PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6248
KEITH ALAN CLARK,
Petitioner - Appellant,
v.
LARRY CARTLEDGE, Warden Perry Correctional Institution,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Bruce H. Hendricks, District
Judge. (0:13-cv-00351-BHH)
Argued: May 12, 2016 Decided: July 12, 2016
Before GREGORY, Chief Judge, and NIEMEYER and HARRIS, Circuit
Judges.
Jurisdiction affirmed by published opinion. Chief Judge Gregory
wrote the opinion, in which Judge Harris joined. Judge Niemeyer
wrote a dissenting opinion.
ARGUED: Dana Wallace, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant. Susannah Rawl Cole,
OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia,
South Carolina, for Appellee. ON BRIEF: Stephen L. Braga,
Jude Halawi, Third Year Law Student, Andrew Selman, Third Year
Law Student, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Charlottesville, Virginia, for Appellant.
Alan Wilson, Attorney General, John W. McIntosh, Chief Deputy
Attorney General, Donald J. Zelenka, Senior Assistant Deputy
Attorney General, Brendan J. McDonald, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA,
Columbia, South Carolina, for Appellee.
2
GREGORY, Chief Judge:
Rule 3 of the Federal Rules of Appellate Procedure
conditions federal appellate jurisdiction on the filing of a
timely notice of appeal. In this case, we hold that a document
filed by a pro se litigant as an extension of time to request a
certificate of appealability qualifies as the notice of appeal
required by Rule 3.
I.
In 2006, Keith Alan Clark, after a jury trial in South
Carolina, was found guilty of kidnapping and assault with intent
to commit criminal sexual conduct. The trial court sentenced
Clark to concurrent sentences of thirty years. After a series
of unsuccessful appeals and postconviction procedures in South
Carolina courts, Clark filed a pro se petition for writ of
habeas corpus in the U.S. District Court for the District of
South Carolina pursuant to 28 U.S.C. § 2254. Clark alleged
several constitutional violations stemming from his conviction,
including, among others, that he received ineffective assistance
of counsel in violation of the Sixth Amendment.
In response to Clark’s petition, the state, representing
Warden Larry Cartledge, filed a motion for summary judgment,
which was referred to a magistrate judge. On February 3, 2014,
the magistrate judge issued a report and recommendation,
recommending that the state’s motion for summary judgment be
granted. Clark then timely filed objections to the report and
recommendation. On December 4, 2014, the district court issued
its judgment and order, overruling Clark’s objections and
adopting the magistrate judge’s report and recommendation. In
that same order, the district court denied Clark a certificate
of appealability, finding that he failed to meet 28 U.S.C.
§ 2253(c)’s standard for issuance of such a certificate.
On December 18, 2014, Clark, still pro se, filed a motion
for extension of time to request a certificate of appealability. 1
The question at heart in this case is whether this motion, filed
within the thirty day requirement of Federal Rule of Appellate
Procedure 4, is the functional equivalent of a formal notice of
appeal demanded by Rule 3. See Becker v. Montgomery, 532 U.S.
757, 765 (2001) (stating that a party seeking appellate review
must comply with the “linked jurisdictional provisions” of Rules
3 and 4 of the Rules of Appellate Procedure). If we construe
the motion for an extension of time as a notice of appeal, then
all events that occurred in the district court after the notice
of appeal was filed are of no moment, as a “timely filed notice
1
The district court denied Clark’s motion in a text order
on December 23, 2014. On January 22, 2015, Clark filed a motion
for certificate of appealability with the district court, which
the court denied on January 27, 2015. Clark then filed a notice
of appeal on February 11, 2015.
4
of appeal transfers jurisdiction of a case to the court of
appeals and strips a district court of jurisdiction to rule on
any matters involved in the appeal.” Doe v. Public Citizen, 749
F.3d 246, 258 (4th Cir. 2014).
II.
We review our own jurisdiction de novo and must raise the
issue sua sponte. Kporlor v. Holder, 597 F.3d 222, 225 (4th
Cir. 2010).
Federal Rule of Appellate Procedure 3(c) dictates that a
“notice of appeal must specify the party or parties taking the
appeal . . .; designate the judgment, order or part thereof
being appealed; and name the court to which the appeal is
taken.” Fed. R. App. P. 3(c). In addition, the notice of
appeal “must specifically indicate the litigant’s intent to seek
appellate review . . . [to] ensure that the filing provides
sufficient notice to other parties and the courts.” Smith v.
Barry, 502 U.S. 244, 248 (1992).
While the requirements of Rule 3 serve important purposes
and are mandatory and “jurisdictional in nature,” Torres v.
Oakland Scavenger Co., 487 U.S. 312, 316 (1988), “functional”
rather than formalistic compliance is all that is required,
Smith, 502 U.S. at 248. As another subsection of Rule 3 warns,
an appeal “must not be dismissed for informality of form or
5
title . . . , or for failure to name a party whose intent to
appeal is otherwise clear from the notice.” Fed. R. App. P.
3(c)(4). And as the Supreme Court has instructed,
“imperfections in noticing an appeal should not be fatal where
no genuine doubt exists about who is appealing, from what
judgment, to which appellate court.” Becker, 532 U.S. at 767.
Courts thus “will liberally construe the requirements of
Rule 3,” Smith, 502 U.S. at 248, to permit notices of appeal
“technically at variance with the letter of a procedural rule”
but that amount to “the functional equivalent of what the rule
requires,” Torres, 487 U.S. at 316–17. We, moreover, have held
that the policy of construing notices of appeal liberally
applies “especially” to pro se filings. United States v.
Garcia, 65 F.3d 17, 19 (4th Cir. 1995). Therefore, as long as
the pro se party’s notice of appeal provided the notice required
by Rule 3, evinced an intent to appeal an order or judgment of
the district court, and the appellee was not prejudiced or
misled by the notice, then the notice’s technical deficiencies
will not bar appellate jurisdiction. See Jackson v. Lightsey,
775 F.3d 170, 175-76 (4th Cir. 2014) (“Where a challenged notice
of appeal has provided adequate notice and caused the
complaining party no prejudice, there is no reason to allow a
‘technical impediment[ ]’ to foreclose appellate review.”
(quotation and citations omitted)); Canady v. Crestar Mortg.
6
Corp., 109 F.3d 969, 974–75 (4th Cir. 1997) (finding compliance
with Rule 3 in light of adequate notice and lack of prejudice to
the appellee); Smith, 502 U.S. at 248 (notice afforded by a
document determines the document’s sufficiency as a notice of
appeal).
III.
With these principles in mind, we turn to the facts of this
case. Clark filed a “Motion for Extension of Time to request
for a Certificate of Appealability.” J.A. 621. Clark,
represented by counsel on appeal, contends that his motion
served as the functional equivalent of a notice of appeal
because it specified the party taking the appeal and the order
being appealed. Clark further argues that while his motion did
not specify the court to which the appeal was being taken, we
have allowed appeals where “there is only one possible appellate
forum,” even when the party fails to “add the words ‘Fourth
Circuit’ to [their] notice of appeal.” Jackson, 775 F.3d at
175-76. We agree.
In that motion, Clark identifies himself as the person who
intends to appeal, as well as the order he intends to appeal –
the district court’s order denying his objections to the
magistrate judge’s report and recommendation. Moreover, Clark’s
intent to appeal to this Court “is obvious – the term
7
‘certificate of appealability’ necessarily refers to an appeal
to the relevant court of appeals.” Wells v. Ryker, 591 F.3d
562, 565 (7th Cir. 2010); see also 28 U.S.C. § 2253 (allowing
review of a final order “by the court of appeals for the circuit
in which the proceeding is held” only if a “circuit justice or
judge issues a certificate of appealability”).
The state does not, and cannot, seriously dispute that
Clark’s motion complied with Rule 3. In fact, the state
conceded during oral argument that Clark’s motion satisfied the
notice requirements of Rule 3. Rather, the state argues that
Clark’s motion did not convey any intention to appeal at all,
and “shows only that he may wish to seek appellate review at
some point in the future;” “in other words, [the motion is]
speculative.” State’s Br. at 6. We disagree.
To be sure, a motion for an extension of time on its face
might not conclusively show subjective certainty about the
party’s desire to appeal. “But this view loses sight of the
fact that it is ‘the notice afforded by a document, not the
litigant’s motivation in filing it, [that] determines the
document’s sufficiency as a notice of appeal.’” Isert v. Ford
Motor Co., 461 F.3d 756, 762 (6th Cir. 2006) (quoting Smith, 502
U.S. at 249). Thus Clark’s subjective intent - if it was indeed
to only seek appellate review in the future - is irrelevant.
The relevant inquiry is whether the “notice of appeal . . .
8
specifically indicate[s] the litigant’s intent to seek appellate
review.” Smith, 502 U.S. at 248.
Here, as already noted, Clark’s motion complied with Rule
3’s notice requirements. Further, Clark, in support of his
motion for extension of time states: “[I]n order to properly
file for a Certificate of Appealability, [I] request[] an
additional fifteen (15) days beyond the current due date.” J.A.
621. The reason for his request? Clark had limited access to
the prison law library, which “prevent[ed] him from conducting
the necessary legal research to properly file.” Id.
There would be little reason for Clark to request an
extension of time to properly file a certificate of
appealability if he did not intend to appeal. Under these
circumstances, we believe that there could be no genuine doubt
that the motion for extension of time indicates Clark’s intent
to appeal the district court’s order overruling his objections
to the magistrate judge’s report and recommendation, and that
motion sufficed to put the state on notice of that intent. 2 And,
to require more explicit language from a pro se litigant would
turn Smith’s instruction that we liberally construe Rule 3’s
2
The state does not contend that it will suffer any
prejudice if we construed Clark’s motion as a notice of appeal.
9
requirements on its head. Thus, we conclude that Clark’s motion
evinced a desire to appeal. 3
Remarkably, the dissent contends that our holding today is
“unprecedented,” “stretch[ing] the functional equivalency test
far beyond its defined bounds.” Dissenting Op. at 13, 17. But
the dissent’s contention conveniently ignores precedent in other
circuits. In truth, our conclusion today – this “untenable
fabrication,” as the dissent would have it, id. at 21 - flows
naturally from our own precedent, see e.g., Garcia, 65 F.3d at
19 (“[P]leadings under Rule 3 are liberally construed,
especially pro se pleadings.”), and is consistent with the
holdings of other circuits, see, e.g., Rountree v. Balicki, 640
F.3d 530, 536 (3d Cir. 2011) (“By indicating [, in his motion
for extension of time to file for a certificate of
appealability, that] he would file for a certificate of
3Our jurisdictional inquiry has one more step, and that is
Clark’s failure to secure a certificate of appealability, as
required by 28 U.S.C. § 2253(c). The district court denied a
certificate of appealability, and Clark presented no request for
a certificate of appealability to this Court as permitted by
Federal Rule of Appellate Procedure 22(b). Having construed
Clark’s motion for an extension of time to request a certificate
of appealability as a notice of appeal, however, we will also
construe it as a request for a certificate of appealability.
See Jones v. Braxton, 392 F.3d 683, 689 (4th Cir. 2004) (“Under
Federal Rule of Appellate Procedure 22(b), we are required to
construe the notice of appeal that Jones filed as an application
for a certificate of appealability.”); see also Fed. R. App. P.
22(b)(2) (“If no express request for a certificate [of
appealability] is filed, the notice of appeal constitutes a
request addressed to the judges of the court of appeals.”).
10
appealability, his pro se motion evidenced an intention to
appeal, which means it constituted a notice of appeal.”
(quotation marks and citation omitted)); Wells, 591 F.3d at 565
(“[T]he motion for extension of time to request a certificate of
appealability is an attenuated example of a functional
equivalent to a notice of appeal, and probably lies at the outer
limit of what motions may suffice under Smith v. Barry. But, we
are confident that the appellant’s motion in this case served
adequate notice under the Rule.”).
Interestingly, the state cited Bailey v. Cain, 609 F.3d 763
(5th Cir. 2010), for the proposition that a motion for an
extension of time to file a certificate of appealability does
not qualify as a notice of appeal. Not only is the state’s
reliance on that case misplaced, but the holding in Bailey
should assuage the state’s concern that our decision today will,
in effect, eliminate, undermine, or abolish the Federal Rules of
Appellate Procedure. In Bailey, the Fifth Circuit assumed that
a motion for an extension of time to file a certificate of
appealability could provide adequate notice under Rule 3. Id.
at 766. The court, however, concluded that Bailey’s motion came
up short; “[o]mitted from Bailey’s motion that was present in
Wells is a specific reference to the judgment or order from
which appeal was taken.” Id. Because Bailey’s motion did not
satisfy two of the three notice requirements of Rule 3, the
11
court held that Bailey’s motion to extend was not a functional
equivalent of a notice of appeal. Id. at 767. In other words,
noncompliance with Rule 3 was “fatal,” see Smith, 502 U.S. at
248, to Bailey’s appeal.
The result in Bailey illustrates why the state’s doomsday
scenario - this Court automatically treating every motion for
extension of time as a notice of appeal – will never occur. In
order for us to find that a motion for an extension of time is
the functional equivalent of a notice of appeal, the litigant’s
motion must be timely under Rule 4 and must satisfy the notice
requirements of Rule 3. Clark’s motion did just that.
IV.
For the foregoing reasons, we have jurisdiction to consider
Clark’s application for a certificate of appealability.
JURISDICTION AFFIRMED
12
NIEMEYER, Circuit Judge, dissenting:
On December 4, 2014, the district court entered final
judgment denying Keith Clark’s petition under 28 U.S.C. § 2254
for a writ of habeas corpus. Clark filed his notice of appeal
63 days later, on February 5, 2015, which was therefore
untimely. See 28 U.S.C. § 2107(a) (requiring that notice of
appeal be filed within 30 days after the entry of judgment);
Fed. R. App. P. 4(a)(1)(A) (same). Because the requirement for
timely filing a notice of appeal is “mandatory and
jurisdictional,” Bowles v. Russell, 551 U.S. 205, 209-10 (2007),
we are required to dismiss Clark’s appeal.
In an unprecedented opinion, the majority holds that a
motion that Clark filed on December 18, 2014, for an extension
of time to request a certificate of appealability was the
functional equivalent of a notice of appeal that satisfied the
jurisdictional requirements of § 2107 and Federal Rules of
Appellate Procedure 3 and 4. It reasons that (1) because
Clark’s motion for an extension of time related to a future
request to file a certificate of appealability and (2) because a
future request for a certificate of appealability would relate
ultimately to a future notice of appeal, Clark’s motion must be
treated as a document giving sufficient notice of his appeal.
The majority states that it “believe[s] that there could be no
13
genuine doubt that the motion for extension of time indicates
Clark’s intent to appeal.” Ante at 8.
The majority’s decision dramatically oversteps the bounds
of liberally construing a document and, in sympathy for the
pleading challenges facing pro se litigants, substantially and
substantively rewrites it. Under no fair construction of
Clark’s motion for an extension of time could a party or a court
conclude that the document “specifically indicate[s] [Clark’s]
intent to seek appellate review” with the purpose that it
“provide[] sufficient notice to other parties and the courts.”
Smith v. Barry, 502 U.S. 244, 248 (1992). As the Smith Court
explained, “the notice afforded by a document, not the
litigant’s motivation in filing it, determines the document’s
sufficiency as a notice of appeal.” Id. (emphasis added). How
can a simple request for an extension to file a certificate of
appealability be fairly understood to give notice of appeal?
The majority’s decision will cause much mischief, some
unintended but some quite foreseeable and damaging to the
appellate process. Hereafter, for example, a litigant who files
a request for an extension of time to file an appeal will, in
effect, have his motion automatically decided in his favor
without having to show any excusable neglect or good cause, as
required by 28 U.S.C. § 2107(c) and Federal Rule of Appellate
14
Procedure 4(a)(5)(A), because his motion will have to be taken
as a notice of appeal.
Because I would dismiss Clark’s appeal as untimely, I
respectfully dissent.
I
Clark was convicted in the South Carolina courts of
kidnapping and assault with intent to commit criminal sexual
conduct. After having unsuccessfully sought direct and
collateral review from the South Carolina courts, he filed this
pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254.
On December 4, 2014, the district court denied Clark’s
petition, granting summary judgment to Larry Cartledge, the
Warden at Perry Correctional Institution, where Clark was
housed. It also denied Clark a certificate of appealability.
On December 18, 2014, Clark filed a document that he called a
“Motion for Extension of Time to request for a Certificate of
Appealability.” The document requested “an additional fifteen
(15) days beyond the current due date” “in order to properly
file for a Certificate of Appealability” with respect to the
district court’s December 4 order denying his habeas petition.
He gave as his reasons the late receipt of the district court’s
December 4 order, restrictions on his access to the prison law
15
library, and institutional lockdowns to which he was subjected,
and in support of his motion, he cited Federal Rule of Civil
Procedure 6(b), which addresses “Extending Time.” The district
court denied Clark’s motion by order dated December 23, 2014.
Clark nonetheless filed a request for a certificate of
appealability with the district court, which the court also
denied.
The record shows that Clark himself clearly understood that
his motion for a request for an extension of time to request a
certificate of appealability was not to serve as a notice of
appeal because he thereafter filed with the district court a
document that he called a “Request for Certificate of
Appealability” and later a document that he called a “Notice of
Appeal.” Clark’s notice of appeal clearly manifested his
intent, with that document, to appeal. As it states, “The
petitioner Keith Alan Clark hereby appeal[s] his Federal Habeas
Corpus action that was decided by the Honorable Bruce Howe
Hendricks, U.S. District Judge.” His notice of appeal, however,
was filed with prison authorities on February 5, 2015, 63 days
after the district court’s order denying his petition for habeas
corpus, and therefore was untimely.
Under these facts, the majority concludes that Clark’s
request for an extension of time to file a certificate of
appealability was the “functional equivalent” of a notice of
16
appeal and therefore that his filing of the motion conferred
jurisdiction on this court on December 18, 2014.
II
It is uncontroverted that Clark filed his “notice of
appeal” long after the 30-day time limit fixed by 28 U.S.C.
§ 2107(a) and Federal Rule of Appellate Procedure 4(a)(1)(A), a
deadline that the Supreme Court has repeatedly described as
“mandatory and jurisdictional.” Bowles, 551 U.S. at 209-10; see
also Ray Haluch Gravel Co. v. Cent. Pension Fund, 134 S. Ct.
773, 779 (2014). The majority nonetheless concludes that we
have jurisdiction to consider Clark’s appeal by construing
Clark’s earlier motion for an extension of time to request a
certificate of appealability as the “functional equivalent” of a
notice of appeal. The majority’s holding stretches the
functional equivalency test far beyond its defined bounds.
As the Supreme Court has defined the test, “if a litigant
files papers in a fashion that is technically at variance with
the letter of a procedural rule, a court may nonetheless find
that the litigant has complied with the rule if the litigant’s
action is the functional equivalent of what the rule requires.”
Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17 (1988).
Thus, in this case, we would have to conclude, in applying the
test, that Clark’s motion for an extension of time was the
17
functional equivalent of what Federal Rule of Appellate
Procedure 3 requires for a notice of appeal.
Federal Rule of Appellate Procedure 3 provides that an
appeal “may be taken only by filing a notice of appeal” and
requires that the notice of appeal “specify the party . . .
taking the appeal,” “designate the judgment [or] order . . .
being appealed,” and “name the court to which the appeal is
taken,” Fed. R. of App. P. 3(a)(1), (c)(1) (emphasis added). In
substance, the Rule requires that “a notice of appeal must
specifically indicate the litigant’s intent to seek appellate
review,” with the purpose of “ensur[ing] that the filing
provides sufficient notice to other parties and the courts.”
Smith, 502 U.S. at 248. These requirements of Rule 3 must be
substantially satisfied by a document, and it is the “notice
afforded by [the] document, not the litigant’s motivation in
filing it, [that] determines the document’s sufficiency as a
notice of appeal.” Id. (emphasis added).
In this case, Clark’s motion for an extension of time to
request a certificate of appealability provides no manifestation
that it was intended to serve as a notice of appeal. To the
contrary, Clark indicated in the motion that “[he], in order to
properly file for a Certificate of Appealability, [was]
requesting an additional fifteen (15) days beyond the current
due date.” And the intent communicated by the document was made
18
yet clearer as it pointed to the fact that Clark needed more
time to research the certificate of appealability. Moreover,
the motion relied on Federal Rule of Civil Procedure 6(b),
providing for extensions of time. This document simply cannot
be read by any other party or a court as communicating notice of
an appeal.
Furthermore, Clark’s motion for an extension of time was
not the product of confusion, nor was the motion ambiguous. His
motion for an extension of time was just that, as he explained
within the motion. The fact that he did indeed later file a
request for a certificate of appealability and a notice of
appeal demonstrates the unambiguous role of his motion for an
extension of time. It is simply too creative to conclude that
Clark’s motion was the functional equivalent of a notice of
appeal sufficient to give the parties and the court notice that,
with the filing of the motion, he was intending to appeal.
To reach its conclusion, the majority had to effectively
rewrite Clark’s motion. In its rewrite, the majority
substitutes Clark’s intent to pursue appellate review in the
future for his present intent to obtain a 15-day extension to
file a future certificate of appealability. This is how the
majority does it:
19
(1) Although Clark captioned his motion, “MOTION FOR
EXTENSION OF TIME,” the majority takes the motion to
be a “notice of appeal.” Ante at 2.
(2) When, in his motion, Clark identified himself as the
party “bring[ing] a Motion for Extension of Time,” the
majority reconstructs this language to mean that
“Clark identifies himself as the person who intends to
appeal.” Ante at 6 (emphasis added).
(3) When, in his motion, Clark wrote that, among other
reasons given for the motion, he needed the extension
of time because he did not receive the district
court’s order denying habeas relief in a timely
manner, pointing out that the order was dated December
4, 2014, but he “received service of the Order . . .
on December 9, 2014[,] 5 days after it was served,”
the majority reconstructs the language to mean that
“Clark identifies . . . the order he intends to appeal
-- the district court’s order denying his [petition
for habeas corpus].” Ante at 6 (emphasis added).
(4) While Clark addressed his motion to the district
court, seeking 15 additional days within which to file
his certificate of appealability in that court (where
he ultimately filed his certificate of appealability),
the majority reconstructs it to reveal “Clark’s intent
20
to appeal to [the Fourth Circuit]” because “the term
‘certificate of appealability’ necessarily refers to
an appeal to the relevant court of appeals.” Ante at
6-7 (emphasis added) (internal quotation marks and
citation omitted).
With these reconstructions of Clark’s document, the majority
concludes that the motion for an extension of time satisfies
Federal Rule of Appellate Procedure 3, “suffic[ing] to put the
state on notice” of Clark’s intent to appeal, and that “there
could be no genuine doubt” about that. Ante at 8.
The majority’s conclusion is based on an untenable
fabrication. Nowhere in Clark’s motion for an extension of time
does he attempt to convey notice that he is appealing. His
entire text is focused on having more time to file a request for
a certificate of appealability in the district court. The
majority’s evaluation of Clark’s “circumstances,” by which it
speculates that “[t]here would be little reason for Clark to
request an extension of time to properly file a certificate of
appealability if he did not intend to appeal,” ante at 8,
completely disregards the Supreme Court’s instructions that
courts “should not . . . rel[y] on [petitioner’s] reasons for
filing” because “the notice afforded by [the] document, not the
litigant’s motivation in filing it,” is what matters, Smith, 502
U.S. at 248 (emphasis added).
21
The effect of the majority’s holding is dramatic. Not only
does it gratuitously rewrite Clark’s motion, but, in doing so,
it effectively repeals the appellate rules and statutes
governing extensions of time to file an appeal. For example,
the decision strips district courts of their discretion to rule
on a party’s motion for an extension of time, see Fed. R. App.
P. 4(a)(5)(A) (“The district court may extend the time to file a
notice of appeal” (emphasis added)); see also 28 U.S.C.
§ 2107(c), and categorically relieves would-be appellants from
the requirement to “show[] excusable neglect or good cause,” see
Fed. R. App. P. 4(a)(5)(A)(ii); see also 28 U.S.C. § 2107(c).
Since every such motion for an extension of time will now be
deemed automatically to be a notice of appeal, such factual
showings will no longer be required.
The majority’s holding also eliminates the requirements for
giving notice that an appeal is being taken, thus confusing
other parties who might wish to file a cross-appeal and who must
comply with administrative requirements of the rules that are
based on the date the notice of appeal was filed. For instance,
a party intending to file a cross-appeal must do so within 14
days after the principal appeal is filed. See Fed. R. App. P.
4(a)(3). With the majority’s holding, a party will not know
whether another party’s request for an extension of time to file
22
an appeal is actually an appeal and thereby might lose its right
to appeal.
And as a corollary, the majority’s holding destroys any
clarity as to whether appellate courts have jurisdiction. Cf.
Bowles, 551 U.S. at 208 (explaining that “[d]istrict courts have
limited authority to grant an extension of the 30-day time
period” governing notices of appeal and holding that the court
of appeals lacked jurisdiction over an appeal because, even
though the notice of appeal was filed within the time period
specified by the district court, that time period exceeded the
period permitted by 28 U.S.C. § 2107 and Federal Rule of
Appellate Procedure 4(a)(6)).
Finally, the majority’s holding that courts must read
motions for extensions of time as notices of appeal will
interfere with principles of finality. It is easy to imagine a
scenario in which a party files a timely request for an
extension of time to note an appeal, which the district court
denies, and the 30-day time period for taking an appeal lapses
without the party having filed a notice of appeal. Even if the
opposing party and the court initially have notice that the
movant intended to file an appeal in the future, such notice
dissipates when Rule 4(a)(1)(A)’s 30-day time limit lapses and
the opposing party and the court rationally assume that the
would-be appellant elected not to file the appeal. Under the
23
majority’s decision, however, the party who filed the motion for
an extension could eventually pursue the appeal long after the
30-day time period has ended, to the surprise of the opposing
party and the court, by relying on his motion for an extension
of time as his notice of appeal. Similar confusion would result
if the district court granted the appellant’s motion for an
extension of time. Under the majority’s new rule, if the
appellant failed to file his appeal within the extended time,
the resulting expectation of the opposing party and the court
that the appellate court lacked jurisdiction and that the
proceeding had ended would be in error, as the appellant could
proceed at any point simply on the basis of his earlier request
for an extension of time.
At bottom, there is no limiting principle in the majority’s
holding. With it, a court could even construe a petitioner’s
§ 2254 petition for habeas relief or his motion for
reconsideration of an order denying habeas relief to reveal an
intent to appeal and therefore to constitute a notice of appeal
under Rule 3, based on the logic that a prisoner’s
“circumstances” often provide “little reason” not to appeal any
adverse ruling. Ante at 8.
Until now, we have never applied the functional equivalency
test so liberally as to eliminate the substantive requirements
of Federal Rule of Appellate Procedure 3. While we have
24
permitted imperfections in the notice of appeal, we have done so
only when the document provided definite notice of the party’s
present intent to appeal. See, e.g., Jackson v. Lightsey, 775
F.3d 170, 175-76 (4th Cir. 2014) (construing a document
purporting to be a notice of appeal as such even though it
lacked the words “Fourth Circuit”); In re Spence, 541 F.3d 538,
543 (4th Cir. 2008) (construing a document purporting to be a
notice of appeal to pertain to the district court’s final order
even though it designated only the district court’s order
denying the motion for rehearing); Dang v. C.I.R., 259 F.3d 204,
207-08 (4th Cir. 2001) (construing the appellant’s notice of
appeal to include issues not specifically designated).
To be sure, Federal Rule of Appellate Procedure 3(c)(4)
tolerates “informality of form or title of the notice of
appeal,” but the Rule cannot be read to “waive” the substantive
requirements of Rule 3(c), which function as a “jurisdictional
threshold.” Torres, 487 U.S. at 314-17. This jurisdictional
threshold requires that a notice of appeal be sufficient to
“ensure that the filing provides sufficient notice to other
parties and the courts,” Smith, 502 U.S. at 248, that the
appellant is “taking the appeal,” Fed. R. App. P. 3(c)(1)(A)
(emphasis added). Because Clark’s motion for an extension of
time to request a certificate of appealability does not provide
that notice, we must dismiss this appeal for lack of
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jurisdiction because the only notice of appeal that Clark filed
was untimely.
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