The Consequences of Curtailing Cumulative Finality

In Norton v. High, the Fourth Circuit dismissed a pro se plaintiff’s appeal from a sanction order. The plaintiff had filed his notice of appeal after the district court ordered him sanctioned but before the court determined the amount of sanctions. The notice was thus premature. And under the Fourth Circuit’s approach to cumulative finality and Federal Rule of Appellate Procedure 4(a)(2), the district court’s subsequent decision setting that amount did not save the premature notice.

Left unsaid in Norton is that the decision deprived the plaintiff of any chance to appeal the sanction. By the time the Fourth Circuit told him that his notice of appeal was ineffective, the window for filing a timely notice had long since closed. Norton thus illustrates the unfortunate consequences of courts’ limiting the circumstances in which subsequent events can save a premature notice. And the punishment far outweighs the crime. The error—an early notice—is a technical one that rarely (if ever) causes anyone any harm. I recently proposed an amendment to Rule 4(a)(2) that would avoid these consequences. Norton illustrates why the Rules Committee’s action is needed.

Cumulative finality generally

I’ve written a bit about cumulative finality recently, and I published an article on the doctrine a few years ago. Briefly, cumulative-finality issues arise when litigants file premature notices of appeal. Notices normally must wait until the end of district court proceedings. But sometimes litigants file too early, before the district court has entered a judgment or other appealable decision. Problems can then arise if these litigants do not file a second notice (or amend their first). No proper notice has been filed. And parties that do not file a timely 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 premature notices. But the courts of appeals have split on when exactly a premature notice can be saved. A few circuits—specifically the Eighth and (at least until recently) the Federal Circuits—generally hold that the subsequent entry of a judgment can save a notice of appeal only if that notice came after a decision resolving all outstanding issues in the action. Most circuits hold that the subsequent entry of a judgment can save a premature notice if the order appealed from could have been certified for an immediate appeal under Federal Rule of Civil Procedure 54(b). But some circuits—primarily the Second and Third—allow a subsequent judgment to save a notice of appeal filed after almost any district court decision. These are only general trends; several circuits have issued internally conflicting decisions on cumulative finality.

The decision in Norton

The opinion in Norton contains few details. We know it was a § 1983 suit against several police officers. The district court dismissed the plaintiff’s claims and sanctioned the plaintiff (who was proceeding pro se) for failing to appear at a deposition. But the district court did not specify the amount of the sanction at that time, reserving decision on the issue for later. Before the court determined the amount of sanctions, the plaintiff filed his notice of appeal. Shortly thereafter—and while the appeal was pending—the district court set the amount of sanctions at about $2,000.

The Fourth Circuit held that it lacked jurisdiction to review the sanction. The amount of sanctions was not yet determined when the plaintiff appealed, so the sanctions order was not final or appealable at that time. The notice of appeal was thus premature. And the district court’s subsequent decision on the amount of sanctions did not save the notice. The decision setting sanctions but leaving open their amount could not have been certified for an immediate appeal under Rule 54(b). So “the doctrine of cumulative finality [could not] cure the jurisdictional defect.”

Jurisdiction was proper to review the dismissal of the plaintiff’s § 1983 action. And on that matter the Fourth Circuit affirmed.

Norton illustrates one aspect of the cumulative-finality divide. The court applied the most common approach to cumulative-finality issues: the subsequent entry of a judgment can save a premature notice only if the order appealed from could have been certified for an immediate appeal under Rule 54(b). Applying that rule, several decisions have held (like Norton) that notices filed after orders determining liability for damages, attorneys’ fees, or sanctions are not saved by the subsequent determination of the amount of those damages, fees, or sanctions. But not all courts agree. A handful of decisions applying the broadest approach to cumulative finality—a subsequent judgment can save a notice of appeal filed after any district court decision—have allowed the subsequent determination of damages, fees, or sanctions to save a premature notice.

Cumulative finality’s consequences

More importantly, Norton illustrates the consequences of the narrow approaches to cumulative finality. Unmentioned in the Norton opinion is that the decision will likely deprive the plaintiff of ever obtaining appellate review of the sanction. The premature notice was ineffective to appeal that order. And by the time the Fourth Circuit held as much, the window for filing a technically proper notice of appeal had probably closed. According to the district court’s docket:

• The court granted the defendants’ motion for summary judgment and sanctioned the plaintiff in May 2019.
• The plaintiff filed his notice of appeal less than a month later, in June 2019.
• And about two months later, in August 2019, the district court set the amount of sanctions, making the sanction order final.

The plaintiff thus had 30 days, until September 2019, to file a new notice of appeal and obtain appellate review of that order. But the Fourth Circuit did not tell him that his first notice was ineffective until last week, well after the time for filing a new notice of appeal had expired.

So it’s probably too late for the plaintiff in Norton. This is an unnecessary state of affairs. It’s not as though the plaintiff did not file a notice of appeal or filed after the time for doing so had expired. He simply filed too early. I doubt that the appellees or the court were surprised when the plaintiff argued that the sanction was improper. So no harm would have come from the Fourth Circuit reviewing the sanction issue.

Reforming cumulative finality & Rule 4(a)(2)

Cases like Norton are precisely why I suggested amending Rule 4(a)(2) to allow subsequent events to save any premature notice of appeal. Premature notices do little (and often no) harm. And little (again, often no) harm comes from allowing subsequent events to save them.

Norton v. High, 2020 WL 733083 (4th Cir. Feb. 13, 2020), available at the Fourth Circuit and Westlaw.