Is Rule 4(a)(4)(B)(ii) Jurisdictional?

In Garnett v. Akron City School District Board of Education, the Sixth Circuit dismissed an appeal insofar the plaintiff challenged the denial of his post-judgment Rule 60(b) motion. The plaintiff had appealed from the original judgment. But he had not filed a new or amended notice of appeal designating the Rule 60(b) denial, as Federal Rule of Appellate Procedure 4(a)(4)(B)(ii) requires. The Sixth Circuit determined that the failure to do so meant no appellate jurisdiction over the Rule 60(b) decision.

A few years ago, I expressed some doubt about the conclusion that Rule 4(a)(4)(B)(ii) is jurisdictional. Now I’m really starting to think that it’s not. It doesn’t come from a statute. And the only statutory requirement—a timely notice of appeal—has been satisfied. To be sure, that notice designated only the original judgment. But no statute requires that notices of appeal designate an appealed decision, much less requires a second or amended notice after the resolution of a post-judgment motion.

If it’s not jurisdictional, Rule 4(a)(4)(B)(ii) a claims-processing rule. Courts still have to enforce it. But it can also be waived. And I imagine there are at least a few cases out there in which appellees have waived any objection to the failure to file a second or amended notice of appeal under Rule 4(a)(4)(B)(ii).

Notices of Appeal & Post-Judgment Orders

Let’s start with some basics. By statute and rule, most civil litigants must file a notice of appeal within 30 days of the district court’s judgment. (The time extends to 60 days when the United States is a party, and there are some exceptions that let the district court extend or reopen the time to appeal.) But if a would-be appellant timely files certain post-judgment motions—such as a Rule 60(b) motion for relief from the judgment—the appeal clock does not start running until the district court resolves the last of those motions.

But what if the would-be appellant files a notice of appeal before the district court resolves the last of those motions? Rule 4(a)(4)(B)(i) says that this notice relates forward to whenever the district court does so. So litigants in this circumstance generally don’t need to file a new notice of appeal after the decision on the post-judgment motion.

Challenging Post-Judgment Orders on Appeal

But that’s only the general rule. Under Rule 4(a)(4)(B)(ii), appellants need to file a second notice (or amend the first one) if they want to appeal the resolution of the post-judgment motion.

This is an odd requirement. It uses the notice of appeal to set the scope of appeal. But that’s not what a notice of appeal is for. In fact, the Rules Committee largely rejected this use of a notice of appeal with the recent amendments to Federal Rule of Appellate Procedure 3(c). And I suggested that the Committee reconsider Rule 4(a)(4)(B)(ii) alongside the Rule 3(c) amendments.

The Jurisdictional Consequences of Failing to Comply with Rule 4(a)(4)(B)(ii)

The courts of appeals regularly treat Rule 4(a)(4)(B)(ii) as a jurisdictional rule. That is, failure to file a second or amended notice designating the decisions on post-judgment motions deprives the court of appellate jurisdiction over those decisions.

That’s what happened in Garnett. The plaintiff filed a notice of appeal before the district court resolved his Rule 60(b) motion. And the plaintiff did not file a second or amended notice after the district court denied that motion. So the Sixth Circuit concluded that it lacked jurisdiction over that decision.

Not Really a Jurisdictional Rule

But now I’m wondering: is Rule 4(a)(4)(B)(ii) jurisdictional? The Fourth Circuit said it was a few years ago. I expressed some doubts at that time. And now I’m leaning towards the conclusion that it’s not.

To be sure, filing a timely notice of appeal is a jurisdictional requirement in civil cases; Bowles v. Russell essentially held as much. But not all rules dealing with an appeal deadline are jurisdictional. Hamer v. Neighborhood Housing Services tells us that appeal deadlines found in statutes are jurisdictional. Deadlines that come only from procedural rules are not.

When courts deal with Rule 4(a)(4)(B)(ii), a timely notice of appeal has been filed from the original judgment. So the requirement of a timely notice of appeal has been satisfied. And as far as statutory requirements go, that’s it. As best I can tell, Rule 4(a)(4)(B)(ii)’s requirement for a second or amended notice of appeal has no statutory basis. (Please someone correct me if I’m wrong.) It comes only from the rule. And that rule governs the scope of an appeal—not whether it was timely taken.

If this is right, Rule 4(a)(4)(B)(ii) is merely a claims-processing rule. That means it can be waived, and courts don’t have to raise the issue on their own initiative. And I have to imagine that appellees don’t always object to the failure to comply with Rule 4(a)(4)(B)(ii). (The defendant did so in Garnett, but the appellee in the above-mentioned Fourth Circuit case did not.) In those cases, the courts of appeals probably should excuse the failure to comply with the rule.

Or Just Get Ride of It

One final note: Rule 4(a)(4)(B)(ii) is a bad rule. As noted above, a notice of appeal is not supposed to set the scope of an appeal. That’s the job of the briefing. Yet Rule 4(a)(4)(B)(ii) uses the notice of appeal to set an appeal’s scope.

And what’s the point? Are appellees ever genuinely surprised—much less harmed—when appellants challenge the denial of post-judgment motions? I doubt it.

Rule 4(a)(4)(B)(ii) does nothing but trip up appellants who are unfamiliar with the intricacies of the Federal Rules of Appellate Procedure. The Rules Committee should consider deleting it.

Garnett v. Akron City School District Board of Education, 2023 WL 6632836 (6th Cir. Oct. 12, 2023), available at the Sixth Circuit and Westlaw