 (D.C. Cir. Nov. 19, 1999) (per curiam) (dismissing an
appeal after the appellant failed to provide ‘‘a sufficient
justification for her failure to file her brief’’).
Applying these principles here, we think a fuller explana-
tion was required to justify dismissal of ESU’s appeal. In its
September Dismissal Order, the district court stated:
It has been over five months since this Bankruptcy
Appeal was filed. The Court has been extremely
patient with [ESU] and has on two occasions provid-
ed additional time to submit briefing in this matter.
The Court’s wellspring of patience is now officially
bankrupt. As such, the Court shall dismiss with
prejudice this appeal.
No. 02–605, slip op. at 5. Although we certainly see how
ESU could have tried the district court’s patience—after all,
it sought repeated extensions of time, usually at the eleventh
hour, and baldly ignored the district court briefing schedule—
13
the organization actually missed only one court-imposed dead-
line. Yet because the district court offered ESU no opportu-
nity to explain and made no findings about the circumstances
surrounding ESU’s failure to file by the September 9 dead-
line, we cannot tell whether the district court properly con-
cluded that dismissal was warranted. We do not know, for
example, whether the district court thought that, under all
the circumstances of the case, ESU acted in bad faith by
declining to file a brief based on an uncertain legal theory and
simultaneously failing to advise the court of its reasons for
not filing. Nor do we know whether the district court
believed that ESU’s procedural failing disadvantaged Elm’s
legal position or prejudicially delayed disposition of the John-
son bankruptcy estate. Nor, finally, do we know whether the
district court considered alternative sanctions—such as fining
counsel or requiring ESU to pay Elm’s legal fees. Absent
such explanation, we are unable to determine whether dis-
missing the case was, under the circumstances, a proper
exercise of discretion.
Contrary to Elm’s assertion, nothing in In re AOV Indus-
tries, Inc., 798 F.2d 491 (D.C. Cir. 1986), requires a different
result. Although that decision affirmed a dismissal of a
bankruptcy appeal, the district court there, unlike here, or-
dered the appellant, who for ten months had taken no action
to prosecute his appeal, to file his brief or face dismissal. Id.
at 494. Not only did the appellant fail to respond properly to
this second chance, but he even ignored a subsequent motion
to dismiss. Id.
In closing, we emphasize that this opinion in no way limits
the district court’s range of options on remand. After consid-
ering ESU’s explanation for its behavior, the court may well
decide to accept ESU’s brief, to impose an appropriate sanc-
tion on counsel, or even to dismiss the case with prejudice.
Should the court again decide that dismissal is necessary, and
should ESU then appeal, we will have the district court’s
reasoning before us as the basis for exercising our highly
deferential review.
14
IV.
This brings us finally to ESU’s cost appeal. Although ESU
filed a notice of appeal challenging the district court’s June
Dismissal Order, which dismissed ESU’s cost appeal for lack
of jurisdiction, it chose not to brief the cost issue here,
claiming that it had filed the appeal only to preserve the issue
in the event that we were to affirm the dismissal of the case.
See Appellant’s Br. at 7. At oral argument, Elm insisted that
ESU’s cost appeal is before us now, urging that we dismiss it
in light of ESU’s failure to argue its merits.
The parties’ arguments on this issue, to put it mildly, leave
something to be desired. The few sentences that ESU’s brief
devotes to this question are unsupported, and Elm, which had
argued in its brief that only the district court’s September
Dismissal Order is before the court, switched its position at
oral argument. In any event, because ESU asks us for no
relief from the dismissal of the cost appeal at this time, we
will neither consider whether the district court correctly
dismissed that appeal nor decide whether ESU has now
waived its right to challenge the dismissal altogether. See
United States v. Taylor, 339 F.3d 973, 977 (D.C. Cir. 2003)
(stating that an appellant waives his right to pursue issues
that are ripe for consideration when he fails to raise them in
his opening brief); In re Grabill Corp., 983 F.2d 773, 775 (7th
Cir. 1993) (‘‘An appeal from a final judgment brings up for
review by the appellate court all orders (except those that
have become moot) rendered by the trial court previously in
the litigation.’’).
V.
The district court’s judgment is reversed and the matter
remanded for further proceedings consistent with this opin-
ion.
So ordered.