The Fourth Circuit Court of Appeals issued two opinions last week clarifying issues relating to notices of appeal.
In Jackson v. Lightsey, the Fourth Circuit addressed 1) whether a notice of appeal that failed to specify that the appeal was being made to the Fourth Circuit was sufficient to confer appellate jurisdiction, and 2) whether a notice of appeal that designated a 2013 order, but not a 2012 order, was sufficient to allow the Fourth Circuit to review the 2012 order. Using the “functional equivalent approach,” which looks pragmatically at whether deficiencies in a notice of appeal failed to give the opposing party fair notice regarding the appeal, the Fourth Circuit determined that 1) the failure to name the Fourth Circuit in the notice of appeal was not fatal (because it was obvious that the appeal was being made to the Fourth Circuit) and 2) the failure to list the 2012 order in the notice of appeal failed to give the appellees fair notice that the appellant was challenging that order. Jay O’Keeffe’s De Novo Virginia Appellate Law Blog does a great job of explaining the nuances of this opinion. I particularly love his wisdom regarding notices of appeal and preserving error.
This brings to mind Justice Mims’ own “functional” recommendation for preserving error in the Supreme Court of Virginia: “When in danger, when in doubt, run in circles, scream and shout!” You can never get in trouble for providing the trial court or opposing counsel too much notice of an appeal point. You may look a little silly every now and then, but that’s a small price to pay if excessive diligence lets you sleep at night.
The Fourth Circuit’s other recent gift to appellate practitioners is an opinion clarifying when a pending motion for attorney fees tolls the deadline for filing a notice of appeal. If you recall, in 2013 and 2014, the North Carolina Supreme Court (in Duncan v. Duncan) and the United States Supreme Court (in Ray Haluch Gravel Co. ) determined that a decision on the merits is a “final decision” even if a motion for attorney’s fees remains to be determined. We previously blogged about those cases here and here.
However, Federal Rule of Appellate Procedure 4(a)(4)(A) provides that the time for filing an appeal in a civil case is tolled by the timely filing of certain post-judgment motions. A timely motion for attorney’s fees can be one of those tolling motions, but only if “the district court extends the time to appeal under” Federal Rule of Civil Procedure 58.
In Hudson v. Pittsylvania County, Virginia, the plaintiff filed a § 1983 action alleging that Pittsylvania violated the Establishment Clause by opening its Board meetings with sectarian prayers. In March 2013, the district court entered summary judgment orders enjoining Pittsylvania “from repeatedly opening its meetings with prayers associated with any one religion.” While the district court struck the case from its open docket, it entered an order stating that it retained “jurisdiction over [the] matter for purposes of enforcement of the permanent injunction, as well as consideration of any motions for attorney’s fees and costs by Hudson.” Approximately 10 days later, Hudson filed a motion for costs and attorneys’ fees, which the district court awarded approximately six months later in September 2013.
Thereafter, Pittsylvania filed a notice of appeal—over 175 days after the entry of the summary judgment orders— seeking to challenge the district court’s March 2013 resolution of Plaintiff’s § 1983 claim, as well as the attorney’s fees award. Although there was no question that the Fourth Circuit had jurisdiction to consider the defendant’s challenge to the attorneys’ fees award, there were jurisdictional questions as to “whether the March 27 orders constituted a ‘final decision,’ and, second, whether the post-trial motions in th[e] case tolled the appeal filing period” as to the summary judgment orders. Noting the “dearth of precedent on this issue,” the Fourth Circuit issued a published opinion “to provide guidance for future litigants seeking to appeal both a merits judgment and a subsequent attorney’s fees award.”
As to the first issue, the Fourth Circuit—citing Ray Haulch—concluded that the March 2013 orders were final decisions—notwithstanding the fact that the district court’s orders had retained jurisdiction “for purposes of enforcement of the permanent injunction.”
As to the second issue, the Fourth Circuit acknowledged that pending motions for attorneys’ fees can extend the deadline for filing a notice of appeal. However, the Fourth Circuit warned appellate practitioners that this statement comes with a big caveat: only if “a district court, acting under [Federal Rule of Civil Procedure] 58, enters an order extending the time for appeal.” Moreover, the district court order should note that the attorneys’ fees motion has the same effect under Appellate Rule 4(a)(4) as a timely post-trial motion under Federal Rule of Civil Procedure 59.
In Hudson, although a timely motion for attorneys’ fees was filed, the district court did not enter an order extending defendant’s time to appeal pursuant to Civil Procedure Rule 58(e). Neither did the defendant ask the district court to enter such an order. Quite simply, the district court’s statement in its March 2013 orders that it was retaining jurisdiction over attorneys’ fees was not an order under Rule 58(e) specifically tolling the deadline for filing a notice of appeal, and the defendant’s time for appealing those March 2013 orders was not tolled by the attorneys’ fees motion.
Take away points:
In federal court, if you want a motion for attorneys’ fees to toll your deadline for appealing a final judgment, file a motion specifically asking for such an order and make sure that any order allowing that motion complies with all requirements of Civil Procedure Rule 58(e).
Finally, remember there is no comparable Rule 58(e) in state court—so don’t try it.
And that concludes our analysis of the Fourth Circuit’s two recent Christmas gifts to appellate practitioners. Happy Holidays from the North Carolina Appellate Practice Blog!