Cert Grant on Post-Reopening Notices of Appeal
Disclosure: I filed an amicus brief in the Fourth Circuit in support of rehearing its decision in this case and discussed the cert petition with the petitioner’s counsel.
Last week, the Supreme Court granted certiorari in Parrish v. United States. The case asks if a would-be appellant must file a second notice of appeal after a court treats the first notice as a motion to reopen the time to appeal under Federal Rule of Appellate Procedure 4(a)(6).
Last summer, a divided Fourth Circuit held that a second notice of appeal was necessary. You can read about that decision at this post: The Fourth Circuit Requires a Second Notice of Appeal After the Appeal Window is Reopened. The Fourth Circuit later denied rehearing on this issue by a 9-6 vote; here’s a post on that: No Rehearing on Rule 4(a)(6) & Multi-Purpose Notices of Appeal. And it’s an issue on which the courts of appeals have split.
Notably, the United States agreed in its opposition brief that the Fourth Circuit was wrong on this point. But it opposed certiorari, arguing that the issue didn’t warrant the Supreme Court’s attention. The United States observed that the issue arises rarely. And the Advisory Committee on the Federal Rules of Appellate Procedure is looking into the matter.
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