The Fourth Circuit held that once the appeal window is reopened under Rule 4(a)(6), would-be appellants must file a new notice of appeal. A prior one—which the court construed as a Rule 4(a)(6) motion—was insufficient.
July 19, 2023
In Parrish v. United States, a divided Fourth Circuit dismissed an appeal because the would-be appellant did not file a second notice of appeal after the district court reopened the appeal time under Federal Rule of Appellate Procedure 4(a)(6). An earlier notice of appeal—which the Fourth Circuit had construed as a motion to reopen the appeal time—was insufficient. The would-be appellant instead needed to file a new one. Judge Gregory dissented to point out that this second notice of appeal is a needless, formalistic requirement.
Parrish sets up a trap for unwary litigants. And some litigants might fall into that trap; it’s not uncommon for courts of appeals to treat late notices of appeal—often from incarcerated, pro se litigants—as motions to reopen the appeal time under Rule 4(a)(6).
A procedural trap should serve some purpose. I see none in Parrish. I also agree with Judge Gregory that nothing in 28 U.S.C. § 2107(c) nor Rule 4(a)(6) requires a second notice. Hopefully the Fourth Circuit will rethink this matter.
The Late Appeal in Parrish
The plaintiff in Parrish alleged that officials in a federal prison unlawfully held him in solitary confinement for three years. The district court dismissed the plaintiff’s claims. But the plaintiff did not receive this judgment for over three months. When he eventually did, he filed a notice of appeal about two weeks later. In that notice, he explained that he did not receive the judgment due to his transfer from federal to state custody.
The Fourth Circuit construed this notice of appeal as a motion to reopen the appeal time under Federal Rule of Appellate Procedure 4(a)(6). The court of appeals then remanded the case to the district court for consideration of the motion. The district court granted the motion and reopened the appeal window for 14 days.
The plaintiff did not then file a new notice of appeal in the district court. He instead filed a supplemental brief with the Fourth Circuit 19 days after the district court reopened the appeal time (and thus 5 days after the reopened appeal time expired).
Reopening the Appeal Period Under 28 U.S.C. § 2107(c)
The Fourth Circuit saw a potential issue in the lack of a second notice of appeal filed during the reopening period. That issue required digging into not only Rule 4(a)(6), but also the statute it implements: 28 U.S.C. § 2107(c).
Section 2107 sets the civil appeal deadlines. Subsection (a) sets the familiar 30-day appeal deadline for most civil appeals. Subsection (b) sets a longer 60-day appeal deadline for cases involving the United States. And § 2107(c) provides two exceptions to these timing requirements.
The first exception permits district courts to “extend” the appeal period on “a showing of excusable neglect or good cause.” Would-be appellants must request this extension no later than 30 days after the normal appeal period ends. Rule 4(a)(5) implements this portion of § 2107(c).
The second exception in § 2107(c) was the one at issue in Parrish. This exception provides that the district court may “reopen” the appeal period for 14 days if (1) the would-be appellant did not receive notice of a judgment’s entry within 21 days of its entry; (2) no party would be prejudiced; and (3) the would-be appellant moves for reopening within 180 days of the judgment’s entry or 14 days after receiving notice, whichever is earlier. Rule 4(a)(6) implements this exception.
Requiring a Notice Within the Reopening Period
The question in Parrish was whether the plaintiff needed to file a second notice of appeal once the district court reopened the appeal period. A majority of the court said that he did. It based that holding largely on the distinction between an extension of the appeal window and its reopening.
Congress used the term “extend” in § 2107(c)’s first exception. The Fourth Circuit had said in Evans v. Jones that no new notice was needed when that notice was construed as a motion invoking this first exception and then granted. The Parrish majority thought that this made sense in the context of extensions. The extension lengthens the original appeal period. And the notice of appeal was filed in that extended period.
Section 2107(c)’s second exception—the one at issue in Parrish—uses the term “reopen.” The majority thought that reopenings are different. They involve a new appeal period, not an extension of the original. And litigants must file a new notice of appeal in the reopened period. So unlike extensions, reopenings can involve a gap (between the original appeal period and the reopened period) in which any filing of a notice of appeal would be ineffective. The Parrish plaintiff’s notice—which was filed in that gap—was thus ineffective.
Judge Gregory’s Dissent
Judge Gregory dissented, contending that “[n]othing in the text of 28 U.S.C. § 2107(c) compels [this] formalistic and hollow requirement.”
For one thing, validating the original notice of appeal does no harm. Neither exception in § 2107(c) involves an intervening change in the district court’s judgment—the would-be appellant “simply requests additional time to notice an appeal of the judgment.” And the original notice of appeal gives sufficient notice to the courts and parties of the appellant’s intent to appeal. So no harm is done in validating that original notice of appeal. The Fourth Circuit had accordingly said in Evans that the original notice of appeal suffices. The result should be no different in Parrish.
For another thing, nothing in the text of § 2107(c) requires a different conclusion. It “simply does not address whether an order reopening the appeal period validates an earlier-filed notice of appeal.” Further, the majority’s distinction between extensions and reopenings doesn’t hold. Both can be granted after the original appeal period has expired. And extensions do “not retroactively create an unbroken, prolonged appeal period.” So both extensions and reopenings can involve a gap of time between eligible appeal periods. Again, Evans held that one notice of appeal suffices for extensions. Reopenings should be no different.
A New Trap for the Unwary
Parrish creates a new procedural trap for unwary litigants. And it will probably apply to appeals brought by some of the most vulnerable litigants—incarcerated pro se plaintiffs. It’s not unusual for these plaintiffs to not receive timely notice of a judgment and file a late appeal. And it’s not unusual for courts of appeals to treat those notices as Rule 4(a)(6) motions for reopening and then remand the case to the district court decide that motion. If the district court grants reopening, Parrish requires that litigants file a new (though probably identical to the original) notice of appeal. I doubt everyone will do so.
And Judge Gregory is correct that nothing in § 2107(c) compels Parrish’s rule. The majority suggests that Congress intended this different treatment by using the terms “extend” and “reopen.” I doubt it.
Procedural traps must serve some legitimate purpose. Parrish’s doesn’t. I can think of no reason to require a second notice of appeal. Everyone knows that the would-be appellant wants to appeal. And there has been no change in the judgment under review. This is a procedural trap that will do no good and could needlessly deprive plaintiffs of their right to appeal.
Hopefully the Fourth Circuit will rethink this matter.
Parrish v. United States, 2023 WL 4552590 (4th Cir. July 17, 2023), available at the Fourth Circuit and Westlaw