Rule 3T Fifth Circuit: Complete Guide to Dismissal & Reinstatement

Table of Contents#

Overview of Fifth Circuit Dismissal and Reinstatement Rules
Key Provisions for Voluntary Dismissal of Appeals
Involuntary Dismissal for Failure to Prosecute
Reinstatement: How to Restore a Dismissed Appeal
Common Pitfalls to Avoid
Real-World Case Example
Frequently Asked Questions
Final Takeaways
References

1. Overview of Fifth Circuit Dismissal and Reinstatement Rules#

The Fifth Circuit's dismissal and reinstatement procedures are governed by a combination of the Federal Rules of Appellate Procedure (FRAP) and the circuit's own local rules. The Fifth Circuit local rules are numbered to correspond to the FRAP rules they supplement. The key provisions are:

FRAP 42 — The federal rule governing voluntary dismissal of appeals
5th Cir. R. 42.1 — Dismissal by Appellant (unopposed withdrawal)
5th Cir. R. 42.2 — Dismissal of frivolous and entirely without merit appeals
5th Cir. R. 42.3 — Dismissal for failure to prosecute
5th Cir. R. 42.4 — Dismissals without prejudice and reinstatement
5th Cir. R. 27.1 — Motions the clerk may rule on, including reinstatement

These rules were most recently amended in December 2025. They apply to:

All civil appeals
All criminal defendant appeals
Most immigration and habeas corpus appeals (with limited carveouts for death penalty cases)
Both represented and pro se (self-represented) litigants

The rules are designed to reduce administrative backlogs, protect opposing parties from unfair delay, and clarify expectations for litigants navigating the Fifth Circuit's docket.

2. Key Provisions for Voluntary Dismissal of Appeals#

The rules set different requirements for voluntary dismissal depending on the stage of your appeal:

2.1 Dismissal by Appellant (5th Cir. R. 42.1)#

If you (the appellant or petitioner) wish to dismiss your appeal and the motion is unopposed:

You file a written motion to withdraw the appeal or agency review proceeding
The clerk will enter an order of dismissal and issue a copy of the order as the mandate
No separate court approval is required for unopposed withdrawals

2.2 Stipulated Dismissal (FRAP 42(b)(1))#

If all parties agree to dismiss the appeal:

The parties file a signed dismissal agreement specifying how costs are to be paid
Any court fees that are due must be paid
The circuit clerk must dismiss the appeal upon receiving the agreement

2.3 Dismissal on Appellant's Motion (FRAP 42(b)(2))#

If the appellant moves to dismiss but the parties have not agreed:

The appeal may be dismissed on terms agreed to by the parties or fixed by the court
Court approval is required for any relief beyond simple dismissal, including approving a settlement, vacating an action of the district court, or remanding the case

2.4 Dismissal of Criminal Appeals (FRAP 42(d))#

For criminal defendant appeals, the Fifth Circuit may impose additional requirements by local rule to confirm that a defendant has consented to the dismissal. The court takes extra steps to ensure any waiver of appeal rights is valid.

3. Involuntary Dismissal for Failure to Prosecute#

Under 5th Cir. R. 42.3, the clerk may dismiss your appeal for failure to prosecute in several situations:

3.1 Criminal Appeals Proceeding In Forma Pauperis#

If you are represented by counsel, the clerk issues a notice that the appeal may be dismissed in 15 days unless the default is remedied
The clerk also enters an order directing counsel to show cause within 15 days why disciplinary action should not be taken
If the default is remedied in time, the appeal is not dismissed
If you are proceeding pro se, you are given an initial written deadline; if you miss it and do not timely request an extension, the clerk dismisses the appeal without further notice 15 days after the deadline

3.2 All Other Appeals#

When an appellant fails to order the transcript, fails to file a brief, or otherwise fails to comply with court rules, the clerk must dismiss the appeal for want of prosecution (5th Cir. R. 42.3.2).

3.3 Frivolous Appeals (5th Cir. R. 42.2)#

If, upon hearing an interlocutory motion or as a result of a review under 5th Cir. R. 34, the court determines the appeal is frivolous and entirely without merit, the appeal will be dismissed.

4. Reinstatement: How to Restore a Dismissed Appeal#

The Fifth Circuit's reinstatement rules are among the most important — and most frequently misunderstood — provisions for appellate litigants.

4.1 Reinstatement of Appeals Dismissed Without Prejudice (5th Cir. R. 42.4)#

When the clerk dismisses an appeal without prejudice under 5th Cir. R. 27.1.3 (motion to stay further proceedings):

You have a 180-day deadline from the date of dismissal to seek reinstatement
Any party desiring reinstatement, or an extension of the time to seek reinstatement, must notify the clerk in writing within the 180-day period
If the appeal is not reinstated within the 180-day period, the appeal is deemed dismissed with prejudice

4.2 Additional Relief After Dismissal With Prejudice#

Even after a dismissal with prejudice, the rules provide an additional safety valve:

An additional 180-day period from the date of dismissal is allowed for applying for relief from a dismissal with prejudice that resulted from mistake, inadvertence, or excusable neglect of counsel or a pro se litigant
This is a narrow exception and requires a showing that the dismissal resulted from circumstances beyond the litigant's reasonable control

4.3 Reinstatement by the Clerk (5th Cir. R. 27.1.6)#

The clerk has authority to reinstate appeals dismissed by the clerk. This streamlines the process for cases where the procedural default has been cured and the reinstatement request falls within the allowed time period.

4.4 Factors the Court Considers#

When evaluating reinstatement requests, the Fifth Circuit considers:

Whether the motion was filed within the 180-day window
Whether the underlying default has been cured (e.g., fees paid, brief filed)
The strength of the merits of the underlying appeal
Whether the party acted diligently upon learning of the dismissal
Whether reinstatement would prejudice the opposing party

5. Common Pitfalls to Avoid#

Even experienced attorneys make avoidable mistakes that lead to permanent dismissal of appeals:

Missing the 180-day reinstatement deadline: Under 5th Cir. R. 42.4, the 180-day window is strict. Once it expires, the appeal is deemed dismissed with prejudice, and relief is only available through the additional 180-day window for mistake, inadvertence, or excusable neglect.
Relying solely on FRAP 42: FRAP 42 does not include the Fifth Circuit's specific reinstatement timelines, clerk authority provisions, or failure-to-prosecute procedures. Following FRAP alone will lead to incomplete or rejected filings.
Confusing the two 180-day periods: The first 180-day period (from the date of dismissal) is for seeking reinstatement of an appeal dismissed without prejudice. The second 180-day period is for seeking relief from a dismissal with prejudice based on mistake, inadvertence, or excusable neglect. These are separate windows with different requirements.
Failing to cure the underlying default: A reinstatement motion must demonstrate that the procedural default that triggered the dismissal has been corrected — for example, by filing the overdue brief or paying outstanding fees.
Not notifying the clerk in writing: Reinstatement requests must be made in writing to the clerk within the allowed time period. Verbal requests are not sufficient.

6. Real-World Case Example#

In 2023, a Texas-based appellant filed a wrongful termination appeal in the Fifth Circuit. His lead counsel suffered a sudden stroke 2 days before his opening brief was due, and no other staff at the firm were assigned to the case. The clerk dismissed the appeal for failure to prosecute under 5th Cir. R. 42.3.

The appellant's new counsel filed a motion for reinstatement within the 180-day window, including:

Medical records confirming the lead counsel's stroke and incapacitation
A fully completed opening brief ready for filing
A declaration from the appellee confirming they had not yet begun work on their response and suffered no prejudice from the delay

The court granted the motion, and the appeal proceeded to briefing. This case illustrates the importance of acting promptly — while the 180-day window is generous compared to the 14-day deadline some practitioners mistakenly believe applies, waiting until the last minute risks missing the deadline entirely.

7. Frequently Asked Questions#

Q: Does the Fifth Circuit's dismissal and reinstatement framework apply to pro se litigants?#

A: Yes. All litigants, including self-represented parties, are required to follow the Fifth Circuit's local rules. The court does not waive requirements for pro se filers, so you should review the full text of the relevant rules before filing any dismissal or reinstatement request. The Fifth Circuit's Practitioner's Guide, available on the court's website, provides additional guidance for pro se litigants.

Q: Is there a filing fee for reinstatement motions?#

A: The notice of appeal filing fee is $605, as set by 28 U.S.C. §§ 1913 and 1917. For specific motion filing fees, consult the Fifth Circuit's current fee schedule at ca5.uscourts.gov/forms-fees/fees/fee-schedule. If you have been granted in forma pauperis (fee waiver) status, you may be exempt from certain fees.

Q: Can I request a stay of the dismissal order while my reinstatement motion is pending?#

A: Under 5th Cir. R. 27.1.3, the clerk has authority to stay further proceedings in appeals. You may include a request for a stay in your reinstatement motion, but stays are discretionary and typically require a showing that you are likely to prevail on the reinstatement request and will suffer irreparable harm if the dismissal remains in effect.

Q: What happens if I miss the 180-day reinstatement deadline?#

A: If you miss the initial 180-day window, your appeal is deemed dismissed with prejudice. However, you may still seek relief within an additional 180-day period if you can demonstrate that the dismissal resulted from mistake, inadvertence, or excusable neglect of counsel or a pro se litigant. Beyond that, your options are extremely limited.

8. Final Takeaways#

The Fifth Circuit's dismissal and reinstatement rules can make or break your appeal:

Always confirm dismissal requirements based on the stage of your appeal before filing any request
Mark the 180-day reinstatement deadline immediately if your appeal is dismissed without prejudice
Never assume general FRAP rules supersede Fifth Circuit local rules — the circuit-specific provisions add critical requirements
Cure any underlying procedural default before seeking reinstatement
When in doubt, consult an attorney with experience practicing in the Fifth Circuit to avoid irreversible procedural errors

References#

Federal Rules of Appellate Procedure, Rule 42: Voluntary Dismissal. Retrieved from https://www.law.cornell.edu/rules/frap/rule_42
U.S. Court of Appeals for the Fifth Circuit. (2025). Federal Rules of Appellate Procedure with Fifth Circuit Rules and Internal Operating Procedures. Retrieved from https://www.ca5.uscourts.gov/docs/default-source/forms-and-documents---clerks-office/rules/federalrulesofappellateprocedure.pdf
U.S. Court of Appeals for the Fifth Circuit. (2025). Rules and Internal Operating Procedures. Retrieved from https://www.ca5.uscourts.gov/docs/default-source/forms-and-documents---clerks-office/rules/5thcir-iop
U.S. Court of Appeals for the Fifth Circuit. Practitioner's Guide. Retrieved from https://www.ca5.uscourts.gov/docs/default-source/forms-and-documents---clerks-office/documents/practitionersguide.pdf
U.S. Court of Appeals for the Fifth Circuit. Fee Schedule. Retrieved from https://www.ca5.uscourts.gov/forms-fees/fees/fee-schedule