The en banc Fourth Circuit declined to rehear a case asking whether a single notice of appeal could be treated as both a Rule 4(a)(6) motion and—once that motion was granted—a notice of appeal.
April 24, 2024
Disclosure: I filed an amicus brief in support of rehearing in this appeal.
In last summer’s Parrish v. United States, a divided Fourth Circuit panel held that when a notice of appeal is treated as a motion to reopen the appeal period under Federal Rule of Appellate Procedure 4(a)(6), the would-be appellant must file a second notice of appeal after that motion is granted. The majority thought that by using the term “reopen” in 28 U.S.C. § 2107(c)—the statute that Rule 4(a)(6) implements—Congress intended to create a second, separate appeal period, distinct from the original one. And a new notice must be filed within that new appeal period. The original notice, which had been treated as a Rule 4(a)(6) motion, was insufficient.
I was pretty critical of the decision—see my post The Fourth Circuit Requires a Second Notice of Appeal After the Appeal Window is Reopened. The issue is one on which the courts have split, and the Fourth Circuit’s side makes little sense to me.
I was accordingly happy to see the plaintiff seek rehearing en banc. I filed an amicus brief in support of rehearing, arguing that the panel’s decision—in addition to being wrong for all the reasons set out in the rehearing petition—conflicted with the cumulative-finality doctrine. The United States (the defendant in the action) agreed that the panel decision was wrong. But it thought that the issue was not important enough to warrant en banc rehearing.
A divided Fourth Circuit denied rehearing en banc, with nine judges voting against rehearing and six voting for it.
Judge Niemeyer (who wrote the panel opinion) filed a concurrence. He agreed with the United States that “[t]he issue in this case [did] not rise to the level that would justify an en banc rehearing.” But he also thought that the panel decision was correct, involving “a straightforward application” of § 2107(c) and Rule 4(a)(6). He again emphasized the term “reopen,” thinking it “clear that the texts of § 2107(c) and Rule 4(a)(6) did not permit a resurrection of [the] earlier notice of appeal.”
Judge Gregory, joined by three other judges, dissented. He explained that the statutory and rule text does not answer the relevant questions: “whether an untimely notice of appeal may be validated by a district court’s subsequent grant of a Rule 4(a)(6) motion,” and “whether a single filing may serve as both a motion to reopen the appeal period and a notice of appeal.” He also pointed out that the court’s decision would harm the often-vulnerable litigants who rely on Rule 4(a)(6)’s protection: pro se plaintiffs, including “[t]he elderly, unhoused, detained, imprisoned, and differently abled.” The issue was thus a significant one, despite the infrequency with which it might arise, that warranted the full court’s attention.
It should be no surprise that I’m with Judge Gregory on this one. Hopefully this is not the last we hear of this matter.
Parrish v. United States, 2024 WL 1736340 (4th Cir. Apr. 23, 2024), available at the Fourth Circuit and Westlaw