The Fourth Circuit made the widely accepted (yet often implicit) point that a notice of appeal must come after the decision a litigant wants to appeal.
March 20, 2024
Federal Rule of Appellate Procedure 4(a)(1) says that a notice of appeal must be filed within 30 days after entry of the judgment or order appealed from. Taken literally, Rule 4 might permit notices of appeal filed before the district court ever makes a decision. After all, that point in time is before—perhaps well before—30 days after the decision.
But courts don’t read the rule literally. They instead require that the notice be filed between the appealed decision and the expiration of the time to appeal. So in Wall Guy, Inc. v. Federal Deposit Insurance Corp., the Fourth Circuit dismissed an appeal that was filed before the appealed decision.
The decision illustrates the difference between two kinds of premature notices of appeal. Sometimes notices are filed after the appealed decision but before the entry of a judgment. Courts frequently relate those notices forward to entry of the judgment using the doctrine of cumulative finality. But a notice filed before the appealed decision is irredeemably premature.
The Premature Appeal in Wall Guy
After the district court entered judgment against the plaintiffs in Wall Guy, both parties sought reconsideration under Federal Rule of Civil Procedure 59(e). Around that time, the plaintiffs also filed a notice of appeal. That notice designated both the original judgment and “any rulings on pending Rule 59(e) post-judgment motions etc.”
The district court later resolved the Rule 59(e) motions (partially granting the defendant’s and denying the plaintiffs’) and entered an amended judgment. But the plaintiffs did not file a second notice of appeal or amend their original. They instead relied on their already-filed notice of appeal. And in their appeal, the plaintiffs challenged the resolution of their Rule 59(e) motion. (Because the district court had granted the Rule 59(e) motions in part, any appeal from the original judgment was moot.)
The Requirement of a Second/Amended Notice for Post-Judgment Decisions
The Fourth Circuit concluded that the plaintiffs had not effectively appealed the district court’s Rule 59(e) decision. Under Rule 4(a)(4)(B)(i), the notice of appeal the plaintiffs filed took effect once the district court resolved their Rule 59(e) motion. But that notice was filed before the district court had resolved that motion. In other words, it was filed before the decision that the plaintiffs wanted to appeal.
That made the notice ineffective. Although not expressly stated in the rules, courts require that a notice of appeal come after the appealed decision. The Supreme Court suggested as much in Manrique v. United States, in which the court noted that “Rule 4 contemplate[s] that the [would-be appellant] will file the notice of appeal after the district court has decided the issue sought to be appealed.” Indeed, Rule 4(a)(4)(B)(ii) expressly addresses the need for a second or amended notice of appeal when challenging the disposition of a post-judgment motion:
A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or a judgment’s alteration or amendment upon such a motion, must file a notice of appeal, or an amended notice of appeal—in compliance with Rule 3(c)—within the time prescribed by this Rule measured from the entry of the order disposing of the last such remaining motion.
No Relation Forward for Future Decisions
The Fourth Circuit added that the notice could not relate forward under Rule 4(a)(2).
That rule provides that “[a] notice of appeal filed after the court announces a decision or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.” So Rule 4(a)(2) can sometimes save a premature notice of appeal.
But even under Rule 4(a)(2), the premature notice must come after the the decision that the would-be appellant wants reviewed. And this makes sense. “[B]efore a decision is made, neither party knows whether that decision will be favorable or adverse to their interests.” So a notice filed before a decision cannot do its most basic job: giving notice of a party’s intent to appeal.
The court went on to address whether something else the plaintiffs had filed might effectively be a timely notice of appeal. On this point, the plaintiffs were apparently not much help, and the Fourth Circuit would not “rescue” the plaintiffs by independently finding a ground for appellate jurisdiction. The court accordingly dismissed the appeal.
Wall Guy, Inc. v. Federal Deposit Insurance Corp., 2024 WL 1151667 (4th Cir. Mar. 18, 2024), available at the Fourth Circuit and Westlaw