Timing of Appeals Under Rule 4(A)(4)

Full title: THE TIMING OF APPEALS UNDER RULE 4(A)(4) OF THE FEDERAL RULES

Court: Judicial Panel on Multidistrict Litigation

Date published: Jan 1, 1988

123 F.R.D. 371 (J.P.M.L. 1988)

Opinion

January 1, 1988

THE TIMING OF APPEALS UNDER RULE 4(A)(4) OF THE FEDERAL RULES OF APPELLATE PROCEDURE ^{_ __} by CHARLES W. ADAMS ^___

_ Copyright © 1988 Charles W. Adams.

__ This Article developed out of my work with the Civil Procedure Committee of the Oklahoma Bar Association on proposals for revisions to the procedures for the entry of judgments and the filing of appeals in Oklahoma state courts. Many of the ideas that went into this Article grew out of discussions with my colleagues on the Civil Procedure Committee, especially Larry Tawwater, George Fraser, Marian Opala, and Tom Wallace, and I wish to express my gratitude to them. In addition, I want to thank Kevin Clermont, Larry Dessem, Mark Hall, Rick Marcus, and Jeff Parness for reviewing an earlier draft of the Article and offering suggestions for its improvement.

___ Professor of Law, The University of Tulsa College of Law.

I. Introduction

This Article is concerned with a procedural trap in the Federal Rules of Appellate Procedure. 28 U.S.C. § 2107 (1982) and Fed.R.App.P. 4(a)(1) prescribe the time for filing a notice of appeal to be within thirty days after the entry of judgment. Rule 4(a)(4) provides an exception to the general rule when various post-trial motions are filed. Under paragraph (a)(4) the time to appeal does not begin to run until disposition of these post-trial motions. Problems have arisen because not all post-trial motions extend the time to appeal, ¹ and it is not always easy to distinguish motions that do extend the time to appeal from those that do not.² A mistake may be fatal to the appeal.

1 The following motions extend the time to appeal: motions for judgment notwithstanding the verdict under Fed.R.Civ.P. 50(b), motions under Fed.R.Civ.P. 52(b) to amend or make additional findings of fact, motions under Fed.R.Civ.P. 59 to alter or amend a judgment, and motions under Fed.R.Civ.P. 59 for a new trial. Fed.R.App.P. 4(a)(4).

2 For example, in Buchanan v. Stanships, Inc., 485 U.S. 265, 108 S.Ct. 1130, 99 L.Ed. 2d 289 (1988), the appellees filed an application for costs that was styled as a "Motion to Alter or Amend Judgment" shortly after the appellants had filed a notice of appeal. The Fifth Circuit Court of Appeals ruled that the motion extended the time to appeal, but the United States Supreme Court reversed, holding that an application for costs does not extend the time to appeal. For other cases where courts have had difficulty distinguishing motions that extend the time to appeal from those that do not, see sections V and VI infra.

A particularly harsh aspect of rule 4(a)(4) is that prematurely filed appeals do not count. If one of the post-trial motions covered by paragraph (a)(4) is filed, a notice of appeal must be filed within thirty days after the motion is disposed of. Paragraph (a)(4) provides explicitly that an earlier notice of appeal has no effect. An appellant who is unsure whether a post-trial motion extends the time to appeal needs to file two notices of appeal — one within thirty days after the entry of the original judgment and the other within thirty days after the post-trial motion has been decided.

The difficulties that the seemingly straightforward paragraph (a)(4) has caused the appellate courts since its adoption in 1979 are shown by the large number of appellate decisions that have dealt with it. Two United States Supreme Court opinions addressed the issue of the timing of appeals under Fed.R.App.P. 4(a)(4) in 1988, ³ as did one in 1986, ⁴ and the Court has recently granted certiorari in another case raising the issue.⁵ In addition, as of February 6, 1989, Westlaw generated a list of 579 federal court cases, most of them appellate and many unpublished, in response to the keyword "4(a)(4)."⁶

3 Budinich v. Becton Dickinson Co., ___ U.S. ___, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988); Buchanan v. Stanships, Inc., 485 U.S. 265, 108 S.Ct. 1130, 99 L.Ed.2d 289 (1988) (per curiam).

4 Acosta v. Louisiana Dep't of Health Human Resources, 478 U.S. 251, 106 S.Ct. 2876, 92 L.Ed.2d 192 (1986) (per curiam).

5 Osterneck v. Ernst Whinney, ___ U.S. ___, 108 S.Ct. 2032-33, 100 L.Ed.2d 618 (1988).

6 A few of these cases deal with other statutory provisions, but nearly all of them involve Fed.R.App.P. 4(a)(4).
Other indicators of the volume of litigation spawned by Fed.R.App.P. 4(a)(4) are the numbers of pages devoted to it in the annotated codes and treatises on federal procedure. The United States Code Annotated lists 68 pages of annotated cases under rule 4 in its 1980 main volume and 28 pages of annotated cases in its 1988 Supplement covering 1981-1987. The United States Code Service has 20 pages of annotated cases under rule 4 in its 1983 main volume and 28 more pages in its May, 1988 Supplement. 16 Wright, Miller, Cooper Gressman, Federal Practice Procedure (1977) has 8 pages for its Section 3950, entitled "Rule 4. Appeal as of Right — When Taken," in the main volume, and it devotes 67 pages to this Section in its 1987 Supplement. 9 J. Moore, B. Ward, J. Lucas, Moore's Federal Practice (2d ed. 1987) devotes 24 pages to its Paragraph 204.12 entitled "Effect of Post-Decisinal Motions on Time for Appeal" in the main volume and another 19 pages in the Supplement.

The first part of this Article will describe the background and purpose of Fed.R.App.P. 4(a)(4). Next the Article will examine the most significant appellate court decisions that have dealt with the provisions of this paragraph. Finally it will suggest modifying paragraph (a)(4) slightly to allow an appellant a chance to file a new notice of appeal after the original notice of appeal has been ruled premature.

II. Background of Rule 4

Fed.R.App.P. 4(a), dealing with the timing of appeals in civil cases, derives from former Fed.R.Civ.P. 73(a). The original version of rule 73(a), ⁷ adopted in 1938, made no provision for the effect of pending post-trial motions on the time for filing a notice of appeal. This omission was partly cured by case law, such as Leishman v. Associated Wholesale Electric Co., ⁸ which held that a motion to amend findings of fact "in more than purely formal or mechanical aspects"⁹ tolled the time for taking an appeal so that it ran from the date of the order disposing of the motion. The Court reasoned that the filing of the motion to amend findings of fact "deprived the judgment of that finality which is essential to appealability,"¹⁰ because the motion involved issues of substance and sought alteration of rights that had been determined by the trial court. Other courts had similarly ruled that the time to appeal should be extended until timely filed motions for new trial, ¹¹ for judgment notwithstanding the verdict, ¹² and to amend a judgment¹³ had been disposed of by the trial courts.

7 28 U.S.C. app. p. 2651 (1940).

8 318 U.S. 203, 63 S.Ct. 543, 87 L.Ed. 714 (1943).

9 Id. at 206, 63 S.Ct. at 544.

10 Id. at 205, 63 S.Ct. at 544.

11 Steber v. Kohn, 149 F.2d 4, 5 (7th Cir. 1945) (time for appeal began to run after denial of second motion for new trial based on newly discovered evidence); Gulf Ref. Co. v. Mark C. Walker Son Co., 124 F.2d 420, 423 (6th Cir.) (filing of timely new trial motion tolled appeal period), cert. denied, 316 U.S. 682, 62 S.Ct. 1268, 1269, 86 L.Ed. 1755 (1942); Hawley v. Hawley, 114 F.2d 745, 747 (D.C. Cir. 1940).

12 Reliance Life Ins. Co. v. Burgess, 112 F.2d 234, 240 (8th Cir. 1940).

13 Neely v. Merchants Trust Co., 110 F.2d 525, 525 (3d Cir. 1940) (running of the time for taking an appeal was suspended by the filing of a motion for a new trial, and for amended and new findings and an amended judgment under Fed.R.Civ.P. 52(b)).

Rule 73(a) was thoroughly overhauled in 1948, and language was added to deal specifically with the timing of appeals in cases where various post-trial motions had been filed. The revised rule stated:

The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: granting or denying a motion for judgment under Rule 50(b); or granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under Rule 59 to alter or amend the judgment; or denying a motion for a new trial under Rule 59.¹⁴

14 28 U.S.C. app. p. 6157 (1964).

The accompanying Notes of the Advisory Committee on Rules explain that this sentence "makes clear the effect upon appeal time"¹⁵ of the trial court's rulings on these post-trial motions. In particular, this new provision clarified the requirement that a post-trial motion must be timely in order to extend the appeal time.¹⁶ An amendment to Fed.R.Civ.P. 6(b) that was also adopted in 1948 prohibited trial courts from enlarging the time for filing these post-trial motions.¹⁷

15 Id. at p. 6159.

16 Contrary statements in cases were expressly disapproved in the Advisory Committee's Notes. Id. at p. 6160. For examples of cases holding than a post-trial motion has to be timely to extend the time to appeal, see Browder v. Director, Dep't of Corrections, 434 U.S. 257, 269, 98 S.Ct. 556, 563, 54 L.Ed.2d 521 (1978) ("Rule 4(a) follows the 'traditional and virtually unquestioned practice' in requiring that a motion be timely if it is to toll the time for appeal."); de la Fuente v. Central Elec. Coop., Inc., 703 F.2d 63 (3d Cir. 1983) (untimely new trial motion); United States v. Valdosta-Lowndes County Hosp. Auth., 668 F.2d 1177, 1178-79 (11th Cir. 1982) (untimely motion for judgment n.o.v.). But see Thompson v. Immigration Naturalization Serv., 375 U.S. 384, 387, 84 S.Ct. 397, 399, 11 L.Ed.2d 404 (1964) ("unique circumstances" justified allowing appeal to proceed even though post-trial motions were not served until 12 days after the entry of judgment).

17 28 U.S.C. app. p. 6160 (1964).

When the Federal Rules of Appellate Procedure were adopted in 1968, the provisions of the former Fed.R.Civ.P. 73(a) were incorporated into the new Fed.R.App.P. 4(a) without any change in substance.¹⁸ Like the former rule 73(a), the new rule 4(a) provided for the filing of a notice of appeal in the federal district court within thirty days after the entry of judgment. It also provided that the filing of post-trial motions for a new trial, judgment notwithstanding the verdict, to alter or amend a judgment, or to amend or make additional findings of fact tolled the thirty day period until after the entry of the orders disposing of these motions.¹⁹

18 The first sentence of the Notes of Advisory Committee on Appellate Rules for Fed.R.App.P. 4 as adopted in 1969 said: "This subdivision is derived from FRCP 73(a) without any change of substance." 28 U.S.C. app. p. 468 (1982).

19 Some minor changes in language were made when Fed.R.Civ.P. 73(a) was brought over into Fed.R.App.P. 4. As adopted in 1969, the pertinent provision of Fed.R.App.P. 4 was as follows:

The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the district court by any party pursuant to the Federal Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: (1) granting or denying a motion for judgment under Rule 50(b); (2) granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under Rule 59 to alter or amend the judgment; (4) denying a motion for a new trial under Rule 59.

28 U.S.C. app. p. 7702 (1970).

Before 1979 several cases raised the issue of what effect should be given to a notice of appeal that was filed before a post-trial motion had been decided by the trial court. Stokes v. Peyton's Inc., ²⁰ is representative. The appellant in Stokes filed a timely motion for new trial and then filed a notice of appeal while the motion was pending. Although the appellant did not file another notice of appeal after the motion for new trial was denied, he continued to pursue the appeal by paying his filing fee and filing his brief with the appellate court. The Fifth Circuit Court of Appeals denied the appellee's motion to dismiss the appeal. It reasoned that as long as the appellant had manifested an intent to pursue the appeal and there was no prejudice to the appellee, the appeal should not be dismissed even though it was technically premature.²¹

20 508 F.2d 1287 (5th Cir. 1975).

21 Id. at 1288.

A premature notice of appeal would not be given effect, however, if the underlying judgment was substantially altered by the granting of a post-trial motion. This is illustrated by Keith v. Newcourt. ²² In the Keith case, a notice of appeal was filed while the appellee's motion for new trial was pending, and then the trial court granted the motion for new trial. The Eighth Circuit Court of Appeals quite properly ruled that it lacked jurisdiction to decide the appeal, because the trial court would be holding a new trial that might obviate the grounds for the appeal.²³ But at least where a post-trial motion was ultimately denied, most courts (with the exception of the Tenth Circuit²⁴) allowed an appeal to be decided on its merits in cases where a notice of appeal had been filed before the trial court decided the motion.²⁵

22 530 F.2d 826 (8th Cir. 1976).

23 See also Song Jook Suh v. Rosenberg, 437 F.2d 1098, 1099 (9th Cir. 1971) ("It is true that had the motion [for new trial] been granted, the judgment would have been vacated and a new judgment ultimately entered. That judgment would then have been the only appealable judgment, and the notice of appeal previously filed would have been aborted.") (dictum).

24 Century Laminating Ltd. v. Montgomery, 595 F.2d 563, 567 (10th Cir.) ("[W]hen one of the motions enumerated in the second paragraph of Rule 4(a), Fed.R.App.P., is timely filed after the entry of judgment in a civil case the judgment does not become final until the motion has been ruled upon by the trial court. A notice of appeal filed while such a motion is still pending in the trial court is prematurely filed and does not transfer jurisdiction to the court of appeals."), cert. dismissed, 444 U.S. 987, 100 S.Ct. 516, 62 L.Ed.2d 417 (1979).

25 Williams v. Town of Okoboji, 599 F.2d 238, 239 (8th Cir. 1979) ("Although such premature appeals are subject to dismissal, . . . generally the appellant may proceed unless the appellee can show prejudice resulting from the prematurity of the notice."); Yaretsky v. Blum, 592 F.2d 65, 67 (2d Cir. 1979) ("[I]n the absence of prejudice to the appellee, the court should treat a premature appeal as from a final judgment so as to avoid denial of justice, expense, and inconvenience."), cert. denied, 450 U.S. 925, 101 S.Ct. 1379, 67 L.Ed.2d 355 and 454 U.S. 817, 102 S.Ct. 96, 70 L.Ed.2d 87 (1981); Alexander v. Aero Lodge No. 735, 565 F.2d 1364, 1371 (6th Cir. 1977) ("We decline to prejudice the appeal on [account of its being premature], especially where the intent of the parties was clear and the appellees have in no way been misled. Given the choice, the court should prefer an excess of diligence to the absence of it."), cert. denied, 436 U.S. 946, 98 S.Ct. 2849, 56 L.Ed.2d 787 (1978); Song Jook Suh v. Rosenberg, 437 F.2d 1098, 1099 (9th Cir. 1971) (saying that it "would be technical in the extreme" to dismiss an appeal because the notice of appeal was filed before a motion for new trial was denied).

III. The 1979 Amendments to FRAP 4

A number of amendments to the Federal Rules of Appellate Procedure were made in 1979. In general, they were designed to remove pitfalls in the appellate process and make the process of appealing a judgment easier. For example, one amendment added the following sentence to Fed.R.App.P. 3(c): "An appeal shall not be dismissed for informality of form or title of the notice of appeal." This was done so "that the right to appeal [would] not be lost by mistakes of mere form."²⁶ Another amendment established a new Fed.R.App.P. 4(a)(2) that was "designed to avoid the loss of the right to appeal by filing the notice of appeal prematurely."²⁷ This new provision read: "Except as provided in (a)(4) of this Rule 4, a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof." The common purpose of these amendments was to prevent appeals from being lost on account of technicalities.

26 28 U.S.C. app. p. 467 (1982).

27 Id. at p. 469.

Fed.R.App.P. 4(a)(4), which also came into existence in 1979, is different, though. The new paragraph (a)(4) incorporated provisions from the previous version of Fed.R.App.P. 4(a) that extended the time for appeal until the entry of the orders on any of the post-trial motions specified in the rule. However, in sharp contrast to the forgiving provisions of paragraph (a)(2), paragraph (a)(4) went on to provide that a prematurely filed notice of appeal would "have no effect." It also stated that a new notice of appeal would have to be filed within the appropriate period following the entry of an order on a post-trial motion, but no additional fees would be required for filing the new notice of appeal. As amended in 1979, Fed.R.App.P. 4(a)(4) now provides:

If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party: (i) for judgment under Rule 50(b); (ii) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) under Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. No additional fees shall be required for such filing.

According to the Advisory Committee Notes, the reason for adding the new language was that it would be undesirable for an appeal to be going forward while a post-trial motion was pending before the trial court.²⁸ The Advisory Committee cited Keith v. Newcourt, ²⁹ which is discussed above in Part II, to illustrate this concern. Keith was an exceptional case, though, because most post-trial motions are denied. Where a post-trial motion is denied, there is no undue burden imposed on either the trial or appellate court by allowing the appeal to proceed. Accordingly, the policy of forgiving a premature appeal reflected in paragraph (a)(2) is more appropriate than the harsh results that application of paragraph (a)(4) has caused. In addition, the Keith case itself shows that the 1979 amendment adding paragraph (a)(4) was unnecessary. Even without the 1979 amendment, the Keith court was able to dismiss the appeal so that it did not waste any energy on the merits of the appeal while the trial court was conducting the new trial.

28 Id.

29 530 F.2d 826 (8th Cir. 1976).

The Advisory Committee further justified these changes by pointing to amendments to other Federal Rules of Appellate Procedure that were being made in 1979. These amendments accelerated the appellate process by requiring fees for the appeal to be paid to the district court immediately on the filing of the notice of the appeal, ³⁰ and by requiring the appeal to be docketed in the court of appeals as soon as the copy of the notice of appeal was received from the clerk of the district court.³¹ The Advisory Committee Notes say that these other amendments would get the appellate process moving sooner, and therefore would tend to increase the possibility of wasted effort from premature appeals.³²

30 Fed.R.App.P. 3(e).

31 Fed.R.App.P. 12(a).

32 28 U.S.C. app. p. 469 (1982).

The Advisory Committee's concern with efficiency is ironic, given the difficulties that the provisions in paragraph (a)(4) have caused the appellate courts. These difficulties are reflected by the hundreds of decisions dealing with Fed.R.App.P. 4(a)(4) since it was added in 1979. Apparently the Committee was worried that a court of appeals might begin working on the appeal before the trial court decided the post-trial motion, and its effort would be wasted if the trial court altered the judgment by granting the motion. Considering the congestion and delays in the courts of appeals, ³³ however, it is unlikely that a court of appeals would have the opportunity to waste much time on an appeal before the trial court decided a post-trial motion. Also, an appellate court could avoid wasting effort by refraining from proceeding with an appeal while a post-trial motion was pending in the trial court. The amendments might have permitted an appeal to be suspended while a post-trial motion was pending, instead of requiring dismissal of the appeal. This would have enabled a court of appeals to coordinate its efforts with the trial court so that the appeal could be decided on its merits.

33 In 1979 the median interval in the circuit courts of appeals between the filing of a notice of appeal and the filing of the last brief was 4.4 months, and the median interval between the filing of a notice of appeal and the final disposition of the appeal was 10.5 months. 1979 Admin.Off.U. S.Courts Ann.Rep. 352. In 1987 these periods were 4.7 months and 10.3 months, respectively. 1987 Admin.Off.U.S.Courts Ann.Rep. 152.

Another justification that the Advisory Committee Notes gave for the amendments is that a notice of appeal filed before the denial of a post-trial motion would not cover objections to the denial. Thus, according to the Advisory Committee, postponing the notice of appeal until after the post-trial motion is denied would be preferable. However, the grounds for an appeal from a denial of a post-trial motion will generally be the same as the grounds for an appeal from the original judgment.³⁴ For example, an appeal based on erroneous jury instructions or improper evidentiary rulings would raise the same issues as an appeal following denial of a motion for new trial made on these grounds. Even if some difference between an appellant's objections to denial of a post-trial motion and the original judgment could be found, ³⁵ there would be no necessity to dismiss an appeal altogether merely because a second notice of appeal had not been filed. In the absence of a second notice of appeal, the appeal ought to be allowed to proceed at least with respect to any issues raised in the original notice of appeal.³⁶

34 See 9 J. Moore, B. Ward J. Lucas, Moore's Federal Practice ¶ 204.14 n. 26 (2d ed. 1987) ("In cases in which the relief sought by post-trial motions is denied and the judgment remains as entered, the appellant in effect refiles the same paper."). Cf. Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962) (court of appeals erred by not treating an appeal from post-trial motions to vacate the judgment and to amend the complaint as an appeal from the judgment); Williams v. Town of Okoboji, 599 F.2d 238, 239-40 (8th Cir. 1979) (notice of appeal filed before the appellant's motions to set aside the judgment and for leave to amend the complaint were denied sufficed to permit appellate review of the denial of the post-trial motions).

35 Examples would be objections to the denial of a motion for new trial on the grounds that the verdict was against the clear weight of the evidence or that the verdict was inadequate or excessive. These matters are committed to the trial court's discretion. Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 481, 53 S.Ct. 252, 254, 77 L.Ed. 439 (1933) ("The rule that this Court will not review the action of a federal trial court in granting or denying a motion for a new trial for error of fact has been settled by a long and unbroken line of decisions; and has been frequently applied where the ground of the motion was that the damages awarded by the jury were excessive or were inadequate." (footnote omitted)). Nevertheless, an appellant might argue that the trial court abused its discretion in denying a motion for new trial based on one of these grounds. See Music Research, Inc. v. Vanguard Recording Soc'y, 547 F.2d 192 (2d Cir. 1976) (abuse of discretion standard for appellate review of denial of motion for new trial based on the sufficiency of the evidence); White Motor Corp. v. Stewart, 465 F.2d 1085, 1090 (10th Cir.) (abuse of discretion standard for appellate review of denial of motion for new trial based on excessiveness of the verdict), cert. denied, 409 U.S. 1061, 93 S.Ct. 561, 34 L.Ed.2d 513 (1972). Cf. Spanish Action Comm. v. City of Chicago, 766 F.2d 315, 321 (7th Cir. 1985) ("[T]he grant or denial of a motion for a new trial is not subject to review by this court except where exceptional circumstances show a clear abuse of discretion.").

36 Arguably, the appellate court should also have authority to review any additional errors that arose after the filing of a notice of appeal so that the entire case could be reviewed on its merits. At the very least, the appellate court should be allowed to correct any errors that arose before the notice of appeal was filed. However, this is not allowed by the 1979 amendments to Fed.R.App.P. 4(a)(4).

Lastly, the Advisory Committee noted that the provision in the previous version of Fed.R.App.P. 4 stating that "[t]he running of the time for filing a notice of appeal is terminated" was ambiguous as applied to a notice of appeal filed before the filing of a timely post-trial motion. The Advisory Committee decided to resolve this ambiguity by requiring a new notice of appeal to be filed, instead of letting the original notice suffice.³⁷

37 28 U.S.C. app. p. 469 (1982).

The Advisory Committee's justifications for the 1979 amendments to Fed.R.App.P. 4(a)(4) are not especially compelling, but the amendments do not appear on their face to be particularly harmful either. All that an attorney needs to do to preserve the opportunity to appeal is to file a new notice of appeal after entry of the trial court's order on the post-trial motions. The Advisory Committee gave clear directions in paragraph (a)(4) to follow this procedure, and it even provided that no additional fees would be required so that appellants would not be deterred by economic considerations from filing the second notice of appeal.

What the Advisory Committee did not reckon, however, was that a number of attorneys and pro se litigants would not file a second notice of appeal, even though this would result in the dismissal of their appeals.³⁸ The remaining sections of this Article will examine some of the numerous cases in the federal court system where appeals have been dismissed because notices of appeals have been filed prematurely. These cases show that the 1979 amendments to Fed.R.App.P. 4(a)(4) have not only caused injustice to litigants but have also required considerable attention from the appellate courts, who have had to hear the appeals from those who have been caught in paragraph (a)(4)'s procedural trap.³⁹

38 See supra text accompanying notes 3-6. See also Averhart v. Arrendondo, 773 F.2d 919, 920 (7th Cir. 1985) ("[W]e know from past experience that [Fed.R.App.P. 4(a)(4)] is a trap for the unwary into which many appellants, especially those not represented by counsel (and most prisoners are not) have fallen, with dire consequences since there is no way they can reinstate their appeal if the second notice of appeal is untimely.").

39 Moore's Federal Practice recognizes the possibility that Fed.R.App.P. 4(a)(4) might be a trap for unwary litigants. Nevertheless, the treatise maintains that the clerks of the district courts and courts of appeals would be able to alleviate most problems that might arise by detecting premature notices of appeals and notifying the errant appellants in time for them to file timely notices of appeal. According to Moore's Federal Practice, if a notice of appeal is filed ahead of a post-trial motion, the clerk of the district court ought to realize that the notice of appeal is ineffective as soon as the post-trial motion is filed, and the clerk should so notify the court of appeals. The clerk of the court of appeals could then remove the appeal from the appellate docket and send a copy of the order dismissing the appeal to the appellant along with a notice that a new notice of appeal must be filed after the post-trial motion is decided if the appeal is to be continued. If a notice of appeal is filed after a post-trial motion but while the post-trial motion pending, the district court clerk would become aware of this while preparing docket entries for transmission to the clerk of the court of appeals, and could notify the appellant of the problem in time for it be remedied. Moore's Federal Practice concludes: "Thus a minimum exercise of the docket management function contemplated by the Rules as amended in 1979 ought to prevent a situation in which the jurisdictional character of Rule 4(a)(4) is put to test [sic]." 9 J. Moore, B. Ward, J. Lucas, Moore's Federal Practice ¶ 204.14 at 4-120 (2d ed. 1987).
Unfortunately, the docket management function to which Moore's Federal Practice refers has not worked as well as its authors anticipated.

IV. The Griggs and Acosta Decisions

After paragraph (a)(4) was added to Fed.R.App.P. 4 in 1979, most circuit courts stopped accepting premature appeals based on notices of appeal filed while post-trial motions were pending.⁴⁰ However, the Third Circuit allowed a premature appeal to proceed in Tose v. First Pennsylvania Bank, N.A., ⁴¹ relying on Fed.R.App.P. 2. Rule 2 authorizes a court of appeals to suspend the requirements of any of the Federal Rules of Appellate Procedure "[i]n the interest of expediting decision, or for other good cause shown." The court in the Tose case decided that it had discretion under Fed.R.App.P. 2 to waive the requirements of Fed.R.App.P. 4(a)(4) in order to prevent the loss of an opportunity for appellate review. It held that as long as the opposing party was not prejudiced by the filing of a notice of appeal before the trial court's ruling on a post-trial motion, the appeal should not be dismissed.⁴² Tose was followed by the Third Circuit in Griggs v. Provident Consumer Discount Co. ⁴³ The Griggs case arose out of the refinancing of a consumer loan, and it was brought against a lender by a married couple who were represented by a Legal Services attorney in Philadelphia.⁴⁴ The plaintiffs alleged violations of the Truth in Lending Act⁴⁵ and Regulation Z of the Federal Reserve Board, ⁴⁶ and the lender filed a counterclaim for setoff of the loan it had made to the plaintiffs. The trial court granted summary judgment in favor of the plaintiffs, holding that the lender had violated the Truth in Lending Act, and it awarded statutory damages of $1,000 to each plaintiff.⁴⁷

40 Beam v. Youens, 664 F.2d 1275, 1276 (5th Cir. 1982) ("But whatever the past trend may have been, it is clear, as evidenced by the Advisory Committee notes, that the 1979 amendment was meant to change that. . . ."); Laser Alignment, Inc. v. ICM of the Carolinas, Inc., 32 Fed. Rules Serv.2d 776, 778 (4th Cir. 1981) ("It is admittedly hard to refute the argument that allowing the premature notice of appeal any significance . . . would fly directly in the face of the Rule's provision that a notice filed too soon 'shall have no effect.' (emphasis supplied)."); Williams v. Bolger, 633 F.2d 410, 412 (5th Cir. 1980) ("By the inflexibility of its language, the amendment effectively overrules several previous decisions of this court which suggested that a premature filing could be excused under certain circumstances.").

41 648 F.2d 879 (3d Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981).

42 Id. at 882, n. 2.

43 680 F.2d 927, 929 n. 2 (3d Cir. 1982), rev'd, 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982).

44 Id. at 929.

45 15 U.S.C. § 1601 et seq. (1982 Supp. 1986).

46 12 C.F.R. § 226.1 et seq. (1988).

47 Griggs v. Provident Consumer Discount Co., 503 F.Supp. 246, 250-51 (E.D.Pa. 1980).

The lender's first appeal was dismissed, because its notice of appeal was filed while its counterclaim remained to be decided by the trial court. Later the trial court directed the entry of a separate final judgment on the plaintiffs' Truth in Lending Act claim pursuant to Fed.R.Civ.P. 54(b).⁴⁸ Then on November 17, 1981, the lender filed a "Motion for Reconsideration and Motion to Alter, Amend and Vacate Judgment" in the trial court. Next on November 19, the lender filed a notice of appeal. Finally on November 23 the lender's motion in the trial court was denied.

48 Griggs v. Provident Consumer Discount Co., 680 F.2d 927, 929-30 (3d Cir. 1982), rev'd, 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). See Fed.R.Civ.P. 54(b) (an order that adjudicates less than all the claims in an action is not final and appealable, unless the court expressly orders otherwise).

The plaintiffs argued that the 1979 amendments to Fed.R.App.P. 4 precluded the Third Circuit Court of Appeals from hearing the appeal.⁴⁹ While acknowledging that the lender's notice of appeal was premature and did not satisfy Fed.R.App.P. 4(a)(4), the Third Circuit nevertheless decided the appeal on its merits and reversed the trial court's summary judgment. Citing Tose, the court said that in general its policy was to allow premature appeals to proceed, unless the appellee could show some prejudice resulting from the premature filing of the notice of appeal.⁵⁰

49 680 F.2d at 929 n. 2.

50 Id.

The United States Supreme Court granted the plaintiffs' request for leave to proceed in forma pauperis and their petition for a writ of certiorari, and reversed the Third Circuit in a per curiam opinion.⁵¹ The Supreme Court read the 1979 amendments to mean that a premature notice of appeal filed while a post-trial motion is pending is a nullity. Quoting Moore's Federal Practice, the Court said that if a post-trial motion is filed after a notice of appeal has been filed "'[t]he appeal simply self-destructs' [so that] it is as if no notice of appeal is filed at all."⁵²

51 Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982).

52 Id. at 61, 103 S.Ct. at 403.

The Griggs opinion was based on the premise that the filing of a notice of appeal has jurisdictional significance. This means that once a notice of appeal is filed, jurisdiction over the case passes to the court of appeals, and the trial court ceases to have authority to deal with it any further.⁵³ The Court noted that it is difficult to reconcile this view with the results of the pre-1979 cases⁵⁴ that had permitted appeals to be heard where a notice of appeal was filed before the trial court's decision on a post-trial motion. Theoretically, the filing of a notice of appeal should have prevented a trial court from having jurisdiction to decide a post-trial motion. Nevertheless, the Supreme Court determined that "this theoretical inconsistency was tolerable in practice."⁵⁵ Prior to the 1979 amendments it was unlikely that a trial and an appellate court would find themselves working on a case at the same time, because a trial court would usually wait until it disposed of any post-trial motions before notifying the court of appeals that a notice of appeal had been filed. The Court explained that the 1979 amendments to the Federal Rules of Appellate Procedure had accelerated the processing of appeals so that the chances of a trial court and an appellate court modifying a judgment simultaneously had increased. In order to prevent such a catastrophe from happening, Fed.R.App.P. 4(a)(4) was added to deprive the courts of appeals of jurisdiction whenever a post-trial motion was filed. And if a premature notice of appeal cannot give jurisdiction to a court of appeals, there is no way that a court of appeals could waive the prematurity of the notice of appeal by suspending the rules under Fed.R.App.P. 2. The Court also pointed out that Fed.R.App.P. 2 contains an express exception against its use to enlarge the time for filing a notice of appeal.⁵⁶

53 Id. at 58, 103 S.Ct. at 401.

54 See cases cited supra note 25.

55 459 U.S. at 59, 103 S.Ct. at 402.

56 Id. at 61 n. 3, 103 S.Ct. at 403 n. 3.
Fed.R.App.P. 2 provides:

In the interest of expediting decision, or for other good cause shown, a court of appeals may, except as other provided in Rule 26(b), suspend the requirements or provisions of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction.

Fed.R.App.P. 26(b) provides in pertinent part that "the court may not enlarge the time for filing a notice of appeal, a petition for allowance, or a petition for permission to appeal."

Justice Marshall dissented. He asserted that the Court's interpretation of Fed.R.App.P. 4(a)(4) was contrary to the spirit of the Federal Rules, and he predicted that it would create serious pitfalls for unsophisticated litigants. Justice Marshall noted that litigants file all kinds of post-trial motions with a variety of names (motions to reconsider, vacate, set aside, or reargue judgments), and that these are often classified as Fed.R.Civ.P. 59 motions that extend the time for appeal under Fed.R.App.P. 4(a)(4). He anticipated that litigants could easily fall into the trap of filing one of these motions without realizing that it would cause the time for filing a notice of appeal to be postponed.⁵⁷

57 459 U.S. at 67-68, 103 S.Ct. at 406-07.

By construing the timing requirements of Fed.R.App.P. 4(a)(4) as jurisdictional in Griggs, the Supreme Court cast them in cement, thereby requiring courts of appeals to dismiss appeals that in fairness should be heard on their merits. There are pragmatic reasons for wanting to avoid having two courts review a single judgment at the same time.⁵⁸ Obviously, it would be undesirable for a trial court to grant a motion for judgment notwithstanding the verdict while the appellate court was considering the appeal.⁵⁹ Pinning a jurisdictional label on Fed.R.App.P. 4(a)(4)'s timing requirements elevates them to the point, however, that they interfere with, rather than enhance, the appellate process.⁶⁰ Once notions of subject matter jurisdiction enter into the analysis of appellate procedure, the focus of discussion inevitably seems to shift from considerations of achieving fairness to the litigants and improving the efficiency of the process to a formalism that is inconsistent with the spirit of the Federal Rules.⁶¹ Additionally, the Griggs decision almost completely closed the door on attempts by courts of appeals to soften the rigid requirements of Fed.R.App.P. 4(a)(4) in order to save some appeals.⁶²

58 The Eleventh Circuit described the waste of effort that can result from having both the trial court and appellate court handle a case at the same time in Martin v. Campbell, 692 F.2d 112, 115 (11th Cir. 1982):

[I]f the motion did not hold matters in status quo the machinery of appellate procedures will move forward with respect to the judgment appealed from. As happened in this instance, the court will docket the appeal and instruct plaintiff on the mechanics he must follow. Plaintiff must notify the court reporter to prepare a transcript and make financial arrangements for it. When the transcript is completed the clerk of the district court will prepare and file the record in the appellate court. The time then begins to run for the filing of briefs. As happened here, delays in briefing may have to be asked to see what happens to the motion pending in the district court, which leaves the case dead in the water in the court of appeals. Some, or all, of this effort may have to be cancelled, or supplemented, or done over again once the new trial motion has been disposed of.

59 Cf. Keith v. Newcourt, Inc., 530 F.2d 826 (8th Cir. 1976) (the appeal was dismissed because the judgment lacked finality after the trial court granted a new trial motion).

60 Cf. Hall, The Jurisdictional Nature of the Time to Appeal, 21 Ga. L. Rev. 399, 399, 412-13, 427 (1986) (criticizing the characterization by appellate courts of timing defects in notices of appeal as jurisdictional and recommending that timing defects be waived if they are not raised by the parties); Rosenberg, Solving the Federal Finality-Appealability Problem, 47 Law Contemp.Probs. 171, 172-73 (1984) (recommending elimination of jurisdictional terminology from the federal statutes governing appealability).

61 See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 65, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (Marshall, J., dissenting); 9 J. Moore, B. Ward, J. Lucas, Moore's Federal Practice ¶ 204.14 at 4-120 (2d ed. 1987) ("It might be argued that the treatment of this aspect of the problem of prematurity is a retreat to older and more rigid concepts. . . ."); Carrington, Toward a Federal Civil Interlocutory Appeals Act, 47 Law Contemp.Probs. 165, 170 (1984) ("The present law treats ripeness and timeliness as jurisdictional in the sense that they are objections that cannot be waived and must be raised by the court sua sponte. . . . This is a fetish which serves no significant systemic interest; the status and authority of the district court is scarcely threatened by the consideration of an appeal that is out of time."); Hall, The Jurisdictional Nature of the Time to Appeal, 21 Ga. L. Rev. 399, 406-07 (1986) ("Almost as a religious incantation, courts have repeated the refrain countless times that timing requirements for notices of appeal are 'mandatory and jurisdictional.'" (footnote omitted)).

62 But see Finch v. City of Vernon, 845 F.2d 256, 259-60 (11th Cir. 1988) (notice of appeal filed while a motion for reconsideration was pending was premature, but appellate brief filed by pro se litigants within 30 days after the entry of the order denying the post-trial motion constituted a timely notice of appeal); Stallworth v. Shuler, 758 F.2d 1409, 1411 (11th Cir. 1985) (filing of an appeal bond satisfied the requirement for filing a notice of appeal).

The Supreme Court carried its rigid approach to construing Fed.R.App.P. 4(a)(4) even further in Acosta v. Louisiana Department of Health Human Resources. ⁶³ The appellant in Acosta filed his notice of appeal after a post-trial motion had been decided, but before it was entered. The Supreme Court upheld the dismissal of the appeal as premature in a per curiam opinion.

63 478 U.S. 251, 106 S.Ct. 2876, 92 L.Ed.2d 192 (1986) (per curiam). See also Allen v. Horinek, 827 F.2d 672, 673 (10th Cir. 1987) (following Acosta).

Acosta arose out of a civil rights case that had been disposed of by motions to dismiss and for summary judgment. After the plaintiff's first appeal was dismissed as untimely, the defendants sought attorney's fees on the ground that the action was frivolous and filed in bad faith.⁶⁴ The district court awarded the defendants approximately $19,000 in attorney's fees, and the plaintiff filed a timely Motion to Alter or Amend the Judgment under Fed.R.Civ.P. 59(e). A hearing was held at which the plaintiff's motion was denied from the bench, and the plaintiff filed a notice of appeal later that day. A Judgment on the Motion to Alter or Amend was entered on the docket two days later, but the plaintiff did not file a new notice of appeal after the entry. Because the only notice of appeal was filed after the decision on the post-trial motion but before its entry, the Acosta case fell between paragraphs (a)(2) and (a)(4) of Fed.R.App.P. 4.

64 Petition for Writ of Certiorari 4-5, Acosta v. Louisiana Dep't of Health Human Resources, 478 U.S. 251, 106 S.Ct. 2876, 92 L.Ed.2d 192 (1986) (per curiam).

A similar situation had arisen several years earlier in Calhoun v. United States. ⁶⁵ In Calhoun the appellant's motion to correct a judgment had been denied, but had not been formally entered in accordance with the requirements of Fed.R.Civ.P. 58 and 79(a). Even though the notice of appeal was filed before the entry of the order denying the post-trial motion, the Ninth Circuit allowed the appeal to proceed, relying on Fed.R.App.P. 4(a)(2).⁶⁶ The Court of Appeals noted that the addition of paragraph (a)(2) to Fed.R.App.P. 4 was "designed to avoid the loss of the right to appeal by the filing of a notice of appeal prematurely."⁶⁷ But because paragraph (a)(2) begins with the qualification "[e]xcept as provided in (a)(4)," the Court of Appeals also considered the effect of the latter paragraph on the appeal. Paragraph (a)(4) provides that if any of the specified post-trial motions are filed, "[a] notice of appeal filed before the disposition of any of the above motions shall have no effect." Construing this provision in conjunction with paragraph (a)(2), the Ninth Circuit decided that "disposition" meant the announcement of the court's ruling on the motion. It reasoned that the purposes of the timing provisions in paragraph (a)(4) were (1) to prevent wasted effort resulting from the trial and appellate courts handling a case at the same time and (2) to enable a notice of appeal to cover objections to the trial court's ruling on a post-trial motion. Allowing an appeal to proceed where a notice of appeal had been filed after the decision on a post-trial motion, but before its formal entry, would not interfere with either of these purposes. At the same time it would be consistent with the policy of leniency in paragraph (a)(2). The Court of Appeals concluded:

65 647 F.2d 6 (9th Cir. 1981).

66 Fed.R.App.P. 4(a)(2) provides:

Except as provided in (a)(4) of this Rule 4, a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof.

67 647 F.2d at 10. See also Notes of Advisory Committee on Appellate Rules — 1979 Amendment, 28 U.S.C. app. p. 469 (1982) ("The proposed amendment to Rule 4(a)(2) would extend to civil cases the provisions of Rule 4(b), dealing with criminal cases, designed to avoid the loss of the right to appeal by filing the notice of appeal prematurely.")

The distinctions between announcement of a decision, the filing of a judgment or order, and the entry of a judgment or order should not be utilized to create an abyss into which early appeals fall without effect. It would be contrary to the spirit of the rules to interpret the word "disposition" as meaning the date of a formal and proper entry of an order denying a post-judgment motion.⁶⁸

68 647 F.2d at 11.

In the Acosta case the United States Supreme Court rejected Calhoun's interpretation of paragraphs (a)(2) and (a)(4) of Fed.R.App.P. 4 in favor of a more literal approach. The Supreme Court held:

The plain import of [the exception at the beginning of paragraph (a)(2)] is that with respect to the particular motions to which it applies, Rule 4(a)(4) constitutes an exception to the general rule that a notice of appeal filed after announcement of an order but before its entry in the docket will be deemed timely filed. The Ninth Circuit's Calhoun rule essentially reads the first clause of subdivision (a)(2) out of Rule 4 by holding that Rule 4(a)(2) does not constitute such an exception. But if subdivision (a)(2) is taken seriously, it is untenable to read subdivision (a)(4) except as the Fifth Circuit has read it in this case: that is, as establishing the rule that a notice of appeal is ineffective unless filed after entry of judgment on a Rule 59 motion or any of the other motions to which the subdivision applies. (emphasis in original)⁶⁹

69 478 U.S. at 254, 106 S.Ct. at 2878.

Instead of considering Fed.R.App.P. 4(a)(4)'s purpose as reflected in the Advisory Notes, the Court focused on its wording. The policies behind paragraph (a)(2) are equally applicable to a notice of appeal filed after the announcement but before the entry of an order on a post-trial motion as to one filed after the announcement but before the entry of a judgment. In either situation, no harm is caused to either the courts or litigants by giving effect to the notice of appeal, and this is the result that Acosta should have reached.⁷⁰ The Griggs decision is at least consistent with the expressed purposes of the 1979 amendments to Fed.R.App.P. 4, but Acosta appears to serve no policy other than following the rule's language literally.

70 Cf. 16 Wright, Miller, Cooper Gressman, Federal Practice Procedure § 3950 at 301-302 (Supp. 1987) (criticizing Acosta and suggesting that the Supreme Court should reconsider the issue).

In spite of the rule's clarity and the Supreme Court's rigid adherence to its terms in the Griggs and Acosta decisions, Fed.R.App.P. 4(a)(4) continues to generate litigation in the federal appellate system as litigants persist in trying to avoid its application. As Justice Marshall foresaw in his dissent in Griggs, ⁷¹ a significant area of controversy has been deciding which of the many varieties of post-trial motions are covered by Fed.R.App.P. 4(a)(4). The problems the appellate courts have had in classifying the post-trial motions for purposes of Fed.R.App.P. 4(a)(4) are explored in the next two sections of this Article.

71 459 U.S. at 68, 103 S.Ct. at 407.

V. The Harcon Barge Decisions — Which Post-Trial Motions Does Rule 4(a)(4) Cover?

An important consequence of Fed.R.App.P. 4(a)(4) is that it forces litigants and appellate courts to categorize post-trial motions. In numerous cases the courts of appeals have struggled with the question whether particular post-trial motions were motions under Fed.R.Civ.P. 59, that would extend the time to file a notice of appeal, or motions under Fed.R.Civ.P. 60, that would not.⁷²

72 See, e.g., Tripati v. Henman, 845 F.2d 205, 206 (9th Cir. 1988) ("Motion per Rule 59 and 60" to vacate the judgment was a Fed.R.Civ.P. 59(e) motion); Rados v. Celotex Corp., 809 F.2d 170, 171 (2d Cir. 1986) (motion for reconsideration pursuant to Fed.R.Civ.P. 60 was treated as a motion under Fed.R.Civ.P. 59(e)); Charles v. Daley, 799 F.2d 343, 347 (7th Cir. 1986) ("The characterization of post-judgment motions has been a vexing one, because the selection of the rule on which the motion is based determines appellate jurisdiction. We have wrestled in a series of cases with nettlesome problems of characterization, have implored counsel to be clearer, and have made little headway."); Skagerberg v. Oklahoma, 797 F.2d 881, 883 (10th Cir. 1986) ("Motion for Rule 60 Relief, or Appeal" was treated as a Fed.R.Civ.P. 59(e) motion); Harcon Barge Co. v. D G Boat Rentals, Inc., 784 F.2d 665, 670 (5th Cir.) (en banc) (developing a "bright line" rule to distinguish Fed.R.Civ.P. 59 motions from Fed.R.Civ.P. 60 motions), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986); Stallworth v. Shuler, 758 F.2d 1409, 1410 (11th Cir. 1985) (motion for rehearing was treated as a Fed.R.Civ.P. 59(e) motion).

A good case to illustrate both the variety of post-trial motions that may be filed and the complexity Fed.R.App.P. 4(a)(4) has brought to the appellate process is the Fifth Circuit's en banc decision in Harcon Barge Co. v. D G Boat Rentals, Inc. ⁷³ This decision was issued to resolve a conflict between two of the Fifth Circuit's panels concerning the timing of appeals in cases where post-trial motions had been filed.

73 784 F.2d 665 (5th Cir.) (en banc), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed. 2d 351 (1986).

One of the panel decisions was in the Harcon Barge ⁷⁴ case itself. It concerned the effect on appeal time of a "Motion to Amend Judgment" that sought to relieve two defendants from payment of costs because they had made offers of judgment under Fed.R.Civ.P. 68. The Harcon Barge case arose out of a series of collisions over a two month period by several ships with a railroad bridge spanning a river in Louisiana. The owner of the bridge, Southern Pacific Transportation Co., filed separate actions against the owners of the four vessels involved in the collisions. These actions were consolidated with a fifth action brought by one of the ship owners in which Southern Pacific had been impleaded. A single judgment disposed of all the claims in the five consolidated cases, and Southern Pacific filed a single notice of appeal within thirty days after the entry of the judgment. On the same day that Southern Pacific's notice of appeal was filed, two of the ship owners who had been found liable to Southern Pacific filed a motion seeking relief from liability for costs. This motion was based on their having made offers of judgment under Fed.R.Civ.P. 68 for more than the damages awarded against them in the judgment, and the trial court granted the motion.

74 Harcon Barge Co. v. D G Boat Rentals, Inc., 746 F.2d 278 (5th Cir. 1984), aff'd, 784 F.2d 665 (5th Cir.) (en banc), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986).

The appellate panel decided that Southern Pacific's notice of appeal was premature under Fed.R.App.P. 4(a)(4) on account of the motion filed by the ship owners, and it dismissed the appeal. Southern Pacific tried to save the appeal by arguing that the ship owners' motion should be characterized as a motion under Fed.R.Civ.P. 60(a) to correct a clerical mistake, and if it were, it would not come under Fed.R.App.P. 4(a)(4). The panel rejected this argument saying that with all of Fed.R.App.P. 4(a)(4)'s defects, it at least had the virtue of certainty in prescribing the motions that extended the time for filing a notice of appeal. This virtue of certainty would be eroded if "a motion to amend the judgment, which looks and reads like and is a Rule 59(e) motion, may nevertheless be disregarded as such for purposes of evading the harsh effects of Rule 4(a)(4), because the amendment relief might have been sought by some other post-judgment motion."⁷⁵

75 746 F.2d at 289 (emphasis in original).

The other panel decision that was reviewed en banc in the Harcon Barge case was Willie v. Continental Oil Co. ⁷⁶ The Willie case arose out of a personal injury on an oil production platform in the Gulf of Mexico. The plaintiff sued a number of defendants, but most of the claims were settled so that by the time of trial there remained only the plaintiff's claim against one of the defendants (Offshore) and Offshore's cross-claim against another defendant (Booker). In addition, Offshore and Booker entered into a stipulation under which each of them was to be held liable only for its percentage of fault, as determined at trial. A bench trial was conducted, and the trial court entered judgment in favor of the plaintiff. Contrary to the pretrial stipulation, the judgment provided for contribution against Booker, permitting Offshore to recover one half of the judgment from Booker on the cross-claim, rather than an amount based on Booker's percentage of fault. An amended judgment was entered that changed the date from which interest was to run, and within ten days after this entry, Booker filed a "Motion to Amend Judgment" seeking to have the judgment reflect the terms of its pretrial stipulation with Offshore. After Offshore had filed its notice of appeal, the trial court granted Booker's motion and entered an amended judgment in accordance with the pretrial stipulation.

76 746 F.2d 1041 (5th Cir. 1986), rev'd, 784 F.2d 706 (5th Cir. 1986) (en banc).

The appellate panel in the Willie case faced a characterization problem. If Booker's post-trial motion was a Fed.R.Civ.P. 59(e) motion to alter or amend a judgment, then the notice of appeal would be ineffective on account of Fed.R.App.P. 4(a)(4) and the appeal would have to be dismissed. On the other hand, Fed.R.App.P. 4(a)(4) would not be applicable if Booker's motion was characterized as a motion under Fed.R.Civ.P. 60. The panel concluded that the motion was not a Fed.R.Civ.P. 59(e) motion, because it sought to correct a mistake made by the trial court rather than to reconsider or question the judgment's "substantive correctness." The panel also decided that the motion did not come under Fed.R.Civ.P. 60(a), because it "involves the substantive rights of the parties, and is more than a clerical mistake."⁷⁷ Since it did not fall under either rules 59(e) or 60(a), Booker's motion had to be a rule 60(b) motion. Nevertheless, the panel went on to rule that it could not review the judgment anyway, because the trial court lost its authority to grant the motion once the notice of appeal was filed. The panel stated as dictum that if Booker's motion had been a rule 60(a) motion to correct a clerical error, the trial court could have corrected it after the filing of the appeal.⁷⁸ However, the trial court lacked authority to amend the judgment under Fed.R.Civ.P. 60(b) after the filing of the notice of appeal without obtaining leave from the appellate court. Accordingly, the panel sent the case back to the trial court to reenter its judgment so that the appeal could go forward once again. The panel said in a footnote that it realized the opinion "may be criticized as overtechnical,"⁷⁹ but the court believed that the procedural rules left it no other course.

77 746 F.2d at 1045.

78 Id. at 1045 ("It is only if Booker's motion can be maintained under Rule 60(a) that the judgment is valid, and is properly before the court of appeal."). But see Fed.R.Civ.P. 60(a) ("During the pendency of the appeal, [clerical] mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court."). Leave of the appellate court should have been required even if Booker's motion had been a rule 60(a) motion to correct a clerical error, because the trial court did not grant the motion and enter the amended judgment until after the appeal had been docketed. See 746 F.2d at 1044.

79 Id. at 1046 n. 1.

On rehearing en banc the Fifth Circuit adopted a bright-line rule for determining whether a post-trial motion extends the time for filing a notice of appeal. The court of appeals first recognized that the relief available under Fed.R.Civ.P. 59(e) and 60(b) is overlapping. The main difference is that motions under Fed.R.Civ.P. 59(e) must be served within ten days after the entry of judgment, while longer periods are available under Fed.R.Civ.P. 60(b). When a motion is filed within ten days after the entry of judgment, there is often no way of telling whether it is a motion under Fed.R.Civ.P. 59(e) or 60(b), and yet Fed.R.App.P. 4(a)(4) makes the distinction critical. The Fifth Circuit resolved this dilemma by announcing what it hoped would be a clear rule — that any motion to alter or amend a judgment served within ten days after the entry of judgment would be considered a Fed.R.Civ.P. 59(e) motion for purposes of Fed.R.App.P. 4(a)(4), regardless of how it is styled by the appellant. The court also announced an exception for the correction of clerical errors under Fed.R.Civ.P. 60(a). It reasoned that a motion to correct a clerical error is distinguishable from a motion under Fed.R.Civ.P. 59(e), because it ought to be mechanical in nature and not involve any substantive judgment. Therefore, even if it is served within ten days after the entry of judgment, a motion to correct a clerical error would not extend the time for filing a notice of appeal as a motion under Fed.R.Civ.P. 59(e) would.

Applying its bright-line rule the Fifth Circuit affirmed the panel decision in the Harcon Barge case⁸⁰ and reversed the decision in the Willie case, ⁸¹ and it dismissed both appeals. In both cases the post-trial motion was served within ten days after the entry of judgment and did not involve correction of a clerical error. Thus, the post-trial motion in each of these cases was a Fed.R.Civ.P. 59(e) motion that extended the time for filing a notice of appeal and consequently made the notice of appeal filed before the entry of the order deciding the motion a nullity. The bright-line rule avoided the characterization problems that the two panels had encountered in applying Fed.R.App.P. 4(a)(4), and the Fifth Circuit predicted that the rule would preserve "the virtue of clarity sought by Fed.R.App.P. 4(a)(4)."⁸²

80 Harcon Barge Co. v. D G Boat Rentals, Inc., 784 F.2d 665, 670 (5th Cir.) (en banc), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986).

81 Willie v. Continental Oil Co., 784 F.2d 706 (5th Cir.) (en banc), rev'g, 746 F.2d 1041 (5th Cir. 1986).

82 784 F.2d at 670.

The Fifth Circuit has applied the bright-line rule from Harcon Barge in a number of cases, ⁸³ but lately the bright-line has been clouded by a series of decisions by the Supreme Court. These are examined in the next section of this Article.

83 E.g., Craig v. Lynaugh, 846 F.2d 11, 12 (5th Cir. 1988) ( pro se plaintiff's motion to vacate judgment filed within 10 days after the entry of judgment nullified contemporaneously filed notice of appeal); Brown v. United Ins. Co. of Am., 807 F.2d 1239, 1242 (5th Cir. 1987) (Motion for Clarification of Judgment and Order filed more than 10 days after the entry of judgment was treated as a motion under Fed.R.Civ.P. 60(b)); Archer v. Lynaugh, 821 F.2d 1094, 1095-96 (5th Cir. 1987) (Motion to Request that the Judge Review the Record served within 10 days after the entry of judgment was considered a Fed.R.Civ.P. 59(e) motion that nullified the notice of appeal); Eleby v. American Medical Sys., Inc., 795 F.2d 411, 412 (5th Cir. 1986) (motion to reopen served more than 10 days after the entry of order of dismissal was considered a motion under Fed.R.Civ.P. 60(b) that did not extend the time for filing a notice of appeal); Baker Indus. v. Howard Elec. Mechanical, Inc., 794 F.2d 965, 966 (5th Cir.) (Defendant's Request for Additional Findings of Fact and Conclusions of Law filed within 10 days after the entry of judgment was a motion under Fed.R.Civ.P. 52(b) that nullified the notice of appeal), cert. denied, 479 U.S. 931, 107 S.Ct. 402, 93 L.Ed.2d 355 (1986). See also Charles v. Daley, 799 F.2d 343, 347 (7th Cir. 1986) (adopting the bright-line rule from the Harcon Barge case in the Seventh Circuit).

VI. Costs ( Buchanan ), Attorney's Fees ( Budinich ), and Interest ( Osterneck )

One of the cases where the Fifth Circuit applied the bright-line rule from Harcon Barge was Buchanan v. Stanships, Inc. ⁸⁴ Buchanan involved the question whether the filing of an application for costs extends the time for filing a notice of appeal under Fed.R.App.P. 4(a)(4). It arose out of a wrongful death action brought under the Death on the High Seas Act by a widow and minor child of a Jamaican citizen whose body was discovered in a ballast tank of a bulk cargo carrier.⁸⁵ The defendants contended that the decedent was a stowaway to whom only a minimal standard of care was owed, while the plaintiffs offered evidence that the crew of the carrier had accepted payment from the decedent for his passage to the United States.⁸⁶ After a bench trial, judgment was entered in favor of the defendants, and the plaintiffs filed a notice of appeal the next day. The judgment made no provision for costs, but two days after the filing of the notice of appeal the defendants filed an application for costs. The defendants styled their application as a "Motion to Alter or Amend Judgment," and the application stated that it was "asserted pursuant to the provisions of Rule 52 and Rule 59 of the Federal Rules of Civil Procedure."⁸⁷ The application requested the trial court to "amend its judgment . . . to reflect that defendants are entitled to recover their taxable costs against plaintiffs."⁸⁸ The trial court granted the motion the day after it was filed. Then the defendants moved to dismiss the appeal because the notice of appeal was prematurely filed under Fed.R.App.P. 4(a)(4), and the plaintiffs had not filed a new notice of appeal after the granting of the defendants' motion.⁸⁹

84 485 U.S. 265, 108 S.Ct. 1130, 1131, 99 L.Ed.2d 289 (1988) (per curiam).

85 Buchanan v. Stanships, Inc., 744 F.2d 1070, 1071 (5th Cir. 1984).

86 Id. at 1072-73.

87 Petition for Writ of Certiorari 17, Buchanan v. Stanships, Inc., 485 U.S. 265, 108 S.Ct. 1130, 99 L.Ed.2d 289 (1988) (per curiam).

88 Id.

89 108 S.Ct. at 1131.

The Fifth Circuit dismissed the appeal, relying on the bright-line rule from Harcon Barge. ⁹⁰ The defendants' Motion to Alter or Amend Judgment was filed within ten days after the entry of the judgment, and accordingly it was a Fed.R.Civ.P. 59(e) motion that nullified the prior notice of appeal under the Harcon Barge rule. The plaintiffs argued that the motion did not come under Fed.R.Civ.P. 59(e), because it concerned costs, a collateral issue that did not affect the merits of the judgment. The Fifth Circuit rejected tjis argument, saying that the bright-line rule had been applied to a Motion to Amend Judgment involving costs in the Harcon Barge case.⁹¹

90 Petition for Writ of Certiorari 26-27, Buchanan v. Stanships, Inc., 485 U.S. 265, 108 S.Ct. 1130, 99 L.Ed.2d 289 (1988) (per curiam).

91 Id. at 27.

Noting a conflict between the Fifth Circuit's decision in Buchanan and decisions from other circuits, ⁹² the United States Supreme Court granted the plaintiffs' petition for certiorari and reversed in a per curiam opinion.⁹³ The opinion relies heavily on White v. New Hampshire Department of Employment Security, ⁹⁴ a 1982 decision dealing with the time for filing an application for attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976.⁹⁵ The plaintiff in White had filed a motion seeking attorney's fees under the Civil Rights Act approximately four and one half months after the entry of the judgment. The trial court awarded the fees, but the court of appeals reversed on the ground that Fed.R.Civ.P. 59(e) required the motion to have been served within ten days after the entry of judgment. The Supreme Court reversed the court of appeals and held that Fed.R.Civ.P. 59(e) did not apply to requests for attorney's fees under the Civil Rights Act, because these requests were collateral to the merits of the case and they required an inquiry by the trial court that could not begin until the court had determined which party had prevailed.⁹⁶

92 See Durham v. Kelly, 810 F.2d 1500 (9th Cir. 1987); Alimenta (U.S.A.), Inc. v. Anheuser-Busch Cos., 803 F.2d 1160 (11th Cir. 1986); Lucas v. Florida Power Light Co., 729 F.2d 1300 (11th Cir. 1984).

93 Buchanan v. Stanships, Inc., 485 U.S. 265, 108 S.Ct. 1130, 99 L.Ed.2d 289 (1988) (per curiam).

94 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982).

95 42 U.S.C. § 1988 (1982).

96 455 U.S. at 451-52, 102 S.Ct. at 1166.

In the Buchanan case, the Supreme Court said that the defendants' motion for costs likewise raised "issues wholly collateral to the judgment in the main cause of action, issues to which Rule 59(e) was not intended to apply."⁹⁷ It also noted that under Fed.R.Civ.P. 54(d), applications for costs are ordinarily presented to the court clerk rather than the judge, and that Fed.R.Civ.P. 58 provides that the entry of judgment is not to be delayed for the taxing of costs. Furthermore, the Court decided that the defendants' characterization of their motion as a "Motion to Alter or Amend Judgment" under Fed.R.Civ.P. 52 and 59 was not controlling. Regardless of its label, the motion was a Fed.R.Civ.P. 54(d) motion for costs instead of a Fed.R.Civ.P. 59(e) motion to alter or amend a judgment. Accordingly, its filing did not nullify the plaintiff's previously filed notice of appeal.⁹⁸

97 108 S.Ct. at 1132.

98 Id.

Later in the 1987 term the Supreme Court decided Budinich v. Becton Dickinson Co. ⁹⁹ This case involved the question whether a request for attorney's fees that were authorized under state law extended the time for filing a notice of appeal. Mr. Budinich had been the western regional manager for the defendant, receiving a salary plus a commission on sales. After the defendant changed its commission schedule, Budinich sued, contending that his employer should honor its prior commission schedule for orders in process at the time of the change. The action was originally filed in a Colorado state court, but it was removed to federal court on the basis of diversity of citizenship. Within ten days after judgment was entered on a jury verdict awarding him $5,000, the plaintiff filed two post-trial motions — a motion for new trial and a motion for attorney's fees based on Colorado's wage claim statute. Subsequently both parties filed motions to review the taxation of costs, and the plaintiff filed a motion for prejudgment interest that the trial court characterized as a motion to correct a clerical error under Fed.R.Civ.P. 60(a).¹⁰⁰ On May 17, 1984, the trial court denied the motion for new trial and granted the motion for attorney's fees, but it did not determine the amount of the attorney's fees until July 3. The plaintiff's motion for amendment of the court's order to increase the amount of the attorney's fees was denied on August 1. Finally, the plaintiff filed his notice of appeal on August 28, 1984.¹⁰¹

99 ___ U.S. ___, 108 S.Ct. 1717, 100 L.Ed. 2d 178 (1988).

100 Petition for Writ of Certiorari 34-38, Budinich v. Becton Dickinson Co., ___ U.S. ___, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988).

101 Id. at 32-54. Joint Appendix at 51.

The Tenth Circuit Court of Appeals dismissed the appeal as untimely as to all issues, except the trial court's denial of the motion for amendment of the amount of attorney's fees, which it affirmed.¹⁰² Relying on White v. New Hampshire, ¹⁰³ the Tenth Circuit ruled that the thirty day period for appealing the judgment ran from May 17, when the new trial motion was denied. It held that the motion for attorney's fees did not extend the time for filing a notice of appeal under Fed.R.App.P. 4(a)(4), because it was not a Fed.R.Civ.P. 59(e) motion. The United States Supreme Court granted the plaintiff's petition for certiorari to resolve a conflict between the circuits, and it affirmed the Tenth Circuit in a unanimous opinion by Justice Scalia.¹⁰⁴

102 Budinich v. Becton Dickinson Co., 807 F.2d 155, 159 (10th Cir. 1986), aff'd, ___ U.S. ___, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988).

103 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982).

104 Budinich v. Becton Dickinson Co., ___ U.S. ___, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988).

The plaintiff contended that under Colorado law, on which his claim for attorney's fees was based, the judgment was not final and appealable until the trial court had determined the amount of attorney's fees. He urged that the federal court should follow the Colorado law on the timing of finality in this diversity case for two reasons. The first was that this was required by the Erie ¹⁰⁵ doctrine, as interpreted in Hanna v. Plumer ¹⁰⁶ and Burlington Northern Railroad Co. v. Woods, ¹⁰⁷ because there was no Federal Rule on the timing of finality that was governing and would override the Colorado law.¹⁰⁸ The Court quickly rejected this argument, holding that the determination of appealability was governed by a federal statute¹⁰⁹ that was controlling over state law by virtue of the Supremacy Clause of the United States Constitution.¹¹⁰

105 Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

106 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965).

107 480 U.S. 1, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987).

108 Brief for Petitioner 9-12, Budinich v. Becton Dickinson Co., ___ U.S. ___, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988).

109 28 U.S.C. § 1291 (1982).

110 U.S. Const. art. VI, cl. 2.

The plaintiff's second argument was that even if it were conceded that federal law governed the timing of appealability in federal courts, the federal law should take into account the characterization of the claim for attorney's fees under Colorado law. He urged that the decision in White v. New Hampshire ¹¹¹ turned on the determination that a request for attorney's fees under the Civil Rights Act should be characterized as collateral to the merits as a matter of federal law. But if Colorado law considered a claim for attorney's fees under its wage claim statute to be part of the merits of the underlying judgment, should this not be respected in federal courts? The Court recognized that this argument had merit as a matter of conceptual consistency, but it decided that pragmatic considerations favored a uniform rule for attorney's fees, regardless of how they were characterized by the law that authorized them. The Court emphasized that the amount of disruption to the trial and appellate processes was not affected by whether the attorney's fees were characterized as part of the merits or as a collateral matter. Treating applications for attorney's fees differently when they were characterized as part of the merits would therefore not serve any practical purpose. At the same time it would make life more complicated for courts and litigants, if there were different rules for the timing of appeals, depending on whether the attorney's fees were characterized as part of the merits or a collateral matter.¹¹² And so, the Court affirmed the Tenth Circuit's holding that the plaintiff's judgment was final and appealable before the trial court determined the amount of his attorney's fees.

111 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982).

112 Budinich v. Becton Dickinson Co., ___ U.S. ___, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988).

Recently the Supreme Court granted certiorari in Osterneck v. Ernst Whinney, ¹¹³ a case that involves an issue that was ruled on by the trial court in Budinich, ¹¹⁴ but was not raised on appeal there. The issue is whether a motion for prejudgment interest is a Fed.R.Civ.P. 59(e) motion that extends the time to appeal. The Osterneck case was brought by the owners of a business that had been merged into another company. The plaintiffs alleged that there were misrepresentations in the financial statements of the company into which their business had been merged. They sued the company, its directors and officers at the time of the merger, and its accountants, Ernst Whinney, for violations of the federal securities laws and state common law. After nearly ten years of discovery, the plaintiffs recovered a verdict of approximately $2.5 million against most of the defendants, but not the accountants. Within ten days after the entry of judgment the plaintiffs filed a motion for prejudgment interest. While the motion was pending, various parties filed notices of appeal, including the plaintiffs. Eventually the trial court granted the plaintiffs' motion and awarded them over $945,000 in prejudgment interest. Within thirty days after the motion was granted, the plaintiffs filed a new notice of appeal that was captioned as a cross-appeal in response to a notice of appeal filed by the defendants (other than the accountants) after the granting of the motion. The new notice of appeal designated all the defendants in the action except the accountants as parties; in contrast, their original notice of appeal had designated all the defendants including the accountants. As a result, whether the accountants would be subject to the appeal depended on the effectiveness of the plaintiffs' original notice of appeal that was filed while the motion for prejudgment interest was pending.¹¹⁵

113 ___ U.S. ___, 108 S.Ct. 2032-33, 100 L.Ed.2d 618 (1988).

114 Petition for Writ of Certiorari 35-38, Budinich v. Becton Dickinson Co., ___ U.S. ___, 108 S.Ct. 1717, 100 L.Ed.2d 618 (1988).

115 Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1523-25 (11th Cir. 1987), cert. granted, ___ U.S. ___, 108 S.Ct. 2032-33, 100 L.Ed.2d 618 (1988). See also Torres v. Oakland Scavenger Co., ___ U.S. ___, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988) (appellate court lacked jurisdiction over the appeal of a party who was not named in the notice of appeal).

The Eleventh Circuit dismissed the appeal as to the accountants as premature, and it affirmed the judgment as to the other defendants. The court based the dismissal of the appeal as to the accountants on its conclusion that the motion for prejudgment interest was a motion under Fed.R.Civ.P. 59(e). The motion therefore extended the time for appeal and nullified the original notice of appeal that designated the accountants as parties to the appeal. In reaching its conclusion the court was heavily influenced by the decisions of other circuit courts holding that a motion for prejudgment interest was a Fed.R.Civ.P. 59(e) motion as long as the award of interest was discretionary with the trial court.¹¹⁶ It recognized that some decisions had treated a motion for prejudgment interest as a motion to correct a clerical error under Fed.R.Civ.P. 60(a).¹¹⁷ However, other cases had limited these decisions to situations where the prejudgment interest was available as a matter of right so that its award was a ministerial act.¹¹⁸ Since the plaintiffs conceded that the award of prejudgment interest in their case was discretionary with the trial court, these decisions did not help the plaintiffs.¹¹⁹

116 Id. at 1525.

117 In the following cases courts have treated a motion to add prejudgment interest as a motion to correct a clerical error under Fed.R.Civ.P. 60(a): Hayden v. Scott Aviation, Inc., 684 F.2d 270, 271 (3d Cir. 1982); Glick v. White Motor Co., 458 F.2d 1287, 1291 (3d Cir. 1972); In re Merry Queen Transfer Corp., 266 F.Supp. 605, 607 (E.D.N.Y.), modified in other respects sub nom., O'Rourke v. Queen Transfer Corp., 370 F.2d 781 (2d Cir. 1967). This was also the decision of the trial court in the Budinich case. See Petition for Writ of Certiorari 38, Budinich v. Becton Dickinson Co., ___ U.S. ___, 108 S.Ct. 1717, 100 L.Ed. 2d 178 (1988). Errors in the award of interest were not permitted to be corrected through a Fed.R.Civ.P. 60(a) motion in the following cases, however: Chicago North Western Railway Co. v. Union Packing Co., 527 F.2d 592, 592 (8th Cir. 1976) ("This circuit does not view the erroneous allowance or omission of prejudgment interest to be a clerical error within the purview of Rule 60(a)."); Warner v. City of Bay St. Louis, 526 F.2d 1211, 1213 n. 4 (5th Cir. 1976) ("A few courts have held that where interest is a matter of right failure to include interest can be corrected by the court by means of a motion pursuant to Rule 60(a). . . . To the degree these cases hold that interest which is added as a matter of right can always be corrected Rule 60(a), we believe they should be rejected.").

118 Stern v. Shouldice, 706 F.2d 742, 747 (6th Cir.) ("The third circuit has held that if a party is entitled to prejudgment interest as a matter of right, the judgment can be corrected under FRCP 60(a). . . . On the other hand, if granting prejudgment interest is discretionary, the judgment must be amended pursuant to FRCP 59."), cert. denied, 464 U.S. 993, 104 S.Ct. 487, 78 L.Ed.2d 683 (1983); Scola v. Boat Frances, R., Inc., 618 F.2d 147, 152-53 (1st Cir. 1980); Lee v. Joseph E. Seagram Sons, Inc., 592 F.2d 39, 42 (2d Cir. 1979) ("There is ample authority supporting the proposition that where the failure of the judgment to include pre-judgment interest to which a plaintiff is entitled is not due to clerical inadvertence, Rule 60(a), which has no time limitation, is not the appropriate vehicle for relief.") (emphasis in original); Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir. 1969); Gray v. Dukedom Bank, 216 F.2d 108 (6th Cir. 1954); Gilroy v. Erie-Lackawanna Railroad Co., 44 F.R.D. 3, 4 (S.D.N.Y. 1968) ("Where, however, the motion to amend the judgment requests the discretionary imposition of interest, the application cannot be deemed as one for the correction of a clerical mistake. Requests of this nature must be made under Rule 59(e)."). See also Cinerama, Inc. v. Sweet Music, S.A., 482 F.2d 66, 69 (2d Cir. 1973) (reversing the trial court's decision to sever a claim for principal from a claim for prejudgment interest in order to direct the entry of judgment on the claim for principal under Fed.R.Civ.P. 54(b)).

119 825 F.2d at 1526 n. 8.

The plaintiffs argued, however, that the motion for prejudgment interest did not nullify their original notice of appeal, because the interest was collateral to the merits of their claim. Relying on White v. New Hampshire, ¹²⁰ they contended that their motion did not come under Fed.R.Civ.P. 59(e) and therefore did not toll the time for appeal. The Eleventh Circuit rejected this argument, saying that it previously had held that a motion for attorney's fees was a Fed.R.Civ.P. 59(e) motion that tolled the time for appeal if the liability for attorney's fees was an integral part of the merits of the case. The court of appeals decided that the plaintiffs' motion for prejudgment interest also came under Fed.R.Civ.P. 59(e), because the prejudgment interest was similarly an integral part of the merits. Thus, the motion tolled the time for appeal and nullified the notices of appeal filed before it was granted.¹²¹

120 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982).

121 825 F.2d at 1525-27.

While it is always dangerous to predict the outcome of Supreme Court decisions, it appears likely that the Supreme Court will reverse the Eleventh Circuit in the Osterneck case. The Eleventh Circuit's reasoning conflicts with the Supreme Court's in Budinich. There the Court held that whether to allow an appeal when the amount of attorney's fees was still undetermined "should not turn upon the characterization of those fees by the statue or decisional law that authorizes them."¹²² Rather than focusing on whether prejudgment interest is conceptually part of the merits of the plaintiffs' claim, as the Eleventh Circuit did in Osterneck, the Supreme Court will probably take a more pragmatic approach, as it did in Budinich. Thus, it is likely to ask the following questions: What harm to the trial and appellate processes will be done by allowing an appeal before the amount of prejudgment interest is determined, even if it is conceptually a part of the merits? Will courts and litigants be benefited by a bright-line rule that treats motions for costs, attorney's fees, and interest uniformly? While it is possible that the Supreme Court may want to distinguish the handling of requests for prejudgment interest from attorney's fees, chances are that it will opt for uniform treatment.

122 Budinich v. Becton Dickinson Co., ___ U.S. ___, 108 S.Ct. 1717, 1721, 100 L.Ed.2d 178 (1988).

However the Supreme Court decides Osterneck, it is clear that litigation over the timing of appeals will continue to arise. The assortment of post-judgment motions that litigants are able to file is probably limited only by their imaginations. As litigants devise new varieties of post-judgment motions, questions regarding their timing and the effect of their filing on the timing of appeals will inevitably arise, ¹²³ resulting in more decisions interpreting Fed.R.App.P. 4(a)(4). The amount of future litigation over Fed.R.App.P. 4(a)(4) could be reduced substantially by modifying it slightly, however. The next section of this Article sets out how this might be done.

123 See e.g., In re Air Crash, 852 F.2d 842, 843-44 (5th Cir. 1988) (motion for new trial accompanied by letter to district court clerk asking that the motion not be presented pending a possible stipulation between the parties); Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 385 (9th Cir. 1988) (motion to delete costs from judgment that accrued after an offer of judgment); Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 25-27 (1st Cir. 1988) (motion to set aside default judgment for lack of personal jurisdiction); Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 98 (3d Cir. 1988) (trial court had jurisdiction to rule on Rule 11 motion for sanctions filed while appeal was pending); Charles v. Daley, 799 F.2d 343, 345, 348 (7th Cir. 1986) (motion to intervene on appeal tolled time to appeal); Ezell v. Lincoln Elec. Co., 119 F.R.D. 645, 647 (S.D.Miss. 1988) (dealing with whether trial court retained jurisdiction to rule on Fed.R.Civ.P. 11 motion after the filing of a notice of appeal).

VII. A Modest Proposal to Amend FRAP 4(a)(4)

As was noted in Section III, supra, the justifications for the 1979 amendments to Fed.R.App.P. 4(a)(4) are not particularly compelling. By providing that a notice of appeal filed before disposition of the post-trial motions has no effect, they may have clarified the status of appeals in some cases. Unfortunately, though, they have created a snag that has tripped many appellants, especially those who are unrepresented by counsel.¹²⁴ The 1979 amendments have also generated an undesirable amount of appellate litigation. Appellate courts have had to expend their limited deliberative capacities developing a large body of procedural case law construing Fed.R.App.P. 4(a)(4), and this has diverted their attention from the merits of appeals in many cases. Looking back over the cases that have been discussed in this Article, it is striking how many of them involved complaints that a notice of appeal had been filed too soon, rather than late. Only in the Budinich case was a notice of appeal challenged for being too late; in the six others, the notices of appeal were attacked as premature. It seems clear that the costs of the 1979 amendments to Fed.R.App.P. 4(a)(4) have outweighed their benefits.

124 See Skagerberg v. Oklahoma, 797 F.2d 881, 882 (10th Cir. 1986) ("[T]he problem of how to construe a combined motion for reconsideration and a notice of appeal . . . frequently recurs in pro se actions."); Averhart v. Arrendondo, 773 F.2d 919, 920 (7th Cir. 1985) ("[T]his particular wrinkle in the appellate rules is a trap for the unwary into which many appellants, especially those not represented by counsel (and most prisoners are not), have fallen, with dire consequences since there is no way they can reinstate their appeal if the second notice of appeal is untimely.").

Judge Posner of the United States Court of Appeals for the Seventh Circuit has suggested a partial solution to the problems created by Fed.R.App.P. 4(a)(4).¹²⁵ This is that trial judges should include a sentence in their denials of post-judgment motions from pro se litigants explaining the need for them to file a new notice of appeal if they want to appeal from either the denial of the motion or the underlying judgment.¹²⁶ This solution is only partial, because not all judges will consistently include these warnings in their denials of motions. Moreover, it may not be clear even to the trial judge that a new notice of appeal is required until the appellate court has dismissed the appeal as premature.¹²⁷

125 Averhart v. Arrendondo, 773 F.2d 919, 920 (7th Cir. 1985).

126 This idea has been picked up by the Fifth Circuit. Craig v. Lynaugh, 846 F.2d 11, 13 (5th Cir. 1988); Archer v. Lynaugh, 821 F.2d 1094, 1097 (5th Cir. 1987) (noting that such a warning would not be inappropriate even in cases where the moving party was represented by counsel).

127 Cf. Thompson v. Immigration Naturalization Serv., 375 U.S. 384, 385, 84 S.Ct. 397, 398, 11 L.Ed.2d 404 (1964) (trial court declared that post-trial motions served 12 days after the entry of judgment were made "in ample time"); Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1527-28 (11th Cir. 1987) (plaintiffs unsuccessfully argued that they relied on actions of the trial court which led them to believe that their original notice of appeal was effective), cert. granted, ___ U.S. ___, 108 S.Ct. 2032-33, 100 L.Ed.2d 618 (1988).

Amending the Rule would be a more complete solution to the problems generated by Fed.R.App.P. 4(a)(4) than having all the trial judges attempt to work around them. One alternative would be to try to undo the damage caused by the 1979 amendments to Fed.R.App.P. 4(a) by simply restoring paragraph (a)(4) to the pre-1979 form of Fed.R.App.P. 4(a). Deleting those provisions relating to the effect of a premature notice of appeal that were added in 1979 would enable the appellate courts to give premature notices of appeal effect, as most did before the 1979 amendments.¹²⁸ The trouble with this alternative is that it would not give courts and litigants any guidance as to the reasons for deleting the provisions, and therefore it would probably produce some confusion. An amendment to Fed.R.App.P. 4(a)(4) that is intended to give effect to premature notices of appeal should state so clearly.

128 See supra notes 24-25.

Revising Fed.R.App.P. 4(a)(4) so that premature notices of appeal are given effect would probably substantially reduce litigation over the timing of appeals. Arguments over late appeals would continue, but at least the more frequently encountered arguments over premature appeals would cease if premature appeals do not have to be dismissed. Simply allowing premature appeals to be given effect might produce some uncertainty in the trial and appellate courts, however. An appeal ought to be suspended until the trial court disposes of the motions listed in paragraph (a)(4). But how will the appellate court find out when the trial court has decided these motions so that it can proceed with the appeal? The appellant would appear to be the appropriate person to have the responsibility for notifying the appellate court that the trial court has decided the post-trial motions. Once the appellate court receives notice of the denial of the post-trial motions, there is no practical reason why it should not proceed with the appeal, even though the notice of appeal may have been premature initially. On the other hand, the appellate court may have reason for dismissing an appeal if a post-trial motion has been granted and the underlying judgment has been altered substantially. An example is Keith v. Newcourt, ¹²⁹ where an appeal was dismissed after the trial court had granted a new trial motion.

129 530 F.2d 826 (8th Cir. 1976).

If an appellant should fail to notify the appellate court of the trial court's disposition of the post-trial motions, dismissal of the appeal might well be warranted. However, the appellant should be allowed a reasonable time to file a new notice of appeal after being notified that the appeal was dismissed because it was premature. This would prevent loss of the opportunity for appeal through inadvertence, and at the same time it would not interfere with the purpose for limiting the time to appeal to thirty days. The Supreme Court has stated that the purpose of the time limitation is "to set a definite point of time when litigation shall be at an end, unless within that time the prescribed application has been made; and if it has not, to advise prospective appellees that they are freed of the appellant's demands."¹³⁰ Even a premature notice of appeal would fulfill this purpose.

130 Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978) (quoting Matton Steamboat Co. v. Murphy, 319 U.S. 412, 415, 63 S.Ct. 1126, 1128, 87 L.Ed. 1483 (1943)).

If the Advisory Committee should decide to amend Fed.R.App.P. 4(a)(4) as I have described, it may as well also make some revisions to incorporate the case law that has interpreted it. As Justice Marshall observed in his dissent in Griggs ¹³¹ and as the Fifth Circuit noted in the en banc decision in Harcon Barge, ¹³² Fed.R.App.P. 4(a)(4)'s provisions are unclear when it comes to motions under Fed.R.Civ.P. 60(b) that are filed within ten days after the entry of judgment. Since Fed.R.Civ.P. 59(e) and 60(b) provide overlapping relief, most courts have treated post-judgment motions filed within ten days after the entry of judgment as motions under Fed.R.Civ.P. 59(e), regardless of how they are characterized by the moving parties.¹³³ If Fed.R.App.P. 4(a)(4) is amended, its reference to "timely" post-judgment motions should be changed to motions "filed within ten days after the entry of judgment" so that its text will correspond to the interpretation placed on it by the courts. The amendment should also have an exclusion for motions for costs, attorney's fees, and interest (unless the Supreme Court affirms the Eleventh Circuit in Osterneck)¹³⁴ in order to be consistent with recent decisions by the Supreme Court.¹³⁵

131 Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 68, 103 S.Ct. 400, 407, 74 L.Ed.2d 225 (1982).

132 Harcon Barge Co. v. D G Boat Rentals, Inc., 784 F.2d 665, 668 (5th Cir.) (en banc), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986).

133 Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 68, 103 S.Ct. 400, 407, 74 L.Ed.2d 225 (1982) ("The lower courts have almost without exception treated [motions to "reconsider," to "vacate." to "set aside," or to "reargue" adverse judgments] as Rule 59 motions, regardless of their label.") (emphasis in original) (Marshall, J., dissenting); Harcon Barge Co. v. D G Boat Rentals, Inc., 784 F.2d 665, 669-70 (5th Cir.) ("Virtually ever circuit court has held that a motion that 'calls into question the correctness of a judgment should be treated as a motion under Rule 59(e), however it is styled.'") (en banc), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986).

134 Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521 (11th Cir. 1987), cert. granted, ___ U.S. ___, 108 S.Ct. 2032-33, 100 L.Ed. 2d 618 (1988).

135 Amendments to Fed.R.App.P. 4(a)(4) would not necessarily have to follow the Supreme Court's decisions in Buchanan, Budinich, and Osterneck, but the Advisory Committee on Appellate Rules would surely give deference to these decisions in making any recommendations for amending the rule.

Possible language for a revised Fed.R.App.P. 4(a)(4) that would accomplish these changes is set forth below (additions are indicated by underlining and deletions by crossing out):

If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party within 10 days after the entry of judgment: (i) for judgment under Rule 50(b); (ii) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) under Rule 59 to alter or amend the judgment, other than for the award or determination of costs, attorney's fees, or interest; or (iv) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within in the prescribed time measured from the entry of the order disposing of the motion as provided above. No additional fees shall be required for such filing. If a notice of appeal is filed before the disposition of any of the above motions, the trial court shall proceed to decide the motion, and the appeal shall be premature and shall be dismissed by the court of appeals. At any time before an appeal is dismissed for being premature, the appellant may file with the court of appeals a notice of the entry of the order on the motion that caused the appeal to be premature. Once the notice is filed, the appeal shall no longer be subject to dismissal on account of its being premature. If an appeal has been dismissed because it was premature, the appellant may file a new notice of appeal as hereinafter provided. The new notice of appeal shall be filed within 30 days after entry of the order on the motion that caused it to be premature, or within 30 days after notice that the appeal had been dismissed on the ground that it was premature has been mailed to the appellant, whichever date is later. The notice that the appeal has been dismissed shall include the date of its mailing.

Other alternatives could also correct the problem. For example, an amended version of Fed.R.App.P. 4(a)(4) might provide that instead of dismissing a premature appeal, the court of appeals should order the appeal suspended. The appeal would remain suspended until the appellant filed a notice with the court of appeals that the post-judgment motions had been denied. If a post-judgment motion was granted, the appeal would be subject to dismissal on motion filed by the appellee. This scheme is similar to that recently adopted by the Tenth Circuit¹³⁶ to handle appeals that are premature because the notice of appeal is filed before the appellant has obtained a certification under Fed.R.Civ.P. 54(b) for entry of judgment in an action involving multiple claims where some are decided before others. This alternative might require slightly more effort by the courts of appeals in "shepherding stray appeals back into the flock"¹³⁷ than the proposal set out above would. Instead of simply dismissing a premature appeal, the appellate court would have to hold the appeal open until the appellant notified it that the judgment had become final. Nevertheless, this alternative would be workable and would be a substantial improvement over the present version of Fed.R.App.P. 4(a)(4). Undoubtedly, other alternatives could be devised to correct many of the problems that were created by the 1979 amendments to the rule.

136 Lewis v. B.F. Goodrich Co., 850 F.2d 641 (10th Cir. 1988) (en banc). The court described its procedure as follows:

[I]f the appellant obtains a 54(b) certification after the notice of appeal was filed, we will deem the notice of appeal to ripen as of the date of certification and will accept the jurisdiction pursuant to the savings provision of Fed.R.App.P. 4(a)(2). [If] no Fed.R.Civ.P. 54(b) certification has been obtained . . ., we adopt the practice of notifying the parties of our observation of the apparent jurisdictional defect and giving them a date certain by which to secure Rule 54(b) certification or an order or judgment explicitly adjudicating all remaining claims. If no certification, or final, dispositive adjudication, is obtained and presented to this appellate court by the specified date, the cause will be dismissed summarily for lack of appellate jurisdiction.

Id. at 645-46. The Tenth Circuit was able to adopt this procedure, because Fed.R.App.P. 4(a)(4) is not applicable to appeals that are premature on account of the notice of appeal having been filed before the certification under Fed.R.Civ.P. 54(b) was obtained.

137 Id. at 648. (Baldock, J., dissenting).

VIII. Conclusion

The decisions discussed in this Article show plainly that the present version of Fed.R.App.P. 4(a)(4) is not working well. Too many appellants are falling into the Rule's trap and losing their appeals by miscalculation. Too much attention of the courts of appeals and the Supreme Court is being directed to what is after all a fairly mundane procedural point. And perhaps most importantly, the presence of this procedural trap offends the spirit of the Federal Rules, which favor fairness and efficiency in the adjudicative process. The amendment to Fed.R.App.P. 4(a)(4) proposed above would eliminate the trap and also would clarify the time for filing notices of appeal in federal courts.