No Rehearing on Rule 4(a)(6) & Multi-Purpose Notices of Appeal
Disclosure: I filed an amicus brief in support of rehearing in this appeal.
In last summer’s Parrish v. United States, a divided Fourth Circuit panel held that when a notice of appeal is treated as a motion to reopen the appeal period under Federal Rule of Appellate Procedure 4(a)(6), the would-be appellant must file a second notice of appeal after that motion is granted. The majority thought that by using the term “reopen” in 28 U.S.C. § 2107(c)—the statute that Rule 4(a)(6) implements—Congress intended to create a second, separate appeal period, distinct from the original one. And a new notice must be filed within that new appeal period. The original notice, which had been treated as a Rule 4(a)(6) motion, was insufficient.
I was pretty critical of the decision—see my post The Fourth Circuit Requires a Second Notice of Appeal After the Appeal Window is Reopened. The issue is one on which the courts have split, and the Fourth Circuit’s side makes little sense to me.
I was accordingly happy to see the plaintiff seek rehearing en banc. I filed an amicus brief in support of rehearing, arguing that the panel’s decision—in addition to being wrong for all the reasons set out in the rehearing petition—conflicted with the cumulative-finality doctrine. The United States (the defendant in the action) agreed that the panel decision was wrong. But it thought that the issue was not important enough to warrant en banc rehearing.
A divided Fourth Circuit denied rehearing en banc, with nine judges voting against rehearing and six voting for it.
Judge Niemeyer (who wrote the panel opinion) filed a concurrence. He agreed with the United States that “[t]he issue in this case [did] not rise to the level that would justify an en banc rehearing.” But he also thought that the panel decision was correct, involving “a straightforward application” of § 2107(c) and Rule 4(a)(6). He again emphasized the term “reopen,” thinking it “clear that the texts of § 2107(c) and Rule 4(a)(6) did not permit a resurrection of [the] earlier notice of appeal.”
Judge Gregory, joined by three other judges, dissented. He explained that the statutory and rule text does not answer the relevant questions: “whether an untimely notice of appeal may be validated by a district court’s subsequent grant of a Rule 4(a)(6) motion,” and “whether a single filing may serve as both a motion to reopen the appeal period and a notice of appeal.” He also pointed out that the court’s decision would harm the often-vulnerable litigants who rely on Rule 4(a)(6)’s protection: pro se plaintiffs, including “[t]he elderly, unhoused, detained, imprisoned, and differently abled.” The issue was thus a significant one, despite the infrequency with which it might arise, that warranted the full court’s attention.
It should be no surprise that I’m with Judge Gregory on this one. Hopefully this is not the last we hear of this matter.
Parrish v. United States, 2024 WL 1736340 (4th Cir. Apr. 23, 2024), available at the Fourth Circuit and Westlaw
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More ContactRelated Posts
Disclosure: I filed an amicus brief in the Fourth Circuit in support of rehearing its decision in this case and discussed the cert petition with the petitioner’s counsel. Last week, the Supreme Court granted certiorari in Parrish v. United States. The case asks if a would-be appellant must file a second notice of appeal after […]
Continue reading....
In Blackwell v. Nocerini, the Sixth Circuit held that a motion to reconsider reset the time to take a qualified-immunity appeal. The denial of immunity was immediately appealable and thus a “judgment” under the Federal Rules of Civil Procedure. So a motion to reconsider that denial was effectively a motion under Federal Rule of Civil […]
Continue reading....
In Gelin v. Baltimore County, the Fourth Circuit held that Federal Rule of Appellate Procedure 4(a)(4)(A) applies to appealable interlocutory orders. So a motion to reconsider such an order resets the time to appeal. The court added that a motion can effectively be one seeking reconsideration even though the motion does not cite to Federal […]
Continue reading....
In Christmas v. Hooper, the Fifth Circuit held that the prison-mailbox rule applies to notices of appeal mistakenly sent to a court of appeals. In doing so, the court had to resolve a tension between two portions of Federal Rule of Appellate Procedure 4. Rule 4(c)(1) says that an imprisoned appellant’s notice of appeal is […]
Continue reading....
In Malek v. Feigenbaum, the Second Circuit reiterated its rule that a post-judgment motion must be timely filed—not merely served—to reset the time to appeal under Federal Rule of Appellate Procedure 4(a)(4). The court went on to hold that although Rule 4 is a claims-processing rule, it is a mandatory one that is not subject […]
Continue reading....Recent Posts
In City of Martinsville v. Express Scripts, Inc., a divided Fourth Circuit held that a court must stay proceedings—and not process a remand order—if the defendant appeals before the district court can send the remand order to the state court. The majority thought that the rule of Griggs v. Provident Consumer Discount Co.—particularly as the […]
Continue reading....
Perlman Appeals in the Grand Jury Context In In re Grand Jury Subpoeans Dated Sep. 13, 2023, the Second Circuit held that the target of a grand jury investigation could appeal an order directing the target’s attorneys to disclose documents over a claim of attorney-client privilege. The order was appealable via the Perlman doctrine, which generally […]
Continue reading....
In Fleming v. United States, the Eleventh Circuit became the fifth court of appeals to reject pure Bivens appeals. The court held that federal officials cannot immediately appeal the Bivens question without also appealing the denial of qualified immunity. Unlike some of the prior decisions, this one was unanimous. And it puts the government’s record […]
Continue reading....
Last month produced decisions involving a variety of appellate-jurisdiction issues. The Fifth Circuit decertified a § 1292(b) appeal. Judge Pillard of the D.C. Circuit explained that appellate “standing” does not require re-establishing standing in the court of appeals. The Sixth Circuit said that qualified immunity and an action’s merits are intertwined, which suggests (perhaps unintentionally) […]
Continue reading....
A new cert petition asks whether the denial of derivative sovereign immunity is immediately appealable via the collateral-order doctrine.
Continue reading....