Rule 4(a)(4)(B)(ii) requires a second or amended notice of appeal to challenge the resolution of a post-judgment motion. So no notice meant no jurisdiction.
December 21, 2020
Federal Rule of Appellate Procedure 4(a)(4) governs the effect of certain post-judgment motions on notices of appeal. Rule 4(a)(4)(A) provides that a variety of those motions can delay the start of the normal appeal clock. Rule 4(a)(4)(B)(i) says that a notice of appeal filed before the district court resolves any of those motions relates forward to the district court’s subsequent decision. And Rule 4(a)(4)(B)(ii) adds that when parties file a notice of appeal before the district court resolves a post-judgment motion, they must file a second or amended notice to challenge a the subsequent decision on that motion.
In Bracey v. Lancaster Foods LLC, the Fourth Circuit held that this last requirement—of a second or amended notice after the resolution of a post-judgment motion—is jurisdictional. The plaintiff in that case initially made only one argument in opposition to the defendant’s motion to compel arbitration. When the district court rejected that argument, the plaintiff sought reconsideration and added two new arguments. But he filed only one notice of appeal, and he filed it before the district court denied his motion for reconsideration. The Fourth Circuit deemed the failure to file a second or amended notice a jurisdictional one. It accordingly lacked jurisdiction to address the plaintiff’s second and third arguments against arbitration.
The Bracey Litigation
Simplifying a bit, Bracey involved a truck driver’s claims against his former employer. The employer responded by moving to compel arbitration. The truck driver opposed arbitration, and he argued that the arbitration agreement he had signed was unconscionable. The district court rejected that argument, compelled arbitration, and dismissed the action.
The truck driver filed a timely notice of appeal from that decision. (If you’re confused as to why the truck driver could appeal an order compelling arbitration, it’s because the district court dismissed the case rather than staying it. Had the court stayed the plaintiff’s action, the decision probably would not have been appealable.) He then asked the district court to reconsider its decision. And in that request, he raised two new challenges to the arbitration agreement: the driver was exempt from arbitration under the Federal Arbitration Act, and the employer engaged in misconduct. The district court denied the motion for reconsideration. The truck driver did not file a new notice of appeal.
Under Rule 4(a)(4)(B)(ii), No Second/Amended Notice Meant No Jurisdiction
The Fourth Circuit held that it lacked jurisdiction to address the two arguments that the plaintiff made only in his motion for reconsideration. Federal Rule of Appellate Procedure 4(a)(4)(B)(ii) requires that when parties file their notice of appeal before the district court resolves any post-judgment motions, they must file a second or amended notice to challenge the subsequent decision on the post-judgment motion. Although the truck driver had timely appealed from the district court’s initial decision, he never filed a second or amended notice of appeal challenging the denial of his reconsideration motion. Rule 4(a)(4)(B)(ii) thus barred any consideration of the arguments raised only in that motion.
The Fourth Circuit Deemed Rule 4(a)(4)(B)(ii) Jurisdictional
The Fourth Circuit further determined that it could not excuse the truck driver’s failure to file a second or amended notice. The employer had never objected to the driver’s failure to file a second or amended notice of appeal, and the driver argued that the employer had thereby waived the issue. But, according to the Bracey court, Rule 4(a)(4)(B)(ii) is jurisdictional. Jurisdictional rules cannot be waived or forfeited, and courts cannot excuse noncompliance with them.
The Supreme Court has drawn a fairly bright line between jurisdictional and non-jurisdictional appeal rules: those found in statutes are jurisdictional, while those found only in rules of procedure are not. So, for example, in Bowles v. Russell, the Court held that the 14-day limit on reopening the time to file a notice of appeal is jurisdictional. Although found in Rule 4(a)(6), that 14-day limit comes from 28 U.S.C. § 2107(c). In contrast, Rule 4(a)(5)(C)’s 30-day limit for extending the time to file an appeal is not jurisdictional. That deadline comes only from the rules. The Court accordingly held in Hamer v. Neighborhood Housing Services that Rule 4(a)(5)(C) was a non-jurisdictional claims-processing rule.
Although the requirement of filing a second or amended notice is found in a rule of procedure, the Fourth Circuit determined that Rule 4(a)(4)(B)(ii) also implements § 2107. Section 2107(a) requires that civil litigants file their notice of appeal within 30 days of the appealed judgment, order, or decree. As the Fourth Circuit saw things, Rule 4(a)(4)(B)(ii) “carries § 2107 into practice” by requiring a notice of appeal from the post-judgment decision.
The Court Rejected Other Arguments for Excusing the Lack of an Amended Notice
The Fourth Circuit also rejected two other arguments from the truck driver.
First, it determined that the driver’s docketing statement was not the functional equivalent of a notice of appeal. To qualify as a functional notice of appeal, a document must provide all of the information that would be in an actual notice of appeal: the name of the party taking the appeal, the judgment or order appealed from, and the court to which the appeal is taken. The driver’s docketing statement did not reference the denial of reconsideration. “Even liberally construing this document, [the court] conclude[d] that it [did] not adequately designate the order denying [the] motion to reconsider as ‘the judgment, order, or part thereof being appealed.’”
Second, the Fourth Circuit concluded that jurisdiction over the first argument—the one the district court rejected in its initial order compelling arbitration—did not give it jurisdiction over any argument in support of the appeal. Appellants must preserve issues in the district court before presenting them on appeal. Addressing the plaintiff’s second and third arguments just because it could address the first, the Fourth Circuit said, “would upend [its] well-established rules of issue preservation.”
A Rough Decision and a Potential Split
I haven’t spent enough time thinking through the decision, but I’m not yet sold on Bracey’s jurisdictional holding.
Part of my concern no doubt comes from my dislike of Rule 4(a)(4)(B)(ii). The rule uses a notice of appeal to set the scope of appellate review—the order disposing of the post-judgment motion is within the scope of review only if the plaintiff designates that order in a second or amended notice. But that’s not what a notice of appeal or the order-designation requirement are for. The order-designation requirement exists to help identify the decision that creates appellate jurisdiction and from which the time for appealing is calculated. I doubt appellees are often surprised or harmed when a party who appealed the underlying judgment also wants to challenge the decision on a post-judgment motion. I accordingly recommended deleting the provision when the Rules Committee was considering amendments to Federal Rule of Appellate Procedure 3(c).
I’m also not sure that the provision is jurisdictional. To be sure, § 2107(a)’s 30-day window for filing a notice of appeal is jurisdictional. But the plaintiff in Bracey filed a timely notice of appeal. Under Rule 4(a)(4)(A), that 30-day window did not begin to run until the district court denied the plaintiff’s motion for reconsideration. And Under Rule 4(a)(4)(B)(i), the plaintiff’s notice of appeal—which he filed before the district court resolved his motion for reconsideration—was deemed filed when the district court denied that motion. The plaintiff in Bracey thus timely appealed from the final judgment in his case. All that was missing was a mention in the notice of appeal of the district court’s order denying the motion for reconsideration. And § 2107 does not require that parties designate the appealed decision in their notice of appeal; that comes from the rules.
Finally, Bracey might be in some tension with the Sixth Circuit’s recent decision in Singletary Construction, LLC v. Reda Home Builders, Inc.. The Sixth Circuit held in Singletary that the failure to amend a notice of appeal to include the denial of a new-trial motion did not preclude jurisdiction over the arguments made in that motion. The appellants had made those same arguments in a motion filed between the jury verdict and entry of the judgment. The district court never decided that motion and instead entered a final judgment (which the defendants’ motion for a new trial then followed). Because the defendants raised the substance of the new-trial motion before entry of the judgment, the Sixth Circuit held held that it could excuse the failure to file a new notice of appeal. The court also noted that addressing the issue did not prejudice the appellees. So refusing to consider the post-trial decision “would be upholding form for form’s sake, and would not advance justice in this case, or in general.”
Bracey v. Lancaster Foods LLC, 2020 WL 7385192 (4th Cir. Dec. 16, 2020), available at the Fourth Circuit and Westlaw.