Federal Rule of Appellate Procedure 4(a)(2) should be amended to allow subsequent events to save any premature notice of appeal.
February 14, 2020
Updated with thoughts on some comments I’ve received.
In 2018, I published an article about cumulative finality. The cumulative-finality doctrine allows certain events to save certain premature notices of appeal. The rule can’t be stated much more specifically, however, because the law in this area is all over the map. My study of this area revealed three general approaches to cumulative finality and identified a number of inter- and intra-circuit splits. I also found confusion in the courts of appeals over how the general cumulative-finality doctrine interacts with Federal Rule of Appellate Procedure 4(a)(2), which was supposed to codify at least some of the doctrine.
I ended the article with a proposal to amend Rule 4(a)(2) to adopt the broadest approach to matters of cumulative finality. I have now put together a formal rule proposal based on my research. The suggested language is a bit different from that in my article, but the analysis is largely the same. For anyone curious, I’ve reproduced my proposal below.
Update: A reader contacted me with some thoughts on my proposal, specifically that it would encourage early notices of appeal—perhaps even some filed alongside the pleadings. If a notice can come before the decision a party would want to appeal, uncertainty could exist as to which specific appealable orders or judgments the early notice would apply.
I’m very sympathetic with this concern. There’s actually an early cumulative-finality decision in the Ninth Circuit in which a concurring judge expressed a similar concern:
I do wonder how we shall hold when a plaintiff files his notice of appeal as an appendage to his original complaint.
When I first wrote my article on cumulative finality, I thought that Federal Rule of Appellate Procedure 3(c)’s order-designation requirement would solve this problem. Appellants have to specify in their notice of appeal the judgment or order being appealed, and courts have used that order designation requirement to prevent appeals from decisions that come after a notice is filed. But the proposed amendments to Rule 3(c) (which I fully support) undermine that reasoning. If the order-designation requirement is not supposed to set the scope of appeal, then it makes little sense to prevent a party from appealing an decision made after a notice is filed just because the subsequent decision was not specified in the notice.
So if the amendments to Rule 3(c) go through, I think it’s entirely conceivable that parties might file their notice of appeal along with their pleadings and—so long as that notice is not stricken or the appeal dismissed—be able to appeal. I don’t like that scenario. But I prefer it to parties’ losing their right to appeal because they filed too early.
I think that two characteristics of federal appellate jurisdiction preclude a completely satisfactory solution to this problem. First, the law governing when parties can and must appeal is not always clear, so they make mistakes. Second, few procedures exist for rapidly identifying and resolving improper appeals before the time for filing a technically proper notice has passed. And those that do exist are (in my anecdotal experience) rarely used; when a motion to dismiss is filed in a case of debatable jurisdiction, it seems to often get carried with the case and decided after full merits briefing. So long as federal appellate jurisdiction has these characteristics, we’ll likely have the problem of premature notices of appeal that linger around until the time for filing a technically timely notice is over. So it seems we must either allow parties to lose their right to appeal because they were too early, or we must put up with occasional early notices.
Things might be better if the rules governing the time for appealing were more clear (which happens to be the topic of my long-term research agenda). Clearer rules might allow for more rapid identification of improper appeals, which could let parties know that they need to file a new notice of appeal before the time for doing so has expired. But we’re not there yet.
Proposed amendment to Federal Rule of Appellate Procedure 4(a)(2).
Dear Judge Chagares & Professor Hartnett:
I write to ask that the Advisory Committee on Appellate Rules consider amending Federal Rule of Appellate Procedure 4(a)(2).
Rule 4(a)(2) is supposed to give effect to notices of appeal filed before the district court enters a judgment or otherwise appealable order. But the courts of appeals are divided over when exactly Rule 4(a)(2) does so. They have also split on whether Rule 4(a)(2) supersedes the common law cumulative-finality doctrine that the rule (at least partially) codified. And courts do not just disagree with each other; several circuits have issued conflicting decisions on these matters. The Committee looked into these issues in 2010 and 2011 but ultimately decided to take no action. The intervening years have not made things any better.
I accordingly ask the Committee to look into this issue again. I recently published an article addressing these issues in depth: Cumulative Finality, 52 Ga. L. Rev. 767 (2018), a copy of which is attached. I use this letter to summarize my analysis in that article and propose a possible rule change. I first briefly discuss the history of cumulative finality up through the Supreme Court’s decision in FirsTier Mortgage Co. v. Investors Mortgage Insurance Co., 498 U.S. 269 (1991). Second, I describe the split among and within the circuits on the meaning of Rule 4(a)(2). Finally, I offer potential language for a rule amendment that would resolve the current cumulative-finality mess.
How We Got Here
Litigants normally must wait until the end of district court proceedings before filing a notice of appeal. But sometimes they file too early, before the district court has entered a judgment or other appealable decision. Problems can then arise if these litigants do not then file a second notice (or amend their first). No proper notice has been filed. And litigants that do not file a proper notice forfeit their right to appellate review. To address this problem, courts and rulemakers developed the cumulative-finality doctrine, which allows subsequent events to save a premature notice of appeal.
Cumulative finality first emerged as a coherent doctrine in the 1960s and 70s. The courts of appeals developed the doctrine to save a variety of prematurely filed notices of appeal. See Lammon, Cumulative Finality, supra, at 781–87. Courts held, for example, that notices filed after a district court announced its decision were saved by the district court’s subsequent entry of a judgment. See, e.g., Hodge v. Hodge, 507 F.2d 87 (3d Cir. 1975). They held that notices filed after dismissal of a complaint (but not dismissal of the entire action) were saved by the later dismissal of the action. See, e.g., Firchau v. Diamond National Corp., 345 F.2d 269 (9th Cir. 1965). Courts also held that notices filed after the district court resolved some (but not all) of the claims in a multi-claim action were saved by a subsequent judgment that resolved the remaining claims. See, e.g., Richerson v. Jones, 551 F.2d 918 (3d Cir. 1977); Jetco Electronics Industries, Inc. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973). And a few decisions from this time allowed subsequent events to save a notice of appeal filed after an order that did not even resolve a claim. See, e.g., Curtis Gallery & Library, Inc. v. United States, 388 F.2d 358 (9th Cir. 1967) (holding that a notice of appeal filed after summary judgment on only liability was saved by a subsequent judgment that determined the amount of damages).
Rule 4(a)(2) was added to the Federal Rules of Appellate Procedure in 1979. As amended, the rule now 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.” The Notes state that the rule was meant “to avoid the loss of the right to appeal by filing the notice of appeal prematurely.” The Notes also indicate that the Committee intended to codify an existing practice in the courts of appeals and cited to some the caselaw in this area.
But neither the Notes nor the rule itself specified what precisely was being codified or how the rule affected the then-existing common law cumulative-finality doctrine. And the post-Rule 4(a)(2) caselaw does not offer many hints. Despite the new rule, the courts of appeals continued to develop cumulative finality as a largely judge-made doctrine. See Lammon, Cumulative Finality, supra, at 788–93.
Then came the Supreme Court’s decision in FirsTier Mortgage Co. v. Investors Mortgage Insurance Co., 498 U.S. 269 (1991). FirsTier held that Rule 4(a)(2) saved a notice of appeal filed after a district court had announced from the bench its decision to dismiss the case but before it formally entered the final judgment of dismissal on the docket. The Court echoed the Committee Notes on the rule’s purpose and origins: Rule 4(a)(2) exists to prevent the loss of appellate rights when a late notice does not prejudice the appellee, and the rule codified an existing practice in the courts of appeals. But the Court added that Rule 4(a)(2) would not save every premature notice of appeal. The rule instead “permits a notice of appeal from a nonfinal decision to operate as a notice of appeal from the final judgment only when a district court announces a decision that would be appealable if immediately followed by the entry of judgment.”
The Current Split
FirsTier sowed the seeds for confusion in the courts of appeals; writing for the Tenth Circuit in In re Woolsey, 696 F.3d 1266, 1271 (10th Cir. 2012), then-Judge Gorsuch characterized FirsTier’s discussion of Rule 4(a)(2)’s limits as “cryptic and arguably tangential,” and he noted that the opinion is “open to many different understandings.” After FirsTier, the courts of appeals developed three approaches to cumulative finality. See Lammon, Cumulative Finality, supra, at 795–802. Some cases held that appeals only from decisions that resolve all outstanding issues in the district court can be saved by the entry of a final judgment. See, e.g., Miller v. Special Weapons, L.L.C., 369 F.3d 1033, 1035 (8th Cir. 2004). Other cases held that Rule 4(a)(2) will also save notices filed after decisions that could have been certified for an intermediate appeal under Rule 54(b). See, e.g., Outlaw v. Airtech Air Conditioning & Heating, Inc., 412 F.3d 156, 161–62 (D.C. Cir. 2005) (Roberts, J.). Still other cases held that nearly any district court decision, no matter how interlocutory, can be saved by a subsequent judgment. See, e.g.,Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 587 (3d Cir. 1999). The courts have also disagreed about the interaction between Rule 4(a)(2) and the common law doctrine that preceded it. Some courts hold that Rule 4(a)(2) is now the only source of law on cumulative finality. See, e.g., Outlaw, 412 F.3d at 160. Others have concluded that the common law doctrine survived Rule 4(a)(2) and continues to exist alongside it. See, e.g., Lazy Oil, 166 F.3d at 587.
The split is not just between the circuits; several circuits have issued internally inconsistent decisions on these matters. See Lammon, Cumulative Finality, supra, at 802–14. The Eighth Circuit, for example, has one decision holding that Rule 4(a)(2) saved a notice of appeal filed after the district court had ordered sanctions but before it determined the amount of those sanctions. Hill v. St. Louis University, 123 F.3d 1114, 1120–21 (8th Cir. 1997). But seven years later, the Eighth Circuit claimed to be unaware of any Eighth Circuit decision adopting the cumulative finality doctrine and held that neither the common law cumulative finality doctrine nor Rule 4(a)(2) saved a notice of appeal filed when a counterclaim remained outstanding. Miller, 369 F.3d at 1035.
Until recently, the Federal Circuit has generally taken the narrowest approach to cumulative finality, holding in two unpublished cases that notices filed only after decisions resolving all outstanding issues can be saved by the entry of a final judgment. See Stoney Point Prods., Inc. v. Underwood, 15 F. App’x 828, 830–31 (Fed. Cir. 2001) (holding that an appeal from “a judgment disposing of only some asserted claims” was not saved by a subsequent final judgment); Meade Instruments Corp. v. Reddwarf Starware, LLC, No. 99-1517, 2000 WL 987268, at *3 (Fed. Cir. June 23, 2000) (same). That court has, however, taken a broader approach in an appeal from the Board of Contract Appeals. See Fireman’s Fund Ins. Co. v. England, 313 F.3d 1344, 1348–49 (Fed. Cir. 2002). And just recently, the Federal Circuit allowed counsel to cure a premature notice by abandoning an unresolved counterclaim during oral argument. See Amgen Inc. v. Amneal Pharmaceuticals LLC, 945 F.3d 1368 (Fed. Cir. 2020). But the recent decision did not reference any of the Federal Circuit’s decisions in this context (or any other court’s decisions), nor did it mention Rule 4(a)(2). See Bryan Lammon, “The Federal Circuit & Cumulative Finality,” Final Decisions (Jan. 31, 2020), https://finaldecisions.org/the-federal-circuit-cumulative-finality.
The Fifth Circuit’s caselaw is in what’s probably the worst state. Even before FirsTier, the Fifth Circuit had issued a series of inconsistent decisions on how cumulative finality operates. Compare Alcorn County v. U.S. Interstate Supplies, Inc., 731 F.2d 1160, 1165–66 (5th Cir. 1984) (holding that a subsequent decision on the amount of attorneys’ fees saved a notice of appeal filed after the district court had determined liability, damages, and entitlement to attorney’s fees), and Tower v. Moss, 625 F.2d 1161, 1164–65 (5th Cir. 1980) (holding that the subsequent dismissal of the sole outstanding claim saved a notice of appeal filed from an earlier order dismissing only some of the claims), with United States v. Taylor, 632 F.2d 530, 531 (5th Cir. 1980) (holding that the subsequent dismissal of a plaintiff’s claims did not save the defendant’s notice of appeal filed after the dismissal of its counterclaims). The Fifth Circuit’s post-FirsTier decisions are a mess. That court first appeared to hold that Rule 4(a)(2) would save notices filed after decisions that could be certified for an intermediate appeal under Rule 54(b). See Barrett v. Atl. Richfield Co., 95 F.3d 375, 378–79 (5th Cir. 1996); Riley v. Wooten, 999 F.2d 802, 804–05 (5th Cir. 1993). But in United States v. Cooper, 135 F.3d 960, 963 (5th Cir. 1998), the Fifth Circuit held that FirsTier required the narrowest interpretation of Rule 4(a)(2)—only notices filed from decisions that resolve all outstanding issues in the district court can be saved by the entry of a final judgment. (Cooper addressed the scope of then-Rule 4(b), now Rule 4(b)(2), which is the criminal analogue of Rule 4(a)(2). Id. at 962. The Cooper court noted, however, that Rule 4(b) should be interpreted like the nearly identical Rule 4(a)(2). Id. at 962 n.1.) But Cooper’s limiting of Rule 4(a)(2) has not stuck, as some subsequent Fifth Circuit decisions reject it. See Miller v. Gorski Wladyslaw Estate, 547 F.3d 273, 277 n.1 (5th Cir. 2008) (holding that a premature notice of appeal filed after a partial grant of summary judgment was saved by the later disposition of all outstanding issues); Boudreaux v. Swift Transportation Co., 402 F.3d 536, 539 n.1 (5th Cir. 2005) (holding that a premature notice of appeal filed after the district court had granted summary judgment in favor of one defendant but before dismissing the claims against a second defendant was saved by the subsequent final judgment). See also Swope v. Columbian Chemicals Co., 281 F.3d 185, 191–92 (5th Cir. 2002).
The Fifth, Eighth, and Federal Circuits are not alone. The First, Third, Ninth, and Tenth Circuits all have issued cumulative-finality decisions that are at least in tension (if not direct conflict) with prior panel decisions. See Lammon Cumulative Finality, supra, notes 226–231 & 239–51 and accompanying text.
A Better Cumulative-Finality Rule
Given the various approaches to cumulative finality, some litigants are losing their opportunities for appellate review by filing a notice of appeal too early. I find that troubling. The error here is a technical one. It is not as though a notice of appeal was not filed; it was just filed too early. And the proper time for filing a notice of appeal is not always clear, particularly to those who are not well versed in the intricacies of federal appellate procedure. Parties accordingly sometimes file too early.
Technicalities can be important, especially when dealing with procedure. But the punishment for a procedural misstep should fit the crime. The misstep here—filing a premature notice of appeal—generally does little (if any) harm. Similarly harmless is allowing subsequent events to save these notices. Early notices—unlike late ones—do not implicate any reasonable reliance interests on the finality of a judgment. Early notices create no risk of piecemeal appeals, as the district court must enter a judgment or appealable order before anyone can perfect the appeal. And no one should be surprised when a litigant who filed a premature notice of appeal wants to later obtain appellate review of the district court’s decisions.
Granted, a more generous approach to saving premature notices of appeal could encourage litigants to file more premature notices. And when parties file a premature notice of appeal, there is some risk of bogging down litigation while the courts and parties determine the effect of the notice.
But a clearer rule could mitigate these problems. Premature notices that disrupt litigation already occur, due largely to uncertainty about what to do with them. A clearer cumulative finality rule—no matter its content—might largely solve this problem. And of the possible rules, the broadest approach is the most pragmatic. Indeed, courts rarely (if ever) conclude that giving effect to a premature notice causes any prejudice. What little harm a broader approach to cumulative finality might cause can be mitigated through a clear rule. And courts could develop internal procedures for handling the premature notices—placing the appellate docket in suspension, for example, and allowing the parties to reopen it once the district court has entered a judgment or appealable order.
As for language, I have a proposed starting point. (The language I propose here is different from that proposed in the article, which is due to the proposed amendments to Rule 3(c).) Again, Rule 4(a)(2) currently reads:
Filing Before Entry of Judgment. 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.
One possible change would be the following:
Filing Before Entry of Judgment. A notice of appeal filed before the court enters a judgment or appealable order is treated as filed on the date of and after the entry of that judgment or order.
The proposed language treats all premature notices the same; it no longer asks what kind of decision or order a notice was filed after. The language makes that notice effective at the entry of the judgment or order that would normally have been appealable. And given that notices of appeal are not supposed to define the scope of appellate review (as the proposed amendments to Rule 3(c) make clear), there is no need to address which judgment or order is entered. Upon the entry of a judgment or appealable order, a prior notice of appeal would spring into effect and allow the party to appeal any matters that would be within the scope of appellate review in an appeal from that judgment or order.
This is not the only way in which to amend Rule 4(a)(2) to cure its ills. But I hope it will provide a helpful jumping-off point for the Committee’s work.
I appreciate your time and consideration of this issue. Please let me know if there is anything I can do to assist the Committee in its work.