Missing the deadline to file a notice of appeal has severe consequences. A late notice of appeal in a civil case deprives the United States Court of Appeals of jurisdiction, meaning no appeal can take place. In the event a would-be appellant misses their deadline because they did not receive timely notice of the appealable decision, however, the district court is permitted to reopen the time for appeal. But this procedural “redo” raises a question if the litigant already filed a notice of appeal after the original appeal deadline: Must the litigant file a new notice of appeal within the reopened filing period?
On June 12, the Supreme Court said no. In Parrish v. United States, Justice Sotomayor authored an 8–1 opinion holding that a litigant who files a notice of appeal after the original deadline but before the district court grants a motion to reopen need not file a second notice of appeal, because the original notice relates forward to the date reopening is granted.
Parrish concerned an untimely appeal by an inmate alleging that prison authorities wrongfully placed him in segregated confinement for 23 months as punishment for his alleged involvement in the death of another inmate. Years later, after a discipline hearing officer concluded that Parrish had committed “[n]o prohibited act” and expunged his disciplinary record, and after unsuccessful efforts to challenge the confinement within the prison system, Parrish filed an action in federal district court seeking damages for his confinement. The district court held some claims were untimely and some were unexhausted, dismissing the case.
At the time the court entered its judgment of dismissal, Parrish moved from federal custody to a state penitentiary. As a result of this transfer, Parrish did not receive a copy of the judgment for over 90 days—well beyond the 60-day deadline for filing a notice of appeal in a suit against the United States. See 28 U.S.C. § 2107(b). Parrish nevertheless submitted a letter explaining his delay and stating that he was filing his notice of appeal. The Court of Appeals for the Fourth Circuit interpreted Parrish’s letter as a motion to reopen the time for an appeal and remanded to the district court, which granted reopening and transferred the record back to the Fourth Circuit. Parrish did not file a new notice of appeal, and neither he nor the government believed he was required to file a second notice.
But the Fourth Circuit disagreed, reasoning that reopening under 28 U.S.C. § 2107(c) “provides for a new 14-day window for filing a notice of appeal,” so a new notice must be filed. Parrish’s notice of appeal was late with respect to the original appeal period, and he did not file a second notice during the reopened period. Thus, the Fourth Circuit held it lacked jurisdiction to hear his appeal. In contrast, other courts of appeal have held that it is not necessary to file a second notice of appeal after reopening.
The Supreme Court resolved the split in Parrish. The Court examined the text of section 2107(c) and long-standing principles allowing a premature notice of appeal to relate forward to the entry of an appealable judgment. The Court found no indication that Congress intended to end the relation-forward rule with section 2107(c). An early notice of appeal, like a timely notice, satisfies the purpose of the requirement that is baked into its name: providing notice to opposing parties and the court of the litigant’s intent to appeal. The Court concluded that “the default relation-forward rule” applied under the circumstances in Parrish. “True, with respect to the original appeal window, the notice came too late. With respect to the 14-day reopening period, however, Parrish’s notice was merely premature.”
Justice Jackson, joined by Justice Thomas, concurred in the judgment by taking a practical approach. Often a litigant who misses a deadline and moves for an extension of time will include their proposed substantive filing with their motion; then the district court dockets the substantive filing when it grants the motion. Parrish’s notice of appeal was the very same document that the court construed as a motion to reopen. In Justice Jackson’s view, the court should have simply docketed the notice of appeal as timely when it granted the “motion to reopen.”
The only dissent came from Justice Gorsuch, who would have dismissed the case as improvidently granted. In his opinion, the Court should have left the issue to the Advisory Committee on Appellate Rules, which is in the process of revisiting the federal rules for potential revision.
Parrish involved pro se prisoner litigation against the federal government, with the additional complication that Parrish’s transfer between penitentiaries delayed his receipt of the district court’s judgment, but the Court’s interpretation of section 2107(c) is applicable to any kind of civil appeal. Ultimately, Parrish takes a commonsense approach to the notice requirement and prevents a harsh consequence when notice is adequate but too early.
Venable continues to monitor legal developments from the Supreme Court, and its team of appellate attorneys is ready to help you navigate your appeals, whether or not your opponent filed their notice of appeal on time.
The authors thank Alexander J. Crespo, a summer associate in our Washington, DC office, for his assistance in writing this article.