Appellate Decisions

A Multi-Purpose Notice of Appeal

Courts have split on whether a single filing can serve as both a motion to reopen the appeal window and a notice of appeal.

January 2, 2024

By Bryan Lammon

In Winters v. Taskila, the Sixth Circuit held that a notice of appeal was effectively a motion to reopen the appeal window. The court went on to hold that once the district court reopened that window, this notice was also a notice of appeal. The courts of appeals have split on whether a notice of appeal can serve these dual functions. According to the Sixth Circuit, resolution of this split is now a matter for the Rules Committee.

The Notice of Appeal in Winters

Simplifying a bit, Winters involved a habeas petitioner’s seemingly late-filed notice of appeal. The district court denied habeas relief in March. But the petitioner did not file a notice of appeal until June. In that notice, he explained that he had not received the district court’s judgment until late May. This notice of appeal was filed within 14 days of the day on which the petitioner received the district court’s judgment.

The Sixth Circuit initially dismissed the petitioner’s appeal as untimely. But it left any consideration of reopening the appeal deadline to the district court. On remand, the district court treated the June notice of appeal as a motion to reopen. The district court then granted the motion to reopen and concluded that the June notice of appeal was filed within the reopened appeal window.

Reopening & Giving Notice

The Sixth Circuit held that the petitioner’s notice of appeal could function as both a motion to reopen and a notice of appeal.

On the first point, the Sixth Circuit distinguished between bare-bones notices and those that offer some explanation for the late filing. A bare-bones notice of appeal—one that states only the bare minimum needed to satisfy Federal Rule of Appellate Procedure 3—would not function as a motion to reopen. But “a notice of appeal that adds other information—say, that the appeal is late, that explains what happened, that explains why the appellant could not have filed it earlier—may in some circumstances be construed as a motion for extension or to reopen even though it does not explicitly use those words.” The notice in Winters had everything necessary to seek reopening.

On the second point, the Sixth Circuit saw no reason why the notice of appeal could not function as both a motion and a notice. To be sure, the notice in Winters did a lot in only two sentences:

(1) It looked like a notice of appeal but we did not treat it as one because it was late; (2) it then looked like a motion for an extension of time (given the excuse in it) but we did not treat it as one because that too would have been late; (3) it then became a motion to reopen, which was not late; and (4) it then served as a certificate of appealability.

Not every court agrees that a notice of appeal can be so multi-functional. For example, the Fourth Circuit recently held that a single notice could not be both a motion to reopen and a notice of appeal. But the Sixth Circuit thought that resolving the disagreement on this point was better left to the Rules Committee.

Winters v. Taskila, 2023 WL 8663885 (6th Cir. Dec. 15, 2023), available at the Sixth Circuit and Westlaw

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