IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 93-3065
_____________________
RICHARD BURT,
Plaintiff-Appellant,
v.
GEORGE WARE, JR., ET AL.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Middle District of Louisiana
_________________________________________________________________
(February 3, 1994)
Before POLITZ, Chief Judge, KING and DAVIS, Circuit Judges.
PER CURIAM:
In this case, we decide whether the amendments to Rule
4(a)(4) of the Federal Rules of Appellate Procedure which took
effect on December 1, 1993, apply retroactively to a notice of
appeal which was filed before the effective date. We hold that
it is "just and practicable" to apply these amendments to the
case presented and that the appellant's motion for post-judgment
relief does not nullify the notice of appeal he previously filed.
In Part IV, we also order, in the exercise of our
supervisory jurisdiction over the district courts in this
circuit, that all post-judgment motions referred to in Rules
4(a)(4) and 4(b) be decided as expeditiously as possible,
consistent with a just and fair disposition thereof.
I. Background
In the district court, Richard Burt ("Burt"), a Texas state
prisoner, filed a pro se civil rights petition pursuant to 42
U.S.C. § 1983, alleging that his constitutional rights were
violated by the defendants. According to Burt, the defendants
informed prison officials that he was under criminal
investigation for engaging in a telephone scam, and that this
information led prison officials to confine him to the Extended
Lockdown Restricted Tier.
Burt filed a motion for summary judgment which was referred
to the magistrate judge for consideration. The magistrate issued
a report recommending that Burt's motion be denied and ordered
Burt to supplement his summary judgment materials to show why
summary judgment should not be granted for the defendants.
Finding Burt's responses to be inadequate, the magistrate
recommended that summary judgment be granted to the defendants.
The district court adopted the magistrate's recommendations,
denied Burt's motion, and entered summary judgment for the
defendants on December 31, 1992.
Burt then filed a notice of appeal and a motion to proceed
in forma pauperis on appeal, both of which were served on January
6, 1993. At that time, Burt also served a "Motion for Relief
from Judgment of Summary Proceedings" purportedly pursuant to
Federal Rule of Civil Procedure 60(b) on January 6, 1993. The
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district court has not yet ruled upon this post-judgment motion.1
Burt also pursued his appeal, filing his appellate brief in
support of his motion to proceed in forma pauperis on March 8,
1993.
II. Analysis
As a threshold matter, we must determine whether we have
jurisdiction to entertain the appeal. See, e.g., Mosley v.
Cozby, 813 F.2d 659, 660 (5th Cir. 1987) (This court has the duty
to examine the basis of its jurisdiction on its own motion if
necessary.); Fitzpatrick v. Texas Water Comm'n, 803 F.2d 1375,
1376 (5th Cir. 1986) (same). In the instant case, our
jurisdiction depends upon the applicability of the recent
amendments to the Federal Rules of Appellate Procedure,
specifically Federal Rule of Appellate Procedure 4(a)(4). Under
the rule in effect prior to December 1, 1993, Burt's post-
judgment "Motion for Relief from Judgment of Summary
Proceedings," served within ten days after judgment, would
clearly have nullified his notice of appeal. See FED. R. APP. P.
4(a)(4) (1979 version); see also Harcon Barge Co. v. D & G Boat
Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1984) (en banc), cert.
denied, 479 U.S. 930 (1986) (This court treats a motion which
calls into question the correctness of the judgment, does not
1
A docket sheet entry of January 11, 1993, indicates that
the district court signed an order denying a motion for
reconsideration, but that order relates to one of Burt's previous
motions which was filed on December 23, 1992 -- before the court
ruled upon the motion for summary judgment. Thus, we can
conclude that Burt's post-judgment motion is still pending.
3
seek relief for purely clerical errors, and is served within ten
days after the entry of judgment, as a Rule 59(e) motion for
purposes of Rule 4(a)(4)); Woodham v. American Cystoscope Co.,
335 F.2d 551, 554-56 (5th Cir. 1964) (even motions captioned as
Rule 60(b) motions are treated as a Rule 59(e) motion for
purposes of Rule 4(a)(4)'s precursor if filed within ten days of
judgment). Rule 4(a)(4) provided that a timely post-judgment
motion under Federal Rules of Civil Procedure 50(b), 52(b), or
certain provisions of Rule 59, would void any notice of appeal
filed before disposition of that motion.2 Thus, unless the
appellant filed a new notice of appeal within the requisite time-
period after entry of the order disposing of the post-judgment
motion, the court of appeals was without jurisdiction to hear the
appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56,
60-61 (1982); Barnett v. Petro-Tex Chemical Corp., 893 F.2d 800,
804 (5th Cir.), cert. denied, 497 U.S. 1025 (1990). By contrast,
2
In full, former Rule 4(a)(4) provided:
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.
FED. R. APP. P. 4(a)(4) (emphasis added).
4
under the version of the rule that became effective on December
1, 1993, Burt's notice of appeal would be treated as merely
dormant until the post-judgment motion is decided.3
Although Burt's notice of appeal was clearly filed before
the December 1, 1993, effective date of the amendments, the order
from the United States Supreme Court adopting the amendments
provides:
That the foregoing amendments to the Federal Rules of
Appellate Procedure shall take effect on December 1,
3
As recently adopted, Rule 4(a)(4) reads as follows:
If any party makes a timely motion of a type specified
immediately below, the time for appeal for all parties runs
from the entry of the order disposing of the last such
motion outstanding. This provision applies to a timely
motion under the Federal Rules of Civil Procedure:
(A) for judgment under Rule 50(b);
(B) to amend or make additional findings of fact under
Rule 52(b), whether or not granting the motion would
alter the judgment;
(C) to alter or amend the judgment under Rule 59;
(D) for attorney's fees under Rule 54 if a district
court under Rule 58 extends the time for appeal;
(E) for a new trial under Rule 59; or
(F) for relief under Rule 60 if the motion is served
within 10 days after the entry of judgment.
A notice of appeal filed after announcement or entry of the
judgment but before disposition of any of the above motions
is ineffective to appeal from the judgment or order, or part
thereof, specified in the notice of appeal, until the date
of the entry of the order disposing of the last such motion
outstanding. Appellate review of an order disposing of any
of the above motions requires the party, in compliance with
Appellate Rule 3(c), to amend a previously filed notice of
appeal. . . .
FED. R. APP. P. 4(a)(4) (emphasis added).
5
1993, and shall govern all proceedings in appellate
cases thereafter commenced and, insofar as just and
practicable, all proceedings in appellate cases then
pending.
61 U.S.L.W. 5365 (U.S. Apr. 27, 1993) (emphasis added).
This court, in construing a 1991 amendment to Federal Rule
of Civil Procedure 15(c), which was also endorsed with the "just
and practicable" language, has held that "to the maximum extent
possible, the amended Rules should be given retroactive
application." Skoczylas v. Federal Bureau of Prisons, 961 F.2d
543, 546 (5th Cir. 1992) (internal quotations and citation
omitted); see also Atlantis Dev. Corp. v. United States, 379 F.2d
818, 823 (5th Cir. 1967). In the enabling statute authorizing
the Supreme Court to prescribe Rules and amendments, Congress
also permits the Supreme Court to "fix the extent such [amended]
rule shall apply to proceedings then pending." 28 U.S.C. § 2074.
The only limitation upon the retroactive reach of the Supreme
Court's direction is that:
[The] Court shall not require the application of such
[amended] rule to further proceedings then pending to
the extent that, in the opinion of the court in which
such proceedings are pending, the application of such
rule in such proceedings would work injustice, in which
event the former rule applies.
28 U.S.C. § 2074 (emphasis added). Thus, the presumption we
discern from both the Supreme Court's and Congress' mandates as
read in conjunction is that the newly amended rules of appellate
procedure should apply unless their application in this case
"would work injustice." For the reasons described below, we find
that application of the amended rules in the instant case
6
complies with the Supreme Court's directive that they be
immediately implemented "to the maximum extent possible" and that
such application would not "work injustice."
The prior version of Rule 4, adopted by the Supreme Court in
1979, was intended to keep the parties from commencing the
appellate process prematurely since "it would be undesirable to
proceed with the appeal while the district court has before it a
motion the granting of which would vacate or alter the judgment
appealed from." FED. R. APP. P. 4(a)(4) advisory committee's note
(1979). Moreover, as the filing of the notice of appeal was the
action which set the wheels of the appellate process in motion,
under Federal Rules of Appellate Procedure 3, 10, and 12 -- e.g.,
transmittal and docketing of the notice of appeal, ordering the
transcript, and preparation and transmittal of the record -- the
drafters of the rules thought it advisable to defer filing the
notice of appeal until the point at which the court of appeals
could assume jurisdiction. Id. Thus, the prior rule was adopted
to facilitate efficient court administration.
Unfortunately, the rule has had the opposite effect. Rather
than streamline procedures, the 1979 version of Rule 4(a)(4) has
resulted in the dismissal of countless appeals for lack of a
timely notice of appeal. C. Adams, The Timing of Appeals Under
Rule 4(A)(4) of the Federal Rules of Appellate Procedure, 123
F.R.D. 371, 375-78 (1988). For this reason, the rule has been
7
the subject of much controversy and criticism by both courts4 and
commentators.5 Indeed, even the comments accompanying the recent
amendments reflect that the amendments were necessary to remove
the "trap for a litigant who files a notice of appeal before a
posttrial motion or while a posttrial motion is pending . . . ."
Report of the Advisory Committee on the Federal Rules of
Appellate Procedure published August, 1991.
The cases interpreting the former rule further reveal its
troublesome nature. The federal courts were frequently
confronted with strangely-labeled motions seeking post-judgment
relief that did not conform to a specific federal rule governing
post-judgment procedures. As a result, the parties did not
understand the motions to have voided a previously-filed notice
of appeal and often did not file subsequent notices after the
post-judgment motions were decided. Consequently, the courts
wrestled with deciding whether the substance of the motion fit
within any of the motions, however labelled, which would affect
an appeal under Rule 4. This court attempted to provide a
brightline test by holding en banc that
4
See, e.g., Harcon Barge Co. v. D & G Boat Rentals, Inc.,
784 F.2d 665, 668 (5th Cir. 1984) (en banc), cert. denied, 479
U.S. 930 (1986); Averhart v. Arrendondo, 773 F.2d 919, 920 (7th
Cir. 1985).
5
C. Adams, The Timing of Appeals Under Rule 4(A)(4) of the
Federal Rules of Appellate Procedure, 123 F.R.D. 371 (1988); N.
Quay-Smith, Post Trial Motions & Notice of Appeal: Avoiding the
Trap for the Unwary, 37 RES GESTAE 130 (1993); M. Hall, The
Jurisdictional Nature of the Time to Appeal, 21 GA. L. REV. 399,
412-13, 427 (1986); Rosenberg, Solving the Federal Finality-
Appealability Problem, 47 LAW & CONTEMP. PROBS. 171, 172-73 (1984).
8
[a]ny post-judgment motion to alter or amend the
judgment served within ten days after the entry of the
judgment, other than a motion to correct purely
clerical errors covered by Rule 60(a) is within the
unrestricted scope of Rule 59(e) and must, however
designated by the movant, be considered as a Rule 59(e)
motion for purposes of Fed.R.App.P. 4(a)(4).
Harcon Barge, 784 F.2d at 667. Litigation attempting to classify
post-judgment motions, however, continued to grow exponentially.
Compare Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988)
(motion for attorneys' fees is not a Rule 59 motion) and Buchanan
v. Stanships, Inc., 485 U.S. 265 (1988) (application for recovery
of defendants' costs filed within ten days after judgment was not
a Rule 59(e) motion) with Osterneck v. Ernst & Whinney, 489 U.S.
169 (1989) (motion for prejudgment interest filed after judgment
was a motion to alter or amend under Rule 59(e)) and Bodin v.
Gulf Oil Corp., 877 F.2d 438, 440 (5th Cir. 1989) (motion seeking
leave to amend complaint filed within 10 days after judgment
treated as Rule 59(e) motion).6 Essentially, the appellate
practitioner had to predict accurately whether a given post-
judgment motion would be construed as a Rule 59(e) motion -- for
which he must wait to file a notice of appeal -- or not -- in
which case he must file a notice within thirty days of the
judgment. If his prediction was in error, he risked losing his
appeal on grounds that the notice of appeal was filed either
6
See also Mortgage Guaranty Ins. Corp. v. Richard Carlyon
Co., 904 F.2d 298, 300 (5th Cir. 1990) (where motion to withdraw
motion to dismiss crossed in mail with final judgment granting
dismissal, motion to withdraw treated as a Rule 59(e) motion);
Birdsong v. Wrotenbery, 901 F.2d 1270, 1272 (5th Cir. 1990)
(motion labeled as Rule 60(a) motion requesting only
clarification of judgment construed as Rule 59(e) motion).
9
prematurely or too late. In light of the constant confusion
surrounding these rules, even the most attentive of attorneys
could be ensnared.
The express purpose of the amendments to Rule 4(a)(4) was to
eliminate the "trap." See Skoczylas, 961 F.2d at 545-46 (fact
that the express purpose in amending the rule was to remedy the
exact problem presented considered relevant in evaluating whether
amendments should be applied retroactively).
The old rule was not designed primarily to protect important
rights of the litigants, but to insure efficient court
operations. The new rule is designed to serve both functions.
The appellees will not be prejudiced by employment of the new
rules; rather, they will simply lose a potential "windfall" of
having the appeal dismissed. Cf. Skoczylas, 961 F.2d at 546
(noting that no manifest injustice would result from government's
inability to rely upon "a now-obsolete procedural loophole" under
the amended rules). By contrast, if the old rule were to apply,
Burt, a pro se prisoner, would have his appeal dismissed and
would be forced to file renewed motions and briefs in a timely
manner or risk losing his right to appeal. We cannot say that
application of the new rules in this situation would work a
"manifest injustice." Id.
III. Conclusion
Accordingly, we hold that the amendments to Federal Rule of
Appellate Procedure 4(a)(4) are to be given retroactive
application in this case and that Burt's notice of appeal is
10
simply "ineffective to appeal from the [final] judgment or order
. . . until the date of the entry of the order disposing of the
last [post-judgment] motion outstanding." Under amended Rule
3(d), the district court is required to send a copy of any later
docket entry in Burt's case to the court of appeals. Those
docket entries will serve to advise this court of the date on
which Burt's notice of appeal becomes effective. Burt's pending
motions are carried with the case.
IV. Supervisory Order
Various parts of the appellate process, addressed in Federal
Rules of Appellate Procedure which were not amended in 1993, are
tied to the filing of the notice of appeal. See, e.g., FED. R.
APP. P. 10(b) ("Within 10 days after filing the notice of appeal
the appellant shall order from the reporter a transcript . . .
."); FED. R. APP. P. 11(a) ("After filing the notice of appeal the
appellant . . . shall comply with the provisions of Rule 10(b)
and shall take any other action necessary to enable the clerk to
assemble and transmit the record."). In order for the appellate
process to proceed on a timely and efficient basis, we hereby
order, in the exercise of our supervisory jurisdiction over the
district courts in the Fifth Circuit, that whenever a notice of
appeal has been filed after announcement or entry of the judgment
in a civil case or announcement of a decision, sentence, or order
in a criminal case, but before disposition of any of the motions
listed in Rule 4(a)(4) in a civil case or Rule 4(b) in a criminal
case, the district court shall decide all such motions as
11
expeditiously as possible, consistent with a just and fair
disposition thereof.
IT IS SO ORDERED.
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