Posted on: 8/17/2011
Cynthia M. Filipovich
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Any appellate lawyer practicing in the federal courts is keenly aware of the fundamental requirement of subject matter jurisdiction. A timely notice of appeal is a prerequisite to an appellate court's jurisdiction and, absent an extension of time to file an appeal provided by the district court, a federal appellate court is without discretion to review an untimely appeal. Indeed, under 28 U.S.C. § 1291, a timely notice of appeal is a mandatory and jurisdictional prerequisite which a circuit court can neither waive nor extend. Thus, as appellate lawyers we carefully calendar dates of entry for final judgments and corresponding due dates for notices of appeal, while making note of due dates for any postjudgment motions which otherwise toll the time to file an appeal.
This article addresses the tolling provisions set forth in Federal Rule of Appellate Procedure 4(a)(4)(A), and specifically focuses on the tolling effect of subsection 4(a)(4)(A)(vi), while cautioning against what may be a potential for abuse of this tolling provision.
A lawsuit is filed against your client in the local federal district court. After three years of contentious litigation and a two-week long jury trial, a verdict is reached in favor of the defense. Final judgment is entered and you advise your client that, pending postjudgment motions for a new trial or for judgment as a matter of law, within thirty days a notice of appeal must be filed, or the matter is over. The plaintiff does not file any such postjudgment motions, and expresses that it does not intend to file them. However, 28 days after entry of the final judgment, the plaintiff files a motion pursuant to Federal Rule of Civil Procedure 60(a) to correct a purely clerical error made in one of the non-final orders. Three days later, thirty-one days after entry of the final judgment, and no notice of appeal having been filed, your client celebrates.
The district court thereafter grants the Rule 60(a) motion, corrects the clerical error in the record, and enters a corresponding order. Thirty days after entry of that order, you receive electronic notice that the plaintiff filed a notice of appeal to the circuit court of appeals. You file a motion to dismiss the appeal for lack of subject matter jurisdiction because the notice of appeal is untimely. If you are in the United States Court of Appeals for the Second Circuit or the United States Court of Appeals for the Ninth Circuit, the case law is clear that your motion to dismiss will be denied. This is because the plaintiff in your case filed a Rule 60(a) motion within 28 days of entry of the final judgment, albeit purely for a ministerial reason, and these circuits have ruled that a Rule 60(a) motion tolls the time to file a notice of appeal pursuant to the 1993 amendment to Federal Rule of Appellate Procedure 4(a)(4)(A)(vi). The other circuit courts of appeals have not definitively spoken on the issue.
As the issue arises in the other circuit courts, likelihood exists that there may indeed be a circuit split as the Second Circuit decision was based on a two-member majority, with then Second Circuit Judge Sotomayor dissenting. Thus, the following is a discussion of the reasons for and against finding that a timely Rule 60(a) motion tolls the time to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(4)(A)(vi). Although reasons exist for concluding that the time period should be tolled by such a motion, as Judge Sotomayor stated in her dissent to the Second Circuit decision, strong outcome determinative policy reasons exist for concluding that a Rule 60(a) motion does not toll the time to file a notice of appeal in a circuit court. These and other reasons are discussed below.
The History of Fed. R. App. P. 4(a)(4)(A) and the 1993 Amendment
A notice of appeal is timely if filed with the district clerk within 30 days after the judgment or order appealed from is entered in a civil case, Fed. R. App. P. 4(a)(1)(A), or within 60 days after the judgment or order appealed from is entered if the United States or its officer or agency is a party. Fed. R. App. P. 4(a)(1)(B). Rule 4(a)(4)(A) allows for the tolling of the appeal period when one of the enumerated motions is filed. Rule 4(a)(4)(A) was amended in 1993 to eliminate the need to file a new notice of appeal after decision on a postjudgment motion, and as amended in 1993, states as follows:
(A) If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:
(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;
(iii) for attorney's fees under Rule 54 if the district court extends the time to appeal under Rule 58;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is filed no later than 10 days after the judgment is entered.
The Advisory Committee Comment to the 1993 Amendment states that Rule 4(a)(4) was amended to include motions made under Rule 60 if made within 10 days of entry of judgment so as to "eliminate the difficulty of determining whether a posttrial motion made within 10 days after entry of a judgment is a Rule 59(e) motion, which tolls the time for filing an appeal, or a Rule 60 motion, which historically has not tolled the time." The Comment further states that the amendment comported with the practice in several circuits at the time which treated "all motions to alter or amend judgments that are made within 10 days after entry of judgment as Rule 59(e) motions for purposes of Rule 4(a)(4). See, e.g., Finch v. City of Vernon, 845 F.2d 256 (11th Cir. 1986) [sic]; Rados v. Celotex Corp., 809 F.2d 170 (2d Cir. 1986); Skagerberg v. Oklahoma, 797 F.2d 881 (10th Cir. 1986)." All of the cases cited by Advisory Committee Note in setting forth the purpose of the Amendment dealt with Rule 60(b) motions and their interplay with Rule 59(e) motions.
For example, in Finch, the Eleventh Circuit held that the defendant's postjudgment motion styled as a "Motion for Reconsideration or in the Alternative for Relief from Judgment or Order Pursuant to Rule 60" was actually in substance a Rule 59 motion and thus tolled the time for the defendant to file a notice of appeal. Finch, 845 F.2d at 258 (noting that it "makes a great deal of difference whether [the defendant's] October 20 motion was a Rule 59 motion, which would toll the filing period, or a Rule 60(b) motion, which would not").
In Rados, the Second Circuit held that the plaintiff's motion "for reconsideration pursuant to Fed. R. Civ. P. 60(b)" which was filed within ten days of entry of judgment and "placed the correctness of the judgment in question," was the "functional equivalent of a motion to amend under Fed. R. Civ. P. 59(e), and should be treated as if it were a 59(e) motion for purposes of determining appellate jurisdiction." Rados, 809 F.2d at 171.
In Skagerberg, the Tenth Circuit likewise found that the petitioner's postjudgment "Motion for Rule 60 Relief" was "properly construed as a motion to alter or amend judgment under Fed. R. Civ. P. 59(e)" as the motion was "made within ten days of the entry of judgment" and "question[ed] the correctness of judgment." Skagerberg, 797 F.2d at 882. Because the petitioner failed to file a new notice of appeal following disposition of the Rule 59 motion, the Tenth Circuit held that it did not have jurisdiction to consider the appeal. Id. at 883.
In 2009, Rule 4(a)(4)(A)(vi) was amended to match the revisions to the time limits in Civil Rules 50(b), 52(b), and 59, and thus now contains a 28-day limit, instead of the 10-day limit. Specifically, Rule 4(a)(4)(A)(vi) now states: "(vi) for relief under Rule 60 if the motion is filed no later than 28 days after the judgment is entered." The 2009 Comment, like the 1993 Comment, notes that "[l]awyers sometimes move under Civil Rule 60 for relief that is still available under another rule such as Civil Rule 59. Subdivision(a)(4)(A)(vi) provides for such eventualities by extending the time for filing an appeal so long as the Rule 60 motion is filed within a limited time."
Based on this history of the amended Rule, an argument in favor of limiting Rule 4(a)(4)(A)(vi)'s application to Rule 60(b) motions is that this best serves the drafter's intent. That is, the drafters amended Rule 4(a)(4)(A) to eliminate the need for a court to decide whether a Rule 60(b) motion was the "functional equivalent" of a Rule 59(e) motion by allowing a Rule 60(b) motion to toll the time to file a notice of appeal, so long as the 60(b) motion is timely filed. The 2009 Comment is in furtherance of this argument as it reiterates that the stated purpose of the 1993 amendment was to put Rule 59 motions for a new trial or to alter or amend the judgment on equal footing with Rule 60(b) motions for relief from judgment. Thus, the argument goes, motions brought pursuant to Rule 60(a), even if made within the 28-day limit, are not the type the drafters intended should toll the period in which to file a notice of appeal because they are not the "functional equivalent" of a Rule 59 motion.
Those against limiting Rule 4(a)(4)(A)(vi)'s application to Rule 60(b) motions contend that the plain language of the Rule and public policy concerns outweigh any persuasive value of the amended Rule's historical background.
The Language of Fed. R. App. P. 4(a)(4)(A) as Amended in 1993
An argument exists that because the "plain" language of amended Rule 4(a)(4)(A)(vi) makes no distinction between motions filed under Rule 60(a) or Rule 60(b), the Rule should not be limited in its application to Rule 60(b) motions.
However, the counter-argument is that limiting language is, in fact, present in Rule 4(a)(4)(A)(vi) because the tolling provision is only triggered by a motion "for relief" under Rule 60 (emphasis added). The specific use of the modifying prepositional phrase "for relief," as used within Rule 4(a)(4)(A)(vi), is support for concluding that the Rule is limited to Rule 60(b) motions. This is because "relief" is obtained under subsection 60(b), "Grounds for Relief from a Final Judgment, Order, or Proceeding," while subsection 60(a) is silent as to any form of "relief," but instead provides for "Corrections Based on Clerical Mistakes; Oversights and Omissions."
The counter-argument further goes that to allow Rule 60(a) motions tolling effect is to ignore the "for relief" prepositional language of Rule 4(a)(4)(A)(vi), which is contrary to basic rules of statutory construction. It is presumed that the drafters of amended Rule 4(a)(4)(A)(vi) intended every word to have effect. Thus, when interpreting this Rule, the "for relief" language cannot be ignored and rendered meaningless.
Another argument for reading the "for relief" prepositional language of Rule 4(a)(4)(A)(iv) as limiting the tolling provision solely to motions brought pursuant to Rule 60(b) is that this reading is consistent with Rule 4(a)(4)(A)'s other enumerated tolling provisions. Like Rule 60, which encompasses two distinct types of motions, Rules 50(b), 52(b), 54, and 59 each refer to at least two types of motions, and yet the Rule 4(a)(4)(A)'s tolling provision for these Rules does not include all of those motions. For example, Rule 4(a)(4)(A)(iii) does not reach all motions under Rule 54, only those "for attorney's fees." Therefore, finding that the drafters of Rule 4(a)(4)(A)(vi) did not intend to include Rule 60(a) motions as a tolling provision is wholly synonymous with the drafters' intent regarding the other tolling provisions such as Rule 54 and Rule 59.
Competing Public Policy Reasons
Public policy reasons lie on both sides in deciding whether a Rule 60(a) motion brought within 28 days of entry of judgment tolls the time to file a notice of appeal under Rule 4(a)(4)(A)(vi). Those in favor of a Rule 60(a) motion having tolling effect argue that because the express language of Rule 4(a)(4)(A)(vi) does not specify a subsection but uses the "Rule 60" language, civil litigants should be able to rely on that language and conclude that both subsection 60(a) and subsection 60(b) are included. However, the practicalities of such an argument are lost when considering that Rule 60(a) motions are not motions parties intend to file. That is, because, by definition, a Rule 60(a) motion is brought to correct a clerical mistake, oversight, or omission, a losing party does not plan on filing a Rule 60(a) motion, and therefore does not rely on the tolling effect of such a motion when calendaring the time to file a notice of appeal.
The nature of a Rule 60(a) motion is precisely the argument against its tolling effect. The very breadth of the Rule allows it to be used as a tool for tolling appellate review for reasons wholly unrelated to the judgment. This in turn, runs afoul of the long standing rule that "the timely filing of a notice of appeal in a civil case is a jurisdictional requirement." Bowles v. Russell, 551 U.S. 205, 214 (2007). The argument goes that if a notice of appeal is allowed to be tolled for a reason not only wholly unrelated to the substance of the judgment but indeed unrelated to the judgment itself, then the 30-day filing requirement necessary to confer appellate jurisdiction is rendered meaningless. The Supreme Court in Bowles made clear that mechanisms which run afoul of jurisdictional mandates are disfavored. Id.
Further reason for rejecting Rule 60(a)'s tolling effect is that litigants may use the rule as a tool to simply "buy time" to file an appeal. For example, in the hypothetical discussed at the outset of this article, the plaintiff filed a Rule 60(a) motion to correct a clerical error completely unrelated to the judgment itself. This thereby provided the plaintiff additional time not only to decide whether to appeal the case, but indeed to develop arguments and strategy, and possibly to begin briefing the appeal. Depending on when the trial court ultimately ruled on the Rule 60(a) motion, the plaintiff had that much more time to fine tune the appeal, while the defendant-appellee was left with the timeframe prescribed by court rule or the circuit court's scheduling order to file its appeal brief. The potential for abusing Rule 60(a) in such a manner is easily seen when considering that clerical mistakes of some sort are nearly always present in the litigation process, particularly one in which the stakes are high, the record is substantial, and the likelihood of an appeal is great.
Circuit Court Decisions on the Interpretation of Amended Rule 4(a)(4)(A)(vi)
Prior to the 1993 Amendment, the case law among the circuits was clear that a motion brought pursuant to Rule 60(a) did not toll the time to file an appeal. The United States Court of Appeals for the Second Circuit and for the Ninth Circuit are the only two circuit courts to definitively rule upon the interpretation of Rule 4(a)(4)(A)(vi) under the 1993 Amended Rule. These circuits are in agreement that a motion brought pursuant to Rule 60(a) tolls the time to file an appeal so long as the motion was brought within the timeframe prescribed by Rule 4(a)(4)(A)(vi). The Second Circuit decision, however, was not unanimous.
In Dudley v. Penn-America Ins. Co., 313 F.3d 662 (2d Cir. 2002), the Second Circuit held that under 1993 amended Rule 4(a)(4)(A)(vi) a motion brought pursuant to Rule 60(a) tolls the time to file a notice of appeal if brought within ten days of entry of judgment. Although then Second Circuit Judge Sotomayor concurred that the appeal was timely, she disagreed with the two-member majority that a motion brought pursuant to Rule 60(a) tolled the time to file a notice of appeal. According to Judge Sotomayor, since the notice of appeal was timely under Rule 59, the majority should not have considered the issue of whether a Rule 60(a) motion tolls the time to file a notice of appeal, and having considered the issue, the two-member majority got it wrong. Dudley, 313 F.3d at 667 (Sotomayor, J., concurring).
The Ninth Circuit recently followed the Second Circuit's two-member majority opinion and held that under the 1993 Amended Rule 4(a)(4)(A)(vi), Rule 60(a) motions toll the time to file an appeal so long as such motions are filed within 10 days of entry of judgment. See Catz v. Chalker, 566 F.3d 839 (9th Cir. 2009).
The United States Courts of Appeal for the Third Circuit and for the Seventh Circuit have each continued post-1993 Amendment to follow their precedent that the filing of a motion pursuant to Fed. R. Civ. P. 60(a) does not toll the time to file an appeal. See Oriakhi v. Wood, 2007 U.S. App. Lexis 23706 at **3-4 (3d Cir. Oct. 9, 2007) ("[O]ur case law is clear: a Rule 60(a) motion does not affect the time limits within which an appeal must be taken."); Brenner v. Commodity Futures Trading Comm'n, 338 F.3d 713, 721-22 (7th Cir. 2003) (following the court's prior precedent that the "entry of an order correcting a clerical mistake pursuant to Rule 60(a) does not start the time for appeal running again"). Neither of these circuits, however, has expressly addressed the Amended Rule's effect as the Second Circuit and the Ninth Circuit have done.
As this article demonstrates, there is potential for an aggrieved litigant to misuse Rule 60(a) as a mechanism to buy time to file an appeal, whether because no basis exists to file postjudgment motions or for whatever other reason. Therefore, the practical effect of this article is to caution appellate practitioners to calendar 28 days from entry of judgment as being the date to be mindful of any postjudgment motion being filed, even if the motion is purely ministerial in nature. However, considering the strong arguments for and against concluding that Rule 4(a)(4)(A)(vi) applies only to motions brought pursuant to Rule 60(b), the issue of the Rule's tolling effect may indeed be "certiorari worthy," and with Honorable Sonia Sotomayor now serving as Justice on the United States Supreme Court, her position set forth in Dudley may prevail.
Cynthia M. Fiipovich is Chair of Appellate Practice at Clark Hill in Detroit Michigan. She specializes in appellate practice with an emphasis on federal courts of appeals nationwide. Her practice also includes trial litigation, including complex commercial litigation and product liability disputes.